Setting an effective date for benefits does not only concern the internal management of DHS, but directly affects rights of the public. It is unlike the Policy Statement in Stony Ridge. That statement set forth factors which should be considered in locating access to water ways. Nothing about those factors would include or eliminate any particular site. The policy in this case does affect the substantive rights of adoptive parents and in fact eliminates some claims while it includes others.
Respondents argue that the policy merely restates state law.
If that is true, then of course it would not make any difference whether it is a rule or a policy. I am not persuaded that their interpretation of the statute is correct. Since I do not read the statute to prohibit the retroactive payments, the policy does not merely restate statutory requirements, but adds to and clarifies them. The Commissioner's Order States that rule-making was not required because the decision, as a matter of policy, was discretionary with the agency. It is discretionary with the agency.