North Carolina § 150B-23 - Commencement; assignment of administrative law judge; hearing required; notice; intervention.

§ 150B-23. Commencement; assignment of administrative law judge; hearing required; notice; intervention.

A contested case shall be commenced by paying a fee in an amount established in G.S. 150B-23.2 and by filing a petition with the Office of Administrative Hearings and, except as provided in Article 3A of this Chapter, shall be conducted by that Office. The party that files the petition shall serve a copy of the petition on all other parties and, if the dispute concerns a license, the person that holds the license. A party that files a petition shall file a certificate of service together with the petition. A petition shall be signed by a party, an attorney representing a party, or other representative of the party as may specifically be authorized by law, and, if filed by a party other than an agency, shall state facts tending to establish that the agency named as the respondent has deprived the petitioner of property, has ordered the petitioner to pay a fine or civil penalty, or has otherwise substantially prejudiced the petitioner's rights and that the agency did any of the following: Exceeded its authority or jurisdiction. Acted erroneously. Failed to use proper procedure. Acted arbitrarily or capriciously. Failed to act as required by law or rule. Repealed by Session Laws 1985 (Regular Session, 1986), c. 1022, s. 1(9). An administrative law judge assigned to a contested case may require a party to the case to file a prehearing statement. A party's prehearing statement shall be served on all other parties to the contested case. A Medicaid or NC Health Choice enrollee, or the enrollee's authorized representative, who appeals a notice of resolution issued by a managed care entity under Chapter 108D of the General Statutes may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same manner as other contested cases initiated by Medicaid or NC Health Choice enrollees under this Article. Solely and only for the purposes of contested cases commenced pursuant to G.S. 108D-15 by enrollees of LME/MCOs to appeal a notice of resolution issued by the LME/MCO, an LME/MCO is considered an agency as defined in G.S. 150B-2. The LME/MCO is not considered an agency for any other purpose. When a prepaid health plan, as defined in G.S. 108D-1, other than an LME/MCO, is under contract with the Department of Health and Human Services to issue notices of resolution under Article 2 of Chapter 108D of the General Statutes, then solely and only for the purposes of contested cases commenced pursuant to G.S. 108D-15 to appeal a notice of resolution issued by the prepaid health plan, the prepaid health plan is considered an agency as defined in G.S. 150B-2. The prepaid health plan is not considered an agency for any other purpose. If an agency fails to take any required action within the time period specified by law, any person whose rights are substantially prejudiced by the agency's failure to act may commence a contested case in accordance with this section seeking an order that the agency act as required by law. If the administrative law judge finds that the agency has failed to act as required by law, the administrative law judge may order that the agency take the required action within a specified time period. A county that appeals a decision of the Department of Health and Human Services to temporarily assume Medicaid eligibility administration in accordance with G.S. 108A-70.42 or G.S. 108A-70.50 may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same manner as other contested cases under this Article. The parties to a contested case shall be given a notice of hearing not less than 15 days before the hearing by the Office of Administrative Hearings. If prehearing statements have been filed in the case, the notice shall state the date, hour, and place of the hearing. If prehearing statements have not been filed in the case, the notice shall state the date, hour, place, and nature of the hearing, shall list the particular sections of the statutes and rules involved, and shall give a short and plain statement of the factual allegations. Notice shall be given by one of the methods for service of process under G.S. 1A-1, Rule 4(j) or Rule 4(j3). If given by registered or certified mail, by signature confirmation as provided by the United States Postal Service, or by designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, notice is deemed to have been given on the delivery date appearing on the return receipt, copy of the proof of delivery provided by the United States Postal Service, or delivery receipt. If giving of notice cannot be accomplished by a method under G.S. 1A-1, Rule 4(j) or Rule 4(j3), notice shall then be given in the manner provided in G.S. 1A-1, Rule 4(j1). Any person may petition to become a party by filing a motion to intervene in the manner provided in G.S. 1A-1, Rule 24. In addition, any person interested in a contested case may intervene and participate in that proceeding to the extent deemed appropriate by the administrative law judge. All hearings under this Chapter shall be open to the public. Hearings shall be conducted in an impartial manner. Hearings shall be conducted according to the procedures set out in this Article, except to the extent and in the particulars that specific hearing procedures and time standards are governed by another statute. Unless another statute or a federal statute or regulation sets a time limitation for the filing of a petition in contested cases against a specified agency, the general limitation for the filing of a petition in a contested case is 60 days. The time limitation, whether established by another statute, federal statute, or federal regulation, or this section, commences when notice is given of the agency decision to all persons aggrieved that are known to the agency by personal delivery, electronic delivery, or by the placing of the notice in an official depository of the United States Postal Service wrapped in a wrapper addressed to the person at the latest address given by the person to the agency. The notice shall be in writing, shall set forth the agency action, and shall inform the persons of the right, the procedure, and the time limit to file a contested case petition. When no informal settlement request has been received by the agency prior to issuance of the notice, any subsequent informal settlement request shall not suspend the time limitation for the filing of a petition for a contested case hearing. When the Chief Justice of the North Carolina Supreme Court determines and declares that catastrophic conditions exist or have existed in one or more counties of the State and issues an order pursuant to G.S. 7A-39(b), the chief administrative law judge may by order entered pursuant to this subsection extend, to a date certain no fewer than 10 days after the effective date of the order, the time or period of limitation, whether established by another statute or this section, for the filing of a petition for a contested case. The order shall be in writing and becomes effective for each affected county upon the date set forth in the order, and if no date is set forth in the order, then upon the date the order is signed by the chief administrative law judge. The order shall provide that it expires upon the expiration of the Chief Justice's order. Where multiple licenses are required from an agency for a single activity, the Secretary or chief administrative officer of the agency may issue a written determination that the administrative decision reviewable under Article 3 of this Chapter occurs on the date the last license for the activity is issued, denied, or otherwise disposed of. The written determination of the administrative decision is not reviewable under this Article. Any licenses issued for the activity prior to the date of the last license identified in the written determination are not reviewable under this Article until the last license for the activity is issued, denied, or otherwise disposed of. A contested case challenging the last license decision for the activity may include challenges to agency decisions on any of the previous licenses required for the activity. The parties in a contested case shall be given an opportunity for a hearing without undue delay. Any person aggrieved may commence a contested case under this section. A local government employee, applicant for employment, or former employee to whom Chapter 126 of the General Statutes applies may commence a contested case under this Article in the same manner as any other petitioner. The case shall be conducted in the same manner as other contested cases under this Article. A business entity may represent itself using a nonattorney representative who is one or more of the following of the business entity: (i) officer, (ii) manager or member-manager, if the business entity is a limited liability company, (iii) employee whose income is reported on IRS Form W-2, if the business entity authorizes the representation in writing, or (iv) owner of the business entity, if the business entity authorizes the representation in writing and if the owner's interest in the business entity is at least twenty-five percent (25%). Authority for and prior notice of nonattorney representation shall be made in writing, under penalty of perjury, to the Office on a form provided by the Office. History (1973, c. 1331, s. 1; 1975, 2nd Sess., c. 983, s. 65; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, ss. 1(9), (10), 6(2), (3); 1987, c. 878, ss. 3-5; c. 879, s. 6.1; 1987 (Reg. Sess., 1988), c. 1111, s. 5; 1991, c. 35, s. 1; 1993 (Reg. Sess., 1994), c. 572, s. 2; 2009-451, s. 21A.1(a); 2011-332, s. 2.1; 2011-398, s. 16; 2012-187, s. 6; 2013-397, s. 4; 2014-120, ss. 7(a), 48, 59(a); 2016-94, s. 12H.17(c); 2017-57, s. 11H.22(d); 2018-114, s. 1; 2019-81, s. 11; 2020-3, s. 4.26(a); 2021-88, s. 16(e).) Editor's Note. - Session Laws 2011-398, s. 62, is a severability clause. Session Laws 2011-398, s. 63, as amended by Session Laws 2012-187, s. 8.1, provides in relevant part: "Sections 15 through 55 of this act become effective January 1, 2012, and apply to contested cases commenced on or after that date. With regard to contested cases affected by Section 55.2 of this act, the provisions of Sections 15 through 27 of this act become effective when the United States Environmental Protection Agency approvals referenced in Section 55.2 have been issued or October 1, 2012, whichever occurs first. With regard to contested cases affected by Section 55.1 of this act, the provisions of Sections 15 through 27 and Sections 32 and 33 of this act become effective when the waiver referenced in Section 55.1 has been granted or February 1, 2013, whichever occurs first. Unless otherwise provided elsewhere in this act, the remainder of this act is effective when it becomes law." Session Laws 2011-398, s. 16 rewrote the last paragraph of subsection (a) of this section. For Section 55.2, see editor's note under G.S. 150B-34. Session Laws 2016-94, s. 12H.17(d), effective January 1, 2017, provides: "The corrective action procedures described in this section supersede the corrective action procedures in 10A NCAC 23C .0204 and 10A NCAC 23C .0205 related to timeliness processing of Medicaid applications by county departments of social services." Session Laws 2016-94, s. 12H.17(e), effective July 1, 2016, provides: "The Department of Health and Human Services may adopt and amend rules to implement subsections (b) through (d) of this section." Session Laws 2016-94, s. 12H.17(f), made subsection (a5), as enacted by Session Laws 2016-94, s. 12H.17(c), effective January 1, 2017, and applicable to monthly timely processing standards beginning on that date. Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'" Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year." Session Laws 2016-94, s. 39.7, is a severability clause. Session Laws 2020-3, s. 5, is a severability clause. Effect of Amendments. - Session Laws 2009-451, s. 21A.1(a), effective October 1, 2009, and applicable to contested cases filed on and after that date, inserted "paying a fee in an amount established in G.S. 150B-23.2 and by" in the first sentence of the introductory language of subsection (a). Session Laws 2011-332, s. 2.1, effective October 1, 2011, and applicable to notices given on or after that date, rewrote subsection (c). Session Laws 2014-120, s. 7(a), effective September 18, 2014, added the third undesignated paragraph to subsection (a). See Editor's note for applicability. Session Laws 2014-120, s. 48, effective September 18, 2014, added subsection (g). Session Laws 2014-120, s. 59(a), effective September 18, 2014, added subsection (a4). Session Laws 2016-94, s. 12H.17(c), effective January 1, 2017, added subsection (a5). See editor's note for effective date and applicability. Session Laws 2017-57, s. 11H.22(d), effective June 28, 2017, substituted "G.S. 108A-70.42 or G.S. 108A-70.50" for "G.S. 108A-70.37" in subsection (a5). Session Laws 2018-114, s. 1, effective June 27, 2018, inserted ", electronic delivery," in the second sentence of subsection (f). Session Laws 2019-81, s. 11, effective October 1, 2019, rewrote subsection (a3). Session Laws 2020-3, s. 4.26(a), effective retroactively to March 10, 2020, added the last three sentences in subsection (f). Session Laws 2021-88, s. 16(e), effective July 22, 2021, rewrote subsection (a); substituted "shall be served” for "must be served” in subsection (a2); substituted "G.S. 150B-2” for "G.S. 150B-2(1a)” two times, "is not considered” for "shall not be considered” two times, and "is considered” for "shall be considered” in subsection (a3); substituted "is deemed” for "shall be deemed” in subsection (c); and rewrote subsection (f). Legal Periodicals. - For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971). For comment, "The Problem of Procedural Delay in Contested Case Hearings . . ." under the North Carolina APA, see 7 N.C. Cent. L.J. 347 (1976). For survey of 1976 case law dealing with administrative law, see 55 N.C.L. Rev. 898 (1977). For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980). For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981). For survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).