Public Assistance and Social Services Appeals from County Agency Decisions

Subject:

Requested By: Phillip J. Kirk, Jr. Secretary Department of Human Resources

Question: In what respect, if any, are appeals pursuant to G.S. § 108A-79 from public assistance or social services benefit decisions of county boards of social services, county departments of social services, or boards of county commissioners subject to the provisions of Article 3, Chapter 150B, North Carolina General Statutes?

Conclusion: Such appeals are subject to the procedural provisions of Article 3, Chapter 150B to the extent that those provisions are not inconsistent with applicable Federal statutes or regulations or with the provisions of G.S. § 108A-79.

The Administrative Procedure Act (APA), by its terms, does not apply to counties, cities, towns, villages, other municipal corporations or political subdivisions of the State, or any agencies of such subdivisions. G.S. § 150B-2(1). The provisions of G.S. § 108A-79, on the other hand, expressly furnish a procedure for appealing "the decision of the county board of social services, county department of social services, or the board of county commissioners granting, denying, terminating, or modifying" public assistance or social services benefits. G.S. §§ 108A-79(a), 108A-73. All such local agency decisions are appealable to the Department of Human Resources for a de novo administrative hearing.G.S. § 108A-79(i).

Subsections (i) and (j) of the statute detail with considerable specificity the appointment of a hearing officer, the requisites of notice, the rights of the parties and procedures to be followed at hearing, the manner, content, and time for preparation of the agency decision, and the method of its service upon the parties. Subsection (i) further provides that the de novo hearing "shall be conducted" by the Departmental hearing officer "according to applicable federal law and regulations and Article 3, Chapter 150A [now Chapter 150B], of the General Statutes of North Carolina. . . ."

We construe the reference to "applicable federal law and regulations" to be another indication of legislative concern, frequently expressed in Chapter 108A, that the State and county agencies shall proceed in conformity with Federal program requirements, so that Federal financial participation in the public assistance and social services programs will not be jeopardized. See, e.g., G.S. §§ 108A-25(a) and (c), 108A-56, 108A-71. This construction is reinforced by G.S. § 108A-79(1), which provides with regard to appeal and hearing rights:

"In the event of conflict between federal law or regulations and State law or regulations, the federal law or regulations shall control."

Given the detailed substantive provisions of G.S. § 108A-79, designed specifically to apply to appeals of county agency decisions, and the fact that APA, by its terms, does not apply to such appeals, we do not believe that the Legislature, by reference to the APA, intended to substitute the Act’s substantive requirements for those of G.S. § 108A-79. We construe the citation to the APA simply to indicate a legislative intent to incorporate the powers of hearing officers and the hearing procedures detailed in the Act into G.S. § 108A-79(i) by reference.

We conclude, therefore, that appeals by applicants and recipients of public assistance or social services from adverse decisions of county agencies or boards are governed by the substantive provisions and procedural requirements of G.S. § 108A-79, including procedural provisions of the APA consistent with the statute, to the extent that substance and procedure are not in conflict with applicable Federal law and regulations.

LACY H. THORNBURG Attorney General

Henry T. Rosser Assistant Attorney General