CHapter 14 – Director, division of health service regulation

Link to law: http://reports.oah.state.nc.us/ncac/title 10a - health and human services/chapter 14 - director, division of health service regulation/subchapter a/subchapter a rules.html
Published: 2015

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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.