Status Update

Throughout the fall and winter, School of Government colleagues and I met with several counties around the state to discuss all of the options available for organizing and governing local human services agencies, including the three new options available pursuant to the 2012 legislation (H 438) amending G.S. 153A-76 and G.S. 153A-77. For ease of discussion, we summarized the new options as follows:

Option One

• Organization: Under this option, the Board of County Commissioners (BOCC) does not change the overall organization of the agency or agencies involved.
• Governance: The BOCC directly assumes the powers and duties of one or more of the governing boards responsible for overseeing a local human services agency (i.e., local board of health and/or county board of social services).
• Counties electing: One county (Columbus) has elected this option. The BOCC abolished the county board of social services and assumed its powers and duties.

Option Two

• Organization: The BOCC creates a new agency called a consolidated human services agency (CHSA) by combining two or more county human services agencies. The term “human services” is undefined in the law.  Most of the discussion has focused on local health departments and departments of social services, but other departments and agencies may also be involved (such as local agencies focused on veterans, aging populations, or transportation). Note that local management entities (LMEs) involved with mental health, substance abuse, and developmental disabilities services may not be included in these new CHSAs (with the exception of the CHSA serving Mecklenburg county).
• Governance: The BOCC appoints a new consolidated human services board that serves as the CHSA’s governing board.
• Counties electing: Four counties have elected this option (Buncombe, Edgecombe, Union, and Wake). Wake elected this option many years ago when the option was available only to counties with large populations.

 Option Three

• Organization: The BOCC creates a new agency called a consolidated human services agency (CHSA) by combining two or more human services agencies.
• Governance: The BOCC becomes the governing board when it directly assumes the powers and duties of the consolidated human services board.
• Counties electing: Five counties have elected this option (Bladen, Brunswick, Mecklenburg, Montgomery, and Yadkin). Mecklenburg adopted Option One many years ago but transitioned to Option Three in 2008.

There are lots of nuances, exceptions and additional requirements related to each of these three options but I will not be able to  dig into those details now. In the coming months, we will be posting updated legal research and data online so please stay tuned. At this point, I simply wanted to use the description of these three new options to help explain the actions that counties have taken to date and to help with the process discussion below.

Process Considerations

Before a county elects one of the new options described above, there are some fairly legalistic process issues it should take into consideration. Please note that the list of considerations below is by no means exhaustive. These are just a few of the “hot topics” that have come up over the last few months.

• Public hearing:  If the board of county commissioners plans to serve as the governing board for the new CHSA, it must hold a public hearing.  The law requires “30 days’ notice of said public hearing given in a newspaper having general circulation in said county.” GS 153A-77(a).  The hearing requirement is triggered by the board of commissioners assuming the powers and duties of another board – which could be a local board of health, a county board of social services, or a consolidated human services board.

• State Personnel Act: As a general rule, employees of county departments of social services and local health departments are county employees but are subject to the State Personnel Act (SPA). When a county creates a new consolidated human services agency by electing either Option Two or Option Three, the employees of the new agency are removed from SPA coverage and placed under county personnel policies, unless the BOCC affirmatively elects to keep them under the SPA. If the employees are not kept under the SPA, the county personnel policies must comply with the federal merit personnel standards. (5 CFR Subpart F). Therefore, prior to taking an action that removes employees from the SPA, a county should conduct a careful review of its policies and make any changes that are necessary to comply with those standards.

• Advisory committees: If a BOCC decides to assume the powers and duties of either a local board of health or a consolidated human services board, it must appoint an advisory committee for public health. The committee membership must, at a minimum, meet the requirements for a county board of health found in G.S. 130A-35. It may include more members – for example, if a CHSA will include DSS, this advisory committee could have a broader scope and include people with social services expertise or interests.  The BOCC also has the option of appointing a separate advisory committee for social services or other issues, but that is not required by law (see G.S. 153A-77(a)). The law does not specify whether the public health advisory committee needs to be appointed before the BOCC assumes the powers and duties of the local board of health or consolidated human services board.

• Agency leadership:  If a BOCC is considering establishing a new CHSA, the county manager will have the authority to appoint the agency director but may do so only with the advice and consent of the governing board (which is the consolidated human services board under Option Two or the BOCC under Option Three). Because of the advice and consent requirement, there is a logical sequence that should be followed for appointing the director:
  1. Establish the CHSA.
  2. Either appoint a consolidated human services board or have the BOCC assume the powers and duties of the agency governing board.
  3. The county manager identifies a candidate for consolidated human services director and seeks the advice and consent of the agency governing board.
  4. If the agency governing board consents to the appointment, the county manager appoints the consolidated human services director.

In other words, it does not make sense to appoint the director before the agency has been created and the governing board is in place because the governing board must consent to the appointment.  These four steps may take place in the same meeting but the order of events matters under the law.

• Appointing the initial consolidated human services board: If a BOCC elects Option Two, it will need to appoint a new consolidated human services board. The law includes quite a few details about board composition, terms and term limits, and powers and duties. G.S. 153A-77(c). It also includes a specific process for appointing the initial board. The BOCC must first create a nominating committee that includes members of the current board of health and social services board, as well as (somewhat surprisingly) the board responsible for managing mental health, developmental disabilities, and substance abuse services in the county. The nominating committee then recommends members for the new consolidated human services board and the BOCC makes appointments based upon those recommendations. After the initial board is in place, the BOCC will fill vacancies based upon nominees presented by the members of the consolidated human services board.

As I mentioned earlier, this is not a comprehensive look at all of the factors or issues a county will need to consider before moving forward with any change. These are simply some of the quirky process steps associated with this area of the law. Please feel free to share other process tips in the comments field below.

The local human services landscape is evolving rapidly these days. We are doing our best to keep track of changes as they are happening so please let me or  Jill Moore know if your county is considering or has made a change pursuant to this new legislation.

North Carolina local governments have answered this question many different ways. In the last year, I have received quite a few inquiries on this topic as some local governments began revisiting their decisions, exploring new options, and making changes. I was curious about this increased call volume and thought it would be worth trying to pull together some baseline data about local government administration of animal control. The North Carolina Association of County Commissioners generously agreed to include some questions in its annual survey that focused on this issue.  The responses provide an interesting snapshot of a local government field that is tremendously diverse. They also raise an interesting legal question:  may a county health department delegate its rabies control responsibilities? Let’s first look at the survey responses and then we’ll dig into the legal issue.

Who is Responsible?

The survey asked the counties to identify the county agency responsible for animal control.  The responses are summarized below:

The variety is impressive. Based on the narrative provided with some of these responses, I don’t think this list tells the whole story. There may be definitional issues — the counties that responded “county manager’s office” may actually have a standalone department that reports to the county manager. There also may be shared responsibility – many of the counties that responded “Sheriff” actually appear to have a collaborative relationship in place with public health (see further discussion below). Also, this preliminary survey does not attempt to fully capture the complexities of some of the relationships between municipalities and counties.

While this data gives us a good starting point for looking at the landscape of animal control administration across the state, there are many more questions that need to be answered, particularly those related to the benefits and challenges of each approach to administration.

Delegating Rabies Control Duties

One of the legal questions this survey raises relates to delegation.  As I wrote about in an earlier blog post, state law imposes very few mandates on local governments related to animal control. It does, however, require health directors and other officials to perform certain functions with respect to rabies control. For example, “a person who owns or has possession of an animal which is suspected of having rabies shall immediately notify the local health director or county Animal Control Officer and shall securely confine the animal in a place designated by the local health director.” G.S. 130A-98. If you want to read up on all of the details of the rabies control law, see this bulletin.

Another state law, G.S. 130A-6, provides that “whenever authority is granted by this Chapter [i.e., the public health chapter of the General Statutes] upon a public official [e.g., a health director], the authority may be delegated to another person authorized by the public official.” Does this broad authority allow the health director to delegate mandated rabies responsibilities to a county official outside the health department? To an official in another entity? Is “delegation” limited to subordinates?

I was discussing this issue with an attorney in a county that was considering transferring animal control from a standalone department to the Sheriff. She questioned the wisdom of delegating such responsibilities because the Sheriff “is a legal entity, established by the state constitution and state statutes, separate and distinct from the Board of County Commissioners….” Little v. Smith, 114 F.Supp.2d 437 (W.D.N.C. 2000). She expressed some reservations about the health director’s ability to supervise or otherwise oversee the rabies control efforts by an autonomous entity or official.

In the survey, we asked counties that have animal control in departments or offices other than the health department how they address situations involving potential exposure to rabies. As expected, the answers varied widely:

• Formal delegation of authority from health director
• Health director provides oversight of rabies investigation and enforcement
• Health department provides support and record-keeping
• Formal cooperative relationship and joint decision-making
• Informal cooperative relationship between animal control and health director
• All rabies issues referred to and managed by health department

Are these delegations lawful? I imagine so.  The delegation authority in G.S. 130A-6 is expansive. Compare it, for example, to the statute limiting sheriffs’ authority to delegate: “The sheriff may not delegate to another person the final responsibility for discharging his official duties, but he may appoint a deputy or employ others to assist him in performing his official duties.” G.S. 162-24. The language and the spirit of the two statutes are very distinct – one is restrictive and the other is permissive.  The sheriffs’ statute also appears to imply that the concept of delegation is limited to subordinates, but I do not believe the traditional dictionary definitions of the term are so narrow (see here and here).

I am not aware of any cases that impose limitations on the delegation of administrative duties from one official to another (delegation of legislative authority is another story, of course). The line of cases cited in Little hold that the sheriff has exclusive authority in some areas (including employee supervision and training) and the county may not interfere (or be held liable) in those areas. The rabies control issue is different. The health director is essentially contracting with the sheriff to carry out certain duties in a certain manner. State law expressly allows the health director to do so.

I think the real legal issue is the county’s potential liability exposure when a separate entity is carrying out duties imposed by statute on the health director. I’ll save this issue for another day.  There also may be practical concerns related to the public health expertise necessary to evaluate risks related to rabies exposure and exercise discretion in crafting remedies.

If a county does ultimately decide to delegate some or all of the rabies control responsibilities outside the health department, it may be wise to pursue a formal, written delegation that includes explicit authority allowing the director to revoke the delegation under some circumstances.

There are many exciting changes with the Daily Bulletin Online but I’ll just take a moment to highlight a few of the more dramatic improvements and additions.

Searching

The site now allows users to search by just about anything, including bill number, term, sponsor name, and county. A search for a bill number will direct you to a “bill page” that includes all of the details about that particular bill, including every summary that we have published. A search for a term will do a general search of the whole site. The search results will include every instance where that term appears in a bill’s long title, short title, or our summary.

Categories

Every summary will have certain “categories” associated with it. For example, a bill related to the Medicaid program would likely be associated with “Public Assistance Programs” and “Health Insurance.” When reading the summary of that bill, a user can click on the categories associated with it and see every other bill that has been associated with that category. In one section of the site, users can view all of the categories and easily browse every bill assigned to each category. What a lovely way to spend a Sunday afternoon, eh?

Tracking

Each user will be able to track bills of interest using the “My Bills” feature. I think of this feature as a folder where I can put any bills that are in my areas of research or concentration.  The new site also includes several “Monitors” that allow users to create and save multi-faceted searches. For example, I can set up a Monitor to watch for every summary that addresses public assistance programs during the long session. I can then periodically check my Monitor to see if new summaries have been added. If a new bill of interest has been introduced, I can tag it and send it to “My Bills” for future tracking.

SOG Comments

Faculty members and staff from the School of Government may have done research or have insight into an issue that is the subject of pending legislation. The new site provides them with an opportunity to directly connect that information with the legislative summaries we are producing for the Daily Bulletin Online. If someone from the SOG has posted a comment on a specific summary, it will appear on the site under a special “SOG Comments” heading. Consistent with our longstanding values of neutrality, non-partisanship, and non-advocacy, these comments won’t be editorial or offer recommendations. Rather, the goal is to connect the work we do every day with state and local government officials to the discussions and debates underway at the legislature.

Real-Time Updates

The staff will be entering legislative summaries and publishing them to the site throughout the day. Users will not have to wait until the end of each day to access them. For those who still want to be able to read the old-school Daily Bulletin produced at the end of each legislative day, have no fear. The new site will still have a link that allows you to view or print a document that looks just like the traditional publication. When all of the summaries are complete for the day, the editor – Christine Wunsche – will post a single document that includes summaries of every bill, amendment, committee substitute, and conference report filed that day. She will also post the “Action on Bills” compilation that has historically been included in the print version of the Daily Bulletin.

The new site is up and active at http://lrs.sog.unc.edu/  Subscription information is available here. Note that state and local government officials and nonprofit organizations are eligible to receive significant discounts.  Do not subscribe without getting your discount code!

Please come take a look around and let us know what you think!

General Rule = “Strictest Confidence”

As a general rule, information received or generated by a county department of social services in the course of a child protective services assessment “shall be held in strictest confidence by the department” and may be disclosed only when specifically permitted by state or federal law. See G.S. 108A-80; G.S. 7B-302(a1).

If an assessment leads to the filing of a case in juvenile court, the clerk of court is required to protect the information in the court’s record of the case. However, the child’s parent, guardian, or custodian is entitled to examine the record and obtain copies of its written contents, without a court order. See G.S. 7B-2901(a). If the court places the child in the department’s custody for placement (such as in a foster home), the department is required to maintain its own record that includes “family background information; reports of social, medical, psychiatric, or psychological information concerning a juvenile or the juvenile’s family; interviews with the juvenile’s family; or other information which the court finds should be protected from public inspection in the best interests of the juvenile.” See G.S. 7B-2901(b). Whenever a juvenile petition is filed the department may share any relevant information (except the identity of the person who made a report) with the parent. Some districts have local rules or an administrative order that addresses the sharing of information in these cases. Otherwise, parents may obtain information from social services only by following the Juvenile Code’s discovery procedures. See G.S. 7B-2901(b); G.S. 7B-700.

Given that there is a specific framework in place for those situations, I would like to focus more on the cases in the gray area. Specifically, what does our state law say about parental access to the information generated and received by the department in the course of an assessment when a juvenile petition is not filed and the child is not in the department’s custody?

The answer to this question is easy – not much. One of the primary confidentiality statutes, G.S. 108A-80, provides that the information is confidential but authorizes the Social Services Commission (an appointed state rulemaking body) to adopt regulations “governing access to case files” for social services programs, which includes child protective services programs. See G.S. 108A-80(d). Several regulations arguably relate to this issue, but the application of those regulations to parents is not entirely clear.

One regulation (10A NCAC 69 .0301) provides clients with a right of access to their own records.

Confidentiality of information about himself is the right of the client. Upon written or verbal request the client shall have access to review or obtain without charge a copy of the information in his records with the following exceptions:

(1) information that the agency is required to keep confidential by state or federal statutes or regulations.

(2) confidential information originating from another agency as provided for in Rule .0102 of this Subchapter.

(3) information that would breach another individual’s right to confidentiality.

Who is the “client” you ask? That term is defined in another regulation (10A NCAC 69 .0101(1)) to mean:

any applicant for, or recipient of, public assistance or services, or someone who makes inquiries, is interviewed, or is or has been otherwise served to some extent by the agency. For purposes of this Subchapter, someone acting responsibly for the client in accordance with agency policy is subsumed under the definition of client.

Two other regulations address access by the client/child or a representative:

• The department must share information with anyone identified as the client’s “personal representative” if the client submits a written request. 10A NCAC 69 .0306.
• The agency director must provide access to a protective services record if “the child or the child’s attorney requests to examine his own record.” 10A NCAC 70A .0113.

Taken together, this group of regulations strongly suggests that the rulemaking body wanted to preserve a rather liberal right of access to clients and their representatives.

Who Exercises the Rights of the Child or Client?

In order to answer that question, we need to consider a few issues:

• may the parent exercise the right of access by virtue of the parent/child relationship?
• if so, are there any circumstances in which the parent should not be entitled to access?
• if not, may the parent be considered “someone acting responsibly for the client in accordance with agency policy”?

On the first question, we know that “the interest of parents in the care, custody, and control of their children…is perhaps the oldest of the fundamental liberty interests” recognized by the U.S. Supreme Court. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000). At the state level, we have a statute that expressly grants parents the right to exercise supervision and control over their unemancipated children. See G.S. 7B-3400. We also know that in other areas of the law, parents are able to exercise the right of access on behalf of their unemancipated children, subject to some exceptions. For example:

• Medical records: Under the federal privacy regulation adopted pursuant to Health Insurance Portability and Accountability Act of 1996 (HIPAA), parents are able to exercise the right of access to a child’s medical records, subject to some limited exceptions. For more details, see outline by Jill Moore here).
• Educational records: In the school setting, the Family Educational Rights and Privacy Act (FERPA) grants parents broad rights of access to information about their children. See 20 U.S.C. § 1232g.
• Child custody: The law relating to child custody between parents provides that “[a]bsent an order of the court to the contrary, each parent shall have equal access to the records of the minor child involving the health, education, and welfare of the child.” See G.S. 50-13.2(b).

Considering these examples as well as the general understanding of the parent/child relationship, it seems logical to conclude that the default should be that, unless a specific exception exists, parents should be able to access information about their children and to exercise rights of access on behalf of their unemancipated minor children.

On the second question, we know that there are not any exceptions identified in state statutes or regulations. There may, however, be some situations in which parental access to some or all of the information in a record would be unwise. For example, if disclosure of the information would create a risk of harm to the child or someone else, or if the record contained information about someone else’s children or the parents of other children. It is my understanding that in practice, some counties tell parents that they must obtain a court order in order to have access to information in the child’s record. Perhaps this approach has evolved over time because the law does not clearly state the general rule — that the parent may exercise the rights of the child — and identify any exceptions to that general rule in this context. In the absence of clear guidance about when to allow or deny access, it may not be appropriate for department directors or staff members to exercise discretion. It may be safer to ask a court to decide the extent to which the parents should have access to information, so that particular circumstances can be taken into consideration. (This, of course, raises the practical question of how to get the issue before the court when no juvenile action is pending.)

On the third question, if a county concludes that it does not agree that a parent has the right to exercise the right of access by virtue of the parent/child relationship, it does seem that a department could – at a minimum – have a policy in place that allows a parent to be recognized as “someone acting responsibly for the client.” Such a policy could specify criteria for determining whether a parent should or should not be so recognized.

Do Parents Have an Independent Right of Access?

Another unanswered question is whether the parents should be able to exercise an independent right of access to at least some of the information in the record. As mentioned earlier, the broad definition of the term “client” in the state’s regulations includes: “any applicant for, or recipient of, public assistance or services, or someone who makes inquiries, is interviewed, or is or has been otherwise served to some extent by the agency.” 10A NCAC 69 .0101(1). In most child protective services cases the department provides services to both the child and the parent, which suggests that both would be the department’s “clients.” However, departments consider a child protective services record to be the child’s record, meaning that the parent cannot seek access by asking to see his or her own record.

Parents may have, however, an independent privacy interest in that record that should be taken into consideration. Under federal law, states that receive certain federal funding for child welfare programs must have “methods to preserve the confidentiality of all records in order to protect the rights of the child and of the child’s parents or guardians….” (See 42 USC 5106a(b)(2)(A)(viii)(emphasis added)). If parents do have a privacy interest in some of the information held by the department, should they also have a right of access to that information? These two concepts – privacy and a right of access – are directly connected, as explained by the U.S. Department of Health and Human Services when it issued the proposed HIPAA privacy regulation in 1999: “Inspection and copying is a fundamental aspect of protecting privacy; this right empowers individuals by helping them to understand the nature of the health information about them that is held by their providers and … to correct errors.” 64 Fed. Reg. 59917, 59980 (Nov. 3, 1999).

This is an interesting area of the law and I think I raised more questions than I answered in this post. I am going to continue to explore these questions and would welcome any insights from those in the field who have experience with this issue or similar issues.

Does this law apply every time a government seizes an animal?

No. G.S. 19A-70 applies  if an animal shelter takes custody of an animal after:

• A person is arrested for animal cruelty, abandoning an animal, animal fighting, or certain other cruelty-related crimes (see G.S. Ch. 14, Art. 47); or
• A person is a defendant in a civil animal cruelty action (see G.S. Ch. 19A, Art. 1) brought by (1) a local government, (2) a county-approved animal cruelty investigator, (3) a local government official, or (4) an organization operating a local government shelter under contract.

One of the pressure points with this part of the law is that for criminal cases, the defendant must be arrested to trigger applicability of the statute. In many misdemeanor animal cruelty cases, law enforcement officials may use a criminal summons rather than an arrest warrant. If they do so, the shelter operator will not be allowed to pursue cost recovery using this law.

Who is eligible to recover costs under this law?

An “operator” of an animal shelter is eligible to petition court to recover sheltering costs. The law does not define the term “operator” but a common sense interpretation of the term suggests that it is the person or organization that owns, runs, or manages the shelter. Sheltering arrangements vary widely across the state. Some local governments own and operate their own shelters, some contract with other local governments for sheltering services, and others contract with private entities such as animal welfare organizations. When the local government owns and manages its own shelter, the local government would be the shelter operator and would need to file the petition to recover costs. If a private entity owns and manages the shelter, that entity would likely be considered the shelter operator even if it receives funding from a local government to house animals in certain circumstances. If, however, a different, more integrated relationship exists and the local government has a hand in the management of the shelter, it is conceivable that the local government could be considered the shelter operator instead of or in addition to the private organization.

Where and when should the shelter operator file the petition?

This is the area of great confusion. The law simply states that the shelter operator “may file a petition with the court.” It does not specify which court should hear the petition and does not impose a deadline for filing the initial petition. In civil cruelty cases, the attorney representing the shelter operator may be able to file a motion in the pending case fairly easily. In criminal cases, however, it is my understanding that some attorneys representing shelter operators are able to work with the prosecutors to integrate it into the pending case but in others they are not.

In the latter instance, the attorney representing the shelter operator must file a separate civil action under G.S. 19A-70. Judges are often surprised by these petitions and aren’t necessarily sure how and when to address them – should they wait until the criminal case is heard? What must the shelter operator demonstrate at this stage in order for the petition to be granted? This is where I would like to hear from you – how is this working in your area?  Feel free to comment on the post or send me an email.

What should the petition say?

The petition should explain the situation, describe the animal(s) housed by the shelter, cite to G.S. 19A-70, and request that the judge order the defendant to deposit enough money with the court to cover the reasonable expenses in caring for the animal while the case is pending. The law defines the term “reasonable expenses” to include “the cost of providing food, water, shelter, and care, including medical care, for at least 30 days.” The petition should include an estimate of reasonable expenses, including an itemization of the specific items identified in the definition.

What will happen after the petition is filed?

The law outlines the timeline of events that will follow the filing of a petition. Once the court receives the petition, it must hold a hearing in 10-15 business days (no less than 10 and no more than 15 days). Prior to the hearing, the shelter operator must (1) mail notice of the hearing and a copy of the petition to the defendant and (2) if the defendant is in jail, provide notice of the hearing to the custodian of the jail.

During the hearing, the judge will likely provide an opportunity for the shelter operator’s attorney and the defendant or the defendant’s attorney to speak on the petition. The judge will evaluate the entire situation, including the facts and circumstances of the case, the need to care for the animal(s) while the case is pending, the cost of providing such care, and the defendant’s ability to pay. The judge may order the defendant to either

• Deposit enough money with the clerk of superior court to cover the reasonable expenses related to caring for the animal(s) for 30 days or
• Provide care for the animal (presumably at the defendant’s home).

If the judge orders the defendant to deposit money with the clerk, the order must explain the process for extending the order for additional periods of time.

What if the judge orders the defendant to pay but he or she refuses to pay?

If the defendant fails to comply with the judge’s order to pay within five days of the hearing, the law states that the defendant forfeits the animal. In practice, it is my understanding that many shelter operators prefer to work with the defendant at this point in the process to secure a voluntary surrender of the animal rather than rely on on the forfeiture provisions in the law.

Once the animal has been forfeited or surrendered, the shelter operator may decide how to dispose of it. If the operator concludes that the animal is suitable for adoption, the animal may be adopted by any person other than the defendant or a person living in the defendant’s household. If the operator concludes that the animal is unsuitable for adoption or the animal is not adopted, the operator may humanely euthanize it.

What if the animals need to be held for more than 30 days?

If the case lasts longer than 30 days, the law imposes obligations on both the shelter operator and the defendant.

• Shelter operator:  No later than two business days before each 30-day period ends, the shelter operator must file an affidavit with the clerk of superior court explaining that, to the best of the shelter operator’s knowledge, the case has not been resolved. Once this affidavit is filed, the original order will be renewed.
• Defendant: The defendant must either pay for 30 more days of care within five business days of end of the previous 30-day period or request a hearing no less than five days before the expiration of the 30-day period.

If the period is extended and the defendant fails to either request a hearing or pay an additional deposit, the defendant forfeits the animal.

What if the judge does not order the defendant to pay?

The judge must consider several factors when evaluating the petition, including the estimated cost of caring for the animals and the defendant’s ability to pay. The judge may decide that the defendant is “unable” to pay for the shelter operator to care for the animal. If so, the judge may order the defendant to take custody of the animal and provide it with necessary food, water, shelter and care (including medical care).

If the judge issues this type of order, an animal control or law enforcement official must regularly visit the animal to ensure that it is receiving necessary food, water, shelter, and care. The law does not specify a schedule for these visits but does indicate that they need to be regular – which suggests a relatively structured schedule. If the official encounters difficulty making the inspections, the official may ask a magistrate to issue an administrative search and inspection warrant pursuant to G.S. 15-27.2.

Note that this administrative warrant statute authorizes two types of inspections: one for “legally authorized programs of inspections” and one when “there is probable cause for believing that there is a condition, object, activity or circumstance which legally justifies such a search or inspection….” In this situation, officials should obtain the former type of warrant — one for a legally authorized program of inspection. The appropriate AOC form is available here (AOC-CR-914M).

What if the defendant does not own the animal seized?

The law appears to assume that the defendant is the owner of the animal(s) and is financially responsible for it. It is relatively easy to imagine situations in which the defendant:

• Has custody of but does not own the animal,
• Jointly owns the animal (e.g., a married couple), or
• Does not own or have custody of the animal.

If the defendant has no ownership interest in the animal, the court will probably not order the defendant to pay or provide for the animal’s care nor will an automatic forfeiture be triggered under this statute. It may be difficult, however, to establish or verify “ownership” rights in an animal. Animal control officials have recently been struggling with this very issue as the rabies law (G.S. 130A-192(b)) was recently amended to require shelters to obtain “some proof of ownership” from a person surrendering an animal to a shelter. Without such “proof,” the shelter must hold the animal for a minimum of 72 hours before euthanizing it or adopting it out.

What other options are available to help a shelter limit and recover costs?

Some shelter operators or local governments file civil animal cruelty actions using G.S. Chapter 19A, Article 1. This body of law allows a judge to issue an injunction relatively quickly to address (1) ownership interest in the animal and (2) cost recovery. This remedy may allow a judge to step in and decide the fate of the animal more quickly than waiting for a criminal case to work its way through the judicial system.

The shelter operator could try to avoid incurring extensive costs by encouraging the owner to voluntarily surrender the animal to the shelter or the local government, thus allowing the animal to be euthanized or adopted out. In criminal cases, however, the shelter may not be able to dispose of the animal until the prosecutor is satisfied that she has all of the evidence she needs to proceed with the case. If so, the local government may still be responsible for caring for the animal for an extended period of time.

Finally, some have suggested that prosecutors could request that a person convicted of criminal cruelty pay restitution that covers the costs incurred in caring for an animal during the course of the case. When my colleague, Jamie Markham, blogged about this issue a couple of years ago, he raised some good questions about whether restitution would be appropriate in these situations. In addition to the questions he raised, I am also not sure this approach would work in our state because the restitution laws connect payments to “victims” or to people or organizations that assisted victims. The term “victim” is defined as “a person directly and proximately harmed as a result of the defendant’s commission of the criminal offense.” G.S. 15A-1340.34(a).

So, there are several of options available for cost recovery but none of them appear to be perfect.  I’ll ask my question one more time – how is this working in your area? What would you recommend? Please post a comment or drop me a line.  If I get lots of interesting answers, I’ll collect them and post a follow-up in the near future.

Montgomery County

Montgomery County was the first to take action using the new authority granted under S.L. 2012-126. On August 21, the board voted in favor of abolishing both the board of health and the board of social services. The powers and duties of those boards are now held by the board of county commissioners, including the power to appoint both the health and social services directors, adopt local board of health rules, adjudicate disputes related to those rules, and set fees for some public health services.  For more information about the powers and duties boards of county commissioners may assume, see Jill’s  discussion of public health here and my discussion of social services here. Montgomery’s resolution specifies that the two agency directors will be supervised by the county manager. The county is also in the process of appointing an advisory board for public health as required by S.L. 2012-126. This board must include the same mix of professional expertise that is required for a local board of health, but the advisory board does not hold any of the powers or duties of a local board of health.

Buncombe County

Before the law was changed this year, a county could formally create a consolidated human services agency only if the population was greater than 425,000. Buncombe County’s population did not reach that threshold so the county was not permitted to “formally” consolidate its local human services agencies. The county did, however, take incremental steps towards consolidation such as coordinating many administrative operations for public health and social services. In addition, the two governing boards — the local board of health and the board of social services — were meeting regularly as an “integrated” board to discuss issues of mutual interest. For an illustration of Buncombe’s model in 2011, see page 24 of the report issued by the N.C. General Assembly’s Program Evaluation Division.

Now the law allows any county — regardless of population size — to formally create a consolidated human services agency and appoint a consolidated human services board. On September 4, the board of commissioners in Buncombe County voted to formalize its integrated health and human services agency and create a consolidated human services board.

Brunswick County

On September 17, the Brunswick County board of county commissioners made several decisions that altered both the organization and governance of the primary human services agencies in the county.

• Organization:  The board of county commissioners merged the public health and social services departments into a single consolidated human services agency. A human services director, who is also an assistant county manager, will oversee the new consolidated agency.
• Governance: The board of county commissioners established a consolidated human services board and then immediately abolished that board and assumed its powers and duties.  It also established an advisory board for public health as required by S.L. 2012-126.

Because the board of county commissioners created a consolidated human services agency, the board also had a to make a choice about personnel:  would the employees of the social services or public health agencies remain subject to the State Personnel Act?  The Brunswick County board of commissioners answered “no” to this question – they agreed that the employees should be exempt from the State Personnel Act and subject only to county personnel policies.  It is important to note that this decision is not specifically reflected in the board’s resolution.  The way the law is written, the default position is that the employees will no longer be subject to the State Personnel Act. In other words, if a county creates a consolidated human services agency and does not affirmatively elect to keep the employees subject to the State Personnel Act, the employees will automatically become subject to county personnel policies instead.

At the same meeting, the board of commissioners adopted several changes to the county’s personnel policies.  Some of the changes were designed to align the county’s policies with federal merit personnel standards that are described in federal regulations. The regulations require state and local governments who receive certain types of federal funding (such as Medicaid and food and nutrition assistance) to adopt certain types of personnel policies.   5 C.F.R. § 900.601 et seq.

Comparison

While I do not expect to post new reports every time a county exercises this new authority, the different experiences and outcomes in these three counties provide an excellent opportunity to highlight some of the decision points that some counties may be facing in the future.

• Is the county interested in exploring other options for the organization of local human services agencies?
  • Is the county interested in creating a new consolidated human services agency?
  • Is the county interested in pursuing regional human services agencies or relationships?
• Is the county interested in exploring other options for the governanceof local human services agencies?
  • Is the county interested in abolishing the boards of social services and/or public health and having the board of county commissioners assume the powers and duties?
  • If the county is creating a consolidated human services agency, is it interested in appointing a consolidated human services board or is it interested in having the board of county commissioners assume that board’s powers and duties?
• If the county creates a consolidated human services agency, is the county interested in electing to place the agency’s public health and social services employees under the State Personnel Act?
  • If the county does not want to put the employees under the State Personnel Act, do county personnel policies need to be amended to reflect the federal merit personnel standards?

It is important to remember that nothing in the law requires counties to take up any of these issues or address these questions. The law simply provides counties with expanded options related to both organization and governance of local human services agencies.

Why did all of this come about?

Quite a few people with mental illnesses are living in adult care homes. A Task Force convened by the North Carolina Institute of Medicine studied this issue and estimated that more than 60% of adult care home residents have a mental illness, intellectual or developmental disability, or Alzheimer disease/dementia diagnosis. Advocates have taken the position that adult care homes are intended to house older people who need basic personal care services and not individuals with these types of disabilities. They arguedthat, based upon the U.S. Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581 (1999), the state must not place so many disabled individuals in adult care homes but rather it must try harder to support them as they live in the community, by providing housing assistance, mental health services, employment services and other supports.  They also argued that North Carolina’s system, including the state’s Medicaid reimbursement policies, created an institutional bias that resulted in too many people with mental illness residing in adult care homes. Disability Rights of North Carolina filed a complaint with the U.S. Department of Justice in 2010 and the federal government subsequently initiated an investigation.

What did the new legislation do?

The state has been actively engaged in examining these issues for some time and, as a result, the General Assembly took steps to address some of them this past legislative session. Three key provisions were included in the budget bill (S.L. 2012-142 – see §§ 10.23 and 10.23A). The legislation:

• Created a “Blue Ribbon Commission on Transitions to Community Living” charged with examining “the State’s system of community housing and community supports for people with mental illness, severe and persistent mental illness, and developmental disabilities” and developing “a plan that continues to advance the State’s current system into a statewide system of person-centered, affordable services and supports that emphasize an individual’s dignity, choice, and independence.”
• Established a $50 million reserve fund. $10.3 million is to be used to support NC DHHS efforts to transition people with mental illness into community living, which includes paying for rental housing.  The remainder is to be used as temporary bridge funding for adult care homes that are losing Medicaid funding for some services provided to existing residents with mental illnesses.
• Made changes to the State-County Special Assistance Program.

While all of these changes are worthy of discussion, I want to focus on the changes to the State-County Special Assistance Program. The program is a means-tested program administered by county departments of social services that provides cash assistance to certain elderly or disabled adults (see G.S. 108A-40 et seq.) Assistance may be available to adults who either (1) live in adult care homes or (2) live at home but, without the assistance available through the program, would need to be in an adult care home (“in-home” assistance).

The in-home assistance may be used for daily necessities such as food, shelter, and clothing.  Each county is allotted a certain number of Special Assistance “slots” and the state pays for half of the total costs. Only 15% of the total statewide Special Assistance caseload may be used for in-home assistance.

The legislation changed the program in a few ways:

• Counties were previously not required to participate in the in-home assistance program (91 of the 100 counties chose to participate).  Participation is now mandatory.
• The in-home payments were limited to 75% of the amount that would have been paid if the person resided in an adult care home. Those payments have now been equalized – in-home assistance must be equal to the payment for residential placement unless a local case manager determines that a lower amount is appropriate.
• Counties are required to fill in-home slots allotted to them by the state. The law provides that “By February 15, 2013, the Department shall establish a formula to determine the need for additional … in-home slots for each county.  Beginning July 1, 2014 and each July 1 thereafter, the Department shall review and revise the formula as necessary.” (see S.L. 2012-142, § 10.23)
• Beginning in 2013, the Secretary has the option of waiving the 15% cap on in-home assistance.
• New maintenance of effort requirements apply for both the State and the counties. The state must maintain funding at the FY 2012-13 level and the counties must maintain funding at the FY 2011-12 level.

As a result of the changes, some counties are rethinking their Special Assistance programs a bit and focusing new energy on the in-home assistance program. The changes go into effect February 15, 2013.

What does the settlement agreement do?

The settlement agreement requires that the N.C. Department of Health and Human Services implement dramatic changes to various programs related to community living, including significant increases in housing and employment supports and community based mental health services. For example, the state must provide at least 100 new housing slots by July 2013 and at least 3,000 new slots over the next eight years. A housing slot is defined as “State or federal housing vouchers and/or rental subsidies for community-based supported housing” and it a slot “a package of tenancy support, transition support and rental support.” (Settlement Agreement, § II.A.).

The agreement also includes detailed provisions about the state’s duty to educate adult care home residents about their options and help them to transition into the community if they choose to do so. In addition, it requires the state to establish a better process for screening individuals for placement in adult care homes to minimize the number of residents who may have a serious mental illness.

What might the future hold?

With more of these individuals moving out of adult care homes and into the community over the coming years and fewer new disabled residents being directed to adult care homes, it seems to me that there will be some pressure to expand the in-home assistance component of the State-County Special Assistance program in the near future. This could happen in a couple of different ways. The state could, for example, remove the 15% cap entirely (recall that the Secretary of NCDHHS will have the authority to waive it beginning next year).  The state could also increase the state appropriation for the whole Special Assistance program or perhaps only the in-home assistance program.  Now that counties are required to participate in the program and required to fill the in-home slots assigned to them by the state, they would need to be prepared to absorb half of the costs tied to any increase in the program. It will be interesting to see how the program develops in the years to come.

Before I get into the details, I would like to provide just a bit of background information about social services in general.

How are counties involved with social services programs?

In most states the state, rather than local government, administers social services programs.  By contrast, in North Carolina most social services programs are administered by counties under the state’s supervision. This means that the state has the primary responsibility for oversight of the programs and services but the counties are on the front lines managing and delivering programs and services to individuals.

Most North Carolina counties have a department of social services that administers programs that can be divided into two primary categories:  economic services and social work services.  The first category of programs help eligible people by providing money payments and other economic supports such as food and nutrition benefits (food stamps), child care subsidies, and employment services.  Eligibility for most of these programs is determined on the basis of a person’s or family’s income and resources.  The second category consists of programs that assist people, including many who are at risk of abuse or neglect, in a variety of ways and often without regard to income.

Each county has a board that hires the department’s director, advises the director on policy, and assumes other responsibilities as required by law.  In most counties, it is the county board of social services that fulfills this role.  In Mecklenburg County, the board of county commissioners (BOCC) has assumed this role, and in Wake County the role has been assigned to a consolidated human services board.

Who serves on a county board of social services?

County boards of social services are appointed boards that have either three or five members.  Most county boards have five members. On a five member board, two of the board members are appointed by the BOCC, two are appointed by the state Social Services Commission, and one is appointed by the other four members of the board of social services.  All board members must be county residents.

How does the new legislation change things?

The new legislation (S.L. 2012-126) allows the BOCC in any county to make two significant changes related to county departments of social services.   First, the BOCC may choose to abolish the county board of social services and assume its powers and duties.  Second, the BOCC may choose to create a new consolidated human services agency (CHSA) that includes the department of social services.

If the BOCC creates a CHSA that includes the department of social services, the BOCC may decide to either (1) appoint a consolidated human services board (CHS board) to serve as the governing board or (2) abolish the CHS board and assume its powers and duties.

Before the legislation was enacted, these options were available only to counties with populations over 425,000. For more details, see my earlier post on consolidated human services agencies here.

If a BOCC abolishes a county board of social services and assumes its powers and duties, what responsibilities would the BOCC be taking on?

The most significant responsibility the BOCC would assume is the authority to appoint the social services director.  The BOCC would also assume the implicit authority to discipline or fire a director if necessary, and a responsibility to evaluate the director’s performance.

The other powers and duties of a county board of social services are primarily advisory. The statute that provides for their creation (G.S. 108A-1) states that social services boards are to establish policies for programs administered by the department. Those programs, though, are largely defined by applicable federal and state statutes, regulations, and policies so there is little room for county boards to engage in programmatic policy-making. The boards do, however, advise the director and other local officials on social services programs and social conditions in the county (see G.S. 108A-9). Board members also may inspect confidential county social services records relating to public assistance and services (see G.S. 108A-11).

If a BOCC assumes the role of a county board of social services, must the BOCC appoint an advisory committee on social services?

No. The new legislation provides that if a BOCC abolishes a local board of health and assumes its powers and duties, it must appoint an advisory committee on public health.  For social services, the BOCC may appoint an advisory committee but it is not required to do so.

If the BOCC creates a CHSA and appoints a consolidated human services board, what powers and duties will that board have?

A CHS board’s authority is more expansive than that of a DSS board in many regards. At the outset, the statute describes the board as the “the policy-making, rule-making, and administrative board” of the agency.  This language is similar to language found in the law governing local boards of health (see G.S. 130A-35(a)). While this broad language generally characterizes the nature of the board, its powers and duties are specified in more detail in other sections of the law.

The law states that, except as otherwise provided, the CHS board assumes all of the powers and duties granted by law to the boards that it supplants – specifically naming the board of health, the county board of social services, and the area mental health, developmental disabilities, and substance abuse services board. (Note that a CHSA is not required to include all three agencies.) Unlike county boards of social services and local boards of health, the CHS board does not have the direct authority to appoint the director of the CHSA. Rather, the county manager has the authority to choose the director but may only do so “with the advice and consent of the consolidated human services board.”

The law also goes on to spell out specific authority granted to the CHS board, in some instances repeating authority that is granted now to other local boards but shifting it from the particular type of agency (e.g., health, social services) to the more general “human services” umbrella.  The law states that the CHS board has the authority to:

• Set fees for departmental services (primarily an issue for public health services);
• Recommend the creation of local human services programs;
• Adopt local public health rules (i.e., regulations);
• Hear appeals related to the enforcement of local public health rules;
• Plan and recommend a consolidated human services budget;
• Advise local officials through the county manager; and
• Perform public relations and advocacy functions.

The law specifies other duties, including some that suggest the board could play a fairly significant role in oversight of the agency.  For example, the law authorizes the board to conduct audits and reviews of human services programs and to “assure compliance with laws related to State and federal programs.” Those functions alone would require boards to have close working knowledge of the agency’s operations and programs and possibly play a more integrated role in the agency than many existing county boards of social services.

How are members of a CHS board appointed?  Will the CHS board include representatives with expertise in social services?

A CHS board may have up to 25 members, all of whom are appointed by the BOCC. At a minimum, the CHS board must include:

• Four consumers of human services;
• Eight professionals:  a psychologist, a pharmacist, an engineer, a dentist, an optometrist, a veterinarian, a social worker, and a registered nurse;
• Two physicians, including one psychiatrist; and
• One county commissioner.

No similar compositional requirements apply to appointments to county boards of social services.  Local boards of health, by comparison, are subject to a very specific law that outlines the types of professions and expertise that must be represented (see G.S. 130A-35(c)). The composition requirements for a CHS board mirror many of the board of health composition requirements.

Because the law outlines requirements for only 15 of the 25 potential board appointments, the BOCC will have flexibility to appoint additional board members with backgrounds in social services or other fields.

If the BOCC creates a CHSA, will the agency still have someone serving in the role of DSS director?

As mentioned above, the director of a CHSA is appointed by the county manager with the advice and consent of the CHS board.  If the CHSA includes the county department of social services, the CHS director assumes most of the powers and duties granted to a DSS director (see GS 108A-15.1). The CHS director would be allowed to exercise all of that authority or to delegate some of it to others within the agency.  See G.S. 108A-14 for a list that includes some of powers and duties of a social services director, but additional duties and responsibilities are scattered across other statutes and regulations.

Can’t get enough?

If you just can’t get enough of this subject, please think about participating in a free webinar scheduled for August 30.  More information is available here.  In addition to the webinar, we will be offering free technical assistance this fall in selected counties or regions that are considering making a change to human services organization and/or governance.  More information on technical assistance can be found here.

Background

The public mental health system is in a period of transition. The local agencies involved in the system – known as “local management entities” (LMEs) – are becoming managed care organizations as required by legislation passed last year. As such, they will be authorizing and paying for mental health, substance abuse, and developmental disability services for Medicaid-eligible individuals, including those who may be incapacitated. The state used to play this role, but it will now be up to the LMEs to make these decisions and assume the financial risk related to those decisions. This new role may place LMEs in a difficult situation:

Imagine an LME has been appointed guardian for a ward named John. John and/or the LME acting as his guardian may request access to and payment for substance abuse treatment.  The LME, acting as the managed care organization, may deny the request. Then, John and/or the LME acting as his guardian may want to appeal the decision of the LME acting as the managed care organization.

This scenario creates a clear tension for the LME.

The guardianship law specifically provides that a disinterested public agent who provides “financial assistance, services, or treatment to a ward” will not be disqualified from serving as guardian. (G.S. 35A-1202). However, the law also allows a disinterested public agent to ask to be removed as guardian if the agent “believes that his role or the role of his agency in relation to the ward is such that his service as guardian would constitute a conflict of interest, or if he knows of any other reason that his service as guardian may not be in the ward’s best interest….” (G.S. 35A-1213(d)). The Clerk of Superior Court has the authority to decide whether to remove a guardian.

In 2010, a Superior Court decision in Rowan County concluded that the first LME that assumed the role of a managed care organization, Piedmont Behavioral Healthcare, had a conflict of interest and therefore could not serve as a disinterested public agent and also could not contract with a private organization to serve as the guardian on the LME’s behalf. News of that decision traveled fast and many people began discussing what would happen when all of the LMEs transitioned to managed care organizations.

Legislation

The N.C. Department of Health and Human Services requested legislation this session to remove LMEs from the list of possible “disinterested public agents.” The legislation, H 1075, passed the House and was on the Senate calendar for consideration today. It was withdrawn from the calendar and re-referred to the Senate Committee on Mental Health and Youth Services. The legislation is primarily focused on issues related to LME governance but the provisions related to guardianship are found in Section 12 of the bill.

If passed, the legislation would also remove all other human services agencies (i.e., public health, aging) from the definition of “disinterested public agent.” While these other agencies do not have the same potential conflicts of interest as LMEs, public health officials argued that they should not be considered an option any longer because they lack the expertise to serve effectively in the role.

Implications

If the legislation passes as currently drafted, directors and assistant directors of county departments of social services will be the only local officials authorized to serve as a disinterested public agents. Even if the legislation doesn’t pass, the LMEs across the state are transitioning to become managed care organizations and are likely to ask the Clerks of Court to remove them as guardian. Many of these transitions have already taken place or are well underway. The total number of wards being transitioned from LMEs to social services is somewhat unclear, but is probably between 1500 and 1700 individuals.

The state convened a stakeholders’ working group earlier this year to map out a transition plan for shifting wards from LMEs and the other agencies to county departments of social services. Some of the issues discussed in this working group related to funding for guardianship services, accessing services for wards with MH/DD/SA needs, and continuity of relationships for wards and guardians (including corporate guardians).

As part of the transition plan, the state has agreed to assume temporary responsibility for managing some of the guardianship contracts with private corporations. In addition, the budget (see Section 10.25 (w1)) that was approved by the General Assembly and sent to the Governor late last week included a provision that would allocate more than $4 million in Social Services Block Grant (SSBG) funding to the Divisions of Social Services and Aging and Adult Services to be used to support corporate guardianship contracts. During the stakeholder meetings, some of the discussion focused on allocating some of that money to county departments of social services to help offset the increased caseloads.

Even if some additional SSBG funding does come to counties to support guardianship services as a result of this arrangement, county departments of social services will likely need to allocate new resources to support the increased caseload. They also may need to develop more expertise in working with individuals who have a specific need for MH/DD/SA services.  In some counties, LMEs would have been appointed the guardian for wards with a high level of need in those service areas so it may be relatively new territory for social services.

It will be interesting to see how this legislation progresses and to see how all of the local human services agencies adapt to the new legal landscape for public guardianship.

In the coming weeks, the NC General Assembly could act on legislation that would permit a county to combine its county health department and department of social services into a single consolidated human services agency.  Under present law, only the three largest counties (Wake, Mecklenburg, and Guilford) may create consolidated human services agencies.

Several bills addressing this issue were introduced last year in the long session (see discussion by Jill Moore here, here, and here) and new legislation (H 1075/S 875) was introduced just last week.  The new legislation focuses primarily on governance of local management entities (LMEs), the agencies responsible for administering public mental health, developmental disabilities, and substance abuse (MH/DD/SA) programs. But the new legislation also includes language that would allow any county, regardless of size, to create consolidated human services agencies

As the conversations continue to unfold on this subject, I thought it might be worthwhile to clarify some key concepts in the law that allows counties to consolidate human services agencies and to discuss the relevant sections of the new legislation.

Background

The School of Government recently released a report comparing the types of agencies — including consolidated human services agencies — that provide public health services in the state. The full text of the report is available here and detailed questions and answers about the different agency types are available here.  In order to set the stage for the discussion that follows, I’ll offer the “nutshell” version of some key background information below but I would encourage interested readers to review the more detailed versions online.

In 1973, the General Assembly enacted legislation allowing counties with populations over 300,000 to allow boards of county commissioners to assume the powers, duties, and responsibilities of other county boards, including human services boards. This authority applies only if the board is appointed by the board of county commissioners or is acting under and pursuant to the authority of the board of county commissioners.  To date, Mecklenburg County is the only county that has elected to exercise this option.

The population threshold increased to 400,000 in 1985 and then to 425,000 in 1987. In 1996, the statute was amended to allow counties that meets this threshold to consolidate social services, public health, and MH/DD/SA services and functions into one consolidated human services agency if it has a county manager form of government. Wake County created such an agency in 1996 and Mecklenburg County followed suit in 2008. Guilford County is the only other county in the state with a population greater than 425,000. The full text of G.S. 153A-77 is available here.

What does the term “consolidated” mean?

The law does not provide a detailed definition of the term “consolidated” or “consolidated human services agency.”  Instead, it authorizes a county to take certain actions. The county may:

• Have a county manager appoint and supervise a single director who is responsible for overseeing the provision of various human services.  This represents a significant departure from current law and practice in most departments of social services, health departments, and LMEs where the agency directors are separate positions and are appointed and supervised by separate boards (i.e., the board of health, the board of social services, the LME board).
• Create a consolidated human services board that has certain powers and duties, including most of the duties presently assigned to boards of health, boards of social services, and LME boards (with a notable exception being the power to appoint and supervise the agency director).
• Establish a consolidated county human services agency that has the authority to carry out all of the functions of the local health department, the department of social services and the LME.  The county may also assign other functions to the agency.

Once a county creates a consolidated human services agency, the employees of that agency are subject to county personnel policies and ordinances only. In contrast, employees of county departments of social services, county and district health departments, and LMEs are all subject to the State Personnel Act.

The law does not specify how the counties should or must go about consolidating their agencies.  In the course of conducting several focus groups and interviews, we learned from stakeholders that the term means different things to different people.  Some stakeholders focus on the major legal changes that consolidation allows – specifically, allowing the county manager to appoint and supervise the director (rather than a board) and shifting the employees from the State Personnel Act. Others focus on more detailed concepts involving integration of administrative functions and program activities. For more discussion of this finding, see pages 25-26 of the report.

It’s also worth noting that some smaller counties are taking steps towards administrative “consolidation” without formally creating a consolidated human services agency.  For a short summary of Buncombe County’s approach, see page 13 of the report.  The General Assembly’s Program Evaluation Division also studied this issue in the context of social services agencies and issued a report last fall that offers some insight as well as several very helpful graphical representations of the various types of agencies.

May a board of commissioners assume the powers and duties of human services boards without creating a consolidated human services agency?

Yes. The two sections of G.S. 153A-77 stand alone.  In other words, a board of county commissioners could:

1. assume the powers and duties of a single county board of health, board of social services, or LME board;
2. create a consolidated human services agency and consolidated human services board; or
3. do both 1 and 2 (create a consolidated human services agency and a board and then assume the powers and duties of the board).

Wake County has elected to do #2 and Mecklenburg County has elected to do #3.  A county may elect #1 only if the human services board at issue is appointed by the board of county commissioners or acting under or pursuant to the authority of the board of county commissioners.

What would the new legislation do?

The legislation proposed last week (H 1075/S 875) would make several changes to the legal framework governing consolidated human services agencies:

• Removes the population threshold entirely. This change would apply to both sections of the statute – this means that any county, regardless of size, would be able to have the board of county commissioners assume the powers and duties of the human services boards and/or create a consolidated human services agency.
• Removes mental health area authorities from the “consolidated human services” mix. Under present law, a consolidated human services agency likely needs to include all three programs (social services, public health, and LMEs).   See Q&A here for more discussion. The new legislation would amend G.S. 153A-76 to prohibit boards of county commissioners from integrating LME boards into consolidated human services boards. In addition, it amends G.S. 153A-77(b)(3) to allow a consolidated agency to include any combination of human services agencies (rather than requiring consolidation of all three).  The end result would be that a county could create a consolidated human services agency that includes only public health and social services.
• Modifies the composition requirements of a consolidated human services board. Under present law, the board must include quite a few consumers of MH/DD/SA services. See the summary chart on page 16 of the report. The legislation would reduce the total number of consumers on the board and allow the board to include more consumers of human services other than MH/DD/SA services.
• Modifies the duties of a consolidated human services board. Under present law, the board is required to perform comprehensive mental health services planning. The legislation would eliminate this responsibility.
• Allows counties to keep employees of a consolidated human services agency under the State Personnel Act.  Under present law, the employees of such agencies are automatically exempt from the Act. The legislation would make this exemption optional.  The legislation also highlights the fact that if the employees are subject to county personnel policies, the county policies must comply with other applicable law related to merit personnel systems. See Q&A here for further discussion.

The proposed legislation would also amend G.S. 153A-76 to provide boards of county commissioners with new authority to change the composition and manner of selection for both boards of health and boards of social services.

What happens next?

The General Assembly may take action on any number of bills that address consolidation of human services at the local level. In addition to the legislation described above, several of the bills Jill Moore reviewed during the long session are still viable for consideration.  We will be monitoring all of the bills and offering updates as appropriate. In addition, we will be offering facilitated discussions across the state this fall in connection with our public health agency study.  Information about the discussions will be available online at www.ncphagencies.unc.edu in the coming months.