STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ORANGE 04 UNC 1686


______

James T. Stevens, )

Petitioner, )

)

v. ) DECISION

)

UNC Hospitals, )

Respondent. )

______

THIS MATTER came before the undersigned Administrative Law Judge, Augustus B. Elkins II, on March 2, 2005 based upon Respondent’s Motion for Summary Judgment.

APPEARANCES

For Petitoner: James T. Stevens, pro se

Efland, NC 27243

For Respondent: Jill A. Bryan, Assistant Attorney General

Chapel Hill NC 27517

ISSUE

Whether UNC Hospitals is entitled to the claimed amount from the state income tax refund for the year 2003 otherwise due to Petitioner.

STATUTES AND RULES

N.C. Gen. Stat. Chapter 105A

STANDARD OF REVIEW

The standard of review for summary judgment is whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). To entitle one to summary judgment, the movant must conclusively establish a legal bar to the nonmovant’s claim or complete defense to that claim. See Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 190-91, cert denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

A party moving for summary judgment satisfies its burden of proof (1) by showing an essential element of the opposing party's claim is nonexistent or cannot be proven, or (2) by showing that the opposing party cannot (or did not) produce evidence to support an essential element of his or her claim or (3) the opposing party cannot surmount an affirmative defense which would bar the claim. See Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).

BASED UPON the record and matters presented at the motions hearing, the Undersigned makes the following findings of fact:

FINDINGS OF FACT

1. The Petitioner obtained medical care at The University of North Carolina Hospitals

from on or about August 25, 1992 through on or about August 26, 1992, accruing charges amounting to $3,266.90

2.  After payments and adjustments were made, there was remaining a balance of

$767.69.

3.  After receiving no payments on the account, the Respondent classified this account

as bad debt and the account was placed with the North Carolina Department of Revenue pursuant to the Set Off Debt Collection Act, N. C. G. S. 105A, et seq.

4. After Respondent received notice from the North Carolina Department of Revenue (DOR) that $772.11 had been withheld from the Petitioner’s tax refund; the Respondent sent the Petitioner a notice of the action on September 29, 2004 that $767.69 would be applied to outstanding unpaid debts at UNC Hospitals ($772.11 withheld by DOR less $4.42 DOR processing fee).

5. Petitioner appealed the action on October 19, 2004, and on October 19, 2004, the Office of Administrative Hearings (OAH) accepted the Petitioner’s petition for a contested case hearing.

6.  On December 6, 2004, Respondent submitted a Prehearing Statement to OAH, and a

brief set of Requests for Admission and Request for Production of Documents and Things upon Petitioner. Petitioner responded to Respondent’s Requests for Admission and Request for Production of Documents and Things.

7. Petitioner acknowledged that he received the services of the Respondent, and that he had not voluntarily paid for the services.

8. Petitioner protests his original debt of $767.69, based on the assertions that it is his belief that the services rendered some twelve (12) to thirteen (13) years ago were only necessary because of errors made in treatment at the UNC Hospital.

9. Petitioner had other amounts owing to the UNC Hospital and made arrangements to pay and did pay those amounts over the years. Petitioner notified the Respondent in or about May 1994 that he would not make payment on the 1992 bill as he believed he should not pay a bill for mistakes made by the Respondent.

BASED ON the foregoing findings of fact, the undersigned Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the parties and the subject matter of this hearing pursuant to Chapter 150B of the North Carolina General Statutes.

2. All parties have been correctly designated and there is no question as to misjoinder or nonjoinder.

3. Respondent provided medical services to Petitioner from on or about August 25, 1992 through on or about August 26, 1992, which after applying all adjustments and payments, a balance of $767.69 remained.

4. Petitioner acknowledged receiving those services and was aware of the debt to pay for those services and to date has not voluntarily paid for the services.

5. Petitioner is time barred from asserting error in services that occurred over 12 years ago and the Office of Administrative Hearings lacks jurisdiction over such assertions of malfeasance.

BASED ON the above Findings of Fact and Conclusions of Law, the Undersigned issues the following:

DECISION

Based on the reasons set forth above, summary judgment is ALLOWED. The Respondent is entitled to keep the State income tax refund that was withheld under the Setoff Debt Collection Act in the amount of $767.69.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this decision issued by the Undersigned, and to present written arguments to those in the agency who will make the final decision. N.C. Gen. Stat. § 150B-36(a).

In accordance with N.C. Gen, Stat, § 150B-36 the agency shall adopt each finding of fact contained in the Administrative Law Judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence. For each finding of fact not adopted by the agency, the agency shall set forth separately and in detail the reasons for not adopting the finding of fact and the evidence in the record relied upon by the agency in not adopting the finding of fact. For each new finding of fact made by the agency that is not contained in the Administrative Law Judge’s decision, the agency shall set forth separately and in detail the evidence in the record relied upon by the agency in making the finding of fact.

The agency shall adopt the decision of the Administrative Law Judge unless the agency demonstrates that the decision of the Administrative Law Judge is clearly contrary to the preponderance of the admissible evidence in the official record. The agency that will make the final decision in this contested case is the University of North Carolina Hospitals

ORDER

IT IS HEREBY ORDERED that the agency review this decision in accordance with North Carolina General Statute 150B-36 and serve a copy of the Final Decision on the Office of Administrative Hearings, 6714 Mail Service Center, Raleigh, NC 27699-6714 in accordance with North Carolina General Statute 150B-36.

This the 24th day of March, 2005

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Augustus B. Elkins II

Administrative Law Judge

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