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Jul 20, 2012

Labor & Employment – Public Employees – Termination — Administrative – Exhaustion of Remedies

James v. Charlotte-Mecklenburg County Board of Education Even though petitioner basically skipped the hearing before the defendant-Board of Education (his counsel stayed only long enough to protest the timing of the hearing), petitioner nevertheless exhausted his administrative remedies by requesting the hearing and appealing the board’s subsequent decision to the superior court in acco[...]

Jul 12, 2012

Administrative – Licenses & Permits – Surveyor – Procedure

In re Carpenter The Assistant Executive Director of the Board of Examiners for Engineers and Surveyors is a “natural person” who, pursuant to G.S. § 89C-22(a), “may prefer charges of … violations of” the Rules of Professional Conduct for Professional Engineers and Professional Land Surveyors.

Jul 12, 2012

Labor & Employment – Administrative – Licenses & Permits – Nurses’ Board – Probation – DWI Convictions

Spencer v. North Carolina Board of Nursing After petitioner-nurse was convicted of driving while impaired twice within 12 months, the respondent-board had the authority to place probationary conditions on her nursing license.

Jun 21, 2012

Environmental – Administrative – Licenses & Permits — Wildlife Refuge – Clean Water Act

Friends of Back Bay v. U.S. Army Corps of Engineers The “Friends of Back Bay” win their challenge to a Clean Water permit issued by the Army Corps of Engineers to a developer who wants to build a mooring facility and concrete boat ramp about 3,000 feet from the Back Bay National Wildlife Refuge in Virginia Beach; the 4th Circuit vacates a decision upholding the permit, as the Corps re[...]

Jun 13, 2012

Administrative – Medicare – Reimbursement – 1995 & 1997 Guidelines – Estoppel – Dated Record – Medical Complexity

Ojebuoboh v. Sebelius The plaintiff-doctor did not raise the issue of which set of Medicare Guidelines (the 1995 version or the 1997 version) applied until his motion for reconsideration before the Medicare Appeals Council (MAC). Accordingly, the MAC’s adoption of the independent reviewer’s decision to use the 1997 guidelines was not arbitrary, capricious, or an abuse of discretion.

May 24, 2012

Administrative – Coal Miner – Black Lung Benefits – ‘Legal Pneumoconiosis’

Harman Mining Co. v. Director, OWCP An administrative law judge’s award of black lung benefits to a miner who worked in Virginia coal mines for nearly 17 years is supported by substantial evidence, and the 4th Circuit rejects appellant mining company’s contention that the ALJ’s reference to a preamble to 2000 revisions of DOL regulations violated the Administrative Procedure Act.

May 24, 2012

Administrative – Public Utilities – Cable Company – Regional Sports Network – No Unlawful Discrimination

TCR Sports Broadcasting Holding LLP d/b/a Mid Atlantic Sports Network v. FCC A regional sports network loses its challenge to an FCC order upholding a cable company’s decision on limited broadcast in North Carolina of Baltimore Orioles and Washington Nationals baseball games, for which there was limited demand; the 4th Circuit upholds the FCC finding that the cable company did not engag[...]

May 2, 2012

Administrative – Medicare – Denial of Coverage – Arthritis Treatment

Almy v. Sebelius The 4th Circuit upholds the Secretary of Health and Human Services’ denial of Medicare Part B coverage for the BIO-1000, a device to treat osteoarthritis of the knee, rejecting the claims of the manufacturer’s bankruptcy trustee that the Secretary improperly used the adjudicative process to develop a policy denying coverage and her decisions were arbitrary and caprici[...]

May 2, 2012

Municipal – Administrative – Privilege License – Taxation – Electronic Gaming Operations

Smith v. City of Fayetteville Electronic gaming operations are legal, and the city has the authority to impose a privilege license tax on legal businesses. But the city may not impose a tax so prohibitively high that it prevents a business owner from conducting a profitable business unless the city can show that the tax was necessary to pay for increased police enforcement, or that the bu[...]

May 2, 2012

Constitutional – Commerce & Contract Clauses – Real Property – Environmental – Landfill – Municipal – Administrative – Out-of-State Waste

Waste Industries USA v. State New landfill legislation affected in-state and out-of-state waste equally and was rationally related to public health and other benefits. It did not violate the Commerce Clause of the U.S. Constitution.

Apr 12, 2012

Labor & Employment – Administrative – Health Care Personnel Registry – Patient Abuse Allegation

Deese v. North Carolina Department of Health & Human Services Respondent presented evidence that petitioner may have been less than gentle with two patients; however, respondent did not show that petitioner – who had 20 years of continuous employment without a serious incident and only one non-serious incident – “abused” either patient.

Apr 12, 2012

Administrative – Medicaid Provider – Clerical Errors – Recoupment

At Home Personal Care Services Inc. v. NC Department of Health & Human Services Although petitioner made some clerical errors, a few more questions by the auditor would have revealed that, in nearly every case, petitioner could show it performed the medically necessary work for which it was paid.

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