You asked (1) under what authority the Human Services and Appropriations committees may act on a DSS 1115 waiver proposal, (2) what process the committees follow once they receive a proposal, and (3) for the effect on the waiver of a decision by one or both committees to deny or modify the proposal.

The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.

SUMMARY

State law requires DSS to send waiver proposals to the Appropriations and Human Services committees for action. Specifically, CGS § 17b-8(a) requires the DSS commissioner, whenever she applies for a federal waiver of any "assistance program" requirements (except those pertaining to routine operational issues), to submit a copy of the waiver proposal to the Appropriations and Human Services Committees before sending it off to the federal government. If the committees wish, they can advise the commissioner of their approval, denial, or modification, if any, of the proposal within 30 days of receiving it.

The law is silent on the process the committees follow once they receive a waiver proposal. Likewise, it states nothing about what happens should the committees disagree on what action to take, or simply fail to act altogether within the 30 days. In practice, the committees have held public hearings on these proposals within the 30 days, after which they have convened their committees and voted.

Until 1993, the law required, rather than allowed, the committees to advise the commissioner. It likewise contemplated disagreeing actions and required the committee chairmen to appoint a conference committee if the two committees did not agree on the waiver application. And it deemed waiver applications approved if they were not acted on within 30 days. The legislature revised these requirements in 1993 (PA 93-221).

It is unclear whether DSS must comply with the committees' decision to approve, deny, or modify the waiver proposal. While the law is silent, the legislative history from the 1993 act provides that the DSS commissioner can proceed with the waiver request, regardless of what the committees do.

FEDERAL WAIVERS-LEGISLATIVE OVERSIGHT CHANGES

The DSS commissioner has to submit federal waiver applications to the Human Services and Appropriations committees. Until 1993, those committees had 30 days to review the applications and had to advise the commissioner of their approval, denial, or modification. A conference committee had to be convened if the two committees did not agree on the action to be taken. The committees failure to act within the 30 days constituted approval (CGS § 17-2k(a), transferred to 17b-8(a)).

In 1993, the Legislative Program Review and Investigations (LPRI) Committee raised and favorably reported a bill (HB 7115) to implement recommendations stemming from an entitlements study it conducted during the previous year. One recommendation was that the legislature remove the requirement that DSS submit applications to the committees before submitting them to the federal government. Instead, LPRI suggested that DSS simply notify legislative leadership of any federal waiver requests it intended to make regarding income maintenance programs. In its report, LPRI wrote that "prior submission to the legislature for approval is cumbersome and unnecessary " (LPRI's Entitlement Programs, January 1993, p. 125).

Once the bill left LPRI, the original statutory language was restored before it went to the floor.

When the bill was brought out in the House, then LPRI chairman Representative Pelto spoke of how the existing legislative oversight was burdensome. He offered an amendment that was intended to "strike a balance of the legislature and the public's right and need to know versus the ability of the commissioner to move quickly to take advantage of federal changes. "

The amendment (1) gave the committees 15, instead of 30, days to advise the commissioner on the application; (2) made the committees' advice optional instead of mandatory; and (3) removed the conference committee language and the language that deemed the applications approved if they were not acted on within the 30 days.

It also added the requirement that the DSS commissioner publish notice of the applications in the Connecticut Law Journal, with a summary of the waiver provisions, and allow 15 days for comments. Pelto stated that the 15 days were meant to run concurrently with the 15 days for the legislative committees to review the waivers.

Representative Ward asked Pelto if the committees voted to reject the waiver application, whether this would stop the commissioner from going forward with it. He stated that it was his understanding that the legislation was not giving the committees veto power. Pelto replied that Ward was "absolutely correct," that by allowing the committees to act, the bill was simply giving them the opportunity to react but that "there would be no requirement that they [DSS] take action. " Ward reiterated in his response that even if the committees voted for the commissioner not to proceed, the commissioner would have the "final judgment as the commissioner of the agency" and suggested that this would be a way for the legislature to avoid a "constitutional clash. " Pelto agreed, but added that he hoped the commissioner would take "due consideration" of the committees' input.

The bill passed the House unanimously (PA 93-221) and is now codified at CGS § 17b-8. (The 15-day committee turnaround time was increased to 30 days per PA 00-2, JSS. )

RC: eh