Section .0100 – Administration

Link to law: http://reports.oah.state.nc.us/ncac/title 04 - commerce/chapter 10 - industrial commission/subchapter k/subchapter k rules.html
Published: 2015

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SUBCHAPTER 10K – RULES FOR THE EUGENICS ASEXUALIZATION AND

STERILIZATION COMPENSATION PROGRAM

 

SECTION .0100 – ADMINISTRATION

 

04 NCAC 10K .0101          LOCATION OF OFFICES AND HOURS OF BUSINESS

(a)  For purposes of this Subchapter, the offices of the North

Carolina Office of Justice for Sterilization Victims are located in the Archives

and History State Library Building, 109 East Jones Street, Raleigh, North

Carolina.  The hours of operation are Monday through Thursday, 10:00 a.m. until

4:00 pm.  The mailing address is 1330 Mail Service Center, Raleigh, North

Carolina 27699-1330.

(b)  For purposes of this Subchapter, the offices of the

North Carolina Industrial Commission are located in the Dobbs Building, 430

North Salisbury Street, Raleigh, North Carolina.  The hours of operation are

8:00 a.m. through 5:00 p.m., Monday through Friday.  The mailing address is

4336 Mail Service Center, Raleigh, North Carolina 27699-4336.

 

History Note:        Authority G.S. 143B-426.50;

143B-426.52(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

04 NCAC 10K .0102          OFFICIAL FORMS

(a)  Copies of the Commission's rules and forms regarding the

Eugenics Asexualization and Sterilization Compensation Program can be obtained

by contacting the Commission in person, by written request mailed to 4336 Mail

Service Center, Raleigh, NC 27699-4336, or from the Commission's website at www.ic.nc.gov.

(b)  The following forms shall be used to process a claim

for compensation at the Commission:

(1)           Claim for Compensation under the Eugenics

Asexualization and Sterilization Compensation Program;

(2)           Motion to Reconsider Decision of the Deputy

Commissioner under the Eugenics Asexualization and Sterilization Compensation

Program;

(3)           Request for Evidentiary Hearing before a

Deputy Commissioner under the Eugenics Asexualization and Sterilization

Compensation Program;

(4)           Notice of Appeal to the Full Commission

under the Eugenics Asexualization and Sterilization Compensation Program; and

(5)           Notice of Appeal to the Court of Appeals

under the Eugenics Asexualization and Sterilization Compensation Program.

(c)  Attorneys and other interested parties may reproduce

forms for their own use, provided:

(1)           no statement, question, or information

blank contained on the Commission form is omitted from the substituted form;

and

(2)           the substituted form is identical in size

and format with the Commission form.

 

History Note:        Authority G.S 143B-426.52(b),(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

04 NCAC 10K .0103          Authority to file on

behalf of third party

(a)  If a claimant is living, an action may be brought under

this Subchapter only by the claimant or a person lawfully authorized to act on

behalf of the claimant.  A person is lawfully authorized to act on behalf of

the claimant if such person has a General Power of Attorney or a Letter of

Appointment of Guardian for the claimant.

(b)  If the claimant was living on June 30, 2013, but

deceased at time of filing a claim, an action may be brought under this

Subchapter only by a person lawfully authorized to act on behalf of the

claimant's estate.  A person is lawfully authorized to act on behalf of the

claimant if such person has Letters Testamentary or Letters of Administration

for the claimant's estate.

 

History Note:        Authority G.S. 143B-426.50; 143B-426.52(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

SECTION .0200 – Review by Deputy Commissioner

 

04 NCAC 10K .0201          Initial DETERMINATION OF CLAIMS BY THE

COMMISSION

(a)  A claimant, or a person lawfully authorized to act on a

claimant's or claimant's estate's behalf, shall file a claim on or before June

30, 2014, by filing the Claim for Compensation under the Eugenics

Asexualization and Sterilization Compensation Program for with the Office of

Justice for Sterilization Victims.  The form shall request the following

information:

(1)           the claimant's current name, mailing

address, county, email address, phone numbers;

(2)           if applicable, the claimant's maiden name;

(3)           the claimant's birthdate;

(4)           the claimant's full name at time of

procedure;

(5)           the claimant's nickname or alias at time of

procedure;

(6)           the estimated date or year of procedure;

(7)           the county of residence at time of

procedure;

(8)           the name of facility where procedure was

performed;

(9)           if applicable, the name of facility where

institutionalized at time of procedure; and

(10)         if claim is filed by a person lawfully

authorized to act on a claimant's or claimant's estate's behalf, then the

following additional information is required:

(A)          proof of authority under 04 NCAC 10K .0103;

(B)          applicant's current name, mailing address, county,

email address, phone numbers;

(C)          applicant's birthdate; and

(D)          relationship to claimant.

(b)  The Commission will not dismiss a claim solely because

all of the information listed in Subparagraph (a)(1)-(9) is not submitted.

(c)  The Office of Justice for Sterilization Victims shall

search the program records for the North Carolina Eugenics Board and collect

the following documentation as available:

(1)           Petition for Operation of Sterilization or

Asexualization;

(2)           Order for Operation of Sterilization;

(3)           Certificate of Surgeon;

(4)           Letter of Authorization to Surgeon;

(5)           consent of parent, guardian, spouse, or

next of kin;

(6)           minutes of proceedings of the Eugenics

Board;

(7)           proof of any search efforts of the Justice

for Sterilization Victims Foundation;

(8)           other pertinent records; and

(9)           any other evidence submitted by the

claimant.

The Office of Justice for Sterilization Victims shall

complete and transmit the Claim for Compensation under the Eugenics

Asexualization and Sterilization Compensation Program along with the available

documentation to the Industrial Commission.  The Industrial Commission shall

provide a copy of the Claim for Compensation under the Eugenics Asexualization

and Sterilization Compensation Program along with the available documentation

to the claimant upon receipt from the Office of Justice for Sterilization

Victims.

(d)  The Commission shall make an initial determination of

eligibility for compensation by filing a written decision.

 

History Note:        Authority G.S. 143B-426.52;

143B-426.53(a);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

04 NCAC 10K .0202          Requests for additional review by the

Deputy Commissioner

(a)  A motion to reconsider or a request for a

redetermination of the Deputy Commissioner's decision shall be filed within 30

days of receipt of notice of the Deputy Commissioner's decision, and may be

filed by using the form Motion to Reconsider Decision of the Deputy

Commissioner under the Eugenics Asexualization and Sterilization Compensation

Program.  If a motion to reconsider or a request for a redetermination is

filed, the Deputy Commissioner's decision is not final until the disposition is

filed by the Deputy Commissioner on the pending motion to reconsider or request

for a redetermination.

(b)  A request for a full evidentiary hearing before the

Deputy Commissioner shall be filed within 30 days of receipt of notice of the

Deputy Commissioner's final decision, and may be filed by using the form Request

for Evidentiary Hearing before a Deputy Commissioner under the Eugenics

Asexualization and Sterilization Compensation Program.  The Deputy Commissioner

shall set a hearing location, date, and time.

 

History Note:        Authority G.S. 143B-426.52(d); 143B-426.53(a),(c),(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

04 NCAC 10K .0203          HEARINGS BEFORE A Deputy Commissioner

(a)  The Commission shall give no less than 30 days' notice

of a hearing in every case.  A motion for a continuance shall be allowed by the

Deputy Commissioner before whom the case is set only in the interests of

justice or to promote judicial economy.  Where a claimant has not notified the

Commission of the attorney representing the claimant prior to the mailing of

calendars for hearing, notice to that claimant constitutes notice to the claimant's

attorney.

(b)  All subpoenas shall be issued in accordance with Rule

45 of the North Carolina Rules of Civil Procedure, with the exception that

production of public records or hospital records as provided in Rule 45(c)(2),

shall be tendered or delivered upon the Deputy Commissioner before whom the

case is calendared, or to the attention of the Docket Section of the Commission

should the case not be calendared.

(c)  The Commission may issue writs of habeas corpus ad

testificandum in cases arising under the Eugenics Asexualization and

Sterilization Compensation Program.  Requests for issuance of a writ of habeas

corpus ad testificandum shall be served upon the Deputy Commissioner before

whom the case is calendared, or upon the Docket Section of the Commission

should the case not be calendared.

(d)  In the event of inclement weather or natural disaster,

hearings set by the Commission shall be cancelled or delayed when the

proceedings before the General Court of Justice in the county of the scheduled

hearings are cancelled or delayed.

 

History Note:        Authority G.S. 143B-426.52(d); 143B-426.53(a),(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

SECTION .0300 – APPEALS TO THE FULL COMMISSION

 

04 NCAC 10K .0301          Appeal TO THE FULL COMMISSION

(a)  A claimant may appeal a Deputy Commissioner's final

decision by filing a notice of appeal to the Full Commission within 30 days of

receipt of notice of the Deputy Commissioner's decision, and may be filed by

using the form Notice of Appeal to the Full Commission under the Eugenics

Asexualization and Sterilization Compensation Program.  The Deputy Commissioner's

decision is binding if not appealed within the timeframe.

(b)  After receipt of notice of appeal, the Commission shall

supply to the claimant a transcript of the record upon which the Deputy

Commissioner's decision is based and from which an appeal is being taken to the

Full Commission. The claimant shall, within ten days of receipt of transcript

of the record, file with the Commission a written statement of the particular

grounds for the appeal.

(c)  When an appeal is made to the Full Commission, the claimant

may file a written brief in support of his ground for appeal.  The brief shall

be filed with the Commission no less than 15 days prior to the hearing.  A

brief to the Full Commission shall not exceed 10 pages, excluding attachments.

(d)  Upon the request of the claimant, the Commission may

waive oral arguments in the interests of justice or to promote judicial

economy.  In the event of such waiver, the Full Commission shall file a

decision based on the record and briefs.

 

History Note:        Authority G.S. 143B-426.52(d); 143B-426.53(e);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

04 NCAC 10K .0302          MOTIONS for reconsideraTion by the

Full commission

A motion to reconsider or to amend the Full Commission's

decision shall be filed within 30 days of receipt of notice of the Full

Commission's decision.  If a motion to reconsider or to amend is filed, the

Full Commission's decision is not final until the disposition is filed by the

Commission on the pending motion to reconsider or to amend.

 

History Note:        Authority G.S. 143B-426.52(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

SECTION .0400 - APPEALS TO THE COURT OF APPEALS

 

04 NCAC 10K .0401          STAYS

When a case is appealed to the Court of Appeals, all

decisions of the Full Commission are stayed pending appeal.

 

History Note:        Authority G.S. 143-294; 143B-426.50;

143B-426.52(d); 143B-426.53(f);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

04 NCAC 10K .0402          MOTIONS FOR COURT OF APPEALS CASES

Prior to the docketing of the record on appeal to the Court

of Appeals, all motions filed by the claimant regarding an appeal to the Court

of Appeals shall be addressed to and ruled upon by the Chair of the Commission,

or the Chair's designee.

 

History Note:        Authority G.S. 143-293; 143-294;

143B-426.50; 143B-426.52(d); 143B-426.53(f);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

04 NCAC 10K .0403          REMAND FROM APPELLATE COURTS

When a case is remanded to the Commission from an appellate

court, the claimant may file a statement, with or without a brief to the Full

Commission, setting forth his position on the actions or proceedings, including

evidentiary hearings or depositions, required to comply with the court's

decision.  This statement shall be filed with the Commission within 30 days of

the issuance of the court's mandate.

 

History Note:        Authority G.S. 143-293; 143B-426.50;

143B-426.52(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).

 

section .0500 – rules of the commission

 

04 NCAC 10K .0501          WAIVER of Rules

In the interests of justice or to promote judicial economy,

the Commission may, except as otherwise provided by the rules in this

Subchapter, waive or vary the requirements or provisions of any of the rules in

this Subchapter in a case pending before the Commission upon written

application of a claimant or upon its own initiative only if the claimant is

not represented by counsel.  Factors the Commission shall use in determining

whether to grant the waiver are:

(1)           the necessity

of a waiver;

(2)           the claimant's

responsibility for the conditions creating the need for a waiver;

(3)           the claimant's

prior requests for a waiver;

(4)           the

precedential value of such a waiver;

(5)           notice to and

opposition by any opposing parties; and

(6)           the harm to the

claimant if the waiver is not granted.

 

History Note:        Authority G.S. 143-293; 143B-426.50;

143B-426.52(d);

Temporary Adoption Eff. December 3, 2013 and shall expire

on the earlier of the date all claims made under this section are finally

adjudicated or June 30, 2018 pursuant to G.S. 143B-426.52(d).