North Carolina Department of Justice
North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: Grady L. Balentine, Jr. Health & Public Assistance Tele: (919) 716-6840 Fax: (919) 716-6758

April 9, 1999

Kevin M. FitzGerald Director, Division of Social Services

N.C. Dept. of Health and Human Services 325 N. Salisbury Street Raleigh, NC 27603

Re: Advisory Opinion: Appeal Process for Electing Counties Under the Work First Program; G.S. 108A-27.3 and 108A-79

Dear Mr. FitzGerald:

You have asked whether the State level appeal hearing prescribed by G.S. 108A-79 applies to Electing Counties under the Work First Program. Specifically, you wish to know whether an Electing County can utilize the hearing officers provided by the State to Standard Counties and have them resolve Electing County appeals pursuant to G.S. 108A-79. The answer is no.

In response to federal welfare reform initiatives, the legislature replaced the public assistance program entitled Aid To Families With Dependent Children with a program of temporary public assistance entitled Work First. Under Work First, individual counties may participate in a Standard Work First Program established, developed, supervised, and monitored by the Department of Health and Human Services (the “Department”). In the alternative, counties may apply to become Electing Counties. In Electing Counties the board of county commissioners is responsible for the development, administration, and implementation of the Work First Program in that county. G.S. 108A-27(f). Moreover, the board of county commissioners in an Electing County is responsible for establishing eligibility criteria for recipients, prescribing the method of calculating benefits for recipients, and determining those persons eligible for the Work First Program. G.S. 108A-27.3.

Within the Work First statutes the legislature specifically stated that the Standard Work First Program is a program of temporary public assistance for the purpose of an appeal under G.S. 108A-79. G.S. 108A-27.15. The legislature provided no such language for Electing Counties. On the contrary, Electing Counties were directed to develop and implement an appeals process for their Work First Program that substantially complies with the two level appeal process outlined in G.S. 108A-79. G.S. 108A-27.3(a)(14).

Kevin M. FitzGerald Page 2 April 9, 1999

G.S. 108A-79 establishes a right of appeal for applicants and recipients of public assistance from decisions of county boards of social services, county departments of social services, or boards of county commissioners granting, denying, terminating, or modifying assistance, or the failure of any of the above to act within a reasonable time under the rules and regulations of the Social Services Commission or the Department. This statute establishes a two tier appeal process. The second tier consists of a State level hearing before a departmental hearing officer. The hearing officer prepares a proposal for decision. The final decision is made by a designated Department official based on, or in conformity with, pertinent State and federal law and regulations. An applicant or recipient who is dissatisfied with the final decision may petition for judicial review in superior court.

Hearing officers are creatures of the statutes. As such, their authority to act is governed by the enabling legislation; they may act only as the legislature has prescribed. (See State ex rel. Com’r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262 (1983)). By hearing appeals involving the Standard Work First Program, departmental hearing officers are performing a departmental function assigned to them by G.S. 108A-27.15 and 108A-79.

Electing Counties have opted out of the Standard Work First Program; they have developed and implemented their own individualized Work First Programs. As such, Electing Counties have also opted out of the appeals process established by G.S. 108A-79. The legislature directed Electing Counties to develop and implement their own appeals process. Electing Counties have no authority to develop a program that utilizes departmental hearing officers to conduct their appeals. The legislature provides the only authority under which departmental hearing officers can act. An Electing County cannot unilaterally expand this authority to authorize departmental hearing officers to perform the county function of hearing appeals for an Electing County program based on county rules and standards.

Very truly yours,

Ann Reed Senior Deputy Attorney General

Grady L. Balentine, Jr. Assistant Attorney General