DSS REVIEW OF PROCEDURES/CRIMINAL HISTORY/OAH. (NEW)

View NCGA Bill Details2019-2020 Session
House Bill 612 (Public) Filed Thursday, April 4, 2019
AN ACT TO REQUIRE THE SOCIAL SERVICES COMMISSION OF THE DIVISION OF SOCIAL SERVICES TO REVIEW POLICIES, GUIDELINES, AND OTHER INTERPRETIVE STATEMENTS AND SUBMIT A REPORT TO THE OFFICE OF ADMINISTRATIVE HEARINGS; CLARIFY THE AUTHORITY OF BOARDS TO REQUIRE CRIMINAL HISTORY RECORDS; AND UPDATE THE PROCESS FOR LEGISLATIVE REVIEW OF RULES.
Intro. by Stevens, Riddell, White.

Status: Re-ref Com On Rules, Calendar, and Operations of the House (House action) (Jul 7 2020)

SOG comments (3):

Long title change

Senate committee substitute to the 1st edition changed the long title.  Original title was AN ACT TO REQUIRE THE SOCIAL SERVICES COMMISSION OF THE DIVISION OF SOCIAL SERVICES TO REVIEW EXISTING PUBLICATIONS, POLICIES, AND PROCEDURES; SUBMIT A REPORT WITH ITS FINDINGS TO THE OFFICE OF ADMINISTRATIVE HEARINGS; AND SUBMIT FOR ADOPTION UNDER THE RULE-MAKING PROCESS THOSE PUBLICATIONS, POLICIES, AND PROCEDURES IDENTIFIED AS SATISFYING THE DEFINITION OF A RULE UNDER G.S. 150B-2(8A).

Long title change

Conference report to the 2nd edition changed the long title. Previous long title was AN ACT TO REQUIRE THE SOCIAL SERVICES COMMISSION OF THE DIVISION OF SOCIAL SERVICES TO REVIEW POLICIES, GUIDELINES, AND OTHER INTERPRETIVE STATEMENTS AND SUBMIT A REPORT TO THE OFFICE OF ADMINISTRATIVE HEARINGS; CLARIFY THE AUTHORITY OF BOARDS TO REQUIRE CRIMINAL HISTORY RECORDS; AND PROHIBIT AGENCIES FROM IMPLEMENTING OR ENFORCING POLICIES, GUIDELINES, OR OTHER INTERPRETIVE STATEMENTS THAT SHOULD BE ADOPTED AS RULES UNDER THE ADMINISTRATIVE PROCEDURE ACT.

Long title change

Conference report #2 to the 2nd edition changed the long title. Previous long title was AN ACT TO REQUIRE THE SOCIAL SERVICES COMMISSION OF THE DIVISION OF SOCIAL SERVICES TO REVIEW POLICIES, GUIDELINES, AND OTHER INTERPRETIVE STATEMENTS AND SUBMIT A REPORT TO THE OFFICE OF ADMINISTRATIVE HEARINGS; CLARIFY THE AUTHORITY OF BOARDS TO REQUIRE CRIMINAL HISTORY RECORDS; PROHIBIT AGENCIES FROM IMPLEMENTING OR ENFORCING POLICIES, GUIDELINES, OR OTHER INTERPRETIVE STATEMENTS THAT SHOULD BE ADOPTED AS RULES UNDER THE ADMINISTRATIVE PROCEDURE ACT; AND UPDATE THE PROCESS FOR LEGISLATIVE REVIEW OF RULES.

Bill History:

H 612

Bill Summaries:

  • Summary date: Jul 2 2020 - More information

    The Governor vetoed the act on 07/02/20. The Governor's objections and veto message are available here: https://webservices.ncleg.gov/ViewBillDocument/2019/8623/0/H612-BD-NBC-8610


  • Summary date: Jun 25 2020 - More information

    Conference report #2 makes the following changes to the 2nd edition.

    Modifies Section 6 to remove prior amendment to GS 150B-23(a) and instead amends GS 150B-21.3 as follows. Amends subsection (b) to reference the new GS 150B-21.3B(b) which establishes procedures for legislative review of rules; deletes subsection (b1) which provided for delayed effective dates of rules; deletes subsection (b2) which established the process by which a person may object to a rule; deletes subsection (c) which authorized the Governor to make a rule effective by executive order; deletes subsection (d) which defined a legislative day and legislative day of adjournment; and amends subsection (f) to include approval of a rule by the Codifier of Rules, if applicable, for certain permanent rules.

    Modifies Section 7 to remove prior provisions amending GS 150B-33(b), GS 150B-1(d)(9), and GS 108A-54.1B, and repealing GS 150B-1(d)(20), and instead enacts a new GS 150B-23.1B establishing procedures for legislative rules as follows. 

    Subsection (a) defines a legislative day as a day on which either house of the General Assembly is in regular session. 

    Subsection (b) establishes procedures for filing objections to the adoption of permanent rules. A person may object to adoption of a permanent rule by filing written comments with the agency and, if the objection is not resolved, by filing written objections to the Rules Review Commission clearly requesting review by the General Assembly in accordance with instructions posted on the Commission’s Web site pursuant to GS 150B-19.1(c)(4). If the Commission receives written objections from 10 or more persons no later than 5:00 P.M. on the day following the day the Commission approves a rule, the rule becomes effective under the delayed effective date requirements of subsection (e).  Requires the Commission to notify the agency that the rule is subject to legislative rule.  

    Subsection (c) authorizes an agency to adopt as a temporary rule a permanent rule that is subject to legislative review if the rule would have met the criteria of GS 150B-21.1(a) at the time the notice of the rule was published in the North Carolina Register.  If the rule subject to legislative review is among a group of related rules adopted by the agency at the same time, the agency may make the other rules effective under the delayed effective date requirements of subsection (e) by giving written notice to the Commission. 

    Subsection (d) authorizes any member of the General Assembly to introduce a bill during the first 30 legislative days of the regular session specifically disapproving a rule approved by the Commission or that has not yet become effective or has been made effective by executive order pursuant to subsection (f). Requires the bill to refer to the rule by its Administrative Code citation and state that the rule is disapproved. 

    Subsection (e) provides for delayed effective date of rules subject to legislative review.  Rules approved by the Commission on or before December 31 become effective on the 31st legislative day of the regular session in the following calendar year unless a bill disapproving the rule is introduced before that legislative day.  If a bill disapproving the rule is timely introduced, the rule becomes effective on the earlier of the day an unfavorable action is taken on the bill or August 1 of that year. Provides that a permanent rule not approved by the Commission or disapproved by a bill becoming law does not become effective. 

    Subsection (f) authorizes the Governor to make a permanent rule approved by the Commission effective by Executive Order subject to the delayed effective date requirements of subsection (e) where the Governor finds that the rule is necessary to protect public health, safety, or welfare.  Requires the Codifier of Rules to reflect this action when entering the rule in the Administrative Code.  A rule made effective by executive order remains in effect unless disapproved by the General Assembly in a bill that becomes law before August 1 of the year following the year in which the executive order is issued, and requires the Codifier of Rules to note in the Administrative Code that the rule was not disapproved by the General Assembly.

    New Section 8 makes Sections 6 and 7 effective January 1, 2021 and the remainder of the act effective when it becomes law.

    Makes conforming changes to the act’s long title.

    Conference report #1 was withdrawn 6/25/2020.


  • Summary date: Jun 24 2020 - More information

    Conference report makes the following changes to the 2nd edition.

    Section 7

    Amends proposed changes to GS 150B-33(b)(11) and enacts GS 150B-33(c) to prohibit an administrative law judge from ordering the assessment of reasonable attorneys’ fees and witnesses’ fees in contested cases decided under Article 2 of Chapter 150B upon finding that a State agency has sought to implement or enforce a policy, guideline, or other interpretative statement related to the State Medicaid or NC Health Choice program in violation of GS 150B-18 (prohibiting a state agency from implementing or enforcing any policy, guideline, or other interpretative statement that has not been adopted in accordance with Article 2 of Chapter 150B). 

    Deletes Section 7A of the 2nd edition of the act, pertaining to rule making by the Department of Health and Human Services. Instead, provides the following.

    Section 8

    Amends GS 150B-21.3(b) to provide that a permanent rule adopted by the Rules Review Commission (Commission) becomes effective on the first day of the month the rule is approved by the Commission, unless the Commission receives written objections in accordance with new GS 150B-21.3B (proposed by Section 9 of the act) or the agency that adopted the rule specifies a later effective date. Makes conforming repeals of GS 150B-21.3(b1), (b2), (c), and (d). Authorizes the Codifier of Rules to approve permanent rules that do not require notice or hearing pursuant to subsection (f), as an alternative to the Rules Review Commission, as applicable. 

    Section 9

    Enacts new GS 150B-21.3B to amend and restate repealed provisions of GS 150B-21.3 governing delayed effective dates of administrative rules. Proposed GS 150B-21.3B(b) allows any person who objects to adoption of a permanent rule to submit written comments to the agency promulgating the rule and, if such objection is not resolved prior to adoption of the rule, to submit written objections to the Commission requesting review by the General Assembly. If the Commission receives objections requesting review by the General Assembly from 10 or more persons no later than 5:00 pm of the day following the day the Commission approves the rule, the rule will become effective as provided in GS 150B-21.3B(e).

    Enacts GS 150B-21.3B(c) (mirroring language in existing GS 150B-21.3(b2)) to provide that if a rule is subject to review by the General Assembly pursuant to new GS 150B-21.3B(b), the agency may adopt the rule as a temporary rule if the rule meets the criteria listed in GS 150B-21.1(a) (listing procedure for adoption of temporary rules) at the time the notice of text for the permanent rule was published in the NC Register.

    Enacts GS 150B-21.3B(e) to provide that a rule subject to review by the General Assembly that is approved by the Commission on or before December 31 of a given calendar year becomes effective on the thirty-first day of the regular session of the following calendar year unless a bill that specifically disapproves the rule is introduced in either house of the General Assembly before the thirty-first legislative day of that session (pursuant to GS 150B-21.3B(d)). If a bill that specifically disapproves the rule is introduced in either house of the General Assembly before the thirty-first legislative day of that session, the rule becomes effective on the earlier of (i) the day an unfavorable final action is taken on the bill or (ii) August 1 of the calendar year following the calendar year the Commission approved the rule. Similar to existing law (GS 150B-21.3(d)(1)), proposed GS 150B-21.3B(a) defines a “legislative day” as a day on which either house of the General Assembly convenes in regular session.  Under existing law (GS 150B-21.3(b1)), a rule to which objections from 10 or more persons were received by the Commission becomes effective on the earlier of the thirty-first legislative day or the day of adjournment of the next regular session of the General Assembly that begins at least 25 days after the date the Commission approved the rule. Existing law (GS 150B-21.3(d)(2) (3)) defines day of adjournment as (i) for a regular session held in an odd-numbered year, the day the General Assembly adjourns by joint resolution or by operation of law for more than 30 days and (ii) for a regular session held in an even-numbered year, the day the General Assembly adjourns sine die.

    Enacts GS 150B-21.3B(d) to provide that, notwithstanding any rule of the General Assembly, any member of the General Assembly may introduce a bill during the first 30 legislative days of the regular session of any given calendar year to specifically disapprove a rule that has been approved by the Commission and that has not become effective or has become effective by executive order under proposed GS 150B-21.3B(f). A bill specifically disapproves a rule if it contains a provision that refers to the rule by the appropriate NC Administrative Code citation and states that the rule is disapproved. 

    Enacts GS 150B-21.3D(f) (mirroring language in existing GS 150B-21.3(c)) to provide that the Governor may, by executive order, make effective a permanent rule approved by the Commission but whose effective date has been delayed in accordance with new GS 150B-21.3B(e). A rule made effective by executive order pursuant to new GS 150B-21.3D(f) remains in effect unless it is specifically disapproved by the General Assembly in a bill enacted into law before August 1 of the calendar year following the calendar year the executive order is issued (existing GS 150B-21.3(c) provides that such rule remains in effect unless it is specifically disapproved by the General Assembly in a bill enacted into law on or before the day of adjournment of a regular session of the General Assembly that begins at least 25 days after the date the executive order is issued).

    Adds Section 10, which provides Sections 8 and 9 of the act are effective January 1, 2021.

    Makes conforming changes to title of the act.


  • Summary date: Jun 3 2020 - More information

    Senate committee substitute makes the following changes to the 1st edition.

    Requires the North Carolina Division of Social Services (Division), by and through the Social Services Commission (Commission), to prepare and submit for review to the Office of Administrative Hearings (OAH) a comprehensive report of all of its policies, guidelines, and other interpretive statements (was, its existing publications, policies, and procedures) by May 31, 2021 (was, May 31, 2020). Makes conforming changes throughout to refer to "policies, guidelines, and other interpretive statements," rather than "publications, policies, and procedures." Specifies that the report must include such policies, guidelines, or other interpretive statements that the Division or any of its subdivisions has sought to implement or enforce that may directly or substantially affect the procedural or substantive rights or duties of persons not employed by the Division or any of its subdivisions (was, such that are used by the Division or any of its subdivisions that may directly or substantially affect the described rights and duties). No longer requires identification of policies and procedures used by the Division that satisfy the definition of a rule. Requires the report to include an explanation for any policies, guidelines, and other interpretive statements not adopted as a rule the Commission believes are not in violation of statutory rule-making requirements (similar to previous language). More specifically excludes any emergency, temporary, or permanent rule adopted by the Division in accordance with statutory rule-making requirements (previously, excluded existing rules of the Division or its subdivisions published in the NCAC). 

    Now requires the Commission and OAH to jointly review the report (rather than the findings of the report) to identify any policies, guidelines, or other interpretive statements in violation of the statutory rule-making requirements (rather than identifying rules that are subject to the statutory rule-making requirements). Makes conforming changes to the procedures set out for referral to the Rules Review Commission in the event of disagreement between the Commission and OAH. Adds that the Commission can file an action for declaratory judgement if the Commission disagrees with the determination of the Rules Review Commission upon referral.

    Regarding interim rules, renders interim rules authorized by the statute void on July 1, 2022, rather than July 1, 2021, if the Commission has failed to adopt the interim rule as a permanent rule consistent with statutory rule-making procedures by that date. No longer provides for failure to publish interim rules proposed to be adopted as permanent rules in the Register. Provides for a reviewing court to extend the interim rule period pending review of a declaratory judgement action filed by the Commission. Deems any policy, guideline, or other interpretive statement issued by the Division after the date the act becomes law void one year after issuance, with authority granted to the DHHS Secretary to re-issue the policy, guideline, or other interpretive statement for an additional one-year period.

    Amends GS 93B-8.1 to expand the defined term applicant to include a person who makes application for licensure from a State agency licensing board. Adds new subsection (c1) to specify that the statute does not authorize an occupational licensing board or a State agency licensing board to require an applicant to consent to a criminal history record check or use of fingerprinting or other identifying information required by the State or National Repositories of Criminal Histories as a condition of granting or renewing a license.

    Expands GS 150B-23 to require a contested case petition to state facts tending to establish that the named agency has sought to implement or enforce against the petitioner a policy, guideline, or other interpretive statement in violation of GS 150B-18, if appropriate.

    Amends GS 150B-33 to authorize an administrative law judge (ALJ) to determine that a policy, guideline, or other interpretive statement that a State agency has sought to implement or enforce is unenforceable due to violation of statutory rule-making procedures. Allows for the ALJ to order refunds of collections pursuant to the policy, guideline, or other interpretive statement, and stay the determination of unenforceability to allow the agency time to properly adopt the policy, guideline, or other interpretive statement as rule. Further, allows the ALJ to order the assessment of reasonable attorneys' fees and witnesses' fees against the agency where the ALJ finds the agency has sought to implement or enforce a policy, guideline, or other interpretive statement in violation of statutory rule-making procedures.

    Amends 150B-1 to exempt DHHS from statutory rule-making procedures in adopting rules relating to the administration or operation of the State Medicaid or NC Health Choice program (was, in adopting new or amending existing medical coverage policies for the State Medicaid and NC Health Choice programs).

    Repeals GS 150B-1(d)(20), which exempted DHHS from statutory rule-making procedures in implementing, operating, or overseeing new 1915(b)/(c) Medicaid Waiver programs or amendments to existing 1915(b)/(c) Medicaid Waiver programs.

    Enacts GS 108A-54.1B(e) to establish the following procedures for rules adopted by DHHS, except those regarding changes to medical coverage under Medicaid and NC Health Choice as provided in GS 108A-54.2. Requires DHHS to publish the proposed rule on its website 30 days prior to adoption of a new or amended rule; to provide copies of proposed rules to persons upon request; and to accept comments on the proposed new or amended rule for 30 days following publication. Waives the notice requirement if immediate adoption is necessary in order to fully effectuate the purpose of the rule.

    Changes the act's titles.


  • Summary date: Apr 4 2019 - More information

    Requires the North Carolina Division of Social Services (Division), by and through the Social Services Commission (Commission), to prepare and submit for review to the Office of Administrative Hearings (OAH) a comprehensive report of its existing publications, policies, and procedures, by May 31, 2020. Specifies the types of publications, policies, and procedures to be included. Requires identifying any publications, policies, and procedures used by the Division that satisfies the definition of a rule and requires an explanation by the Commission for any publications, policies, and procedures it believes do not satisfy the definition of a rule and are not subject to the rule-making provisions in GS Chapter 150B.

    Requires the Commission and OAH to jointly review the findings of its report to identify any publications, policies, and procedures which are rules and subject to the rule-making provisions; requires that if there is disagreement between the Commission and the OAH during the joint review, then OAH must refer the publication, policy, or procedure in disagreement to the Rules Review Commission (RRC) for a determination.

    Deems any existing publications, policies, and procedures identified through joint review or determined by the RRC as satisfying the definition of a rule to be interim rules so long as they do not conflict with any provisions of the General Statutes. Such interim rules become null and void January 1, 2021, if the Commission has failed to publish a notice of text in the North Carolina Register to adopt the interim rule as a permanent rule. Any interim rule authorized by this section becomes null and void July 1, 2021, if the Commission has failed to adopt that interim rule as a permanent rule by that date. 


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