June 14, 1996
C. Robin Britt, Sr., Secretary Department of Human Resources 101 Blair Drive Post Office Box 29526 Raleigh, NC 27626-0526
RE: Advisory Opinion: Implementation of Federal Waivers for "Work First Program"; Necessity for Rulemaking Under the Administrative Procedure Act for the "Work First Program"; 42
U.S.C. § 1315, N.C.G.S. Chapter 150B
Dear Secretary Britt:
You have asked for an Advisory Opinion from the Attorney General concerning the implementation of the federal waiver for the Work First Program. The questions you have asked are as follows:
1. Does the waiver of federal regulations conditioned on the State’s agreement with the requirements specified in the waiver give those requirements the force of federal regulations? 2. If the answer to question 1, above, is "yes," may the Department of Human Resources implement the waiver without adopting rules under the state Administrative Procedure Act, G.S. 150B?
The answer to both questions is yes.
The Work First Program is a demonstration project permitted by the Social Security Act, specifically, 42 U.S.C. § 1315. Waivers for the Work First Program were approved by the U.S. Department of Health and Human Services (HHS) in February 1996. Approval of the waivers by HHS has the legal effect of substituting the approved waiver provisions for existing federal regulations. 42 U.S.C. § 1315. With regard to the matters they address the waiver provisions become the federal regulations for North Carolina.
Rule making is necessary when there is a need for an agency regulation, standard, or statement of general applicability that implements or interprets the waivers. G.S. § 150B-2(8a). The "Waiver Terms and Conditions" agreed upon between HHS and the North Carolina Division of Social Services (NCDSS) have been carefully examined. The regulations being put into effect by the waivers are sufficiently clear and complete without the need for administrative rule making. Nevertheless, NCDSS can always request that appropriate rules be enacted by the Social Services Commission pursuant to G.S. § 143B-153 in the event experience with the Program indicates that rule making is desirable.
Ann Reed Senior Deputy Attorney General
Robert J. Blum
Special Deputy Attorney General