H612: DSS Review of Procedures/Criminal History/OAH. Latest Version

Session: 2019 - 2020





GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2019

 

HOUSE BILL 612

RATIFIED BILL

 

 

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.

 

The General Assembly of North Carolina enacts:

 

SECTION 1.  No later than May 31, 2021, the North Carolina Division of Social Services (Division), by and through the Division's Social Services Commission (Commission), shall prepare and submit for review to the Office of Administrative Hearings (OAH) a comprehensive report of all its policies, guidelines, and other interpretive statements. This includes all policies, guidelines, and 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. The report shall include an explanation for any policies, guidelines, and other interpretive statements not adopted as a rule the Commission believes are not in violation of G.S. 150B‑18. The report shall not include any emergency, temporary, or permanent rules adopted by the Division in accordance with Article 2A of Chapter 150B of the General Statutes.

SECTION 2.  Upon submission of its report to the OAH, the Commission shall jointly review the report with the OAH to identify any policies, guidelines, and other interpretive statements that are in violation of G.S. 150B‑18. If there is disagreement between the Commission and the OAH regarding any policies, guidelines, or other interpretive statements identified in the report as being in violation of G.S. 150B‑18, then the OAH shall refer the policy, guideline, or other interpretive statement in disagreement to the Rules Review Commission (RRC). Upon referral from the OAH, the RRC shall review the policy, guideline, or other interpretive statement in disagreement, and make a determination as to whether it is in violation of G.S. 150B‑18. If the Commission disagrees with a determination by the RRC as to whether any policy, guideline, or other interpretive statement is in violation of G.S. 150B‑18, the Commission may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes.

SECTION 3.  To ensure that administration of the Division shall continue without interruption, any policies, guidelines, or other interpretive statements identified through joint review by the Commission and the OAH, or determined by the RRC in Section 2 as being in violation of G.S. 150B‑18, shall be deemed interim rules so long as they do not conflict with any provisions of the General Statutes. Any interim rule authorized by this section shall become void July 1, 2022, if the Commission has failed to adopt that interim rule as a permanent rule by that date in accordance with Article 2A of Chapter 150B of the General Statutes. A reviewing court may extend the interim rule period pending the outcome of its review, if the Commission has filed an action for declaratory judgment under Section 2. Any policy, guideline, or other interpretive statement issued by the Division after this act becomes effective shall become void one year after it is issued; however, prior to that deadline, the Secretary of Health and Human Services may reissue the policy, guideline, or other interpretive statement for an additional period of one year.

SECTION 4.  G.S. 93B‑8.1(a)(1) reads as rewritten:

(1)      Applicant. – A person who makes application for licensure from an occupational licensing board.board or a State agency licensing board.

SECTION 5.  G.S. 93B‑8.1 is amended by adding a new subsection to read:

(c1)    Nothing in this section or in G.S. 93B‑1 shall be construed as authorizing 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 fingerprints or other identifying information required by the State or National Repositories of Criminal Histories as a condition of granting or renewing a license.

SECTION 6.  G.S. 150B‑21.3 reads as rewritten:

§ 150B‑21.3.  Effective date of rules.

(a)        Temporary and Emergency Rules. – A temporary rule or an emergency rule becomes effective on the date the Codifier of Rules enters the rule in the North Carolina Administrative Code.

(b)        Permanent Rule. – A permanent rule approved by the Commission becomes effective on the first day of the month following the month the rule is approved by the Commission, unless the Commission received written objections to the rule in accordance with subsection (b2) of this section, or unless subsection (b) of G.S. 150B‑21.3B or the agency that adopted the rule specifies a later effective date.

(b1)      Delayed Effective Dates. – Except as provided in G.S. 14‑4.1, if the Commission received written objections to the rule in accordance with subsection (b2) of this section, the rule 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, unless a different effective date applies under this section. 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 either the day an unfavorable final action is taken on the bill or the day that session of the General Assembly adjourns without ratifying a bill that specifically disapproves the rule. If the agency adopting the rule specifies a later effective date than the date that would otherwise apply under this subsection, the later date applies. A permanent rule that is not approved by the Commission or that is specifically disapproved by a bill enacted into law before it becomes effective does not become effective.

A bill specifically disapproves a rule if it contains a provision that refers to the rule by appropriate North Carolina Administrative Code citation and states that the rule is disapproved. Notwithstanding any rule of either house of the General Assembly, any member of the General Assembly may introduce a bill during the first 30 legislative days of any regular session to disapprove a rule that has been approved by the Commission and that either has not become effective or has become effective by executive order under subsection (c) of this section.

(b2)      Objection. – Any person who objects to the adoption of a permanent rule may submit written comments to the agency. If the objection is not resolved prior to adoption of the rule, a person may submit written objections to the Commission. If the Commission receives written objections from 10 or more persons, no later than 5:00 P.M. of the day following the day the Commission approves the rule, clearly requesting review by the legislature in accordance with instructions posted on the agency's Web site pursuant to G.S. 150B‑19.1(c)(4), and the Commission approves the rule, the rule will become effective as provided in subsection (b1) of this section. The Commission shall notify the agency that the rule is subject to legislative disapproval on the day following the day it receives 10 or more written objections. When the requirements of this subsection have been met and a rule is subject to legislative disapproval, the agency may adopt the rule as a temporary rule if the rule would have met the criteria listed in G.S. 150B‑21.1(a) at the time the notice of text for the permanent rule was published in the North Carolina Register. If the Commission receives objections from 10 or more persons clearly requesting review by the legislature, and the rule objected to is one of a group of related rules adopted by the agency at the same time, the agency that adopted the rule may cause any of the other rules in the group to become effective as provided in subsection (b1) of this section by submitting a written statement to that effect to the Commission before the other rules become effective.

(c)        Executive Order Exception. – The Governor may, by executive order, make effective a permanent rule that has been approved by the Commission but the effective date of which has been delayed in accordance with subsection (b1) of this section upon finding that it is necessary that the rule become effective in order to protect public health, safety, or welfare. A rule made effective by executive order becomes effective on the date the order is issued or at a later date specified in the order. When the Codifier of Rules enters in the North Carolina Administrative Code a rule made effective by executive order, the entry must reflect this action.

A rule that is made effective by executive order 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 the regular session of the General Assembly that begins at least 25 days after the date the executive order is issued. A rule that is made effective by executive order and that is specifically disapproved by a bill enacted into law is repealed as of the date specified in the bill. If a rule that is made effective by executive order is not specifically disapproved by a bill enacted into law within the time set by this subsection, the Codifier of Rules must note this in the North Carolina Administrative Code.

(c1)      Fees. – Notwithstanding any other provision of this section, a rule that establishes a new fee or increases an existing fee shall not become effective until the agency has complied with the requirements of G.S. 12‑3.1.

(d)       Legislative Day and Day of Adjournment. – As used in this section:

(1)        A legislative day is a day on which either house of the General Assembly convenes in regular session.

(2)        The day of adjournment of a regular session held in an odd‑numbered year is the day the General Assembly adjourns by joint resolution or by operation of law for more than 30 days.

(3)        The day of adjournment of a regular session held in an even‑numbered year is the day the General Assembly adjourns sine die.

(e)        OSHA Standard. – A permanent rule concerning an occupational safety and health standard that is adopted by the Occupational Safety and Health Division of the Department of Labor and is identical to a federal regulation promulgated by the Secretary of the United States Department of Labor becomes effective on the date the Division delivers the rule to the Codifier of Rules, unless the Division specifies a later effective date. If the Division specifies a later effective date, the rule becomes effective on that date.

(f)        Technical Change. – A permanent rule for which no notice or hearing is required under G.S. 150B‑21.5(a)(1) through (a)(5) or G.S. 150B‑21.5(b) becomes effective on the first day of the month following the month the rule is approved by the Rules Review Commission.Commission or Codifier of Rules, as applicable.

SECTION 7.  Article 2A of Chapter 150B of the General Statutes is amended by adding a new section to read:

§ 150B‑21.3B.  Legislative review of rules.

(a)        Definitions. – As used in this section, legislative day means a day on which either house of the General Assembly convenes in regular session.

(b)        Objection to Rule. – Any person who objects to the adoption of a permanent rule may submit written comments to the agency. If the objection is not resolved prior to adoption of the rule, a person may submit written objections to the Commission requesting review of the rule by the General Assembly. The written objections must clearly request review by the General Assembly in accordance with instructions posted on the agency's Web site pursuant to G.S. 150B‑19.1(c)(4). If the Commission receives such written objections from 10 or more persons no later than 5:00 P.M. of the day following the day the Commission approves the rule, the rule will become effective as provided in subsection (e) of this section. The Commission shall notify the agency that the rule is subject to review by the General Assembly on the day following the day it receives 10 or more written objections.

(c)        Agency Action. – If a rule is subject to review by the General Assembly pursuant to this section, the agency may adopt the rule as a temporary rule if the rule would have met the criteria listed in G.S. 150B‑21.1(a) at the time the notice of text for the permanent rule was published in the North Carolina Register. If a rule that is subject to review by the General Assembly is one of a group of related rules adopted by the agency at the same time, the agency may cause any of the other rules in the group to become effective as provided in subsection (e) of this section by submitting a written statement to that effect to the Commission before the other rules become effective.

(d)       Disapproval Bills. – Notwithstanding any rule of either house 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 subsection (f) of this section. A bill specifically disapproves a rule if it contains a provision that refers to the rule by the appropriate North Carolina Administrative Code citation and states that the rule is disapproved.

(e)        Delayed Effective Dates. – A rule that is subject to review by the General Assembly pursuant to this section shall become effective as provided in this subsection. A rule that is approved by the Commission on or before December 31 of a given calendar year becomes effective on the thirty‑first legislative 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. 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 the day an unfavorable final action is taken on the bill or August 1 of the calendar year following the calendar year the Commission approved the rule. If the agency adopting the rule specifies a later effective date than the date that would otherwise apply under this subsection, the later date applies. A permanent rule that is not approved by the Commission or that is specifically disapproved by a bill enacted into law before it becomes effective does not become effective.

(f)        Executive Order Exception. – The Governor may, by executive order, make effective a permanent rule that has been approved by the Commission but the effective date of which has been delayed in accordance with subsection (e) of this section upon finding that it is necessary that the rule become effective in order to protect public health, safety, or welfare. A rule made effective by executive order becomes effective on the date the order is issued or at a later date specified in the order. When the Codifier of Rules enters in the North Carolina Administrative Code a rule made effective by executive order, the entry must reflect this action. A rule that is made effective by executive order 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. A rule that is made effective by executive order and that is specifically disapproved by a bill enacted into law is repealed as of the date specified in the bill. If a rule that is made effective by executive order is not specifically disapproved by a bill enacted into law within the time set by this subsection, the Codifier of Rules must note this in the North Carolina Administrative Code.

SECTION 8.  Sections 6 and 7 of this act become effective January 1, 2021. The remainder of this act is effective when it becomes law.

In the General Assembly read three times and ratified this the 26th day of June, 2020.

 

 

                                                                    s/  Philip E. Berger

                                                                         President Pro Tempore of the Senate

 

 

                                                                    s/  Tim Moore

                                                                         Speaker of the House of Representatives

 

 

 

 

                                                                        _____________________________________

                                                                         Roy Cooper

                                                                         Governor

 

 

Approved __________.m. this ______________ day of ___________________, 2020