CHapter 14 – Director, division of health service regulation
Subchapter 14A – rulemaking
SECTION .0100 ‑ RULEMAKING
10A NCAC 14A .0101 PETITIONS
(a) Any person wishing to submit a petition requesting the
adoption, amendment or repeal of a rule by the Director of the Division of
Health Service Regulation shall address the petition to the Director, Division
of Health Service Regulation, 2701 Mail Service Center, Raleigh, North Carolina, 27699-2701.
(b) The petition shall contain the following information:
(1) either a draft of the proposed rule or a
summary of its contents and the statutory authority for the agency to
promulgate the rule;
(2) reason for proposal;
(3) effect on existing rules or orders;
(4) any data supporting the proposal;
(5) effect of the proposed rule on existing
practices in the area involved, including cost factors, if known;
(6) names of those most likely to be affected
by the proposed rule, with addresses, if known;
(7) name(s) and address(es) of petitioner(s).
(c) The Director, based on a study of the facts stated in
the petition, will determine whether the public interest will be served by
granting the petition. He will consider all the contents of the submitted
petition, plus any additional information he deems relevant.
(d) Within 30 days of submission of the petition, the
Director will render a final decision. If the decision is to deny the
petition, the Director will notify the petitioner in writing, stating the
reasons for the denial. If the decision is to approve the petition, the
Director will initiate a rulemaking proceeding by issuing a rulemaking notice,
as provided in these rules.
History Note: Authority G.S. 143B‑10; 150B‑20;
Eff. June 10, 1977;
Readopted Eff. December 1, 1977;
Amended Eff. November 1, 1989.
10A NCAC 14A .0102 RULEMAKING
PROCEDURES
(a) The rulemaking procedures for the Secretary of the
Department of Health and Human Services codified in 10A NCAC 01 are hereby
adopted by reference pursuant to G.S. 150B‑14(c) to apply to the actions
of the Director, with the following modifications:
(1) Correspondence related to the Director's
rulemaking actions shall be submitted to:
Director
Division of Health
Service Regulation
2701 Mail Service Center
Raleigh, North Carolina 27699-2701
(2) The Secretary's designee shall mean the
Director of the Division of Health Service Regulation (hereinafter referred to
as the Division).
(3) The "Division" shall be
substituted for the "Office of General Counsel" in 10A NCAC 01.
(4) "Hearing officer" shall mean the
Director of the Division of Health Service Regulation or his designee.
(b) Copies of 10A NCAC 01 may be inspected in the Division
at the address shown in (a)(1) of this Rule. Copies may be obtained from the
Office of Administrative Hearings, 424 North Blount Street, Raleigh, North Carolina, 27601.
History Note: Authority G.S. 143B‑10; 150B‑11;
150B‑14;
Eff. November 1, 1989.
10A NCAC 14A .0103 DECLARATORY RULINGS
(a) The Director of the Division of Health Service
Regulation may make declaratory rulings. All requests for declaratory rulings
shall be written and submitted to: the Director, Division of Health Service
Regulation, 2701 Mail Service Center, Raleigh, North Carolina, 27699-2701.
(b) All requests for a declaratory ruling must include the
following information:
(1) name and address of the petitioner;
(2) statute or rule to which petition relates;
(3) concise statement of the manner in which
petitioner is aggrieved by the rule or statute or its potential application to
him; and
(4) the consequences of a failure to issue a
declaratory ruling.
(c) Whenever the Director believes for good cause that the
issuance of a declaratory ruling will not serve the public interest, he may
refuse to issue one. When good cause is deemed to exist, the Director shall
notify the petitioner of his decision in writing stating reasons for the denial
of a declaratory ruling.
(d) The Director may refuse to consider the validity of a
rule and therefore refuse to issue a declaratory ruling:
(1) if there has been similar controlling
factual determination in a contested case, or if the factual context being
raised for a declaratory ruling was specifically considered upon adoption of the
rule being questioned as evidence by the rulemaking record; or
(2) if circumstances stated in the request or
otherwise known to the agency show that a contested case hearing would
presently be appropriate.
(e) Where a declaratory ruling is deemed to be in the
public interest, the Director shall issue the ruling within 60 days of receipt
of the petition.
(f) A declaratory ruling procedure may consist of written
submissions, oral hearings, or such other procedure as may be appropriate in a
particular case.
(g) The Director may issue notice to persons who might be
affected by the ruling that written comments may be submitted or oral
presentations received at a scheduled hearing.
(h) A record of all declaratory ruling procedures shall be
maintained for as long as the ruling has validity. This record will contain:
(1) the original request,
(2) reasons for refusing to issue a ruling,
(3) all written memoranda and information
submitted,
(4) any written minutes or audio tape or other
record of the oral hearing, and
(5) a statement of the ruling.
This record will be maintained in a file at the Division
Office, Division of Health Service Regulation, 2701 Mail Service Center,
Raleigh, North Carolina, 27699-2701 and will be available for public inspection
during regular office hours.
History Note: Authority G.S. 143B-10; 150B-4;
Eff. November 1, 1989;
Amended Eff. November 1, 2010.
SECTION .0200 ‑ CONTESTED CASES
10A NCAC 14A .0201 DEFINITIONS
The following terms shall have the following meaning unless
the context of the rule requires a different interpretation:
(1) "Department" means the Department of
Health and Human Services;
(2) "Director" means the Director of the
Division of Health Service Regulation;
(3) "Hearing" means a contested case hearing
as provided in G.S. 150B‑2(2) and 150B‑23;
(4) "OAH" means the Office of Administrative
Hearings.
History Note: Authority G.S. 143B‑10;
Eff. November 1, 1989.
10A NCAC 14A .0202 REQUEST FOR DETERMINATION
(a) In accordance with G.S. 150B‑2(2), any person may
request a determination of his legal rights, privileges, or duties as they
relate to laws or rules administered by the Department. All requests must be
in writing and contain a statement of the facts prompting the request
sufficient to allow for appropriate processing by the Department.
(b) Any person seeking such a determination must exhaust
all informal procedures available before requesting a hearing under G.S. 150B‑23.
(c) All petitions for hearings regarding matters under the
control of the Department shall be filed with the OAH in accordance with G.S.
150B‑23 and 26 NCAC 3 .0003. In accordance with G.S. 1A‑1, Rule
4(j)4, the petition shall be served on a registered agent for service of
process for the Department. A list of registered agents may be obtained from
the Office of General Counsel at 2001 Mail Service Center, Raleigh, North Carolina, 27699-2001.
History Note: Authority G.S. 143B‑10; 150B‑11;
150B‑22; 150B‑23;
Eff. November 1, 1989.
10A NCAC 14A .0203 RECORD
(a) The official record of a hearing shall be maintained in
the Division Office, Division of Health Service Regulation, 2701 Mail Service Center, Raleigh, North Carolina, 27699-2701.
(b) Any person wishing to examine the hearing record shall
submit such request in writing to the Division Office, Division of Health
Service Regulation, 2701 Mail Service Center, Raleigh, North Carolina 27699-2701. Such request must be given in sufficient time to allow the record to be prepared
for inspection.
History Note: Authority G.S. 143B‑10(j)(3); 150B‑23(e);
150B‑29(b);
Eff. November 1, 1989.
10A NCAC 14A .0204 EXCEPTIONS TO RECOMMENDED DECISION
(a) Upon receipt of the official record as defined in G.S.
150B‑37, the Director shall notify the parties to the contested case of
receipt of the record and provide them an opportunity to file exceptions to the
decision recommended by the administrative law judge and to present written
arguments in accordance with G.S. 150B‑36.
(b) The time provided to submit arguments and exceptions
shall be specified in the notice and shall be at least 15 days from the date
the notice was mailed.
(c) No new evidence may be included in the exceptions and
arguments presented for consideration by the final decision‑maker.
History Note: Authority G.S. 143B‑10; 150B‑11;
150B‑36; 150B‑37;
Eff. November 1, 1989.
SECTION .0300 ‑ HEARINGS: TRANSFERS AND DISCHARGES
10A NCAC 14A .0301 DEFINITIONS
The following definitions will apply throughout this
Subchapter:
(1) "Agency" means the Hearing Officer and
his office in the Division of Health Service Regulation, Department of Health
and Human Services.
(2) "Dismissal" means the dismissal of a
request for a hearing if:
(a) the applicant withdraws the request in
writing; or
(b) the applicant fails to appear at a scheduled
hearing without good cause.
(3) "Division" means the North Carolina
Division of Health Service Regulation of the Department of Health and Human
Services.
(4) "Facility" means a nursing facility which
meets the requirements of the Social Security Act as defined in 42 CFR 483.5.
(5) "Hearing Officer" means the person
designated to preside over hearings between residents and nursing facility
providers regarding transfers and discharges.
(6) "Notice" means a written notification of
transfer or discharge by the facility to the resident and either an immediate
family member, if known, or if an immediate family member is not known, the
authorized representative. The resident shall be handed the notice on the same
day that it is dated. The notice must include:
(a) reason for the transfer or discharge;
(b) the effective date of the transfer or
discharge;
(c) the location to which the resident is
transferred or discharged;
(d) statement that the resident has the right to
appeal to the Hearing Officer;
(e) the name, address, and telephone number of
the state Long‑Term Care Ombudsman;
(f) for nursing facility residents with
developmental disabilities, the mailing address and telephone number of the
agency responsible for the protection and advocacy of developmentally disabled
individuals established under Part C of the Developmental Disabilities
Assistance and Bill of Rights Act;
(g) for nursing facility residents who are
mentally ill, the mailing address and telephone number of the agency
responsible for the protection and advocacy of mentally ill individuals established
under the Protection and Advocacy for Mentally Ill Individuals Act;
(h) statement that the resident has the right to
review his records not later than five days prior to a hearing; and
(i) statement that the appeal will be at no
cost to the resident.
(7) "Request for a Hearing" means a clear
expression, in writing, by the resident or either an immediate family member,
if known, or if an immediate family member is not known, the authorized
representative, that he wants the opportunity to present his case to the
hearing officer. The "Request for Hearing Form" will suffice as a
clear, expression, in writing, that a hearing is desired.
(8) "Request for Hearing Form" means a form
which is to be given to the resident and either an immediate family member, if
known, or if an immediate family member is not known, the authorized
representative, simultaneously with the Notice of Transfer or Discharge. The
request for hearing form must include at the least:
(a) the date of Notice of Transfer or Discharge;
(b) the date to be transferred or discharged;
(c) Division of Health Service Regulation's
correct mailing address and phone number;
(d) resident's name, address, telephone number,
and social security number;
(e) the nursing facility's name and address;
(f) name, address, and telephone number of
authorized representative; and
(g) space to elect the option of a hearing by
telephone or in person.
(9) "Resident" means any person who is
receiving treatment or long‑term care in a facility.
(10) "Serve" or "Service" means
personal delivery, delivery by first class or certified United States Postal
Service mail or delivery by licensed overnight express mail, postage prepaid
and addressed to the party at his or her last known address. Service by mail
or licensed overnight express mail is complete upon placing the item to be
served, enclosed in a wrapper addressed to the person to be served, in an
official depository of the United States Postal Service or upon delivery,
postage prepaid and wrapped in a wrapper addressed to the person to be served,
to an agent of the overnight express mail service. For purposes of service on
the Division, the Hearing Officer of the Division shall be the designated
agent.
History Note: Authority 42 U.S.C.S. 1396r(e)(3) and
(f)(3); 42 C.F.R. 483.5; 42 C.F.R. 483.12; G.S. 143B‑165(10);
Eff. August 3, 1992.
10A NCAC 14A .0302 GENERAL
(a) The Division has established an appeal process for
nursing facility residents who have been notified of transfer or discharge.
All residents who have been advised of the date of transfer or discharge in
writing, may request that the Division Hearing Officer set a date for a fair
hearing in accordance with and subject to these Rules.
(b) The Rules of Civil Procedure as contained in G.S. 1A‑1
and the General Rules of Practice for the Superior and District Courts as authorized
by G.S. 7A‑34 and found in the Rules Volume of the North Carolina General
Statutes shall not apply in any hearings held by the Division Hearing Officer
unless another specific statute or rule provides otherwise. Division hearings
are not hearings within the meaning of G.S. Chapter 150B and will not be
governed by the provision of that Chapter unless otherwise stated in these
Rules. Parties may be represented by counsel at the hearing.
History Note: Authority 42 U.S.C.S. 1396r(e)(3) and
(f)(3); 42 C.F.R. 483.12; G.S. 143B‑165(10);
Eff. August 3, 1992.
10A NCAC 14A .0303 INITIATING A HEARING
(a) In order to initiate a hearing with the Hearing
Officer, a resident must first have been served by the facility administrator
with a written Notice of Transfer or Discharge and must file a Request for
Hearing in accordance with the Rules in 10 NCAC 14A .0300. The Request for
Hearing must be in writing and must be signed by the resident. A Request for
Hearing form shall be provided to the resident by the facility for this
purpose.
(b) The hearing is a mechanism for listening to appeals by
residents concerning disputes over transfers and discharges. The hearing shall
be narrowly focused on discharge and transfer issues between the nursing
facility and the resident and shall not involve Medicaid matters such as
eligibility, which is the responsibility of the Medicaid hearing officer.
(c) Should an appeal of the Notice of Transfer or Discharge
be desired, a Request for a Hearing, accompanied by the Notice of Transfer or
Discharge, shall be served to the Hearing Officer and must be received by him
no later than 11 days from the date of the facility's Notice of Transfer or
Discharge. If the request for hearing has not been received within 11 days,
the resident shall waive his right to appeal. The resident must be notified of
the option for the hearing to be in person (face‑to‑face) or by
telephone.
(d) The facility administrator must make available to the
resident information and records at least five working days prior to the
hearing to enable an opportunity for review and preparation. The facility
administrator must forward identical information relevant to the transfer or
discharge to the agency, to be received at least five working days prior to the
hearing. A resident must authorize release of his medical records to the
hearing officer.
History Note: Authority 42 U.S.C.S. 1396r(e)(3) and
(f)(3); 42 C.F.R. 483.12; G.S. 143B‑165(10);
Eff. August 3, 1992.
10A NCAC 14A .0304 NOTICE OF HEARING
Upon receipt of a timely request for a hearing, the Hearing
Officer shall promptly notify all parties (the facility administrator, the
resident, and either an immediate family member, if known or if an immediate
family member is not known, the authorized representative) of receipt of the
Request and shall arrange with the parties a time, date, and telephone numbers
(if by phone conference). If the hearing is to be conducted in person (face‑to‑face),
hearings will be held in the Council Building, 701 Barbour Drive on the
Dorothea Dix Campus in Raleigh, North Carolina, with time and date arranged
with the parties by the hearing officer. These parties will be served notice
of the date of hearing.
History Note: Authority 42 U.S.C.S. 1396r(e)(3) and
(f)(3); 42 C.F.R. 483.12; G.S. 143B‑165(10);
Eff. August 3, 1992.
10A NCAC 14A .0305 DOCUMENTS
All documents required to be filed pursuant to these Rules
shall be served on all other parties by the filing party.
History Note: Authority 42 U.S.C.S. 1396r(e)(3) and
(f)(3); 42 C.F.R. 483.12; G.S. 143B‑165(10);
Eff. August 3, 1992.
10A NCAC 14A .0306 HEARING OFFICER'S FINAL DECISION
The Hearing Officer's final decision will either uphold or
reverse the facility's decision. Copies of the final decision shall be served
upon the parties.
History Note: Authority 42 U.S.C.S. 1396r(e)(3) and
(f)(3); G.S. 143B‑165(10);
Eff. August 3, 1992.
