North Carolina’s Executive Order 130 Designed to Meet Health and Human Services Needs during COVID-19 Emergency

Nelson Mullins Riley & Scarborough LLP

North Carolina Governor Roy Cooper recently issued Executive Order No. 130, which, among other things, relaxes assorted regulatory requirements affecting various health care providers in an effort to make health care and human services more readily available in the state amidst the growing demand caused by the COVID-19 pandemic. Effective as of April 8, 2020, the Executive Order remains in force for 60 days unless rescinded or replaced, including by an Executive Order rescinding the previously-declared State of Emergency.

Highlighted below are a few of the Executive Order’s most significant provisions. To read the entire order, click here.

Temporary CON Waivers and Reversion Period

Following Division of Health Service Regulation (“DHSR”) approval of a written request that conforms to specific requirements for each type of waiver, Section 1 of the Executive Order permits health care providers, while the Executive Order is in effect, to do the following without obtaining a Certificate of Need (“CON”):

  1. Health care facilities—including hospitals; nursing homes; adult care homes; and mental health, developmental disabilities, and substance abuse facilities—may temporarily increase their licensed bed capacity or relocate beds;
  2. Hospitals and kidney disease treatment centers may add or relocate dialysis stations;
  3. Hospitals may acquire mobile MRIs or mobile CT scanners; and
  4. Ambulatory surgical facilities may operate as temporary hospitals.

During the Executive Order, CON-related enforcement and sanctions related to these activities will be temporarily waived.  However, within 30 days after termination of the Executive Order and/or the State of Emergency, all increases, relocations, additions, acquisitions, and changes in status of health care resources made during the Executive Order must be returned to the prior status.

Enforcement of Regulations Waived for Child Care Facilities

Section 2 of the Executive Order permits the Secretary of the North Carolina Department of Health and Human Services (“DHHS”) to waive or modify enforcement of certain child care facility regulations and to add requirements related to staff qualifications, health and safety training, and sanitation.

To remain open or to reopen during the COVID-19 emergency, child care facilities must be approved by DHHS to operate under certain emergency health, safety, and operational guidelines, and they may provide child care only to children of employees of COVID-19 essential businesses and operations (notably, including health care providers, as referenced in Executive Order No. 121), children who are receiving child welfare services, and children who are homeless or living in unsafe/unstable living arrangements.

Increasing the Pool of Health Care Workers and Limiting Their Liability

Section 3 of the Executive Order permits professional health care licensure boards to temporarily waive or modify enforcement of requirements regarding who can provide health care services in North Carolina. In particular, if a licensure board so chooses, it may allow the following persons to provide care:

  1. Individuals who are licensed in another state but not in North Carolina;
  2. Individuals who are retired or whose licenses are inactive;
  3. Skilled but unlicensed volunteers; and
  4. Students at an appropriately advanced stage of professional study.

Any waiver or modification of requirements and associated conditions of practice must be posted on the applicable licensure board’s website.  Each licensure board may reimpose at any time during the Executive Order any requirement which that board previously waived or modified under the Order.

During the State of Emergency, health care workers licensed in other states may apply to the appropriate North Carolina licensing board for emergency licenses to provide health care services in North Carolina, including telehealth services. See Section 3, Paragraph B.2 of the Executive Order.  

While the Executive Order is in effect, licensed health care workers and others authorized under the Order to perform professional skills in the field of health care, and who are providing emergency services, are deemed to be “emergency management workers” who are insulated from civil liability to the maximum extent allowed by N.C. Gen. Stat. § 166A-19.60, except in cases of willful misconduct, gross negligence, or bad faith.  

But what does it mean to provide emergency services?  The Executive Order clarifies that all licensed professionals and others authorized to provide health care services under the Order “are hereby requested to provide emergency services” in response to the pandemic and, to the extent they do so, constitute “emergency management workers. This appears to indicate that all persons providing health care services to North Carolinians during the pandemic—whether in person or remotely by telehealth—are providing emergency services and will be insulated from civil liability as noted above. See Section 3, Paragraph C of the Executive Order for more details.

Assuring Availability of Mental Health and Substance Use Disorder Care, Including through Telehealth

Under Section 5 of the Executive Order, the Secretary may waive or modify the enforcement of a broad range of regulations that would prevent or impair (1) ongoing provision of mental health and substance use disorder treatment services and support services for individuals with intellectual and/or development disabilities, and (2) the provision of these services by telehealth (specifically, real-time, two-way audio and/or video teleconferencing). 

Enhancing Availability of In-Home Care

Section 6 of the Executive Order permits the Secretary to waive or modify the enforcement of legal or regulatory constraints that would prevent or impair the provision of in-home services for participants in the Program of All-Inclusive Care for the Elderly. The Secretary also may waive or modify enforcement of in-home aide rules and, due to some counties’ inability to offer fingerprinting as required for nationwide background checks, may authorize health care facilities to accept written verification from a potential new hire’s current employer as a temporary measure in lieu of completing the national portion of Criminal History Records Checks. Written verification is only permitted in areas of North Carolina where fingerprinting is not available, and the national background check must be completed as soon as possible and, at the latest, within 30 days after the end of the State of Emergency. See Section 6, Paragraph C of the Executive Order for more information.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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