Each local public health agency in North Carolina has a governing board that has responsibility for public health within its jurisdiction. What the board is called varies by agency: a county health department has a county board of health, a district health department has a district board of health, a public health authority has a public health authority board, and a consolidated human services agency has a consolidated human services board, which has responsibility for public health if the agency provides public health services.[1]

Each of these boards is charged with protecting and promoting the public health, and with serving as the policy-making, rule-making, and adjudicatory body for public health in the county or counties in its jurisdiction. The generic term "local board of health" embraces all of these types of boards when they are carrying out public health duties.[2] The composition of the different types of boards varies, but in general members represent county commissioners, professionals with expertise in health care or public health, and the general public. County commissioners play a role in the appointment of each type of board, but the specifics of the commissioners’ role varies by type of board. For more information about board membership and how appointments are made, see questions 4 through 9.  

Any county may elect to abolish its local board of health and transfer the board’s powers and duties to the county commissioners.[3] When a county takes this action, the board of commissioners serves as the local board of health for the county.

The membership of local boards of health varies depending on the type of local public health agency. In general, board members represent county commissioners, professionals with expertise in health care or public health (including physicians, pharmacists, veterinarians, and professional engineers, among others), and the general public. A consolidated human services board also includes members who are consumers of human services, and a public health authority board includes a hospital administrator. The number of board members may be as few as seven for a public health authority board, or as many as 25 for a consolidated human services board. The composition of board membership also varies by type of board.

In some counties, the board of county commissioners serves as the board of health. If a county provides public health services through a county health department or a consolidated human services agency, the board of county commissioners may adopt a resolution directly assuming the powers, responsibilities, and duties of the county board of health or consolidated human services board – an action that has the effect of abolishing the appointed board.[1] A board of county commissioners that takes this action must appoint an advisory committee on health that includes the same membership as a county board of health.[2]

It is possible for a board of commissioners to assume the powers and duties of a board of health for a county that provides public health services through a district health department or a public health authority, but the commissioners must first dissolve or withdraw from the district or authority.[3] After dissolving the district or authority, the commissioners could create either a county health department or a consolidated human services agency to provide public health services within the county, and then assume the powers and duties of the agency’s board.  

A table showing board of health membership by agency type is available on the attached document. For more information about board of health members, see questions 4 through 9.

The method of appointment varies by type of board, but in all cases, county commissioners are involved. The board of county commissioners appoints the members of a county board of health or a single-county public health authority board.[1] For a district board, the board of commissioners for each county in the district appoints a county commissioner to the board, then those commissioners appoint the remaining members.[2] Multi-county public health authorities are managed similarly, but each board of commissioners may appoint either a commissioner or a commissioner’s designee.[3] Although no law requires it, it is a common practice for the boards of all of these agency types to recommend appointees to the commissioners.

The appointment of consolidated human services board members is managed somewhat differently. The board of county commissioners appoints members from a slate of nominees. When a consolidated board is initially created, the nominees are identified by a nominating committee composed of members of the pre-consolidation boards of health, social services, and mental health, developmental disabilities, and substance abuse services. Subsequent members are appointed by the commissioners from nominees selected by the consolidated human services board.[4]

* In some instances, a public health authority may want to apply to the federal government to become a community health center so that it may be eligible for additional funding from specific federal programs. The federal law governing community health centers has strict requirements related to board membership. Therefore, state law allows a public health authority interested in applying for that status to have up to 25 board members.

The statutes authorizing county boards of health, district boards of health, and consolidated human services boards all require that board members be residents of the county or multi-county district. There is an exception for the member of a county board of health who serves in the licensed optometrist spot.[1] If a licensed optometrist who is a county resident is not available for appointment, the county commissioners may fill the position with either: (1) a licensed optometrist who resides in another county, or (2) a member of the general public who is a county resident. This provision does not apply to a district board of health, or to a consolidated human services board.

Members of public health authority boards are not required to be residents of the county or multi-county area served by the authority.

Each type of board requires some members who are licensed professionals. In most cases, those professionals must also be residents of the county or multi-county district served by the board. However, sometimes there is no resident in the local public health agency’s jurisdiction who qualifies for one of the licensed professional positions. How this situation is managed varies for the different types of boards.

For county and district boards, if there is no one available to serve in one of the licensed professional positions, a member of the general public must be appointed instead. Also, if there is only one member of a licensed profession available to serve in the jurisdiction, the commissioners have the option of appointing either that person or another member of the general public.[1] There are no similar provisions in the statute for consolidated human services boards, suggesting that a licensed professional position on a consolidated board would remain vacant if there were no resident available to serve.

Public health authority boards are different in two ways that may make this issue less of a concern for them. First, the only licensed professional positions that must be represented on a public health authority board are the physician and the dentist. The commissioners are permitted to choose two to four additional members from a list of licensed professionals—optometrist, veterinarian, registered nurse, pharmacist, professional engineer, accountant—but the board is not required to have all of them. Second, public health authority board members are not required to be residents of the authority’s jurisdiction, so the commissioners could choose a non-resident to represent one of the professions.[2]  

The number of terms a board member may serve and the length of each term varies by type of board.

County and district board of health members are appointed to three-year terms and may serve a maximum of three consecutive three-year terms. There are a couple of exceptions to this general rule. First, if the member is the only county or district resident who is a member of one of the licensed professions that must be represented on the board, the member may serve more than three consecutive three-year terms.[1] Second, if a member of a district board of health is serving in his or her capacity as a county commissioner, the NC Attorney General has advised that the member may serve for as long as he or she remains a commissioner, even if that time exceeds three consecutive three-year terms.[2]

Consolidated human services board members are appointed to four-year terms and may serve a maximum of two consecutive four-year terms. There is no exception for a situation in which a member is the only county resident who is a member of a licensed profession that must be represented on the board.[3] The county commissioner member of the board may serve only as long as he or she remains a county commissioner.

Public health authority board members are appointed to three-year terms. but there is no limit to the number of terms they may serve.[4]

If the county commissioners are serving as the board of health, a person’s service as a board of health member ends when his or her service as a county commissioner ends.

A board of health member may be removed from office if there is cause for removal under state law. The laws for county and district boards of health, consolidated human services boards, and public health authority boards state that a member may be removed for any of the following reasons:[1]

• Commission of a felony or other crime involving moral turpitude
• Violation of a state law governing conflict of interest
• Violation of a written policy adopted by the county commissioners (or all of the applicable boards of commissioners, if it is a multi-county board)
• Habitual failure to attend meetings
• Conduct that tends to bring the office into disrepute
• Failure to maintain qualifications for appointment (e.g., maintaining licensure in a profession, being a county resident, etc.)

These provisions do not apply if the board of county commissioners is serving as the board of health.

For county boards of health and consolidated human services boards, the county commissioners have this authority.[1] A county board of health or consolidated human services board may recommend removal of a member to the commissioners if it wishes, but it lacks authority to carry out the removal. For district boards of health and public health authority boards, the board itself may remove a member.[2]  

[2] G.S. 130A-37(h) (district board of health); 130A-45.1(j) (public health authority board).

A local board of health has the duty to protect and promote the public health and the authority to adopt rules necessary to those purposes. A board of health rule may also be called a “regulation” and is comparable in nature to a regulation adopted by a federal agency such as the U.S. Department of Health and Human Services, or a state commission such as the Commission for Public Health. The rule is valid only within the local board’s jurisdiction (that is, the county or counties it serves), including within the boundaries of any municipalities in the counties served by the board.[1]

A rule has the “force of law,” meaning that it can be enforced in one or more of several methods set forth in the public health laws, potentially including a criminal charge, a civil action, or, in limited cases, the imposition of administrative penalties (fines).[2] 

No. There are several limitations to a board of health’s rule-making authority. First, a board of health’s rule-making authority is specifically linked to its duty to protect and promote the public health. Therefore, the board does not have the authority to act on matters that are unrelated to health. This is reflected in a five-part test that a board of health rule must satisfy in order to be valid, as enunciated by the North Carolina Court of Appeals. A board of health rule must:

1. be related to the promotion or protection of health,
2. be reasonable in light of the health risk addressed,
3. not violate any law or constitutional provision,
4. not be discriminatory, and
5. not make any distinctions based on policy concerns traditionally reserved for legislative bodies.[1]

State statutes impose additional limitations to board of health rule-making authority:

• A board of health may not adopt rules concerning the issuing of grades and permits to food and lodging facilities.[2]
• A board may issue its own regulations regarding on-site wastewater management only with the approval of the NC Department of Health and Human Services, which must find that the proposed rules are at least as stringent as state rules and are necessary and sufficient to safeguard the public health.[3]
• A board of health rule regulating smoking in public places must abide by statutory restrictions on this authority and must be approved by the applicable board(s) of county commissioners.[4]

Finally, if a board of health adopts a rule that addresses an issue that is already addressed by a state law, it is possible that the board of health rule will be preempted (overridden) by the state law.  The North Carolina Supreme Court has held that a local board of health rule may be preempted by state law if the state has already provided “a complete and integrated regulatory scheme” in the area addressed by the local rule.[5] However, the state law that gives boards of health their rule-making authority specifically allows a local board of health to adopt rules that are more stringent than state rules if the local board determines that a more stringent rule is necessary to protect the public health.[6] The Supreme Court’s decision does not preclude this, but it means that a board of health that wishes to adopt a local rule that exceeds statewide standards must provide a rationale for doing so. To do this, the board likely needs to be able to demonstrate that conditions in the board’s jurisdiction are different from the rest of the state in a way that warrants the higher standards.

A local public health rule is adopted by the board of health, while a local ordinance is adopted by the governing bodies of local governments, either counties or cities. Both ordinances and rules are local laws adopted by local governing bodies, but there are two important differences.

Territorial jurisdiction:  A major difference between local public health rules and local ordinances is their territorial jurisdiction. Typically, county ordinances apply only in the unincorporated areas of the county, not inside the municipalities (unless the municipalities consent to be governed by the county ordinance).[1] Similarly, municipal ordinances typically apply only within the municipality.[2] In contrast, a board of health rule applies throughout the board’s territorial jurisdiction—the county or counties represented by the board of health and all the municipalities contained in them.[3]

Scope of authority:  Another major difference is that boards of health are subject to some limitations on their authority that do not apply to elected boards of commissioners. First, boards of health may adopt only rules that are related to the protection and promotion of health.[4] Boards of county commissioners are allowed to adopt ordinances that address a much wider range of issues and concerns.

The second and perhaps more significant limitation is that boards of health must not “make distinctions based upon policy concerns traditionally reserved for legislative bodies.”[5] This limitation was explained by the North Carolina Court of Appeals and is grounded in the board of health’s status as an appointed body rather than a legislative (elected) body.  By contrast, because the members of a board of county commissioners are elected, the commissioners may make distinctions based on policy concerns having nothing to do with health. So, for example, a board of county commissioners could enact an ordinance imposing certain requirements generally on businesses in the community, but exempting small businesses for whom the requirements might pose economic hardship. In contrast, a local board of health could not craft exceptions to a general public health rule that were based on businesses’ economic concerns and had no health-based rationale.

Enforcement: Board of health rules are enforced using the specific methods set forth in the public health laws. The laws provide for the possibility of a criminal charge, a civil action, or, in limited cases, the imposition of administrative penalties (fines).[6]  Ordinances may also be enforced using similar methods, but in general a board of county commissioners has broader authority to impose administrative fines or to make violation of an ordinance an infraction.[7]

In general, no – but there is one exception. Local board of health rules pertaining to smoking in public places must be approved by the county commissioners.[1]

In some circumstances, a local board of health may act essentially as a court. When a person is aggrieved by the health department’s interpretation or enforcement of a local board of health rule, or the local imposition of administrative penalties, the person may appeal the department’s decision to the board of health.[1] The board then hears the case and issues a decision either upholding or overturning the department’s action. If the person is not satisfied with the board of health’s decision, he or she may appeal to district court.

The specific procedures a local board of health should follow for an adjudication are set out in G.S. 130A-24(b) through (d).  Among other things, the statute provides specific timeframes for actions and requires the board to issue its final decision in writing, stating the factual findings on which the decision is based.

When a person is aggrieved by the local health department’s enforcement of state rules, such as the food and lodging rules, the local board of health is not authorized to hear the appeal. Those cases go to the state Office of Administrative Hearings.[2]

County and district boards of health and consolidated human services boards must base their fees on a plan proposed by the local health director, and any fees adopted by the board must be approved by the county commissioners (in the case of a district health department, all applicable boards of county commissioners).[1] Public health authority boards may establish fee schedules and are not required to obtain commissioner approval.[2]

There are several limitations to the board’s fee-setting authority. First, a board of health may not charge fees when the health department employee is acting as an agent of the state. This covers most environmental health programs, but there are four exceptions: fees may be charged for services provided under the on-site wastewater treatment program, the public swimming pools program, the tattooing regulation program, and the local program for inspecting and permitting drinking water wells. [3]

Second, while local health departments may charge fees for some of their clinical services, the board of health has limited discretion in determining the amount of the fee. Fees may reflect Medicaid reimbursement rates established by the state Division of Medical Assistance, or fees set by a state or federal program that provides funds for a particular service. Also, local health departments are specifically prohibited by state law from charging health department clients for some services:

• testing and counseling for sickle cell syndrome[4]
• examination for and treatment of tuberculosis[5]
• examination for and treatment of certain sexually transmitted diseases[6]
• testing and counseling for HIV[7]

Additionally, immunizations that are required by law and supplied by the state must be provided at no cost to uninsured or underinsured patients with family incomes below 200 percent of the federal poverty level.[8] 

Finally, some federal laws affect whether or to what extent a local board may impose fees for particular services. For example, Title VI of the federal Civil Rights Act of 1964 prohibits recipients of federal financial assistance from charging their limited-English proficient clients for interpretation services.[9] Similarly, the federal HIPAA medical privacy rule limits the fees that may be charged for copies of medical records.[10]