CHAPTER 3 ‑ HEARINGS DIVISION

 

SECTION .0100 - HEARING PROCEDURES

 

26 NCAC 03 .0101             GENERAL

(a)  The Rules of Civil Procedure as contained in G.S. 1A‑1, 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 apply in contested cases in the Office of Administrative Hearings (OAH) unless another specific statute or rule of the Office of Administrative Hearings provides otherwise.

(b)  The Office of Administrative Hearings shall supply forms for use in contested cases.  These forms shall conform to the format of the Administrative Office of the Courts' Judicial Department Forms Manual.

(c)  The Office of Administrative Hearings shall permit the filing of contested case documents and other pleadings by facsimile (fax) or electronic mail by an attached file either in PDF format or a document that is compatible with or convertible to the most recent version of Microsft Word.  Electronic mail with attachment shall be sent by electronic transmission to: oah.clerks@oah.nc.gov. The faxed or electronic documents shall be deemed a "filing" within the meaning of 26 NCAC 03 .0102(a)(2) provided the original signed document, one copy and the appropriate filing fee (if a fee is required by G.S. 150B-23.2) is received by OAH within seven business days following the faxed or electronic transmission.  Other electronic transmissions, for example, electronic mail without attached file as specified in this Paragraph, shall not constitute a valid filing with the Office of Administrative Hearings.

(d)  Every pleading and other documents filed with OAH shall be signed by the attorney who prepared the document, if it was prepared by an attorney, and shall contain his name, address, telephone number, and North Carolina State Bar number.  An original and one copy of each document shall be filed.

(e)  Except as otherwise provided by statutes or by rules adopted under G.S. 150B‑38(h), the rules contained in this Chapter shall govern the conduct of contested case hearings under G.S. 150B-40 when an Administrative Law Judge has been assigned to preside in the contested case.

 

History Note:        Authority G.S. 7A‑750; 7A-751(a); 150B‑40(c);

Eff. August 1, 1986;

Amended Eff. May 1, 2009; January 1, 2006; April 1, 2004; April 1, 2001; August 1, 2000; February 1, 1994; July 1, 1992; May 1, 1989; January 1, 1989.

Emergency Amendment Eff. October 1, 2009;

Temporary Amendment Eff. December 1, 2009.

 

26 NCAC 03 .0102             DEFINITIONS AND CONSTRUCTION

(a)  The definitions contained in G.S. 150B‑2 are incorporated herein by reference.  In addition, the following definitions apply:

(1)           "Chief Administrative Law Judge" means the person appointed according to G.S. 7A‑752.

(2)           "File or Filing" means to place the paper or item to be filed into the care and custody of the chief hearings clerk of the Office of Administrative Hearings, and acceptance thereof by him, except that the administrative law judge may permit the papers to be filed with him in which event the administrative law judge shall note thereon the filing date.  All documents filed with the Office of Administrative Hearings, except exhibits, shall be in duplicate in letter size 8 1/2" by 11".

(3)           "Service or Serve" means personal delivery or, unless otherwise provided by law or rule, delivery by first class United States Postal Service mail or a licensed overnight express mail service, postage prepaid and addressed to the person to be served at his or her last known address.  A Certificate of Service by the person making the service shall be appended to every document requiring service under these Rules.  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.

(b)  The rules of statutory construction contained in Chapter 12 of the General Statutes shall be applied in the construction of these Rules.

 

History Note:        Authority G.S. 7A‑752; 150B‑11; 150B‑23;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; January 1, 1989; November 1, 1987; September 1, 1986.

 

26 NCAC 03 .0103             COMMENCEMENT OF CONTESTED CASE: NOTICE AND FILING FEE

(a)  A contested case in the Office of Administrative Hearings is commenced by the filing of a petition as required by G.S. 150B‑23 and payment of the appropriate filing fee (if a fee is required by G.S. 150B-23.2).

(b)  Within five days of filing a petition to commence a contested case, the Chief Administrative Law Judge shall assign an administrative law judge to the case.  Within ten days of the filing of a petition commencing a contested case, the chief hearings clerk of the Office of Administrative Hearings shall serve a Notice of Contested Case Filing and Assignment upon all who are parties to the dispute.  The notice shall contain the following:

(1)           Name of case and date of filing;

(2)           Name, address, and telephone number of the administrative law judge; and

(3)           A request that the party send within 30 days a copy of the document constituting the agency action that caused the filing of the petition.

(c) In contested cases commenced by a person aggrieved involving the following causes of action, the petitioner shall pay a filing fee of one hundred twenty-five dollars ($125.00):

(1)          Contested cases challenging certificate of need filed pursuant to G.S. 131E-188;

(2)           Contested cases challenging permit actions under G.S. 143-215.1, G.S. 143-215.10C, G.S. 143-215.15 and G.S. 143-215.108; or

(3)           Contested cases where the amount in controversy is fifty thousand dollars ($50,000) or greater.

(d) In contested cases commenced by a person aggrieved which do not involve the causes of action listed in Paragraph (c) of this Rule, the petitioner shall pay a fee of twenty dollars ($20.00).

(e) The filing fee shall be waived in a contested case in which the petition is filed in forma pauperis and supported by such proofs as are required in G.S. 1-110.  A petitioner seeking to have the filing fee waived under this Paragraph shall make the request by filing the appropriate OAH form with the chief hearings clerk prior to filing the petition for a contested case.

(f) The filing fee shall be waived in a contested case involving a mandated federal cause of action.

(g) The method of payment shall be:

(1)           cash;

(2)           money order;

(3)           certified check; or

(4)           check drawn on an attorney's trust account.

History Note:        Authority G.S. 150B‑11; 150B‑23; 150B‑33;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987; September 1, 1986.

Emergency Amendment Eff. October 1, 2009;

Temporary Amendment Eff. December 1, 2009.

 

26 NCAC 03 .0104             ORDER FOR PREHEARING STATEMENTS

The administrative law judge may serve all parties with an Order for Prehearing Statements together with, or after service of, the Notice of Contested Case Filing and Assignment.  The parties thus served shall, within 30 days of service, file the requested statements setting out the party's present position on the following:

(1)           The nature of the proceeding and the issues to be resolved;

(2)           A brief statement of the facts and reasons supporting the party's position on each matter in dispute;

(3)           A list of proposed witnesses with a brief description of his or her proposed testimony;

(4)           A description of what discovery, if any, the party will seek to conduct prior to the contested case hearing and an estimate of the time needed to complete discovery;

(5)           Venue considerations;

(6)           Estimation of length of the hearing;

(7)           The name, address, and telephone number of the party's attorney, if any; and

(8)           Other special matters.

 

History Note:        Authority G.S. 150B‑33;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987.

 

26 NCAC 03 .0105             DUTIES OF THE ADMINISTRATIVE LAW JUDGE

In conjunction with the powers of administrative law judges prescribed by G.S. 150B‑33 and G.S. 150B-36, the administrative law judge shall perform the following duties, consistent with law:

(1)           Hear and rule on motions;

(2)           Grant or deny continuances;

(3)           Issue orders regarding prehearing matters, including directing the appearance of the parties at a prehearing conference;

(4)           Examine witnesses when deemed necessary to make a complete record and to aid in the full development of material facts in the case;

(5)           Make preliminary, interlocutory, or other orders as deemed appropriate;

(6)           Grant dismissal when the case or any part thereof has become moot or for other reasons;

(7)          Order the State of North Carolina, when it is the losing party as determined by the presiding Administrative Law Judge, to reimburse the filing fee to the petitioner; and

(8)           Apply sanctions in accordance with Rule .0114 of this Section.

 

History Note:        Authority G.S. 7A-751(a); 8C‑1, Rule 614; 150B‑33; 150B-36;

Eff. August 1, 1986;

Amended Eff. April 1, 2001; February 1, 1994; November 1, 1987;

Emergency Amendment Eff. October 1, 2009;

Temporary Amendment Eff. December 1, 2009.

 

26 NCAC 03 .0106             CONSENT ORDER: SETTLEMENT: STIPULATION

Informal disposition may be made of a contested case or an issue in a contested case by stipulation, agreement, or consent order at any time during the proceedings.  Parties may enter into such agreements on their own or may ask for a settlement conference with an administrative law judge to promote consensual disposition of the case.

 

History Note:        Authority G.S. 150B‑31(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0107             SETTLEMENT CONFERENCE

(a)  A settlement conference is for the primary purpose of assisting the parties in resolving disputes and for the secondary purpose of narrowing the issues and preparing for hearing.

(b)  A settlement conference shall be held at the request of any party, the administrative law judge, or the Chief Administrative Law Judge.  Upon receipt of the request, the Chief Administrative Law Judge shall assign the case to another administrative law judge for the purpose of conducting a settlement conference.  Unless both parties and the administrative law judge agree, a unilateral request for a settlement conference shall not constitute good cause for a continuance.  The conference shall be conducted at a time and place agreeable to all parties and the administrative law judge.  It shall be conducted by telephone if any party would be required to travel more than 50 miles to attend, unless that party agrees to travel to the location set for the conference.  If a telephone conference is scheduled, the parties must be available by telephone at the time of the conference.

(c)  All parties shall attend or be represented at a settlement conference under the same requirements as provided for in a mediation settlement conference under Rule .0204(a) of this Chapter.  Parties or their representatives shall be prepared to participate in settlement discussions.

(d)  The parties shall discuss the possibility of settlement before a settlement conference if they believe that a reasonable basis for settlement exists.

(e)  At the settlement conference, the parties shall be prepared to provide information and to discuss all matters required in Rule .0104 of this Section.

(f)  If, following a settlement conference, a settlement has not been reached but the parties have reached an agreement on any facts or other issues, the administrative law judge presiding over the settlement conference shall issue an order confirming and approving, if necessary, those matters agreed upon.  The order is binding on the administrative law judge who is assigned to hear the case.

 

History Note:        Authority G.S. 7A-751(a); 150B-22; 150B‑31(b);

Eff. August 1, 1986;

Amended Eff. April 1, 2001; February 1, 1994; November 1, 1987; September 1, 1986;

Recodified from Rule .0107 Eff. October 1, 2009.

 

26 NCAC 03 .0108             PREHEARING CONFERENCE

(a)  The purpose of the prehearing conference is to simplify the issues to be determined, to obtain stipulations in regard to foundations for testimony or exhibits, to obtain stipulations of agreement on nondisputed facts or the application of particular laws, to consider the proposed witnesses for each party, to identify and exchange documentary evidence intended to be introduced at the hearing, to determine deadlines for the completion of any discovery, to establish hearing dates and locations if not previously set, to consider such other matters that may be necessary or advisable and, if possible, to reach a settlement without the necessity for further hearing.  Any final settlement shall be set forth in a settlement agreement or consent order and made a part of the record.

(b)  Upon the request of any party or upon the administrative law judge's own motion, the administrative law judge may hold a prehearing conference prior to a contested case hearing.  The administrative law judge may require the parties to file prehearing statements in accordance with Rule .0104 of this Section.  A prehearing conference shall be an informal proceeding conducted expeditiously by the administrative law judge. Agreements on the simplification of issues, amendments, stipulations, or other matters may be entered on the record or may be made the subject of an order by the administrative law judge.  Venue for purposes of a prehearing conference shall be determined in accordance with G.S. 150B‑24.

 

History Note:        Authority G.S. 150B‑33(b)(4),(5);

Eff. August 1, 1986;

Amended Eff. February 1, 1994; April 1, 1990; November 1, 1987.

 

26 NCAC 03 .0109             NOTICE OF HEARING

The content and the manner of service of the Notice of Hearing shall be as specified in G.S. 150B‑23 (b) and (c).

 

History Note:        Authority G.S. 150B‑23;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987.

 

26 NCAC 03 .0110             DISQUALIFICATION OF ADMINISTRATIVE LAW JUDGE

Any party may file an affidavit of personal bias or disqualification pursuant to G.S. 150B‑32(b).  An administrative law judge shall withdraw from participation in a contested case if at any time he deems himself disqualified for any reason.

 

History Note:        Authority G.S. 150B‑32(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0111             CONSOLIDATION OF CASES

(a)  The Chief Administrative Law Judge of the Office of Administrative Hearings may order a joint hearing of any matters at issue in contested cases involving common questions of law or fact or multiple proceedings involving the same or related parties, or may order the cases consolidated or make other orders to reduce costs or delay in the proceedings.

(b)  A party requesting consolidation shall serve a petition for consolidation on all parties to the cases to be  consolidated and shall file the original with the Office of Administrative Hearings, together with a Certificate of Service showing service on all parties as herein required.  Any party objecting to the petition shall serve and file his objections within 10 days after service of the petition for consolidation.

(c)  Upon determining whether cases should be consolidated, the Chief Administrative Law Judge shall serve a written order on all parties which contains a description of the cases for consolidation and the reasons for the decision.

(d)  Nothing contained in this Rule shall be deemed to prohibit the parties from stipulating and agreeing to a consolidation which shall be granted upon submission of a written stipulation signed by all the parties to the Chief Administrative Law Judge.

(e)  Following receipt of a notice of or order for consolidation, any party may petition for severance by serving it on all other parties and filing it with the Office of Administrative Hearings at least seven days prior to the first scheduled hearing date.  If the Chief Administrative Law Judge finds that the consolidation will prejudice any party, he shall order the severance or other relief which will prevent the prejudice from occurring.

 

History Note:        Authority G.S. 150B‑23; 150B‑31;

Eff. August 1, 1986;

Amended Eff. January 1, 1987; September 1, 1986.

 

26 NCAC 03 .0112             DISCOVERY

(a)  Discovery methods are means designed to assist parties in preparing to meet their responsibilities and protect their rights during hearings without unduly delaying, burdening or complicating the hearings process and with due regard to the rights and responsibilities of other parties and persons affected.  Accordingly, parties are obliged to exhaust all less formal opportunities to obtain discoverable material before utilizing this Rule.

(b)  Any means of discovery available pursuant to the North Carolina Rules of Civil Procedure, G.S. 1A‑1, is allowed.  If the party from whom discovery is sought objects to the discovery, the party seeking the discovery may file a motion with the administrative law judge to obtain an order compelling discovery.  In the disposition of the motion, the party seeking discovery shall have the burden of showing that the discovery is needed for the proper presentation of the party's case, is not for purposes of delay, and that the issues in controversy are significant enough to warrant the discovery.  In ruling on a motion for discovery, the administrative law judge shall recognize all privileges recognized at law.

(c)  When a party serves another party with a Request for Discovery, that request need not be filed with the Office of Administrative Hearings but shall be served upon all parties.

(d)  The parties in any contested case shall immediately commence to exchange information voluntarily, to seek access as provided by law to public documents and to exhaust other informal means of obtaining discoverable material.

(e)  All discovery shall be completed no later than the first day of the contested case hearing.  An administrative law judge may shorten or lengthen the period for discovery and adjust hearing dates accordingly and, when necessary, allow discovery during the pendency of the contested case hearing.

(f)  No later than 15 days from receipt of a notice requesting discovery, the receiving party shall:

(1)           move for relief from the request;

(2)           provide the requested information, material or access; or

(3)           offer a schedule for reasonable compliance with the request.

(g)  Sanctions for failure of a party to comply with an order of the administrative law judge made pursuant to the discovery rules of this Chapter shall be as provided for by G.S. 1A‑1, Rule 37, to the extent that an administrative law judge may impose such sanctions, and Rule .0114 of this Section.

 

History Note:        Authority G.S. 1A‑1, Rule 5; 150B‑28; 150B‑33(b)(3)(4);

Eff. August 1, 1986;

Amended Eff. February 1, 1994; November 1, 1987.

 

26 NCAC 03 .0113             SUBPOENAS

(a)  Subpoenas for the attendance and testimony of witnesses or for the production of documents, either at a hearing or for the purposes of discovery, shall be issued in accordance with G.S. 150B‑27 and G.S. 1A‑1, Rule 45.

(b)  A subpoena shall be served in the manner provided by G.S. 150B‑27 and G.S. 1A‑1, Rule 45.  The cost of service, fees, and expenses of any witnesses subpoenaed shall be paid by the party at whose request the witness appears.  A party seeking an order imposing sanctions for failure to comply with any subpoena issued under this Rule must prove proper service of the subpoena.

(c)  Objections to subpoenas shall be heard in accordance with G.S. 150B‑27 and G.S. 1A‑1, Rule 45.

 

History Note:        Authority G.S. 150B‑27; 150B‑33;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; November 1, 1987.

 

26 NCAC 03 .0114             SANCTIONS

(a)  If a party fails to appear at a hearing or fails to comply with an interlocutory order of an administrative law judge, the administrative law judge may:

(1)           Find that the allegations of or the issues set out in the notice of hearing or other pleading may be taken as true or deemed proved without further evidence;

(2)           Dismiss or grant the motion or petition;

(3)           Suppress a claim or defense; or

(4)           Exclude evidence.

(b)  In the event that any party or attorney at law or other representative of a party engages in behavior that obstructs the orderly conduct of proceedings or would constitute contempt if done in the General Court of Justice, the administrative law judge presiding may enter a show cause order returnable in Superior Court for contempt proceedings in accordance with G.S. 150B‑33(b)(8).

 

History Note:        Authority G.S. 150B‑25(a); 150B‑33(b)(8),(10);

Eff. August 1, 1986;

Amended Eff. January 1, 1989; November 1, 1987; March 1, 1987.

 

26 NCAC 03 .0115             MOTIONS

(a)  Any application to the administrative law judge for an order shall be by motion, which shall be in writing unless made during a hearing, and must be filed and served upon all parties not less than ten days before the hearing, if any, is to be held either on the motion or the merits of the case.  The nonmoving party shall have ten days from the date of service of the motion to file a response.  A response must be in writing.  Motions practice in contested cases before the Office of Administrative Hearings shall be governed by Rule 6 of the General Rules of Practice for the Superior and District Courts.

(b)  If any party desires a hearing on the motion, he shall make a request for a hearing at the time of the filing of his motion or response.  A response shall set forth the nonmoving party's objections.  All motions in writing shall be decided without oral argument unless an oral argument is directed by the administrative law judge.  When oral argument is directed by the administrative law judge, a motion shall be considered submitted for disposition at the close of the argument.  A hearing on a motion will be directed by the administrative law judge only if it is determined that a hearing is necessary to the development of a full and complete record on which a proper decision can be made.  All orders on such motions, other than those made during the course of a hearing, shall be in writing and shall be served upon all parties of record not less than five days before a hearing, if any, is held.

 

History Note:        Authority G.S. 150B‑33(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0116             TIME

Unless otherwise provided in the rules of the Office of Administrative Hearings or in a specific statute, time computations in contested cases before the Office of Administrative Hearings shall be governed by G.S. 1A‑1, Rule 6.

 

History Note:        Authority G.S. 150B‑33(b)(4);

Eff. August 1, 1986.

 

26 NCAC 03 .0117             INTERVENTION

(a)  Any person not named in the notice of hearing who desires to intervene in a contested case as a party shall file a timely motion to intervene and shall serve the motion upon all existing parties.  Timeliness will be determined by the administrative law judge in each case based on circumstances at the time of filing.  The motion shall show how the movant's rights, duties, or privileges may be determined or affected by the contested case; shall show how the movant may be directly affected by the outcome or that movant's participation is authorized by statute, rule, or court decision; shall set forth the grounds and purposes for which intervention is sought; and shall indicate movant's statutory right to intervene if one should exist.

(b)  Any party may object to the motion for intervention by filing a written notice of objection with the administrative law judge within five days of service of the motion if there is sufficient time before the hearing.  The notice of objection shall state the party's reasons for objection and shall be served upon all parties.  If there is insufficient time before the hearing for a written objection, the objection may be made at the hearing.

(c)  When determined to be necessary to develop a full record on the question of intervention, the administrative law judge may conduct a hearing on the motion to determine specific standards that will apply to each intervenor and to define the extent of allowed intervention.

(d)  The administrative law judge shall allow intervention upon a proper showing under this Rule, unless the administrative law judge finds that the movant's interest is adequately represented by one or more parties participating in the case or unless intervention is mandated by statute, rule, or court decision.  An order allowing intervention shall specify the extent of participation permitted the intervenor and shall state the administrative law judge's reasons.  An intervenor may be allowed to:

(1)           File a written brief without acquiring the status of a party;

(2)           Intervene as a party with all the rights of a party; or

(3)           Intervene as a party with all the rights of a party but limited to specific issues and to the means necessary to present and develop those issues.

 

History Note:        Authority G.S. 150B‑23(d);

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0118             CONTINUANCES

(a)  Requests for a continuance of a hearing shall be granted upon a showing of good cause.  Unless time does not permit, a request for a continuance of a hearing shall be made in writing to the administrative law judge and shall be served upon all parties of record.  In determining whether good cause exists, due regard shall be given to the ability of the party requesting a continuance to proceed effectively without a continuance.  A request for a continuance filed within five days of a hearing shall be denied unless the reason for the request could not have been ascertained earlier.

(1)           "Good cause" includes death or incapacitating illness of a party, representative, or attorney of a party; a court order requiring a continuance; lack of proper notice of the hearing; a substitution of the representative or attorney of a party if the substitution is shown to be required; a change in the parties or pleadings requiring postponement; and agreement for a continuance by all parties if either more time is clearly necessary to complete mandatory preparation for the case, such as authorized discovery, and the parties and the administrative law judge have agreed to a new hearing date or the parties have agreed to a settlement of the case that has been or is likely to be approved by the final decision maker.

(2)           "Good cause" shall not include:  intentional delay; unavailability of counsel or other representative because of engagement in another judicial or administrative proceeding unless all other members of the attorney's or representative's firm familiar with the case are similarly engaged, or if the notice of the other proceeding was received subsequent to the notice of the hearing for which the continuance is sought; unavailability of a witness if the witness testimony can be taken by deposition, and failure of the attorney or representative to properly utilize the statutory notice period to prepare for the hearing.

(b)  During a hearing, if it appears in the interest of justice that further testimony should be received and sufficient time does not remain to conclude the testimony, the administrative law judge shall either order the additional testimony taken by deposition or continue the hearing to a future date for which oral notice on the record is sufficient.

(c)  A continuance shall not be granted when to do so would prevent the case from being concluded within any statutory or regulatory deadline.

 

History Note:        Authority G.S. 150B‑33(b)(4); 150B‑28;

Eff. August 1, 1986;

Amended Eff. November 1, 1987.

 

26 NCAC 03 .0119             SECURE LEAVE PERIODS FOR ATTORNEYS

(a)  Any attorney may designate one or more secure leave periods each year as provided in this Rule.

(b)  Length, Number. A secure leave period shall consist of one or more complete calendar weeks. During any calendar year, an attorney's secure leave periods pursuant to this Rule shall not exceed, in the aggregate, three calendar weeks.

(c)  Designation, Effect. To designate a secure leave period an attorney shall file a written designation containing the information required by Paragraph (d) with the Chief Hearings Clerk. The designation shall be filed:

(1)           no later than 90 days before the beginning of the secure leave period; and

(2)           before any argument or other proceeding before an administrative law judge has been scheduled for a time during the designated secure leave period.

Upon such filing, the secure leave period so designated shall be deemed allowed without further action by the presiding administrative law judge, and the attorney shall not be required to appear at any argument or other administrative proceeding during that secure leave period.

(d)  Content of Designation. The designation shall contain the following information:

(1)           the attorney's name, address, telephone number and state bar number;

(2)           the date of the Monday on which the secure leave period is to begin and of the Friday on which it is to end;

(3)           the dates of all other secure leave periods during the current calendar year that have previously been designated by the attorney pursuant to this Rule;

(4)           a statement that the secure leave period is not being designated for the purpose of delaying, hindering or interfering with the timely disposition of any matter in any pending action or proceeding; and

(5)           a statement that no argument or other proceeding has been scheduled during the designated secure leave period in any matter pending before an administrative law judge in which the attorney has entered an appearance.

 

History Note:        Authority G.S. 7A-750; 150B-40(c);

Eff. August 1, 2000.

 

26 NCAC 03 .0120             RIGHTS AND RESPONSIBILITIES OF PARTIES

(a)  A party shall have all evidence to be presented, both oral and written, available on the date for hearing. In cases when the hearing time is expected to exceed one day, the parties shall be prepared to present their evidence at the date and time ordered by the administrative law judge or agreed upon at a prehearing conference.

(b)  The administrative law judge shall send copies of all orders or decisions to all parties simultaneously.  Any party sending a letter, exhibit, brief, memorandum, or other document to the administrative law judge shall simultaneously send a copy to all other parties.

(c)  All parties have the continuing responsibility to notify the Office of Administrative Hearings of their current address and telephone number.

(d)  A party may represent himself or be represented by an attorney.  If a party has notified other parties of that party's representation by an attorney, all communications shall be directed to that attorney.

(e)  With prior notice to the administrative law judge, any person may offer testimony or other evidence relevant to the case.  Any nonparty offering testimony or other evidence may be questioned by parties to the case and by the administrative law judge.

(f)  Prior to issuing a decision, the administrative law judge may order any party to submit proposed findings of fact and written arguments.

(g)  The Administrative Law Judge may allow remote participation via audio or video conference by participant(s) subject to available services at the hearing location.  Requests for remote participation shall be made at least seven days in advance and are subject to equipment, staff, and scheduling availability.

 

 

History Note:        Authority G.S. 7A-751(a); 150B‑25; 150B‑33; 150B-34;

Eff. August 1, 1986;

Amended Eff. October 1, 1991; April 1, 1990; November 1, 1987;

Recodified from Rule .0119 Eff. August 1, 2000;

Amended Eff. May 1, 2009; April 1, 2001.

 

26 NCAC 03 .0121             WITNESSES

Any party may be a witness and may present witnesses on the party's behalf at the hearing.  All oral testimony at the hearing shall be under oath or affirmation and shall be recorded.  At the request of a party or upon the administrative law judge's own motion, the administrative law judge may exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.

 

History Note:        Authority G.S. 150B‑25(c)(d); 150B‑33(4); 150B‑37(b);

Eff. August 1, 1986;

Amended Eff. November 1, 1987;

Recodified from Rule .0120 Eff. August 1, 2000.

 

26 NCAC 03 .0122             EVIDENCE

The North Carolina Rules of Evidence as found in Chapter 8C of the General Statutes shall govern in all contested case proceedings, except as provided otherwise in these Rules and G.S. 150B‑29.

(1)           The administrative law judge may admit all evidence that has probative value.  Irrelevant, incompetent, and immaterial or unduly repetitious evidence shall be excluded.  An administrative law judge may, in his discretion, exclude any evidence if its probative value is substantially outweighed by the risk that its admission will:

(a)           necessitate undue consumption of time; or

(b)           create substantial danger of undue prejudice or confusion.

(2)           Contemporaneous objections by a party or a party's attorney are not required in the course of a hearing to preserve the right to object to the consideration of evidence by the administrative law judge in reaching a decision or by the court upon judicial review.

(3)           All evidence to be considered in the case, including all records and documents or a true and accurate photocopy, shall be offered and made a part of the record in the case.  No other factual information or evidence shall be considered in the determination of the case.  Documentary evidence incorporated by reference may be admitted only if the materials so incorporated are available for examination by the parties.

(4)           Documentary evidence in the form of copies or excerpts may be received in the discretion of the administrative law judge or upon agreement of the parties.  Copies of a document shall be received to the same extent as the original document unless a genuine question is raised about the accuracy or authenticity of the copy or, under the circumstances, it would be unfair to admit the copy instead of the original.

(5)           The administrative law judge may take notice of judicially cognizable facts by entering a statement of the noticed fact and its source into the record.  Upon timely request, any party shall be given the opportunity to contest the facts so noticed through submission of evidence and argument.

(6)           A party may call an adverse party or an officer, director, managing agent, or employee of the state or any political subdivision thereof or of a public or private corporation or of a partnership or association or body politic which is an adverse party, and interrogate that party by leading questions and contradict and impeach that party on material matters in all respects as if that party had been called by the adverse party.  The adverse party may be examined by that party's counsel upon the subject matter of that party's examination in chief under the rules applicable to direct examination, and may be cross‑examined, contradicted, and impeached by any other party adversely affected by the testimony.

 

History Note:        Authority G.S. 150B‑33(b)(4); 150B‑29;

Eff. August 1, 1986;

Amended Eff. November 1, 1987; March 1, 1987;

Recodified from Rule .0121 Eff. August 1, 2000.

 

26 NCAC 03 .0123             OFFICIAL RECORD

(a)  The official record of a contested case shall be available for public inspection upon request.  An administrative law judge may, consistent with law, order part or all of an official record sealed.

(b)  The official record shall be prepared in accordance with G.S. 150B‑37(a).

(c)  Contested case hearings shall be recorded either by a four‑track recording system or a court reporter using stenomask or stenotype.

(d)  Transcript costs incurred shall be divided equally among the party(ies) requesting a transcript.

(e)  Any other costs incurred when using a court reporter shall be divided equally among the requesting party(ies).

(f)  A 24 hour cancellation notice is required in all cases.  The party(ies) responsible for the cancellation are liable for any cancellation fees.

(g)  Transcripts of proceedings during which oral evidence is presented will be made only upon request of a party.  OAH shall contract with an independent contractor to provide transcript services. Transcript requests must be made to the independent contractor.  The name and phone number of the independent contractor may be obtained by calling the Office of Administrative Hearings.  Transcript costs shall be provided to the requesting party by the independent contractor.  An attorney requesting a transcript on behalf of a party shall be a guarantor of payment of the cost.   The independent contractor may require an advance security deposit to cover the prospective cost.

(h)  Copies of recordings are available upon written request at a cost set out in 26 NCAC 01 .0103.

(i)  Copies of OAH Hearings recordings or non‑OAH certified transcripts therefrom are not part of the official record.

Note:  Rule 5.3(B) of the Rules of Professional Conduct permits an attorney to advance or guarantee expenses of litigation provided the client remains ultimately liable for such expenses.

 

History Note:        Authority G.S. 150B‑37;

Eff. August 1, 1986;

Amended Eff. August 1, 1998; April 1, 1990; February 1, 1989; November 1, 1987;

September 1, 1986;

Recodified from Rule .0122 Eff. August 1, 2000;

Amended Eff. April 1, 2009.

 

26 NCAC 03 .0124             VENUE

Venue in a contested case shall be determined in accordance with G.S. 150B‑24.

 

History Note:        Authority G.S. 150B‑24;

Eff. August 1, 1986;

Recodified from Rule .0123 Eff. August 1, 2000.

 

26 NCAC 03 .0125             CONDUCT OF HEARING

Hearings shall be conducted, as nearly as practical, in accordance with the practice in the Trial Division of the General Court of Justice.

 

History Note:        Authority G.S. 150B‑11; 150B‑25; 150B‑33;

Eff. August 1, 1986;

Recodified from Rule .0124 Eff. August 1, 2000.

 

26 NCAC 03 .0126             HEARING OFFICER'S PROPOSAL FOR DECISION: EXCEPTIONS

 

History Note:        Filed as a Temporary Repeal Eff. December 24, 1987 For a Period of 8 Days to Expire

on January 1, 1988;

Filed as a Temporary Repeal Eff. August 26, 1987 For a Period of 120 Days to Expire

on December 24, 1987;

Authority G.S. 150B‑34;

Eff. August 1, 1986;

Repealed Eff. January 1, 1988;

Recodified from Rule .0125 Eff. August 1, 2000.

 

26 NCAC 03 .0127             ADMINISTRATIVE LAW JUDGE'S DECISION

(a)  An administrative law judge shall issue a decision or order in a contested case within 45 days after the later of the date the administrative law judge receives any proposed findings of fact and written arguments submitted by the parties and the date the contested case hearing ends.  The administrative law judge shall serve a copy of the decision on each party.  When an administrative law judge issues a decision, the Office of Administrative Hearings shall promptly serve a copy of the official record on the agency making the final decision by hand delivery or certified mail.

(b)  An administrative law judge's decision shall be based exclusively on:

(1)           competent evidence and arguments presented during the hearing and made a part of the official record;

(2)           stipulations of fact;

(3)           matters officially noticed;

(4)           any proposed findings of fact and written arguments submitted by the parties under Paragraph (g) of Rule .0119 of this Section; and

(5)           other items in the official record that are not excluded by G.S. 150B‑29(b).

(c)  An administrative law judge's decision shall fully dispose of all issues required to resolve the case and shall contain:

(1)           a caption;

(2)           the appearances of the parties;

(3)           a statement of the issues;

(4)           references to specific statutes or rules at issue;

(5)           findings of fact;

(6)           conclusions of law based on the findings of fact and applicable constitutional principles, statutes, rules, or federal regulations;

(7)           in the discretion of the administrative law judge, a memorandum giving reasons for his findings of fact and conclusions of law;

(8)           a statement identifying the agency that will make the final decision; and

(9)           a statement that each party has the right to file exceptions to the administrative law judge's decision with the agency making the final decision and has the right to present written arguments on the decision to the agency making the final decision.

(d)  The chief administrative law judge may extend the 45‑day time limit for issuing a decision.  An administrative law judge who needs an extension must submit a request for extension to the chief administrative law judge before the 45‑day period has expired.

 

History Note:        Filed as a Temporary Amendment Eff. December 24, 1987 For a Period of 8 Days to Expire on January 1, 1988;

Filed as a Temporary Amendment Eff. August 26, 1987 For a Period of 120 Days to Expire on December 24, 1987;

Authority G.S. 7A-751(a); 150B‑34;

Eff. August 1, 1986;

Amended Eff. February 1, 1994; October 1, 1991; April 1, 1990; January 1, 1989;

Recodified from Rule .0126 Eff. August 1, 2000;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0128             EX PARTE COMMUNICATIONS

Ex parte communications in a contested case are governed by G.S. 150B‑35.

 

History Note:        Authority G.S. 150B‑35;

Eff. August 1, 1986;

Recodified from Rule .0127 Eff. August 1, 2000.

 

26 NCAC 03 .0129             RECONSIDERATION OR REHEARING

After an administrative law judge issues a decision in a contested case, the administrative law judge loses jurisdiction to amend the decision except to correct clerical or mathematical errors.

 

History Note:        Authority G.S. 7A‑750; 7A-751(a); 150B-34;

Eff. August 1, 1986;

Amended Eff. November 1, 1987; January 1, 1987;

Recodified from Rule .0128 Eff. August 1, 2000;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0130             AVAILABILITY OF COPIES

These Rules and copies of all matters adopted by reference herein are available from the Office of Administrative Hearings at the cost established in 26 NCAC 1 .0103.

 

History Note:        Authority G.S. 150B‑14; 150B‑62(b); 150B‑63(f);

Eff. August 1, 1986;

Amended Eff. January 1, 1991;

Recodified from Rule .0129 Eff. August 1, 2000.

 

26 NCAC 03 .0131             FINAL DECISIONS IN CONTESTED CASES

A copy of a final decision issued by an administrative law judge shall be served on each party in accordance with G.S. 150B‑36.

 

History Note:        Authority G.S. 150B‑36;

ARRC Objection Lodged November 17, 1988;

Eff. April 1, 1989;

ARRC Objection Removed Eff. April 1, 1990;

Amended Eff. October 1, 1991; April 1, 1990;

Recodified from Rule .0130 Eff. August 1, 2000.

 

SECTION .0200 ‑ MEDIATION SETTLEMENT CONFERENCE

 

26 NCAC 03 .0201             ORDER FOR MEDIATED SETTLEMENT CONFERENCE

(a)  Order by Chief Administrative Law Judge.  The Chief Administrative Law Judge may, by written order, require parties and their representatives to attend a pre‑hearing mediated settlement conference in any contested case.

(b)  Timing of the Order.  The Chief Administrative Law Judge may issue the order within 10 days of  the filing of the contested case petition.  Paragraph (c) of this Rule and Paragraph (b) of Rule .0203 of this Section shall govern the content of the order and the date of completion of the conference.

(c)  Content of Order.  The Chief Administrative Law Judge's order shall:

(1)           require the mediated settlement conference be held in the contested case;

(2)           establish a deadline for the completion of the conference;

(3)           state clearly that the parties have the right to select their own mediator as provided in Paragraphs (a) and (b) of Rule .0202 of this Section;

(4)           state the rate of compensation of the mediator appointed by the presiding Administrative Law Judge pursuant to Paragraph (c) of Rule .0202 of this Section in the event that the parties do not exercise their right to select a mediator; and

(5)           state that the parties shall be required to pay the mediator's fee at the conclusion of the settlement conference unless otherwise apportioned by the presiding Administrative Law Judge.

(d)  Motion to Dispense with Mediated Settlement Conference.  A party may move the presiding Administrative Law Judge, within 10 days after the date of the Chief Administrative Law Judge's order, to dispense with the conference.  Such motion shall state the reasons the relief is sought.  For good cause shown, the presiding Administrative Law Judge may grant the motion.

(e)  Motion for Mediated Settlement Conference.  In contested cases not ordered to mediated settlement conference, any party may move the presiding Administrative Law Judge to order such a conference.  Such motion shall state the reasons why the order should be allowed and shall be served on non‑moving parties.  Objections may be filed in writing with the presiding Administrative Law Judge within 10 days after the date of the service of the motion.  Thereafter, the presiding Administrative Law Judge shall rule upon the motion without a hearing and notify the parties or their attorneys of the ruling.  In the event that mediation is ordered, the parties may select a mediator by agreement as provided in Paragraphs (a) and (b) of Rule .0202 of this Section within 21 days of the date of the presiding Administrative Law Judge's order.  If the parties cannot agree or have failed to select a mediator within the 21 days, the presiding Administrative Law Judge shall appoint a certified  mediator pursuant to Paragraph (c) of Rule .0202 of this Section.

 

History Note:        Authority G.S. 150B‑23.1;

Eff. February 1, 1994.

 

 

 

26 NCAC 03 .0202             SELECTION OF MEDIATOR

(a)  Selection of Certified Mediator by Agreement of Parties.  The parties may select a certified mediator by agreement within 21 days of the Chief Administrative Law Judge's order.  The petitioner's attorney shall file with the Office of Administrative Hearings a Notice of Selection of Mediator by Agreement within 21 days of the Chief Administrative Law Judge's order.  Such notice shall include: the name, address and telephone number of the mediator selected; the rate of compensation of the mediator; the agreement of the parties as to the selection of the mediator and rate of compensation; and whether or not the mediator is certified.

(b)  Nomination and the Office of Administrative Hearings Approval of a Non‑Certified Mediator.  The parties may select a mediator who is not certified but who, in the opinion of the parties and the presiding Administrative Law Judge, is otherwise qualified by training or experience to mediate all or some of the issues in the action and who agrees to mediate indigent cases without pay.  If the parties select a non‑certified mediator, the petitioner's attorney shall file with the presiding Administrative Law Judge a Nomination of Non‑Certified Mediator within 21 days of the Chief Administrative Law Judge's order.  Such nomination shall include: the name, address and telephone number of the mediator; the training, experience or other qualifications of the mediator; the rate of compensation of the mediator; and the agreement of the parties as to the selection of the mediator and rate of compensation.  The presiding Administrative Law Judge shall rule on the nomination without a hearing, shall approve or disapprove of the parties' nomination and shall notify the parties of the presiding Administrative Law Judge's decision.

(c)  Appointment of Mediator by the presiding Administrative Law Judge.  If the parties cannot agree upon the selection of a mediator, the petitioner's attorney shall so notify the presiding Administrative Law Judge and request, on behalf of all parties, that the presiding Administrative Law Judge appoint a mediator.  The motion must be filed within 21 days of the date of the Chief Administrative Law Judge's order and shall state that the attorneys for the parties have had a full and frank discussion concerning the selection of a mediator and have been unable to agree. The motion shall state whether any party prefers a certified attorney mediator, and if so, the presiding Administrative Law Judge shall appoint a certified attorney mediator.  The motion may state that all parties prefer a certified non-attorney mediator, and if so, the presiding Administrative Law Judge shall appoint a certified non-attorney mediator.  If no preference is expressed, the presiding Administrative Law Judge may appoint a certified attorney mediator or a certified non-attorney mediator. Upon receipt of a motion to appoint a mediator, or in the event the petitioner's attorney has not filed a Notice of Selection or Nomination of Non‑Certified Mediator with the presiding Administrative Law Judge within 21 days of the Chief Administrative Law Judge's order, the presiding Administrative Law Judge shall appoint a certified mediator.  Only mediators who agree to mediate indigent cases without pay shall be appointed.

(d)  Mediator Information Directory.  To assist the parties in the selection of a mediator by agreement, the Office of Administrative Hearings shall prepare and keep current a list of certified mediators who wish to mediate contested cases. The list shall be kept in the Office of Administrative Hearings and made available to the parties upon request.

(e)  Disqualification of Mediator.  Any party may move for an order disqualifying the mediator.  If the mediator is disqualified, a replacement mediator shall be selected by the parties or appointed by the presiding Administrative Law Judge pursuant to this Rule.  Nothing in this Paragraph shall preclude mediators from disqualifying themselves.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0203             MEDIATION SETTLEMENT CONFERENCE

(a)  Where Conference is to be Held.  Unless all parties and the mediator otherwise agree, the mediated settlement conference shall be held in the courthouse or other public building in the county where the contested case is pending.  The mediator shall reserve a place and make arrangements for the conference and give timely notice to all attorneys and unrepresented parties of the time and location of the conference.

(b)  When Conference is to be Held.  The Chief Administrative Law Judge's order issued pursuant to Paragraph (b) of Rule .0201 of this Section shall clearly state a date of completion for the conference.  Such date shall not be less than 90 days or more than 120 days after the issuance of the Chief Administrative Law Judge's order.  The Chief Administrative Law Judge may shorten these time limits in order to meet statutorily imposed deadlines for the hearing of certain types of contested cases.

(c)  Request to Extend Date of Completion.  A party, or the mediator, may request the presiding Administrative Law Judge to extend the deadline for completion of the conference.  Such request shall state the reasons the continuance is sought and shall be served by the moving party upon the other parties and the mediator.  The presiding Administrative Law Judge may grant the request and enter an order setting a new date for the completion of the conference, which date may be set at any time prior to hearing.  Such order shall be served upon the parties and the mediator.

(d)  Recesses.  The mediator may recess the conference at any time and may set times for reconvening. If the time for reconvening is set before the conference is recessed, no further notification is required for persons present at the recessed conference.

(e)  The Mediated Settlement Conference Is Not To Delay Other Proceedings.  The mediated settlement conference shall not be cause for the delay of other proceedings in the contested case, including the completion of discovery, the filing or hearing of motions, or the hearing of the contested case, except by order of the presiding Administrative Law Judge.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0204             DUTIES OF PARTIES, REPRESENTATIVES, AND ATTORNEYS

(a)  Attendance.  The following persons shall physically attend a mediated settlement conference:

(1)           All individual parties; or an officer, employee of a party who is not a natural person or agent who is not such party's outside counsel and who has been authorized to decide on behalf of such party whether and or what terms to settle the contested case; or in the case of a governmental entity, an employee or agent who is not such party's outside counsel and who has authority to decide on behalf of such party whether and what terms to settle the contested case; provided if under law proposed settlement terms can be approved only by a Board, the representative shall have authority to negotiate on behalf of the party and to make a recommendation to that Board;

(2)           At least one counsel of record for each party or other participant whose counsel has appeared in the contested case; and

(3)           For any insured party against whom a claim is made, a representative of the insurance carrier who is not such carrier's outside counsel and who has authority to make a decision on behalf of such carrier or who has been authorized to negotiate on behalf of the carrier and can promptly communicate during the conference with persons who have such decision-making authority.

(b)  Any party or person required to attend a mediated settlement conference shall physically attend until an agreement is reduced to writing and signed as provided in Paragraph (c) of this Rule or an impasse has been declared.  Such party or person may have the attendance requirement excused or modified including the allowance of that party's or person's participation without physical attendance by order of the presiding Administrative Law Judge, upon motion of a party and notice to all parties and persons required to attend and the mediator.

(c)  Finalizing Agreement.  If an agreement is reached in the conference parties shall reduce its terms to writing and sign it along with their counsel.  By stipulation of one or more of the parties and at their expense, the agreement may be electronically or stenographically recorded.  A consent judgment, voluntary dismissals, or withdrawal of petition shall be filed with the Office of Administrative Hearings by such persons as the parties shall designate.

(d)  Payment of Mediator's Fee.  The parties shall pay the mediator's fee as provided by Rule .0207 of this Section.

 

History Note:        Authority G.S.7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0205             SANCTIONS FOR FAILURE TO ATTEND

If a party or other person required to attend a mediated settlement conference fails to attend, the presiding Administrative Law Judge may impose upon the party or person any appropriate monetary sanction including, but not limited to, the payment of fines, attorneys fees, mediator fees, expenses and loss of earnings incurred by persons attending the conference as authorized by G.S. 150B-33(b)(8) or (10).  A party seeking sanctions against another party or person shall do so in a written motion stating the grounds for the motion and the relief sought.  The motion shall be served upon all parties and on any person against whom sanctions are being sought.  If the presiding Administrative Law Judge imposes sanctions, it shall do so, after notice and a hearing, in a written order, making findings of fact supported by substantial evidence and conclusions of law.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0206             AUTHORITY AND DUTIES OF MEDIATORS

(a)  Authority of Mediator.

(1)           Control of Conference.  The mediator shall at all times be in control of the conference and the procedures to be followed.

(2)           Private Consultation.  The mediator may communicate privately with any participant or counsel prior to and during the conference.  The fact that private communications have occurred with a participant shall be disclosed to all other participants at the beginning of the conference.

(3)           Scheduling the Conference.  The mediator shall make a good faith effort to schedule the conference at a time that is convenient with the participants, attorneys and mediator.  In the absence of agreement, the mediator shall select the date for the conference.

(b)  Duties of Mediator.

(1)           The mediator shall define and describe the following at the beginning of the conference:

(A)          The process of mediation;

(B)           The differences between mediation and other forms of conflict resolution;

(C)           The costs of the mediated settlement conference;

(D)          The fact that the mediated settlement conference is not a hearing, the mediator is not a judge, and the parties retain their right to a hearing if they do not reach settlement;

(E)           The circumstances under which the mediator may meet and communicate privately with any of the parties or with any other person;

(F)           Whether and under what conditions communications with the mediator will be held in confidence during the conference;

(G)           The inadmissibility of conduct and statements as provided by Rule 408 of the North Carolina Rules of Evidence;

(H)          The duties and responsibilities of the mediator and the participants; and

(I)            The fact that any agreement reached will be reached by mutual consent.

(2)           Disclosure.  The mediator shall be impartial and advise all participants of any circumstances bearing on possible bias, prejudice or partiality.

(3)           Declaring Impasse.  It is the duty of the mediator to determine that an impasse exists, and that the conference should end.

(4)           Reporting Results of Conference.  The mediator shall file a written report with the parties and presiding Administrative Law Judge within 10 days as to whether or not agreement was reached by the parties.  If an agreement was reached, the report shall state whether the action will be concluded by consent judgment, voluntary dismissal, or withdrawal of petition and shall identify the persons designated to file such pleadings.  The mediator's report shall inform the presiding Administrative Law Judge of the absence of any party, attorney, or insurance representative known to the mediator to have been absent from the mediated settlement conference without permission.  A copy of the Mediator's report shall also be provided to the Attorney General of North Carolina or his designee responsible for evaluating the mediation program pursuant to the 1993 N.C. Session Laws, c. 363, s. 2.

(5)           Scheduling and Holding the Conference.  The mediator shall schedule the conference and conduct it prior to the conference completion deadline set out in the Chief Administrative Law Judge's order.  Deadlines for completion of the conference shall be strictly observed by the mediator unless said time limit is changed by a written order of the presiding Administrative Law Judge.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0207             COMPENSATION OF THE MEDIATOR

(a)  By Agreement.  When the mediator is stipulated to by the parties, compensation shall be as agreed upon between the parties and the mediator.

(b) By Order.  When the mediator is appointed by the Office of Administrative Hearings, the mediator shall be compensated by the parties at the uniform hourly rate and a one-time, per contested case, administrative fee, due upon appointment, as set by the Chief Administrative Law Judge.  The Chief Administrative Law Judge shall set the rate at the same rate set by Rule 7 of the Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions.

(c)  Change of Appointed Mediator.  Pursuant to Rule .0202 of this Section, the parties have 21 days to select a mediator. Parties who fail to select a mediator within that time frame and then desire a substitution after the presiding Administrative Law Judge has appointed a mediator, shall obtain approval from the presiding Administrative Law Judge for the substitution.  If the presiding Administrative Law Judge approves the substitution, the parties shall pay the presiding Administrative Law Judge's original appointee the one time, per case administrative fee provided for in Paragraph (b) of this Rule.

(d)  Indigent Cases.  No party found to be indigent by the presiding Administrative Law Judge shall be required to pay a mediator fee.  Any mediator conducting a settlement conference pursuant to these Rules shall waive the payment of fees from parties found by the presiding Administrative Law Judge to be indigent.  Any party may move the presiding Administrative Law Judge for a finding of indigence and to be relieved of the obligation to pay that party's share of the mediator's fee.  Such motion shall be heard subsequent to the completion of the conference or, if the parties do not settle their contested case, subsequent to the conclusion of the contested case hearing but prior to the issuance of the Administrative Law Judge's decision.  The presiding Administrative Law Judge may take into consideration the outcome of the contested case.  The presiding Administrative Law Judge shall enter an order granting or denying a party's request.

(e)  Postponement Fees.  As used in this Paragraph, the term "postponement" shall mean reschedule or not proceed with a settlement conference once a date for the settlement conference has been agreed upon and scheduled by the parties and the mediator.  After a settlement conference has been scheduled for a specific date, a party may not unilaterally postpone the conference.  A conference may be postponed only after notice to all parties of the reason for the postponement, payment of a postponement fee to the mediator, and consent of the mediator and the opposing attorney.  If a mediation is postponed within seven business days of the scheduled date, the fee shall be set at a rate established by the Chief Administrative Law Judge.  Postponement fees shall be paid by the party requesting the postponement unless otherwise agreed to between the parties.  Postponement fees are in addition to the one time, per case administrative fee provided for in Paragraph (b) of this Rule.  The Chief Administrative Law Judge will set the rate at the same rate set by Rule 7 of the Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions.

(f)  Payment of Compensation by Parties.  Unless otherwise agreed to by the parties or ordered by the presiding Administrative Law Judge, mediator's fee shall be paid in equal shares by the parties.  For purposes of this Rule, multiple parties shall be considered one party when they are represented by the same counsel.  Parties obligated to pay a share of the costs shall pay them equally.  Payment shall be due upon completion of the conference unless there is a pending motion for determination of indigency.  In such case, payment shall be due upon a ruling on the motion.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

26 NCAC 03 .0208             MEDIATOR

For purposes of this Section the term "certified mediator" shall mean a person who is currently certified as a mediator by the Administrative Office of the Courts pursuant to Rule 8 of Rules of the North Carolina Supreme Court Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions, 329 N.C. 795, effective December 1, 1993 and as may be subsequently amended.

 

History Note:        Authority G.S. 7A-751(a); 150B‑23.1;

Eff. February 1, 1994;

Amended Eff. April 1, 2001.

 

SECTION .0300 - EXPEDITED HEARING PROCEDURES FOR COMPLEX CONTESTED CASES

 

26 NCAC 03 .0301             ORDER DESIGNATING COMPLEX CONTESTED CASES

Upon the joint motion, stipulation, or consent of all parties, the Chief Administrative Law Judge (ALJ) may order any contested case to be designated as complex and eligible for expedited hearing procedures.  The Chief ALJ shall issue this order, after reviewing the recommendation of the presiding ALJ, without hearing, within 30 days after the assignment of the contested case.  If the Chief ALJ denies the order, the contested case shall remain on the presiding ALJ=s regular docket.

 

History Note:        Authority G.S. 150B-31(b);

Eff. April 1, 1997.

 

 

 

26 NCAC 03 .0302             FACTORS TO BE CONSIDERED

The Chief ALJ shall designate a contested case as complex and eligible for expedited procedures based upon any factors the Chief ALJ deems appropriate, including the following:

(1)           the need for special expertise by the presiding ALJ;

(2)           the number and diverse interests of the parties;

(3)           the amount and nature of anticipated prehearing discovery and motions;

(4)           the complexity of evidentiary matters and legal issues involved;

(5)           the efficient administration of justice; and

(6)           the economic value of the claims to be litigated.

 

History Note:        Authority G.S. 150B-31(b);

Eff. April 1, 1997.

 

 

 

26 NCAC 03 .0303             VENUE

In order to comply with the time requirements of the expedited hearing procedures, venue for all contested cases designated as complex shall be Wake County, North Carolina, unless otherwise ordered by the presiding ALJ.

 

History Note:        Authority G.S. 150B-31(b);

Eff. April 1, 1997.

 

 

 

26 NCAC 03 .0304             EXPEDITED HEARING PROCEDURES FOR COMPLEX CONTESTED CASES

(a)  Scheduling Order By Consent.  Within 15 days after the Chief ALJ has designated a contested case as complex, the parties shall submit to the presiding ALJ a scheduling order by consent.  If the parties are unable to agree upon a consent scheduling order during this time period, the presiding ALJ shall remove the case from the expedited docket and return it to the regular docket.

(b)  Content of the Scheduling Order.  The Scheduling Order shall include the following:

(1)           dates and time limits for filing motions, responses to motions, and disposition of prehearing motions;

(2)           dates and time limits for completion of discovery;

(3)           dates for prehearing conference and orders on final prehearing conference; and

(4)           any other stipulation controlling the disposition of the contested case, including any agreement regarding abbreviated hearing procedures.

(c)  Hearing and Decision.  The hearing for a complex contested case shall commence within 90 days of the filing of the petition.  Absent a contrary agreement between the parties, the maximum length allowed for a hearing shall be five days, and the time shall be allocated equitably between the parties.  The presiding ALJ shall issue a decision within 30 days of the close of the hearing.  The Office of Administrative Hearings shall deliver the official record to the agency making the final decision within 15 days after the presiding ALJ has filed a recommended decision.

 

History Note:        Authority G.S. 150B-31(b);

Eff. April 1, 1997.

 

 

 

26 NCAC 03 .0305             RULES AND PROCEDURES

The rules contained in 26 NCAC 3 .0100 shall govern the hearing of complex contested cases except as modified by this Section.

 

History Note:        Authority G.S. 150B-31(b);

Eff. April 1, 1997.

 

 

 

Section .0400 – simplified procedures for medicaid applicant and recipient appeals

 

26 NCAC 03 .0401             HEARING PROCEDURE RULES

a)  The rules in 26 NCAC 03 .0100 apply to contested Medicaid cases commenced by Medicaid applicants or recipients under S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13 except:

(1)          26 NCAC 03 .0101(a);

(2)          26 NCAC 03 .0102(3);

(3)          26 NCAC 03 .0103(a);

(4)          26 NCAC 03 .0104;

(5)          26 NCAC 03 .0107;

(6)          26 NCAC 03 .0108;

(7)          26 NCAC 03 .0109;

(8)          26 NCAC 03 .0112(b), (c), (e), (f), (g);

(9)          26 NCAC 03 .0115;

(10)          26 NCAC 03 .0117;

(11)          26 NCAC 03 .0118;

(12)          26 NCAC 03 .0120(e);

(12)          26 NCAC 03 .0123;

(13)          26 NCAC 03 .0124;

(14)          26 NCAC 03 .0125; and

(15)          26 NCAC 03 .0127(a).

(b) Nothing in this Section affects discretionary powers granted to an administrative law judge as set out in G.S. 150B-33(b).

 

 

History Note:        Authority G.S. 7A-751(a); S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13;

Temporary Adoption Eff. December 2, 2008;

Eff. August 1, 2009.

 

 

26 NCAC 03 .0402            mediation settlement conference rules

The rules in 26 NCAC 03 .0200 do not apply to contested Medicaid cases commenced by Medicaid applicants or recipients under S.L. 2008-107, s. 10.15A(h1) as rewritten by S.L. 2008-118, s.3.13.

 

History Note:       Authority G.S. 7A-751(a); S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13;

Temporary Adoption Eff. December 2, 2008;

Eff. August 1, 2009.

 

 

 

26 NCAC 03 .0403            expedited hearings procedures for complex contested cases

The rules in 26 NCAC 03 .0300 do not apply to contested Medicaid cases commenced by Medicaid applicants or recipients under S.L. 2008-107, s. 10.15A(h1) as rewritten by S.L. 2008-118, s.3.13.

 

History Note:         Authority G.S. 7A-751(a); S.L. 2008-107, s. 10.15A.(h1) as rewritten by S.L. 2008-118, s. 3.13;

Temporary Adoption Eff. December 2, 2008;

Eff. August 1, 2009.