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

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. Anyinterim 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

*H612-v-3*one year after it is issued; however, prior to that deadline, the Secretary of Health and Human
Services mayreissuethe policy, guideline,orother interpretivestatement for anadditionalperiod
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
bythe 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 dayof the month following the month the rule is approved bythe 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 dayan unfavorable final action is taken on the bill or the daythat 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

Page 2 House Bill 612-Ratifiedagency 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 byexecutive 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

House Bill 612-Ratified Page 3rule, 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 agencythat the rule is subject to review bythe 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 bysubmitting 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 specificallydisapprove 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."

Page 4 House Bill 612-Ratified 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 26 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

House Bill 612-Ratified Page 5