When a North Carolina county becomes an 'Electing County' under the Work First welfare reform program and runs its own program, can the county still use the state hearing officers (under G.S. 108A-79) to hear appeals from people whose benefits the county denied?

Plain-English summary

The director of North Carolina's Division of Social Services asked whether a Work First Electing County could send benefit appeals to the state hearing officers who hear Standard Work First appeals. The Attorney General answered no. An Electing County must develop and implement its own appeals process, and it cannot assign its appeals to departmental hearing officers.

The distinction comes from the statutes the opinion discusses. Under the Standard Work First Program, the Department of Health and Human Services establishes and supervises the program. G.S. 108A-27.15 expressly treats that program as temporary public assistance for appeals under G.S. 108A-79. That appeal statute provides two levels of review, with a departmental hearing officer at the state level and a final decision by a designated Department official.

In an Electing County, the county commissioners develop and administer the local Work First program and set its eligibility and benefit rules. G.S. 108A-27.3(a)(14) directs the county to create an appeals process that substantially complies with the two-level process in G.S. 108A-79. It does not assign Electing County appeals to the state's hearing officers. The opinion says those officers can perform only duties authorized by statute, and a county cannot expand their authority on its own.

For a county setting up an appeal process, the opinion supplies the governing requirement of substantial compliance and rules out departmental hearing officers. It does not approve a particular county staffing arrangement or decide which other kinds of adjudicators a county may use.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

For a present-day appeal, check the current Work First statutes and the county's applicable appeal procedures.

Common questions

Q: Can an Electing County send its Work First appeals to the state hearing officers used by Standard Counties?
A: No. The opinion says state hearing officers have not been given authority to decide Electing County appeals, and the county cannot give them that authority itself.

Q: Must an Electing County offer an appeals process at all?
A: Yes. G.S. 108A-27.3(a)(14), as described in the opinion, directs it to develop and implement its own process that substantially complies with the two-level appeal process in G.S. 108A-79.

Q: Does the opinion approve contracted hearing officers or administrative law judges for county appeals?
A: It does not decide that. Its answer concerns departmental hearing officers. A county considering another arrangement would need to check the governing law and its own process against the substantial-compliance requirement.

Q: What does the state appeal process described in the opinion include?
A: Under G.S. 108A-79, the second level is a state hearing before a departmental hearing officer, who proposes a decision. A designated Department official makes the final decision, and a dissatisfied applicant or recipient may seek judicial review in superior court. The opinion uses that process as the statutory comparison for an Electing County's own appeal process.

Background and statutory framework

The opinion explains that North Carolina replaced Aid to Families With Dependent Children with Work First. Counties could participate in the Standard program supervised by the Department or apply to become Electing Counties with county commissioners responsible for their local programs. The legislature expressly connected Standard Work First appeals to G.S. 108A-79, while directing Electing Counties to develop their own substantially compliant processes. The opinion cites State ex rel. Com'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262 (1983), for the limit on the authority of statutory hearing officers.

Source

• Landing page: https://ncdoj.gov/opinions/appeal-process-for-electing-counties-under-the-work-first-program/

Citations

• N.C.G.S. § 108A-27(f)
• N.C.G.S. § 108A-27.3
• N.C.G.S. § 108A-27.3(a)(14)
• N.C.G.S. § 108A-27.15
• N.C.G.S. § 108A-79
• State ex rel. Com'r of Ins. v. North Carolina Rate Bureau, 61 N.C. App. 262 (1983)

Original opinion text

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).

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