North Carolina § 150B-18 - Scope and effect.

§ 150B-18. Scope and effect.

This Article applies to an agency's exercise of its authority to adopt a rule. A rule is not valid unless it is adopted in substantial compliance with this Article. An agency shall not seek to implement or enforce against any person a policy, guideline, or other interpretive statement that meets the definition of a rule contained in G.S. 150B-2(8a) if the policy, guideline, or other interpretive statement has not been adopted as a rule in accordance with this Article. History (1991, c. 418, s. 1; 2011-398, s. 1; 2012-187, s. 2.) Editor's Note. - Session Laws 1991, ch. 418 repealed former Articles 2 and 5 and enacted in their place a new Article 2A. Where appropriate, the historical citations to sections in the repealed Articles have been added to corresponding sections in new Article 2A. Session Laws 2004-124, s. 22A.1.(a), provides: "All personnel and equipment presently assigned to the Rules Review Commission for the purpose of carrying out Article 2A of Chapter 150B of the General Statutes, are transferred to the Office of Administrative Hearings by a Type I transfer as defined by G.S. 143A-6(a). The Chief Administrative Law Judge shall be responsible for the hiring of the Director and other staff of the Rules Review Commission." Session Laws 2011-145, s. 6.3(b), provides: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes." Session Laws 2013-360, s. 9.3(d), provides: "For the 2013-2014 fiscal year only and notwithstanding Article 2A of Chapter 150B of the General Statutes, the State Board of Education shall be exempt from rulemaking in establishing a schedule of fees for teacher licensure and administrative changes pursuant to G.S. 115C-296(a2), as amended by this section." Session Laws 2013-360, s. 13.6, provides: "Notwithstanding 02 NCAC 20B.0104, the Board of Agriculture may set admission fees for the 2013 State Fair without complying with the requirements of Article 2A of Chapter 150B of the General Statutes. When this act becomes law, the Board shall post the 2013 admission fee schedule on its Web site and provide notice of the fee schedule, along with a citation to this section, to all persons named on the mailing list maintained pursuant to G.S. 150B-21.2(d)." Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'" Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium." Session Laws 2013-360, s. 38.5, is a severability clause. Session Laws 2021-62, s. 3.5A(a)-(h), provides: "(a) When a county disengages from one area authority and realigns with another area authority under G.S. 122C-115, a portion of the risk reserve and other funds of the area authority from which the county is disengaging shall be transferred to the area authority with which the county is realigning. The amount of risk reserve and other funds to be transferred shall be determined by the Department of Health and Human Services (DHHS) in accordance with a formula or formulas developed in accordance with this section. "(b) Any formula developed by DHHS under this section shall consider the stability of both the area authority from which the county is disengaging and the area authority with which the county is realigning. The formula shall support the ability for each area authority to carry out its responsibilities under State law and shall support the successful operation of BH IDD tailored plans under G.S. 108D-60. The formula shall assure that the area authority from which the county is disengaging retains sufficient funds to pay any outstanding liabilities to health care providers, staff-related expenses, and other liabilities. "(c) Upon the Secretary's approval of a disengagement under G.S. 122C-115(a3), the area authority from which the county is disengaging and the area authority with which the county is realigning shall provide DHHS with all financial information requested by DHHS that is necessary to determine the amount of funds to be transferred using the formula or formulas developed under this section. "(d) Prior to finalizing any formula developed under this section, DHHS shall post the proposed formula on its website and provide notice of the proposed formula to all area authorities, the Joint Legislative Oversight Committee on Health and Human Services, the Joint Legislative Oversight Committee on Medicaid and NC Health Choice, and the Fiscal Research Division. DHHS shall accept public comment on the proposed formula. DHHS shall post the final version of the formula on its website no later than August 1, 2021. "(e) No later than October 15, 2021, DHHS shall report to the Joint Legislative Oversight Committee on Health and Human Services, the Joint Legislative Oversight Committee on Medicaid and NC Health Choice, and the Fiscal Research Division on any formulas developed under this section and any funds transferred during the previous quarter. Beginning January 15, 2022, and quarterly thereafter through April 15, 2026, DHHS shall report to the Joint Legislative Oversight Committee on Health and Human Services, the Joint Legislative Oversight Committee on Medicaid and NC Health Choice, and the Fiscal Research Division on any funds transferred as a result of disengagements during the previous quarter. A final quarterly report shall be due June 30, 2026, for the quarter ending on that date. "(f) Notwithstanding any provision of law to the contrary, the development and application of the formula or formulas under this section shall be exempt from the rulemaking requirements under Article 2A of Chapter 150B of the General Statutes and the contested case provisions of Chapter 150B of the General Statutes. "(g) This section is effective when it becomes law and applies to disengagements approved by DHHS with an effective date on or after September 1, 2021. "(h) This section shall expire on June 30, 2026.” Effect of Amendments. - Session Laws 2011-398, s. 1, effective July 25, 2011, added the last sentence. Legal Periodicals. - For article, "Advisory Rulings by Administrative Agencies: Their Benefits and Dangers," see 2 Campbell L. Rev. 1 (1980). For survey of 1980 administrative law, see 59 N.C.L. Rev. 1017 (1981). For article discussing limitations on ad hoc adjudicatory rulemaking by an administrative agency, see 61 N.C.L. Rev. 67 (1982). For note, "The Forty-Two Hundred Dollar Question: 'May State Agencies Have Discretion in Setting Civil Penalties Under the North Carolina Constitution?'," see 68 N.C. L. Rev. 1035 (1990). For article, "Wind Over North Carolina Waters: The State's Preparedness to Address Offshore and Coastal Water-Based Wind Energy Projects," see 87 N.C.L. Rev. 1819 (2009).