Bill Text: NC H1021 | 2017-2018 | Regular Session | Amended
Bill Title: People First Language 2018
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-06-12 - Re-ref Com On Rules, Calendar, and Operations of the House [H1021 Detail]
Download: North_Carolina-2017-H1021-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2017
H 2
HOUSE BILL 1021*
Committee Substitute Favorable 6/11/18
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Short Title: People First Language 2018. |
(Public) |
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Sponsors: |
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Referred to: |
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May 28, 2018
A BILL TO BE ENTITLED
AN ACT to update the general statutes of north carolina with people first language by changing the phrase "mental retardation" to "intellectual disability" in certain sections and to make other people First Language Amendments and technical amendments in those sections, as recommended by the general Statutes Commission.
The General Assembly of North Carolina enacts:
SECTION 1.(a) G.S. 1‑301.2 reads as rewritten:
"§ 1‑301.2. Transfer or appeal of special proceedings; exceptions.
…
(g) Exception for Incompetency and Foreclosure Proceedings and Proceedings to Permit Sterilization for Medical Necessity. –
(1) Proceedings for
adjudication of incompetency or restoration of competency under Chapter 35A of
the General Statutes, or proceedings to determine whether a guardian may
consent to the sterilization of a mentally ill or mentally retarded ward ward
with a mental illness or intellectual disability under G.S. 35A‑1245,
shall not be transferred even if an issue of fact, an equitable defense, or a
request for equitable relief is raised. Appeals from orders entered in these
proceedings are governed by Chapter 35A of the General Statutes to the
extent that the provisions of that Chapter conflict with this section.
(2) Foreclosure proceedings under Article 2A of Chapter 45 of the General Statutes shall not be transferred even if an issue of fact, an equitable defense, or a request for equitable relief is raised. Equitable issues may be raised only as provided in G.S. 45‑21.34. Appeals from orders entered in these proceedings are governed by Article 2A of Chapter 45 of the General Statutes to the extent that the provisions of that Article conflict with this section.
…."
SECTION 1.(b) G.S. 35A‑1101 reads as rewritten:
"§ 35A‑1101. Definitions.
When used in this Subchapter:The following definitions apply in this Subchapter:
(1) "Autism"
means a Autism – A physical disorder of the brain which causes
disturbances in the developmental rate of physical, social, and language
skills; abnormal responses to sensations; absence of or delay in speech or
language; or abnormal ways of relating to people, objects, and events. Autism
occurs sometimes by itself and sometimes in conjunction with other brain‑functioning
disorders.
(2) "Cerebral
palsy" means a Cerebral palsy. – A muscle dysfunction,
characterized by impairment of movement, often combined with speech impairment,
and caused by abnormality of or damage to the brain.
(3) "Clerk" means
the Clerk. – The clerk of superior court.
(4) "Designated
agency" means the Designated agency. – The State or local human
services agency designated by the clerk in the clerk's order to prepare, cause
to be prepared, or assemble a multidisciplinary evaluation and to perform other
functions as the clerk may order. A designated agency includes, without
limitation, State, local, regional, or area mental health, mental
retardation, intellectual disability, vocational rehabilitation,
public health, social service, and developmental disabilities agencies, and
diagnostic evaluation centers.
(5) "Epilepsy"
means a Epilepsy. – A group of neurological conditions characterized
by abnormal electrical‑chemical discharge in the brain. This discharge is
manifested in various forms of physical activity called seizures, which range
from momentary lapses of consciousness to convulsive movements.
(6) "Guardian ad
litem" means a Guardian ad litem. – A guardian appointed
pursuant to G.S. 1A‑1, Rule 17, Rules of Civil Procedure.
(7) "Incompetent
adult" means an Incompetent adult. – An adult or emancipated
minor who lacks sufficient capacity to manage the adult's own affairs or to
make or communicate important decisions concerning the adult's person, family,
or property whether the lack of capacity is due to mental illness, mental
retardation, intellectual disability, epilepsy, cerebral palsy,
autism, inebriety, senility, disease, injury, or similar cause or condition.
(8) "Incompetent
child" means a Incompetent child. – A minor who is at least 17
1/2 years of age and who, other than by reason of minority, lacks sufficient
capacity to make or communicate important decisions concerning the child's
person, family, or property whether the lack of capacity is due to mental
illness, mental retardation, intellectual disability, epilepsy,
cerebral palsy, autism, inebriety, disease, injury, or similar cause or
condition.
(9) "Indigent"
means unable Indigent. – Unable to pay for legal representation and
other necessary expenses of a proceeding brought under this Subchapter.
(10) "Inebriety"
means the Inebriety. – The habitual use of alcohol or drugs
rendering a person incompetent to transact ordinary business concerning the
person's estate, dangerous to person or property, cruel and intolerable to
family, or unable to provide for family.
(10a) Intellectual disability. – Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before age 22.
(11) "Interim
guardian" means a Interim guardian. – A guardian, appointed
prior to adjudication of incompetence and for a temporary period, for a person
who requires immediate intervention to address conditions that constitute
imminent or foreseeable risk of harm to the person's physical well‑being
or to the person's estate.
(12) "Mental
illness" means an Mental illness. – An illness that so lessens
the capacity of a person to use self‑control, judgment, and discretion in
the conduct of the person's affairs and social relations as to make it
necessary or advisable for the person to be under treatment, care, supervision,
guidance, or control. The term "mental illness" encompasses
"mental disease", "mental disorder", "lunacy",
"unsoundness of mind", and "insanity".
(13) "Mental retardation" means significantly
subaverage general intellectual functioning existing concurrently with deficits
in adaptive behavior and manifested before age 22.
(14) "Multidisciplinary
evaluation" means an Multidisciplinary evaluation. – An evaluation
that contains current medical, psychological, and social work evaluations as
directed by the clerk and that may include current evaluations by professionals
in other disciplines, including without limitation education, vocational
rehabilitation, occupational therapy, vocational therapy, psychiatry, speech‑and‑hearing,
and communications disorders. The evaluation is current if made not more than
one year from the date on which it is presented to or considered by the court.
The evaluation shall set forth the nature and extent of the disability and
recommend a guardianship plan and program.
(15) "Respondent"
means a Respondent. – A person who is alleged to be incompetent in a
proceeding under this Subchapter.
(16) "Treatment
facility" has the Treatment facility. – Has the same meaning as
"facility" in G.S. 122C‑3(14), and includes group homes,
halfway houses, and other community‑based residential facilities.
(17) "Ward" means
a Ward. – A person who has been adjudicated incompetent or an adult
or minor for whom a guardian has been appointed by a court of competent
jurisdiction."
SECTION 1.(c) G.S. 35A‑1202 reads as rewritten:
"§ 35A‑1202. Definitions.
When used in this Subchapter,
unless a contrary intent is indicated or the context requires otherwise:The following definitions apply in this Subchapter:
(1) "Accounting"
means the Accounting. – The financial or status reports filed with
the clerk, designated agency, respondent, or other person or party with whom such
the reports are required to be filed.
(2) "Clerk"
means the Clerk. – The clerk of superior court.
(3) "Designated
agency" means the Designated agency. – The State or local human
services agency designated by the clerk in an order to prepare, cause to be
prepared, or assemble a multidisciplinary evaluation and to perform other
functions as the clerk may order. A designated agency includes, without
limitation, State, local, regional regional, or area mental
health, mental retardation, intellectual disability, vocational
rehabilitation, public health, social service, and developmental disabilities
agencies, and diagnostic evaluation centers.
(4) "Disinterested
public agent" means the Disinterested public agent. – The director
or assistant directors of a county department of social services. Except as
provided in G.S. 35A‑1213(f), the fact that a disinterested public
agent provides financial assistance, services, or treatment to a ward does not
disqualify that person from being appointed as guardian.
(5) "Estate"
means any Estate. – Any interest in real property, choses in action,
intangible personal property, and tangible personal property, and includes any
interest in joint accounts or jointly held property.
(6) "Financial
report" means the Financial report. – The report filed by the
guardian concerning all financial transactions, including receipts and
expenditures of the ward's money, sale of the ward's property, or other
transactions involving the ward's property.
(7) "General
guardian" means a General guardian. – A guardian of both the
estate and the person.
(8) "Guardian ad
litem" means a Guardian ad litem. – A guardian appointed
pursuant to G.S. 1A‑1, Rule 17, Rules of Civil Procedure.
(9) "Guardian of the
estate" means a Guardian of the estate. – A guardian appointed
solely for the purpose of managing the property, estate, and business affairs
of a ward.
(10) "Guardian of the
person" means a Guardian of the person. – A guardian appointed
solely for the purpose of performing duties relating to the care, custody, and
control of a ward.
(11) "Incompetent
person" means a Incompetent person. – A person who has been
adjudicated to be an "incompetent adult" or "incompetent
child" as defined in G.S. 35A‑1101(7) or (8).
(12) "Minor" means
a Minor. – A person who is under the age of 18, is not married, and
has not been legally emancipated.
(13) "Multidisciplinary
evaluation" means an Multidisciplinary evaluation. – An evaluation
that contains current medical, psychological, and social work evaluations as
directed by the clerk and that may contain current evaluations by professionals
in other disciplines, including without limitation education, vocational
rehabilitation, occupational therapy, vocational therapy, psychiatry, speech‑and‑hearing,
and communications disorders. The evaluation is current if made not more than
one year from the date on which it is presented to or considered by the court.
The evaluation shall set forth the nature and extent of the disability and
recommend a guardianship plan and program.
(14) "Status
report" means the Status report. – The report required by
G.S. 35A‑1242 to be filed by the general guardian or guardian of the
person.
(15) "Ward" means
a Ward. – A person who has been adjudicated incompetent or an adult
or minor for whom a guardian has been appointed by a court of competent
jurisdiction."
SECTION 1.(d) G.S. 35A‑1241 reads as rewritten:
"§ 35A‑1241. Powers and duties of guardian of the person.
(a) To the extent that it is not inconsistent with the terms of any order of the clerk or any other court of competent jurisdiction, a guardian of the person has the following powers and duties:
(1) The guardian of the
person is entitled to custody of the person of the guardian's ward and shall
make provision for the ward's care, comfort, and maintenance, and shall, as
appropriate to the ward's needs, arrange for the ward's training, education,
employment, rehabilitation rehabilitation, or habilitation. The
guardian of the person shall take reasonable care of the ward's clothing,
furniture, vehicles, and other personal effects that are with the ward.
(2) The guardian of the
person may establish the ward's place of abode within or without inside
or outside this State. In arranging for a place of abode, the guardian of
the person shall give preference to places within inside this
State over places not in outside this State if in‑State and
out‑of‑State places are substantially equivalent. The guardian also
shall give preference to places that are not treatment facilities. If the only
available and appropriate places of domicile are treatment facilities, the guardian
shall give preference to community‑based treatment facilities, such as
group homes or nursing homes, over treatment facilities that are not community‑based.
(3) The guardian of the
person may give any consent or approval that may be necessary to enable the
ward to receive medical, legal, psychological, or other professional care,
counsel, treatment, or service; provided that, if service. If the
patient has a health care agent appointed pursuant to a valid health care power
of attorney, the health care agent shall have the right to exercise the
authority granted in the health care power of attorney unless the Clerk has
suspended the authority of that health care agent in accordance with
G.S. 35A‑1208. The guardian shall not, however, consent to the sterilization
of a mentally ill or mentally retarded ward ward with a mental
illness or intellectual disability unless the guardian obtains an order
from the clerk in accordance with G.S. 35A‑1245. The guardian of the
person may give any other consent or approval on the ward's behalf that may be
required or in the ward's best interest. The guardian may petition the clerk
for the clerk's concurrence in the consent or approval.
(b) A guardian of the person
is entitled to be reimbursed out of the ward's estate for reasonable and proper
expenditures incurred in the performance of his the guardian's duties
as guardian of the ward's person.
(c) A guardian of the person,
if he person who has acted within the limits imposed on him by
this Article or the order of appointment or both, shall not be both is
not liable for damages to the ward or the ward's estate, merely by reason
of the guardian's:
(1) Authorizing or giving any consent or approval necessary to enable the ward to receive legal, psychological, or other professional care, counsel, treatment, or service, in a situation where the damages result from the negligence or other acts of a third person; or
(2) Authorizing medical
treatment or surgery for his the ward, if the guardian acted in
good faith and was not negligent."
SECTION 1.(e) G.S. 35A‑1245 reads as rewritten:
"§ 35A‑1245. Procedure to permit the sterilization of
a mentally ill or a mentally retarded ward ward with a mental illness
or intellectual disability in the case of medical necessity.
(a) A guardian of the person
shall not consent to the sterilization of a mentally ill or mentally
retarded ward ward with a mental illness or intellectual disability unless
an order from the clerk has been obtained in accordance with this section.
(b) If a mentally ill or
mentally retarded ward ward with a mental illness or intellectual
disability needs to undergo a medical procedure that would result in
sterilization, the ward's guardian shall petition the clerk for an order to permit
the guardian to consent to the procedure. The petition shall contain all of the
following:
(1) A sworn statement from a physician licensed in this State who has examined the ward that the proposed procedure is medically necessary and not for the sole purpose of sterilization or for the purpose of hygiene or convenience.
(2) The name and address of the physician who will perform the procedure.
(3) A sworn statement from a
psychiatrist or psychologist licensed in this State who has examined the ward
as to whether the mentally ill or mentally retarded ward ward with a
mental illness or intellectual disability is able to comprehend the nature
of the proposed procedure and its consequences and provide an informed consent
to the procedure.
(4) If the ward is able to comprehend the nature of the proposed procedure and its consequences, the sworn consent of the ward to the procedure.
(c) A copy of the petition shall be served on the ward personally. If the ward is unable to comprehend the nature of the proposed procedure and its consequences and is unable to provide an informed consent, the clerk shall appoint an attorney to represent the ward in accordance with rules adopted by the Office of Indigent Defense Services.
(d) Should the ward or the ward's attorney request a hearing, a hearing shall be held. Otherwise, the clerk may enter an order without the appearance of witnesses. If a hearing is held, the guardian and the ward may present evidence.
(e) If the clerk finds all of the following, the clerk shall enter an order permitting the guardian to consent to the proposed procedure:
(1) The ward is capable of comprehending the procedure and its consequences and has consented to the procedure, or the ward is unable to comprehend the procedure and its consequences.
(2) The procedure is medically necessary and is not solely for the purpose of sterilization or for hygiene or convenience.
(f) The guardian or the ward, the ward's attorney, or any other interested party may appeal the clerk's order to the superior court in accordance with G.S. 1‑301.2(e)."
SECTION 1.(f) G.S. 90‑275 reads as rewritten:
"§ 90‑275. Article does not affect duty of guardian
to obtain order permitting guardian to consent to sterilization of a mentally
ill or mentally retarded ward.ward with a mental illness or intellectual
disability.
Nothing in this Article shall be
deemed to affect affects the provisions of G.S. 35A‑1245."
SECTION 2. G.S. 7B‑1111 reads as rewritten:
"§ 7B‑1111. Grounds for terminating parental rights.
(a) The court may terminate the parental rights upon a finding of one or more of the following:
(1) The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. 7B‑101 or a neglected juvenile within the meaning of G.S. 7B‑101.
(2) The parent has willfully
left the juvenile in foster care or placement outside the home for more than 12
months without showing to the satisfaction of the court that reasonable
progress under the circumstances has been made in correcting those conditions
which led to the removal of the juvenile. Provided, however, that no
parental rights No parental rights, however, shall be terminated for
the sole reason that the parents are unable to care for the juvenile on account
of their poverty.
(3) The juvenile has been
placed in the custody of a county department of social services, a licensed
child‑placing agency, a child‑caring institution, or a foster home,
and the parent, for a continuous period of six months next preceding the
filing of the petition or motion, parent has for a continuous
period of six months immediately preceding the filing of the petition or motion
willfully failed for such period to pay a reasonable portion of the
cost of care for the juvenile although physically and financially able to do
so.
(4) One parent has been
awarded custody of the juvenile by judicial decree or has custody by agreement
of the parents, and the other parent whose parental rights are sought to be
terminated has for a period of one year or more next preceding the filing of
the petition or motion willfully failed without justification to pay for the
care, support, and education of the juvenile, as required by said the
decree or custody agreement.
(5) The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights, done any of the following:
a. Filed an affidavit of
paternity in a central registry maintained by the Department of Health and
Human Services; provided, the Services. The petitioner or movant
shall inquire of the Department of Health and Human Services as to whether such
an affidavit has been so filed and the Department's certified reply shall be
submitted to and considered by the court.
b. Legitimated the juvenile pursuant to provisions of G.S. 49‑10, G.S. 49‑12.1, or filed a petition for this specific purpose.
c. Legitimated the juvenile by marriage to the mother of the juvenile.
d. Provided substantial financial support or consistent care with respect to the juvenile and mother.
e. Established paternity through G.S. 49‑14, 110‑132, 130A‑101, 130A‑118, or other judicial proceeding.
(6) That the parent is
incapable of providing for the proper care and supervision of the juvenile,
such that the juvenile is a dependent juvenile within the meaning of
G.S. 7B‑101, and that there is a reasonable probability that such
the incapability will continue for the foreseeable future.
Incapability under this subdivision may be the result of substance abuse, mental
retardation, intellectual disability, mental illness, organic brain
syndrome, or any other cause or condition that renders the parent unable or
unavailable to parent the juvenile and the parent lacks an appropriate
alternative child care arrangement.
…
(b) The burden in such these
proceedings shall be upon is on the petitioner or movant to
prove the facts justifying such the termination by clear and
convincing evidence."
SECTION 3.(a) G.S. 8C‑1, Rule 616, reads as rewritten:
"Rule 616. Alternative testimony of witnesses with developmental
disabilities or mental retardation an intellectual or developmental
disability in civil cases and special proceedings.
(a) Definitions. – The following definitions apply to this section:
(1) The definitions set out in G.S. 122C‑3.
(2) "Remote
testimony" means a Remote testimony. – A method by which a
witness testifies outside of an open forum and outside of the physical presence
of a party or parties.
(b) Remote Testimony
Authorized. – A person with a developmental disability or a person with
mental retardation An individual with an intellectual or developmental
disability who is competent to testify may testify by remote testimony in a
civil proceeding or special proceeding if the court determines by clear and
convincing evidence that the witness would suffer serious emotional distress
from testifying in the presence of a named party or parties or from testifying
in an open forum and that the ability of the witness to communicate with the
trier of fact would be impaired by testifying in the presence of a named party
or parties or from testifying in an open forum.
…
(f) Nonexclusive Procedure
and Standard. – Nothing in this section shall prohibit prohibits the
use or application of any other method or procedure authorized or required by
law for the introduction into evidence of statements or testimony of a
person with a developmental disability or a person with mental retardation.an
individual with an intellectual or developmental disability."
SECTION 3.(b) G.S. 15A‑1225.2 reads as rewritten:
"§ 15A‑1225.2. Witnesses with developmental
disabilities or mental retardation; an intellectual or developmental
disability; remote testimony.
(a) Definitions. – The following definitions apply to this section:
(1) The definitions set out in G.S. 122C‑3.
(2) "Remote
testimony" means a Remote testimony. – A method by which a
witness testifies outside of an open forum and outside of the physical presence
of a party or parties.
(b) Remote Testimony
Authorized. – A person with a developmental disability or a person with
mental retardation An individual with an intellectual or developmental
disability who is competent to testify may testify by remote testimony in a
prosecution of a person charged with violating a criminal law of this State and
in any hearing or proceeding conducted under Subchapter II of Chapter 7B of the
General Statutes where a juvenile is alleged to have committed an offense that
would be a criminal offense if committed by an adult if the court determines by
clear and convincing evidence that the witness would suffer serious emotional
distress from testifying in the presence of the defendant and that the ability
of the witness to communicate with the trier of fact would be impaired by
testifying in the presence of the defendant.
…
(e) Testimony. – The method
of remote testimony shall allow the trier of fact and all parties to observe
the demeanor of the witness as the witness testifies in a similar manner as if
the witness were testifying in the open forum. The court shall ensure that the
counsel for all parties, except a pro se defendant, is physically present where
the witness testifies and has a full and fair opportunity for examination and
cross‑examination of the witness. The court shall ensure that the
defendant or juvenile respondent has the ability to communicate privately with
defense counsel during the remote testimony. A party may waive the right to
have counsel physically present where the witness testifies. Nothing in this
section shall be construed to limit limits the provisions of
G.S. 15A‑1225.
(f) Nonexclusive Procedure
and Standard. – Nothing in this section shall prohibit prohibits the
use or application of any other method or procedure authorized or required by
law for the introduction into evidence of statements or testimony of a
person with a developmental disability or a person with mental retardation.an
individual with an intellectual or developmental disability."
SECTION 4.(a) G.S. 14‑27.20 reads as rewritten:
"§ 14‑27.20. Definitions.
As used in this Article, unless
the context requires otherwise:The
following definitions apply in this Article:
(1) "Mentally disabled" means (i) a victim
who suffers from mental retardation, or (ii) a victim who suffers from a mental
disorder, either of which temporarily or permanently renders the victim
substantially incapable of appraising the nature of his or her conduct, or of
resisting the act of vaginal intercourse or a sexual act, or of communicating
unwillingness to submit to the act of vaginal intercourse or a sexual act.
(2) "Mentally
incapacitated" means a Mentally incapacitated. – A victim who
due to any act committed upon the victim is rendered substantially incapable of
either appraising the nature of his or her conduct, or resisting the act of
vaginal intercourse or a sexual act.
(2a) Person who has a mental disability. – A victim who has an intellectual disability or a mental disorder that temporarily or permanently renders the victim substantially incapable of appraising the nature of his or her conduct, or of resisting the act of vaginal intercourse or a sexual act, or of communicating unwillingness to submit to the act of vaginal intercourse or a sexual act.
(3) "Physically
helpless" means (i) a victim who is unconscious; or (ii) a Physically
helpless. – Any of the following:
a. A victim who is unconscious.
b. A victim who is physically unable to resist an act of vaginal intercourse or a sexual act or communicate unwillingness to submit to an act of vaginal intercourse or a sexual act.
(4) "Sexual act"
means cunnilingus, Sexual act. – Cunnilingus, fellatio, analingus,
or anal intercourse, but does not include vaginal intercourse. Sexual act also
means the penetration, however slight, by any object into the genital or anal
opening of another person's body: provided, that it shall be body. It
is an affirmative defense that the penetration was for accepted medical
purposes.
(5) "Sexual
contact" means(i) touching Sexual contact. – Any of the following:
a. Touching the sexual organ, anus, breast,
groin, or buttocks of any person, (ii) a person.
b. A person touching another person with their
own sexual organ, anus, breast, groin, or buttocks, or (iii) a buttocks.
c. A person ejaculating, emitting, or placing semen, urine, or feces upon any part of another person.
(6) "Touching"
as Touching. – As used in subdivision (5) of this section, means
physical contact with another person, whether accomplished directly, through
the clothing of the person committing the offense, or through the clothing of
the victim."
SECTION 4.(b) G.S. 14‑27.22 reads as rewritten:
"§ 14‑27.22. Second‑degree forcible rape.
(a) A person is guilty of second‑degree forcible rape if the person engages in vaginal intercourse with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally
disabled, mentally incapacitated, Who has a mental disability or who is
mentally incapacitated or physically helpless, and the person performing
the act knows or should reasonably know the other person is mentally
disabled, mentally incapacitated, has a mental disability or is mentally
incapacitated or physically helpless.
(b) Any person who commits the offense defined in this section is guilty of a Class C felony.
(c) Upon conviction, a
person convicted under this section has no rights to custody of or rights of
inheritance from any child conceived during the commission of the rape, nor shall
does the person have any rights related to the child under Chapter
48 of the General Statutes or Subchapter 1 I of Chapter 7B
of the General Statutes."
SECTION 4.(c) G.S. 14‑27.27 reads as rewritten:
"§ 14‑27.27. Second‑degree forcible sexual offense.
(a) A person is guilty of second degree forcible sexual offense if the person engages in a sexual act with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally
disabled, mentally incapacitated, Who has a mental disability or who is
mentally incapacitated or physically helpless, and the person performing
the act knows or should reasonably know that the other person is mentally
disabled, mentally incapacitated, has a mental disability or is mentally
incapacitated or physically helpless.
(b) Any person who commits the offense defined in this section is guilty of a Class C felony."
SECTION 4.(d) G.S. 14‑27.33 reads as rewritten:
"§ 14‑27.33. Sexual battery.
(a) A person is guilty of sexual battery if the person, for the purpose of sexual arousal, sexual gratification, or sexual abuse, engages in sexual contact with another person:
(1) By force and against the will of the other person; or
(2) Who is mentally
disabled, mentally incapacitated, Who has a mental disability or who is
mentally incapacitated or physically helpless, and the person performing
the act knows or should reasonably know that the other person is mentally
disabled, mentally incapacitated, has a mental disability or is mentally
incapacitated or physically helpless.
(b) Any person who commits the offense defined in this section is guilty of a Class A1 misdemeanor."
SECTION 4.(e) G.S. 14‑205.1 reads as rewritten:
"§ 14‑205.1. Solicitation of prostitution.
(a) Except as otherwise
provided in this section, any person who solicits another for the purpose of
prostitution is guilty of a Class 1 misdemeanor for a first offense and a Class
H felony for a second or subsequent offense. Any person 18 years of age or
older who willfully solicits a minor for the purpose of prostitution is guilty
of a Class G felony. Any person who willfully solicits a person who is
severely or profoundly mentally disabled has a severe or profound mental
disability for the purpose of prostitution is guilty of a Class E felony.
Punishment under this section may include participation in a program devised
for the education and prevention of sexual exploitation (i.e. "John
School"), where available. A person who violates this subsection shall
not be is not eligible for a disposition of prayer for judgment
continued under any circumstances.
(b) Immunity From
Prosecution for Minors. – Notwithstanding any other provision of this section,
if it is determined, after a reasonable detention for investigative purposes,
that a person suspected of or charged with a violation of this section is a
minor who is soliciting as a prostitute, that person shall be immune from
prosecution under this section and instead shall be taken into temporary
protective custody as an undisciplined juvenile pursuant to Article 19 of
Chapter 7B of the General Statutes. Pursuant to the provisions of G.S. 7B‑301,
a law enforcement officer who takes a minor into custody under this section
shall immediately report an allegation of a violation of G.S. 14‑43.11
and G.S. 14‑43.13 to the director of the department of social
services in the county where the minor resides or is found, as appropriate,
which shall commence an initial investigation into child abuse or child neglect
within 24 hours pursuant to G.S. 7B‑301 and G.S. 7B‑302."
SECTION 4.(f) G.S. 14‑205.2 reads as rewritten:
"§ 14‑205.2. Patronizing a prostitute.
(a) Any person who willfully performs any of the following acts with a person not his or her spouse commits the offense of patronizing a prostitute:
(1) Engages in vaginal intercourse, any sexual act as defined in G.S. 14‑27.20, or any sexual contact as defined in G.S. 14‑27.20, for the purpose of sexual arousal or gratification with a prostitute.
(2) Enters or remains in a place of prostitution with intent to engage in vaginal intercourse, any sexual act as defined in G.S. 14‑27.20, or any sexual contact as defined in G.S. 14‑27.20, for the purpose of sexual arousal or gratification.
(b) Except as provided in subsections (c) and (d) of this section, a first violation of this section is a Class A1 misdemeanor. Unless a higher penalty applies, a second or subsequent violation of this section is a Class G felony.
(c) A violation of this section is a Class F felony if the defendant is 18 years of age or older and the prostitute is a minor.
(d) A violation of this
section is a Class D felony if the prostitute is a severely or profoundly
mentally disabled person.has a severe or profound mental disability."
SECTION 4.(g) G.S. 14‑205.3 reads as rewritten:
"§ 14‑205.3. Promoting prostitution.
…
(b) Any person who willfully
performs any of the following acts commits the offense of promoting
prostitution of a minor or mentally disabled person:person who has a
mental disability:
(1) Advances prostitution as
defined in G.S. 14‑203, where a minor or severely or profoundly
mentally disabled person person who has a severe or profound mental
disability engaged in prostitution, or any person engaged in prostitution
in the place of prostitution is a minor or is severely or profoundly mentally
disabled has a severe or profound mental disability at the time of
the offense.
(2) Profits from prostitution
by any means where the prostitute is a minor or is severely or profoundly
mentally disabled has a severe or profound mental disability at the
time of the offense.
(3) Confines a minor or a severely
or profoundly mentally disabled person person who has a severe or
profound mental disability against the person's will by the infliction or
threat of imminent infliction of great bodily harm, permanent disability, or
disfigurement or by administering to the minor or severely or profoundly
mentally disabled person, person who has a severe or profound mental
disability, without the person's consent or by threat or deception and for
other than medical purposes, any alcoholic intoxicant or a drug as defined in
Article 5 of Chapter 90 of the General Statutes (North Carolina Controlled
Substances Act) and does any of the following:
a. Compels the minor or severely
or profoundly mentally disabled person person who has a severe or
profound mental disability to engage in prostitution.
b. Arranges a situation in
which the minor or severely or profoundly mentally disabled person person
who has a severe or profound mental disability may practice prostitution.
c. Profits from prostitution
by the minor or severely or profoundly mentally disabled person.person
who has a severe or profound mental disability.
For purposes of this subsection,
administering drugs or an alcoholic intoxicant to a minor or a severely or
profoundly mentally disabled person, person who has a severe or profound
mental disability, as described in subdivision (3) of this subsection,
shall be deemed to be without consent if the administering is done without the
consent of the parents or legal guardian or if the administering is performed
or permitted by the parents or legal guardian for other than medical purposes.
Mistake of age is not a defense to a prosecution under this subsection.
…."
SECTION 4.(h) G.S. 14‑208.6 reads as rewritten:
"§ 14‑208.6. Definitions.
The following definitions apply in this Article:
(1a) "Aggravated
offense" means any Aggravated offense. – Any criminal offense
that includes either of the following: (i) engaging in a sexual act involving
vaginal, anal, or oral penetration with a victim of any age through the use of
force or the threat of serious violence; or (ii) engaging in a sexual act
involving vaginal, anal, or oral penetration with a victim who is less than 12
years old.
(1b) "County
registry" means the County registry. – The information compiled
by the sheriff of a county in compliance with this Article.
(1c) "Department"
means the Department. – The Department of Public Safety.
(1d) "Electronic
mail" means the Electronic mail. – The transmission of
information or communication by the use of the Internet, a computer, a
facsimile machine, a pager, a cellular telephone, a video recorder, or other
electronic means sent to a person identified by a unique address or address
number and received by that person.
(1e) "Employed"
includes Employed. – Includes employment that is full‑time or
part‑time for a period of time exceeding 14 days or for an aggregate
period of time exceeding 30 days during any calendar year, whether financially
compensated, volunteered, or for the purpose of government or educational
benefit.
(1f) "Entity"
means a Entity. – A business or organization that provides Internet
service, electronic communications service, remote computing service, online
service, electronic mail service, or electronic instant message or chat
services whether the business or organization is within inside or
outside the State.
(1g) "Instant
Message" means a Instant message. – A form of real‑time
text communication between two or more people. The communication is conveyed
via computers connected over a network such as the Internet.
(1h) "Institution of
higher education" means any Institution of higher education. – Any postsecondary
public or private educational institution, including any trade or professional
institution, college, or university.
(1i) "Internet"
means the Internet. – The global information system that is logically
linked together by a globally unique address space based on the Internet
Protocol or its subsequent extensions; that is able to support communications
using the Transmission Control Protocol/Internet Protocol suite, its subsequent
extensions, or other Internet Protocol compatible protocols; and that provides,
uses, or makes accessible, either publicly or privately, high‑level
services layered on the communications and related infrastructure described in
this subdivision.
(1j) "Mental
abnormality" means a Mental abnormality. – A congenital or
acquired condition of a person that affects the emotional or volitional
capacity of the person in a manner that predisposes that person to the
commission of criminal sexual acts to a degree that makes the person a menace
to the health and safety of others.
(1k) "Nonresident
student" means a Nonresident student. – A person who is not a
resident of North Carolina but who is enrolled in any type of school in the
State on a part‑time or full‑time basis.
(1l) "Nonresident
worker" means a Nonresident worker. – A person who is not a
resident of North Carolina but who has employment or carries on a vocation in
the State, on a part‑time or full‑time basis, with or without
compensation or government or educational benefit, for more than 14 days, or
for an aggregate period exceeding 30 days in a calendar year.
(1m) "Offense against a
minor" means any Offense against a minor. – Any of the
following offenses if the offense is committed against a minor, and the person
committing the offense is not the minor's parent: G.S. 14‑39
(kidnapping), G.S. 14‑41 (abduction of children), and G.S. 14‑43.3
(felonious restraint). The term also includes the following if the person
convicted of the following is not the minor's parent: a solicitation or
conspiracy to commit any of these offenses; aiding and abetting any of these
offenses.
(1n) "Online
identifier" means electronic Online identifier. – Electronic mail
address, instant message screen name, user ID, chat or other Internet communication
name, but it does not mean social security number, date of birth, or pin
number.
(2) "Penal
institution" means:Penal institution. – Any of the following:
a. A detention facility
operated under the jurisdiction of the Section of Prisons of the Division of
Adult Correction and Juvenile Justice of the Department of Public Safety;Safety.
b. A detention facility
operated under the jurisdiction of another state or the federal government;
orgovernment.
c. A detention facility operated by a local government in this State or another state.
(2a) "Personality
disorder" means an Personality disorder. – An enduring pattern
of inner experience and behavior that deviates markedly from the expectations
of the individual's culture, is pervasive and inflexible, has an onset in
adolescence or early adulthood, is stable over time, and leads to distress or
impairment.
(2b) "Recidivist"
means a Recidivist. – A person who has a prior conviction for an
offense that is described in G.S. 14‑208.6(4).
(3) "Release"
means discharged Release. – Discharged or paroled.
(4) "Reportable
conviction" means:Reportable conviction. – Any of the following:
a. A final conviction for an offense against a minor, a sexually violent offense, or an attempt to commit any of those offenses unless the conviction is for aiding and abetting. A final conviction for aiding and abetting is a reportable conviction only if the court sentencing the individual finds that the registration of that individual under this Article furthers the purposes of this Article as stated in G.S. 14‑208.5.
b. A final conviction in another state of an offense, which if committed in this State, is substantially similar to an offense against a minor or a sexually violent offense as defined by this section, or a final conviction in another state of an offense that requires registration under the sex offender registration statutes of that state.
c. A final conviction in a federal jurisdiction (including a court martial) of an offense, which is substantially similar to an offense against a minor or a sexually violent offense as defined by this section.
d. A final conviction for a violation of G.S. 14‑202(d), (e), (f), (g), or (h), or a second or subsequent conviction for a violation of G.S. 14‑202(a), (a1), or (c), only if the court sentencing the individual issues an order pursuant to G.S. 14‑202(l) requiring the individual to register.
e. A final conviction for a violation of G.S. 14‑43.14, only if the court sentencing the individual issues an order pursuant to G.S. 14‑43.14(e) requiring the individual to register.
(5) "Sexually violent
offense" means a Sexually violent offense. – A violation of
former G.S. 14‑27.6 (attempted rape or sexual offense), G.S. 14‑27.21
(first‑degree forcible rape), G.S. 14‑27.22 (second‑degree
forcible rape), G.S. 14‑27.23 (statutory rape of a child by an
adult), G.S. 14‑27.24 (first‑degree statutory rape),
G.S. 14‑27.25(a) (statutory rape of a person who is 15 years of age
or younger and where the defendant is at least six years older), G.S. 14‑27.26
(first‑degree forcible sexual offense), G.S. 14‑27.27 (second‑degree
forcible sexual offense), G.S. 14‑27.28 (statutory sexual offense
with a child by an adult), G.S. 14‑27.29 (first‑degree
statutory sexual offense), G.S. 14‑27.30(a) (statutory sexual
offense with a person who is 15 years of age or younger and where the defendant
is at least six years older), G.S. 14‑27.31 (sexual activity by a
substitute parent or custodian), G.S. 14‑27.32 (sexual activity with
a student), G.S. 14‑27.33 (sexual battery), G.S. 14‑43.11
(human trafficking) if (i) the offense is committed against a minor who is less
than 18 years of age or (ii) the offense is committed against any person with
the intent that they be held in sexual servitude, G.S. 14‑43.13
(subjecting or maintaining a person for sexual servitude), G.S. 14‑178
(incest between near relatives), G.S. 14‑190.6 (employing or
permitting minor to assist in offenses against public morality and decency),
G.S. 14‑190.9(a1) (felonious indecent exposure), G.S. 14‑190.16
(first degree sexual exploitation of a minor), G.S. 14‑190.17
(second degree sexual exploitation of a minor), G.S. 14‑190.17A
(third degree sexual exploitation of a minor), G.S. 14‑202.1 (taking
indecent liberties with children), G.S. 14‑202.3 (Solicitation of
child by computer or certain other electronic devices to commit an unlawful sex
act), G.S. 14‑202.4(a) (taking indecent liberties with a student),
G.S. 14‑205.2(c) or (d) (patronizing a prostitute who is a minor or a
mentally disabled person), has a mental disability), G.S. 14‑205.3(b)
(promoting prostitution of a minor or a mentally disabled person), person
who has a mental disability), G.S. 14‑318.4(a1) (parent or caretaker
commit or permit act of prostitution with or by a juvenile), or G.S. 14‑318.4(a2)
(commission or allowing of sexual act upon a juvenile by parent or guardian).
The term also includes the following: a solicitation or conspiracy to commit
any of these offenses; aiding and abetting any of these offenses.
(6) "Sexually violent
predator" means a Sexually violent predator. – A person who has
been convicted of a sexually violent offense and who suffers from a mental
abnormality or personality disorder that makes the person likely to engage in
sexually violent offenses directed at strangers or at a person with whom a
relationship has been established or promoted for the primary purpose of
victimization.
(7) "Sheriff"
means the Sheriff. – The sheriff of a county in this State.
(8) "Statewide
registry" means the Statewide registry. – The central registry
compiled by the Department in accordance with G.S. 14‑208.14.
(9) "Student"
means a Student. – A person who is enrolled on a full‑time or
part‑time basis, in any postsecondary public or private educational
institution, including any trade or professional institution, or other
institution of higher education."
SECTION 4.(i) G.S. 15‑144.1 reads as rewritten:
"§ 15‑144.1. Essentials of bill for rape.
(a) In indictments for rape
it is not necessary to allege every matter required to be proved on the trial;
but in the body of the indictment, after naming the person accused, the date of
the offense, the county in which the offense of rape was allegedly committed,
and the averment "with force and arms," as is now usual, it is
sufficient in describing rape to allege that the accused person unlawfully,
willfully, and feloniously did ravish and carnally know the victim, naming her,
by force and against her will and concluding as is now required by law.
Any bill of indictment containing the averments and allegations herein named
shall be in this section is good and sufficient in law as an
indictment for rape in the first degree and will support a verdict of guilty of
rape in the first degree, rape in the second degree, attempted rape rape,
or assault on a female.
(b) If the victim is a
female child under the age of 13 years years, it is sufficient to
allege that the accused unlawfully, willfully, and feloniously did carnally
know and abuse a child under 13, naming her, and concluding as aforesaid. required
by law. Any bill of indictment containing the averments and allegations herein
named shall be in this section is good and sufficient in law
as an indictment for the rape of a female child under the age of 13 years and
all lesser included offenses.
(c) If the victim is a
person who is mentally disabled, mentally incapacitated, has a mental
disability or who is mentally incapacitated or physically helpless helpless,
it is sufficient to allege that the defendant unlawfully, willfully, and
feloniously did carnally know and abuse a person who was mentally disabled, had
a mental disability or who was mentally incapacitated or physically
helpless, naming such the victim, and concluding as aforesaid.
required by law. Any bill of indictment containing the averments and
allegations herein named shall be in this section is good
and sufficient in law for the rape of a mentally disabled, mentally
incapacitated or physically helpless person person who has a mental
disability or who is mentally incapacitated or physically helpless and all
lesser included offenses."
SECTION 4.(j) G.S. 15‑144.2 reads as rewritten:
"§ 15‑144.2. Essentials of bill for sex offense.
(a) In indictments for sex
offense it is not necessary to allege every matter required to be proved on the
trial; but in the body of the indictment, after naming the person accused, the
date of the offense, the county in which the sex offense was allegedly
committed, and the averment "with force and arms," as is now
usual, it is sufficient in describing a sex offense to allege that the
accused person unlawfully, willfully, and feloniously did engage in a sex
offense with the victim, naming the victim, by force and against the will of such
the victim and concluding as is now required by law. Any bill
of indictment containing the averments and allegations herein named shall
be in this section is good and sufficient in law as an indictment
for a first degree sex offense and will support a verdict of guilty of a sex
offense in the first degree, a sex offense in the second degree, an attempt to
commit a sex offense offense, or an assault.
(b) If the victim is a
person under the age of 13 years, it is sufficient to allege that the defendant
unlawfully, willfully, and feloniously did engage in a sex offense with a child
under the age of 13 years, naming the child, and concluding as aforesaid. required
by law. Any bill of indictment containing the averments and allegations herein
named shall be in this section is good and sufficient in law
as an indictment for a sex offense against a child under the age of 13 years
and all lesser included offenses.
(c) If the victim is a
person who is mentally disabled, mentally incapacitated, has a mental
disability or who is mentally incapacitated or physically helpless helpless,
it is sufficient to allege that the defendant unlawfully, willfully, and
feloniously did engage in a sex offense with a person who was mentally
disabled, had a mental disability or who was mentally incapacitated
or physically helpless, naming such the victim, and concluding as
aforesaid. required by law. Any bill of indictment containing the
averments and allegations herein named shall be in this
section is good and sufficient in law for a sex offense against a mentally
disabled, mentally incapacitated or physically helpless person person
who has a mental disability or who is mentally incapacitated or physically
helpless and all lesser included offenses."
SECTION 4.(k) G.S. 15A‑290 reads as rewritten:
"§ 15A‑290. Offenses for which orders for electronic surveillance may be granted.
(a) Orders authorizing or
approving the interception of wire, oral, or electronic communications may be
granted, subject to the provisions of this Article and Chapter 119 of Title
18 of the United States Code, when the interception:interception
does any of the following:
(1) May provide or has
provided evidence of the commission of, or any conspiracy to commit:commit,
any of the following:
a. Any of the drug‑trafficking
violations listed in G.S. 90‑95(h); orG.S. 90‑95(h).
b. A continuing criminal enterprise in violation of G.S. 90‑95.1.
(2) May expedite the apprehension of persons indicted for the commission of, or any conspiracy to commit, an offense listed in subdivision (1) of this subsection.
(b) Orders authorizing or approving the interception of wire, oral, or electronic communications may be granted, subject to the provisions of this Article and Chapter 119 of Title 18 of the United States Code, when the interception may provide, or has provided, evidence of any offense that involves the commission of, or any conspiracy to commit, murder, kidnapping, hostage taking, robbery, extortion, bribery, rape, or any sexual offense, or when the interception may expedite the apprehension of persons indicted for the commission of these offenses.
(c) Orders authorizing or approving the interception of wire, oral, or electronic communications may be granted, subject to the provisions of this Article and Chapter 119 of Title 18 of the United States Code, when the interception may provide, or has provided, evidence of any of the following offenses, or any conspiracy to commit these offenses, or when the interception may expedite the apprehension of persons indicted for the commission of these offenses:
(1) Any felony offense
against a minor, including any violation of G.S. 14‑27.31 (Sexual
activity by a substitute parent or custodian), G.S. 14‑27.32 (Sexual
activity with a student), G.S. 14‑41 (Abduction of children),
G.S. 14‑43.11 (Human trafficking), G.S. 14‑43.12
(Involuntary servitude), G.S. 14‑43.13 (Sexual servitude),
G.S. 14‑190.16 (First degree sexual exploitation of a minor),
G.S. 14‑190.17 (Second degree sexual exploitation of a minor),
G.S. 14‑202.1 (Taking indecent liberties with children),
G.S. 14‑205.2(c) or (d)(Patronizing a prostitute who is a minor or a
mentally disabled person), has a mental disability), or G.S. 14‑205.3(b)
(Promoting prostitution of a minor or a mentally disabled person).person
who has a mental disability).
…
(d) When an investigative or
law enforcement officer, while engaged in intercepting wire, oral, or
electronic communications in the manner authorized, intercepts wire,
electronic, or oral communications relating to offenses other than those
specified in the order of authorization or approval, the contents thereof,
and evidence derived therefrom, of the communications and evidence
derived from the communications may be disclosed or used as provided in
G.S. 15A‑294(a) and (b). Such The contents of the
communications and any evidence derived therefrom from the
communications may be used in accordance with G.S. 15A‑294(c)
when authorized or approved by a judicial review panel where the panel finds,
on subsequent application made as soon as practicable, that the contents were
otherwise intercepted in accordance with this Article or Chapter 119 of
Title 18 of the United States Code.
(e) No otherwise privileged wire, oral, or electronic communication intercepted in accordance with, or in violation of, the provisions of this Article or Chapter 119 of Title 18 of the United States Code, shall lose its privileged character."
SECTION 4.(l) G.S. 115C‑270.35 reads as rewritten:
"§ 115C‑270.35. License suspension and revocation.
(a) Rules. – The State Board shall adopt rules to establish the reasons and procedures for the suspension and revocation of licenses, subject to the requirements of this section.
(b) Automatic Revocation With No Hearing. – The State Board shall automatically revoke the license of a professional educator without the right to a hearing upon receiving verification of the identity of the professional educator together with a certified copy of a criminal record showing that the professional educator has entered a plea of guilty or nolo contendere to or has been finally convicted of any of the following crimes:
…
(21) Patronizing a prostitute
who is a minor or a mentally disabled person, has a mental
disability, G.S. 14‑205.2(c) or (d).
(22) Promoting prostitution of
a minor or a mentally disabled person, person who has a mental
disability, G.S. 14‑205.3(b).
(23) Child abuse under G.S. 14‑318.4.
The State Board shall mail notice of its intent to act pursuant to this subsection by certified mail, return receipt requested, directed to the professional educator's last known address. The notice shall inform the professional educator that it will revoke the person's license unless the professional educator notifies the State Board in writing within 10 days after receipt of the notice that the defendant identified in the criminal record is not the same person as the professional educator. If the professional educator provides this written notice to the State Board, the State Board shall not revoke the license unless it can establish as a fact that the defendant and the professional educator are the same person.
…
(e) Subpoena Power. – The
State Board may issue subpoenas for the purpose of obtaining documents or the
testimony of witnesses in connection with proceedings to suspend or revoke
licenses. In addition, the Board shall have the authority to may contract
with individuals who are qualified to conduct investigations in order to obtain
all information needed to assist the Board in the proper disposition of
allegations of misconduct by licensed persons."
SECTION 4.(m) G.S. 14‑32.1 reads as rewritten:
"§ 14‑32.1. Assaults on handicapped persons; individuals
with a disability; punishments.
(a) For purposes of this
section, a "handicapped person" is a person an "individual
with a disability" is an individual who has:has one or more
of the following that would substantially impair the ability to defend oneself:
(1) A physical or mental
disability, such as a decreased use of arms or legs, blindness,
deafness, mental retardation intellectual disability, or mental illness;
orillness.
(2) InfirmityAn
infirmity.
which would substantially impair that
person's ability to defend himself.
(b) through (d) Repealed by Session Laws 1993 (Reg. Sess., 1994), c. 767, s. 31, effective October 1, 1994.
(e) Unless his the
conduct is covered under some other provision of law providing greater
punishment, any person who commits any aggravated assault or assault and
battery on a handicapped person an individual with a disability is
guilty of a Class F felony. A person commits an aggravated assault or assault
and battery upon a handicapped person an individual with a disability
if, in the course of the assault or assault and battery, that person:person
does any of the following:
(1) Uses a deadly weapon or
other means of force likely to inflict serious injury or serious damage to a
handicapped person; oran individual with a disability.
(2) Inflicts serious injury
or serious damage to a handicapped person; oran individual with a
disability.
(3) Intends to kill a
handicapped person.an individual with a disability.
(f) Any person who commits a
simple assault or battery upon a handicapped person an individual
with a disability is guilty of a Class A1 misdemeanor."
SECTION 4.(n) G.S. 15A‑266.3A reads as rewritten:
"§ 15A‑266.3A. DNA sample required for DNA analysis upon arrest for certain offenses.
(a) Unless a DNA sample has previously been obtained by lawful process and the DNA record stored in the State DNA Database, and that record and sample has not been expunged pursuant to any provision of law, a DNA sample for DNA analysis and testing shall be obtained from any person who is arrested for committing an offense described in subsection (f) or (g) of this section.
…
(f) This section shall
apply applies to a person arrested for violating any one of the
following offenses in Chapter 14 of the General Statutes:
…
(4) G.S. 14‑28,
Malicious castration; G.S. 14‑29, Castration or other maiming
without malice aforethought; G.S. 14‑30, Malicious maiming;
G.S. 14‑30.1, Malicious throwing of corrosive acid or alkali;
G.S. 14‑31, Maliciously assaulting in a secret manner; G.S. 14‑32,
Felonious assault with deadly weapon with intent to kill or inflicting serious
injury; G.S. 14‑32.1(e), Aggravated assault or assault and battery
on handicapped person; an individual with a disability; G.S. 14‑32.2(a)
when punishable pursuant to G.S. 14‑32.2(b)(1), Patient abuse and
neglect, intentional conduct proximately causes death; G.S. 14‑32.3(a),
Domestic abuse of disabled or elder adults resulting in injury; G.S. 14‑32.4,
Assault inflicting serious bodily injury or injury by strangulation;
G.S. 14‑33.2, Habitual misdemeanor assault; G.S. 14‑34.1,
Discharging certain barreled weapons or a firearm into occupied property;
G.S. 14‑34.2, Assault with a firearm or other deadly weapon upon
governmental officers or employees, company police officers, or campus police
officers; G.S. 14‑34.4, Adulterated or misbranded food, drugs, etc.;
intent to cause serious injury or death; intent to extort; G.S. 14‑34.5,
Assault with a firearm on a law enforcement, probation, or parole officer or on
a person employed at a State or local detention facility; G.S. 14‑34.6,
Assault or affray on a firefighter, an emergency medical technician, medical
responder, emergency department nurse, or emergency department physician;
G.S. 14‑34.7, Assault inflicting serious injury on a law
enforcement, probation, or parole officer or on a person employed at a State or
local detention facility; G.S. 14‑34.9, Discharging a firearm from
within an enclosure; and G.S. 14‑34.10, Discharge firearm within
enclosure to incite fear.
…
(g) This section shall
also apply also applies to a person arrested for attempting,
solicitation of another to commit, conspiracy to commit, or aiding and abetting
another to commit, any of the violations included in subsection (f) of this
section.
…
(j) Prior to June 1, 2012,
within 30 days of the receipt of the form required by subsection (i) of this
section or the occurrence of one of the events in sub‑subdivision a., b.,
or c. of subdivision (1) of subsection (h) of this section; and on or after
June 1, 2012, within 30 days of the occurrence of one of the events in
subdivision (1) of subsection (h) of this section, the prosecuting district
attorney shall determine if a DNA sample was taken pursuant to this section,
and if so, shall:shall do all of the following:
(1) Verify and indicate the facts of the qualifying event on a verification form promulgated by the Administrative Office of the Courts.
(2) Include the last known address of the defendant, as reflected in the court files, on the verification form.
(3) Sign the verification form or, if the defendant was acquitted or the charges were dismissed by the court, obtain the signature of a judge.
(4) Transmit the verification form to the Crime Laboratory.
(k) Within 90 days of
receipt of the verification form, the Crime Laboratory shall:shall do
all of the following:
(1) Determine whether the requirement of subdivision (2) of subsection (h) of this section has been met.
(2) If the requirement has been met, remove the defendant's DNA record and samples as required by subsection (h) of this section.
(3) Mail to the defendant, at the address specified in the verification form, a notice doing either of the following:
a. Documenting expunction of the DNA record and destruction of the DNA sample.
b. Notifying the defendant that the DNA record and sample do not qualify for expunction pursuant to subsection (h) of this section.
…."
SECTION 4.(o) G.S. 15A‑266.4 reads as rewritten:
"§ 15A‑266.4. DNA sample required for DNA analysis upon conviction or finding of not guilty by reason of insanity.
…
(b) Crimes covered by this Article include all of the following:
(1) All felonies.
(2) G.S. 14‑32.1 –
Assaults on handicapped persons.individuals with a disability.
(3) Former G.S. 14‑277.3 – Stalking.
(4) Repealed by Session Laws 2010‑94, s. 5, effective February 1, 2011.
(5) All offenses described in G.S. 15A‑266.3A."
SECTION 5. G.S. 15A‑2000 reads as rewritten:
"§ 15A‑2000. Sentence of death or life imprisonment for capital felonies; further proceedings to determine sentence.
(a) Separate Proceedings on Issue of Penalty. –
(1) Except as provided in G.S. 15A‑2004, upon conviction or adjudication of guilt of a defendant of a capital felony in which the State has given notice of its intent to seek the death penalty, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment. A capital felony is one which may be punishable by death.
(2) The proceeding shall be
conducted by the trial judge before the trial jury as soon as practicable after
the guilty verdict is returned. If prior to the time that the trial jury begins
its deliberations on the issue of penalty, any juror dies, becomes
incapacitated or disqualified, or is discharged for any reason, an alternate
juror shall become a part of the jury and serve in all respects as those
selected on the regular trial panel. An alternate juror shall become a part of
the jury in the order in which he the alternate juror was
selected. If the trial jury is unable to reconvene for a hearing on the issue
of penalty after having determined the guilt of the accused, the trial judge
shall impanel a new jury to determine the issue of the punishment. If the
defendant pleads guilty, the sentencing proceeding shall be conducted before a
jury impaneled for that purpose. A jury selected for the purpose of determining
punishment in a capital case shall be selected in the same manner as juries are
selected for the trial of capital cases.
…
(b) Sentence Recommendation
by the Jury. – Instructions determined by the trial judge to be warranted by
the evidence shall be given by the court in its charge to the jury prior to its
deliberation in determining sentence. The court shall give appropriate
instructions in those cases in which evidence of the defendant's mental
retardation intellectual disability requires the consideration by
the jury of the provisions of G.S. 15A‑2005. In all cases in which
the death penalty may be authorized, the judge shall include in his the
judge's instructions to the jury that it must consider any aggravating
circumstance or circumstances or mitigating circumstance or circumstances from
the lists provided in subsections (e) and (f) of this section which may
be supported by the evidence, and shall furnish to the jury a written list of
issues relating to such aggravating or mitigating circumstance or
circumstances.
After hearing the evidence, argument of counsel, and instructions of the court, the jury shall deliberate and render a sentence recommendation to the court, based upon all of the following matters:
(1) Whether any sufficient
aggravating circumstance or circumstances as enumerated in subsection (e) exist;of
this section exist.
(2) Whether any sufficient
mitigating circumstance or circumstances as enumerated in subsection (f), (f)
of this section, which outweigh the aggravating circumstance or
circumstances found, exist; andexist.
(3) Based on these considerations, whether the defendant should be sentenced to death or to imprisonment in the State's prison for life.
The sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors. Upon delivery of the sentence recommendation by the foreman of the jury, the jury shall be individually polled to establish whether each juror concurs and agrees to the sentence recommendation returned.
If the jury cannot, within a
reasonable time, unanimously agree to its sentence recommendation, the judge
shall impose a sentence of life imprisonment; provided, however, that the imprisonment.
The judge shall in no instance impose the death penalty when the jury
cannot agree unanimously to its sentence recommendation.
(c) Findings in Support of
Sentence of Death. – When the jury recommends a sentence of death, the foreman
of the jury shall sign a writing on behalf of the jury which writing shall show:that
shows all of the following:
(1) The statutory aggravating
circumstance or circumstances which the jury finds beyond a reasonable doubt;
anddoubt.
(2) That the statutory
aggravating circumstance or circumstances found by the jury are sufficiently
substantial to call for the imposition of the death penalty; and,penalty.
(3) That the mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found.
(d) Review of Judgment and Sentence. –
…
(2) The sentence of death
shall be overturned and a sentence of life imprisonment imposed in lieu thereof
by the Supreme Court upon a finding that the record does not support the jury's
findings of any aggravating circumstance or circumstances upon which the
sentencing court based its sentence of death, or upon a finding that the sentence
of death was imposed under the influence of passion, prejudice, or any other
arbitrary factor, or upon a finding that the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering both the
crime and the defendant. The Supreme Court may suspend consideration of death
penalty cases until such time as the court determines it is prepared to make
the comparisons required under the provisions of this section.
…
(e) Aggravating
Circumstances. – Aggravating circumstances which may be considered shall be are
limited to the following:
…
(f) Mitigating
Circumstances. – Mitigating circumstances which may be considered shall include,
but not be are not limited to, the following:
…
(4) The defendant was an
accomplice in or accessory to the capital felony committed by another person
and his the defendant's participation was relatively minor.
(5) The defendant acted under duress or under the domination of another person.
(6) The capacity of the
defendant to appreciate the criminality of his the defendant's conduct
or to conform his that conduct to the requirements of law was
impaired.
(7) The age of the defendant at the time of the crime.
(8) The defendant aided in the apprehension of another capital felon or testified truthfully on behalf of the prosecution in another prosecution of a felony.
(9) Any other circumstance arising from the evidence which the jury deems to have mitigating value."
SECTION 6.(a) G.S. 58‑32‑10 reads as rewritten:
"§ 58‑32‑10. Powers and duties of Commission.
The Commission may acquire from an
insurance company or insurance companies a group plan of professional liability
insurance covering the law‑enforcement officers and/or public officers
and employees of any political subdivision of the State. The Commission shall
have has full authority to negotiate with insurance companies
submitting bids or proposals and shall award its group plan master contract on
the basis of the company or companies found by it to offer maximum coverage at
the most reasonable premium. The Commission is authorized to may enter
into a master policy contract of such any term as that it
finds to be in the best interests of the law‑enforcement officers and/or
public officers and employees of the political subdivisions of the State, not
to exceed five years. The Commission, in negotiating for such the contract,
is not authorized to pledge or offer the credit of the State of North Carolina.
The insurance premiums shall be paid by the political subdivisions whose
employees are covered by the professional liability insurance. Any political
subdivision may elect coverage for any or all of its employees on a
departmental basis; provided all basis. All employees in a
department must be covered if coverage is elected for that department. Nothing contained
herein shall be construed to require in this section requires any
political subdivision to participate in any group plan of professional
liability insurance.
The Commission may, in its discretion, employ professional and clerical staff whose salaries shall be as established by the State Human Resources Commission.
Should If the Commission determine
determines that reasonable coverage is not available at a reasonable
cost, the Commission may undertake such any studies and inquiries
into the situation and alternatives, including self insurance self‑insurance
and State administered State‑administered funds, as that
the Commission deems appropriate. The Commission shall then bring before
the General Assembly such any recommendations as that it
deems appropriate.
The Commission may acquire
information regarding loss ratios, loss factors, loss experience experience,
and other such facts and figures from any agency or company issuing
professional liability insurance covering public officers, employees employees,
or law‑enforcement officers in the State of North Carolina. Such this
State. This information shall not be deemed is not a public
record within the meaning of Chapter 132 of the General Statutes where it names
the company divulging such the information, but the Commission
may make public such the information to show aggregate statistics
in respect to the experience of the State as a whole. The information shall be
provided to the Commission upon its written demand and shall be submitted to the
Commission by such the company or companies upon sworn affidavit.
If any agency or company shall fail fails or refuse refuses
to supply such the information to the Commission within a
reasonable time following receipt of the demand, the Commission may apply to
the Superior Court sitting in Wake County for appropriate orders to enforce the
demand.
For purposes of this section, the
term "political subdivision" includes any county, city, town,
incorporated village, sanitary district, metropolitan water district, county
water and sewer district, water and sewer authority, hospital authority,
parking authority, local ABC boards, board, special airport
district, airport authority, soil and water conservation district created
pursuant to G.S. 139‑5, fire district, volunteer or paid fire
department, rescue squads, squad, city or county parks and
recreation commissions, commission, area mental health boards,
board, area mental health, mental retardation developmental
disabilities, and substance abuse authority as described in G.S. 122C‑117,
domiciliary home community advisory committees, committee, county
and or district boards board of health, nursing
home advisory committees, committee, county boards board
of social services, local school administrative units, unit, local
boards board of education, community colleges, college,
and all other persons, bodies, or agencies authorized or regulated by
Chapters 108A, 115C, 115D, 118, 122C, 130A, 131A, 131D, 131E, 153A, 160A, and
160B of the General Statutes."
SECTION 6.(b) G.S. 62‑289.3 reads as rewritten:
"§ 62‑289.3. Definitions.
As used in this Article:The following definitions apply in this Article:
(1) "Human service
agency" means any Human service agency. – Any charitable or
governmental agency including, but not limited to: county departments of social
services, area mental health, mental retardation or developmental
disabilities, and substance abuse authorities, local health departments,
councils on aging, community action agencies, sheltered workshops, group homes
homes, and State residential institutions.
(2) "Human service
transportation" means motor Human service transportation. – Motor vehicle
transportation provided on a nonprofit basis by a human service agency for the
purpose of transporting clients or recipients in connection with programs
sponsored by the agency. "Human service transportation" shall also
mean also means motor vehicle transportation provided by for‑profit
persons under exclusive contract with a human service agency for the
transportation of clients or recipients, and such provider shall also qualify
as a human service agency for the purpose of motor vehicle registration during
the term of the contract. The motor vehicle may be owned, leased, borrowed, or
contracted for use by or from the human service agency.
(3) "Nonprofit"
as Nonprofit. – As applied to human service transportation transportation,
means motor vehicle transportation provided at cost.
(4) "Person"
means an Person. – An individual, corporation, company, association,
partnership partnership, or other legal entity.
(5) "Volunteer
transportation" means motor Volunteer transportation. – Motor vehicle
transportation provided by any person under the direction, sponsorship, or
supervision of a human service agency. The person may receive an allowance to
defray the actual cost of operating the vehicle but shall not receive any other
compensation."
SECTION 6.(c) G.S. 143B‑152.14 reads as rewritten:
"§ 143B‑152.14. Cooperation of State and local agencies.
All agencies of the State and local
government, including the Juvenile Justice Section of the Division of Adult
Correction and Juvenile Justice of the Department of Public Safety, departments
of social services, health departments, local mental health, mental
retardation, developmental disabilities, and substance abuse
authorities, court personnel, law enforcement agencies, The University of North
Carolina, the community college system, and cities and counties, shall
cooperate with the Department of Health and Human Services, and local nonprofit
corporations that receive grants in coordinating the program at the State level
and in implementing the program at the local level. The Secretary of Health and
Human Services, after consultation with the Superintendent of Public
Instruction, shall develop a plan for ensuring the cooperation of State
agencies and local agencies and encouraging the cooperation of private
entities, especially those receiving State funds, in the coordination and implementation
of the program."
SECTION 6.(d) G.S. 153A‑247 reads as rewritten:
"§ 153A‑247. Provision for public health and mental health.
A county may provide for and
regulate the public health pursuant to Chapter 130A of the General Statutes and
any other law authorizing local public health activities and may provide mental
health[,] mental retardation, mental health, developmental disabilities,
and substance abuse programs pursuant to Chapter 122C of the General
Statutes."
SECTION 7.(a) G.S. 58‑51‑25 reads as rewritten:
"§ 58‑51‑25. Policy coverage to continue as to mentally
retarded or physically handicapped children; coverage of children with
an intellectual or physical disability; or dependent students on medically
necessary leave of absence.
(a) An individual or group
accident and health insurance policy, hospital service plan policy, or medical
service plan policy that provides that coverage of a dependent child shall
terminate upon attainment of the limiting age for dependent children specified
in the policy or contract, shall also provide in substance that attainment of such
the limiting age shall not operate or terminate the coverage of such
the child while the child is and continues to be (i) incapable of
self‑sustaining employment by reason of mental retardation or physical
handicap; an intellectual or physical disability; and (ii) chiefly
dependent upon the policyholder or subscriber for support and maintenance:
Provided, maintenance. The proof of such incapacity and dependency is
shall be furnished to the insurer, hospital service plan
corporation, or medical service plan corporation by the policyholder or
subscriber within 31 days of the child's attainment of the limiting age and
subsequently as may be required by the insurer or corporation, but not more
frequently than annually after the child's attainment of the limiting age.
(b) All health benefit plans, as defined in G.S. 58‑3‑167, that provide that coverage of a dependent child shall terminate upon a change in enrollment of the child in a postsecondary educational institution shall provide for the continued eligibility of the dependent child during a medically necessary leave of absence from the postsecondary educational institution in accordance with all applicable requirements of Public Law 110‑381, known as Michelle's Law."
SECTION 7.(b) G.S. 58‑51‑35 reads as rewritten:
"§ 58‑51‑35.
Insurers and others to afford coverage to mentally retarded and physically
handicapped children.children with an intellectual or physical
disability.
(a) No insurance company
licensed in this State pursuant to the provisions of Articles 1 through 64 of
this Chapter and no corporation governed by the provisions of Articles 65 and
66 of this Chapter shall refuse to issue or deliver any individual or group accident
and health insurance policy of or hospital or medical service
plan policy in this State which it is currently issuing for delivery in this
State and which affords benefits or coverage for minor children of the
applicant, by reason of the physical handicap or mental retardation an
intellectual or physical disability of any minor children of the applicant;
nor shall any such policy issued and delivered in this State carry a higher
premium rate or charge or restrict or exclude coverage or benefits by reason of
said mental retardation or physical handicap. Provided, however, such policy
the intellectual or physical disability. The policy, however, may
exclude benefits, otherwise payable for disability, hospitalization, or medical
or other therapeutic expense directly and solely attributable to such mental
retardation or such physical handicap.the intellectual or physical
disability.
…
(c) The provisions of this
section shall apply to corporations governed by the provisions of
Articles 65 and 66 of this Chapter."
SECTION 7.(c) G.S. 58‑51‑40 reads as rewritten:
"§ 58‑51‑40. Insurers and others to afford coverage for active medical treatment in tax‑supported institutions.
(a) Whenever any policy of
insurance governed by Articles 1 through 64 of this Chapter provides for
benefits for charges of hospitals or physicians, the policy shall provide for
payments of benefits for charges made for medical care rendered in or by duly
licensed State tax‑supported institutions, including charges for medical
care of cerebral palsy, other orthopedic and crippling disabilities, mental and
nervous diseases or disorders, mental retardation, intellectual
disability, alcoholism and drug or chemical dependency, and respiratory
illness, on a basis no less favorable than the basis which would apply had the
medical care been rendered in or by any other public or private institution or
provider. The term "State tax‑supported institutions" shall
include includes community mental health centers and other health
clinics which are certified as Medicaid providers.
…
(c) The restrictions and
regulations of this section shall do not apply to any policy
which is individually underwritten or provided for a specific individual and
the members of his the individual's family as a nongroup policy but
shall apply to any group policy of insurance governed by Articles 1
through 64 of this Chapter."
SECTION 7.(d) G.S. 58‑65‑2 reads as rewritten:
"§ 58‑65‑2. Other laws applicable to service corporations.
The following provisions of this Chapter are applicable to service corporations that are subject to this Article:
…
G.S. 58‑51‑17 Portability for accident and health insurance.
G.S. 58‑51‑25. Policy
coverage to continue as to mentally retarded or physically handicapped
children.children with an intellectual or physical disability or
dependent students on medically necessary leave of absence.
G.S. 58‑51‑95(h),(i),(j). Approval by Commissioner of forms, classification and rates; hearings; exceptions."
SECTION 7.(e) G.S. 58‑65‑65 reads as rewritten:
"§ 58‑65‑65. Coverage for active medical treatment in tax‑supported institutions.
(a) No hospital or medical
or dental service plan, contract contract, or certificate
governed by the provisions of this Article and Article 66 of this
Chapter shall be delivered, issued, executed executed, or renewed
in this State, or approved for issuance or renewal in this State by the
Commissioner of Insurance, after May 21, 1975, State, unless such
plan, contract or certificate it provides for the payment of
benefits for charges made for medical care rendered in or by duly
licensed state State tax‑supported institutions, including
charges for medical care of cerebral palsy, other orthopedic and crippling
disabilities, mental and nervous diseases and disorders, mental retardation, alcoholism
and drug or chemical dependency, and respiratory illness, institutions on
a basis no less favorable than the basis which that would apply
had the medical care been rendered in or by any other public or private
institution or provider. The term "state "State tax‑supported
institutions" shall include includes community mental health
centers and other health clinics which are certified as Medicaid providers.
(b) No plan, contract, or certificate
shall exclude payment for charges of a duly licensed state State tax‑supported
institution because of its being a specialty facility for one particular type
of illness nor because it does not have an operating room and related equipment
for the performance of surgery, but it is not required that benefits be payable
for domiciliary or custodial care, rehabilitation, training, schooling, or
occupational therapy.
(c) The restrictions and
requirements of this This section shall does not apply
to any plan, contract, or certificate which that is individually
underwritten or provided for a specific individual and the members of his the
individual's family as a nongroup policy, but shall apply only to those
hospital service and medical service subscriber plans, contracts, or
certificates delivered, issued for delivery, reissued or renewed in this State
on and after July 1, 1975.policy."
SECTION 7.(f) G.S. 58‑67‑171 reads as rewritten:
"§ 58‑67‑171. Other laws applicable to HMOs.
The following provisions of this Chapter are applicable to HMOs that are subject to this Article:
…
G.S. 58‑51‑17 Portability for accident and health insurance.
G.S. 58‑51‑25. Policy
coverage to continue as to mentally retarded or physically handicapped
children.children with an intellectual or physical disability or
dependent students on medically necessary leave of absence.
G.S. 58‑51‑35. Insurers
and others to afford coverage to mentally retarded and physically
handicapped children.children with an intellectual or physical
disability.
G.S. 58‑51‑45. Policies to be issued to any person possessing the sickle‑cell trait or hemoglobin C trait."
SECTION 8. G.S. 110‑20.1 reads as rewritten:
"§ 110‑20.1. Exhibition of certain children prohibited.
(a) Except to the extent
otherwise provided in subsection (d) of this section, it is unlawful to exhibit
publicly for any purpose, or to exhibit privately for the purpose of
entertainment, or solely or primarily for the satisfaction of the curiosity of
any observer, any child under the age of 18 years who is mentally ill or
mentally retarded has a mental illness or intellectual disability or
who presents the appearance of having any deformity or unnatural physical
formation or development, whether or not the exhibiting of the child is in
return for a monetary or other consideration.
(b) It is unlawful to
employ, use, have custody of, or in any way be associated with any child
described in subsection (a) of this section for the purpose of an
exhibition forbidden therein, prohibited by subsection (a) of this
section, or for one who has the care, custody custody, or
control of the child as a parent, relative, guardian, employer employer,
or otherwise, to neglect or refuse to restrain the child from participating
in the exhibition.
(c) It is unlawful to
procure or arrange for, or participate in procuring or arranging for, anything
made unlawful by subsections (a) and (b).(b) of this section.
(d) This section does not
apply to the transmission of an image by television by a duly licensed
television station, or to any exhibition by a federal, State, county county,
or municipal government, or political subdivision or agency thereof, or to
any exhibition by any corporation, unincorporated association, or other
organization organized and operated exclusively for religious, charitable, or
educational purposes, no part of the net earnings of which inures to the
benefit of any private shareholder or individual.
(e) Any violation of this
Article shall be is a Class 3 misdemeanor. Each day during which
any violation of this Article continues after notice to the violator, from any
county social services director, to cease and desist from any violation of this
section shall constitute is a separate and distinct offense. Any
act or omission forbidden prohibited by this Article shall, Article
is, with respect to each child described therein constitute child,
a separate and distinct offense."
SECTION 9. G.S. 115C‑106.3 reads as rewritten:
"§ 115C‑106.3. Definitions.
The following definitions apply in this Article:
(1) "Child with a
disability" means a Child with a disability. – A child with at
least one disability who because of that disability requires special education
and related services.
(2) "Disability"
includes mental retardation; Disability. – Includes intellectual
disability; hearing impairment, including deafness; speech or language
impairment; visual impairment, including blindness; serious emotional
disturbance; orthopedic impairment; autism; traumatic brain injury; other
health impairments, specific learning disability, or other disability as may be
required to be included under IDEA. For a child ages three through seven, this
term also includes developmental delay.
(3) "Dispute"
means a Dispute. – A disagreement between the parties.
(3a) "Educational
services" means all Educational services. – All of the
following:
a. The necessary instructional hours per week in the form and format as determined by the child's IEP team and consistent with federal and State law. The instruction shall be delivered by an appropriately qualified teacher to the extent required by federal and State law, which requires a free appropriate public education and the opportunity for a sound basic education.
b. Related services included in the child's IEP.
c. Behavior intervention services to the extent required by federal law.
(4) "Free appropriate
public education" means special Free appropriate public education.
– Special education and related services that:that satisfy all of
the following:
a. Are provided at public
expense, under public supervision and direction, and without charge;charge.
b. Meet the standards of the
State Board;Board.
c. Include an appropriate
preschool, elementary school, or secondary school education in the State;
andState.
d. Are provided in conformity with an individualized education program.
(5) "Hearing
officers" include Hearing officers. – Include administrative
law judges as defined in G.S. 150B‑2(1) and hearing review officers.
(5a) "Homebound
instruction" means educational Homebound instruction. – Educational
services provided to a student outside the school setting.
(6) "IDEA" means
IDEA. – The Individuals with Disabilities Education Improvement Act,
20 U.S.C. § 1400, et seq., (2004), as amended, and federal regulations adopted
under this act.
(7) "IEP Team"
is as IEP Team. – As defined in IDEA.
(8) "Individualized
education program" or "IEP" means a Individualized
education program (IEP). – A written statement for each child with a
disability that is developed, reviewed, implemented, and revised consistent
with IDEA and State law.
(9) "Infant or
toddler with a disability" is as Infant or toddler with a
disability. – As defined in IDEA.
(10) "Least restrictive
environment" means to Least restrictive environment. – To the
maximum extent appropriate, children with disabilities are educated with
children who are not disabled, do not have disabilities, and
special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only when the
nature of the disability is such that education in regular classes with the use
of supplementary aids and services cannot be achieved satisfactorily.
(11) "Local educational
agency" includes Local educational agency. – Includes any of
the following that provides special education and related services to children
with disabilities:
a. A local school administrative unit.
b. A charter school.
c. The Department of Health and Human Services.
d. The Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
e. Repealed by Session Laws 2017‑186, s. 2(yyyy), effective December 1, 2017.
f. Any other State agency or unit of local government.
(12) "Mediation"
means an Mediation. – An informal process conducted by a mediator
with the objective of helping parties voluntarily settle their dispute.
(13) "Mediator"
means a Mediator. – A neutral person who acts to encourage and
facilitate a resolution of a dispute.
(14) "Parent"
means:Parent. – Any of the following:
a. A natural, adoptive, or
foster parent;parent.
b. A guardian, but not the
State if the child is a ward of the State;State.
c. An individual acting in
the place of a natural or adoptive parent, including a grandparent, stepparent,
or other relative, and with whom the child lives;lives.
d. An individual who is
legally responsible for the child's welfare; orwelfare.
e. A surrogate if one is appointed under G.S. 115C‑109.2.
(15) "Party" or
"Parties" means the Party or parties. – The local
educational agency or the parents, or both.
(16) "Petition"
means a Petition. – A request for a due process hearing as provided
for under IDEA.
(17) "Preschool child
with a disability" means a Preschool child with a disability. – A child
with one or more disabilities who meets all of the following criteria:
a. Has reached his or her third birthday and whose parents have requested services from the public schools.
b. Is not eligible to enroll in public kindergarten.
c. Because of the disability, needs special education and related services in order to prepare the child to benefit from the educational programs provided by the public schools, beginning with kindergarten.
(18) "Related
services" is as Related services. – As defined in IDEA.
(18a) "Residence" or
"reside" means the Residence. – The place where a child
with a disability is entitled to be enrolled in a North Carolina public school
under G.S. 115C‑366 except for the age requirements of that section.
This definition shall does not apply to children with
disabilities who were (i) enrolled in a particular local school administrative
unit on the last day of school for the 2006‑2007 school year, or (ii)
enrolled in and attending a school in a particular local school administrative
unit on August 1, 2007, for the 2007‑2008 school year for as long as they
live within and are continuously enrolled in that local school administrative
unit. "Reside" means to have a residence as defined in this
subdivision.
(19) "Rules"
includes Rules. – Includes rules, policies, and procedures. Rules as
defined in G.S. 150B‑2(8a) shall be adopted in accordance with
Article 2A of Chapter 150B of the General Statutes.
(20) "Special
education" means specially Special education. – Specially designed
instruction, at no cost to parents, to meet the unique needs of a child with a
disability. The term includes instruction in physical education and instruction
conducted in a classroom, the home, a hospital or institution, and other
settings."
SECTION 10.(a) G.S. 130A‑399 reads as rewritten:
"§ 130A‑399. Postmortem examination of inmates of certain public institutions.
Upon the death of any inmate of an
institution maintained by the State, or a city, county county, or
other political subdivision of the State, for the care of the sick, mentally
ill or mentally retarded, individuals with a sickness, mental illness,
or intellectual disability, the administrator of the institution in which
the death occurs is empowered to may authorize a postmortem
examination of the deceased person. The examination shall be of a scope and nature
necessary to promote knowledge of the human organism and its disorders."
SECTION 10.(b) G.S. 130A‑415 reads as rewritten:
"§ 130A‑415. Unclaimed bodies; bodies claimed by the
Lifeguardianship Council of the Association for Retarded Citizens of North
Carolina; The Arc of North Carolina, Inc.; disposition.
(a) Any person, including
officers, employees employees, and agents of the State or of any
unit of local government in the State, undertakers doing business within the
State, hospitals, nursing homes homes, or other institutions,
having physical possession of a dead body shall make reasonable efforts to
contact relatives of the deceased or other persons who may wish to claim the
body for final disposition. If the body remains unclaimed for final disposition
for 10 days, the person having possession shall notify the Commission of
Anatomy. Upon request of the Commission of Anatomy, the person having
possession shall deliver the dead body to the Commission of Anatomy at a time
and place specified by the Commission of Anatomy or shall permit the Commission
of Anatomy to take and remove the body.
(b) All dead bodies not
claimed for final disposition within 10 days of the decedent's death may be
received and delivered by the Commission of Anatomy pursuant to the authority
contained in G.S. 130A‑33.30 and this Part and in accordance with
the rules of the Commission of Anatomy. Upon receipt of a body by the
Commission of Anatomy all interests in and rights to the unclaimed dead body
shall vest in the Commission of Anatomy. The recipient to which the Commission
of Anatomy delivers the body shall pay all expenses for the embalming and
delivery of the body, and for body and the reasonable expenses
arising from efforts to notify relatives or others.
…
(e) Due caution shall be taken to shield the unclaimed body from public view.
(f) Notwithstanding anything
contained in this section, an unclaimed body shall does not
mean a dead body for which the deceased has made a gift pursuant to Part 3A of
this Article.
(g) Nothing in this Part shall
require requires the officers, employees employees, or
agents of a county to notify the Commission of Anatomy regarding the bodies of
minors who were in the custody of the county at the time of death and whose
final disposition will be arranged by the county. In the absence of
notification, the expenses of the final disposition shall be a charge upon the
county having custody.
(h) The provisions of
this Part shall This Part does not apply to bodies within the
jurisdiction of the medical examiner under G.S. 130A‑383 or G.S. 130A‑384.
(i) In addition to the
other duties of the Commission of Anatomy, when the Commission of Anatomy is
notified by the Lifeguardianship Council of the Association of Retarded
Citizens of North Carolina, Inc., The Arc of North Carolina, Inc., that
the Council intends to claim a body, the Commission shall release the body to
the Council. The Lifeguardianship Council shall notify the Commission of Anatomy
within 24 hours after death of its intent to claim a body for burial or other
humane and caring disposition."
SECTION 11. G.S. 143‑282 reads as rewritten:
"§ 143‑282. Duties of Commission; recommendations.
This Commission shall study the
problems relating to the care of the aged with especial special reference
to those failing mentally and shall inquire into the methods of meeting and
handling this problem in other states. It shall make a similar study of the
problem of the care of the feebleminded, individuals with an
intellectual disability, with especial special attention to the
those requiring custodial care of intellectually handicapped
persons not teachable or trainable. care. It shall make a study of
the problems relating to the care of the physically handicapped individuals
with a physical disability with a special reference to those whose physical
handicap disability renders them incapable of self‑support
and shall inquire into the methods of meeting and handling this problem in
other states.
It shall make recommendations to the Governor offering plans for dealing with the problem of the care needed for this group, and means of clarification of the responsibility of the State and respective counties."
SECTION 12. G.S. 159‑40 reads as rewritten:
"§ 159‑40. Special regulations pertaining to nonprofit corporations receiving public funds.
(a) If a city or county grants or appropriates one thousand dollars ($1,000) or more in any fiscal year to a nonprofit corporation or organization, the city or county may require that the nonprofit corporation or organization have an audit performed for the fiscal year in which the funds are received and may require that the nonprofit corporation or organization file a copy of the audit report with the city or county.
(b) Any nonprofit
corporation or organization which receives one thousand dollars ($1,000) or
more in State funds shall, at the request of the State Auditor, submit to an
audit by the office of the State Auditor for the fiscal year in which such the
funds were received.
(c) Every nonprofit corporation or organization which has an audit performed pursuant to this section shall file a copy of the audit report with the office of the State Auditor.
(d) The provisions of this
section shall This section does not apply to sheltered workshops
or to Adult Development Activity Programs or to private residential facilities
for the mentally retarded and developmentally disabled or to Developmental Day
Care Centers or to any the following:
(1) Sheltered workshops.
(2) Adult development activity programs.
(3) Private residential facilities for individuals with an intellectual or developmental disability.
(4) Developmental day care centers.
(5) Any nonprofit corporation or organization
whose sole use of public funds is to provide hospital services or operate as a
volunteer fire department, rescue squad, or ambulance squad, or which
operates as a junior college, college college, or university duly
accredited by the southern regional accrediting association.
(e) Repealed by Session Laws 1979, c. 905."
SECTION 13. G.S. 168‑21 reads as rewritten:
"§ 168‑21. Definitions.
As used in this Article:The following definitions apply in this Article:
(1) "Family care
home" means a Family care home. – A home with support and
supervisory personnel that provides room and board, personal care care,
and habilitation services in a family environment for not more than six
resident persons with disabilities.
(2) "Person with
disabilities" means a Person with disabilities. – A person with
a temporary or permanent physical, emotional, or mental disability including
but not limited to mental retardation, an intellectual disability, cerebral
palsy, epilepsy, autism, hearing and sight impairments, emotional disturbances
and orthopedic impairments but not including mentally ill persons who are
dangerous to others as defined in G.S. 122C‑3(11)b."
SECTION 14. G.S. 168A‑3 reads as rewritten:
"§ 168A‑3. Definitions.
As used in this Chapter, unless
the context otherwise requires:The
following definitions apply in this Chapter:
(1) "Covered
governmental entity" means any Covered governmental entity. – Any State
department, institution, agency, or any political subdivision of the State or
any person that contracts with a State department, institution, agency, or
political subdivision of the State for the delivery of public services,
including, but not limited to, education, health, social services, recreation,
and rehabilitation.
(1a) "Disabling
condition" means any Disabling condition. – Any condition or
characteristic that renders a person a person with a disability.
(1b) "Discriminatory
practice" means any Discriminatory practice. – Any practice
prohibited by this Chapter.
(2) "Employer"
means any Employer. – Any person employing 15 or more full‑time
employees within the State, but excluding a person whose only employees are
hired to work as domestic or farm workers at that person's home or farm.
(3) "Employment
agency" means a Employment agency. – A person regularly
undertaking with or without compensation to procure for employees opportunities
to work for an employer and includes an agent of such a person.
(4) Recodified as G.S. 168A‑3(7a).
(4a) "Information
technology" has the same meaning as Information technology. – As
defined in G.S. 143B‑1320. The term also specifically includes
information transaction machines.
(5) Recodified as G.S. 168A‑3(1).
(6) "Labor
organization" means an Labor organization. – An organization of
any kind, an agency or employee representation committee, a group association,
or a plan, in which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours, or other terms or conditions of
employment.
(7) "Person"
includes any Person. – Any individual, partnership, association,
corporation, labor organization, legal representative, trustee, receiver, and
the State and its departments, agencies, and political subdivisions.
(7a) "Person with a
disability" means any Person with a disability. – Any person
who (i) has a physical or mental impairment which substantially limits one or
more major life activities; (ii) has a record of such an impairment; or (iii)
is regarded as having such an impairment. As used in this subdivision, the
term:The following definitions apply in this subdivision:
a. "Physical or
mental impairment" means (i) any Physical or mental impairment. –
Any of the following:
1. Any physiological disorder or abnormal
condition, cosmetic disfigurement, or anatomical loss, caused by bodily injury,
birth defect defect, or illness, affecting a body system,
including, but not limited to, neurological; musculoskeletal; special sense
organs; respiratory, including speech organs; cardiovascular; reproductive;
digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (ii)
any mental disorder, such as mental retardation, organic brain syndrome, mental
illness, specific learning disabilities, and other developmental disabilities,
but (iii) endocrine.
2. Any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.
"Physical
or mental impairment" excludes (A)
(i) sexual preferences; (B) (ii) active alcoholism or
drug addiction or abuse; and (C) (iii) any disorder, condition
condition, or disfigurement which is temporary in nature, lasting
six months or fewer, and leaving no residual impairment. A disorder, condition,
or disfigurement that is episodic or in remission is a physical or mental
impairment if it would substantially limit a major life activity when active.
b. "Major life
activities" means functions, Major life activities. – Functions, including,
but not limited to, caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, eating, sleeping, lifting, bending, standing,
breathing, learning, reading, concentrating, thinking, communicating, and
working. A major life activity also includes the operation of a major bodily
function, including, but not limited to, functions of the immune system, normal
cell growth, and digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.
c. "Has a record of
such an impairment" means has Has a record of such an impairment. –
Has a history of, or has been misclassified as having, a mental or physical
impairment that substantially limits major life activities.
d. "Is regarded as
having an impairment" means (i) has Is regarded as having an
impairment. – Any of the following:
1. Has a physical or mental impairment that
does not substantially limit major life activities but that is treated as
constituting such a limitation; (ii) has limitation.
2. Has a physical or mental impairment that
substantially limits major life activities because of the attitudes of others;
or (iii) has others.
3. Has none of the impairments defined in paragraph
sub‑subdivision a. of this subdivision but is treated as
having such an impairment.
The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as (i) medication, medical supplies, equipment, or appliances, low‑vision devices, which do not include ordinary eyeglasses or contact lenses, prosthetics, including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (ii) use of assistive technology; (iii) reasonable accommodations or auxiliary aids or services; or (iv) learned behavioral or adaptive neurological modifications.
(8) "Place of public
accommodations" includes, Place of public accommodations. –
Includes, but is not limited to, any place, facility, store, other
establishment, hotel, or motel, which supplies goods or services on the
premises to the public or which solicits or accepts the patronage or trade of
any person.
(9) "Qualified person
with a disability" means:Qualified person with a disability. – All of
the following:
a. With regard to employment,
a person with a disability who can satisfactorily perform the duties of the job
in question, with or without reasonable accommodation, (i) provided that the
person with a disability shall not be held to standards of performance
different from other employees similarly employed, and (ii) further provided
that the disabling condition does not create an unreasonable risk to the safety
or health of the person with a disability, other employees, the employer's
customers, or the public;public.
b. With regard to places of
public accommodation a person with a disability who can benefit from the goods
or services provided by the place of public accommodation; andaccommodation.
c. With regard to public services and public transportation a person with a disability who meets prerequisites for participation that are uniformly applied to all participants, such as income or residence, and that do not have the effect of discriminating against persons with a disability.
(10) "Reasonable
accommodations" means:Reasonable accommodations. – All of the
following:
a. With regard to
employment, making reasonable physical changes in the workplace, including, but
not limited to, making facilities accessible, modifying equipment and providing
mechanical aids to assist in operating equipment, or making reasonable changes
in the duties of the job in question that would accommodate the known disabling
conditions of the person with a disability seeking the job in question by
enabling him or her to satisfactorily perform the duties of that job;
provided that "reasonable job. "Reasonable accommodation"
does not require that an employer:employer do any of the following:
1. Hire one or more
employees, other than the person with a disability, for the purpose, in whole
or in part, of enabling the person with a disability to be employed; oremployed.
2. Reassign duties of the
job in question to other employees without assigning to the employee with a
disability duties that would compensate for those reassigned; orreassigned.
3. Reassign duties of the
job in question to one or more other employees where such the reassignment
would increase the skill, effort effort, or responsibility
required of such the other employee or employees from that
required prior to the change in duties; orduties.
4. Alter, modify, change change,
or deviate from bona fide seniority policies or practices; orpractices.
5. Provide accommodations of
a personal nature, including, but not limited to, eyeglasses, hearing aids, or
prostheses, except under the same terms and conditions as such items are
provided to the employer's employees generally; orgenerally.
6. Repealed by Session Laws 2002‑163, s. 2, effective January 1, 2003.
7. Make any changes that would impose on the employer an undue hardship.
b. With regard to a place of
public accommodations and a covered governmental entity, making reasonable
efforts to accommodate the disabling conditions of a person with a disability,
including, but not limited to, making facilities accessible to and usable by
persons with a disability, redesigning equipment, providing auxiliary aids and
services needed to make aurally and visually delivered materials available, as
needed, to individuals with hearing or sight impairments, providing mechanical
aids or other assistance, or using alternative accessible locations,
provided that reasonable locations. Reasonable accommodations does
do not require efforts which would impose an undue hardship on the
entity involved.
(11) "Undue
hardship" means a Undue hardship. – A significant difficulty or
expense. The following factors shall be considered in determining whether an
accommodation would impose an undue hardship:
…."
SECTION 15. This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.
SECTION 16. Sections 1 and 2 become effective October 1, 2018, and apply to proceedings commenced on or after that date. Sections 3 and 5 become effective December 1, 2018, and apply to hearings or trials commenced on or after that date. Sections 4 and 8 become effective December 1, 2018, and apply to offenses committed on or after that date. The remainder of this act is effective when it becomes law.
