Bill Summary for H 149 (2021-2022)

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Summary date: 

May 26 2022

Bill Information:

View NCGA Bill Details2021
House Bill 149 (Public) Filed Wednesday, February 24, 2021
Intro. by Lambeth, White, Potts, K. Baker.

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Bill summary

Senate committee substitute to the 2nd edition replaces the content of the 2nd edition with the following.

Part I.

Provides for the following provisions to become effective upon the later of six months after the date the act becomes law, or on the date the work requirements developed under Part II. of the act becomes law. Repeals Section 3, SL 2013-5, which bars the State from expanding the State's Medicaid eligibility under the Medicaid expansion provided in the Affordable Care Act, PL 111-148, as amended, for which the enforcement was ruled unconstitutional by the U.S. Supreme Court, and bars State entities from attempting to expand the Medicaid eligibility standards provided in SL 2011-145, as amended, or elsewhere in State law, unless directed by the NCGA. Amends GS 108A-54.3 to enact new subdivision (24), requiring the Department of Health and Human Services (DHHS) to provide Medicaid coverage to individuals described in section 1902(a)(10)(A)(i)(VIII) of the Social Security Act who are in compliance with work requirements established in the State Plan and in rule. Section 1902(a)(10)(A)(i)(VIII) of the Social Security Act includes individuals who beginning January 1, 2014, who are under 65 years of age, not pregnant, not entitled to, or enrolled for, benefits under part A of title XVIII, or enrolled for benefits under part B of title XVIII, and are not described in a another subclause, and whose income does not exceed 133% of the poverty line applicable to a family of the size involved. Makes coverage available through an Alternative Benefit Plan established by DHHS consistent with federal requirements, unless the individual is exempt from mandatory enrollment in the Plan under 42 CFR 440.315. 

Enacts GS 108A-54.3B. States legislative intent to fully fund the nonfederal share of the cost of NC Health Works, meaning the provision of Medicaid coverage to the individuals described in new GS 108A-54.3A(24), through a combination of (1) increases in revenue from the gross premium tax due to NC Health Works; (2) increases in intergovernmental transfers dur to NC Health Works; (3) the hospital health assessment under Part 3, Article 7B, GS Chapter 108A, excluding State retention; and (4) savings to the State attributable to the NC Health Works corresponding to General Fund budget reductions to other State programs. Directs DHHS to annually report, beginning in 2024, to the specified NCGA committee, division, and the Office of State Budget and Management (OSBM), as specified. Requires expeditiously discontinuing coverage for the individuals described in new GS 108A-54.3A(24) if the nonfederal share of the cost cannot be fully funded through the described sources. Requires the DHHS Secretary to notify the specified NCGA committee, division, and OSBM of such a determination, and post notice to its website including the proposed effective date of the discontinuation of coverage. Also requires the DHHS Secretary to submit necessary documentation to the Centers for Medicare and Medicaid Services (CMS).

Enacts GS 108A-54.3C to require expeditious discontinuation of Medicaid coverage if the federal medical assistance percentage for Medicaid coverage provided to the individuals described in new GS 108A-54.3A(24) falls below 90%. Requires the DHHS Secretary fulfill identical requirements as those for a discontinuation due to insufficient funds from identified sources in GS 108A-54.3B.

Establishes the ARPA Temporary Savings Fund as a nonreverting special fund in the Division of Health Benefits (DHB) consisting of any savings realized as a result of federal receipts arising from the enhanced federal medical assistance percentage (FMAP) available to the State under section 9814 of the American Rescue Plan Act (ARPA). Requires legislative allocation or expenditure of the funds.

Effective October 1, 2022, through December 31, 2022, subjects licensed hospitals to a 0.044% hospital health advancement assessment of its hospital costs, excluding critical access hospitals and State owned or operated hospitals, for the fiscal quarter beginning October 1, 2022. Raises the hospital health assessment rate to 0.539% for the State fiscal quarter beginning January 1, 2023, and the State fiscal quarter beginning April 1, 2023, effective the later of January 1, 2023, or the effective date of the Medicaid coverage under new GS 108A-54.3A(24), through June 30, 2023; provides that no assessment can be imposed for the State fiscal quarter beginning January 1, 2023, and no dss reimbursements made if the effective date occurs after March 31, 2023. For both assessment periods, requires DHHS to use $2 million of the assessment proceeds and all corresponding matching federal funds to reimburse county departments of social services (dss) for additional costs incurred in preparation to implement new GS 108A-54.3A(24). 

Revises the defined terms under Article 7B, GS Chapter 108A, the Hospital Assessment Act. Adds and defines Consumer Price Index, newly eligible individual, and nonfederal share for newly eligible individuals. Adds a new Part to the Article, statutorily providing for the hospital health advancement assessment, imposed on all licensed hospitals except critical access hospitals and State owned or operated hospitals. Requires quarterly calculation and collection. Provides for the calculation of the hospital health advancement assessment to be the sum of the service cost component, administration component, and State retention component, as those components are formulated in the Part's provisions. Requires DHHS to reimburse a county dss with proceeds attributable to the county for costs incurred in determining eligibility for newly eligible individuals, as provided in the administration subcomponent, as well as any corresponding matching federal funds. Sets the hospital health advancement assessment for the quarter beginning July 1, 2023, at 0.555%. For the quarter beginning October 1, 2023, requires DHHS to determinate the percentage by adding or subtracting the reconciliation component, calculated as described by the act, divided by the total hospital costs of all non-exempt hospitals. Effective July 1, 2023.

Amends GS 108A-145.3 to exclude capitation payments not attributable to newly eligible individuals from the definition of paid capitation applicable to the Hospital Assessment Act. Amends GS 108A-146.9 to exclude claims attributable to newly eligible individuals from the fee-for-service component of the aggregate modern hospital assessment collection amount calculated under GS 108A-146.5. Amends GS 108A-146.12 to set the postpartum coverage component of the modern hospital assessment amount at $4.5 million for each quarter of the 2023-24 fiscal year. Amends GS 108A-146.13 to set the postpartum subcomponent of the intergovernmental transfer adjustment component of the modern hospital assessment amount at $1,065,000 for the 2023-24 fiscal year. Repeals Section 9D.13A(e) and Section 9D.14, SL 2021-180. Effective July 1, 2023. 

States legislative intent to consult with stakeholders and DHB prior to the 2023 NCGA Session to consider revisions to the enacted hospital health advancement assessment.

Directs DHHS to consult with stakeholders to develop a submission to CMS to request approval for increased Medicaid reimbursements to hospitals, with a request for the highest increase that can be funded entirely through increased hospital assessment receipts in addition to the receipts for NC Health Works resulting from the hospital health advancement assessment. Requires the nonfederal share of the requested increase to be funded entirely from increased hospital assessment receipts. Requires submission of the request by October 1, 2022. Provides required steps upon CMS approval or denial, with approval requiring the NCGA to increase the hospital assessments to fully fund the nonfederal share of increased reimbursements to hospitals. Directs DHHS to report to the specified NCGA committee and division by February 1, 2023, as specified. Also requires DHHS to notify the same entities within 14 days of receipt of CMS approval, and update the required report within 30 days of receipt of CMS approval.

Part II.

Directs DHHS to develop work requirements for certain individuals eligible for Medicaid under new GS 108A-54.3A(24) as a contingency to NC Health Works participation, aligned with the Able-Bodied Adults Without Independents (ABAWDs) policy under the Supplemental Nutrition Assistance Program (SNAP). Exempts nine categories of individuals from the work requirements, including individuals who have been certified as unfit for employment for physical or mental health reasons, individuals actively participating in a substance abuse treatment and rehabilitation program, individuals who are a parent or caretaker that provides care for a dependent child with a serious medical condition or disability, and individuals who are prison inmates. 

Directs DHHS to submit any necessary State Plan amendments or waivers to implement the work requirements by October 1, 2022, and request an effective date that is six months from the date the act becomes law. 

Conditions the effect of the work requirements upon CMS approval of the requests submitted, and makes them effective on the later of (1) the date of the approved work requirements, or (2) six months after the date the act becomes law. Directs the DHHS Secretary to notify the Revisor of the effective date of the work requirements approved in the request. 

Part III.

Amends Article 9, GS Chapter 131E, governing certificates of need (CON), as follows.

Modifies the following defined terms in GS 131E-176. No longer requires as part of the criteria for expedited review of an application that the request for a public hearing was not received within the statutory time frame. No longer includes a chemical dependency treatment facility, or ambulatory surgical facility in the definition of a health service facility. No longer includes psychiatric beds or chemical dependency treatment beds as health service facility beds. No longer includes as new institutional health services, the acquisition of magnetic resonance imaging scanners, or the conversion of a specialty ambulatory surgical program to a multispecialty ambulatory surgical program, or the addition of a specialty to a specialty ambulatory surgical program. Increases the threshold set for replacement equipment from $2 million to $4 million, and requires the threshold to be annually adjusted using the Medical Care Index. Adds and defines the term related entity

Eliminates the CON exception provided for offering or development of new institutional health services set out for certain ambulatory surgical facilities providing gastrointestinal endoscopy procedures under GS 131E-178.

Amends GS 131E-182 regarding the review of CON applications for similar proposals in the same service area together, limiting such scheduling to applications for similar proposals in the same service area that are subject to the determinative limitations of need in the State Medical Facilities Plan pursuant to GS 131E-183(a)(1). Replaces the provisions of GS 131E-183(a)(1) to now provide for proposed projects for air ambulances, emergency rooms, adult care homes, nursing home facilities, intermediate care facilities for individuals with intellectual disabilities, linear accelerators, gamma knives, positron emission tomography scanners, or any combination of these to be consistent with applicable policies and need determinations in the State Medical Facilities Plan, the need determination of which constitutes a determinative limitation on the provision of any such services that may be approved. Deems all other projects exempt from and not subject to any applicable policies or need determinations in the State Medical Facilities Plan. Makes conforming changes to eliminate other required demonstrations of service needs for populations identified. Regarding proposed project accessibility, requires the applicant to include in the application past performance in meeting projects or other information incorporated into prior CON applications filed by the applicant or a related entity during the six-year calendar period preceding the application for the proposed project, and requires DHHS to use this information to determine whether certain population segment accessibility criteria are addressed. Specifies that the requirement for an applicant already involved in the provision of health services provide evidence of the quality of care the applicant has provided in the past, applies regardless of geographical location of the applicant's existing health services operations. Adds a new subsection to require DHHS to adopt rules specifying the metrics and criteria used to assess the quality of care the applicant has provided in the past for each health service for which a CON is required. Directs DHHS to adopt these rules by January 1, 2023, applicable to applications submitted after the effective date of these rules; applicable on the date the act becomes law. 

Revises the exemptions from CON review set out in GS 131E-184 as follows. Eliminates the qualifying criteria for the exemption from review of any conversion of existing acute care beds to psychiatric beds. Makes conforming changes to eliminate the exemption for the review of certain new chemical dependency or substance abuse facilities, as now eliminated as a health service facility under the Article. Amends the CON review exemptions set out in subsections (e), (f), and (g) to no longer reference a certain monetary threshold as set in identified defined terms under the Article. Adds a new CON review exemption for: (1) the replacement, renovation, or relocation of an institutional health service or a health service facility for which a CON has already been issued, provided that such action is to another site within the same service area; and (2) the development, acquisition, construction, expansion, or replacement of a health service facility that obtained CON approval prior to October 1, 2022, as a chemical dependency treatment facility or an ambulatory surgical facility. 

Revises the CON application review process set out in GS 131E-185. Eliminates the ability for any person to file written comments to DHHS and previous public hearing determination requirements. Now requires DHHS to hold a public hearing within 45 days after beginning review if determined that a public hearing is in the public interest. Maintains that DHHS must include written submissions received at the public hearing as part of the file for an application or group of applications under review. Makes conforming changes.

Regarding administrative and judicial review authorized by GS 131E-188, no longer includes the ability to petition as a contested case a CON exemption or DHHS's issuance of a CON pursuant to a settlement agreement with an applicant as permitted by law. Regarding the procedure for contested cases, now requires discovery to be completed within 60 days of filing the petition (was, within 90 days after assignment of the administrative law judge or hearing officer). Requires the hearing to be held within 30 days (was, 45 days) after the end of the discovery period, and now cannot exceed five days. Adds a new prohibition against expert witness testimony based on scientific, technical, or other specialized knowledge without proper qualification under Rule 702 of the Rules of Evidence. Requires award of all of the bond to the applicant if the contested case is dismissed or denied or the court otherwise rules in favor of the respondent, or award the bond to the petitioner if the court rules in the petitioner's favor. Replaces the definition of affected persons, now defining the term to mean only those persons who submitted applications that (1) were scheduled to begin review in the same review period proposing the same new institutional health service in the same service area and (2) were part of a competitive review involving the application that is the subject of the petition or appeal. Makes technical changes. 

Makes conforming changes to GS 148-19.1 to eliminate the CON exemption for chemical dependency or substance abuse service facilities for inmates and offenders. Effective January 1, 2023.

Includes a severability clause. 

Effective October 1, 2022. 

Part IV.

Enacts new GS 90-171.36B to prohibit an advanced practice registered nurse (APRN) from practicing as such without a license. Defines advanced practice registered nurse or APRN as an individual licensed by the North Carolina Board of Nursing (Board) as an advanced practice registered nurse within one of the following four roles: (1) nurse practitioner or NP, (2) certified nurse midwife or CNM, (3) clinical nurse specialist or CNS, or (4) certified registered nurse anesthetist or CRNA. Enacts GS 90-171.36C to require the Board to issue an APRN license to any person recognized by the Board as an APRN or approved to practice as an APRN in the state on December 31, 2021. Enacts GS 90-171.36D, which specifies the process for APRN license renewal and reinstatement. Makes conforming changes to GS 90-171.43, GS 90-171.43A, and GS 90-171.44.

Amends the definitions of terms used in the Nursing Practice Act. Adds definitions for advanced assessment, advanced practice registered nurse, population focus, practice of nursing as an advanced practice registered nurse or APRN, practice of nursing as a certified nurse midwife or CNM, practice of nursing as a certified registered nurse anesthetist or CRNA, practice of nursing as a clinical nurse specialist or CNS, and practice of nursing as a nurse practitioner or NP. Amends the components listed that define the practice of nursing by a registered nurse to include collaborating with other health care providers in determining the appropriate health care for a patient (previously, limited to not prescribing a medical treatment regimen or making a medical diagnosis, except under the supervision of a licensed physician). Makes clarifying, organizational, and technical changes.

Amends GS 90-18(c) to establish that the practice of nursing by an APRN does not constitute practicing medicine or surgery.

Repeals GS 90-18.2, which places limitations on nurse practitioners. Makes conforming changes to GS 90-2, GS 90-18.3, GS 90-85.24, and GS 90-85.34A.

Amends GS 90-29(b) to establish that a certified registered anesthetist administering anesthetic does not constitute practicing dentistry.

Amends the powers of the Board in GS 90-171.23 by empowering the Board to grant prescribing, ordering, dispensing, and furnishing authority to holders of the advanced practice registered nurses license (deletes the power of the Board to appoint and maintain a subcommittee to work with the NC Medical Board to develop rules and regulations to govern the performance of medical acts by registered nurses and to determine related application fees).

Amends GS 90-171.27 to set out fees for application for licensure, license renewal, and reinstatement of lapsed licenses for APRNs.

Repeals GS 90-171.37(b) regarding the Board's disciplinary authority over registered nurses. 

Repeals Article 10A of GS Chapter 90, Nurses Registered Under Previous Law, Practice of Midwifery. Makes conforming changes to GS 90-18 and GS 90-21.11.

Effective October 1, 2022.

Requires the Governor to submit an opt-out letter to the Centers for Medicare and Medicaid Services within 30 days of the date the section becomes law, requesting an exemption that allows hospitals, ambulatory surgical centers, critical access hospitals, and rural hospitals in the state the maximum flexibility to obtain Medicare reimbursement for anesthesia services in a manner that best serves each facility and its patients and community. 

Directs the Board, the NC Medical Board, and the State Board of Dental Examiners to adopt implementing rules.

Part V.

Enacts new GS 58-3-295 to require all contracts or agreements for participation as an in-network health services facility between an insurer offering health benefit plans in this state and a health services facility at which there are out-of-network providers who may be providing services to an insured person receiving care at the facility, to require that an in-network health services facility give at least 72 hours' advanced written notice to an insured with a scheduled appointment of the provision of any services by an out-of-network provider to the insured while at that health service facility. Sets out alternate requirements for timing of notice in situations in which there is not 72 hours between the appointment and when it is scheduled or when there is an emergency. Requires the notice to include: (1) all of the health care providers that will be rendering services who are not in-network and (2) the estimated cost to the insured of the services being rendered by those out-of-network providers. Defines a health care provider as any individual licensed, registered, or certified under GS Chapter 90, or under another state's laws, to provide health care services in the ordinary care of business or practice, as a profession, or in an approved education or training program in: (1) anesthesia or anesthesiology, (2) emergency services, (3) pathology, (4) radiology, or (5) rendering assistance to a physician performing any of these services.

Applies to contracts entered into, amended, or renewed on or after January 1, 2023.

Replaces proposed GS 58-50-305 from the 2nd edition with the following. The following is effective October 1, 2022, and applies to insurance contracts entered into, renewed, or amended on or after that date, or to health care services provided on or after that date.

Enacts GS 58-50-305 prohibiting an insurer from excluding from coverage a health care service or procedure delivered by a health care provider to an insured through telehealth only because the health care service or procedure is not provided through an in-person, face-to-face consultation. For purposes of this statute, defines telehealth as it is defined in new GS 90-21-19A (use of telecommunications technology to provide health care services to individuals who are not physically present with the health care provider) except lists 10 categories of services that are not considered telehealth unless specifically agreed upon by the insurer and the health care provider or contained in reimbursement policies of the insurer for the relevant health benefit plan. Specifies that an insurer is not required to cover any out-of-network services provided via telehealth. Allows an insurer to exclude from coverage a health care service delivered by a contracted, or an in-network, health care provider to an insured that is provided only as a telehealth service if one of the six specified circumstances apply, including that the health care provider has not agreed to share claims data or clinical data through the NC Health Information Exchange or as otherwise required by the insurer, the service is not provided by the patient’s designated primary care provider or designated medical home, or the insurer determines that the receipt of the health care services through telehealth would impact quality of care or safety of its insureds.

Amends GS 58-50-280, concerning amendments to a contract, by providing that if a health care provider objects to a proposed amendment, then the provider is allowed to terminate the contract upon 60 days written notice to the insurer issuing the health benefit plan (was, the amendment is not effective and the initiating health benefit plan or insurer is entitled to terminate the contract upon 60 days written notice to the health care provider).

Enacts new GS 90-21.19A to require specific informed consent when health care services are provided through telehealth to individuals insured under a health benefit plan. Sets out seven items that are to be required in the informed consent, including verification and authentication of the individual's personal health history, disclosure of the health care provider's identity, applicable credentials, and contact information, including a current phone number and mailing address of the health care provider's practice, and an explanation that it is the role of the health care provider to determine whether the condition being diagnosed or treated is appropriate for a telehealth encounter and advise the individual that the individual is entitled to request an in-person encounter in lieu of a telehealth visit. Requires that the health care provider identify five specified items before providing care through telehealth, including the service or procedure being provided, estimated cost of care, and the network status of the health care provider based on the health benefit plan under which the individual is insured. Sets out document and document storage requirements for providers rendering care through telehealth and prohibits charging a fee for sharing patient medical records for telehealth services. Prohibits health care providers and facilities from engaging in any balancing billing related to any health care service provided through telehealth.

Changes the act's titles.