January 25, 1996
Senator Henry E. McKoy 5300 Applegate Court Raleigh, NC 27609
RE: Advisory Opinion: G.S. § 108A-50; § 150B-21.1-21.4
Dear Senator McKoy:
You have asked for an Attorney General Opinion as to whether G.S. § 108A-50 applies to all adopted special need children regardless of the agency or means through which the child was adopted, thereby making all such children eligible for adoption assistance payments. If the answer is yes, you have asked whether the Social Services Commission can enact a temporary rule expanding eligibility accordingly.
Although the intent of the Legislature may have been to assist all special need children regardless of the agency or means through which the child was adopted, the language of the statute does not say this. The statute specifically directs the Social Services Commission to determine rules of eligibility. This it has done through 10 N.C.A.C. 41H.0400 et seq. In short, the Commission has determined that a condition of eligibility for both cash and vendor payments is that the child was "the placement responsibility of a North Carolina agency authorized to place children for adoption." 10 N.C.A.C. 41H.0406(a)(2) and .0407(a)(2).
Since the Legislature has placed the authority to determine rules of eligibility with the Social Services Commission, the Commission has the authority to change the rules of eligibility. Therefore, the Commission could modify the rules of eligibility. Moreover, you can ask to appear before the Commission at its next scheduled meeting (March 6th) and present your point of view on the matter.
It is questionable whether your petition would meet the requirements for a temporary rather than a permanent rule. The basis for adopting a temporary rule is set out in G.S. § 150B-21.1(a). A temporary rule must be based on one or more of the following:
- (1)
- A serious and unforeseen threat to the public health, safety, or welfare.
- (2)
- The effective date of a recent act of the General Assembly or the United States Congress.
- (3)
- A recent change in federal or State budgetary policy.
- (4)
- A federal regulation.
- (5)
- A court order.
- (6)
- The need for the rule to become effective the same date as the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities Plan.
G.S. § 150B-21.1(a). Please note further that all temporary rules are required to lead to permanent rule changes. For your convenience a copy of 10 N.C.A.C. 25.0101, which sets forth the requirements for submitting a petition, is attached.
Should the Commission grant your petition, it appears obvious that an expansion of eligibility for adopted special need children will result in a fiscal impact, which will trigger G.S. § 150B21.4(a). It states:
(a) State Funds – Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would require the expenditure or distribution of funds subject to the Executive Budget Act, Article 1 of Chapter 143, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Director of the Budget and obtain certification from the Director that the funds that would be required by the proposed rule change are available. The fiscal note must state the amount of funds that would be expended or distributed as a result of the proposed rule change and explain how the amount was computed. The Director of the Budget must certify a proposed rule change if funds are available to cover the expenditure or distribution required by the proposed rule change.
Whether or not the Director of the Budget could certify a rule changing the eligibility requirements for assistance to adopted special need children is speculative.
In any event, even if Social Services Commission does approve your petition, it may be some time before it can achieve the desired result.
MICHAEL F. EASLEY Attorney General
Ann Reed
Senior Deputy Attorney General
Robert J. Blum Special Deputy Attorney General