§ 122C-1. Short title.

This Chapter may be cited as the Mental Health, Developmental Disabilities, and Substance Abuse Act of 1985.

History

(1985, c. 589, s. 2; 1989, c. 625, ss. 1, 2.)

Cross References. - See the editor's notes under G.S. 122C-22 referring to Session Laws 1999-237, ss. 18.8(a) through 18.8(c) regarding facility exemptions from licensure and certificate of need.

For exception from licensure under this chapter of inpatient chemical dependency or substance abuse facilities that provide service exclusively to inmates of the Division of Adult Correction of the Department of Public Safety, see G.S. 148-19.1.

As to establishment of the School-Based Child and Family Team Initiative, see G.S. 143B-366.

Mental Health/Substance Use Disorder Central Assessment and Navigation System Pilot Program. - Session Laws 2017-57, s. 11F.7(a)-(c), provides: "(a) Pilot Program Creation. - Of the funds appropriated in this act to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, the sum of two hundred fifty thousand dollars ($250,000) in nonrecurring funds for the 2017-2018 fiscal year and the sum of two hundred fifty thousand dollars ($250,000) in nonrecurring funds for the 2018-2019 fiscal year shall be used to oversee, in consultation with the local management entity/managed care organization (LME/MCO) responsible for the management and provision of mental health, developmental disabilities, and substance use disorder services in New Hanover County under the 1915(b)/(c) Medicaid Waiver, the establishment of a two-year pilot program to focus on assessing and navigating individuals seeking mental health or substance use disorder services, or both, to appropriate community-based services or other community resources in order to reduce the utilization of hospital emergency department services for mental health and substance use disorder services.

"(b) Program Design and Location. - The pilot program shall be conducted at New Hanover Regional Medical Center (NHRMC) and at Wellness City, operated by Recovery Innovations, Inc., by a three-person centralized team. The three-person team shall consist of the following individuals:

"(1) A master's level, fully licensed clinician to perform comprehensive clinical assessments of NHRMC patients and other New Hanover County residents exhibiting symptoms of mental illness or substance use disorder who are referred to the pilot program.

"(2) A qualified professional to assist patients, particularly those with a completed comprehensive clinical assessment, with identifying and accessing appropriate community-based services or other community resources.

"(3) A North Carolina certified peer support specialist, with specialized training and personal experience in successfully managing his or her own serious mental illness or substance use disorder, to provide peer support services, including encouraging patients to take personal responsibility for managing their condition, assisting patients in establishing meaningful roles in society, and providing patients with transportation to and from appointments.

"(c) Reports. - By July 1, 2018, the LME/MCO responsible for the management and provision of mental health, developmental disabilities, and substance abuse services in New Hanover County, in collaboration with New Hanover Regional Medical Center and Recovery Innovations, Inc., shall submit an interim report on the effectiveness of the pilot program to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (Division). By October 1, 2018, the Division shall submit an interim report on the effectiveness of the program and the costs associated with administering the program to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division.

"By July 1, 2019, the LME/MCO responsible for the management and provision of mental health, developmental disabilities, and substance abuse services in New Hanover County, in collaboration with New Hanover Regional Medical Center and Recovery Innovations, Inc., shall submit a final report of the program to the Division. By October 1, 2019, the Division shall then submit a final report of the program to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division. The report shall include the Division's recommendations with respect to sustaining or expanding the program."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Behavioral Health Clinical Integration and Performance Monitoring. - Session Laws 2013-360, s. 12F.4A(a)-(e), as amended by Session Laws 2017-57, s. 11F.16, provides: "(a) The Department of Health and Human Services shall require local management entities, including local management entities that have been approved to operate the 1915(b)/(c) Medicaid Waiver (LME/MCOs), to implement clinical integration activities with Community Care of North Carolina (CCNC) through Total Care, a collaborative initiative designed to improve and minimize the cost of care for patients who suffer from comorbid mental health or substance abuse and primary care or other chronic conditions.

"(b) The Department shall ensure that, by no later than January 1, 2014, all LME/MCOs submit claims data, including to the extent practical, retrospective claims data and integrated payment and reporting system (IPRS) data, to the CCNC Informatics Center and to the Medicaid Management Information System. Upon receipt of this claims data, CCNC shall provide access to clinical data and care management information within the CCNC Informatics Center to LME/MCOs and authorized behavioral health providers to support (i) treatment, quality assessment, and improvement activities or (ii) coordination of appropriate and effective patient care, treatment, or habilitation.

"(c) The Department, in consultation with CCNC and the LME/MCOs, shall develop quality and performance statistics on the status of mental health, developmental disabilities, and substance abuse services, including, but not limited to, variations in total cost of care, clinical outcomes, and access to and utilization of services.

"(d) The Department shall, within available appropriations and as deemed necessary by the Department, expand or alter existing contracts by mutual agreement of all parties to the contract in order to implement the provisions of this section.

"(e) Repealed by Session Laws 2017-57, s. 11F.16, effective July 1, 2017."

MH/DD/SAS Health Care Information System Project. - Session Laws 2013-360, s. 12F.5, provides: "The Department of Health and Human Services shall not take any further action or expend any funds appropriated or available to the Department to develop and implement the health care information system for State facilities operated by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services until each of the following conditions has been met:

"(1) By no later than March 1, 2014, the Department shall submit a detailed plan of this system to the Joint Legislative Oversight Committee on Health and Human Services, the Joint Legislative Oversight Committee on Information Technology, and the Fiscal Research Division. The plan shall include an explanation of at least all of the following:

"a. The process the Department used to select the Veterans Health Information Systems and Technology Architecture (VisTA), whether or not the selection process was competitive, and if not, why it was not.

"b. Requirements for vendor services to support system implementation and operation and the costs associated with this support.

"c. Governance structure for the system.

"d. Modules to be implemented in each facility and the reason for each.

"e. Assignment of responsibility for system maintenance, codes fixes, application upgrades, and hardware upgrades.

"f. Whether the application and database will be implemented at each facility or centrally managed by the Department and the reasons for the decision.

"g. Identification of additional hardware that will be required to support a statewide rollout and the location at which the Department plans to host it.

"h. Assignment of responsibility for backup and recovery.

"i. If there will be redundant failover between facilities.

"j. Plans, time lines, and costs for implementing any other modules currently offered by the United State Department of Veterans Affairs.

"k. A process for ensuring that the system software is upgraded whenever the United States Department of Veterans Affairs upgrades its system.

" l . Technology constraints for VisTA and State-supported facilities and how they will be addressed, by facility.

"m. Facility on-boarding plan for the State psychiatric hospitals and other State facilities operated by the Division.

"n. Costs and sources of funding for planning, development, and implementation at each facility and five years of costs and sources of funding for operations and maintenance at each facility.

"o. Any other costs associated with system planning, development, implementation, operation, and maintenance.

"p. Any issues associated with the planning, development, and implementation, identified by the Department, the Office of the State Chief Information Officer, the Office of Information Technology Services, or the Office of State Budget and Management, with a solution for each identified issue.

"(2) Upon submission of the plan required by subdivision (1) of this section, the Department shall obtain prior approval from the State Chief Information Officer in order to take any further action or expend any funds appropriated or available to the Department to develop and implement the health care information system for State facilities operated by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services."

Study - Alternatives to Hospitalization of Frequent Users of Psychiatric Hospitals. - Session Laws 2010-152, ss. 18.1-18.6, provide: "SECTION 18.1. The Department of Health and Human Services shall conduct a study and propose recommendations by January 31, 2011, regarding the cost-effectiveness of supportive housing as an alternative to institutionalization of the MH/DD/SA populations.

"SECTION 18.2. The study shall be conducted by a task force appointed by the Secretary of Health and Human Services.

"SECTION 18.3. The Task Force shall include the following:

"(1) Five representatives from various areas of the Department of Health and Human Services.

"(2) One representative from the Housing Trust Fund.

"(3) Six representatives from Local Management Entities.

"(4) Two representatives from the North Carolina Department of Correction [now the Division of Adult Correction of the Department of Public Safety].

"(5) One representative from the Division of Medical Assistance.

"(6) One representative from Community Care of North Carolina.

"(7) Two representatives from private providers of housing services for the mentally ill.

"(8) Two representatives from public housing agencies.

"(9) Two consumer representatives - a direct consumer and a family member, from a MH/DD/SA consumer/advocacy group.

"SECTION 18.4. The Secretary of Health and Human Services shall appoint two cochairs of the Task Force.

"SECTION 18.5. The Task Force will propose a plan focusing on the following goals:

"(1) Develop a cost-effective system of care for the MH/DD/SA population.

"(2) Decrease the need for hospital admission of target population.

"(3) Decrease the length of stay in psychiatric hospitals.

"(4) Decrease incarceration rate of the MH/DD/SA populations.

"(5) Decrease emergency room use by the MH/DD/SA populations.

"(6) Improve level of functioning of the MH/DD/SA populations.

"(7) Explore funding possibilities from Medicaid and other sources.

"(8) Decrease homelessness among the MH/DD/SA populations.

"(9) Maintain MH/DD/SA patients in community setting.

"(10) Decrease impact on law enforcement.

"(11) Make our communities safer for both consumers and others.

"(12) Reduce recidivism for the MH/DD/SA population.

"SECTION 18.6. The Task Force shall:

"(1) Identify frequent users of psychiatric beds (State and community) and emergency departments.

"(2) For the above group, determine:

"a. Their housing situation.

"b. Incarceration history.

"c. Recidivism rates.

"d. Treatment offered and treatment compliance.

"e. Other factors as determined by Task Force.

"(3) Review existing State and national initiatives in this area.

"(4) Use information from subdivisions (1) and (2) of this section to do the following:

"a. Study current practices and issues related to placement of MH/DD/SA populations following discharge from psychiatric facilities.

"b. Develop a business case for the development of a statewide supportive housing initiative to benefit MH/DD/SA populations.

"c. Calculate the number of supportive housing units needed in the State.

"d. Calculate the level of capital investment needed for this multiyear initiative.

"e. Propose different methods that could be used to pay for ongoing operational costs.

"f. Examine the potential cost-saving attained through this strategy.

"g. Calculate the level of capital investment needed for this multiyear initiative.

"(5) Other tasks as identified by the Task Force."

Session Laws 2011-185, s. 2(a), provides: "The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services of the Department of Health and Human Services shall collaborate with military agencies and other appropriate organizations to determine gaps in the care of current and former members of the reserve or active components of the Armed Forces of the United States with traumatic brain injury, shall develop recommendations for an accessible community-based neurobehavioral system of care for those service members, and shall report its recommendations by July 1, 2012, to the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Health and Human Services and Justice and Public Safety, to the Chairs of the House of Representatives Committee on Homeland Security, Military, and Veterans Affairs, and to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services. The recommendations shall be tailored so that, if implemented, services would be available to service members, veterans, and their families and would consist of neurobehavioral programs, residential programs, comprehensive day programs, and home-based programs."

Session Laws 2011-185, s. 2(b), provides: "The Division of Medical Assistance of the Department of Health and Human Services, MedSolutions, Inc., and the appropriate health professionals at the United States Department of Veterans Affairs shall work together to ensure that MedSolutions, Inc., is using the appropriate evidence-based diagnostic testing (including imaging, biomarker testing, and other tests) for screening and assessment of traumatic brain injury."

Meeting Behavioral Health Needs of Military Personnel, Veterans, and Their Families. - Session Laws 2011-185, s. 3(a) and (b), provides: "(a) The North Carolina Area Health Education Centers (AHEC) Program shall facilitate and continue to provide health education and skills training for health professional students; primary care, mental health, and substance abuse service providers; and hospital administrators about the health, mental health, and substance abuse needs of the military and their families. This training shall include information about the following:

"(1) The number of North Carolinians who are serving or who have served in the active or reserve components of the Armed Forces of the United States.

"(2) Military culture.

"(3) The average number of deployments, length of time in conflict zones, and potential injuries these members may have faced, particularly those who have served recently in Iraq or Afghanistan.

"(4) The types of health, mental health, and substance abuse disorders that service personnel may have experienced, including traumatic brain injury (TBI), posttraumatic stress disorder (PTSD), military sexual trauma (MST), depression, substance use disorders, potential suicide risks, or domestic violence.

"(5) The potential impact of the deployment cycle on family members and children. This information shall include information about resiliency skills, intervention skills, resources, and community supports.

"(6) Evidence-based screening and assessment instruments.

"(7) Evidence-based case management, treatment, and medication management for different mental health and substance abuse problems, and potential adverse effects of prescribed medications, particularly for people with comorbidities.

"(8) Information about the TRICARE system, payment, and enrollment procedures.

"(9) Available referral sources through TRICARE, the United States Department of Veterans Affairs, Military One Source, Army One Source, Defense Centers of Excellence, Deployment Health Clinical Center, the North Carolina National Guard's Integrated Behavioral Health System, Local Management Entities, the North Carolina Department of Health and Human Services (DHHS) Office of Citizen Services, North Carolina Health Info, Federally Qualified Health Centers, professional advocacy and support services, and other community resources.

"(b) In carrying out the requirements of Section 3(a) of this act, the AHEC Program shall collaborate with the Citizen Soldier Support Program; North Carolina health professional training programs; the United States Department of Veterans Affairs; the North Carolina Division of Veterans Affairs; The University of North Carolina; Operation Re-Entry North Carolina; the North Carolina Community College System; health care professional associations; the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services; Governor's Focus on Servicemembers, Veterans, and Their Families; and academic health programs."

Editor's Note. - For comparable sections of repealed Chapter 122 and new Chapter 122C, see the table at the end of Chapter 122C.

Session Laws 2002-126, s. 10.24(a), (b), provides: "(a) In order to ensure that individuals receive effective substance abuse prevention services, the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall do the following with respect to services provided to these individuals:

"(1) Designate an Office of Substance Abuse Prevention within the Department as outlined in the North Carolina Comprehensive Strategic Plan for Substance Abuse Prevention. This Office shall be responsible for the implementation of the goals in the Comprehensive Strategic Plan for Substance Abuse Prevention. The Office shall also maintain the Interagency Agreement for Substance Abuse Prevention Services and ensure continuing collaboration between agencies that are parties to the Agreement.

"(2) Provide only those prevention services that are evidenced-based and have been determined to be effective in preventing alcohol and other drug problems.

"(3) Propose rules for the licensure of prevention programs to ensure quality of service delivery in local communities. Rules shall be subject to review and adoption by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services.

"(4) Ensure that services are provided by qualified prevention professionals.

"(5) Implement an outcome-based system utilizing standard risk assessments and data elements consistent with appropriate evaluation of prevention programs.

"(b) The Department shall report on its activities under this section to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Fiscal Research Division not later than December 1, 2002."

Session Laws 2005-371, s. 1, provides: "The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall develop a central listing of mental health facilities designated for the placement of individuals to be involuntarily committed to assist law enforcement officers and others. The list shall be developed from existing funds appropriated to the Department. The listing shall be accessible on the Internet and implemented not later than October 1, 2005. The Department shall report on the implementation of the listing and the status and compliance of area authorities' crisis response service to the Joint Legislative Commission on Governmental Operations and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services not later than March 1, 2006."

Session Laws 2012-142, s. 10.23A(a)-(e), provides: "(a) The General Assembly finds that the State's long-term care industry plays a vital role in ensuring that citizens are afforded opportunities for safe housing and adequate client-centered supports in order to live as independently as possible in their homes and communities across the State. This role is consistent with citizens of the State having the opportunity to live in the most appropriate, integrated settings of their choice. The General Assembly also is committed to the development of a plan that continues to advance the State's current system into a statewide system of person-centered, affordable services and supports that emphasize an individual's dignity, choice, and independence and provides new opportunities and increased capacity for community housing and community supports.

"(b) Blue Ribbon Commission on Transitions to Community Living. - There is established the Blue Ribbon Commission on Transitions to Community Living (Commission). The Commission shall (i) examine the State's system of community housing and community supports for people with severe mental illness, severe and persistent mental illness, and intellectual and developmental disabilities and (ii) develop a plan that continues to advance the State's current system into a statewide system of person-centered, affordable services and supports that emphasize an individual's dignity, choice, and independence. In the execution of its duties, the Commission shall consider the following:

"(1) Policies that alter the State's current practices with respect to institutionally based services to community-based services delivered as close to an individual's home and family as possible.

"(2) Best practices in both the public and private sectors in managing and administering long-term care to individuals with disabilities.

"(3) An array of services and supports for people with severe mental illness and severe and persistent mental illness, such as respite, community-based supported housing and community-based mental health services, to include evidence-based, person-centered recovery supports and crisis services and supported employment.

"(4) For adults with intellectual and other developmental disabilities, expansion of community-based services and supports, housing options, and supported work. Maximize the use of habilitation services that may be available via the Medicaid 'I' option for individuals who do not meet the ICF-MR level of need.

"(5) Methods to responsibly manage the growth in long-term care spending, including use of Medicaid waivers.

"(6) Options for repurposing existing resources while considering the diverse economic challenges in communities across the State.

"(7) Opportunities for systemic change and maximization of housing, and service and supports funding streams, including State-County Special Assistance and the State's Medicaid program.

"(8) The appropriate role of adult care homes and other residential settings in the State.

"(9) Other resources that might be leveraged to enhance reform efforts.

"(c) The Commission shall be composed of 32 members as follows:

"(1) Six members of the House of Representatives appointed by the Speaker of the House of Representatives.

"(2) Six members of the Senate appointed by the President Pro Tempore of the Senate.

"(3) Secretary of the Department of Health and Human Services (DHHS) or the Secretary's designee.

"(4) Director of the Housing Finance Agency or the Director's designee.

"(5) Director of the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services of DHHS or the Director's designee.

"(6) Director of the Division of Medical Assistance of DHHS or the Director's designee.

"(7) Two mental health consumers or their family representatives.

"(8) Two developmental disabilities consumers or their family representatives.

"(9) Two persons in the field of banking or representing a financial institution with housing finance expertise.

"(10) Two representatives of local management entities anaged care organizations.

"(11) A county government representative.

"(12) A North Carolina Association, Long Term Care Facilities representative.

"(13) A North Carolina Assisted Living Association representative.

"(14) A family care home representative.

"(15) A representative of group homes for adults with developmental disabilities.

"(16) A representative of group homes for individuals with mental illness.

"(17) Two representatives of service providers with proven experience in innovated housing and support services in the State.

"The Secretary of the Department of Health and Human Services shall ensure adequate staff representation and support from the following: Division of Mental Health, Developmental Disabilities and Substance Abuse Services, Division of Aging and Adult Services, Division of Health Services Regulations, Division of Social Services, and other areas as needed.

"The Commission shall appoint a Subcommittee on Housing composed of 15 members and a Subcommittee on Adult Care Homes.

"The chairs shall jointly appoint members described in subdivisions (7) through (17) of this subsection and shall fill vacancies in those positions. The Commission shall meet at the call of the chairs. Members of the Commission shall receive per diem, subsistence, and travel expenses as provided in G.S. 120-3.1, 138-5, or 138-6, as appropriate. The Commission may contract for consultant services as provided in G.S. 120-32.02. Upon approval of the Legislative Services Commission, the Legislative Services Officer shall assign professional staff to assist the Commission in its work. Clerical staff shall be furnished to the Commission through the offices of the House of Representatives and Senate Directors of Legislative Assistants. The Commission may meet in the Legislative Building or the Legislative Office Building. The Commission may exercise all of the powers provided under G.S. 120-19 through G.S. 120-19.4 while in the discharge of its official duties. The funds needed to support the cost of the Commission's work shall be transferred from the Department of Health and Human Services upon request of the Legislative Services Director.

"(d) Transitions to Community Living Fund. - There is established the Transitions to Community Living Fund (Fund) to facilitate implementation of the plans required in subsections (e) and (f) of this section.

"(e) Of the amount appropriated to the Fund established in subsection (d) of this section, the sum of ten million three hundred thousand dollars ($10,300,000) is appropriated to support the Department of Health and Human Services in its plan for transitioning individuals with severe mental illness and severe and persistent mental illness into community living arrangements, including establishing a rental assistance program. If the State executes an agreement with the U.S. Department of Justice (USDOJ) in response to the USDOJ findings dated July 28, 2011, or implements a plan in response to the USDOJ findings, these funds shall be used to implement the requirements of the first year of the agreement or the plan. In the event such an agreement is reached, a recurring appropriation will be necessary to fully implement it. The Department may issue temporary rules to implement this subsection."

Session Laws 2012-142, s. 10.23A(f), as amended by Session Laws 2012-145, s. 3.6, provides: "(f) Of the amount appropriated to the Fund established in subsection (d) of this section, the sum of thirty-nine million seven hundred thousand dollars ($39,700,000) is designated for implementation of the State's plan to provide temporary, short-term assistance only to adult care homes as they transition into the State's Transitions to Community Living Initiative. These funds shall be used only for this purpose. The General Assembly recognizes that while transformation of the system is being undertaken, adult care homes provide stable and safe housing and care to many of North Carolina's frail and elderly population, and it is necessary during this time of transition and transformation of the statewide system that the industry remain able to provide such care.

"Following completion of an independent assessment process, as outlined in Section 10.9F(d) of this act, by December 31, 2012, and upon certification by the Department of Health and Human Services, in consultation with a local adult care home resident discharge team, as defined in G.S. 131D-2.1(3a), that a resident (i) who is no longer eligible to receive Medicaid reimbursable assistance, (ii) for whom a community placement has not yet been arranged, and (iii) who cannot be safely and timely discharged into the community, the Department may make a monthly payment to the adult care home to support the facility's continuing provision of services to the resident. The Department may make the monthly payment from the thirty-nine million seven hundred thousand dollars ($39,700,000) designated for implementation of the State's plan under this subsection. The monthly payment provided by the Department to an adult care home pursuant to this subsection shall not exceed six hundred ninety-four dollars ($694) per month per resident for a period not to exceed three months for each resident. At the expiration of this three-month period, the monthly payment shall be reduced by twenty-five percent (25%) and shall not exceed five hundred twenty dollars and fifty cents ($520.50) per month per resident. Upon implementation of the home-and community-based services program for individuals typically served in special care or memory care units, to be developed by the Department under Medicaid State Plan 1915(i) authority pursuant to Section 10.9E of this act, the Department shall terminate all monthly payments pursuant to this subsection for continuing services provided to residents of special care or memory care units. The Department shall terminate all monthly payments pursuant to this subsection on June 30, 2013. Notwithstanding any other provision of this subsection, the Department is prohibited from making any monthly payments under this subsection to an adult care home for services provided to any resident during the pendency of an appeal by or on behalf of the resident under G.S. 108A-70.9A.

"The Department of Health and Human Services shall administer these funds but may, as needed, contract with a vendor for administration."

Session Laws 2012-142, s. 10.23A(g)-(j), provides: "(g) The Department shall report its progress in complying with subsection (e) of this section to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division no later than January 2, 2013, and submit a final report no later than April 1, 2013.

"(h) The Commission shall issue an interim report by October 1, 2012, and a final plan to the 2013 General Assembly no later than February 1, 2013, at which time the Commission shall expire.

"(i) Subsection (f) of this section expires on June 30, 2013, and any unobligated funds designated for the purposes of that subsection shall revert to the Transitions to Community Living Fund established in subsection (d) of this section.

"(j) Nothing in subsection (d), (e), or (f) of this section is intended to create or shall be construed to create a right or entitlement for any individual, facility, or provider of services."

Session Laws 2012-142, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2012.'"

Session Laws 2012-142, s. 27.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2012-2013 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2012-2013 fiscal year."

Session Laws 2012-142, s. 27.7, is a severability clause.

Session Laws 2013-4 requires the Department of Health and Human Services to provide temporary, short-term financial assistance to (1) group homes serving residents determined not to be eligible for Medicaid-covered personal care services (PCS) prior to January 1, 2013, and (2) special care units serving residents who qualify for Medicaid-covered personal care services on or after January 1, 2013. Session Laws 2013-4, s. 1, which expired June 30, 2013, in subsection (a) defines "group home"; in subsection (b) provides requirements and limitations to the payments for group homes; and in subsection (c) provides requirements and limitations to payments to special care units.

Session Laws 2013-4, s. 2, provides: "Notwithstanding any provision of this act or any other provision of law, the Department of Health and Human Services shall not be required to provide any temporary, short-term financial assistance to adult care homes, group homes, or special care units beyond June 30, 2013, or upon depletion of the thirty-nine million seven hundred thousand dollars ($39,700,000) appropriated for the 2012-2013 fiscal year and designated in Section 10.23A(f) of S.L. 2012-142, as amended by Section 3.6 of S.L. 2012-145, whichever is earlier."

Session Laws 2013-4, s. 3, provides: "In order to ensure compliance with federal Medicaid comparability requirements and the settlement agreement filed on August 23, 2012, between the United States Department of Justice and the State of North Carolina, the General Assembly shall not appropriate State funds for the 2013-2014 fiscal year or the 2014-2015 fiscal year for the purposes specified in Section 10.23A(f) of S.L. 2012-142, as amended by Section 3.6 of S.L. 2012-145, or for the purposes specified in Section 1 of this act."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Session Laws 2013-397, s. 9, provides: "The Transitions to Community Living Fund established pursuant to Section 10.23A(d) of S.L. 2012-142 terminates on June 30, 2020, and any balance remaining on that date shall revert to the General Fund." Session Laws 2012-142, s. 10.23A(d) is noted in full above.

Session Laws 2020-78, s. 4E.2, provides: "The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall report annually, beginning September 1, 2020, and ending on September 1, 2026, on the implementation of the use of funds to purchase inpatient alcohol and substance use disorder treatment services required by Section 12F.12 of S.L. 2015-241, as amended by Section 11F.4 of S.L. 2017-57. The report shall be submitted to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division with the following information for the prior fiscal year and the two preceding fiscal years, for each Alcohol and Drug Abuse Treatment Center (ADATC):

"(1) The number of beds in operation.

"(2) The number of bed days.

"(3) The total amount of receipts, the amount of those receipts that were received from local management entities/managed care organizations, and the amount of those receipts that were received from all other sources.

"(4) Cost of operation of the ADATC, with personnel and staffing costs reported separately from all other costs.

"(5) The ADATC's profit or loss.”

Session Laws 2020-78, s. 22.1, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this act apply only to the 2019-2021 fiscal biennium.”

Session Laws 2020-78, s. 22.3, is a severability clause.

Legal Periodicals. - For comment, "Out of Sight, Out of Mind: Indefinite Confinement and the Unconstitutional Treatment of North Carolinians with Mental Retardation," see 35 Campbell L. Rev. 257 (2013).

For article, "About a Revolution: Toward Integrated Treatment in Drug and Mental Health Courts," see 97 N.C.L. Rev. 355 (2019).

§ 122C-2. Policy.

The policy of the State is to assist individuals with needs for mental health, developmental disabilities, and substance abuse services in ways consistent with the dignity, rights, and responsibilities of all North Carolina citizens. Within available resources it is the obligation of State and local government to provide mental health, developmental disabilities, and substance abuse services through a delivery system designed to meet the needs of clients in the least restrictive, therapeutically most appropriate setting available and to maximize their quality of life. It is further the obligation of State and local government to provide community-based services when such services are appropriate, unopposed by the affected individuals, and can be reasonably accommodated within available resources and taking into account the needs of other persons for mental health, developmental disabilities, and substance abuse services.

State and local governments shall develop and maintain a unified system of services centered in area authorities or county programs. The public service system will strive to provide a continuum of services for clients while considering the availability of services in the private sector. Within available resources, State and local government shall ensure that the following core services are available:

1. Screening, assessment, and referral.
2. Emergency services.
3. Service coordination.
4. Consultation, prevention, and education.

Within available resources, the State shall provide funding to support services to targeted populations, except that the State and counties shall provide matching funds for entitlement program services as required by law.

As used in this Chapter, the phrase "within available resources" means State funds appropriated and non-State funds and other resources appropriated, allocated or otherwise made available for mental health, developmental disabilities, and substance abuse services.

The furnishing of services to implement the policy of this section requires the cooperation and financial assistance of counties, the State, and the federal government.

History

(1977, c. 568, s. 1; 1979, c. 358, s. 1; 1983, c. 383, s. 1; 1985, c. 589, s. 2; c. 771; 1989, c. 625, s. 2; 2001-437, s. 1.1.)

Editor's Note. - The preamble to Session Laws 2001-437 reads:

"Whereas, the 1999 General Assembly, Regular Session 2000, established the Joint Legislative Oversight Committee ('Committee') on Mental Health, Developmental Disabilities, and Substance Abuse Services; and

"Whereas, the Committee was directed to develop a Plan for Mental Health System Reform; and Whereas, the General Assembly expressed the intent that the Plan be fully implemented not later than July 1, 2005; and

"Whereas, the General Assembly directed the Committee to 'Report to the 2001 General Assembly upon its convening the changes that should be made to the governance, structure, and financing of the State's mental health system at the State and local levels'; and

"Whereas, the Committee reviewed the governance, structure, and financing of the current mental health system and reported its findings and recommendations to the 2001 General Assembly for legislative action;

"Now, therefore, The General Assembly of North Carolina enacts:"

Session Laws 2006-66, s. 10.26(a) through (f), as amended by Session Laws 2006-221, s. 11, and as amended by Session Laws 2007-323, s. 10.49(n), provides: "(a) Of the funds appropriated in this act to the Department of Health and Human Services, the sum of five million two hundred fifty thousand dollars ($5,250,000) for the 2006-2007 fiscal year shall be allocated on a per capita basis and shall be used by area authorities and county programs for operational start-up, capital, or subsidies related to the development and implementation of a plan for a continuum of regional crisis facilities and local crisis services ('crisis plan'). Funds not expended during the 2006-2007 fiscal year shall not revert to the General Fund but shall remain available for the purposes outlined in this section. As used in this section, the term 'crisis' includes services for individuals with mental illnesses, developmental disabilities, and substance abuse addictions.

"(b) Of the funds appropriated in this act for consultants to aid the Division and LMEs to the Department of Health and Human Services, the sum of two hundred twenty-five thousand dollars ($225,000) for the 2006-2007 fiscal year shall be used by the Department to enter into one or more personal services contracts to provide technical assistance to Local Management Entities to develop and implement the crisis plans required under subsection (a) of this section. In addition to any other factors the Department determines are relevant when selecting the consultant, the Department shall take into consideration whether an applicant has prior experience evaluating crisis services at a local, regional, and statewide level, prior experience assisting State and local public agencies develop and implement crisis services, and the ability to implement its responsibilities within the time frames established under this section. Funds not expended during the 2006-2007 fiscal year shall not revert to the General Fund but shall remain available for the purposes outlined in this subsection.

"(c) No later than August 15, 2006, the Secretary shall designate between 15 and 25 appropriate groupings of LMEs for the development of regional crisis facilities. As used in this section, the term 'regional crisis facility' means a facility-based crisis unit that serves an area that may be larger than the catchment area of a single LME, but that provides adequate access to a facility by all consumers in the State. The Secretary shall consult with LMEs in determining the regional groupings. The Secretary shall also take into consideration geographical factors, prior LME groupings and partnerships, and existing community facilities.

"(d) With the assistance of the consultant, the LMEs within a crisis region shall work together to identify gaps in their ability to provide a continuum of crisis services for all consumers and use the funds allocated to them to develop and implement a plan to address those needs. At a minimum, the plan must address the development over time of the following components: 24-hour crisis telephone lines, walk-in crisis services, mobile crisis outreach, crisis respite/residential services, crisis stabilization units, 23-hour beds, facility-based crisis, in-patient crisis, detox, and transportation. Options for voluntary admissions to a secured facility must include at least one service appropriate to address the mental health, developmental disability, and substance abuse needs of adults, and the mental health, developmental disability, and substance abuse needs of children. Options for involuntary commitment to a secured facility must include at least one option in addition to admission to a State facility.

"If all LMEs in a crisis region determine that a facility-based crisis center is needed and sustainable on a long-term basis, the crisis region shall first attempt to secure those services through a community hospital or other community facility. If all LMEs in the crisis region determine the region's crisis needs are being met, the LMEs may use the funds to meet local crisis service needs."

"(e) Each LME shall submit its crisis services plan to the Secretary for review no later than March 1, 2007. The plan shall take into consideration and attempt to utilize all other sources of funds in addition to the funds appropriated under this section. The Secretary shall review each plan to determine whether it meets all the requirements of this section. If the Secretary approves the plan, the LME shall receive implementation funding."

"(f) LMEs shall report monthly to the Department and to the consultant regarding the use of the funds, whether there has been a reduction in the use of State psychiatric hospitals for acute admissions, and any remaining gaps in local and regional crisis services. The consultant and the Department shall report quarterly to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Fiscal Research Division, and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services regarding each LME's proposed and actual use of the funds appropriated under this section. The reporting requirements under this subsection shall expire July 1, 2008."

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'."

Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year."

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2007-323, s. 10.49(o), provides: "LMEs shall report monthly to the Department and to the consultant regarding the use of the funds, whether there has been a reduction in the use of State psychiatric hospitals for acute admissions, and any remaining gaps in local and regional crisis services. The consultant and the Department shall report quarterly to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Fiscal Research Division, and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services regarding each LME's proposed and actual use of the funds appropriated under this section. The reporting requirements under this subsection shall expire July 1, 2008."

Session Laws 2007-323, ss. 10.49(r)-(s5), provide: "(r) The Department of Health and Human Services shall develop a system for reporting to LMEs aggregate information regarding all visits to community hospital emergency departments due to a mental illness, a developmental disability, or a substance abuse disorder. The report shall be submitted on a quarterly basis beginning with the 2007-2008 fiscal year.

"(s1) Of the funds appropriated in this act to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (Division), the sum of two million five hundred thousand dollars ($2,500,000) for the 2007-2008 fiscal year and the sum of five million dollars ($5,000,000) for the 2008-2009 fiscal year shall be used to develop a pilot program to reduce State psychiatric hospital use and to increase local services for persons with mental illness. Of these funds, the sum of two hundred fifty thousand dollars ($250,000) in each fiscal year shall be retained by the Department. The remainder in each fiscal year shall be allocated to LMEs to be used in accordance with this section. The Division and each selected LME shall implement an 18-month pilot beginning in the 2007-2008 fiscal year, as provided in subsections (s2) and (s3) of this section. It is the intent of the General Assembly to provide funds to expand the pilot program in the 2008-2009 fiscal year. To this end, the Division shall develop a plan for expanded pilots as provided in subsection (s4) of this section.

"(s2) The purpose of the 18-month pilot program developed under subsection (s1) of this section and to be implemented during the 2007-2008 fiscal year is to test a mechanism to reduce psychiatric hospital use by holding an LME financially and clinically responsible for the cost of that use and by providing additional resources to build community capacity. The Department shall select up to three LMEs in the same catchment area and at least one LME in a different catchment area that submit a proposal to participate in the pilot to the Division no later than October 15, 2007. The proposal shall include a plan by the LME to reduce hospital use by a specified amount and an explanation of how the LME expects to accomplish this goal. To facilitate pilot implementation, the Division shall do all of the following:

"(1) Calculate the cost of each LME's 2006-2007 use of State psychiatric hospital services based roughly on that hospital's total budget and the percentage of patients at the hospital admitted from the LME's catchment area.

"(2) Calculate a daily rate for hospital usage based on 2006-2007 statewide usage. The daily rate shall be higher for subsequent admissions by the same patient and higher for patients admitted with a primary diagnosis of substance abuse.

"(3) Provide the results from subdivisions (1) and (2) of this subsection to all LMEs not later than September 1, 2007.

"(4) Award pilot participation not later than November 1, 2007, based upon the proposals that project the largest decrease in use and that the Division believes has the greatest likelihood of succeeding.

"(5) Commence pilot implementation not later than January 1, 2008.

"(s3) Parameters of the pilot developed under subsection (s1) of this section are as follows:

"(1) The pilot LMEs will have a virtual budget account for January 1, 2008, through June 30, 2008, based on one-half of the LME's cost of State psychiatric hospital use during the 2006-2007 fiscal year minus the LME's proposed reduction in hospital use. The virtual budget account will be for the full amount less an agreed upon reduction in the second year of the pilot.

"(2) Every bed day used by patients from that LME's catchment area will be debited against that LME's virtual account.

"(3) The cost of bed days will increase by the agreed upon amount for patients who are repeatedly admitted to the hospital.

"(4) The cost of bed days will increase by the agreed upon amount for patients who are admitted with a primary diagnosis of substance abuse.

"(5) The LME shall have one or more representatives on site at the State psychiatric hospital. The LME representatives shall be involved with patient admissions, development of treatment plans, supervision and delivery of treatment, and development and implementation of discharge plans.

"(6) The pilot LMEs shall use their allocated funds to: (i) build community capacity through start-up operations or payment for local services; (ii) pay for the on-site representative at State psychiatric hospitals; and (iii) pay for patient bed days that are in excess of RFP's projected use.

"(7) Any funds remaining from the two million two hundred fifty thousand dollar ($2,250,000) allocation shall carry over to be used by the LMEs to pay for services to the mentally ill.

"(s4) Based on the experiences of the pilot programs authorized under subsections (s2) and (s3) of this section, the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (Division) shall work with the existing hospital use study group to develop a proposal for subsequent pilots to reduce hospital use and build community services. The Division may use up to two hundred fifty thousand dollars ($250,000) in each fiscal year to develop the proposal. The Division shall submit an interim report on its progress to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services (Oversight Committee) by October 15, 2007, and a second interim report by February 1, 2008. The Division shall submit its final report to the Oversight Committee by February 1, 2009. The final report shall include a description of the pilot LMEs' success in working with local hospitals and the resulting reductions in the use of emergency rooms, jails, and State facilities.

"(s5) The budgets for the State psychiatric hospitals shall not be reduced during the 2007-2008 fiscal year as a result of the pilot developed under subsection (s1) of this section. However, those budgets shall be adjusted in following years to reflect the previous year's use by the LMEs participating in the pilot program."

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007 2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007 2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2009-451, s. 10.12(f), as amended by Session Laws 2010-31, s. 10.6(b), provides: "(1) The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall continue implementation of the current Supports Intensity Scale (SIS) assessment tool pilot project if the pilot project has demonstrated that the SIS tool:

"a. Is effective in identifying the appropriate array and intensity of services, including residential supports or placement, for individuals assessed.

"b. Is valid for determining intensity of support related to resource allocation for CAP-MR/DD, public and private ICF-MR facilities, developmental disability group homes, and other State- or federally funded services.

"c. Is used by an assessor that does not have a pecuniary interest in the determinations resulting from the assessment.

"d. Determines the level of intensity and type of services needed from developmental disability service providers.

"(1a) The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall require the seven LMEs participating in the current Supports Intensity Scale (SIS) assessment tool pilot project to administer a SIS assessment to all clients with developmental disabilities no later than October 1, 2010. The participating LMEs shall use the results of the SIS assessment to assign clients with developmental disabilities to one of the tiers within the CAP-MR/DD Waiver and to other needed services, according to their relative intensity of need.

"(2) The Department shall report on the progress of the pilot project by April 1, 2011. The Department shall submit the report to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division. The report shall include the following:

"a. The infrastructure that will be needed to assure that the administration of the assessment tool is independent from service delivery, the qualifications of assessors, training and management of data, and test-retest accountability.

"b. The cost to (i) purchase the tool, (ii) implement the tool, (iii) provide training, and (iv) provide for future expansion of the tool statewide.

"c. Information about compliance with the requirements specified in subdivision (1a) of this section by the seven LMEs participating in the current SIS assessment tool pilot project."

Session Laws 2009-451, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2009'."

Session Laws 2009-451, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2009-2011 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2009-2011 fiscal biennium."

Session Laws 2009-451, s. 28.5, is a severability clause.

§ 122C-3. Definitions.

The following definitions apply in this Chapter:

1. Area authority. - The area mental health, developmental disabilities, and substance abuse authority.
2. Area board. - The area mental health, developmental disabilities, and substance abuse board.
3. Area director. - The administrative head of the area authority program appointed pursuant to G.S. 122C-121.
4. "Behavioral health and intellectual/developmental disabilities tailored plan" or "BH IDD tailored plan" has the same meaning as in G.S. 108D-1.
5. Board of county commissioners. - Includes the participating boards of county commissioners for multicounty area authorities and multicounty programs.
6. Camp Butner reservation. - The original Camp Butner reservation as may be designated by the Secretary as having been acquired by the State and includes not only areas which are owned and occupied by the State but also those which may have been leased or otherwise disposed of by the State, and also includes those areas within the municipal boundaries of the Town of Butner and that portion of the extraterritorial jurisdiction of the Town of Butner consisting of lands not owned by the State of North Carolina.
7. Catchment area. - The geographic part of the State served by a specific area authority or county program.
8. City. - As defined in G.S. 153A-1(1).
9. Client. - An individual who is admitted to and receiving service from, or who in the past had been admitted to and received services from, a facility.
10. Client advocate. - A person whose role is to monitor the protection of client rights or to act as an individual advocate on behalf of a particular client in a facility.
11. Commission. - The Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, established under Part 4 of Article 3 of Chapter 143B of the General Statutes.
12. Commitment examiner. - A physician, an eligible psychologist, or any health professional or mental health professional who is certified under G.S. 122C-263.1 to perform the first examination for involuntary commitment described in G.S. 122C-263(c) or G.S. 122C-283(c) as required by Parts 7 and 8 of this Article.
13. Confidential information. - Any information, whether recorded or not, relating to an individual served by a facility that was received in connection with the performance of any function of the facility. "Confidential information" does not include statistical information from reports and records or information regarding treatment or services which is shared for training, treatment, habilitation, or monitoring purposes that does not identify clients either directly or by reference to publicly known or available information.
14. Core services. - Services that are necessary for the basic foundation of any service delivery system. Core services are of two types: front-end service capacity such as screening, assessment, and emergency triage, and indirect services such as prevention, education, and consultation at a community level.
15. County of residence. - The county of a client's domicile at the time of his or her admission or commitment to a facility. A county of residence is not changed because an individual is temporarily out of his or her county in a facility or otherwise.
16. County program. - A mental health, developmental disabilities, and substance abuse services program established, operated, and governed by a county pursuant to G.S. 122C-115.1.
17. Dangerous to self or others.
    1. Dangerous to self. - Within the relevant past, the individual has done any of the following:
       1. The individual has acted in such a way as to show all of the following:
          1. The individual would be unable, without care, supervision, and the continued assistance of others not otherwise available, to exercise self-control, judgment, and discretion in the conduct of the individual's daily responsibilities and social relations, or to satisfy the individual's need for nourishment, personal or medical care, shelter, or self-protection and safety.
          2. There is a reasonable probability of the individual's suffering serious physical debilitation within the near future unless adequate treatment is given pursuant to this Chapter. A showing of behavior that is grossly irrational, of actions that the individual is unable to control, of behavior that is grossly inappropriate to the situation, or of other evidence of severely impaired insight and judgment shall create a prima facie inference that the individual is unable to care for himself or herself.
       2. The individual has attempted suicide or threatened suicide and that there is a reasonable probability of suicide unless adequate treatment is given pursuant to this Chapter.
       3. The individual has mutilated himself or herself or has attempted to mutilate himself or herself and that there is a reasonable probability of serious self-mutilation unless adequate treatment is given pursuant to this Chapter.
    2. Dangerous to others. - Within the relevant past, the individual has inflicted or attempted to inflict or threatened to inflict serious bodily harm on another, or has acted in such a way as to create a substantial risk of serious bodily harm to another, or has engaged in extreme destruction of property; and that there is a reasonable probability that this conduct will be repeated. Previous episodes of dangerousness to others, when applicable, may be considered when determining reasonable probability of future dangerous conduct. Clear, cogent, and convincing evidence that an individual has committed a homicide in the relevant past is prima facie evidence of dangerousness to others.
18. Day/night service. - A service provided on a regular basis, in a structured environment that is offered to the same individual for a period of three or more hours within a 24-hour period.
19. Department. - The North Carolina Department of Health and Human Services.
20. Developmental disability. - A severe, chronic disability of a person that satisfies all of the following:
    1. Is attributable to a mental or physical impairment or combination of mental and physical impairments.
    2. Is manifested before the person attains age 22, unless the disability is caused by a traumatic brain injury, in which case the disability may be manifested after attaining age 22.
    3. Is likely to continue indefinitely.
    4. Results in substantial functional limitations in three or more of the following areas of major life activity: self-care, receptive and expressive language, capacity for independent living, learning, mobility, self-direction, and economic self-sufficiency.
    5. Reflects the person's need for a combination and sequence of special interdisciplinary, or generic care, treatment, or other services that are of a lifelong or extended duration and are individually planned and coordinated; or when applied to children from birth through age four, may be evidenced as a developmental delay.
    6. Repealed by Session Laws 2019-76, s. 1, effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.
21. Division. - The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services of the Department.
22. Repealed by Session Laws 2000-67, s. 11.21(c), effective July 1, 2000.
23. Recodified as subdivision (13d).
24. Eligible infants and toddlers. - Children with or at risk for developmental delays or atypical development until all of the following have occurred:
    1. They have reached their third birthday.
    2. Their parents have requested to have them receive services in the preschool program for children with disabilities established under Article 9 of Chapter 115C of the General Statutes.
    3. They have been placed in the program by the local educational agency.
25. Eligible psychologist. - A licensed psychologist who has at least two years' clinical experience. After January 1, 1995, "eligible psychologist" means a licensed psychologist who holds permanent licensure and certification as a health services provider psychologist issued by the North Carolina Psychology Board.
26. Facility. - Any person at one location whose primary purpose is to provide services for the care, treatment, habilitation, or rehabilitation of individuals with mental illnesses or intellectual or other developmental disabilities or substance abusers, and includes all of the following:
    1. An "area facility," which is a facility that is operated by or under contract with the area authority or county program. For the purposes of this subparagraph, a contract is a contract, memorandum of understanding, or other written agreement whereby the facility agrees to provide services to one or more clients of the area authority or county program. Area facilities may also be licensable facilities in accordance with Article 2 of this Chapter. A State facility is not an area facility.
    2. A "licensable facility," which is a facility for one or more minors or for two or more adults that provides services to individuals who have mental illnesses or intellectual or other developmental disabilities or are substance abusers. These services shall be day services offered to the same individual for a period of three hours or more during a 24-hour period, or residential services provided for 24 consecutive hours or more. Facilities for individuals who are substance abusers include chemical dependency facilities.
    3. A "private facility," which is a facility that is either a licensable facility or a special unit of a general hospital or a part of either in which the specific service provided is not covered under the terms of a contract with an area authority.
    4. The psychiatric service of the University of North Carolina Hospitals at Chapel Hill.
    5. A "residential facility," which is a 24-hour facility that is not a hospital, including a group home.
    6. A "State facility", which is a facility that is operated by the Secretary.
    7. A "24-hour facility," which is a facility that provides a structured living environment and services for a period of 24 consecutive hours or more and includes hospitals that are facilities under this Chapter.
    8. A Veterans Administration facility or part thereof that provides services for the care, treatment, habilitation, or rehabilitation of individuals with mental illnesses or intellectual or other developmental disabilities or substance abusers.
27. Guardian. - A person appointed as a guardian of the person or general guardian by the court under Chapters 7A or 35A or former Chapters 33 or 35 of the General Statutes.
28. Habilitation. - Training, care, and specialized therapies undertaken to assist a client in maintaining his current level of functioning or in achieving progress in developmental skills areas.
29. Health screening. - An appropriate screening suitable for the symptoms presented and within the capability of the entity, including ancillary services routinely available to the entity, to determine whether or not an emergency medical condition exists. An emergency medical condition exists if an individual has acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the individual's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.
30. Incapable. - With respect to an individual, as defined in G.S. 122C-72(4). An adult individual who is incapable is not the same as an incompetent adult unless the adult individual has been adjudicated incompetent under Chapter 35A of the General Statutes.
31. Incompetent adult. - An adult individual who has been adjudicated incompetent under Chapter 35A of the General Statutes.
32. Intellectual disability. - A developmental disability characterized by significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before age 22.
33. Intoxicated. - The condition of an individual whose mental or physical functioning is presently substantially impaired as a result of the use of alcohol or other substance.
34. Law enforcement officer. - Sheriff, deputy sheriff, police officer, State highway patrolman, or an officer employed by a city or county under G.S. 122C-302.
35. "Legally responsible person" means: (i) when applied to an adult, who has been adjudicated incompetent, a guardian, subject to the limitations of G.S. 35A-1241(3); (ii) when applied to a minor, a parent, guardian, a person standing in loco parentis, or a legal custodian other than a parent who has been granted specific authority by law or in a custody order to consent for medical care, including psychiatric treatment; or (iii) when applied to an adult who has a health care power of attorney and who is incapable as defined in G.S. 122C-72(4) a health care agent named pursuant to a valid health care power of attorney unless the adult is adjudicated incompetent following the execution of the health care power of attorney and the health care agent's authority is suspended pursuant to G.S. 32A-22 and G.S. 35A-1208; provided that if an incapable adult does not have a health care agent or guardian, "legally responsible person" means one of the persons specified in subdivisions (3) through (7) of subsection (c) of G.S. 90-21.13, to be selected based on the priority indicated in said subdivisions (3) through (7).
36. Local funds. - Fees from services, including client payments, Medicare and the local and federal share of Medicaid receipts, fees from agencies under contract, gifts and donations, and county and municipal funds, and any other funds not administered by the Division.
37. Local management entity (LME). - An area authority.
38. Local management entity/managed care organization (LME/MCO). - A local management entity that is under contract with the Department to operate the combined Medicaid Waiver program authorized under Section 1915(b) and Section 1915(c) of the Social Security Act or to operate a BH IDD tailored plan.
39. Mental illness. - The following:
    1. When applied to an adult, an illness which so lessens the capacity of the individual to use self-control, judgment, and discretion in the conduct of the individual's affairs and social relations as to make it necessary or advisable for the individual to be under treatment, care, supervision, guidance, or control.
    2. When applied to a minor, a mental condition, other than an intellectual disability alone, that so impairs the minor's capacity to exercise age adequate self-control or judgment in the conduct of the minor's activities and social relationships so that the minor is in need of treatment.
40. , (23) Repealed by Session Laws 2019-76, s. 1, effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.
41. Minimally adequate services. - A level of service required for compliance with all applicable State and federal laws, rules, regulations, and policies and with generally accepted professional standards and principles.
42. Other recipient. - An individual who is not admitted to a facility but who receives a service other than care, treatment, or rehabilitation services. The services that the "other recipient" may receive include consultative, preventative, educational, and assessment services.
43. Outpatient treatment physician or center. - As used in Part 7 of Article 5 of this Chapter, a physician or center that provides treatment services directly to the outpatient commitment respondent. An LME/MCO that contracts with an outpatient treatment physician or center to provide outpatient treatment services to a respondent is not an outpatient treatment physician or center. Every LME/MCO is responsible for contracting with qualified providers of services in accordance with G.S. 122C-141, 122C-142(a), 122C-115.2(b)(1)b., and 122C-115.4(b)(2) to ensure the availability of qualified providers of outpatient commitment services to clients of LME/MCOs who are respondents to outpatient commitment proceedings and meet the criteria for outpatient commitment. A contracted provider with an LME/MCO shall not be designated as an outpatient treatment physician or center on an outpatient commitment order unless the respondent enrolled with an LME/MCO or is eligible for services through an LME/MCO, or the respondent otherwise qualifies for the provision of services offered by the provider.
44. Repealed by Session Laws 2018-33, s. 1, effective October 1, 2019.
45. "Prepaid health plan" has the same meaning as in G.S. 108D-1.
46. Psychologist. - An individual licensed to practice psychology under Chapter 90 of the General Statutes. The term "eligible psychologist" is defined in subdivision (13d) of this section.
47. Public services. - Publicly funded mental health, developmental disabilities, and substance abuse services, whether provided by public or private providers.
48. Secretary. - The Secretary of the Department of Health and Human Services.
49. Security recordings. - Any films, videos, or electronic or other media recordings of a common area in a State facility that are produced for the purpose of maintaining or enhancing the health and safety of clients, residents, staff, or visitors of that State facility. The term does not include recordings of a client's clinical sessions or any other recordings that are part of a client's confidential records or information.
50. Severe and persistent mental illness.  - A mental disorder suffered by persons of 18 years of age or older that leads these persons to exhibit emotional or behavioral functioning that is so impaired as to interfere substantially with their capacity to remain in the community without supportive treatment or services of a long term or indefinite duration. This disorder is a severe and persistent mental disability, resulting in a long-term limitation of functional capacities for the primary activities of daily living, such as interpersonal relations, homemaking, self-care, employment, and recreation.
51. Renumbered as subdivision (35e).
52. Specialty services. - Services that are provided to consumers from low-incidence populations.
53. State or Local Consumer Advocate. - The individual carrying out the duties of the State or Local Consumer Advocacy Program Office in accordance with Article 1A of this Chapter.
54. State Plan. - The State Plan for Mental Health, Developmental Disabilities, and Substance Abuse Services.
55. State resources. - State and federal funds and other receipts administered by the Division.
56. Traumatic brain injury. - An injury to the brain caused by an external physical force resulting in total or partial functional disability, psychosocial impairment, or both, and meets all of the following criteria:
    1. Involves an open or closed head injury.
    2. Resulted from a single event, or resulted from a series of events which may include multiple concussions.
    3. Occurs with or without a loss of consciousness at the time of injury.
    4. Results in impairments in one or more areas of the following functions: cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech.
    5. Does not include brain injuries that are congenital or degenerative.

Previous episodes of dangerousness to self, when applicable, may be considered when determining reasonable probability of physical debilitation, suicide, or self-mutilation.

(13a1) Recodified as subdivision (13c).

In no event shall a child be considered an eligible toddler after the beginning of the school year immediately following the child's third birthday, unless the Secretary and the State Board enter into an agreement under G.S. 115C-107.1(c).

The early intervention services that may be provided for these children and their families include early identification and screening, multidisciplinary evaluations, case management services, family training, counseling and home visits, psychological services, speech pathology and audiology, and occupational and physical therapy. All evaluations performed as part of early intervention services shall be appropriate to the individual child's age and development.

(24) Next of kin. - The individual designated in writing by the client or the client's legally responsible person upon the client's acceptance at a facility. If no such designation has been made, "next of kin" means the client's spouse or nearest blood relation in accordance with G.S. 104A-1.

(25) Operating costs. - Expenditures made by an area authority in the delivery of services for mental health, developmental disabilities, and substance abuse as provided in this Chapter and includes the employment of legal counsel on a temporary basis to represent the interests of the area authority.

(26) Repealed by Session Laws 1987, c. 345, s. 1.

(27) Outpatient treatment. - As used in Part 7 of Article 5 of this Chapter, means treatment in an outpatient setting and may include medication, individual or group therapy, day or partial day programming activities, services and training including educational and vocational activities, supervision of living arrangements, and any other services prescribed either to alleviate the individual's illness or disability, to maintain semi-independent functioning, or to prevent further deterioration that may reasonably be predicted to result in the need for inpatient commitment to a 24-hour facility.

(28) Person. - Any individual, firm, partnership, corporation, company, association, joint stock association, agency, or area authority.

(29) Physician. - An individual licensed to practice medicine in North Carolina under Chapter 90 of the General Statutes or a licensed medical doctor employed by the Veterans Administration.

(30) Provider of support services. - A person that provides to a facility support services such as data processing, dosage preparation, laboratory analyses, or legal, medical, accounting, or other professional services, including human services.

(31) Qualified professional. - Any individual with appropriate training or experience as specified by the General Statutes or by rule of the Commission in the fields of mental health or developmental disabilities or substance abuse treatment or habilitation, including physicians, psychologists, psychological associates, educators, social workers, registered nurses, certified fee-based practicing pastoral counselors, and certified counselors.

(32) Responsible professional. - An individual within a facility who is designated by the facility director to be responsible for the care, treatment, habilitation, or rehabilitation of a specific client and who is eligible to provide care, treatment, habilitation, or rehabilitation relative to the client's disability.

(33) Renumbered as subdivision (32a).

(34) Repealed by Session Laws 2001-437, s. 1.2(c), effective July 1, 2002.

(35) Repealed by Session Laws 2001-437, s. 1.2(c), effective July 1, 2002.

(36) Substance abuse. - The pathological use or abuse of alcohol or other drugs in a way or to a degree that produces an impairment in personal, social, or occupational functioning. "Substance abuse" may include a pattern of tolerance and withdrawal.

(37) Substance abuser. - An individual who engages in substance abuse.

(38) Targeted population. - Those individuals who are given service priority under the State Plan.

(39) Uniform portal process. - A standardized process and procedures used to ensure consumer access to, and exit from, public services in accordance with the State Plan.

History

(1899, c. 1, s. 28; Rev., s. 4574; C.S., s. 6189; 1945, c. 952, s. 18; 1947, c. 537, s. 12; 1949, c. 71, s. 3; 1955, c. 887, s. 1; 1957, c. 1232, s. 13; 1959, c. 1028, s. 4; 1963, c. 1166, ss. 2, 10; c. 1184, s. 1; 1965, c. 933; 1973, c. 475, s. 2; c. 476, s. 133; c. 726, s. 1; c. 1408, ss. 1, 3; 1977, c. 400, ss. 2, 12; c. 568, s. 1; c. 679, s. 7; 1977, 2nd Sess., c. 1134, s. 2; 1979, c. 164, ss. 3, 4; c. 171, s. 2; c. 358, ss. 2, 26; c. 915, s. 1; c. 751, s. 28; 1981, c. 51, ss. 2-4; c. 539, s. 1; 1983, c. 280; c. 383, s. 2; c. 638, s. 2; c. 718, s. 1; c. 864, s. 4; 1983 (Reg. Sess., 1984), c. 1110, s. 4; 1985, c. 589, s. 2; c. 695, s. 1; c. 777, s. 2; 1985 (Reg. Sess., 1986), c. 863, s. 7; 1987, c. 345, s. 1; c. 830, ss. 47(a), (b); 1989, c. 141, s. 8; c. 223; c. 486, s. 2; c. 625, s. 2; 1989 (Reg. Sess., 1990), c. 823, s. 11; c. 1003, s. 2; c. 1024, s. 26(a); 1993, c. 321, s. 220(a)-(c); c. 375, s. 6; c. 396, ss. 1, 2; 1995, c. 249, s. 1; c. 406, s. 5; 1997-443, s. 11A.118(a); 1997-456, s. 27; 1998-198, s. 3; 1998-202, s. 4(r); 1999-186, s. 1; 2000-67, s. 11.21(c); 2001-437, ss. 1.2(b), 1.2(c); 2001-437, s. 1.2(a); 2003-313, s. 1; 2006-69, s. 3(n); 2006-142, ss. 4(a), 7; 2007-269, s. 3.1; 2007-502, s. 15(a); 2008-107, s. 10.15(dd); 2013-85, s. 1; 2018-33, s. 1; 2019-76, s. 1; 2019-81, s. 9; 2019-240, ss. 20(a), 22, 26(a); 2021-77, s. 1.)

Cross References. - As to licensure as a supervised living facility for developmentally disabled adults, see the editor's notes under G.S. 122C-21.

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

The definitions in the section above have been set out in alphabetical order at the direction of the Revisor of Statutes.

Subdivisions (13a1) and (13b) were renumbered as subdivisions (13c) and (13d) pursuant to S.L. 1997-456, s. 27 which authorized the Revisor of Statutes to renumber or reletter sections and parts of sections having a number or letter designation that is incompatible with the General Assembly's computer database.

Session Laws 1989 (Reg. Sess., 1990), c. 1003, s. 6 provides: "Sections 1 through 4 of this act [which amended this section] shall become effective July 1, 1990, and Section 5 of this act shall become effective July 1, 1991, if and only if specific funds are appropriated for the specific programs established by this act. Funds appropriated for the 1990-91 fiscal year or for any year in the future do not constitute any entitlement to services beyond those provided for that fiscal year. Nothing in this act creates any rights except to the extent that funds are appropriated by the State to implement its provisions from year to year and nothing in this act obligates the General Assembly to appropriate any funds to implement its provisions." An appropriation was made to implement the provisions of this act in the 1989 (Reg. Sess., 1990) Session.

The bracketed reference, "[G.S. 115C-107.1(c)]" in subdivision (13c), was added at the direction of the Revisor of Statutes as that appears to be the intended reference.

Session Laws 2007-269, s. 14.1, provides: "Section 1.1 through 14 of this act shall become effective only if the Charter of the Town of Butner is approved under section 5 of the Voting Rights Act of 1965; provided, however, that if the Charter is not approved under section 5 of the Voting Rights Act of 1965 because of any provisions contained in Article III or Article IV of the Charter, the Butner Advisory Council established in accordance with G.S. 122C-413 may make such amendments to the Article III or IV of the Charter as it, in its sole discretion, deems necessary to obtain such approval, and such amendments shall be filed in accordance with G.S. 160A-111. If the Charter is not approved, Sections 1.1 through 14 of this act have no force and effect. If the Charter is approved, then those sections become effective on the first day of the next calendar month that begins more than three days after the approval, except that the persons appointed as temporary officers under Section 3.2 of the Charter may immediately take the oath of office and take such preliminary actions as may be necessary for initial organization, personnel actions, and budget adoption, in such special meetings as may be called under G.S. 160A-71." Preclearance was received from the United States Department of Justice by letter dated October 1, 2007.

Session Laws 2007-502, ss. 18, 19, provide: "18. The Legislative Research Commission shall study the issue of whether North Carolina law should be amended to allow a person to require life-prolonging measures. The LRC shall involve all stakeholders in the study. The LRC shall report its recommendations to the 2008 Session of the 2007 General Assembly.

"19. The North Carolina Institute of Medicine (Institute) shall study issues related to the provision of end-of-life medical care in North Carolina. As part of the study, the Division of Health Service Regulation, Department of Health and Human Services, and the North Carolina Board of Medicine shall provide to the Institute nonidentifying information regarding claims and complaints related to end-of-life medical treatment by health care providers that was contrary to the express wishes of either the patient or a person authorized by law to make treatment decisions on behalf of the patient. The Institute may review any other data related to end-of-life medical care and treatment the Institute determines is relevant.

"The purpose of this study is to determine whether statutory changes related to advance directives and health care powers of attorney impact the type and quantity of end-of-life medical care provided to patients, whether the patient's or patient representative's express wishes regarding the provision of treatment at the end of life are being honored, and whether there is any change in the number of persons who request continued treatment at the end of their lives, but do not receive that treatment.

"The Institute shall report its findings to the following entities no later than January 30, 2013:

"(1) The 2013 General Assembly.

"(2) The North Carolina Bar Association.

"(3) The North Carolina Medical Society."

Session Laws 2017-32, s. 1, provides: "The Department of Health and Human Services (DHHS) and its Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services shall amend the qualifications for Qualified Professionals within the mental health, developmental disability, and substance abuse services (MH/DD/SAS) system of care, as defined in rule, clinical care policies for the Medicaid program, and the North Carolina Medicaid State Plan. The amendments to the qualifications for Qualified Professionals shall ensure that the years of full-time MH/DD/SAS experience required by the rule may be obtained either before or after obtaining the required educational degree. No later than December 1, 2017, any State Plan amendment necessary to effect these changes shall be submitted by DHHS to the Centers for Medicare and Medicaid Services (CMS). The Commission for Mental Health, Developmental Disabilities and Substance Abuse Services shall amend the rules as soon as possible but no later than six months after the date that DHHS has received CMS approval of the necessary Medicaid State Plan amendments."

Session Laws 2017-32, s. 2, provides: "Any changes to clinical coverage policies and any changes to rules adopted by the Department of Health and Human Services relating to the qualifications for Qualified Professionals required under Section 1 of this act shall not become effective until DHHS has received CMS approval of the State Plan amendment required by Section 1 of this act."

Session Laws 2018-33, s. 46, made the amendment of this section by Session Laws 2018-33, s. 1, effective October 1, 2019, and applicable to proceedings initiated on or after that date.

Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 1 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2006-69, s. 3(n), effective July 10, 2006, in subdivision (13c)b., substituted "children with disabilities established under Article 9" for "handicapped children pursuant to Part 14 of Article IX"; and substituted "birthday, unless the Secretary and the State Board enter into an agreement under G.S. 115C-106.4(c)" for "birthday" in the second paragraph of subsection (13c).

Session Laws 2006-142, ss. 4(a) and 7, effective July 19, 2006, rewrote the introductory language; rewrote subdivision (14)b.; and added subdivision (20b).

Session Laws 2007-269, s. 3.1, added the language following "disposed of by the State" at the end of subdivision (3). For effective date, see Editor's note.

Session Laws 2007-502, s. 15(a), effective October 1, 2007, deleted "as prescribed in Article 3 of Chapter 32 of the General Statutes" at the end of subdivision (20).

Session Laws 2008-107, s. 10.15(dd), effective July 1, 2008, added subdivision (23a).

Session Laws 2018-33, s. 1, added subdivisions (8a), (16a), (16b), and (27a); in subdivision (11), substituted "self" for "himself" twice; in subdivision (17), substituted "who has been adjudicated incompetent under Chapter 35A of the General Statutes" for "adjudicated incompetent"; in subdivision (20), substituted "G.S. 122C-72(4)" for "G.S. 122C-72(c)" and added the proviso at the end; in subdivision (20b), substituted "authority." for "authority, county program, or consolidated human services agency. It is a collective term that refers to functional responsibilities rather than governance structure."; and deleted subdivision (29a), which read: " 'Program director' means the director of a county program established pursuant to G.S. 122C-115.1." For effective date and applicability, see editor's note.

Session Laws 2019-76, s. 1, rewrote this section. For effective date and applicability, see editor's note.

Session Laws 2019-81, s. 9, effective October 1, 2019, added subdivision (2b); redesignated former subdivision (2b) as subdivision (2c); added "or to operate a BH IDD tailored plan" at the end of subdivision (20c); and added subdivision (29b).

Session Laws 2019-240, ss. 20(a), 22, 26(a), effective November 6, 2019, redesignated former subdivision (33) as subdivision (32a); added subdivisions (32b) and 38(a); rewrote subdivision (12a); and in subdivision (20), inserted "subject to the limitations of G.S. 35A-1241(3)" in clause (i) and substituted "has a health care power of attorney and who is incapable as defined in G.S. 122C-72(4) a health care agent named pursuant to a valid health care power of attorney unless the adult is adjudicated incompetent following the execution of the health care power of attorney and the health care agent's authority is suspended pursuant to G.S. 32A-22 and G.S. 35A-1208" for "is incapable as defined in G.S. 122C-72(4) and who has not been adjudicated incompetent" in clause (iii).

Session Laws 2021-77, s. 1, effective July 2, 2021, substituted "a mental or physical impairment or combination of mental and physical impairments” for "one or more impairments” in subdivision (12a)a.

Legal Periodicals. - For survey of 1979 administrative law, see 58 N.C.L. Rev. 1185 (1980).

For survey of 1983 law on constitutional law, see 62 N.C.L. Rev. 1149 (1984).

For note, "Psychiatrists' Liability to Third Parties for Harmful Acts Committed by Dangerous Patients," see 64 N.C.L. Rev. 1534 (1986).

For comment, "Criminal Defendants Deemed Incapable to Proceed to Trial: An Evaluation of North Carolina's Statutory Scheme," see 26 Campbell L. Rev. 41 (2004).

For comment, "Out of Sight, Out of Mind: Indefinite Confinement and the Unconstitutional Treatment of North Carolinians with Mental Retardation," see 35 Campbell L. Rev. 257 (2013).

§ 122C-4. Use of phrase "client or the legally responsible person".

1. Except as otherwise provided by law, whenever in this Chapter the phrase "client or the legally responsible person" is used, and the client is a minor or an incompetent adult, the duty or right involved shall be exercised not by the client, but by the legally responsible person.
2. Except as otherwise provided by law, whenever in this Chapter the phrase "client or the legally responsible person" is used, and the client is an incapable adult, the duty or right involved shall be exercised by a health care agent named pursuant to a valid health care power of attorney, if one exists, or by the client as expressed in a valid advance instruction for mental health treatment, if one exists. If no health care power of attorney or advance instruction for mental health treatment exists, the legally responsible person for an incapable adult who has not been adjudicated incompetent under Chapter 35A of the General Statutes shall be one of the persons listed in subdivisions (3) through (7) of subsection (c) of G.S. 90-21.13, to be selected based on the priority order indicated in said subdivisions (3) through (7).

History

(1985, c. 589, s. 2; 2018-33, s. 2; 2019-240, s. 26(b).)

Editor's Note. - Session Laws 2018-33, s. 46, made the amendment of this section by Session Laws 2018-33, s. 2, effective October 1, 2019, and applicable to proceedings initiated on or after that date.

Effect of Amendments. - Session Laws 2018-33, s. 2, substituted "the legally" for "his legally" in the section catchline; designated the previously existing provisions as subsection (a), and substituted "the legally" for "his legally" in the middle; and added subsection (b). For effective date and applicability, see editor's note.

Session Laws 2019-240, s. 26(b), effective November 6, 2019, in subsection (b), in the first sentence, deleted "who has not been adjudicated incompetent under Chapter 35A of the General Statutes" preceding "the duty" and deleted "not by the client but" following "be exercised."

Opinions of Attorney General

Right to Choose Attorney. - A minor client who is receiving treatment or habilitation from a 24-hour facility, as that term is defined in G.S. 122C-3(14)g, does not have the right to choose at his or her own expense or the expense of his or her legally responsible person, an attorney of the minor client's choice. The legally responsible person is the only one who can choose an attorney for the minor client unless the minor is over the age of 16 and emancipated. See opinion of Attorney General to C. Robin Britt, Sr., Secretary, Department of Human Resources, - N.C.A.G. - (December 20, 1995).

§ 122C-5. Report on restraint and seclusion.

The Secretary shall report annually on October 1 to the Joint Legislative Oversight Committee on Health and Human Services on the following for the immediately preceding fiscal year:

1. The level of compliance of each facility with applicable State and federal laws, rules, and regulations governing the use of restraints and seclusion. The information shall indicate areas of highest and lowest levels of compliance.
2. The total number of facilities that reported deaths under G.S. 122C-31, the number of deaths reported by each facility, the number of deaths investigated pursuant to G.S. 122C-31, and the number found by the investigation to be related to the use of restraint or seclusion.

History

(2000-129, s. 3(b); 2003-58, s. 1; 2011-291, s. 2.40.)

Effect of Amendments. - Session Laws 2011-291, s. 2.40, effective June 24, 2011, substituted "Joint Legislative Oversight Committee on Health and Human Services" for "Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services" in the introductory paragraph.

§ 122C-6. Smoking prohibited; penalty.

1. Smoking is prohibited inside facilities licensed under this Chapter. As used in this section, "smoking" means the use or possession of any lighted cigar, cigarette, pipe, or other lighted smoking product. As used in this section, "inside" means a fully enclosed area.
2. The person who owns, manages, operates, or otherwise controls a facility subject to this section shall:
   1. Conspicuously post signs clearly stating that smoking is prohibited inside the facility. The signs may include the international "No Smoking" symbol, which consists of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it.
   2. Direct any person who is smoking inside the facility to extinguish the lighted smoking product.
   3. Provide written notice to individuals upon admittance that smoking is prohibited inside the facility and obtain the signature of the individual or the individual's representative acknowledging receipt of the notice.
3. The Department may impose an administrative penalty not to exceed two hundred dollars ($200.00) for each violation on any person who owns, manages, operates, or otherwise controls a facility licensed under this Chapter and fails to comply with subsection (b) of this section. A violation of this section constitutes a civil offense only and is not a crime.
4. This section does not apply to State psychiatric hospitals.

History

(2007-459, s. 3.)

Editor's Note. - Session Laws 2007-459, s. 5, made this section effective October 1, 2007, and applicable to violations committed on or after that date.

Session Laws 2007-459, s. 5, also provides in part: "G.S. 131D-4.4(c)(3), 131E-114.3(b)(3), and 122C-6(b)(3), as enacted by this act, apply to individuals admitted to the facility on or after October 1, 2007."

§§ 122C-7 through 122C-9: Reserved for future codification purposes.

§ 122C-10. (This article has a contingent effective date - see note) MH/DD/SA Consumer Advocacy Program.

The General Assembly finds that many consumers of mental health, developmental disabilities, and substance abuse services are uncertain about their rights and responsibilities and how to access the public service system to obtain appropriate care and treatment. The General Assembly recognizes the importance of ensuring that consumers have information about the availability of services and access to resources to obtain timely quality care. There is established the MH/DD/SA Consumer Advocacy Program. The purpose of this Program is to provide consumers, their families, and providers with the information and advocacy needed to locate appropriate services, resolve complaints, or address common concerns and promote community involvement. It is further the intent of the General Assembly that the Department, within available resources and pursuant to its duties under this Chapter, ensure that the performance of the mental health care system in this State is closely monitored, reviews are conducted, findings and recommendations and reports are made, and that local and systemic problems are identified and corrected when necessary to promote the rights and interests of all consumers of mental health, developmental disabilities, and substance abuse services.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - Session Laws 2001-437, s. 4, as amended by Session Laws 2002-126, s. 10.30, as amended by Session Laws 2003-284, s. 10.10, as amended by Session Laws 2005-276, s. 10.27, provides that s. 2 of the act, which added this Article, becomes effective July 1 of the fiscal year for which funds are appropriated by the General Assembly for that purpose.

Session Laws 2001-437, ss. 3(a) to 3(d), provide:

"(a) The Department of Health and Human Services shall do the following to prepare for the certification of area authorities and county programs to administer and deliver mental health, developmental disabilities, and substance abuse services.

"(1) Develop the State Plan for Mental Health, Developmental Disabilities, and Substance Abuse Services in accordance with G.S. 122C-102. Not later than December 1, 2001, the Department shall submit the State Plan to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services for its review.

"(2) Review all rules currently in effect and adopted by the Secretary, the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services and identify areas of duplication, vagueness, or ambiguity in content or in application. In conducting this review, the Department shall solicit input from current area authorities and providers on perceived problems with rules. The review may also include review of rules pertaining to mental health, developmental disabilities, and substance abuse services that are in effect and adopted by agencies other than the Secretary and the Commission.

"(3) Review the oversight and monitoring functions currently implemented by the Department to determine the effectiveness of the activities in achieving the intended results. Improve the oversight and monitoring functions and activities, if necessary.

"(4) Develop service standards, outcomes, and a financing formula for core and targeted services to prepare for their administration, financing, and delivery by area authorities and county programs.

"(5) Develop format and required content for business plans submitted by boards of county commissioners and for contractual agreements between the Department and area authorities or county commissioners for county programs. Develop a method for departmental evaluation of local business plans. Contractual agreements for the provision of services shall provide for:

"a. Terms of a minimum of three years.

"b. Annual review and renewal.

"c. Specific conditions under which the Department will provide technical assistance, impose sanctions, or terminate participation.

"d. Terms of the business plan.

"e. Award of start-up funds for consolidation of area or county programs.

"(6) Report on the Department's readiness to implement system reform.

"(7) Establish criteria and operational procedures for the Consumer Advocacy Program and make a report to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services on or before March 1, 2002.

"(8) Develop a catchment area consolidation plan. The Secretary shall anticipate receiving letters of intent from boards of county commissioners on or before October 1, 2002, indicating the intent of a county or counties to provide services through an existing area authority or through a county program established pursuant to G.S. 122C-115.1. The Secretary shall develop the consolidation plan based on the letters of intent, the State Plan, geographic and population targeted thresholds, and capacity to implement the business plan. The consolidation plan shall provide for consolidation target of no more than 20 area authorities and county programs. The Secretary, in consultation with county commissioners and area authorities, shall complete the consolidation plan by September 1, 2004, and shall submit it no later than January 1, 2005, to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, the Governor, and each board of county commissioners. The total number of area authorities and county programs shall be reduced to no more than a target of 20 by January 1, 2007.

"(9) Develop a readiness plan to conduct readiness reviews and certify all county programs and area authorities based on readiness by July 1, 2004. Each area authority and county program shall submit its approved business plan to the Secretary pursuant to G.S. 122C-115.2 by January 1, 2003. The Secretary shall review the business plans as provided in G.S. 122C-115.2(c), conduct readiness reviews, and provide necessary assistance to resolve outstanding issues. The Secretary shall complete certification of one-third of the area authorities and county programs by July 1, 2003; two-thirds of the area authorities and county programs by January 1, 2004; and shall complete certification of all area authorities and county programs by July 1, 2004.

"The activities required under subdivisions (1) through (6) of this section [ss. 3(a)(1) to 3(a)(6) of Session Laws 2001-437] shall be completed by December 1, 2001. On or before December 1, 2001, and quarterly thereafter, the Department shall submit a progress report on each of the activities required under this section [s. 3 of Session Laws 2001-437]. The Department shall make its reports to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services.

"(b) Rules adopted by the Secretary of Health and Human Services and the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services shall be adopted in accordance with Chapter 150B of the General Statutes.

"(c) The Secretary shall study consolidating the Quality of Care Consumer Advocacy Program as provided in Section 2 of this act [s. 2 of Session Laws 2001-437, which added Article 1A of Chapter 122C, effective July 1, 2002, contingent on an appropriation] with other consumer advocacy or ombudsman programs in the Department of Health and Human Services. The study shall include:

"(1) An analysis of the budgetary implications of consolidation;

"(2) Strategies for local interagency collaboration and coordination of ombudsman and consumer assistance services; and

"(3) The possible effects of the consolidation on quality of care, service delivery, and consumer assistance for each affected consumer population.

"The Secretary shall report the findings and recommendations, including enabling legislation, to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services on or before March 1, 2002.

"(d) The Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services shall conduct an in-depth review of the current methods of and disparities in the allocation of State funding to area authorities and county programs for mental health, developmental disabilities, and substance abuse services and shall recommend necessary changes in allocation formulae, methods, and procedures that will ensure equitable allocation and use of State funds to provide these services throughout the State. Not later than May 1, 2002, the Committee shall report its findings and recommendations, including fiscal information on the cost to address funding allocation disparities, to the General Assembly, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division."

Session Laws 2002-126, s. 1.2, provides: "This act shall be known as 'The Current Operations, Capital Improvements, and Finance Act of 2002'."

Session Laws 2002-126, s. 31.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2002-2003 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2002-2003 fiscal year. For example, uncodified provisions of this act relating to the Medicaid program apply only to the 2002-2003 fiscal year."

Session Laws 2002-126, s. 31.6, is a severability clause.

Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003'."

Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium."

Session Laws 2003-284, s. 49.5, is a severability clause.

Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'."

Session Laws 2005-276, s. 46.5, is a severability clause.

§ 122C-11. (This article has a contingent effective date - see notes) MH/DD/SA Consumer Advocacy Program/definitions.

Unless the context clearly requires otherwise, as used in this Article:

1. "MH/DD/SA" means mental health, developmental disabilities, and substance abuse.
2. "State Consumer Advocate" means the individual charged with the duties and functions of the State MH/DD/SA Consumer Advocacy Program established under this Article.
3. "State Consumer Advocacy Program" means the State MH/DD/SA Consumer Advocacy Program.
4. "Local Consumer Advocate" means an individual employed and certified by the State Consumer Advocate to perform the duties and functions of the MH/DD/SA Local Consumer Advocacy Program in accordance with this Article.
5. "Local Consumer Advocacy Program" means a local MH/DD/SA Local Consumer Advocacy Program.
6. "Consumer" means an individual who is a client or a potential client of public services from a State or area facility.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-12. (This article has a contingent effective date - see note) State MH/DD/SA Consumer Advocacy Program.

The Secretary shall establish a State MH/DD/SA Consumer Advocacy Program office in the Office of the Secretary of Health and Human Services. The Secretary shall appoint a State Consumer Advocate. In selecting the State Consumer Advocate, the Secretary shall consider candidates recommended by citizens' organizations representing the interest of individuals with needs for mental health, developmental disabilities, and substance abuse services. The State Consumer Advocate may hire individuals to assist in executing the State Consumer Advocacy Program and to act on the State Consumer Advocate's behalf. The State Consumer Advocate shall have expertise and experience in MH/DD/SA, including expertise and experience in advocacy. The Attorney General shall provide legal staff and advice to the State Consumer Advocate.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-13. (This article has a contingent effective date - see note) State Consumer Advocate duties.

The State Consumer Advocate shall:

1. Establish Local Quality Care Consumer Advocacy Programs described in G.S. 122C-14 and appoint the Local Consumer Advocates.
2. Establish certification criteria and minimum training requirements for Local Consumer Advocates.
3. Certify Local Consumer Advocates. The certification requirements shall include completion of the minimum training requirements established by the State Consumer Advocate.
4. Provide training and technical Advocacy to Local Consumer Advocates.
5. Establish procedures for processing and resolving complaints both at the State and local levels.
6. Establish procedures for coordinating complaints with local human rights committees and the State protection and advocacy agency.
7. Establish procedures for appropriate access by the State and Local Consumer Advocates to State, area authority, and county program facilities and records to ensure MH/DD/SA. The procedures shall include, but not be limited to, interviews of owners, consumers, and employees of State, area authority, and county program facilities, and on-site monitoring of conditions and services. The procedures shall ensure the confidentiality of these records and that the identity of any complainant or consumer will not be disclosed except as otherwise provided by law.
8. Provide information to the public about available MH/DD/SA services, complaint procedures, and dispute resolution processes.
9. Analyze and monitor the development and implementation of federal, State, and local laws, regulations, and policies relating to consumers and recommend changes as considered necessary to the Secretary.
10. Analyze and monitor data relating to complaints or concerns about access and issues to identify significant local or systemic problems, as well as opportunities for improvement, and advise and assist the Secretary in developing policies, plans, and programs for ensuring that the quality of services provided to consumers is of a uniformly high standard.
11. Submit a report annually to the Secretary, the Joint Legislative Oversight Committee on Health and Human Services, and the Joint Legislative Health Care Oversight Committee containing data and findings regarding the types of problems experienced and complaints reported by or on behalf of providers, consumers, and employees of providers, as well as recommendations to resolve identified issues and to improve the administration of MH/DD/SA facilities and the delivery of MH/DD/SA services throughout the State.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27; 2011-291, s. 2.41.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

Effect of Amendments. - Session Laws 2011-291, s. 2.41, effective June 24, 2011, substituted "Joint Legislative Oversight Committee on Health and Human Services" for "Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services" in subdivision (11).

§ 122C-14. (This article has a contingent effective date - see note) Local Consumer Advocate; duties.

1. The State Consumer Advocate shall establish a Local MH/DD/SA Consumer Advocacy Program in locations in the State to be designated by the Secretary. In determining where to locate the Local Consumer Advocacy Programs, the Secretary shall ensure reasonable consumer accessibility to the Local Consumer Advocates. Local Consumer Advocates shall administer the Local Consumer Advocacy Programs. The State Consumer Advocate shall appoint a Local Consumer Advocate for each of the Local Consumer Advocacy Programs. The State Consumer Advocate shall supervise the Local Consumer Advocates.
2. Pursuant to policies and procedures established by the State Consumer Advocate, the Local Consumer Advocate shall:
   1. Assist consumers and their families with information, referral, and advocacy in obtaining appropriate services.
   2. Assist consumers and their families in understanding their rights and remedies available to them from the public service system.
   3. Serve as a liaison between consumers and their families and facility personnel and administration.
   4. Promote the development of consumer and citizen involvement in addressing issues relating to MH/DD/SA.
   5. Visit the State, area authority, or county program facilities to review and evaluate the quality of care provided to consumers and submit findings to the State Consumer Advocate.
   6. Work with providers and consumers and their families or advocates to resolve issues of common concern.
   7. Participate in regular Local Consumer Advocate training established by the State Consumer Advocate.
   8. Report regularly to area authorities and county programs, county and area authority boards, and boards of county commissioners about the Local Consumer Advocate's activities, including the findings made pursuant to subdivision (5) of this subsection.
   9. Provide training and technical assistance to counties, area authority boards, and providers concerning responding to consumers, evaluating quality of care, and determining availability of services and access to resources.
   10. Coordinate activities with local human rights committees based on procedures developed by the State Consumer Advocate.
   11. Provide information to the public on MH/DD/SA issues.
   12. Perform any other related duties as directed by the State Consumer Advocate.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-15. (This article has a contingent effective date - see note) State/Local Consumer Advocate; authority to enter; communication with residents, clients, patients; review of records.

1. For purposes of this section, G.S. 122C-16 and G.S. 122C-17, "Consumer Advocate" means either the State Consumer Advocate or any Local Consumer Advocate.
2. In performing the Consumer Advocate's duties, a Consumer Advocate shall have access at all times to any State or area facility and shall have reasonable access to any consumer or to an employee of a State or area facility. Entry and access to any consumer or to an employee shall be conducted in a manner that will not significantly disrupt the provision of services. If a facility requires visitor registration, then the Consumer Advocate shall register.
3. In performing the Consumer Advocate's duties, a Consumer Advocate may communicate privately and confidentially with a consumer. A consumer shall not be compelled to communicate with a Consumer Advocate. When initiating communication, a Consumer Advocate shall inform the consumer of the Consumer Advocate's purpose and that a consumer may refuse to communicate with the Consumer Advocate. A Consumer Advocate also may communicate privately and confidentially with State and area facility employees in performing the Consumer Advocate's duties.
4. Notwithstanding G.S. 8-53, G.S. 8-53.3, or any other law relating to confidentiality of communications involving a consumer, in the course of performing the Consumer Advocate's duties, the Consumer Advocate may access any information, whether recorded or not, concerning the admission, discharge, medication, treatment, medical condition, or history of any consumer to the extent permitted by federal law and regulations. Notwithstanding any State law pertaining to the privacy of personnel records, in the course of the Consumer Advocate's duties, the Consumer Advocate shall have access to personnel records of employees of State, area authority, or county program facilities.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-16. (This article has a contingent effective date - see note) State/Local Consumer Advocate; resolution of complaints.

1. Following receipt of a complaint, a Consumer Advocate shall attempt to resolve the complaint using, whenever possible, informal mediation, conciliation, and persuasion.
2. If a complaint concerns a particular consumer, the consumer may participate in determining what course of action the Consumer Advocate should take on the consumer's behalf. If the consumer has an opinion concerning a course of action, the Consumer Advocate shall consider the consumer's opinion.
3. Following receipt of a complaint, a Consumer Advocate shall contact the service provider to allow the service provider the opportunity to respond, provide additional information, or initiate action to resolve the complaint.
4. Complaints or conditions adversely affecting consumers that cannot be resolved in the manner described in subsection (a) of this section shall be referred by the Consumer Advocate to the appropriate licensing agency under Article 2 of this Chapter.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-17. (This article has a contingent effective date - see note) State/Local Consumer Advocate; confidentiality.

1. Except as required by law, a Consumer Advocate shall not disclose the following:
   1. Any confidential or privileged information obtained pursuant to G.S. 122C-15 unless the affected individual authorizes disclosure in writing; or
   2. The name of anyone who has furnished information to a Consumer Advocate unless the individual authorizes disclosure in writing.
2. Violation of this section is a Class 3 misdemeanor, punishable only by a fine not to exceed five hundred dollars ($500.00).
3. All confidential or privileged information obtained under this section and the names of persons providing information to a Consumer Advocate are exempt from disclosure pursuant to Chapter 132 of the General Statutes. Access to substance abuse records and redisclosure of protected information shall be in compliance with federal confidentiality laws protecting medical records.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-18. (This article has a contingent effective date - see note) State/Local Consumer Advocate; retaliation prohibited.

No one shall discriminate or retaliate against any person, provider, or facility because the person, provider, or facility in good faith complained or provided information to a Consumer Advocate.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-19. (This article has a contingent effective date - see note) State/Local Consumer Advocate; immunity from liability.

1. The State and Local Consumer Advocate shall be immune from liability for the good faith performance of official Consumer Advocate duties.
2. A State or area facility, its employees, and any other individual interviewed by a Consumer Advocate are immune from liability for damages resulting from disclosure of any information or documents to a Consumer Advocate pursuant to this Article.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§ 122C-20. (This article has a contingent effective date - see note) State/Local Consumer Advocate; penalty for willful interference.

Willful interference by an individual other than the consumer or the consumer's representative with the State or a Local Consumer Advocate in the performance of the Consumer Advocate's official duties is a Class 1 misdemeanor.

History

(2001-437, s. 2; 2002-126, s. 10.30; 2003-284, s. 10.10; 2005-276, s. 10.27.)

Editor's Note. - For contingent effective date, see editor's note at G.S. 122C-10.

§§ 122C-20.1 through 122C-20.4: Reserved for future codification purposes.

§ 122C-20.5. Definitions.

The following definitions apply in this Article:

1. Individual with serious and persistent mental illness or SPMI. - A person who is 18 years of age or older who meets one of the following criteria:
   1. Has a mental illness or disorder that is so severe and chronic that it prevents or erodes development of functional capacities in primary aspects of daily life such as personal hygiene and self-care, decision making, interpersonal relationships, social transactions, learning, and recreational activities.
   2. Is receiving Supplemental Security Income or Social Security Disability Income due to mental illness.
2. Individual with serious mental illness or SMI. - An individual who is 18 years of age or older with a mental illness or disorder that is described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, that impairs or impedes functioning in one or more major areas of living and is unlikely to improve without treatment, services, supports, or all three. The term does not include a primary diagnosis of Alzheimer's disease or dementia.

History

(2013-397, s. 6(a).)

Editor's Note. - The definitions were enacted by Session Laws 2013-397, s. 6(a), in reverse order, and were redesignated at the direction of the Revisor of Statutes.

Session Laws 2013-397, s. 6(b), provides: "By no later than October 1, 2013, each LME/MCO shall transition at least 15 eligible individuals to community-based supported housing slots available through the North Carolina Supportive Housing Program established under G.S. 122C-20.5."

Session Laws 2013-397, s. 7, provides: "Funds appropriated to the Department of Health and Human Services for the 2013-2015 fiscal biennium to develop and implement housing, support, and other services for people with mental illness pursuant to the Department of Justice settlement agreement shall be used as follows:

"(1) The sum of one million seven hundred forty-five thousand two hundred eighty dollars ($1,745,280) for fiscal year 2013-2014 and the sum of three million one hundred twenty thousand thirty-seven dollars ($3,120,037) for fiscal year 2014-2015 shall be used to establish and operate the North Carolina Supportive Housing Program authorized in Article 1B of Chapter 122C of the General Statutes.

"(2) The sum of one million four hundred forty thousand dollars ($1,440,000) for fiscal year 2013-2014 and the sum of one million five hundred forty thousand dollars ($1,540,000) for fiscal year 2014-2015 shall be used for program administration for the North Carolina Supportive Housing Program authorized in Article 1B of Chapter 122C of the General Statutes.

"(3) The sum of six hundred fifty thousand dollars ($650,000) for fiscal year 2013-2014 and the sum of one million two hundred sixteen thousand dollars ($1,216,000) for fiscal year 2014-2015 shall be used to provide one-time transition stability funds, not to exceed two thousand dollars ($2,000) per individual, to cover the cost of up-front move-in costs for individuals placed in housing slots available through the North Carolina Supportive Housing Program authorized in Article 1B of Chapter 122C of the General Statutes.

"(4) Any funds appropriated for the 2014-2015 fiscal year that are not used for the purposes set forth in subdivisions (1) through (3) of this section shall be used to provide a comprehensive array of services that individuals need to transition to and be maintained in the community."

Session Laws 2013-397, s. 9, provides: "The Transitions to Community Living Fund established pursuant to Section 10.23A(d) of S.L. 2012-142 terminates on June 30, 2020, and any balance remaining on that date shall revert to the General Fund." Session Laws 2012-142, s. 10.23A is noted in full under G.S. 122C-1.

§ 122C-20.6. Department to establish statewide supportive housing program for individuals transitioning into community living; purpose.

The Department of Health and Human Services, in consultation with the North Carolina Housing Finance Agency, shall establish and administer a tenant-based rental assistance program known as the North Carolina Supportive Housing Program. The purpose of the program is to transition individuals diagnosed with serious mental illness or serious and persistent mental illness from institutional settings to more integrated community-based settings appropriate to meet their needs. Under the program, the Department, in consultation with the North Carolina Housing Finance Agency and LME/MCOs, shall arrange for program participants to be transitioned to housing slots available through the program with all the rights and obligations created by a landlord-tenant relationship.

History

(2013-397, s. 6(a).)

§ 122C-20.7. Administration of housing subsidies for supportive housing.

The Department may enter into a contract with a private vendor to serve as the housing subsidy administrator for the North Carolina Supportive Housing Program with responsibility for distributing rental vouchers and community living vouchers to program participants based on a formula developed by the Department.

History

(2013-397, s. 6(a).)

§ 122C-20.8. Eligibility requirements for NC Supportive Housing Program.

The Division of Aging and Adult Services shall adopt rules to establish eligibility requirements for the program. The eligibility requirements shall, at a minimum, include income eligibility requirements and requirements to give priority for program participation and transition services to individuals diagnosed with serious mental illness or serious and persistent mental illness who are currently residing in institutional settings. The Division may adopt temporary rules necessary to implement this Article.

History

(2013-397, s. 6(a).)

§ 122C-20.9. In-reach activities for supportive housing.

The Department shall have ongoing responsibility for developing and distributing a list of potentially eligible program participants for each LME/MCO by catchment area. Upon receipt of this information, each LME/MCO shall have ongoing responsibility for prioritizing the list of individuals to whom it will provide in-reach activities in order to (i) arrange an in-person meeting with potentially eligible participants to determine their eligibility and level of interest and (ii) report back to the Department on the LME/MCO's recommended list of program participants on a daily basis. Upon receipt of an LME/MCO's recommended list of program participants, the Department shall make a final determination of eligibility.

History

(2013-397, s. 6(a).)

§ 122C-20.10. Allocation of supportive housing slots to LME/MCOs.

The Department shall annually determine the number of housing slots to be allocated to each LME/MCO as follows:

1. Each year, the Department shall distribute at least fifty percent (50%) of the housing slots available through this program equally among all LME/MCOs.
2. The Department shall award additional housing slots to LME/MCOs based on local need, as determined by the information provided by LME/MCOs to the Department in accordance with G.S. 122C-20.9.

History

(2013-397, s. 6(a).)

§ 122C-20.11. Transition of program participants into housing slots.

The LME/MCO shall develop a written transition plan for each individual determined to be eligible and interested in participating in the North Carolina Supportive Housing Program. The transition plan for the approved housing slot shall identify at least all of the following:

1. Available housing units that meet the individual's needs.
2. Any transition services that will be necessary for the individual, including, but not limited to, a one-time transition stability payment, not to exceed two thousand dollars ($2,000) per individual, for up-front move-in costs approved by the Department or the housing subsidy administrator.
3. Solutions to potential barriers to the individual's successful transition to community-based supported housing.
4. Any other information the Department deems necessary for the individual program participant's successful transition into community-based supported housing.

History

(2013-397, s. 6(a).)

§ 122C-20.12. Transition services.

LME/MCOs shall provide individualized transition services to program participants within their respective catchment areas for the 90-day period following the individual's transition into a housing slot provided through the program.

History

(2013-397, s. 6(a).)

§ 122C-20.13. Tenancy support services.

The Department or the housing subsidy administrator shall provide ongoing tenancy support services to program participants.

History

(2013-397, s. 6(a).)

§ 122C-20.14. Approval of landlords and housing units.

The Department shall develop an application process for owners of housing units seeking to participate in the program as landlords. The application process shall, at a minimum, include an inspection of the owners' selected housing units and a requirement that owners receive educational information from the Department about the North Carolina Supportive Housing Program prior to being approved as landlords.

History

(2013-397, s. 6(a).)

§ 122C-20.15. Annual reporting on NC Supportive Housing Program.

Annually on October 1, the Department shall report to the Joint Legislative Oversight Committee on Health and Human Services of the General Assembly on the number of individuals within each LME/MCO catchment area who transitioned into housing slots available through the North Carolina Supportive Housing Program during the preceding calendar year. The report shall include a breakdown of all funds expended by each LME/MCO for transitioning these individuals into the housing slots.

History

(2013-397, s. 6(a).)

§ 122C-20.16. NC Supportive Housing Program not an entitlement.

The Department shall not be required to provide housing slots to individuals beyond the number that can be supported by funds appropriated by the General Assembly for this purpose. The supportive housing program established under this Part, whether administered by the Department or a private entity, is not an entitlement, and nothing in this Part shall create any property right.

History

(2013-397, s. 6(a).)

PART 2. [RESERVED]

§ 122C-21. Purpose.

The purpose of this Article is to provide for licensure of facilities for the individuals with mental health disorders, developmental disabilities, and substance use disorders by the development, establishment, and enforcement of basic rules governing both of the following:

1. The provision of services to individuals who receive services from licensable facilities as defined by this Chapter.
2. The construction, maintenance, and operation of these licensable facilities that in the light of existing knowledge will ensure safe and adequate treatment of these individuals. The Department shall ensure that licensable facilities are inspected every two years to determine compliance with physical plant and life-safety requirements.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2; 1989, c. 625, s. 4; 2005-276, s. 10.40A(c); 2021-77, s. 7.4(b).)

Cross References. - As to penalties for violations of this Article, see G.S. 122C-24.1.

Tiered State-County Special Assistance Pilot. - Session Laws 2013-360, s. 12D.2(a)-(e), provides: "(a) As used in this section, the term 'group home' means any facility that (i) is licensed under Chapter 122C of the General Statutes, (ii) meets the definition of a supervised living facility under 10A NCAC 27G.5601(c)(1) or 10A NCAC 27G.5601(c)(3), and (iii) serves adults whose primary diagnosis is mental illness or a developmental disability but may also have other diagnoses.

"(b) It is the intent of the General Assembly to create a State-County Special Assistance program that allows counties greater flexibility in serving individual needs within their communities and greater control over how county funds are used to support this program in light of the fact that counties are required to pay for fifty percent (50%) of the costs of this program. To that end, the General Assembly directs the Department of Health and Human Services to establish a pilot program in accordance with subsection (c) of this section.

"(c) The Department of Health and Human Services, Division of Aging and Adult Services (Department), shall establish a pilot program to implement a tiered rate structure within the State-County Special Assistance program for individuals residing in group homes, in-home living arrangements, and assisted living residences as defined in G.S. 131D-2.1. The purposes of the pilot program are to (i) determine the best way to implement a block grant for this program statewide and (ii) test the feasibility and effectiveness of implementing a tiered rate structure to address program participants' intensity of need, including medication management. The Department shall select a minimum of four and a maximum of six counties to participate in the pilot program, at least two of which shall be rural counties and at least two of which shall be urban counties. The pilot program shall (i) be implemented during the 2013-2014 fiscal year, (ii) operate for at least a 12-month period, and (iii) comply with any agreements in effect between the State of North Carolina and the United States government.

"(d) The Department shall implement the pilot program in collaboration with the local departments of social services in the counties selected for participation. As part of the pilot program, the selected counties shall receive a State General Fund allocation as a block grant to be equally matched with county general funds. The General Fund allocation provided to each county participating in the pilot program shall be calculated based upon the average annual Special Assistance expenditures for that county during the 2011-2013 fiscal biennium, adjusted for the amount of projected annual growth in the number of Special Assistance recipients in that county during the 2013-2015 fiscal biennium. These funds may be used to pay for room, board, and personal care services, including medication management, for individuals eligible to receive State-County Special Assistance, subject to the following limitations and requirements:

"(1) These funds shall not be used to cover any portion of the cost of providing services for which an individual receives Medicaid coverage.

"(2) The pilot program shall comply with all federal and State requirements governing the existing State-County Special Assistance program, except that Section 12D.3 does not apply to the pilot program.

"(3) The tiered rate structure shall be based upon intensity of need, and an individual's placement within a tier shall be based upon an independent assessment of the individual's need for room, board, and assistance with activities of daily living, including medication management.

"(e) By February 1, 2014, the Department shall submit a progress report on the implementation and operation of the pilot program, including any obstacles to implementation; and by February 1, 2015, the Department shall submit a final report on the results of the pilot program, along with any recommendations based on these results, to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division. The report due by February 1, 2015, shall include information from all participating counties on at least all of the following:

"(1) The amount of the tiered rates implemented as part of the pilot program.

"(2) The cost methodology for determining these tiered rates.

"(3) The number of individuals participating in the pilot program while residing in a group home.

"(4) The number of individuals participating in the pilot program while residing in an in-home living arrangement.

"(5) The number of individuals participating in the pilot program while residing in an assisted living residence as defined by G.S. 131D-2.1, broken down by facility type.

"(6) A comparison of the number of recipients of State-County Special Assistance prior to and during the pilot program, broken down by county and living arrangement.

"(7) Any other information the Department deems relevant for determining the best way to implement a block grant statewide for the State-County Special Assistance program."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Editor's Note. - Session Laws 2001-209, s. 2, provides: "The licensure of a group home for developmentally disabled adults pursuant to Article 1 of Chapter 131D of the General Statutes shall be transferred to licensure as a supervised living facility for developmentally disabled adults under G.S. 122C-3(14) e. A supervised living facility for developmentally disabled adults licensed under this section shall:

"(1) Except as otherwise provided in this section, comply with licensure requirements of Article 2 of Chapter 122C of the General Statutes;

"(2) Within 12 months of the effective date of this act, comply with building code requirements for smoke detectors;

"(3) Comply either with categories of existing rules applicable to group homes for developmentally disabled adults adopted under Article 1 of Chapter 131D of the General Statutes, or with categories of existing rules applicable under G.S. 122C-3(14) e., at the option of the supervised living facility; and

"(4) Be subject to adverse action on a license under G.S. 122C-24 for failure to comply with applicable statutes or rules.

"A group home for developmentally disabled adults licensed under Article 1 of Chapter 131D of the General Statutes and transferred to licensure under G.S. 122C-3(14) e. shall be deemed to have met the building code requirements for licensure as a supervised living facility.

"The Department of Health and Human Services' Division of Facility Services [now the Division of Health Service Regulation] and Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall designate the categories of existing rules applicable to the supervised living facility option under this section."

Session Laws 2013-4 requires the Department of Health and Human Services to provide temporary, short-term financial assistance to (1) group homes serving residents determined not to be eligible for Medicaid-covered personal care services (PCS) prior to January 1, 2013, and (2) special care units serving residents who qualify for Medicaid-covered personal care services on or after January 1, 2013. Session Laws 2013-4, s. 1, which expired June 30, 2013, in subsection (a) defines group home; in subsection (b) provides requirements and limitations to the payments for group homes; and in subsection (c) provides requirements and limitations to payments to special care units.

Session Laws 2013-4, s. 2, provides: "Notwithstanding any provision of this act or any other provision of law, the Department of Health and Human Services shall not be required to provide any temporary, short-term financial assistance to adult care homes, group homes, or special care units beyond June 30, 2013, or upon depletion of the thirty-nine million seven hundred thousand dollars ($39,700,000) appropriated for the 2012-2013 fiscal year and designated in Section 10.23A(f) of S.L. 2012-142, as amended by Section 3.6 of S.L. 2012-145, whichever is earlier."

Session Laws 2013-4, s. 3, provides: "In order to ensure compliance with federal Medicaid comparability requirements and the settlement agreement filed on August 23, 2012, between the United States Department of Justice and the State of North Carolina, the General Assembly shall not appropriate State funds for the 2013-2014 fiscal year or the 2014-2015 fiscal year for the purposes specified in Section 10.23A(f) of S.L. 2012-142, as amended by Section 3.6 of S.L. 2012-145, or for the purposes specified in Section 1 of this act.

Session Laws 2013-382, s. 10.3, provides: "Not later than September 1, 2013, the Department of Health and Human Services shall communicate the requirements of Section 2 of this act to all hospitals licensed pursuant to Article 5 of Chapter 131E of the General Statutes, Article 2 of Chapter 122C of the General Statutes, and to all ambulatory surgical facilities licensed pursuant to Part 4 of Article 6 of Chapter 131E of the General Statutes."

Session Laws 2014-100, s. 12A.7(a)-(h), provides: "(a) Notwithstanding any other provision of law, funds appropriated in this act to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, for the 2014-2015 fiscal year for unpaid LME liabilities is reduced by the sum of two million dollars ($2,000,000) in nonrecurring funds, and that amount is instead allocated to the Department of Health and Human Services, Division of Central Management and Support, for the 2014-2015 fiscal year to provide temporary, short-term financial assistance in the form of a monthly payment to group homes on behalf of each resident who meets all of the following criteria:

"(1) Was eligible for Medicaid-covered personal care services (PCS) prior to January 1, 2013, but was determined to be ineligible for PCS on or after January 1, 2013, due to Medicaid State Plan changes in PCS eligibility criteria specified in Section 10.9F of S.L. 2012-142, as amended by Section 3.7 of S.L. 2012-145 and Section 70 of S.L. 2012-194.

"(2) Has continuously resided in a group home since December 31, 2012.

"(b) These monthly payments shall be subject to all of the following requirements and limitations:

"(1) The amount of the monthly payments authorized by this section shall not exceed four hundred sixty-four dollars and thirty cents ($464.30) per month for each resident who meets all criteria specified in subsection (a) of this section.

"(2) A group home that receives the monthly payments authorized by this section shall not, under any circumstances, use these payments for any purpose other than providing, as necessary, supervision and medication management for a resident who meets all criteria specified in subsection (a) of this section.

"(3) The Department shall make monthly payments authorized by this section to a group home on behalf of each resident who meets all criteria specified in subsection (a) of this section only for the period commencing July 1, 2014, and ending June 30, 2015, or upon depletion of the two million dollars ($2,000,000) in nonrecurring funds appropriated in this act to the Division of Central Management and Support for the 2014-2015 fiscal year for the purpose of this section, whichever is earlier.

"(4) The Department shall make monthly payments authorized by this section only to the extent sufficient funds are available from the two million dollars ($2,000,000) in nonrecurring funds appropriated in this act to the Division of Central Management and Support for the 2014-2015 fiscal year for the purpose of this section.

"(5) The Department shall not make monthly payments authorized by this section to a group home on behalf of a resident during the pendency of an appeal by or on behalf of the resident under G.S. 108A-70.9A.

"(6) The Department shall terminate all monthly payments pursuant to this section on June 30, 2015, or upon depletion of the funds appropriated in this act to the Division of Central Management and Support for the 2014-2015 fiscal year for the purpose of this section, whichever is earlier.

"(7) Each group home that receives the monthly payments authorized by this section shall submit to the Department a list of all funding sources for the operational costs of the group home for the preceding two years, in accordance with the schedule and format prescribed by the Department.

"(c) The Department shall use an existing mechanism to administer these funds in the least restrictive manner that ensures compliance with this section and timely and accurate payments to group homes. The Department shall not, under any circumstances, use any portion of the two million dollars ($2,000,000) appropriated in this act to the Division of Central Management and Support for the purpose of this section for any other purpose.

"(d) By no later than April 1, 2015, the Department of Health and Human Services shall submit to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division the following:

"(1) A detailed plan for a long-term solution for individuals residing in group homes who would like to continue residing in this setting and, as a result of an independent assessment, have been determined to need only supervision, medication management, or both.

"(2) A list of funding sources for each group home that receives assistance authorized by this section, based on the information provided to the Department pursuant to subdivision (7) of subsection (b) of this section.

"(e) Notwithstanding any provision of law to the contrary, if the Department of Health and Human Services fails to submit the detailed plan required by subsection (d) of this section by April 1, 2015, then any remaining balance of the funds appropriated for the purpose of this section as of that date shall revert to the General Fund and the Department shall terminate all monthly payments pursuant to this section.

"(f) Nothing in this section shall be construed as an obligation by the General Assembly to appropriate funds for the purpose of this section, or as an entitlement by any group home, resident of a group home, or other person to receive temporary, short-term financial assistance under this section.

"(g) As used in this act, 'group home' means any facility that (i) is licensed under Chapter 122C of the General Statutes, (ii) meets the definition of a supervised living facility under 10A NCAC 27G.5601(c)(1) or 10A NCAC 27G.5601(c)(3), and (iii) serves adults whose primary diagnosis is mental illness or a developmental disability but may also have other diagnoses.

"(h) This section expires June 30, 2015."

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2014-2015 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2014-2015 fiscal year."

Session Laws 2014-100, s. 38.7, is a severability clause.

Session Laws 2020-3, s. 3A.1(a) provides: "(a) Unless the context clearly indicates otherwise, the following definitions apply in this Part:

"(1) CDC. - The federal Centers for Disease Control and Prevention.

"(2) COVID-19. - Coronavirus disease 2019.

"(3) COVID-19 diagnostic test. - A test the federal Food and Drug Administration has authorized for emergency use or approved to detect the presence of the severe acute respiratory syndrome coronavirus 2.

"(4) COVID-19 emergency. - The period beginning March 10, 2020, and ending on the date the Governor signs an executive order rescinding Executive Order No. 116, Declaration of a State of Emergency to Coordinate Response and Protective Actions to Prevent the Spread of COVID-19.

"(5) COVID-19 antibody test. - A serological blood test the federal Food and Drug Administration has authorized for emergency use or approved to measure the amount of antibodies or proteins present in the blood when the body is responding to an infection caused by the severe acute respiratory syndrome coronavirus 2."

Session Laws 2020-3, s. 3E.3(a)-(c), provides: "(a) Notwithstanding any provision of Article 2 of Chapter 122C, Articles 1 and 3 of Chapter 131D, and Chapter 131E of the General Statutes, or any other provision of law to the contrary, the Department of Health and Human Services, Division of Health Service Regulation, and as applicable, local departments of social services, shall suspend all annual and biennial inspections and regular monitoring requirements for licensed facilities under Article 2 of Chapter 122C of the General Statutes, Articles 1 and 3 of Chapter 131D of the General Statutes, and Articles 5, 6, and 10 of Chapter 131E of the General Statutes, and provisions within any rules adopted under these chapters that pertain to the Department or DHSR monitoring, inspection, or investigative requirements, except (i) as DHSR deems necessary to avoid serious injury, harm, impairment, or death to employees, residents, or patients of these facilities or (ii) as directed by the Centers for Medicare and Medicaid Services.

"(b) DHSR shall review the compliance history of all facilities licensed under Article 2 of Chapter 122C of the General Statutes and Article 1 of Chapter 131D of the General Statutes that were determined to be in violation, assessed penalties, or placed on probation within the six-month period preceding the beginning of the COVID-19 emergency, for noncompliance with rules or statutes or Centers for Disease Control and Prevention guidelines regarding infection control or the proper use of personal protective equipment. DHSR shall require employees of these facilities to undergo immediate training designated by DHSR about infection control and the proper use of personal protective equipment. The training required by this section may be conducted online, by video conference, or in such manner as DHSR determines appropriate under the circumstances.

"(c) This section is effective when it becomes law and expires 60 days after Executive Order No. 116 is rescinded, or December 31, 2020, whichever is earlier."

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2021-77, s. 7.4(a), effective July 2, 2021, rewrote the Article 2 heading, which formerly read: "Licensure of Facilities for the Mentally Ill, the Developmentally Disabled, and Substance Abusers."

Effect of Amendments. - Session Laws 2005-276, s. 10.40A(c), effective July 1, 2005, added the last sentence in subdivision (2).

Session Laws 2021-77, s. 7.4(b), effective July 2, 2021, substituted "individuals with mental health disorders, developmental disabilities” for "mentally ill, developmentally disabled”, and "substance use disorders” for "substance abusers”, inserted "both of the following” following "governing”, and made stylistic changes.

§ 122C-22. (Effective until January 1, 2022) Exclusions from licensure; deemed status.

1. All of the following are excluded from the provisions of this Article and are not required to obtain licensure under this Article:
   1. Physicians and psychologists engaged in private office practice.
   2. General hospitals licensed under Article 5 of Chapter 131E of the General Statutes, that operate special units for the mentally ill, developmentally disabled, or substance abusers.
   3. State and federally operated facilities.
   4. Adult care homes licensed under Chapter 131D of the General Statutes.
   5. Developmental child care centers licensed under Article 7 of Chapter 110 of the General Statutes.
   6. Persons subject to licensure under rules of the Social Services Commission.
   7. Persons subject to rules and regulations of the Division of Vocational Rehabilitation Services.
   8. Facilities that provide occasional respite care for not more than two individuals at a time; provided that the primary purpose of the facility is other than as defined in G.S. 122C-3(14).
   9. Twenty-four-hour nonprofit facilities established for the purposes of shelter care and recovery from alcohol or other drug addiction through a 12-step, self-help, peer role modeling, and self-governance approach.
   10. Inpatient chemical dependency or substance abuse facilities that provide services exclusively to inmates of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, as described in G.S. 148-19.1.
   11. A charitable, nonprofit, faith-based, adult residential treatment facility that does not receive any federal or State funding and is a religious organization exempt from federal income tax under section 501(a) of the Internal Revenue Code.
   12. A home in which up to three adults, two or more having a disability, co-own or co-rent a home in which the persons with disabilities are receiving three or more hours of day services in the home or up to 24 hours of residential services in the home. The individuals who have disabilities cannot be required to move if the individuals change services, change service providers, or discontinue services.
2. The Commission may adopt rules establishing a procedure whereby a licensable facility certified by a nationally recognized agency, such as the Joint Commission on Accreditation of Hospitals, may be deemed licensed under this Article by the Secretary. Any facility licensed under the provisions of this subsection shall continue to be subject to inspection by the Secretary.

History

(1983, c. 718, s. 1; 1983 (Reg. Sess., 1984), c. 1110, s. 5; 1985, c. 589, s. 2; c. 695, s. 13; 1987, c. 345, s. 2; 1989, c. 625, s. 5; 1995, c. 535, s. 7; 1997-506, s. 43; 2000-67, s. 11.25A; 2001-424, s. 25.19(b); 2004-199, s. 32; 2011-145, s. 19.1(h); 2011-202, s. 1; 2012-15, s. 1; 2013-410, s. 11; 2017-186, s. 2(jjjjj).)

Cross References. - As to exemption from reporting of death of a client, see G.S. 122C-31(i).

Overnight Respite Services in Adult Day Care Facilities Pilot Program. - The preamble to Session Laws 2011-104, provides: "Whereas, the population of adults who are elderly or disabled in North Carolina is expected to increase, thereby increasing the need for safe and available overnight respite care; and

"Whereas, adult day care provides group care and supervision to adults who may be physically or mentally disabled; and

"Whereas, adult day care provides care and supervision during the day, allowing caregivers a time of respite or allowing caregivers to attend to other duties, including work; and

"Whereas, adult day care allows individuals to remain in their communities and/or in familiar surroundings, thereby prolonging or eliminating the need for placement in a long-term care facility; Now, therefore, The General Assembly of North Carolina enacts."

Session Laws 2011-104, ss. 1-3, as amended by Session Laws 2015-52, ss. 1, 2, provides: "1.(a) Notwithstanding G.S. 131D-6(b), the Department of Health and Human Services shall conduct a pilot program to assess the provision of overnight respite services in adult day care programs. The Secretary shall select a minimum of two, and a maximum of four, stable and successful certified adult day care programs in which to conduct the pilot. At least two of the programs selected shall be operated by an organization that has been offering adult day care in North Carolina since 1980 and has received national recognition including all of the following criteria: designated as a National Model Adult Day Care Center by the Robert Wood Johnson Foundation, designated as the only Teaching Day Center for recipients of North Carolina adult day care startup funds, received the North Carolina Non-Profit Center's Non-Profit Sector Stewardship Award for exemplary stewardship of resources, and received Leadership in Energy and Environmental Design (LEED) certification.

"(b) The provision of 24-hour care under this act shall not exceed 14 consecutive calendar days, or more than 60 total calendar days, during a 365-day period, for each participant receiving overnight respite services. The capacity of the 24-hour overnight respite program authorized under this act shall not exceed six beds. The State is not authorized to pay for any overnight respite services offered through this pilot, and the pilot shall not be eligible to enroll or otherwise participate in the Medicaid program.

"(c) An adult day care program participating in this pilot shall be currently certified by the Department to provide adult day care. An adult day care program participating in the pilot shall be exempt from adult care home licensure pursuant to Article 1 of Chapter 131D of the General Statutes and shall be exempt from licensure under Chapter 131E and Chapter 122C of the General Statutes. The Department of Health and Human Services shall adopt rules to include minimum requirements to ensure the health and safety of adult day care overnight respite participants. These requirements shall specify program management, staffing, building specifications, fire safety, sanitation, nutrition, enrollment, medication management, and program activities. Participant assessments conducted by the adult day care pilot programs shall provide sufficient information to ensure appropriate care and to protect the health and safety of participants but shall not be more onerous than current adult day care assessments. The Division of Health Service Regulation shall have the authority to enforce the rules adopted by the Department. Prior to the provision of overnight respite services, an adult day care program participating in the pilot shall receive an initial inspection by the Division of Health Service Regulation for compliance with the rules. On a basis not less than every six months, the Division of Health Service Regulation shall conduct monitoring visits and shall also be responsible for the investigation of complaints. Each adult day care program participating in the pilot shall periodically report the number of individuals served and the average daily census to the Division of Health Service Regulation, on a schedule determined by the Division. The Division of Health Service Regulation shall have the authority to suspend admissions or terminate the pilot program at any time due to noncompliance with regulatory requirements which has resulted in death or serious physical harm, or when there is a substantial risk that death or serious physical harm will occur.

"2(a). The Department of Health and Human Services shall report on the status of the pilot once a year to the Program Evaluation Division. The Program Evaluation Division shall evaluate the provision of overnight respite services in an adult day care program through the experiences of this pilot. The evaluation shall include whether this pilot was successful as measured by the participants in receipt of overnight respite, the primary caregivers of participants, the adult day care programs participating in the pilot, and the Department of Health and Human Services. On or before October 1, 2014, the Program Evaluation Division shall provide a report to the General Assembly on the feasibility of continuing to provide overnight respite in an adult day care program.

"(b) Following the 2014 report and in order to provide a more comprehensive evaluation of the pilot, the Department of Health and Human Services shall coordinate with the Program Evaluation Division regarding the collection of additional information. The Program Evaluation Division shall specify what information the Department needs to collect and the timeframe for reporting the information. Based on information collected through the Department, the Program Evaluation Division shall provide information on each of the items below which will assist in determining whether the provision of overnight respite in an adult day care setting is a worthwhile service.

"(1) The actual number of overnight respite participants per month.

"(2) The percentage of an adult day care entity's clients that need overnight respite; the percentage of clients that use overnight respite; the percentage of clients using the service more than once if they had a need arise; the percentage of clients using overnight respite that are not regular adult day care clients; and the average monthly bed utilization for overnight respite at each location.

"(3) Customer satisfaction levels for individuals who participate and their families.

"(4) Satisfaction levels of adult day care entities offering overnight respite services.

"(5) The viability of an adult day care offering overnight respite from a cost/benefit standpoint

"(6) The need for overnight respite options in the State currently and the need forecast through 2025.

"(7) The degree to which overnight respite provided in an adult day care setting supports older and disabled adults who wish to live in the least restrictive and supportive setting possible.

"(8) The potential for saving public dollars due to delayed institutionalization when overnight respite is readily available.

"(9) Based on the pilot, a recommendation regarding whether the State should allow the provision of overnight respite in an adult day care setting beyond the pilot.

"(10) A recommendation regarding whether the current regulations are sufficient to ensure the safety and well-being of residents participating in overnight respite in an adult day care setting.

"(11) A recommendation regarding whether adult day care overnight respite should require certification or licensure.

"(12) If a recommendation is made to expand overnight respite in an adult day care setting, the feasibility of funding sources other than private pay, including the possibility of coverage for the service under Medicaid.

"The Program Evaluation Division shall provide an interim report on the criteria specified in this section on or before December 1, 2015, and a final report on or before October 1, 2016, to the Joint Legislative Program Evaluation Oversight Committee and to the Joint Legislative Oversight Committee on Health and Human Services.

"3. This act becomes effective when it becomes law [June 2, 2011]; adult day care programs participating in the pilot shall be selected and have received an initial inspection by January 1, 2012; and this act is repealed June 30, 2017."

Editor's Note. - Session Laws 1999-237, s. 18.8(a), provides that inpatient chemical dependency or substance abuse facilities that provide services exclusively to inmates of the Department of Correction shall be exempt from licensure by the Department of Health and Human Services under Chapter 122C of the General Statutes. If an inpatient facility provides services to inmates of the Department of Correction and to members of the general public, the portion of the facility that serves inmates shall be exempt from licensure.

Session Laws 1999-237, s. 18.8(b), provides that any person who contracts to provide inpatient chemical dependency or substance abuse services to inmates of the Department of Correction may construct and operate a new chemical dependency or substance abuse facility for that purpose without first obtaining a certificate of need from the Department of Health and Human Services pursuant to Article 9 of Chapter 131E of the General Statutes. However, a new facility or addition developed for that purpose without a certificate of need shall not be licensed pursuant to Chapter 122C of the General Statutes and shall not admit anyone other than inmates unless the owner or operator first obtains a certificate of need.

Session Laws 1999-237, s. 18.8(c), provides that section 18.8 applies to existing facilities, as well as future facilities contracting with the Department of Correction.

For prior similar legislation, see Session Laws 1995, c. 507, s. 19.9.

Session Laws 1999-237, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 1999'."

Session Laws 1999-237, s. 30.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1999-2001 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1999-2001 biennium."

Session Laws 1999-237, s. 30.4, is a severability clause.

Effect of Amendments. - Session Laws 2004-199, s. 32, effective August 17, 2004, added subdivision (a)(11); and made minor stylistic changes.

Session Laws 2011-202, s. 1, effective June 23, 2011, added subdivision (a)(12).

Session Laws 2017-186, s. 2(jjjjj), effective December 1, 2017, inserted "and Juvenile Justice" in subdivision (a)(10).

§ 122C-22. Exclusions from licensure; deemed status.

1. All of the following are excluded from the provisions of this Article and are not required to obtain licensure under this Article:
   1. Physicians and psychologists engaged in private office practice.
   2. General hospitals licensed under Article 5 of Chapter 131E of the General Statutes, that operate special units for patients with a mental health disorder diagnosis, one or more developmental disabilities, or a substance use disorder.
   3. State and federally operated facilities.
   4. Adult care homes licensed under Chapter 131D of the General Statutes.
   5. Developmental child care centers licensed under Article 7 of Chapter 110 of the General Statutes.
   6. Persons subject to licensure under rules of the Social Services Commission.
   7. Persons subject to rules and regulations of the Division of Vocational Rehabilitation Services.
   8. Facilities that provide occasional respite care for not more than two individuals at a time; provided that the primary purpose of the facility is other than as defined in G.S. 122C-3(14).
   9. Twenty-four-hour nonprofit facilities established for the purposes of shelter care and recovery from alcohol or other substance use disorder through a 12-step, self-help, peer role modeling, and self-governance approach.
   10. Inpatient chemical dependency or substance abuse facilities that provide services exclusively to inmates of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, as described in G.S. 148-19.1.
   11. A charitable, nonprofit, faith-based, adult residential treatment facility that does not receive any federal or State funding and is a religious organization exempt from federal income tax under section 501(a) of the Internal Revenue Code.
   12. A home in which up to three adults, two or more having a disability, co-own or co-rent a home in which the persons with disabilities are receiving three or more hours of day services in the home or up to 24 hours of residential services in the home. The individuals who have disabilities cannot be required to move if the individuals change services, change service providers, or discontinue services.
2. The Commission may adopt rules establishing a procedure whereby a facility that would otherwise require licensure under this Article that is certified by a nationally recognized agency, such as the Joint Commission on Accreditation of Hospitals, may be deemed licensed under this Article by the Secretary. Any facility licensed under the provisions of this subsection shall continue to be subject to inspection by the Secretary. The Secretary shall collaborate with relevant agencies to ensure that any facilities deemed licensed under this Article maintain the required certification.

History

(1983, c. 718, s. 1; 1983 (Reg. Sess., 1984), c. 1110, s. 5; 1985, c. 589, s. 2; c. 695, s. 13; 1987, c. 345, s. 2; 1989, c. 625, s. 5; 1995, c. 535, s. 7; 1997-506, s. 43; 2000-67, s. 11.25A; 2001-424, s. 25.19(b); 2004-199, s. 32; 2011-145, s. 19.1(h); 2011-202, s. 1; 2012-15, s. 1; 2013-410, s. 11; 2017-186, s. 2(jjjjj); 2021-77, s. 7.3(a).)

Cross References. - As to exemption from reporting of death of a client, see G.S. 122C-31(i).

Overnight Respite Services in Adult Day Care Facilities Pilot Program. - The preamble to Session Laws 2011-104, provides: "Whereas, the population of adults who are elderly or disabled in North Carolina is expected to increase, thereby increasing the need for safe and available overnight respite care; and

"Whereas, adult day care provides group care and supervision to adults who may be physically or mentally disabled; and

"Whereas, adult day care provides care and supervision during the day, allowing caregivers a time of respite or allowing caregivers to attend to other duties, including work; and

"Whereas, adult day care allows individuals to remain in their communities and/or in familiar surroundings, thereby prolonging or eliminating the need for placement in a long-term care facility; Now, therefore, The General Assembly of North Carolina enacts."

Session Laws 2011-104, ss. 1-3, as amended by Session Laws 2015-52, ss. 1, 2, provides: "1.(a) Notwithstanding G.S. 131D-6(b), the Department of Health and Human Services shall conduct a pilot program to assess the provision of overnight respite services in adult day care programs. The Secretary shall select a minimum of two, and a maximum of four, stable and successful certified adult day care programs in which to conduct the pilot. At least two of the programs selected shall be operated by an organization that has been offering adult day care in North Carolina since 1980 and has received national recognition including all of the following criteria: designated as a National Model Adult Day Care Center by the Robert Wood Johnson Foundation, designated as the only Teaching Day Center for recipients of North Carolina adult day care startup funds, received the North Carolina Non-Profit Center's Non-Profit Sector Stewardship Award for exemplary stewardship of resources, and received Leadership in Energy and Environmental Design (LEED) certification.

"(b) The provision of 24-hour care under this act shall not exceed 14 consecutive calendar days, or more than 60 total calendar days, during a 365-day period, for each participant receiving overnight respite services. The capacity of the 24-hour overnight respite program authorized under this act shall not exceed six beds. The State is not authorized to pay for any overnight respite services offered through this pilot, and the pilot shall not be eligible to enroll or otherwise participate in the Medicaid program.

"(c) An adult day care program participating in this pilot shall be currently certified by the Department to provide adult day care. An adult day care program participating in the pilot shall be exempt from adult care home licensure pursuant to Article 1 of Chapter 131D of the General Statutes and shall be exempt from licensure under Chapter 131E and Chapter 122C of the General Statutes. The Department of Health and Human Services shall adopt rules to include minimum requirements to ensure the health and safety of adult day care overnight respite participants. These requirements shall specify program management, staffing, building specifications, fire safety, sanitation, nutrition, enrollment, medication management, and program activities. Participant assessments conducted by the adult day care pilot programs shall provide sufficient information to ensure appropriate care and to protect the health and safety of participants but shall not be more onerous than current adult day care assessments. The Division of Health Service Regulation shall have the authority to enforce the rules adopted by the Department. Prior to the provision of overnight respite services, an adult day care program participating in the pilot shall receive an initial inspection by the Division of Health Service Regulation for compliance with the rules. On a basis not less than every six months, the Division of Health Service Regulation shall conduct monitoring visits and shall also be responsible for the investigation of complaints. Each adult day care program participating in the pilot shall periodically report the number of individuals served and the average daily census to the Division of Health Service Regulation, on a schedule determined by the Division. The Division of Health Service Regulation shall have the authority to suspend admissions or terminate the pilot program at any time due to noncompliance with regulatory requirements which has resulted in death or serious physical harm, or when there is a substantial risk that death or serious physical harm will occur.

"2(a). The Department of Health and Human Services shall report on the status of the pilot once a year to the Program Evaluation Division. The Program Evaluation Division shall evaluate the provision of overnight respite services in an adult day care program through the experiences of this pilot. The evaluation shall include whether this pilot was successful as measured by the participants in receipt of overnight respite, the primary caregivers of participants, the adult day care programs participating in the pilot, and the Department of Health and Human Services. On or before October 1, 2014, the Program Evaluation Division shall provide a report to the General Assembly on the feasibility of continuing to provide overnight respite in an adult day care program.

"(b) Following the 2014 report and in order to provide a more comprehensive evaluation of the pilot, the Department of Health and Human Services shall coordinate with the Program Evaluation Division regarding the collection of additional information. The Program Evaluation Division shall specify what information the Department needs to collect and the timeframe for reporting the information. Based on information collected through the Department, the Program Evaluation Division shall provide information on each of the items below which will assist in determining whether the provision of overnight respite in an adult day care setting is a worthwhile service.

"(1) The actual number of overnight respite participants per month.

"(2) The percentage of an adult day care entity's clients that need overnight respite; the percentage of clients that use overnight respite; the percentage of clients using the service more than once if they had a need arise; the percentage of clients using overnight respite that are not regular adult day care clients; and the average monthly bed utilization for overnight respite at each location.

"(3) Customer satisfaction levels for individuals who participate and their families.

"(4) Satisfaction levels of adult day care entities offering overnight respite services.

"(5) The viability of an adult day care offering overnight respite from a cost/benefit standpoint

"(6) The need for overnight respite options in the State currently and the need forecast through 2025.

"(7) The degree to which overnight respite provided in an adult day care setting supports older and disabled adults who wish to live in the least restrictive and supportive setting possible.

"(8) The potential for saving public dollars due to delayed institutionalization when overnight respite is readily available.

"(9) Based on the pilot, a recommendation regarding whether the State should allow the provision of overnight respite in an adult day care setting beyond the pilot.

"(10) A recommendation regarding whether the current regulations are sufficient to ensure the safety and well-being of residents participating in overnight respite in an adult day care setting.

"(11) A recommendation regarding whether adult day care overnight respite should require certification or licensure.

"(12) If a recommendation is made to expand overnight respite in an adult day care setting, the feasibility of funding sources other than private pay, including the possibility of coverage for the service under Medicaid.

"The Program Evaluation Division shall provide an interim report on the criteria specified in this section on or before December 1, 2015, and a final report on or before October 1, 2016, to the Joint Legislative Program Evaluation Oversight Committee and to the Joint Legislative Oversight Committee on Health and Human Services.

"3. This act becomes effective when it becomes law [June 2, 2011]; adult day care programs participating in the pilot shall be selected and have received an initial inspection by January 1, 2012; and this act is repealed June 30, 2017."

Editor's Note. - Session Laws 1999-237, s. 18.8(a), provides that inpatient chemical dependency or substance abuse facilities that provide services exclusively to inmates of the Department of Correction shall be exempt from licensure by the Department of Health and Human Services under Chapter 122C of the General Statutes. If an inpatient facility provides services to inmates of the Department of Correction and to members of the general public, the portion of the facility that serves inmates shall be exempt from licensure.

Session Laws 1999-237, s. 18.8(b), provides that any person who contracts to provide inpatient chemical dependency or substance abuse services to inmates of the Department of Correction may construct and operate a new chemical dependency or substance abuse facility for that purpose without first obtaining a certificate of need from the Department of Health and Human Services pursuant to Article 9 of Chapter 131E of the General Statutes. However, a new facility or addition developed for that purpose without a certificate of need shall not be licensed pursuant to Chapter 122C of the General Statutes and shall not admit anyone other than inmates unless the owner or operator first obtains a certificate of need.

Session Laws 1999-237, s. 18.8(c), provides that section 18.8 applies to existing facilities, as well as future facilities contracting with the Department of Correction.

For prior similar legislation, see Session Laws 1995, c. 507, s. 19.9.

Session Laws 1999-237, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 1999'."

Session Laws 1999-237, s. 30.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 1999-2001 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 1999-2001 biennium."

Session Laws 1999-237, s. 30.4, is a severability clause.

Session Laws 2021-77, s. 7.3(b)-(d), provides: "(b) The Department of Health and Human Services shall establish a database or expand upon a currently existing database that makes publicly available a searchable listing of all applicable facilities and programs with all of the following information:

"(1) The facility or program name.

"(2) The location, including street and mailing addresses, city, and county, for the facility or program.

"(3) The contact information for the owners, director, or other individual in charge of the facility or program.

"(4) The dates and types of visits conducted by the Division of Health Services Regulation.

"(5) A description of the findings, including whether a complaint was substantiated or unsubstantiated, and identification of the violation cited if substantiated.

"(6) Any action taken under G.S. 122C-28.1 by the Division of Health Services Regulation.

"(c) The Department of Health and Human Services shall coordinate with the Department of Insurance to establish a toll-free number or website for individuals, providers, and insurers to use in verifying the licensure status of a facility providing mental health, behavioral health, and substance use disorder services.

"(d) The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (DMH/DD/SAS), shall collaborate with community organizations, such as the National Alliance for Mental Illness (NAMI), for a public information campaign about the appropriate types of care for individuals with mental health disorders that, at a minimum, includes information on the importance of receiving care from a licensed facility or program with medical personnel licensed by the North Carolina Medical Board."

Effect of Amendments. - Session Laws 2004-199, s. 32, effective August 17, 2004, added subdivision (a)(11); and made minor stylistic changes.

Session Laws 2011-202, s. 1, effective June 23, 2011, added subdivision (a)(12).

Session Laws 2017-186, s. 2(jjjjj), effective December 1, 2017, inserted "and Juvenile Justice" in subdivision (a)(10).

Session Laws 2021-77, s. 7.3(a), effective January 1, 2022, substituted "patients with a mental health disorder diagnosis, one or more developmental disabilities, or a substance use disorder” for "the mentally ill, developmentally disabled, or substance abusers” in subdivision (a)(2); substituted "substance use disorder” for "drug addiction” in subdivision (a)(9); in subsection (b), in the first sentence, deleted "licensable” preceding "facility” and inserted "that would otherwise require licensure under this Article that is”, and added the last sentence.

§ 122C-23. Licensure.

1. No person shall establish, maintain, or operate a licensable facility for individuals with mental illnesses, individuals with intellectual or other developmental disabilities, or substance abusers without a current license issued by the Secretary.
2. Each license is issued to the person only for the premises named in the application and is not transferrable or assignable except with prior written approval of the Secretary.
3. Any person that intends to establish, maintain, or operate a licensable facility shall apply to the Secretary for a license. The Secretary shall prescribe by rule the contents of the application forms.
4. The Secretary shall issue a license if the Secretary finds that the person complies with this Article and the rules of the Commission and Secretary.
5. Initial licenses issued under this section are valid for not more than 15 months. Licenses shall be renewed annually thereafter and shall expire at the end of the calendar year. The expiration date of a license shall be specified on the license when issued. Renewal of a regular license is contingent upon receipt of information required by the Secretary for renewal and continued compliance with this Article and the rules of the Commission and the Secretary. Licenses for facilities that have not served any clients during the previous 12 months are not eligible for renewal.
6. Except as provided in subsection (e2) of this section, the Secretary shall not (i) enroll as a new provider in the North Carolina Medicaid or North Carolina Health Choice programs, (ii) revalidate as an enrolled provider in the Medicaid or NC Health Choice programs during the period of the license revocation or suspension, or (iii) issue a license for a new facility or a new service to any applicant meeting any of the following criteria:
   1. The applicant was the owner, principal, or affiliate of a licensable facility under Chapter 122C, Chapter 131D, or Article 7 of Chapter 110 of the General Statutes that had its license revoked until 60 months after the date of the revocation.
   2. The applicant is the owner, principal, or affiliate of a licensable facility that was assessed a penalty for a Type A or Type B violation under Article 3 of this Chapter, or any combination thereof, and any one of the following conditions exist:
      1. A single violation has been assessed in the six months prior to the application.
      2. Two violations have been assessed in the 18 months prior to the application and 18 months have not passed from the date of the most recent violation.
      3. Three violations have been assessed in the 36 months prior to the application and 36 months have not passed from the date of the most recent violation.
      4. Four or more violations have been assessed in the 60 months prior to application and 60 months have not passed from the date of the most recent violation.
   3. The applicant is the owner, principal, or affiliate of a licensable facility that had its license summarily suspended or downgraded to provisional status as a result of violations under G.S. 122C 24.1(a) until 60 months after the date of reinstatement or restoration of the license.
   4. The applicant is the owner, principal, or affiliate of a licensable facility that had its license summarily suspended or downgraded to provisional status as a result of violations under Article 1A of Chapter 131D of the General Statutes until 60 months after the date of reinstatement or restoration of the license.
7. The Secretary may enroll a provider described in subsection (e1) of this section if any of the following circumstances apply:
   1. The applicant is an area program or county program providing services under G.S. 122C-141, and there is no other provider of the service in the catchment area.
   2. The Secretary finds that the area program or county program has shown good cause by clear and convincing evidence why the enrollment should be allowed.
8. Licensure or enrollment shall be denied if an applicant's history as a provider under Chapter 131D, Chapter 122C, or Article 7 of Chapter 110 of the General Statutes is such that the Secretary has concluded the applicant will likely be unable to comply with licensing or enrollment statutes, rules, or regulations. In the event the Secretary denies licensure or enrollment under this subsection, the reasons for the denial and appeal rights pursuant to Article 3 of Chapter 150B shall be given to the provider in writing.
9. Upon written application and in accordance with rules of the Commission, the Secretary may for good cause waive any of the rules implementing this Article, so long as those rules do not affect the health, safety, or welfare of the individuals within the licensable facility. Decisions made pursuant to this subsection may be appealed to the Commission for a hearing in accordance with Chapter 150B of the General Statutes.
10. The Secretary may suspend the admission of any new clients to a facility licensed under this Article where the conditions of the facility are detrimental to the health or safety of the clients. This suspension shall be for the period determined by the Secretary and shall remain in effect until the Secretary is satisfied that conditions or circumstances merit removal of the suspension. In suspending admissions under this subsection, the Secretary shall consider the following factors:
    1. The degree of sanctions necessary to ensure compliance with this section and rules adopted to implement this subsection.
    2. The character and degree of impact of the conditions at the facility on the health or safety of its clients.
11. The Department shall charge facilities licensed under this Chapter a nonrefundable annual base license fee plus a nonrefundable annual per-bed fee as follows:
12. A social setting detoxification facility or medical detoxification facility subject to licensure under this Chapter shall not deny admission or treatment to an individual based solely on the individual's inability to pay.

The Secretary may issue a provisional license for a period up to six months to a person obtaining the initial license for a facility. The licensee must demonstrate substantial compliance prior to being issued a full license.

A provisional license for a period not to exceed six months may be granted by the Secretary to a person that is temporarily unable to comply with a rule when the noncompliance does not present an immediate threat to the health and safety of the individuals in the licensable facility. During this period the licensable facility shall correct the noncompliance based on a plan submitted to and approved by the Secretary. A provisional license for an additional period of time to meet the noncompliance shall not be issued.

A facility may contest a suspension of admissions under this subsection in accordance with Chapter 150B of the General Statutes. In contesting the suspension of admissions, the facility must file a petition for a contested case within 20 days after the Department mails notice of suspension of admissions to the licensee.

Type of Facility Number of Beds Base Fee Per-Bed Fee Facilities (non-ICF/IID): 0 beds $215.00 $0 1 to 6 beds $305.00 $0 More than 6 beds $475.00 $17.50 ICF/IID Only: 1 to 6 beds $845.00 $0 More than 6 beds $800.00 $17.50

History

(1899, c. 1, s. 60; Rev., s. 4600; C.S., s. 6219; 1945, c. 952, s. 41; 1957, c. 100, ss. 1, 4; 1963, c. 813, s. 1; c. 1166, s. 7; 1965, c. 1178, ss. 1-3; 1969, c. 954; 1973, c. 476, ss. 133, 152; 1977, c. 679, s. 7; 1981, c. 51, s. 3; 1983, c. 718, ss. 1, 4; 1985, c. 589, s. 2; 1985 (Reg. Sess., 1986), c. 863, s. 8; 1987, c. 345, ss. 3, 4; 1989, c. 625, s. 6; 2000-55, s. 3; 2002-164, s. 4.1; 2003-284, s. 34.8(a); 2003-294, s. 2; 2003-390, s. 3; 2005-276, ss. 41.2(h), 10.40A(d); 2006-66, s. 10.23; 2009-451, s. 10.76(f); 2021-77, ss. 2, 7.1(b); 2021-88, s. 9(h).)

Comprehensive Treatment Services Program. - Session Laws 2007-323, ss. 10.10(a)-(h), (j), (k), provide: "(a) The Department of Health and Human Services shall continue the Comprehensive Treatment Services Program for children at risk for institutionalization or other out-of-home placement. The Program shall be implemented by the Department in consultation with the Department of Juvenile Justice and Delinquency Prevention [now the Division of Juvenile Justice of the Department of Public Safety], the Department of Public Instruction, and other affected State agencies. The purpose of the Program is to provide appropriate and medically necessary nonresidential and residential treatment alternatives for children at risk of institutionalization or other out-of-home placement. Program funds shall be targeted for non-Medicaid eligible children. Program funds may also be used to expand a system-of-care approach for services to children and their families statewide. The program shall include the following:

"(1) Behavioral health screening for all children at risk of institutionalization or other out-of-home placement.

"(2) Appropriate and medically necessary nonresidential and residential services for children within the child mental health deaf and hard of hearing target population.

"(3) Appropriate and medically necessary nonresidential and residential treatment services, including placements for sexually aggressive youth.

"(4) Appropriate and medically necessary nonresidential and residential treatment services, including placements for youth needing substance abuse treatment services and children with serious emotional disturbances.

"(5) Multidisciplinary case management services, as needed.

"(6) A system of utilization review specific to the nature and design of the Program.

"(7) Mechanisms to ensure that children are not placed in department of social services custody for the purpose of obtaining mental health residential treatment services.

"(8) Mechanisms to maximize current State and local funds and to expand use of Medicaid funds to accomplish the intent of this Program.

"(9) Other appropriate components to accomplish the Program's purpose.

"(10) The Secretary of the Department of Health and Human Services may enter into contracts with residential service providers.

"(11) A system of identifying and tracking children placed outside of the family unit in group homes, therapeutic foster care home settings, and other out-of-home placements.

"(12) The development of a strong infrastructure of interagency collaboration.

"(13) Individualized strengths-based care.

"(b) In order to ensure that children at risk for institutionalization or other out-of-home placement are appropriately served by the mental health, developmental disabilities, and substance abuse services system, the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall do the following with respect to services provided to these children:

"(1) Provide only those treatment services that are medically necessary.

"(2) Implement utilization review of services provided.

"(3) Adopt the following guiding principles for the provision of services:

"a. Service delivery system must be outcome-oriented and evaluation-based.

"b. Services should be delivered as close as possible to the child's home.

"c. Services selected should be those that are most efficient in terms of cost and effectiveness.

"d. Services should not be provided solely for the convenience of the provider or the client.

"e. Families and consumers should be involved in decision making throughout treatment planning and delivery.

"f. Services shall be specified, delivered, and monitored through a unified Child and Family Plan incorporating the principles of one-child-one-team-one-plan.

"g. Out-of-home placements for children shall be a last resort and shall include concrete plans to bring the children back to a stable, permanent home, their schools, and their community.

"(4) Implement all of the following cost-reduction strategies:

"a. Preauthorization for all services except emergency services.

"b. Levels of care to assist in the development of treatment plans.

"c. Clinically appropriate services.

"(c) The Department shall collaborate with other affected State agencies such as the Department of Juvenile Justice and Delinquency Prevention, the Department of Public Instruction, the Administrative Office of the Courts, and with local departments of social services, area mental health programs, and local education agencies to eliminate cost shifting and facilitate cost-sharing among these governmental agencies with respect to the treatment and placement services.

"(d) The Department shall not allocate funds appropriated for Program services until a Memorandum of Agreement has been executed between the Department of Health and Human Services, the Department of Public Instruction, and other affected State agencies. The Memorandum of Agreement shall address specifically the roles and responsibilities of the various departmental divisions and affected State agencies involved in the administration, financing, care, and placement of children at risk of institutionalization or other out-of-home placement. The Department shall not allocate funds appropriated in this act for the Program until the Memoranda of Agreement between local departments of social services, area mental health programs, local education agencies, the Administrative Office of the Courts, and the Department of Juvenile Justice and Delinquency Prevention, as appropriate, are executed to effectuate the purpose of the Program. The Memoranda of Agreement shall address issues pertinent to local implementation of the Program, including provision for the immediate availability of student records to a local school administrative unit receiving a child placed in a residential setting outside the child's home county.

"(e) Notwithstanding any other provision of law to the contrary, services under the Comprehensive Treatment Services Program are not an entitlement for non-Medicaid eligible children served by the Program.

"(f) Of the funds appropriated in this act for the Comprehensive Treatment Services Program, the Department of Health and Human Services shall establish a reserve of three percent (3%) to ensure availability of these funds to address specialized needs for children with unique or highly complex problems.

"(g) The Department of Health and Human Services, in conjunction with the Department of Juvenile Justice and Delinquency Prevention, the Department of Public Instruction, and other affected agencies, shall report on the following Program information:

"(1) The number and other demographic information of children served.

"(2) The amount and source of funds expended to implement the Program.

"(3) Information regarding the number of children screened, specific placement of children, including the placement of children in programs or facilities outside of the child's home county, and treatment needs of children served.

"(4) The average length of stay in residential treatment, transition, and return to home.

"(5) The number of children diverted from institutions or other out-of-home placements such as training schools and State psychiatric hospitals and a description of the services provided.

"(6) Recommendations on other areas of the Program that need to be improved.

"(7) Other information relevant to successful implementation of the Program.

"(h) The Department shall report on the following Program funding information:

"(1) The amount of Program funding allocated and expended by each LME.

"(2) The amount of Program funds each LME transferred out of the Program to serve purposes other than those outlined by this Program and an explanation of why LMEs transferred the funding.

"(3) Recommendations to improve the penetration rate of Program funds to serve the intended populations across the State.

"(j) Upon approval of the Legislative Services Commission, the Legislative Services Officer shall assign professional and clerical staff to assist in the work of the Task Force. Professional staff shall be those assigned to subject areas or agencies involving child-serving programs administered by the Department of Health and Human Services, the Department of Juvenile Justice and Delinquency Prevention, the Administrative Office of the Courts, and the Department of Public Instruction. Clerical staff shall be furnished to the Task Force through the offices of the House of Representatives and Senate Directors of Legislative Assistants.

"(k) The Department shall report on April 1, 2008, and April 1, 2009, on the implementation of subsections (a) through (h) of this section. The reports required under this subsection shall be made to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Fiscal Research Division."

For similar provisions, see 2003-294, s. 6(a), and 2005-276, s. 10.25(a)-(g) and (m).

Editor's Note. - Session Laws 2003-284, s. 48.1, provides: "Parts 32 through 47 of this act do not affect the rights or liabilities of the State, a taxpayer, or another person arising under a statute amended or repealed by those parts before the effective date of its amendment or repeal; nor do they affect the right to any refund or credit of a tax that accrued under the amended or repealed statute before the effective date of its amendment or repeal."

Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003'."

Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium."

Session Laws 2003-284, s. 49.5, is a severability clause.

Subsection (i) was originally enacted as subsection (h) by Session Laws 2003-390, s. 3. It was redesignated at the direction of the Revisor of Statutes.

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'."

Session Laws 2006-66, s. 28.6 is a severability clause.

Session Laws 2003-390, s. 4, made the addition of subsection (i) applicable to social setting detoxification facilities and medical detoxification facilities licensed on and after the effective date of this act. The act was effective when it became law, and was approved by the Governor on August 7, 2003.

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2021-77, s. 7.1(d), made the amendments to subsection (e1) of this section by Session Laws 2021-77, s. 7.1(b), effective July 2, 2021, and applicable to cease and desist letters sent by the Department of Health and Human Services on or after that date.

Effect of Amendments. - Session Laws 2005-276, ss. 10.40A(d), effective July 1, 2005, and 41.2(h), effective October 1, 2005, rewrote subsection (e); and in subsection (h), increased the base fees and per-bed fees.

Session Laws 2006-66, s. 10.23, effective July 1, 2006, in subsection (h), deleted "that have licensed beds" following "under this Chapter," and rewrote the table listing the per-bed fees.

Session Laws 2009-451, s. 10.76(f), effective the seventh calendar day after the date this act becomes law [August 14, 2009], in subsection (h), in the "Base Fee" column, substituted "$215.00" for "$175.00," "$305.00" for "$250.00," "$475.00" for "$350.00," "$845.00" for "$650.00," and "$800.00" for "$650.00", and in the "Per-Bed Fee" column substituted "$17.50" for "$12.50" twice.

Session Laws 2021-77, s. 2, effective July 2, 2021, substituted "by filing a contested case under Article 3 of Chapter 150B" for "to the Commission for a hearing in accordance with Chapter 150B" in subsection (f).

Session Laws 2021-77, s. 7.1(b), rewrote subsection (e1). For effective date and applicability, see editor's note.

Session Laws 2021-88, s. 9(h), effective July 22, 2021, rewrote subsection (a); substituted "is not transferrable” for "shall not be transferrable” in subsection (b); substituted "that intends” for "who intends” in subsection (c); in subsection (d), in the first sentence, deleted "the authority of” preceding "this section” and substituted "are valid” for "shall be valid”; substituted "that is temporarily” for "who is temporarily,” and "shall not be” for "may not be” in the last paragraph of subsection (e); inserted "of the General Statutes” in subdivisions (e1)(1), and (e1)(4); rewrote subsection (e3); substituted "so long as” for "provided” in subsection (f); substituted "subsection” for "subsection, and” in subdivision (g)(1); and substituted "(non-ICF/IID)” for "(non-ICF/MR), and "ICF/IID” for "ICF/MR” in subsection (h).

§ 122C-23.1. Licensure of residential treatment facilities.

1. The General Assembly finds:
   1. That much of the care for residential treatment facility residents is paid by the State and the counties;
   2. That the cost to the State for care for residents of residential treatment facilities is substantial, and high vacancy rates in residential treatment facilities further increase the cost of care;
   3. That the proliferation of residential treatment facilities results in costly duplication and underuse of facilities and may result in lower quality service;
   4. There is currently no ongoing relationship between some applicants for licensure and local management entities (LMEs) that are responsible for the placement of children and adults in residential treatment facilities; and
   5. That it is necessary to protect the general welfare and lives, health, and property of the people of the State for the local management entity (LME) to verify that additional beds are needed in the LME's catchment area before new residential treatment facilities are licensed. This process is established to ensure that unnecessary costs to the State do not result, residential treatment facility beds are available where needed, and that individuals who need care in residential treatment facilities may have access to quality care.
2. All private psychiatric residential treatment facilities (PRTFs), as defined in G.S. 122C-450(a)(3), that serve children eligible to attend the public schools in accordance with G.S. 115C-366, including a student who has been suspended or expelled but otherwise meets the requirements of that statute, shall have a facility-based school as a condition of licensure. Subject to the time limits of subsection (c) of this section, the school shall meet all the requirements of a qualified nonpublic school under Article 39 of Chapter 115C of the General Statutes and of a Nonpublic Exceptional Children's Program as defined in G.S. 122C-450(a)(2). The requirements of this subsection and subsection (c) of this section do not apply to PRTFs that are approved charter schools pursuant to Article 14A of Chapter 115C of the General Statutes.
3. The Department of Health and Human Services may issue an initial license to a PRTF that meets all licensure requirements except for the approval of the facility-based school as a Nonpublic Exceptional Children's Program by the Department of Public Instruction. This initial license is valid for a period of six months, during which time the PRTF shall obtain approval of its facility-based school as a Nonpublic Exceptional Children's Program by the Department of Public Instruction. If such approval is not obtained before the expiration of the initial license, the Department of Health and Human Services shall review the PRTF's license for appropriate action. If the PRTF obtains approval as a Nonpublic Exceptional Children's Program, the Department of Health and Human Services may issue a license for the remainder of the calendar year, and the facility is eligible for annual renewal thereafter.
4. At any time upon receipt of a written notice from the Department of Public Instruction that a PRTF has not provided or is not providing educational services, or is not reasonably cooperating with the Department of Public Instruction to ensure those services are provided and that compliance with State and federal law is assured, the Department of Health and Human Services shall review the PRTF's license for appropriate action. The Department of Health and Human Services may issue sanctions including (i) requiring a refund of all State funds disbursed for the provision of educational services for the current fiscal year, (ii) barring future funding for the provision of educational services for the current or following year, or (iii) suspending or revoking the PRTF's license.
5. As used in this section, "residential treatment facility" means a "residential facility" as defined in and licensed under this Chapter, but not subject to Certificate of Need requirements under Article 9 of Chapter 131E of the General Statutes.

Based on these findings, the Department of Health and Human Services may license new residential treatment facilities if the applicant for licensure submits with the application a letter of support obtained from the local management entity in whose catchment area the facility will be located. The letter of support shall be submitted to the Department of Health and Human Services, Division of Health Service Regulation and Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, and shall specify the number of existing beds in the same type of facility in the catchment area and the projected need for additional beds of the same type of facility.

History

(2005-276, s. 10.40(a); 2007-182, s. 1; 2014-100, s. 8.39(c); 2014-101, s. 7.)

Editor's Note. - Session Laws 2014-101, s. 8, provides, in part: "Except as otherwise provided, this act is effective when it becomes law [August 6, 2014] and applies beginning with the 2014-2015 school year."

Effect of Amendments. - Session Laws 2007-182, s. 1, effective July 5, 2007, substituted "Division of Health Service Regulation" for "Division of Facility Services" near the middle of the last paragraph.

Session Laws 2014-100, s. 8.39(c), effective July 1, 2014, inserted the subsection (a) designation; added subsections (b) through (d); and redesignated the former last sentence as subsection (e) and substituted "section" for "subsection" therein.

Session Laws 2014-101, s. 7, substituted "Article 14A of Chapter 115C" for "Part 6A of Article 16 of Chapter 115C" in subsection (b). See Editor's note for effective date and applicability.

§ 122C-24. Adverse action on a license.

1. The Secretary may deny, suspend, amend, or revoke a license in any case in which the Secretary finds that there has been a substantial failure to comply with any provision of this Article or other applicable statutes or any applicable rule adopted pursuant to these statutes. Action[s] under this section and appeals of those actions shall be in accordance with rules of the Commission and Chapter 150B of the General Statutes.
2. When an appeal is filed concerning the denial, suspension, amendment, or revocation of a license, a copy of the proposal for decision shall be sent to the Chairman of the Commission in addition to the parties specified in G.S. 150B-34. The Chairman or members of the Commission designated by the Chairman may submit for the Secretary's consideration written or oral comments concerning the proposal prior to the issuance of a final agency decision in accordance with G.S. 150B-36.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2; 1985 (Reg. Sess., 1986), c. 863, ss. 8-10; 1987, c. 345, s. 5.)

Cross References. - As to licensure as a supervised living facility for developmentally disabled adults, see the editor's notes under G.S. 122C-21.

Editor's Note. - The word "Action" at the beginning of the second sentence of subsection (a) was apparently intended to be the word "Actions."

G.S. 150B-36, referred to in subsection (b), was repealed by Session Laws 2011-398, s. 20, effective January 1, 2012, and applicable to contested cases commenced on or after that date.

§ 122C-24.1. Penalties; remedies.

1. Violation Classification and Penalties. - The Department of Health and Human Services shall impose an administrative penalty in accordance with provisions of this Article on any facility licensed under this Article which is found to be in violation of Article 2 or 3 of this Chapter or applicable State and federal laws and regulations. Citations for violations shall be classified and penalties assessed according to the nature of the violation as follows:
   1. "Type A1 Violation" means a violation by a facility of the regulations, standards, and requirements set forth in Article 2 or 3 of this Chapter or applicable State or federal laws and regulations governing the licensure or certification of a facility which results in death or serious physical harm, abuse, neglect, or exploitation. The person making the findings shall do the following:
      1. Orally and immediately inform the facility of the Type A1 Violation and the specific findings.
      2. Within 15 working days of the investigation, send a report of the findings to the facility.
      3. Require a plan of correction to be submitted to the Department, based on a written report of the findings, that describes steps the facility will take to achieve and maintain compliance.
   2. "Type A2 Violation" means a violation by a facility of the regulations, standards, and requirements set forth in Article 2 or 3 of this Chapter or applicable State or federal laws and regulations governing the licensure or certification of a facility which results in substantial risk that death or serious physical harm, abuse, neglect, or exploitation will occur. The person making the findings shall do the following:
      1. Orally and immediately inform the facility of the Type A2 Violation and the specific findings.
      2. Require a written plan of protection regarding how the facility will immediately abate the Type A2 Violation in order to protect clients or residents from further risk or additional harm.
      3. Within 15 working days of the investigation, send a report of the findings to the facility.
      4. Require a plan of correction to be submitted to the Department, based on the written report of the findings, that describes steps the facility will take to achieve and maintain compliance.
   3. Repealed by Session Laws 2016-50, s. 1, effective June 30, 2016.
   4. "Type B Violation" means a violation by a facility of the regulations, standards, and requirements set forth in Article 2 or 3 of this Chapter or applicable State or federal laws and regulations governing the licensure or certification of a facility which is detrimental to the health, safety, or welfare of any client or patient, but which does not result in substantial risk that death or serious physical harm, abuse, neglect, or exploitation will occur. The person making the findings shall do the following:
      1. Orally and immediately inform the facility of the Type B Violation and the specific findings.
      2. Require a written plan of protection regarding how the facility will immediately abate the Type B Violation in order to protect clients or residents from further risk or additional harm.
      3. Within 15 working days of the investigation, send a report of the findings to the facility.
      4. Require a plan of correction to be submitted to the Department, based on the written report of the findings, that describes steps the facility will take to achieve and maintain compliance.
   5. A Type A1, Type A2, or Type B Violation as defined above shall not include a violation by a facility of the regulations, standards, and requirements set forth in Article 2 or 3 of this Chapter or applicable State or federal laws and regulations governing the licensure or certification of a facility if all of the following criteria are met:
      1. The violation was discovered by the facility.
      2. The Department determines that the violation was abated immediately.
      3. The violation was corrected prior to inspection by the Department.
      4. The Department determines that reasonable preventative measures were in place prior to the violation.
      5. The Department determines that subsequent to the violation, the facility implemented corrective measures to achieve and maintain compliance.
   6. As used in this section, "substantial risk" shall mean the risk of an outcome that is substantially certain to materialize if immediate action is not taken.
   7. Repeat Violations. - The Department shall impose a civil penalty which is treble the amount assessed under this subsection when a facility under the same management or ownership has received a citation during the previous 12 months for which the appeal rights are exhausted and penalty payment is expected or has occurred, and the current violation is for the same specific provision of a statute or regulation for which it received a violation during the previous 12 months.
2. Repealed by Session Laws 2011-249, s. 1, effective June 23, 2011.
3. Factors to Be Considered in Determining Amount of Initial Penalty. - In determining the amount of the initial penalty to be imposed under this section, the Department shall consider the following factors:
   1. There is substantial risk that serious physical harm, abuse, neglect, or exploitation will occur, and this has not been corrected within the time specified by the Department or its authorized representative;
   2. Serious physical harm, abuse, neglect, or exploitation, without substantial risk for client death, did occur;
   3. Serious physical harm, abuse, neglect, or exploitation, with substantial risk for client death, did occur;
   4. A client died;
   5. A client died and there is substantial risk to others for serious physical harm, abuse, neglect, or exploitation;
   6. A client died and there is substantial risk for further client death;
   7. The reasonable diligence exercised by the licensee to comply with G.S. 131E-256 and other applicable State and federal laws and regulations;
   8. Efforts by the licensee to correct violations;
   9. The number and type of previous violations committed by the licensee within the past 36 months; and
   10. Repealed by Session Laws 2011-249, s. 1, effective June 23, 2011.
   11. The number of clients or patients put at risk by the violation.
4. The facts found to support the factors in subsection (c) of this section shall be the basis in determining the amount of the penalty. The Department shall document the findings in written record and shall make the written record available to all affected parties including:
   1. The licensee involved;
   2. The clients or patients affected; and
   3. The family members or guardians of the clients or patients affected.
5. The Department shall impose a civil penalty of fifty dollars ($50.00) per day on any facility which refuses to allow an authorized representative of the Department to inspect the premises and records of the facility.
6. Any facility wishing to contest a penalty shall be entitled to an administrative hearing as provided in Chapter 150B of the General Statutes. A petition for a contested case shall be filed within 30 days after the Department mails a notice of penalty to a licensee. At least the following specific issues shall be addressed at the administrative hearing:
   1. The reasonableness of the amount of any civil penalty assessed, and
   2. The degree to which each factor has been evaluated pursuant to subsection (c) of this section to be considered in determining the amount of an initial penalty.
7. Any penalty imposed by the Department of Health and Human Services under this section shall commence on the date of the letter of notification of the penalty amount.
8. The Secretary may bring a civil action in the superior court of the county wherein the violation occurred to recover the amount of the administrative penalty whenever a facility:
   1. Which has not requested an administrative hearing fails to pay the penalty within 60 days after being notified of the penalty, or
   2. Which has requested an administrative hearing fails to pay the penalty within 60 days after receipt of a written copy of the decision as provided in G.S. 150B-37.
9. In lieu of assessing all or some of the administrative penalty, the Secretary may order a facility to provide staff training, or consider the approval of training completed by the facility after the violation, if all of the following criteria are met:
   1. The training is determined by the Department to be specific to the violation.
   2. The training is approved by the Department.
   3. The training is taught by someone approved by the Department.
   4. The facility has corrected the violation and continues to remain in compliance with the regulation.
10. The clear proceeds of civil penalties provided for in this section shall be remitted to the State Treasurer for deposit in accordance with State law.
11. In considering renewal of a license, the Department shall not renew a license if outstanding fines and penalties imposed by the Department against the facility or program have not been paid. Fines and penalties for which an appeal is pending are exempt from consideration for nonrenewal under this subsection.

a1. Require a written plan of protection regarding how the facility will immediately abate the Type A1 Violation in order to protect clients from further risk or additional harm.

The Department shall impose a civil penalty in an amount not less than five hundred dollars ($500.00) nor more than ten thousand dollars ($10,000) for each Type Al Violation in facilities or programs that serve six or fewer persons. The Department shall impose a civil penalty in an amount not less than one thousand dollars ($1,000) nor more than twenty thousand dollars ($20,000) for each Type A1 Violation in facilities or programs that serve seven or more persons. Where a facility has failed to correct a Type A1 Violation, the Department shall access the facility a civil penalty in the amount of up to one thousand dollars ($1,000) for each day that the violation continues beyond the time specified for correction. The Department or its authorized representative shall determine whether the violation has been corrected.

The violation or violations shall be corrected within the time specified for correction by the Department or its authorized representative. The Department may or may not assess a penalty taking into consideration the compliance history, preventative measures, and response to previous violations by the facility. Where a facility has failed to correct a Type A2 Violation, the Department shall assess the facility a civil penalty in the amount of up to one thousand dollars ($1,000) for each day that the deficiency continues beyond the time specified for correction by the Department or its authorized representative. The Department or its authorized representative shall determine whether the violation has been corrected.

Where a facility has failed to correct a Type B Violation within the time specified for correction by the Department or its authorized representative, the Department shall assess the facility a civil penalty in the amount of up to four hundred dollars ($400.00) for each day that the violation continues beyond the date specified for correction without just reason for the failure. The Department or its authorized representative shall ensure that the violation has been corrected.

If a civil penalty is found to be unreasonable or if the evaluation of each factor is found to be incomplete, the hearing officer may recommend that the penalty be adjusted accordingly.

History

(2000-55, s. 4; 2005-276, ss. 10.40A(e), 10.40A(f); 2011-249, s. 1; 2011-398, s. 39; 2016-50, s. 1.)

Editor's Note. - Subdivision (a)(1c), as enacted by Session Laws 2016-50, s. 1, was redesignated as subdivision (a)(2b) at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2005-276, ss. 10.40A(e) and 10.40A(f), effective July 1, 2005, rewrote the second paragraph of subdivision (a)(1); and in subdivision (b)(1), substituted "one thousand dollars ($1,000)" for "five hundred dollars ($500.00)"; and in subdivision (b)(2), substituted "four hundred dollars ($400.00)" for "two hundred dollars ($200.00)."

Session Laws 2011-249, s. 1, effective June 23, 2011, rewrote the section.

Session Laws 2016-50, s. 1, effective June 30, 2016, deleted former subdivision (a)(1b); added subdivisions (a)(1c) and (a)(2a); and rewrote subsection (i). See editor's note for redesignation of subdivision (a)(1c).

§ 122C-25. Inspections; confidentiality.

1. The Secretary shall make or cause to be made inspections that the Secretary considers necessary. Facilities licensed under this Article shall be subject to inspection at all times by the Secretary. All residential facilities as defined in G.S. 122C-3(14)e. shall be inspected on an annual basis.
2. Notwithstanding G.S. 8-53, G.S. 8-53.3 or any other law relating to confidentiality of communications involving a patient or client, in the course of an inspection conducted under this section, representatives of the Secretary may review any writing or other record concerning the admission, discharge, medication, treatment, medical condition, or history of any individual who is or has been a patient, resident, or client of a licensable facility and the personnel records of those individuals employed by the licensable facility.
   1. Any confidential or privileged information obtained under this section unless the client or his legally responsible person authorizes disclosure in writing; or
   2. The name of anyone who has furnished information concerning a licensable facility without the individual's consent.
3. The Secretary shall adopt rules regarding inspections, that, at a minimum, provide for:
   1. A general administrative schedule for inspections; and
   2. An unscheduled inspection without notice, if there is a complaint alleging the violation of any licensing rule adopted under this Article.
4. All residential facilities, as defined in G.S. 122C-3(14)e., shall ensure that the Division of Health Service Regulation complaint hotline number is posted conspicuously in a public place in the facility.

A licensable facility, its employees, and any other individual interviewed in the course of an inspection are immune from liability for damages resulting from disclosure of any information to the Secretary.

Except as required by law, it is unlawful for the Secretary or an employee of the Department to disclose the following information to someone not authorized to receive the information:

Violation of this subsection is a Class 3 misdemeanor punishable only by a fine, not to exceed five hundred dollars ($500.00).

All confidential or privileged information obtained under this section and the names of persons providing this information are exempt from Chapter 132 of the General Statutes.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2; 1993, c. 539, s. 918; 1994, Ex. Sess., c. 24, s. 14(c); 2005-276, ss. 10.40A(g), 10.40A(h); 2007-182, s. 1.)

Effect of Amendments. - Session Laws 2005-276, ss. 10.40A(g) and 10.40A(h), effective July 1, 2007, added the second sentence in subsection (a); and added subsection (d). For applicability, see Editor's Note.

Session Laws 2007-182, s. 1, effective July 5, 2007, substituted "Division of Health Service Regulation" for "Division of Facility Services" in subsection (d).

§ 122C-26. Powers of the Commission.

In addition to other powers and duties, the Commission shall exercise the following powers and duties:

1. Adopt, amend, and repeal rules consistent with the laws of this State and the laws and regulations of the federal government to implement the provisions and purposes of this Article;
2. Issue declaratory rulings needed to implement the provisions and purposes of this Article;
3. Adopt rules governing appeals of decisions to approve or deny licensure under this Article;
4. Adopt rules for the waiver of rules adopted under this Article; and
5. Adopt rules applicable to facilities licensed under this Article that do the following:
   1. Establishing personnel requirements of staff employed in facilities.
   2. Establishing qualifications of facility administrators or directors.
   3. Establishing requirements for death reporting including confidentiality provisions related to death reporting.
   4. Establishing requirements for patient advocates.
   5. Requiring facility personnel who refer clients to provider agencies to disclose any pecuniary interest the referring person has in the provider agency, or other interest that may give rise to the appearance of impropriety.
   6. Establishing standardized procedures for facilities in training and record keeping of the measures taken to inform employees and volunteers of the duties imposed by G.S. 122C-66.
6. Adopt rules providing for the licensure and accreditation of residential treatment facilities that provide services to persons with traumatic brain injury.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2; 2000-55, s. 5; 2005-276, s. 10.33; 2009-361, s. 1; 2015-36, s. 1.)

Editor's Note. - Session Laws 2000-55, s. 6, provides that, notwithstanding G.S. 150B-21.1(a), the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services is to adopt temporary rules to implement G.S. 122C-26(5).

Session Laws 2009-361, s. 2, provides: "The Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services may adopt temporary rules to carry out the provisions of Section 1 of this act until July 1, 2010."

Session Laws 2009-490, s. 4, as amended by Session Laws 2012-15, s. 2, provides: "The Department of Health and Human Services, Division of Health Service Regulation shall establish a pilot program to study the use of electronic supervision devices as an alternative means of supervision during sleep hours at facilities for children and adolescents who have a primary diagnosis of mental illness and/or emotional disturbance. The pilot program shall be implemented at a facility currently authorized to waive the requirement set forth in 10A NCAC 27G.1704(c) or any related or subsequent rule or regulation by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services setting minimum overnight staffing requirements. The waiver shall remain in effect until December 31, 2015; however, the Division reserves the right to rescind the waiver if, at the time of the facility's license renewal, there are outstanding deficiencies that have remained uncorrected upon follow-up survey, that are related to electronic supervision."

Session Laws 2009-490, s. 5, provides: "The Department of Health and Human Services shall report on the implementation of the pilot program described in Section 4 of this act, including any findings and recommendations to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division not later than April 10, 2010."

Session Laws 2015-264, s. 91.4(a), provides that: "Notwithstanding any other provision of law, the pilot program established by the Department of Health and Human Services, Division of Health Service Regulation, to study the use of electronic supervision devices as an alternative means of supervision during sleep hours at facilities for children and adolescents who have a primary diagnosis of mental illness and/or emotional disturbance shall remain in effect and shall extend to facilities that are authorized to provide services in accordance with Section .1700 of the North Carolina Administrative Code, Residential Treatment Staff Secure for Children or Adolescents, currently owned or operated with the facility currently authorized to waive the requirement set forth in 10A NCAC 27G .1704(c) or any related or subsequent rule or regulation by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services setting minimum overnight staffing requirements. The waiver for these facilities shall remain in effect; however, the Division reserves the right to rescind the waiver if, at the time of the facility's license renewal, there are outstanding deficiencies that have remained uncorrected upon follow-up surveys that are related to electronic supervision." Session Laws 2015-264, s. 91.4(b) which provided that the section expires on June 30, 2016, was repealed by Session Laws 2016-50, s. 3, effective June 30, 2016.

Effect of Amendments. - Session Laws 2005-276, s. 10.33, effective July 1, 2005, added subdivision (5)e., and made minor punctuation changes.

Session Laws 2009-361, s. 1, effective July 27, 2009, added subdivision (6).

Session Laws 2015-36, s. 1, effective May 26, 2015, in subdivision (5), made minor stylistic and punctuation changes throughout, and added subdivision (5)f. and made a related change.

§ 122C-27. Powers of the Secretary.

The Secretary shall have the power to do all of the following:

1. Administer and enforce the provisions, rules, and decisions pursuant to this Article.
2. Appoint hearing officers to conduct appeals under this Article.
3. Prescribe by rule the contents of the application for licensure and renewal.
4. Inspect facilities and records of each facility to be licensed under this Article under the rules and decisions pursuant to this Article.
5. Issue a license upon a finding that the applicant and facility comply with the provisions of this Article and the rules of the Commission and the Secretary.
6. Define by rule procedures for submission of periodic reports by facilities licensed under this Article.
7. Grant, deny, suspend, or revoke a license under this Article.
8. Issue orders directing facilities not licensed under this Article that are providing services requiring a license under this Article to cease and desist from engaging in any act or practice in violation of the provisions of this Article.
9. In accordance with rules of the Commission, make final agency decisions for appeals from the denial, suspension, or revocation of a license in accordance with G.S. 122C-24.
10. In accordance with rules of the Commission, grant waiver for good cause of any rules implementing this Article that do not affect the health, safety, or welfare of individuals within a licensable facility.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2; 2021-77, s. 7.1(c).)

Editor's Note. - Session Laws 2021-77, s. 7.1(d), made the amendments to this section by Session Laws 2021-77, s. 7.1(c ), effective July 2, 2021, and applicable to cease and desist letters sent by the Department of Health and Human Services on or after that date.

Effect of Amendments. - Session Laws 2021-77, s. 7.1(c), inserted "have the power to do all of the following” in the introductory paragraph; redesignated former subdivisions (8), and (9) as present subdivisions (9), and (10); added present subdivision (8); and made stylistic changes throughout. For effective date and applicability, see editor's note.

§ 122C-28. (Effective until December 1, 2021) Penalties.

Operating a licensable facility without a license is a Class 3 misdemeanor and is punishable only by a fine not to exceed fifty dollars ($50.00), for the first offense and a fine, not to exceed five hundred dollars ($500.00), for each subsequent offense. Each day's operation of a licensable facility without a license is a separate offense.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2; 1993, c. 539, s. 919; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 122C-28. Penalties.

Operating a licensable facility without a license is a Class H felony, including a fine of one thousand dollars ($1,000) per day that the facility is in operation in violation of this Article.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2; 1993, c. 539, s. 919; 1994, Ex. Sess., c. 24, s. 14(c); 2021-77, s. 7.2(a).)

Editor's Note. - Session Laws 2021-77, s. 7.2(b), made the rewriting of this section by Session Laws 2021-77, s. 7.2(a), effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2021-77, s. 7.2(a), rewrote the section, which formerly read: "Operating a licensable facility without a license is a Class 3 misdemeanor and is punishable only by a fine not to exceed fifty dollars ($50.00), for the first offense and a fine, not to exceed five hundred dollars ($500.00), for each subsequent offense. Each day's operation of a licensable facility without a license is a separate offense." For effective date and applicability, see editor's note.

§ 122C-28.1. Facilities in violation of this Article.

1. If the Department has directed a facility not licensed under this Article that is providing services requiring a license under this Article to cease and desist from engaging in any act or practice in violation of this Article, then the Department shall conduct a follow-up visit to determine if the Secretary may issue a cease and desist order pursuant to G.S. 122C-27, unless a cease and desist order has already been issued.
2. The district attorney's office with jurisdiction over the facility shall collect information on the total amount of fines collected pursuant to G.S. 122C-28 and report that information to the Department.

History

(2021-77, s. 7.1(a).)

Editor's Note. - Session Laws 2021-77, s. 7.1(d), made this section, as added by Session Laws 2021-77, s. 7.1(a), effective July 2, 2021, and applicable to cease and desist letters sent by the Department of Health and Human Services on or after that date.

§ 122C-29. Injunction.

1. Notwithstanding the existence or pursuit of any other remedy, the Secretary may, in the way provided by law, maintain an action in the name of the State for injunction or other process against any person to restrain or prevent the establishment, conduct, management, or operation of a licensable facility operating without a license or in a way that threatens the health, safety, or welfare of the individuals in the licensable facility.
2. If any individual interferes with the proper performance or duty of the Secretary in carrying out this Article, the Secretary may institute an action in the superior court of the county in which the interference occurred for injunctive relief against the continued interference, irrespective of all other remedies at law.

History

(1983, c. 718, s. 1; 1985, c. 589, s. 2.)

§ 122C-30. Peer review committee; immunity from liability; confidentiality.

For purposes of peer review functions of a facility licensed under the provisions of this Chapter:

1. A member of a duly appointed peer review committee or quality assurance committee who acts without malice or fraud shall not be subject to liability for damages in any civil action on account of any act, statement, or proceeding undertaken, made, or performed within the scope of the functions of the committee; and
2. Proceedings of a peer review or quality assurance committee, the records and materials it produces, and the material it considers shall be confidential and not considered public records within the meaning of G.S. 132-1, "Public records' defined," and shall not be subject to discovery or introduction into evidence in any civil action against a facility or a provider of professional health services that results from matters which are the subject of evaluation and review by the committee. No person who was in attendance at a meeting of the committee shall be required to testify in any civil action as to any evidence or other matters produced or presented during the proceedings of the committee or as to any findings, recommendations, evaluations, opinions, or other actions of the committee or its members. However, information, documents or records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee, and nothing herein shall prevent a provider of professional health services from using such otherwise available information, documents or records in connection with an administrative hearing or civil suit relating to the medical staff membership, clinical privileges or employment of the provider. Documents otherwise available as public records within the meaning of G.S. 132-1 do not lose their status as public records merely because they were presented or considered during proceedings of the committee. A member of the committee or a person who testifies before the committee may be subpoenaed and be required to testify in a civil action as to events of which the person has knowledge independent of the peer review or quality assurance process, but cannot be asked about the person's testimony before the committee for impeachment or other purposes or about any opinions formed as a result of the committee hearings.

History

(1989 (Reg. Sess., 1990), c. 1053, s. 2; 2004-149, s. 2.8.)

Cross References. - As to provisions pertaining to medical review committees, see G.S. 131E-95.

Effect of Amendments. - Session Laws 2004-149, s. 2.8, effective August 2, 2004, substituted "facility" for "hospital" in the first sentence; inserted "or quality assurance committee" in subdivision (1); in subdivision (2), inserted "or quality assurance" in the first sentence, inserted the fourth sentence, and in the last sentence, inserted "or quality assurance" preceding "process," and substituted gender neutral language.

§ 122C-31. Report required upon death of client.

1. A facility shall notify the Secretary immediately upon the death of any client of the facility that occurs within seven days of physical restraint or seclusion of the client, and shall notify the Secretary within three days of the death of any client of the facility resulting from violence, accident, suicide, or homicide. The Secretary may assess a civil penalty of not less than five hundred dollars ($500.00) and not more than one thousand dollars ($1,000) against a facility that fails to notify the Secretary of a death and the circumstances surrounding the death known to the facility. Chapter 150B of the General Statutes governs the assessment of a penalty under this section. A civil penalty owed under this section may be recovered in a civil action brought by the Secretary or the Attorney General. The clear proceeds of the penalty shall be remitted to the State Treasurer for deposit in accordance with State law.
2. Upon receipt of notification from a facility in accordance with subsection (a) of this section, the Secretary shall notify the State protection and advocacy agency designated under the Developmental Disabilities Assistance and Bill of Rights Act 2000, 42 U.S.C. § 15001, et seq., that a person with a disability has died. The Secretary shall provide the agency access to the information about each death reported pursuant to subsection (a) of this section, including information resulting from any investigation of the death by the Department and from reports received from the Chief Medical Examiner pursuant to G.S. 130A-385. The agency shall use the information in accordance with its powers and duties under applicable State and federal law and regulations.
3. If the death of a client of a facility occurs within seven days of the use of physical restraint or seclusion, then the Secretary shall initiate immediately an investigation of the death.
4. An inpatient psychiatric unit of a hospital licensed under Chapter 131E of the General Statutes shall comply with this section.
5. Nothing in this section abrogates State or federal law or requirements pertaining to the confidentiality, privilege, or other prohibition against disclosure of information provided to the Secretary or the agency. In carrying out the requirements of this section, the Secretary and the agency shall adhere to State and federal requirements of confidentiality, privilege, and other prohibitions against disclosure and release applicable to the information received under this section. A facility or provider that makes available confidential information in accordance with this section and with State and federal law is not liable for the release of the information.
6. The Secretary shall establish a standard reporting format for reporting deaths pursuant to this section and shall provide to facilities subject to this section a form for the facility's use in complying with this section.
7. In addition to the reporting requirements specified in subsections (a) through (e) of this section, and pursuant to G.S. 130A-383, every State facility shall report, without redactions other than to protect confidential personnel information, the death of any client of the facility, and, if known, the death of any former client of a facility who dies within 14 days of release from the facility, regardless of the manner of death:
   1. To the medical examiner of the county in which the body of the deceased is found; and
   2. To the State protection and advocacy agency designated under the Developmental Disabilities Assistance and Bill of Rights Act 2000, 42 U.S.C. § 15001, et seq. The State protection and advocacy agency shall use the information in accordance with its powers and duties under applicable State or federal law and regulations.
8. Notwithstanding G.S. 122C-52, and unless otherwise prohibited by State or federal law or requirements, in order to provide for greater transparency in connection with the reporting requirements specified in subsections (a) through (g) of this section, the following information in reports made pursuant to this section shall be public records within the meaning of G.S. 132-1 when reported by a State facility:
   1. The name, sex, age, and date of birth of the deceased.
   2. The name of the facility providing the report.
   3. The date, time, and location of the death.
   4. A brief description of the circumstances of death, including the manner of death, if known.
   5. A list of all entities to whom the event was reported.
9. Notwithstanding G.S. 122C-22, all facilities, as defined in G.S. 122C-3(14), shall comply with this section.

History

(2000-129, s. 3(a); 2007-323, ss. 19.1(e), (f); 2008-131, s. 1; 2009-299, ss. 1-4.)

Editor's Note. - Session Laws 2007-323, s. 19.1(b), provides: "(b) Pursuant to the Developmental Disabilities Assistance and Bill of Rights Act, the Governor shall redesignate the operation and function of the Governor's Advocacy Council for Persons with Disabilities from the Department of Administration to a nongovernmental entity. The Governor shall follow the federal statutory procedure for redesignation found at 45 C.F.R. § 1386.20, with a target transfer date of July 1, 2007."

Session Laws 2007-323, s. 19.1( l ), provides: "This section is effective on the effective date of the redesignation and transfer of the operation and function of the Governor's Advocacy Council for Persons with Disabilities from the Department of Administration to a nongovernmental entity under the Developmental Disabilities Assistance and Bill of Rights Act 2000, P.L. 106-402. Any funds appropriated to the Governor's Advocacy Council for Persons with Disabilities revert to the General Fund on that date." The redesignation and transfer were effective July 1, 2007.

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Effect of Amendments. - Session Laws 2007-323, s. 19.1(e), (f), substituted "the agency" for "the Council" throughout subsections (b) and (e); in subsection (b), substituted "State protection and advocacy agency designated under the Developmental Disabilities Assistance and Bill of Rights Act 2000, P.L. 106-402" for "Governor's Advocacy Council for Persons with Disabilities" in the first sentence, and substituted "duties under applicable State and federal law" for "duties under G.S. 143B-403.1 and applicable federal law" in the last sentence. For effective date, see Editor's note.

Session Laws 2008-131, s. 1, effective July 28, 2008, added subsection (g).

Session Laws 2009-299, ss. 1 to 4, effective July 17, 2009, in subsection (b), substituted "42 U.S.C. § 15001, et seq." for "P.L. 106-402"; rewrote subsection (g); and added subsections (h) and (i).

§§ 122C-32 through 122C-50: Reserved for future codification purposes.

§ 122C-51. Declaration of policy on clients' rights.

It is the policy of the State to assure basic human rights to each client of a facility. These rights include the right to dignity, privacy, humane care, and freedom from mental and physical abuse, neglect, and exploitation. Each facility shall assure to each client the right to live as normally as possible while receiving care and treatment.

It is further the policy of this State that each client who is admitted to and is receiving services from a facility has the right to treatment, including access to medical care and habilitation, regardless of age or degree of mental illness, developmental disabilities, or substance abuse. Each client has the right to an individualized written treatment or habilitation plan setting forth a program to maximize the development or restoration of his capabilities.

History

(1973, c. 475, s. 1; c. 1436, ss. 1, 8; 1985, c. 589, s. 2; 1989, c. 625, s. 7; 1997-442, s. 1.)

Cross References. - As to penalties for violations of this Article, see G.S. 122C-24.1.

Legal Periodicals. - For note discussing the application of the constitutional right of privacy to a mental patient's refusal of psychotropic medication, see 57 N.C.L. Rev. 1481 (1979).

For comment on exclusionary zoning of community facilities, see 12 N.C. Cent. L.J. 167 (1980).

Opinions of Attorney General

Applicability. - The provisions of former G.S. 122-55.1 through 122-55.14, relating to patients' rights, applied to services provided for an area mental health authority (now area mental health, developmental disabilities, and substance abuse authority) by a general hospital, etc., on a contractual basis. See opinion of Attorney General to Mr. R.J. Bickel, Deputy Director for Administration, Division of Mental Health and Mental Retardation Services, 48 N.C.A.G. 9 (1978).

Parent-Child Relationship Unaffected. - See opinion of Attorney General to Dr. Lenore Behar, Chief, Children and Youth Services, Division of Mental Health Services, 44 N.C.A.G. 3 (1974), rendered under former statutory provisions.

§ 122C-52. Right to confidentiality.

1. Except as provided in G.S. 132-5 and G.S. 122C-31(h), confidential information acquired in attending or treating a client is not a public record under Chapter 132 of the General Statutes.
2. Except as authorized by G.S. 122C-53 through G.S. 122C-56, no individual having access to confidential information may disclose this information, provided, however, a HIPAA covered entity or business associate receiving confidential information that has been disclosed pursuant to G.S. 122C-53 through G.S. 122C-56 may use and disclose such information as permitted or required under 45 Code of Federal Regulations Part 164, Subpart E.
3. Except as provided by G.S. 122C-53 through G.S. 122C-56, each client has the right that no confidential information acquired be disclosed by the facility.
4. No provision of G.S. 122C-205 and G.S. 122C-53 through G.S. 122C-56 permitting disclosure of confidential information may apply to the records of a client when federal statutes or regulations applicable to that client prohibit the disclosure of this information.
5. Except as required or permitted by law, disclosure of confidential information to someone not authorized to receive the information is a Class 3 misdemeanor and is punishable only by a fine, not to exceed five hundred dollars ($500.00).

History

(1955, c. 887, s. 12; 1963, c. 1166, s. 10; 1965, c. 800, s. 4; 1973, c. 47, s. 2; c. 476, s. 133; c. 673, s. 5; c. 1408, s. 2; 1979, c. 147; 1983, c. 383, s. 10; c. 491; c. 638, s. 22; c. 864, s. 4; 1985, c. 589, s. 2; 1985 (Reg. Sess., 1986), c. 863, s. 11; 1987, c. 749, s. 2; 1993, c. 539, s. 920; 1994, Ex. Sess., c. 24, s. 14(c); 2009-299, s. 5; 2011-314, s. 2(a).)

Effect of Amendments. - Session Laws 2009-299, s. 5, effective July 17, 2009, inserted "and G.S. 122C-31(h)" in subsection (a).

Legal Periodicals. - For survey of 1979 law on evidence, see 58 N.C.L. Rev. 1456 (1980).

For note, "Psychiatrists' Liability to Third Parties for Harmful Acts Committed by Dangerous Patients," see 64 N.C.L. Rev. 1534 (1986).

§ 122C-53. Exceptions; client.

1. A facility may disclose confidential information if the client or the legally responsible person consents in writing to the release of the information to a specified person. This release is valid for a specified length of time and is subject to revocation by the consenting individual.
2. A facility may disclose (i) the fact of admission or discharge of a client and (ii) the time and location of admission or discharge to the client's next of kin whenever the responsible professional determines that the disclosure is in the best interest of the client.
3. Upon request a client shall have access to confidential information in the client's record except information that would be injurious to the client's physical or mental well-being as determined by the attending physician or, if there is none, by the facility director or the facility director's designee. If the attending physician or, if there is none, the facility director or the facility director's designee has refused to provide confidential information to a client, the client may request that the information be sent to a physician or psychologist of the client's choice, and in this event the information shall be so provided.
4. Except as provided by G.S. 90-21.4(b), upon request the legally responsible person of a client shall have access to confidential information in the client's record; except information that would be injurious to the client's physical or mental well-being as determined by the attending physician or, if there is none, by the facility director or the facility director's designee. If the attending physician or, if there is none, the facility director or the facility director's designee has refused to provide confidential information to the legally responsible person, the legally responsible person may request that the information be sent to a physician or psychologist of the legally responsible person's choice, and in this event the information shall be so provided.
5. A client advocate's access to confidential information and the client's responsibility for safeguarding this information are as provided by subsection (g) of this section.
6. As used in subsection (g) of this section, the following terms have the meanings specified:
   1. "Internal client advocate" means a client advocate who is employed by the facility or has a written contractual agreement with the Department or with the facility to provide monitoring and advocacy services to clients in the facility in which the client is receiving services.
   2. "External client advocate" means a client advocate acting on behalf of a particular client with the written consent and authorization under either of the following circumstances:
      1. In the case of a client who is an adult and who has not been adjudicated incompetent under Chapter 35A or former Chapters 33 or 35 of the General Statutes, of the client.
      2. In the case of any other client, of the client and the legally responsible person.
7. An internal client advocate shall be granted, without the consent of the client or the legally responsible person, access to routine reports and other confidential information necessary to fulfill monitoring and advocacy functions. In this role, the internal client advocate may disclose confidential information received to the client involved, to the legally responsible person, to the director of the facility or the director's designee, to other individuals within the facility who are involved in the treatment or habilitation of the client, or to the Secretary in accordance with the rules of the Commission. Any further disclosure shall require the written consent of the client and the legally responsible person. An external client advocate shall have access to confidential information only upon the written consent of the client and his legally responsible person. In this role, the external client advocate may use the information only as authorized by the client and his legally responsible person.
8. In accordance with G.S. 122C-205, the facility shall notify the appropriate individuals upon the escape from and subsequent return of clients to a 24-hour facility.
9. Upon the request of (i) a client who is an adult and who has not been adjudicated incompetent under Chapter 35A or former Chapters 33 or 35 of the General Statutes, or (ii) the legally responsible person for any other client, a facility shall disclose to an attorney confidential information relating to that client.

History

(1973, c. 475, s. 1; c. 1436, ss. 2-5; 1985, c. 589, s. 2; 1989 (Reg. Sess., 1990), c. 1024, s. 26(d); 1995, c. 507, s. 23.4; 2018-33, s. 3.)

Editor's Note. - Session Laws 2018-33, s. 46, made the amendment of this section by Session Laws 2018-33, s. 3, effective October 1, 2019, and applicable to proceedings initiated on or after that date.

Effect of Amendments. - Session Laws 2018-33, s. 3, substituted "the facility director's designee" for "his designee" throughout; in subsection (b), added the item (i) designator, and added item (ii); in subdivision (f)(2), added "under either of the following circumstances" in the introductory paragraph; and made minor grammatical, gender neutral, and punctuation changes throughout. For effective date and applicability, see editor's note.

Legal Periodicals. - For note, "Psychiatrists' Liability to Third Parties for Harmful Acts Committed by Dangerous Patients," see 64 N.C.L. Rev. 1534 (1986).

§ 122C-54. Exceptions; abuse reports and court proceedings.

1. A facility shall disclose confidential information if a court of competent jurisdiction issues an order compelling disclosure.
2. Upon a determination by the facility director or the facility director's designee that disclosure is in the best interests of the client, a facility may disclose confidential information for purposes of filing a petition for involuntary commitment of a client pursuant to Article 5 of this Chapter or for purposes of filing a petition for the adjudication of incompetency of the client and the appointment of a guardian or an interim guardian under Chapter 35A of the General Statutes.
3. If an individual is a defendant in a criminal case and a mental examination of the defendant has been ordered by the court as provided in G.S. 15A-1002, the facility shall send the results or the report of the mental examination to the clerk of court, to the district attorney or prosecuting officer, and to the attorney of record for the defendant as provided in G.S. 15A-1002(d). The report shall contain a treatment recommendation, if any, and an opinion as to whether there is a likelihood that the defendant will gain the capacity to proceed.
4. When an individual is held at a facility under involuntary commitment or voluntary admission proceedings that require district court hearings or rehearings pursuant to Article 5 of this Chapter, certified copies of written results of examinations, gathered during the course of the current commitment or admission, shall be furnished by the facility to the client's counsel, the attorney representing the State's interest, and the court. Upon request, the facility shall disclose to respondent's counsel, the attorney representing the State's interest, and the court confidential information collected, maintained, or used in attending or treating the respondent during the proceeding for voluntary admission or involuntary commitment. Other medical records shall be furnished only upon court order. The confidentiality of client information shall be preserved in all matters except those pertaining to the necessity for admission or continued stay in the facility or commitment under review.
5. Any individual seeking confidential information contained in the court files or the court records of a proceeding made pursuant to Article 5 of this Chapter may file a written motion in the cause setting out why the information is needed. A district court judge may issue an order to disclose the confidential information sought if he finds the order is appropriate under the circumstances and if he finds that it is in the best interest of the individual admitted or committed or of the public to have the information disclosed.
6. Repealed by Session Laws 2015-195, s. 11(a), effective January 1, 2016.
7. The record of involuntary commitment for inpatient or outpatient mental health treatment or for substance abuse treatment required to be reported to the National Instant Criminal Background Check System (NICS) by G.S. 14-409.43 shall be accessible only by the sheriff or the sheriff's designee for the purposes of conducting background checks under G.S. 14-404 and shall remain otherwise confidential as provided by this Article.
8. Upon the request of the legally responsible person or the minor admitted or committed, and after that minor has both been released and reached adulthood, the court records of that minor made in proceedings pursuant to Article 5 of this Chapter may be expunged from the files of the court. The minor and the minor's legally responsible person shall be informed in writing by the court of the right provided by this subsection at the time that the application for admission is filed with the court.
9. A State facility and the psychiatric service of the University of North Carolina Hospitals at Chapel Hill may disclose confidential information to staff attorneys of the Attorney General's office whenever the information is necessary to the performance of the statutory responsibilities of the Attorney General's office or to its performance when acting as attorney for a State facility or the psychiatric service of the University of North Carolina Hospitals at Chapel Hill.
10. A facility may disclose confidential information to an attorney who represents either the facility or an employee of the facility, if such information is relevant to litigation, to the operations of the facility, or to the provision of services by the facility. An employee may discuss confidential information with the employee's attorney or with an attorney representing the facility in which the employee is employed.
11. A facility shall disclose confidential information for purposes of complying with Article 3 of Chapter 7B of the General Statutes and Article 6 of Chapter 108A of the General Statutes, or as required by other State or federal law.
12. G.S. 132-1.4 shall apply to the records of criminal investigations conducted by any law enforcement unit of a State facility, and information described in G.S. 132-1.4(c) that is collected by the State facility law enforcement unit shall be public records within the meaning of G.S. 132-1.
13. Notwithstanding any other provision of this Chapter, the Secretary may inform any person of any incident or event involving the welfare of a client or former client when the Secretary determines that the release of the information is essential to maintaining the integrity of the Department. However, the release shall not include information that identifies the client directly, or information for which disclosure is prohibited by State or federal law or requirements, or information for which, in the Secretary's judgment, by reference to publicly known or available information, there is a reasonable basis to believe the client will be identified.

History

(1955, c. 887, s. 12; 1963, c. 1166, s. 10; 1973, c. 47, s. 2; c. 476, s. 133; c. 673, s. 5; c. 1408, s. 2; 1977, c. 696, s. 1; 1979, c. 147; c. 915, s. 20; 1983, c. 383, s. 10; c. 491; c. 638, s. 22; c. 864, s. 4; 1985, c. 589, s. 2; 1987, c. 638, ss. 1, 3.1; 1989, c. 141, s. 9; 1993, c. 516, s. 12; 1998-202, s. 13(dd); 2003-313, s. 2; 2008-210, s. 1; 2009-299, s. 6; 2013-18, s. 7; 2013-369, ss. 7, 8; 2015-195, s. 11(a), (e); 2018-33, s. 4.)

Editor's Note. - Session Laws 1993, c. 516, s. 13 provides that nothing in the act obligates the General Assembly to make any appropriations to implement it.

Session Laws 2013-18, s. 11, made the last sentence of subsection (b), as added by Session Laws 2013-18, s. 7, effective December 1, 2013, and applicable to offenses committed on or after that date.

Session Laws 2013-369, s. 28, provides: "Sections 1 through 6, 14 through 16, 18, 21, 23, 25, and 26 of this act become effective October 1, 2013, and apply to offenses committed on or after that date. Section 17.3 and this section are effective when they become law. Section 27 of this act becomes effective October 1, 2013, and applies to any judgment entered for a felony conviction on or after that date. Except as otherwise provided in this act, the remainder of this act becomes effective October 1, 2013. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Session Laws 2018-33, s. 46, made the amendment of this section by Session Laws 2018-33, s. 4, effective October 1, 2019, and applicable to proceedings initiated on or after that date.

Effect of Amendments. - Session Laws 2008-210, s. 1, effective December 1, 2008, added subsection (d1).

Session Laws 2009-299, s. 6, effective July 17, 2009, added subsections (i) and (j).

Session Laws 2015-195, s. 11(a), (e), effective January 1, 2016, repealed subsection (d1); and rewrote subsection (d2).

Session Laws 2018-33, s. 4, substituted "the facility director's designee" for "his designee" in subsection (a1); rewrote subsection (c); substituted "the minor's legally" for "his legally" in the second sentence of subsection (e); and, in the last sentence of subsection (g), substituted "the employee's attorney" for "his attorney" and "the employee is" for "he is." For effective date and applicability, see editor's note.

Legal Periodicals. - For note, "Psychiatrists' Liability to Third Parties for Harmful Acts Committed by Dangerous Patients," see 64 N.C.L. Rev. 1534 (1986).

§ 122C-54.1: Recodified as G.S. 14-409.42 by Session Laws 2015-195, s. 11(b), effective August 5, 2015.

Editor's Note. - This section was enacted as G.S. 122C-54.1 and was recodified as G.S. 14-409.42 by Session Laws 2015-195, s. 11(b), effective August 5, 2015.

§ 122C-55. Exceptions; care and treatment.

1. Any facility may share confidential information regarding any client of that facility with any other facility when necessary to coordinate appropriate and effective care, treatment, or habilitation of the client. For the purposes of this section, the following definitions apply:
   1. "Client" includes an enrollee as defined in G.S. 108D-1.
   2. Coordinate. - The provision, coordination, or management of mental health, developmental disabilities, and substance abuse services and other health or related services by one or more facilities and includes the referral of a client from one facility to another.
   3. Facility or area facility. - Include[s] an area authority or a prepaid health plan.
   4. Secretary. - Includes any primary care case management programs that contract with the Department to provide a primary care case management program for recipients of publicly funded health and related services.
2. Any facility may share confidential information regarding any client of that facility with the Secretary, and the Secretary may share confidential information regarding any client with a facility when necessary to conduct quality assessment and improvement activities or to coordinate appropriate and effective care, treatment, or habilitation of the client. For purposes of this subsection, subsection (a6), and subsection (a7) of this section, the purposes or activities for which confidential information may be disclosed include, but are not limited to, case management and care coordination, disease management, outcomes evaluation, the development of clinical guidelines and protocols, the development of care management plans and systems, population-based activities relating to improving or reducing health care costs, and the provision, coordination, or management of mental health, developmental disabilities, and substance abuse services and other health or related services.
3. Any facility or the psychiatric service of the University of North Carolina Hospitals at Chapel Hill may share confidential information regarding any client of that facility with any other area facility or State facility or the psychiatric service of the University of North Carolina Hospitals at Chapel Hill when necessary to conduct payment activities relating to an individual served by the facility. Payment activities are activities undertaken by a facility to obtain payment or receive reimbursement for the provision of services and may include, but are not limited to, determinations of eligibility or coverage, coordination of benefits, determinations of cost-sharing amounts, claims management, claims processing, claims adjudication, claims appeals, billing and collection activities, medical necessity reviews, utilization management and review, precertification and preauthorization of services, concurrent and retrospective review of services, and appeals related to utilization management and review.
4. Whenever there is reason to believe that a client is eligible for benefits through a Department program, any facility or the psychiatric service of the University of North Carolina Hospitals at Chapel Hill may share confidential information regarding any client of that facility with the Secretary, and the Secretary may share confidential information regarding any client with an area facility or State facility or the psychiatric services of the University of North Carolina Hospitals at Chapel Hill. Disclosure is limited to that information necessary to establish initial eligibility for benefits, determine continued eligibility over time, and obtain reimbursement for the costs of services provided to the client.
5. An area authority or prepaid health plan may share confidential information regarding any client with any area facility, and any area facility may share confidential information regarding any client of that facility with the area authority or prepaid health plan, when the area authority or prepaid health plan determines the disclosure is necessary to develop, manage, monitor, or evaluate the area authority's or prepaid health plan's network of qualified providers as provided in G.S. 122C-115.2(b)(1)b., G.S. 122C-141(a), Article 3 of Chapter 108D of the General Statutes, the State Plan, rules of the Secretary, and contracts between the facility and the Department. For the purposes of this subsection, the purposes or activities for which confidential information may be disclosed include, but are not limited to, quality assessment and improvement activities, provider accreditation and staff credentialing, developing contracts and negotiating rates, investigating and responding to client grievances and complaints, evaluating practitioner and provider performance, auditing functions, on-site monitoring, conducting consumer satisfaction studies, and collecting and analyzing performance data.
6. Any area facility may share confidential information with any other area facility regarding an applicant when necessary to determine whether the applicant is eligible for area facility services. For the purpose of this subsection, the term "applicant" means an individual who contacts an area facility for services.
7. When necessary to conduct quality assessment and improvement activities or to coordinate appropriate and effective care, treatment, or habilitation of the client, the Department's Community Care of North Carolina Program, or other primary care case management program, may disclose confidential information acquired pursuant to subsection (a1) of this section to a health care provider or other entity that has entered into a written agreement with the Community Care of North Carolina Program, or other primary care case management program, to participate in the care management support network and systems developed and maintained by the primary care case manager for the purpose of coordinating and improving the quality of care for recipients of publicly funded health and related services. Health care providers and other entities receiving confidential information that has been disclosed pursuant to this subsection may use and disclose the information as permitted or required under 45 Code of Federal Regulations Part 164, Subpart E.
8. A facility may share confidential information with one or more HIPAA covered entities or business associates for the same purposes set forth in subsection (a1) of this section. Before making disclosures under this subsection, the facility shall inform the client or the client's legally responsible person that the facility may make the disclosures unless the client or the client's legally responsible person objects in writing or signs a non-disclosure form that shall be supplied by the facility. If the client or the client's legally responsible person objects in writing or signs a non-disclosure form, the disclosures otherwise permitted by this subsection are prohibited. A covered entity or business associate receiving confidential information that has been disclosed by a facility pursuant to this subsection may use and disclose the information as permitted or required under 45 Code of Federal Regulations Part 164, Subpart E. This confidential information, however, shall not be used or disclosed for discriminatory purposes including, without limitation, employment discrimination, medical insurance coverage or rate discrimination, or discrimination by law enforcement officers.
9. A facility, physician, or other individual responsible for evaluation, management, supervision, or treatment of respondents examined or committed for outpatient treatment under the provisions of Article 5 of this Chapter may request, receive, and disclose confidential information to the extent necessary to fulfill the facility's, physician's, or individual's responsibilities.
10. A facility may furnish confidential information in its possession to the Division of Adult Correction and Juvenile Justice of the Department of Public Safety when requested by that department regarding any client of that facility when the inmate has been determined by the Division of Adult Correction and Juvenile Justice of the Department of Public Safety to be in need of treatment for mental illness, developmental disabilities, or substance abuse. The Division of Adult Correction and Juvenile Justice of the Department of Public Safety may furnish to a facility confidential information in its possession about treatment for mental illness, developmental disabilities, or substance abuse that the Division of Adult Correction and Juvenile Justice of the Department of Public Safety has provided to any present or former inmate if the inmate is presently seeking treatment from the requesting facility or if the inmate has been involuntarily committed to the requesting facility for inpatient or outpatient treatment. Under the circumstances described in this subsection, the consent of the client or inmate is not required in order for this information to be furnished, and the information shall be furnished despite objection by the client or inmate. Confidential information disclosed pursuant to this subsection is restricted from further disclosure.
11. (See editor's note for effective date information) A facility may furnish confidential information in its possession to the sheriff of any county when requested by the sheriff regarding any client of that facility who is confined in the county's jail or jail annex when the inmate has been determined by the county jail medical unit to be in need of treatment for mental illness, developmental disabilities, or substance abuse. The sheriff may furnish to a facility confidential information in its possession about treatment for mental illness, developmental disabilities, or substance abuse that the county jail medical unit has provided to any present or former inmate if the inmate is presently seeking treatment from the requesting facility or if the inmate has been involuntarily committed to the requesting facility for inpatient or outpatient treatment. Under the circumstances described in this subsection, the consent of the client or inmate is not required in order for this information to be furnished, and the information shall be furnished despite objection by the client or inmate. Confidential information disclosed pursuant to this subsection is restricted from further disclosure.
12. A responsible professional may disclose confidential information when in the responsible professional's opinion there is an imminent danger to the health or safety of the client or another individual or there is a likelihood of the commission of a felony or violent misdemeanor.
13. A responsible professional may exchange confidential information with a physician or other health care provider that is providing emergency medical services to a client. Disclosure of the information is limited to that necessary to meet the emergency as determined by the responsible professional.
14. A State facility may furnish client identifying information to the Department for the purpose of maintaining an index of clients served in State facilities that may be used by State facilities only if that information is necessary for the appropriate and effective evaluation, care, and treatment of the client.
15. A responsible professional may disclose an advance instruction for mental health treatment or confidential information from an advance instruction to a physician, psychologist, or other qualified professional when the responsible professional determines that disclosure is necessary to give effect to or provide treatment in accordance with the advance instruction.
16. A facility may disclose confidential information to a provider of support services whenever the facility has entered into a written agreement with a person to provide support services and the agreement includes a provision in which the provider of support services acknowledges that in receiving, storing, processing, or otherwise dealing with any confidential information, the provider of support services will safeguard and not further disclose the information.
17. Whenever there is reason to believe that the client is eligible for financial benefits through a governmental agency, a facility may disclose confidential information to State, local, or federal government agencies. Except as provided in subsections (a3) and (g1) of this section, disclosure is limited to that confidential information necessary to establish financial benefits for a client. Except as provided in subsection (g1) of this section, after establishment of these benefits, the consent of the client or the client's legally responsible person is required for further release of confidential information under this subsection.
18. A State facility operated under the authority of G.S. 122C-181 may disclose confidential information for the purpose of collecting payment due the facility for the cost of care, treatment, or habilitation.
19. Whenever there is reason to believe that the client is eligible for educational services through a governmental agency, a facility shall disclose client identifying information to the Department of Public Instruction. Disclosure is limited to that information necessary to establish, coordinate, or maintain educational services. The Department of Public Instruction may further disclose client identifying information to a local school administrative unit as necessary.
20. Within a facility, employees, students, consultants, or volunteers involved in the care, treatment, or habilitation of a client may exchange confidential information as needed for the purpose of carrying out their responsibility in serving the client.
21. Upon specific request, a responsible professional may release confidential information to a physician or psychologist who referred the client to the facility.
22. Upon request of the next of kin or other family member who has a legitimate role in the therapeutic services offered, or other person designated by the client or the client's legally responsible person, the responsible professional shall provide the next of kin or other family member or the designee with notification of the client's diagnosis, the prognosis, the medications prescribed, the dosage of the medications prescribed, the side effects of the medications prescribed, if any, and the progress of the client, if the client or the client's legally responsible person has consented in writing, or the client has consented orally in the presence of a witness selected by the client, prior to the release of this information. Both the client's or the legally responsible person's consent and the release of this information shall be documented in the client's medical record. This consent shall be valid for a specified length of time only and is subject to revocation by the consenting individual.
23. Notwithstanding G.S. 122C-53(b) or G.S. 122C-206, upon request of the next of kin or other family member who has a legitimate role in the therapeutic services offered, or other person designated by the client or the client's legally responsible person, the responsible professional shall provide the next of kin, the family member, or the designee, notification of the client's admission to the facility, transfer to another facility, decision to leave the facility against medical advice, discharge from the facility, and referrals and appointment information for treatment after discharge, after notification to the client that this information has been requested.
24. In response to a written request of the next of kin or other family member who has a legitimate role in the therapeutic services offered, or other person designated by the client, for additional information not provided for in subsections (j) and (k) of this section, and when the written request identifies the intended use for this information, the responsible professional shall, in a timely manner, do one or more of the following:
    1. Provide the information requested based upon the responsible professional's determination that providing this information will be to the client's therapeutic benefit, if the client or the client's legally responsible person has consented in writing to the release of the information requested.
    2. Refuse to provide the information requested based upon the responsible professional's determination that providing this information will be detrimental to the therapeutic relationship between client and professional.
    3. Refuse to provide the information requested based upon the responsible professional's determination that the next of kin or family member or designee does not have a legitimate need for the information requested.
25. The Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services shall adopt rules specifically to define the legitimate role referred to in subsections (j), (k), and (l) of this section.

History

(1955, c. 887, s. 12; 1963, c. 1166, s. 10; 1973, c. 47, s. 2; c. 476, s. 133; c. 673, s. 5; c. 1408, s. 2; 1979, c. 147; 1983, c. 383, s. 10; c. 491; c. 638, s. 22; c. 864, s. 4; 1985, c. 589, s. 2; c. 695, s. 15; 1987, c. 638, ss. 2, 3; 1989, c. 141, s. 10; c. 438; c. 625, s. 8; 1989 (Reg. Sess., 1990), c. 1024, s. 27; 1991, c. 359, s. 1; c. 544, s. 1; 1998-198, s. 4; 2003-313, s. 3; 2009-65, s. 1(a), (b); 2009-487, s. 5; 2009-570, s. 43; 2011-102, ss. 3, 4; 2011-145, ss. 10.14, 19.1(h); 2011-314, s. 2(b); 2011-391, s. 23; 2014-100, s. 8.39(d); 2017-186, s. 2(kkkkk); 2018-33, s. 5; 2019-81, s. 9A; 2019-177, s. 6.1(a), (b); 2019-240, s. 26(c).)

Editor's Note. - Session Laws 2011-145, s. 10.14, effective July 1, 2011, would have amended subsection (g) and added subsection (g1), but was repealed by Session Laws 2011-391, s. 23, effective July 1, 2011.

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.5, is a severability clause.

At the direction of the Revisor of Statutes, the bracketed text has been inserted in subdivision (a)(2).

This section was amended by Session Laws 2018-33, s. 5, effective October 1, 2019, in the coded bill drafting format provided by G.S. 120-20.1. The word "or" was not struck through preceding "State" in the first sentence of subsection (a2) and following "State" in subsection (a3). The language at the beginning of the October 1, 2019, version of subsection (a2) should probably read "Any State facility" and the language in the October 1, 2019, version of subsection (a3) should probably read "any State facility."

Session Laws 2018-33, s. 46, as amended by Session Laws 2019-177, s. 6.1(b), provides: "G.S. 122C-55(c1), as enacted by Section 5 of this act, and Sections 44, 45(a), and 45(b) of this act are effective when the act becomes law. The remainder of this act becomes effective October 1, 2019, and applies to proceedings initiated on or after that date."

Session Laws 2019-177, s. 6.1(c), provides, in part: "Subsection (b) of this section becomes retroactively effective June 22, 2018. Nothing in subsection (b) of this section imposes liability on a facility or sheriff for failing to furnish confidential information before the date this act becomes law."

Effect of Amendments. - Session Laws 2009-65, s. 1(a) and (b), effective June 8, 2009, rewrote subsection (a1) and added subsection (a6).

Session Laws 2009-487, s. 5, effective August 26, 2009, inserted "'facility' includes an LME and" in the last sentence of subsection (a1).

Session Laws 2009-570, s. 43, effective August 28, 2009, substituted "the Department's Community Care of North Carolina Program" for "a Department's Community Care of North Carolina Program" in the last sentence of subsection (a6).

Session Laws 2011-102, ss. 3, 4, effective June 2, 2011, in subsection (g), substituted "subsections (a3) and (g1) of this section" for "G.S. 122C-55(a3)" in the second sentence, and added "Except as provided in subsection (g1) of this section" at the beginning of the last sentence.

Session Laws 2014-100, s. 8.39(d), effective July 1, 2014, added subsection (g2).

Session Laws 2017-186, s. 2(kkkkk), effective December 1, 2017, inserted "and Juvenile Justice" throughout subsection (c).

Session Laws 2018-33, s. 5, rewrote subsection (a); in subsection (a1), deleted the former last sentence, which read: "As used in this section, 'facility' includes an LME and 'Secretary' includes the Community Care of North Carolina Program, or other primary care case management programs that contract with the Department to provide a primary care case management program for recipients of publicly funded health and related services."; in subsection (a2), in the first sentence, deleted "area" following "Any" and, in the second sentence, substituted "payment or receive reimbursement" for "or provide reimbursement"; in subsection (a3), deleted "area" following "State or"; and added subsection (c1). For effective date and applicability, see editor's note.

Session Laws 2019-81, s. 9A, effective October 1, 2019, added subdivision (a)(1); redesignated former subdivision (a)(1) as present subdivision (a)(1a); added "or a prepaid health plan" at the end of subdivision (a)(2); and rewrote subsections (a2), (a3), and (a4).

Session Laws 2019-177, s. 6.1(a), effective October 1, 2019, rewrote the section.

Session Laws 2019-240, s. 26(c), effective November 6, 2019, deleted "or State" following "Any" at the beginning of subsection (a2); and deleted "State or" following "program, any" in the first sentence of subdivision (a3).

Legal Periodicals. - For note, "Psychiatrists' Liability to Third Parties for Harmful Acts Committed by Dangerous Patients," see 64 N.C.L. Rev. 1534 (1986).

For note, "Double Secret Protection: Bridging Federal and State Law to Protect Privacy Rights for Telemental and Mobile Health Users," see 67 Duke L.J. 1115 (2018).

§ 122C-56. Exceptions; research and planning.

1. The Secretary may require information that does not identify clients from State and area facilities for purposes of preparing statistical reports of activities and services and for planning and study. The Secretary may also receive confidential information from State and area facilities when specifically required by other State or federal law.
2. The Secretary may have access to confidential information from private or public agencies or agents for purposes of research and evaluation in the areas of mental health, developmental disabilities, and substance abuse. No confidential information shall be further disclosed.
3. A facility may disclose confidential information to persons responsible for conducting general research or clinical, financial, or administrative audits if there is a justifiable documented need for this information. A person receiving the information may not directly or indirectly identify any client in any report of the research or audit or otherwise disclose client identity in any way.

History

(1965, c. 800, s. 4; 1973, c. 476, s. 133; 1985, c. 589, s. 2; 1989, c. 625, s. 9.)

Legal Periodicals. - For note, "Psychiatrists' Liability to Third Parties for Harmful Acts Committed by Dangerous Patients," see 64 N.C.L. Rev. 1534 (1986).

§ 122C-56.1. Exceptions; security recordings.

1. Security recordings are not a public record under Chapter 132 of the General Statutes and are confidential information under this Chapter.
2. A State facility is not required to disclose its security recordings unless required under federal law or compelled by a court of competent jurisdiction.
3. A State facility shall allow viewing of security recordings by an internal client advocate.
4. A State facility may allow viewing of a security recording by a client or their legally responsible person if, in the opinion of the responsible professional, it is determined to be in the best interest of the client.

History

(2019-240, s. 20(b).)

Editor's Note. - Session Laws 2019-240, s. 28, made this section effective November 6, 2019.

§ 122C-57. Right to treatment and consent to treatment.

1. Each client who is admitted to and is receiving services from a facility has the right to receive age-appropriate treatment for a mental illness, an intellectual or other developmental disability, substance abuse, or a combination thereof. Each client within 30 days of admission to a facility shall have an individual written treatment or habilitation plan implemented by the facility. The client and the client's legally responsible person shall be informed in advance of the potential risks and alleged benefits of the treatment choices.
2. Each client has the right to be free from unnecessary or excessive medication. Medication shall not be used for punishment, discipline, or staff convenience.
3. Medication shall be administered in accordance with accepted medical standards and only upon the order of a physician as documented in the client's record.
4. Each voluntarily admitted client or the client's legally responsible person (including a health care agent named pursuant to a valid health care power of attorney) has the right to consent to or refuse any treatment offered by the facility. Consent may be withdrawn at any time by the person who gave the consent. If treatment is refused, the qualified professional shall determine whether treatment in some other modality is possible. If all appropriate treatment modalities are refused, the voluntarily admitted client may be discharged. In an emergency, a voluntarily admitted client may be administered treatment or medication, other than those specified in subsection (f) of this section, despite the refusal of the client or the client's legally responsible person, even if the client's refusal is expressed in a valid advance instruction for mental health treatment. The Commission may adopt rules to provide a procedure to be followed when a voluntarily admitted client refuses treatment.
5. Except as provided in G.S. 90-21.4, discharge of a voluntarily admitted minor from treatment shall include notice to and consultation with the minor's legally responsible person and in no event shall a minor be discharged from treatment upon the minor's request alone.
6. In the case of an involuntarily committed client, treatment measures other than those requiring express written consent as specified in subsection (f) of this section may be given despite the refusal of the client, the client's legally responsible person, a health care agent named pursuant to a valid health care power of attorney, or the client's refusal expressed in a valid advance instruction for mental health treatment in the event of an emergency or when consideration of side effects related to the specific treatment measure is given and in the professional judgment, as documented in the client's record, of the treating physician and a second physician, who is either the director of clinical services of the facility, or the director's designee, that any of the following is true:
   1. The client, without the benefit of the specific treatment measure, is incapable of participating in any available treatment plan which will give the client a realistic opportunity of improving the client's condition.
   2. There is, without the benefit of the specific treatment measure, a significant possibility that the client will harm self or others before improvement of the client's condition is realized.
7. Treatment involving electroshock therapy, the use of experimental drugs or procedures, or surgery other than emergency surgery may not be given without the express and informed written consent of the client, the client's legally responsible person, a health care agent named pursuant to a valid health care power of attorney, or the client's consent expressed in a valid advance instruction for mental health treatment. This consent may be withdrawn at any time by the person who gave the consent. The Commission may adopt rules specifying other therapeutic and diagnostic procedures that require the express and informed written consent of the client, the client's legally responsible person, or a health care agent named pursuant to a valid health care power of attorney.

History

(1973, c. 475, s. 1; c. 1436, ss. 6, 7; 1981, c. 328, ss. 1, 2; 1985, c. 589, s. 2; 1995, c. 336, s. 1; 1997-442, s. 3; 1998-198, s. 5; 1998-217, s. 53(a)(4); 1999-456, s. 4; 2007-502, s. 15(b); 2019-76, s. 2.)

Editor's Note. - The subsection designation (d1) was assigned by the Revisor of Statutes, the designation in Session Laws 1995, c. 336, s. 1 having been (d)(1).

Session Laws 2007-502, ss. 18, 19, provide: "18. The Legislative Research Commission shall study the issue of whether North Carolina law should be amended to allow a person to require life-prolonging measures. The LRC shall involve all stakeholders in the study. The LRC shall report its recommendations to the 2008 Session of the 2007 General Assembly.

"19. The North Carolina Institute of Medicine (Institute) shall study issues related to the provision of end-of-life medical care in North Carolina. As part of the study, the Division of Health Service Regulation, Department of Health and Human Services, and the North Carolina Board of Medicine shall provide to the Institute nonidentifying information regarding claims and complaints related to end-of-life medical treatment by health care providers that was contrary to the express wishes of either the patient or a person authorized by law to make treatment decisions on behalf of the patient. The Institute may review any other data related to end-of-life medical care and treatment the Institute determines is relevant.

"The purpose of this study is to determine whether statutory changes related to advance directives and health care powers of attorney impact the type and quantity of end-of-life medical care provided to patients, whether the patient's or patient representative's express wishes regarding the provision of treatment at the end of life are being honored, and whether there is any change in the number of persons who request continued treatment at the end of their lives, but do not receive that treatment.

"The Institute shall report its findings to the following entities no later than January 30, 2013:

"(1) The 2013 General Assembly.

"(2) The North Carolina Bar Association.

"(3) The North Carolina Medical Society."

Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 2 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2007-502, s. 15(b), effective October 1, 2007, in subsection (d), rewrote the first and next-to-last sentences.

Session Laws 2019-76, s. 2, substituted "a mental illness, an intellectual or other developmental disability, substance abuse, or a combination thereof" for "mental health, mental retardation, and substance abuse illness or disability" at the end of the first sentence of subsection (a); substituted "that any of the following is true" for "either" in subsection (e); and made a stylistic change. For effective date and applicability, see editor's note.

§ 122C-58. Civil rights and civil remedies.

Except as otherwise provided in this Chapter, each adult client of a facility keeps the same right as any other citizen of North Carolina to exercise all civil rights, including the right to dispose of property, execute instruments, make purchases, enter into contractual relationships, register and vote, bring civil actions, and marry and get a divorce, unless the exercise of a civil right has been precluded by an unrevoked adjudication of incompetency. This section shall not be construed as validating the act of any client who was in fact incompetent at the time he performed the act.

History

(1973, c. 475, s. 1; c. 1436, ss. 2-5; 1985, c. 589, s. 2.)

§ 122C-59. Use of corporal punishment.

Corporal punishment may not be inflicted upon any client.

History

(1973, c. 475, s. 1; 1985, c. 589, s. 2.)

§ 122C-60. Use of physical restraints or seclusion.

1. Physical restraint or seclusion of a client shall be employed only when there is imminent danger of abuse or injury to the client or others, when substantial property damage is occurring, or when the restraint or seclusion is necessary as a measure of therapeutic treatment. For purposes of this section, a technique to reenact the birthing process as defined by G.S. 14-401.21 is not a measure of therapeutic treatment. All instances of restraint or seclusion and the detailed reasons for such action shall be documented in the client's record. Each client who is restrained or secluded shall be observed frequently, and a written notation of the observation shall be made in the client's record.
2. A facility that employs physical restraint or seclusion of a client shall collect data on the use of the restraints and seclusion. The data shall reflect for each incidence, the type of procedure used, the length of time employed, alternatives considered or employed, and the effectiveness of the procedure or alternative employed. The facility shall analyze the data on at least a quarterly basis to monitor effectiveness, determine trends, and take corrective action where necessary. The facility shall make the data available to the Secretary upon request. Nothing in this subsection abrogates State or federal law or requirements pertaining to the confidentiality, privilege, or other prohibition against disclosure of information provided to the Secretary under this subsection. In reviewing data requested under this subsection, the Secretary shall adhere to State and federal requirements of confidentiality, privilege, and other prohibitions against disclosure and release applicable to the information received under this subsection.
3. Facilities shall implement policies and practices that emphasize the use of alternatives to physical restraint and seclusion. Physical restraint and seclusion may be employed only by staff who have been trained and have demonstrated competence in the proper use of and alternatives to these procedures. Facilities shall ensure that staff authorized to employ and terminate these procedures are retrained and have demonstrated competence at least annually.
4. The Commission shall adopt rules to implement this section. In adopting rules, the Commission shall take into consideration federal regulations and national accreditation standards. Rules adopted by the Commission shall include:
   1. Staff training and competence in:
      1. The use of positive behavioral supports.
      2. Communication strategies for defusing and deescalating potentially dangerous behavior.
      3. Monitoring vital indicators.
      4. Administration of CPR.
      5. Debriefing with client and staff.
      6. Methods for determining staff competence, including qualifications of trainers and training curricula.
      7. Other areas to ensure the safe and appropriate use of restraints and seclusion.
   2. Other matters relating to the use of physical restraint or seclusion of clients necessary to ensure the safety of clients and others.

The Department may investigate complaints and inspect a facility at any time to ensure compliance with this section.

History

(1973, c. 475, s. 1; 1985, c. 589, s. 2; 2000-129, s. 1; 2003-205, s. 2.)

Editor's Note. - The preamble to Session Laws 2003-205, provides: "Whereas, United States Representative Sue Myrick, a member of the North Carolina congressional delegation, introduced House Concurrent Resolution 435 in Congress encouraging states to outlaw 'rebirthing'; and

"Whereas, the United States Congress adopted House Concurrent Resolution 435, which passed the House of Representatives by a vote of 397-0; and

"Whereas, in House Concurrent Resolution 435, the United States Congress expressed the sense that the technique known as 'rebirthing', a form of 'attachment therapy', is a dangerous and harmful practice and should be prohibited; and

"Whereas, on April 18, 2000, Candace Newmaker, a child from North Carolina, died from use of the 'rebirthing technique', and four other children have died from other forms of 'attachment therapy'; and

"Whereas, the American Psychological Association does not recognize 'rebirthing' as proper treatment; Now, therefore,

"The General Assembly of North Carolina enacts:"

§ 122C-61. Treatment rights in 24-hour facilities.

In addition to the rights set forth in G.S. 122C-57, each client who is receiving services at a 24-hour facility has the following rights:

1. The right to receive necessary treatment for and prevention of physical ailments based upon the client's condition and projected length of stay. The facility may seek to collect appropriate reimbursement for its costs in providing the treatment and prevention; and
2. The right to have, as soon as practical during treatment or habilitation but not later than the time of discharge, an individualized written discharge plan containing recommendations for further services designed to enable the client to live as normally as possible. A discharge plan may not be required when it is not feasible because of an unanticipated discontinuation of a client's treatment. With the consent of the client or his legally responsible person, the professionals responsible for the plans shall contact appropriate agencies at the client's destination or in his home community before formulating the recommendations. A copy of the plan shall be furnished to the client or to his legally responsible person and, with the consent of the client, to the client's next of kin.

History

(1973, c. 475, s. 1; c. 1436, ss. 6, 7; 1981, c. 328, ss. 1, 2; 1985, c. 589, s. 2.)

§ 122C-62. Additional rights in 24-hour facilities.

1. In addition to the rights enumerated in G.S. 122C-51 through G.S. 122C-61, each adult client who is receiving treatment or habilitation in a 24-hour facility keeps the right to:
   1. Send and receive sealed mail and have access to writing material, postage, and staff assistance when necessary;
   2. Contact and consult with, at his own expense and at no cost to the facility, legal counsel, private physicians, and private mental health, developmental disabilities, or substance abuse professionals of his choice; and
   3. Contact and consult with a client advocate if there is a client advocate.
2. Except as provided in subsections (e) and (h) of this section, each adult client who is receiving treatment or habilitation in a 24-hour facility at all times keeps the right to:
   1. Make and receive confidential telephone calls. All long distance calls shall be paid for by the client at the time of making the call or made collect to the receiving party;
   2. Receive visitors between the hours of 8:00 a.m. and 9:00 p.m. for a period of at least six hours daily, two hours of which shall be after 6:00 p.m.; however visiting shall not take precedence over therapies;
   3. Communicate and meet under appropriate supervision with individuals of his own choice upon the consent of the individuals;
   4. Make visits outside the custody of the facility unless:
      1. Commitment proceedings were initiated as the result of the client's being charged with a violent crime, including a crime involving an assault with a deadly weapon, and the respondent was found not guilty by reason of insanity or incapable of proceeding;
      2. The client was voluntarily admitted or committed to the facility while under order of commitment to a correctional facility of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety; or
      3. The client is being held to determine capacity to proceed pursuant to G.S. 15A-1002;
   5. Be out of doors daily and have access to facilities and equipment for physical exercise several times a week;
   6. Except as prohibited by law, keep and use personal clothing and possessions, unless the client is being held to determine capacity to proceed pursuant to G.S. 15A-1002;
   7. Participate in religious worship;
   8. Keep and spend a reasonable sum of his own money;
   9. Retain a driver's license, unless otherwise prohibited by Chapter 20 of the General Statutes; and
   10. Have access to individual storage space for his private use.
3. In addition to the rights enumerated in G.S. 122C-51 through G.S. 122C-57 and G.S. 122C-59 through G.S. 122C-61, each minor client who is receiving treatment or habilitation in a 24-hour facility has the right to have access to proper adult supervision and guidance. In recognition of the minor's status as a developing individual, the minor shall be provided opportunities to enable him to mature physically, emotionally, intellectually, socially, and vocationally. In view of the physical, emotional, and intellectual immaturity of the minor, the 24-hour facility shall provide appropriate structure, supervision and control consistent with the rights given to the minor pursuant to this Part. The facility shall also, where practical, make reasonable efforts to ensure that each minor client receives treatment apart and separate from adult clients unless the treatment needs of the minor client dictate otherwise.
   1. Communicate and consult with his parents or guardian or the agency or individual having legal custody of him;
   2. Contact and consult with, at his own expense or that of his legally responsible person and at no cost to the facility, legal counsel, private physicians, private mental health, developmental disabilities, or substance abuse professionals, of his or his legally responsible person's choice; and
   3. Contact and consult with a client advocate, if there is a client advocate.
4. Except as provided in subsections (e) and (h) of this section, each minor client who is receiving treatment or habilitation in a 24-hour facility has the right to:
   1. Make and receive telephone calls. All long distance calls shall be paid for by the client at the time of making the call or made collect to the receiving party;
   2. Send and receive mail and have access to writing materials, postage, and staff assistance when necessary;
   3. Under appropriate supervision, receive visitors between the hours of 8:00 a.m. and 9:00 p.m. for a period of at least six hours daily, two hours of which shall be after 6:00 p.m.; however visiting shall not take precedence over school or therapies;
   4. Receive special education and vocational training in accordance with federal and State law;
   5. Be out of doors daily and participate in play, recreation, and physical exercise on a regular basis in accordance with his needs;
   6. Except as prohibited by law, keep and use personal clothing and possessions under appropriate supervision, unless the client is being held to determine capacity to proceed pursuant to G.S. 15A-1002;
   7. Participate in religious worship;
   8. Have access to individual storage space for the safekeeping of personal belongings;
   9. Have access to and spend a reasonable sum of his own money; and
   10. Retain a driver's license, unless otherwise prohibited by Chapter 20 of the General Statutes.
5. No right enumerated in subsections (b) or (d) of this section may be limited or restricted except by the qualified professional responsible for the formulation of the client's treatment or habilitation plan. A written statement shall be placed in the client's record that indicates the detailed reason for the restriction. The restriction shall be reasonable and related to the client's treatment or habilitation needs. A restriction is effective for a period not to exceed 30 days. An evaluation of each restriction shall be conducted by the qualified professional at least every seven days, at which time the restriction may be removed. Each evaluation of a restriction shall be documented in the client's record. Restrictions on rights may be renewed only by a written statement entered by the qualified professional in the client's record that states the reason for the renewal of the restriction. In the case of an adult client who has not been adjudicated incompetent, in each instance of an initial restriction or renewal of a restriction of rights, an individual designated by the client shall, upon the consent of the client, be notified of the restriction and of the reason for it. In the case of a minor client or an incompetent adult client, the legally responsible person shall be notified of each instance of an initial restriction or renewal of a restriction of rights and of the reason for it. Notification of the designated individual or legally responsible person shall be documented in writing in the client's record.
6. The Commission may adopt rules to implement subsection (e) of this section.
7. With regard to clients being held to determine capacity to proceed pursuant to G.S. 15A-1002 or clients in a facility for substance abuse, and notwithstanding the prior provisions of this section, the Commission may adopt rules restricting the rights set forth under (b)(2), (b)(3), and (d)(3) of this section if restrictions are necessary and reasonable in order to protect the health, safety, and welfare of the client involved or other clients.
8. The rights stated in subdivisions (b)(2), (b)(4), (b)(5), (b)(10), (d)(3), (d)(5) and (d)(8) may be modified in a general hospital by that hospital to be the same as for other patients in that hospital; provided that any restriction of a specific client's rights shall be done in accordance with the provisions of subsection (e) of this section.

The rights specified in this subsection may not be restricted by the facility and each adult client may exercise these rights at all reasonable times.

A court order may expressly authorize visits otherwise prohibited by the existence of the conditions prescribed by this subdivision;

Each minor client who is receiving treatment or habilitation from a 24-hour facility has the right to:

The rights specified in this subsection may not be restricted by the facility and each minor client may exercise these rights at all reasonable times.

History

(1973, c. 475, s. 1; c. 1436, ss. 2-5, 8; 1985, c. 589, s. 2; 1989, c. 625, s. 10; 1995, c. 299, s. 2; 1997-456, s. 27; 2011-145, s. 19.1(h); 2017-186, s. 2( lllll ).)

Editor's Note. - As the text that formerly made up this Article has been recodified as Part 1 of this article by Session Laws 1997-442, the term "this Part" was substituted for "this Article" in the third sentence of subsection (c) by direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2017-186, s. 2( lllll ), effective December 1, 2017, inserted "and Juvenile Justice" in subdivision (b)(4)b.

§ 122C-63. Assurance for continuity of care for individuals with intellectual disabilities.

1. Any individual with an intellectual disability admitted for residential care or treatment for other than respite or emergency care to any residential facility operated under the authority of this Chapter and supported all or in part by State-appropriated funds has the right to residential placement in an alternative facility if the client is in need of placement and if the original facility can no longer provide the necessary care or treatment.
2. The operator of a residential facility providing residential care or treatment, for other than respite or emergency care, for individuals with intellectual disabilities shall notify the area authority serving the client's county of residence of the operator's intent to close a facility or to discharge a client who may be in need of continuing care at least 60 days prior to the closing or discharge.
   1. The area authority determines that the client is not in need of continuing care.
   2. The client is moved to an alternative residential placement.
   3. Sixty days have elapsed.
3. An individual who may be in need of continuing care may be discharged from a residential facility without further claim for continuing care against the area authority or the State if any of the following is true:
   1. After the parent or guardian, if the client is a minor or an adjudicated incompetent adult, or the client, if an adult not adjudicated incompetent, has entered into a contract with the operator upon the client's admission to the original residential facility, the parent, guardian, or client who entered into the contract refuses to carry out the contract.
   2. After an alternative placement for a client in need of continuing care is located, the parent or guardian who admitted the client to the residential facility, if the client is a minor or an adjudicated incompetent adult, or the client, if the client is an adult not adjudicated incompetent, refuses the alternative placement.
4. Decisions made by the area authority regarding the need for continued placement or regarding the availability of an alternative placement of a client may be appealed pursuant to the appeals process of the area authority and subsequently to the Secretary or the Commission under their rules. If the appeal process extends beyond the operator's 60-day obligation to continue to serve the client, the Secretary shall arrange a temporary placement in a State developmental center pending the outcome of the appeal.
5. The area authority that serves the county of residence of the client is responsible for assessing the need for continuity of care and for the coordination of the placement among available public and private facilities whenever the authority is notified that a client may be in need of continuing care. If an alternative placement is not available beyond the operator's 60-day obligation to continue to serve the client, the Secretary shall arrange for a temporary placement in a State developmental center. The area authority shall retain responsibility for coordination of placement during a temporary placement in a State developmental center.
6. The Secretary is responsible for coordinative and financial assistance to the area authority in the performing of its duties to coordinate placement so as to assure continuity of care and for assuring a continuity of care placement beyond the operator's 60-day obligation period.
7. The area authority's financial responsibility, through local and allocated State resources, is limited to the following:
   1. Costs relating to the identification and coordination of alternative placements.
   2. If the original facility is an area facility, maintenance of the client in the original facility for up to 60 days.
   3. Release of allocated categorical State funds used to support the care or treatment of the specific client at the time of alternative placement if the Secretary requires the release.
8. In accordance with G.S. 143B-147(a)(1) the Commission shall develop programmatic rules to implement this section, and, in accordance with G.S. 122C-112(a)(6), the Secretary shall adopt budgetary rules to implement this section.

The operator's notification to the area authority of intent to close a facility or to discharge a client who may be in need of continuing care constitutes the operator's acknowledgement of the obligation to continue to serve the client until whichever of the following occurs first:

In cases in which the safety of the client who may be in need of continuing care, of other clients, of the staff of the residential facility, or of the general public, is concerned, this 60-day notification period may be waived by securing an emergency placement in a more secure and safe facility. The operator of the residential facility shall notify the area authority that an emergency placement has been arranged within 24 hours of the placement. The area authority and the Secretary shall retain their respective responsibilities upon receipt of this notice.

History

(1981, c. 1012; 1985, c. 589, s. 2; 2019-76, s. 3.)

Editor's Note. - Session Laws 2019-76, s. 33, provides: "Parts I and II of this act do not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability."

Session Laws 2019-76, s. 34, made the amendments by Session Laws 2019-76, s. 3 effective October 1, 2019, and applicable to proceedings commenced or services rendered on or after that date.

Effect of Amendments. - Session Laws 2019-76, s. 3, rewrote this section. For effective date and applicability, see editor's note.

§ 122C-64. Client rights and human rights committees.

Client rights and human rights committees responsible for protecting the rights of clients shall be established at each State facility, for each local management entity, and provider agency. The Commission shall adopt rules for the establishment, composition, and duties of the committees and procedures for appointment and coordination with the State and Local Consumer Advocacy programs. The membership of the client rights and human rights committee for a multicounty program or local management entity shall include a representative from each of the participating counties.

History

(1985-589, s. 2; 2001-437, s. 1.3; 2009-190, s. 1.)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Effect of Amendments. - Session Laws 2009-190, s. 1, effective June 26, 2009, inserted "Client rights and" in the section catchline; in the first sentence, substituted "Client rights and human rights" for "Human rights" at the beginning, and "facility, for each local management entity, and provider agency" for "facility and for each area authority and county program" at the end, rewrote the last sentence which read: "In multicounty area authorities and multicounty programs, the membership of the human rights committee shall include a representative from each of the participating counties."

§ 122C-65. Offenses relating to clients.

1. For the protection of clients receiving treatment or habilitation in a 24-hour facility, it is unlawful for any individual who is not a developmentally disabled client in a facility:
   1. To assist, advise, or solicit, or to offer to assist, advise, or solicit a client of a facility to leave without authority;
   2. To transport or to offer to transport a client of a facility to or from any place without the facility's authority;
   3. To receive or to offer to receive a minor client of a facility into any place, structure, building, or conveyance for the purpose of engaging in any act that would constitute a sex offense, or to solicit a minor client of a facility to engage in any act that would constitute a sex offense;
   4. To hide an individual who has left a facility without authority; or
   5. To engage in, or offer to engage in an act with a client of a facility that would constitute a sex offense.
2. Violation of this section is a Class 1 misdemeanor.

History

(1899, c. 1, s. 53; Rev., s. 3694; C.S., s. 6171; 1963, c. 1184, ss. 1, 6; 1985, c. 589, s. 2; 1989, c. 625, s. 11; 1993, c. 539, s. 921; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 122C-66. Protection from abuse and exploitation; reporting.

1. An employee of or a volunteer at a facility who, other than as a part of generally accepted medical or therapeutic procedure, knowingly causes pain or injury to a client is guilty of a Class A1 misdemeanor. Any employee or volunteer who uses reasonable force to carry out the provisions of G.S. 122C-60 or to protect himself or others from a violent client does not violate this subsection.
2. An employee of or a volunteer at a facility who borrows or takes personal property from a client is guilty of a Class 1 misdemeanor. Any employee or volunteer who uses reasonable force to carry out the provisions of G.S. 122C-60 or to protect himself or others from a violent client does not violate this subsection.
3. An employee of or a volunteer at a facility who witnesses or has knowledge of a violation of subsection (a), subsection (a1), or of an accidental injury to a client shall report the violation or accidental injury to authorized personnel designated by the facility. No employee making a report may be threatened or harassed by any other employee or volunteer on account of the report. Violation of this subsection is a Class 1 misdemeanor.
4. The employee of or a volunteer at a facility who witnesses a client become a victim of a violation of Article 7A or Article 26 of Chapter 14 of the General Statutes shall report the allegations within 24 hours after witnessing the violation to one of the following: (i) the department of social services in the county where the facility serves the client; (ii) the district attorney in the district where the facility serves the client; or (iii) the appropriate local law enforcement agency in the city or county where the facility serves the client. A violation of this section is a Class A1 misdemeanor. No employee making a report may be threatened or harassed by any other employee or volunteer on account of the report.
5. The identity of an individual who makes a report under this section or who cooperates in an ensuing investigation may not be disclosed without the reporting individual's consent, except to persons authorized by the facility or by State or federal law to investigate or prosecute these incidents, or in a grievance or personnel hearing or civil or criminal action in which the reporting individual is testifying, or when disclosure is legally compelled or authorized by judicial discovery. This subsection shall not be interpreted to require the disclosure of the identity of an individual where it is otherwise prohibited by law.
6. An employee who makes a report in good faith under this section is immune from any civil liability that might otherwise occur for the report. In any case involving liability, making of a report under this section is prima facie evidence that the maker acted in good faith.
7. The duty imposed by this section is in addition to any duty imposed by G.S. 7B-301 or G.S. 108A-102.
8. Except for reports made pursuant to subsection (b1) of this section, the facility shall investigate or provide for the investigation of all reports made under the provisions of this section.
9. The county department of social services and the district attorney to whom a report is made under subsection (b1) of this section shall investigate or provide for the investigation of each such report.

History

(1985, c. 589, s. 2; 1993, c. 539, ss. 922, 923; 1994, Ex. Sess., c. 24, s. 14(c); 1998-202, s. 13(ee); 2015-36, s. 2.)

Editor's Note. - Session Laws 2015-36, s. 3, made the amendment of this section by Session Laws 2015-36, s. 2, applicable to offenses committed on or after December 1, 2015.

Effect of Amendments. - Session Laws 2015-36, s. 2, effective December 1, 2015, substituted "client is guilty of a Class A1 misdemeanor" for "client or borrows or takes personal property from a client is guilty of a Class 1 misdemeanor" in the first sentence of subsection (a); added subsections (a1), (b1), and (g); in subsection (b), inserted "or a volunteer at" and "subsection (a1)" in the first sentence, and substituted "Class 1 misdemeanor" for "Class 3 misdemeanor punishable only by a fine, not to exceed five hundred dollars ($500.00)" in the last sentence; made minor stylistic changes in subsection (c); and added the exception at the beginning of subsection (f). For applicability, see editor's note.

§ 122C-67. Other rules regarding abuse, exploitation, neglect not prohibited.

G.S. 122C-66 does not prohibit the Commission from adopting rules for State and area facilities and does not prohibit other facilities from issuing policies regarding other forms of prohibited abuse, exploitation, or neglect.

History

(1985, c. 589, s. 2.)

§§ 122C-68 through 122C-70: Reserved for future codification purposes.

PART 2. ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT.

§ 122C-71. Purpose.

1. The General Assembly recognizes as a matter of public policy the fundamental right of an individual to control the decisions relating to the individual's mental health care.
2. The purpose of this Part is to establish an additional, nonexclusive method for an individual to exercise the right to consent to or refuse mental health treatment when the individual lacks sufficient understanding or capacity to make or communicate mental health treatment decisions.
3. This Part is intended and shall be construed to be consistent with the provisions of Article 3 of Chapter 32A of the General Statutes, provided that in the event of a conflict between the provisions of this Part and Article 3 of Chapter 32A, the provisions of this Part control.

History

(1997-442, s. 2; 1998-198, s. 2.)

Legal Periodicals. - See legislative survey, 21 Campbell L. Rev. 323 (1999).

For note, "Double Secret Protection: Bridging Federal and State Law to Protect Privacy Rights for Telemental and Mobile Health Users,” see 67 Duke L.J. 1115 (2018).

§ 122C-72. Definitions.

As used in this Part, unless the context clearly requires otherwise, the following terms have the meanings specified:

1. "Advance instruction for mental health treatment" or "advance instruction" means a written instrument, signed in the presence of two qualified witnesses who believe the principal to be of sound mind at the time of the signing, and acknowledged before a notary public, pursuant to which the principal makes a declaration of instructions, information, and preferences regarding the principal's mental health treatment and states that the principal is aware that the advance instruction authorizes a mental health treatment provider to act according to the instruction. It may also state the principal's instructions regarding, but not limited to, consent to or refusal of mental health treatment when the principal is incapable.
2. "Attending physician" means the physician who has primary responsibility for the care and treatment of the principal.
3. Repealed by Session Laws 1998-198, s. 2, effective October 1, 1998.
4. "Incapable" means that, in the opinion of a physician or eligible psychologist, the person currently lacks sufficient understanding or capacity to make and communicate mental health treatment decisions. As used in this Part, the term "eligible psychologist" has the meaning given in G.S. 122C-3(13d).
5. "Mental health treatment" means the process of providing for the physical, emotional, psychological, and social needs of the principal for the principal's mental illness. "Mental health treatment" includes, but is not limited to, electroconvulsive treatment (ECT), commonly referred to as "shock treatment", treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.
6. "Principal" means the person making the advance instruction.
7. "Qualified witness" means a witness who affirms that the principal is personally known to the witness, that the principal signed or acknowledged the principal's signature on the advance instruction in the presence of the witness, that the witness believes the principal to be of sound mind and not to be under duress, fraud, or undue influence, and that the witness is not:
   1. The attending physician or mental health service provider or an employee of the physician or mental health treatment provider;
   2. An owner, operator, or employee of an owner or operator of a health care facility in which the principal is a patient or resident; or
   3. Related within the third degree to the principal or to the principal's spouse.

History

(1997-442, s. 2; 1998-198, s. 2.)

§ 122C-73. Scope, use, and authority of advance instruction for mental health treatment.

1. Any adult of sound mind may make an advance instruction regarding mental health treatment. The advance instruction may include consent to or refusal of mental health treatment.
2. An advance instruction may include, but is not limited to, the names and telephone numbers of individuals to be contacted in case of a mental health crisis, situations that may cause the principal to experience a mental health crisis, responses that may assist the principal to remain in the principal's home during a mental health crisis, the types of assistance that may help stabilize the principal if it becomes necessary to enter a facility, and medications that the principal is taking or has taken in the past and the effects of those medications.
3. An individual shall not be required to execute or to refrain from executing an advance instruction as a condition for insurance coverage, as a condition for receiving mental or physical health services, as a condition for receiving privileges while in a facility, or as a condition of discharge from a facility.
4. A principal, through an advance instruction, may grant or withhold authority for mental health treatment, including, but not limited to, the use of psychotropic medication, electroconvulsive treatment, and admission to and retention in a facility for the care or treatment of mental illness.
5. A principal may nominate, by advance instruction for mental health treatment, the guardian of the person of the principal if a guardianship proceeding is thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in an unrevoked advance instruction for mental health treatment, except for good cause shown.
6. If, following the execution of an advance instruction for mental health treatment, a court of competent jurisdiction appoints a guardian of the person of the principal, or a general guardian with powers over the person of the principal, the guardian shall follow the advance instruction consistent with G.S. 35A-1201(a)(5).
7. An advance instruction for mental health treatment may be combined with a health care power of attorney or general power of attorney that is executed in accordance with the requirements of Chapter 32A or Chapter 32C of the General Statutes so long as each form shall be executed in accordance with its own statute.

History

(1997-442, s. 2; 1998-198, s. 2; 2017-153, s. 2.7.)

Effect of Amendments. - Session Laws 2017-153, s. 2.7, effective January 1, 2018, inserted "or Chapter 32C" in subsection (f).

§ 122C-74. Effectiveness and duration; revocation.

1. A validly executed advance instruction becomes effective upon its proper execution and remains valid unless revoked.
2. The attending physician or other mental health treatment provider may consider valid and rely upon an advance instruction, or a copy of that advance instruction that is obtained from the Advance Health Care Directive Registry maintained by the Secretary of State pursuant to Article 21 of Chapter 130A of the General Statutes, in the absence of actual knowledge of its revocation or invalidity.
3. An attending physician or other mental health treatment provider may presume that a person who executed an advance instruction in accordance with this Part was of sound mind and acted voluntarily when he or she executed the advance instruction.
4. An attending physician or other mental health treatment provider shall act in accordance with an advance instruction when the principal has been determined to be incapable. If a patient is incapable, an advance instruction executed in accordance with this Article is presumed to be valid.
5. The attending physician or mental health treatment provider shall continue to obtain the principal's informed consent to all mental health treatment decisions when the principal is capable of providing informed consent or refusal, as required by G.S. 122C-57. Unless the principal is deemed incapable by the attending physician or eligible psychologist, the instructions of the principal at the time of treatment shall supersede the declarations expressed in the principal's advance instruction.
6. The fact of a principal's having executed an advance instruction shall not be considered an indication of a principal's capacity to make or communicate mental health treatment decisions at such times as those decisions are required.
7. Upon being presented with an advance instruction, an attending physician or other mental health treatment provider shall make the advance instruction a part of the principal's medical record. When acting under authority of an advance instruction, an attending physician or other mental health treatment provider shall comply with the advance instruction unless:
   1. Compliance, in the opinion of the attending physician or other mental health treatment provider, is not consistent with generally accepted community practice standards of treatment to benefit the principal;
   2. Compliance is not consistent with the availability of treatments requested;
   3. Compliance is not consistent with applicable law;
   4. The principal is committed to a 24-hour facility pursuant to Article 5 of Chapter 122C of the General Statutes, and treatment is authorized in compliance with G.S. 122C-57 and rules adopted pursuant to it; or
   5. Compliance, in the opinion of the attending physician or other mental health treatment provider, is not consistent with appropriate treatment in case of an emergency endangering life or health.
8. If the attending physician or other mental health treatment provider is unwilling at any time to comply with any part or parts of an advance instruction for one or more of the reasons set out in subdivisions (1) through (5) of subsection (g), the attending physician or other mental health care treatment provider shall promptly notify the principal and, if applicable, the health care agent and shall document the reason for not complying with the advance instruction and shall document the notification in the principal's medical record.
9. An advance instruction does not limit any authority provided in Article 5 of G.S. 122C either to take a person into custody, or to admit, retain, or treat a person in a facility.
10. An advance instruction may be revoked at any time by the principal so long as the principal is not incapable. The principal may exercise this right of revocation in any manner by which the principal is able to communicate an intent to revoke and by notifying the revocation to the treating physician or other mental health treatment provider. The attending physician or other mental health treatment provider shall note the revocation as part of the principal's medical record.

In the event that one part of the advance instruction is unable to be followed because of one or more of the above, all other parts of the advance instruction shall nonetheless be followed.

History

(1997-442, s. 2; 1998-198, s. 2; 2001-455, s. 5; 2001-513, s. 30(b).)

§ 122C-75. Reliance on advance instruction for mental health treatment.

1. An attending physician or eligible psychologist who in good faith determines that the principal is or is not incapable for the purpose of deciding whether to proceed or not to proceed according to an advance instruction, is not subject to criminal prosecution, civil liability, or professional disciplinary action for making and acting upon that determination.
2. In the absence of actual knowledge of the revocation of an advance instruction, no attending physician or other mental health treatment provider shall be subject to criminal prosecution or civil liability or be deemed to have engaged in unprofessional conduct as a result of the provision of treatment to a principal in accordance with this Part unless the absence of actual knowledge resulted from the negligence of the attending physician or mental health treatment provider.
3. An attending physician or mental health treatment provider who administers or does not administer mental health treatment according to and in good faith reliance upon the validity of an advance instruction is not subject to criminal prosecution, civil liability, or professional disciplinary action resulting from a subsequent finding of an advance instruction's invalidity.
4. No attending physician or mental health treatment provider who administers or does not administer treatment under authorization obtained pursuant to this Part shall incur liability arising out of a claim to the extent that the claim is based on lack of informed consent or authorization for this action.
5. This section shall not be construed as affecting or limiting any liability that arises out of a negligent act or omission in connection with the medical diagnosis, care, or treatment of a principal under an advance instruction or that arises out of any deviation from reasonable medical standards.

History

(1997-442, s. 2; 1998-198, s. 2.)

§ 122C-76. Penalty.

It is a Class 2 misdemeanor for a person, without authorization of the principal, willfully to alter, forge, conceal, or destroy an instrument, the reinstatement or revocation of an instrument, or any other evidence or document reflecting the principal's desires and interests, with the intent or effect of affecting a mental health treatment decision.

History

(1997-442, s. 2.)

§ 122C-77. Statutory form for advance instruction for mental health treatment.

1. This Part shall not be construed to invalidate an advance instruction for mental health treatment that was executed and was otherwise valid.
2. The use of the following or similar form after the effective date of this Part in the creation of an advance instruction for mental health treatment is lawful, and, when used, it shall specifically meet the requirements and be construed in accordance with the provisions of this Part.

"ADVANCE INSTRUCTION FOR MENTAL HEALTH TREATMENT

I, ________, being an adult of sound mind, willfully and voluntarily make this advance instruction for mental health treatment to be followed if it is determined by a physician or eligible psychologist that my ability to receive and evaluate information effectively or communicate decisions is impaired to such an extent that I lack the capacity to refuse or consent to mental health treatment. "Mental health treatment" means the process of providing for the physical, emotional, psychological, and social needs of the principal. "Mental health treatment" includes electroconvulsive treatment (ECT), commonly referred to as "shock treatment", treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.
I understand that under G.S. 122C-57, other than for specific exceptions stated there, mental health treatment may not be administered without my express and informed written consent or, if I am incapable of giving my informed consent, the express and informed consent of my legally responsible person, my health care agent named pursuant to a valid health care power of attorney, or my consent expressed in this advance instruction for mental health treatment. I understand that I may become incapable of giving or withholding informed consent for mental health treatment due to the symptoms of a diagnosed mental disorder. These symptoms may include:
______________________________________________________________________________

PSYCHOACTIVE MEDICATIONS

If I become incapable of giving or withholding informed consent for mental health treatment, my instructions regarding psychoactive medications are as follows: (Place initials beside choice.) ____ I consent to the administration of the following medications: ______________________________________________________________________________ ______________________________________________________________________________ ____ I do not consent to the administration of the following medications: ______________________________________________________________________________ ______________________________________________________________________________ Conditions or limitations: ___________________________________________________ ______________________________________________________________________________

ADMISSION TO AND RETENTION IN FACILITY

If I become incapable of giving or withholding informed consent for mental health treatment, my instructions regarding admission to and retention in a health care facility for mental health treatment are as follows: (Place initials beside choice.) ____ I consent to being admitted to a health care facility for mental health treatment. My facility preference is ____________________________________________________ ____ I do not consent to being admitted to a health care facility for mental health treatment. This advance instruction cannot, by law, provide consent to retain me in a facility for more than 15 days. Conditions or limitations ____________________________________________________ ______________________________________________________________________________

ADDITIONAL INSTRUCTIONS

These instructions shall apply during the entire length of my incapacity. In case of mental health crisis, please contact: 1. Name: __________________________________________________________________ Home Address: ___________________________________________________________ Home Telephone Number: ____________ Work Telephone Number: _________________________________________________________________ Relationship to Me: _____________________________________________________ 2. Name: __________________________________________________________________ Home Address: ___________________________________________________________ Home Telephone Number: ____________ Work Telephone Number: _________________________________________________________________ Relationship to Me: _____________________________________________________ 3. My Physician: Name: ___________________________________________________________________ Telephone Number: _______________________________________________________ 4. My Therapist: Name: ___________________________________________________________________ Telephone Number: _______________________________________________________ The following may cause me to experience a mental health crisis: ______________________________________________________________________________ ______________________________________________________________________________ The following may help me avoid a hospitalization: ___________________________ ______________________________________________________________________________ ______________________________________________________________________________ I generally react to being hospitalized as follows: __________________________ ______________________________________________________________________________ ______________________________________________________________________________ Staff of the hospital or crisis unit can help me by doing the following: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ I give permission for the following person or people to visit me: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Instructions concerning any other medical interventions, such as electroconvulsive (ECT) treatment (commonly referred to as "shock treatment"): _________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ Other instructions: __________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ____ I have attached an additional sheet of instructions to be followed and considered part of this advance instruction.

SHARING OF INFORMATION BY PROVIDERS

I understand that the information in this document may be shared by my mental health treatment provider with any other mental health treatment provider who may serve me when necessary to provide treatment in accordance with this advance instruction. Other instructions about sharing of information: ______________________________________________________________________________ ______________________________________________________________________________

SIGNATURE OF PRINCIPAL

By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full impact of having made this advance instruction for mental health treatment. ______________________________________________________________________________ Signature of Principal Date

NATURE OF WITNESSES

I hereby state that the principal is personally known to me, that the principal signed or acknowledged the principal's signature on this advance instruction for mental health treatment in my presence, that the principal appears to be of sound mind and not under duress, fraud, or undue influence, and that I am not: a. The attending physician or mental health service provider or an employee of the physician or mental health treatment provider; b. An owner, operator, or employee of an owner or operator of a health care facility in which the principal is a patient or resident; or c. Related within the third degree to the principal or to the principal's spouse.

AFFIRMATION OF WITNESSES

We affirm that the principal is personally known to us, that the principal signed or acknowledged the principal's signature on this advance instruction for mental health treatment in our presence, that the principal appears to be of sound mind and not under duress, fraud, or undue influence, and that neither of us is: A person appointed as an attorney-in-fact by this document; The principal's attending physician or mental health service provider or a relative of the physician or provider; The owner, operator, or relative of an owner or operator of a facility in which the principal is a patient or resident; or A person related to the principal by blood, marriage, or adoption. Witnessed by: Witness: ______________________________________ Date: ______________ Witness: ______________________________________ Date: ______________ STATE OF NORTH CAROLINA COUNTY OF ________________________________

CERTIFICATION OF NOTARY PUBLIC

STATE OF NORTH CAROLINA
COUNTY OF
I, ____________ , a Notary Public for the County cited above in the State of North Carolina, hereby certify that ____________ appeared before me and swore or affirmed to me and to the witnesses in my presence that this instrument is an advance instruction for mental health treatment, and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the purposes expressed in it.
I further certify that ____________ and ____________ , witnesses, appeared before me and swore or affirmed that they witnessed ____________ sign the attached advance instruction for mental health treatment, believing him/her to be of sound mind; and also swore that at the time they witnessed the signing they were not (i) the attending physician or mental health treatment provider or an employee of the physician or mental health treatment provider and (ii) they were not an owner, operator, or employee of an owner or operator of a health care facility in which the principal is a patient or resident, and (iii) they were not related within the third degree to the principal or to the principal's spouse. I further certify that I am satisfied as to the genuineness and due execution of the instrument.
This is the ____________ day of ____________ , ___________________________
________________________________________
Notary Public
My Commission expires:
NOTICE TO PERSON MAKING AN INSTRUCTION FOR MENTAL HEALTH TREATMENT
This is an important legal document. It creates an instruction for mental health treatment. Before signing this document you should know these important facts:
This document allows you to make decisions in advance about certain types of mental health treatment. The instructions you include in this declaration will be followed if a physician or eligible psychologist determines that you are incapable of making and communicating treatment decisions. Otherwise you will be considered capable to give or withhold consent for the treatments. Your instructions may be overridden if you are being held in accordance with civil commitment law. Under the Health Care Power of Attorney you may also appoint a person as your health care agent to make treatment decisions for you if you become incapable. You have the right to revoke this document at any time you have not been determined to be incapable. YOU MAY NOT REVOKE THIS ADVANCE INSTRUCTION WHEN YOU ARE FOUND INCAPABLE BY A PHYSICIAN OR OTHER AUTHORIZED MENTAL HEALTH TREATMENT PROVIDER. A revocation is effective when it is communicated to your attending physician or other provider. The physician or other provider shall note the revocation in your medical record. To be valid, this advance instruction must be signed by two qualified witnesses, personally known to you, who are present when you sign or acknowledge your signature. It must also be acknowledged before a notary public.
NOTICE TO PHYSICIAN OR OTHER MENTAL HEALTH TREATMENT PROVIDER
Under North Carolina law, a person may use this advance instruction to provide consent for future mental health treatment if the person later becomes incapable of making those decisions. Under the Health Care Power of Attorney the person may also appoint a health care agent to make mental health treatment decisions for the person when incapable. A person is "incapable" when in the opinion of a physician or eligible psychologist the person currently lacks sufficient understanding or capacity to make and communicate mental health treatment decisions. This document becomes effective upon its proper execution and remains valid unless revoked. Upon being presented with this advance instruction, the physician or other provider must make it a part of the person's medical record. The attending physician or other mental health treatment provider must act in accordance with the statements expressed in the advance instruction when the person is determined to be incapable, unless compliance is not consistent with G.S. 122C-74(g). The physician or other mental health treatment provider shall promptly notify the principal and, if applicable, the health care agent, and document noncompliance with any part of an advance instruction in the principal's medical record. The physician or other mental health treatment provider may rely upon the authority of a signed, witnessed, dated, and notarized advance instruction, as provided in G.S. 122C-75."

History

(1997-442, s. 2; 1998-198, s. 2; 1998-217, s. 53(a)(5); 2019-240, s. 26(d).)

Editor's Note. - Session Laws 1998-217, s. 53(a)(5), provides: "The Revisor of Statutes may delete from G.S. 122C-77, as rewritten by Section 2 of that act, any lines on the form to be filled in where it was clearly intended that those lines be deleted but which do not appear to be stricken through because of formatting."

Effect of Amendments. - Session Laws 2019-240, s. 26(d), effective November 6, 2019, deleted "prior to January 1, 1999" following "was executed" in subsection (a); and substituted "for more than 15 days" for "for more than 10 days" in the "ADMISSION TO AND RETENTION IN FACILITY" provisions of the form in subsection (b).

§§ 122C-78, 122C-79: Reserved for future codification purposes.

§ 122C-80. Criminal history record check required for certain applicants for employment.

1. Definition. - As used in this section, the term "provider" applies to an area authority/county program and any provider of mental health, developmental disability, and substance abuse services that is licensable under Article 2 of this Chapter.
2. Requirement. - An offer of employment by a provider licensed under this Chapter to an applicant to fill a position that does not require the applicant to have an occupational license is conditioned on consent to a State and national criminal history record check of the applicant. If the applicant has been a resident of this State for less than five years, then the offer of employment is conditioned on consent to a State and national criminal history record check of the applicant. The national criminal history record check shall include a check of the applicant's fingerprints. If the applicant has been a resident of this State for five years or more, then the offer is conditioned on consent to a State criminal history record check of the applicant. A provider shall not employ an applicant who refuses to consent to a criminal history record check required by this section. Except as otherwise provided in this subsection, within five business days of making the conditional offer of employment, a provider shall submit a request to the Department of Public Safety under G.S. 143B-939 to conduct a criminal history record check required by this section or shall submit a request to a private entity to conduct a State criminal history record check required by this section. Notwithstanding G.S. 143B-939, the Department of Public Safety shall return the results of national criminal history record checks for employment positions not covered by Public Law 105-277 to the Department of Health and Human Services, Criminal Records Check Unit. Within five business days of receipt of the national criminal history of the person, the Department of Health and Human Services, Criminal Records Check Unit, shall notify the provider as to whether the information received may affect the employability of the applicant. In no case shall the results of the national criminal history record check be shared with the provider. Providers shall make available upon request verification that a criminal history check has been completed on any staff covered by this section. A county that has adopted an appropriate local ordinance and has access to the Department of Public Safety data bank may conduct on behalf of a provider a State criminal history record check required by this section without the provider having to submit a request to the Department of Justice. In such a case, the county shall commence with the State criminal history record check required by this section within five business days of the conditional offer of employment by the provider. All criminal history information received by the provider is confidential and may not be disclosed, except to the applicant as provided in subsection (c) of this section. For purposes of this subsection, the term "private entity" means a business regularly engaged in conducting criminal history record checks utilizing public records obtained from a State agency.
3. Action. - If an applicant's criminal history record check reveals one or more convictions of a relevant offense, the provider shall consider all of the following factors in determining whether to hire the applicant:
   1. The level and seriousness of the crime.
   2. The date of the crime.
   3. The age of the person at the time of the conviction.
   4. The circumstances surrounding the commission of the crime, if known.
   5. The nexus between the criminal conduct of the person and the job duties of the position to be filled.
   6. The prison, jail, probation, parole, rehabilitation, and employment records of the person since the date the crime was committed.
   7. The subsequent commission by the person of a relevant offense.
4. Limited Immunity. - A provider and an officer or employee of a provider that, in good faith, complies with this section shall be immune from civil liability for:
   1. The failure of the provider to employ an individual on the basis of information provided in the criminal history record check of the individual.
   2. Failure to check an employee's history of criminal offenses if the employee's criminal history record check is requested and received in compliance with this section.
5. Relevant Offense. - As used in this section, "relevant offense" means a county, state, or federal criminal history of conviction or pending indictment of a crime, whether a misdemeanor or felony, that bears upon an individual's fitness to have responsibility for the safety and well-being of persons needing mental health, developmental disabilities, or substance abuse services. These crimes include the criminal offenses set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7B, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots, Civil Disorders, and Emergencies; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer-Related Crime. These crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses such as sale to underage persons in violation of G.S. 18B-302 or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5.
6. Penalty for Furnishing False Information. - Any applicant for employment who willfully furnishes, supplies, or otherwise gives false information on an employment application that is the basis for a criminal history record check under this section shall be guilty of a Class A1 misdemeanor.
7. Conditional Employment. - A provider may employ an applicant conditionally prior to obtaining the results of a criminal history record check regarding the applicant if both of the following requirements are met:
   1. The provider shall not employ an applicant prior to obtaining the applicant's consent for criminal history record check as required in subsection (b) of this section or the completed fingerprint cards as required in G.S. 143B-939.
   2. The provider shall submit the request for a criminal history record check not later than five business days after the individual begins conditional employment.

The fact of conviction of a relevant offense alone shall not be a bar to employment; however, the listed factors shall be considered by the provider. If the provider disqualifies an applicant after consideration of the relevant factors, then the provider may disclose information contained in the criminal history record check that is relevant to the disqualification, but may not provide a copy of the criminal history record check to the applicant.

History

(2000-154, s. 4; 2001-155, s. 1; 2004-124, ss. 10.19D(c), (h); 2005-4, ss. 1, 2, 3, 4, 5(a); 2007-444, s. 3; 2012-12, s. 2(tt); 2014-100, s. 17.1(q), (ddd); 2015-181, s. 47.)

Editor's Note. - Session Laws 2015-181, s. 47, provides: "The Revisor of Statutes may correct statutory references, as required by this act, throughout the General Statutes. In making the changes authorized by this act, the Revisor may also adjust the order of lists of multiple statutes to maintain statutory order, correct terms, make conforming changes to catch lines and references to catch lines, and adjust subject and verb agreement and the placement of conjunctions." Pursuant to this authority, the Revisor of Statutes directed "Article 7B" to be substituted for "Article 7A" in the second sentence of subsection (e).

Session Laws 2015-181, s. 48, provides: "This act becomes effective December 1, 2015, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutes that would be applicable but for this act remain applicable to those prosecutions."

Effect of Amendments. - Session Laws 2005-4, ss. 1-5(a), effective March 23, 2005, rewrote subsection (a); in subsection (b), substituted "Criminal Records Check Unit" for "Division of Facility Services" at the end of the seventh sentence and in the eighth sentence, and "notify the provider as to whether the information received may affect the employability of the applicant. In no case shall the results of the national criminal history record check be shared with the provider" for "shall provide to the area authority the results of the national criminal history check" at the end of the eighth sentence, inserted the present ninth sentence, and substituted "Providers" for "Area authorities" at the beginning of the present tenth sentence; substituted "a provider" for "an area authority" throughout the section; and substituted "provider" for "area authority" throughout subection (c), in subdivision (d)(1), and in subdivisions (g)(1) and (g)(2).

Session Laws 2007-444, s. 3, effective August 23, 2007, in subsection (b), added "or shall submit a request to a private entity to conduct a State criminal history record check required by this section" in the sixth sentence, and added the last sentence.

Session Laws 2014-100, s. 17.1(q) and (ddd), effective July 1, 2014, in subsection (b), substituted "Department of Public Safety" for "Department of Justice" and "G.S. 143B-939" for "G.S. 114-19.10" in the sixth and seventh sentences and substituted "Department of Public Safety" for "Division of Criminal Information" in the eleventh sentence; and substituted "G.S. 143B-939" for "G.S. 114-19.10" in subdivision (g)(1).

§ 122C-81. National accreditation benchmarks.

1. As used in this section, the term:
   1. "National accreditation" applies to accreditation by an entity approved by the Secretary that accredits mental health, developmental disabilities, and substance abuse services.
   2. "Provider" applies to only those providers of services, including facilities, requiring national accreditation, which services are designated by the Secretary pursuant to subsection (b) of this section.
2. The Secretary, through the Medicaid State Plan, Medicaid waiver, or rules adopted by the Secretary, shall designate the mental health, developmental disabilities, and substance abuse services that require national accreditation. In accordance with rules of the Commission, the Secretary may exempt a provider that is accredited under this section and in good standing with the national accrediting agency from undergoing any routine monitoring that is duplicative of the oversight by the national accrediting agency.
3. Providers enrolled with the Medicaid program prior to July 1, 2008, and providing services that require national accreditation approved by the Secretary pursuant to subsection (b) of this section, shall successfully complete national accreditation requirements within three years of enrollment with the Medicaid program. Providers shall meet the following benchmarks to ensure continuity of care for consumers in the event the provider does not make sufficient progress in achieving national accreditation in a timely manner:
   1. Nine months prior to the accreditation deadline -. Formal selection of an accrediting agency as documented by a letter from the agency to the provider acknowledging the provider's selection of that accrediting agency. A provider failing to meet this benchmark shall be prohibited from admitting new clients to service. If a provider fails to meet this benchmark, then the LMEs shall work with the provider to transfer all the provider's entire case load to another provider within four months of the date of the provider's failure to meet the benchmark. The transfer of the case load shall be in increments such that not fewer than twenty-five percent (25%) of the provider's total caseload shall be transferred per month. The Department shall terminate the provider's enrollment in the Medicaid program within four months of the provider's failure to meet the benchmark.
   2. Six months prior to the accreditation deadline -. An on-site accreditation review scheduled by the accrediting agency as documented by a letter from the agency to the facility. A provider failing to meet this benchmark will be prohibited from admitting new clients to service. If a provider fails to meet this benchmark, then the LMEs shall work with the provider to transfer the provider's entire case load to another provider within three months of the date of the provider's failure to meet the benchmark. The transfer of the case load shall be in increments such that not fewer than thirty-three percent (33%) of the provider's total caseload shall be transferred per month. The Department shall terminate the provider's enrollment in the Medicaid program within three months of the provider's failure to meet the benchmark.
   3. Three months prior to the accreditation deadline -. Completion of an on-site accreditation review, receipt of initial feedback from accrediting agency, and submission of a Plan of Correction for any deficiencies noted by the accrediting agency. A provider failing to meet this benchmark shall be prohibited from admitting new clients to service. If a provider fails to meet this benchmark, then the LMEs shall work with the provider to transfer the provider's entire case load to another provider within two months of the date of the provider's failure to meet the benchmark. The transfer of the case load shall be in increments such that not fewer than fifty percent (50%) of the provider's total caseload shall be transferred per month. The Department shall terminate the provider's enrollment in the Medicaid program within two months of the provider's failure to meet the benchmark.
   4. Accreditation deadline -. Approval as fully accredited by the national accrediting agency. A provider failing to meet this requirement shall be prohibited from admitting new clients to service. The LMEs will work with a provider failing to meet this deadline to transition clients currently receiving service to other providers within 60 days. The Department shall terminate the provider's enrollment in the Medicaid program within 60 days of the provider's failure to meet the benchmark.
   5. A provider that has its enrollment terminated in the Medicaid program as a result of failure to meet benchmarks for national accreditation or failure to continue to be nationally accredited may not apply for re-enrollment in the Medicaid program for at least one year following its enrollment termination.
4. Providers enrolled in the Medicaid program or contracting for State-funded services on or after July 1, 2008, and providing services which require national accreditation shall successfully complete all accreditation requirements and be awarded national accreditation within one year of enrollment in the Medicaid program or within two years following the provider's first contract to deliver a State-funded service requiring national accreditation. Providers providing services that require national accreditation shall be required to discontinue service delivery and shall have their Medicaid enrollment and any service contracts terminated if they do not meet the following benchmarks for demonstrating sufficient progress in achieving national accreditation following the date of enrollment in the Medicaid program or initial contract for State-funded services:
   1. Three months -. On-site accreditation review scheduled by accrediting agency as documented by a letter from the agency to the provider and completion of self-study and self-evaluation protocols distributed by the selected accrediting agency.
   2. Six months -. On-site accreditation review scheduled by accrediting agency as documented by a letter from the agency to the provider.
   3. Nine months -. Completion of on-site accreditation review, receipt of initial feedback from accrediting agency, plan to address any deficiencies identified developed.
   4. If a provider's Medicaid enrollment or service delivery contracts are terminated as a result of failure to meet accreditation benchmarks or failure to continue to be nationally accredited, the provider will work with the LME to transition consumers served by the provider to other service providers in an orderly fashion within 60 days of notification by the LME of such failure.
   5. A provider that has its Medicaid enrollment or service delivery contracts terminated as a result of failure to meet accreditation benchmarks or failure to continue to be nationally accredited may not reapply for enrollment in the Medicaid program or enter into any new service delivery contracts for at least one year following enrollment or contract termination.
5. The Commission may adopt rules establishing a procedure by which a provider that is accredited under this section and in good standing with the national accrediting agency may be exempt from undergoing any routine monitoring that is duplicative of the oversight by the national accrediting agency. Any provider shall continue to be subject to inspection by the Secretary, provided the inspection is not duplicative of inspections required by the national accrediting agency. Rules adopted under this subsection may not waive any requirements that may be imposed under federal law.

History

(2008-107, s. 10.15A(c); 2015-286, s. 3.7.)

Effect of Amendments. - Session Laws 2015-286, s. 3.7, effective October 22, 2015, added the last sentence of subsection (b); and added subsection (e).

§ 122C-101. Policy.

Within the public system of mental health, developmental disabilities, and substance abuse services, there are area, county, and State facilities. An area authority or county program is the locus of coordination among public services for clients of its catchment area.

History

(1985, c. 589, s. 2; 1989, c. 625, s. 13; 1993, c. 396, s. 3; 2001-437, s. 1.4.)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2017-57, s. 11F.5A, provides: "It is the intent of the General Assembly to reduce avoidable emergency department readmissions and emergency department boarding times among individuals with behavioral health needs. To that end, of the funds appropriated to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, the sum of two million dollars ($2,000,000) in nonrecurring funds for the 2017-2018 fiscal year shall be allocated for the development and establishment of a two-year pilot program at a hospital in Wake County to support a hospital-based, comprehensive community case management program. The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, in consultation with LME/MCOs responsible for the management and provision of mental health, developmental disabilities, and substance abuse disorder services in Wake County under the 1915(b)/(c) Medicaid Waiver, shall oversee the development and establishment of the pilot program to ensure it is designed to reduce avoidable emergency department readmissions and emergency department boarding times among individuals with behavioral health needs. The pilot program shall be conducted at the hospital in Wake County with the largest number of emergency department visits that agrees to participate in the two-year pilot program authorized by this subsection.

"By December 1, 2020, the Department shall submit a report to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division evaluating the effectiveness of the pilot program in reducing avoidable emergency department readmissions and emergency department boarding times among individuals with behavioral health needs."

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

§ 122C-102. State Plan for Mental Health, Developmental Disabilities, and Substance Abuse Services; system performance measures.

1. Purpose of State Plan. - The Department shall develop and implement a State Plan for Mental Health, Developmental Disabilities, and Substance Abuse Services. The purpose of the State Plan is to provide a strategic template regarding how State and local resources shall be organized and used to provide services. The State Plan shall be issued every three years beginning July 1, 2007. It shall identify specific goals to be achieved by the Department, area authorities, and county programs over a three-year period of time and benchmarks for determining whether progress is being made towards those goals. It shall also identify data that will be used to measure progress towards the specified goals. In order to increase the ability of the State, area authorities, county programs, private providers, and consumers to successfully implement the goals of the State Plan, the Department shall not adopt or implement policies that are inconsistent with the State Plan without first consulting with the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services.
2. Content of State Plan. - The State Plan shall include the following:
   1. Vision and mission of the State Mental Health, Developmental Disabilities, and Substance Abuse Services system.
   2. Repealed by Session Laws 2006-142, s. 2(a), effective July 19, 2006.
   3. Protection of client rights and consumer involvement in planning and management of system services.
   4. Provision of services to targeted populations, including criteria for identifying targeted populations.
   5. Compliance with federal mandates in establishing service priorities in mental health, developmental disabilities, and substance abuse.
   6. Description of the core services that are available to all individuals in order to improve consumer access to mental health, developmental disabilities, and substance abuse services at the local level.
   7. Service standards for the mental health, developmental disabilities, and substance abuse services system.
   8. Implementation of the uniform portal process.
   9. Strategies and schedules for implementing the service plan, including consultation on Medicaid policy with area and county programs, qualified providers, and others as designated by the Secretary, intersystem collaboration, promotion of best practices, technical assistance, outcome-based monitoring, and evaluation.
   10. A plan for coordination of the State Plan for Mental Health, Developmental Disabilities, and Substance Abuse Services with the Medicaid State Plan, and NC Health Choice.
   11. A business plan to demonstrate efficient and effective resource management of the mental health, developmental disabilities, and substance abuse services system, including strategies for accountability for non-Medicaid and Medicaid services.
   12. Strategies and schedules for implementing a phased in plan to eliminate disparities in the allocation of State funding across county programs and area authorities by January 1, 2007, including methods to identify service gaps and to ensure equitable use of State funds to fill those gaps among all counties.
3. Repealed by Session Laws 2013-360, s. 12A.8(c), effective July 1, 2013.

History

(2001-437, s. 1.5; 2006-142, s. 2(a); 2011-291, s. 2.42; 2013-360, s. 12A.8(c).)

Adult Care Home Model for Community-Based Services. -

Session Laws 2001-424, s. 21.54(a) and (b) contained similar provisions.

Session Laws 2001-424, s. 21.58(b), provides: "The Secretary of the Department of Health and Human Services shall develop a plan, after consultation with advocacy groups and affected State and local agencies and programs concerned with the mental health, developmental disabilities, and substance abuse services needs of the State, for the use of funds from the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs established under G.S. 143D-15D to meet the mental health needs of the State. The plan shall be consistent with the plan developed pursuant to G.S. 122C-102, if enacted in House Bill 381 of the 2001 General Assembly. Funds shall not be transferred from the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs until the Secretary has consulted with the Joint Legislative Commission on Governmental Operations, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Chairs of the Senate Appropriations Committee on Health and Human Services and the House of Representatives Appropriations Subcommittee on Health and Human Services."

Mental Retardation Center Transition Plan. - Session Laws 2001-424, ss. 21.62 (a) to (d), provide: "(a) In keeping with the United States Supreme Court Decision in Olmstead vs. L.C. & E.W. and State policy to provide appropriate services to clients in the least restrictive and most appropriate environment, the Department of Health and Human Services shall develop and implement a plan for the transfer of residents of State mental retardation centers, if appropriate, as follows:

"(1) Transfer those residents of the centers that need institutional services to a private intermediate care facility for the mentally retarded.

"(2) Transition to community programs and services those residents of the center that may be appropriately served in the community.

"The Department shall develop a transition plan for moving each resident of the mental retardation center to the community-based services and supports, if appropriate. The transition plan shall be developed in consultation with the resident and the resident's family or guardian.

"(b) The Department may use funds from the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs to facilitate the transition of residents into alternative community-based services as required under subsection (a) of this section [s. 21.62 (a) of Session Laws 2001-424]. Nonrecurring savings realized from implementation of the plan required under subsection (a) of this section [s. 21.62 (a) of Session Laws 2001-424] shall be deposited to the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs to be used to facilitate the transition of clients into appropriate community-based services and supports in accordance with Section 21.58 of this ac [Session Laws 2001-424]. Recurring savings realized through implementation of this section [s. 21.62 of Session Laws 2001-424] shall be retained by the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (i) for implementation of subsection (a)(1) and (2) of this section [ss. 21.62 (a) (1) and (a) (2) of Session Laws 2001-424], and (ii) to support the recurring costs of additional community-based placements from Division facilities in accordance with Olmstead vs. L.C. & E.W.

"(c) On or before January 1, 2002, and again on or before May 1, 2002, and May 1, 2003, the Department shall report to the Joint Legislative Commission on Governmental Operations, the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Fiscal Research Division on its progress in implementing this section [s. 21.62 of Session Laws 2001-424].

"(d) Before closing one or more State mental retardation centers the Department shall report the closure to the Joint Legislative Commission on Governmental Operations."

Session Laws 2003-284, ss. 10.15(a) through (c), provide: "(a) The Department of Health and Human Services shall develop and implement a plan for the reorganization of outreach services performed by the State mental retardation centers. The plan shall provide for the elimination of self-referrals by the mental retardation centers and shall include the following:

"(1) The area and county mental health programs shall have exclusive authority for referring to the mental retardation centers persons in the community who are in need of specialized services.

"(2) The mental retardation centers shall coordinate the transition of residents from the mental retardation centers to area and county mental health programs, and shall provide technical assistance to community service providers and families who care for transitioned residents, and to others in the community, as appropriate, for the purpose of furthering community services and placement.

"(3) The method for allocating savings in State appropriations from the mental retardation centers across the area and county mental health programs.

"(b) In accordance with the plan established in subsection (a) of this section, any recurring and nonrecurring savings in State appropriations that result from the transfer of referral activities in the mental retardation centers to area and county mental health programs shall be transferred from the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to area and county mental health programs for referral activities.

"(c) The Department of Health and Human Services shall report on the implementation of this section to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Fiscal Research Division. This report shall be submitted on February 1, 2004."

Dorothea Dix Hospital. - Session Laws 2003-284, ss. 10.12(a) through (d), effective July 1, 2003, provide: "(a) In keeping with the United States Supreme Court decision in Olmstead vs. L.C. & E.W. and State policy to provide appropriate services to clients in the least restrictive and most appropriate environment, the Department of Health and Human Services shall develop and implement a plan for the construction of a replacement facility for Dorothea Dix Hospital and for the transition of patients to the community or to other long-term care facilities, as appropriate. The goal is to develop mechanisms and identify resources needed to enable patients and their families to receive the necessary services and supports based on the following guiding principles:

"(1) Individuals shall be provided acute psychiatric care in non-State facilities when appropriate.

"(2) Individuals shall be provided acute psychiatric care in State facilities only when non-State facilities are unavailable.

"(3) Individuals shall receive evidenced-based psychiatric services and care that are cost-efficient.

"(4) The State shall minimize cost shifting to other State and local facilities or institutions.

"(b) The Department of Health and Human Services shall conduct an analysis of the individual patient service needs and shall develop and implement an individual transition plan, as appropriate, for patients in each hospital. The State shall ensure that each individual transition plan, as appropriate, shall take into consideration the availability of appropriate alternative placements based on the needs of the patient and within resources available for the mental health, developmental disabilities, and substance abuse services system. In developing each plan, the Department shall consult with the patient and the patient's family or other legal representative.

"(c) In accordance with the plan established in subsections (a) and (b) of this section, any nonrecurring savings in State appropriations that result from reductions in beds or services shall be placed in the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs. These funds shall be used to facilitate the transition of clients into appropriate community-based services and supports in accordance with G.S. 143-15.3D. Recurring savings realized through implementation of this section shall be retained by the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, (i) for implementation of subsections (a) and (b) of this section and (ii) to support the recurring costs of additional community-based placements from Division facilities in accordance with Olmstead vs. L.C. & E.W.

"(d) The Department of Health and Human Services shall submit reports on the status of implementation of this section to the Joint Legislative Commission on Governmental Operations, the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Fiscal Research Division. These reports shall be submitted on December 1, 2003, and May 1, 2004."

For similar prior provisions see S.L. 2001-424, ss. 21.63(a) to (e).

Session Laws 2011-145, s. 10.12, provides: "The Department of Health and Human Services, Division of State Operated Facilities, shall issue a Request for Proposal for the consolidation of forensic hospital care. The operation shall initially be located at the Dorothea Dix complex. The Secretary of Health and Human Services is authorized to proceed with contracting with a private entity if the Secretary can justify savings through the contract. The Secretary shall compare the Department's total cost to provide forensic care to proposals received and determine whether it is cost-effective to contract for this service. The Secretary may only proceed if the Secretary determines the Department will save money and ensure appropriate safety and quality of care for patients.

"The Secretary shall report to the Joint Appropriations Subcommittee for Health and Human Services by October 30, 2011, with cost detail and savings identified from the proposals."

County Medicaid Cost Share. - Session Laws 2005-276, s. 10.13(a), provides: "Effective July 1, 2000, the county share of the cost of Medicaid services currently and previously provided by area mental health authorities shall be increased incrementally each fiscal year until the county share reaches fifteen percent (15%) of the nonfederal share by State fiscal year 2009-2010."

Session Laws 2005-276, s. 10.13(b), provides: "Effective July 1, 2000, the county share of the cost of Medicaid Personal Care Services paid to adult care homes shall be decreased incrementally each fiscal year until the county share reaches fifteen percent (15%) of the nonfederal share by State fiscal year 2009-2010."

For similar prior provisions see Session Laws 2003-284, §§ 10.22(a) and (b).

Long-term Plan for Meeting Mental Health Developmental Disabilities, and Substance Abuse Services Needs - Session Laws 2005-276, s. 10.24(a)-(c), provides: "The Secretary of the Department of Health and Human Services shall, in consultation with interested advocacy groups and affected State and local agencies, develop a long-range plan for addressing the mental health, developmental disabilities, and substance abuse services needs of the State. The plan shall be consistent with the plan developed pursuant to G.S. 122C-102 and shall address the following:

"(1) The service needed at the community level within each LME in order to ensure an adequate level of services to the average number of persons needing the services based on population projections.'

"(2) The full continuum of services needed for each disability group within an LME, including:

"a. Which services could be regional or multi-LME based;

"b. What percent of the population each LME would expect to use State-level facilities; and

"c. An inventory of existing services within each LME for each disability group, and the gaps that exist;

"(3) Projected growth in services for each disability group within each LME or region that can reasonably be managed over the ensuing five-year period; and

"(4) Projected start-up costs and the total funding needed in each year from the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs to implement the long-range plan.

"Funds shall not be transferred from the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs until the Secretary has consulted with the Joint Legislative Commission on Governmental Operations, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Chairs of the Senate Appropriations Committee on Health and Human Services and the House of Representatives Appropriations Subcommittee on Health and Human Services.

"(b) The Department shall use not less than fifty percent (50%) of moneys in the Trust Fund established pursuant to G.S. 143-15D for the 2005-2006 fiscal year for nonrecurring start-up funds for community-based services, including funding for existing area program services to transition to the private sector or to another public service agency. Moneys in the Trust Fund may be used to expand recurring community-based services only if sufficient recurring funds can be identified within the Department from funds currently budgeted for mental health, developmental disabilities, and substance abuse services, area mental health programs or county programs, or local government.

"(c) Not later than March 1, 2006, the Department of Health and Human Services shall report on the implementation of this section to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Fiscal Research Division."

Transition Planning For State Psychiatric Hospitals - Session Laws 2007-323, s. 10.49(u), provides: "In keeping with the United States Supreme Court decision in Olmstead v. L.C. & E.W. and State policy to provide appropriate services to clients in the least restrictive and most appropriate environment, the Department of Health and Human Services shall continue to implement a plan for the transition of patients from State psychiatric hospitals to the community or to other long-term care facilities, as appropriate. The goal is to develop mechanisms and identify resources needed to enable patients and their families to receive the necessary services and supports based on the following guiding principles:

"(1) Individuals shall be provided acute psychiatric care in non-State facilities when appropriate.

"(2) Individuals shall be provided acute psychiatric care in State facilities only when non-State facilities are unavailable.

"(3) Individuals shall receive evidence-based psychiatric services and care that are cost-efficient.

"(4) The State shall minimize cost shifting to other State and local facilities or institutions.

"The Department of Health and Human Services shall conduct an analysis of the individual patient service needs and shall develop and implement an individual transition plan, as appropriate, for patients in each hospital. The State shall ensure that each individual transition plan, as appropriate, shall take into consideration the availability of appropriate alternative placements based on the needs of the patient and within resources available for the mental health, developmental disabilities, and substance abuse services system. In developing each plan, the Department shall consult with the patient and the patient's family or other legal representative.

"The Department of Health and Human Services shall submit reports on the status of implementation of this section to the Joint Legislative Commission on Governmental Operations, the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Fiscal Research Division. These reports shall be submitted on December 1, 2007, and May 1, 2008."

For similar prior provisions see S.L. 2005-276, ss. 10.28(a) to (d).

Mental Retardation Center Downsizing. - Session Laws 2005-276, s. 10.29(a), provides: "In accordance with the Department of Health and Human Services' plan for mental health, developmental disabilities, and substance abuse services system reform, the Department shall ensure that the downsizing of the State's regional mental retardation facilities is continuously based upon residents' needs and the availability of community-based services with a targeted goal of four percent (4%) each year. The Department shall implement cost-containment and reduction strategies to ensure the corresponding financial and staff downsizing of each facility. The Department shall manage the client population of the mental retardation centers in order to ensure that placements for ICF-MR level of care shall be made in non-State facilities. Admissions to State ICF-MR facilities are permitted only as a last resort and only upon approval of the Department. The corresponding budgets for each of the State mental retardation centers shall be reduced, and positions shall be eliminated as the census of each facility decreases. At no time shall mental retardation center positions be transferred to other units within a facility or assigned nondirect care activities such as outreach."

Session Laws 2005-276, s. 10.29(b), provides: "The Department of Health and Human Services shall apply any savings in State appropriations in each year of the 2005-2007 fiscal biennium that result from reductions in beds or services as follows:

"(1) The Department shall place nonrecurring savings in the Trust Fund for Mental Health, Developmental Disabilities, and Substance Abuse Services and Bridge Funding Needs and use the savings to facilitate the transition of clients into appropriate community-based services and support in accordance with G.S. 143-15.3D;

"(2) The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall retain recurring savings realized through implementation of this section to support the recurring costs of additional community-based placements from Division facilities in accordance with Olmstead vs. L.C. & E.W. In determining the savings in this section, savings shall include all savings realized from the downsizing of the State mental retardation centers, including the savings in direct State appropriations in the budgets of the State mental retardation centers; and

"(3) The Department of Health and Human Services, Division of Medical Assistance, shall transfer any recurring Medicaid savings resulting from the downsizing of State-operated MR centers from the ICF-MR line in Medicaid to the CAP-MR/DD line."

Session Laws 2005-276, s. 10.29(c), provides: "Consistent with the requirements of this section, the Secretary of Health and Human Services shall develop a plan to ensure that there are sufficient developmental disability/mental retardation regional centers to correspond with service catchment areas. The Plan shall address:

"(1) Methods of funding for community services necessitated by down-sizing;

"(2) How many State-operated beds and non-State operated beds are needed to serve the population; and

"(3) Alternative uses for facilities.

"Not later than April 1, 2006, the Department shall report on the development of the plan, and not later than April 1, 2007, shall report the final plan, including recommendations for legislative action, to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division."

Session Laws 2005-276, s. 10.29(d), provides: "The Department of Health and Human Services shall report on its progress in complying with this section to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Fiscal Research Division. The Department shall submit the progress report no later than January 15, 2006, and submit a final report no later than May 1, 2006."

For prior provisions, see Session Laws 2003-284, ss 10.14(a)-(d).

Medication-Assisted Opioid Use Disorder Treatment Pilot Program. - Session Laws 2016-94, s. 12F.1, as amended by Session Laws 2017-212, s. 3.1, provides: "(a) Definitions. - As used in this section, the following terms have the following meanings:

"(1) Department. - The North Carolina Department of Health and Human Services.

"(2) FQHC. - A federally qualified health center located in this State.

"(3) Prescriber. - Anyone authorized to prescribe drugs pursuant to the laws of this State.

"(4) Program participant. - An individual who (i) has been clinically assessed and diagnosed with opioid addiction, (ii) is selected by an FQHC to participate in the pilot program authorized by this section, and (iii) as part of the pilot program, receives the nonnarcotic, nonaddictive, extended-release, injectable formulation of opioid antagonist approved by the United States Food and Drug Administration for the prevention of relapse to opioid dependence.

"(b) Pilot Program. - The Department shall oversee the administration of a three-year pilot program to be conducted by designated FQHCs to address North Carolina's growing opioid addiction and overdose crisis. The goal of the pilot program is to study the effectiveness of combining behavioral therapy with the utilization of a nonnarcotic, nonaddictive, extended-release, injectable formulation of opioid antagonist approved by the United States Food and Drug Administration for the prevention of relapse to opioid dependence. In conducting the pilot program, selected FQHCs may collaborate with the Department, the North Carolina Institute of Medicine (NCIOM), and any other qualified entity or State agency that may be of assistance in accomplishing the objectives of the pilot program. Prior to the initiation of this pilot program, the Department shall, in collaboration with the NCIOM or any other qualified entity, determine the number of program participants needed to participate in the pilot program in order to ensure sufficient statistical significance to support any conclusions about the effectiveness of the pilot program.

"(c) Selection of Participating FQHCs. - Not later than 30 days after the effective date of this section, the Department shall select a minimum of three and not more than five FQHCs located in different areas of the State to participate in the pilot program authorized by this section, giving first priority to FQHCs that have received supplemental grant funds from the United States Department of Health and Human Services, Health Resources and Services Administration, for substance abuse service expansion with a focus on medication-assisted treatment in opioid use disorders.

"(d) Selection of Program Participants. - Not later than 60 days after the effective date of this section, the Department shall develop, in collaboration with the NCIOM or any other qualified entity, a methodology for selecting program participants at each FQHC. Only individuals who have been clinically assessed and diagnosed with opioid addiction may be selected and treated as program participants. Individuals who have been referred from local criminal justice agencies may be selected as program participants.

"(e) Treatment Standards. - As a condition of participating in the pilot program authorized by this section, each FQHC shall sign a written participation agreement provided by the Department that requires the FQHC to adhere to at least all of the following treatment standards for the duration of its participation in the pilot program:

"(1) Treatment may be provided to program participants only by a treatment provider who is affiliated with a participating FQHC.

"(2) Only individuals who have been clinically assessed and diagnosed with opioid addiction may be selected and treated as program participants.

"(3) Treatment providers at participating FQHCs shall do all of the following:

"a. Provide treatment based on an integrated service delivery model that consists of the coordination of care between a prescriber and an addiction services provider.

"b. Conduct any necessary additional professional, comprehensive substance use disorder and mental health diagnostic assessments of individuals under consideration for selection as pilot program participants to determine if they would benefit from substance use disorder treatment and monitoring.

"c. Determine, based on the assessments described in sub-subdivision b. of this subdivision, the treatment needs of the program participants served by the treatment provider.

"d. Develop individualized treatment goals and objectives for each program participant.

"e. Provide program participants with access to medication-assisted treatment utilizing a nonnarcotic, nonaddictive, extended-release, injectable formulation of opioid antagonist.

"f. In addition to medication-assisted treatment, provide program participants with other types of therapies, including behavioral therapies, outpatient programs, and community support, for opioid use disorder and any other disorders that are determined by the treatment provider to be co-occurring disorders.

"g. In the case of medication-assisted treatment provided under the pilot program, a drug may be used only if it has been approved by the United States Food and Drug Administration for use in combination with behavioral therapy for the prevention of relapse to opioid dependence.

"h. Comply with all applicable federal opioid treatment standards.

"i.Monitor the progress of program participants through the use of regular drug testing, including urinalysis..

"(f) FQHC Reports. - No later than 60 days after the effective date of this section, the Department shall, in collaboration with the NCIOM or any other qualified entity, develop a standardized methodology for the collection of information on program participants at each FQHC. As a condition of participating in the pilot program authorized by this section, each selected FQHC must agree to follow this standardized methodology for (i) collecting information on program participants and (ii) annually reporting that information to the Department, in the format prescribed by the Department. The annual report shall include at least all of the following information, in the format prescribed by the Department:

"(1) For each program participant, that individual's age, sex, and length of treatment. This information shall be reported to the Department in a manner that does not disclose personally identifying information about program participants.

"(2) The total number of program participants who successfully transitioned to opioid abstinence for a minimum of 30 days, 60 days, 90 days, six months, 12 months, and 18 months.

"(3) The amount of State appropriations expended on a per program participant basis at each participating FQHC..

"(g) Evaluation of Pilot Program. - By November 1, 2020, the Department shall conduct and submit to the Joint Legislative Oversight Committee on Health and Human Services a comprehensive evaluation of the effectiveness of this pilot program in addressing North Carolina's growing opioid addiction and overdose crisis. The Department may contract with an institution of higher education or other qualified entity with expertise in evaluating programs similar to the pilot program authorized by this section. The comprehensive evaluation shall include whether this pilot program was successful as measured by at least all of the following:

"(1) The total number of program participants who successfully transitioned to opioid abstinence for a minimum of 30 days, 60 days, 90 days, six months, 12 months, and 18 months.

"(2) A cost-benefit analysis of the pilot program.

"(h) Expiration. - The pilot program conducted at each selected FQHC shall expire no later than three years after the date of its commencement at that particular FQHC.'

"(i) Funds in the amount of five hundred thousand dollars ($500,000) from the federal Substance Abuse Prevention and Treatment Block Grant shall be allocated to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, for the 2016-2017 fiscal year. These funds shall be allocated to the FQHCs selected to participate in the pilot program authorized by this section on a per program participant basis to offset the cost of the following services:

"(1) Medication dispensed to program participants.

"(2) Provider fees for services rendered to program participants.

"(3) Up to 14 days of detoxification services.

"(4) Behavioral therapy for program participants.

"(5) Drug testing and monitoring of program participants.

"(j) Subsection (i) of this section becomes effective July 1, 2016. The remainder of this section is effective when it becomes law."

Strategic Plan for Improvement of Behavioral Health Services. - Session Laws 2016-94, s. 12F.10, as amended by Session Laws 2017-57, s. 11F.6(a), (b), provides: "(a) The General Assembly finds that behavioral health services within the State are fragmented and a statewide comprehensive plan is necessary to ensure that individuals with behavioral health needs are timely served in the most appropriate settings and with the most appropriate services in order to achieve the best possible outcomes. The General Assembly further finds the absence of a statewide strategic plan that defines, coordinates, and facilitates the allocation of resources for needed services is an obstacle to improving the desired outcomes for behavioral health services in this State. It is the intention of the General Assembly to improve the delivery and coordination of behavioral health services across the State by targeting State resources to identified needs of covered populations and to treatments and services most effective at producing positive, measurable outcomes.

"(b) By January 1, 2018, the Department of Health and Human Services shall develop and submit to the Joint Legislative Oversight Committee on Health and Human Services, the Joint Legislative Oversight Committee on Medicaid and NC Health Choice, and the Fiscal Research Division a strategic statewide plan to improve the efficiency and effectiveness of State-funded behavioral health services. In developing the plan, the Department shall review and consider its past and current studies, and associated reports, relating to behavioral health services in the State. The plan shall include at least all of the following:

"(1) Identification of the Division that will (i) assume lead responsibility for the organization and delivery of publicly funded behavioral health services and (ii) define the current and future roles and responsibilities of local management entities/managed care organizations (LME/MCOs) with respect to the organization and delivery of publicly funded behavioral health services.

"(2) A process for ensuring that all State contracts with behavioral health providers and managed care organizations responsible for managing Medicaid behavioral health services (including LME/MCOs) contain goals for overall behavioral health services, along with specific measurable outcomes for all publicly funded mental health, developmental disabilities, substance abuse, and traumatic brain injury services.

"(3) A statewide needs assessment for mental health, developmental disabilities, substance abuse, and traumatic brain injury services by county and type of service, broken down by the source of funding. The needs assessment must include a defined service continuum to address identified needs for targeted populations.

"(4) Specific solvency standards to be incorporated into State contracts with LME/MCOs that define appropriate cash balances, predictors for sustainability, and measures for performance that the LME/MCOs will monitor and report to the Department on a monthly, quarterly, and annual basis.

"(5) Any other component, study, or report that the Department deems necessary to achieve the goal of improving the effective and efficient delivery and coordination of publicly funded behavioral health services across the State.

"(b1) In the development of the strategic statewide plan, required under subsection (b) of this section, the Department of Health and Human Services shall consider policy issues pertaining to the delivery of services for people with intellectual and developmental disabilities. Consideration shall be given to all of the following:

"(1) The causes and potential solutions for the growing waitlist for NC Innovations Waiver slots. Potential solutions to be studied include the following:

"a. Increasing the funding for the 1915(c) Innovations Waiver to result in more individuals served.

"b. Creating new support waiver slots as recommended in the March 2015 "Study Additional 1915(c) Waiver" report from the Department of Health and Human Services, Division of Medical Assistance, to the Joint Legislative Oversight Committee on Health and Human Services.

"c. Utilizing a 1915(i) waiver option and exploring how the 1115 waiver required for Medicaid transformation may assist in addressing current waitlist for services.

"(2) Issues surrounding single-stream funding and how single-stream funding is used to support services for people with intellectual and developmental disabilities.

"(3) Multiple federal mandates that will directly impact current services and supports for people with intellectual and developmental disabilities, including Home and Community-Based Services changes, the Work Force Innovations and Opportunities Act, and changes under section 14(c) of the federal Fair Labor Standards Act.

"(4) The coverage of services for the treatment of autism, including any State Plan amendment needed to address guidance issued by the Centers for Medicare and Medicaid Services."

"(c) The Joint Legislative Oversight Committee on Health and Human Services and the Joint Legislative Oversight Committee on Medicaid and NC Health Choice shall each establish a subcommittee on Behavioral Health Services. The subcommittees shall meet jointly to do the following:

"(1) Oversee the Department's development of the strategic plan required by subsection (b) of this section.

"(2) Review the strategic plan developed by the Department in accordance with subsection (b) of this section, including a review of all performance-related goals and measures for the delivery of mental health, developmental disabilities, substance abuse, and traumatic brain injury services.

"(3) Review consolidated monthly, quarterly, and annual reports and analyses of behavioral health services funded by Medicaid and State-only appropriations.

"The subcommittees shall jointly make recommendations about the areas of oversight and review described in subdivisions (1) through (3) of this subsection and report their findings and recommendations to their respective committees. In conducting the required oversight and review, the subcommittees may seek input from other states, stakeholders, and national experts as they deem necessary in conducting their examination and developing their recommendations."

Funds for Evidence-Based Supported Employment Services for Individuals with Serious Mental Illness, Intellectual Disabilities, or Developmental Disabilities. - Session Laws 2018-5, s. 11F.7, provides: "Of the funds appropriated in this act to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, the sum of one hundred twenty-five thousand dollars ($125,000) in recurring funds for the 2018-2019 fiscal year shall be allocated as a grant to the North Carolina Association of People Supporting Employment First (NC APSE) to develop and implement training programs for the Department, including online training modules, on the provision of evidence-based supported employment services for individuals in targeted populations, in order to assist these individuals with preparation for, identification of, and maintenance of integrated, paid, competitive employment. The Department shall make these training programs available throughout the State to (i) employers that have hired or are willing to hire individuals in targeted populations, (ii) service providers of local management entities/managed care organizations, and (iii) any other entity the Department determines will benefit from receiving this training in order to achieve improved employment outcomes for individuals in targeted populations. As used in this section, 'individuals in targeted populations' means individuals with serious mental illness who are in or at risk of entry to an adult care home and individuals with intellectual disabilities, developmental disabilities, or both."

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2001-424, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Acts of 2001.'"

Session Laws 2001-424, s. 36.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2001-2003 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2001-2003 fiscal biennium."

Session Laws 2001-424, s. 36.5, is a severability clause.

For provisions of Session Laws 2001-437, ss. 3(a) to 3(d), relating to certification of area authorities and county programs to administer and deliver mental health, developmental disabilities, and substance abuse services, see note at G.S. 122C-10.

Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003'."

Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium."

Session Laws 2003-284, s. 49.5, is a severability clause.

Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'."

Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium."

Session Laws 2005-276, s. 46.5, is a severability clause.

Session Laws 2006-66, s. 10.28, provides: "Independent consultants hired by the Department from funds appropriated in this act for this purpose shall undertake the following tasks:

"(1) Assist DHHS with the strategic planning necessary to develop the revised State Plan as required under G.S. 122C-102. The State Plan shall be coordinated with local and regional crisis service plans by area authorities and county programs.

"(2) Study and make recommendations to increase the capacity of DHHS to implement system reform successfully and in a manner that maintains strong management functions by area authorities and county programs at the local level.

"(3) Assist the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to work with area authorities and county programs to:

"a. Develop and implement five to ten critical performance indicators to be used to hold area authorities and county programs accountable for managing the mental health, developmental disabilities, and substance abuse services system. The performance system indicators shall be implemented no later than six months after the consultant's contract is awarded and in no event later than July 1, 2007.

"b. Standardize the utilization management functions and functions related to person-centered plans.

"c. Implement other uniform procedures for the management functions of area authorities and county programs.

"(4) Provide technical assistance and oversight to private service providers, area authorities, and county programs to ensure that best practices and new services are being delivered with fidelity to the service definition model.

"(5) Provide ongoing and focused technical assistance to area authorities and county programs in the implementation of their administrative and management functions and the establishment and operation of community-based programs. The Secretary shall include in the State Plan a mechanism for monitoring the Department's success in implementing this duty and the progress of area authorities and county programs in achieving these functions.

"(6) Assist the Division with implementing standard forms, contracts, processes, and procedures to be used by all area authorities and county programs with other public and private service providers. These processes and procedures shall include standardized denial codes and a standard policy regarding the coordination of benefits. The independent consultant shall consult with area authorities and county programs regarding the development of these forms, contracts, processes, and procedures. Any document or process developed under this subdivision shall place an obligation upon providers to transmit to area authorities and county programs timely client information and outcome data. The independent consultant shall also recommend language regarding what constitutes a clean claim for purposes of billing. When implementing this subdivision, the independent consultant shall balance the need for area authorities and county programs to exercise discretion in the discharge of their management responsibilities with the need of private service providers for a uniform system of doing business with public entities. The independent consultant shall also (i) identify other areas of standardization that may be implemented without undermining the authority of area authorities and county programs, and (ii) identify and eliminate processes and procedures that are duplicative or result in unnecessary paperwork."

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'."

Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year."

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2016-94, s. 12F.3, provides: "(a) Funds appropriated in this act to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, for the 2016-2017 fiscal year to implement the recommendations of the Governor's Task Force on Mental Health and Substance Use established pursuant to Executive Order No. 76 (Governor's Task Force) shall be deposited into the reserve fund established pursuant to subsection (b) of this section.

"(b) The Mental Health and Substance Use Task Force Reserve Fund is hereby established as a fund within the General Fund. Notwithstanding any provision of law to the contrary, monies in the Reserve Fund shall not revert at the end of the fiscal year but shall remain available until expended. Monies in the Fund may only be expended to implement the recommendations of the Governor's Task Force; provided, however, that no funds shall be expended until both of the following conditions have been met:

"(1) The Department of Health and Human Services shall obtain the prior approval of the Office of State Budget and Management (OSBM) on a detailed implementation plan with key milestones and due dates.

"(2) The Department of Health and Human Services shall report to the Joint Legislative Oversight Committee on Health and Human Services and the Fiscal Research Division within 10 days after obtaining the approval required by subdivision (1) of this subsection. The report shall include (i) an explanation of the specific amounts and uses of these funds and (ii) a detailed implementation plan with key milestones, due dates, and expected outcomes."

Session Laws 2016-94, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2016.'"

Session Laws 2016-94, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year."

Session Laws 2016-94, s. 39.7, is a severability clause.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2006-142, s. 2(a), effective July 19, 2006, added "system performance measures" to the section heading; rewrote the previously existing provisions of the section as subsections (a) and (b); and added subsection (c).

Session Laws 2011-291, s. 2.42, effective June 24, 2011, substituted "Joint Legislative Oversight Committee on Health and Human Services" for "Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services" in the last sentence of subsection (c).

Legal Periodicals. - For comment, "Outsourcing Our Children: The Failure to Treat Mental Illness In-State," see 36 N.C. Cent. L. Rev. 66 (2013).

§§ 122C-103 through 122C-110: Reserved for future codification purposes.

PART 2. STATE, COUNTY AND AREA AUTHORITY.

§ 122C-111. Administration.

The Secretary shall administer and enforce the provisions of this Chapter and the rules of the Commission and shall operate State facilities. An area director or program director shall (i) manage the public mental health, developmental disabilities, and substance abuse system for the area authority or county program according to the local business plan, and (ii) enforce applicable State laws, rules of the Commission, and rules of the Secretary. The Secretary in cooperation with area and county program directors and State facility directors shall provide for the coordination of public services between area authorities, county programs, and State facilities. The area authority or county program shall monitor the provision of mental health, developmental disabilities, and substance abuse services for compliance with the law, which monitoring and management shall not supersede or duplicate the regulatory authority or functions of agencies of the Department.

History

(1963, c. 1166, s. 3; 1973, c. 476, s. 133; 1985, c. 589, s. 2; 2001-437, s. 1.6; 2002-164, s. 4.2; 2006-142, s. 4(b).)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Effect of Amendments. - Session Laws 2006-142, s. 4(b), effective July 19, 2006, substituted "shall (i) manage the public mental health, developmental disabilities, and substance abuse system for the area authority or county program according to the local business plan, and (ii) enforce" for "shall administer the programs of the area authority or county program, as applicable, and enforce" in the second sentence; and substituted "disabilities" for "disability," and inserted "and management" in the last sentence.

§ 122C-112: Repealed by Session Laws 2001-437, s. 1.7(a), effective July 1, 2002.

§ 122C-112.1. Powers and duties of the Secretary.

1. The Secretary shall do all of the following:
   1. Oversee development and implementation of the State Plan for Mental Health, Developmental Disabilities, and Substance Abuse Services.
   2. Enforce the provisions of this Chapter and the rules of the Commission and the Secretary.
   3. Establish a process and criteria for the submission, review, and approval or disapproval of LME business plans submitted by area authorities and county programs for the management of mental health, developmental disabilities, and substance abuse services.
   4. Adopt rules specifying the content and format of LME business plans.
   5. Review LME business plans and, upon approval of the plan, certify the submitting area authority or county program to manage the delivery of mental health, developmental disabilities, and substance abuse services in the applicable catchment area.
   6. Establish comprehensive, cohesive oversight and monitoring procedures and processes to ensure continuous compliance by area authorities, county programs, and all providers of public services with State and federal policy, law, and standards. The procedures shall include the development and use of critical performance measures and report cards for each area authority and county program.
   7. Conduct regularly scheduled monitoring and oversight of area authority, county programs, and all providers of public services. Monitoring and oversight shall be used to assess compliance with the LME business plan and implementation of core LME functions. Monitoring shall also include the examination of LME and provider performance on outcome measures including adherence to best practices, the assessment of consumer satisfaction, and the review of client rights complaints.
   8. Make findings and recommendations based on information and data collected pursuant to subdivision (7) of this subsection and submit these findings and recommendations to the applicable area authority board, county program director, board of county commissioners, providers of public services, and to the Local Consumer Advocacy Office.
   9. Provide ongoing and focused technical assistance to area authorities and county programs in the implementation of the LME functions and the establishment and operation of community-based programs. The technical assistance required under this subdivision includes, but is not limited to, the technical assistance required under G.S. 122C-115.4(d)(2). The Secretary shall include in the State Plan a mechanism for monitoring the Department's success in implementing this duty and the progress of area authorities and county programs in achieving these functions.
   10. Operate State facilities and adopt rules pertaining to their operation.
   11. Develop a unified system of services provided at the community level, by State facilities, and by providers enrolled or under a contract with the State and an area authority or county program.
   12. Adopt rules governing the expenditure of all funds for mental health, developmental disabilities, and substance abuse programs and services.
   13. Adopt rules to implement the appeal procedure authorized by G.S. 122C-151.2.
   14. Implement the uniform portal process developed under rules adopted by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services in accordance with G.S. 122C-114.
   15. Except as provided in G.S. 122C-26(4), adopt rules establishing procedures for waiver of rules adopted by the Secretary under this Chapter.
   16. Notify the clerks of superior court of changes in the designation of State facility regions and of facilities designated under G.S. 122C-252.
   17. Promote public awareness and understanding of mental health, mental illness, developmental disabilities, and substance abuse.
   18. Administer and enforce rules that are conditions of participation for federal or State financial aid.
   19. Carry out G.S. 122C-361.
   20. Monitor the fiscal and administrative practices of area authorities and county programs to ensure that the programs are accountable to the State for the management and use of federal and State funds allocated for mental health, developmental disabilities, and substance abuse services. The Secretary shall ensure maximum accountability by area authorities and county programs for rate-setting methodologies, reimbursement procedures, billing procedures, provider contracting procedures, record keeping, documentation, and other matters pertaining to financial management and fiscal accountability. The Secretary shall further ensure that the practices are consistent with professionally accepted accounting and management principles.
   21. Provide technical assistance, including conflict resolution, to counties in the development and implementation of area authority and county program business plans and other matters, as requested by the county.
   22. Develop a methodology to be used for calculating county resources to reflect cash and in-kind contributions of the county.
   23. Adopt rules establishing program evaluation and management of mental health, developmental disabilities, and substance abuse services.
   24. Adopt rules regarding the requirements of the federal government for grants-in-aid for mental health, developmental disabilities, or substance abuse programs which may be made available to area authorities or county programs or the State. This section shall be liberally construed in order that the State and its citizens may benefit from the grants-in-aid.
   25. Adopt rules for determining minimally adequate services for purposes of G.S. 122C-124.1 and G.S. 122C-125.
   26. Establish a process for approving area authorities and county programs to provide services directly in accordance with G.S. 122C-141.
   27. Sponsor training opportunities in the fields of mental health, developmental disabilities, and substance abuse.
   28. Enforce the protection of the rights of clients served by State facilities, area authorities, county programs, and providers of public services.
   29. Adopt rules for the enforcement of the protection of the rights of clients being served by State facilities, area authorities, county programs, and providers of public services.
   30. Prior to requesting approval to close a State facility under G.S. 122C-181(b):
       1. Notify the Joint Legislative Commission on Governmental Operations, the Joint Legislative Oversight Committee on Health and Human Services, and members of the General Assembly who represent catchment areas affected by the closure; and
       2. Present a plan for the closure to the members of the Joint Legislative Oversight Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Senate Appropriations Committee on Health and Human Services for their review, advice, and recommendations. The plan shall address specifically how patients will be cared for after closure, how support services to community-based agencies and outreach services will be continued, and the impact on remaining State facilities. In implementing the plan, the Secretary shall take into consideration the comments and recommendations of the committees to which the plan is presented under this subdivision.
   31. Ensure that the State Plan for Mental Health, Developmental Disabilities, and Substance Abuse Services is coordinated with the Medicaid State Plan and NC Health Choice.
   32. Implement standard forms, quality measures, contracts, processes, and procedures to be used by all area authorities and county programs with other public and private service providers. The Secretary shall consult with LMEs, CFACs, counties, and qualified providers regarding the development of any forms, processes, and procedures required under this subdivision. Any document, process, or procedure developed under this subdivision shall place an obligation upon providers to transmit to LMEs timely client information and outcome data. The Secretary shall also adopt rules regarding what constitutes a clean claim for purposes of billing.
   33. Develop and implement critical performance indicators to be used to hold LMEs accountable for managing the mental health, developmental disabilities, and substance abuse services system. The performance system indicators shall be implemented no later than July 1, 2007.
   34. Adopt a copayment schedule for behavioral health services, intellectual and developmental disabilities services, and substance use disorder services based on the Medicaid copayments for those services to be used by LMEs and by contractual provider agencies under G.S. 122C-146. The copayment schedule adopted under this subdivision shall require a copayment for services identified by the Secretary. Families whose family income is three hundred percent (300%) or greater of the federal poverty level are eligible for services with the applicable copayment.
   35. Develop and adopt rules governing a statewide data system containing waiting list information obtained annually from each LME as required under G.S. 122C-115.4(b)(8). The rules adopted shall establish standardized criteria to be used by LMEs to ensure that the waiting list data are consistent across LMEs. The Department shall use data collected from LMEs under G.S. 122C-115.4(b)(8) for statewide planning and needs projections. The creation of the statewide waiting list data system does not create an entitlement to services for individuals on the waiting list. The Department shall report annually to the Joint Legislative Oversight Committee on Health and Human Services its recommendations based on data obtained annually from each LME. The report shall indicate the services that are most needed throughout the State, plans to address unmet needs, and any cost projections for providing needed services.
   36. The Department shall ensure that developmental disability services funded from State appropriations to or allocations from the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, including CAP-MRDD are authorized on a quarterly, semiannual, or annual basis, in accordance with guidelines issued by the Department, unless a change in the individual's person-centered plan indicates a different authorization frequency.
   37. The Department shall develop new developmental disability service definitions for developmental disability services funded from State appropriations to or allocations from the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, including CAP-MRDD that allow for person-centered and self-directed supports.
   38. Adopt rules establishing a procedure for single-county disengagement from an area authority operating under a 1915(b)/(c) Medicaid Waiver.
   39. Develop and use a standard contract for all local management entity/managed care organizations for operation of the 1915(b)/(c) Medicaid Waiver that requires compliance by each LME/MCO with all provisions of the contract to operate the 1915(b)/(c) Medicaid Waiver and with all applicable provisions of State and federal law.
2. The Secretary may do the following:
   1. Acquire, by purchase or otherwise in the name of the Department, equipment, supplies, and other personal property necessary to carry out the mental health, developmental disabilities, and substance abuse programs.
   2. Promote and conduct research in the fields of mental health, developmental disabilities, and substance abuse; promote best practices.
   3. Receive donations of money, securities, equipment, supplies, or any other personal property of any kind or description that shall be used by the Secretary for the purpose of carrying out mental health, developmental disabilities, and substance abuse programs. Any donations shall be reported to the Office of State Budget and Management as determined by that office.
   4. Accept, allocate, and spend any federal funds for mental health, developmental disabilities, and substance abuse activities that may be made available to the State by the federal government. This Chapter shall be liberally construed in order that the State and its citizens may benefit fully from these funds. Any federal funds received shall be deposited with the Department of State Treasurer and shall be appropriated by the General Assembly for the mental health, developmental disabilities, or substance abuse purposes specified.
   5. Enter into agreements authorized by G.S. 122C-346.
   6. Notwithstanding G.S. 126-18, authorize funds for contracting with a person, firm, or corporation for aid or assistance in locating, recruiting, or arranging employment of health care professionals in any facility listed in G.S. 122C-181.
   7. Contract with one or more private providers or other public service agencies to serve clients of an area authority or county program and reallocate program funds to pay for services under the contract if the Secretary finds all of the following:
      1. The area authority or county program refuses or has failed to provide the services to clients within its catchment area, or provide specialty services in another catchment area, in a manner that is at least adequate.
      2. Clients within the area authority or county program catchment area will either not be served or will suffer an unreasonable hardship if required to obtain the services from another area authority or county program.
      3. There is at least one private provider or public service agency within the area authority or county program catchment area, or within reasonable proximity to the catchment area, willing and able to provide services under contract.
   8. Contract with one or more private providers or other public service agencies to serve clients from more than one area authority or county program and reallocate the funds of the applicable programs to pay for services under the contract if the Secretary finds either that there is no other area authority or county program available to act as the administrative entity under contract with the provider or that the area authority or county program refuses or has failed to properly manage and administer the contract with the contract provider, and clients will either not be served or will suffer unreasonable hardship if services are not provided under the contract. Before contracting with a private provider as authorized under this subdivision, the Secretary shall provide written notification to the area authority or county program and the applicable participating boards of county commissioners of the Secretary's intent to contract and shall provide the area authority or county program and the applicable participating boards of county commissioners an opportunity to be heard.
   9. Require reports of client characteristics, staffing patterns, agency policies or activities, services, or specific financial data of the area authority, county program, and providers of public services. The reports shall not identify individual clients of the area authority or county program unless specifically required by State law or by federal law or regulation or unless valid consent for the release has been given by the client or legally responsible person.

When implementing this subdivision, the Secretary shall balance the need for LMEs to exercise discretion in the discharge of their LME functions with the need of qualified providers for a uniform system of doing business with public entities.

Before contracting with a private provider as authorized under this subdivision, the Secretary shall provide written notification to the area authority or county program and to the applicable participating boards of county commissioners of the Secretary's intent to contract and shall provide the area authority or county program and the applicable participating boards of county commissioners an opportunity to be heard.

History

(2001-437, s. 1.7(b); 2006-142, s. 4(m); 2007-410, s. 2; 2007-504, s. 2.2; 2009-186, s. 2; 2011-291, ss. 2.43, 2.44; 2012-151, s. 7(b); 2013-85, s. 3; 2021-77, s. 3.)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2007-323, s. 10.49(t), provides: "(t) Notwithstanding G.S. 122C-112.1(a)(30) and G.S. 122C-181, the Secretary of Health and Human Services may close Dorothea Dix Hospital, and the Secretary of Health and Human Services may close John Umstead Hospital or any unit or section of that hospital, provided that all of the following conditions have been met prior to closure of each hospital or unit thereof:

"(1) The Secretary has notified the Joint Legislative Commission on Governmental Operations, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and members of the General Assembly who represent catchment areas affected by the closure.

"(2) The Secretary has presented a plan for the closure of each hospital or unit thereof to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services (Oversight Committee) for its review, advice, and recommendations. The Secretary shall also provide a copy of the plan to each member of the General Assembly in a timely manner to permit each member of the General Assembly to comment at the presentation of the plan to the Oversight Committee. The plan shall address specifically all of the following: (i) the capacity of any replacement facility and the catchment area to meet the needs of those consumers who require long-term secure services as well as acute care; (ii) an inventory of existing capacity in the communities within the catchment area for patients to access crisis services, appropriate housing, and other necessary supports; (iii) how the State and the LMEs in the catchment area will attract and retain qualified private providers that will provide services to State-paid non-Medicaid-eligible consumers; and (iv) the impact of the closure on remaining State facilities. In implementing the plan, the Secretary shall take into consideration the comments and recommendations of the Oversight Committee and other members of the General Assembly.

"(3) The Central Regional Hospital is operational and patient transfers from Dorothea Dix Hospital and John Umstead Hospital have been completed.

"(4) Notwithstanding any other provision of law, the Secretary shall not close a State facility if there are not adequate replacement services available prior to the date of closure."

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2008-107, s. 10.15(h), provides: "In order to temporarily address high admissions to adult acute unit beds in the State psychiatric hospitals, the Secretary of the Department of Health and Human Services may, notwithstanding G.S. 122C-181 and G.S. 122C-112.1(a)(30), open and operate on a temporary basis up to 60 beds at the Central Regional Hospital Wake Unit on the Dorothea Dix Campus and may maintain the Wake Unit on the Dix Campus until beds become available in the system. Section 10.49(t) of S.L. 2007-323 does not apply to this subsection."

Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008'."

Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year."

Session Laws 2008-107, s. 30.5, is a severability clause.

Session Laws 2010-31, s. 10.10(b), provides: "Notwithstanding any other provision of law, G.S. 122C-112.1(a)(30) and G.S. 122C-181 apply to Dorothea Dix Hospital."

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Session Laws 2011-145, s. 10.12, provides: "The Department of Health and Human Services, Division of State Operated Facilities, shall issue a Request for Proposal for the consolidation of forensic hospital care. The operation shall initially be located at the Dorothea Dix complex. The Secretary of Health and Human Services is authorized to proceed with contracting with a private entity if the Secretary can justify savings through the contract. The Secretary shall compare the Department's total cost to provide forensic care to proposals received and determine whether it is cost-effective to contract for this service. The Secretary may only proceed if the Secretary determines the Department will save money and ensure appropriate safety and quality of care for patients.

"The Secretary shall report to the Joint Appropriations Subcommittee for Health and Human Services by October 30, 2011, with cost detail and savings identified from the proposals."

Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'"

Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium."

Session Laws 2011-145, s. 32.5, is a severability clause.

Session Laws 2012-151, s. 7(a), provides: "Beginning July 1, 2012, and for a period of two years thereafter, the Department of Health and Human Services shall not approve any county's request to withdraw from a multicounty area authority operating under the 1915(b)/(c) Medicaid Waiver. Not later than January 1, 2014, the Secretary shall adopt rules to establish a process for county disengagement that shall at a minimum ensure the following:

"(1) Provisions of service are not disrupted by the disengagement.

"(2) The disengaging county is either in compliance or plans to merge with an area authority that is in compliance with population requirements provided in G.S. 122C-155(a).

"(3) The timing of the disengagement is accounted for and does not conflict with setting capitation rates.

"(4) Adequate notice is provided to the affected counties, the Department of Health and Human Services, and the General Assembly.

"(5) Provisions for distribution of any real property no longer within the catchment area of the area authority."

Effect of Amendments. - Session Laws 2006-142, s. 4(m), effective July 19, 2006, rewrote subsection (a).

Session Laws 2007-410, s. 2, effective August 21, 2007, added subdivision (a)(34).

Session Laws 2007-504, s. 2.2, effective October 1, 2007, substituted the present subdivision (a)(14) for the former subdivision (a)(14), which read "Adopt rules for the implementation of the uniform portal process."

Session Laws 2009-186, s. 2, effective July 1, 2009, added subdivisions (a)(35) through (a)(37).

Session Laws 2011-291, ss. 2.43 and 2.44, effective June 24, 2011, substituted "Joint Legislative Oversight Committee on Health and Human Services" for "Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services" in sub-subdivisions (a)(30)a. and (a)(30)b., and subdivision (a)(35).

Session Laws 2021-77, s. 3, effective July 2, 2021, rewrote subsection (a)(34).

§ 122C-113. Cooperation between Secretary and other agencies.

1. The Secretary shall cooperate with other State agencies to coordinate services for the treatment and habilitation of individuals who are mentally ill, developmentally disabled, or substance abusers. The Secretary shall also coordinate with these agencies to provide public education to promote a better understanding of mental illness, developmental disabilities, and substance abuse.
2. The Secretary shall promote cooperation among area facilities, State facilities, and local agencies to facilitate the provision of services to individuals who are mentally ill, developmentally disabled, or substance abusers.
3. The Secretary shall cooperate with the State Board of Education and the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety in coordinating the responsibilities of the Department of Health and Human Services, the State Board of Education, the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, and the Department of Public Instruction for adolescent substance abuse programs. The Department of Health and Human Services, through its Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, in cooperation with the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, shall be responsible for intervention and treatment in non-school based programs. The State Board of Education and the Department of Public Instruction, in consultation with the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, shall have primary responsibility for in-school education, identification, and intervention services, including student assistance programs.
4. The Secretary shall adopt rules to assure this coordination.

History

(1963, c. 1166, s. 3; 1973, c. 476, s. 133; 1977, c. 679, s. 7; 1981, c. 51, s. 3; 1985, c. 589, s. 2; 1987, c. 863, s. 1; 1989, c. 625, s. 14; 1993, c. 522, s. 9; 1997-443, s. 11A.118(a); 1998-202, s. 4(s); 2000-137, s. 4(v); 2011-145, s. 19.1( l ); 2017-186, s. 2(mmmmm).)

Effect of Amendments. - Session Laws 2017-186, s. 2(mmmmm), effective December 1, 2017, substituted "Juvenile Justice Section of the Division of Adult Correction and" for "Division of" throughout subsection (b1).

§ 122C-114. Powers and duties of the Commission.

1. The Commission shall have authority as provided by this Chapter, Chapters 90 and 148 of the General Statutes, and by G.S. 143B-147.
2. The Commission shall adopt rules regarding all of the following:
   1. The development of a process for screening, triage, and referral, including a uniform portal process, for implementation by the Secretary as required under G.S. 122C-112.1(14).
   2. LME monitoring of providers of mental health, developmental disabilities, and substance abuse services.
   3. LME provision of technical assistance to providers of mental health, developmental disabilities, and substance abuse services.
   4. The requirements of a qualified public or private provider as that term is used in G.S. 122C-141. In adopting rules under this subsection, the Commission shall take into account the need to ensure fair competition among providers.

History

(C.S., s. 6153; 1929, c. 265, s. 1; 1933, c. 342, s. 1; 1943, cc. 32, 164; 1945, c. 952, s. 9; 1947, c. 537, s. 5; 1957, c. 1232, s. 1; 1959, c. 348, s. 3; c. 1002, s. 3; c. 1028, ss. 1, 2, 3, 5; 1963, c. 451, s. 1; c. 1166, s. 10; 1973, c. 476, s. 133; 1977, c. 679, s. 7; 1981, c. 51, s. 3; 1985, c. 589, s. 2; 2007-504, s. 2.3; 2012-66, s. 1.)

Effect of Amendments. - Session Laws 2007-504, s. 2.3, effective October 1, 2007, designated the existing provisions as subsection (a) and added subsection (b).

§ 122C-115. Duties of counties; appropriation and allocation of funds by counties and cities.

1. A county shall provide mental health, developmental disabilities, and substance abuse services in accordance with rules, policies, and guidelines adopted pursuant to statewide restructuring of the management responsibilities for the delivery of services for individuals with mental illness, intellectual or other developmental disabilities, and substance abuse disorders under a 1915(b)/(c) Medicaid Waiver through an area authority. Beginning July 1, 2012, the catchment area of an area authority shall contain a minimum population of at least 300,000. Beginning July 1, 2013, the catchment area of an area authority shall contain a minimum population of at least 500,000. To the extent this section conflicts with G.S. 153A-77 or G.S. 122C-115.1, the provisions of this section control.
2. Effective July 1, 2012, the Department shall reduce the administrative funding for LMEs that do not comply with the minimum population requirement of 300,000 to a rate consistent with the funding rate provided to LMEs with a population of 300,000.
3. Effective July 1, 2013, the Department shall reassign management responsibilities for Medicaid funds and State funds away from LMEs that are not in compliance with the minimum population requirement of 500,000 to LMEs that are fully compliant with all catchment area requirements, including the minimum population requirements specified in this section.
4. A county that wishes to disengage from a local management entity/managed care organization and realign with another multicounty area authority operating under the 1915(b)/(c) Medicaid Waiver may do so with the approval of the Secretary. The Secretary shall adopt rules to establish a process for county disengagement that shall ensure, at a minimum, the following:
   1. Provision of services is not disrupted by the disengagement.
   2. The disengaging county either is in compliance or plans to merge with an area authority that is in compliance with population requirements provided in G.S. 122C-115(a) of this section.
   3. The timing of the disengagement is accounted for and does not conflict with setting capitation rates.
   4. Adequate notice is provided to the affected counties, the Department of Health and Human Services, and the General Assembly.
   5. Provision for distribution of any real property no longer within the catchment area of the area authority.
5. Counties shall and cities may appropriate funds for the support of programs that serve the catchment area, whether the programs are physically located within a single county or whether any facility housing a program is owned and operated by the city or county. Counties and cities may make appropriations for the purposes of this Chapter and may allocate for these purposes other revenues not restricted by law, and counties may fund them by levy of property taxes pursuant to G.S. 153A-149(c)(22).
6. Except as authorized in G.S. 122C-115.1, within a catchment area designated in the business plan pursuant to G.S. 122C-115.2, a board of county commissioners or two or more boards of county commissioners jointly shall establish an area authority with the approval of the Secretary.
7. Area authorities may add one or more additional counties to their existing catchment area upon the adoption of a resolution to that effect by a majority of the members of the area board and the approval of the Secretary.
8. Except as otherwise provided in this subsection, counties shall not reduce county appropriations and expenditures for current operations and ongoing programs and services of area authorities or county programs because of the availability of State-allocated funds, fees, capitation amounts, or fund balance to the area authority or county program. Counties may reduce county appropriations by the amount previously appropriated by the county for one-time, nonrecurring special needs of the area authority or county program.
9. Beginning on the date that capitated contracts under Article 4 of Chapter 108D of the General Statutes begin, LME/MCOs shall cease managing Medicaid services for all Medicaid recipients other than recipients described in G.S. 108D-40(a)(1), (4), (5), (6), (7), (10), (11), (12), and (13). Until BH IDD tailored plans become operational, all of the following shall occur:
   1. LME/MCOs shall continue to manage the Medicaid services that are covered by the LME/MCOs under the combined 1915(b) and (c) waivers for Medicaid recipients described in G.S. 108D-40(a)(1), (4), (5), (6), (7), (10), (11), (12), and (13).
   2. The Division of Health Benefits shall negotiate actuarially sound capitation rates directly with the LME/MCOs based on the change in composition of the population being served by the LME/MCOs.
   3. Capitation payments under contracts between the Division of Health Benefits and the LME/MCOs shall be made directly to the LME/MCO by the Division of Health Benefits.
10. Entities operating the BH IDD tailored plans under G.S. 108D-60 may continue to manage the behavioral health, intellectual and developmental disability, and traumatic brain injury services for any Medicaid recipients described in G.S. 108D-40(a)(4), (5), (7), (10), (11), (12), and (13) under any contract with the Department in accordance with G.S. 108D-60(b).

History

(1977, c. 568, s. 1; c. 679, s. 7; 1979, c. 358, ss. 5, 23; 1981, c. 51, s. 3; 1985, c. 589, s. 2; 1989, c. 625, s. 14; 1995 (Reg. Sess., 1996), c. 749, s. 1; 1999-202, s. 1; 2001-437, s. 1.8; 2004-124, s. 10.26(a); 2006-66, s. 10.32(c), (d); 2007-504, s. 1.3; 2011-264, s. 2; 2012-151, ss. 1, 6; 2013-85, s. 4(a)-(c); 2013-363, s. 4.12(a); 2013-378, s. 11; 2013-410, s. 23(a); 2015-245, s. 4; 2018-48, s. 1; 2019-81, ss. 12, 14(a)(8); 2020-88, s. 12(c); 2021-62, ss. 4.8(d), 3.4A(b).)

School-Based Child and Family Team Initiative. - Session Laws 2005-276, s. 6.24, provides for the development and implementation of a School-Based Child and Family Team Initiative. See note at G.S. 115C-105.20.

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2012-151, s. 6, was codified at the direction of the Revisor of Statutes as subsection (c1) of G.S. 122C-115.

Session Laws 2012-151, s. 7(a), provides: "Beginning July 1, 2012, and for a period of two years thereafter, the Department of Health and Human Services shall not approve any county's request to withdraw from a multicounty area authority operating under the 1915(b)/(c) Medicaid Waiver. Not later than January 1, 2014, the Secretary shall adopt rules to establish a process for county disengagement that shall at a minimum ensure the following:

"(1) Provisions of service are not disrupted by the disengagement.

"(2) The disengaging county is either in compliance or plans to merge with an area authority that is in compliance with population requirements provided in G.S. 122C-155(a).

"(3) The timing of the disengagement is accounted for and does not conflict with setting capitation rates.

"(4) Adequate notice is provided to the affected counties, the Department of Health and Human Services, and the General Assembly.

"(5) Provisions for distribution of any real property no longer within the catchment area of the area authority."

Session Laws 2013-378, s. 12, as amended by Session Laws 2013-363, s. 4.12(a), made the amendment to subsection (a) by Session Laws 2013-378, s. 11, effective April 1, 2014. However, Session Laws 2013-410, s. 23(a), made identical changes to subsection (a), effective January 1, 2014. Session Laws 2013-363, s. 4.12(a), was contingent upon House Bill 399, 2013 Regular Session, becoming law. House Bill 399 was enacted as Session Laws 2013-378.

Session Laws 2013-363, s. 4.12(b), was contingent on House Bill 399, 2013 Regular Session, not becoming law. House Bill 399 was enacted as Session Laws 2013-378, so the amendment by Session Laws 2013-363, s. 4.12(b), to subsection (a) of this section did not take effect.

Session Laws 2013-363, s. 4.12(c), was contingent on House Bill 399, 2013 Regular Session, not becoming law. House Bill 399 was enacted as Session Laws 2013-378, so the amendment by Session Laws 2013-363, s. 4.12(c), which would have changed the effective date of the amendment by Session Laws 2013-85, s. 4(a) did not take effect.

Subdivision (9) of Session Laws 2015-245, s. 4, as amended by Session Laws 2018-48, s. 1, and Session Laws 2019-81, s. 12, was codified as subsection (e) of this section, by Session Laws 2019-81, s. 14(a)(8), effective October 1, 2019.

Session Laws 2019-81, s. 14(a)(8) provides, in part, that: "the tag line shall not be codified, and the words 'under Article 4 of Chapter 108D of the General Statutes' shall be inserted after the words 'capitated contracts'."

Effect of Amendments. - Session Laws 2004-124, s. 10.26(a), effective July 17, 2004, and expiring July 1, 2005, added the last sentence of subsection (a).

Session Laws 2006-66, s. 10.32(c), (d), effective July 1, 2007, inserted the second sentence in subsection (a); and added subsection (a1).

Session Laws 2007-504, s. 1.3, effective August 30, 2007, rewrote subsection (a1).

Session Laws 2011-264, s. 2, effective June 23, 2011, in subsection (a), deleted the former second sentence, which read: "The catchment area of an area authority or a county program shall contain either a minimum population of at least 200,000 or a minimum of six counties," and added the second and third sentences; rewrote subsection (a1), which formerly read: "Effective July 1, 2007, the Department of Health and Human Services shall reduce by ten percent (10%) annually the administrative funding for LMEs that do not comply with the catchment area requirements of subsection (a) of this section. However, an LME that does not comply with the catchment area requirements because of a change in county membership shall have 12 months from the effective date of the change to comply with subsection (a) of this section"; and added subsection (a2).

Session Laws 2019-81, ss. 12 and 14(a)(8), effective October 1, 2019, added subsection (e). For clarification, see editor's notes.

Session Laws 2020-88, s. 12(c), effective July 2, 2020, inserted "(5a)" in the introductory paragraph of subsection (e) and in subdivision (e)(1).

Session Laws 2021-62, s. 3.4A(b), effective June 29, 2021, added subsection (f).

Session Laws 2021-62, s. 4.8(d), effective July 1, 2021, deleted "(5a)” preceding "(6)” through subsection (e).

Opinions of Attorney General

Counties Not Exempted from Mandates of Chapter 122C. - This section and G.S. 153A-77(a) do not exempt any county from the service delivery mandates of Chapter 122C because the latter provision, allowing Boards of Commissioners of counties with populations greater than 425,000 to assume direct control over boards of health, social services, and mental health, developmental disabilities, and substance abuse services, only pertains to the governing structure of a county program and not to the provision of services. See opinion of Attorney General to Eddie S. Winstead III, Esq., Harrington, Ward, Gilleland & Winstead, L.L.P., 2002 N.C.A.G. 24 (9/6/02).

§ 122C-115.1. County governance and operation of mental health, developmental disabilities, and substance abuse services program.

1. A county may operate a county program for mental health, developmental disabilities, and substance abuse services as a single county or, pursuant to Article 20 of Chapter 160A of the General Statutes, may enter into an interlocal agreement with one or more other counties for the operation of a multicounty program. An interlocal agreement shall provide for the following:
   1. Adoption and administration of the program budget in accordance with Chapter 159 of the General Statutes.
   2. Appointment of a program director to carry out the provisions of G.S. 122C-111 and duties and responsibilities delegated by the county. Except when specifically waived by the Secretary, the program director shall meet all the following minimum qualifications:
      1. Masters degree.
      2. Related experience.
      3. Management experience.
      4. Any other qualifications required under G.S. 122C-120.1.
   3. Repealed by Session Laws 2006-66, s. 10.32(e), effective July 1, 2007.
   4. Compliance with the provisions of this Chapter and the rules of the Commission and the Secretary.
   5. Written notification to the Secretary prior to the termination of the interlocal agreement.
   6. Appointment of an advisory committee. The interlocal agreement shall designate a county manager to whom the advisory committee shall report. The interlocal agreement shall also designate the appointing authorities. The appointing authorities shall make appointments that take into account sufficient citizen participation, equitable representation of the disability groups, and equitable representation of participating counties. The membership shall conform to the requirements provided in G.S. 122C-118.1.
2. Before establishing a county program pursuant to this section, a county board of commissioners shall hold a public hearing with notice published at least 10 days before the hearing.
3. A county shall ensure that the county program and the services provided through the county program comply with the provisions of this Chapter and the rules adopted by the Commission and the Secretary.
4. A county program shall submit on a quarterly basis to the Secretary and the board of county commissioners service delivery reports that assess the quality and availability of public services within the county program's catchment area. The service delivery reports shall include the types of services delivered, number of recipients served, and services requested but not delivered due to staffing, financial, or other constraints. In addition, at least annually, a progress report shall be submitted to the Secretary and the board of county commissioners. The progress report shall include an assessment of the progress in implementing local service plans, goals, and outcomes. All reports shall be in a format and shall contain any additional information required by the Secretary or board of county commissioners.
5. Within 30 days of the end of each quarter of the fiscal year, the program director and finance officer of the county program shall present to each member of the board of county commissioners a budgetary statement and balance sheet that details the assets, liabilities, and fund balance of the county program. This information shall be read into the minutes of the meeting at which it is presented. The program director or finance officer of the county program shall provide to the board of county commissioners ad hoc reports as requested by the board of county commissioners.
6. In a single-county program, the program director shall be appointed by the county manager. In a multicounty program, the program director shall be appointed in accordance with the terms of the interlocal agreement.
   1. Masters degree.
   2. Related experience.
   3. Management experience.
   4. Any other qualifications required under G.S. 122C-120.1.
7. In a single-county program, an advisory committee shall be appointed by the board of county commissioners and shall report to the county manager. The appointments shall take into account sufficient citizen participation, equitable representation of the disability groups, and equitable representation of participating counties. The membership shall conform to the requirements in G.S. 122C-118.1. In a multicounty program, the advisory committee shall be appointed in accordance with the terms of the interlocal agreement.
8. The county program may contract to provide services to governmental or private entities, including Employee Assistance Programs.
9. Except as otherwise specifically provided, this Chapter applies to counties that provide mental health, developmental disabilities, and substance abuse services through a county program. As used in the applicable sections of this Article, the terms "area authority", "area program", and "area facility" shall be construed to include "county program".

Except when specifically waived by the Secretary, the program director in a single county program shall meet all the following minimum qualifications:

History

(2001-437, s. 1.9; 2006-66, s. 10.32(e); 2006-142, s. 4(f), (g), (i), (j); 2012-151, s. 2(b).)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

For provisions of Session Laws 2001-437, ss. 3(a) to 3(d), relating to certification of area authorities and county programs to administer and deliver mental health, developmental disabilities, and substance abuse services, see note at G.S. 122C-10.

Session Laws 2012-151, s. 7(a), provides: "Beginning July 1, 2012, and for a period of two years thereafter, the Department of Health and Human Services shall not approve any county's request to withdraw from a multicounty area authority operating under the 1915(b)/(c) Medicaid Waiver. Not later than January 1, 2014, the Secretary shall adopt rules to establish a process for county disengagement that shall at a minimum ensure the following:

"(1) Provisions of service are not disrupted by the disengagement.

"(2) The disengaging county is either in compliance or plans to merge with an area authority that is in compliance with population requirements provided in G.S. 122C-155(a).

"(3) The timing of the disengagement is accounted for and does not conflict with setting capitation rates.

"(4) Adequate notice is provided to the affected counties, the Department of Health and Human Services, and the General Assembly.

"(5) Provisions for distribution of any real property no longer within the catchment area of the area authority."

Effect of Amendments. - Session Laws 2006-66, s. 10.32(e), effective July 1, 2007, repealed subdivision (a)(3).

Session Laws 2006-142, s. 4(f), (g), effective July 19, 2006, in subdivision (a)(6) and subsection (g), substituted "The membership" for "At least fifty percent (50%) of the membership," and substituted "G.S. 122C-118.1" for "G.S. 122C-118.1(b)(1)-(4)."

Session Laws 2006-142, s. 4(i), (j), effective January 1, 2007, in subdivision (a)(2), inserted "all" following "director shall meet," added subdivision (a)(2)d, and made minor stylistic changes; and added the second paragraph in subsection (f).

§ 122C-115.2. LME business plan required; content, process, certification.

1. Every county, through an area authority or county program, shall provide for the development, review, and approval of an LME business plan for the management and delivery of mental health, developmental disabilities, and substance abuse services. An LME business plan shall provide detailed information regarding how the area authority or county program will meet State standards, laws, and rules for ensuring quality mental health, developmental disabilities, and substance abuse services, including outcome measures for evaluating program effectiveness. The business plan shall be in effect for at least three State fiscal years. The Secretary shall develop a model business plan that illustrates compliance with this section, including specific State standards and rules adopted by the Secretary. The Secretary shall provide each LME with the model business plan to assist the LME in developing its business plan.
2. Business plans shall include the following:
   1. Description of how the following core administrative functions will be carried out:
      1. Planning. - Local services plans that identify service gaps and methods for filling the gaps, ensure the availability of an array of services based on consumer needs, provision of core services, equitable service delivery among member counties, and prescribing the efficient and effective use of all funds for targeted services. Local planning shall be an open process involving key stakeholders.
      2. Provider network development. - Ensuring available, qualified providers to deliver services based on the business plan. Development of new providers and monitoring provider performance and service outcomes. Provider network development shall address consumer choice and fair competition. For the purposes of this section, a "qualified provider" means a provider who meets the provider qualifications as defined by rules adopted by the Secretary.
      3. Service management. - Implementation of uniform portal process. Service management shall include appropriate level and intensity of services, management of State hospitals/facilities bed days, utilization management, case management, and quality management. If services are provided directly by the area authority or county program, then the plan shall indicate how consumer choice and fair competition in the marketplace is ensured.
      4. Financial management and accountability. - Carrying out business functions in an efficient and effective manner, cost-sharing, and managing resources dedicated to the public system.
      5. Service monitoring and oversight. - Ensuring that services provided to consumers and families meet State outcome standards and ensure quality performance by providers in the network.
      6. Evaluation. - Self-evaluation based on statewide outcome standards and participation in independent evaluation studies.
      7. Collaboration. - Collaborating with other local service systems in ensuring access and coordination of services at the local level. Collaborating with other area authorities and county programs and the State in planning and ensuring the delivery of services.
      8. Access. - Ensuring access to core and targeted services.
   2. Description of how the following will be addressed:
      1. Reasonable administrative costs based on uniform State criteria for calculating administrative costs and costs or savings anticipated from consolidation.
      2. Proposed reinvestment of savings toward direct services.
      3. Compliance with the catchment area consolidation plan adopted by the Secretary.
      4. Based on rules adopted by the Secretary, method for calculating county resources to reflect cash and in-kind contributions of the county.
      5. Financial and services accountability and oversight in accordance with State and federal law.
      6. The composition, appointments, selection process, and the process for notifying each board of county commissioners of all appointments made to the area authority board.
      7. The population base of the catchment area to be served.
      8. Use of local funds for the alteration, improvement, and rehabilitation of real property as authorized by and in accordance with G.S. 122C-147.
      9. The resources available and needed within the catchment area to prevent out-of-community placements and shall include input from the community public agencies.
   3. Other matters determined by the Secretary to be necessary to effectively and efficiently ensure the provision of mental health, developmental disabilities, and substance abuse services through an area authority or county program.
3. The county program or area authority proposing the business plan shall submit the proposed plan as approved by the board of county commissioners to the Secretary for review and certification. The Secretary shall review the business plan within 30 days of receipt of the plan. If the business plan meets all of the requirements of State law and standards adopted by the Secretary, then the Secretary shall certify the area authority or county program as a single-county area authority, a single-county program, a multicounty area authority, or a multicounty program. A business plan that demonstrates substantial compliance with the model business plan developed by the Secretary shall be deemed as meeting the requirements of State law and standards adopted by the Secretary. Implementation of the certified plan shall begin within 30 days of certification. If the Secretary determines that changes to the plan are necessary, then the Secretary shall so notify the submitting county program or area authority and the applicable participating boards of county commissioners and shall indicate in the notification the changes that need to be made in order for the proposed program to be certified. If the Secretary determines that a business plan needs substantial changes in order to be certifiable, the Secretary shall provide the LME submitting the plan with detailed information on each area of the plan that is in need of change, the particular State law or standard adopted by the Secretary that has not been met, and instructions or assistance on what changes need to be made in order for the plan to be certifiable. The submitting county program or area authority shall have 30 days from receipt of the Secretary's notice to make the requested changes and resubmit the amended plan to the Secretary for review. The Secretary shall provide whatever assistance is necessary to resolve outstanding issues. Amendments to the business plan shall be subject to the approval of the participating boards of county commissioners.
4. Annually, in accordance with procedures established by the Secretary, each area authority and county program submitting a business plan shall enter into a memorandum of agreement with the Secretary for the purpose of ensuring that State funds are used in accordance with priorities expressed in the business plan.
5. The Secretary may waive any requirements of this section that are inconsistent with or incompatible with contracts entered into between the Department and the area authority for the management responsibilities for the delivery of services for individuals with mental illness, intellectual or other developmental disabilities, and substance abuse disorders under a 1915(b)/(c) Medicaid Waiver.

History

(2001-437, s. 1.9; 2002-164, s. 4.3; 2006-142, s. 4(c); 2007-504, s. 2.1; 2012-151, s. 9(b).)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

For provisions of Session Laws 2001-437, ss. 3(a) to 3(d), relating to certification of area authorities and county programs to administer and deliver mental health, developmental disabilities, and substance abuse services, see note at G.S. 122C-10.

Effect of Amendments. - Session Laws 2006-142, s. 4(c), effective July 19, 2006, substituted "LME business plan" for "Business plan" in the section heading; and in subsection (a), inserted "the" preceding "development" near the beginning of the first sentence, substituted "an LME business plan" for "a business plan" in the first and second sentences, and substituted "information regarding" for "information on" in the second sentence.

Session Laws 2007-504, s. 2.1, effective October 1, 2007, added the last two sentences in subsection (a); and in subsection (c), added the fourth and seventh sentences.

§ 122C-115.3. Dissolution of area authority.

1. Repealed by Session Laws 2013-85, s. 5(a), effective June 12, 2013.
2. No county shall withdraw from an area authority nor shall an area authority be dissolved without prior approval of the Secretary.
3. The Secretary shall, prior to the date that BH IDD tailored plans begin operating, direct the dissolution of any area authority that does not receive an initial contract to operate a BH IDD tailored plan. The Secretary shall deliver a notice of dissolution to the board of county commissioners of each of the counties in the dissolved LME/MCO.
4. ,  (d) Repealed by Session Laws 2013-85, s. 5(a), effective June 12, 2013.
5. Any fund balance or risk reserve available to an area authority at the time of its dissolution that is not utilized to pay liabilities shall be transferred to one or more area authorities contracted to operate the 1915(b)
6. Effective until the date that BH IDD tailored plans begin operating, if the fund balance transferred from the dissolved area authority under subsection (e) of this section is insufficient to constitute fifteen percent (15%) of the anticipated operational expenses arising from assumption of responsibilities from the dissolved area authority, the Secretary shall guarantee the operational reserves for the area authority assuming the responsibilities under the 1915(b)

History

(2001-437, s. 1.9; 2011-102, s. 5; 2011-264, s. 3; 2013-85, s. 5(a)-(c); 2021-62, s. 3.5(a)-(c).)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2013-85 provides in its preamble: "Whereas, S.L. 2011-264, as amended by Section 13 of S.L. 2012-151, required the Department of Health and Human Services (Department) to restructure the statewide management of the delivery of services for individuals with mental illness, intellectual and developmental disabilities, and substance abuse disorders through the statewide expansion of the 1915(b)/(c) Medicaid Waiver; and

"Whereas, a local management entity anaged care organization (LME/MCO) that is awarded a contract to operate the 1915(b)/(c) Medicaid Waiver was required to maintain fidelity to the Piedmont Behavioral Health (PBH) demonstration model; and

"Whereas, LME/MCOs are acting as Medicaid vendors and the Department must ensure that they are compliant with the provisions of S.L. 2011-264, as amended by Section 13 of S.L. 2012-151, as well as all applicable federal, State, and contractual requirements; Now, therefore, The General Assembly of North Carolina enacts:"

Effect of Amendments. - Session Laws 2011-102, s. 5, effective June 2, 2011, substituted "fund balance" for "budgetary surplus" in the first sentence of subsection (e).

Session Laws 2011-264, s. 3, effective June 23, 2011, in subsection (a), added the next-to-last sentence, and inserted "for other reasons" in the last sentence.

Session Laws 20212-62, s. 3.5(a), (b), (c), effective June 29, 2021, added subsections (b1) and (e1); and rewrote subsection (e).

§ 122C-115.4. Functions of local management entities.

1. Local management entities are responsible for the management and oversight of the public system of mental health, developmental disabilities, and substance abuse services at the community level. An LME shall plan, develop, implement, and monitor services within a specified geographic area to ensure expected outcomes for consumers within available resources.
2. The primary functions of an LME are designated in this subsection and shall not be conducted by any other entity unless an LME voluntarily enters into a contract with that entity under subsection (c) of this section. The primary functions include all of the following:
   1. Access for all citizens to the core services and administrative functions described in G.S. 122C-2. In particular, this shall include the implementation of a 24-hour a day, seven-day a week screening, triage, and referral process and a uniform portal of entry into care.
   2. Provider monitoring, technical assistance, capacity development, and quality control. If at anytime the LME has reasonable cause to believe a violation of licensure rules has occurred, the LME shall make a referral to the Division of Health Service Regulation. If at anytime the LME has reasonable cause to believe the abuse, neglect, or exploitation of a client has occurred, the LME shall make a referral to the local Department of Social Services, Child Protective Services Program, or Adult Protective Services Program.
   3. Utilization management, utilization review, and determination of the appropriate level and intensity of services. An LME may participate in the development of person centered plans for any consumer and shall monitor the implementation of person centered plans. An LME shall review and approve person centered plans for consumers who receive State-funded services and shall conduct concurrent reviews of person centered plans for consumers in the LME's catchment area who receive Medicaid funded services.
   4. Authorization of the utilization of State psychiatric hospitals and other State facilities. Authorization of eligibility determination requests for recipients under a CAP-MR/DD waiver.
   5. Care coordination and quality management. This function involves individual client care decisions at critical treatment junctures to assure clients' care is coordinated, received when needed, likely to produce good outcomes, and is neither too little nor too much service to achieve the desired results. Care coordination is sometimes referred to as "care management." Care coordination shall be provided by clinically trained professionals with the authority and skills necessary to determine appropriate diagnosis and treatment, approve treatment and service plans, when necessary to link clients to higher levels of care quickly and efficiently, to facilitate the resolution of disagreements between providers and clinicians, and to consult with providers, clinicians, case managers, and utilization reviewers. Care coordination activities for high-risk/high-cost consumers or consumers at a critical treatment juncture include the following:
      1. Assisting with the development of a single care plan for individual clients, including participating in child and family teams around the development of plans for children and adolescents.
      2. Addressing difficult situations for clients or providers.
      3. Consulting with providers regarding difficult or unusual care situations.
      4. Ensuring that consumers are linked to primary care providers to address the consumer's physical health needs.
      5. Coordinating client transitions from one service to another.
      6. Conducting customer service interventions.
      7. Assuring clients are given additional, fewer, or different services as client needs increase, lessen, or change.
      8. Interfacing with utilization reviewers and case managers.
      9. Providing leadership on the development and use of communication protocols.
      10. Participating in the development of discharge plans for consumers being discharged from a State facility or other inpatient setting who have not been previously served in the community.
   6. Community collaboration and consumer affairs including a process to protect consumer rights, an appeals process, and support of an effective consumer and family advisory committee.
   7. Financial management and accountability for the use of State and local funds and information management for the delivery of publicly funded services.
   8. Community crisis services planning in accordance with G.S. 122C-202.2.
   9. Each LME shall develop a waiting list of persons with intellectual or developmental disabilities that are waiting for specific services. The LME shall develop the list in accordance with rules adopted by the Secretary to ensure that waiting list data are collected consistently across LMEs. Each LME shall report this data annually to the Department. The data collected should include numbers of persons who are:
      1. Waiting for residential services.
      2. Potentially eligible for CAP-MRDD.
      3. In need of other services and supports funded from State appropriations to or allocations from the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, including CAP-MRDD.
3. Subject to subsection (b) of this section and all applicable State and federal laws and rules established by the Secretary, an LME may contract with a public or private entity for the implementation of LME functions designated under subsection (b) of this section.
4. Except as provided in G.S. 122C-124.1 and G.S. 122C-125, the Secretary may neither remove from an LME nor designate another entity as eligible to implement any function enumerated under subsection (b) of this section unless all of the following applies:
   1. The LME fails during the previous consecutive three months to achieve a satisfactory outcome on any of the critical performance measures developed by the Secretary under G.S. 122C-112.1(33).
   2. The Secretary provides focused technical assistance to the LME in the implementation of the function. The assistance shall continue for at least three months or until the LME achieves a satisfactory outcome on the performance measure, whichever occurs first.
   3. If, after three months of receiving technical assistance from the Secretary, the LME still fails to achieve or maintain a satisfactory outcome on the critical performance measure, the Secretary shall enter into a contract with another LME or agency to implement the function on behalf of the LME from which the function has been removed.
5. Notwithstanding subsection (d) of this section, in the case of serious financial mismanagement or serious regulatory noncompliance, the Secretary may temporarily remove an LME function after consultation with the Joint Legislative Oversight Committee on Health and Human Services.
6. The Commission shall adopt rules regarding the following matters:
   1. The definition of a high risk consumer. Until such time as the Commission adopts a rule under this subdivision, a high risk consumer means a person who has been assessed as needing emergent crisis services three or more times in the previous 12 months.
   2. The definition of a high cost consumer. Until such time as the Commission adopts a rule under this subdivision, a high cost consumer means a person whose treatment plan is expected to incur costs in the top twenty percent (20%) of expenditures for all consumers in a disability group.
   3. The notice and procedural requirements for removing one or more LME functions under subsection (d) of this section.
7. The Commission shall adopt rules to ensure that the needs of members of the active and reserve components of the Armed Forces of the United States, veterans, and their family members are met by requiring:
   1. Each LME to have at least one trained care coordination person on staff to serve as the point of contact for TRICARE, the North Carolina National Guard's Integrated Behavioral Health System, the Army Reserve Department of Psychological Health, the United States Department of Veterans Affairs, the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice, and related organizations to ensure that members of the active and reserve components of the Armed Forces of the United States, veterans, and their family members have access to State-funded services when they are not eligible for federally funded mental health or substance abuse services.
   2. LME staff members who provide screening, triage, or referral services to receive training to enhance the services provided to members of the active or reserve components of the Armed Forces of the United States, veterans, and their families. The training required by this subdivision shall include training on at least all of the following:
      1. The number of persons who serve or who have served in the active or reserve components of the Armed Forces of the United States in the LME's catchment area.
      2. The types of mental health and substance abuse disorders that these service personnel and their families may have experienced, including traumatic brain injury, posttraumatic stress disorder, depression, substance use disorders, potential suicide risks, military sexual trauma, and domestic violence.
      3. Appropriate resources to which these service personnel and their families may be referred as needed.

Subject to all applicable State and federal laws and rules established by the Secretary and the Commission, nothing in this subsection shall be construed to preempt or supersede the regulatory or licensing authority of other State or local departments or divisions.

History

(2006-142, s. 4(d); 2007-323, ss. 10.49( l ), (hh); 2007-484, ss. 18, 43.7(a)-(c); 2007-504, s. 1.2; 2008-107, s. 10.15(cc); 2009-186, s. 1; 2009-189, s. 1; 2011-145, s. 19.1(h); 2011-185, s. 6; 2011-291, s. 2.45; 2012-66, s. 2; 2012-83, s. 43; 2017-186, s. 2(nnnnn); 2018-33, s. 6.)

Community Support Providers Appeals Process. - Session Laws 2008-107, s. 10.15A(e1)-(e4), as amended by Session Laws 2009-526, s. 2(c) and Session Laws 2009-550, s. 1.1(c), provides: "(e1) For the purpose of expediting the resolution of community support provider appeals and thereby saving State and federal funds that are paid for services that are found to be unnecessary or otherwise ineligible for payment, the Department shall implement on a temporary basis a community support provider appeals process. The process shall be a substitute for informal provider appeals at the Department level and formal provider appeals by the Office of Administrative Hearings. The community support provider appeals process shall apply to a community support services provider:

"(1) Who is aggrieved by a decision of the Department to reduce, deny, recoup, or recover reimbursement for community support services, or to deny, suspend, or revoke a provider agreement to provide community support services.

"(2) Whose endorsement has been withdrawn or whose application for endorsement has been denied by a local management entity.

"(e2) The community support provider appeals process shall be developed and implemented as follows:

"(1) A hearing under this section shall be commenced by filing a petition with the chief hearings clerk of the Department within 30 days of the mailing of the notice by the Department of the action giving rise to the contested case. The petition shall identify the petitioner, be signed by the party or representative of the party, and shall describe the agency action giving rise to the contested case. As used in this section, 'file or filing' means to place the paper or item to be filed into the care and custody of the chief hearings clerk of the Department and acceptance thereof by the chief hearings clerk, except that the hearing officer may permit the papers to be filed with the hearing officer, in which event the hearing officer shall note thereon the filing date. The Department shall supply forms for use in these contested cases.

"(2) If there is a timely request for an appeal, the Department shall promptly designate a hearing officer who shall hold an evidentiary hearing. The hearing officer shall conduct the hearing according to applicable federal law and regulations and shall ensure that:

"a. Notice of the hearing is given not less than 15 days before the hearing. The notice shall state the date, hour, and place of the hearing and shall be deemed to have been given on the date that a copy of the notice is mailed, via certified mail, to the address provided by the petitioner in the petition for hearing.

"b. The hearing is held in Wake County, except that the hearing officer may, take testimony and receive evidence by telephone or other electronic means. The petitioner and the petitioner's legal representative may appear before the hearing officer in Wake County.

"c. Discovery is no more extensive or formal than that required by federal law and regulations applicable to the hearings. Prior to and during the hearing, a provider representative shall have adequate opportunity to examine the provider's own case file. No later than five days before the date of the hearing, each party to a contested case shall identify each witness that the party intends to call.

"(3) The hearing officer shall have the power to administer oaths and affirmations and regulate the conduct of the hearing. The following shall apply to hearings held pursuant to this section:

"a. At the hearing, the parties may present such sworn evidence, law, and regulations as are relevant to the issues in the case.

"b. The petitioner and the respondent agency each have a right to be represented by a person of his choice, including an attorney obtained at the party's own expense.

"c. The petitioner and the respondent agency shall each have the right to cross-examine witnesses as well as make a closing argument summarizing his view of the case and the law.

"d. The appeal hearing shall be recorded. If a petition for judicial review is filed the Department shall include a copy of the recording of the hearing as part of the official record. The recording of the appeal hearing may be erased or otherwise destroyed 180 days after the final decision is mailed as provided in G.S. 108A-79(i)(5).

"(4) The hearing officer shall decide the case based upon a preponderance of the evidence, giving deference to the demonstrated knowledge and expertise of the agency as provided in G.S. 150B-34(a). The hearing officer shall prepare a proposal for the decision, citing relevant law, regulations, and evidence, which shall be served upon the petitioner or the petitioner's representative by certified mail, with a copy furnished to the respondent agency.

"(5) The petitioner and the respondent agency shall have 15 days from the date of the mailing of the proposal for decision to present written arguments in opposition to or in support of the proposal for decision to the designated official of the Department who will make the final decision. If neither written arguments are presented, nor extension of time granted by the final agency decision maker for good cause, within 15 days of the date of the mailing of the proposal for decision, the proposal for decision becomes final. If written arguments are presented, such arguments shall be considered and the final decision shall be rendered. The final decision shall be rendered not more than 180 days from the date of the filing of the petition. This time limit may be extended by agreement of the parties or by final agency decision maker, for good cause shown. The final decision shall be served upon the petitioner or the petitioner's representative by certified mail, with a copy furnished to the respondent agency. In the absence of a petition for judicial review filed pursuant to subsection (f) of this section, the final decision shall be binding upon the petitioner and the Department.

"(6) A petitioner who is dissatisfied with the final decision of the Department may file, within 30 days of the service of the decision, a petition for judicial review in the Superior Court of Wake County or of the county from which the case arose. The judicial review shall be conducted according to Article 4 of Chapter 150B of the General Statutes.

"(7) In the event of a conflict between federal law or regulations and State law or regulations, federal law or regulations shall control. This section applies to all petitions that are filed by a Medicaid community support services provider on or after July 1, 2008, and for all Medicaid community support services provider petitions that have been filed at the Office of Administrative Hearings previous to July 1, 2008, but for which a hearing on the merits has not been commenced prior to that date. The requirement that the agency decision must be rendered not more than 180 days from the date of the filing of the petition for hearing shall not apply to (i) community support services provider petitions that were filed at the Office of Administrative Hearings or (ii) requests for a hearing under the Department's informal settlement process prior to the effective date of this act. The Office of Administrative Hearings shall transfer all cases affected by this section to the Department of Health and Human Services within 30 days of the effective date of this section. This act preempts the existing informal appeal process and reconsideration review process at the Department of Health and Human Services and the existing appeal process at the Office of Administrative Hearings with regard to all appeals filed by Medicaid community support services providers under the Medical Assistance program.

"(e3) Notwithstanding any other provision of law to the contrary, the Department of Health and Human Services may, pursuant to its statutory authority or federal Medicaid requirements, suspend the endorsement or Medicaid participation of a provider of community support services pending a final agency decision based on a fair hearing of the provider's appeal filed with the Department under its community support provider appeal process. A provider of community support services whose endorsement, Medicaid participation, or services have been suspended is not entitled to payment during the period the appeal is pending, and the Department shall make no such payment to the provider during that period. If the final agency decision is in favor of the provider, the Department shall remove the suspension, commence payment for provider services, and reimburse the provider for payments withheld during the period of appeal. Contracts between the Department or a local management entity and the provider shall contain a provision indicating the circumstances under which a provider may appeal an agency decision and giving notice of the suspension of payments to the provider while the appeal is pending. This subsection applies to community support provider appeals pending in the Department of Health and Human Services or the Office of Administrative Hearings, as applicable, on and after July 1, 2008.

"(e4) The Department's community support provider appeals process established under this section shall expire July 1, 2010. The Department shall report to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Fiscal Research Division on March 1, 2009, October 1, 2009, and March 1, 2010, on the effectiveness and efficiency of the community support provider appeals process."

Session Laws 2008-107, s. 10.15A(j), provides: "The Department of Health and Human Services, Division of Medical Assistance, shall adopt a policy reducing the maximum allowable hours for community support services to eight hours per week. This subsection does not apply to community support services offered under a Medicaid managed care, capitated at-risk waiver."

1915(b)/(c) Medicaid Waivers. - Session Laws 2010-31, s. 10.24(a), (b), provided: "(a) The Department of Health and Human Services (Department) shall select up to two additional Local Management Entities (LMEs) to implement the capitated 1915 (b)/(c) Medicaid waiver as a demonstration program during the 2010-2011 fiscal year. The waiver program shall include all Medicaid-covered mental health, developmental disabilities, and substance abuse services. Expansion of the waiver to additional LMEs shall be contingent upon approval by the Centers for Medicare and Medicaid Services.

"(b) The Department shall conduct an evaluation of the capitated 1915(b)/(c) Medicaid waiver demonstration program sites to determine the programs' impact on consumers with developmental disabilities. The evaluation shall include a satisfaction survey of consumers. The Department shall consider the impact on ICF/MR facilities included in the waiver to determine and, to the extent possible, minimize potential inconsistencies with the DMA-ICF/MR rate plan and the requirements of G.S. 131E-176 and G.S. 131E-178 without negatively impacting the viability and success of the waiver program. The Department shall consult with stakeholders and evaluate all other waiver options, including the possibility of a waiver without a 1915(b)/(c) combination. The Department shall report to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Fiscal Research Division no later than April 1, 2012, after which time the Department may expand the capitated 1915(b)/(c) Medicaid waiver to additional LMEs.

"The Department shall not approve any expansion of the Piedmont Behavioral Healthcare LME (PBH) beyond its existing catchment area until after the Department has completed its evaluation and made its report pursuant to this subsection."

Session Laws 2010-31, s. 10.24(a), (b) was repealed by Session Laws 2011-102, s. 1.

Session Laws 2011-102, s. 2, provides: "The Department of Health and Human Services shall implement additional capitated 1915(b)(c) Medicaid waivers during the 2011-2012 fiscal year through a Request for Application (RFA) process for LME applicants who prove readiness. The Department shall consult with stakeholders during the approval process. The waiver program shall include all Medicaid-covered mental health, developmental disabilities, and substance abuse services. Expansion of the waiver is contingent upon approval by the Centers for Medicare and Medicaid Services."

Session Laws 2011-264, s. 1, as amended by Session Laws 2012-151, s. 13(a) and (b), provides: "(a) The Department of Health and Human Services (Department) shall proceed with statewide restructuring of the management responsibilities for the delivery of services for individuals with mental illness, intellectual and developmental disabilities, and substance abuse disorders through expansion of the 1915(b)/(c) Medicaid Waiver. It is the intent of the General Assembly that expansion of the 1915(b)/(c) Medicaid Waiver will be completed by July 1, 2013, and will result in the establishment of a system that is capable of managing all public resources that may become available for mental health, intellectual and developmental disabilities, and substance abuse services, including federal block grant funds, federal funding for Medicaid and Health Choice, and all other public funding sources. In implementing the restructuring and expansion authorized in this section, the Department shall do all of the following:

"(1) Establish accountability for the development and management of a local system that ensures easy access to care, the availability and delivery of necessary services, and continuity of care for consumers in need of mental health, intellectual and developmental disabilities, and substance abuse services.

"(2) Maintain fidelity to the Piedmont Behavioral Health (PBH) demonstration model, a proven system for the operation of all public resources for mental health, developmental disabilities, and substance abuse services.

"(3) Designate an area authority for mental health, developmental disabilities, and substance abuse services to assume responsibility for all aspects of Waiver management. The following operational models are acceptable:

"a. Merger model: A single larger LME is formed from the merger of two or more LMEs.

"b. Interlocal agreement among LMEs: A single LME is identified as the leader for all Waiver operations, financial management, and accountability for performance measures.

"(4) Use managed care strategies, including care coordination and utilization management, to reduce the trend of escalating costs in the State Medicaid program while ensuring medically necessary care and deploy a system for the allocation of resources based on the reliable assessment of intensity of need. The Department shall design these strategies to efficiently direct consumers to appropriate services and to ensure that consumers receive no more and no less than the amount of services determined to be medically necessary and at the appropriate funding level.

"(5) As the 1915(b)/(c) Medicaid Waiver expands statewide, phase out the current CAP-MR/DD Waiver as well as the utilization management functions currently performed by public and private contractors.

"(6) Design the Innovations Waiver in such a way as to serve the maximum number of individuals with intellectual and developmental disabilities within aggregate funding.

"(7) Require LMEs approved to operate a 1915(b)/(c) Medicaid Waiver to do all of the following:

"a. Maintain a local presence in order to respond to the unique needs and priorities of localities.

"b. Implement a process for feedback end exchange of information and ideas to ensure communication with consumers, families, providers, and stakeholders regarding disability-specific and general Waiver operations.

"c. Establish and maintain systems for ongoing communication and coordination regarding the care of individuals with mental illness, intellectual and developmental disabilities, and substance abuse disorders with other organized systems such as local departments of social services, Community Care of North Carolina, hospitals, school systems, the Department of Juvenile Justice, and other community agencies.

"d. Comply with the following operational requirements:

"1. Maintain disability specific infrastructure and competency to address the clinical, treatment, rehabilitative, habilitative, and support needs of all disabilities covered by the 1915(b)/(c) Medicaid Waiver.

"2. Maintain administrative and clinical functions, including requirements for customer service, quality management, due process, provider network development, information systems, financial reporting, and staffing.

"3. Maintain full accountability for all aspects of Waiver operations and for meeting all contract requirements specified by the Department. The Department shall not require LMEs to subcontract any managed care functions or nonservice activities to other entities. However, LMEs that choose to subcontract managed care functions to other entities will be limited to the following:

"I. Information systems.

"II. Customer service (including call center) operations.

"III. Claims processing.

"IV. Provider, enrollment, credentialing, and monitoring.

"V. Professional services.

"VI. Treatment Plan development.

"VII. Referral to services.

"(b) By August 1, 2011, the Department shall select LMEs that have been assessed to meet minimum criteria for Waiver operations according to the requirements of RFA #2011-261 issued on April 1, 2011.

"(c) The Department shall require LMEs that have not been approved by the Department to operate a 1915(b)/(c) Medicaid Waiver by January 1, 2013, to merge with or be aligned through an interlocal agreement with an LME that has been approved by the Department to operate a 1915(b)/(c) Medicaid Waiver. If any LME fails to comply with this requirement, or fails to meet performance requirements of an approved contract with the Department to operate a 1915(b)/(c) Medicaid Waiver, the Department shall assign responsibility for management of the 1915(b)/(c) Medicaid Waiver on behalf of the noncompliant LME to an LME that is successfully operating the Waiver and successfully meeting performance requirements of the contract with the Department. Those LMEs approved to operate the 1915(b)/(c) Medicaid Waiver under an interlocal agreement must have a single LME entity designated as responsible for all aspects of Waiver operations and solely responsible for meeting contract requirements.

"(d) County governments are not financially liable for overspending or cost overruns associated with an area authority's operation of a 1915(b)/(c) Medicaid Waiver. County governments are not financially liable for overspending or cost overruns of Medicaid services associated with a county program or multicounty program's operation of a 1915(b)/(c) Medicaid Waiver beyond the county program or multicounty program's Medicaid risk reserve and Medicaid fund balance amounts.

"(e) Providers of targeted case management under the CAP-MR/DD Waiver are qualified to provide the 1915(c) service known as Community Guide under the Innovations Waiver. During the first year of assuming responsibility for Waiver operations, LMEs shall offer to contract with providers that were previously approved to provide targeted case management to individuals with intellectual and developmental disabilities under the CAP-MR/DD Waiver, for the provision of Community Guide services.

"(f) By December 31, 2011, the Department shall determine the feasibility of adding habilitation services to the State Medicaid Plan through the 1915(i) Option as a strategy to address the needs of Medicaid enrollees with IDD who are not enrolled in the Innovations Waiver and are not residing in an intermediate care facility for the mentally retarded (ICF-MR facility).

"(g) The Department shall consider the impact on ICF-MR facilities included in the 1915(b)/(c) Medicaid Waiver to determine and, to the extent possible, minimize potential inconsistencies with the requirements of G.S. 131E-176 and G.S. 131E-178 without negatively impacting the viability and success of the 1915(b)/(c) Medicaid Waiver programs.

"(h) The Department shall discontinue the pilot program to administer the Supports Intensity Scale to people with intellectual and developmental disabilities in non-Waiver LMEs.

"(i) The Department shall establish written policies ensuring alignment of objectives and operational coordination of the 1915(b)/(c) Medicaid Waiver and the care of individuals with mental illness, intellectual and developmental disabilities, and substance abuse disorders with other organized systems under the auspices of the Department, including Community Care of North Carolina.

"(j) In the development of the budget for the 2013-2015 fiscal biennium and subsequent biennia, the General Assembly shall consider a reinvestment of at least fifteen percent (15%) of the total projected State savings for that biennium from the operation of the 1915(b)/(c) Waiver, for the purpose of expanding the number of consumers served by the Innovations 1915(c) Medicaid Waiver, or for the purpose of expanding other services that are designed to meet the needs of individuals with intellectual and developmental disabilities.

"(k) By October 1, 2011, the Department, in coordination with the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, the Division of Medical Assistance, LMEs, PBH, and with stakeholder input, shall submit to the appropriate Oversight Committee of the General Assembly a strategic plan delineating specific strategies and agency responsibilities for the achievement of the objectives and deadlines set forth in this Act.

"( l ) The Department shall submit status reports to the General Assembly on the restructuring and expansion authorized in this section on January 1, 2012, April 1, 2012, October 1, 2012, February 1, 2013, and October 1, 2013."

For provisions pertaining to actions by the Secretary to ensure effective management of behavioral health services under the 1915(b)/(c) Medicaid Waiver, see G.S. 122C-124.2, as added by Session Laws 2013-85, s. 2, effective June 12, 2013.

Behavioral Health Clinical Integration and Performance Monitoring. - Session Laws 2013-360, s. 12F.4A(a)-(e), as amended by Session Laws 2017-57, s. 11F.16, provides: "(a) The Department of Health and Human Services shall require local management entities, including local management entities that have been approved to operate the 1915(b)/(c) Medicaid Waiver (LME/MCOs), to implement clinical integration activities with Community Care of North Carolina (CCNC) through Total Care, a collaborative initiative designed to improve and minimize the cost of care for patients who suffer from comorbid mental health or substance abuse and primary care or other chronic conditions.

"(b) The Department shall ensure that, by no later than January 1, 2014, all LME/MCOs submit claims data, including to the extent practical, retrospective claims data and integrated payment and reporting system (IPRS) data, to the CCNC Informatics Center and to the Medicaid Management Information System. Upon receipt of this claims data, CCNC shall provide access to clinical data and care management information within the CCNC Informatics Center to LME/MCOs and authorized behavioral health providers to support (i) treatment, quality assessment, and improvement activities or (ii) coordination of appropriate and effective patient care, treatment, or habilitation.

"(c) The Department, in consultation with CCNC and the LME/MCOs, shall develop quality and performance statistics on the status of mental health, developmental disabilities, and substance abuse services, including, but not limited to, variations in total cost of care, clinical outcomes, and access to and utilization of services.

"(d) The Department shall, within available appropriations and as deemed necessary by the Department, expand or alter existing contracts by mutual agreement of all parties to the contract in order to implement the provisions of this section.

"(e) Repealed by Session Laws 2017-57, s. 11F.16, effective July 1, 2017."

Editor's Note. - Session Laws 2006-66, s. 10.32(b), as amended by Session Laws 2006-221, s. 12, provides: "The Secretary shall review and revise the LME systems management cost model to provide adequate funds for LMEs to fully implement the functions outlined in G.S 122C-115.4(b) as enacted in Section 4 of this act. The Secretary shall consult with the Joint Legislative Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services priorto implementing a revised cost model.

"For the 2006-2007 fiscal year and until the revised cost model is implemented, the Department shall maintain the 2005-2006 level of funding to LMEs for all LME functions except the following:

"(1) Up to thirteen million three hundred thirty-three thousand four hundred eighty-one dollars ($13,333,481) for utilization review; and

"(2) Up to twelve million one hundred fifty-six thousand forty-two dollars ($12,156,042) for claims processing.

"Any savings of State appropriations realized from the revised cost model shall be reallocated to State-funded services for mental health, developmental disabilities, and substance abuse services.

"Funds withdrawn for LME administrative functions shall be reallocated to other LMEs to be used to provide mental health, developmental disabilities, and substance abuse services. The ten percent (10%) reduction authorized under G.S. 122C-155(a1), as enacted by this section, is in addition to funding limitations of this subsection."

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'."

Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year."

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2007-323, s. 10.49(ee), as amended by Session Laws 2008-107, s. 10.15A(i) and (k), and as amended by Session Laws 2008-118, s. 3.11, provides: "This subsection does not apply to community support services offered under a Medicaid managed care, capitated, at-risk waiver. For all other community support services, for the purpose of avoiding overutilization of community support services and overexpenditure of funds for these services, the Department of Health and Human Services shall immediately conduct an in-depth evaluation of the use and cost of community support services to identify existing and potential areas of overutilization and overexpenditure. The Department shall also adopt or revise as necessary management policies and practices that will ensure that at a minimum:

"(1) There is in place a list of community support services that are appropriate to meet the critical needs of the client and are cost effective;

"(2) Community support services are appropriately utilized based on the critical needs of the client, and utilization is monitored routinely to ensure against overutilization;

"(3) That expenditures for services are controlled to the maximum extent possible without unnecessarily impairing service quality and efficiency;

"(4) Service providers are fully competent to provide each service, to provide the service in the most efficient manner, and that services and providers meet standards of protocol adopted by the Department. To this end, endorsement shall be based on compliance with: a Medicaid service-specific checklist, rules for Mental Health, Developmental Disabilities, and Substance Abuse Services, client rights rules in community Mental Health, Developmental Disabilities, and Substance Abuse Services, the Medicaid service records manual, and other Medicaid requirements as stipulated in the participation agreement with the Division of Medical Assistance. In accordance with G.S. 122C-115.4, an LME may remove a provider's endorsement;

"(5) All community support services are subject to prior approval.

"(6) If additional hours are authorized, the LME may participate in the development of the person-centered plan as part of its care coordination and quality management function as defined in G.S. 122C-115.4. Sixty days after the tiered rates required under subsection (b) of this section have been implemented by the Department, thirty-five percent (35%) of community support services must be delivered by qualified professionals. Six months thereafter fifty percent (50%) of community support services must be delivered by qualified professionals.

"(7) Based on standards of care and practice, a stringent clinical review process for authorization of services is implemented uniformly and in accordance with State guidelines;

"(8) Additional record audits of providers are conducted on a routine basis to continually ensure compliance with Medicaid requirements;

"(9) Post-payment clinical reviews are conducted at the local level to ensure that consumers receive the appropriate level and intensity of care;

"(10) Beginning October 1, 2007, and monthly thereafter, report to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services. The report shall include the following:

"a. The number of consumers of community support services by month, segregated by adult and child;

"b. The number of units of community support services billed and paid by month, segregated by adult and child;

"c. The amount paid for community support by month, segregated by adult and child;

"d. Of the numbers provided in sub-subdivision b. of this subdivision, identify those units provided by a qualified professional and those provided by a paraprofessional;

"e. The length of stay in community support, segregated by adult and child;

"f. The number of clinical post payment reviews conducted by LMEs and a summary of those findings;

"g. The total number of community support providers and the number of newly enrolled, re-enrolled, or terminated providers, and if available, reasons for termination;

"h. The number of community support providers that have been referred to DMA's Program Integrity Section, the Division's 'Rapid Action response' committee; or the Attorney General's Office;

"i. The utilization of other, newly enhanced mental health services, including the number of consumers served by month, the number of hours billed and paid by month, and the amount expended by month;

"(11) If possible, modify the Medicaid claims payment processing system so that providers will be required to identify, by claim, whether the service was provided by a qualified professional or a paraprofessional; and

"(12) The Department of Health and Human Services and the Department of Public Instruction shall amend their Memorandum of Agreement to ensure that each local education agency develops its own list of approved providers and individual service providers authorized to provide services on campus as provided under the Federal Safe Schools Act.

"The Department shall report not later than November 1, 2007, on the list of community support services determined to be appropriate. Not later than March 1, 2008, the Department shall provide a detailed report on the implementation and status of each of the activities required by this subsection to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, and the Fiscal Research Division. The report shall also include clear standards for determining local management entity capability to perform utilization review and utilization management and clear statewide standards for utilization review and utilization management. These standards shall include (i) determination of medical necessity; (ii) an authorization process that includes the use of standardized forms; (iii) concurrent review procedures; (iv) recipient appeals process; (v) minimum staffing requirements; (vi) requirements for data collection and reporting; and (vi) performance criteria for the LMEs and outside vendor.

"In order to ensure full compliance with the laws of this State on the implementation of mental health reform, the Department shall, by January 1, 2008, adopt statewide standardized authorization procedures and processes for Medicaid utilization review. Before July 1, 2008, (i) up to six LMEs that meet those standards (not including LMEs approved for 1915(b) waivers) may, under contract with the outside vendor, complete the utilization review process for enhanced benefit and CAP MR/DD services for the LMEs' respective catchment areas; (ii) the Department shall have a process outlined that would enable all other LMEs to meet the standards required for completing the utilization review process under contract with the outside vendor; (iii) the Department shall report on the implementation of utilization review, including the utilization review process, subcontract details, and funding levels, to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division. The Department shall ensure that all Medicaid utilization review contracts with outside vendors, as required under this subsection, that are executed, renewed, or extended after the effective date of this act, are in compliance with and do not impair, interfere with, or otherwise prohibit the implementation of this subsection. Prior to renewing, extending, or entering into a contract with an outside vendor for utilization review under this subsection, the Department shall consult with the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services."

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2007-484, s. 43.7(a), repealed amendments to G.S. 112C-115.4(b)(5) provided that House Bill 627, 2007 Regular Session [2007-504] becomes law. Amendments to G.S. 112C-115.4(b)(5) by Session Laws 2007-504, s. 1.2, and Session Laws 2007-323, s. 10.49( l ), as amended by 2007-484, s. 43.7(b), are identical.

Session Laws 2008-107, s. 10.15A(b), provides: "In order to ensure accountability for services provided and funds expended for community services, the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall develop a tiered rate structure to replace the blended rate currently used for community support services. Under the new tiered structure, services that are necessary but do not require the skill, education, or knowledge of a qualified professional should not be paid at the same rate as services provided by qualified skilled professionals. The Department shall not implement the tiered rate structure until 15 days after it has notified the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services. The Department shall report on the development of the structure to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services not later than October 1, 2008."

Session Laws 2008-107, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2008'."

Session Laws 2008-107, s. 30.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2008-2009 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2008-2009 fiscal year."

Session Laws 2008-107, s. 30.5, is a severability clause.

Session Laws 2010-31, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2010'."

Session Laws 2010-31, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2010-2011 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2010-2011 fiscal year."

Session Laws 2010-31, s. 32.6, is a severability clause.

Session Laws 2011-185, s. 8(a)-(d), provides: "(a) The Division of Mental Health, Developmental Disabilities, and Substance Abuse Services of the Department of Health and Human Services shall, in conjunction with the Citizen Soldier Support Program, the Governor's Focus on Servicemembers, Veterans, and Their Families, the North Carolina Division of Veterans Affairs, the United States Department of Veterans Affairs, and other appropriate organizations, develop a training curriculum to be targeted at the following types of organizations:

"(1) Crisis workers, including mental health and addiction services staff on mobile crisis teams; screening, triage, and referral (STR) teams; public safety officers; crisis intervention teams (CITs); emergency management technicians (EMTs); disaster and emergency response teams; local sheriffs' offices; and local Red Cross chapters.

"(2) Veterans service organizations and veterans service officers.

"(3) Professional advocacy and support organizations, including the National Alliance on Mental Illness North Carolina, the Traumatic Brain Injury Association of North Carolina, and other nonprofit organizations that have a mission to serve members of the active duty and reserve components, veteran members of the military, and their families.

"(4) Military chaplains.

"(b) The training curriculum shall include information about the following core issues:

"(1) The types of mental health and substance abuse disorders that service personnel and their families may have experienced, including traumatic brain injury (TBI), posttraumatic stress disorder (PTSD), military sexual trauma (MST), depression, substance use disorder (SUD), potential suicide risks, or domestic violence.

"(2) Strategies to encourage eligible veterans to enroll in and access services through the VA system, including opportunities to enroll former military members with previously undiagnosed PTSD, MST, TBI, or SUD, and those who left under less than honorable discharges into the VA system, if the reason for the discharge was due to behavioral health problems that arose or were exacerbated through military service.

"(3) Available referral sources through TRICARE, the United States Department of Veterans Affairs, Military One Source, Army One Source, Defense Centers of Excellence, Deployment Health Clinical Center, the North Carolina National Guard's Integrated Behavioral Health System, Local Management Entities, the North Carolina Department of Health and Human Services (DHHS) Office of Citizen Services, North Carolina Health Info, Federally Qualified Health Centers, professional advocacy and support services, and other community resources.

"(c) That portion of the training curriculum directed towards crisis workers, professional advocacy and support organizations, and faith communities shall include information about the following:

"(1) The number of North Carolinians who are serving or who have served in the active or reserve components of the Armed Forces of the United States.

"(2) Military culture.

"(3) The average number of deployments, length of time in conflict zones, and potential injuries these members may have faced, particularly those who have served recently in Iraq or Afghanistan.

"(4) The potential impact of the deployment cycle on family members and children. This information shall include information about resiliency skills, intervention skills, resources, and community supports, with a focus on the critical role of the faith community in the provision of assistance with needed service, personal support, and, when necessary, grief counseling.

"(5) Early identification of individual or family members with mental health or substance abuse disorders and appropriate referral sources.

"(d) On or before July 1, 2012, the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall report on the curriculum developed pursuant to this section to the Joint Legislative Health Care Oversight Committee, the House of Representatives and Senate Appropriations Subcommittees on Health and Human Services, and the House of Representatives Committee on Homeland Security, Military, and Veterans Affairs."

Session Laws 2012-171, ss. 1-3 provide: "1. Qualified provider. - The Department of Health and Human Services (Department) shall ensure that Critical Access Behavioral Health Agencies (CABHAs) are the only providers of the following Medicaid services: (i) Community Support Team; (ii) Intensive In-Home; and (iii) Child and Adolescent Day Treatment. CABHAs shall provide these services in accordance with all of the following:

"(1) State statutory requirements regulating the provision of mental health and substance abuse services in Chapter 122C of the General Statutes.

"(2) Chapters 21 through 25 and Chapter 27 of Title 10A of the North Carolina Administrative Code.

"(3) Clinical policy requirements specified in Medicaid Clinical Coverage Policy, Section 8, and in the 1915(b) MH/DD/SAS Health Plan Waiver.

"(4) Federal Medicaid policy as outlined in 42 C.F.R. Chapter IV, Subchapter C.

"2. Required services. - Each CABHA shall, at a minimum, provide comprehensive clinical assessment, medication management, outpatient therapy, and at least two of the following listed services within an age and disability-specific continuum:

"(1) Intensive In-Home.

"(2) Community Support Team.

"(3) Child and Adolescent Day Treatment.

"(4) Substance Abuse Intensive Outpatient Program.

"(5) Substance Abuse Comprehensive Outpatient Treatment.

"(6) Child and Adolescent Residential Treatment Level II - Family and Program Type, Level III, or Level IV (provision of multiple residential service levels counts as one service).

"(7) Psychosocial Rehabilitation.

"(8) Assertive Community Treatment Team.

"(9) Multi-Systemic Therapy.

"(10) Partial Hospitalization.

"(11) Substance Abuse Medically Monitored Community Residential Treatment.

"(12) Substance Abuse Non-Medical Community Residential Treatment.

"(13) Outpatient Opioid Treatment.

"(14) Any other mental health or substance abuse service required to be delivered by a CABHA as set forth in the North Carolina State Plan of Medical Assistance as approved by the Centers for Medicare and Medicaid Services (CMS) or in a waiver approved by CMS pursuant to 42 U.S.C. § 1915(b).

"3. Staffing. - In accordance with the North Carolina State Plan of Medical Assistance, the Department shall ensure each CABHA meet the following staffing requirements:

"(1) A medical director who is a medical doctor licensed in North Carolina, enrolled as a provider, and in good standing with the Division of Medical Assistance. The medical director shall provide medical, clinical, and quality management oversight of the agency's CABHA services described in Section 2 of this act.

"(2) A clinical director who shall be one of the following licensed or certified providers:

"a. Licensed medical doctor.

"b. Licensed psychologist.

"c. Licensed clinical social worker.

"d. Licensed psychological associate.

"e. Licensed professional counselor.

"f. Licensed marriage and family therapist.

"g. Licensed nurse practitioner.

"h. Licensed clinical addiction specialist.

"i. Certified clinical supervisor.

"(3) A quality management/training director who shall have any training or experience in quality management or training."

Session Laws 2013-360, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2013.'"

Session Laws 2013-360, s. 38.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2013-2015 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2013-2015 fiscal biennium."

Session Laws 2013-360, s. 38.5, is a severability clause.

Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2017-2019 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2017-2019 fiscal biennium."

Session Laws 2017-57, s. 39.6, is a severability clause.

Session Laws 2018-33, s. 46, made subdivision (b)(7a) of this section, as added by Session Laws 2018-33, s. 6, effective October 1, 2019, and applicable to proceedings initiated on or after that date.

Effect of Amendments. - Session Laws 2007-323, ss. 10.49( l ) and 10.49(hh), effective July 1, 2007, rewrote subdivision (b)(5); and substituted "may neither remove from an LME nor designate another entity as eligible to implement" for "may not remove from an LME" in the introductory paragraph of subsection (d).

Session Laws 2007-484, s. 18, effective August 30, 2007, substituted "G.S. 122C-124.1" for "G.S. 122C-142.1" in the introductory paragraph of subsection (d).

Session Laws 2007-484, s. 43.7(b), effective July 1, 2007, substituted "Conducting customer" for "Customer" in subdivision (b)(5)f.

Session Laws 2007-504, s. 1.2, as amended by Session Laws 2007-484, s. 43.7(c), effective July 1, 2007, inserted "are designated in this subsection and shall not be conducted by any other entity unless an LME voluntarily enters into a contract with that entity under subsection (c) of this section. The primary functions" in the introductory paragraph of subsection (b); inserted "and administrative functions" in subdivision (b)(1); inserted "fails to adequately document the provision of services, fails to provide required staff training" in subdivision (b)(2); rewrote subdivisions (b)(3) and (b)(5); added the concluding paragraph of subsection (b); rewrote subsection (c); in subsection (d), substituted "G.S. 122C-124.1" for "G.S. 122C-142.1," substituted "neither" for "not," and inserted "nor designate another entity as eligible to implement."

Session Laws 2008-107, s. 10.15(cc), effective July 1, 2008, inserted "consecutive" in subdivision (d)(1); and substituted "three" for "six" in subdivisions (d)(3) and (d)(4).

Session Laws 2009-186, s. 1, effective July 1, 2009, added subdivision (b)(8).

Session Laws 2009-189, s. 1, effective June 26, 2009, rewrote subdivision (b)(2).

Session Laws 2011-185, s. 6, effective June 20, 2011, added subsection (g).

Session Laws 2011-291, s. 2.45, effective June 24, 2011, substituted "Joint Legislative Oversight Committee on Health and Human Services" for "Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services" in subsection (e).

Session Laws 2017-186, s. 2(nnnnn), effective December 1, 2017, substituted "Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice" for "Division of Adult Correction" in subdivision (g)(1).

Session Laws 2018-33, s. 6, added subdivision (b)(7a). For effective date and applicability, see editor's note.

§ 122C-116. Status of area authority; status of consolidated human services agency.

1. An area authority is a local political subdivision of the State.
2. A consolidated human services agency is a department of the county.

History

(1977, c. 568, s. 1; c. 679, s. 7; 1979, c. 358, s. 2; 1981, c. 51, ss. 3, 4; c. 539, s. 1; 1983, c. 280; c. 383, s. 2; 1985, c. 589, s. 2; 1995 (Reg. Sess., 1996), c. 690, s. 10; 2012-151, s. 2(a).)

Editor's Note. - Session Laws 1997-7, s. 1, provides that the Secretary of the Department of Human Resources shall dissolve all area mental health, mental retardation, and substance abuse authorities that are comprised of three counties at least two of which each have a population of 90,000 or more according to the most recent decennial federal census. Prior to dissolution, the Secretary shall make the necessary and appropriate provisions relating to personnel and other matters, and dealing with the distribution of the assets and liabilities of the area authority. The dissolution shall take effect not later than June 30, 1997. The Secretary shall permit counties that were part of an area authority dissolved pursuant to this act to provide mental health services as a single-county area authority or to align with another single-county or multicounty area authority.

Session Laws 2012-151, s. 7(a), provides: "Beginning July 1, 2012, and for a period of two years thereafter, the Department of Health and Human Services shall not approve any county's request to withdraw from a multicounty area authority operating under the 1915(b)/(c) Medicaid Waiver. Not later than January 1, 2014, the Secretary shall adopt rules to establish a process for county disengagement that shall at a minimum ensure the following:

"(1) Provisions of service are not disrupted by the disengagement.

"(2) The disengaging county is either in compliance or plans to merge with an area authority that is in compliance with population requirements provided in G.S. 122C-155(a).

"(3) The timing of the disengagement is accounted for and does not conflict with setting capitation rates.

"(4) Adequate notice is provided to the affected counties, the Department of Health and Human Services, and the General Assembly.

"(5) Provisions for distribution of any real property no longer within the catchment area of the area authority."

§ 122C-117. Powers and duties of the area authority.

1. The area authority shall do all of the following:
   1. Engage in comprehensive planning, budgeting, implementing, and monitoring of community-based mental health, developmental disabilities, and substance abuse services.
   2. Ensure the provision of services to clients in the catchment area, including clients committed to the custody of the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety.
   3. Determine the needs of the area authority's clients and coordinate with the Secretary and with the Juvenile Justice Section of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety the provision of services to clients through area and State facilities.
   4. Develop plans and budgets for the area authority subject to the approval of the Secretary. The area authority shall submit the approved budget to the board of county commissioners and the county manager and provide quarterly reports on the financial status of the program in accordance with subsection (c) of this section.
   5. Assure that the services provided by the county through the area authority meet the rules of the Commission and Secretary.
   6. Comply with federal requirements as a condition of receipt of federal grants.
   7. Appoint an area director in accordance with G.S. 122C-121(d).
   8. Develop and submit to the board of county commissioners for approval the business plan required under G.S. 122C-115.2. A multicounty area authority shall submit the business plan to each participating board of county commissioners for its approval. The boards of county commissioners of a multicounty area authority shall jointly submit one approved business plan to the Secretary for approval and certification.
   9. Perform public relations and community advocacy functions.
   10. Recommend to the board of county commissioners the creation of local program services.
   11. Submit to the Secretary and the board of county commissioners service delivery reports, on a quarterly basis, that assess the quality and availability of public services within the area authority's catchment area. The service delivery reports shall include the types of services delivered, number of recipients served, and services requested but not delivered due to staffing, financial, or other constraints. In addition, at least annually, a progress report shall be submitted to the Secretary and the board of county commissioners. The progress report shall include an assessment of the progress in implementing local service plans, goals, and outcomes. All reports shall be in a format and shall contain any additional information required by the Secretary or board of county commissioners.
   12. Comply with this Article and rules adopted by the Secretary for the development and submission of and compliance with the area authority business plan.
   13. Coordinate with Treatment Accountability for Safer Communities for the provision of services to criminal justice clients.
   14. Maintain a 24-hour a day, seven day a week crisis response service. Crisis response shall include telephone and face-to-face capabilities. Crisis phone response shall include triage and referral to appropriate face-to-face crisis providers and shall be initiated within one hour of notification. Crisis services do not require prior authorization but shall be delivered in compliance with appropriate policies and procedures. Crisis services shall be designed for prevention, intervention, and resolution, not merely triage and transfer, and shall be provided in the least restrictive setting possible, consistent with individual and family need and community safety.
   15. An LME that utilizes single stream funding shall, on a biannual basis, report on the allocation of service dollars and allow for public comment at a regularly scheduled LME board of directors meeting.
   16. Before an LME proposes to reduce State funding to HUD group homes and HUD apartments below the original appropriation of State funds, the LME must:
       1. Receive approval of the reduction in funding from the Department, and
       2. Hold a public hearing at an open LME board meeting to receive comment on the reduction in funding.
   17. Have the authority to borrow money with the approval of the Local Government Commission.
   18. Develop and adopt community crisis services plans in accordance with G.S. 122C-202.2.
2. The area authority may contract to provide services to governmental or private entities, including Employee Assistance Programs.
3. The governing unit of the area authority is the area board. All powers, duties, functions, rights, privileges, or immunities conferred on the area authority may be exercised by the area board.
4. Within 30 days of the end of each quarter of the fiscal year, the area director and finance officer of the area authority shall provide the quarterly report of the area authority to the county finance officer. The county finance officer shall provide the quarterly report to the board of county commissioners at the next regularly scheduled meeting of the board. The clerk of the board of commissioners shall notify the area director and the county finance officer if the quarterly report required by this subsection has not been submitted within the required period of time. This information shall be delivered to the county and, at the request of the board of county commissioners, may be presented in person by the area director or the director's designee.
5. A multicounty area authority shall provide to each board of county commissioners of participating counties a copy of the area authority's annual audit. The audit findings shall be presented in a format prescribed by the county and shall be read into the minutes of the meeting at which the audit findings are presented.

History

(1971, c. 470, s. 1; 1973, c. 476, s. 133; c. 661; 1977, c. 568, s. 1; c. 679, s. 7; 1979, c. 358, ss. 1, 3, 14, 23; 1981, c. 51, s. 3; 1983, c. 383, s. 1; 1985, c. 589, s. 2; 1987, c. 830, s. 47(d); 1989, c. 625, s. 14; 1991, c. 215, s. 1; 1995 (Reg. Sess., 1996), c. 749, s. 2; 1997-443, s. 11A.118(a); 1998-202, s. 4(t); 2000-137, s. 4(w).; 2001-437, s. 1.10; 2001-487, s. 79.5; 2005-371, s. 2; 2006-142, s. 3(a); 2009-191, s. 1; 2011-145, s. 19.1( l ); 2012-151, s. 9(a); 2017-186, s. 2(ooooo); 2018-33, s. 7.)

Cross References. - As to quarterly reports by mental health, developmental disabilities, and substance abuse services area authority or county program, see G.S. 153A-453.

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2005-371, s. 1, provides: "The Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, shall develop a central listing of mental health facilities designated for the placement of individuals to be involuntarily committed to assist law enforcement officers and others. The list shall be developed from existing funds appropriated to the Department. The listing shall be accessible on the Internet and implemented not later than October 1, 2005. The Department shall report on the implementation of the listing and the status and compliance of area authorities' crisis response service to the Joint Legislative Commission on Governmental Operations and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services not later than March 1, 2006."

Session Laws 2006-66, s. 10.26(a) through (f), as amended by Session Laws 2006-221, s. 11, and as amended by Session Laws 2007-323, s. 10.49(n), provides: "(a) Of the funds appropriated in this act to the Department of Health and Human Services, the sum of five million two hundred fifty thousand dollars ($5,250,000) for the 2006-2007 fiscal year shall be allocated on a per capita basis and shall be used by area authorities and county programs for operational start-up, capital, or subsidies related to the development and implementation of a plan for a continuum of regional crisis facilities and local crisis services ('crisis plan'). Funds not expended during the 2006-2007 fiscal year shall not revert to the General Fund but shall remain available for the purposes outlined in this section. As used in this section, the term 'crisis' includes services for individuals with mental illnesses, developmental disabilities, and substance abuse addictions.

"(b) Of the funds appropriated in this act for consultants to aid the Division and LMEs to the Department of Health and Human Services, the sum of two hundred twenty-five thousand dollars ($225,000) for the 2006-2007 fiscal year shall be used by the Department to enter into one or more personal services contracts to provide technical assistance to Local Management Entities to develop and implement the crisis plans required under subsection (a) of this section. In addition to any other factors the Department determines are relevant when selecting the consultant, the Department shall take into consideration whether an applicant has prior experience evaluating crisis services at a local, regional, and statewide level, prior experience assisting State and local public agencies develop and implement crisis services, and the ability to implement its responsibilities within the time frames established under this section. Funds not expended during the 2006-2007 fiscal year shall not revert to the General Fund but shall remain available for the purposes outlined in this subsection.

"(c) No later than August 15, 2006, the Secretary shall designate between 15 and 25 appropriate groupings of LMEs for the development of regional crisis facilities. As used in this section, the term 'regional crisis facility' means a facility-based crisis unit that serves an area that may be larger than the catchment area of a single LME, but that provides adequate access to a facility by all consumers in the State. The Secretary shall consult with LMEs in determining the regional groupings. The Secretary shall also take into consideration geographical factors, prior LME groupings and partnerships, and existing community facilities.

"(d) With the assistance of the consultant, the LMEs within a crisis region shall work together to identify gaps in their ability to provide a continuum of crisis services for all consumers and use the funds allocated to them to develop and implement a plan to address those needs. At a minimum, the plan must address the development over time of the following components: 24-hour crisis telephone lines, walk-in crisis services, mobile crisis outreach, crisis respite/residential services, crisis stabilization units, 23-hour beds, facility-based crisis, in-patient crisis, detox, and transportation. Options for voluntary admissions to a secured facility must include at least one service appropriate to address the mental health, developmental disability, and substance abuse needs of adults, and the mental health, developmental disability, and substance abuse needs of children. Options for involuntary commitment to a secured facility must include at least one option in addition to admission to a State facility.

"If all LMEs in a crisis region determine that a facility-based crisis center is needed and sustainable on a long-term basis, the crisis region shall first attempt to secure those services through a community hospital or other community facility. If all LMEs in the crisis region determine the region's crisis needs are being met, the LMEs may use the funds to meet local crisis service needs.

"(e) Each LME shall submit its crisis services plan to the Secretary for review no later than March 1, 2007. The plan shall take into consideration and attempt to utilize all other sources of funds in addition to the funds appropriated under this section. The Secretary shall review each plan to determine whether it meets all the requirements of this section. If the Secretary approves the plan, the LME shall receive implementation funding."

"(f) LMEs shall report monthly to the Department and to the consultant regarding the use of the funds, whether there has been a reduction in the use of State psychiatric hospitals for acute admissions, and any remaining gaps in local and regional crisis services. The consultant and the Department shall report quarterly to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Fiscal Research Division, and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services regarding each LME's proposed and actual use of the funds appropriated under this section. The reporting requirements under this subsection shall expire July 1, 2008."

The Department may allocate up to three percent (3%) of the funds appropriated under subsection (a) of this section to LMEs to assist them with the cost of developing their crisis services plans.

Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'."

Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year."

Session Laws 2006-66, s. 28.6, is a severability clause.

Session Laws 2007-323, s. 10.49(o), provides: "LMEs shall report monthly to the Department and to the consultant regarding the use of the funds, whether there has been a reduction in the use of State psychiatric hospitals for acute admissions, and any remaining gaps in local and regional crisis services. The consultant and the Department shall report quarterly to the Senate Appropriations Committee on Health and Human Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Fiscal Research Division, and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services regarding each LME's proposed and actual use of the funds appropriated under this section. The reporting requirements under this subsection shall expire July 1, 2008."

Session Laws 2007-323, s. 10.49(r)-(s5), provide: "(r) The Department of Health and Human Services shall develop a system for reporting to LMEs aggregate information regarding all visits to community hospital emergency departments due to a mental illness, a developmental disability, or a substance abuse disorder. The report shall be submitted on a quarterly basis beginning with the 2007-2008 fiscal year.

"(s1) Of the funds appropriated in this act to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (Division), the sum of two million five hundred thousand dollars ($2,500,000) for the 2007-2008 fiscal year and the sum of five million dollars ($5,000,000) for the 2008-2009 fiscal year shall be used to develop a pilot program to reduce State psychiatric hospital use and to increase local services for persons with mental illness. Of these funds, the sum of two hundred fifty thousand dollars ($250,000) in each fiscal year shall be retained by the Department. The remainder in each fiscal year shall be allocated to LMEs to be used in accordance with this section. The Division and each selected LME shall implement an 18-month pilot beginning in the 2007-2008 fiscal year, as provided in subsections (s2) and (s3) of this section. It is the intent of the General Assembly to provide funds to expand the pilot program in the 2008-2009 fiscal year. To this end, the Division shall develop a plan for expanded pilots as provided in subsection (s4) of this section.

"(s2) The purpose of the 18-month pilot program developed under subsection (s1) of this section and to be implemented during the 2007-2008 fiscal year is to test a mechanism to reduce psychiatric hospital use by holding an LME financially and clinically responsible for the cost of that use and by providing additional resources to build community capacity. The Department shall select up to three LMEs in the same catchment area and at least one LME in a different catchment area that submit a proposal to participate in the pilot to the Division no later than October 15, 2007. The proposal shall include a plan by the LME to reduce hospital use by a specified amount and an explanation of how the LME expects to accomplish this goal. To facilitate pilot implementation, the Division shall do all of the following:

"(1) Calculate the cost of each LME's 2006-2007 use of State psychiatric hospital services based roughly on that hospital's total budget and the percentage of patients at the hospital admitted from the LME's catchment area.

"(2) Calculate a daily rate for hospital usage based on 2006-2007 statewide usage. The daily rate shall be higher for subsequent admissions by the same patient and higher for patients admitted with a primary diagnosis of substance abuse.

"(3) Provide the results from subdivisions (1) and (2) of this subsection to all LMEs not later than September 1, 2007.

"(4) Award pilot participation not later than November 1, 2007, based upon the proposals that project the largest decrease in use and that the Division believes has the greatest likelihood of succeeding.

"(5) Commence pilot implementation not later than January 1, 2008.

"(s3) Parameters of the pilot developed under subsection (s1) of this section are as follows:

"(1) The pilot LMEs will have a virtual budget account for January 1, 2008, through June 30, 2008, based on one-half of the LME's cost of State psychiatric hospital use during the 2006-2007 fiscal year minus the LME's proposed reduction in hospital use. The virtual budget account will be for the full amount less an agreed upon reduction in the second year of the pilot.

"(2) Every bed day used by patients from that LME's catchment area will be debited against that LME's virtual account.

"(3) The cost of bed days will increase by the agreed upon amount for patients who are repeatedly admitted to the hospital.

"(4) The cost of bed days will increase by the agreed upon amount for patients who are admitted with a primary diagnosis of substance abuse.

"(5) The LME shall have one or more representatives on site at the State psychiatric hospital. The LME representatives shall be involved with patient admissions, development of treatment plans, supervision and delivery of treatment, and development and implementation of discharge plans.

"(6) The pilot LMEs shall use their allocated funds to: (i) build community capacity through start-up operations or payment for local services; (ii) pay for the on-site representative at State psychiatric hospitals; and (iii) pay for patient bed days that are in excess of RFP's projected use.

"(7) Any funds remaining from the two million two hundred fifty thousand dollar ($2,250,000) allocation shall carry over to be used by the LMEs to pay for services to the mentally ill.

"(s4) Based on the experiences of the pilot programs authorized under subsections (s2) and (s3) of this section, the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services (Division) shall work with the existing hospital use study group to develop a proposal for subsequent pilots to reduce hospital use and build community services. The Division may use up to two hundred fifty thousand dollars ($250,000) in each fiscal year to develop the proposal. The Division shall submit an interim report on its progress to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services (Oversight Committee) by October 15, 2007, and a second interim report by February 1, 2008. The Division shall submit its final report to the Oversight Committee by February 1, 2009. The final report shall include a description of the pilot LMEs' success in working with local hospitals and the resulting reductions in the use of emergency rooms, jails, and State facilities.

"(s5) The budgets for the State psychiatric hospitals shall not be reduced during the 2007-2008 fiscal year as a result of the pilot developed under subsection (s1) of this section. However, those budgets shall be adjusted in following years to reflect the previous year's use by the LMEs participating in the pilot program."

Session Laws 2007-323, s. 10.49(s1) through (s5), was repealed by Session Laws 2013-360, s. 12F.2(g), effective July 1, 2013.

Session Laws 2007-323, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2007'."

Session Laws 2007-323, s. 32.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2007-2009 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2007-2009 fiscal biennium."

Session Laws 2007-323, s. 32.5, is a severability clause.

Session Laws 2009-191, s. 2, provides: "The Department of Health and Human Services shall analyze the effectiveness of single stream funding in the expenditure of State funds and review the allocation of service dollars to specific disabilities of LMEs that utilize single stream funding for a year or more and report its findings to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division by June 1, 2010."

Session Laws 2018-33, s. 46, made subdivision (a)(18) of this section, as added by Session Laws 2018-33, s. 7, effective October 1, 2019, and applicable to proceedings initiated on or after that date.

Effect of Amendments. - Session Laws 2005-371, s. 2, effective September 8, 2005, added subdivision (a)(14).

Session Laws 2006-142, s. 3(a), effective July 19, 2006, in subsection (c), substituted "the quarterly report of the area authority to the county finance officer" for "to each member of the board of county commissioners the quarterly report of the area authority," and inserted the second and third sentences.

Session Laws 2009-191, s. 1, effective July 1, 2009, added subdivisions (a)(15) and (16).

Session Laws 2017-186, s. 2(ooooo), effective December 1, 2017, substituted "Juvenile Justice Section of the Division of Adult Correction and" for "Division of" in subdivisions (a)(2) and (a)(3).

Session Laws 2018-33, s. 7, added subdivision (a)(18). For effective date and applicability, see editor's note.

§ 122C-118: Repealed by Session Laws 2001-437, s. 1.11, effective July 1, 2002.

§ 122C-118.1. Structure of area board.

1. An area board shall have no fewer than 11 and no more than 21 voting members. The board of county commissioners, or the boards of county commissioners within the area, shall appoint members consistent with the requirements provided in subsection (b) of this section. The process for appointing members shall ensure participation from each of the constituent counties of a multicounty area authority. If the board or boards fail to comply with the requirements of subsection (b) of this section, the Secretary shall appoint the unrepresented category. The boards of county commissioners within a multicounty area with a catchment population of at least 1,250,000 shall have the option to appoint members of the area board in a manner or with a composition other than as required by this section by each county adopting a resolution to that effect and receiving written approval from the Secretary. A member of the board may be removed with or without cause by the initial appointing authority. The area board may declare vacant the office of an appointed member who does not attend three consecutive scheduled meetings without justifiable excuse. The chair of the area board shall notify the appropriate appointing authority of any vacancy. Vacancies on the board shall be filled by the initial appointing authority before the end of the term of the vacated seat or within 90 days of the vacancy, whichever occurs first, and the appointments shall be for the remainder of the unexpired term.
2. Within the maximum membership provided in  subsection (a) of this section, the membership of the area board shall reside within the catchment area and be composed as follows:
   1. At least one member who is a current county commissioner.
   2. The chair of the local Consumer and Family Advisory Committee (CFAC) or the chair's designee.
   3. At least one family member of the local CFAC, as recommended by the local CFAC, representing the interests of the following:
      1. Individuals with mental illness.
      2. Individuals in recovery from addiction.
      3. Individuals with intellectual or other developmental disabilities.
   4. At least one openly declared consumer member of the local CFAC, as recommended by the local CFAC, representing the interests of the following:
      1. Individuals with mental illness.
      2. Individuals with intellectual or other developmental disabilities.
      3. Individuals in recovery from addiction.
   5. An individual with health care expertise and experience in the fields of mental health, intellectual or other developmental disabilities, or substance abuse services.
   6. An individual with health care administration expertise consistent with the scale and nature of the managed care organization.
   7. An individual with financial expertise consistent with the scale and nature of the managed care organization.
   8. An individual with insurance expertise consistent with the scale and nature of the managed care organization.
   9. An individual with social services expertise and experience in the fields of mental health, intellectual or other developmental disabilities, or substance abuse services.
   10. An attorney with health care expertise.
   11. A member who represents the general public and who is not employed by or affiliated with the Department of Health and Human Services, as appointed by the Secretary.
   12. The President of the LME/MCO Provider Council or the President's designee to serve as a nonvoting member who shall participate only in Board activities that are open to the public.
   13. An administrator of a hospital providing mental health, developmental disabilities, and substance abuse emergency services to serve as a nonvoting member who shall participate only in Board activities that are open to the public.
3. The board of county commissioners may elect to appoint a member of the area authority board to fill concurrently no more than two categories of membership if the member has the qualifications or attributes of the two categories of membership.
4. Any member of an area board who is a county commissioner serves on the board in an ex officio capacity at the pleasure of the initial appointing authority, for a term not to exceed the earlier of three years or the member's service as a county commissioner. Any member of an area board who is a county manager serves on the board at the pleasure of the initial appointing authority, for a term not to exceed the earlier of three years or the duration of the member's employment as a county manager. The terms of members on the area board shall be for three years, except that upon the initial formation of an area board in compliance with subsection (a) of this section, one-third shall be appointed for one year, one-third for two years, and all remaining members for three years. Members shall not be appointed for more than three consecutive terms.
5. Upon request, the board shall provide information pertaining to the membership of the board that is a public record under Chapter 132 of the General Statutes.
6. An area authority that adds one or more counties to its existing catchment area under G.S. 122C-115(c1) shall ensure that the expanded catchment area is represented through membership on the area board, with or without adding area board members under this section, as provided in G.S. 122C-118.1(a).

Except as provided in subdivisions (12) and (13) of this subsection, an individual that contracts with a local management entity (LME) for the delivery of mental health, developmental disabilities, and substance abuse services may not serve on the board of the LME for the period during which the contract for services is in effect. No person registered as a lobbyist under Chapter 120C of the General Statutes shall be appointed to or serve on an area authority board. Of the members described in subdivisions (2) through (4) of this subsection, the boards of county commissioners shall ensure there is at least one member representing the interest of each of the following: (i) individuals with mental illness, (ii) individuals with intellectual or other developmental disabilities, and (iii) individuals in recovery from addiction.

History

(2001-437, s. 1.11(b); 2002-159, s. 40(a); 2006-142, s. 4(e); 2007-504, s. 1.4; 2010-31, s. 10.7; 2012-151, s. 3(a); 2013-85, ss. 6, 7; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor substituted "Article 8 of Chapter 163A" for "Chapter 120C" in subsection (b).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the reference in subsection (b).

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2012-151, s. 3(b), as amended by Session Laws 2013-378, s. 10, provides: "Except as provided in this subsection, all area boards shall meet the requirements of G.S. 122C-118.1, as amended by subsection (a) of this section and Sections 6 and 7 of S.L. 2013-85, no later than October 1, 2013. The requirements of G.S. 122C-118.1 do not apply when both of the following criteria are met:

"(1) An area authority receives approval from the Secretary to realign or merge with another area authority. In this circumstance, the new area board associated with the surviving area authority is not obligated to meet the requirements of G.S. 122C-118.1 until 30 days after the effective date of the realignment or merger, or until April 1, 2014, whichever is sooner.

"(2) A different area authority involved in the same realignment or merger approved by the Secretary pursuant to subdivision (1) of this subsection (i) receives approval on or before October 1, 2013, from the Secretary to dissolve pursuant to G.S. 122C-115.3(b) and initiates plans for the dissolution or (ii) receives a directive on or before October 1, 2013, from the Secretary to dissolve pursuant to G.S. 122C-124.2."

Session Laws 2012-151, s. 7(a), provides: "Beginning July 1, 2012, and for a period of two years thereafter, the Department of Health and Human Services shall not approve any county's request to withdraw from a multicounty area authority operating under the 1915(b)/(c) Medicaid Waiver. Not later than January 1, 2014, the Secretary shall adopt rules to establish a process for county disengagement that shall at a minimum ensure the following:

"(1) Provisions of service are not disrupted by the disengagement.

"(2) The disengaging county is either in compliance or plans to merge with an area authority that is in compliance with population requirements provided in G.S. 122C-155(a).

"(3) The timing of the disengagement is accounted for and does not conflict with setting capitation rates.

"(4) Adequate notice is provided to the affected counties, the Department of Health and Human Services, and the General Assembly.

"(5) Provisions for distribution of any real property no longer within the catchment area of the area authority."

Effect of Amendments. - Session Laws 2006-142, s. 4(e), effective July 19, 2006, rewrote the section.

Session Laws 2007-504, s. 1.4, applicable to appointments made on and after October 1, 2007, deleted "and serving a catchment area with a population of more than 500,000" following "counties" in the second sentence in subsection (a); in subsection (b), inserted "Except as otherwise provided in this subsection" at the beginning of the introductory paragraph, and added the concluding paragraph.

Session Laws 2010-31, s. 10.7, effective July 1, 2010, in subsection (d), added "at the pleasure of the initial appointing authority, for a term not to exceed the member's service as a county commissioner" in the first sentence, added the second sentence, deleted the former second sentence, which read: "The terms of county commissioners on an area board are concurrent with their terms as county commissioners," in the third sentence, inserted "other than county commissioners and county managers," and added the last sentence.

§ 122C-118.2. Establishment of county commissioner advisory board.

1. There is established a county commissioner advisory board for each catchment area, consisting of one county commissioner from each county in the catchment area, designated by the board of commissioners of each county. The county commissioner advisory board shall meet on a regular basis, and its duties shall include serving as the chief advisory board to the area authority and to the director of the area authority on matters pertaining to the delivery of services for individuals with mental illness, intellectual or other developmental disabilities, and substance abuse disorders in the catchment area. The county commissioner advisory board serves in an advisory capacity only to the area authority, and its duties do not include authority over budgeting, personnel matters, governance, or policymaking of the area authority.
2. Each board of commissioners within the catchment area shall designate from its members the commissioner to serve on the county commissioner advisory board. Each board of commissioners may determine the manner of designation, the term of service, and the conditions under which its designee will serve on the county commissioner advisory board.

History

(2013-85, s. 8.)

§ 122C-119. Organization of area board.

1. The area board shall meet at least six times per year.
2. Meetings shall be called by the area board chairman or by three or more members of the board after notifying the area board chairman in writing.
3. Members of the area board elect the board's chairman. The term of office of the area board chairman shall be one year. A county commissioner area board member may serve as the area board chairman.
4. The area board shall establish a finance committee that shall meet at least six times per year to review the financial strength of the area program. The finance committee shall have a minimum of three members, two of whom have expertise in budgeting and fiscal control. The member of the area board who is the county finance officer or individual with financial expertise shall serve as an ex officio member. All other finance officers of participating counties in a multicounty area authority may serve as ex officio members. If the area board so chooses, the entire area board may function as the finance committee; however, its required meetings as a finance committee shall be distinct from its meetings as an area board.

History

(1971, c. 470, s. 1; 1973, c. 455; c. 476, s. 133; c. 1355; 1975, c. 400, ss. 1-4; 1977, c. 568, s. 1; 1979, c. 358, ss. 6, 23; c. 455; 1981, c. 52; 1983, c. 6; 1985, c. 589, s. 2; 1995 (Reg. Sess., 1996), c. 749, s. 4; 2001-437, s. 1.11(c).)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

§ 122C-119.1. Area Authority board members' training.

All members of the governing body for an area authority shall receive initial orientation on board members' responsibilities and annual training provided by the Department which shall include fiscal management, budget development, and fiscal accountability. A member's refusal to be trained shall be grounds for removal from the board.

History

(1995, c. 507, s. 23.3; 1995 (Reg. Sess., 1996), c. 749, s. 5; 2012-151, s. 4(a).)

Editor's Note. - Session Laws 2012-151, s. 4(b), provides: "The North Carolina Department of Health and Human Services, in cooperation with the School of Government and the local management entities, shall develop a standardized core curriculum for the training described in subsection (a) of this section."

§ 122C-120. Compensation of area board members.

1. Area board members may receive as compensation for their services per diem and a subsistence allowance for each day during which they are engaged in the official business of the area board. The amount of the per diem and subsistence allowances shall be established by the area board. The amount of per diem allowance shall not exceed fifty dollars ($50.00). Reimbursement of subsistence expenses shall be at the rates allowed to State officers and employees under G.S. 138-6(a)(3).
2. Area board members may be reimbursed for all necessary travel expenses and registration fees in amounts fixed by the board.

History

(1979, c. 358, s. 28; 1985, c. 589, s. 2; 2000-67, s. 11.18.)

§ 122C-120.1. Job classifications; director and finance officer.

1. The Office of State Human Resources shall develop a job classification for director of an area authority or county program that reflects the skills required of an individual operating a local management entity. The Office of State Human Resources shall also review the job classifications for area authority and county program finance officers to determine whether they reflect the skills necessary to manage the finances of a local management entity. The Commission shall adopt a job classification for director and any new or revised job classifications for finance officers no later than December 31, 2006.
2. The job classifications developed under subsection (a) of this section shall apply to persons newly hired on or after January 1, 2007.

History

(2006-142, s. 4(h); 2013-382, s. 9.1(c).)

Editor's Note. - Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

"(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.'

"(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.'

"(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.'"

Session Laws 2013-382, s. 9.1(c), provides: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary."

Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies."

Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office."

§ 122C-121. Area director.

1. The area director is an employee of the area board, shall serve at the pleasure of the board, and shall be appointed in accordance with G.S. 122C-117(7). As used in this subsection, "employee" means an individual and does not include a corporation, a partnership, a limited liability corporation, or any other business association.
2. The area board shall establish the area director's salary under Article 3 of Chapter 126 of the General Statutes. Notwithstanding G.S. 126-9(b), an area director may be paid a salary that is in excess of the salary ranges established by the State Human Resources Commission. Any salary that is higher than the maximum of the applicable salary range shall be supported by documentation of comparable salaries in comparable operations within the region and shall also include the specific amount the board proposes to pay the director. The area board shall not authorize any salary adjustment that is above the normal allowable salary range without obtaining prior approval from the Director of the Office of State Human Resources.
3. The area board shall not provide the director with any benefits that are not also provided by the area board to all permanent employees of the area program, except that the area board may, in its discretion, offer severance benefits, relocation expenses, or both, to an applicant for the position of director as an incentive for the applicant to accept an offer of employment. The director shall be reimbursed only for allowable employment-related expenses at the same rate and in the same manner as other employees of the area program.
4. The area board shall evaluate annually the area director for performance based on criteria established by the Secretary and the area board. In conducting the evaluation, the area board shall consider comments from the board of county commissioners.
5. The area director is the administrative head of the area program. In addition to the duties under G.S. 122C-111, the area director shall:
   1. Appoint, supervise, and terminate area program staff.
   2. Administer area authority services.
   3. Develop the budget of the area authority for review by the area board.
   4. Provide information and advice to the board of county commissioners through the county manager.
   5. Act as liaison between the area authority and the Department.
6. Except when specifically waived by the Secretary, the area director shall meet all the following minimum qualifications:
   1. Masters degree.
   2. Related experience.
   3. Management experience.
   4. Any other qualifications required under G.S. 122C-120.1.

History

(1971, c. 470, s. 1; 1973, c. 476, s. 133; 1977, c. 568, s. 1; c. 679, s. 7; 1979, c. 358, s. 14; 1981, c. 51, s. 3; 1985, c. 589, s. 2; 2001-437, s. 1.12; 2006-142, s. 4(k); 2007-323, s. 6.20(a); 2012-151, s. 11(c); 2013-339, s. 1; 2013-382, s. 9.1(c).)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

"(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.'

"(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.'

"(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.'"

Session Laws 2013-382, s. 9.1(c), provides: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary."

Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies."

Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office."

Effect of Amendments. - Session Laws 2006-142, s. 4(k), effective July 19, 2006, in subsection (d), inserted "all" following "shall meet" in the introductory language, added subdivision (d)(4); and made minor punctuation changes.

Session Laws 2007-323, s. 6.20(a), effective July 31, 2007, in subsection (a), inserted "shall serve at the pleasure of the board" in the first sentence and substituted the present second sentence for the former, which read: "The area director is the administrative head of the area program"; added subsections (a1) and (a2); in subsection (c), added the first sentence in the introductory paragraph, and substituted "Appoint, supervise, and terminate" for "Appoint and supervise" at the beginning of subdivision (c)(1).

§ 122C-122: Repealed by Session Laws 2012-151, s. 12(a), effective July 12, 2012.

History

(1977, c. 679, s. 7; c. 725, s. 7; 1979, c. 358, s. 26; 1985, c. 589, s. 2; 1987, c. 550, s. 26; repealed by 2012-151, s. 12(a), effective July 12, 2012.)

Editor's Note. - Session Laws 2012-151, s. 12(e), provides: "In order to achieve continuity of care and services, any successor guardian shall make diligent efforts to continue existing contracts entered into under the authority of G.S. 122C-122 where consistent with the best interest of the ward as required by Chapter 35A of the General Statutes."

Former § 122C-122 pertained to public guardians.

§ 122C-123. Other agency responsibility.

Notwithstanding the provisions of G.S. 122C-112(a)(10), G.S. 122C-117(a)(1), G.S. 122C-127, and G.S. 122C-131, other agencies of the Department, other State agencies, and other local agencies shall continue responsibility for services they provide for persons with developmental disabilities.

History

(1987, c. 830, s. 47(e); 1989, c. 625, s. 14; 1995 (Reg. Sess., 1996), c. 690, s. 11.)

§ 122C-123.1. Area authority reimbursement to State for disallowed expenditures.

Any funds or part thereof of an area authority that are transferred by the area authority to any entity including a firm, partnership, corporation, company, association, joint stock association, agency, or nonprofit private foundation shall be subject to reimbursement by the area authority to the State when expenditures of the area authority are disallowed pursuant to a State or federal audit.

History

(1999-237, s. 11.41.)

Editor's Note. - Session Laws 1999-237, s. 11.41, originally enacted this section as G.S. 122C-123A. It was subsequently redesignated as G.S. 122C-123.1 at the direction of the Revisor of Statutes.

§ 122C-124: Repealed by Session Laws 2001-437, s. 1.13(a), effective July 1, 2002.

§ 122C-124.1. Actions by the Secretary when area authority or county program is not providing minimally adequate services.

1. Notice of Likelihood of Action. - When the Secretary determines that there is a likelihood of suspension of funding, assumption of service delivery or management functions, or appointment of a caretaker board under this section within the ensuing 60 days, the Secretary shall so notify in writing the area authority board or the county program and the board of county commissioners of the area authority or county program. The notice shall state the particular deficiencies in program services or administration that must be remedied to avoid action by the Secretary under this section. The area authority board or county program shall have 60 days from the date it receives notice under this subsection to take remedial action to correct the deficiencies. The Secretary shall provide technical assistance to the area authority or county program in remedying deficiencies.
2. Suspension of Funding; Assumption of Service Delivery or Management Functions. - If the Secretary determines that a county, through an area authority or county program, is not providing minimally adequate services to persons in need in a timely manner, or fails to demonstrate reasonable efforts to do so, the Secretary, after providing written notification of the Secretary's intent to the area authority or county program and to the board of county commissioners of the area authority or county program, and after providing the area authority or county program and the boards of county commissioners of the area authority or county program an opportunity to be heard, may:
   1. Withhold funding for the particular service or services in question from the area authority or county program and ensure the provision of these services through contracts with public or private agencies or by direct operation by the Department.
   2. Assume control of the particular service or management functions in question or of the area authority or county program and appoint an administrator to exercise the powers assumed. This assumption of control shall have the effect of divesting the area authority or county program of its powers in G.S. 122C-115.1 and G.S. 122C-117 and all other service delivery powers conferred on the area authority or county program by law as they pertain to this service or management function. County funding of the area authority or county program shall continue when the State has assumed control of the catchment area or of the area authority or county program. At no time after the State has assumed this control shall a county withdraw funds previously obligated or appropriated to the area authority or county program.
3. Appointment of Caretaker Administrator. - In the event that a county, through an area authority or county program, fails to comply with the corrective plan of action required when funding is suspended or when the State assumes control of service delivery or management functions, the Secretary, after providing written notification of the Secretary's intent to the area authority or county program and the applicable participating boards of county commissioners of the area authority or county program, shall appoint a caretaker administrator, a caretaker board of directors, or both.

Upon suspension of funding, the Department shall direct the development and oversee implementation of a corrective plan of action and provide notification to the area authority or county program and the board of county commissioners of the area authority or county program of any ongoing concerns or problems with the area authority's or county program's finances or delivery of services.

Upon assumption of control of service delivery or management functions, the Department shall, in conjunction with the area authority or county program, develop and implement a corrective plan of action and provide notification to the area authority or county program and the board of county commissioners of the area authority or county program of the plan. The Department shall also keep the area authority board and the board of county commissioners informed of any ongoing concerns or problems with the delivery of services.

The Secretary may assign any of the powers and duties of the area director or program director or of the area authority board or board of county commissioners of the area authority or county program pertaining to the operation of mental health, developmental disabilities, and substance abuse services to the caretaker board or to the caretaker administrator as it deems necessary and appropriate to continue to provide direct services to clients, including the powers as to the adoption of budgets, expenditures of money, and all other financial powers conferred on the area authority or county program by law pertaining to the operation of mental health, developmental disabilities, and substance abuse services. County funding of the area authority or county program shall continue when the State has assumed control of the financial affairs of the program. At no time after the State has assumed this control shall a county withdraw funds previously obligated or appropriated to the area authority or county program. The caretaker administrator and the caretaker board shall perform all of these powers and duties. The Secretary may terminate the area director or program director when it appoints a caretaker administrator. Chapter 150B of the General Statutes shall apply to the decision to terminate the area director or program director. Neither party to any such contract shall be entitled to damages. After a caretaker board has been appointed, the General Assembly shall consider, at its next regular session, the future governance of the identified area authority or county program.

History

(2001-437, s. 1.13(b); 2008-107, s. 10.15(ee).)

Effect of Amendments. - Session Laws 2008-107, s. 10.15(ee), effective July 1, 2008, deleted "in accordance with rules adopted by the Secretary or the Commission" following "minimally adequate services" in the introductory language of subsection (b).

§ 122C-124.2. Actions by the Secretary to ensure effective management of behavioral health services under the 1915(b)/(c) Medicaid Waiver.

1. For all local management entity/managed care organizations, the Secretary shall certify whether the LME/MCO is in compliance or is not in compliance with all requirements of subdivisions (1) through (3) of subsection (b) of this section. The Secretary's certification shall be made every six months beginning August 1, 2013. In order to ensure accurate evaluation of administrative, operational, actuarial and financial components, and overall performance of the LME/MCO, the Secretary's certification shall be based upon an internal and external assessment made by an independent external review agency in accordance with applicable federal and State laws and regulations. Beginning on February 1, 2014, and for all subsequent assessments for certification, the independent review will be made by an External Quality Review Organization approved by the Centers for Medicare and Medicaid Services and in accordance with applicable federal and State laws and regulations.
2. The Secretary's certification under subsection (a) of this section shall be in writing and signed by the Secretary and shall contain a clear and unequivocal statement that the Secretary has determined the local management entity/managed care organization to be in compliance with all of the following requirements:
   1. The LME/MCO has made adequate provision against the risk of insolvency and either (i) is not required to be under a corrective action plan in accordance with G.S. 122C-125.2 or (ii) is in compliance with a corrective action plan required under G.S. 122C-125.2.
   2. The LME/MCO is making timely provider payments. The Secretary shall certify that an LME/MCO is making timely provider payments if there are no consecutive three-month periods during which the LME/MCO paid less than ninety percent (90%) of clean claims for covered services within the 30-day period following the LME/MCO's receipt of these claims during that three-month period. As used in this subdivision, a "clean claim" is a claim that can be processed without obtaining additional information from the provider of the service or from a third party. The term includes a claim with errors originating in the LME/MCO's claims system. The term does not include a claim from a provider who is under investigation by a governmental agency for fraud or abuse or a claim under review for medical necessity.
   3. The LME/MCO is exchanging billing, payment, and transaction information with the Department and providers in a manner that complies with all applicable federal standards, including all of the following:
      1. Standards for information transactions and data elements specified in 42 U.S.C. § 1302d-2 of the Healthcare Insurance Portability and Accountability Act (HIPAA), as from time to time amended.
      2. Standards for health care claims or equivalent encounter information transactions specified in HIPAA regulations in 45 C.F.R. § 162.1102, as from time to time amended.
      3. Implementation specifications for Electronic Data Interchange standards published and maintained by the Accredited Standards Committee (ASC X12) and referenced in HIPAA regulations in 45 C.F.R. § 162.920, as from time to time amended.
3. If the Secretary does not provide a local management entity/managed care organization with the certification of compliance required by this section based upon the LME/MCO's failure to comply with any of the requirements specified in subdivisions (1) through (3) of subsection (b) of this section, the Secretary shall do the following:
   1. Prepare a written notice informing the LME/MCO of the provisions of subdivision (1), (2), or (3) of subsection (b) of this section with which the LME/MCO is deemed not to be in compliance and the reasons for the determination of noncompliance.
   2. Cause the notice of the noncompliance to be delivered to the LME/MCO.
   3. Not later than 10 days after the Secretary's notice of noncompliance is provided to the LME/MCO, assign the Contract of the noncompliant LME/MCO to a compliant LME/MCO.
   4. Oversee the transfer of the operations and contracts from the noncompliant LME/MCO to the compliant LME/MCO in accordance with the provisions in subsection (e) of this section.
4. If, at any time, in the Secretary's determination, a local management entity/managed care organization is not in compliance with a requirement of the Contract other than those specified in subdivisions (1) through (3) of subsection (b) of this section, then the Secretary shall do all of the following:
   1. Prepare a written notice informing the LME/MCO of the provisions of the Contract with which the LME/MCO is deemed not to be in compliance and the reasons therefor.
   2. Cause the notice of the noncompliance to be delivered to the LME/MCO.
   3. Allow the noncompliant LME/MCO 30 calendar days from the date of receipt of the notice to respond to the notice of noncompliance and to demonstrate compliance to the satisfaction of the Secretary.
   4. Upon the expiration of the period allowed under subdivision (3) of this subsection, make a final determination on the issue of compliance and promptly notify the LME/MCO of the determination.
   5. Upon a final determination that an LME/MCO is noncompliant, allow no more than 30 days following the date of notification of the final determination of noncompliance for the noncompliant LME/MCO to complete negotiations for a merger or realignment with a compliant LME/MCO that is satisfactory to the Secretary.
   6. If the noncompliant LME/MCO does not successfully complete negotiations with a compliant LME/MCO as described in subdivision (5) of this subsection, assign the Contract of the noncompliant LME/MCO to a compliant LME/MCO.
   7. Oversee the transfer of the operations and contracts from the noncompliant LME/MCO to the compliant LME/MCO in accordance with the provisions in subsection (e) of this section.
5. If the Secretary assigns the Contract of a noncompliant local management entity/managed care organization to a compliant LME/MCO under subdivision (3) of subsection (c) of this section, or under subdivision (6) of subsection (d) of this section, the Secretary shall oversee the orderly transfer of all management responsibilities, operations, and contracts of the noncompliant LME/MCO to the compliant LME/MCO. The noncompliant LME/MCO shall cooperate with the Secretary in order to ensure the uninterrupted provision of services to Medicaid recipients. In making this transfer, the Secretary shall do all of the following:
   1. Arrange for the providers of services to be reimbursed from the remaining fund balance or risk reserve of the noncompliant LME/MCO, or from other funds of the Department if necessary, for proper, authorized, and valid claims for services rendered that were not previously paid by the noncompliant LME/MCO.
   2. Effectuate an orderly transfer of management responsibilities from the noncompliant LME/MCO to the compliant LME/MCO, including the responsibility of paying providers for covered services that are subsequently rendered.
   3. Oversee the dissolution of the noncompliant LME/MCO, including transferring to the compliant LME/MCO all assets of the noncompliant LME/MCO, including any balance remaining in its risk reserve after payments have been made under subdivision (1) of this subsection. Risk reserve funds of the noncompliant LME/MCO may be used only to pay authorized and approved provider claims. Any funds remaining in the risk reserve transferred under this subdivision shall become part of the compliant LME/MCO's risk reserve and subject to the same restrictions on the use of the risk reserve applicable to the compliant LME/MCO. If the risk reserves transferred from the noncompliant LME/MCO are insufficient, the Secretary shall guarantee any needed risk reserves for the compliant LME/MCO arising from the additional risks being assumed by the compliant LME/MCO until the compliant LME/MCO has established fifteen percent (15%) risk reserves. All other assets shall be used to satisfy the liabilities of the noncompliant LME/MCO. In the event there are insufficient assets to satisfy the liabilities of the noncompliant LME/MCO, it shall be the responsibility of the Secretary to satisfy the liabilities of the noncompliant LME/MCO.
   4. Following completion of the actions specified in subdivisions (1) through (3) of this subsection, direct the dissolution of the noncompliant LME/MCO and deliver a notice of dissolution to the board of county commissioners of each of the counties in the dissolved LME/MCO. An LME/MCO that is dissolved by the Secretary in accordance with the provisions of this section may be dissolved at any time during the fiscal year.
6. The Secretary shall provide a copy of each written, signed certification of compliance or noncompliance completed in accordance with this section to the Senate Appropriations Committee on Health and Human Services, the House Appropriations Subcommittee on Health and Human Services, the Legislative Oversight Committee on Health and Human Services, and the Fiscal Research Division.
7. As used in this section, the following terms mean:
   1. Compliant local management entity/managed care organization. - An LME/MCO that has undergone an independent external assessment and been determined by the Secretary to be operating successfully and to have the capability of expanding.
   2. Contract. - The contract between the Department of Health and Human Services and a local management entity for the operation of the 1915(b)/(c) Medicaid Waiver.

History

(2013-85, s. 2; 2018-5, s. 11F.10(d).)

Editor's Note. - The definitions in subsection (g), as enacted by Session Laws 2013-85, s. 2, were in reverse order, and were redesignated at the direction of the Revisor of Statutes to preserve alphabetical order.

Session Laws 2013-85 provides in its preamble: "Whereas, S.L. 2011-264, as amended by Section 13 of S.L. 2012-151, required the Department of Health and Human Services (Department) to restructure the statewide management of the delivery of services for individuals with mental illness, intellectual and developmental disabilities, and substance abuse disorders through the statewide expansion of the 1915(b)/(c) Medicaid Waiver; and

"Whereas, a local management entity anaged care organization (LME/MCO) that is awarded a contract to operate the 1915(b)/(c) Medicaid Waiver was required to maintain fidelity to the Piedmont Behavioral Health (PBH) demonstration model; and

"Whereas, LME/MCOs are acting as Medicaid vendors and the Department must ensure that they are compliant with the provisions of S.L. 2011-264, as amended by Section 13 of S.L. 2012-151, as well as all applicable federal, State, and contractual requirements; Now, therefore, The General Assembly of North Carolina enacts:"

Session Laws 2013-85, s. 11, provides: "By no later than August 1, 2013, the Secretary of the Department of Health and Human Services shall complete an initial certification of compliance, in accordance with G.S. 122C-124.2(a), for each local management entity/managed care organization that has been approved by the Department to operate the 1915(b)/(c) Medicaid Waiver and provide a copy of the certification to the Senate Appropriations Committee on Health and Human Services, the House Appropriations Subcommittee on Health and Human Services, the Legislative Oversight Committee on Health and Human Services, and the Fiscal Research Division."

Session Laws 2018-5, s. 11F.10(a), provides: "The General Assembly finds that a viable State-funded behavioral health system is critical to accomplishing the State's goals for behavioral health, meeting the needs of the covered populations, and achieving the desired outcomes detailed in the Department of Health and Human Services' Strategic Plan for Improvement of Behavioral Health Services. Integral to assessing the State's behavioral health system is the development of a method to determine the viability of local management entities anaged care organizations (LME/MCOs) and the establishment of short-term and intermediate term solvency standards that provide a uniform analysis of each LME/MCO's financial position, provide a mechanism for ongoing assessment of each LME/MCO's viability, inform the State's funding decisions, and enhance short-term and intermediate term planning by the LME/MCOs."

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2018-5, s. 11F.10(d), effective September 1, 2018, rewrote subdivision (b)(1); and substituted "subsection (b)" for "subsection (c)" in the middle of subdivision (c)(1).

§ 122C-125. Area Authority financial failure; State assumption of financial control.

At any time that the Secretary of the Department of Health and Human Services determines that an area authority is in imminent danger of failing financially and of failing to provide direct services to clients, the Secretary, after providing written notification of the Secretary's intent to the area board and after providing the area authority an opportunity to be heard, may assume control of the financial affairs of the area authority and appoint an administrator to exercise the powers assumed. This assumption of control shall have the effect of divesting the area authority of its powers as to the adoption of budgets, expenditures of money, and all other financial powers conferred in the area authority by law. County funding of the area authority shall continue when the State has assumed control of the financial affairs of the area authority. At no time after the State has assumed this control shall a county withdraw funds previously obligated or appropriated to the area authority. The Secretary shall adopt rules to define imminent danger of failing financially and of failing to provide direct services to clients.

Upon assumption of financial control, the Department shall, in conjunction with the area authority, develop and implement a corrective plan of action and provide notification to the area authority's board of directors of the plan. The Department shall also keep the county board of commissioners and the area authority's board of directors informed of any ongoing concerns or problems with the area authority's finances.

History

(1995, c. 507, s. 23.2; 1995 (Reg. Sess., 1996), c. 749, s. 7; 1997-443, s. 11A.118(a).)

§ 122C-125.1: Repealed by Session Laws 2001-437, s. 1.13(a), effective July 1, 2002.

§ 122C-125.2. LME/MCO solvency ranges; formula; corrective action plan.

1. Beginning on September 1, 2018, the Department shall calculate on a quarterly basis a solvency range for each LME/MCO as a sum of the following figures to produce upper and lower range values:
   1. Incurred but not reported claims figure. - The incurred but not reported claims figure shall be calculated by multiplying an LME/MCO's service spending for the preceding 12 months by six and eight-tenths percent (6.8%). If an LME/MCO experiences extenuating circumstances supported by actuarial documentation, then the Department may utilize a percentage other than six and eight-tenths (6.8%) for that LME/MCO.
   2. Net operating liabilities figure. - The net operating liabilities figure shall be calculated by subtracting noncash current accounts receivable from the nonclaims current liabilities, as reported on the LME/MCO's most recent balance sheet. If the noncash accounts receivable are greater than the nonclaim liabilities, then the value for the net operating liabilities figure is zero.
   3. Catastrophic or extraordinary events range. - The catastrophic or extraordinary events range shall be calculated as the range between a lower figure and an upper figure. The lower figure shall be calculated by multiplying an LME/MCO's service expenditures from the preceding 12 months by four and fifteen-hundredths percent (4.15%). The upper figure shall be calculated by multiplying an LME/MCO's service expenditures from the preceding 12 months by eight and three-tenths percent (8.3%).
   4. Required intergovernmental transfers figure. - The required intergovernmental transfers figure is the amount of funds needed by an LME/MCO to make any intergovernmental transfers required by law over the subsequent 24 months.
   5. Projected operating loss figure. - The projected operating loss figure is the projected net loss for an LME/MCO over the subsequent 24 months. In projecting the net loss for an LME/MCO, the Department shall use the net loss of the LME/MCO in the preceding 12 months adjusted for any changes in single-stream funding, intergovernmental transfers, or other factors known to the Department that will impact the LME/MCO's net loss over the subsequent 24 months. If a net profit is projected for an LME/MCO, then this figure is zero.
   6. Reinvestment plan figure. - The reinvestment plan figure is the amount required for all qualifying expenditures contained in an LME/MCO's reinvestment plans over the subsequent 36 months. To qualify as an expenditure under this subdivision, the expenditure must be related to one of the following:
      1. An initiative that supports specific goals or health status outcomes of the State in relation to the State's behavioral health needs.
      2. An initiative that meets a State behavioral health need, as defined in law or by the Department.
      3. Funding for infrastructure that supports the effective and efficient operation of the LME/MCO.
      4. Funding for a facility within the LME/MCO catchment area that is necessary to meet to the needs of the population served by the LME/MCO.
      5. New or expanded initiatives and programmatic improvements to the State behavioral health system.
      6. Working capital to be utilized to fund changes in rates, operations, or programs.
      7. Assistance to public school units within the LME/MCO catchment area for student behavioral health needs.
2. Upon calculation of the solvency range for each LME/MCO required by subsection (a) of this section, the Department shall compare the cash balance of each LME/MCO to its solvency range. For purposes of this subsection, the cash balance shall consist of the total of the LME/MCO's cash and investment balances, including its Medicaid Risk Reserve, as reported on the LME/MCO's most recent balance sheet.
   1. If an LME/MCO's cash balance is five percent (5%) or more below the lower solvency range figure or five percent (5%) or more above the upper solvency range figure, then the Department shall notify the LME/MCO and the Fiscal Research Division of the General Assembly of the comparison results. Within 30 days from providing notice to the LME/MCO, the Department shall develop, in collaboration with the LME/MCO, a corrective action plan for the LME/MCO. The corrective action plan must include specific actions, which may include changes to the LME/MCO's reinvestment plan, utilization management, and capitation or provider rates, to bring the LME/MCO's cash balance within the solvency range, as well as a time line for implementation of these actions.
   2. If an LME/MCO's cash balance is neither five percent (5%) or more below the lower solvency range figure nor five percent (5%) or more above the upper solvency range figure, then the Department shall notify the LME/MCO and the Fiscal Research Division of the General Assembly of the LME/MCO's solvency range for the quarter and the Department's comparison of the LME/MCO's cash balance to this solvency range. No further action shall be required.
3. Beginning on October 15, 2018, the Department shall submit a quarterly report to the Joint Legislative Oversight Committee on Medicaid and NC Health Choice, the Joint Legislative Oversight Committee on Health and Human Services, and the Fiscal Research Division detailing the solvency ranges and comparisons required under subsection (b) of this section for each LME/MCO. The Department shall include in its report a copy of any new corrective action plans developed as a result of those comparisons, as well as any status updates on previously reported corrective action plans.
4. For any calculation required by this section that is based upon the preceding 12 months, the Department is authorized to make adjustments to that calculation that take into account any changes in an LME/MCO's catchment area that occurred during that 12-month period.

Upon comparison of an LME/MCO's cash balance to its solvency range, the Department shall take one of the following actions:

History

(2018-5, s. 11F.10(b); 2020-49, s. 5.)

Editor's Note. - Session Laws 2018-5, s. 11F.10(f), made this section effective June 12, 2018.

Session Laws 2018-5, s. 11F.10(a), provides: "(a) The General Assembly finds that a viable State-funded behavioral health system is critical to accomplishing the State's goals for behavioral health, meeting the needs of the covered populations, and achieving the desired outcomes detailed in the Department of Health and Human Services' Strategic Plan for Improvement of Behavioral Health Services. Integral to assessing the State's behavioral health system is the development of a method to determine the viability of local management entities/managed care organizations (LME/MCOs) and the establishment of short-term and intermediate term solvency standards that provide a uniform analysis of each LME/MCO's financial position, provide a mechanism for ongoing assessment of each LME/MCO's viability, inform the State's funding decisions, and enhance short-term and intermediate term planning by the LME/MCOs."

Session Laws 2018-5, s. 11F.10(c), provides: "(c) At the next renewal or amendment of a contract with a local management entity an- aged care organization (LME/MCO), the De- partment of Health and Human Services shall explicitly require, as part of that contract, the LME/MCO to comply with G.S. 122C-125.2, as enacted by subsection (b) of this section."

Session Laws 2018-5, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2018.'"

Session Laws 2018-5, s. 39.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2018-2019 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2018-2019 fiscal year."

Session Laws 2018-5, s. 39.7, is a severability clause.

Effect of Amendments. - Session Laws 2020-49, s. 5, effective June 29, 2020, added sub-subdivision (a)(6)g.

§§ 122C-125.3 through 122C-125.5: Reserved for future codification purposes.

§ 122C-125.6: Repealed by Session Laws 2001-437, s. 1.13(a), effective July 1, 2002.

§ 122C-126.1. Confidentiality of competitive health care information.

1. For the purposes of this section, competitive health care information means information relating to competitive health care activities by or on behalf of the area authority. Competitive health care information shall be confidential and not a public record under Chapter 132 of the General Statutes; provided that any contract entered into by or on behalf of an area authority shall be a public record, unless otherwise exempted by law, or the contract contains competitive health care information, the determination of which shall be as provided in subsection (b) of this section.
2. If an area authority is requested to disclose any contract that the area authority believes in good faith contains or constitutes competitive health care information, the area authority may either redact the portions of the contract believed to constitute competitive health care information prior to disclosure or, if the entire contract constitutes competitive health care information, refuse disclosure of the contract. The person requesting disclosure of the contract may institute an action pursuant to G.S. 132-9 to compel disclosure of the contract or any redacted portion thereof. In any action brought under this subsection, the issue for decision by the court shall be whether the contract, or portions of the contract withheld, constitutes competitive health care information, and in making its determination, the court shall be guided by the procedures and standards applicable to protective orders requested under Rule 26(c)(7) of the Rules of Civil Procedure. Before rendering a decision, the court shall review the contract in camera and hear arguments from the parties. If the court finds that the contract constitutes or contains competitive health care information, the court may either deny disclosure or may make such other appropriate orders as are permitted under Rule 26(c) of the Rules of Civil Procedure.
3. Nothing in this section shall be deemed to prevent the Attorney General, the State Auditor, or an elected public body, in closed session, which has responsibility for the area authority, from having access to this confidential information. The disclosure to any public entity does not affect the confidentiality of the information. Members of the public entity shall have a duty not to further disclose the confidential information.

History

(2012-151, s. 10.)

PART 2A. CONSOLIDATED HUMAN SERVICES.

§ 122C-127. Consolidated human services board; human services director.

1. Except as otherwise provided by this section and subject to any limitations that may be imposed by the board of county commissioners under G.S. 153A-77, a consolidated human services agency shall have the responsibility and authority set forth in G.S. 122C-117(a) to carry out the programs established in this Chapter in conformity with the rules and regulations of the Department and under the supervision of the Secretary in the same manner as an area authority. In addition to the powers conferred by G.S. 153A-77(d), a consolidated human services board shall have all the powers and duties of the governing unit of an area authority as provided by G.S. 122C-117(b), except that the consolidated human services board may not:
   1. Appoint the human services director.
   2. Transmit or present the budget for social services programs.
   3. Enter into contracts, including contracts to provide services to governmental or private entities, unless specifically authorized to do so by the board of county commissioners in accordance with county contracting policies and procedures.
2. In addition to the powers conferred by G.S. 153A-77(e), a human services director shall have all the powers and duties of an area director as provided by G.S. 122C-121, except that the human services director may:
   1. Serve as the executive officer of the consolidated human services board only to the extent and in the manner authorized by the county manager.
   2. Appoint staff of the consolidated human services agency only upon the approval of the county manager.

The human services director is not an employee of the area board, but serves as an employee of the county under the direct supervision of the county manager.

History

(1995 (Reg. Sess., 1996), c. 690, s. 12.)

§§ 122C-128 through 122C-130: Reserved for future codification purposes.

PART 3. SERVICE DELIVERY SYSTEM.

§ 122C-131. Composition of system.

Mental health, developmental disabilities, and substance abuse services of the public system in this State shall be delivered through area authorities and State facilities.

History

(1985, c. 589, s. 2; 1989, c. 625, s. 15.)

§§ 122C-133 through 122C-140: Reserved for future codification purposes.

PART 4. AREA FACILITIES.

§ 122C-141. Provision of services.

1. The area authority or county program shall contract with other qualified public or private providers, agencies, institutions, or resources for the provision of services, and, subject to the approval of the Secretary, is authorized to provide services directly. The area authority or county program shall indicate in its local business plan how services will be provided and how the provision of services will address issues of access, availability of qualified public or private providers, consumer choice, and fair competition. The Secretary shall take into account these issues when reviewing the local business plan and considering approval of the direct provision of services. Unless an area authority or county program requests a shorter time, any approval granted by the Secretary shall be for not less than one year. The Secretary shall develop criteria for the approval of direct service provision by area authorities and county programs in accordance with this section and as evidenced by compliance with the local business plan. For the purposes of this section, a qualified public or private provider is a provider that meets the provider qualifications as defined by rules adopted by the Secretary.
2. All area authority or county program services provided directly or under contract shall meet the requirements of applicable State statutes and the rules of the Commission and the Secretary. The Secretary may delay payments and, with written notification of cause, may reduce or deny payment of funds if an area authority or county program fails to meet these requirements.
3. The area authority or board of county commissioners of a county program may contract with a health maintenance organization, certified and operating in accordance with the provisions of Article 67 of Chapter 58 of the General Statutes for the area authority or county program, to provide mental health, developmental disabilities, or substance abuse services to enrollees in a health care plan provided by the health maintenance organization. The terms of the contract must meet the requirements of all applicable State statutes and rules of the Commission and Secretary governing both the provision of services by an area authority or county program and the general and fiscal operation of an area authority or county program and the reimbursement rate for services rendered shall be based on the usual and customary charges paid by the health maintenance organization to similar providers. Any provision in conflict with a State statute or rule of the Commission or the Secretary shall be void; however, the presence of any void provision in that contract does not render void any other provision in that contract which is not in conflict with a State statute or rule of the Commission or the Secretary. Subject to approval by the Secretary and pending the timely reimbursement of the contractual charges, the area authority or county program may expend funds for costs which may be incurred by the area authority or county program as a result of providing the additional services under a contractual agreement with a health maintenance organization.
4. If two or more counties enter into an interlocal agreement under Article 20 of Chapter 160A of the General Statutes to be a public provider of mental health, developmental disabilities, or substance abuse services ("public provider"), before an LME may enter into a contract with the public provider, all of the following must apply:
   1. The public provider must meet all the provider qualifications as defined by rules adopted by the Commission. A county that satisfies its duties under G.S. 122C-115(a) through a consolidated human services agency may not be considered a qualified provider for purposes of this subdivision.
   2. The LME must adopt a conflict of interest policy that applies to all provider contracts.
   3. The interlocal agreement must provide that any liabilities of the public provider shall be paid from its unobligated surplus funds and that if those funds are not sufficient to satisfy the indebtedness, the remaining indebtedness shall be apportioned to the participating counties.
5. When enforcing rules adopted by the Commission,  the Secretary shall ensure that there is fair competition among providers.

History

(1977, c. 568, s. 1; c. 679, s. 7; 1979, c. 358, ss. 7, 18; 1981, c. 51, s. 3; c. 539, ss. 3, 4; c. 614, s. 7; 1985, c. 589, s. 2; 1987, c. 839; 1989, c. 625, s. 16; 2001-437, s. 1.15; 2006-142, s. 4( l ); 2007-504, s. 2.4(a).)

Editor's Note. - For preamble to Session Laws 2001-437, see the note at G.S. 122C-2.

Session Laws 2007-504, s. 2.4(b), provides: "The Department of Health and Human Services shall study the effect of G.S. 122C-141(d) and shall report its findings and recommendations to the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services by December 1, 2009."

Effect of Amendments. - Session Laws 2006-142, s. 4( l ), effective July 19, 2006, added subsections (d) and (e).

Session Laws 2007-504, s. 2.4, effective August 30, 2007, added the fourth sentence in subsection (a); substituted "Commission" for "Secretary" in subdivision (d)(1); rewrote subsection (e).

§ 122C-142. Contract for services.

1. When the area authority contracts with persons for the provision of services, it shall use the standard contract adopted by the Secretary and shall assure that these contracted services meet the requirements of applicable State statutes and the rules of the Commission and the Secretary. However, an area authority may amend the contract to comply with any court-imposed duty or responsibility. An area authority that is operating under a Medicaid waiver may amend the contract subject to the approval of the Secretary.  Terms of the standard contract shall require the area authority to monitor the contract to assure that rules and State statutes are met. It shall also place an obligation upon the entity providing services to provide to the area authority timely data regarding the clients being served, the services provided, and the client outcomes. The Secretary may also monitor contracted services to assure that rules and State statutes are met.
2. When the area authority contracts for services, it may provide funds to purchase liability insurance, to provide legal representation, and to pay any claim with respect to liability for acts, omissions, or decisions by members of the boards or employees of the persons with whom the area authority contracts. These acts, omissions, and decisions shall be ones that arise out of the performance of the contract and may not result from actual fraud, corruption, or actual malice on the part of the board members or employees.

History

(1977, c. 568, s. 1; c. 679, s. 7; 1979, c. 358, s. 18; 1981, c. 51, s. 3; c. 539, ss. 3, 4; 1985, c. 589, s. 2; 2006-142, s. 1; 2006-259, s. 23; 2013-85, s. 9.)

Effect of Amendments. - Session Laws 2006-142, s. 1, effective July 19, 2006, in subsection (a) in the first sentence, deleted "the area authority" following "the provision of services," and inserted "it shall use the standard contract adopted by the Secretary and," inserted the second sentence, in the fourth sentence, inserted "standard" preceding "contract," and inserted the fifth sentence.

Session Laws 2006-259, s. 23, effective August 23, 2006, inserted the third sentence in subsection (a).

§ 122C-142.1. Substance abuse services for those convicted of driving while impaired or driving while less than 21 years old after consuming alcohol or drugs.

1. Services. - An area authority shall provide, directly or by contract, the substance abuse services needed by a person to obtain a certificate of completion required under G.S. 20-17.6 as a condition for the restoration of a drivers license. A person may obtain the required services from an area facility, from a private facility authorized by the Department to provide this service, or, with the approval of the Department, from an agency that is located in another state.
2. Authorization of a Private Facility Provider. - The Department shall authorize a private facility located in this State to provide substance abuse services needed by a person to obtain a certificate of completion if the private facility complies with all of the requirements of this subsection:
   1. Notifies both the designated area facility for the catchment area in which it is located and the Department of its intent to provide the services.
   2. Agrees to comply with the laws and rules concerning these services that apply to area facilities.
   3. Pays the Department the applicable fee for authorizing and monitoring the services of the facility. The initial fee is payable at the time the facility notifies the Department of its intent to provide the services and by July 1 of each year thereafter. Collected fees shall be used by the Division for program monitoring and quality assurance. The applicable fee is based upon the number of assessments completed during the prior fiscal year as set forth below:
3. Assessments.- To conduct a substance abuse assessment, a facility shall give a client a standardized test approved by the Department to determine chemical dependency and shall conduct a clinical interview with the client. Based on the assessment, the facility shall recommend that the client either attend an alcohol and drug education traffic (ADET) school or obtain treatment. A recommendation shall be reviewed and signed by a certified alcoholism, drug abuse, or substance abuse counselor, as defined by the Commission, a Certified Substance Abuse Counselor, or by a physician certified by the American Society of Addiction Medicine (ASAM). The signature on the recommendation shall be the personal signature of the individual authorized to review the recommendation and not the signature of his or her agent. The signature shall reflect that the authorized individual has personally reviewed the recommendation and, with full knowledge of the contents of the recommendation, approved of the recommended treatment.
4. Persons Authorized to Conduct Assessments. - The following individuals are authorized to conduct a substance abuse assessment under subsection (b) of this section:
   1. A Certified Substance Abuse Counselor (CSAC), as defined by the Commission.
   2. A Licensed Clinical Addiction Specialist (LCAS), as defined by the Commission.
   3. Repealed by Session Laws 2004-197, s. 2, effective October 1, 2008, and applicable to substance abuse assessments conducted on or after that date.
   4. A person licensed by the North Carolina Medical Board or the North Carolina Psychology Board.
   5. A physician certified by the American Society of Addiction Medicine (ASAM).
5. School or Treatment. - Attendance at an ADET school is required if none of the following applies and completion of a treatment program is required if any of the following applies:
   1. The person took a chemical test at the time of the offense that caused the person's license to be revoked and the test revealed that the person had an alcohol concentration at any relevant time after driving of at least 0.15.
   2. The person has a prior conviction of an offense involving impaired driving.
   3. The substance abuse assessment identifies a substance abuse disability.
6. Standards. - An ADET school shall offer the curriculum established by the Commission and shall comply with the rules adopted by the Commission. A substance abuse treatment program offered to a person who needs the program to obtain a certificate of completion shall comply with the rules adopted by the Commission.
7. Persons Authorized to Provide Instruction. - Beginning January 1, 2009, individuals who provide ADET school instruction as a Department-authorized ADETS instructor must have at least one of the following qualifications:
   1. A Certified Substance Abuse Counselor (CSAC), as defined by the Commission.
   2. A Licensed Clinical Addictions Specialist (LCAS), as defined by the Commission.
   3. A Certified Substance Abuse Prevention Consultant (CSAPC), as defined by the Commission.
8. Certificate of Completion. - Any facility that issues a certificate of completion shall forward the original certificate of completion to the Department. The Department shall review the certificate of completion for accuracy and completeness. If the Department finds the certificate of completion to be accurate and complete, the Department shall forward it to the Division of Motor Vehicles of the Department of Transportation. If the Department finds the certificate of completion is not accurate or complete, the Department shall return the certificate of completion to the area facility for appropriate action.
9. Fees. - A person who has a substance abuse assessment conducted for the purpose of obtaining a certificate of completion shall pay to the assessing agency a fee of one hundred dollars ($100). A person shall pay to a school a fee of one hundred sixty dollars ($160.00). A person shall pay to a treatment facility a fee of seventy-five dollars ($75.00). If the defendant is treated by an area mental health facility, G.S. 122C-146 applies after receipt of the seventy-five dollar ($75.00) fee.
10. Multiple Assessments. - If a person has more than one offense for which a certificate of completion is required under G.S. 20-17.6, the person shall pay the assessment fee required under subsection (f) of this section for each certificate of completion required. However, the facility shall conduct only one substance abuse assessment and recommend only one ADET school or treatment program for all certificates of completion required at that time, and the person shall pay the fee required under subsection (f) of this section for only one school or treatment program.
11. Out-of-State Services. - A person may obtain a substance abuse service needed to obtain a certificate of completion from a provider located in another state if the service offered by that provider is substantially similar to the service offered by a provider located in this State. A person who obtains a service from a provider located in another state is responsible for paying any fees imposed by the provider.
12. Rules. - The Commission may adopt rules to implement this section. In developing rules for determining when a person needs to be placed in a substance abuse treatment program, the Commission shall consider diagnostic criteria such as those contained in the most recent revision of the Diagnostic and Statistical Manual or used by the American Society of Addiction Medicine (ASAM).
13. Report. - The Department shall submit an annual report on substance abuse assessments to the Joint Legislative Commission on Governmental Operations. The report is due by February 1. Each facility that provides services needed by a person to obtain a certificate of completion shall file an annual report with the Department by October 1 that contains the information the Department needs to compile the report the Department is required to submit under this section.
    1. The number of persons required to obtain a certificate of completion during the previous fiscal year as a condition of restoring the person's drivers license under G.S. 20-17.6.
    2. The number of substance abuse assessments conducted during the previous fiscal year for the purpose of obtaining a certificate of completion.
    3. Of the number of assessments reported under subdivision (2) of this subsection, the number recommending attendance at an ADET school, the number recommending treatment, and, for those recommending treatment, the level of treatment recommended.
    4. Of the number of persons recommended for an ADET school or treatment under subdivision (3) of this subsection, the number who completed the school or treatment.
    5. The number of substance abuse assessments conducted by each facility and, of these assessments, the number that recommended attendance at an ADET school and the number that recommended treatment.
    6. The fees paid to a facility for providing services for persons to obtain a certificate of completion and the facility's costs in providing those services.
14. Repealed by Session Laws 2013-360, s. 12A.8(a), effective July 1, 2013.

Number of Assessments Fee Amount

0-24 $250.00

25-99 $500.00

100 or more $750.00.

A facility that provides to a person who is required to obtain a certificate of completion a substance abuse assessment, an ADET school, or a substance abuse treatment program may require the person to pay a fee required by this subsection before it issues a certificate of completion. As stated in G.S. 122C-146, however, an area facility may not deny a service to a person because the person is unable to pay.

A facility shall remit to the Department ten percent (10%) of each fee paid to the facility under this subsection by a person who attends an ADET school conducted by the facility. The Department may use amounts remitted to it under this subsection only to support, evaluate, and administer ADET schools.

If any of the criteria in subdivisions (c)(1), (c)(2), or (c)(3) of this section are present in any of the offenses for which the person needs a certificate of completion, completion of a treatment program shall be required pursuant to subsection (c) of this section.

The provisions of this subsection do not apply to subsequent assessments performed after a certificate of completion has already been issued for a previous assessment.

The report submitted to the Joint Legislative Commission on Governmental Operations shall include all of the following information and any other information requested by that Commission:

History

(1995, c. 496, ss. 10, 13; 2001-370, s. 9; 2003-396, ss. 1, 3, 4; 2004-197, ss. 1, 2, 3; 2005-312, ss. 1, 2, 4; 2008-130, ss. 7, 8; 2013-360, s. 12A.8(a).)

Editor's Note. - Session Laws 1995, c. 496, s. 14, provided that this section became effective January 1, 1996, and was applicable to offenses occurring on or after that date, and that s. 13, which substituted "less than 21 years old" for "a provisional licensee" in the catchline, became effective only if House Bill 353 of the 1995 General Assembly was enacted. House Bill 353 was ratified as Session Laws 1995, c. 506, on July 28, 1995.

Subsection (b1), added by Session Laws 2004-197, s. 1, effective October 1, 2005, is applicable to substance abuse assessments conducted on or after that date.

Pursuant to Session Laws 2005-312, s. 5, amendments to subsection (f) of this section are effective when the rules adopted under section 3 of the act become effective and shall apply to fees charged for ADET School Instruction that commences on or after that date. The rule changes were adopted and took effect October 1, 2006.

Effect of Amendments. - Session Laws 2004-197, s. 2, effective October 1, 2008, and applicable to substance abuse assessments conducted on or after that date, repealed subdivision (b1)(3) which read: "(3) A Substance Abuse Counselor Intern who is supervised by a Certified Clinical Supervisor (CCS), as defined by the Commission, and who meets the minimum qualifications established by the Commission for individuals performing substance abuse assessments."

Session Laws 2004-197, s. 3, effective October 1, 2004, substituted "one hundred dollars ($100)" for "fifty dollars ($50)" in subsection (f).

Session Laws 2005-312, s. 1, effective when the rules adopted under Section 3 of the act become effective, and applicable to fees charged for ADET school instruction that commences on or after that date, in subsection (f), in the first paragraph, added the second sentence and deleted "treatment facility or" preceding "school" and substituted "one hundred sixty dollars ($160.00)" for "seventy-five dollars ($75.00)" in the third sentence, and in the first sentence of the third paragraph, substituted "A facility" for "An area facility" and "ten percent (10%)" for "five percent (5%)," and deleted "area" preceding "facility" twice. See Editor's note.

Session Laws 2005-312, ss. 2 and 4, effective August 25, 2005, added subsections (d1) and (j).

Session Laws 2008-130, ss. 7 and 8, effective July 28, 2008, in subdivision (b1)(2), substituted "Licensed" for "Certified" and substituted "(LCAS)" for "(CCAS)"; made minor grammatical changes throughout subsection (d1); and in subdivision (d1)(2), substituted "Licensed" for "Certified," substituted "Addictions" for "Addiction," and substituted "(LCAS)" for "(CCAS)."

§ 122C-143: Repealed by Session Laws 1993, c. 321, s. 220.

§ 122C-143.1. Policy guidance.

1. The General Assembly shall, as it considers necessary, endorse as policy guidance long-range plans for the broad age/disability categories of persons to be served and the services to be provided by area authorities.
2. The Secretary shall develop a payment policy that designates, within broad age/disability categories, the priority populations, based on their disability level and the types of service to be supported by State resources. The Secretary shall review the Department's payment policy annually to assure that payments are made consistent with the State's long-range plans.
3. The Secretary shall ensure that the payment policy provides incentives designated to target resources consistent with legislative policy and with the State's long-range plans and to promote equal accessibility to services for individuals regardless of their catchment area.
4. Upon request of the Secretary, each area authority shall develop, revise, or amend its local long-range plans to be consistent with the policy guidance set forth in the State's long-range plans. Local service implementation plans shall be subject to the approval of the Secretary.
5. The Secretary shall ensure that the Department's requests for expansion funds for area authorities are consistent with the State's long-range plans and include consideration of needs identified by the area authorities and their local plans.

History

(1993, c. 321, s. 220(e).)

§ 122C-143.2: Repealed by Session Laws 2001-437, s. 1.16, effective July 1, 2002.

Editor's Note. - Session Laws 2002-159, s. 40(b), effective October 11, 2002, had substituted "G.S. 122C-147.1(d)(2)" for "G.S. 147.1(c)92)" in subsection (c).

§ 122C-144: Repealed by Session Laws 1993, c. 321, s. 220(d), effective July 1, 1993.

§ 122C-144.1. Budget format and reports.

1. The area authority shall maintain its budget in accordance with the requirements of Article 3 of Subchapter III of Chapter 159 of the General Statutes, the Local Government Budget and Fiscal Control Act.
2. The Secretary may require periodic reports of receipts and expenditures for all area authority services provided directly or under contract according to a format prescribed by the Secretary.
3. In accordance with G.S. 159-34, the area authority shall have an audit completed and submit it to the Local Government Commission.
4. The Secretary may require reports of client characteristics, staffing patterns, agency policies or activities, services, or specific financial data of the area authority, but the reports shall not identify individual clients of the area authority unless specifically required by State statute or federal statute or regulation, or unless valid consent for the release has been given by the client or legally responsible person.

History

(1993, c. 321, s. 220(g).)

§ 122C-145: Renumbered as G.S. 122C-151.2 by Session Laws 1993, c. 321, s. 220.

§ 122C-146. Uniform co-payment schedule.

1. The LME and its contractual provider agencies shall implement the co-payment schedule based on family income adopted by the Secretary under G.S. 122C-112.1(a)(34). The LME is responsible for determining the applicability of the co-payment to individuals authorized by the LME to receive services. An LME that provides services and its contractual provider agencies shall also make every reasonable effort to collect appropriate reimbursement for costs in providing these services from individuals or entities able to pay, including insurance and third-party payments. However, no individual may be refused services because of an inability to pay.
2. Individuals may not be charged for free services, as required in "The Amendments to the Education of the Handicapped Act", P.L. 99-457, provided to eligible infants and toddlers and their families. This exemption from charges does not exempt insurers or other third-party payors from being charged for payment for these services, if the person who is legally responsible for any eligible infant or toddler is first advised that the person may or may not grant permission for the insurer or other payor to be billed for the free services.
3. All funds collected from co-payments for LME operated services shall be used to provide services to individuals in targeted populations.

The collection of co-payments by an LME that provides services may not be used as justification for reduction or replacement of the budgeted commitment of local tax revenue. All funds collected from co-payments by contractual provider agencies shall be used to provide services to individuals in targeted populations.

History

(1977, c. 568, s. 1; 1979, c. 358, s. 16; 1985, c. 589, s. 2; 1989 (Reg. Sess., 1990), c. 1003, s. 4; 1991, c. 215, s. 2; 1993, c. 487, s. 3; c. 553, s. 36; 2007-410, s. 1.)

Editor's Note. - Session Laws 1989 (Reg. Sess., 1990), c. 1003, s. 6 provided: "Sections 1 through 4 of this act [which amended this section] shall become effective July 1, 1990, and Section 5 of this act shall become effective July 1, 1991, if and only if specific funds are appropriated for the specific programs established by this act. Funds appropriated for the 1990-91 fiscal year or for any year in the future do not constitute any entitlement to services beyond those provided for that fiscal year. Nothing in this act creates any rights except to the extent that funds are appropriated by the State to implement its provisions from year to year and nothing in this act obligates the General Assembly to appropriate any funds to implement its provisions." An appropriation was made to implement the provisions of this act in the 1989 (Reg. Sess., 1990) Session.

Effect of Amendments. - Session Laws 2007-410, s. 1, effective July 1, 2008, and applicable to services provided on or after that date, rewrote the section.

§ 122C-147. Financing and title of area authority property.

1. Repealed by Session Laws 1993, c. 321, s. 220(i).