North carolina register volume 24 ● issue 23 ● Pages 2011 2154 June 1, 2010




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These rules are subject to the next Legislative Session. (See G.S. 150B-21.3(b1))

Community Colleges, Board of

Admission to Colleges

23

NCAC

02C

.0301*

24:08 NCR



TITLE 02 – DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
02 NCAC 09L .1111 CERTIFICATION/

RECERTIFICATION FEE

A nonrefundable fee of ten dollars ($10.00) shall be required for private pesticide applicator certification or recertification.


History Note: Authority G.S. 143-440(b);

Temporary Adoption Eff. October 1, 1987, for a Period of 180 Days to Expire on

March 29, 1988;

Eff. March 1, 1988;

Amended Eff. May 1, 2010.

TITLE 04 – DEPARTMENT OF COMMERCE
04 NCAC 03M .0102 NOTICES

(a) Except as otherwise required by G.S. 53-244.113(b), Article 3A, Chapter 150B of the General Statutes, or by the rules of the North Carolina Office of Administrative Hearings, any document, decision or other communication required or permitted to be given by the Commissioner to a licensee, an applicant for a license or an exempt person is considered given when either:

(1) deposited in the United States mail with sufficient first class postage affixed, addressed to the most recent principal office address provided by the addressee to the Office of the Commissioner of Banks; or

(2) transmitted through electronic mail to the address provided by the addressee to the Office of the Commissioner of Banks.

(b) Any application for licensure, report, annual statement, amendment to application, notice or other document which is required or permitted by law or rule to be filed with the Commissioner shall be in writing, and submitted in an electronic format through the NMLS&R.

(c) Where the NMLS&R does not make available submission of any document required or permitted by law to be filed with the Commissioner, such a document may be filed by electronic submission through the Office of the Commissioner of Bank's website (www.nccob.gov), if the Commissioner makes such electronic submission available.


History Note: Authority G.S. 53-244.118;

Temporary Adoption Eff. July 1, 2002;

Eff. April 1, 2003;

Amended Eff. May 1, 2010.
04 NCAC 03M .0201 APPLICATION

(a) All fees required by G.S. 53-244.090 or 53-244.101 shall be submitted with an application for licensure or renewal of license as a mortgage lender, mortgage broker, mortgage servicer, exclusive mortgage broker or mortgage loan originator. The fees are nonrefundable.

(b) Each type of application required by the rules in this Subchapter or the Act shall be filed through the NMLS&R and shall be verified by the oath or affirmation of the applicant or a principal officer thereof.

(c) In addition to the documents and information required by the rules in this Subchapter, the Commissioner or his or her staff may require additional information according to the Rules in order to enable the Commissioner to determine that the applicant meets or the licensee continues to meet the requirements of G.S. 53-244.040, 53-244.050, 53-244.060, 53-244.070, 53-244.080, 53-244.100, 53-244.101, 53-244.102, 53-244.103, 53-244.104, and 53-244.105.

(d) Applications submitted without the required fees or which are missing material information shall be held in pending status for a period of 30 calendar days after written notice to the applicant specifying the nature of the deficiency. If any such deficiency remains outstanding for more than 30 days, the application shall automatically be considered withdrawn without further action by the Commissioner, and the applicant shall submit a new application and pay all fees associated therewith.
History Note: Authority G.S. 53-244.040, 53-244.050; 53-244.060; 53-244.070, 53-244.080, 53-244.100; 53-244.101; 53-244.102; 53-244.103; 53-244.104; 53-244.118;

Temporary Adoption Eff. July 1, 2002;

Eff. April 1, 2003;

Amended Eff. May 1, 2010.
04 NCAC 03M .0202 NONTRANSFERABILITY

(a) Any attempt to transfer or assign a license through a change of control without the prior consent of the Commissioner shall:

(1) be ineffective;

(2) be grounds for summary suspension, or revocation of the license or other remedies available to the Commissioner; and

(3) render the licensee jointly and severally liable with the assignee for any actions or omissions of its assignee which occur while acting under the apparent authority of the license.

(b) A change in the identity of a licensee's controlling person or any material change in the licensee's organizational structure shall be considered a transfer or assignment of the license. However, the Commissioner shall permit the change without requiring the licensee to apply for a new license, provided:

(1) the licensee gives notice to the Commissioner at least 60 days in advance of the effective date of the proposed change; and

(2) the Commissioner determines that permitting the licensee to continue to operate under its existing license would not be inconsistent with the purposes of the Act.

(c) A notice pursuant to Subparagraph (b)(1) of this Rule shall include sufficient detail to enable the Commissioner to make the determination described in that Subparagraph (b)(2) of this Rule.

(d) The Commissioner shall waive or reduce the advance notice requirement of Subparagraph (b)(1) of this Rule if the Commissioner determines that:

(1) circumstances beyond the licensee's reasonable control would make compliance therewith unduly burdensome to the licensee;

(2) consumers would not be harmed by such a waiver or reduction of the advance notice requirement;

(3) the licensee has otherwise satisfied the requirements of this Rule; and

(4) waiver of the requirement of Subparagraph (b)(1) is in the public interest.


History Note: Authority G.S. 53-244.050; 53-244.060; 53-244-100; 53-244.118;

Temporary Adoption Eff. July 1, 2002;

Eff. April 1, 2003;

Amended May 1, 2010.
04 NCAC 03M .0204 EXPERIENCE

As used in G.S. 53-244.050(b)(2), a person is considered to have acquired "experience in residential mortgage lending" during any documented period in which:

(1) that person's employment income was principally derived from employment in the mortgage lending, mortgage servicing, or mortgage brokerage industry; and

(2) that person had actual responsibility for job functions in each area of study included in a prelicensing education program.


History Note: Authority G.S. 244-118;

Eff. April 1, 2003;

Amended Eff. May 1, 2010; April 1, 2008.
04 NCAC 03M .0206 SURETY BOND

(a) All licensees with surety bonds under G.S. 53-244.103 must ensure that full amount of the surety bond is in effect at all times. In the event of a claim against the bond, the licensee has 30 days to reinstate the bond to the level required in G.S. 53-244.103. Failure to maintain the surety bond at the level required in G.S. 53-244.103 is grounds for immediate suspension of licensure.

(b) All licensees with surety bonds under G.S. 53-244.103 must report any claims made against the surety bond to the Commissioner within 10 business days upon receipt of notice of any claim.

(c) All surety bonds under G.S. 53-244.103 shall:

(1) require the bonding company to report all claims and any claims paid on the bond to the Commissioner within 10 days of such claim or payment;

(2) require the bonding company to pay within 30 days any amount which the Commissioner orders the bonding company to pay upon a determination by the Commissioner that the licensee has failed to faithfully perform the licensee's obligations; and

(3) remain in effect for a minimum of five years after lapse or termination of the bond in order to satisfy possible claims for failure to faithfully fulfill obligations during the term of the bond.
History Note: Authority G.S. 53-103;

Eff. April 1, 2008;

Amended Eff. May 1, 2010.
04 NCAC 03M .0302 LOAN OFFICER

EXAMINATION

04 NCAC 03M .0303 REQUIREMENTS FOR

PROVIDERS
History Note: Authority G.S. 53-243.05; 53-243.07; 53-243.13;

Temporary Adoption Eff. July 1, 2002;

Eff. April 1, 2003;

Repealed Eff. May 1, 2010.
04 NCAC 03M .0402 AMENDMENTS TO

INFORMATION ON FILE WITH THE COMMISSIONER

(a) A licensee shall notify the Commissioner within 30 days of any material change in any document or information previously submitted to, or otherwise filed with, the Commissioner.

(b) Upon a licensee's discovery of an information security breach as defined in G.S. 75-61(14), the licensee shall within one business day provide to the Commissioner a copy of any notification which the licensee is required to give under G.S. 75-65.

(c) Notification shall be in accordance with Rule .0102 of this Subchapter.


History Note: Authority G.S. 53-244.105(b); 53-244.118;

Eff. April 1, 2003;

Amended Eff. May 1, 2010; April 1, 2008.
04 NCAC 03M .0403 TERMINATION OF

OPERATIONS

(a) A licensee shall notify the Commissioner in writing of its decision to cease operations as a mortgage lender, mortgage servicer, or mortgage broker in this State, and the anticipated effective date of the cessation of operations, at least 15 days before the cessation.

(b) A mortgage lender, mortgage servicer, or mortgage broker that has not originated or serviced a mortgage loan within a 12 month period is considered to have ceased operations. Cessation of operations is grounds for summary suspension pursuant to G.S. 53-244.114(b); provided, however, that suspension for cessation of operations shall not extend or revive any license that would otherwise terminate on December 31st based on the licensee's failure to renew its license or the Commissioner's refusal to renew the licensee's license.
History Note: Authority G.S. 53-244.118;

Eff. April 1, 2003;

Amended Eff. May 1, 2010; April 1, 2008.
04 NCAC 03M .0501 RECORDS TO BE MAINTAINED

(a) A licensee shall maintain or cause to be maintained a record of all cash, checks or other monetary instruments received in connection with each mortgage loan application showing the identity of the payor, date received, amount, and purpose.

(b) A licensee shall maintain a record showing a sequential listing of checks written for each bank account relating to the licensee's business as a mortgage broker or mortgage lender, showing at least the payee, amount, date, and purpose of payment, including identification of the loan to which it relates, if any. The licensee shall reconcile the bank accounts monthly. Financial records must be kept in a manner to permit efficient review by examiners.

(c) A licensed mortgage lender or mortgage broker shall maintain a current listing of all mortgage loan applications in an electronic, searchable and sortable format that permits a timely review of information by the Commissioner.

(d) A licensed mortgage lender or mortgage broker shall create and retain a file for each mortgage loan application that contains as applicable;

(1) the applicant's name;

(2) date the application was taken;

(3) name of the person taking the application;

(4) the application itself; and

(5) if the loan was closed,

(A) the HUD-1 Settlement Statement;

(B) the loan note;

(C) the deed of trust;

(D) all agreements or contracts with the applicant, including any commitment and lock-in agreements, other information utilized in the origination of the mortgage loan; and

(E) all disclosures required by State or Federal law.

(e) A licensed mortgage servicer shall create and retain a file for each mortgage loan which it services, which shall contain, as applicable:

(1) the borrower or borrowers names;

(2) a copy of the original note and Deed of Trust;

(3) a copy of any disclosures or notifications provided to the borrower required by State or Federal law;

(4) a copy of all written requests for information received from the borrower and the servicer's response to such requests as required by State or Federal law;

(5) a record of all payments received from the borrower which contains all information required to be provided to a borrower upon request under G.S. 45-92(2)b;

(6) a copy of any bankruptcy plan approved in a proceeding filed by the borrower or a co-owner of the property subject to the mortgage;

(7) a communications log, if maintained by the servicer, which documents all verbal communication with the borrower or the borrower's representative;

(8) a record of all efforts by the servicer to comply with the duties required under G.S. 53-244.110(7) including all information utilized in the servicer's determination regarding loss mitigation proposals offered to the borrower;

(9) a copy of all notices sent to the borrower related to any foreclosure proceeding filed against the encumbered property; and

(10) records regarding the final disposition of the loan including a copy of any collateral release document, records of servicing transfers, charge-off information, or REO disposition.

(f) A licensee shall maintain a record of samples of each piece of advertising relating to the licensee's business of mortgage lending or mortgage brokerage in North Carolina for a period of 12 months.

(g) A licensee shall maintain copies of all contracts, agreements and escrow instructions to or with any depository institution, any mortgage lender, mortgage servicer, or mortgage broker, any warehouse lender or other funding facility, any servicer of mortgage loans, and any investor, for a period of not less than three years after expiration of any such contract or agreement.


History Note: Authority G.S. 53-244.105; 53-244.115; 53-244.118;

Eff. April 1, 2003;

Amended Eff. May 1, 2010; April 1, 2008.
04 NCAC 03M .0502 FORM AND LOCATION of

records

(a) Except for samples of advertising materials retained pursuant to 4 NCAC 03M .0501(f), all records required by this Section shall be kept for a period of at least three years, and shall be available for inspection and copying upon request by the Commissioner.

(b) The records may be maintained in the form of magnetic tape, magnetic disk or other form of computer, electronic or microfilm media available for examination on the basis of computer printed reproduction, video display or other medium that is easily convertible by the Commissioner into legible, tangible documents.

(c) All records required by this Rule shall be prepared in accordance with generally accepted accounting principles, where applicable.

(d) All records required to be maintained shall be secured against unauthorized access and damage in a location within the State of North Carolina accessible to the Commissioner. However, a mortgage banking licensee which maintains a centralized out-of-state storage facility for the records from multiple states may request the Commissioner to approve its storage of such records in such out-of-state location. The requests will be approved provided that:

(1) The Commissioner determines that the proposed storage will ensure that the records are secured against unauthorized access and damage; and

(2) The licensee agrees in writing to make available at its expense for inspection and copying upon request by the Commissioner copies of all requested records in a form which satisfies the requirements of Paragraph (b) of this Rule.

(e) If the Commissioner subsequently has reason to believe that records are not or will not be adequately secured against unauthorized access or damage, the Commissioner shall summarily revoke any approval previously granted under Paragraph (d) of this Rule.

(f) A licensee shall notify the Commissioner of any change in the location of its books and records within 10 days following such change.
History Note: Authority G.S. 53-244.105; 53-244.115; 53-244.118;

Eff. April 1, 2003;

Amended Eff. May 1, 2010.
04 NCAC 03M .0701 transfer of servicing

rights

A person shall not transfer servicing rights or obligations to a person unless that person holds a mortgage servicing license or is a person otherwise exempt from the Act.


History Note: Authority 53-244.100(a); 53-244.110(1); 53-244.110(3);

Eff. May 1, 2010.
04 NCAC 03M .0702 Requirements for

Mortgage Servicers to Communicate

Effectively with Borrowers Regarding

Loss Mitigation

(a) A mortgage servicer shall acknowledge, in writing, a borrower's loss mitigation request no later than 10 business days after the request. The acknowledgement must identify any information needed from the borrower in order for the mortgage servicer to consider the borrower's loss mitigation request. For purposes of this Rule and Rule .0703 of this Subchapter, a loss mitigation request is considered received by a servicer upon the borrower or the borrower's agent contacting the servicer at the address, phone or other contact information required to be provided to borrowers in a notice complying with G.S. 53-244.111(22).

(b) A mortgage servicer shall respond to a loss mitigation request from a borrower no later than 30 business days after the receipt of all information necessary from the borrower to assess whether or not a borrower qualifies for any loss mitigation programs offered by the mortgage servicer.

(c) A mortgage servicer shall include in a final response denying a loss mitigation request the reason for the denial and contact information for a person at the mortgage servicer with authority to reconsider the denial. In addition, the denial shall also include the following statement, in a boldface type and in a print no smaller than the largest print used elsewhere in the main body of the denial: "If you believe the loss mitigation request has been wrongly denied, you may file a complaint with the North Carolina Office of the Commissioner of Banks website, www.nccob.gov."


History Note: Authority G.S. 53-244.110(7); 53-244.118(a);

Eff. June 1, 2010.
04 NCAC 03M .0703 Cessation of Foreclosure

Activity During Pendency of Loss

Mitigation REquest

(a) A mortgage servicer shall not initiate or further a foreclosure proceeding or impose a charge incident to a foreclosure proceeding during the pendency of a loss mitigation request; provided however, that this requirement does not apply if:

(1) the borrower has failed to comply with the terms of a loss mitigation plan within the previous 12 months, if the loss mitigation plan:

(A) was implemented pursuant to a federal or state foreclosure prevention program, including the Home Affordable Modification Program; or

(B) reduced the monthly payment of loan by six percent from the scheduled monthly payment and resulted in a monthly payment of principal, interest, taxes, and insurance of less than 31 percent of the borrower's household income;

(2) the mortgage servicer has provided a final response regarding a loss mitigation request within the last 12 months and reasonably believes that the current loss mitigation request was not made in good faith;

(3) the borrower has failed to comply with a Chapter 13 bankruptcy repayment plan or has any bankruptcy proceedings dismissed for abuse of process within the last 12 months;

(4) the loss mitigation request is received by the servicer after the time for appealing an order granting foreclosure of the secured residential real estate has passed in accordance with Article 2A of Chapter 45; or

(5) the servicing contract or the terms of the mortgage loan, entered into prior to October 1, 2009, prohibits such a delay.

(b) Nothing in this Rule shall prevent a mortgage servicer, in order to avoid dismissal or any other adverse order in a foreclosure proceeding which was initiated prior to the loss mitigation request being received, from filing or causing to be filed any pleading or notice which is required under Article 2A of Chapter 45, the Rules of Civil Procedure, or the Local Rules of Court to continue or delay further proceedings.


History Note: Authority G.S. 53-244.110(7); 53-244.118(a);

Eff. June 1, 2010.

TITLE 10A – DEPARTMENT OF HEALTH AND HUMAN SERVICES
10A NCAC 22O .0118 PHARMACY SERVICES

(a) Reimbursement is provided for legend drugs, insulin, and over-the-counter (OTC) drugs documented in General Policy A2 on the Division of Medical Assistance (DMA) website. The list of covered OTC drugs is on Attachment A of General Policy No. A-2. The following is a list of requirements for coverage of drugs.

(1) The prescribed drug must have a Federal Drug Administration (FDA) approved indication.

(2) The prescribed drug must bear the federal legend statement.

(3) The legend drug must be manufactured by a company that has signed a National Medicaid Drug Rebate Agreement with the Centers for Medicare and Medicaid Services (CMS).

(4) The OTC drugs selected for coverage by DMA must be manufactured by a company that has signed a National Medicaid Drug Rebate Agreement with CMS.

(5) Compounded drugs are covered when a mixture of two or more ingredients is physically inseparable, at least one of the components of the compounded drug is a legend drug, the quantity of legend drug is sufficient to have a therapeutic effect, and the legend drug is manufactured by a company that has signed a national Medicaid Drug Rebate Agreement with the Centers for Medicare and Medicaid Services (CMS).

(6) Reimbursement is not provided for prescribed drugs documented on the CMS Drug Efficacy Study Implementation (DESI) list. These drugs are also known as less than effective (LTE) drugs.

(b) A prescription for a drug written under its brand or trade name shall be filled with a generic version of the drug when one is commercially available unless the prescriber has indicated that the brand name drug is medically necessary for the recipient. The prescriber shall indicate this by writing "medically necessary" on the face of the prescription order for the drug. The selection of a drug product shall not be more expensive than the brand or trade name originally written by the prescriber. The pharmacist shall fill the prescription with the least expensive generic in the pharmacy.

(c) All prescriptions must comply with state and federal laws and regulations for legal prescriptions.

(d) A credit must be issued by the pharmacy provider for returned medications returned to stock.

(e) The maximum days supply for all drugs is 34-day supply unless the medication meets the criteria for a 90-day supply indicated in Clinical Coverage Policy 9 on the DMA website.

(f) DMA shall impose a prior authorization program for covered outpatient drugs that comply with requirements of 42 U.S.C. 1396r–8 (d)(1)(A) and in accordance with Session Law 2009-451, and any subsequent amendments.

(g) DMA shall impose quantity limitations for drugs that are meant to be used episodically and dispensed in quantities that support less than daily use. Those drugs designated as episodic drugs are defined in Clinical Coverage Policy 9 on the DMA website.

(h) Recipients who receive more than 11 unduplicated prescriptions per month shall be evaluated as part of a Focused Risk Management (FORM) Program. The FORM Program is an interdisciplinary, team-based approach including the pharmacy and the recipient's personal care physician for coordination of recipient care. The following are requirements for the FORM Program:

(1) The pharmacist shall coordinate, integrate, and communicate a comprehensive review plan with the patient's primary care provider.

(2) The comprehensive review plan shall identify, resolve, and recommend cost-effective, safe, and efficacious drug alternatives; and shall include a list of all medications dispensed at the pharmacy during the review period and a list of recommendations to improve the recipients drug regimen.

(3) The pharmacy shall communicate the comprehensive review plan to the recipient's PDP for review and coordination of care. The pharmacist shall obtain a written response from the PDP that accepts or modifies the comprehensive review plan. If the PDP fails to provide a response within one month from the date of the communication, the pharmacy shall document such failure on the comprehensive review plan.

(4) The first review must be completed within two months of the recipient's identification for the program. Reviews thereafter shall be performed quarterly.

(5) DHHS, Division of Medical Assistance shall make a professional services fee to the pharmacy provider on a quarterly basis, based on the completion of the comprehensive review plan under FORM Program for each identified recipient. The professional services fee is based on average time for the pharmacist to complete the review at an estimated average pharmacist hourly wage.

(6) A failure to perform a required comprehensive review plan or failure to have documentation of the review on file at the time of audit, shall result in the recoupment of professional service fee and payment for all claims that exceed the limit of 11 unduplicated prescriptions per month during those periods of time when a completed comprehensive review plan was not in place.

(i) All recipients receiving more than 11 unduplicated prescriptions per month must participate in the FORM program. The following rules apply to the recipient:

(1) The recipient shall choose a single pharmacy of his/her choice.

(2) The recipient may elect to change his/her pharmacy provider by request made to DMA or DMA's fiscal agent from the current pharmacist or from the recipient's primary care provider.

(3) Emergency fills for recipients are limited to a four-day supply.

(4) The following recipients are exempt from the FORM program:

(A) recipients under the age of 21;

(B) recipients residing in a nursing facility or an intermediate care facility for individuals with mental retardation; and

(C) recipients residing in an assisted living facility or group home.

(j) No pharmacist is required to accept a new recipient. Pharmacists may accept new recipients of their choice.

(k) Copayments shall be charged in accordance with 10A NCAC 22D .0101.
History Note: Authority G.S. 90-85.26; 108A-25(b); 108A-54; 42 C.F.R. 440.90; 42 CFR 447.331; S.L. 1985, c. 479, s. 86; 42 U.S.C. 1396r-8(d)(1)(A); S.L 2009-451;

Eff. September 30, 1977;

Readopted Eff. October 31, 1977;

Amended Eff. January 1, 1984;

Recodified from 10 NCAC 26B .0116 Eff. October 1, 1993;

Recodified from 10 NCAC 26B .0117 Eff. January 1, 1998;

Amended Eff. May 1, 2010.
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