“It ain’t over ‘til it’s over.” Since the inception of North Carolina’s Administrative Procedure Act (APA) over 30 years ago, the State’s executive branch agencies have been able to live by this famous Yogi Berra adage because, in most instances, they had the final say in cases challenging their actions or decisions. But no more. As part of the General Assembly’s regulatory reforms in the 2011 session, legislators took this final decision authority away from the agencies (with the exception of occupational licensing board cases) and gave it instead to administrative law judges (ALJs) in the state’s Office of Administrative Hearings. This change will have important legal and practical ramifications for future cases challenging state agency actions and decisions, including licensure, certificate of need and other types of disputes impacting long term care providers.

Historically under the APA, a contested case challenging a North Carolina agency’s decision or action has been heard by an ALJ who is not a part of the agency that made the decision or took the action being challenged. After hearing and considering the factual evidence and legal arguments of the parties, the ALJ would determine whether the agency decision at issue was correct. However, the ALJ’s decision has not been final, but rather has been a recommendation sent back to the agency for a final decision.