§ 90-1. North Carolina Medical Society incorporated.

The association of regularly graduated physicians, calling themselves the State Medical Society, is hereby declared to be a body politic and corporate, to be known and distinguished by the name of The Medical Society of the State of North Carolina. The name of the society is now the North Carolina Medical Society.

History

(1858-9, c. 258, s. 1; Code, s. 3121; Rev., s. 4491; C.S., s. 6605; 1981, c. 573, s. 1.)

Cross References. - As to a civil action remedy for persons who are sexually exploited by their psychotherapists, see the Psychotherapy Patient/Client Sexual Exploitation Act, G.S. 90-21.41 et seq.

Editor's Note. - Session Laws 2018-24, s. 1(a)-(c), provides: "(a) Naturopathic medicine is a distinct health care profession that affects the public health, safety, and welfare of the State's residents. Certification of professionals practicing naturopathic medicine will aid in protecting citizens from deception, fraud, and damage to their health status. On or before September 15, 2018, the Secretary of the Department of Health and Human Services, or the Secretary's designee, shall convene a work group to study the delivery of naturopathic medicine in North Carolina. The work group shall be comprised of the following individuals: two naturopathic doctors, selected by the North Carolina Association of Naturopathic Physicians; one medical doctor, who has knowledge of the practice of naturopathic medicine, selected by the North Carolina Medical Society; the chairperson of the North Carolina Medical Board, or the chairperson's designee; and the Secretary of the Department of Health and Human Services, or the Secretary's designee.

"(b) The work group shall develop recommendations necessary to provide appropriate oversight and regulation of naturopathic medicine in the State of North Carolina. The work group's recommendations shall include at least the following:

"(1) Identification of an approved program of study of naturopathic medicine that provides graduate-level, full-time didactic and supervised clinical training in naturopathic medicine and is accredited by the Council on Naturopathic Medical Education or an equivalent federally recognized accrediting body for the naturopathic medical profession. The program must be offered by an institution of higher education and lead to a degree as a Doctor of Naturopathic Medicine, or equivalent.

"(2) A scope of practice for naturopathic doctors, including the extent of their responsibilities as licensed health care professionals; the extent of their ability to diagnose and treat individuals in accordance with the method, thought, and practice of naturopathic medicine and use of diagnostic techniques and therapies; and their prescriptive authority.

"(3) Whether the practice of naturopathic medicine should constitute the practice of medicine or surgery as defined in Chapter 90 of the General Statutes.

"(c) The work group shall report findings and recommendations to the Joint Legislative Oversight Committee on Health and Human Services on or before January 15, 2019. The report shall include findings and recommendations on the topics outlined in this section and other issues necessary to provide for the appropriate oversight and regulation of the practice of naturopathic medicine in North Carolina. Additionally, the report shall also include recommendations on appropriate fees for application, examination, certification, renewals, and late renewals, as appropriate, to cover the costs associated with oversight."

Legal Periodicals. - For legislative survey on medicine, see 22 Campbell L. Rev. 253 (2000).

For article, " 'What Is and What Should Never Be' Privileged in North Carolina: The Peer Review Privilege After Armstrong v. Barnes," see 85 N.C.L. Rev. 1741 (2007).

For comment, "Setting the 'Bar' in North Carolina Medical Malpractice Litigation: Working with the Standard of Care that Everyone Loves to Hate," see 89 N.C.L. Rev. 234 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Patient-Centered Health Law and Ethics," see 45 Wake Forest L. Rev. 1427 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Patient-Centered Care as a Response to Medification," see 45 Wake Forest L. Rev. 1453 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Musings on Patient-Centered Law and Ethics," see 45 Wake Forest L. Rev. 1461 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Different Ways to Understand Patient-Centered Health Law," see 45 Wake Forest L. Rev. 1469 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Test-Driving 'Patient-Centered Health Law'," see 45 Wake Forest L. Rev. 1475 (2010).

For article, "Symposium - Patient Centered Law and Ethics: Can Health Law Truly Become Patient Centered?," see 45 Wake Forest L. Rev. 1489 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Should the Patient Conquer?," see 45 Wake Forest L. Rev. 1505 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Can a Patient-Centered Ethos be Other-Regarding? Ought it Be?," see 45 Wake Forest L. Rev. 1513 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: Rights Talk and Patient Subjectivity: The Role of Autonomy, Equality, and Participation Norms," see 45 Wake Forest L. Rev. 1525 (2010).

For article, "Symposium - Patient-Centered Law and Ethics: When Doctors Become "Patients": Advocating a Patient-Centered Approach for Health Care Workers in the Context of Mandatory Influenza Vaccinations and Informed Consent," see 45 Wake Forest L. Rev. 1551 (2010).

For article, "Medical Malpractice and Wrongful Death: Some Lives are Worth More Than Others," see 8 Elon L. Rev. 461 (2016).

For article, "Regulating Physician Speech," see 97 N.C.L. Rev. 843 (2019).

For article, "Fraud in the Pandemic: How COVID-19 Affects Qui Tam Whistleblowers and The False Claims Act," see 43 Campbell L. Rev. 273 (2021).

For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective,” see 43 Campbell L. Rev. 423 (2021).

§ 90-1.1. Definitions.

The following definitions apply in this Article:

1. Board. - The North Carolina Medical Board.
2. Hearing officer. - Any current or past member of the Board who is a physician, physician assistant, or nurse practitioner and has an active license or approval to practice medical acts, tasks, or functions issued by the Board, or any current or retired judge of the Office of Administrative Hearings, a State district court, a State superior court, the North Carolina Court of Appeals, the North Carolina Supreme Court, or of the federal judiciary who has an active license to practice law in North Carolina and who is a member in good standing of the North Carolina State Bar.
3. Inactive license. - A license that no longer grants the authorization to perform medical acts, tasks, or functions. A license can become inactive upon a licensee's request, a licensee's failure to register annually, a licensee's voluntary surrender, or based on any disciplinary order issued by the Board.
4. Integrative medicine. - A diagnostic or therapeutic treatment that may not be considered a conventionally accepted medical treatment and that a licensed physician in the physician's professional opinion believes may be of potential benefit to the patient, so long as the treatment poses no greater risk of harm to the patient than the comparable conventional treatments.
5. License. - An authorization issued by the Board to a physician, physician assistant, or anesthesiologist assistant to perform medical acts, tasks, or functions.
6. Licensee. - Any person issued a license by the Board, whether the license is active or inactive, including an inactive license by means of surrender.
7. Reserved.
8. Modality. - A method of medical treatment.
9. The practice of medicine or surgery. - Except as otherwise provided by this subdivision, the practice of medicine or surgery, for purposes of this Article, includes any of the following acts:
   1. Advertising, holding out to the public, or representing in any manner that the individual is authorized to practice medicine in this State.
   2. Offering or undertaking to prescribe, order, give, or administer any drug or medicine for the use of any other individual.
   3. Offering or undertaking to prevent or diagnose, correct, prescribe for, administer to, or treat in any manner or by any means, methods, or devices any disease, illness, pain, wound, fracture, infirmity, defect, or abnormal physical or mental condition of any individual, including the management of pregnancy or parturition.
   4. Offering or undertaking to perform any surgical procedure on any individual.
   5. Using the designation "Doctor," "Doctor of Medicine," "Doctor of Osteopathy," "Doctor of Osteopathic Medicine," "Physician," "Surgeon," "Physician and Surgeon," "Dr.," "M.D.," "D.O.," or any combination thereof in the conduct of any occupation or profession pertaining to the prevention, diagnosis, or treatment of human disease or condition, unless the designation additionally contains the description of or reference to another branch of the healing arts for which the individual holds a valid license in this State or the use of the designation "Doctor" or "Physician" is otherwise specifically permitted by law.
   6. The performance of any act, within or without this State, described in this subdivision by use of any electronic or other means, including the Internet or telephone.

The administration of required lethal substances or any assistance whatsoever rendered with an execution under Article 19 of Chapter 15 of the General Statutes does not constitute the practice of medicine or surgery.

History

(2007-346, s. 1; 2009-558, s. 1.1; 2013-154, s. 1(b); 2019-191, s. 1.)

Editor's Note. - Session Laws 2007-346, s. 1, enacted this section as G.S. 90-1A. It has been renumbered as this section at the direction of the Revisor of Statutes.

Session Laws 2007-346, s. 28, made this section effective October 1, 2007.

The number of subdivision (2a) of this section was assigned by the Revisor of Statutes, the number in Session Laws 2019-191, s. 1, having been subdivision (4b).

Effect of Amendments. - Session Laws 2013-154, s. 1(b), effective June 19, 2013, in subdivision (5), substituted "Except as otherwise provided by this subdivision, the" for "The," at the beginning of the first sentence, and added the concluding paragraph.

Session Laws 2019-191, s. 1, effective October 1, 2019, substituted "physician, physician assistant, or anesthesiologist assistant to perform" for "physician or physician assistant to practice" in subdivision (4); added the definitions of licensee and inactive license and made related redesignation changes to maintain alphabetical order; and substituted "procedure" for "operation" in sub-subdivision (5)d.

§ 90-2. Medical Board.

1. There is established the North Carolina Medical Board to regulate the practice of medicine and surgery for the benefit and protection of the people of North Carolina. The Board shall consist of 13 members:
   1. Six of the members shall be duly licensed physicians recommended by the Review Panel and appointed by the Governor as set forth in G.S. 90-3.
   2. Five members shall all be appointed by the Governor as follows:
      1. One shall be a member of The Old North State Medical Society. This Board position shall be subject to recommendations of the Review Panel pursuant to G.S. 90-3.
      2. One shall be a public member, and this Board position shall not be subject to recommendation of the Review Panel pursuant to G.S. 90-3.
      3. One shall be a physician assistant as defined in G.S. 90-18.1 as recommended by the Review Panel pursuant to G.S. 90-3.
      4. One shall be a nurse practitioner as defined in G.S. 90-18.2 as recommended by the Review Panel pursuant to G.S. 90-3.
      5. One shall be a duly licensed physician who is a doctor of osteopathic medicine or a full-time faculty member of one of the medical schools in North Carolina who utilizes integrative medicine in that person's clinical practice, as recommended by the Review Panel pursuant to G.S. 90-3.
   3. Two public members appointed by the General Assembly in accordance with G.S. 120-121, one upon recommendation of the Speaker of the House of Representatives and one upon the recommendation of the President Pro Tempore of the Senate.
2. Each appointing and nominating authority shall endeavor to see, insofar as possible, that its appointees and nominees to the Board reflect the composition of the State with regard to gender, ethnic, racial, and age composition.
3. No member shall serve more than two complete three-year terms in a lifetime, except that each member shall serve until a successor is chosen and qualifies.
4. A public member appointed pursuant to sub-subdivision (a)(2)b. and subdivision (a)(3) of this section shall not be a health care provider nor the spouse of a health care provider. For the purpose of Board membership, "health care provider" means any licensed health care professional, agent, or employee of a health care institution, health care insurer, health care professional school, or a member of any allied health profession. For purposes of this section, a person enrolled in a program as preparation to be a licensed health care professional or an allied health professional shall be deemed a health care provider. For purposes of this section, any person with significant financial interest in a health service or profession is not a public member.
5. Repealed by Session Laws 2003-366, s. 1, effective October 1, 2003.
6. Any member of the Board may be removed from office by the Governor for good cause shown. Any vacancy in the physician, physician assistant, or nurse practitioner membership of the Board shall be filled for the period of the unexpired term by the Governor from a list submitted by the Review Panel pursuant to G.S. 90-3. Any vacancy in the public membership of the Board shall be filled by the appropriate appointing authority for the unexpired term.
7. The North Carolina Medical Board shall have the power to acquire, hold, rent, encumber, alienate, and otherwise deal with real property in the same manner as any private person or corporation, subject only to approval of the Governor and the Council of State as to the acquisition, rental, encumbering, leasing, and sale of real property. Collateral pledged by the Board for an encumbrance is limited to the assets, income, and revenues of the Board.

History

(1858-9, c. 258, ss. 3, 4; Code, s. 3123; Rev., s. 4492; C.S., s. 6606; Ex. Sess. 1921, c. 44, s. 1; 1981, c. 573, s. 2; 1991 (Reg. Sess., 1992), c. 787, s. 1; 1993, c. 241, s. 2; 1995, c. 94, s. 1; c. 405, s. 1; 1997-511, s. 1; 2003-366, s. 1; 2007-346, s. 2; 2015-213, s. 1; 2016-117, s. 2(a); 2017-206, s. 5(a); 2018-92, s. 2(a); 2019-191, ss. 2(a), 2(b).)

Editor's Note. - Session Laws 2017-206, s. 5(b), provides: "For the term of the public member appointed by the Governor expiring in 2017, that member shall be appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives, in accordance with G.S. 120-121. For the term of the public member appointed by the Governor expiring in 2018, that member shall be appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate, in accordance with G.S. 120-121. As terms expire thereafter or as vacancies occur prior to the expiration of a term, the members on the Medical Board shall be appointed in accordance with G.S. 90-2, as amended by this act."

Session Laws 2017-206, s. 5(c), made the amendment to this section by Session Laws 2017-206, s. 5(a), effective August 30, 2017, and applicable to vacancies occurring after June 30, 2017.

Session Laws 2018-92, s. 2(b), made the amendment of subsection (a) of this section by Session Laws 2018-92, s. 2(a), effective October 31, 2019, and applicable to vacancies on the North Carolina Medical Board occurring on or after that date.

Effect of Amendments. - Session Laws 2003-366, s. 1, effective October 1, 2003, in subsection (a), rewrote the first sentence in the introductory paragraph, and rewrote the first sentence of subdivision (2); inserted subsection (a1); in subsection (b), deleted "appointed to the Board on or after November 1, 1981" following "No member"; deleted subsection (c), which provided for the expiration dates of the terms of office; and made minor stylistic and punctuation changes throughout the section. See editor's note for applicability.

Session Laws 2007-346, s. 2, effective January 1, 2008, rewrote the section.

Session Laws 2015-213, s. 1, effective August 11, 2015, substituted "13 members" for "12 members" at the end of the second sentence of subsection (a); substituted "six members" for "five members" near the beginning of subdivision (a)(1); deleted "or a nurse practitioner as defined in G.S. 90-18.2" preceding "as recommended by the Review Panel" in subdivision (a)(2)c; and added subdivision (a)(2)d.

Session Laws 2016-117, s. 2(a), effective October 1, 2016, substituted "two complete three-year terms in a lifetime" for "two complete consecutive three-year terms" in subsection (b).

Session Laws 2017-206, s. 5(a), effective August 30, 2017, substituted "Four members" for "The remaining six members" in subdivision (a)(2), rewrote the first sentence of subdivision (a)(2)b. and transferred and rewrote the remaining four sentences as new subsection (b1); added subdivision (a)(3); and substituted "the appropriate appointing authority" for "the Governor" in subsection (d). For effective date and applicability, see editor's note.

Session Laws 2018-92, s. 2(a), in subdivision (a)(1), substituted "Six" for "Five"; in the introductory language of subdivision (a)(2), substituted "Five" for "Four"; redesignated the first part of the first sentence of subdivision (a)(2)a. as subdivision (a)(2)e. and added "as recommended by the Review Panel pursuant to G.S. 90-3" at the end; and in subdivision (a)(2)a. deleted "not" preceding "be subject" in the second sentence. For effective date and applicability, see editor's note.

Session Laws 2019-191, s. 2(a), effective October 31, 2019, substituted "osteopathic medicine" for "osteopathy" in the first sentence of sub-subdivision (a)(2)e.

Session Laws 2019-191, s. 2(b), effective October 1, 2019, substituted "G.S. 90-3" for "G.S. 90-3 except as provided in G.S. 90-2(a)(2)a" in the first sentence of subsection (d).

Legal Periodicals. - For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

For article, "The Learned Profession Exemption of the North Carolina Deceptive Trade Practices Act: The Wrong Bright Line?," see 15 Campbell L. Rev. 223 (1993).

For article, "Aid in Dying in North Carolina," see 97 N.C. L. Rev. Addendum 1 (2019).

For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective,” see 43 Campbell L. Rev. 423 (2021).

§ 90-3. Review Panel recommends certain Board members; criteria for recommendations.

1. There is created a Review Panel to review all applicants for the physician positions, the physician assistant position, and the nurse practitioner position on the Board. The Review Panel shall consist of nine members, including four from the Medical Society, one from the Old North State Medical Society, one from the North Carolina Osteopathic Medical Association, one from the North Carolina Academy of Physician Assistants, one from the North Carolina Nurses Association Council of Nurse Practitioners, and one public member currently serving on the Board. All physicians, physician assistants, and nurse practitioners serving on the Review Panel shall be actively practicing in North Carolina.
2. To be considered qualified for a physician position, the physician assistant position, or nurse practitioner position on the Board, an applicant shall meet each of the following criteria:
   1. Hold an active, nonlimited license to practice medicine in North Carolina, or in the case of a physician assistant and nurse practitioner, hold an active license or approval to perform medical acts, tasks, and functions in North Carolina.
   2. Have an active clinical or teaching practice. For purposes of this subdivision, the term "active" means patient care, or instruction of students in an accredited medical school or residency, or clinical research program, for 20 hours or more per week.
   3. Have actively practiced in this State for at least five consecutive years immediately preceding the appointment.
   4. Intend to remain in active practice in this State for the duration of the term on the Board.
   5. Submit at least three letters of recommendation, either from individuals or from professional or other societies or organizations.
   6. Have no public disciplinary history with the Board or any other licensing board in this State or another state over the past 10 years before applying for appointment to the Board.
   7. Have no history of felony convictions of any kind.
   8. Have no misdemeanor convictions related to the practice of medicine.
   9. Indicate, in a manner prescribed by the Review Panel, that the applicant: (i) understands that the primary purpose of the Board is to protect the public; (ii) is willing to take appropriate disciplinary action against his or her peers for misconduct or violations of the standards of medical care; and (iii) is aware of the time commitment needed to be a constructive member of the Board.
   10. Have not served more than 72 months as a member of the Board.
3. The Review Panel shall recommend at least two qualified nominees for each open position on the Board. If the Governor chooses not to appoint either of the recommended nominees, the Review Panel shall recommend at least two new qualified nominees.
4. Notice of open physician, physician assistant, or nurse practitioner positions on the Board shall be sent to all physicians currently licensed to practice medicine in North Carolina and all physician assistants and nurse practitioners currently licensed or approved to perform medical acts, tasks, and functions in this State.
5. Applicants for positions on the Board shall not be required to be members of any professional association or society, except as provided in G.S. 90-2(a)(2)a.
6. Notwithstanding any provision of G.S. 90-16, the Board may provide confidential and nonpublic licensing and investigative information in its possession to the Review Panel regarding applicants.
7. All applications, records, papers, files, reports, and all investigative and licensing information received by the Review Panel from the Board and other documents received or gathered by the Review Panel, its members, employees, agents, and consultants as a result of soliciting, receiving, and reviewing applications and making recommendations as required in this section shall not be considered public records within the meaning of Chapter 132 of the General Statutes. All such information shall be privileged, confidential, and not subject to discovery, subpoena, or other means of legal compulsion for release to any person other than the Review Panel, the Board, and their employees, agents, or consultants, except as provided in this section. The Review Panel shall publish on its Internet Web site the names and practice addresses of all applicants within 10 days after the application deadline. The Review Panel shall publish on its Internet Web site the names and practice addresses of the nominees recommended to the Governor within 10 days after notifying the Governor of those recommendations and not less than 30 days prior to the expiration of the open position on the Board.
8. The Review Panel is a public body within the meaning of Article 33C of Chapter 143 of the General Statutes. In addition to the provisions contained in Article 33C of Chapter 143 of the General Statutes permitting a public body to conduct business in a closed session, the Review Panel shall meet in closed session to review applications; interview applicants; review and discuss information received from the Board; and discuss, debate, and vote on recommendations to the Governor.

The Review Panel shall contract for the independent administrative services needed to complete its functions and duties. The Board shall provide funds to pay the reasonable cost for the administrative services of the Review Panel. The Board shall convene the initial meeting of the Review Panel. The Review Panel shall elect a chair, and all subsequent meetings shall be convened by the Review Panel.

The Governor shall appoint Board members as provided in G.S. 90-2. The Review Panel shall attempt to make its recommendations to the Governor reflect the composition of the State with regard to gender, ethnic, racial, and age composition.

The Review Panel and its members and staff shall not be held liable in any civil or criminal proceeding for exercising, in good faith, the powers and duties authorized by law.

History

(1858-9, c. 258, s. 9; Code, s. 3126; Rev., s. 4493; C.S., s. 6607; 1981, c. 573, s. 3; 2007-346, s. 4; 2015-213, s. 2; 2016-117, s. 2(b)-(d); 2019-191, s. 3.)

Effect of Amendments. - Session Laws 2007-346, s. 4, effective January 1, 2008, rewrote the section which read: "The Governor shall appoint as physician members of the Board physicians elected and nominated by the North Carolina Medical Society."

Session Laws 2015-213, s. 2, effective August 11, 2015, substituted "positions, the physician assistant position, and the" for "positions and the physician assistant or" in the first sentence of subsection (a); substituted "a physician position, the physician assistant position," for "a physician position or the physician assistant" in subsection (b); substituted "and nurse practitioner" for "or nurse practitioner" in subdivision (b)(1); made a minor stylistic change in subsection (c); and substituted "physician, physician assistant, or nurse practitioner positions" for "physician positions or the physician assistant or nurse practitioner position," near the beginning of subsection (d).

Session Laws 2016-117, s. 2(b), effective October 1, 2016, added subdivision (b)(10).

Session Laws 2016-117, s. 2(c), effective October 1, 2016, made a stylistic change in subsection (c).

Session Laws 2016-117, s. 2(d), effective October 1, 2016, added subsections (f) through (h).

Session Laws 2019-191, s. 3, effective October 1, 2019, substituted "Board" for "Board except as provided in G.S. 90-2(a)(2)a" in the first sentence of subsection (a); substituted "medical care" for "care or practice of medicine" in subdivision (b)(9); and added "regarding applicants" at the end of subsection (f).

§ 90-4. Board elects officers; quorum.

The North Carolina Medical Board is authorized to elect all officers and adopt all bylaws as may be necessary. A majority of the membership of the Board shall constitute a quorum for the transaction of business.

History

(1858-9, c. 258, s. 11; Code, s. 3128; Rev., s. 4494; C.S., s. 6608; 1981, c. 573, s. 4; 1995, c. 94, s. 7.)

§ 90-5. Meetings of Board.

The North Carolina Medical Board shall meet at least once quarterly within the State of North Carolina and may hold any other meetings necessary to conduct the business of the Board.

History

(Rev., s. 4495; 1915, c. 220, s. 1; C.S., s. 6609; 1935, c. 363; 1981, c. 573, s. 5; 1995, c. 94, s. 8; 2019-191, s. 4.)

Effect of Amendments. - Session Laws 2019-191, s. 4, effective October 1, 2019, rewrote this section.

§ 90-5.1. Powers and duties of the Board.

1. The Board shall have the following powers and duties:
   1. Administer this Article.
   2. Issue interpretations of this Article.
   3. Adopt, amend, or repeal rules as may be necessary to carry out and enforce the provisions of this Article.
   4. Require an applicant or licensee to submit to the Board evidence of the applicant's or licensee's continuing competence in the practice of medicine.
   5. Regulate the retention and disposition of medical records, whether in the possession of a licensee or nonlicensee. In the case of the death of a licensee, the rules may provide for the disposition of the medical records by the estate of the licensee. This subsection shall not apply to records created or maintained by persons licensed under other Articles of this Chapter or to medical records maintained in the normal course of business by licensed health care institutions.
   6. Appoint a temporary or permanent custodian for medical records abandoned by a licensee.
   7. Develop educational programs to facilitate licensee awareness of provisions contained in this Article and public awareness of the role and function of the Board.
   8. Develop and implement methods to identify dyscompetent licensees and licensees who fail to meet acceptable standards of care.
   9. Develop and implement methods to assess and improve licensee practice.
   10. Develop and implement methods to ensure the ongoing competence of licensees.
2. Nothing in subsection (a) of this section shall restrict or otherwise limit powers and duties conferred on the Board in other sections of this Article.
3. Notwithstanding any other provision of law, the North Carolina Medical Board shall not set fees pursuant to rules. Any fees set pursuant to rules adopted by the Board and applicable on June 1, 2019, remain valid.

History

(2007-346, s. 5; 2019-191, ss. 5, 45.)

Effect of Amendments. - Session Laws 2019-191, ss. 5, 45, effective October 1, 2019, substituted "shall have the following powers and duties" for "shall" in the introductory paragraph of subsection (a); substituted "licensees and licensees" for "physicans and pyhsicians" in subdivision (a)(8); substituted "licensee" for "physician" in subdivision (a)(9); and added subsection (c).

§ 90-5.2. Board to collect and publish certain data.

1. The Board shall require all licensees to report to the Board certain information, including, but not limited to, the following:
   1. The names of any schools of medicine or osteopathy attended and the year of graduation.
   2. Any graduate medical or osteopathic education.
   3. Any specialty board of certification as approved by the American Board of Medical Specialties, the Bureau of Osteopathic Specialists of American Osteopathic Association, or the Royal College of Physicians and Surgeons of Canada.
   4. Specialty area of practice.
   5. Hospital affiliations.
   6. Address and telephone number of the primary practice setting.
   7. A current, active e-mail address, which shall not be considered a public record within the meaning of Chapter 132 of the General Statutes. This information may be used or made available by the Board for the purpose of disseminating or soliciting information affecting public health or the practice of medicine.
   8. Any final disciplinary order or other action required to be reported to the Board pursuant to G.S. 90-14.13 that results in a suspension or revocation of privileges.
   9. Any final disciplinary order or action of any regulatory board or agency including other state medical boards, the United States Food and Drug Administration, the United States Drug Enforcement Administration, Medicare, or the North Carolina Medicaid program.
   10. Conviction of a felony.
   11. Conviction of certain misdemeanors, occurring within the last 10 years, in accordance with rules adopted by the Board.
   12. Any medical license, active or inactive, granted by another state or country.
   13. Certain malpractice information received pursuant to G.S. 90-5.3, G.S. 90-14.13, or from other sources in accordance with rules adopted by the Board.
2. The Board shall make e-mail addresses reported pursuant to G.S. 90-5.2(a)(7) available to the Department of Health and Human Services for use in the North Carolina Controlled Substance Reporting System established by Article 5E of this Chapter.
3. Except as provided, the Board shall make information collected under G.S. 90-5.2(a) available to the public.
4. The Board may adopt rules to implement this section.
5. Failure to provide information as required by this section and in accordance with Board rules or knowingly providing false information may be considered unprofessional conduct as defined in G.S. 90-14(a)(6).

History

(2007-346, s. 6; 2009-217, s. 2; 2013-152, s. 5; 2016-117, s. 2(e), (f); 2019-191, s. 6.)

Editor's Note. - Subsections (a1), (b) and (c), as enacted by Session Laws 2007-346, s. 6, have been redesignated as subsections (b) through (d), at the direction of the Revisor of Statutes.

Session Laws 2009-217, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 32X.0103 (Reporting of Medical Judgments, Awards, Payments or Settlements) and 21 NCAC 32X.0105 (Publication of Judgments, Awards, Payments or Settlements), as adopted by the North Carolina Medical Board on July 16, 2008, and approved by the Rules Review Commission on August 21, 2008, are disapproved."

Effect of Amendments. - Session Laws 2009-217, s. 2, effective June 30, 2009, substituted "G.S. 90-5.3, G.S. 90-14.13" for "G.S. 90-14.13" in subdivision (a)(13).

Session Laws 2013-152, s. 5, effective June 19, 2013, added subsection (a1).

Session Laws 2016-117, s. 2(e), effective October 1, 2016, rewrote subdivision (a)(7).

Session Laws 2016-117, s. 2(f), effective October 1, 2016, deleted "and facsimile numbers" following "e-mail addresses" in subsection (a1).

Session Laws 2019-191, s. 6, effective October 1, 2019, substituted "licensees" for "physicians and physician assistants" in the introductory paragraph of subsection (a); and deleted "at any institution approved by the Accreditation Council of Graduate Medical Education, the Committee for the Accreditation of Canadian Medical Schools, the American Osteopathic Association, or the Royal College of Physicians and Surgeons of Canada" following "education" in subdivision (a)(2).

§ 90-5.3. Reporting and publication of medical judgments, awards, payments, and settlements.

1. All applicants and licensees shall report the following to the Board:
   1. All medical malpractice judgments or awards affecting or involving the applicant or licensee.
   2. All settlements in the amount of seventy-five thousand dollars ($75,000) or more related to an incident of alleged medical malpractice affecting or involving the applicant or licensee where the settlement occurred on or after May 1, 2008.
   3. All settlements in the aggregate amount of seventy-five thousand dollars ($75,000) or more related to any one incident of alleged medical malpractice affecting or involving the applicant or licensee not already reported pursuant to subdivision (2) of this subsection where, instead of a single payment of seventy-five thousand dollars ($75,000) or more occurring on or after May 1, 2008, there is a series of payments made to the same claimant which, in the aggregate, equal or exceed seventy-five thousand dollars ($75,000).
2. The report required under subsection (a) of this section shall contain the following information:
   1. The date of the judgment, award, payment, or settlement.
   2. The specialty in which the applicant or licensee was practicing at the time the incident occurred that resulted in the judgment, award, payment, or settlement.
   3. The city, state, and country in which the incident occurred that resulted in the judgment, award, payment, or settlement.
   4. The date the incident occurred that resulted in the judgment, award, payment, or settlement.
3. The Board shall publish on the Board's Web site or other publication information collected under this section. The Board shall publish this information for seven years from the date of the judgment, award, payment, or settlement. The Board shall not release or publish individually identifiable numeric values of the reported judgment, award, payment, or settlement. The Board shall not release or publish the identity of the patient associated with the judgment, award, payment, or settlement. The Board shall allow the applicant or licensee to publish a statement explaining the circumstances that led to the judgment, award, payment, or settlement, and whether the case is under appeal. The Board shall ensure these statements:
   1. Conform to the ethics of the medical profession.
   2. Not contain individually identifiable numeric values of the judgment, award, payment, or settlement.
   3. Not contain information that would disclose the patient's identity.
4. The term "settlement" for the purpose of this section includes a payment made from personal funds, a payment by a third party on behalf of the applicant or licensee, or a payment from any other source of funds.
5. Nothing in this section shall limit the Board from collecting information needed to administer this Article.

History

(2009-217, s. 3; 2019-191, s. 7.)

Editor's Note. - Session Laws 2009-217, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 32X.0103 (Reporting of Medical Judgments, Awards, Payments or Settlements) and 21 NCAC 32X.0105 (Publication of Judgments, Awards, Payments or Settlements), as adopted by the North Carolina Medical Board on July 16, 2008, and approved by the Rules Review Commission on August 21, 2008, are disapproved."

Effect of Amendments. - Session Laws 2019-191, s. 7, effective October 1, 2019, substituted "applicant or licensee" for "physician or physician assistant" throughout the section; and rewrote the introductory paragraph of subsection (a), which formerly read: "All physicians and physician assistants licensed or applying for licensure by the Board shall report to the Board:".

§ 90-5.4. Duty to report.

1. Every licensee has a duty to report in writing to the Board within 30 days any incidents that licensee reasonably believes to have occurred involving any of the following:
   1. Sexual misconduct of any person licensed by the Board under this Article with a patient. Patient consent or initiation of acts or contact by a patient shall not constitute affirmative defenses to sexual misconduct. For purposes of this section, the term "sexual misconduct" means vaginal intercourse, or any sexual act or sexual contact or touching as described in G.S. 14-27.20. Sexual misconduct shall not include any act or contact that is for an accepted medical purpose.
   2. Fraudulent prescribing, drug diversion, or theft of any controlled substances by another person licensed by the Board under this Article. For purposes of this section, "drug diversion" means transferring controlled substances or prescriptions for controlled substances to (i) the licensee for personal use; (ii) a licensee's immediate family member; (iii) any other person living in the same residence as the licensee; (iv) any person with whom the licensee is having a sexual relationship; or (v) any individual unless for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. For the purposes of this section, the term "immediate family member" means a spouse, parent, child, sibling, and any step-family member or in-law coextensive with the preceding identified relatives.
2. For persons issued a license to practice by the Board under this Article, failure to report under this section shall constitute unprofessional conduct and shall be grounds for discipline under G.S. 90-14(a)(6). However, persons licensed by the Board who are employed by or serving as a director or agent of the North Carolina Physicians Health Program and who obtain information exclusively while functioning in their role as employee, director, or agent of the North Carolina Physicians Health Program that causes them reasonably to believe that incidents referred to in subdivisions (1) and (2) of subsection (a) of this section occurred shall not be required to report pursuant to this section but shall comply with the reporting provisions contained in G.S. 90-21.22.
3. Any person who reports under this section in good faith and without fraud or malice shall be immune from civil liability. Reports made in bad faith, fraudulently, or maliciously shall constitute unprofessional conduct and shall be grounds for discipline under G.S. 90-14(a)(6).
4. The Board may adopt rules to implement this section.

History

(2019-191, s. 8.)

Editor's Note. - Session Laws 2019-191, s. 46, made this section effective October 1, 2019.

§ 90-6: Recodified as G.S. 90-8.1 and G.S. 90-8.2, by Session Laws 2007-346, s. 7, effective October 1, 2007.

Editor's Note. - Session Laws 2007-346, s. 7, effective October 1, 2007, recodified subsection (a) of this section as G.S. 90-8.1, and subsections (b) and (c) of this section as G.S. 90-8.2(a) and (b), respectively.

§ 90-7: Repealed by Session Laws 2019-191, s. 9, effective October 1, 2019.

History

(1858-9, c. 258, s. 17; Code, s. 3134; Rev., s. 4497; C.S., s. 6611; 1995, c. 94, s. 10; repealed by 2019-191, s. 9, effective October 1, 2019.)

Editor's Note. - Former G.S. 90-7 pertained to bond of secretary.

§ 90-8. Officers may administer oaths, and subpoena witnesses, records and other materials.

The president and secretary of the Board may administer oaths to all persons appearing before it as the Board may deem necessary to perform its duties, and may summon and issue subpoenas for the appearance of any witnesses deemed necessary to testify concerning any matter to be heard before or inquired into by the Board. The Board may order that any patient records, documents or other material concerning any matter to be heard before or inquired into by the Board shall be produced before the Board or made available for inspection, notwithstanding any other provisions of law providing for the application of any physician-patient privilege with respect to such records, documents or other material. All records, documents, or other material compiled by the Board are subject to the provisions of G.S. 90-16. Notwithstanding the provisions of G.S. 90-16, in any proceeding before the Board, in any record of any hearing before the Board, and in the notice of charges against any licensee, the Board shall withhold from public disclosure the identity of a patient including information relating to dates and places of treatment, or any other information that would tend to identify the patient, unless the patient or the representative of the patient expressly consents to the disclosure. Upon written request, the Board shall revoke a subpoena if, upon a hearing, it finds that the evidence the production of which is required does not relate to a matter in issue, or if the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason in law the subpoena is invalid.

History

(1913, c. 20, s. 7; C.S., s. 6612; Ex. Sess. 1921, c. 44, s. 3; 1953, c. 1248, s. 1; 1975, c. 690, s. 1; 1979, c. 107, s. 8; 1987, c. 859, s. 5; 1991, c. 348, s. 1.)

§ 90-8.1. Rules governing applicants for licensure.

1. The North Carolina Medical Board is empowered to adopt rules that prescribe additional qualifications for an applicant, including education and examination requirements and application procedures.
2. The Board shall not deny an application for licensure based solely on the applicant's failure to become board certified.
3. By submitting an application for licensure, the applicant submits to the jurisdiction of the Board.

History

(C.S., s. 6610; 1921, c. 47, s. 5; Ex. Sess. 1921, c. 44, s. 2; 1973, c. 92, s. 2; 1981, c. 665, s. 1; 1983, c. 53; 1995, c. 94, s. 9; c. 405, s. 2; 1999-290, s. 1; 2007-346, ss. 7, 8; 2016-117, s. 2(g); 2019-191, s. 10.)

Editor's Note. - This section is former G.S. 90-6(a), recodified as G.S. 90-8.1, effective October 1, 2007, by Session Laws 2007-346, s. 7.

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.5(a)-(e), as amended by Session Laws 2021-3, s. 2.17, provides: "(a) For purposes of this section, the following definitions apply:

"(1) Quality improvement plan rules. - The rules regulating the quality improvement process for physician assistants and nurse practitioners found in 21 NCAC 32S.0213, 21 NCAC 32M.0110, and 21 NCAC 36.0810.

"(2) Application fee rules. - The portions of rules found in 21 NCAC 32S.0204, 21 NCAC 32M.0115, and 21 NCAC 36.0813 that require the payment of an application fee.

"(3) Annual review rules. - The portions of rules requiring the annual review or renewal of a practice arrangement between a physician and a physician assistant or nurse practitioner found in 21 NCAC 32S.0201, 21 NCAC 32M.0110, and 21 NCAC 36.0806.

"(b) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules to the extent they require any of the following:

"(1) Quality improvement process meetings between a physician and a physician assistant or nurse practitioner, provided that the physician assistant or nurse practitioner was practicing within the scope of his or her license prior to February 1, 2020, and continues to practice within the scope of his or her license while this section is effective.

"(2) Monthly quality improvement process meetings between a physician and a physician assistant or nurse practitioner during the first six months of the practice arrangement between the physician and the physician assistant or nurse practitioner.

"(c) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules or the application fee rules to the extent they require any individual to fill out an application or pay a fee, provided that individual is providing volunteer health care services within the scope of his or her license in response to the COVID-19 pandemic state of emergency declared by the Governor of North Carolina on March 10, 2020.

"(d) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the annual review rules.

"(e) This section is effective when it becomes law and expires December 31, 2022."

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

Effect of Amendments. - Session Laws 2007-346, ss. 7 and 8, effective October 1, 2007, recodified G.S. 90-6(a) as this section; and rewrote the section.

Session Laws 2016-117, s. 2(g), effective October 1, 2016, added the subsection (a) designation; and added subsection (b).

Session Laws 2019-191, s. 10, effective October 1, 2019, added subsection (c).

§ 90-8.2. Appointment of subcommittees.

1. The North Carolina Medical Board shall appoint and maintain a subcommittee to work jointly with a subcommittee of the Board of Nursing to develop rules to govern the performance of medical acts by registered nurses, including the determination of reasonable fees to accompany an application for approval not to exceed one hundred dollars ($100.00) and for renewal of approval not to exceed fifty dollars ($50.00). Rules developed by this subcommittee from time to time shall govern the performance of medical acts by registered nurses and shall become effective when adopted by both the North Carolina Medical Board and the Board of Nursing. The North Carolina Medical Board shall have responsibility for securing compliance with these rules.
2. The North Carolina Medical Board shall appoint and maintain a subcommittee of four licensed physicians to work jointly with a subcommittee of the North Carolina Board of Pharmacy to develop rules to govern the performance of medical acts by clinical pharmacist practitioners, including the determination of reasonable fees to accompany an application for approval not to exceed one hundred dollars ($100.00) and for renewal of approval not to exceed fifty dollars ($50.00). Rules recommended by the subcommittee shall be adopted in accordance with Chapter 150B of the General Statutes by both the North Carolina Medical Board and the North Carolina Board of Pharmacy and shall not become effective until adopted by both Boards. The North Carolina Medical Board shall have responsibility for ensuring compliance with these rules.

History

(C.S., s. 6610; 1921, c. 47, s. 5; Ex. Sess. 1921, c. 44, s. 2; 1973, c. 92, s. 2; 1981, c. 665, s. 1; 1983, c. 53; 1995, c. 94, s. 9; c. 405, s. 2; 1999-290, s. 1; 2007-346, s. 7; 2007-418, s. 3.)

Editor's Note. - This section is former G.S. 90-6(b) and (c), recodified as G.S. 90-8.2(a) and (b), respectively, effective October 1, 2007, by Session Laws 2007-346, s. 7.

Session Laws 2006-144, s. 10(a) and (b), provide: "(a) The subcommittee of the North Carolina Medical Board and the subcommittee of the Board of Nursing, directed to work jointly to develop rules to govern the performance of medical acts by registered nurses pursuant to G.S. 90-6(b), shall examine adding the provisions of G.S. 90-14(a) to their joint rules that set forth grounds for action against a registered nurse's approval to perform medical acts.

"(b) The subcommittee of the North Carolina Medical Board and the subcommittee of the North Carolina Board of Pharmacy, directed to work jointly to develop rules to govern the performance of medical acts by clinical pharmacist practitioners pursuant to G.S. 90-6(c), shall examine adding the provisions of G.S. 90-14(a) to the joint rules that set forth grounds for action against a clinical pharmacist practitioner's approval to perform medical acts."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.5(a)-(e), as amended by Session Laws 2021-3, s. 2.17, provides: "(a) For purposes of this section, the following definitions apply:

"(1) Quality improvement plan rules. - The rules regulating the quality improvement process for physician assistants and nurse practitioners found in 21 NCAC 32S.0213, 21 NCAC 32M.0110, and 21 NCAC 36.0810.

"(2) Application fee rules. - The portions of rules found in 21 NCAC 32S.0204, 21 NCAC 32M.0115, and 21 NCAC 36.0813 that require the payment of an application fee.

"(3) Annual review rules. - The portions of rules requiring the annual review or renewal of a practice arrangement between a physician and a physician assistant or nurse practitioner found in 21 NCAC 32S.0201, 21 NCAC 32M.0110, and 21 NCAC 36.0806.

"(b) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules to the extent they require any of the following:

"(1) Quality improvement process meetings between a physician and a physician assistant or nurse practitioner, provided that the physician assistant or nurse practitioner was practicing within the scope of his or her license prior to February 1, 2020, and continues to practice within the scope of his or her license while this section is effective.

"(2) Monthly quality improvement process meetings between a physician and a physician assistant or nurse practitioner during the first six months of the practice arrangement between the physician and the physician assistant or nurse practitioner.

"(c) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules or the application fee rules to the extent they require any individual to fill out an application or pay a fee, provided that individual is providing volunteer health care services within the scope of his or her license in response to the COVID-19 pandemic state of emergency declared by the Governor of North Carolina on March 10, 2020.

"(d) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the annual review rules.

"(e) This section is effective when it becomes law and expires December 31, 2022."

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

Effect of Amendments. - Session Laws 2007-418, s. 3, effective October 1, 2007, deleted the language "The fee for reactivation of an inactive incomplete application shall be five dollars ($5.00)" in subsections (a) and (b).

§ 90-9: Repealed by Session Laws 2007-418, s. 2, effective October 1, 2007.

§ 90-9.1. Requirements for licensure as a physician under this Article.

1. Except as provided in G.S. 90-9.2, to be eligible for licensure as a physician under this Article, an applicant shall submit proof satisfactory to the Board that the applicant meets all of the following criteria:
   1. The applicant has passed each part of an examination described in G.S. 90-10.1.
   2. The applicant has completed at least 130 weeks of medical education and satisfies any of the following:
      1. The applicant is a graduate of a medical college approved by the Liaison Commission on Medical Education, the Committee for the Accreditation of Canadian Medical Schools, or an osteopathic college approved by the American Osteopathic Association and has successfully completed one year of training in a medical education program approved by the Board after graduation from medical school; or
      2. The applicant is a graduate of a medical college approved or accredited by the Liaison Committee on Medical Education, the Committee on Accreditation of Canadian Medical Schools, or an osteopathic college approved by the American Osteopathic Association, is a dentist licensed to practice dentistry under Article 2 of Chapter 90 of the General Statutes, and has been certified by the American Board of Oral and Maxillofacial Surgery after having completed a residency in an Oral and Maxillofacial Surgery Residency program approved by the Board before completion of medical school.
      3. The applicant may satisfy the education and graduation requirements of subdivision (2) of this subsection by providing proof of current certification by a specialty board recognized by the American Board of Medical Specialties, Certificate of the College of Family Physicians, Fellowship of the Royal College of Physicians of Canada, Fellowship of the Royal College of Surgeons of Canada, American Osteopathic Association, the American Board of Oral and Maxillofacial Surgery, or any other specialty board the Board recognizes pursuant to rules.
   3. The applicant is of good moral character.
2. No license may be granted to any applicant who graduated from a medical or osteopathic college that has been disapproved by the Board pursuant to rules adopted by the Board.
3. The Board may, by rule, require an applicant to comply with other requirements or submit additional information the Board deems appropriate.

History

(2007-346, s. 9; 2019-191, s. 11.)

Effect of Amendments. - Session Laws 2019-191, s. 11, effective October 1, 2019, rewrote subsection (a).

§ 90-9.2. Requirements for graduates of international medical schools.

1. To be eligible for licensure under this section, an applicant who is a graduate of a medical school not approved by the Liaison Commission on Medical Education, the Committee for the Accreditation of Canadian Medical Schools, or the American Osteopathic Association shall submit proof satisfactory to the Board that the applicant has met all of the following:
   1. The applicant has successfully completed two years of training in a medical education program approved by the Board after graduation from medical school, or provides proof of current certification by a specialty board recognized by the American Board of Medical Specialties, Certificate of the College of Family Physicians, Fellowship of the Royal College of Physicians of Canada, Fellowship of the Royal College of Surgeons of Canada, American Osteopathic Association, the American Board of Oral and Maxillofacial Surgery, or any specialty board the Board recognizes pursuant to rules.
   2. The applicant has good moral character.
   3. The applicant has a currently valid standard certificate of Educational Commission for Foreign Medical Graduates.
   4. The applicant has the ability to communicate in English.
   5. The applicant has successfully passed each part of an examination described in G.S. 90-10.1.
2. The Board may waive ECFMG certification if the applicant:
   1. Has passed the ECFMG examination and successfully completed an approved Fifth Pathway Program. The applicant is required to provide the original ECFMG Certification Status Report from the ECFMG; or
   2. Has been licensed in another state on the basis of written examination before the establishment of ECFMG in 1958.
3. The Board may, by rule, require an applicant to comply with other requirements or submit additional information the Board deems appropriate.

History

(2007-346, s. 9; 2019-191, s. 12.)

Effect of Amendments. - Session Laws 2019-191, s. 12, effective October 1, 2019, substituted "international" for "foreign" in the section heading; and rewrote subsection (a).

§ 90-9.3. Requirements for licensure as a physician assistant.

1. To be eligible for licensure as a physician assistant, an applicant shall submit proof satisfactory to the Board that the applicant has met all of the following:
   1. The applicant has successfully completed an educational program for physician assistants or surgeon assistants accredited by the Accreditation Review Commission on Education for the Physician Assistant or its predecessor or successor entities.
   2. The applicant has a current or previous certification issued by the National Commission on Certification of Physician Assistants or its successor.
   3. The applicant is of good moral character.
2. Before initiating practice of medical acts, tasks, or functions as a physician assistant, the physician assistant shall provide the Board the name, address, and telephone number of the physician who will supervise the physician assistant in the relevant medical setting.
3. The Board may, by rule, require an applicant to comply with other requirements or submit additional information the Board deems appropriate.

History

(2007-346, s. 9; 2019-191, s. 13.)

Editor's Note. - Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.5(a)-(e), as amended by Session Laws 2021-3, s. 2.17, provides: "(a) For purposes of this section, the following definitions apply:

"(1) Quality improvement plan rules. - The rules regulating the quality improvement process for physician assistants and nurse practitioners found in 21 NCAC 32S.0213, 21 NCAC 32M.0110, and 21 NCAC 36.0810.

"(2) Application fee rules. - The portions of rules found in 21 NCAC 32S.0204, 21 NCAC 32M.0115, and 21 NCAC 36.0813 that require the payment of an application fee.

"(3) Annual review rules. - The portions of rules requiring the annual review or renewal of a practice arrangement between a physician and a physician assistant or nurse practitioner found in 21 NCAC 32S.0201, 21 NCAC 32M.0110, and 21 NCAC 36.0806.

"(b) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules to the extent they require any of the following:

"(1) Quality improvement process meetings between a physician and a physician assistant or nurse practitioner, provided that the physician assistant or nurse practitioner was practicing within the scope of his or her license prior to February 1, 2020, and continues to practice within the scope of his or her license while this section is effective.

"(2) Monthly quality improvement process meetings between a physician and a physician assistant or nurse practitioner during the first six months of the practice arrangement between the physician and the physician assistant or nurse practitioner.

"(c) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules or the application fee rules to the extent they require any individual to fill out an application or pay a fee, provided that individual is providing volunteer health care services within the scope of his or her license in response to the COVID-19 pandemic state of emergency declared by the Governor of North Carolina on March 10, 2020.

"(d) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the annual review rules.

"(e) This section is effective when it becomes law and expires December 31, 2022."

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

Effect of Amendments. - Session Laws 2019-191, s. 13, effective October 1, 2019, rewrote subsection (a); and deleted the former second sentence of subsection (c), which read: "The Board may set fees for physician assistants pursuant to rules adopted by the Board.".

§ 90-9.4. Requirements for licensure as an anesthesiologist assistant.

Every applicant for licensure as an anesthesiologist assistant in the State shall meet the following criteria:

1. Satisfy the North Carolina Medical Board that the applicant is of good moral character.
2. Submit to the Board proof of completion of a graduate level training program accredited by the Commission of Accreditation of Allied Health Education Programs or its successor organization.
3. Submit to the Board proof of current certification from the National Commission of Certification of Anesthesiologist Assistants (NCCAA) or its successor organization. The applicant shall take the certification exam within 12 months after completing training.
4. Meet any additional qualifications for licensure pursuant to rules adopted by the Board.

History

(2007-346, s. 9; 2019-191, s. 14.)

Effect of Amendments. - Session Laws 2019-191, s. 14, effective October 1, 2019, substituted "organization" for "organization, including passage of a certification examination administered by the NCCAA" at the end of the first sentence in subdivision (3).

§ 90-9.5. Inactive licenses.

The Board retains jurisdiction over an inactive license, regardless of how it became inactive, including a request for inactivation, surrender of a license, or by operation of an order entered by the Board. The Board's jurisdiction over the licensee extends for all matters, known and unknown to the Board, at the time of the inactivation or surrender of the license.

History

(2019-191, s. 15.)

Editor's Note. - Session Laws 2019-191, s. 46, made this section effective October 1, 2019.

§ 90-10: Repealed by Session Laws 2007-418, s. 2, effective October 1, 2007.

§ 90-10.1. Examinations accepted by the Board.

The Board may administer or accept the following examinations for licensure:

1. Repealed by Session Laws 2019-191, s. 16, effective October 1, 2019.
2. The National Board of Medical Examiners (NBME) examination or its successor.
3. The United States Medical Licensing Examination (USMLE) of this section or its successor.
4. The Federation Licensing Examination (FLEX) or its successor.
5. Other examinations the Board deems equivalent to the examinations described in subdivisions (1) through (3) of this section pursuant to rules adopted by the Board.

History

(2007-346, s. 10; 2019-191, s. 16.)

Effect of Amendments. - Session Laws 2019-191, s. 16, effective October 1, 2019, deleted subdivision (1).

§ 90-11. Criminal background checks.

1. Repealed by Session Laws 2007-346, s. 11, effective October 1, 2007.
2. Repealed by Session Laws 2007-346, s. 9.1, effective October 1, 2007.
3. The Department of Public Safety may provide a criminal record check to the Board for a person who has applied for a license through the Board. The Board shall provide to the Department of Public Safety, along with the request, the fingerprints of the applicant, any additional information required by the Department of Public Safety, and a form signed by the applicant consenting to the check of the criminal record and to the use of the fingerprints and other identifying information required by the State or national repositories. The applicant's fingerprints shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of the fingerprints to the Federal Bureau of Investigation for a national criminal history check. The Board shall keep all information pursuant to this subsection privileged, in accordance with applicable State law and federal guidelines, and the information shall be confidential and shall not be a public record under Chapter 132 of the General Statutes.

The Department of Public Safety may charge each applicant a fee for conducting the checks of criminal history records authorized by this subsection. The Board has the authority to collect this fee from each applicant and remit it to the Department of Public Safety.

History

(C.S., s. 6615; 1921, c. 47, s. 3; Ex. Sess. 1921, c. 44, s. 5; 1971, c. 1150, s. 3; 1981, c. 573, s. 7; 1995, c. 94, s. 12; 1997-511, s. 2; 2002-147, s. 6; 2007-146, s. 1; 2007-346, ss. 9.1, 11; 2014-100, s. 17.1(o); 2019-191, s. 17.)

Editor's Note. - Session Laws 2007-146, s. 1, effective June 29, 2007, added G.S. 90-11(a1). Session Laws 2007-346, s. 9.1, repealed Session Laws 2007-146, s. 1, effective October 1 2007. As added by Session Laws 2007-146, s. 1, G.S. 90-11(a1) read:

"(a1) Every applicant for licensure as an anesthesiologist assistant in the State shall meet the following criteria:

"(1) Satisfy the North Carolina Medical Board that the applicant is of good moral character.

"(2) Submit to the Board proof of completion of a graduate level training program accredited by the Commission of Accreditation of Allied Health Education Programs or its successor organization.

"(3) Submit to the Board proof of current certification from the National Commission of Certification of Anesthesiologist Assistants (NCCAA) or its successor organization, including passage of a certification examination administered by the NCCAA. The applicant shall take the certification exam within 12 months after completing training.

"(4) Meet any additional qualifications for licensure pursuant to rules adopted by the Board." For a similar provision, see G.S. 90-9.4, enacted by Session Laws 2007-346, s. 9.

Effect of Amendments. - Session Laws 2007-346, s. 11, effective October 1, 2007, rewrote the section heading; deleted subsection (a) which required North Carolina Medical Board applicants to meet moral character standards and other qualifications for licensure.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted "Department of Public Safety" for "Department of Justice" three times in the first paragraph of subsection (b) and at the beginning of the last paragraph of subsection (b).

Session Laws 2019-191, s. 17, effective October 1, 2019, added the last sentence in the concluding paragraph of subsection (b).

§ 90-12: Repealed by Session Laws 2007-346, s. 12, effective October 1, 2007.

Cross References. - For current provisions as to limited license to practice in a medical education and training program, see G.S. 90-12.01.

§ 90-12.01. Limited license to practice in a medical education and training program.

1. As provided in rules adopted by the Board, the Board may issue a limited license known as a "resident's training license" to a physician not otherwise licensed by the Board who is participating in a graduate medical education training program.
2. A resident's training license shall become inactive at the time its holder ceases to be a resident in a training program or obtains any other license to practice medicine issued by the Board. The Board shall retain jurisdiction over the holder of the inactive license.
3. The program director of every graduate medical education program shall report to the Board the following actions involving a physician participating in a graduate medical education training program within 30 days of the date that the action takes effect:
   1. Any revocation or termination, including, but not limited to, any nonrenewal or dismissal of a physician from a graduate medical education training program.
   2. A resignation from, or completion of, a graduate medical education program or a transfer to another graduate medical education training program.

History

(2007-418, s. 4; 2019-191, s. 18.)

Editor's Note. - Session Laws 2007-418, s. 4, enacted this section as G.S. 90-12A. It has been renumbered as this section at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2019-191, s. 18, effective October 1, 2019, added subsection (c).

§ 90-12.1: Recodified as G.S. 90-12.4, by Session Laws 2007-346, s. 7, effective October 1, 2007.

§ 90-12.1A. Limited volunteer license.

1. The Board may issue a "limited volunteer license" to an applicant who does all of the following:
   1. Has a license to practice medicine and surgery in another state.
   2. Produces a verification from the state of licensure indicating the applicant's license is active and in good standing.
   3. Repealed by Session Laws 2011-355, s. 1, effective June 27, 2011.
2. ,  (c) Repealed by Session Laws 2011-355, s. 1, effective June 27, 2011.
3. The Board shall issue a limited license under this section within 30 days after an applicant provides the Board with information satisfying the requirements of this section.
4. The holder of a limited license under this section may practice medicine and surgery only in association with clinics that specialize in the treatment of indigent patients. The holder of the limited license may not receive compensation for services rendered at clinics specializing in the care of indigent patients.
5. The holder of a limited volunteer license shall practice medicine and surgery within this State for no more than 30 days per calendar year.
6. The holder of a limited license issued pursuant to this section who practices medicine or surgery outside of an association with clinics that specialize in the treatment of indigent patients shall be guilty of a Class 3 misdemeanor and, upon conviction, shall be fined not more than five hundred dollars ($500.00) for each offense. The Board, in its discretion, may revoke the limited license after due notice is given to the holder of the limited license.
7. The Board may, by rule, require an applicant for a limited license under this section to comply with other requirements or submit additional information the Board deems appropriate.

History

(2007-418, s. 5; 2011-183, s. 54; 2011-355, ss. 1, 8; 2019-191, s. 19.)

Editor's Note. - Session Laws 2011-355, s. 8, effective June 27, 2011, repealed Session Laws 2011-183, s. 54, which would have amended subdivision (a)(3) of this section effective June 20, 2011.

Effect of Amendments. - Session Laws 2011-355, s. 1, effective June 27, 2011, deleted "military" preceding "limited" in the introductory paragraph of subsection (a); substituted "indicating the applicant's license is active and in good standing" for "indicating the applicant is in good standing" in subdivision (a)(2); deleted subdivision (a)(3), which read: "Is authorized to treat personnel enlisted in a branch of the United States armed services or veterans"; deleted subsection (b), which read: "The board may issue a 'retired limited volunteer license' to an applicant who is a retired physician and has allowed his or her license to practice medicine and surgery in this State or another state to become inactive"; deleted subsection (c), which read: "A physician holding a limited license under this section shall comply with the continuing medical education requirements pursuant to rules adopted by the Board"; and added subsection (e1).

Session Laws 2019-191, s. 19, effective October 1, 2019, substituted "who does all of the following" for "who" in the introductory paragraph of subsection (a); substituted "state" for "state; and" in subdivision (a)(1); substituted "verification" for "letter" in subdivision (a)(2); substituted "in association with clinics" for "at clinics" in the first sentence of subsection (e); and, in the first sentence of subsection (f), substituted "outside of an association with" for "at places other than", and "not more than five hundred dollars ($500.00)" for "not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00)."

§ 90-12.1B. Retired limited volunteer license.

1. The Board may issue a "retired limited volunteer license" to an applicant who is a physician and who has allowed his or her license to practice medicine and surgery in this State or another state to become inactive.
2. A physician holding a limited license under this section shall comply with the continuing medical education requirements pursuant to rules adopted by the Board.
3. The holder of a limited license under this section may practice medicine and surgery only in association with clinics that specialize in the treatment of indigent patients. The holder of the limited license may not receive compensation for services rendered at clinics specializing in the care of indigent patients.
4. The Board shall issue a limited license under this section within 30 days after an applicant provides the Board with information satisfying the requirements of this section.
5. The holder of a limited license issued pursuant to this section who practices medicine or surgery outside of an association with clinics that specialize in the treatment of indigent patients shall be guilty of a Class 3 misdemeanor and, upon conviction, shall be fined not more than five hundred dollars ($500.00) for each offense. The Board, in its discretion, may revoke the limited license after due notice is given to the holder of the limited license.
6. The Board may, by rule, require an applicant for a limited license under this section to comply with other requirements or submit additional information the Board deems appropriate.

History

(2011-355, s. 2; 2019-191, s. 20.)

Effect of Amendments. - Session Laws 2019-191, s. 20, effective October 1, 2019, substituted "in association with clinics" for "at clinics" in the first sentence of subsection (c); and substituted "outside of an association with" for "at places other than", and "not more than five hundred dollars ($500.00)" for "not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00)" in the first sentence of subsection (e).

§ 90-12.2: Recodified as G.S. 90-12.5, by Session Laws 2007-346, s. 7, effective October 1, 2007.

§ 90-12.2A. Special purpose license.

1. The Board may issue a special purpose license to practice medicine to an applicant who does all of the following:
   1. Holds a full and unrestricted license to practice in at least one other jurisdiction.
   2. Does not have any current or pending disciplinary or other action against him or her by any medical licensing agency in any state or other jurisdiction.
2. The holder of the special purpose license practicing medicine or surgery beyond the limitations of the license shall be guilty of a Class 3 misdemeanor and, upon conviction, shall be fined not more than five hundred dollars ($500.00) for each offense. The Board, at its discretion, may revoke the special license after due notice is given to the holder of the special purpose license.
3. The Board may adopt rules and set fees as appropriate to implement the provisions of this section.

History

(2007-418, s. 6; 2019-191, s. 21.)

Effect of Amendments. - Session Laws 2019-191, s. 21, effective October 1, 2019, substituted "who does all of the following" for "who" in the introductory paragraph of subsection (a); substituted "jurisdiction" for "jurisdiction; and" in subdivision (a)(1); and substituted "not more than five hundred dollars ($500.00)" for "not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00)" in subsection (b).

§ 90-12.3. Medical school faculty license.

1. The Board may issue a medical school faculty license to practice medicine and surgery to a physician who has met all of the following:
   1. The applicant holds a full-time faculty appointment as either an instructor, lecturer, assistant professor, associate professor, or full professor at a North Carolina medical school that is certified by the Liaison Committee on Medical Education or the Commission of Osteopathic College Accreditation of the American Osteopathic Association.
   2. The applicant is not subject to disciplinary order or other action by any medical licensing agency in any state or other jurisdiction.
2. The holder of the medical school faculty license issued under this section shall not practice medicine or surgery outside the confines of the medical school or its affiliates. The holder of the medical school faculty license practicing medicine or surgery beyond the limitations of the license shall be guilty of a Class 3 misdemeanor and, upon conviction, shall be fined not more than five hundred dollars ($500.00) for each offense. The Board, at its discretion, may revoke the special license after due notice is given to the holder of the medical school faculty license.
3. A medical school faculty license shall become inactive at the time its holder does one or more of the following:
   1. Ceases to hold a full-time appointment as an instructor, lecturer, assistant professor, or full professor at a certified North Carolina medical school.
   2. Ceases to be employed in a full-time capacity by a certified North Carolina medical school.
   3. Obtains any other license to practice medicine issued by the Board.
4. The Board may adopt rules and set fees related to issuing medical school faculty licenses. The Board may, by rule, set a time limit for the term of a medical school faculty license.

The Board shall retain jurisdiction over the holder of the inactive license.

History

(2007-418, s. 7; 2019-191, s. 22.)

Effect of Amendments. - Session Laws 2019-191, s. 22, effective October 1, 2019, rewrote subsections (a) and (b); and added subsection (b1).

§ 90-12.4. Physician assistant limited volunteer license.

1. The Board shall issue a limited volunteer license to an applicant who:
   1. Holds a current license or registration in another state; and
   2. Produces a letter from the state of licensure indicating the applicant's license or registration is active and in good standing.
2. The Board shall issue a limited license under this section within 30 days after the applicant provides the Board with information satisfying the requirements of this section.
3. The holder of a limited license may perform medical acts, tasks, or functions as a physician assistant only in association with clinics that specialize in the treatment of indigent patients. The holder of a limited license may not receive payment or other compensation for services rendered at clinics specializing in the care of indigent patients. The holder of a limited volunteer license shall practice as a physician assistant within this State for no more than 30 days per calendar year.
4. Before initiating the performance of medical acts, tasks, or functions as a physician assistant licensed under this section, the physician assistant shall provide the Board the name, address, and telephone number of the physician licensed under this Article who will supervise the physician assistant in the clinic specializing in the care of indigent patients.
5. The holder of a limited license issued pursuant to this section who practices as a physician assistant outside an association with clinics that specialize in the treatment of indigent patients shall be guilty of a Class 3 misdemeanor and, upon conviction, shall be fined not more than five hundred dollars ($500.00) for each offense. The Board, in its discretion, may revoke the limited license after due notice is given to the holder of the limited license.
6. The Board may, by rule, require an applicant for a limited license under this section to comply with other requirements or submit additional information the Board deems appropriate.

History

(1997-511, s. 3; 2007-346, s. 7; 2011-355, s. 3; 2019-191, s. 23.)

Editor's Note. - This section is former G.S. 90-12.1, recodified as G.S. 90-12.4, effective October 1, 2007, by Session Laws 2007-346, s. 7. G.S. 90-12.4 was subsequently renumbered as G.S. 90-12.4A by Acts 2011-355, s. 3, effective June 27, 2011. At the direction of the Revisor of Statutes, the numbering of this section as G.S. 90-12.4 has been retained.

Effect of Amendments. - Session Laws 2011-355, s. 3, effective June 27, 2011, rewrote the section.

Session Laws 2019-191, s. 23, effective October 1, 2019, substituted "in association with clinics" for "at clinics" in the first sentence of subsection (c); and, in the first sentence of subsection (e), substituted "outside of an association with" for "at places other than", and "not more than five hundred dollars ($500.00)" for "not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00)."

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

§ 90-12.4A: Reserved for future codification purposes.

§ 90-12.4B. Physician Assistant retired limited volunteer license.

1. The Board may issue a "retired limited volunteer license" to an applicant who is a physician assistant and who has allowed his or her license to become inactive.
2. A physician assistant holding a retired limited volunteer license under this section shall comply with the continuing medical education requirements pursuant to rules adopted by the Board.
3. The holder of a retired limited volunteer license under this section may perform medical acts, tasks, or functions as a physician assistant only in association with clinics that specialize in the treatment of indigent patients. The holder of a retired limited volunteer license may not receive compensation for services rendered at clinics specializing in the care of indigent patients.
4. The Board shall issue a retired limited volunteer license under this section within 30 days after an applicant provides the Board with information satisfying the requirements of this section.
5. The holder of a retired limited volunteer license issued pursuant to this section who practices as a physician assistant outside an association with clinics that specialize in the treatment of indigent patients shall be guilty of a Class 3 misdemeanor and, upon conviction, shall be fined not more than five hundred dollars ($500.00) for each offense. The Board, in its discretion, may revoke the limited license after due notice is given to the holder of the limited license.
6. The Board may, by rule, require an applicant for a retired limited volunteer license under this section to comply with other requirements or submit additional information the Board deems appropriate.

History

(2011-355, s. 4; 2019-191, s. 24.)

Effect of Amendments. - Session Laws 2019-191, s. 24, effective October 1, 2019, substituted "in association with clinics" for "at clinics" in the first sentence of subsection (c); and, in the first sentence of subsection (e), substituted "outside of an association with" for "at places other than", and "not more than five hundred dollars ($500.00)" for "not less than twenty-five dollars ($25.00) nor more than fifty dollars ($50.00)."

§ 90-12.5. Disasters and emergencies.

In the event of an occurrence which the Governor of the State of North Carolina has declared a state of emergency, or in the event of an occurrence for which a county or municipality has enacted an ordinance to deal with states of emergency under G.S. 166A-19.31, or to protect the public health, safety, or welfare of its citizens under Article 22 of Chapter 130A of the General Statutes, G.S. 160A-174(a) or G.S. 153A-121(a), as applicable, the Board may waive the requirements of this Article in order to permit the provision of emergency health services to the public.

History

(2002-179, s. 20(a); 2007-346, s. 7; 2012-12, s. 2(ff).)

Cross References. - As to emergency management efforts, generally, see G.S. 166A-19 et seq.

Editor's Note. - This section is former G.S. 90-12.2, recodified as G.S. 90-12.5, effective October 1, 2007, by Session Laws 2007-346, s. 7.

Effect of Amendments. - Session Laws 2012-12, s. 2(ff), effective October 1, 2012, deleted "a disaster or when the Governor has declared" preceding "a state of emergency," and substituted "G.S. 166A-19.31" for "G.S. 14-288.12, 14-288.13, or 14-288.14."

§ 90-12.7. Treatment of overdose with opioid antagonist; immunity.

1. As used in this section, "opioid antagonist" means naloxone hydrochloride that is approved by the federal Food and Drug Administration for the treatment of a drug overdose.
2. The following individuals may prescribe an opioid antagonist in the manner prescribed by this subsection:
   1. A practitioner acting in good faith and exercising reasonable care may directly or by standing order prescribe an opioid antagonist to (i) a person at risk of experiencing an opiate-related overdose or (ii) a family member, friend, or other person in a position to assist a person at risk of experiencing an opiate-related overdose. As an indicator of good faith, the practitioner, prior to prescribing an opioid under this subsection, may require receipt of a written communication that provides a factual basis for a reasonable conclusion as to either of the following:
      1. The person seeking the opioid antagonist is at risk of experiencing an opiate-related overdose.
      2. The person other than the person who is at risk of experiencing an opiate-related overdose, and who is seeking the opioid antagonist, is in relation to the person at risk of experiencing an opiate-related overdose:
         1. A family member, friend, or other person.
         2. In the position to assist a person at risk of experiencing an opiate-related overdose.
   2. The State Health Director or a designee may prescribe an opioid antagonist pursuant to subdivision (1) of this subsection by means of a statewide standing order.
   3. A practitioner acting in good faith and exercising reasonable care may directly or by standing order prescribe an opioid antagonist to any governmental or nongovernmental organization, including a local health department, a law enforcement agency, or an organization that promotes scientifically proven ways of mitigating health risks associated with substance use disorders and other high-risk behaviors, for the purpose of distributing, through its agents, the opioid antagonist to (i) a person at risk of experiencing an opiate-related overdose or (ii) a family member, friend, or other person in a position to assist a person at risk of experiencing an opiate-related overdose.
3. A pharmacist may dispense an opioid antagonist to a person or organization pursuant to a prescription issued in accordance with subsection (b) of this section. For purposes of this section, the term "pharmacist" is as defined in G.S. 90-85.3.
4. A governmental or nongovernmental organization, including a local health department, a law enforcement agency, or an organization that promotes scientifically proven ways of mitigating health risks associated with substance use disorders and other high-risk behaviors may, through its agents, distribute an opioid antagonist obtained pursuant to a prescription issued in accordance with subdivision (3) of subsection (b) of this section to (i) a person at risk of experiencing an opiate-related overdose or (ii) a family member, friend, or other person in a position to assist a person at risk of experiencing an opiate-related overdose. An organization, through its agents, shall include with any distribution of an opioid antagonist pursuant to this subsection basic instruction and information on how to administer the opioid antagonist.
5. A person who receives an opioid antagonist that was prescribed pursuant to subsection (b) of this section or distributed pursuant to subsection (c1) of this section may administer an opioid antagonist to another person if (i) the person has a good faith belief that the other person is experiencing a drug-related overdose and (ii) the person exercises reasonable care in administering the drug to the other person. Evidence of the use of reasonable care in administering the drug shall include the receipt of basic instruction and information on how to administer the opioid antagonist.
6. All of the following individuals are immune from any civil or criminal liability for actions authorized by this section:
   1. Any practitioner who prescribes an opioid antagonist pursuant to subsection (b) of this section.
   2. Any pharmacist who dispenses an opioid antagonist pursuant to subsection (c) of this section.
   3. Any person who administers an opioid antagonist pursuant to subsection (d) of this section.
   4. The State Health Director acting pursuant to subsection (b) of this section.
   5. Any organization, or agent of the organization, that distributes an opioid antagonist pursuant to subsection (c1) of this section.

History

(2013-23, s. 2; 2015-94, s. 3; 2016-17, s. 2; 2017-74, s. 2; 2017-102, s. 37(a), (b).)

Pilot Program to Treat Opiate Overdose. - Session Laws 2017-57, s. 16.3A(a), (b), provides: "(a) Pilot Project. - The Department of Public Safety, in conjunction with the City of Wilmington, shall develop and implement a pilot project to establish a Quick Response Team (QRT) to address the needs of opiate and heroin overdose victims who are not getting follow-up treatment. The QRT shall be staffed by firefighters, police officers, medics, behavioral health specialists, and other law enforcement as determined by the Department of Public Safety and the City of Wilmington. The Department of Public Safety and the City of Wilmington shall work together to develop the policy and procedures for the QRT. In doing so, all of the following shall be considered:

"(1) Increase engagement and treatment with family counseling and recovery groups.

"(2) Provide follow-up care to survivable overdose incidents with police or medics and licensed counselors.

"(3) Provide short-term and long-term support to overdose victims and families.

"(4) Provide follow-up within three to five days after an initial incident.

"(5) Create a fatality review panel to analyze and keep track of the deaths of those served by QRT.

"(b) Report. - The Department of Public Safety and the City of Wilmington shall report on the results of the pilot project to the chairs of the Joint Legislative Oversight Committee on Justice and Public Safety by February 1, 2019."

Editor's Note. - This section was formerly codified as G.S. 90-106.2. It was recodified as G.S. 90-12.7 by Session Laws 2016-17, s. 1, effective June 20, 2016.

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 2017-74, provides in its preamble: "Whereas, the General Assembly recognizes the substantial impact the nationwide opioid epidemic continues to have on the State of North Carolina; and

"Whereas, North Carolina has seen a 442% increase in overdose deaths caused by commonly prescribed opioids between 1999 and 2015; and

"Whereas, the General Assembly fully recognizes the appropriate use of opioids in the treatment of acute and chronic pain; Now, therefore,"

Session Laws 2017-74, s. 1, provides: "This act shall be known and may be cited as the 'Strengthen Opioid Misuse Prevention Act of 2017' or the 'STOP Act.'"

Effect of Amendments. - Session Laws 2015-94, s. 3, effective August 1, 2015, added subsection (b1); and added subdivision (d)(1a). For applicability, see editor's note.

Session Laws 2016-17, s. 2, effective June 16, 2016, added "The following individuals may prescribe an opioid antagonist in the manner prescribed by this subsection" at the beginning of subsection (b); added the subdivision (b)(1) designation and made related redesignations; added subdivision (b)(2); in subsection (b1), substituted "subsection (b)(1)" for "subdivision (b)" following "to a person described in" and made a stylistic change; and added subdivision (d)(3).

Session Laws 2017-74, s. 2, effective July 1, 2017, added subdivisions (b)(3) and (e)(5) and subsection (c1); in subsection (c), substituted "or organization" for "described in subdivision (b)(1) of this section" and "in accordance with" for "pursuant to"; and inserted "or distributed pursuant to subsection (c1) of this section" in subsection (d).

Legal Periodicals. - For article, "Physicians' Elusive Public Health Duties," see 99 N.C.L. Rev. 923 (2021).

§ 90-13: Repealed by Session Laws 2007-418, s. 2, effective October 1, 2007.

§ 90-13.1. License fees.

1. Each applicant for a license to practice medicine and surgery in this State under either G.S. 90-9.1 or G.S. 90-9.2 shall pay to the North Carolina Medical Board an application fee of four hundred dollars ($400.00).
2. Each applicant for a limited license to practice in a medical education and training program under G.S. 90-12.01 shall pay to the Board a fee of one hundred dollars ($100.00).
3. An applicant for a limited volunteer license under G.S. 90-12.1A or G.S. 90-12.1B shall not pay a fee.
4. A fee of twenty-five dollars ($25.00) shall be paid for the issuance of a duplicate license.
5. All fees shall be paid in advance to the North Carolina Medical Board, to be held in a fund for the use of the Board.
6. For the initial and annual licensure of an anesthesiologist assistant, the Board may require the payment of a fee not to exceed one hundred fifty dollars ($150.00).

History

(1858-9, c. 258, s. 13; Code, s. 3130; Rev., s. 4501; 1913, c. 20, ss. 4, 5; C.S., s. 6619; 1921, c. 47, s. 5; Ex. Sess. 1921, c. 44, s. 7; 1953, c. 187; 1969, c. 929, s. 4; 1971, c. 817, s. 2; c. 1150, s. 5; 1977, c. 838, s. 4; 1979, c. 196, s. 1; 1981, c. 573, s. 15; 1983 (Reg. Sess., 1984), c. 1063, s. 1; 1985, c. 362, ss. 1-3; 1987, c. 859, ss. 13, 14; 1993 (Reg. Sess., 1994), c. 566, s. 2; 1995, c. 94, s. 15; c. 509, s. 37; 2000-5, s. 2; 2005-402, s. 5; 2007-146, s. 2; 2007-346, ss. 7, 13(a); 2007-418, s. 8; 2011-355, s. 5; 2016-117, s. 2(h).)

Editor's Note. - This section is former G.S. 90-15, recodified as G.S. 90-13.1, effective October 1, 2007, by Session Laws 2007-346, s. 7.

Session Laws 2007-146, s. 2, effective June 27, 2007, added a paragraph at the end of former G.S. 90-15, which was subsequently recodified as this section by Session Laws 2007-346, s. 7. The amendments by Session Laws 2007-346, s. 13(a), and Session Laws 2007-418, s. 8, did not show (and therefore did not delete) the paragraph on anesthesiologist assistants fees added by Session Laws 2007-146, s. 2. As a result, that paragraph was set out above and designated as subsection (f) at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2005-402, s. 5, effective September 19, 2005, in the first paragraph, rewrote the first and second sentences and substituted "one hundred dollars ($100.00)" for "twenty-five dollars ($25.00)" in the second sentence.

Session Laws 2007-346, ss. 7 and 13(a), effective October 1, 2007, recodified G.S. 90-15 as this section; rewrote the section heading, which formerly read "License fee; salaries, fees, and expenses of Board"; and deleted the former last three sentences of the first paragraph, and deleted the former final paragraph.

Session Laws 2007-418, s. 8, effective October 1, 2007, rewrote the section.

Session Laws 2011-355, s. 5, effective June 27, 2011, inserted "or G.S. 90-12.1B" in subsection (c).

Session Laws 2016-117, s. 2(h), effective October 1, 2016, substituted "four hundred dollars ($400.00)" for "three hundred fifty dollars ($350.00)" at the end of subsection (a).

§ 90-13.2. Registration every year with Board.

1. Every licensee shall register annually with the Board no later than 30 days after the person's birthday.
2. A person who registers with the Board shall report to the Board the person's name and office and residence address and any other information required by the Board, and shall pay an annual registration fee of two hundred fifty dollars ($250.00), except those who have a limited license to practice in a medical education and training program approved by the Board for the purpose of education or training shall pay a registration fee of one hundred twenty-five dollars ($125.00), and those who have a retired limited volunteer license pursuant to G.S. 90-12.1B or a limited volunteer license pursuant to G.S. 90-12.1A shall pay no annual registration fee. However, licensees who have a limited license to practice for the purpose of education and training under G.S. 90-12.01 shall not be required to pay more than one annual registration fee for each year of training.
3. Repealed by Session Laws 2016-117, s. 2(i), effective October 1, 2016.
4. A licensee who is not actively engaged in the performance of medical acts, tasks, or functions in North Carolina and who does not wish to register the license may direct the Board to place the license on inactive status.
5. A physician who fails to register as required by this section shall pay an additional fee of fifty dollars ($50.00) to the Board. The license of any physician who fails to register and who remains unregistered for a period of 30 days after certified notice of the failure is automatically inactive. The Board shall retain jurisdiction over the holder of the inactive license.
6. Except as provided in G.S. 90-12.1B, a person whose license is inactive shall not practice medicine in North Carolina nor be required to pay the annual registration fee.
7. Upon payment of all accumulated fees and penalties, the license of the licensee may be reinstated, subject to the Board requiring the licensee to appear before the Board for an interview and to comply with other licensing requirements. The penalty may not exceed the applicable maximum fee for a license under G.S. 90-13.1.
8. The Board shall not deny a licensee's annual registration based solely on the licensee's failure to become board certified.

History

(1957, c. 597; 1969, c. 929, s. 5; 1979, c. 196, s. 2; 1983 (Reg. Sess., 1984), c. 1063, s. 2; 1987, c. 859, s. 12; 1993 (Reg. Sess., 1994), c. 566, s. 1; 1995, c. 94, s. 16; 1995 (Reg. Sess., 1996), c. 634, s. 1(a); 1997-481, s. 3; 2000-5, s. 3; 2001-493, s. 3; 2005-402, s. 6; 2007-346, s. 7; 2007-418, s. 9; 2011-355, s. 6; 2016-117, s. 2(i); 2019-191, s. 25.)

Editor's Note. - This section is former G.S. 90-15.1, recodified as G.S. 90-13.2, effective October 1, 2007, by Session Laws 2007-346, s. 7.

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.5(a)-(e), as amended by Session Laws 2021-3, s. 2.17, provides: "(a) For purposes of this section, the following definitions apply:

"(1) Quality improvement plan rules. - The rules regulating the quality improvement process for physician assistants and nurse practitioners found in 21 NCAC 32S.0213, 21 NCAC 32M.0110, and 21 NCAC 36.0810.

"(2) Application fee rules. - The portions of rules found in 21 NCAC 32S.0204, 21 NCAC 32M.0115, and 21 NCAC 36.0813 that require the payment of an application fee.

"(3) Annual review rules. - The portions of rules requiring the annual review or renewal of a practice arrangement between a physician and a physician assistant or nurse practitioner found in 21 NCAC 32S.0201, 21 NCAC 32M.0110, and 21 NCAC 36.0806.

"(b) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules to the extent they require any of the following:

"(1) Quality improvement process meetings between a physician and a physician assistant or nurse practitioner, provided that the physician assistant or nurse practitioner was practicing within the scope of his or her license prior to February 1, 2020, and continues to practice within the scope of his or her license while this section is effective.

"(2) Monthly quality improvement process meetings between a physician and a physician assistant or nurse practitioner during the first six months of the practice arrangement between the physician and the physician assistant or nurse practitioner.

"(c) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules or the application fee rules to the extent they require any individual to fill out an application or pay a fee, provided that individual is providing volunteer health care services within the scope of his or her license in response to the COVID-19 pandemic state of emergency declared by the Governor of North Carolina on March 10, 2020.

"(d) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the annual review rules.

"(e) This section is effective when it becomes law and expires December 31, 2022."

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

Effect of Amendments. - Session Laws 2001-493, s. 3, effective January 1, 2002, in the second sentence, substituted "fee of one hundred twenty-five dollars ($125.00)" for "fee fixed by the Board not in excess of one hundred dollars ($100.00)."

Session Laws 2005-402, s. 6, effective September 19, 2005, substituted "one hundred seventy-five dollars ($175.00) ... twenty five dollars ($25.00)" for "one hundred twenty-five dollars ($125.00)" in the second sentence; and substituted "fifty dollars ($50.00)" for "twenty dollars ($20.00)" in the fifth sentence.

Session Laws 2007-418, s. 9, effective October 1, 2007, designated the existing provisions as present subsections (a) through (g), and in subsection (b), substituted "an annual" for "a" preceding "registration fee" and inserted the last sentence; added the last sentence in subsection (e); substituted "90-12.1A" for "90-12(d)" in subsection (f); substituted "90-13.1" for "90-13" in subsection (g).

Session Laws 2011-355, s. 6, effective June 27, 2011, in the first sentence of subsection (b), inserted "retired" and "pursuant to G.S. 90-12.1B," and added "and those who have a limited volunteer license pursuant to G.S. 90-12.1A shall pay no annual registration fee"; and in subsection (f), updated the section reference.

Session Laws 2016-117, s. 2(i), effective October 1, 2016, in subsection (b), substituted "two hundred fifty dollars ($250.00)" for "one hundred seventy-five dollars ($175.00)," substituted "or" for "shall pay an annual registration fee of twenty-five dollars ($25.00), and those who have," and made a stylistic change; deleted former subsection (c), which read: "A physician who is not actively engaged in the practice of medicine in North Carolina and who does not wish to register the license may direct the Board to place the license on inactive status."; and added subsection (h).

Session Laws 2019-191, s. 25, effective October 1, 2019, substituted "licensee" for "physician" in subsections (d) and (g); rewrote subsection (a), which formerly read: "Every person licensed to practice medicine by the North Carolina Medical Board shall register annually with the Board within 30 days of the person's birthday"; substituted "performance of medical acts, tasks, or functions" for "practice of medicine" in subsection (d); and inserted "applicable" in the second sentence of subsection (g).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

§ 90-13.3. Salaries, fees, expenses of the Board.

1. The compensation and expenses of the members and officers of the Board and all expenses proper and necessary in the opinion of the Board to the discharge of its duties under and to enforce the laws regulating the practice of medicine or surgery shall be paid out of the fund, upon the warrant of the Board.
2. The per diem compensation of Board members shall not exceed two hundred dollars ($200.00) per member for time spent in the performance and discharge of duties as a member. Any unexpended sum of money remaining in the treasury of the Board at the expiration of the terms of office of the members of the Board shall be paid over to their successors in office.

History

(2007-346, s. 13(b).)

§ 90-14. Disciplinary Authority.

1. The Board shall have the power to place on probation with or without  conditions, impose limitations and conditions on, publicly reprimand, assess monetary redress, issue public letters of concern, mandate free medical services, require satisfactory completion of treatment programs or remedial or educational training, fine, deny, annul, suspend, or revoke a license, or other authority to practice medicine in this State, issued by the Board to any person who has been found by the Board to have committed any of the following acts or conduct, or for any of the following reasons:
   1. Immoral or dishonorable conduct.
   2. Producing or attempting to produce an abortion contrary to law.
   3. Made false statements or representations to the Board, or willfully concealed from the Board material information in connection with an application for a license, an application, request or petition for reinstatement or reactivation of a license, an annual registration of a license, or an investigation or inquiry by the Board.
   4. Repealed by Session Laws 1977, c. 838, s. 3.
   5. Being unable to practice medicine with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of alcohol, drugs, chemicals, or any other type of material or by reason of any physical or mental abnormality. The Board is empowered and authorized to require an applicant or licensee to submit to a mental or physical examination by physicians or physician assistants, or mental examinations by other licensed health care providers acting within the scope of their practice as allowed by law designated by the Board during the pendency of a license application and before or after charges may be presented against the applicant or licensee, and the results of the examination shall be admissible in evidence in a hearing before the Board. Failure to comply with an order pursuant to this subsection may be considered unprofessional conduct as defined in G.S. 90-14(a)(6).
   6. Unprofessional conduct, including, but not limited to, departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice, or the ethics of the medical profession, irrespective of whether or not a patient is injured thereby, or the committing of any act contrary to honesty, justice, or good morals, whether the same is committed in the course of the licensee's practice or otherwise, and whether committed within or without North Carolina. The Board shall not revoke the license of or deny a license to a person, or discipline a licensee in any manner, solely because of that person's practice of a therapy that is experimental, nontraditional, or that departs from acceptable and prevailing medical practices unless, by competent evidence, the Board can establish that the treatment has a safety risk greater than the prevailing treatment or that the treatment is generally not effective.
   7. Conviction in any court of a crime involving moral turpitude, or the violation of a law involving the practice of medicine, or a conviction of a felony; provided that a felony conviction shall be treated as provided in subsection (c) of this section.
   8. By false representations has obtained or attempted to obtain practice, money or anything of value.
   9. Has advertised or publicly professed to treat human ailments under a system or school of treatment or practice other than that for which the physician has been educated.
   10. Adjudication of mental incompetency, which shall automatically suspend a license unless the Board orders otherwise.
   11. Lack of professional competence to practice medicine with a reasonable degree of skill and safety for patients or failing to maintain acceptable standards of care. In this connection the Board may consider repeated acts of an applicant or licensee's failure to treat a patient properly. The Board may, upon reasonable grounds, require an applicant or licensee to submit to inquiries or examinations, written or oral, as the Board deems necessary to determine the professional qualifications of that applicant or licensee. Failure to comply with an order pursuant to this subsection may be considered unprofessional conduct as defined in G.S. 90-14(a)(6). In order to annul, suspend, deny, or revoke a license of an accused person, the Board shall find by the greater weight of the evidence that the care provided was not in accordance with the standards of practice for the procedures or treatments administered.
   12. Not actively practiced as a licensee, or having not maintained continued competency, as determined by the Board, for the two-year period immediately preceding the filing of an application for an initial license from the Board or the filing of a request, petition, motion, or application to reactivate or reinstate an inactive, suspended, or revoked license previously issued by the Board. The Board is authorized to adopt any rules or regulations it deems necessary to carry out the provisions of this subdivision.
   13. Promotion of the sale of drugs, devices, appliances or goods for a patient, or providing services to a patient, in such a manner as to exploit the patient, and upon a finding of the exploitation, the Board may order the licensee pay restitution to the payer of the bill, whether the patient or the insurer, provided that a determination of the amount of restitution shall be based on credible testimony in the record.
   14. Having a license revoked, suspended, restricted, or acted against or having a license to practice denied by the licensing authority of any jurisdiction, including Canada, the United Kingdom, and Australia. For purposes of this subdivision, the licensing authority's acceptance of a license to practice voluntarily relinquished by a licensee or relinquished by stipulation, consent order, or other settlement in response to or in anticipation of the filing of administrative charges against the licensee's license, or an inactivation or voluntary surrender of a license while under investigation is an action against a license to practice.
   15. The failure to comply with an order issued under this Article or the failure to respond, within a reasonable period of time and in a reasonable manner as determined by the Board, to inquiries from the Board concerning any matter affecting the license to practice medicine.
   16. The failure to complete an amount not to exceed 150 hours of continuing medical education during any three consecutive calendar years pursuant to rules adopted by the Board.
   17. A violation of any provision of this Article.
   18. Failure to make reports as required by this Article.
2. The Board shall refer to the North Carolina Physicians Health Program all licensees whose health and effectiveness have been significantly impaired by alcohol, drug addiction or mental illness. Sexual misconduct shall not constitute mental illness for purposes of this subsection.
3. Except as provided in subsection (c1) of this section, a felony conviction shall result in the automatic revocation of a license issued by the Board, unless the Board orders otherwise or receives a request for a hearing from the person within 60 days of receiving notice from the Board, after the conviction, of the provisions of this subsection. If the Board receives a timely request for a hearing in such a case, the provisions of G.S. 90-14.2 shall be followed.
4. A felony conviction under Article 7B of Chapter 14 of the General Statutes shall result in the automatic denial or revocation of a license issued by the Board, and that denial or revocation shall be permanent, and the applicant or licensee shall be ineligible for reapplication, relicensure, reinstatement, or restoration under subsection (c2) of this section.
5. Except as provided in subsection (c1) of this section, where the Board has exercised its authority pursuant to this section to revoke a license, the holder of the revoked license will not be eligible to make an application for reinstatement before two years from the effective date of the revocation.
6. Repealed by Session Laws 2006-144, s. 4, effective October 1, 2006, and applicable to acts or omissions that occur on or after that date.
7. The Board and its members and staff shall not be held liable in any civil or criminal proceeding for exercising, in good faith, the powers and duties authorized by law.
8. A person, partnership, firm, corporation, association, authority, or other entity acting in good faith without fraud or malice shall be immune from civil liability for (i) reporting, investigating, assessing, monitoring, or providing an expert medical opinion to the Board regarding the acts or omissions of a licensee or applicant that violate the provisions of subsection (a) of this section or any other provision of law relating to the fitness of a licensee or applicant to practice medicine and (ii) initiating or conducting proceedings against a licensee or applicant if a complaint is made or action is taken in good faith without fraud or malice. A person shall not be held liable in any civil proceeding for testifying before the Board in good faith and without fraud or malice in any proceeding involving a violation of subsection (a) of this section or any other law relating to the fitness of an applicant or licensee to practice medicine, or for making a recommendation to the Board in the nature of peer review, in good faith and without fraud and malice.
9. Prior to taking action against any licensee for providing care not in accordance with the standards of care for the procedures or treatments administered, the Board shall whenever practical consult with a licensee who routinely utilizes or is familiar with the same modalities and who has an understanding of the standards of practice for the modality administered. Information obtained as result of the consultation shall be available to the licensee at the informal nonpublic precharge conference.
10. No investigation of a licensee shall be initiated upon the direction of a single member of the Board without another Board member concurring. A Board member shall not serve as an expert in determining the basis for the initiation of an investigation.
11. At the time of first communication from the Board or agent of the Board to a licensee regarding a complaint or investigation, the Board shall provide notice in writing to the licensee that informs the licensee: (i) of the existence of any complaint or other information forming the basis for the initiation of an investigation; (ii) that the licensee may retain counsel; (iii) how the Board will communicate with the licensee regarding the investigation or disciplinary proceeding in accordance with subsections (m) and (n) of this section; (iv) that the licensee has a duty to respond to inquiries from the Board concerning any matter affecting the license, and all information supplied to the Board and its staff will be considered by the Board in making a determination with regard to the matter under investigation; (v) that the Board will complete its investigation within six months or provide an explanation as to why it must be extended; and (vi) that if the Board makes a decision to initiate public disciplinary proceedings, the licensee may request in writing an informal nonpublic precharge conference.
12. After the Board has made a nonpublic determination to initiate disciplinary proceedings, but before public charges have been issued, the licensee requesting so in writing, shall be entitled to an informal nonpublic precharge conference. At least five days prior to the informal nonpublic precharge conference, the Board will provide to the licensee the following: (i) all relevant information obtained during an investigation, including exculpatory evidence except for information that would identify an anonymous complainant; (ii) the substance of any written expert opinion that the Board relied upon, not including information that would identify an anonymous complainant or expert reviewer; (iii) notice that the licensee may retain counsel, and if the licensee retains counsel all communications from the Board or agent of the Board regarding the disciplinary proceeding will be made through the licensee's counsel; (iv) notice that if a Board member initiated the investigation then that Board member will not participate in the adjudication of the matter before the Board or hearing committee; (v) notice that the Board may use an administrative law judge or designate hearing officers to conduct hearings as a hearing committee to take evidence; (vi) notice that the hearing shall proceed in the manner prescribed in Article 3A of Chapter 150B of the General Statutes and as otherwise provided in this Article; and (vii) any Board member who serves as a hearing officer in this capacity shall not serve as part of the quorum that determines the final agency decision. The provisions of this section do not apply where the Board has exercised its authority under G.S. 150B-3(c) and issued an order of summary suspension.
13. When the Board has made a determination that the public health, safety, or welfare requires emergency action, the Board may seek to require of a licensee the taking of any action adversely impacting the licensee's medical practice or license without first giving notice of the proposed action, the basis for the proposed action, and information required under subsection (i) of this section.
14. The Board shall complete any investigation initiated pursuant to this section no later than six months from the date of first communication required under subsection (i) of this section, unless the Board provides to the licensee a written explanation of the circumstances and reasons for extending the investigation.
15. If a licensee retains counsel to represent the licensee in any matter related to a complaint, investigation, or proceeding, the Board shall communicate to the licensee through the licensee's counsel.
16. Notwithstanding subsection (m) of this section, if the licensee has retained counsel, the Board may serve to both the licensee and the licensee's counsel orders to produce, appear, submit to assessment, examination, or orders following a hearing, or provide notice that the Board will not be taking any further action against a licensee.

History

(C.S., s. 6618; 1921, c. 47, s. 4; Ex. Sess. 1921, c. 44, s. 6; 1933, c. 32; 1953, c. 1248, s. 2; 1969, c. 612, s. 4; c. 929, s. 6; 1975, c. 690, s. 4; 1977, c. 838, s. 3; 1981, c. 573, ss. 9, 10; 1987, c. 859, ss. 6-10; 1993, c. 241, s. 1; 1995, c. 405, s. 4; 1997-443, s. 11A.118(a); 1997-481, s. 1; 2000-184, s. 5; 2003-366, ss. 3, 4; 2006-144, s. 4; 2007-346, s. 14; 2009-363, ss. 2, 3; 2009-558, ss. 1.2, 1.3, 1.4; 2016-117, s. 2(j); 2019-191, s. 26.)

Effect of Amendments. - Session Laws 2006-144, s. 4, effective October 1, 2006, and applicable to acts or omissions that occur on or after that date, inserted "place on probation with or without conditions, impose limitations and conditions on, publicly reprimand, assess monetary redress, issue public letters of concern, mandate free medical services, require satisfactory completion of treatment programs or remedial or educational training, fine" in the introductory language of subsection (a); deleted "by members of the Board or by other physicians licensed to practice medicine in this State," following "written or oral" in the middle of subdivision (a)(11); added subdivision (a)(11a); in the concluding paragraph of subsection (a), deleted the former first sentence, and substituted "otherwise acted upon" for "rescinded"; in subsection (b), substituted "North Carolina Physicians Health Program" for "State Medical Society Physician Health and Effectiveness Committee" near the beginning, inserted "and physician assistants" following "all physicians" near the middle, and added the last sentence; repealed subsection (d) relating to confidential information; and substituted "reporting, investigating, or providing an expert medical opinion to the Board regarding" for "reporting or" near the beginning of subsection (f).

Session Laws 2007-346, s. 14, effective October 1, 2007, rewrote the section heading; in subdivision (a)(3), deleted "who has" preceding "willfully concealed" and inserted "an application, request or petition for reinstatement or reactivation of a license, an annual registration of a license, or an investigation or inquiry by the Board"; inserted "or failing to maintain acceptable standards of one or more areas of professional physician practice" in subdivision (a)(11).

Session Laws 2009-363, ss. 2 and 3, effective July 27, 2009, substituted "licensees" for "physicians and physician assistants" in the first sentence of subsection (b), and inserted "assessing, monitoring" in the first sentence of subsection (f).

Session Laws 2016-117, s. 2(j), effective October 1, 2016, rewrote subsection (n).

Session Laws 2019-191, s. 26, effective October 1, 2019, rewrote subsection (a); added the exception at the beginning of subsection (c); added subsections (c1) and (c2); substituted "standards of care" for "standards of practice" in the first sentence of subsection (g); added the last sentence of subsection (j); substituted "When the Board has made a determination that the public health, safety, or welfare requires emergency action, the Board may" for "Unless the conditions specified in G.S. 150B-3(c) exist, the Board shall not" at the beginning of subsection (k); and made a minor stylistic change.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

For article, "Physicians' Elusive Public Health Duties,” see 99 N.C.L. Rev. 923 (2021).

§ 90-14.1. Judicial review of Board's decision denying issuance of a license.

Whenever an applicant fails to satisfy the Board of the applicant's qualifications to be issued a license, the Board shall immediately notify such person of its decision, and indicate in what respect the applicant has so failed to satisfy the Board. Such applicant shall be given a formal hearing before the Board upon request of such applicant filed with or mailed by registered mail to the secretary of the Board within 10 days after receipt of the Board's decision, stating the reasons for such request. The Board shall within 20 days of receipt of such request notify such applicant of the time and place of a public hearing, which shall be held within a reasonable time. The burden of satisfying the Board of the applicant's qualifications for licensure shall be upon the applicant. Following such hearing, the Board shall determine whether the applicant is entitled to be licensed. Any decision of the Board shall be subject to judicial review upon appeal to the superior court of the county where the Board is located upon the filing with the Board of a written notice of appeal with exceptions taken to the decision of the Board within 20 days after service of notice of the Board's final decision. Within 30 days after receipt of notice of appeal, the secretary of the Board shall certify to the clerk of the superior court of the county where the Board is located the record of the case which shall include a copy of the notice of hearing, a transcript of the testimony and evidence received at the hearing, a copy of the decision of the Board, and a copy of the notice of appeal and exceptions. Upon appeal the case shall be heard by the judge without a jury, upon the record, except that in cases of alleged omissions or errors in the record, testimony may be taken by the court. The decision of the Board shall be upheld unless the substantial rights of the applicant have been prejudiced because the decision of the Board is in violation of law or is not supported by any evidence admissible under this Article, or is arbitrary or capricious.

History

(1953, c. 1248, s. 3; 1995, c. 94, s. 14; 2019-191, s. 27.)

Effect of Amendments. - Session Laws 2019-191, s. 27, effective October 1, 2019, in the first sentence, substituted "an applicant fails to satisfy the Board of the applicant's qualifications" for "the North Carolina Medical Board has determined that a person who has duly made application to take an examination to be given by the Board showing his education, training and other qualifications required by said Board, or that a person who has taken and passed an examination given by the Board, has failed to satisfy the Board of his qualifications to be examined or" near the beginning, deleted "for any cause other than failure to pass an examination" preceding "the Board shall" near the middle, and deleted "at Raleigh, North Carolina" following "of the Board" near the end; substituted "the applicant's qualifications" for "his qualifications" in the third sentence; substituted "is entitled to be licensed" for "is qualified to be examined or is entitled to be licensed as the case may be" in the fourth sentence; in the fifth sentence, deleted "such" following "Any" at the beginning and substituted "superior court of the county where the Board is located" for "Superior Court of Wake County" near the middle; substituted "superior court of the county where the Board is located" for "Superior Court of Wake County" near the middle of the sixth sentence; and deleted the former last sentence, which read: "Each party to the review proceeding may appeal to the Supreme Court as hereinafter provided in G.S. 90-14.11."

Legal Periodicals. - For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

§ 90-14.2. Hearing before disciplinary action.

1. Before the Board shall take disciplinary action against any license granted by it, the licensee shall be given a written notice indicating the charges made against the licensee and stating that the licensee will be given an opportunity to be heard concerning the charges at a time and place stated in the notice, or at a time and place to be thereafter designated by the Board, and the Board shall hold a public hearing not less than 30 days from the date of the service of notice upon the licensee, at which the licensee may appear personally and through counsel, may cross examine witnesses and present evidence in the licensee's own behalf. A licensee who is mentally incompetent shall be represented at such hearing and shall be served with notice as herein provided by and through a guardian ad litem appointed by the clerk of the court of the county in which the licensee resides. The licensee may file written answers to the charges within 30 days after the service of the notice, which answer shall become a part of the record but shall not constitute evidence in the case.
2. Once charges have been issued, neither counsel for the Board nor counsel for the respondent shall communicate ex parte, directly or indirectly, pertaining to a matter that is an issue of fact or a question of law with a hearing officer or Board member who is permitted to participate in a final decision in a disciplinary proceeding. In conducting hearings, the Board shall retain independent counsel to provide advice to the Board or any hearing committee constituted under G.S. 90-14.5(a) concerning contested matters of procedure and evidence.
3. Once charges have been issued, the parties may engage in discovery as provided in G.S. 1A-1, the North Carolina Rules of Civil Procedure. Additionally, pursuant to any written request by the respondent or respondent's counsel, the Board shall provide information obtained during an investigation, except for the following:
   1. Information that is subject to attorney-client privilege or is attorney work product.
   2. Information that would identify an anonymous complainant.
   3. Information generated during an investigation that will not be offered into evidence by the Board and is related to:
      1. Advice, opinions, or recommendations of the Board staff, consultants, or agents.
      2. Deliberations by the Board and its committees during an investigation.

History

(1953, c. 1248, s. 3; 1975, c. 690, s. 5; 2007-346, s. 15; 2009-558, s. 2; 2016-117, s. 2(k); 2019-191, s. 28.)

Effect of Amendments. - Session Laws 2007-346, s. 15, effective October 1, 2007, substituted "disciplinary action" for "revocation or suspension of a license" in the section heading; substituted "take disciplinary action against" for "revoke, restrict or suspend" near the beginning of the paragraph.

Session Laws 2016-117, s. 2(k), effective October 1, 2016, added subsection (c).

Session Laws 2019-191, s. 28, effective October 1, 2019, substituted "licensee" for "licensee, which notice may be prepared by a committee or one or more members of the Board designated by the Board" in the first sentence of subsection (a).

§ 90-14.3. Service of notices.

Any notice required by this Chapter may be served either personally by an employee of the Board or by an officer authorized by law to serve process, or by registered or certified mail, return receipt requested, directed to the licensee or applicant at his last known address as shown by the records of the Board. If notice is served personally, it shall be deemed to have been served at the time when the officer or employee of the Board delivers the notice to the person addressed or delivers the notice at the licensee's or applicant's last known address as shown by records of the Board with a person of suitable age and discretion then residing therein. Where notice is served by registered or certified mail, it shall be deemed to have been served on the date borne by the return receipt showing delivery of the notice to the licensee's or applicant's last known address as shown by the records of the Board, regardless of whether the notice was actually received or whether the notice was unclaimed or undeliverable for any reason.

History

(1953, c. 1248, s. 3; 1995, c. 405, s. 5; 2007-346, s. 16.)

Effect of Amendments. - Session Laws 2007-346, s. 16, effective October 1, 2007, inserted "by an employee of the Board" in the first sentence, inserted "or employee of the board" and "or delivers the notice at the licensee's or applicant's last known address as shown by records of the Board with a person of suitable age and discretion then residing therein" in the second sentence, substituted "licensee's or applicant's last known address as shown by the records of the Board, regardless of whether the notice was actually received or whether the notice was unclaimed or undeliverable for any reason" for "addressee, showing refusal of the addressee to accept the notice, or showing failure to locate the addressee at the last known address as shown by the records of the Board" at the end.

§ 90-14.4: Repealed by Session Laws 2007-346, s. 17, effective October 1, 2007.

§ 90-14.5. Use of recommended decisions; appointment of hearing officers.

1. Except as provided in subsection (a1) of this section, the Board, in its discretion, may designate in writing three or more hearing officers to conduct hearings as a hearing committee to take evidence. A majority of hearing officers participating in a hearing committee shall be licensees of the Board. The Board shall make a reasonable effort to include on the panel at least one physician licensed in the same or similar specialty as the licensee against whom the complaint has been filed. If a current or retired judge as described in G.S. 90-1.1(2) who is not a current or past Board member participates as a hearing officer, the Board may elect not to retain independent counsel for the hearing committee.
2. The Board may use an administrative law judge consistent with Article 3A of Chapter 150B of the General Statutes in lieu of a hearing committee so long as the Board has not solely alleged that the licensee failed to meet an applicable standard of care. Notwithstanding this subsection, the Board may use an administrative law judge consistent with Article 3A of Chapter 150B of the General Statutes if the licensee is a current or former Board member.
3. Repealed by Session Laws 2019-191, s. 29, effective October 1, 2019.
4. The hearing committee shall submit a recommended decision that contains findings of fact and conclusions of law to the Board. Before the Board makes a final decision, it shall give each party an opportunity to file written exceptions to the recommended decision made by the hearing committee and to present oral arguments to the Board. A quorum of the Board will issue a final decision. No member of the Board who served as a member of the hearing committee described in subsection (a) of this section may participate as a member of the quorum of the Board that issues a final agency decision.
5. Hearing officers are entitled to receive per diem compensation and reimbursement for expenses as authorized by the Board. The per diem compensation shall not exceed the amount allowed by G.S. 90-13.3.

History

(1953, c. 1248, s. 3; 2006-144, s. 5; 2007-346, s. 18; 2009-558, s. 3; 2019-191, s. 29.)

Effect of Amendments. - Session Laws 2006-144, s. 5, effective October 1, 2006, and applicable to hearings held on or after that date, substituted "hearing committee and" for "trial examiner" in the section heading; and rewrote the section.

Session Laws 2007-346, s. 18, effective October 1, 2007, added "appointment of hearing officers" in the section heading; substituted "hearing officers" for "of its members" in subsection (a); added subsection (d).

Session Laws 2019-191, s. 29, effective October 1, 2019, in subsection (a1), substituted "recommended decisions" for "hearing committee and depositions" in the section heading; in subsection (a1), in the first sentence, inserted "solely" and deleted "medical" preceding "care", and added the second sentence; and deleted subsection (b).

§ 90-14.6. Evidence admissible.

1. Except as otherwise provided in proceedings held pursuant to this Article the Board shall admit and hear evidence in the same manner and form as prescribed by law for civil actions. A complete record of such evidence shall be made, together with the other proceedings incident to the hearing.
2. Subject to the North Carolina Rules of Civil Procedure and Rules of Evidence, in proceedings held pursuant to this Article, the individual under investigation may call witnesses, including medical practitioners licensed in the United States with training and experience in the same field of practice as the individual under investigation and familiar with the standard of care among members of the same health care profession in North Carolina. Witnesses shall not be restricted to experts certified by the American Board of Medical Specialties. A Board member shall not testify as an expert witness.
3. Subject to the North Carolina Rules of Civil Procedure and Rules of Evidence, statements contained in medical or scientific literature shall be competent evidence in proceedings held pursuant to this Article. Documentary evidence may be received in the form of a copy or excerpt or may be incorporated by reference, if the materials so incorporated are available for examination by the parties. Upon timely request, a party shall be given an opportunity to compare the copy with the original if available.
4. Evidence and testimony may be presented at hearings before the Board or a hearing committee in the form of depositions before any person authorized to administer oaths in accordance with the procedure for the taking of depositions in civil actions in the superior court.
5. When evidence is not reasonably available under the Rules of Civil Procedure and Rules of Evidence to show relevant facts, then the most reliable and substantial evidence available shall be admitted. At the discretion of the presiding officer of the hearing, the Board may receive witness testimony at a hearing by means of telephone or videoconferencing.
6. Any final agency decision of the Board shall be based upon a preponderance of the evidence admitted in the hearing.

History

(1953, c. 1248, s. 3; 2003-366, s. 5; 2007-346, s. 19; 2009-558, s. 4; 2019-191, s. 30.)

Effect of Amendments. - Session Laws 2007-346, s. 19, effective October 1, 2007, inserted "Except as otherwise provided" at the beginning of subsection (a); in subsection (b), substituted "individual" for "licensee" following "to this Article" and substituted "with training and experience in the same field of practice as the individual under investigation and familiar with the standard of care among members of the same health care profession in North Carolina" for "with expertise in the same field of practice as the licensee under investigation, and the Board shall consider this testimony"; added the second and third sentences in subsection (c); added subsection (d).

Session Laws 2019-191, s. 30, effective October 1, 2019, added subsection (c1); and added the last sentence in subsection (d).

Legal Periodicals. - For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

§ 90-14.7. Procedure where person fails to request or appear for hearing.

If a person who has requested a hearing does not appear, and no continuance has been granted, the Board or its trial examiner or committee may hear the evidence of such witnesses as may have appeared, and the Board may proceed to consider the matter and dispose of it on the basis of the evidence before it. For good cause, the Board may reopen any case for further hearing.

History

(1953, c. 1248, s. 3.)

§ 90-14.8. Appeal from Board's decision taking disciplinary action on a license.

1. A licensee against whom the Board imposes any public disciplinary sanction, as authorized under G.S. 90-14(a), may appeal such action.
2. A licensee against whom any public disciplinary sanction is imposed by the Board may obtain a review of the decision of the Board in the superior court of the county where the Board is located or the county in which the licensee resides, upon filing with the secretary of the Board a written notice of appeal within 30 days after the date of the service of the decision of the Board, stating all exceptions taken to the decision of the Board and indicating the court in which the appeal is to be heard. The court shall schedule and hear the case within six months of the filing of the appeal.
3. Within 30 days after the receipt of a notice of appeal as herein provided, the Board shall prepare, certify and file with the clerk of the Superior Court in the county where the notice of appeal has been filed the record of the case comprising a copy of the charges, notice of hearing, transcript of testimony, and copies of documents or other written evidence produced at the hearing, decision of the Board, and notice of appeal containing exceptions to the decision of the Board.

History

(1953, c. 1248, s. 3; 1981, c. 573, s. 12; 2007-346, s. 20; 2009-558, s. 5; 2019-191, s. 31.)

Effect of Amendments. - Session Laws 2007-346, s. 20, effective October 1, 2007, substituted "taking disciplinary action on a license" for "revoking or suspending a license" in the section heading; deleted "or in the superior court in the county in which the hearing was held or upon agreement of the parties to the appeal in any other superior court of the State" following "Wake County" in the first paragraph, and substituted "the Superior Court of Wake County" for "the superior court in the county to which the appeal is directed" in the second paragraph.

Session Laws 2019-191, s. 31, effective October 1, 2019, substituted "superior court of the county where the Board is located" for "Superior Court of Wake County" in the first sentence of subsection (b).

§ 90-14.9. Appeal bond; stay of Board order.

1. The person seeking the review shall file with the clerk of the reviewing court a copy of the notice of appeal and an appeal bond of two hundred dollars ($200.00) at the same time the notice of appeal is filed with the Board. Subject to subsection (b) of this section, at any time before or during the review proceeding the aggrieved person may apply to the reviewing court for an order staying the operation of the Board decision pending the outcome of the review, which the court may grant or deny in its discretion.
2. No stay shall be granted under this section unless the Board is given prior notice and an opportunity to be heard in response to the application for an order staying the operation of the Board decision.

History

(1953, c. 1248, s. 3; 1995, c. 405, s. 6.)

§ 90-14.10. Scope of review.

Upon the review of the Board's decision taking disciplinary action on a license, the case shall be heard by the judge without a jury, upon the record, except that in cases of alleged omissions or errors in the record, testimony thereon may be taken by the court. The court may affirm the decision of the Board or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the accused physician have been prejudiced because the findings or decisions of the Board are in violation of substantive or procedural law, or are not supported by competent, material, and substantial evidence admissible under this Article, or are arbitrary or capricious. At any time after the notice of appeal has been filed, the court may remand the case to the Board for the hearing of any additional evidence which is material and is not cumulative and which could not reasonably have been presented at the hearing before the Board.

History

(1953, c. 1248, s. 3; 2007-346, s. 21.)

Effect of Amendments. - Session Laws 2007-346, s. 21, effective October 1, 2007, substituted "taking disciplinary action" for "revoking or suspending" near the beginning of the section.

Legal Periodicals. - For article on administrative evidence rules, see 49 N.C.L. Rev. 635 (1971).

§ 90-14.11. Appeal; appeal bond.

1. Any party to the review proceeding, including the Board, may appeal from the decision of the superior court under rules of procedure applicable in other civil cases. No appeal bond shall be required of the Board. Subject to subsection (b) of this section, the appealing party may apply to the superior court for a stay of that court's decision or a stay of the Board's decision, whichever shall be appropriate, pending the outcome of the appeal.
2. No stay shall be granted unless all parties are given prior notice and an opportunity to be heard in response to the application for an order staying the operation of the Board decision.

History

(1953, c. 1248, s. 3; 1989, c. 770, s. 75.1; 1995, c. 405, s. 7.)

§ 90-14.12. Injunctions.

The Board may appear in its own name in the superior courts in an action for injunctive relief to prevent violation of this Article and the superior courts shall have power to grant such injunctions regardless of whether criminal prosecution has been or may be instituted as a result of such violations. Actions under this section shall be commenced in the superior court district or set of districts as defined in G.S. 7A-41.1 in which the respondent resides or has his principal place of business or in which the alleged acts occurred, or in the case of an action against a nonresident, in the district where the Board resides.

History

(1953, c. 1248, s. 3; 1981, c. 573, s. 13; 1987 (Reg. Sess., 1988), c. 1037, s. 100; 2001-27, s. 1.)

§ 90-14.13. Reports of disciplinary action by health care institutions; reports of professional liability insurance awards or settlements; immunity from liability.

1. The chief administrative officer of every licensed hospital or other health care institution, including Health Maintenance Organizations, as defined in G.S. 58-67-5, preferred providers, as defined in G.S. 58-50-56, and all other provider organizations that issue credentials to persons licensed under this Article shall, after consultation with the chief of staff of that institution, report to the Board the following actions involving a physician's privileges to practice in that institution within 30 days of the date that the action takes effect:
   1. A summary revocation, summary suspension, or summary limitation of privileges, regardless of whether the action has been finally determined.
   2. A revocation, suspension, or limitation of privileges that has been finally determined by the governing body of the institution.
   3. A resignation from practice or voluntary reduction of privileges while under investigation or threat of investigation.
   4. Any action reportable pursuant to Title IV of P.L. 99-660, the Health Care Quality Improvement Act of 1986, as amended, not otherwise reportable under subdivisions (1), (2), or (3) of this subsection.
2. A hospital is not required to report any of the following:
   1. The suspension or limitation of a licensee's privileges for failure to complete medical records in a timely manner.
   2. A resignation from practice due solely to the licensee's completion of a medical residency, internship, or fellowship.
3. The Board shall report all violations of subsection (a) of this section known to it to the licensing agency for the institution involved. The licensing agency for the institution involved is authorized to order the payment of a civil penalty of two hundred fifty dollars ($250.00) for a first violation and five hundred dollars ($500.00) for each subsequent violation if the institution fails to report as required under subsection (a) of this section.
4. Any licensee who does not possess professional liability insurance, or possess professional liability insurance from entities not owned and operated within this State, shall report to the Board any award of damages or any settlement of any malpractice complaint affecting his or her practice within 30 days of the award or settlement.
5. The chief administrative officer of each insurance company providing professional liability insurance for persons licensed under this Article, the administrative officer of the Liability Insurance Trust Fund Council created by G.S. 116-220, and the administrative officer of any trust fund or other fund operated or administered by a hospital authority, group, or provider shall report to the Board within 30 days any of the following:
   1. Any award of damages or settlement of any claim or lawsuit affecting or involving a licensee that it insures.
   2. Any cancellation or nonrenewal of its professional liability coverage of a licensee, if the cancellation or nonrenewal was for cause.
   3. A malpractice payment that is reportable pursuant to Title IV of P.L. 99-660, the Health Care Quality Improvement Act of 1986, as amended, not otherwise reportable under subdivision (1) or (2) of this subsection.
6. The Board shall report all violations of this section to the Commissioner of Insurance. The Commissioner of Insurance is authorized to order the payment of a civil penalty of two hundred fifty dollars ($250.00) for a first violation and five hundred dollars ($500.00) for each subsequent violation against an insurer for failure to report as required under this section.
7. The Board may request details about any action covered by this section, and the licensees or officers shall promptly furnish the requested information. The reports required by this section are privileged, not open to the public, confidential and are not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the Board or its employees or agents involved in application for license or discipline, except as provided in G.S. 90-16. Any officer making a report required by this section, providing additional information required by the Board, or testifying in any proceeding as a result of the report or required information shall be immune from any criminal prosecution or civil liability resulting therefrom unless such person knew the report was false or acted in reckless disregard of whether the report was false.

The Board is authorized to adopt rules limiting the reporting requirements of subsection (a) of this section.

For the purposes of this subsection, a "claim" means an oral or written request for compensation made by a patient or a patient's representative, or an offer of compensation to a patient or a patient's representative, based on a belief that the patient was injured due to care affecting or involving a licensee. The Board shall determine whether the patient's care affected or involved a licensee under this Article.

History

(1981, c. 573, s. 14; 1987, c. 859, s. 11; 1995, c. 405, s. 8; 1997-481, s. 2; 1997-519, s. 3.14; 2006-144, s. 6; 2016-117, s. 2 (l) ; 2019-191, s. 32.)

Editor's Note. - Session Laws 2009-217, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 32X.0103 (Reporting of Medical Judgments, Awards, Payments or Settlements) and 21 NCAC 32X.0105 (Publication of Judgments, Awards, Payments or Settlements), as adopted by the North Carolina Medical Board on July 16, 2008, and approved by the Rules Review Commission on August 21, 2008, are disapproved."

Effect of Amendments. - Session Laws 2016-117, s. 2( l ), effective October 1, 2016, deleted "unless the suspension or limitation is the third within the calendar year for failure to timely complete medical records. Upon reporting the third suspension or limitation, the hospital shall also report the previous two suspensions or limitations" following "records" at the end of subdivision (a1)(1).

Session Laws 2019-191, s. 32, effective October 1, 2019, rewrote subsections (a) through (c).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

§ 90-15: Recodified as G.S. 90-13.1, by Session Laws 2007-346, s. 7, effective October 1, 2007.

Editor's Note. - For amendment to former G.S. 90-15 by Session Laws 2007-146, s. 2, see Editor's note under G.S. 90-13.1.

§ 90-15.1: Recodified as G.S. 90-13.2, by Session Laws 2007-346, s. 7, effective October 1, 2007.

§ 90-16. Self-reporting requirements; confidentiality of Board investigative information; cooperation with law enforcement; patient protection; Board to keep public records.

1. The North Carolina Medical Board shall keep a regular record of its proceedings with the names of the members of the Board present and other information as to its actions. The North Carolina Medical Board shall publish the names of those licensed within 30 days after granting the license.
2. The Board may in a closed session receive evidence involving or concerning the treatment of a patient who has not expressly or impliedly consented to the public disclosure of such treatment as may be necessary for the protection of the rights of such patient or of the accused physician and the full presentation of relevant evidence.
3. All records, papers, investigative files, investigative reports, other investigative information and other documents containing information in the possession of or received or gathered by the Board, or its members or employees or consultants as a result of investigations, inquiries, assessments, or interviews conducted in connection with a licensing, complaint, assessment, potential impairment matter, disciplinary matter, or report of professional liability insurance awards or settlements pursuant to G.S. 90-14.13, shall not be considered public records within the meaning of Chapter 132 of the General Statutes and are privileged, confidential, and not subject to discovery, subpoena, or other means of legal compulsion for release to any person other than the Board, its employees or consultants involved in the application for license, impairment assessment, or discipline of a license holder, except as provided in subsection (e1) of this section. For purposes of this subsection, investigative information includes information relating to the identity of, and a report made by, a physician or other person performing an expert review for the Board and transcripts of any deposition taken by Board counsel in preparation for or anticipation of a hearing held pursuant to this Article but not admitted into evidence at the hearing.
4. Repealed by Session Laws 2016-117, s. 2(o), effective October 1, 2016.
5. Information furnished to a licensee or applicant, or counsel for a licensee or applicant, under G.S. 90-14.2(c) shall be subject to discovery or subpoena between and among the parties in a civil case in which the licensee is a party.
6. When the Board receives a complaint regarding the care of a patient, the Board shall provide the licensee with a copy of the complaint as soon as practical and inform the complainant of the disposition of the Board's inquiry into the complaint and the Board's basis for that disposition. If providing a copy of the complaint identifies an anonymous complainant or compromises the integrity of an investigation, the Board shall provide the licensee with a summary of all substantial elements of the complaint. Upon written request of a patient, the Board may provide the patient a licensee's written response to a complaint filed by the patient with the Board regarding the patient's care. Upon written request of a complainant, who is not the patient but is authorized by State and federal law to receive protected health information about the patient, the Board may provide the complainant a licensee's written response to a complaint filed with the Board regarding the patient's care. Any information furnished to the patient or complainant pursuant to this subsection shall be inadmissible in evidence in any civil proceeding. However, information, documents, or records otherwise available are not immune from discovery or use in a civil action merely because they were included in the Board's review or were the subject of information furnished to the patient or complainant pursuant to this subsection.
7. Any notice or statement of charges against any licensee, or any notice to any licensee of a hearing in any proceeding shall be a public record within the meaning of Chapter 132 of the General Statutes, notwithstanding that it may contain information collected and compiled as a result of any such investigation, inquiry or interview; and provided, further, that if any such record, paper or other document containing information theretofore collected and compiled by the Board, as hereinbefore provided, is received and admitted in evidence in any hearing before the Board, it shall thereupon be a public record within the meaning of Chapter 132 of the General Statutes.
8. In any proceeding before the Board, in any record of any hearing before the Board, and in the notice of the charges against any licensee (notwithstanding any provision herein to the contrary) the Board may withhold from public disclosure the identity of a patient who has not expressly or impliedly consented to the public disclosure of treatment by the accused physician.
9. If investigative information in the possession of the Board, its employees, or agents indicates that a crime may have been committed, the Board may report the information to the appropriate law enforcement agency, the North Carolina Department of Justice, the United States Department of Justice, the United States Attorney, or the district attorney of the district in which the offense was committed.
10. The Board shall cooperate with and assist a law enforcement agency, the North Carolina Department of Justice, the United States Department of Justice, the United States Attorney, or the district attorney conducting a criminal investigation or prosecution of a licensee by providing information that is relevant to the criminal investigation or prosecution to the agency or attorney as required by this subsection. Information disclosed by the Board to an investigative agency or attorney pursuant to this subsection or subsection (h) of this section remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation or prosecution.
11. All persons licensed under this Article shall self-report to the Board within 30 days of arrest or indictment any of the following:
    1. Any felony arrest or indictment.
    2. Any arrest for driving while impaired or driving under the influence.
    3. Any arrest or indictment for the possession, use, or sale of any controlled substance.
12. The Board, its members and staff, may release confidential or nonpublic information to any health care licensure board in this State or another state or authorized Department of Health and Human Services personnel with enforcement or investigative responsibilities about the issuance, denial, annulment, suspension, or revocation of a license, or the voluntary surrender of a license by a licensee of the Board, including the reasons for the action, or an investigative report made by the Board. The Board shall notify the licensee within 60 days after the information is transmitted. A summary of the information that is being transmitted shall be furnished to the licensee. If the licensee requests in writing within 30 days after being notified that the information has been transmitted, the licensee shall be furnished a copy of all information so transmitted. The notice or copies of the information shall not be provided if the information relates to an ongoing criminal investigation by any law enforcement agency or authorized Department of Health and Human Services personnel with enforcement or investigative responsibilities.

History

(1858-9, c. 258, s. 12; Code, s. 3129; Rev., s. 4500; C.S., s. 6620; 1921, c. 47, s. 6; 1977, c. 838, s. 5; 1993 (Reg. Sess., 1994), c. 570, s. 6; 1995, c. 94, s. 17; 1997-481, s. 4; 2006-144, s. 7; 2007-346, s. 22; 2009-363, s. 4; 2009-558, s. 6; 2016-117, s. 2(o); 2019-191, s. 33.)

Effect of Amendments. - Session Laws 2006-144, s. 7, effective October 1, 2006, rewrote the section heading; and rewrote the section.

Session Laws 2007-346, s. 22, effective October 1, 2007, rewrote the section.

Session Laws 2009-363, s. 4, effective July 27, 2009, in subsection (c), in the first sentence, inserted "or consultants" and "assessments," and substituted "complaint, assessment, potential impairment matter" for "complaint or," and "consultants" for "agents," and inserted "impairment assessment."

Session Laws 2016-117, s. 2(o), effective October 1, 2016, deleted former subsection (d), which pertained to the Board providing a licensee or applicant with access to all information in its possession that the Board intends to offer into evidence in presenting its case in chief at a contested hearing.

Session Laws 2019-191, s. 33, effective October 1, 2019, rewrote this section.

Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

§ 90-17: Repealed by Session Laws 1967, c. 691, s. 59.

§ 90-18. Practicing without license; penalties.

1. No person shall perform any act constituting the practice of medicine or surgery, as defined in this Article, or any of the branches thereof, unless the person shall have been first licensed and registered so to do in the manner provided in this Article. Any person who practices medicine or surgery without being duly licensed and registered, as provided in this Article, shall not be allowed to maintain any action to collect any fee for such services. Any person so practicing without being duly licensed and registered in this State shall be guilty of a Class 1 misdemeanor. Any person so practicing without being duly licensed and registered in this State and who is falsely representing himself or herself in a manner as being licensed or registered under this Article or any Article of this Chapter shall be guilty of a Class I felony. Any person so practicing without being duly licensed and registered in this State and who is an out-of-state practitioner shall be guilty of a Class I felony. Any person who has a license or approval under this Article that is inactive due solely to the failure to complete annual registration in a timely fashion as required by this Article or any person who is licensed, registered, and practicing under any other Article of this Chapter shall be guilty of a Class 1 misdemeanor.
2. Repealed by Session Laws 2007-346, s. 23, effective October 1, 2007.
3. The following shall not constitute practicing medicine or surgery as defined in this Article:
   1. The administration of domestic or family remedies.
   2. The practice of dentistry by any legally licensed dentist engaged in the practice of dentistry and dental surgery.
   3. The practice of pharmacy by any legally licensed pharmacist engaged in the practice of pharmacy.
   4. The provision of drug therapy management by a licensed pharmacist engaged in the practice of pharmacy pursuant to an agreement that is physician, pharmacist, patient, and disease specific when performed in accordance with rules and rules developed by a joint subcommittee of the North Carolina Medical Board and the North Carolina Board of Pharmacy and approved by both Boards. Drug therapy management shall be defined as: (i) the implementation of predetermined drug therapy which includes diagnosis and product selection by the patient's physician; (ii) modification of prescribed drug dosages, dosage forms, and dosage schedules; and (iii) ordering tests; (i), (ii), and (iii) shall be pursuant to an agreement that is physician, pharmacist, patient, and disease specific.
   5. The practice of medicine and surgery by any surgeon or physician of the United States Army, Navy, or Public Health Service in the discharge of his official duties.
   6. The treatment of the sick or suffering by mental or spiritual means without the use of any drugs or other material means.
   7. The practice of optometry by any legally licensed optometrist engaged in the practice of optometry.
   8. The practice of midwifery as defined in G.S. 90-178.2.
   9. The practice of podiatric medicine and surgery by any legally licensed podiatric physician when engaged in the practice of podiatry as defined in Article 12A of this Chapter.
   10. Repealed by Session Laws 2019-191, s. 34, effective October 1, 2019.
   11. The practice of chiropractic by any legally licensed chiropractor when engaged in the practice of chiropractic as defined by law, and without the use of any drug or surgery.
   12. The practice of medicine or surgery by any nonregistered reputable physician or surgeon who comes into this State, either in person or by use of any electronic or other mediums, on an irregular basis, to consult with a resident registered physician or to consult with personnel at a medical school about educational or medical training. This proviso shall not apply to physicians resident in a neighboring state and regularly practicing in this State.
   13. The practice of medicine or surgery by any physician who comes into this State to practice medicine or surgery so long as:
       1. The physician or surgeon has an oral or written agreement with a sports team to provide general or emergency medical care to the team members, coaching staff, or families traveling with the team for a specific sporting event taking place in this State; and
       2. The physician or surgeon does not provide care or consultation to any person residing in this State other than an individual described in sub-subdivision a. of this subdivision.
   14. Any person practicing radiology as hereinafter defined shall be deemed to be engaged in the practice of medicine within the meaning of this Article. "Radiology" is a specialty branch of the practice of medicine in which illness or disease is diagnosed or treated using various techniques or modalities, including radiant energy or ionizing radiation, and ultrasound and magnetic resonance. The education and training for the practice of radiology includes extensive study in the physics of radiant energy and medical imaging, radiation protection, and the application of ionizing radiation in the diagnosis and treatment of disease.
   15. The performance of any medical acts, tasks, and functions by a licensed physician assistant at the direction or under the supervision of a physician in accordance with rules adopted by the Board. This subdivision shall not limit or prevent any physician from delegating to a qualified person any acts, tasks, and functions that are otherwise permitted by law or established by custom. The Board shall authorize physician assistants licensed in this State or another state to perform specific medical acts, tasks, and functions during a disaster.
   16. The practice of nursing by a registered nurse engaged in the practice of nursing and the performance of acts otherwise constituting medical practice by a registered nurse when performed in accordance with rules and regulations developed by a joint subcommittee of the North Carolina Medical Board and the Board of Nursing and adopted by both boards.
   17. The practice of dietetics/nutrition by a licensed dietitian/nutritionist under the provisions of Article 25 of this Chapter.
   18. The practice of acupuncture by a licensed acupuncturist in accordance with the provisions of Article 30 of this Chapter.
   19. The use of an automated external defibrillator as provided in G.S. 90-21.15.
   20. The practice of medicine by any nonregistered physician residing in another state or foreign country who is contacted by one of the physician's regular patients for treatment by use of any method of communication while the physician's patient is temporarily in this State.
   21. The practice of medicine or surgery by any physician who comes into this State to practice medicine or surgery at a camp that specializes in providing therapeutic recreation for individuals with chronic illnesses, as long as all the following conditions are satisfied:
       1. The physician provides documentation to the medical director of the camp that the physician is licensed and in good standing to practice medicine in another state.
       2. The physician provides services only at the camp or in connection with camp events or camp activities that occur off the grounds of the camp.
       3. The physician receives no compensation for the services.
       4. The physician provides those services within this State for no more than 30 days per calendar year.
       5. The camp has a medical director who holds an unrestricted license to practice medicine and surgery issued under this Article.
   22. The provision of anesthesia services by a licensed anesthesiologist assistant under the supervision of an anesthesiologist licensed under Article 1 of this Chapter in accordance with rules adopted by the Board.

The exemption shall remain in force while the physician or surgeon is traveling with the team. The exemption shall not exceed 10 days per individual sporting event. However, the executive director of the Board may grant a physician or surgeon additional time for exemption of up to 20 additional days per individual sporting event.

History

(1858-9, c. 258, s. 2; Code, s. 3122; 1885, c. 117, s. 2; c. 261; 1889, c. 181, ss. 1, 2; Rev., ss. 3645, 4502; C.S., s. 6622; 1921, c. 47, s. 7; Ex. Sess. 1921, c. 44, s. 8; 1941, c. 163; 1967, c. 263, s. 1; 1969, c. 612, s. 5; c. 929, s. 3; 1971, c. 817, s. 1; c. 1150, s. 6; 1973, c. 92, s. 1; 1983, c. 897, s. 2; 1993, c. 303, s. 2; c. 539, s. 615; 1994, Ex. Sess., c. 24, s. 14(c); 1995, c. 94, ss. 18, 19; 1997-511, s. 4; 1997-514, s. 1; 1999-290, s. 2; 2000-113, s. 2; 2001-27, s. 2; 2003-109, s. 1; 2005-415, s. 2; 2007-146, s. 3; 2007-346, s. 23; 2011-183, s. 127(b); 2011-194, s. 1; 2019-191, s. 34.)

Cross References. - As to unauthorized practice; penalty for violation of Article, see G.S. 90-118.11.

Editor's Note. - Session Laws 1983, c. 897, which substituted "as defined in G.S. 90-178.2" for "by any woman who pursues the vocation of midwife" in subdivision (7), provides, in s. 3: "This act shall become effective October 1, 1983. Any person who on October 1, 1983, had been a practicing midwife in North Carolina for more than 10 years may continue to assist at childbirth without approval under this Article. Any other person authorized to practice midwifery on September 30, 1983, may continue to practice midwifery without approval under this Article until April 1, 1984. No annual fee shall be collected for 1983."

Session Laws 2011-183, s. 127(b) provides: "The Revisor of Statutes is authorized to insert, consistent with this act, the words 'United States' before references to the 'army,' 'navy,' 'marine corps,' 'coast guard,' and 'air force,' wherever these terms appear in the General Statutes, when referring to a branch or branches of the Armed Forces of the United States, and to capitalize those terms." Pursuant to that provision, a conforming change has been made in subdivision (c)(4). The phrase "army, navy, or public health" was changed to "Army, Navy, or Public Health."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.5(a)-(e), as amended by Session Laws 2021-3, s. 2.17, provides: "(a) For purposes of this section, the following definitions apply:

"(1) Quality improvement plan rules. - The rules regulating the quality improvement process for physician assistants and nurse practitioners found in 21 NCAC 32S.0213, 21 NCAC 32M.0110, and 21 NCAC 36.0810.

"(2) Application fee rules. - The portions of rules found in 21 NCAC 32S.0204, 21 NCAC 32M.0115, and 21 NCAC 36.0813 that require the payment of an application fee.

"(3) Annual review rules. - The portions of rules requiring the annual review or renewal of a practice arrangement between a physician and a physician assistant or nurse practitioner found in 21 NCAC 32S.0201, 21 NCAC 32M.0110, and 21 NCAC 36.0806.

"(b) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules to the extent they require any of the following:

"(1) Quality improvement process meetings between a physician and a physician assistant or nurse practitioner, provided that the physician assistant or nurse practitioner was practicing within the scope of his or her license prior to February 1, 2020, and continues to practice within the scope of his or her license while this section is effective.

"(2) Monthly quality improvement process meetings between a physician and a physician assistant or nurse practitioner during the first six months of the practice arrangement between the physician and the physician assistant or nurse practitioner.

"(c) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules or the application fee rules to the extent they require any individual to fill out an application or pay a fee, provided that individual is providing volunteer health care services within the scope of his or her license in response to the COVID-19 pandemic state of emergency declared by the Governor of North Carolina on March 10, 2020.

"(d) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the annual review rules.

"(e) This section is effective when it becomes law and expires December 31, 2022."

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

Effect of Amendments. - Session Laws 2005-415, s. 2, effective December 1, 2005, added the exception at the end of subsection (a).

Session Laws 2007-146, s. 3, effective June 29, 2007, added subdivision (c)(20).

Session Laws 2007-346, s. 23, effective October 1, 2007, deleted "practicing defined" in the section heading; in subsection (a), substituted "perform any act constituting the practice of medicine or surgery, as defined in this Article," for "practice medicine or surgery" and deleted "nor in any case prescribe for the cure of diseases" following "thereof" in the first sentence; deleted subsection (b) regarding the definition of practicing; substituted "this Article" for "subsection (b) of this section" in the introductory paragraph of subsection (c); deleted "in cases of emergency" at the end of subdivision (c)(1); in subdivision (c)(8), substituted "podiatric medicine and surgery" for "chiropody," "podiatric physician" for "chiropodist," and "podiatry as defined in Article 12A of this Chapter" for "chiropody, and without the use of any drug"; added subdivision (c)(11a).

Session Laws 2011-183, s. 127(b), effective June 20, 2011, substituted "Army, Navy, or Public Health Service" for "army, navy, or public health service" in subdivision (c)(4).

Session Laws 2011-194, s. 1, effective December 1, 2011, and applicable to offenses committed on or after that date, rewrote subsection (a).

Session Laws 2019-191, s. 34, effective October 1, 2019, deleted subdivision (c)(9); rewrote subdivision (c)(12); and substituted "any method of communication" for "the Internet or toll-free telephone number" in subdivision (c)(18).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

§ 90-18.1. Limitations on physician assistants.

1. Any person who is licensed under the provisions of G.S. 90-9.3 to perform medical acts, tasks, and functions as a physician assistant may use the title "physician assistant" or "PA." Any other person who uses the title in any form or holds out to be a physician assistant or to be so licensed, shall be deemed to be in violation of this Article.
2. Physician assistants are authorized to write prescriptions for drugs under the following conditions:
   1. The North Carolina Medical Board has adopted regulations governing the approval of individual physician assistants to write prescriptions with such limitations as the Board may determine to be in the best interest of patient health and safety.
   2. The physician assistant holds a current license issued by the Board.
   3. Repealed by Session Laws 2019-191, s. 35, effective October 1, 2019.
   4. The supervising physician has provided to the physician assistant written instructions about indications and contraindications for prescribing drugs and a written policy for periodic review by the physician of the drugs prescribed.
   5. A physician assistant shall personally consult with the supervising physician prior to prescribing a targeted controlled substance as defined in Article 5 of this Chapter when all of the following conditions apply:
      1. The patient is being treated by a facility that primarily engages in the treatment of pain by prescribing narcotic medications.
      2. The therapeutic use of the targeted controlled substance will or is expected to exceed a period of 30 days.
3. Physician assistants are authorized to compound and dispense drugs under the following conditions:
   1. The function is performed under the supervision of a licensed pharmacist.
   2. Rules and regulations of the North Carolina Board of Pharmacy governing this function are complied with.
   3. The physician assistant holds a current license issued by the Board.
4. Physician assistants are authorized to order medications, tests and treatments in hospitals, clinics, nursing homes, and other health facilities under the following conditions:
   1. The North Carolina Medical Board has adopted regulations governing the approval of individual physician assistants to order medications, tests, and treatments with such limitations as the Board may determine to be in the best interest of patient health and safety.
   2. The physician assistant holds a current license issued by the Board.
   3. The supervising physician has provided to the physician assistant written instructions about ordering medications, tests, and treatments, and when appropriate, specific oral or written instructions for an individual patient, with provision for review by the physician of the order within a reasonable time, as determined by the Board, after the medication, test, or treatment is ordered.
   4. The hospital or other health facility has adopted a written policy about ordering medications, tests, and treatments, including procedures for verification of the physician assistants' orders by nurses and other facility employees and such other procedures as are in the interest of patient health and safety.
5. Any prescription written by a physician assistant or order given by a physician assistant for medications, tests, or treatments shall be deemed to have been authorized by the physician approved by the Board as the supervisor of the physician assistant and the supervising physician shall be responsible for authorizing the prescription or order.
6. Any medical certification completed by a physician assistant for a death certificate shall be deemed to have been authorized by the physician approved by the Board as the supervisor of the physician assistant, and the supervising physician shall be responsible for authorizing the completion of the medical certification.
7. Any registered nurse or licensed practical nurse who receives an order from a physician assistant for medications, tests, or treatments is authorized to perform that order in the same manner as if it were received from a licensed physician.
8. Any person who is licensed under G.S. 90-9.3 to perform medical acts, tasks, and functions as a physician assistant shall comply with each of the following:
   1. Maintain a current and active license to practice in this State.
   2. Maintain an active registration with the Board.
   3. Have a current Intent to Practice form filed with the Board.
9. A physician assistant serving active duty in the Armed Forces of the United States is exempt from the requirements of subdivision (g)(3) of this section.
10. A physician assistant's license shall become inactive any time the holder fails to comply with the requirements of subsection (g) of this section. A physician assistant with an inactive license shall not practice medical acts, tasks, or functions. The Board shall retain jurisdiction over the holder of the inactive license.

When a targeted controlled substance prescribed in accordance with this subdivision is continuously prescribed to the same patient, the physician assistant shall consult with the supervising physician at least once every 90 days to verify that the prescription remains medically appropriate for the patient.

History

(1975, c. 627; 1977, c. 904, s. 1; 1977, 2nd Sess., c. 1194, s. 1; 1995, c. 94, s. 20; 1997-511, s. 5; 2007-346, ss. 24, 25; 2011-183, s. 56; 2011-197, s. 1; 2017-74, s. 4; 2019-191, s. 35; 2021-70, s. 1(a).)

Editor's Note. - Session Laws 2017-74, provides in its preamble: "Whereas, the General Assembly recognizes the substantial impact the nationwide opioid epidemic continues to have on the State of North Carolina; and

"Whereas, North Carolina has seen a 442% increase in overdose deaths caused by commonly prescribed opioids between 1999 and 2015; and

"Whereas, the General Assembly fully recognizes the appropriate use of opioids in the treatment of acute and chronic pain; Now, therefore,"

Session Laws 2017-74, s. 1, provides: "This act shall be known and may be cited as the 'Strengthen Opioid Misuse Prevention Act of 2017' or the 'STOP Act.'"

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.5(a)-(e), as amended by Session Laws 2021-3, s. 2.17, provides: "(a) For purposes of this section, the following definitions apply:

"(1) Quality improvement plan rules. - The rules regulating the quality improvement process for physician assistants and nurse practitioners found in 21 NCAC 32S.0213, 21 NCAC 32M.0110, and 21 NCAC 36.0810.

"(2) Application fee rules. - The portions of rules found in 21 NCAC 32S.0204, 21 NCAC 32M.0115, and 21 NCAC 36.0813 that require the payment of an application fee.

"(3) Annual review rules. - The portions of rules requiring the annual review or renewal of a practice arrangement between a physician and a physician assistant or nurse practitioner found in 21 NCAC 32S.0201, 21 NCAC 32M.0110, and 21 NCAC 36.0806.

"(b) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules to the extent they require any of the following:

"(1) Quality improvement process meetings between a physician and a physician assistant or nurse practitioner, provided that the physician assistant or nurse practitioner was practicing within the scope of his or her license prior to February 1, 2020, and continues to practice within the scope of his or her license while this section is effective.

"(2) Monthly quality improvement process meetings between a physician and a physician assistant or nurse practitioner during the first six months of the practice arrangement between the physician and the physician assistant or nurse practitioner.

"(c) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules or the application fee rules to the extent they require any individual to fill out an application or pay a fee, provided that individual is providing volunteer health care services within the scope of his or her license in response to the COVID-19 pandemic state of emergency declared by the Governor of North Carolina on March 10, 2020.

"(d) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the annual review rules.

"(e) This section is effective when it becomes law and expires December 31, 2022."

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

Effect of Amendments. - Session Laws 2007-346, ss. 24 and 25, effective October 1, 2007, substituted "90-9.3" for "90-11" in subsection (a); added subsections (g), (h), and (i).

Session Laws 2011-183, s. 56, effective June 20, 2011, substituted "Armed Forces of the United States" for "United States military" in subsection (h).

Session Laws 2011-197, s. 1, effective October 1, 2011, and applicable to certifications signed on or after that date, added subsection (e1).

Session Laws 2017-74, s. 4, effective July 1, 2017, added subdivision (b)(5).

Session Laws 2019-191, s. 35, effective October 1, 2019, deleted "an assistant to" following "functions as" in subsection (a) and the introductory paragraph of subsection (g); in the first sentence of subsection (a), inserted "assistant" and substituted "assistant' or 'PA'" for "assistant'"; deleted subdivision (b)(3); substituted "policy" for "policy, approved by the medical staff after consultation with the nursing administration" in subdivision (d)(4); and inserted "assistant" in the introductory paragraph of subsection (g).

Session Laws 2021-70, s. 1(a), effective October 1, 2021, substituted "narcotic medications" for "narcotic medications or advertises in any medium for any type of pain management services" in sub-subdivision (b)(5)a.

Legal Periodicals. - For note, "Nurse Malpractice in North Carolina: The Standard of Care," see 65 N.C.L. Rev. 579 (1987).

§ 90-18.2. Limitations on nurse practitioners.

1. Any nurse approved under the provisions of G.S. 90-18(c)(14) to perform medical acts, tasks or functions may use the title "nurse practitioner." Any other person who uses the title in any form or holds out to be a nurse practitioner or to be so approved, shall be deemed to be in violation of this Article.
2. Nurse practitioners are authorized to write prescriptions for drugs under all of the following conditions:
   1. The North Carolina Medical Board and Board of Nursing have adopted regulations developed by a joint subcommittee governing the approval of individual nurse practitioners to write prescriptions with such limitations as the boards may determine to be in the best interest of patient health and safety.
   2. The nurse practitioner has current approval from the boards.
   3. Repealed by Session Laws 2019-191, s. 36, effective October 1, 2019.
   4. The supervising physician has provided to the nurse practitioner written instructions about indications and contraindications for prescribing drugs and a written policy for periodic review by the physician of the drugs prescribed.
   5. A nurse practitioner shall personally consult with the supervising physician prior to prescribing a targeted controlled substance as defined in Article 5 of this Chapter when all of the following conditions apply:
      1. The patient is being treated by a facility that primarily engages in the treatment of pain by prescribing narcotic medications.
      2. The therapeutic use of the targeted controlled substance will or is expected to exceed a period of 30 days.
3. Nurse practitioners are authorized to compound and dispense drugs under the following conditions:
   1. The function is performed under the supervision of a licensed pharmacist; and
   2. Rules and regulations of the North Carolina Board of Pharmacy governing this function are complied with.
4. Nurse practitioners are authorized to order medications, tests and treatments in hospitals, clinics, nursing homes and other health facilities under all of the following conditions:
   1. The North Carolina Medical Board and Board of Nursing have adopted regulations developed by a joint subcommittee governing the approval of individual nurse practitioners to order medications, tests and treatments with such limitations as the boards may determine to be in the best interest of patient health and safety.
   2. The nurse practitioner has current approval from the boards.
   3. The supervising physician has provided to the nurse practitioner written instructions about ordering medications, tests and treatments, and when appropriate, specific oral or written instructions for an individual patient, with provision for review by the physician of the order within a reasonable time, as determined by the Board, after the medication, test or treatment is ordered.
   4. The hospital or other health facility has adopted a written policy, approved by the medical staff after consultation with the nursing administration, about ordering medications, tests and treatments, including procedures for verification of the nurse practitioners' orders by nurses and other facility employees and such other procedures as are in the interest of patient health and safety.
5. Any prescription written by a nurse practitioner or order given by a nurse practitioner for medications, tests or treatments shall be deemed to have been authorized by the physician approved by the boards as the supervisor of the nurse practitioner and such supervising physician shall be responsible for authorizing such prescription or order.
6. Any medical certification completed by a nurse practitioner for a death certificate shall be deemed to have been authorized by the physician approved by the boards as the supervisor of the nurse practitioner, and the supervising physician shall be responsible for authorizing the completion of the medical certification.
7. Any registered nurse or licensed practical nurse who receives an order from a nurse practitioner for medications, tests or treatments is authorized to perform that order in the same manner as if it were received from a licensed physician.

When a targeted controlled substance prescribed in accordance with this subdivision is continuously prescribed to the same patient, the nurse practitioner shall consult with the supervising physician at least once every 90 days to verify that the prescription remains medically appropriate for the patient.

History

(1977, 2nd Sess., c. 1194, s. 2; 1995, c. 94, s. 21; 2011-197, s. 2; 2017-74, s. 5; 2019-191, s. 36; 2021-70, s. 1(b).)

Editor's Note. - Session Laws 2017-74, provides in its preamble: "Whereas, the General Assembly recognizes the substantial impact the nationwide opioid epidemic continues to have on the State of North Carolina; and

"Whereas, North Carolina has seen a 442% increase in overdose deaths caused by commonly prescribed opioids between 1999 and 2015; and

"Whereas, the General Assembly fully recognizes the appropriate use of opioids in the treatment of acute and chronic pain; Now, therefore,"

Session Laws 2017-74, s. 1, provides: "This act shall be known and may be cited as the 'Strengthen Opioid Misuse Prevention Act of 2017' or the 'STOP Act.'"

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.5(a)-(e), as amended by Session Laws 2021-3, s. 2.17, provides: "(a) For purposes of this section, the following definitions apply:

"(1) Quality improvement plan rules. - The rules regulating the quality improvement process for physician assistants and nurse practitioners found in 21 NCAC 32S.0213, 21 NCAC 32M.0110, and 21 NCAC 36.0810.

"(2) Application fee rules. - The portions of rules found in 21 NCAC 32S.0204, 21 NCAC 32M.0115, and 21 NCAC 36.0813 that require the payment of an application fee.

"(3) Annual review rules. - The portions of rules requiring the annual review or renewal of a practice arrangement between a physician and a physician assistant or nurse practitioner found in 21 NCAC 32S.0201, 21 NCAC 32M.0110, and 21 NCAC 36.0806.

"(b) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules to the extent they require any of the following:

"(1) Quality improvement process meetings between a physician and a physician assistant or nurse practitioner, provided that the physician assistant or nurse practitioner was practicing within the scope of his or her license prior to February 1, 2020, and continues to practice within the scope of his or her license while this section is effective.

"(2) Monthly quality improvement process meetings between a physician and a physician assistant or nurse practitioner during the first six months of the practice arrangement between the physician and the physician assistant or nurse practitioner.

"(c) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the quality improvement plan rules or the application fee rules to the extent they require any individual to fill out an application or pay a fee, provided that individual is providing volunteer health care services within the scope of his or her license in response to the COVID-19 pandemic state of emergency declared by the Governor of North Carolina on March 10, 2020.

"(d) Notwithstanding any other provision of law to the contrary, neither the North Carolina Medical Board nor the North Carolina Board of Nursing shall enforce any provision of the annual review rules.

"(e) This section is effective when it becomes law and expires December 31, 2022."

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

Effect of Amendments. - Session Laws 2011-197, s. 2, effective October 1, 2011, and applicable to certifications signed on or after that date, added subsection (e1).

Session Laws 2017-74, s. 5, effective July 1, 2017, added subdivision (b)(5).

Session Laws 2019-191, s. 36, effective October 1, 2019, substituted "G.S. 90-18(c)(14)" for "G.S. 90-18(14)" in the first sentence of subsection (a); inserted "all of" in the introductory paragraphs of subsections (b) and (d); deleted subdivision (b)(3); and made stylistic changes.

Session Laws 2021-70, s. 1(b), effective October 1, 2021, substituted "narcotic medications" for "narcotic medications or advertises in any medium for any type of pain management services" in sub-subdivision (b)(5)a.

Legal Periodicals. - For note, "Nurse Malpractice in North Carolina: The Standard of Care," see 65 N.C.L. Rev. 579 (1987).

§ 90-18.2A. Physician assistants receiving, prescribing, or dispensing prescription drugs without charge or fee.

The North Carolina Medical Board shall have sole jurisdiction to regulate and license physician assistants receiving, prescribing, or dispensing prescription drugs under the supervision of a licensed physician without charge or fee to the patient. The provisions of G.S. 90-18.1(c)(1), (c)(2), and G.S. 90-85.21(b), shall not apply to the receiving, prescribing, or dispensing of prescription drugs without charge or fee to the patient.

History

(2004-124, s. 10.2E(a).)

§ 90-18.3. Medical or physical examination by nurse practitioners and physician assistants.

1. Whenever a statute or State agency rule requires that a medical or physical examination shall be conducted by a physician, the examination may be conducted and the form signed by a nurse practitioner or a physician assistant, and a physician need not be present. Nothing in this section shall otherwise change the scope of practice of a nurse practitioner or a physician assistant, as defined by G.S. 90-18.1 and G.S. 90-18.2, respectively.
2. This section shall not apply to physical examinations conducted pursuant to G.S. 1A-1, Rule 35; G.S. 15B-12; G.S. 90-14 unless those statutes or rules are amended to make the provisions of this section applicable.

History

(1999-226, s. 1; 2004-124, s. 18.2(f); 2019-191, s. 37.)

Effect of Amendments. - Session Laws 2004-124, s. 18.2(f), effective July 1, 2004, deleted "or any rules adopted by the North Carolina Boxing Commission requiring physical examinations" following "G.S. 90-14" in subsection (b).

Session Laws 2019-191, s. 37, effective October 1, 2019, substituted "Medical or physician" for "Physical" in the section heading; and, in subsection (a), inserted "medical or" and substituted "physician" for "physician's" twice.

§ 90-18.4. Limitations on clinical pharmacist practitioners.

1. Any pharmacist who is approved under the provisions of G.S. 90-18(c)(3a) to perform medical acts, tasks, and functions may use the title "clinical pharmacist practitioner". Any other person who uses the title in any form or holds himself or herself out to be a clinical pharmacist practitioner or to be so licensed shall be deemed to be in violation of this Article.
2. Clinical pharmacist practitioners are authorized to implement predetermined drug therapy, which includes diagnosis and product selection by the patient's physician, modify prescribed drug dosages, dosage forms, and dosage schedules, and to order laboratory tests pursuant to a drug therapy management agreement that is physician, pharmacist, patient, and disease specific under the following conditions:
   1. The North Carolina Medical Board and the North Carolina Board of Pharmacy have adopted rules developed by a joint subcommittee governing the approval of individual clinical pharmacist practitioners to practice drug therapy management with such limitations that the Boards determine to be in the best interest of patient health and safety.
   2. The clinical pharmacist practitioner has current approval from both Boards.
   3. The North Carolina Medical Board has assigned an identification number to the clinical pharmacist practitioner which is shown on written prescriptions written by the clinical pharmacist practitioner.
   4. The drug therapy management agreement prohibits the substitution of a chemically dissimilar drug product by the pharmacist for the product prescribed by the physician without the explicit consent of the physician and includes a policy for periodic review by the physician of the drugs modified pursuant to the agreement or changed with the consent of the physician.
3. Clinical pharmacist practitioners in hospitals and other health facilities that have an established pharmacy and therapeutics committee or similar group that determines the prescription drug formulary or other list of drugs to be utilized in the facility and determines procedures to be followed when considering a drug for inclusion on the formulary and procedures to acquire a nonformulary drug for a patient may order medications and tests under the following conditions:
   1. The North Carolina Medical Board and the North Carolina Board of Pharmacy have adopted rules governing the approval of individual clinical pharmacist practitioners to order medications and tests with such limitations as the Boards determine to be in the best interest of patient health and safety.
   2. The clinical pharmacist practitioner has current approval from both Boards.
   3. The supervising physician has provided to the clinical pharmacist practitioner written instructions for ordering, changing, or substituting drugs, or ordering tests with provision for review of the order by the physician within a reasonable time, as determined by the Boards, after the medication or tests are ordered.
   4. The hospital or health facility has adopted a written policy, approved by the medical staff after consultation with nursing administrators, concerning the ordering of medications and tests, including procedures for verification of the clinical pharmacist practitioner's orders by nurses and other facility employees and such other procedures that are in the best interest of patient health and safety.
   5. Any drug therapy order written by a clinical pharmacist practitioner or order for medications or tests shall be deemed to have been authorized by the physician approved by the Boards as the supervisor of the clinical pharmacist practitioner and the supervising physician shall be responsible for authorizing the prescription order.
4. Any registered nurse or licensed practical nurse who receives a drug therapy order from a clinical pharmacist practitioner for medications or tests is authorized to perform that order in the same manner as if the order was received from a licensed physician.

History

(1999-290, s. 3.)

§ 90-18.5. Limitations on anesthesiologist assistants.

1. Any person who is licensed to provide anesthesia services as an assistant to an anesthesiologist licensed under Article 1 of this Chapter may use the title "anesthesiologist assistant." Any other person who uses the title in any form or holds himself or herself out to be an anesthesiologist assistant or to be so licensed without first obtaining a license shall be deemed in violation of this Article. A student in any anesthesiologist assistant training program shall be identified as a "student anesthesiologist assistant" or an "anesthesiologist assistant student," but under no circumstances shall the student use or permit to be used on the student's behalf the terms "intern," "resident," or "fellow."
2. Anesthesiologist assistants are authorized to provide anesthesia services under the supervision of an anesthesiologist licensed under Article 1 of this Chapter under the following conditions:
   1. The North Carolina Medical Board has adopted rules governing the provision of anesthesia services by an anesthesiologist assistant consistent with the requirements of subsection (c) of this section.
   2. The anesthesiologist assistant holds a current license issued by the Board or is a student anesthesiologist assistant participating in a training program leading to certification by the National Commission for Certification of Anesthesiologist Assistants and licensure as an anesthesiologist assistant under G.S. 90-9.4.
3. The North Carolina Medical Board shall adopt rules to implement this section that include requirements and limitations on the provision of anesthesia services by an anesthesiologist assistant as determined by the Board to be in the best interests of patient health and safety. Rules adopted by the Board pursuant to this section shall include the following requirements:
   1. That an anesthesiologist assistant be supervised by an anesthesiologist licensed under this Article who is actively engaged in clinical practice and immediately available on-site to provide assistance to the anesthesiologist assistant.
   2. That an anesthesiologist may supervise no more than two anesthesiologist assistants or student anesthesiologist assistants at one time. The limitation on the number of anesthesiologist assistants and student anesthesiologist assistants that an anesthesiologist may supervise in no way restricts the number of other qualified anesthesia providers an anesthesiologist may concurrently supervise. After January 1, 2010, the Board may allow an anesthesiologist to supervise up to four licensed anesthesiologist assistants concurrently and may revise the supervision limitations of student anesthesiologist assistants such that the supervision requirements for student anesthesiologist assistants are similar to the supervision requirements for student nurse anesthetists.
   3. That anesthesiologist assistants comply with all continuing education requirements and recertification requirements of the National Commission for Certification of Anesthesiologist Assistants or its successor organization.
4. Nothing in this section shall limit or expand the scope of practice of physician assistants under existing law.

History

(2007-146, s. 4; 2008-187, s. 14.)

Effect of Amendments. - Session Laws 2008-187, s. 14, effective August 7, 2008, substituted "G.S. 90-9.4" for "G.S. 90-11(a1)" in subdivision (b)(2).

§ 90-18.6. Requirements for certain nicotine replacement therapy programs.

The Health and Wellness Trust Fund ("Trust Fund") or the Department of Health and Human Services ("Department") may contract for the operation of a tobacco-use cessation program through which the Trust Fund or the Department, as applicable, may engage agents or contractors for the purpose of (i) recommending to individuals over-the-counter nicotine replacement therapy products and supplying the products free of charge to the individual and (ii) discussing with the individual contraindications and all other aspects of over-the-counter nicotine replacement therapy. All medical aspects of the nicotine replacement therapy programs shall be supervised by a physician who is licensed under this Article to practice medicine and who is under contract to or employed by the Trust Fund or the Department, as applicable, for the purpose of supervising nicotine replacement therapy programs. The physician under contract with or employed by the Trust Fund or the Department, as applicable, shall be responsible for supervision of all agents or contractors of nicotine replacement therapy programs that provide nicotine replacement therapy services to members of the public. The Trust Fund or the Department, as contracting entity, shall report the name of the supervising physician to the North Carolina Medical Board.

History

(2008-107, s. 10.4B.)

§ 90-18.7: Repealed by Session Laws 2019-191, s. 38, effective October 1, 2019.

History

(2013-43, s. 2; repealed by 2019-191, s. 38, effective October 1, 2019.)

Editor's Note. - Session Laws 2013-43, s. 2, effective May 8, 2013, was codified as G.S. 90-18.7 at the direction of the Revisor of Statutes.

Former G.S. 90-18.7 pertained to coordination of rules on pathological materials.

§§ 90-19, 90-20: Repealed by Session Laws 1967, c. 691, s. 59.

§ 90-21: Repealed by Session Laws 2007-346, s. 26, effective October 1, 2007.

§ 90-21.1. When physician may treat minor without consent of parent, guardian or person in loco parentis.

It shall be lawful for any physician licensed to practice medicine in North Carolina to render treatment to any minor without first obtaining the consent and approval of either the father or mother of said child, or any person acting as guardian, or any person standing in loco parentis to said child where:

1. The parent or parents, the guardian, or a person standing in loco parentis to said child cannot be located or contacted with reasonable diligence during the time within which said minor needs to receive the treatment herein authorized, or
2. Where the identity of the child is unknown, or where the necessity for immediate treatment is so apparent that any effort to secure approval would delay the treatment so long as to endanger the life of said minor, or
3. Where an effort to contact a parent, guardian, or person standing in loco parentis would result in a delay that would seriously worsen the physical condition of said minor, or
4. Where the parents refuse to consent to a procedure, and the necessity for immediate treatment is so apparent that the delay required to obtain a court order would endanger the life or seriously worsen the physical condition of the child. No treatment shall be administered to a child over the parent's objection as herein authorized unless the physician shall first obtain the opinion of another physician licensed to practice medicine in the State of North Carolina that such procedure is necessary to prevent immediate harm to the child.

Provided, however, that the refusal of a physician to use, perform or render treatment to a minor without the consent of the minor's parent, guardian, or person standing in the position of loco parentis, in accordance with this Article, shall not constitute grounds for a civil action or criminal proceedings against such physician.

History

(1965, c. 810, s. 1; 1977, c. 625, s. 1.)

Cross References. - As to application of this section to surgical operations on inmates of State penal institutions, see G.S. 148-22.2.

Opinions of Attorney General

"Minor" Is Person Under 18. - See opinion of Attorney General to Lena S. Davis, 41 N.C.A.G. 489 (1971).

Protection Extends to Social Workers and Psychologists Working Under Physicians. - See opinion of Attorney General to Mr. Ed McClearsen, Staff Attorney, Mental Health Study Commission, 47 N.C.A.G. 83 (1977).

Delegation of Responsibility to Nurse Practitioner or Physician's Assistant. - A physician associated with a publicly supported family planning clinic can delegate responsibility for medically related contraceptive services to a nurse practitioner or physician's assistant whom he supervises and who functions under his standing orders, if these functions are specifically approved for the individual nurse practitioner or physician's assistant by the Board of Medical Examiners. Opinion of Attorney General to Margie Rose, M.P.H. Branch Head, Family Planning Branch, Division of Health Services, 47 N.C.A.G. 80 (1977).

Counseling Not "Treatment". - Counseling minors for sickle cell disease and related genetic disorders does not constitute "treatment" as defined under G.S. 90-21.2. See opinion of Attorney General to Sarah T. Morrow, M.D., M.P.H., Secretary, Dep't of Human Resources, 49 N.C.A.G. 181 (1980).

Parental consent is required for counseling minors for sickle cell disease and related genetic disorders and such consent remains valid for later counseling if obtained at the time of testing. See opinion of Attorney General of Sarah T. Morrow, M.D., M.P.H., Secretary, Dep't of Human Resources, 49 N.C.A.G. 181 (1980).

To provide genetic counseling to minors without consent would appear to be a violation of the common-law principles governing the parent-child relationship and thus would leave the individual providing these services potentially vulnerable to litigation. See opinion of Attorney General to Sarah T. Morrow, M.D., M.P.H., Secretary, Dep't of Human Resources, 49 N.C.A.G. 181 (1980).

§ 90-21.2. "Treatment" defined.

The word "treatment" as used in G.S. 90-21.1 is hereby defined to mean any medical procedure or treatment, including X rays, the administration of drugs, blood transfusions, use of anesthetics, and laboratory or other diagnostic procedures employed by or ordered by a physician licensed to practice medicine in the State of North Carolina that is used, employed, or ordered to be used or employed commensurate with the exercise of reasonable care and equal to the standards of medical practice normally employed in the community where said physician administers treatment to said minor.

History

(1965, c. 810, s. 2.)

Legal Periodicals. - For article, "Operationalizing the Standard of Medical Care: Uses and Limitations of Epidemiology to Guide Expert Testimony in Medical Negligence Allegations," see 37 Wake Forest L. Rev. 675 (2002).

For article, "Jurors as Beneficiaries of Proposals to Objectify Proof of the Standard of Care in Medical Malpractice Cases," see 37 Wake Forest L. Rev. 943 (2002).

For article, "Observations on the Search for Objective Proof of the Standard of Care in Medical Malpractice Cases," see 37 Wake Forest L. Rev. 953 (2002).

For article, "Ascertaining Customary Care in Malpractice Cases: Asking Those Who Know," see 37 Wake Forest L. Rev. 699 (2002).

For article, "Empirical Evidence and Malpractice Litigation," see 37 Wake Forest L. Rev. 757 (2002).

For article, "Measuring Medical Practice Patterns: Sources of Evidence from Health Services Research," see 37 Wake Forest L. Rev. 779 (2002).

For article, "Using Statistical Evidence to Prove the Malpractice Standard of Care: Bridging Legal, Clinical, and Statistical Thinking," see 37 Wake Forest L. Rev. 821 (2002).

For article, "Determining the Standard of Care in Medical Malpractice: The Physician's Perspective," see 37 Wake Forest L. Rev. 861 (2002).

For article, "The Process of Managing Medical Malpractice Cases: The Role of Standard of Care," see 37 Wake Forest L. Rev. 877 (2002).

For article, "Following the Man on the Clapham Omnibus: Social Science Evidence in Malpractice Litigation," see 37 Wake Forest L. Rev. 903 (2002).

For article, "Unwarranted Variations in the Quality of Health Care: Can the Law Help Medicine Provide a Remedy/Remedies," see 37 Wake Forest L. Rev. 925 (2002).

For comment, "Setting the 'Bar' in North Carolina Medical Malpractice Litigation: Working with the Standard of Care that Everyone Loves to Hate," see 89 N.C.L. Rev. 234 (2010).

§ 90-21.3. Performance of surgery on minor; obtaining second opinion as to necessity.

The word "treatment" as defined in G.S. 90-21.2 shall also include any surgical procedure which in the opinion of the attending physician is necessary under the terms and conditions set out in G.S. 90-21.1; provided, however, no surgery shall be conducted upon a minor as herein authorized unless the surgeon shall first obtain the opinion of another physician licensed to practice medicine in the State of North Carolina that said surgery is necessary under the conditions set forth in G.S. 90-21.1; provided further, that in any emergency situation that shall arise in a rural community, or in a community where it is impossible for the surgeon to contact any other physician for the purpose of obtaining his opinion as to the necessity for immediate surgery, it shall not be necessary for the surgeon to obtain approval from another physician before performing such surgery as is necessary under the terms and conditions set forth in G.S. 90-21.1.

History

(1965, c. 810, s. 3.)

§ 90-21.4. Responsibility, liability and immunity of physicians.

1. Any physician licensed to practice medicine in North Carolina providing health services to a minor under the terms, conditions and circumstances of this Article shall not be held liable in any civil or criminal action for providing such services without having obtained permission from the minor's parent, legal guardian, person standing in loco parentis, or a legal custodian other than a parent when granted specific authority in a custody order to consent to medical or psychiatric treatment. The physician shall not be relieved on the basis of this Article from liability for negligence in the diagnosis and treatment of a minor.
2. The physician shall not notify a parent, legal guardian, person standing in loco parentis, or a legal custodian other than a parent when granted specific authority in a custody order to consent to medical or psychiatric treatment, without the permission of the minor, concerning the medical health services set out in G.S. 90-21.5(a), unless the situation in the opinion of the attending physician indicates that notification is essential to the life or health of the minor. If a parent, legal guardian[,] person standing in loco parentis, or a legal custodian other than a parent when granted specific authority in a custody order to consent to medical or psychiatric treatment contacts the physician concerning the treatment or medical services being provided to the minor, the physician may give information.

History

(1965, c. 810, s. 4; 1977, c. 582, s. 1; 1985, c. 589, s. 30.)

Opinions of Attorney General

This section provides immunity from civil or criminal liability to a nurse practitioner or physician's assistant for non-negligent acts performed under the physician's supervision and while functioning under the physician's standing orders if the delegation of responsibility is proper. Opinion of Attorney General to Margie Rose, M.P.H. Branch Head, Family Planning Branch, Division of Health Services, 47 N.C.A.G. 80 (1977).

§ 90-21.5. Minor's consent sufficient for certain medical health services.

1. Subject to subsection (a1) of this section, any minor may give effective consent to a physician licensed to practice medicine in North Carolina for medical health services for the prevention, diagnosis and treatment of (i) venereal disease and other diseases reportable under G.S. 130A-135, (ii) pregnancy, (iii) abuse of controlled substances or alcohol, and (iv) emotional disturbance. This section does not authorize the inducing of an abortion, performance of a sterilization operation, or admission to a 24-hour facility licensed under Article 2 of Chapter 122C of the General Statutes except as provided in G.S. 122C-223. This section does not prohibit the admission of a minor to a treatment facility upon his own written application in an emergency situation as authorized by G.S. 122C-223.
2. Notwithstanding any other provision of law to the contrary, a health care provider shall obtain written consent from a parent or legal guardian prior to administering any vaccine that has been granted emergency use authorization and is not yet fully approved by the United States Food and Drug Administration to an individual under 18 years of age.
3. Any minor who is emancipated may consent to any medical treatment, dental and health services for himself or for his child.

History

(1971, c. 35; 1977, c. 582, s. 2; 1983, c. 302, s. 2; 1985, c. 589, s. 31; 1985 (Reg. Sess., 1986), c. 863, s. 4; 2009-570, s. 10; 2021-110, s. 9.)

Editor's Note. - Session Laws 2021-110 provides in the preamble:

"Whereas, it is the intention of the North Carolina General Assembly to improve access to care and health outcomes for its citizens; and

"Whereas, North Carolina's public health ranking is in the bottom one-half to one-third of the nation; and

"Whereas, one-third of our nation's states have authorized pharmacists to help with access to care related to public health needs beyond immunizations; and

"Whereas, North Carolinians need and deserve better accessibility to care; Now, therefore,"

Effect of Amendments. - Session Laws 2009-570, s. 10, effective August 28, 2009, substituted "G.S. 122C-223" for "G.S. 122C-222" twice in subsection (a).

Session Laws 2021-110, s. 9, effective August 20, 2021, substituted "Subject to subsection (a1) of this section, any" for "Any" at the beginning in subsection (a); and added subsection (a1).

§ 90-21.6. Definitions.

For the purposes of Part 2 only of this Article, unless the context clearly requires otherwise:

1. "Unemancipated minor" or "minor" means any person under the age of 18 who has not been married or has not been emancipated pursuant to Article 35 of Chapter 7B of the General Statutes.
2. "Abortion" means the use or prescription of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a woman known to be pregnant, for reasons other than to save the life or preserve the health of an unborn child, to remove a dead unborn child, or to deliver an unborn child prematurely, by accepted medical procedures in order to preserve the health of both the mother and the unborn child.

History

(1995, c. 462, s. 1; 1998-202, s. 13(t).)

§ 90-21.7. Parental consent required.

1. No physician licensed to practice medicine in North Carolina shall perform an abortion upon an unemancipated minor unless the physician or agent thereof or another physician or agent thereof first obtains the written consent of the minor and of:
   1. A parent with custody of the minor; or
   2. The legal guardian or legal custodian of the minor; or
   3. A parent with whom the minor is living; or
   4. A grandparent with whom the minor has been living for at least six months immediately preceding the date of the minor's written consent.
2. The pregnant minor may petition, on her own behalf or by guardian ad litem, the district court judge assigned to the juvenile proceedings in the district court where the minor resides or where she is physically present for a waiver of the parental consent requirement if:
   1. None of the persons from whom consent must be obtained pursuant to this section is available to the physician performing the abortion or the physician's agent or the referring physician or the agent thereof within a reasonable time or manner; or
   2. All of the persons from whom consent must be obtained pursuant to this section refuse to consent to the performance of an abortion; or
   3. The minor elects not to seek consent of the person from whom consent is required.

History

(1995, c. 462, s. 1.)

Legal Periodicals. - For comment, "The Burial of an Impartial Judicial System: The Lifting of Restrictions on Judicial Candidate Speech in North Carolina," see 33 Wake Forest L. Rev. 413 (1998).

For a note on minors' rights vis-a-vis abortion, see 1999 Duke L.J. 297 (1999).

§ 90-21.8. Procedure for waiver of parental consent.

1. The requirements and procedures under Part 2 of this Article are available and apply to unemancipated minors seeking treatment in this State.
2. The court shall ensure that the minor or her guardian ad litem is given assistance in preparing and filing the petition and shall ensure that the minor's identity is kept confidential.
3. The minor may participate in proceedings in the court on her own behalf or through a guardian ad litem. The court shall advise her that she has a right to appointed counsel, and counsel shall be provided upon her request in accordance with rules adopted by the Office of Indigent Defense Services.
4. Court proceedings under this section shall be confidential and shall be given precedence over other pending matters necessary to ensure that the court may reach a decision promptly. In no case shall the court fail to rule within seven days of the time of filing the application. This time limitation may be extended at the request of the minor. At the hearing, the court shall hear evidence relating to the emotional development, maturity, intellect, and understanding of the minor; the nature, possible consequences, and alternatives to the abortion; and any other evidence that the court may find useful in determining whether the parental consent requirement shall be waived.
5. The parental consent requirement shall be waived if the court finds:
   1. That the minor is mature and well-informed enough to make the abortion decision on her own; or
   2. That it would be in the minor's best interests that parental consent not be required; or
   3. That the minor is a victim of rape or of felonious incest under G.S. 14-178.
6. The court shall make written findings of fact and conclusions of law supporting its decision and shall order that a confidential record of the evidence be maintained. If the court finds that the minor has been a victim of incest, whether felonious or misdemeanor, it shall advise the Director of the Department of Social Services of its findings for further action pursuant to Article 3 of Chapter 7B of the General Statutes.
7. If the female petitioner so requests in her petition, no summons or other notice may be served upon the parents, guardian, or custodian of the minor female.
8. The minor may appeal an order issued in accordance with this section. The appeal shall be a de novo hearing in superior court. The notice of appeal shall be filed within 24 hours from the date of issuance of the district court order. The de novo hearing may be held out of district and out of session and shall be held as soon as possible within seven days of the filing of the notice of appeal. The record of the de novo hearing is a confidential record and shall not be open for general public inspection. The Chief Justice of the North Carolina Supreme Court shall adopt rules necessary to implement this subsection.
9. No court costs shall be required of any minor who avails herself of the procedures provided by this section.

History

(1995, c. 462, s. 1; 1998-202, s. 13(u); 2000-144, s. 35.)

Cross References. - For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B.

§ 90-21.9. Medical emergency exception.

The requirements of parental consent prescribed by G.S. 90- 21.7(a) shall not apply when, in the best medical judgment of the physician based on the facts of the case before the physician, a medical emergency exists that so complicates the pregnancy as to require an immediate abortion, or when the conditions prescribed by G.S. 90-21.1(4) are met.

History

(1995, c. 462, s. 1.)

§ 90-21.10. Penalty.

Any person who intentionally performs an abortion with knowledge that, or with reckless disregard as to whether, the person upon whom the abortion is to be performed is an unemancipated minor, and who intentionally or knowingly fails to conform to any requirement of Part 2 of this Article shall be guilty of a Class 1 misdemeanor.

History

(1995, c. 462, s. 1.)

§ 90-21.11. Definitions.

The following definitions apply in this Article:

1. Health care provider. -  Without limitation, any of the following:
   1. A person who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or otherwise performs duties associated with any of the following: medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic, radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, laboratory analysis, rendering assistance to a physician, dental hygiene, psychiatry, or psychology.
   2. A hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.
   3. Any other person who is legally responsible for the negligence of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.
   4. Any other person acting at the direction or under the supervision of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.
   5. Any paramedic, as defined in G.S. 131E-155(15a).
2. Medical malpractice action. - Either of the following:
   1. A civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.
   2. A civil action against a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes for damages for personal injury or death, when the civil action (i) alleges a breach of administrative or corporate duties to the patient, including, but not limited to, allegations of negligent credentialing or negligent monitoring and supervision and (ii) arises from the same facts or circumstances as a claim under sub-subdivision a. of this subdivision.

History

(1975, 2nd Sess., c. 977, s. 4; 1987, c. 859, s. 1; 1995, c. 509, s. 135.2(o); 2011-400, s. 5; 2017-131, s. 1.)

Cross References. - As to limitation of actions for malpractice, see G.S. 1-15 and G.S. 1-17.

As to liability insurance or self-insurance covering health-care practitioners employed by The University of North Carolina, see G.S. 116-219 through 116-222.

Editor's Note. - Session Laws 2017-131, s. 2, made sub-subdivision (1)e., as added by Session Laws 2017-131, s. 1, effective July 20, 2017, and applicable to causes of action arising on or after that date.

Effect of Amendments. - Session Laws 2011-400, s. 5, effective October 1, 2011, and applicable to causes of actions arising on or after that date, rewrote the section.

Session Laws 2017-131, s. 1, added sub-subdivision (1)e. For effective date and applicability, see editor's note.

Legal Periodicals. - For comment on the statutory standard of care for North Carolina health care providers, see 1 Campbell L. Rev. 11 (1979).

For article discussing the North Carolina medical malpractice statute, see 62 N.C.L. Rev. 711 (1984).

For note suggesting the need for a new tort of breach of confidence, in light of Watts v. Cumberland County Hospital System, 75 N.C. App. 1, 330 S.E.2d 242 (1985), see 8 Campbell L. Rev. 145 (1985).

For note, "Wrongful Conception: North Carolina's Newest Prenatal Tort Claim - Jackson v. Bumgardner," see 65 N.C.L. Rev. 1077 (1987).

For survey on the medical review committee privilege, see 67 N.C.L. Rev. 179 (1988).

For note on medical malpractice and unwarranted operations, see 23 Wake Forest L. Rev. 825 (1988).

For comment, "Compensating Post-Conception Prenatal Medical Malpractice While Respecting Life: A Recommendation to North Carolina Legislators," see 29 Campbell L. Rev. 761 (2007).

For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013).

For comment, "Setting the 'Bar' in North Carolina Medical Malpractice Litigation: Working with the Standard of Care that Everyone Loves to Hate," see 89 N.C.L. Rev. 234 (2010).

For comment, "Two Tiers of Plaintiffs: How North Carolina's Tort Reform Efforts Discriminate Against Low-Income Plaintiffs,” see 96 N.C.L. Rev. 512 (2018).

§ 90-21.12. Standard of health care.

1. Except as provided in subsection (b) of this section, in any medical malpractice action as defined in G.S. 90-21.11(2)(a), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action; or in the case of a medical malpractice action as defined in G.S. 90-21.11(2)(b), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the action or inaction of such health care provider was not in accordance with the standards of practice among similar health care providers situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.
2. In any medical malpractice action arising out of the furnishing or the failure to furnish professional services in the treatment of an emergency medical condition, as the term "emergency medical condition" is defined in 42 U.S.C. § 1395dd(e)(1)(A), the claimant must prove a violation of the standards of practice set forth in subsection (a) of this section by clear and convincing evidence.

History

(1975, 2nd Sess., c. 977, s. 4; 2011-283, s. 4.1(a); 2011-400, s. 6.)

Effect of Amendments. - Session Laws 2011-283, s. 4.1(a), effective June 24, 2011, updated the federal reference in subsection (b).

Session Laws 2011-400, s. 6, effective October 1, 2011, and applicable to causes of actions arising on or after that date, rewrote the section.

Legal Periodicals. - For comment on the statutory standard of care for North Carolina health care providers, see 1 Campbell L. Rev. 111 (1979).

For article discussing the North Carolina medical malpractice statute, see 62 N.C.L. Rev. 711 (1984).

For note suggesting the need for a new tort of breach of confidence, in light of Watts v. Cumberland County Hospital System, 75 N.C. App. 1, 330 S.E.2d 242 (1985), see 8 Campbell L. Rev. 145 (1985).

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

For article, "The American Medical Association vs. The American Tort System," see 8 Campbell L. Rev. 241 (1986).

For note on expansion of the application of res ipsa loquitur in medical malpractice, in light of Parks v. Perry, 68 N.C. App. 202, 314 S.E.2d 287, cert. denied, 311 N.C. 761, 321 S.E.2d 142 (1984), see 21 Wake Forest L. Rev. 537 (1986).

For note, "Nurse Malpractice in North Carolina: The Standard of Care," see 65 N.C.L. Rev. 579 (1987).

For note, "Liability in the Absence of a Traditional Physician-Patient Relationship: What Every 'On Call' Doctor Should Know: Mozingo v. Pitt County Memorial Hospital," see 28 Wake Forest L. Rev. 747 (1993).

For note, "The Evolution and Status of the Contributory Negligence Defense to Medical Malpractice Actions in North Carolina - McGill v. French," see 16 Campbell L. Rev. 103 (1994).

For comment, "North Carolina's Limited Liability Company Act: A Legislative Mandate for Professional Limited Liability," see 29 Wake Forest L. Rev. 857 (1994).

For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013).

For article, "Medical Malpractice and Wrongful Death: Some Lives are Worth More Than Others," see 8 Elon L. Rev. 461 (2016).

For comment, "Two Tiers of Plaintiffs: How North Carolina's Tort Reform Efforts Discriminate Against Low-Income Plaintiffs," see 96 N.C.L. Rev. 512 (2018).

For article, "Aid in Dying in North Carolina,” see 97 N.C. L. Rev. Addendum 1 (2019).

§ 90-21.12A. Nonresident physicians.

A patient may bring a medical malpractice claim in the courts of this State against a nonresident physician who practices medicine or surgery by use of any electronic or other media in this State.

History

(1997-514, s. 2.)

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

§ 90-21.13. Informed consent to health care treatment or procedure.

1. No recovery shall be allowed against any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient or other person authorized to give consent for the patient where:
   1. The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities; and
   2. A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or
   3. A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.
2. A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or other authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact. A consent that meets the foregoing standards, that is given by a patient, or other authorized person, who under all the surrounding circumstances has capacity to make and communicate health care decisions, is a valid consent.
3. The following persons, in the order indicated, are authorized to consent to medical treatment on behalf of a patient who is comatose or otherwise lacks capacity to make or communicate health care decisions:
   1. A guardian of the patient's person, or a general guardian with powers over the patient's person, appointed by a court of competent jurisdiction pursuant to Article 5 of Chapter 35A of the General Statutes; provided that, if the patient has a health care agent appointed pursuant to a valid health care power of attorney, the health care agent shall have the right to exercise the authority to the extent granted in the health care power of attorney and to the extent provided in G.S. 32A-19(a) unless the Clerk has suspended the authority of that health care agent in accordance with G.S. 35A-1208(a).
   2. A health care agent appointed pursuant to a valid health care power of attorney, to the extent of the authority granted.
   3. An agent, with powers to make health care decisions for the patient, appointed by the patient, to the extent of the authority granted.
   4. The patient's spouse.
   5. A majority of the patient's reasonably available parents and children who are at least 18 years of age.
   6. A majority of the patient's reasonably available siblings who are at least 18 years of age.
   7. An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes.
4. If none of the persons listed under subsection (c) of this section is reasonably available, then the patient's attending physician, in the attending physician's discretion, may provide health care treatment without the consent of the patient or other person authorized to consent for the patient if there is confirmation by a physician other than the patient's attending physician of the patient's condition and the necessity for treatment; provided, however, that confirmation of the patient's condition and the necessity for treatment are not required if the delay in obtaining the confirmation would endanger the life or seriously worsen the condition of the patient.
5. No action may be maintained against any health care provider upon any guarantee, warranty or assurance as to the result of any medical, surgical or diagnostic procedure or treatment unless the guarantee, warranty or assurance, or some note or memorandum thereof, shall be in writing and signed by the provider or by some other person authorized to act for or on behalf of such provider.
6. In the event of any conflict between the provisions of this section and those of G.S. 35A-1245, 90-21.17, and 90-322, Articles 1A and 19 of Chapter 90, and Article 3 of Chapter 122C of the General Statutes, the provisions of those sections and Articles shall control and continue in full force and effect.

History

(1975, 2nd Sess., c. 977, s. 4; 2003-13, s. 5; 2007-502, s. 13; 2008-187, s. 37(b); 2017-153, s. 2.5; 2018-142, s. 35(a).)

Cross References. - As to application of this section to surgical operations on inmates of State penal institutions, see G.S. 148-22.2.

As to application of this section to treatment of prisoners' self-inflicted injuries, see G.S. 148-46.2.

Editor's Note. - Session Laws 2008-187, s. 37(c) provides: "This section is effective when it becomes law [August 7, 2008]. Nothing in this section shall affect the validity of a health care power of attorney executed before, on, or after the effective date of this section."

Effect of Amendments. - Session Laws 2007-502, s. 13, effective October 1, 2007, deleted "the patient's spouse, parent, guardian, nearest relative or" following "consent of the patient or" in the introductory paragraph in subsection (a); added the last sentence in subsection (b); rewrote subsection (c); added subsection (c1); in subsection (e), inserted "90-21.17, and 90-322," inserted "Article 3 of Chapter 122C of the General Statutes," and inserted "sections and."

Session Laws 2008-187, s. 37(b), effective August 7, 2008, substituted "G.S. 32A-19(a)" for "G. S. 32A-19(b)" in subdivision (c)(1). See Editor's note for applicability.

Session Laws 2017-153, s. 2.5, effective January 1, 2018, in subdivision (c)(3), substituted "An agent" for "An attorney-in-fact" and "Chapter 32C" for "Article 1 or Article 2 of Chapter 32A"; and made minor stylistic changes.

Session Laws 2018-142, s. 35(a), effective December 15, 2018, in subdivision (c)(3), deleted "pursuant to Chapter 32C of the General Statutes" following "appointed by the patient."

Legal Periodicals. - For article discussing the North Carolina medical malpractice statute, see 62 N.C.L. Rev. 711 (1984).

For note suggesting the need for a new tort of breach of confidence, see 8 Campbell L. Rev. 145 (1985).

For article, "The American Medical Association vs. The American Tort System," see 8 Campbell L. Rev. 241 (1986).

For comment surveying North Carolina's treatment of the doctrine of informed consent, see 21 Wake Forest L. Rev. 757 (1986).

For note, "North Carolina's New Aids Discrimination Protection: Who Do They Think They're Fooling?," see 12 Campbell L. Rev. 475 (1990).

For article, "A Prisoner's Constitutional Right to Medical Information: Doctrinally Flawed and a Threat to State Informed Consent Law," see 45 Wake Forest L. Rev. 1025 (2010).

§ 90-21.14. First aid or emergency treatment; liability limitation.

1. Any person, including a volunteer medical or health care provider at a facility of a local health department as defined in G.S. 130A-2 or at a nonprofit community health center or a volunteer member of a rescue squad, who voluntarily and without expectation of compensation renders first aid or emergency health care treatment to a person who is unconscious, ill or injured,
   1. When the reasonably apparent circumstances require prompt decisions and actions in medical or other health care, and
   2. When the necessity of immediate health care treatment is so reasonably apparent that any delay in the rendering of the treatment would seriously worsen the physical condition or endanger the life of the person,
2. Recodified as G.S. 90-21.16 by Session Laws 2001-230, s. 1(a), effective October 1, 2001.
3. Nothing in this section shall be deemed or construed to relieve any person from liability for damages for injury or death caused by an act or omission on the part of such person while rendering health care services in the normal and ordinary course of his business or profession. Services provided by a volunteer health care provider who receives no compensation for his services and who renders first aid or emergency treatment to members of athletic teams are deemed not to be in the normal and ordinary course of the volunteer health care provider's business or profession.
4. In the event of any conflict between the provisions of this section and those of G.S. 20-166(d), the provisions of G.S. 20-166(d) shall control and continue in full force and effect.

shall not be liable for damages for injuries alleged to have been sustained by the person or for damages for the death of the person alleged to have occurred by reason of an act or omission in the rendering of the treatment unless it is established that the injuries were or the death was caused by gross negligence, wanton conduct or intentional wrongdoing on the part of the person rendering the treatment. The immunity conferred in this section also applies to any person who uses an automated external defibrillator (AED) and otherwise meets the requirements of this section.

History

(1975, 2nd Sess., c. 977, s. 4; 1985, c. 611, s. 2; 1989, cc. 498, 655; 1991, c. 655, s. 1; 1993, c. 439, s. 1; 1995, c. 85, s. 1; 2000-5, s. 4; 2001-230, ss. 1(a), 2; 2009-424, s. 1; 2014-120, s. 18.)

Cross References. - As to immunity from liability of persons rendering first aid or emergency assistance at the scene of a motor vehicle accident, see G.S. 20-166(d).

As to application of this section to surgical operations on inmates of State penal institutions, see G.S. 148-22.2.

As to application of this section to treatment of prisoners' self-inflicted injuries, see G.S. 148-46.2.

Editor's Note. - G.S. 90-21.14(a1) was recodified as G.S. 90-21.16 by Session Laws 2001-230, s. 1(a) effective October 1, 2001, and applicable to acts or omissions occuring on and after that date.

Session Laws 2014-120, s. 60, is a severability clause.

Effect of Amendments. - Session Laws 2009-424, s. 1, effective August 5, 2009, added the last sentence of subsection (a).

Session Laws 2014-120, s. 18, effective September 18, 2014, substituted "voluntarily and without expectation of compensation" for "receives no compensation for his services as an emergency medical care provider, who" in the introductory paragraph of subsection (a).

Legal Periodicals. - For article discussing the North Carolina medical malpractice statute, see 62 N.C.L. Rev. 711 (1984).

For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013).

§ 90-21.15. Emergency treatment using automated external defibrillator; immunity.

1. It is the intent of the General Assembly that, when used in accordance with this section, an automated external defibrillator may be used during an emergency for the purpose of attempting to save the life of another person who is in or who appears to be in cardiac arrest.
2. For purposes of this section:
   1. "Automated external defibrillator" means a device, heart monitor, and defibrillator that meets all of the following requirements:
      1. The device has received approval from the United States Food and Drug Administration of its premarket notification filed pursuant to 21 U.S.C. § 360(k), as amended.
      2. The device is capable of recognizing the presence or absence of ventricular fibrillation or rapid ventricular tachycardia and is capable of determining, without intervention by an operator, whether defibrillation should be performed.
      3. Upon determining that defibrillation should be performed, the device automatically charges and requests delivery of, or delivers, an electrical impulse to an individual's heart.
   2. "Person" means an individual, corporation, limited liability company, partnership, association, unit of government, or other legal entity.
   3. "Training" means a nationally recognized course or training program in cardiopulmonary resuscitation (CPR) and automated external defibrillator use including the programs approved and provided by the:
      1. American Heart Association.
      2. American Red Cross.
3. The use of an automated external defibrillator when used to attempt to save or to save a life shall constitute "first-aid or emergency health care treatment" under G.S. 90-21.14(a).
4. The person who provides the cardiopulmonary resuscitation and automated external defibrillator training to a person using an automated external defibrillator, the person responsible for the site where the automated external defibrillator is located when the person has provided for a program of training, and a North Carolina licensed physician writing a prescription without compensation for an automated external defibrillator whether or not required by any federal or state law, shall be immune from civil liability arising from the use of an automated external defibrillator used in accordance with subsection (c) of this section.
5. The immunity from civil liability otherwise existing under law shall not be diminished by the provisions of this section.
6. Nothing in this section requires the purchase, placement, or use of automated external defibrillators by any person, entity, or agency of State, county, or local government. Nothing in this section applies to a product's liability claim against a manufacturer or seller as defined in G.S. 99B-1.
7. In order to enhance public health and safety, a seller of an automated external defibrillator shall notify the North Carolina Department of Health and Human Services, Division of Health Service Regulation, Office of Emergency Medical Services of the existence, location, and type of automated external defibrillator.

History

(2000-113, s. 1; 2007-182, s. 1.1.)

Editor's Note. - Session Laws 2012-198, s. 1 provides: "The General Assembly finds the following:

"(1) According to the American Heart Association, an individual goes into cardiac arrest in the United States every two minutes. In North Carolina, twenty-three percent (23%) of all deaths are attributed to heart disease, 11,765 of which are as a result of cardiac arrest. Ventricular Fibrillation (VF) is a common rhythm for which cardiopulmonary resuscitation (CPR) and defibrillation are the only effective treatments. For victims with VF, survival rates are highest when immediate bystander CPR is provided and defibrillation occurs within three to five minutes of collapse. With every minute that passes, a victim's survival rate is reduced by seven percent (7%) to ten percent (10%) if no intervention measures are taken. An estimated ninety-five percent (95%) of cardiac arrest victims die before reaching the hospital. If intervention measures are taken, survival rates are much higher; when CPR and defibrillation are immediately performed, survival rates can double.

"(2) Eighty percent (80%) of all cardiac arrests occur in private or residential settings, and almost sixty percent (60%) are witnessed. Communities that have established and implemented public access defibrillation programs have achieved average survival rates for out-of-hospital cardiac arrest as high as forty-one percent (41%) to seventy-four percent (74%).

"(3) Wider use of defibrillators could save as many as 40,000 lives nationally each year. Successful public access defibrillation programs ensure that cardiac arrest victims will have an immediate recognition of cardiac arrest and activation of 911 followed by early CPR with an emphasis on compressions, rapid Automatic External Defibrillator (AED) use, effective advanced care, and coordinated care afterward."

Effect of Amendments. - Session Laws 2007-182, s. 1.1, effective July 5, 2007, substituted "Division of Health Service Regulation" for "Division of Facilities Services" in subsection (g).

§ 90-21.15A. Emergency treatment using epinephrine auto-injector; immunity.

1. Definitions. - The following definitions apply in this section:
   1. Administer. - The direct application of an epinephrine auto-injector to the body of an individual.
   2. Authorized entity. - Any entity or organization, other than a school described in G.S. 115C-375.2A, at which allergens capable of causing anaphylaxis may be present, including, but not limited to, recreation camps, colleges, universities, day care facilities, youth sports leagues, amusement parks, restaurants, places of employment, and sports arenas. An authorized entity shall also include any person, corporation, or other entity that owns or operates any entity or organization listed.
   3. Epinephrine auto-injector. - A single-use device used for the automatic injection of a premeasured dose of epinephrine into the human body.
   4. Health care provider. - A health care provider licensed to prescribe drugs under the laws of this State.
   5. Provide. - To supply one or more epinephrine auto-injectors to an individual.
2. Prescribing to Authorized Entities Permitted. - A health care provider may prescribe epinephrine auto-injectors in the name of an authorized entity for use in accordance with this section, and pharmacists and health care providers may dispense epinephrine auto-injectors pursuant to a prescription issued in the name of an authorized entity. A prescription issued pursuant to this section shall be valid for no more than two years.
3. Authorized Entities Permitted to Maintain Supply. - An authorized entity may acquire and stock a supply of epinephrine auto-injectors pursuant to a prescription issued in accordance with this section. An authorized entity that acquires and stocks epinephrine auto-injectors shall make a good-faith effort to store the supply of epinephrine auto-injectors in accordance with the epinephrine auto-injector manufacturer's instructions for use and any additional requirements that may be established by the Department of Health and Human Services. An authorized entity that acquires and stocks a supply of epinephrine auto-injectors pursuant to a prescription issued in accordance with this section shall designate employees or agents to be responsible for the storage, maintenance, control, and general oversight of epinephrine auto-injectors acquired by the authorized entity.
4. Use of Epinephrine Auto-Injectors by Authorized Entities. - An employee or agent of an authorized entity or other individual who has completed the training required by subsection (e) of this section may use epinephrine auto-injectors prescribed pursuant to G.S. 90-726.1 to do any of the following:
   1. Provide an epinephrine auto-injector to any individual who the employee, agent, or other individual believes in good faith is experiencing anaphylaxis, or a person believed in good faith to be the parent, guardian, or caregiver of such individual, for immediate administration, regardless of whether the individual has a prescription for an epinephrine auto-injector or has previously been diagnosed with an allergy.
   2. Administer an epinephrine auto-injector to any individual who the employee, agent, or other individual believes in good faith is experiencing anaphylaxis, regardless of whether the individual has a prescription for an epinephrine auto-injector or has previously been diagnosed with an allergy.
5. Mandatory Training Program. - An authorized entity that elects to acquire and stock a supply of epinephrine auto-injectors as described in subsection (c) of this section shall designate employees or agents to complete an anaphylaxis training program. The training may be conducted online or in person and shall, at a minimum, include all of the following components:
   1. How to recognize signs and symptoms of severe allergic reactions, including anaphylaxis.
   2. Standards and procedures for the storage and administration of an epinephrine auto-injector.
   3. Emergency follow-up procedures.
6. Immunity. -
   1. The following persons are immune from criminal liability and from suit in any civil action brought by any person for injuries or related damages that result from any act or omission taken pursuant to this section:
      1. Any authorized entity that voluntarily and without expectation of payment possesses and makes available epinephrine auto-injectors.
      2. Any employee or agent of an authorized entity, or any other individual, who provides or administers an epinephrine auto-injector to an individual whom the employee, agent, or other individual believes in good faith is experiencing symptoms of anaphylaxis and has completed the required training set forth in subsection (e) of this section.
      3. A health care provider that prescribes epinephrine auto-injectors to an authorized entity.
      4. A pharmacist or health care provider that dispenses epinephrine auto-injectors to an authorized entity.
      5. Any individual or entity that conducts the training mandated by subsection (e) of this section.
   2. The immunity conferred by this section does not apply to acts or omissions constituting willful or wanton conduct as defined in G.S. 1D-5(7) or intentional wrongdoing.
   3. Nothing in this section creates or imposes any duty, obligation, or basis for liability on any authorized entity, any employee or agent of an authorized entity, or any other individual to acquire, possess, store, make available, or administer an epinephrine auto-injector.
   4. This section does not eliminate, limit, or reduce any other immunity or defense that may be available under State law, including the protections set forth in G.S. 90-21.14.
7. Liability for Acts Outside of This State. - An authorized entity located in this State shall not be liable under the laws of this State for any injuries or related damages resulting from the provision or administration of an epinephrine auto-injector outside of this State under either of the following circumstances:
   1. If the authorized entity would not have been liable for such injuries or related damages if the epinephrine auto-injector had been provided or administered within this State.
   2. If the authorized entity is not liable for such injuries or related damages under the laws of the state in which the epinephrine auto-injector was provided or administered.
8. Does Not Constitute Practice of Medicine. - The administration of an epinephrine auto-injector in accordance with this section is not the practice of medicine or any other profession that otherwise requires licensure.

In-person training shall cover the three components listed in this subsection and be conducted by (i) a physician, physician assistant, or registered nurse licensed to practice in this State; (ii) a nationally recognized organization experienced in training laypersons in emergency health treatment; or (iii) an entity or individual approved by the Department of Health and Human Services.

Online training shall cover the three components listed in this subsection and be offered (i) by a nationally recognized organization experienced in training laypersons in emergency health treatment; (ii) by an entity or individual approved by the Department of Health and Human Services; or (iii) by means of an online training course that has been approved by another state.

History

(2015-274, s. 1.)

Editor's Note. - Session Laws 2015-274, s. 3, made this section effective December 31, 2015.

The reference to "G.S. 90-726.1" in subsection (d) was an error in the text of the section as enacted by Session Laws 2015-274, s. 1. G.S. 90-726.1 does not exist.

§ 90-21.16. Volunteer health care professionals; liability limitation.

1. This section applies as follows:
   1. Any volunteer medical or health care provider at a facility of a local health department or at a nonprofit community health center,
   2. Any volunteer medical or health care provider rendering services to a patient referred by a local health department as defined in G.S. 130A-2(5), nonprofit community health center, or nonprofit community health referral service at the provider's place of employment,
   3. Any volunteer medical or health care provider serving as medical director of an emergency medical services (EMS) agency, or
   4. Repealed by Session Laws 2011-355, s. 7, effective June 27, 2011.
   5. Any volunteer medical or health care provider licensed or certified in this State who provides services within the scope of the provider's license or certification at a free clinic facility, who receives no compensation for medical services or other related services rendered at the facility, center, agency, or clinic, or who neither charges nor receives a fee for medical services rendered to the patient referred by a local health department, nonprofit community health center, or nonprofit community health referral service at the provider's place of employment shall not be liable for damages for injuries or death alleged to have occurred by reason of an act or omission in the rendering of the services unless it is established that the injuries or death were caused by gross negligence, wanton conduct, or intentional wrongdoing on the part of the person rendering the services. The free clinic, local health department facility, nonprofit community health center, nonprofit community health referral service, or agency shall use due care in the selection of volunteer medical or health care providers, and this subsection shall not excuse the free clinic, health department facility, community health center, or agency for the failure of the volunteer medical or health care provider to use ordinary care in the provision of medical services to its patients.
2. Nothing in this section shall be deemed or construed to relieve any person from liability for damages for injury or death caused by an act or omission on the part of such person while rendering health care services in the normal and ordinary course of his or her business or profession. Services provided by a medical or health care provider who receives no compensation for his or her services and who voluntarily renders such services at the provider's place of employment, facilities of free clinics, local health departments as defined in G.S. 130A-2, nonprofit community health centers, or as a volunteer medical director of an emergency medical services (EMS) agency, are deemed not to be in the normal and ordinary course of the volunteer medical or health care provider's business or profession.
3. As used in this section, a "free clinic" is a nonprofit, 501(c)(3) tax-exempt organization organized for the purpose of providing health care services without charge or for a minimum fee to cover administrative costs.
4. For a volunteer medical or health care provider who provides services at a free clinic to receive the protection from liability provided in this section, the free clinic shall provide the following notice to the patient, or person authorized to give consent for treatment, for the patient's retention prior to the delivery of health care services:
5. A nonprofit community health referral service that refers low-income patients to medical or health care providers for free services is not liable for the acts or omissions of the medical or health care providers in rendering service to that patient if the nonprofit community health referral service maintains liability insurance covering the acts and omissions of the nonprofit health referral service and any liability pursuant to subsection (a) of this section.
6. As used in this section, a "nonprofit community health referral service" is a nonprofit, 501(c)(3) tax-exempt organization organized to provide for no charge the referral of low-income, uninsured patients to volunteer health care providers who provide health care services without charge to patients.

"NOTICE

Under North Carolina law, a volunteer medical or health care provider shall not be liable for damages for injuries or death alleged to have occurred by reason of an act or omission in the medical or health care provider's voluntary provision of health care services unless it is established that the injuries or death were caused by gross negligence, wanton conduct, or intentional wrongdoing on the part of the volunteer medical or health care provider."

History

(1991, c. 655, s. 1,; 1993, c. 439, s. 1; 1995, c. 85, s. 1; 2000-5, s. 4; 2001-230, ss. 1(a), 1(b); 2009-435, s. 1; 2011-355, s. 7; 2013-49, s. 1.)

Cross References. - As to Voluntary Health Care Services Act, generally, see Chapter 90, Article 1J.

As to immunity from civil liability for acts or omissions, see G.S. 90-21.108.

Editor's Note. - This section was formerly codified as G.S. 90-21.14(a1). It was recodified as G.S. 90-21.16 by Session Laws 2001-230, s. 1(a), which was effective October 1, 2001, and applicable to acts or omissions occurring on or after that date.

Effect of Amendments. - Session Laws 2011-355, s. 7, effective June 27, 2011, rewrote subsection (a); inserted "the provider's place of employment" in the last sentence of subsection (b); and substituted "to that patient if the nonprofit community health referral service maintains liability insurance covering the acts and omissions of the nonprofit health referral service and any liability pursuant to subsection (a) of this section" for "to that patient if the physician maintains professional liability coverage for that service" at the end of subsection (d).

Session Laws 2013-49, s. 1, effective October 1, 2013, in subsection (c), deleted "and that maintains liability insurance covering the acts and omissions of the free clinic and any liability pursuant to subsection (a) of this section" at the end; added subsection (c1); substituted "medical or health care providers" for "physicians" and "physician" in subsection (d). For applicability, see Editor's note.

§ 90-21.17. Portable do not resuscitate order and Medical Order for Scope of Treatment.

1. It is the intent of this section to recognize a patient's desire and right to withhold cardiopulmonary resuscitation and other life-prolonging measures to avoid loss of dignity and unnecessary pain and suffering through the use of a portable do not resuscitate ("DNR") order or a Medical Order for Scope of Treatment (MOST).
2. A physician may issue a portable DNR order or MOST for a patient:
   1. With the consent of the patient;
   2. If the patient is a minor, with the consent of the patient's parent or guardian; or
   3. If the patient is not a minor but is incapable of making an informed decision regarding consent for the order, with the consent of the patient's representative.
3. The Department of Health and Human Services shall develop a portable DNR order form and a MOST form. The official DNR form shall include fields for the name of the patient; the name, address, and telephone number of the physician; the signature of the physician; and other relevant information. At a minimum, the official MOST form shall include fields for: the name of the patient; an advisory that a patient is not required to have a MOST; the name, telephone number, and signature of the physician, physician assistant, or nurse practitioner authorizing the order; the name and contact information of the health care professional who prepared the form with the patient or the patient's representative; information on who agreed (i.e., the patient or the patient's representative) to the options selected on the MOST form; a range of options for cardiopulmonary resuscitation, medical interventions, antibiotics, medically administered fluids and nutrition; patient or patient representative's name, contact information, and signature; effective date of the form and review dates; a prominent advisory that directions in a MOST form may suspend, while those MOST directions are in effect, any conflicting directions in a patient's previously executed declaration of an advance directive for a natural death ("living will"), health care power of attorney, or other legally authorized instrument; and an advisory that the MOST may be revoked by the patient or the patient's representative. The official MOST form shall also include the following statement written in boldface type directly above the signature line: "You are not required to sign this form to receive treatment." The form may be approved by reference to a standard form that meets the requirements of this subsection. For purposes of this section, the "patient's representative" means an individual from the list of persons authorized to consent to the withholding of life-prolonging measures pursuant to G.S. 90-322.
4. No physician, emergency medical professional, hospice provider, or other health care provider shall be subject to criminal prosecution, civil liability, or disciplinary action by any professional licensing or certification agency for withholding cardiopulmonary resuscitation or other life-prolonging measures from a patient in good faith reliance on an original DNR order or MOST form adopted pursuant to subsection (c) of this section, provided that (i) there are no reasonable grounds for doubting the validity of the order or the identity of the patient, and (ii) the provider does not have actual knowledge of the revocation of the portable DNR order or MOST. No physician, emergency medical professional, hospice provider, or other health care provider shall be subject to criminal prosecution, civil liability, or disciplinary action by any professional licensing or certification agency for failure to follow a DNR order or MOST form adopted pursuant to subsection (c) of this section if the provider had no actual knowledge of the existence of the DNR order or MOST.
5. A health care facility may develop policies and procedures that authorize the facility's provider to accept a portable DNR order or MOST as if it were an order of the medical staff of that facility. This section does not prohibit a physician in a health care facility from issuing a written order, other than a portable DNR order or MOST not to resuscitate a patient in the event of cardiac or respiratory arrest, or to use, withhold, or withdraw additional medical interventions as provided in the MOST, in accordance with acceptable medical practice and the facility's policies.
6. Nothing in this section shall affect the validity of portable DNR order or MOST forms in existence prior to the effective date of this section.

This section establishes an optional and nonexclusive procedure by which a patient or the patient's representative may exercise this right.

The physician shall document the basis for the DNR order or MOST in the patient's medical record. When the order is a MOST, the patient or the patient's representative must sign the form, provided, however, that if it is not practicable for the patient's representative to sign the original MOST form, the patient's representative shall sign a copy of the completed form and return it to the health care professional completing the form. The copy of the form with the signature of the patient's representative, whether in paper or electronic form, shall be placed in the patient's medical record. When the signature of the patient's representative is on a separate copy of the MOST form, the original MOST form must indicate in the appropriate signature field that the signature is "on file".

History

(2001-445, s. 1; 2007-502, s. 14.)

Editor's Note. - The number of this section was assigned by the Revision of Statutes, the number in Session Laws 2001-445, s. 1, having been 90-21.16.

Effect of Amendments. - Session Laws 2007-502, s. 14, effective October 1, 2007, inserted "and Medical Order for Scope of Treatment" in the section heading; in subsection (a), inserted "and other life-prolonging measures" and inserted "or a Medical Order for Scope of Treatment (MOST)"; in subsection (b), inserted "or MOST" in the introductory language, and inserted "DNR" and "or" in the first sentence and added the last three sentences in the concluding language; in subsection (c), inserted "and a MOST form" in the first sentence, inserted "DNR" in the second sentence, added the third and fourth sentences, substituted "life-prolonging measures" for "extraordinary care," and deleted "or an individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes" at the end; in subsection (d), inserted "or other life-prolonging measures" in the first sentence, inserted "order or MOST" following "DNR" twice, and inserted "or MOST" twice following "DNR order"; in subsection (e), inserted "or MOST" following "DNR order," inserted "order or MOST" following "DNR," and inserted "or to use, withhold, or withdraw additional medical interventions as provided in the MOST"; inserted "order or MOST" in subsection (f).

§ 90-21.18. Medical directors; liability limitation.

A medical director of a licensed nursing home shall not be named a defendant in an action pursuant to this Article except under any of the following circumstances:

1. Where allegations involve a patient under the direct care of the medical director.
2. Where allegations involve willful or intentional misconduct, recklessness, or gross negligence in connection with the failure to supervise, or other acts performed or failed to be performed, by the medical director in a supervisory or consulting role.

History

(2004-149, s. 2.9.)

Editor's Note. - This section was originally enacted as G.S. 90-21.18A. It has been renumbered as this section at the direction of the Revisor of Statutes.

§ 90-21.19. Liability limit for noneconomic damages.

1. Except as otherwise provided in subsection (b) of this section, in any medical malpractice action in which the plaintiff is entitled to an award of noneconomic damages, the total amount of noneconomic damages for which judgment is entered against all defendants shall not exceed five hundred thousand dollars ($500,000). Judgment shall not be entered against any defendant for noneconomic damages in excess of five hundred thousand dollars ($500,000) for all claims brought by all parties arising out of the same professional services. On January 1 of every third year, beginning with January 1, 2014, the Office of State Budget and Management shall reset the limitation on damages for noneconomic loss set forth in this subsection to be equal to five hundred thousand dollars ($500,000) times the ratio of the Consumer Price Index for November of the prior year to the Consumer Price Index for November 2011. The Office of State Budget and Management shall inform the Revisor of Statutes of the reset limitation. The Revisor of Statutes shall publish this reset limitation as an editor's note to this section. In the event that any verdict or award of noneconomic damages stated pursuant to G.S. 90-21.19B exceeds these limits, the court shall modify the judgment as necessary to conform to the requirements of this subsection.
2. Notwithstanding subsection (a) of this section, there shall be no limit on the amount of noneconomic damages for which judgment may be entered against a defendant if the trier of fact finds both of the following:
   1. The plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death.
   2. The defendant's acts or failures, which are the proximate cause of the plaintiff's injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.
3. The following definitions apply in this section:
   1. Consumer Price Index. - The Consumer Price Index - All Urban Consumers, for the South urban area, as published by the Bureau of Labor Statistics of the United States Department of Labor.
   2. Noneconomic damages. - Damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, and any other nonpecuniary compensatory damage. "Noneconomic damages" does not include punitive damages as defined in G.S. 1D-5.
   3. Same professional services. - The transactions, occurrences, or series of transactions or occurrences alleged to have caused injury to the health care provider's patient.
4. Any award of damages in a medical malpractice action shall be stated in accordance with G.S. 90-21.19B. If a jury is determining the facts, the court shall not instruct the jury with respect to the limit of noneconomic damages under subsection (a) of this section, and neither the attorney for any party nor a witness shall inform the jury or potential members of the jury panel of that limit.

History

(2011-400, s. 7; 2015-40, s. 9.)

Reset of Liability Limit on Noneconomic Damages for Medical Malpractice. - On April 15, 2014, the North Carolina Administrative Office of the Courts provided notice, pursuant to G.S. 90-21.14, that it had calculated the reset limitation on damages for noneconomic loss set forth in subsection (a) of G.S. 90-21.14 to be equal to $515,000, effective January 1, 2014.

By letter dated December 20, 2016, the Office of State Budget and Management (OSBM) notified the Office of the Revisor of Statutes that, in accordance with G.S. 90-21.19(a), the OSBM was resetting the limitation on damages for noneconomic losses related to medical malpractice to be equal to $533,409, effective January 1, 2017.

By letter dated December 17, 2019, the Office of State Budget and Management (OSBM) notified the Office of the Revisor of Statutes that, in accordance with G.S. 90-21.19(a), the OSBM was resetting the limitation on damages for noneconomic losses related to medical malpractice to be equal to $562,338, effective January 1, 2020.

Session Laws 2011-400, s. 11, made this section effective October 1, 2011, and applicable to actions commenced on or after that date.

Editor's Note. - Session Laws 2011-400, s. 10, provides, in part: "If the provisions of Section 7 of this act [which added G.S. 90-21.19] are declared to be unconstitutional or otherwise invalid by final decision of a court of competent jurisdiction, then Section 8 of this act [which added 90-21.19B] is repealed, but the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions."

Effect of Amendments. - Session Laws 2015-40, s. 9, effective July 1, 2015, substituted "Office of State Budget and Management" for "Administrative Office of the Courts" in the third and fourth sentences of subsection (a).

Legal Periodicals. - For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013).

For article, "Medical Malpractice and Wrongful Death: Some Lives are Worth More Than Others," see 8 Elon L. Rev. 461 (2016).

For comment, "Two Tiers of Plaintiffs: How North Carolina's Tort Reform Efforts Discriminate Against Low-Income Plaintiffs," see 96 N.C.L. Rev. 512 (2018).

§ 90-21.19A: Reserved for future codification purposes.

§ 90-21.19B. Verdicts and awards of damages in medical malpractice actions; form.

In any malpractice action, any verdict or award of damages, if supported by the evidence, shall indicate specifically what amount, if any, is awarded for noneconomic damages. If applicable, the court shall instruct the jury on the definition of noneconomic damages under G.S. 90-21.19(b).

History

(2011-400, s. 8.)

Editor's Note. - Session Laws 2011-400, s. 10, provides, in part: "If the provisions of Section 7 of this act [which added G.S. 90-21.19] are declared to be unconstitutional or otherwise invalid by final decision of a court of competent jurisdiction, then Section 8 of this act [which added 90-21.19B] is repealed, but the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions."

Legal Periodicals. - For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013).

§ 90-21.20. Reporting by physicians and hospitals of wounds, injuries and illnesses.

1. Such cases of wounds, injuries or illnesses as are enumerated in subsection (b) shall be reported as soon as it becomes practicable before, during or after completion of treatment of a person suffering such wounds, injuries, or illnesses. If such case is treated in a hospital, sanitarium or other medical institution or facility, such report shall be made by the Director, Administrator, or other person designated by the Director or Administrator, or if such case is treated elsewhere, such report shall be made by the physician or surgeon treating the case, to the chief of police or the police authorities of the city or town of this State in which the hospital or other institution, or place of treatment is located. If such hospital or other institution or place of treatment is located outside the corporate limits of a city or town, then the report shall be made by the proper person in the manner set forth above to the sheriff of the respective county or to one of his deputies.
2. Cases of wounds, injuries or illnesses which shall be reported by physicians, and hospitals include every case of a bullet wound, gunshot wound, powder burn or any other injury arising from or caused by, or appearing to arise from or be caused by, the discharge of a gun or firearm, every case of illness apparently caused by poisoning, every case of a wound or injury caused, or apparently caused, by a knife or sharp or pointed instrument if it appears to the physician or surgeon treating the case that a criminal act was involved, and every case of a wound, injury or illness in which there is grave bodily harm or grave illness if it appears to the physician or surgeon treating the case that the wound, injury or illness resulted from a criminal act of violence.
3. Each report made pursuant to subsections (a) and (b) above shall state the name of the wounded, ill or injured person, if known, and the age, sex, race, residence or present location, if known, and the character and extent of his injuries.
4. In addition to the reporting requirements of subsection (b) of this section, cases involving recurrent illness or serious physical injury to any child under the age of 18 years where the illness or injury appears, in the physician's professional judgment, to be the result of non-accidental trauma shall be reported by the physician as soon as it becomes practicable before, during, or after completion of treatment. If the case is treated in a hospital, sanitarium, or other medical institution or facility, the report shall be made by the Director, Administrator, or other person designated by the Director or Administrator of the medical institution or facility, or if the case is treated elsewhere, the report shall be made by the physician or surgeon treating the case to the chief of police or the police authorities of the city or town in this State in which the hospital or other institution or place of treatment is located. If the hospital or other institution or place of treatment is located outside the corporate limits of a city or town, then the report shall be made by the proper person in the manner set forth above to the sheriff of the respective county or to one of the sheriff's deputies. This reporting requirement is in addition to the duty set forth in G.S. 7B-301 to report child abuse, neglect, dependence, or the death of any juvenile as the result of maltreatment to the director of the department of social services in the county where the juvenile resides or is found.
5. Any hospital, sanitarium, or other like institution or Director, Administrator, or other designated person, or physician or surgeon participating in good faith in the making of a report pursuant to this section shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as the result of the making of such report.

History

(1971, c. 4; 1977, c. 31; c. 843, s. 2; 2008-179, s. 1.)

Editor's Note. - This Article, as enacted by Session Laws 1971, c. 4, and amended by Session Laws 1971, c. 594, was originally applicable to New Hanover and Alamance Counties only, and was therefore not codified. The 1971 act was amended by Session Laws 1977, c. 31, and by Session Laws 1977, c. 843, s. 1, effective July 1, 1977, so as to make it applicable to thirty counties. The 1977 acts having rendered the 1971 act general within the definition adopted for the General Statutes, the Article was codified.

Thus, as originally enacted, this section only applied to certain counties, which were set out in G.S. 90-21.21. However, Session Laws 1979, c. 529 repealed G.S. 90-21.21.

Effect of Amendments. - Session Laws 2008-179, s. 1, effective December 1, 2008, added subsection (c1).

Legal Periodicals. - For comment, "Sanctuary Clinics: Using the Patient-Physician Relationship to Discuss Immigration Policy as a Public Health Concern," see 53 Wake Forest L. Rev. 979 (2018).

For article, "Prescription-Drug Policing: The Right to Health-Information Privacy Pre-and-Post-Carpenter,” see 69 Duke L.J. 775 (2020).

§ 90-21.20A. Reporting by physicians of pilots' mental or physical disabilities or infirmities.

1. A physician who reports to a government agency responsible for pilots' licenses or certificates or a government agency responsible for air safety that a pilot or an applicant for a pilot's license or certificate suffers from or probably suffers from a physical disability or infirmity that the physician believes will or reasonably could affect the person's ability to safely operate an aircraft shall have immunity, civil or criminal, that might otherwise be incurred or imposed as the result of making such a report.
2. A physician who gives testimony about a pilot's or an applicant's mental or physical disability or infirmity in any administrative hearing or other proceeding held to consider the issuance, renewal, revocation, or suspension of a pilot's license or certificate shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as the result of such testimony.

History

(1997-464, s. 2.)

§ 90-21.20B. Access to and disclosure of medical information for certain purposes.

1. Notwithstanding G.S. 8-53 or any other provision of law, a health care provider may disclose to a law enforcement officer protected health information only to the extent that the information may be disclosed under the federal Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. § 164.512(f) and is not specifically prohibited from disclosure by other state or federal law.
2. Notwithstanding any other provision of law, if a person is involved in a vehicle crash:
   1. Any health care provider who is providing medical treatment to the person shall, upon request, disclose to any law enforcement officer investigating the crash the following information about the person: name, current location, and whether the person appears to be impaired by alcohol, drugs, or another substance.
   2. Law enforcement officers shall be provided access to visit and interview the person upon request, except when the health care provider requests temporary privacy for medical reasons.
   3. A health care provider shall disclose a certified copy of all identifiable health information related to that person as specified in a search warrant or an order issued by a judicial official.
3. A prosecutor or law enforcement officer receiving identifiable health information under this section shall not disclose this information to others except as necessary to the investigation or otherwise allowed by law.
4. A certified copy of identifiable health information, if relevant, shall be admissible in any hearing or trial without further authentication.
5. As used in this section, "health care provider" has the same meaning as in G.S. 90-21.11.
6. Notwithstanding G.S. 8-53 or any other provision of law, a health care provider may disclose protected health information for purposes of treatment, payment, or health care operations to the extent that disclosure is permitted under 45 C.F.R. § 164.506 and is not specifically prohibited by other state or federal law. As used in this subsection, "treatment, payment, or health care operations" are as defined in the Standards for Privacy of Individually Identifiable Health Information.

History

(2006-253, s. 17; 2007-115, s. 3.)

Effect of Amendments. - Session Laws 2007-115, s. 3, effective June 27, 2007, substituted "certain" for "law enforcement" in the section heading; added subsection (a); redesignated former subsection (a) as present subsection (a1); and added subsection (e).

§ 90-21.22. Health program for medical professionals.

1. The North Carolina Medical Board (Board) may enter into agreements with the North Carolina Medical Society (Society), the North Carolina Academy of Physician Assistants (Academy), and the North Carolina Physicians Health Program (Program) for the purposes of identifying, reviewing, and evaluating the ability of licensees of the Board who have been referred to the Program to function in their professional capacity and to coordinate regimens for treatment and rehabilitation. The agreement shall include guidelines for all items outlined below:
   1. The assessment, referral, monitoring, support, and education of licensees of the Board by reason of a physical or mental illness, a substance use disorder, or professional sexual misconduct.
   2. Procedures for the Board to refer licensees to the Program.
   3. Criteria for the Program to report licensees to the Board.
   4. A procedure by which licensees may obtain review of recommendations by the Program regarding assessment or treatment.
   5. Periodic reporting of statistical information by the Program to the Board, the Society, and the Academy.
   6. Maintaining the confidentiality of nonpublic information.
2. Repealed by Session Laws 2016-117, s. 2(n), effective October 1, 2016.
3. The North Carolina Physicians Health Program (Program) is an independent organization for medical professionals that provides screening, referral, monitoring, educational, and support services. The Board, Society, and the Academy may provide funds for the administration of the Program.
4. The Program shall report immediately to the Board detailed information about any licensee of the Board who meets any of the following criteria:
   1. The licensee constitutes an imminent danger to patient care by reason of mental illness, physical illness, substance use disorder, professional sexual misconduct, or any other reason.
   2. The licensee refuses to submit to an assessment as ordered by the Board, has entered into a monitoring contract and fails to comply with the terms of the Program's monitoring contract, or is still unsafe to practice medicine after treatment.
   3. Repealed by Session Laws 2016-117, s. 2(n), effective October 1, 2016.
5. Any information acquired, created, or used in good faith by the Program pursuant to this section is privileged, confidential, and not subject to discovery, subpoena, or other means of legal compulsion for release to any person other than to the Board, the Program, or their employees or consultants. No person participating in good faith in the Program shall be required in a civil case to disclose the fact of participation in the Program or any information acquired or opinions, recommendations, or evaluations acquired or developed solely in the course of participating in the Program pursuant to this section.
6. Activities conducted in good faith pursuant to the agreement authorized by subsection (a) of this section shall not be grounds for civil action under the laws of this State.
7. Upon the written request of a licensee, the Program shall provide the licensee and the licensee's legal counsel with a copy of a written assessment of the licensee prepared as part of the licensee's participation in the Program. In addition, the licensee shall be entitled to a copy of any written assessment created by a treatment provider or facility at the recommendation of the Program, to the extent permitted by State and federal laws and regulations. Any information furnished to a licensee pursuant to this subsection shall be inadmissible in evidence and shall not be subject to discovery in any civil proceeding. However, this subsection shall not be construed to make information, documents, or records otherwise available for discovery or use in a civil action immune from discovery or use in a civil action merely because the information, documents, or records were included as part of the Program's assessment of the licensee or were the subject of information furnished to the licensee pursuant to this subsection. For purposes of this subsection, a civil action or proceeding shall not include administrative actions or proceedings conducted in accordance with Article 1 of Chapter 90 and Chapter 150B of the General Statutes.
8. The Board has authority to adopt, amend, or repeal rules as may be necessary to carry out and enforce the provisions of this section.

History

(1987, c. 859, s. 15; 1993, c. 176, s. 1; 1995, c. 94, s. 23; 2006-144, s. 8; 2016-117, s. 2(n).)

Effect of Amendments. - Session Laws 2006-144, s. 8, effective October 1, 2006, added "by reason of impairment, mental illness, physical illness, the commission of professional sexual boundary violations, or any other reason" at the end of subdivision (d)(1).

Session Laws 2016-117, s. 2(n), effective October 1, 2016, rewrote the section.

Legal Periodicals. - For article, "'What Is and What Should Never Be' Privileged in North Carolina: The Peer Review Privilege After Armstrong v. Barnes," see 85 N.C.L. Rev. 1741 (2007).

§ 90-21.22A. Medical review and quality assurance committees.

1. As used in this section, the following terms mean:
   1. "Medical review committee." -. A committee composed of health care providers licensed under this Chapter that is formed for the purpose of evaluating the quality of, cost of, or necessity for health care services, including provider credentialing. "Medical review committee" does not mean a medical review committee established under G.S. 131E-95.
   2. "Quality assurance committee." -. Risk management employees of an insurer licensed to write medical professional liability insurance in this State, who work in collaboration with health care providers licensed under this Chapter, and insured by that insurer, to evaluate and improve the quality of health care services.
2. A member of a duly appointed medical review 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.
3. The proceedings of a medical review or quality assurance committee, the records and materials it produces, and the materials it considers shall be confidential and not considered public records within the meaning of G.S. 132-1, 131E-309, or 58-2-100; and shall not be subject to discovery or introduction into evidence in any civil action against a provider of health care services who directly provides services and is licensed under this Chapter, a PSO licensed under Article 17 of Chapter 131E of the General Statutes, an ambulatory surgical facility licensed under Chapter 131E of the General Statutes, or a hospital licensed under Chapter 122C or Chapter 131E of the General Statutes or that is owned or operated by the State, which civil action results from matters that 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. 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 may testify in a civil action but cannot be asked about the person's testimony before the committee or any opinions formed as a result of the committee hearings.
4. This section applies to a medical review committee, including a medical review committee appointed by one of the entities licensed under Articles 1 through 67 of Chapter 58 of the General Statutes.
5. Subsection (c) of this section does not apply to proceedings initiated under G.S. 58-50-61 or G.S. 58-50-62.

History

(1997-519, s. 4.3; 1998-227, s. 3; 2002-179, s. 18; 2004-149, s. 2.6.)

Editor's Note. - Article 17 of Chapter 131E, referred to in subsection (c), was repealed by Session Laws 2021-62, s. 4.10, effective June 29, 2021.

Effect of Amendments. - Session Laws 2004-149, s. 2.6, effective August 2, 2004, inserted "and quality assurance" in the section heading; in subsection (a), added subdivision (a)(1) designation, inserted "the following terms mean" in the introductory paragraph, made related changes in subdivision (a)(1), and inserted subdivision (a)(2); inserted "or quality assurance" preceding "committee" in subsections (b) and (c); in subsection (c), inserted the fourth sentence, and substituted "the person's" for "his or her" in last sentence.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

§ 90-21.23. Election by State.

For the purpose of making applicable in the State the early opt-in provisions of Title 4 of the "Health Care Quality Improvement Act of 1986," P.L. 99-660, the State elects to exercise on October 1, 1987, the provisions of Title 4, Section 411(c)(2)(A) of that act to promote good faith professional review activities.

History

(1987, c. 859, s. 19.)

§§ 90-21.24 through 90-21.36: Repealed by Session Laws 2015-288, s. 4, as amended by Session Laws 2016-94, s. 12G.4(a), effective September 30, 2016.

Editor's Note. - Session Laws 2016-94, s. 12G.4(b), as amended by Session Laws 2016-123, s. 5.7, provides: "Notwithstanding subsection (a) of this section or any other provision of law to the contrary, each party to a cooperative agreement for which a certificate of public advantage was issued prior to September 30, 2016, shall submit a report to the Department of Health and Human Services and the Attorney General on its activities pursuant to the cooperative agreement through September 30, 2017. The report shall include at least all of the following:

"(1) A description of the activities conducted pursuant to the agreement.

"(2) Price and cost information.

"(3) The nature and scope of its activities pursuant to the agreement through September 30, 2017, and the likely effect of those activities.

"(4) Any additional information requested by the Department or the Attorney General."

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.

§§ 90-21.37 through 90-21.40: Reserved for future codification purposes.

§ 90-21.41. Definitions.

The following definitions apply in this Article:

1. Client. - A person who may also be called patient or counselee who seeks or obtains psychotherapy, whether or not the person is charged for the service. The term "client" includes a former client.
2. Psychotherapist. - A psychiatrist licensed in accordance with Article 1 of Chapter 90 of the General Statutes, a psychologist as defined in G.S. 90-270.2(9), a licensed clinical mental health counselor as defined in G.S. 90-330(a), a substance abuse professional as defined in G.S. 90-113.31(8), a social worker engaged in a clinical social work practice as defined in G.S. 90B-3(6), a fee-based pastoral counselor as defined in G.S. 90-382(4), a licensed marriage and family therapist as defined in G.S. 90-270.47(3), or a mental health service provider, who performs or purports to perform psychotherapy.
3. Psychotherapy. - The professional treatment or professional counseling of a mental or emotional condition that includes revelation by the client of intimate details of thoughts and emotions of a very personal nature to assist the client in modifying behavior, thoughts and emotions that are maladjustive or contribute to difficulties in living.
4. Sexual exploitation. - Either of the following, whether or not it occurred with the consent of a client or during any treatment, consultation, evaluation, interview, or examination:
   1. Sexual contact which includes any of the following actions:
      1. Sexual intercourse, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, into the oral, genital, or anal openings of the client's body by any part of the psychotherapist's body or by any object used by the psychotherapist for the purpose of sexual stimulation or gratification of either the psychotherapist or the client; or any intrusion, however slight, into the oral, genital, or anal openings of the psychotherapist's body by any part of the client's body or by any object used by the client for the purpose of sexual stimulation or gratification of either the psychotherapist or the client, if agreed to, or not resisted by the psychotherapist.
      2. Kissing of, or the intentional touching by the psychotherapist of, the client's lips, genital area, groin, inner thigh, buttocks, or breast, or of the clothing covering any of these body parts, for the purpose of sexual stimulation or gratification of either the psychotherapist or the client, or kissing of, or the intentional touching by the client of, the psychotherapist's lips, genital area, groin, inner thigh, buttocks, or breast, or of the clothing covering any of these body parts, if agreed to or not resisted by the psychotherapist, for the purpose of sexual stimulation or gratification to either the psychotherapist or the client.
   2. Any act done or statement made by the psychotherapist for the purpose of sexual stimulation or gratification of the client or psychotherapist which includes any of the following actions:
      1. The psychotherapist's relating to the client the psychotherapist's own sexual fantasies or the details of the psychotherapist's own sexual life.
      2. The uncovering or display of breasts or genitals of the psychotherapist to the client.
      3. The showing of sexually graphic pictures to the client for purposes other than diagnosis or treatment.
      4. Statements containing sexual innuendo, sexual threats, or sexual suggestions regarding the relationship between the psychotherapist and the client.
5. Sexual history. - Sexual activity of the client other than that conduct alleged by the client to constitute sexual exploitation in an action pursuant to this Article.
6. Therapeutic deception. - A representation by a psychotherapist that sexual contact with the psychotherapist is consistent with or part of the client's treatment.

History

(1998-213, s. 1; 2019-240, s. 3(g).)

Editor's Note. - Session Laws 2019-240, s. 3(k), provides: "The Codifier of Rules shall make any conforming rule changes necessary to reflect the name changes made by this act.”

Effect of Amendments. - Session Laws 2019-240, s. 3(g), effective January 1, 2020, substituted "clinical mental health counselor as defined in G.S. 90-330(a)" for "professional counselor as defined in G.S. 90-330(a)(2)" in subdivision (2).

§ 90-21.42. Action for sexual exploitation.

Any client who is sexually exploited by the client's psychotherapist shall have remedy by civil action for sexual exploitation if the sexual exploitation occurred:

1. At any time between and including the first date and last date the client was receiving psychotherapy from the psychotherapist;
2. Within three years after the termination of the psychotherapy; or
3. By means of therapeutic deception.

History

(1998-213, s. 1.)

§ 90-21.43. Remedies.

A person found to have been sexually exploited as provided under this Article may recover from the psychotherapist actual or nominal damages, and reasonable attorneys' fees as the court may allow. The trier of fact may award punitive damages in accordance with the provisions of Chapter 1D of the General Statutes.

History

(1998-213, s. 1.)

§ 90-21.44. Scope of discovery.

1. In an action under this Article, evidence of the client's sexual history is not subject to discovery, except under the following conditions:
   1. The client claims impairment of sexual functioning.
   2. The psychotherapist requests a hearing prior to conducting discovery and makes an offer of proof of the relevancy of the evidence, and the court finds that the information is relevant and that the probative value of the history outweighs its prejudicial effect.
2. The court shall allow the discovery only of specific information or examples of the client's conduct that are determined by the court to be relevant. The court order shall detail the information or conduct that is subject to discovery.

History

(1998-213, s. 1.)

§ 90-21.45. Admissibility of evidence of sexual history.

1. At the trial of an action under this Article, evidence of the client's sexual history is not admissible unless:
   1. The psychotherapist requests a hearing prior to trial and makes an offer of proof of the relevancy of the sexual history; and
   2. The court finds that, in the interest of justice, the evidence is relevant and that the probative value of the evidence substantially outweighs its prejudicial effect.
2. The court shall allow the admission only of specific information or examples of instances of the client's conduct that are determined by the court to be relevant. The court's order shall detail the conduct that is admissible, and no other such evidence may be introduced.
3. Sexual history otherwise admissible pursuant to this section may not be proved by reputation or opinion.

History

(1998-213, s. 1.)

§ 90-21.46. Prohibited defense.

It shall not be a defense in any action brought pursuant to this Article that the client consented to the sexual exploitation or that the sexual contact with a client occurred outside a therapy or treatment session or that it occurred off the premises regularly used by the psychotherapist for therapy or treatment sessions.

History

(1998-213, s. 1.)

§ 90-21.47. Statute of limitations.

An action for sexual exploitation must be commenced within three years after the cause of action accrues. A cause of action for sexual exploitation accrues at the later of either:

1. The last act of the psychotherapist giving rise to the cause of action.
2. At the time the client discovers or reasonably should discover that the sexual exploitation occurred; however, no cause of action shall be commenced more than 10 years from the last act of the psychotherapist giving rise to the cause of action.

History

(1998-213, s. 1.)

§ 90-21.48. Agreements to not pursue complaint before licensing entity void.

Any provision of a settlement agreement of a claim based in whole or part on an allegation of sexual exploitation as defined in this Article, which prohibits a party from initiating or pursuing a complaint before the regulatory entity responsible for overseeing the conduct or licensing of the psychotherapist, is void.

History

(1998-213, s. 1.)

§ 90-21.49: Reserved for future codification purposes.

§ 90-21.50. Definitions.

As used in this Article, unless the context clearly indicates otherwise, the term:

1. "Health benefit plan" means an accident and health insurance policy or certificate; a nonprofit hospital or medical service corporation contract; a health maintenance organization subscriber contract; a self-insured indemnity program or prepaid hospital and medical benefits plan offered under the State Health Plan for Teachers and State Employees and subject to the requirements of Article 3 of Chapter 135 of the General Statutes, a plan provided by a multiple employer welfare arrangement; or a plan provided by another benefit arrangement, to the extent permitted by the Employee Retirement Income Security Act of 1974, as amended, or by any waiver of or other exception to that act provided under federal law or regulation. "Health benefit plan" does not mean any plan implemented or administered by the North Carolina or United States Department of Health and Human Services, or any successor agency, or its representatives. "Health benefit plan" does not mean any of the following kinds of insurance:
   1. Accident.
   2. Credit.
   3. Disability income.
   4. Long-term or nursing home care.
   5. Medicare supplement.
   6. Specified disease.
   7. Dental or vision.
   8. Coverage issued as a supplement to liability insurance.
   9. Workers' compensation.
   10. Medical payments under automobile or homeowners.
   11. Hospital income or indemnity.
   12. Insurance under which benefits are payable with or without regard to fault and that is statutorily required to be contained in any liability policy or equivalent self-insurance.
   13. Short-term limited duration health insurance policies as defined in Part 144 of Title 45 of the Code of Federal Regulations.
2. "Health care decision" means a determination that is made by a managed care entity and is subject to external review under Part 4 of Article 50 of Chapter 58 of the General Statutes and is also a determination that:
   1. Is a noncertification, as defined in G.S. 58-50-61, of a prospective or concurrent request for health care services, and
   2. Affects the quality of the diagnosis, care, or treatment provided to an enrollee or insured of the health benefit plan.
3. "Health care provider" means:
   1. An individual who is licensed, certified, or otherwise authorized under this Chapter to provide health care services in the ordinary course of business or practice of a profession or in an approved education or training program; or
   2. A health care facility, licensed under Chapters 131E or 122C of the General Statutes, where health care services are provided to patients;
4. "Health care service" means a health or medical procedure or service rendered by a health care provider that:
   1. Provides testing, diagnosis, or treatment of a health condition, illness, injury, or disease; or
   2. Dispenses drugs, medical devices, medical appliances, or medical goods for the treatment of a health condition, illness, injury, or disease.
5. "Insured or enrollee" means a person that is insured by or enrolled in a health benefit plan under a policy, plan, certificate, or contract issued or delivered in this State by an insurer.
6. "Insurer" means an entity that writes a health benefit plan and that is an insurance company subject to Chapter 58 of the General Statutes, a service corporation organized under Article 65 of Chapter 58 of the General Statutes, a health maintenance organization organized under Article 67 of Chapter 58 of the General Statutes, a self-insured health maintenance organization or managed care entity operated or administered by or under contract with the Executive Administrator and Board of Trustees of the State Health Plan for Teachers and State Employees pursuant to Article 3 of Chapter 135 of the General Statutes, a multiple employer welfare arrangement subject to Article 50A of Chapter 58 of the General Statutes, or the State Health Plan for Teachers and State Employees.
7. "Managed care entity" means an insurer that:
   1. Delivers, administers, or undertakes to provide for, arrange for, or reimburse for health care services or assumes the risk for the delivery of health care services; and
   2. Has a system or technique to control or influence the quality, accessibility, utilization, or costs and prices of health care services delivered or to be delivered to a defined enrollee population.
8. "Ordinary care" means that degree of care that, under the same or similar circumstances, a managed care entity of ordinary prudence would have used at the time the managed care entity made the health care decision.
9. "Physician" means:
   1. An individual licensed to practice medicine in this State;
   2. A professional association or corporation organized under Chapter 55B of the General Statutes; or
   3. A person or entity wholly owned by physicians.
10. "Successor external review process" means an external review process equivalent in all respects to G.S. 58-50-75 through G.S. 58-50-95 that is approved by the Department and implemented by a health benefit plan in the event that G.S. 58-50-75 through G.S. 58-50-95 are found by a court of competent jurisdiction to be void, unenforceable, or preempted by federal law, in whole or in part.

"Health care provider" includes: (i) an agent or employee of a health care facility that is licensed, certified, or otherwise authorized to provide health care services; (ii) the officers and directors of a health care facility; and (iii) an agent or employee of a health care provider who is licensed, certified, or otherwise authorized to provide health care services.

Except for the State Health Plan for Teachers and State Employees, "managed care entity" does not include: (i) an employer purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer, or (ii) a health care provider.

History

(2001-446, s. 4.7; 2007-323, s. 28.22A(o); 2007-345, s. 12; 2019-202 s. 8; 2021-62, ss. 4.2(a), 4.2(b).)

Editor's Note. - Session Laws 2001-446, s. 8, provides: "Nothing in this act obligates the General Assembly to appropriate funds to implement this act."

Some of the definitions in this section have been renumbered in alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2019-202, s. 8, provides: "The Revisor of Statutes is hereby authorized to make any changes to the General Statutes made necessary by the recodification in Section 2 of this act, including changes to the following sections of the General Statutes: G.S. 58-2-161, 58-3-122, 58-3-167, 58-3-169, 58-3-174, 58-3- 176, 58-3-178, 58-3-190, 58-3-200, 58-3-215, 58- 3-225, 58-3-227, 58-3-275, 58-28-35, 58-51-55, 58-65-90, 58-67-75, 58-68-25, and 90-21.50." Pursuant to that authority, "Article 50A" was substituted for "Article 49" in subdivision (6).

Effect of Amendments. - Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted "State Health Plan for Teachers and State Employees" for "Teachers' and State Employees' Comprehensive Major Medical Plan" in subdivision (1), twice in subdivision (6), and in the undesignated language following subdivision (7).

Session Laws 2021-62, s. 4.2(a), (b), effective June 29, 2021, deleted "Except for the Health Insurance Program for Children established under Part 8 of Article 2 of Chapter 108A of the General Statutes," at the beginning of the second sentence in the introductory paragraph of subdivision (1); and substituted "State Employees" for "State Employees and the Health Insurance Program for Children" in subdivision (7).

Legal Periodicals. - For note, "A Tough Pill to Swallow: An Examination of Why FDA Regulations Should Relax and Let Tort Law Cure Liability," see 9 Elon L. Rev. 525 (2017).

§ 90-21.51. Duty to exercise ordinary care; liability for damages for harm.

1. Each managed care entity for a health benefit plan has the duty to exercise ordinary care when making health care decisions and is liable for damages for harm to an insured or enrollee proximately caused by its failure to exercise ordinary care.
2. In addition to the duty imposed under subsection (a) of this section, each managed care entity for a health benefit plan is liable for damages for harm to an insured or enrollee proximately caused by decisions regarding whether or when the insured or enrollee would receive a health care service made by:
   1. Its agents or employees; or
   2. Representatives that are acting on its behalf and over whom it has exercised sufficient influence or control to reasonably affect the actual care and treatment of the insured or enrollee which results in the failure to exercise ordinary care.
3. It shall be a defense to any action brought under this section against a managed care entity for a health benefit plan that:
   1. The managed care entity and its agents or employees, or representatives for whom the managed care entity is liable under subsection (b) of this section, did not control or influence or advocate for the decision regarding whether or when the insured or enrollee would receive a health care service; or
   2. The managed care entity did not deny or delay payment for any health care service or treatment prescribed or recommended by a physician or health care provider to the insured or enrollee.
4. In an action brought under this Article against a managed care entity, a finding that a physician or health care provider is an agent or employee of the managed care entity may not be based solely on proof that the physician or health care provider appears in a listing of approved physicians or health care providers made available to insureds or enrollees under the managed care entity's health benefit plan.
5. An action brought under this Article is not a medical malpractice action as defined in Article 1B of this Chapter. A managed care entity may not use as a defense in an action brought under this Article any law that prohibits the corporate practice of medicine.
6. A managed care entity shall not be liable for the independent actions of a health care provider, who is not an agent or employee of the managed care entity, when that health care provider fails to exercise the standard of care required by G.S. 90-21.12. A health care provider shall not be liable for the independent actions of a managed care entity when the managed care entity fails to exercise the standard of care required by this Article.
7. Nothing in this Article shall be construed to create an obligation on the part of a managed care entity to provide to an insured or enrollee a health care service or treatment that is not covered under its health benefit plan.
8. A managed care entity shall not enter into a contract with a health care provider, or with an employer or employer group organization, that includes an indemnification or hold harmless clause for the acts or conduct of the managed care entity. Any such indemnification or hold harmless clause is void and unenforceable to the extent of the restriction.

History

(2001-446, s. 4.7.)

Legal Periodicals. - For comment, "Patients' Bill of Rights; Legislative Cure-All or Prescription for Disaster?," see 81 N.C.L. Rev. 653 (2003).

§ 90-21.52. No liability under this Article on the part of an employer or employer group organization that purchases coverage or assumes risk on behalf of its employees or a physician or health care provider; liability of State Health Plan under State Tort Claims Act.

1. Except as otherwise provided in subsection (b) of this section, this Article does not create any liability on the part of an employer or employer group purchasing organization that purchases health care coverage or assumes risk on behalf of its employees.
2. Liability in tort of the State Health Plan for Teachers and State Employees for its health care decisions shall be under Article 31 of Chapter 143 of the General Statutes.
3. This Article does not create any liability on the part of a physician or health care provider in addition to that otherwise imposed under existing law. No managed care entity held liable under this Article shall be entitled to contribution under Chapter 1B of the General Statutes. No managed care entity held liable under this Article shall have a right to indemnity against physicians, health care providers, or entities wholly owned by physicians or health care providers or any combination thereof, except when:
   1. The liability of the managed care entity is based on an administrative decision to approve or disapprove payment or reimbursement for, or denial, reduction, or termination of coverage, for a health care service and the physician organizations, health care providers, or entities wholly owned by physicians or health care providers or any combination thereof, which have made the decision at issue, have agreed explicitly, in a written addendum or agreement separate from the managed care organization's standard professional service agreement, to assume responsibility for making noncertification decisions under G.S. 58-50-61(13) with respect to certain insureds or enrollees; and
   2. The managed care entity has not controlled or influenced or advocated for the decision regarding whether or when payment or reimbursement should be made or whether or when the insured or enrollee should receive a health care service.

The right to indemnity set forth herein shall not apply to professional medical or health care services provided by a physician or health care provider, and shall only apply where the agreement to assume responsibility for making noncertification decisions for the managed care entity is shown to have been undertaken voluntarily and the managed care organization has not adversely affected the terms and conditions of the relationship with the health care provider based upon the willingness to execute or refusal to execute an agreement under G.S. 58-50-61(13).

History

(2001-446, s. 4.7; 2001-508, s. 2; 2007-323, s. 28.22A(o); 2007-345, s. 12.)

Effect of Amendments. - Session Laws 2007-323, s. 28.22A(o), as amended by Session Laws 2007-345, s. 12, effective July 1, 2008, substituted "State Health Plan for Teachers and State Employees" for "Teachers' and State Employees' Comprehensive Major Medical Plan" in subsection (b).

§ 90-21.53. Separate trial required.

Upon motion of any party in an action that includes a claim brought pursuant to this Article involving a managed care entity, the court shall order separate discovery and a separate trial of any claim, cross-claim, counterclaim, or third-party claim against any physician or other health care provider.

History

(2001-446, s. 4.7.)

Legal Periodicals. - For comment, "Patients' Bill of Rights: Legislative Cure-All or Prescription for Disaster?," see 81 N.C.L. Rev. 653 (2003).

§ 90-21.54. Exhaustion of administrative remedies and appeals.

No action may be commenced under this Article until the plaintiff has exhausted all administrative remedies and appeals, including those internal remedies and appeals established under G.S. 58-50-61 through G.S. 58-50-62, and G.S. 58-50-75 through G.S. 58-50-95, and including those established under any successor external review process.

History

(2001-446, s. 4.7.)

§ 90-21.55. External review decision.

1. Either the insured or enrollee or the personal representative of the insured or enrollee or the managed care entity may use an external review decision made in accordance with G.S. 58-50-75 through G.S. 58-50-95, or made in accordance with any successor external review process, as evidence in any cause of action which includes an action brought under this Part, provided that an adequate foundation is laid for the introduction of the external review decision into evidence and the testimony is subject to cross-examination.
2. Any information, documents, or other records or materials considered by the Independent Review Organization licensed under Part 4 of Article 50 of Chapter 58 of the General Statutes, or the successor review process, in conducting its review shall be admissible in any action commenced under this Article in accordance with Chapter 8 of the General Statutes and the North Carolina Rules of Evidence.

History

(2001-446, s. 4.7.)

Legal Periodicals. - For comment, "Patients' Bill of Rights: Legislative Cure-All or Prescription for Disaster?," see 81 N.C.L. Rev. 653 (2003).

§ 90-21.56. Remedies.

1. Except as provided in G.S. 90-21.52(b), an insured or enrollee who has been found to have been harmed by the managed care entity pursuant to an action brought under this Article may recover actual or nominal damages and, subject to the provisions and limitations of Chapter 1D of the General Statutes, punitive damages.
2. This Article does not limit a plaintiff from pursuing any other remedy existing under the law or seeking any other relief that may be available outside of the cause of action and relief provided under this Article.
3. The rights conferred under this Article as well as any rights conferred by the Constitution of North Carolina or the Constitution of the United States may not be waived, deferred, or lost pursuant to any contract between the insured or enrollee and the managed care entity that relates to a dispute involving a health care decision. Arbitration or mediation may be used to settle the controversy if, after the controversy arises, the insured or enrollee, or the estate of the insured or enrollee, voluntarily and knowingly consents in writing to use arbitration or mediation to settle the controversy.

History

(2001-446, s. 4.7.)

§ 90-21.60. Voluntary arbitration; prior agreements to arbitration void.

1. Application of Article. - This Article applies to all claims for damages for personal injury or wrongful death based on alleged negligence in the provision of health care by a health care provider as defined in G.S. 90-21.11 where all parties have agreed to submit the dispute to arbitration under this Article in accordance with the requirements of G.S. 90-21.61.
2. When Agreement Is Void. - Except as provided in G.S. 90-21.61(a), any contract provision or other agreement entered into prior to the commencement of an action that purports to require a party to elect arbitration under this Article is void and unenforceable. This Article does not impair the enforceability of any arbitration provision that does not specifically require arbitration under this Article.

History

(2007-541, s. 1.)

Legal Periodicals. - For article, "Clause Construction: A Glimpse Into Judicial and Arbitral Decision-Making," see 68 Duke L.J. 1324 (2019).

§ 90-21.61. Requirements for submitting to arbitration.

1. Before Action Is Filed. - Before an action is filed, a person who claims damages for personal injury or wrongful death based on alleged negligence in the provision of health care by a health care provider as defined in G.S. 90-21.11 and the allegedly negligent health care provider may jointly submit their dispute to arbitration under this Article by, acting through their attorneys, filing a stipulation to arbitrate with the clerk of superior court in the county where the negligence allegedly occurred. The filing of such a stipulation provides jurisdiction to the superior court to enforce the provisions of this Article and tolls the statute of limitations.
2. Once Action Is Filed. - The parties to an action for damages for personal injury or wrongful death based on alleged negligence in the provision of health care by a health care provider as defined in G.S. 90-21.11 may elect at any time during the pendency of the action to file a stipulation with the court in which all parties to the action agree to submit the dispute to arbitration under this Article.
3. Declaration Not to Arbitrate. - In the event that the parties do not unanimously agree to submit a dispute to arbitration under subsection (b) of this section, the parties shall file a declaration with the court prior to the discovery scheduling conference required by G.S. 1A-1, Rule 26(f1).

The declaration shall state that the attorney representing the party has presented the party with a copy of the provisions of this Article, that the attorneys representing the parties have discussed the provisions of this Article with the parties and with each other, and that the parties do not unanimously agree to submit the dispute to arbitration under this Article. The declaration is without prejudice to the parties' subsequent agreement to submit the dispute to arbitration.

History

(2007-541, s. 1.)

§ 90-21.62. Selection of arbitrator.

1. Selection by Agreement. - An arbitrator shall be selected by agreement of all the parties no later than 45 days after the date of the filing of the stipulation where the parties agreed to submit the dispute to arbitration under this Article. The parties may agree to select more than one arbitrator to conduct the arbitration. The parties may agree in writing to the selection of a particular arbitrator or particular arbitrators as a precondition for a stipulation to arbitrate.
2. Selection From List. - If all the parties are unable to agree to an arbitrator by the time specified in subsection (a) of this section, the arbitrator shall be selected from emergency superior court judges who agree to be on a list maintained by the Administrative Office of the Courts. Each party shall alternately strike one name on the list, and the last remaining name on the list shall be the arbitrator. The emergency superior court judge serving as an arbitrator would be compensated at the same rate as an emergency judge serving in superior court.

History

(2007-541, s. 1.)

§ 90-21.63. Witnesses; discovery; depositions; subpoenas.

1. General Conduct of Arbitration; Experts. - The arbitrator may conduct the arbitration in such manner as the arbitrator considers appropriate so as to aid in the fair and expeditious disposition of the proceeding subject to the requirements of this section and G.S. 90-21.64. Except as provided in subsection (b) of this section, each side shall be entitled to two experts on the issue of liability, two experts on the issue of damages, and one rebuttal expert.
2. Experts in Case of Multiple Parties. - Where there are multiple parties on one side, the arbitrator shall determine the number of experts that are allowed based on the minimum number of experts necessary to ensure a fair and economic resolution of the action.
3. Discovery. - Notwithstanding G.S. 90-21.64(a)(1), unless the arbitrator determines that exceptional circumstances require additional discovery, each party shall be entitled to all of the following discovery from any other party:
   1. Twenty-five interrogatories, including subparts.
   2. Ten requests for admission.
   3. Whatever is allowed under applicable court rules for:
      1. Requests for production of documents and things and for entry upon land for inspection and other purposes; and
      2. Requests for physical and mental examinations of persons.
4. Depositions. - Each party shall be entitled to all of the following depositions:
   1. Depositions of any party and any expert that a party expects to call as a witness. - Except by order of the arbitrator for good cause shown, the length of the deposition of a party or an expert witness under this subdivision shall be limited to four hours.
   2. Depositions of other witnesses. - Unless the arbitrator determines that exceptional circumstances require additional depositions, the total number of depositions of persons under this subdivision shall be limited to five depositions per side, each of which shall last no longer than two hours and for which each side shall be entitled to examine for one hour.
5. Subpoenas. - An arbitrator may issue a subpoena for the attendance of a witness and for the production of records and other evidence at any hearing and may administer oaths. A subpoena shall be served in the manner for service of subpoenas in a civil action and, upon the motion to the court by a party to the arbitration proceeding or by the arbitrator, enforced in the manner for enforcement of subpoenas in a civil action.

History

(2007-541, s. 1.)

§ 90-21.64. Time limitations for arbitration.

1. Time Frames. - The time frames provided in this section shall run from the date of the filing of the stipulation where the parties agreed to submit the dispute to arbitration under the Article. Any arbitration under this Article shall be conducted according to the time frames as follows:
   1. Within 45 days, the claimant shall provide a copy to the defendants of all relevant medical records. Alternatively, the claimant may provide to the defendants a release, in compliance with the federal Health Insurance Portability and Accountability Act, for all relevant medical records, along with the names and addresses of all health care providers who may have possession, custody, or control of the relevant medical records. The provisions of this subdivision shall not limit discovery conducted pursuant to G.S. 90-21.63(c).
   2. Within 120 days, the claimant shall disclose to each defendant the name and curriculum vitae or other documentation of qualifications of any expert the claimant expects to call as a witness.
   3. Within 140 days, each defendant shall disclose to the claimant the name and curriculum vitae or other documentation of qualifications of any expert the defendant expects to call as a witness.
   4. Within 160 days, each party shall disclose to each other party the name and curriculum vitae or other documentation of qualifications of any rebuttal expert the party expects to call as a witness.
   5. Within 240 days, all discovery shall be completed.
   6. Within 270 days, the arbitration hearing shall commence.
2. Scheduling Order. - The arbitrator shall issue a case scheduling order in every proceeding specifying the dates by which the requirements of subdivisions (2) through (6) of subsection (a) of this section shall be completed. The scheduling order also shall specify a deadline for the service of dispositive motions and briefs.
3. Public Policy as to When Hearings Begin. - It is the express public policy of the General Assembly that arbitration hearings under this Article be commenced no later than 10 months after the parties file the stipulation where the parties agreed to submit the dispute to arbitration under this Article. The arbitrator may grant a continuance of the commencement of the arbitration hearing only where a party shows that exceptional circumstances create an undue and unavoidable hardship on the party or where all parties consent to the continuance.

History

(2007-541, s. 1.)

§ 90-21.65. Written decision by arbitration.

1. Issuing the Decision. - The arbitrator shall issue a decision in writing and signed by the arbitrator within 14 days after the completion of the arbitration hearing and shall promptly deliver a copy of the decision to each party or the party's attorneys.
2. Limit on Damages. - The arbitrator shall not make an award of damages that exceeds a total of one million dollars ($1,000,000) for any dispute submitted to arbitration under this Article, regardless of the number of claimants or defendants that are parties to the dispute.
3. Finding if Damages Awarded. - If the arbitrator makes an award of damages to the claimant, the arbitrator shall make a finding as to whether the injury or death was caused by the negligence of the defendant.
4. Paying the Arbitrator. - The fees and expenses of the arbitrator shall be paid equally by the parties.
5. Attorneys' Fees and Costs. - Each party shall bear its own attorneys' fees and costs.

History

(2007-541, s. 1.)

§ 90-21.66. Judgment by court.

After a party to the arbitration proceeding receives notice of a decision, the party may file a motion with the court for a judgment in accordance with the decision at which time the court shall issue such a judgment unless the decision is modified, corrected, or vacated as provided in G.S. 90-21.68.

History

(2007-541, s. 1.)

§ 90-21.67. Retention of jurisdiction by court.

The court shall retain jurisdiction over the action during the pendency of the arbitration proceeding. The court may, at the request of the arbitrator, enter orders necessary to enforce the provisions of this Article.

History

(2007-541, s. 1.)

§ 90-21.68. Appeal of arbitrator's decision.

There is no right to a trial de novo on an appeal of the arbitrator's decision under this Article. An appeal of the arbitrator's decision is limited to the bases for appeal provided under G.S. 1-569.23 or G.S. 1-569.24.

History

(2007-541, s. 1.)

§ 90-21.69. Revised Uniform Arbitration Act not applicable.

The provisions of Article 45C of Chapter 1 of the General Statutes do not apply to arbitrations conducted under this Article except to the extent specifically provided in this Article.

History

(2007-541, s. 1.)

§§ 90-21.70 through 90-21.79: Reserved for future codification purposes.

§ 90-21.80. Short title.

This act may be cited as the "Woman's Right to Know Act."

History

(2011-405, s. 1.)

Legal Periodicals. - For article, "Casey, Camnitz, and Compelled Speech: Why the Fourth Circuit's Interpretation of Casey Sets the Right Standard for Speech-and-Display Provisions," see 94 N.C.L. Rev. 1036 (2016).

For note, "A Violent Birth: Reframing Coerced Procedures During Childbirth as Obstetric Violence," see 67 Duke L.J. 827 (2018).

§ 90-21.81. Definitions.

The following definitions apply in this Article:

1. Abortion. - The use or prescription of any instrument, medicine, drug, or other substance or device intentionally to terminate the pregnancy of a woman known to be pregnant with an intention other than to do any of the following:
   1. Increase the probability of a live birth.
   2. Preserve the life or health of the child.
   3. Remove a dead, unborn child who died as the result of (i) natural causes in utero, (ii) accidental trauma, or (iii) a criminal assault on the pregnant woman or her unborn child which causes the premature termination of the pregnancy.
2. Attempt to perform an abortion. - An act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance of an abortion in violation of this Article or Article 1K of this Chapter.
3. Department. - The Department of Health and Human Services.
4. Display a real-time view of the unborn child. - An ultrasound or any more scientifically advanced means of viewing the unborn child in real time.
5. Medical emergency. - A condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions. For purposes of this definition, no condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.
6. Physician. - An individual licensed to practice medicine in accordance with this Chapter.
7. Probable gestational age. - What, in the judgment of the physician, will, with reasonable probability, be the gestational age of the unborn child at the time the abortion is planned to be performed.
8. Qualified professional. - An individual who is a registered nurse, nurse practitioner, or physician assistant licensed in accordance with Article 1 of this Chapter, or a qualified technician acting within the scope of the qualified technician's authority as provided by North Carolina law and under the supervision of a physician.
9. Qualified technician. - A registered diagnostic medical sonographer who is certified in obstetrics and gynecology by the American Registry for Diagnostic Medical Sonography (ARDMS) or a nurse midwife or advanced practice nurse practitioner in obstetrics with certification in obstetrical ultrasonography.
10. Stable Internet Web site. - A Web site that, to the extent reasonably practicable, is safeguarded from having its content altered other than by the Department.
11. Woman. - A female human, whether or not she is an adult.

History

(2011-405, s. 1; 2013-366, s. 3(b).)

Effect of Amendments. - Session Laws 2013-366, s. 3(b), effective October 1, 2013, inserted "or Article 1K of this Chapter" in subdivision (2). For applicability, see Editor's note.

Legal Periodicals. - For note, "Conscience Clauses and the Right of Refusal: The War Between Legal and Ethical Responsibility," see 55 Wake Forest L. Rev. 717 (2020).

§ 90-21.82. Informed consent to abortion.

No abortion shall be performed upon a woman in this State without her voluntary and informed consent. Except in the case of a medical emergency, consent to an abortion is voluntary and informed only if all of the following conditions are satisfied:

1. At least 72 hours prior to the abortion, a physician or qualified professional has orally informed the woman, by telephone or in person, of all of the following:
   1. The name of the physician who will perform the abortion to ensure the safety of the procedure and prompt medical attention to any complications that may arise. The physician performing a surgical abortion shall be physically present during the performance of the entire abortion procedure. The physician prescribing, dispensing, or otherwise providing any drug or chemical for the purpose of inducing an abortion shall be physically present in the same room as the patient when the first drug or chemical is administered to the patient.
   2. The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, cervical tear or uterine perforation, danger to subsequent pregnancies, including the ability to carry a child to full term, and any adverse psychological effects associated with the abortion.
   3. The probable gestational age of the unborn child at the time the abortion is to be performed.
   4. The medical risks associated with carrying the child to term.
   5. The display of a real-time view of the unborn child and heart tone monitoring that enable the pregnant woman to view her unborn child or listen to the heartbeat of the unborn child are available to the woman. The physician performing the abortion, qualified technician, or referring physician shall inform the woman that the printed materials and Web site described in G.S. 90-21.83 and G.S. 90-21.84 contain phone numbers and addresses for facilities that offer the services free of charge. If requested by the woman, the physician or qualified professional shall provide to the woman the list as compiled by the Department.
   6. If the physician who is to perform the abortion has no liability insurance for malpractice in the performance or attempted performance of an abortion, that information shall be communicated.
   7. The location of the hospital that offers obstetrical or gynecological care located within 30 miles of the location where the abortion is performed or induced and at which the physician performing or inducing the abortion has clinical privileges. If the physician who will perform the abortion has no local hospital admitting privileges, that information shall be communicated.
2. The physician or qualified professional has informed the woman, either by telephone or in person, of each of the following at least 72 hours before the abortion:
   1. That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care.
   2. That public assistance programs under Chapter 108A of the General Statutes may or may not be available as benefits under federal and State assistance programs.
   3. That the father is liable to assist in the support of the child, even if the father has offered to pay for the abortion.
   4. That the woman has other alternatives to abortion, including keeping the baby or placing the baby for adoption.
   5. That the woman has the right to review the printed materials described in G.S. 90-21.83, that these materials are available on a State-sponsored Web site, and the address of the State-sponsored Web site. The physician or a qualified professional shall orally inform the woman that the materials have been provided by the Department and that they describe the unborn child and list agencies that offer alternatives to abortion. If the woman chooses to view the materials other than on the Web site, the materials shall either be given to her at least 72 hours before the abortion or be mailed to her at least 72 hours before the abortion by certified mail, restricted delivery to addressee.
   6. That the woman is free to withhold or withdraw her consent to the abortion at any time before or during the abortion without affecting her right to future care or treatment and without the loss of any State or federally funded benefits to which she might otherwise be entitled.
3. The woman certifies in writing, before the abortion, that the information described in subdivisions (1) and (2) of this section has been furnished her and that she has been informed of her opportunity to review the information referred to in sub-subdivision (2)e. of this section. The original of this certification shall be maintained in the woman's medical records, and a copy shall be given to her.
4. Before the performance of the abortion, the physician who will perform the abortion or the qualified technician must receive a copy of the written certification required by subdivision (3) of this section.

If the physician or qualified professional does not know the information required in sub-subdivisions a., f., or g. of this subdivision, the woman shall be advised that this information will be directly available from the physician who is to perform the abortion. However, the fact that the physician or qualified professional does not know the information required in sub-subdivisions a., f., or g. shall not restart the 72-hour period. The information required by this subdivision shall be provided in English and in each language that is the primary language of at least two percent (2%) of the State's population. The information may be provided orally either by telephone or in person, in which case the required information may be based on facts supplied by the woman to the physician and whatever other relevant information is reasonably available. The information required by this subdivision may not be provided by a tape recording but shall be provided during a consultation in which the physician is able to ask questions of the patient and the patient is able to ask questions of the physician. If, in the medical judgment of the physician, a physical examination, tests, or the availability of other information to the physician subsequently indicates a revision of the information previously supplied to the patient, then that revised information may be communicated to the patient at any time before the performance of the abortion. Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.

The information required by this subdivision shall be provided in English and in each language that is the primary language of at least two percent (2%) of the State's population. The information required by this subdivision may be provided by a tape recording if provision is made to record or otherwise register specifically whether the woman does or does not choose to have the printed materials given or mailed to her. Nothing in this subdivision shall be construed to prohibit the physician or qualified professional from e-mailing a Web site link to the materials described in this subdivision or G.S. 90-21.83.

History

(2011-405, s. 1; 2013-366, s. 4(a); 2015-62, s. 7(b).)

Effect of Amendments. - Session Laws 2013-366, s. 4(a), effective October 1, 2013, rewrote sub-subdivision (1)a., which formerly read "The name of the physician who will perform the abortion."

Session Laws 2015-62, s. 7(b), effective October 1, 2015, substituted "72 hours" for "24 hours" in the introductory sentence of subdivisions (1) and (2); substituted "72 hours" for "24 hours" the first time it appears in subdivision (2)e.; and substituted "72-hour" for "24-hour" in the second paragraph of subdivision (1). For applicability, see editor's note.

Legal Periodicals. - For article, "Casey, Camnitz, and Compelled Speech: Why the Fourth Circuit's Interpretation of Casey Sets the Right Standard for Speech-and-Display Provisions," see 94 N.C.L. Rev. 1036 (2016).

For article, "Regulating Physician Speech," see 97 N.C.L. Rev. 843 (2019).

For note, "Conscience Clauses and the Right of Refusal: The War Between Legal and Ethical Responsibility," see 55 Wake Forest L. Rev. 717 (2020).

§ 90-21.83. Printed information required.

1. Within 90 days after this Article becomes effective, the Department shall publish in English and in each language that is the primary language of at least two percent (2%) of the State's population and shall cause to be available on the State Web site established under G.S. 90-21.84, the following printed materials in a manner that ensures that the information is comprehensible to a person of ordinary intelligence:
   1. Geographically indexed materials designed to inform a woman of public and private agencies and services available to assist her through pregnancy, upon childbirth, and while the child is dependent, including adoption agencies. The information shall include a comprehensive list of the agencies available, a description of the services they offer, including which agencies offer, at no cost to the woman, imaging that enables the woman to view the unborn child or heart tone monitoring that enables the woman to listen to the heartbeat of the unborn child, and a description of the manner, including telephone numbers, in which they might be contacted. In the alternative, in the discretion of the Department, the printed materials may contain a toll-free, 24-hour-a-day telephone number that may be called to obtain, orally or by tape recorded message tailored to the zip code entered by the caller, a list of these agencies in the locality of the caller and of the services they offer.
   2. Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time a woman can be known to be pregnant until full term, including pictures or drawings representing the development of the unborn child at two-week gestational increments. The pictures shall contain the dimensions of the unborn child, information about brain and heart functions, the presence of external members and internal organs, and be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The material shall contain objective information describing the methods of abortion procedures employed, the medical risks associated with each procedure, the possible adverse psychological effects of abortion, as well as the medical risks associated with carrying an unborn child to term.
2. The materials referred to in subsection (a) of this section shall be printed in a typeface large enough to be clearly legible. The Web site provided for in G.S. 90-21.84 shall be maintained at a minimum resolution of 70 DPI (dots per inch). All pictures appearing on the Web site shall be a minimum of 200x300 pixels. All letters on the Web site shall be a minimum of 12-point font. All information and pictures shall be accessible with an industry-standard browser requiring no additional plug-ins.
3. The materials required under this section shall be available at no cost from the Department upon request and in appropriate numbers to any physician, person, health facility, hospital, or qualified professional.
4. The Department shall cause to be available on the State Web site a list of resources the woman may contact for assistance upon receiving information from the physician performing the ultrasound that the unborn child may have a disability or serious abnormality and shall do so in a manner prescribed by subsection (b) of this section.

History

(2011-405, s. 1; 2013-366, s. 4(b).)

Effect of Amendments. - Session Laws 2013-366, s. 4(b), effective October 1, 2013, added subsection (d).

Legal Periodicals. - For article, "Regulating Physician Speech,” see 97 N.C.L. Rev. 843 (2019).

§ 90-21.84. Internet Web site.

The Department shall develop and maintain a stable Internet Web site to provide the information described under G.S. 90-21.83. No information regarding who accesses the Web site shall be collected or maintained. The Department shall monitor the Web site on a regular basis to prevent and correct tampering.

History

(2011-405, s. 1.)

§ 90-21.85. Display of real-time view requirement.

1. Notwithstanding G.S. 14-45.1, except in the case of a medical emergency, in order for the woman to make an informed decision, at least four hours before a woman having any part of an abortion performed or induced, and before the administration of any anesthesia or medication in preparation for the abortion on the woman, the physician who is to perform the abortion, or qualified technician working in conjunction with the physician, shall do each of the following:
   1. Perform an obstetric real-time view of the unborn child on the pregnant woman.
   2. Provide a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted. The individual performing the display shall offer the pregnant woman the opportunity to hear the fetal heart tone. The image and auscultation of fetal heart tone shall be of a quality consistent with the standard medical practice in the community. If the image indicates that fetal demise has occurred, a woman shall be informed of that fact.
   3. Display the images so that the pregnant woman may view them.
   4. Provide a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.
   5. Obtain a written certification from the woman, before the abortion, that the requirements of this section have been complied with, which shall indicate whether or not she availed herself of the opportunity to view the image.
   6. Retain a copy of the written certification prescribed by subdivision (a)(5) of this section. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven years. If the woman is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven years or for five years after the minor reaches the age of majority, whichever is greater.
2. Nothing in this section shall be construed to prevent a pregnant woman from averting her eyes from the displayed images or from refusing to hear the simultaneous explanation and medical description.
3. In the event the person upon whom the abortion is to be performed is an unemancipated minor, as defined in G.S. 90-21.6(1), the information described in subdivisions (a)(2) and (a)(4) of this section shall be furnished and offered respectively to a person required to give parental consent under G.S. 90-21.7(a) and the unemancipated minor. The person required to give consent in accordance with G.S. 90-21.7(a), as appropriate, shall make the certification required by subdivision (a)(5) of this section. In the event the person upon whom the abortion is to be performed has been adjudicated mentally incompetent by a court of competent jurisdiction, the information shall be furnished and offered respectively to her spouse or a legal guardian if she is married or, if she is not married, to one parent or a legal guardian and the woman. The spouse, legal guardian, or parent, as appropriate, shall make the certification required by subdivision (a)(5) of this section. In the case of an abortion performed pursuant to a court order under G.S. 90-21.8(e) and (f), the information described in subdivisions (a)(2) and (a)(4) of this section shall be provided to the minor, and the certification required by subdivision (a)(5) of this section shall be made by the minor.

If the woman has had an obstetric display of a real-time image of the unborn child within 72 hours before the abortion is to be performed, the certification of the physician or qualified technician who performed the procedure in compliance with this subsection shall be included in the patient's records and the requirements under this subsection shall be deemed to have been met.

History

(2011-405, s. 1.)

Legal Periodicals. - For article, "Health Care Decisions in the New Era of Health Care Reform: An Overview," see 92 N.C. L. Rev. 1445 (2014).

For note, "Removing the 'Silencer' Coverage and Protection of Physician Speech under the First Amendment," see 65 Duke L.J. 801 (2016).

For article, "Casey, Camnitz, and Compelled Speech: Why the Fourth Circuit's Interpretation of Casey Sets the Right Standard for Speech-and-Display Provisions," see 94 N.C.L. Rev. 1036 (2016).

§ 90-21.86. Procedure in case of medical emergency.

When a medical emergency compels the performance of an abortion, the physician shall inform the woman, before the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert her death or that a 72-hour delay will create a serious risk of substantial and irreversible impairment of a major bodily function, not including psychological or emotional conditions. As soon as feasible, the physician shall document in writing the medical indications upon which the physician relied and shall cause the original of the writing to be maintained in the woman's medical records and a copy given to her.

History

(2011-405, s. 1; 2015-62, s. 7(c).)

Effect of Amendments. - Session Laws 2015-62, s. 7(c), effective October 1, 2015, substituted "72-hour" for "24-hour" in the first sentence. For applicability, see Editor's note.

§ 90-21.87. Informed consent for a minor.

If the woman upon whom an abortion is to be performed is an unemancipated minor, the voluntary and informed written consent required under G.S. 90-21.82 shall be obtained from the minor and from the adult individual who gives consent pursuant to G.S. 90-21.7(a).

History

(2011-405, s. 1.)

§ 90-21.88. Civil remedies.

1. Any person upon whom an abortion has been performed and any father of an unborn child that was the subject of an abortion may maintain an action for damages against the person who performed the abortion in knowing or reckless violation of this Article. Any person upon whom an abortion has been attempted may maintain an action for damages against the person who performed the abortion in willful violation of this Article.
2. Injunctive relief against any person who has willfully violated this Article may be sought by and granted to (i) the woman upon whom an abortion was performed or attempted to be performed in violation of this Article, (ii) any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or attempted to be performed in violation of this Article, or (iii) the Attorney General. The injunction shall prevent the abortion provider from performing or inducing further abortions in this State in violation of this Article.
3. If judgment is rendered in favor of the plaintiff in any action authorized under this section, the court shall also tax as part of the costs reasonable attorneys' fees in favor of the plaintiff against the defendant. If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous or brought in bad faith, then the court shall tax as part of the costs reasonable attorneys' fees in favor of the defendant against the plaintiff.

History

(2011-405, s. 1.)

§ 90-21.89. Protection of privacy in court proceedings.

In every proceeding or action brought under this Article, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to the disclosure. The court, upon motion or sua sponte, shall make the ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each order issued pursuant to this section shall be accompanied by specific written findings explaining (i) why the anonymity of the woman should be preserved from public disclosure, (ii) why the order is essential to that end, (iii) how the order is narrowly tailored to serve that interest, and (iv) why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone who brings an action under G.S. 90-21.88 (a) or (b) shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

History

(2011-405, s. 1.)

§ 90-21.90. Assurance of informed consent.

1. All information required to be provided under G.S. 90-21.82 to a woman considering abortion shall be presented to the woman individually and, except for information that may be provided by telephone, in the physical presence of the woman and in a language the woman understands to ensure that the woman has adequate opportunity to ask questions and to ensure the woman is not the victim of a coerced abortion.
2. Should a woman be unable to read the materials provided to the woman pursuant to this section, a physician or qualified professional shall read the materials to the woman in a language the woman understands before the abortion.

History

(2011-405, s. 1.)

§ 90-21.91. Assurance that consent is freely given.

If a physician acting pursuant to this Article has reason to believe that a woman is being coerced into having an abortion, the physician or qualified professional shall inform the woman that services are available for the woman and shall provide the woman with private access to a telephone and information about, but not limited to, each of the following services:

1. Rape crisis centers.
2. Shelters for victims of domestic violence.
3. Restraining orders.
4. Pregnancy care centers.

History

(2011-405, s. 1.)

§ 90-21.92. Severability.

If any one or more provision, section, subsection, sentence, clause, phrase, or word of this Article or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable, and the balance of this Article shall remain effective, notwithstanding such unconstitutionality. The General Assembly hereby declares that it would have passed this Article, and each provision, section, subsection, sentence, clause, phrase, or word thereof, irrespective of the fact that any one or more provision, section, subsection, sentence, clause, phrase, or word be declared unconstitutional.

History

(2011-405, s. 1.)

§ 90-21.100. Short title.

This Article shall be known and may be cited as the Volunteer Health Care Services Act.

History

(2012-155, s. 1.)

§ 90-21.101. Findings.

1. The General Assembly makes the following findings:
   1. Access to high-quality health care services is a concern of all persons.
   2. Access to high-quality health care services may be limited for some residents of this State, particularly those who reside in remote, rural areas or in the inner city.
   3. Physicians and other health care providers have traditionally worked to ensure broad access to health care services.
   4. Many health care providers from North Carolina and elsewhere are willing to volunteer their services to address the health care needs of North Carolinians who may otherwise not be able to obtain high-quality health care services.
2. The General Assembly further finds that it is the public policy of this State to encourage and facilitate the voluntary provision of health care services.

History

(2012-155, s. 1.)

§ 90-21.102. Definitions.

The following definitions apply in this Article:

1. Department. - The North Carolina Department of Health and Human Services.
2. Free clinic. - A nonprofit, 501(c)(3) tax-exempt organization organized for the purpose of providing health care services without charge or for a minimum fee to cover administrative costs.
3. Health care provider. - Any person who:
   1. Is licensed to practice as a physician or a physician assistant under Article 1 of this Chapter.
   2. Holds a limited volunteer license under G.S. 90-12.1A.
   3. Holds a retired limited volunteer license under G.S. 90-12.1B.
   4. Holds a physician assistant limited volunteer license under G.S. 90-12.4.
   5. Holds a physician assistant retired limited volunteer license under 90-12.4B.
   6. Is a volunteer health care professional to whom G.S. 90-21.16 applies.
   7. Is licensed to practice dentistry under Article 2 of this Chapter.
   8. Is licensed to practice pharmacy under Article 4A of this Chapter.
   9. Is licensed to practice optometry under Article 6 of this Chapter.
   10. Is licensed to practice as a registered nurse or licensed practical nurse under Article 9A of this Chapter.
   11. Is licensed to practice as a dental hygienist under Article 16 of this Chapter.
   12. Holds a license as a registered licensed optician under Article 17 of this Chapter.
   13. Is licensed to practice as a physician, physician assistant, dentist, pharmacist, optometrist, registered nurse, licensed practical nurse, dental hygienist, or optician under provisions of law of another state of the United States comparable to the provisions referenced in sub-subdivisions a. through l. of this subdivision.
4. Sponsoring organization. - Any nonprofit organization that organizes or arranges for the voluntary provision of health care services pursuant to this Article.
5. Voluntary provision of health care services. - The provision of health care services by a health care provider in association with a sponsoring organization in which both of the following circumstances exist:
   1. The health care services are provided without charge to the recipient of the services or to a third party on behalf of the recipient.
   2. The health care provider receives no compensation or other consideration in exchange for the health care services provided.

For the purposes of this Article, the provision of health care services in nonprofit community health centers, local health department facilities, free clinic facilities, or at a provider's place of employment when the patient is referred by a nonprofit community health referral service shall not be considered the voluntary provision of health care.

History

(2012-155, s. 1; 2012-194, s. 47(a); 2013-49, s. 2.)

Effect of Amendments. - Session Laws 2012-194, s. 47(a), effective January 1, 2013, in subdivision (3)m, substituted "through l. " for "through n."; and in paragraph following subdivision (5)b, substituted "nonprofit" for "non-profit" twice and substituted "provider's" for "providers."

Session Laws 2013-49, s. 2, effective October 1, 2013, deleted "and that maintains liability insurance covering the acts and omissions of the free clinic and any liability pursuant to G.S. 90-21.16(a)" at the end of subdivision (2). For applicability, see Editor's note.

§ 90-21.103. Limitation on duration of voluntary health care services.

A sponsoring organization duly registered in accordance with G.S. 90-21.104 may organize or arrange for the voluntary provision of health care services at a location in this State for a period not to exceed seven calendar days in any calendar year.

History

(2012-155, s. 1.)

§ 90-21.104. Registration, reporting, and record-keeping requirements.

1. A sponsoring organization shall not organize or arrange for the voluntary provision of health care services in this State without first registering with the Department on a form prescribed by the Department. The registration form shall contain all of the following information:
   1. The name of the sponsoring organization.
   2. The name of the principal individuals who are the officers or organizational officials responsible for the operation of the sponsoring organization.
   3. The street address, city, zip code, and county of the sponsoring organization's principal office and each of the principal individuals described in subdivision (2) of this subsection.
   4. Telephone numbers for the principal office of the sponsoring organization and for each of the principal individuals described in subdivision (2) of this subsection.
   5. Any additional information requested by the Department.
2. Each sponsoring organization that applies for registration under this Article shall pay a one-time registration fee in the amount of fifty dollars ($50.00), which it shall submit to the Department along with the completed registration form required by subsection (a) of this section. Upon approval by the Department, a sponsoring organization's registration remains valid unless revoked by the Department pursuant to subsection (f) of this section.
3. Upon any change in the information required under subsection (a) of this section, the sponsoring organization shall notify the Department of the change, in writing, within 30 days after the effective date of the change.
4. Each registered sponsoring organization has the duty and responsibility to do all of the following:
   1. Except as provided in this subdivision, by no later than 14 days before a sponsoring organization initiates voluntary health care services in this State, the sponsoring organization shall submit to the Department a list containing the following information regarding each health care provider who is to provide voluntary health care services on behalf of the sponsoring organization during any part of the time period in which the sponsoring organization is authorized to provide voluntary health care services in the State:
      1. Name.
      2. Date of birth.
      3. State of licensure.
      4. License number.
      5. Area of practice.
      6. Practice address.
   2. Beginning April 1, 2013, submit quarterly reports to the Department identifying all health care providers who engaged in the provision of voluntary health care services in association with the sponsoring organization in this State during the preceding calendar quarter. The quarterly report must include the date, place, and type of voluntary health care services provided by each health care provider.
   3. Maintain a list of health care providers associated with its provision of voluntary health care services in this State. For each health care provider listed, the sponsoring organization shall maintain a copy of a current license or statement of exemption from licensure or certification. For health care providers currently licensed or certified under this Chapter, the sponsoring organization may maintain a copy of the health care provider's license or certification verification obtained from a State-sponsored Internet Web site.
   4. Maintain records of the quarterly reports and records required under this subsection for a period of five years from the date of voluntary service and make these records available upon request to any State licensing board established under this Chapter.
5. Compliance with subsections (a) through (d) of this section is prima facie evidence that the sponsoring organization has exercised due care in its selection of health care providers.
6. The Department may revoke the registration of any sponsoring organization that fails to comply with the requirements of this Article. A sponsoring organization may challenge the Department's decision to revoke its registration by filing a contested case under Article 3 of Chapter 150B of the General Statutes.
7. The Department may waive any of the requirements of this section during a natural disaster or other emergency circumstance.

By no later than 3 days prior to voluntary health care services being rendered, a sponsoring organization may amend the list to add health care providers defined in G.S. 90-21.102(3)a. through G.S. 90-21.102(3) l .

History

(2012-155, s. 1; 2012-194, s. 47(b).)

Effect of Amendments. - Session Laws 2012-194, s. 47(b), effective January 1, 2013, substituted "G.S. 90-21.102(3) l ." for "G.S. 90-21.102(3)m." in the paragraph following subdivision "(d)(1)f."

§ 90-21.105. Department and licensure boards to review licensure status of volunteers.

The Department shall forward the information received from a sponsoring organization under G.S. 90-21.104(d)(1) to the appropriate licensure board within seven days after receipt. Upon receipt of any information or notice from a licensure board that a health care provider on the list submitted by the sponsoring organization pursuant to G.S. 90-21.104(d)(1) is not licensed, authorized, or in good standing, or is the subject of an investigation or pending disciplinary action, the Department shall immediately notify the sponsoring organization that the health care provider is not permitted to engage in the voluntary provision of health care services on behalf of the sponsoring organization.

History

(2012-155, s. 1.)

§ 90-21.106. On-site requirements.

A sponsoring organization that organizes or arranges for the provision of voluntary health care services at a location in this State shall ensure that at least one health care provider licensed to practice in this State, with access to the controlled substances reporting system established under G.S. 90-113.73, is located on the premises where the provision of voluntary health care services is occurring. In addition, every sponsoring organization shall post in a clear and conspicuous manner the following notice in the premises where the provision of voluntary health care services is occurring:

"NOTICE

Under North Carolina law, there is no liability for damages for injuries or death alleged to have occurred by reason of an act or omission in the health care provider's voluntary provision of health care services, unless it is established that the injuries or death were caused by gross negligence, wanton conduct, or intentional wrongdoing on the part of the health care provider."

History

(2012-155, s. 1.)

§ 90-21.107. Additional licensure not required for certain volunteers.

1. A health care provider who engages in the voluntary provision of health care services in association with a sponsoring organization for no more than seven days during any calendar year shall not be required to obtain additional licensure or authorization in connection therewith if the health care provider meets any of the following criteria:
   1. The health care provider is duly licensed or authorized under the laws of this State to practice in the area in which the health care provider is providing voluntary health care services and is in good standing with the applicable licensing board.
   2. The health care provider lawfully practices in another state or district in the area in which the health care provider is providing voluntary health care services and is in good standing with the applicable licensing board.
2. This exemption from additional licensure or authorization requirements does not apply if any of the following circumstances exist:
   1. The health care provider has been subjected to public disciplinary action or is the subject of a pending disciplinary proceeding in any state in which the health care provider is or ever has been licensed.
   2. The health care provider's license has been suspended or revoked pursuant to disciplinary proceedings in any state in which the health care provider is or ever has been licensed.
   3. The health care provider renders services outside the scope of practice authorized by the health care provider's license or authorization.

History

(2012-155, s. 1.)

§ 90-21.108. Immunity from civil liability for acts or omissions.

1. Subject to subsection (b) of this section, a health care provider who engages in the voluntary provision of health care services at any location in this State in association with a sponsoring organization shall not be liable for damages for injuries or death alleged to have occurred by reason of an act or omission in the health care provider's voluntary provision of health care services, unless it is established that the injuries or death were caused by gross negligence, wanton conduct, or intentional wrongdoing on the part of the health care provider.
2. The immunity from civil liability provided by subsection (a) of this section does not apply if any of the following circumstances exist:
   1. The health care provider receives, directly or indirectly, any type of compensation, benefits, or other consideration of any nature from any person for the health care services provided.
   2. The health care services provided are not part of the health care provider's training or assignment.
   3. The health care services provided are not within the scope of the health care provider's license or authority.
   4. The health care services provided are not authorized by the appropriate authorities to be performed at the location.

History

(2012-155, s. 1.)

§§ 90-21.109 through 90-21.119: Reserved for future codification purposes.

§ 90-21.120. Definitions.

The following definitions apply in this Article:

1. Abortion. - As defined in G.S. 90-21.81(1).
2. Attempt to perform an abortion. - As defined in G.S. 90-21.81(2).
3. Woman. - As defined in G.S. 90-21.81(11).

History

(2013-366, s. 3(a).)

§ 90-21.121. Sex-selective abortion prohibited.

1. Notwithstanding any of the provisions of G.S. 14-45.1, no person shall perform or attempt to perform an abortion upon a woman in this State with knowledge, or an objective reason to know, that a significant factor in the woman seeking the abortion is related to the sex of the unborn child.
2. Nothing in this section shall be construed as placing an affirmative duty on a physician to inquire as to whether the sex of the unborn child is a significant factor in the pregnant woman seeking the abortion.

History

(2013-366, s. 3(a).)

§ 90-21.122. Civil remedies.

1. Any person who violates any provision of this Article shall be liable for damages, including punitive damages pursuant to Chapter 1D of the General Statutes, and may be enjoined from future acts.
2. A claim for damages against any person who has violated a provision of this Article may be sought by (i) the woman upon whom an abortion was performed or attempted in violation of this Article, (ii) any person who is the spouse or guardian of the woman upon whom an abortion was performed or attempted in violation of this Article, or (iii) a parent of the woman upon whom an abortion was performed or attempted in violation of this Article if the woman was a minor at the time the abortion was performed or attempted.
3. A claim for injunctive relief against any person who has violated a provision of this Article may be sought by (i) the woman upon whom an abortion was performed or attempted in violation of this Article, (ii) any person who is the spouse, guardian, or current or former licensed health care provider of the woman upon whom an abortion was performed or attempted in violation of this Article, or (iii) a parent of the woman upon whom an abortion was performed or attempted in violation of this Article if the woman was a minor at the time the abortion was performed or attempted.
4. Any person who violates the terms of an injunction issued in accordance with this section shall be subject to civil contempt and shall be fined ten thousand dollars ($10,000) for the first violation, fifty thousand dollars ($50,000) for the second violation, and one hundred thousand dollars ($100,000) for the third violation and each subsequent violation. Each performance or attempted performance of an abortion in violation of the terms of an injunction is a separate violation. The fine shall be the exclusive penalty for civil contempt under this subsection. The fine under this subsection shall be cumulative. No fine shall be assessed against the woman upon whom an abortion is performed or attempted.
5. The clear proceeds of any civil penalty assessed under this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.

History

(2013-366, s. 3(a).)

§ 90-21.123. Protection of privacy in court proceedings.

In every proceeding or action brought under this Article, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure if the woman does not give her consent to the disclosure. The court, upon motion or sua sponte, shall make the ruling and, upon determining that the woman's anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the woman's identity from public disclosure. Each order issued pursuant to this section shall be accompanied by specific written findings explaining (i) why the anonymity of the woman should be preserved from public disclosure, (ii) why the order is essential to that end, (iii) how the order is narrowly tailored to serve that interest, and (iv) why no reasonable, less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone who brings an action under G.S. 90-21.122 shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

History

(2013-366, s. 3(a).)

§§ 90-21.124 through 90-21.129: Reserved for future codification purposes.

§ 90-21.130. Short title.

This Article shall be known and may be cited as the Emergency or Disaster Treatment Protection Act.

History

(2020-3, s. 3D.7(a); 2021-3, s. 2.13(a).)

Editor's Note. - Session Laws 2020-3, s. 3D.7(b), as amended by Session Laws 2021-3, s. 2.13(a), made this Article effective May 4, 2020, and applicable to acts or omissions occurring during either the pendency of Executive Order No. 116 issued on March 10, 2020, by Governor Roy A. Cooper, or during any subsequent time period during which a state of emergency is declared to be in effect by the Governor, in any year, in response to COVID-19.

Session Laws 2021-3, s. 2.13(b), provides: "The clarifications in this section [clarifications to Session Laws 2020-3, s. 3D.7(b) as amended by Session Laws 2021-3, s. 2.13(a)] are consistent with the intent and purpose of this section as originally enacted in S.L. 2020-3."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 5, is a severability clause.

Legal Periodicals. - For article, "Fraud in the Pandemic: How COVID-19 Affects Qui Tam Whistleblowers and The False Claims Act," see 43 Campbell L. Rev. 273 (2021).

§ 90-21.131. Purpose.

It is the purpose of this Article to promote the public health, safety, and welfare of all citizens by broadly protecting the health care facilities and health care providers in this State from liability that may result from treatment of individuals during the COVID-19 public health emergency under conditions resulting from circumstances associated with the COVID-19 public health emergency. A public health emergency that occurs on a statewide basis requires an enormous response from State, federal, and local governments working in concert with private and public health care providers in the community. The rendering of treatment to patients during such a public health emergency is a matter of vital State concern affecting the public health, safety, and welfare of all citizens.

History

(2020-3, s. 3D.7(a); 2021-3, s. 2.13(a).)

Editor's Note. - Session Laws 2020-3, s. 3D.7(b), as amended by Session Laws 2021-3, s. 2.13(a), made this Article effective May 4, 2020, and applicable to acts or omissions occurring during either the pendency of Executive Order No. 116 issued on March 10, 2020, by Governor Roy A. Cooper, or during any subsequent time period during which a state of emergency is declared to be in effect by the Governor, in any year, in response to COVID-19.

Session Laws 2021-3, s. 2.13(b), provides: "The clarifications in this section [clarifications to Session Laws 2020-3, s. 3D.7(b) as amended by Session Laws 2021-3, s. 2.13(a)] are consistent with the intent and purpose of this section as originally enacted in S.L. 2020-3."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 5, is a severability clause.

§ 90-21.132. Definitions.

The following definitions apply in this Article:

1. COVID-19. - Coronavirus disease 2019.
2. COVID-19 emergency declaration. - Executive Order No. 116 issued March 10, 2020, by Governor Roy A. Cooper, including any amendments issued by executive order, subject to extensions under Chapter 166A of the General Statutes.
3. COVID-19 emergency rule. - Any executive order, declaration, directive, request, or other State or federal authorization, policy statement, rule making, or regulation that waives, suspends, or modifies applicable State or federal law regarding scope of practice, including modifications authorizing health care providers licensed in another state to practice in this State, or the delivery of care, including those regarding the facility space in which care is delivered and which equipment is used during the COVID-19 emergency declaration.
4. Damages. - Economic or noneconomic losses for harm to an individual.
5. Harm. - Physical and nonphysical contact that results in injury to or death of an individual.
6. Health care facility. - Any entity licensed pursuant to Chapter 122C, 131D, or 131E of the General Statutes or Article 64 of Chapter 58 of the General Statutes, and any clinical laboratory certified under the federal Clinical Laboratory Improvement Amendments in section 353 of the Public Health Service Act (42 U.S.C. § 263a).
7. Health care provider. -
   1. An individual who is licensed, certified, or otherwise authorized under Chapter 90 or 90B of the General Statutes to provide health care services in the ordinary course of business or practice of a profession or in an approved education or training program.
   2. A health care facility where health care services are provided to patients, residents, or others to whom such services are provided as allowed by law.
   3. Individuals licensed under Chapter 90 of the General Statutes or practicing under a waiver in accordance with G.S. 90-12.5.
   4. Any emergency medical services personnel as defined in G.S. 131E-155(7).
   5. Any individual providing health care services within the scope of authority permitted by a COVID-19 emergency rule.
   6. Any individual who is employed as a health care facility administrator, executive, supervisor, board member, trustee, or other person in a managerial position or comparable role at a health care facility.
   7. An agent or employee of a health care facility that is licensed, certified, or otherwise authorized to provide health care services.
   8. An officer or director of a health care facility.
   9. An agent or employee of a health care provider who is licensed, certified, or otherwise authorized to provide health care services.
   10. An individual who volunteers to assist a State agency, department, or approved organization in the administration of COVID-19 vaccinations, including clinical, clinical support, and nonclinical support activities.
8. Health care service. - Treatment, clinical direction, supervision, management, or administrative or corporate service, provided by a health care facility or a health care provider during the period of the COVID-19 emergency declaration, regardless of the location in this State where the service is rendered:
   1. To provide testing, diagnosis, or treatment of a health condition, illness, injury, or disease related to a confirmed or suspected case of COVID-19.
   2. To dispense drugs, medical devices, medical appliances, or medical goods for the treatment of a health condition, illness, injury, or disease related to a confirmed or suspected case of COVID-19.
   3. To provide care to any other individual who presents or otherwise seeks care at or from a health care facility or to a health care provider during the period of the COVID-19 emergency declaration.
9. Volunteer organization. - Any medical organization, company, or institution that has made its facility or facilities available to support the State's response and activities under the COVID-19 emergency declaration and in accordance with any applicable COVID-19 emergency rule.

History

(2020-3, s. 3D.7(a); 2021-3, ss. 2.13(a), 2.14(a).)

Editor's Note. - Session Laws 2020-3, s. 3D.7(b), as amended by Session Laws 2021-3, s. 2.13(a), made this Article effective May 4, 2020, and applicable to acts or omissions occurring during either the pendency of Executive Order No. 116 issued on March 10, 2020, by Governor Roy A. Cooper, or during any subsequent time period during which a state of emergency is declared to be in effect by the Governor, in any year, in response to COVID-19.

Session Laws 2021-3, s. 2.13(b), provides: "The clarifications in this section [clarifications to Session Laws 2020-3, s. 3D.7(b) as amended by Session Laws 2021-3, s. 2.13(a)] are consistent with the intent and purpose of this section as originally enacted in S.L. 2020-3."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 5, is a severability clause.

Session Laws 2021-3, s. 2.14(b), made sub-subdivision (7)j., as added by Session Laws 2021-3, s. 2.14(a), effective March 11, 2021, and applicable retroactively to acts or omissions occurring during the time of Executive Order No. 116 issued on March 10, 2020, by Governor Roy A. Cooper.

Effect of Amendments. - Session Laws 2021-3, s. 2.14(a), added sub-subdivision (7)j. For effective date and applicability, see editor's note.

§ 90-21.133. Immunity.

1. Notwithstanding any law to the contrary, except as provided in subsection (b) of this section, any health care facility, health care provider, or entity that has legal responsibility for the acts or omissions of a health care provider shall have immunity from any civil liability for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services only if all of the following apply:
   1. The health care facility, health care provider, or entity is arranging for or providing health care services during the period of the COVID-19 emergency declaration, including, but not limited to, the arrangement or provision of those services pursuant to a COVID-19 emergency rule.
   2. The arrangement or provision of health care services is impacted, directly or indirectly:
      1. By a health care facility, health care provider, or entity's decisions or activities in response to or as a result of the COVID-19 pandemic; or
      2. By the decisions or activities, in response to or as a result of the COVID-19 pandemic, of a health care facility or entity where a health care provider provides health care services.
   3. The health care facility, health care provider, or entity is arranging for or providing health care services in good faith.
2. The immunity from any civil liability provided in subsection (a) of this section shall not apply if the harm or damages were caused by an act or omission constituting gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care provider providing health care services; provided that the acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered to be gross negligence, reckless misconduct, or intentional infliction of harm.
3. Notwithstanding any law to the contrary, a volunteer organization shall have immunity from any civil liability for any harm or damages occurring in or at its facility or facilities arising from the State's response and activities under the COVID-19 emergency declaration and in accordance with any applicable COVID-19 emergency rule, unless it is established that such harm or damages were caused by the gross negligence, reckless misconduct, or intentional infliction of harm by the volunteer organization.

History

(2020-3, s. 3D.7(a); 2021-3, s. 2.13(a).)

Editor's Note. - Session Laws 2020-3, s. 3D.7(b), as amended by Session Laws 2021-3, s. 2.13(a), made this Article effective May 4, 2020, and applicable to acts or omissions occurring during either the pendency of Executive Order No. 116 issued on March 10, 2020, by Governor Roy A. Cooper, or during any subsequent time period during which a state of emergency is declared to be in effect by the Governor, in any year, in response to COVID-19.

Session Laws 2021-3, s. 2.13(b), provides: "The clarifications in this section [clarifications to Session Laws 2020-3, s. 3D.7(b) as amended by Session Laws 2021-3, s. 2.13(a)] are consistent with the intent and purpose of this section as originally enacted in S.L. 2020-3."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 5, is a severability clause.

§ 90-21.134. Severability.

This Article shall be liberally construed to effectuate its public health emergency purpose as outlined in G.S. 90-121.131. The provisions of this Article are severable. If any part of this Article is declared to be invalid by a court, the invalidity does not affect other parts of this Article that can be given effect without the invalid provision.

History

(2020-3, s. 3D.7(a); 2021-3, s. 2.13(a).)

Editor's Note. - Session Laws 2020-3, s. 3D.7(b), as amended by Session Laws 2021-3, s. 2.13(a), made this Article effective May 4, 2020, and applicable to acts or omissions occurring during either the pendency of Executive Order No. 116 issued on March 10, 2020, by Governor Roy A. Cooper, or during any subsequent time period during which a state of emergency is declared to be in effect by the Governor, in any year, in response to COVID-19.

Session Laws 2021-3, s. 2.13(b), provides: "The clarifications in this section [clarifications to Session Laws 2020-3, s. 3D.7(b) as amended by Session Laws 2021-3, s. 2.13(a)] are consistent with the intent and purpose of this section as originally enacted in S.L. 2020-3."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 5, is a severability clause.

§ 90-22. Practice of dentistry regulated in public interest; Article liberally construed; Board of Dental Examiners; composition; qualifications and terms of members; vacancies; nominations and elections; compensation; expenditures by Board.

1. The practice of dentistry in the State of North Carolina is hereby declared to affect the public health, safety and welfare and to be subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the dental profession merit and receive the confidence of the public and that only qualified persons be permitted to practice dentistry in the State of North Carolina. This Article shall be liberally construed to carry out these objects and purposes.
2. The North Carolina State Board of Dental Examiners heretofore created by Chapter 139, Public Laws 1879 and by Chapter 178, Public Laws 1915, is hereby continued as the agency of the State for the regulation of the practice of dentistry in this State. Said Board of Dental Examiners shall consist of six dentists who are licensed to practice dentistry in North Carolina, one dental hygienist who is licensed to practice dental hygiene in North Carolina and one person who shall be a citizen and resident of North Carolina and who shall be licensed to practice neither dentistry nor dental hygiene. The dental hygienist or the consumer member cannot participate or vote in any matters of the Board which involves the issuance, renewal or revocation of the license to practice dentistry in the State of North Carolina. The consumer member cannot participate or vote in any matters of the Board which involve the issuance, renewal or revocation of the license to practice dental hygiene in the State of North Carolina. Members of the Board licensed to practice dentistry in North Carolina shall have been elected in an election held as hereinafter provided in which every person licensed to practice dentistry in North Carolina and residing or practicing in North Carolina shall be entitled to vote. Each member of said Board shall be elected for a term of three years and until his successor shall be elected and shall qualify. Each year there shall be elected two dentists for such terms of three years each. Every three years there shall be elected one dental hygienist for a term of three years. Dental hygienists shall be elected to the Board in an election held in accordance with the procedures hereinafter provided in which those persons licensed to practice dental hygiene in North Carolina and residing or practicing in North Carolina shall be entitled to vote. Every three years a person who is a citizen and resident of North Carolina and licensed to practice neither dentistry nor dental hygiene shall be appointed to the Board for a term of three years by the Governor of North Carolina. Any vacancy occurring on said Board shall be filled by a majority vote of the remaining members of the Board to serve until the next regular election conducted by the Board, at which time the vacancy will be filled by the election process provided for in this Article, except that when the seat on the Board held by a person licensed to practice neither dentistry nor dental hygiene in North Carolina shall become vacant, the vacancy shall be filled by appointment by the Governor for the period of the unexpired term. No dentist shall be nominated for or elected to membership on said Board, unless, at the time of such nomination and election such person is licensed to practice dentistry in North Carolina and actually engaged in the practice of dentistry. No dental hygienist shall be nominated for or elected to membership on said Board unless, at the time of such nomination and election, such person is licensed to practice dental hygiene in North Carolina and is currently employed in dental hygiene in North Carolina. No person shall be nominated, elected, or appointed to serve more than two consecutive terms on said Board.
3. Nominations and elections of members of the North Carolina State Board of Dental Examiners shall be as follows:
   1. An election shall be held each year to elect successors to those members whose terms are expiring in the year of the election, each successor to take office on the first day of August following the election and to hold office for a term of three years and until his successor has been elected and shall qualify; provided that if in any year the election of the members of such Board for that year shall not have been completed by August 1 of that year, then the said members elected that year shall take office immediately after the completion of the election and shall hold office until the first of August of the third year thereafter and until their successors are elected and qualified. Persons appointed to the Board by the Governor shall take office on the first day of August following their appointment and shall hold office for a term of three years and until such person's successor has been appointed and shall qualify; provided that if in any year the Governor shall not have appointed a person by August first of that year, then the said member appointed that year shall take office immediately after his appointment and shall hold office until the first of August of the third year thereafter and until such member's successor is appointed and qualified.
   2. Every dentist with a current North Carolina license residing or practicing in North Carolina shall be eligible to vote in elections of dentists to the Board. Every dental hygienist with a current North Carolina license residing or practicing in North Carolina shall be eligible to vote in elections of dental hygienists to the Board. The holding of such a license to practice dentistry or dental hygiene in North Carolina shall constitute registration to vote in such elections. The list of licensed dentists and dental hygienists shall constitute the registration list for elections to the appropriate seats on the Board.
   3. All elections shall be conducted by the Board of Dental Examiners which is hereby constituted a Board of Dental Elections. If a member of the Board of Dental Examiners whose position is to be filled at any election is nominated to succeed himself, and does not withdraw his name, he shall be disqualified to serve as a member of the Board of Dental Elections for that election and the remaining members of the Board of Dental Elections shall proceed and function without his participation.
   4. Nomination of dentists for election shall be made to the Board of Dental Elections by a written petition signed by not less than 10 dentists licensed to practice in North Carolina and residing or practicing in North Carolina. Nomination of dental hygienists for election shall be made to the Board of Dental Elections by a written petition signed by not less than 10 dental hygienists licensed to practice in North Carolina and residing or practicing in North Carolina. Such petitions shall be filed with said Board of Dental Elections subsequent to January 1 of the year in which the election is to be held and not later than midnight of the twentieth day of May of such year, or not later than such earlier date (not before April 1) as may be set by the Board of Dental Elections: provided, that not less than 10 days' notice of such earlier date shall be given to all dentists or dental hygienists qualified to sign a petition of nomination. The Board of Dental Elections shall, before preparing ballots, notify all persons who have been duly nominated of their nomination.
   5. Any person who is nominated as provided in subdivision (4) above may withdraw his name by written notice delivered to the Board of Dental Elections or its designated secretary at any time prior to the closing of the polls in any election.
   6. Following the close of nominations, there shall be prepared, under and in accordance with such rules and regulations as the Board of Dental Elections shall prescribe, ballots containing, in alphabetical order, the names of all nominees; and each ballot shall have such method of identification, and such instructions and requirements printed thereon, as shall be prescribed by the Board of Dental Elections. At such time as may be fixed by the Board of Dental Elections a ballot and a return official envelope addressed to said Board shall be mailed to each person entitled to vote in the election being conducted, together with a notice by said Board designating the latest day and hour for return mailing and containing such other items as such Board may see fit to include. The said envelope shall bear a serial number and shall have printed on the left portion of its face the following:
   7. The date and hour fixed by the Board of Dental Elections as the latest time for delivery by hand or mailing of said return ballots shall be not earlier than the tenth day following the mailing of the envelopes and ballots to the voters.
   8. The said ballots shall be canvassed by the Board of Dental Elections beginning at noon on a day and at a place set by said Board and announced by it in the notice accompanying the sending out of the ballots and envelopes, said date to be not later than four days after the date fixed by the Board for the closing of the balloting. The canvassing shall be made publicly and any licensed dentists may be present. The counting of ballots shall be conducted as follows: The envelopes shall be displayed to the persons present and an opportunity shall be given to any person present to challenge the qualification of the voter whose signature appears on the envelope or to challenge the validity of the envelope. Any envelope (with enclosed ballot) challenged shall be set aside, and the challenge shall be heard later or at that time by said Board. After the envelopes have been so exhibited, those not challenged shall be opened and the ballots extracted therefrom, insofar as practicable without showing the marking on the ballots, and there shall be a final and complete separation of each envelope and its enclosed ballot. Thereafter each ballot shall be presented for counting, shall be displayed and, if not challenged, shall be counted. No ballot shall be valid if it is marked for more nominees than there are positions to be filled in that election: provided, that no ballot shall be rejected for any technical error unless it is impossible to determine the voter's choices or choice from the ballot. The counting of the ballots shall be continued until completed. During the counting, challenge may be made to any ballot on the grounds only of defects appearing on the face of the ballot. The said Board may decide the challenge immediately when it is made or it may put aside the ballot and determine the challenge upon the conclusion of the counting of the ballots.
   9. 1. Where there is more than one nominee eligible for election to a single seat: (9) a. Where there is more than one nominee eligible for election to a single seat:
         1. The nominee receiving a majority of the votes cast shall be declared elected.
         2. In the event that no nominee receives a majority, a second election shall be conducted between the two nominees who receive the highest number of votes.
      2. Where there are more than two nominees eligible for election to either of two seats at issue in the same election:
         1. A majority shall be any excess of the sum ascertained by dividing the total number of votes cast for all nominees by four.
         2. In the event that more than two nominees receive a majority of the votes cast, the two receiving the highest number of votes shall be declared elected.
         3. In the event that only one of the nominees receives a majority, he shall be declared elected and the Board of Dental Examiners shall thereupon order a second election to be conducted between the two nominees receiving the next to highest number of votes.
         4. In the event that no nominee receives a majority, a second election shall be conducted between the four candidates receiving the highest number of votes. At such second election, the two nominees receiving the highest number of votes shall be declared elected.
      3. In any election, if there is a tie between candidates, the tie shall be resolved by the vote of the Board of Dental Examiners, provided that if a member of that Board is one of the candidates in the tie, he may not participate in such vote.
   10. In the event there shall be required a second election, there shall be followed the same procedure as outlined in the paragraphs above subject to the same limitations and requirements: provided, that if the second election is between four candidates, then the two receiving the highest number of votes shall be declared elected.
   11. In the case of the death or withdrawal of a candidate prior to the closing of the polls in any election, he shall be eliminated from the contest and any votes cast for him shall be disregarded. If, at any time after the closing of the period for nominations because of lack of plural or proper nominations or death, or withdrawal, or disqualification or any other reason, there shall be (i) only two candidates for two positions, they shall be declared elected by the Board of Dental Elections, or (ii) only one candidate for one position, he shall be declared elected by the Board of Dental Elections, or (iii) no candidate for two positions, the two positions shall be filled by the Board of Dental Examiners, or (iv) no candidate for one position, the position shall be filled by the Board of Dental Examiners, or (v) one candidate for two positions, the one candidate shall be declared elected by the Board of Dental Elections and one qualified dentist shall be elected to the other position by the Board of Dental Examiners. In the event of the death or withdrawal of a candidate after election but before taking office, the position to which he was elected shall be filled by the Board of Dental Examiners. In the event of the death or resignation of a member of the Board of Dental Examiners, after taking office, his position shall be filled for the unexpired term by the Board of Dental Examiners.
   12. An official list of licensed dentists shall be kept at an office of the Board of Dental Elections and shall be open to the inspection of any person at all times. Copies may be made by any licensed dentist. As soon as the voting in any election begins a list of the licensed dentists shall be posted in such office of said Board and indication by mark or otherwise shall be made on that list to show whether a ballot-enclosing envelope has been returned.
   13. All envelopes enclosing ballots and all ballots shall be preserved and held separately by the Board of Dental Elections for a period of six months following the close of an election.
   14. From any decision of the Board of Dental Elections relative to the conduct of such elections, appeal may be taken to the courts in the manner otherwise provided by Chapter 150B of the General Statutes of North Carolina.
   15. The Board of Dental Elections is authorized to make rules and regulations relative to the conduct of these elections, provided same are not in conflict with the provisions of this section and provided that notice shall be given to all licensed dentists residing in North Carolina.
4. For service on the Board of Dental Elections, the members of such Board shall receive the per diem compensation and expenses allowed by this Article for service as members of the Board of Dental Examiners. The Board of Dental Elections is authorized and empowered to expend from funds collected under the provisions of this Article such sum or sums as it may determine necessary in the performance of its duties as a Board of Dental Elections, said expenditures to be in addition to the authorization contained in G.S. 90-43 and to be disbursed as provided therein.
5. The Board of Dental Elections is authorized to appoint such secretary or secretaries and/or assistant secretary or assistant secretaries to perform such functions in connection with such nominations and elections as said Board shall determine, provided that any protestant or contestant shall have the right to a hearing by said Board in connection with any challenge of a voter, or an envelope, or a ballot or the counting of an election. Said Board is authorized to designate an office or offices for the keeping of lists of registered dentists, for the issuance and the receipt of envelopes and ballots.

"Serial No. of Envelope ___________________________________________________ Signature of Voter ________________________________________________________ Address of Voter __________________________________________________________ ________________________________________________________________________ (Note: The enclosed ballot is not valid unless the signature of the voter is on this envelope)."

The Board of Dental Elections may cause to be printed or stamped or written on said envelope such additional notice as it may see fit to give. No ballot shall be valid or shall be counted in an election unless, within the time hereinafter provided, it has been delivered to said Board by hand or by mail and shall be sealed. The said Board by rule may make provision for replacement of lost or destroyed envelopes or ballots upon making proper provisions to safeguard against abuse.

History

(1935, c. 66, s. 1; 1957, c. 592, s. 1; 1961, c. 213, s. 1; 1971, c. 755, s. 1; 1973, c. 1331, s. 3; 1979, 2nd Sess., c. 1195, ss. 1-5; 1981, c. 751, ss. 1, 2; 1987, c. 827, s. 1.)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, ss. 1-4, provides clarification of certain rules and regulations governing the North Carolina Board of Dental Examiners. For full provisions, see notes under the same catchline in G.S. 90-28.

Legal Periodicals. - For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective,” see 43 Campbell L. Rev. 423 (2021).

§ 90-23. Officers; common seal.

The North Carolina State Board of Dental Examiners shall, at each annual meeting thereof, elect one of its members president and one secretary-treasurer. The common seal which has already been adopted by said Board, pursuant to law, shall be continued as the seal of said Board.

History

(1935, c. 66, s. 2.)

§ 90-24. Quorum; adjourned meetings.

A majority of the members of said Board shall constitute a quorum for the transaction of business and at any meeting of the Board, if a majority of the members are not present at the time and the place appointed for the meeting, those members of the Board present may adjourn from day to day until a quorum is present, and the action of the Board taken at any adjourned meeting thus had shall have the same force and effect as if had upon the day and at the hour of the meeting called and adjourned from day to day.

History

(1935, c. 66, s. 2; 1981, c. 751, s. 3.)

§ 90-25. Records and transcripts.

The said Board shall keep a record of its transactions at all annual or special meetings and shall provide a record book in which shall be entered the names and proficiency of all persons to whom licenses may be granted under the provisions of law. The said book shall show, also, the license number and the date upon which such license was issued and shall show such other matters as in the opinion of the Board may be necessary or proper. Said book shall be deemed a book of record of said Board and a transcript of any entry therein or a certification that there is not entered therein the name, proficiency and license number or date of granting such license, certified under the hand of the secretary-treasurer, attested by the seal of the North Carolina State Board of Dental Examiners, shall be admitted as evidence in any court of this State when the same shall otherwise be competent.

History

(1935, c. 66, s. 2.)

§ 90-26. Annual and special meetings.

The North Carolina State Board of Dental Examiners shall meet annually on the date and at the time and place as may be determined by the Board, and at such other dates, times, and places as may be determined by action of the Board or by any majority of the members thereof. Notice of the date, time, and place of the annual meeting and of the date, time, and place of any special or called meeting shall be given in writing, by registered or certified mail or personally, to each member of the Board at least 10 days prior to said meeting; provided the requirements of notice may be waived by any member of the Board. At the annual meeting or at any special or called meeting, the said Board shall have the power to conduct examination of applicants and to transact such other business as may come before it, provided that in case of a special meeting, the purpose for which said meeting is called shall be stated in the notice.

History

(1935, c. 66, s. 3; 1961, c. 446, s. 1; 1981, c. 751, s. 4; 1995 (Reg. Sess., 1996), c. 584, s. 5.)

§ 90-27. Judicial powers; additional data for records.

The president of the North Carolina State Board of Dental Examiners, and/or the secretary-treasurer of said Board, shall have the power to administer oaths, issue subpoenas requiring the attendance of persons and the production of papers and records before said Board in any hearing, investigation or proceeding conducted by it. The sheriff or other proper official of any county of the State shall serve the process issued by said president or secretary-treasurer of said Board pursuant to its requirements and in the same manner as process issued by any court of record. The said Board shall pay for the service of all process, such fees as are provided by law for the service of like process in other cases.

Any person who shall neglect or refuse to obey any subpoena requiring him to attend and testify before said Board or to produce books, records or documents shall be guilty of a Class 1 misdemeanor.

The Board shall have the power, upon the production of any papers, records or data, to authorize certified copies thereof to be substituted in the permanent record of the matter in which such books, records or data shall have been introduced in evidence.

History

(1935, c. 66, s. 4; 1993, c. 539, s. 616; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 90-28. Bylaws and regulations; acquisition of property.

1. The North Carolina State Board of Dental Examiners shall have the power to make necessary bylaws and regulations, not inconsistent with the provisions of this Article, regarding any matter referred to in this Article and for the purpose of facilitating the transaction of business by the Board.
2. The Board shall have the power to acquire, hold, rent, encumber, alienate, and otherwise deal with real property in the same manner as a private person or corporation, subject only to approval of the Governor and the Council of State. Collateral pledged by the Board for an encumbrance is limited to the assets, income, and revenues of the Board.

History

(1935, c. 66, s. 5; 2005-366, s. 3.)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

Effect of Amendments. - Session Laws 2005-366, s. 3, effective September 8, 2005, added "acquisition of property" to the section heading; designated the existing provisions of the section as "(a)"; deleted "said" preceding "Board" at the end of subsection (a); added subsection (b); and made a minor punctuation change.

§ 90-28.5. Disasters and emergencies.

If the Governor declares a state of emergency or a county or municipality enacts ordinances under G.S. 153A-121, 160A-174, 166A-19.31, or Article 22 of Chapter 130A of the General Statutes, the North Carolina Board of Dental Examiners may waive the requirements of this Article and Article 16 of this Chapter to permit the provision of dental and dental hygiene services to the public during the state of emergency.

History

(2020-3, s. 3D.1(a).)

Editor's Note. - Session Laws 2020-3, s. 3D.1(b), made this section effective May 4, 2020.

Session Laws 2020-3, s. 3A.1(a), provides: "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. 5, is a severability clause.

§ 90-29. Necessity for license; dentistry defined; exemptions.

1. No person shall engage in the practice of dentistry in this State, or offer or attempt to do so, unless such person is the holder of a valid license or certificate of renewal of license duly issued by the North Carolina State Board of Dental Examiners.
2. A person shall be deemed to be practicing dentistry in this State who does, undertakes or attempts to do, or claims the ability to do any one or more of the following acts or things which, for the purposes of this Article, constitute the practice of dentistry:
   1. Diagnoses, treats, operates, or prescribes for any disease, disorder, pain, deformity, injury, deficiency, defect, or other physical condition of the human teeth, gums, alveolar process, jaws, maxilla, mandible, or adjacent tissues or structures of the oral cavity;
   2. Removes stains, accretions or deposits from the human teeth;
   3. Extracts a human tooth or teeth;
   4. Performs any phase of any operation relative or incident to the replacement or restoration of all or a part of a human tooth or teeth with any artificial substance, material or device;
   5. Corrects the malposition or malformation of the human teeth;
   6. Administers an anesthetic of any kind in the treatment of dental or oral diseases or physical conditions, or in preparation for or incident to any operation within the oral cavity; provided, however, that this subsection shall not apply to a lawfully qualified nurse anesthetist who administers such anesthetic under the supervision and direction of a licensed dentist or physician, or to a registered dental hygienist qualified to administer local anesthetics.
   7. Expired pursuant to Session Laws 1991, c. 678, s. 2.
   8. Takes or makes an impression of the human teeth, gums or jaws;
   9. Makes, builds, constructs, furnishes, processes, reproduces, repairs, adjusts, supplies or professionally places in the human mouth any prosthetic denture, bridge, appliance, corrective device, or other structure designed or constructed as a substitute for a natural human tooth or teeth or as an aid in the treatment of the malposition or malformation of a tooth or teeth, except to the extent the same may lawfully be performed in accordance with the provisions of G.S. 90-29.1 and 90-29.2;
   10. Uses a Roentgen or X-ray machine or device for dental treatment or diagnostic purposes, or gives interpretations or readings of dental Roentgenograms or X rays;
   11. Performs or engages in any of the clinical practices included in the curricula of recognized dental schools or colleges;
   12. Owns, manages, supervises, controls or conducts, either himself, by and through another person or other persons, or by use of any electronic or other digital means, any enterprise wherein any one or more of the acts or practices set forth in subdivisions (1) through (10) above are done, attempted to be done, or represented to be done.
   13. Uses, in connection with his name, any title or designation, such as "dentist," "dental surgeon," "doctor of dental surgery," "D.D.S.," "D.M.D.," or any other letters, words or descriptive matter which, in any manner, represents him as being a dentist able or qualified to do or perform any one or more of the acts or practices set forth in subdivisions (1) through (10) above;
   14. Represents to the public, by any advertisement or announcement, by or through any media, the ability or qualification to do or perform any of the acts or practices set forth in subdivisions (1) through (10) above.
   15. The administration by dentists of diagnostic tests and antibody tests for coronavirus disease 2019 to patients only if such tests have been approved or authorized for emergency use by the United States Food and Drug Administration.
3. The following acts, practices, or operations, however, shall not constitute the unlawful practice of dentistry:
   1. Any act by a duly licensed physician or surgeon performed in the practice of his profession;
   2. The practice of dentistry, in the discharge of their official duties, by dentists in any branch of the Armed Forces of the United States or in the full-time employ of any agency of the United States;
   3. The teaching or practice of dentistry, in dental schools or colleges operated and conducted in this State and approved by the North Carolina State Board of Dental Examiners, by any person or persons licensed to practice dentistry anywhere in the United States or in any country, territory or other recognized jurisdiction until December 31, 2002. On or after January 1, 2003, all dentists previously practicing under G.S. 90-29(c)(3) shall be granted an instructor's license upon application to the Board and payment of the required fee.
   4. The practice of dentistry in dental schools or colleges in this State approved by the North Carolina State Board of Dental Examiners by students enrolled in such schools or colleges as candidates for a doctoral degree in dentistry when such practice is performed as a part of their course of instruction and is under direct supervision of a dentist who is either duly licensed in North Carolina or qualified under subdivision (3) above as a teacher; additionally, the practice of dentistry by such students at State or county institutions with resident populations, hospitals, State or county health departments, area health education centers, nonprofit health care facilities serving low-income populations and approved by the State Health Director or his designee and approved by the Board of Dental Examiners, and State or county-owned nursing homes; subject to review and approval or disapproval by the said Board of Dental Examiners when in the opinion of the dean of such dental school or college or his designee, the students' dental education and experience are adequate therefor, and such practice is a part of the course of instruction of such students, is performed under the direct supervision of a duly licensed dentist acting as a teacher or instructor, and is without remuneration except for expenses and subsistence all as defined and permitted by the rules and regulations of said Board of Dental Examiners. Should the Board disapprove a specific program, the Board shall within 90 days inform the dean of its actions. Nothing herein shall be construed to permit the teaching of, delegation to or performance by any dental hygienist, dental assistant, or other auxiliary relative to any program of extramural rotation, of any function not heretofore permitted by the Dental Practice Act, the Dental Hygiene Act or by the rules and regulations of the Board;
   5. The temporary practice of dentistry by licensed dentists of another state or of any territory or country when the same is performed, as clinicians, at meetings of organized dental societies, associations, colleges or similar dental organizations, or when such dentists appear in emergency cases upon the specific call of a dentist duly licensed to practice in this State;
   6. The practice of dentistry by a person who is a graduate of a dental school or college approved by the North Carolina State Board of Dental Examiners and who is not licensed to practice dentistry in this State, when such person is the holder of a valid intern permit, or provisional license, issued to him by the North Carolina State Board of Dental Examiners pursuant to the terms and provisions of this Article, and when such practice of dentistry complies with the conditions of said intern permit, or provisional license;
   7. Any act or acts performed by a dental hygienist when such act or acts are lawfully performed pursuant to the authority of Article 16 of this Chapter 90 or the rules and regulations of the Board promulgated thereunder;
   8. Activity which would otherwise be considered the practice of dental hygiene performed by students enrolled in a school or college approved by the Board in a board-approved dental hygiene program under the direct supervision of a dental hygienist or a dentist duly licensed in North Carolina or qualified for the teaching of dentistry pursuant to the provisions of subdivision (3) above;
   9. Any act or acts performed by an assistant to a dentist licensed to practice in this State when said act or acts are authorized and permitted by and performed in accordance with rules and regulations promulgated by the Board;
   10. Dental assisting and related functions as a part of their instructions by students enrolled in a course in dental assisting conducted in this State and approved by the Board, when such functions are performed under the supervision of a dentist acting as a teacher or instructor who is either duly licensed in North Carolina or qualified for the teaching of dentistry pursuant to the provisions of subdivision (3) above;
   11. The extraoral construction, manufacture, fabrication or repair of prosthetic dentures, bridges, appliances, corrective devices, or other structures designed or constructed as a substitute for a natural human tooth or teeth or as an aid in the treatment of the malposition or malformation of a tooth or teeth, by a person or entity not licensed to practice dentistry in this State, when the same is done or performed solely upon a written work order in strict compliance with the terms, provisions, conditions and requirements of G.S. 90-29.1 and 90-29.2.
   12. The use of a dental x-ray machine in the taking of dental radiographs by a dental hygienist, certified dental assistant, or a dental assistant who can show evidence of satisfactory performance on an equivalency examination, recognized by the Board of Dental Examiners, based on seven hours of instruction in the production and use of dental x rays and an educational program of not less than seven hours in clinical dental radiology.
   13. A dental assistant, or dental hygienist who shows evidence of education and training in Nitrous Oxide - Oxygen Inhalant Conscious Sedation within a formal educational program may aid and assist a licensed dentist in the administration of Nitrous Oxide - Oxygen Inhalant Conscious Sedation. Any dental assistant who can show evidence of having completed an educational program recognized by the Board of not less than seven clock hours on Nitrous Oxide - Oxygen Inhalant Conscious Sedation may also aid and assist a licensed dentist in the administration of Nitrous Oxide - Oxygen Inhalant Conscious Sedation. Any dental hygienist or dental assistant who has been employed in a dental office where Nitrous Oxide - Oxygen Inhalant Conscious Sedation was utilized, and who can show evidence of performance and instruction of not less than one year prior to July 1, 1980, qualifies to aid and assist a licensed dentist in the administration of Nitrous Oxide - Oxygen Inhalant Conscious Sedation.
   14. The operation of a nonprofit health care facility serving low-income populations and approved by the State Health Director or his designee and approved by the North Carolina State Board of Dental Examiners.

History

(1935, c. 66, s. 6; 1953, c. 564, s. 3; 1957, c. 592, s. 2; 1961, c. 446, s. 2; 1965, c. 163, ss. 1, 2; 1971, c. 755, s. 2; 1977, c. 368; 1979, 2nd Sess., c. 1195, ss. 10, 15; 1991, c. 658, s. 1; c. 678, ss. 1, 2; 1997-481, ss. 5, 6; 2002-37, s. 8; 2011-183, s. 57; 2020-3, s. 3D.2(a); 2021-95, s. 1(a).)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

Editor's Note. - Session Laws 2020-3, s. 3A.1(a), provides: "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. 5, is a severability clause.

Session Laws 2021-95, s. 6, provides: "The North Carolina State Board of Dental Examiners may adopt temporary rules to implement the provisions of this act."

Effect of Amendments. - Session Laws 2011-183, s. 57, effective June 20, 2011, substituted "Armed Forces" for "military service" in subdivision (c)(2).

Session Laws 2020-3, s. 3D.2(a), effective May 4, 2020, added subdivision (b)(14).

Session Laws 2021-95, s. 1(a), effective July 23, 2021, inserted "or to a registered dental hygienist qualified to administer local anesthetics" in subdivision (b)(6); and in subdivision (b)(11), inserted "or by use of any electronic or other digital means” and made stylistic changes.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 469 (1998).

For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective," see 43 Campbell L. Rev. 423 (2021).

§ 90-29.1. Extraoral services performed for dentists.

Licensed dentists may employ or engage the services of any person, firm or corporation to construct or repair, extraorally, prosthetic dentures, bridges, or other replacements for a part of a tooth, a tooth, or teeth. A person, firm, or corporation so employed or engaged, when constructing or repairing such dentures, bridges, or replacements, exclusively, directly, and solely on the written work order of a licensed member of the dental profession as hereafter provided, and not for the public or any part thereof, shall not be deemed or considered to be practicing dentistry as defined in this Article.

History

(1957, c. 592, s. 3; 1961, c. 446, ss. 3, 4; 1979, 2nd Sess., c. 1195, s. 6.)

§ 90-29.2. Requirements in respect to written work orders; penalty.

1. Any licensed dentist who employs or engages the services of any person, firm or corporation to construct or repair, extraorally, prosthetic dentures, bridges, orthodontic appliance, or other replacements, for a part of a tooth, a tooth or teeth, shall furnish such person, firm or corporation with a written work order on forms prescribed by the North Carolina State Board of Dental Examiners which shall contain:
   1. The name and address of the person, firm, or corporation to which the work order is directed.
   2. The patient's name or identification number. If a number is used, the patient's name shall be written upon the duplicate copy of the work order retained by the dentist.
   3. The date on which the work order was written.
   4. A description of the work to be done, including diagrams if necessary.
   5. A specification of the type and quality of materials to be used.
   6. The signature of the dentist and the number of his license to practice dentistry.
2. The person, firm or corporation receiving a work order from a licensed dentist shall retain the original work order and the dentist shall retain a duplicate copy thereof for inspection at any reasonable time by the North Carolina State Board of Dental Examiners or its duly authorized agents, for a period of two years in both cases.
3. If the person, firm or corporation receiving a written work order from a licensed dentist engages another person, firm or corporation (hereinafter referred to as "subcontractor") to perform some of the services relative to such work order, he or it shall furnish a written subwork order with respect thereto on forms prescribed by the North Carolina State Board of Dental Examiners which shall contain:
   1. The name and address of the subcontractor.
   2. A number identifying the subwork order with the original work order, which number shall be endorsed on the work order received from the licensed dentist.
   3. The date on which the subwork order was written.
   4. A description of the work to be done by the subcontractor, including diagrams if necessary.
   5. A specification of the type and quality of materials to be used.
   6. The signature of the person, firm or corporation issuing the subwork order.
4. Any licensed dentist who:
   1. Employs or engages the services of any person, firm or corporation to construct or repair extraorally, prosthetic dentures, bridges, or other dental appliances without first providing such person, firm, or corporation with a written work order; or
   2. Fails to retain a duplicate copy of the work order for two years; or
   3. Refuses to allow the North Carolina State Board of Dental Examiners to inspect his files of work orders
5. Any such person, firm, or corporation, who:
   1. Furnishes such services to any licensed dentist without first obtaining a written work order therefor from such dentist; or
   2. Acting as a subcontractor as described in (c) above, furnishes such services to any person, firm or corporation, without first obtaining a written subwork order from such person, firm or corporation; or
   3. Fails to retain the original work order or subwork order, as the case may be, for two years; or
   4. Refuses to allow the North Carolina State Board of Dental Examiners or its duly authorized agents, to inspect his or its files of work orders or subwork orders shall be guilty of a Class 1 misdemeanor.

The subcontractor shall retain the subwork order and the issuer thereof shall retain a duplicate copy, attached to the work order received from the licensed dentist, for inspection by the North Carolina State Board of Dental Examiners or its duly authorized agents, for a period of two years in both cases.

is guilty of a Class 1 misdemeanor and the North Carolina State Board of Dental Examiners may revoke or suspend his license therefor.

History

(1961, c. 446, s. 5; 1993, c. 539, ss. 617, 618; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 90-29.3. Provisional license.

1. The North Carolina State Board of Dental Examiners shall, subject to its rules and regulations, issue a provisional license to practice dentistry to any person who is licensed to practice dentistry anywhere in the United States or in any country, territory or other recognized jurisdiction, if the Board shall determine that said licensing jurisdiction imposed upon said person requirements for licensure no less exacting than those imposed by this State. A provisional licensee may engage in the practice of dentistry only in strict accordance with the terms, conditions and limitations of his license and with the rules and regulations of the Board pertaining to provisional license.
2. A provisional license shall be valid until the date of the announcement of the results of the next succeeding Board examination of candidates for licensure to practice dentistry in this State, unless the same shall be earlier revoked or suspended by the Board.
3. No person who has failed an examination conducted by the North Carolina State Board of Dental Examiners shall be eligible to receive a provisional license.
4. Any person desiring to secure a provisional license shall make application therefor in the manner and form prescribed by the rules and regulations of the Board and shall pay the fee prescribed in G.S. 90-39 of this Article.
5. A provisional licensee shall be subject to those various disciplinary measures and penalties set forth in G.S. 90-41 upon a determination of the Board that said provisional licensee has violated any of the terms or provisions of this Article.

History

(1969, c. 804, s. 1.)

§ 90-29.4. Intern permit.

The North Carolina State Board of Dental Examiners may, in the exercise of the discretion of said Board, issue to a person who is not licensed to practice dentistry in this State and who is a graduate of a dental school, college, or institution approved by said Board, an intern permit authorizing such person to practice dentistry under the supervision or direction of a dentist duly licensed to practice in this State, subject to the following particular conditions:

1. An intern permit shall be valid for no more than one year from the date the permit was issued. The Board may, in its discretion, renew the permit for not more than five additional one-year periods. However, no person who has attempted and failed a Board-approved written or clinical examination shall be granted an intern permit or intern permits embracing or covering an aggregate time span of more than 72 calendar months. An intern permit holder who has held an unrestricted dental license in a Board-approved state or jurisdiction for the five years immediately preceding the issuance of an intern permit in this State may, in the Board's discretion, have the intern permit renewed for additional one-year periods beyond 72 months if the intern permit holder's approved employing institution comes before the Board on the permit holder's behalf for each subsequent annual renewal;
2. The holder of a valid intern permit may practice dentistry only under the supervision or direction of one or more dentists duly licensed to practice in this State;
3. The holder of a valid intern permit may practice dentistry only (i) as an employee in a hospital, sanatorium, or a like institution which is licensed or approved by the State of North Carolina and approved by the North Carolina State Board of Dental Examiners; (ii) as an employee of a nonprofit health care facility serving low-income populations and approved by the State Health Director or his designee and approved by the North Carolina State Board of Dental Examiners; or (iii) as an employee of the State of North Carolina or an agency or political subdivision thereof, or any other governmental entity within the State of North Carolina, when said employment is approved by the North Carolina State Board of Dental Examiners;
4. The holder of a valid intern permit shall receive no fee or fees or compensation of any kind or nature for dental services rendered by him other than such salary or compensation as might be paid to him by the entity specified in subdivision (3) above wherein or for which said services are rendered;
5. The holder of a valid intern permit shall not, during the term of said permit or any renewal thereof, change the place of his internship without first securing the written approval of the North Carolina State Board of Dental Examiners;
6. The practice of dentistry by the holder of a valid intern permit shall be strictly limited to the confines of and to the registered patients of the hospital, sanatorium or institution to which he is attached or to the persons officially served by the governmental entity by whom he is employed;
7. Any person seeking an intern permit shall first file with the North Carolina State Board of Dental Examiners such papers and documents as are required by said Board, together with the application fee authorized by G.S. 90-39. A fee authorized by G.S. 90-39 shall be paid for any renewal of said intern permit. Such person shall further supply to the Board such other documents, materials or information as the Board may request;
8. Any person seeking an intern permit or who is the holder of a valid intern permit shall comply with such limitations as the North Carolina State Board of Dental Examiners may place or cause to be placed, in writing, upon such permit, and shall comply with such rules and regulations as the Board might promulgate relative to the issuance and maintenance of said permit in the practice of dentistry relative to the same;
9. The holder of an intern permit shall be subject to the provisions of G.S. 90-41.

History

(1971, c. 755, s. 3; 1997-481, s. 7; 2002-37, s. 10; 2006-41, s. 1.)

Effect of Amendments. - Session Laws 2006-41, s. 1, effective June 29, 2006, rewrote subdivision (1).

§ 90-29.5. Instructor's license.

1. The Board may issue an instructor's license to a person who is not otherwise licensed to practice dentistry in this State if the person meets both of the following conditions:
   1. Is licensed to practice dentistry anywhere in the United States or in any country, territory, or other recognized jurisdiction.
   2. Has met or been approved under the credentialing standards of a dental school or an academic medical center with which the person is to be affiliated; such dental school or academic medical center shall be accredited by the American Dental Association's Commission on Accreditation or the Joint Commission on Accreditation of Health Care Organizations.
2. The holder of an instructor's license may teach and practice dentistry:
   1. In or on behalf of a dental school or college offering a doctoral degree in dentistry operated and conducted in this State and approved by the North Carolina State Board of Dental Examiners;
   2. In connection with an academic medical center; and
   3. At any teaching hospital adjacent to a dental school or an academic medical center.
3. Application for an instructor's license shall be made in accordance with the rules of the North Carolina State Board of Dental Examiners. On or after January 1, 2003, all dentists previously practicing under G.S. 90-29(c)(3) shall be granted an instructor's license upon application to the Board and payment of the required fee. The holder of an instructor's license shall be subject to the provisions of this Article.

History

(1979, 2nd Sess., c. 1195, s. 11; 2002-37, s. 7.)

§ 90-30. Examination and licensing of applicants; qualifications; causes for refusal to grant license; void licenses.

1. The North Carolina State Board of Dental Examiners shall grant licenses to practice dentistry to such applicants who are graduates of a reputable dental institution, who, in the opinion of a majority of the Board, shall undergo a satisfactory examination of proficiency in the knowledge and practice of dentistry, subject, however, to the further provisions of this section and of the provisions of this Article.
2. The Department of Public Safety may provide a criminal record check to the North Carolina State Board of Dental Examiners for a person who has applied for a license through the Board. The Board shall provide to the Department of Public Safety, along with the request, the fingerprints of the applicant, any additional information required by the Department of Public Safety, and a form signed by the applicant consenting to the check of the criminal record and to the use of the fingerprints and other identifying information required by the State or national repositories. The applicant's fingerprints shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of the fingerprints to the Federal Bureau of Investigation for a national criminal history check. The Board shall keep all information pursuant to this subsection privileged, in accordance with applicable State law and federal guidelines, and the information shall be confidential and shall not be a public record under Chapter 132 of the General Statutes.

The applicant for a license to practice dentistry shall be of good moral character, at least 18 years of age at the time the application is filed. The application for a dental license shall be made to the Board in writing and shall be accompanied by evidence satisfactory to the Board that the applicant is a person of good moral character, has an academic education, the standard of which shall be determined by the Board; that the applicant is a graduate of and has a diploma from a reputable dental college or the dental department of a reputable university or college recognized, accredited and approved as such by the Board; and that the applicant has passed a clinical licensing examination, the standard of which shall be determined by the Board.

The North Carolina State Board of Dental Examiners is authorized to conduct both written or oral and clinical examinations or to accept the results of other Board-approved regional or national independent third-party clinical examinations that shall include procedures performed on human subjects as part of the assessment of restorative clinical competencies and that are determined by the Board to be of such character as to thoroughly test the qualifications of the applicant, and may refuse to grant a license to any person who, in its discretion, is found deficient in the examination. The Board may refuse to grant a license to any person guilty of cheating, deception or fraud during the examination, or whose examination discloses to the satisfaction of the Board, a deficiency in academic or clinical education. The Board may employ such dentists found qualified therefor by the Board, in examining applicants for licenses as it deems appropriate.

The North Carolina State Board of Dental Examiners may refuse to grant a license to any person guilty of a crime involving moral turpitude, or gross immorality, or to any person addicted to the use of alcoholic liquors or narcotic drugs to such an extent as, in the opinion of the Board, renders the applicant unfit to practice dentistry.

Any license obtained through fraud or by any false representation shall be void ab initio and of no effect.

The Department of Public Safety may charge each applicant a fee for conducting the checks of criminal history records authorized by this subsection.

History

(1935, c. 66, s. 7; 1971, c. 755, s. 4; 1981, c. 751, s. 5; 2002-147, s. 7; 2005-366, s. 1; 2014-100, s. 17.1(o).)

Editor's Note. - 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. 38.7, is a severability clause.

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

Effect of Amendments. - Session Laws 2005-366, s. 1, effective September 8, 2005, in subsection (a), in the second paragraph, inserted "for a license to practice dentistry" near the beginning of the first sentence and deleted "for examination" preceding "is filed" at the end of the first sentence, inserted "for a dental license" near the beginning of the second sentence, substituted "the applicant" for "he" in the middle of the second sentence, and added "and that the applicant ... by the Board." at the end of the second sentence; in the third paragraph, inserted "or to accept .. the Board to be" in the first sentence, inserted "a" preceding "license to any person," and substituted "in the examination. The Board may refuse to grant a license" for "in said examination" at the end of the first sentence, and inserted "or clinical" at the end of the second sentence; and made minor stylistic and punctuation changes.

Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted "Department of Public Safety" for "Department of Justice" three times is the first paragraph of subsection (b) and at the beginning of the second paragraph of subsection (b).

§ 90-30.1. Standards for general anesthesia and enteral and parenteral sedation; fees authorized.

The North Carolina Board of Dental Examiners may establish by regulation reasonable education, training, and equipment standards for safe administration and monitoring of general anesthesia and enteral and parenteral sedation for outpatients in the dental setting. Regulatory standards may include a permit process for general anesthesia and enteral and parenteral sedation by dentists. The requirements of any permit process adopted under the authority of this section shall include provisions that will allow a dentist to qualify for continued use of enteral sedation, if he or she is licensed to practice dentistry in North Carolina and shows the Board that he or she has been utilizing enteral sedation in a competent manner for the five years preceding January 1, 2002, and his or her office facilities pass an on-site examination and inspection by qualified representatives of the Board. For purposes of this section, oral premedication administered for minimal sedation (anxiolysis) shall not be included in the definition of enteral sedation. In order to provide the means of regulating general anesthesia and enteral and parenteral sedation, including examination and inspection of dental offices involved, the Board may charge and collect fees established by its rules for each permit application, each annual permit renewal, and each office inspection in an amount not to exceed the maximum fee amounts set forth in G.S. 90-39.

History

(1987 (Reg. Sess., 1988), c. 1073; 1989, c. 648; 1989 (Reg. Sess., 1990), c. 1066, s. 12(a); 1995 (Reg. Sess., 1996), c. 584, s. 2; 2001-511, s. 1.)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

§ 90-30.2. Teledentistry practice; definitions; requirements.

1. The following definitions apply in this section:
   1. Authorized person. - An appropriate person with legal authority to make the health care treatment decision for a patient.
   2. Licensed dental hygienist. - An individual who holds a valid license to practice dental hygiene duly issued by the North Carolina Board of Dental Examiners in accordance with Article 16 of this Chapter.
   3. Licensed dentist. - A person who holds a valid license to practice dentistry duly issued by the North Carolina Board of Dental Examiners in accordance with this Article.
   4. Licensee. - A person who is a licensed dental hygienist or licensed dentist in this State.
   5. Practice of teledentistry. - The provision of dental services by use of any electronic or other digital means, as authorized in G.S. 90-29(b)(11) and provided for in subsection (b) of this section.
   6. Supervision. - Acts are deemed to be under the supervision of a licensed dentist when performed pursuant to the licensed dentist's order, control, and approval and do not require the physical presence of the licensed dentist.
2. Practice of Teledentistry Requirements. - For the purposes of this Article, the practice of teledentistry includes any of the following:
   1. Delivery of service. - Teledentistry services may be delivered by a licensed dentist or a licensed dental hygienist who is under the supervision of a licensed dentist. Licensees shall comply with all rules of professional conduct and applicable State and federal law relevant to licensed dentists and licensed dental hygienists when delivering teledentistry services.
   2. Encounter location. - The location of service is determined at the time teledentistry services are initiated, as follows:
      1. When the service is between patient and provider, the location of the patient is the originating site, and the location of the provider is the distant site.
      2. When the service is between providers, conducted for the purposes of consultation, the location of the provider initiating the consult is the originating site, and the location of the consulting provider is the distant site.
   3. Data. - Any licensee, patient, or authorized person may transmit data, electronic images, and related information as appropriate to provide teledentistry services to a patient.
   4. Patient care. - A licensee using teledentistry services in the provision of dental services to a patient shall take appropriate steps to establish the licensee-patient relationship, conduct all appropriate evaluations and history of the patient, and provide access to comprehensive dental care where clinically indicated.
   5. Evaluations. - Notwithstanding any provision of law to the contrary, patient evaluations may be conducted by a licensed dentist using teledentistry modalities.
3. Informed Consent. - A licensee who provides or facilitates the use of teledentistry shall ensure that the informed consent of the patient or authorized person is obtained before services are provided through teledentistry. All informed consents shall be included in the patient's dental records. To obtain an informed consent, the licensee shall do all of the following:
   1. Confirm the identity of the requesting patient.
   2. Verify and authenticate the patient's health history.
   3. Disclose the licensee's identity, applicable credentials, and contact information, including a current phone number and mailing address of the licensee's practice.
   4. Obtain an appropriate informed consent from the requesting patient after disclosures have been made regarding the delivery models and treatment methods and limitations, including any special informed consents regarding the use of teledentistry services.
   5. In addition to other areas that must be discussed in traditional in-person dental encounters with a patient before treatment, the informed consent shall inform the patient or authorized person and document acknowledgment of the risk and limitations of all of the following:
      1. The use of electronic communications in the provision of care.
      2. The potential for breach of confidentiality, or inadvertent access of protected health information using electronic and digital communication in the use of teledentistry.
      3. The types of activities permitted using teledentistry services.
   6. Inform the patient or authorized person that it is the role of the licensed dentist to determine whether the condition being diagnosed or treated is appropriate for a teledentistry encounter.
   7. Obtain written consent from the patient or authorized person to forward patient-identifiable information to a third party.
   8. Provide the patient and authorized person with contact information for the North Carolina State Board of Dental Examiners and a description of, or link to, the patient complaint process.
4. Confidentiality. - The licensee shall ensure that any electronic and digital communication used in the practice of teledentistry is secure to maintain confidentiality of the patient's medical information as required by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all other applicable laws and administrative regulations. Patients receiving services through teledentistry under this section are entitled to protection of their medical information no less stringent than the requirements that apply to patients receiving in-person services.
5. Patient Dental Records. - Records of teledentistry services provided to a patient or authorized person shall be held to the same record retention standards as records of traditional in-person dental encounters. A patient record established during the use of teledentistry services shall be accessible to both the licensee and the patient or authorized person, consistent with all established State and federal laws and regulations governing patient health care records. In addition to other areas that must be included in traditional in-person dental encounters, the licensee shall document or record in the patient dental record all of the following:
   1. The patient's presenting problem.
   2. The patient's diagnosis.
   3. The patient's treatment plan.
   4. A description of all services that were provided through teledentistry.
6. Prescribing. - The indication, appropriateness, and safety considerations for each prescription for medication, laboratory services, or dental laboratory services provided through the use of teledentistry shall be evaluated by the licensed dentist in accordance with applicable law and current standards of care, including those for appropriate documentation. A licensed dentist's use of teledentistry carries the same professional accountability as a prescription issued in connection with an in-person encounter. A licensed dentist who prescribes any type of analgesic or pain medication as part of the provision of teledentistry services shall comply with all applicable North Carolina Controlled Substance Reporting System requirements.

History

(2021-95, s. 1(b).)

Editor's Note. - Session Laws 2021-95, s. 6, provides: "The North Carolina State Board of Dental Examiners may adopt temporary rules to implement the provisions of this act."

Session Laws 2021-95, s. 7 made this section effective July 23, 2021.

§ 90-31. Annual renewal of licenses.

The laws of North Carolina now in force, having provided for the annual renewal of any license issued by the North Carolina State Board of Dental Examiners, it is hereby declared to be the policy of this State, that all licenses heretofore issued by the North Carolina State Board of Dental Examiners or hereafter issued by said Board are subject to annual renewal and the exercise of any privilege granted by any license heretofore issued or hereafter issued by the North Carolina State Board of Dental Examiners is subject to the issuance on or before the first day of January of each year of a certificate of renewal of license.

On or before the first day of January of each year, each dentist engaged in the practice of dentistry in North Carolina shall make application to the North Carolina State Board of Dental Examiners and receive from said Board, subject to the further provisions of this section and of this Article, a certificate of renewal of said license.

The application shall show the serial number of the applicant's license, his full name, address and the county in which he has practiced during the preceding year, the date of the original issuance of license to said applicant and such other information as the said Board from time to time may prescribe, at least six months prior to January 1 of any year.

If the application for such renewal certificate, accompanied by the fee required by this Article, is not received by the Board before January 31 of each year, an additional fee shall be charged for renewal certificate. The maximum penalty fee for late renewal is set forth in G.S. 90-39. If such application, accompanied by the renewal fee, plus the additional fee, is not received by the Board before March 31 of each year, every person thereafter continuing to practice dentistry without having applied for a certificate of renewal shall be guilty of the unauthorized practice of dentistry and shall be subject to the penalties prescribed by G.S. 90-40.

History

(1935, c. 66, s. 8; 1953, c. 564, s. 5; 1961, c. 446, s. 6; 1971, c. 755, s. 5; 1995 (Reg. Sess., 1996), c. 584, s. 3.)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

§ 90-31.1. Continuing education courses required.

All dentists licensed under G.S. 90-30 shall be required to attend Board-approved courses of study in subjects relating to dentistry. The Board shall have authority to consider and approve courses, or providers of courses, to the end that those attending will gain (i) information on existing and new methods and procedures used by dentists, (ii) information leading to increased safety and competence in their dealings with patients and staff, and (iii) information on other matters, as they develop, that are of continuing importance to the practice of dentistry. The Board shall determine the number of hours of study within a particular period and the nature of course work required. The Board may provide exemptions or waivers from continuing education requirements where dentists are receiving alternate learning experiences or where they have limited practices. The Board shall by regulation define circumstances for exemptions or waivers for dentists who are involved in dental education or training pursuits where they gain experiences equivalent to formal continuing education courses, for those who have reached an advanced age and are semiretired or have otherwise voluntarily restricted their practices in volume and scope, and for such other situations as the Board in its discretion may determine meet the purposes of this section.

History

(1993, c. 307, s. 1.)

§ 90-32. Contents of original license.

The original license granted by the North Carolina State Board of Dental Examiners shall bear a serial number, the full name of the applicant, the date of issuance and shall be signed by the president and the majority of the members of the said Board and attested by the seal of said Board and the secretary thereof. The certificate of renewal of license shall bear a serial number which need not be the serial number of the original license issued, the full name of the applicant and the date of issuance.

History

(1935, c. 66, s. 8.)

§ 90-33. Displaying license and current certificate of renewal.

The license and the current certificate of renewal of license to practice dentistry issued, as herein provided, shall at all times be displayed in a conspicuous place in the office of the holder thereof and whenever requested the license and the current certificate of renewal shall be exhibited to or produced before the North Carolina State Board of Dental Examiners or to its authorized agents.

History

(1935, c. 66, s. 8.)

§ 90-34. Refusal to grant renewal of license.

For nonpayment of fee or fees required by this Article, for failure to comply with continuing education requirements adopted by the Board under the authority of G.S. 90-31.1, or for violation of any of the terms or provisions of G.S. 90-41 concerning disciplinary actions, the North Carolina State Board of Dental Examiners may refuse to issue a certificate for renewal of license. As used in this section, the term "license" includes license, provisional license or intern permit.

History

(1935, c. 66, s. 8; 1971, c. 755, s. 6; 1993, c. 307, s. 2.)

§ 90-35. Duplicate licenses.

When a person is a holder of a license to practice dentistry in North Carolina or the holder of a certificate of renewal of license, he may make application to the North Carolina State Board of Dental Examiners for the issuance of a copy or a duplicate thereof accompanied by a fee that shall not exceed the maximum fee for a duplicate license or certificate set forth in G.S. 90-39. Upon the filing of the application and the payment of the fee, the said Board shall issue a copy or duplicate.

History

(1935, c. 66, s. 8; 1961, c. 446, s. 7; 1995 (Reg. Sess., 1996), c. 584, s. 4.)

§ 90-36. Licensing practitioners of other states.

1. The North Carolina State Board of Dental Examiners may issue a license by credentials to an applicant who has been licensed to practice dentistry in any state or territory of the United States if the applicant produces satisfactory evidence to the Board that the applicant has the required education, training, and qualifications, is in good standing with the licensing jurisdiction, has passed satisfactory examinations of proficiency in the knowledge and practice of dentistry as determined by the Board, and meets all other requirements of this section and rules adopted by the Board. The Board may conduct examinations and interviews to test the qualifications of the applicant and may require additional information that would affect the applicant's ability to render competent dental care. The Board may, in its discretion, refuse to issue a license by credentials to an applicant who the Board determines is unfit to practice dentistry.
2. The North Carolina State Board of Dental Examiners shall issue a license by credentials to any dentist who applies for a license by credentials and who holds a current license and is in good standing with the licensing jurisdiction in one of the four states that border North Carolina provided that the dental board of the border state will also issue a license by credentials to a dentist having a license to practice in North Carolina. The requirements of subsections (b), (c) and (d) of this section shall apply to any dentist who applies for a license by credentials from a border state in accordance with this subsection.
3. The applicant for licensure by credentials shall be of good moral character and shall have graduated from and have a DDS or DMD degree from a program of dentistry in a school or college accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the Board.
4. The North Carolina State Board of Dental Examiners shall issue a license by credentials to any dentist who applies for a license by credentials, who possesses good moral character, and who meets either of the following criteria:
   1. Holds a current Instructor's License pursuant to G.S. 90-29.5.
   2. Has graduated with a general dental degree from any school or college and has graduated from an advanced dental education program with either a certificate or a degree from a school or college accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the Board.
5. The applicant must meet all of the following conditions:
   1. Has been actively practicing dentistry, as defined in G.S. 90-29(b)(1) through (b)(9), for a minimum of five years immediately preceding the date of application.
   2. Has not been the subject of final or pending disciplinary action in the Armed Forces of the United States, in any state or territory in which the applicant is or has ever been licensed to practice dentistry, or in any state or territory in which the applicant has held any other professional license.
   3. Presents evidence that the applicant has no felony convictions and that the applicant has no other criminal convictions that would affect the applicant's ability to render competent dental care.
   4. Has not failed an examination conducted by the North Carolina State Board of Dental Examiners.
6. The applicant for licensure by credentials shall submit an application to the North Carolina State Board of Dental Examiners, the form of which shall be determined by the Board, pay the fee required by G.S. 90-39, successfully complete examinations in Jurisprudence and Sterilization and Infection Control, and meet the criteria or requirements established by the Board.
7. Repealed by Session Laws 2018-88, s. 6(b), effective October 1, 2018.

Any applicant who applies for a license by credentials in accordance with subdivision (b1)(2) of this section shall meet the requirements of subsections (c) and (d) of this section and shall have passed satisfactory examinations of proficiency in the knowledge and practice of dentistry as set out in subsection (a) of this section.

History

(1935, c. 66, s. 9; 1971, c. 755, s. 7; 1981, c. 751, s. 6; 2002-37, s. 2; 2009-289, s. 1; 2011-183, s. 58; 2018-88, s. 6(b); 2021-95, s. 4.)

Cross References. - As to licensure by credentials, generally, see G.S. 90-224.1.

Editor's Note. - Session Laws 2018-88, s. 6(a), provides: "In addition to the efforts in Section 3(b) of this act, residents of rural areas will benefit from increased access to dental care provided by expediting the license by credentials process for dentists in states that border North Carolina."

Session Laws 2021-95, s. 6, provides: "The North Carolina State Board of Dental Examiners may adopt temporary rules to implement the provisions of this act."

Effect of Amendments. - Session Laws 2009-289, s. 1, effective July 10, 2009, added the last sentence of subsection (e).

Session Laws 2011-183, s. 58, effective June 20, 2011, substituted "Armed Forces of the United States" for "military" in subdivision (c)(2).

Session Laws 2018-88, s. 6(b), effective October 1, 2018, added subsection (a1), and deleted subsection (e) which formerly read "The holder of a license issued under this section shall establish a practice location and actively practice dentistry, as defined in G.S. 90-29(b)(1) through (b)(9), in North Carolina within one year from the date the license is issued. The license issued under this section shall be void upon a finding by the Board that the licensee fails to limit the licensee's practice to North Carolina or that the licensee no longer actively practices dentistry in North Carolina. However, when a dentist licensed under this section faces possible Board action to void the dentist's license for failure to limit the dentist's practice to North Carolina, if the dentist demonstrates to the Board that out-of-state practice actions were in connection with formal contract or employment arrangements for the dentist to provide needed clinical dental care to patients who are part of an identified ethnic or racial minority group living in a region of the other state with low access to dental care, the Board, in its discretion, may waive the in-State limitations on the out-of-state practice for a maximum of 12 months."

Session Laws 2021-95, s. 4, effective July 23, 2021, added subsection (b1).

Legal Periodicals. - For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective,” see 43 Campbell L. Rev. 423 (2021).

§ 90-37. Certificate issued to dentist moving out of State.

Any dentist duly licensed by the North Carolina State Board of Dental Examiners, desiring to move from North Carolina to another state, territory or foreign country, if a holder of a certificate of renewal of license from said Board, upon application to said Board and the payment to it of the fee in this Article provided, shall be issued a certificate showing his full name and address, the date of license originally issued to him, the date and number of his renewal of license, and whether any charges have been filed with the Board against him. The Board may provide forms for such certificate, requiring such additional information as it may determine proper.

History

(1935, c. 66, s. 10.)

§ 90-37.1. Limited volunteer dental license.

1. The North Carolina State Board of Dental Examiners may issue to an applicant a "Limited Volunteer Dental License" to practice dentistry only in nonprofit health care facilities serving low-income populations in the State. Holders of a limited volunteer dental license may volunteer their professional services, without compensation, only for the purpose of helping to meet the dental health needs of these persons served by these facilities. The Board may issue a limited license to an applicant under this section who:
   1. Has an out-of-state current or expired license, or an expired license in this State, or is authorized to treat veterans of or personnel serving in the Armed Forces of the United States; and
   2. Has actively practiced dentistry, as defined in G.S. 90-29(b)(1) through (b)(9), within the past five years.
2. The limited license may be issued to an applicant who produces satisfactory evidence to the Board that the applicant has the required education, training, and qualifications; is in good standing with the licensing jurisdiction; has passed satisfactory examinations of proficiency in the knowledge and practice of dentistry as determined by the Board; and meets all other requirements of this section and rules adopted by the Board. The Board may conduct examinations and interviews to test the qualifications of the applicant and may require additional information that would affect the applicant's ability to render competent dental care. The Board may, in its discretion, refuse to issue a "limited volunteer dental license" to an applicant who the Board determines is unfit to practice dentistry.
3. The applicant shall be of good moral character and shall have graduated from and have a DDS or DMD degree from a program of dentistry in a school or college accredited by the Commission on Dental Accreditation of the American Dental Association and approved by the Board.
4. The applicant shall meet all of the following conditions:
   1. Show that the applicant has actively practiced dentistry, as defined in G.S. 90-29(b)(1) through (b)(9), for a minimum of five years.
   2. Show that the applicant has not been the subject of final or pending disciplinary action in any state in which the applicant has ever been licensed to practice dentistry or in any state in which the applicant has held any other professional license.
   3. Present evidence that the applicant has no felony convictions and that the applicant has no other criminal convictions that would affect the applicant's ability to render competent care.
   4. Present evidence that the applicant has no pending Veterans Administration or military disciplinary actions or any history of such disciplinary action.
   5. Show that the applicant has not failed an examination conducted by the North Carolina State Board of Dental Examiners.
5. The applicant shall submit an application, the form of which shall be determined by the Board, pay the fee required under G.S. 90-39, and successfully complete examinations in Jurisprudence and Sterilization and Infection Control. The Board may charge and collect fees for license application and annual renewal as required under G.S. 90-39, except that credentialing fees applicable under G.S. 90-39(13) are waived for holders of a limited volunteer dental license.
6. Holders of a limited volunteer dental license shall comply with the continuing dental education requirements adopted by the Board including CPR training.
7. The holder of a limited license under this section who practices dentistry other than as authorized in this section shall be guilty of a Class 1 misdemeanor with each day's violation constituting a separate offense. Upon proof of practice other than as authorized in this section, the Board may suspend or revoke the limited license after notice to the licensee. For violations of the dental practice act or rules adopted under the act that are applicable to a limited license practice, the Board has the same authority to investigate and impose sanctions on limited license holders as it has for those holding an unlimited license.
8. The Board shall maintain a nonexclusive list of nonprofit health care facilities serving the dental health needs of low-income populations in the State. Upon request, the Board shall consider adding other facilities to the list.
9. The Board may adopt rules in accordance with Chapter 150B of the General Statutes to implement this section.

History

(2002-37, s. 4; 2011-183, s. 59.)

Cross References. - As to dental providers for problem access areas, see G.S. 130A-367.

Effect of Amendments. - Session Laws 2011-183, s. 59, effective June 20, 2011, substituted "veterans of or personnel serving in the Armed Forces of the United States" for "veterans or personnel enlisted in the United States armed services" in subdivision (a)(1).

§ 90-37.2. Temporary permits for volunteer dentists.

1. The North Carolina State Board of Dental Examiners may issue to a person who is not licensed to practice dentistry in this State and who is a graduate of a Board-approved dental school, college, or institution a temporary volunteer permit authorizing such person to practice dentistry under the supervision or direction of a dentist duly licensed in this State. A temporary volunteer permit shall be issued only to those dentists who are licensed in another Board-approved state or jurisdiction, have never been subject to discipline, and have passed a patient-based clinical examination substantially similar to the clinical examination offered in this State. The issuance of a temporary volunteer permit is subject to the following conditions:
   1. A temporary volunteer permit shall be valid no more than one year from the date of issue; provided, however, that the Board may renew the permit for additional one-year periods.
   2. The holder of a temporary volunteer permit may practice only under the supervision or direction of one or more dentists duly licensed to practice in this State.
   3. The holder of a temporary volunteer permit may practice dentistry only: (i) as a volunteer in a hospital, sanatorium, temporary clinic, or like institution which is licensed or approved by the State of North Carolina and approved by the Board; (ii) as a volunteer for a nonprofit health care facility serving low-income populations and approved by the State Health Director or his designee or approved by the Board; or (iii) as a volunteer for the State of North Carolina or an agency or political subdivision thereof, or any other governmental entity within the State of North Carolina, when such service is approved by the Board.
   4. The holder of a temporary volunteer permit shall receive no fee or monetary compensation of any kind or nature for any dental service performed.
   5. The practice of dentistry by the holder of a temporary volunteer permit shall be strictly limited to the confines of and to the registered patients of the hospital, sanatorium, temporary clinic, or approved nonprofit health care facilities for which he is working or to the patients officially served by the governmental entity to which he is offering his volunteer services.
   6. The holder of a temporary volunteer permit shall be subject to discipline by the Board for those actions constituting the practice of dentistry by G.S. 90-29 occurring while practicing in this State.
   7. Any person seeking a temporary volunteer permit must file with the Board such proof as is required by the Board to determine if the applicant has a valid unrestricted dental license in another state or jurisdiction, has not been subject to discipline by any licensing board, has a proven record of clinical safety and is otherwise qualified to practice dentistry in this State.
   8. There shall be no fee associated with the issuance of a temporary volunteer permit for the practice of dentistry.
2. The Board is authorized to make rules consistent with this section to regulate the practice of dentistry for those issued a temporary volunteer permit.

History

(2007-346, s. 27.)

§ 90-38. Licensing former dentists who have moved back into State or resumed practice.

Any person who shall have been licensed by the North Carolina State Board of Dental Examiners to practice dentistry in this State who shall have retired from practice or who shall have moved from the State and shall have returned to the State, may, upon a satisfactory showing to said Board of his proficiency in the profession of dentistry and his good moral character during the period of his retirement, be granted by said Board a license to resume the practice of dentistry upon making application to the said Board in such form as it may require. The license to resume practice, after issuance thereof, shall be subject to all the provisions of this Article.

History

(1935, c. 66, s. 11; 1953, c. 564, s. 2.)

§ 90-39. Fees.

In order to provide the means of carrying out and enforcing the provisions of this Article and the duties devolving upon the North Carolina State Board of Dental Examiners, it is authorized to charge and collect fees established by its rules not exceeding the following:

1. Each application for general dentistry license .................$1,200      (2) Each general dentistry license renewal, which fee shall be annually fixed by the Board and not later than November 30 of each year it shall give written notice of the amount of the renewal fee to each dentist licensed to practice in this State by mailing such notice to the last address of record with the Board of each such dentist ...................................600.00      (2a) Penalty for late renewal of any license or permit .............100.00      (3) Each provisional license .......................................300.00      (4) Each intern permit or renewal thereof ..........................500.00      (5) Each certificate of license to a resident dentist desiring to change to another state or territory ..........................................75.00      (6) Repealed by Session Laws 1995, (Reg. Sess., 1996), c. 584, s. 1.      (7) Each license to resume the practice issued to a dentist who has retired from and returned to this State ...............................500.00      (8) Each instructor's license or renewal thereof ...................500.00      (9) With each renewal of a dentistry license, an annual fee to help fund special peer review organizations for impaired dentists ...............100.00      (10) Each duplicate of any license, permit, or certificate issued by the Board ..................................................................75.00      (11) Each office inspection for general anesthesia and parenteral sedation permits ...............................................................750.00      (12) Each general anesthesia and parenteral sedation permit application or renewal of permit .....................................................100.00      (13) Each application for license by credentials .................3,000.00      (14) Each application for limited volunteer dental license .........200.00      (15) Each limited volunteer dental license annual renewal ..........50.00.

History

(1935, c. 66, s. 12; 1953, c. 564, s. 1; 1961, c. 446, s. 8; 1965, c. 163, s. 3; 1971, c. 755, s. 8; 1979, 2nd Sess., c. 1195, s. 12; 1987, c. 555, s. 1; 1993, c. 420, s. 1; 1995 (Reg. Sess., 1996), c. 584, s. 1; 2002-37, s. 5; 2003-348, s. 1; 2005-366, s. 2.)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

Effect of Amendments. - Session Laws 2005-366, s. 2, effective September 8, 2005, substituted "license" for "examination" in subdivision (1).

§ 90-40. Unauthorized practice; penalty.

If any person shall practice or attempt to practice dentistry in this State without first having passed the examination and obtained a license from the North Carolina Board of Dental Examiners or having obtained a provisional license from said Board; or if he shall practice dentistry after March 31 of each year without applying for a certificate of renewal of license, as provided in G.S. 90-31; or shall practice or attempt to practice dentistry while his license is revoked, or suspended, or when a certificate of renewal of license has been refused; or shall violate any of the provisions of this Article for which no specific penalty has been provided; or shall practice or attempt to practice, dentistry in violation of the provisions of this Article; or shall practice dentistry under any name other than his own name, said person shall be guilty of a Class 1 misdemeanor. Each day's violation of this Article shall constitute a separate offense.

History

(1935, c. 66, s. 13; 1953, c. 564, s. 6; 1957, c. 592, s. 4; 1965, c. 163, s. 6; 1969, c. 804, s. 2; 1993, c. 539, s. 619; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 90-40.1. Enjoining unlawful acts.

1. The practice of dentistry by any person who has not been duly licensed so as to practice or whose license has been suspended or revoked, or the doing, committing or continuing of any of the acts prohibited by this Article by any person or persons, whether licensed dentists or not, is hereby declared to be inimical to public health and welfare and to constitute a public nuisance. The Attorney General for the State of North Carolina, the district attorney of any of the superior courts, the North Carolina State Board of Dental Examiners in its own name, or any resident citizen may maintain an action in the name of the State of North Carolina to perpetually enjoin any person from so unlawfully practicing dentistry and from the doing, committing or continuing of such unlawful act. This proceeding shall be in addition to and not in lieu of criminal prosecutions or proceedings to revoke or suspend licenses as authorized by this Article.
2. In an action brought under this section the final judgment, if in favor of the plaintiff, shall perpetually restrain the defendant or defendants from the commission or continuance of the act or acts complained of. A temporary injunction to restrain the commission or continuance thereof may be granted upon proof or by affidavit that the defendant or defendants have violated any of the laws or statutes applicable to unauthorized or unlawful practice of dentistry. The provisions of the statutes or rules relating generally to injunctions as provisional remedies in actions shall apply to such a temporary injunction and the proceedings thereunder.
3. The venue for actions brought under this section shall be the superior court of any county in which such acts constituting unlicensed or unlawful practice of dentistry are alleged to have been committed or in which there appear reasonable grounds to believe that they will be committed, in the county where the defendants in such action reside, or in Wake County.
4. The plaintiff in such action shall be entitled to examination of the adverse party and witnesses before filing complaint and before trial in the same manner as provided by law for the examination of the parties.

History

(1957, c. 592, s. 5; 1973, c. 47, s. 2; 2012-195, s. 2.)

Effect of Amendments. - Session Laws 2012-195, s. 2, effective July 19, 2012, in subsection (c), substituted "be committed," for "be committed or" and substituted "reside, or in Wake County" for "reside."

§ 90-40.2. Management arrangements.

1. The following definitions apply in this section:
   1. Ancillary personnel. - Dental hygienists or dental assistants who assist licensed dentists in providing direct patient care.
   2. Clinical. - Of or relating to the activities of a dentist as described in G.S. 90-29(b)(1)-(10).
   3. Management arrangement. - Any one or more agreements or arrangements, alone or together, whether written or oral, between a management company and a dentist or professional entity whereby the management company provides services to assist in the development, promotion, delivery, financing, support, or administration of the dentist's or professional entity's dental practice.
   4. Management company. - Any individual, business corporation, nonprofit corporation, partnership, limited liability company, limited partnership, or other legal entity that is not a professional entity or dentist which provides through one or more contractual arrangements any combination of management or business support services, including, but not limited to, accounting and financial services; collection, billing, and payment services; file and records maintenance; human resources services; assistance with the acquisition of fixed assets, including the locating and procurement of office space, facilities, and equipment; maintenance of offices, equipment, furniture, and fixtures; marketing and practice development; information technology; compliance with applicable federal, State, and local laws; and clerical services.
   5. Professional entity. - A professional corporation, nonprofit corporation, partnership, professional limited liability company, professional limited partnership, or other entity or aggregation of individuals that is licensed or certified or otherwise explicitly permitted to practice dentistry under North Carolina General Statutes.
   6. Unlicensed person. - Any person or entity other than a dentist licensed in this State or registered professional entity authorized to provide dental services under this Article.
2. A management arrangement executed on or after January 1, 2013, is invalid unless there appears on the instrument evidencing, directly above or below the space or spaces provided for the signature of the parties, in such type size or distinctive marking that it appears more clearly and conspicuously than anything else on the document:
3. No member of the Board shall be subject to examination in connection with any investigation, inquiry, or interview related to the Board's review of any management arrangement.
4. For actions brought under G.S. 90-40.1, the venue shall be the superior court of any county in which acts constituting unlicensed or unlawful practice of dentistry are alleged to have been committed or in which there appear reasonable grounds to believe that they will be committed, in the county where at least one defendant in the action resides, or in Wake County.
5. If investigative information in the possession of the Board, its employees, or agents indicates that a crime may have been committed, the Board may report the information to the appropriate law enforcement agency or district attorney of the district in which the offense was committed.
6. The Board shall cooperate with and assist law enforcement agencies and the district attorney conducting a criminal investigation or prosecution of a licensee or person engaged in the unauthorized practice of dentistry, including a management company, by providing information that is relevant to the criminal investigation or prosecution to the investigating agency or district attorney. Information disclosed by the Board to an investigative agency or district attorney remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation.
7. Nothing in this section shall affect the validity of any of the Board's rules or regulations which were in effect as of the effective date of this section, except to the extent that such rules or regulations directly conflict with the provisions of this section.

"WARNING - YOU HAVE THE RIGHT AND ARE ENCOURAGED TO HAVE THIS CONTRACT REVIEWED BY YOUR OWN LEGAL COUNSEL PRIOR TO SIGNING."

History

(2012-195, s. 1.)

§ 90-41. Disciplinary action.

1. The North Carolina State Board of Dental Examiners shall have the power and authority to (i) Refuse to issue a license to practice dentistry; (ii) Refuse to issue a certificate of renewal of a license to practice dentistry; (iii) Revoke or suspend a license to practice dentistry; and (iv) Invoke such other disciplinary measures, censure, or probative terms against a licensee as it deems fit and proper;
   1. Has engaged in any act or acts of fraud, deceit or misrepresentation in obtaining or attempting to obtain a license or the renewal thereof;
   2. Is a chronic or persistent user of intoxicants, drugs or narcotics to the extent that the same impairs his ability to practice dentistry;
   3. Has been convicted of any of the criminal provisions of this Article or has entered a plea of guilty or nolo contendere to any charge or charges arising therefrom;
   4. Has been convicted of or entered a plea of guilty or nolo contendere to any felony charge or to any misdemeanor charge involving moral turpitude;
   5. Has been convicted of or entered a plea of guilty or nolo contendere to any charge of violation of any state or federal narcotic or barbiturate law;
   6. Has engaged in any act or practice violative of any of the provisions of this Article or violative of any of the rules and regulations promulgated and adopted by the Board, or has aided, abetted or assisted any other person or entity in the violation of the same;
   7. Is mentally, emotionally, or physically unfit to practice dentistry or is afflicted with such a physical or mental disability as to be deemed dangerous to the health and welfare of his patients. An adjudication of mental incompetency in a court of competent jurisdiction or a determination thereof by other lawful means shall be conclusive proof of unfitness to practice dentistry unless or until such person shall have been subsequently lawfully declared to be mentally competent;
   8. Has conducted in-person solicitation of professional patronage or has employed or procured any person to conduct such solicitation by personal contact with potential patients, except to the extent that informal advice may be permitted by regulations issued by the Board of Dental Examiners;
   9. Has permitted the use of his name, diploma or license by another person either in the illegal practice of dentistry or in attempting to fraudulently obtain a license to practice dentistry;
   10. Has engaged in such immoral conduct as to discredit the dental profession;
   11. Has obtained or collected or attempted to obtain or collect any fee through fraud, misrepresentation, or deceit;
   12. Has been negligent in the practice of dentistry;
   13. Has employed a person not licensed in this State to do or perform any act or service, or has aided, abetted or assisted any such unlicensed person to do or perform any act or service which under this Article or under Article 16 of this Chapter, can lawfully be done or performed only by a dentist or a dental hygienist licensed in this State;
   14. Is incompetent in the practice of dentistry;
   15. Has practiced any fraud, deceit or misrepresentation upon the public or upon any individual in an effort to acquire or retain any patient or patients;
   16. Has made fraudulent or misleading statements pertaining to his skill, knowledge, or method of treatment or practice;
   17. Has committed any fraudulent or misleading acts in the practice of dentistry;
   18. Has, directly or indirectly, published or caused to be published or disseminated any advertisement for professional patronage or business which is untruthful, fraudulent, misleading, or in any way inconsistent with rules and regulations issued by the Board of Dental Examiners governing the time, place, or manner of such advertisements;
   19. Has, in the practice of dentistry, committed an act or acts constituting malpractice;
   20. Repealed by Session Laws 1981, c. 751, s. 7.
   21. Has permitted a dental hygienist or a dental assistant in his employ or under his supervision to do or perform any act or acts violative of this Article, or of Article 16 of this Chapter, or of the rules and regulations promulgated by the Board;
   22. Has wrongfully or fraudulently or falsely held himself out to be or represented himself to be qualified as a specialist in any branch of dentistry;
   23. Has persistently maintained, in the practice of dentistry, unsanitary offices, practices, or techniques;
   24. Is a menace to the public health by reason of having a serious communicable disease;
   25. Has distributed or caused to be distributed any intoxicant, drug or narcotic for any other than a lawful purpose;
   26. Has engaged in any unprofessional conduct as the same may be, from time to time, defined by the rules and regulations of the Board;
   27. Has allowed fee-splitting for the use of teledentistry services; or
   28. Has limited, in any way, a patient's right or ability to raise grievances or file complaints with any appropriate oversight body, including the North Carolina State Board of Dental Examiners, the North Carolina Department of Justice, Division of Medicaid Investigations, and the North Carolina Department of Health and Human Services, Division of Health Benefits, Office of Compliance and Program Integrity.
2. If any person engages in or attempts to engage in the practice of dentistry while his license is suspended, his license to practice dentistry in the State of North Carolina may be permanently revoked.
3. The Board may, on its own motion, initiate the appropriate legal proceedings against any person, firm or corporation when it is made to appear to the Board that such person, firm or corporation has violated any of the provisions of this Article or of Article 16.
4. The Board may appoint, employ or retain an investigator or investigators for the purpose of examining or inquiring into any practices committed in this State that might violate any of the provisions of this Article or of Article 16 or any of the rules and regulations promulgated by the Board.
5. The Board may employ or retain legal counsel for such matters and purposes as may seem fit and proper to said Board.
6. As used in this section the term "licensee" includes licensees, provisional licensees and holders of intern permits, and the term "license" includes license, provisional license, instructor's license, and intern permit.
7. Records, papers, and other documents containing information collected or compiled by the Board, or its members or employees, as a result of investigations, inquiries, or interviews conducted in connection with a licensing or disciplinary matter, shall not be considered public records within the meaning of Chapter 132 of the General Statutes; provided, however, that any notice or statement of charges against any licensee, or any notice to any licensee of a hearing in any proceeding, shall be a public record within the meaning of Chapter 132 of the General Statutes, notwithstanding that it may contain information collected and compiled as a result of any investigation, inquiry, or interview; and provided, further, that if any record, paper, or other document containing information collected and compiled by the Board is received and admitted into evidence in any hearing before the Board, it shall then be a public record within the meaning of Chapter 132 of the General Statutes.

in any instance or instances in which the Board is satisfied that such applicant or licensee:

History

(1935, c. 66, s. 14; 1957, c. 592, s. 7; 1965, c. 163, s. 4; 1967, c. 451, s. 1; 1971, c. 755, s. 9; 1979, 2nd Sess., c. 1195, ss. 7, 8; 1981, c. 751, s. 7; 1989, c. 442; 1997-456, s. 27; 2002-37, s. 9; 2021-95, s. 1(c).)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

Editor's Note. - Session Laws 2021-95, s. 6, provides: "The North Carolina State Board of Dental Examiners may adopt temporary rules to implement the provisions of this act."

Effect of Amendments. - Session Laws 2021-95, s. 1(c), effective July 23, 2021, added subdivisions (a)(27), and (a)(28); and made stylistic changes.

Legal Periodicals. - For a note on advertising by health care professionals, see 2 Campbell L. Rev. 173 (1980).

For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

§ 90-41.1. Hearings.

1. With the exception of applicants for license by comity and applicants for reinstatement after revocation, every licensee, provisional licensee, intern, or applicant for license, shall be afforded notice and opportunity to be heard before the North Carolina State Board of Dental Examiners shall take any action, the effect of which would be:
   1. To deny permission to take an examination for licensing for which application has been duly made; or
   2. To deny a license after examination for any cause other than failure to pass an examination; or
   3. To withhold the renewal of a license for any cause other than failure to pay a statutory renewal fee; or
   4. To suspend a license; or
   5. To revoke a license; or
   6. To revoke or suspend a provisional license or an intern permit; or
   7. To invoke any other disciplinary measures, censure, or probative terms against a licensee, a provisional licensee, or an intern,
2. In lieu of or as a part of such hearing and subsequent proceedings, the Board is authorized and empowered to enter any consent order relative to the discipline, censure, or probation of a licensee, provisional licensee, an intern, or an applicant for a license, or relative to the revocation or suspension of a license, provisional license, or intern permit.
3. Following the service of the notice of hearing as required by Chapter 150B of the General Statutes, the Board and the person upon whom such notice is served shall have the right to conduct adverse examinations, take depositions, and engage in such further discovery proceedings as are permitted by the laws of this State in civil matters. The Board is hereby authorized and empowered to issue such orders, commissions, notices, subpoenas, or other process as might be necessary or proper to effect the purposes of this subsection; provided, however, that no member of the Board shall be subject to examination hereunder.

such proceedings to be conducted in accordance with the provisions of Chapter 150B of the General Statutes of North Carolina.

History

(1967, c. 451, s. 2; 1969, c. 804, s. 3; 1971, c. 755, s. 10; 1973, c. 1331, s. 3; 1987, c. 827, s. 1.)

§ 90-42. Restoration of revoked license.

Whenever any dentist has been deprived of his license, the North Carolina State Board of Dental Examiners, in its discretion, may restore said license upon due notice being given and hearing had, and satisfactory evidence produced of proper reformation of the licentiate, before restoration.

History

(1935, c. 66, s. 14.)

§ 90-43. Compensation and expenses of Board.

Notwithstanding G.S. 93B-5(a), each member of the North Carolina State Board of Dental Examiners shall receive as compensation for his services in the performance of his duties under this Article a sum not exceeding one hundred dollars ($100.00) for each day actually engaged in the performance of the duties of his office, said per diem to be fixed by said Board, and all legitimate and necessary expenses incurred in attending meetings of the said Board.

The Board is authorized and empowered to expend from funds collected hereunder such additional sum or sums as it may determine necessary in the administration and enforcement of this Article, and employ such personnel as it may deem requisite to assist in carrying out the administrative functions required by this Article and by the Board.

History

(1935, c. 66, s. 15; 1965, c. 163, s. 5; 1971, c. 755, s. 11; 1979, 2nd Sess., c. 1195, s. 9; 1989 (Reg. Sess., 1990), c. 892.)

§ 90-44. Annual report of Board.

Said Board shall, on or before the fifteenth day of February in each year, make an annual report as of the thirty-first day of December of the year preceding, of its proceedings, showing therein the examinations given, the fees received, the expenses incurred, the hearings conducted and the result thereof, which said report shall be filed with the Governor of the State of North Carolina.

History

(1935, c. 66, s. 15.)

Legal Periodicals. - For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective,” see 43 Campbell L. Rev. 423 (2021).

§ 90-45: Repealed by Session Laws 1967, c. 218, s. 4.

§ 90-46. Filling prescriptions.

Legally licensed druggists of this State may fill prescriptions of dentists duly licensed by the North Carolina State Board of Dental Examiners.

History

(1935, c. 66, s. 17.)

§ 90-47: Repealed by Session Laws 1979, 2nd Sess., c. 1195, s. 13.

§ 90-48. (Effective until December 1, 2021) Rules and regulations of Board; violation a misdemeanor.

The North Carolina State Board of Dental Examiners shall be and is hereby vested, as an agency of the State, with full power and authority to enact rules and regulations governing the practice of dentistry within the State, provided such rules and regulations are not inconsistent with the provisions of this Article. Such rules and regulations shall become effective 30 days after passage, and the same may be proven, as evidence, by the president and/or the secretary-treasurer of the Board, and/or by certified copy under the hand and official seal of the secretary-treasurer. A certified copy of any rule or regulation shall be receivable in all courts as prima facie evidence thereof if otherwise competent, and any person, firm, or corporation violating any such rule, regulation, or bylaw shall be guilty of a Class 2 misdemeanor, and each day that this section is violated shall be considered a separate offense.

The Board shall issue every two years to each licensed dentist a compilation or supplement of the Dental Practice Act and the Board rules and regulations, and upon written request therefor by such licensed dentist, a directory of dentists.

History

(1935, c. 66, s. 19; 1957, c. 592, s. 6; 1971, c. 755, s. 12; 1993, c. 539, s. 620; 1994, Ex. Sess., c. 24, s. 14(c).)

Disapproval of Certain Dental Board Rules - Session Laws 2016-31, s. 1, provides: "Pursuant to G.S. 150B-21.3(b1), 21 NCAC 16Q .0101 (General Anesthesia and Sedation Definitions), as adopted by the North Carolina Board of Dental Examiners on December 12, 2015, and approved by the Rules Review Commission on March 17, 2016, is disapproved."

At its March 17, 2016, meeting, the Rules Review Commission adopted several changes to the Dental Board's rules in 21 NCAC 16O and 16Q, governing nitrous oxide, sedation, and anesthesia. More than 10 objections were filed to the proposed amendments to 21 NCAC 16Q .0101, and that rule is presently subject to legislative review. In light of the pending legislative review, pursuant to G.S. 150B-21.3(b1), the Dental Board sought to delay the effective date of certain rules until the conclusion of the review. Specifically the Board requested to delay the effective dates of the following rules:

21 NCAC 16Q .0201 (amendment); 21 NCAC 16Q .0202 (amendment); 21 NCAC 16Q .0204 (amendment); 21 NCAC 16Q .0205 (repeal); 21 NCAC 16Q .0206 (adoption); 21 NCAC 16Q .0207 (adoption); 21 NCAC 16Q .0301 (amendment); 21 NCAC 16Q .0302 (amendment); 21 NCAC 16Q .0304 (amendment); 21 NCAC 16Q .0305 (adoption); 21 NCAC 16Q .0306 (adoption); 21 NCAC 16Q .0401 (repeal); 21 NCAC 16Q .0402 (repeal); 21 NCAC 16Q .0404 (adoption); 21 NCAC 16Q .0405 (adoption); 21 NCAC 16Q .0406 (adoption); 21 NCAC 16Q .0407 (adoption); 21 NCAC 16Q .0408 (adoption); 21 NCAC 16Q .0501 (repeal); 21 NCAC 16Q .0601 - .0602 (repeal); and 21 NCAC 16Q .0703 (adoption).

Session Laws 2016-31, s. 2, disapproved all of the rules listed in the letter except those listed in Session Laws 2016-31, s. 3, which were 21 NCAC 16Q .0204 (Procedure for General Anesthesia Evaluation or Inspection and Re-inspection), 21 NCAC 16Q .0205 (Results of Site Evaluation and Reevaluation), 21 NCAC 16Q .0306 (Procedure for Moderate Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0408 (Procedure for Moderate Pediatric Conscious Sedation Evaluation or Inspection and Re-Inspection), 21 NCAC 16Q .0703 (Reports of Adverse Occurrences), 21 NCAC 16Q .0601 (Reports of Adverse Occurrences), and 21 NCAC 16Q .0602 (Failure to Report).

Session Laws 2016-31, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b), the North Carolina Board of Dental Examiners shall not enforce the following rules which became effective April 1, 2016: 21 NCAC 16O .0301 (Nitrous Oxide Sedation); 21 NCAC 16O .0302 (Nitrous Oxide Monitoring); 21 NCAC 16O .0401 (Non-Delegable Functions). The Board shall continue to enforce these rules as they existed prior to the amendments which became effective on April 1, 2016."

§ 90-48.1. Free choice by patient guaranteed.

No agency of the State, county or municipality, nor any commission or clinic, nor any board administering relief, social security, health insurance or health service under the laws of the State of North Carolina shall deny to the recipients or beneficiaries of their aid or services the freedom to choose a duly licensed dentist as the provider of care or services which are within the scope of practice of the profession of dentistry as defined in this Chapter.

History

(1965, c. 1169, s. 3.)

§ 90-48.2. Board agreements with special peer review organizations for impaired dentists.

1. The State Board of Dental Examiners may, under rules adopted by the Board in compliance with Chapter 150B of the General Statutes, enter into agreements with special impaired dentist peer review organizations formed by the North Carolina Dental Society. The organizations shall be made up of Dental Society members designated by the Society, the Board, the University of North Carolina Adams School of Dentistry, and the East Carolina University School of Dental Medicine. Peer review activities to be covered by such agreements shall include investigation, review and evaluation of records, reports, complaints, litigation, and other information about the practices and practice patterns of dentists licensed by the Board, as such matters may relate to impaired dentists. Special impaired dentist peer review organizations may include a statewide supervisory committee and various regional and local components or subgroups. The statewide supervisory committee shall consist of representatives from the North Carolina Dental Society, the University of North Carolina Adams School of Dentistry, the East Carolina University School of Dental Medicine, and the Board. When the statewide supervisory committee considers activities and programs that relate to impaired dental hygienists pursuant to G.S. 90-48.3, its membership shall be expanded to include two dental hygienists appointed upon the recommendation of the dental hygienist member of the Board.
2. Agreements authorized under this section shall include provisions for the impaired dentist peer review organizations to receive relevant information from the Board and other sources, conduct any investigation, review, and evaluation in an expeditious manner, provide assurance of confidentiality of nonpublic information and of the peer review process, make reports of investigations and evaluations to the Board, and to do other related activities for operating and promoting a coordinated and effective peer review process. The agreements shall include provisions assuring basic due process for dentists that become involved.
3. The impaired dentist peer review organizations that enter into agreements with the Board shall establish and maintain a program for impaired dentists licensed by the Board for the purpose of identifying, reviewing and evaluating the ability of those dentists to function as dentists, and to provide programs for treatment and rehabilitation. The Board may provide funds for the administration of these impaired dentist peer review programs. The Board shall adopt rules to apply to the operation of impaired dentist peer review programs, with provisions for: definitions of impairment; guidelines for program elements; procedures for receipt and use of information of suspected impairment; procedures for intervention and referral; arrangements for monitoring treatment, rehabilitation, posttreatment support and performance; reports of individual cases to the Board; periodic reporting of statistical information; and assurance of confidentiality of nonpublic information and of the peer review process.
4. Upon investigation and review of a dentist licensed by the Board, or upon receipt of a complaint or other information, an impaired dentist peer review organization that enters into a peer review agreement with the Board shall report immediately to the Board detailed information about any dentist licensed by the Board, if:
   1. The dentist constitutes an imminent danger to the public or himself;
   2. The dentist refuses to cooperate with the program, refuses to submit to treatment, or is still impaired after treatment and exhibits professional incompetence; or
   3. It reasonably appears that there are other grounds for disciplinary action.
5. Impaired dentist peer review organizations operating pursuant to this section shall have the same protections and responsibilities as traditional State and local dental society peer review committees under Article 2A of this Chapter. In addition, any confidential patient information and other nonpublic information acquired, created, or used in good faith by an impaired dentist peer review organization pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case. No person participating in good faith in an impaired dentist peer review program developed under this section shall be required in a civil case to disclose any information (including opinions, recommendations, or evaluations) acquired or developed solely in the course of participating in the program.
6. Impaired dentist peer review activities conducted in good faith pursuant to any program developed under this section shall not be grounds for civil action under the laws of this State, and the activities are deemed to be State directed and sanctioned and shall constitute "State action" for the purposes of application of antitrust laws.

History

(1993, c. 420, s. 2; 1999-382, s. 4; 2021-95, s. 5.)

Editor's Note. - Session Laws 2021-95, s. 6, provides: "The North Carolina State Board of Dental Examiners may adopt temporary rules to implement the provisions of this act."

Effect of Amendments. - Session Laws 2021-95, s. 5, effective July 23, 2021, in subsection (a), substituted "the University of North Carolina Adams School of Dentistry, and the East Carolina University School of Dental Medicine” for "and the Dental School of the University of North Carolina” in the second sentence and "University of North Carolina Adams School of Dentistry, the East Carolina University School of Dental Medicine” for "UNC School of Dentistry” in the fifth sentence.

§ 90-48.3. Board authority to include impaired dental hygienists in programs developed for impaired dentists.

The Board may enter into agreements with special impaired dentist peer review organizations to include programs for impaired dental hygienists, and the provisions of G.S. 90-48.2 shall apply to any such agreements and programs. Special impaired dentist peer review organizations shall have the authority to appoint to the organizations, upon the recommendation of the dental hygienist member of the Board, one additional member who is a licensed dental hygienist and the member shall participate in activities and programs as they relate to impaired dental hygienists. Peer liaisons and volunteers participating in programs for impaired dental hygienists shall be dental hygienists. Dental hygienists who work with special impaired dentist peer review organizations in conducting programs for impaired dental hygienists shall have the same protections and responsibilities as members of traditional State and local dental society peer review committees under Article 2A of this Chapter and as provided in G.S. 90-48.2. The provisions of G.S. 90-48.2 regarding confidentiality shall also be applicable to all dental hygienist activities authorized under this section.

History

(1999-382, s. 1.)

§§ 90-48.4 through 90-48.6: Reserved for future codification purposes.

§ 90-48.7. Title.

General Statutes 90-48.7 through G.S. 90-48.11 may be cited as the "Dental Peer Review Protection Act."

History

(1979, 2nd Sess., c. 1192, s. 1.)

§ 90-48.8. Immunity of a member.

No member of a dental peer review committee of a State or local dental society shall be held liable in damages to any person for any action taken or recommendation made within the scope of the functions of that committee, except with regard to Medicare and Medicaid charges or payments if the committee member acts without malice and in reasonable belief that the action or recommendation was warranted by the facts known to him after reasonable effort to obtain the facts of the matter as to which the action was taken or recommendation was made.

History

(1979, 2nd Sess., c. 1192, s. 1.)

§ 90-48.9. Immunity of witnesses before dental peer review committee.

Notwithstanding any other provision of law, no person providing information to any dental peer review committee or organization shall be held, by reason of having provided such information, to have violated any criminal law, or to be civilly liable under any law unless:

1. The information is unrelated to the performance of the duty or function of the peer review committee or organization, or
2. The information is false, and the person providing the information knew, or had good reason to believe that the information was false.

History

(1979, 2nd Sess., c. 1192, s. 1.)

§ 90-48.10. Confidentiality of review organization's proceedings and records.

The proceedings and records of a dental review committee except those concerning the investigation and consideration of Medicare and Medicaid charges or payments, shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action arising out of the matters which are the subject of evaluation and review by the committee; and no person who was in attendance at a meeting of the committee shall be permitted or 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 any members thereof, except with regard to Medicare and Medicaid charges or payments: Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during proceedings of a committee, nor should any person who testifies before a committee or who is a member of a committee be prevented from testifying as to matters within his knowledge, but the witness shall not be asked about his testimony before a committee or opinions formed by him as a result of the committee hearings, except with regard to Medicare and Medicaid charges or payments.

History

(1979, 2nd Sess., c. 1192, s. 1.)

§ 90-48.11. No limitation on previous privileges and immunities.

Nothing in this G.S. 90-48.7 through G.S. 90-48.11 shall be deemed to annul, abridge, or limit in any manner any privileges or immunities heretofore existing under the laws of this State.

History

(1979, 2nd Sess., c. 1192, s. 1.)

§§ 90-49 through 90-52: Repealed by Session Laws 1945, c. 639, s. 14.

Cross References. - As to dental hygiene, see G.S. 90-221 through 90-233.1.

§§ 90-53 through 90-75: Recodified as §§ 90-85.2 to 90-85.26, 90-85.32 to 90-85.40.

Editor's Note. - Part 1 of this Article was rewritten by Session Laws 1981 (Reg. Sess., 1982), c. 1188, effective July 1, 1982, and has been recodified, along with certain sections from Part 1A of this Article, as Article 4A, G.S. 90-85.2 through 90-85.40.

§ 90-76: Repealed by Session Laws 1979, c. 1017, s. 1.

Cross References. - For present provisions as to substitution of equivalent product for drug prescribed by brand name, see G.S. 90-85.28.

PART 1A. DRUG PRODUCT SELECTION.

§§ 90-76.1 through 90-76.5: Recodified as G.S. 90-85.27 to 90-85.31 pursuant to Session Laws 1981 (Regular Session, 1982), c. 1188, s. 3.

§ 90-76.6: Repealed by Session Laws 1981 (Regular Session, 1982), c. 1188, s. 4.

PART 2. DEALING IN SPECIFIC DRUGS REGULATED.

§§ 90-77 through 90-80.1: Repealed by Session Laws 1981 (Regular Session, 1982), c. 1188, s. 5.

§§ 90-81 through 90-85: Repealed by Session Laws 1955, c. 1330, s. 8.

§ 90-85.1: Repealed by Session Laws 1981 (Regular Session, 1982), c. 1188, s. 5.

§ 90-85.2. Legislative findings.

The General Assembly of North Carolina finds that mandatory licensure of all who engage in the practice of pharmacy is necessary to insure minimum standards of competency and to protect the public from those who might otherwise present a danger to the public health, safety and welfare.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

Editor's Note. - This Article is Part 1 of Article 4 of this Chapter as rewritten by Session Laws 1981 (Reg. Sess., 1982), c. 1188, effective July 1, 1982. G.S. 90-76.1 through 90-76.5 from Part 1A of Article 4 were transferred and renumbered by s. 3 of the same 1981 (Reg. Sess., 1982) act, and are incorporated in this Article and recodified as G.S. 90-85.27 through 90-85.31. Where appropriate, the historical citations to the sections in former Part 1 of Article 4 have been added to corresponding sections in this Article.

Session Laws 2009-423, s. 1, effective October 1, 2009, designated G.S. 90-85.2 through 90-85.43 as Part 1 of Article 4A of Chapter 90.

Session Laws 2011-315, s. 3, provides: "A pharmacist licensed under Article 4A of Chapter 90 who may administer vaccines under 21 NCAC 46.2507 and 21 NCAC 32U.0101 shall be granted the authority to administer influenza vaccine to patients aged 14 years and older pursuant to 21 NCAC 46.2507 and 21 NCAC 32U.0101."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.4(a), provides: "Notwithstanding any other provision of law to the contrary, for the duration of the COVID-19 emergency, pharmacists licensed in this State under Article 4A of Chapter 90 of the General Statutes may confirm the identity of any individual seeking dispensation of a prescription by the visual inspection of any form of government-issued photo identification. If the individual seeking dispensation is a known customer, the pharmacist may confirm the individual's identity by referencing existing records, including the controlled substances reporting system. Nothing in this section shall be construed to relieve a pharmacist of the obligation to review information in the controlled substances reporting system in accordance with G.S. 90-113.74D."

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

Legal Periodicals. - For article, "Describing Drugs: A Response to Professors Allison and Ouellette," see 65 Duke L.J. Online 127 (2016).

For article, "Pre-Competition," see 95 N.C.L. Rev. 67 (2016).

For note, "Strange Bedfellows: Native American Tribes, Big Pharma, and the Legitimacy of Their Alliance," see 68 Duke L.J. 1433 (2019).

For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective," see 43 Campbell L. Rev. 423 (2021).

For article, "Prescription-Drug Policing: The Right to Health-Information Privacy Pre-and-Post-Carpenter," see 69 Duke L.J. 775 (2020).

For article, "The Drug (Pricing) Wars: States, Preemption, and Unsustainable Prices,” see 99 N.C.L. Rev. 167 (2020).

§ 90-85.3. Definitions.

1. "Administer" means the direct application of a drug to the body of a patient by injection, inhalation, ingestion or other means.
2. "Board" means the North Carolina Board of Pharmacy.
3. "Certified pharmacy technician" means a pharmacy technician who (i) has passed a nationally recognized pharmacy technician certification board examination, or its equivalent, that has been approved by the Board and (ii) obtains and maintains certification from a nationally recognized pharmacy technician certification board that has been approved by the Board.
4. "Clinical pharmacist practitioner" means a licensed pharmacist who meets the guidelines and criteria for such title established by the joint subcommittee of the North Carolina Medical Board and the North Carolina Board of Pharmacy and is authorized to enter into drug therapy management agreements with physicians in accordance with the provisions of G.S. 90-18.4.
5. "Compounding" means taking two or more ingredients and combining them into a dosage form of a drug, exclusive of compounding by a drug manufacturer, distributor, or packer.
6. "Deliver" means the actual, constructive or attempted transfer of a drug, a device, or medical equipment from one person to another.
7. "Device" means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent or other similar or related article including any component part or accessory, whose label or labeling bears the statement "Caution: federal law requires dispensing by or on the order of a physician." The term does not include:
   1. Devices used in the normal course of treating patients by health care facilities and agencies licensed under Chapter 131E or Article 2 of Chapter 122C of the General Statutes;
   2. Devices used or provided in the treatment of patients by medical doctors, dentists, physical therapists, occupational therapists, speech pathologists, optometrists, chiropractors, podiatrists, and nurses licensed under Chapter 90 of the General Statutes, provided they do not dispense devices used to administer or dispense drugs.
8. "Dispense" means preparing and packaging a prescription drug or device in a container and labeling the container with information required by State and federal law. Filling or refilling drug containers with prescription drugs for subsequent use by a patient is "dispensing". Providing quantities of unit dose prescription drugs for subsequent administration is "dispensing".
9. "Drug" means:
   1. Any article recognized as a drug in the United States Pharmacopeia, or in any other drug compendium or any supplement thereto, or an article recognized as a drug by the United States Food and Drug Administration;
   2. Any article, other than food or devices, intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in man or other animals;
   3. Any article, other than food or devices, intended to affect the structure or any function of the body of man or other animals; and
   4. Any article intended for use as a component of any articles specified in clause (1), (2) or (3) of this subsection.
10. "Emancipated minor" means any person under the age of 18 who is or has been married or who is or has been a parent; or whose parents or guardians have surrendered their rights to the minor's services and earnings as well as their right to custody and control of the minor's person; or who has been emancipated by an appropriate court order.
11. "Health care provider" means any licensed health care professional; any agent or employee of any health care institution, health care insurer, health care professional school; or a member of any allied health profession.
12. "Immunizing pharmacist" means a licensed pharmacist who meets all of the following qualifications:
    1. Holds a current provider level cardiopulmonary resuscitation certification issued by the American Heart Association or the American Red Cross, or an equivalent certification.
    2. Has successfully completed a certificate program in vaccine administration accredited by the Centers for Disease Control and Prevention, the Accreditation Council for Pharmacy Education, or a similar health authority or professional body approved by the Board.
    3. Maintains documentation of three hours of continuing education every two years, designed to maintain competency in the disease states, drugs, and vaccine administration.
    4. Has successfully completed training approved by the Division of Public Health's Immunization Branch for participation in the North Carolina Immunization Registry.
    5. Has notified the North Carolina Board of Pharmacy and the North Carolina Medical Board of immunizing pharmacist status.
    6. Administers vaccines, long-acting injectable medications, or immunizations in accordance with G.S. 90-18.15B.
13. "Label" means a display of written, printed or graphic matter upon the immediate or outside container of any drug.
14. "Labeling" means preparing and affixing a label to any drug container, exclusive of labeling by a manufacturer, packer or distributor of a nonprescription drug or a commercially packaged prescription drug or device.
15. "License" means a license to practice pharmacy including a renewal license issued by the Board.
16. "Medical equipment" means any of the following items that are intended for use by the consumer in the consumer's place of residence:
    1. A device.
    2. Ambulation assistance equipment.
    3. Mobility equipment.
    4. Rehabilitation seating.
    5. Oxygen and respiratory care equipment.
    6. Rehabilitation environmental control equipment.
    7. Diagnostic equipment.
    8. A bed prescribed by a physician to treat or alleviate a medical condition.
17. "Mobile pharmacy" means a pharmacy that meets all of the following conditions:
    1. Is either self-propelled or moveable by another vehicle that is self-propelled.
    2. Is operated by a nonprofit corporation.
    3. Dispenses prescription drugs at no charge or at a reduced charge to persons whose family income is less than two hundred percent (200%) of the federal poverty level and who do not receive reimbursement for the cost of the dispensed prescription drugs from Medicare, Medicaid, a private insurance company, or a governmental unit.
18. "Permit" means a permit to operate a pharmacy, deliver medical equipment, or dispense devices, including a renewal license issued by the Board.
19. "Person" means an individual, corporation, partnership, association, unit of government, or other legal entity.
20. "Person in loco parentis" means the person who has assumed parental responsibilities for a child.
21. "Pharmacist" means a person licensed under this Article to practice pharmacy.
22. "Pharmacy" means any place where prescription drugs are dispensed or compounded.
23. "Pharmacy personnel" means pharmacists and pharmacy technicians.
24. "Pharmacy technician" means a person who may, under the supervision of a pharmacist, perform technical functions to assist the pharmacist in preparing and dispensing prescription medications.
25. "Practice of pharmacy" is as specified in G.S. 90-85.3A.
26. "Prescription drug" means a drug that under federal law is required, prior to being dispensed or delivered, to be labeled with the following statement:
27. "Prescription order" means a written or verbal order for a prescription drug, prescription device, or pharmaceutical service from a person authorized by law to prescribe such drug, device, or service. A prescription order includes an order entered in a chart or other medical record of a patient.
28. "Unit dose medication system" means a system in which each dose of medication is individually packaged in a properly sealed and properly labeled container.

The term "medical equipment" does not include (i) medical equipment used or dispensed in the normal course of treating patients by or on behalf of home care agencies, hospitals, and nursing facilities licensed under Chapter 131E of the General Statutes or hospitals or agencies licensed under Article 2 of Chapter 122C of the General Statutes; (ii) medical equipment used or dispensed by professionals licensed under Chapters 90 or 93D of the General Statutes, provided the professional is practicing within the scope of that professional's practice act; (iii) upper and lower extremity prosthetics and related orthotics; or (iv) canes, crutches, walkers, and bathtub grab bars.

"Caution: Federal law prohibits dispensing without prescription."

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1; 1983, c. 196, ss. 1-3; 1991, c. 578, s. 1; 1993 (Reg. Sess., 1994), c. 692, s. 2; 1995, c. 94, s. 24; 1999-246, s. 1; 1999-290, ss. 4, 5; 2001-375, s. 1; 2002-159, s. 37; 2013-246, ss. 1, 2; 2013-379, s. 1; 2021-3, s. 2.9(b).)

Editor's Note. - Subsection (q3) as added by Session Laws 2013-379, s. 1, was redesignated as subsection (b1) and former subsection (b1) was redesignated as subsection (b2) at the direction of the Revisor of Statutes to maintain alphabetical order.

Session Laws 2011-315, s. 3, provides: "A pharmacist licensed under Article 4A of Chapter 90 who may administer vaccines under 21 NCAC 46.2507 and 21 NCAC 32U.0101 shall be granted the authority to administer influenza vaccine to patients aged 14 years and older pursuant to 21 NCAC 46.2507 and 21 NCAC 32U.0101."

Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.3(a)-(d), as amended by Session Laws 2021-3, s. 2.8(a), provides: "(a) In the event the Centers for Disease Control and Prevention recommends an immunization or vaccination for COVID-19 at a time when the General Assembly is not in regular session, any person may petition the State Health Director, in writing, to authorize immunizing pharmacists, as defined in G.S. 90-85.3, to administer the recommended immunization or vaccination for COVID-19 by means of a statewide standing order. The State Health Director shall, within 30 days after receiving such petition, consult with the following entities in evaluating the petition and respond by either approving or denying the petition: Representatives of the North Carolina Academy of Family Physicians, the North Carolina Medical Society, the North Carolina Pediatric Society, the North Carolina Association of Community Pharmacists, the North Carolina Association of Pharmacists, and the North Carolina Retail Merchants Association.

"(b) Following the consultation provided in subsection (a) of this section, if the State Health Director approves the petition, the State Health Director may issue a statewide standing order authorizing the administration of an immunization or vaccination of COVID-19 by immunizing pharmacists. If the State Health Director issues a statewide standing order, it shall expire upon the adjournment of the next regular session of the General Assembly.

"(c) If the State Health Director approves the petition as provided in subsection (a) of this section, the State Health Director shall, within 10 days after approval, consult with the entities listed in subsection (a) of this section to develop and submit to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services a minimum standard screening questionnaire and safety procedures for written protocols for the administration of the recommended immunization or vaccination for COVID-19 by immunizing pharmacists. In the event that the questionnaire and recommended standards are not developed and submitted within the 10-day period as provided in this subsection, then the Immunization Branch of the Department of Health and Human Services, Division of Public Health, shall develop the questionnaire and recommended standards within the next 10 days and submit them to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services. At a minimum, immunizing pharmacists who administer the recommended immunization or vaccination for COVID-19 shall be required to comply with all the requirements of G.S. 90-85.15B.

"(c1) The State Health Director shall amend, reissue, or replace any existing statewide standing order issued pursuant to this section, to ensure that the statewide standing order is consistent with federal law and guidance pertaining to qualified individuals who may administer a COVID-19 vaccine, including P.L. 109-148, 'The Public Readiness and Emergence Preparedness Act,' as amended, and associated declarations of public health emergencies and advisory opinions issued by the Secretary of the United States Department of Health and Human Services.

"(d) All of the following individuals shall be immune from any civil or criminal liability for actions authorized by this section as follows:

"(1) The State Health Director acting pursuant to this section.

"(2) Any pharmacist or qualified individual under State or federal law who administers a COVID-19 immunization or vaccine pursuant to a statewide standing order issued under this section."

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

Session Laws 2021-3, s. 2.9(c), provides: "The North Carolina Board of Pharmacy may adopt temporary rules to implement this section."

Session Laws 2021-161, s. 5, provides: "No later than December 1, 2021, the Department of Insurance shall convene a stakeholder workgroup to study and recommend a single, unified process to accredit specialty pharmacies in the State. The workgroup shall examine at least the regulatory, administrative, and financial challenges facing those who wish to gain specialty pharmacy status. The workgroup shall be composed of at least two representatives from each of the following: independent pharmacies, pharmacy service administrative organizations, pharmacy benefits managers, and insurers who offer health benefit plans. The workgroup shall meet at least three times and shall report its findings and recommendations to the Joint Legislative Oversight Committee on Health and Human Services, the Senate Health Care Committee, and the House Health Committee no later than May 15, 2022.”

Effect of Amendments. - Session Laws 2013-246, ss. 1 and 2, effective October 1, 2013, added subsection (i1); and rewrote subsection (r).

Session Laws 2013-379, s. 1, effective October 1, 2013, added subsection (q3).

Session Laws 2021-3, s. 2.9(b), effective October 1, 2021, substituted "vaccines, long-acting injectable medications," for "vaccines" in subsection (i1)(6).

Legal Periodicals. - For note, "Don't Try This at Home: The FDA's Restrictive Regulation of Home-Testing Devices," see 67 Duke L.J. 383 (2017).

§ 90-85.3A. Practice of pharmacy.

1. A pharmacist is responsible for interpreting and evaluating drug orders, including prescription orders; compounding, dispensing, and labeling prescription drugs and devices; properly and safely storing drugs and devices; maintaining proper records; and controlling pharmacy goods and services.
2. A pharmacist may advise and educate patients and health care providers concerning therapeutic values, content, uses, and significant problems of drugs and devices; assess, record, and report adverse drug and device reactions; take and record patient histories relating to drug and device therapy; monitor, record, and report drug therapy and device usage; perform drug utilization reviews; and participate in drug and drug source selection and device and device source selection as provided in G.S. 90-85.27 through G.S. 90-85.31.
3. An immunizing pharmacist is authorized and permitted to administer drugs as provided in G.S. 90-85.15B, and in accordance with rules adopted by each of the Board of Pharmacy, the Board of Nursing, and the North Carolina Medical Board. These rules shall be designed to ensure the safety and health of the patients for whom such drugs are administered.
4. An approved clinical pharmacist practitioner may collaborate with physicians in determining the appropriate health care for a patient subject to the provisions of G.S. 90-18.4.

History

(2013-246, s. 3.)

Editor's Note. - Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.3(a)-(d), as amended by Session Laws 2021-3, s. 2.8(a), provides: "(a) In the event the Centers for Disease Control and Prevention recommends an immunization or vaccination for COVID-19 at a time when the General Assembly is not in regular session, any person may petition the State Health Director, in writing, to authorize immunizing pharmacists, as defined in G.S. 90-85.3, to administer the recommended immunization or vaccination for COVID-19 by means of a statewide standing order. The State Health Director shall, within 30 days after receiving such petition, consult with the following entities in evaluating the petition and respond by either approving or denying the petition: Representatives of the North Carolina Academy of Family Physicians, the North Carolina Medical Society, the North Carolina Pediatric Society, the North Carolina Association of Community Pharmacists, the North Carolina Association of Pharmacists, and the North Carolina Retail Merchants Association.

"(b) Following the consultation provided in subsection (a) of this section, if the State Health Director approves the petition, the State Health Director may issue a statewide standing order authorizing the administration of an immunization or vaccination of COVID-19 by immunizing pharmacists. If the State Health Director issues a statewide standing order, it shall expire upon the adjournment of the next regular session of the General Assembly.

"(c) If the State Health Director approves the petition as provided in subsection (a) of this section, the State Health Director shall, within 10 days after approval, consult with the entities listed in subsection (a) of this section to develop and submit to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services a minimum standard screening questionnaire and safety procedures for written protocols for the administration of the recommended immunization or vaccination for COVID-19 by immunizing pharmacists. In the event that the questionnaire and recommended standards are not developed and submitted within the 10-day period as provided in this subsection, then the Immunization Branch of the Department of Health and Human Services, Division of Public Health, shall develop the questionnaire and recommended standards within the next 10 days and submit them to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services. At a minimum, immunizing pharmacists who administer the recommended immunization or vaccination for COVID-19 shall be required to comply with all the requirements of G.S. 90-85.15B.

"(c1) The State Health Director shall amend, reissue, or replace any existing statewide standing order issued pursuant to this section, to ensure that the statewide standing order is consistent with federal law and guidance pertaining to qualified individuals who may administer a COVID-19 vaccine, including P.L. 109-148, ‘The Public Readiness and Emergence Preparedness Act,' as amended, and associated declarations of public health emergencies and advisory opinions issued by the Secretary of the United States Department of Health and Human Services.

"(d) All of the following individuals shall be immune from any civil or criminal liability for actions authorized by this section as follows:

"(1) The State Health Director acting pursuant to this section.

"(2) Any pharmacist or qualified individual under State or federal law who administers a COVID-19 immunization or vaccine pursuant to a statewide standing order issued under this section."

Session Laws 2020-3, s. 3D.4(a), provides: "Notwithstanding any other provision of law to the contrary, for the duration of the COVID-19 emergency, pharmacists licensed in this State under Article 4A of Chapter 90 of the General Statutes may confirm the identity of any individual seeking dispensation of a prescription by the visual inspection of any form of government-issued photo identification. If the individual seeking dispensation is a known customer, the pharmacist may confirm the individual's identity by referencing existing records, including the controlled substances reporting system. Nothing in this section shall be construed to relieve a pharmacist of the obligation to review information in the controlled substances reporting system in accordance with G.S. 90-113.74D."

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

§ 90-85.4. North Carolina Pharmaceutical Association.

The North Carolina Pharmaceutical Association, and the persons composing it, shall continue to be a body politic and corporate under the name and style of the North Carolina Pharmaceutical Association, and by that name have the right to sue and be sued, to plead and be impleaded, to purchase and hold real estate and grant the same, to have and to use a common seal, and to do any other things and perform any other acts as appertain to bodies corporate and politic not inconsistent with the Constitution and laws of the State.

History

(1881, c. 355, s. 1; Code, s. 3135; Rev., s. 4471; C.S., s. 6650; 1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.5. Objective of Pharmaceutical Association.

The objective of the Association is to unite the pharmacists of this State for mutual aid, encouragement, and improvement; to encourage scientific research, develop pharmaceutical talent and to elevate the standard of professional thought.

History

(1881, c. 355, s. 2; Code, s. 3136; Rev., s. 4472; C.S., s. 6651; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1991, c. 125, s. 1.)

Editor's Note. - Session Laws 2020-3, s. 3D.3(a)-(d), as amended by Session Laws 2021-3, s. 2.8(a), provides: "(a) In the event the Centers for Disease Control and Prevention recommends an immunization or vaccination for COVID-19 at a time when the General Assembly is not in regular session, any person may petition the State Health Director, in writing, to authorize immunizing pharmacists, as defined in G.S. 90-85.3, to administer the recommended immunization or vaccination for COVID-19 by means of a statewide standing order. The State Health Director shall, within 30 days after receiving such petition, consult with the following entities in evaluating the petition and respond by either approving or denying the petition: Representatives of the North Carolina Academy of Family Physicians, the North Carolina Medical Society, the North Carolina Pediatric Society, the North Carolina Association of Community Pharmacists, the North Carolina Association of Pharmacists, and the North Carolina Retail Merchants Association.

"(b) Following the consultation provided in subsection (a) of this section, if the State Health Director approves the petition, the State Health Director may issue a statewide standing order authorizing the administration of an immunization or vaccination of COVID-19 by immunizing pharmacists. If the State Health Director issues a statewide standing order, it shall expire upon the adjournment of the next regular session of the General Assembly.

"(c) If the State Health Director approves the petition as provided in subsection (a) of this section, the State Health Director shall, within 10 days after approval, consult with the entities listed in subsection (a) of this section to develop and submit to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services a minimum standard screening questionnaire and safety procedures for written protocols for the administration of the recommended immunization or vaccination for COVID-19 by immunizing pharmacists. In the event that the questionnaire and recommended standards are not developed and submitted within the 10-day period as provided in this subsection, then the Immunization Branch of the Department of Health and Human Services, Division of Public Health, shall develop the questionnaire and recommended standards within the next 10 days and submit them to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services. At a minimum, immunizing pharmacists who administer the recommended immunization or vaccination for COVID-19 shall be required to comply with all the requirements of G.S. 90-85.15B.

"(c1) The State Health Director shall amend, reissue, or replace any existing statewide standing order issued pursuant to this section, to ensure that the statewide standing order is consistent with federal law and guidance pertaining to qualified individuals who may administer a COVID-19 vaccine, including P.L. 109-148, ‘The Public Readiness and Emergence Preparedness Act,' as amended, and associated declarations of public health emergencies and advisory opinions issued by the Secretary of the United States Department of Health and Human Services.

"(d) All of the following individuals shall be immune from any civil or criminal liability for actions authorized by this section as follows:

"(1) The State Health Director acting pursuant to this section.

"(2) Any pharmacist or qualified individual under State or federal law who administers a COVID-19 immunization or vaccine pursuant to a statewide standing order issued under this section."

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

§ 90-85.6. Board of Pharmacy; creation; membership; qualification of members.

1. Creation. - The responsibility for enforcing the provisions of this Article and the laws pertaining to the distribution and use of drugs is vested in the Board. The Board shall adopt reasonable rules for the performance of its duties. The Board shall have all of the duties, powers and authorities specifically granted by and necessary for the enforcement of this Article, as well as any other duties, powers and authorities that may be granted from time to time by other appropriate statutes. The Board may establish a program for the purpose of aiding in the recovery and rehabilitation of pharmacists who have become addicted to controlled substances or alcohol, and the Board may use money collected as fees to fund such a program.
2. Membership. - The Board shall consist of six members, one of whom shall be a representative of the public, and the remainder of whom shall be pharmacists.
3. Qualifications. - The public member of the Board shall not be a health care provider or the spouse of a health care provider. He shall not be enrolled in a program to prepare him to be a health care provider. The public member of the Board shall be a resident of this State at the time of his appointment and while serving as a Board member. The pharmacist members of the Board shall be residents of this State at the time of their appointment and while serving as Board members.

History

(1905, c. 108, ss. 5-7, 9; Rev., ss. 4473, 4475; 1907, c. 113, s. 1; C.S., ss. 6652, 6654; 1945, c. 572, s. 1; 1981, c. 717, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1997-177, s. 1.)

§ 90-85.7. Board of Pharmacy; selection; vacancies; commission; term; per diem; removal.

1. The Board of Pharmacy shall consist of six persons. Five of the members shall be licensed as pharmacists within this State and shall be elected and commissioned by the Governor as hereinafter provided. Pharmacist members shall be chosen in an election held as hereinafter provided in which every person licensed to practice pharmacy in North Carolina and residing in North Carolina shall be entitled to vote. Each pharmacist member of said Board shall be elected for a term of five years and until his successor shall be elected and shall qualify. Members chosen by election under this section shall be elected upon the expiration of the respective terms of the members of the present Board of Pharmacy. No pharmacist shall be nominated for membership on said Board, or shall be elected to membership on said Board, unless, at the time of such nomination, and at the time of such election, he is licensed to practice pharmacy in North Carolina. In case of death, resignation or removal from the State of any pharmacist member of said Board, the pharmacist members of the Board shall elect in his place a pharmacist who meets the criteria set forth in this section to fill the unexpired term.
2. All nominations and elections of pharmacist members of the Board shall be conducted by the Board of Pharmacy, which is hereby constituted a Board of Pharmacy Elections. Every pharmacist with a current North Carolina license residing in this State shall be eligible to vote in all elections. The list of pharmacists shall constitute the registration list for elections. The Board of Pharmacy Elections is authorized to make rules and regulations relative to the conduct of these elections, provided such rules and regulations are not in conflict with the provisions of this section and provided that notice shall be given to all pharmacists residing in North Carolina. All such rules and regulations shall be adopted subject to the procedures of Chapter 150B of the General Statutes of North Carolina. From any decision of the Board of Pharmacy Elections relative to the conduct of such elections, appeal may be taken to the courts in the manner otherwise provided by Chapter 150B of the General Statutes.
3. All rules, regulations, and bylaws of the North Carolina Board of Pharmacy so far as they are not inconsistent with the provisions of this Article, shall continue in effect.
4. Notwithstanding G.S. 93B-5, Board members shall receive as compensation for their services per diem not to exceed one hundred dollars ($100.00) for each day during which they are engaged in the official business of the Board.

One member of the Board shall be a person who is not a pharmacist and who represents the interest of the public at large. The Governor shall appoint this member.

All Board members serving on June 30, 1989, shall be eligible to complete their respective terms. No member appointed or elected to a term on or after July 1, 1989, shall serve more than two complete consecutive five-year terms. The Governor may remove any member appointed by him for good cause shown and may appoint persons to fill unexpired terms of members appointed by him.

It shall be the duty of a member of the Board of Pharmacy, within 10 days after receipt of notification of his appointment and commission, to appear before the clerk of the superior court of the county in which he resides and take and subscribe an oath to properly and faithfully discharge the duties of his office according to law.

History

(1905, c. 108, ss. 5-7; Rev., s. 4473; C.S., s. 6652; 1981, c. 717, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1983, c. 196, s. 4; 1989, c. 118; 1989 (Reg. Sess., 1990), c. 825.)

Legal Periodicals. - For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective,” see 43 Campbell L. Rev. 423 (2021).

§ 90-85.8. Organization.

The Board shall elect from its members a president, vice-president, and other officers as it deems necessary. The officers shall serve one-year terms and until their successors have been elected and qualified.

History

(1905, c. 108, s. 8; Rev., s. 4474; C.S., s. 6653; 1923, c. 82; 1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.9. Meetings.

The Board shall meet at least twice annually for the purpose of administering examinations and conducting other business. Four Board members constitute a quorum. The Board shall keep a record of its proceedings, a register of all licensed persons, and a register of all persons to whom permits have been issued. The Board shall report, in writing, annually to the Governor and the presiding officer of each house of the General Assembly.

History

(1905, c. 108, s. 8; Rev., s. 4474; C.S., s. 6653; 1923, c. 82; 1981 (Reg. Sess., 1982), c. 1188, s. 1.)

Legal Periodicals. - For article, "In Defense of Occupational Licensing: A Legal Practitioner's Perspective,” see 43 Campbell L. Rev. 423 (2021).

§ 90-85.10. Employees; Executive Director.

The Board shall employ as Executive Director a pharmacist to serve as a full-time employee of the Board. The Executive Director shall serve as secretary and treasurer of the Board and shall perform administrative functions as authorized by the Board. The Board shall have the authority to employ other personnel as it may deem necessary to carry out the requirements of this Article.

History

(1905, c. 108, s. 9; Rev., s. 4475; 1907, c. 113, s. 1; C.S., s. 6654; 1945, c. 572, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.11. Compensation of employees.

The Board shall determine the compensation of its employees. Employees shall be reimbursed for all necessary expenses incurred in the performance of their official duties.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.11A. Acquisition of real property; equipment; liability insurance.

1. The Board shall have the power to acquire, hold, rent, encumber, alienate, and otherwise deal with real property in the same manner as a private person or corporation, subject only to approval of the Governor and the Council of State. Collateral pledged by the Board for an encumbrance is limited to the assets, income, and revenues of the Board.
2. The Board may purchase, rent, or lease equipment and supplies and purchase liability insurance or other insurance to cover the activities of the Board, its operations, or its employees.

History

(2001-407, s. 1.)

§ 90-85.12. Executive Director to make investigations and prosecute.

1. Upon receiving information concerning a violation of this Article that is a threat to the public safety, health, or welfare, the Executive Director shall promptly conduct an investigation, and if he finds evidence of the violation, he may file a complaint and prosecute the offender in a Board hearing. If the Executive Director receives information concerning a violation of this Article that does not pose a threat to the public safety, health, or welfare, the Executive Director may conduct an investigation, and if he finds evidence of the violation, he may file a complaint and prosecute the offender in a Board hearing.
2. In all prosecutions of unlicensed persons for the violation of any of the provisions of this Article, a certificate signed under oath by the Executive Director shall be competent and admissible evidence in any court of this State that the person is not licensed, as required by law.

History

(1905, c. 108, s. 11; Rev., s. 4477; C.S., s. 6656; 1923, c. 74, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 2005-402, s. 1.2.)

Effect of Amendments. - Session Laws 2005-402, s. 1.2, effective September 19, 2005, rewrote subsection (a), adding the second sentence.

Editor's Note. - Session Laws 2005-402, s. 1.1, provides: "It is the goal of the General Assembly that the Board of Pharmacy will use the funds generated by this act to enable it to conduct investigations and inspections under this Article. The Board of Pharmacy shall annually expend at least one hundred thousand dollars ($100,000) of the funds generated by this act for a Pharmacy Recovery Network." Sections 2 through 4 of that act raised fees collectible by the Board of Pharmacy and increased the minimum requirements for continuing education.

§ 90-85.13. Approval of schools and colleges of pharmacy.

The Board shall approve schools and colleges of pharmacy upon a finding that students successfully completing the course of study offered by the school or college can reasonably be expected to practice pharmacy safely and properly.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.14. Practical experience program.

The Board shall issue regulations governing a practical experience program. These regulations shall assure that the person successfully completing the program will have gained practical experience that will enable him to safely and properly practice pharmacy.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.15. Application, qualifications, and criminal record check for licensure as a pharmacist; prerequisites.

1. Each applicant for licensure under this Article as a pharmacist shall file an application with the Executive Director on the form furnished by the Board, verified under oath, setting forth all of the following:
   1. The applicant's name.
   2. The applicant's age.
   3. The place at which and the time that the applicant has spent in the study of pharmacy.
   4. The applicant's experience in compounding and dispensing prescriptions under the supervision of a pharmacist.
2. The Board shall license an applicant to practice pharmacy if, in addition to completing an application as specified in subsections (a) of this section, the applicant meets all of the following qualifications:
   1. Holds an undergraduate degree from a school of pharmacy approved by the Board.
   2. Has had up to one year of experience, approved by the Board, under the supervision of a pharmacist.
   3. Has passed the required examination offered by the Board.
   4. Has appeared at a time and place designated by the Board and submitted to an examination as to the applicant's qualifications for being licensed. The applicant must demonstrate to the Board the physical and mental competency to practice pharmacy.
3. The Board shall require each applicant to provide the Board with a criminal record report. All applicants shall obtain criminal record reports from one or more reporting services designated by the Board to provide criminal record reports. The Board shall keep all information obtained pursuant to this subsection privileged, in accordance with applicable State law and federal guidelines, and the information shall be confidential and shall not be a public record under Chapter 132 of the General Statutes. Applicants are required to pay the designated reporting service for the cost of these reports.

History

(1905, c. 108, s. 13; Rev., ss. 4479, 4480; 1915, c. 165; C.S., s. 6658; 1921, c. 52; 1933, c. 206, ss. 1, 2; 1935, c. 181; 1937, c. 94; 1971, c. 481; 1981, c. 717, s. 4; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1983, c. 196, s. 5; 2002-147, s. 8; 2014-100, s. 17.1(o); 2017-144, s. 1.)

Editor's Note. - 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. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, substituted "Department of Public Safety" for "Department of Justice" three times in the first paragraph of subsection (c) and at the beginning of the second paragraph of subsection (c).

Session Laws 2017-144, s. 1, effective January 1, 2018, rewrote the section.

§ 90-85.15A. Pharmacy technicians.

1. Registration, Generally. - A registration program for pharmacy technicians is established for the purposes of identifying those persons who are employed or are eligible for employment as pharmacy technicians. The Board must maintain a registry of pharmacy technicians that contains the name of each pharmacy technician, the name and location of a pharmacy in which the pharmacy technician works, the pharmacist-manager who employs the pharmacy technician, and the dates of that employment.
2. Registration of Noncertified Pharmacy Technicians. - The Board must register a pharmacy technician who pays the fee required under G.S. 90-85.24, is employed by a pharmacy holding a valid permit under this Article, and completes a required training program provided by the supervising pharmacist-manager as specified in subsection (b) of this section. A pharmacy technician must register with the Board within 30 days after the date the pharmacy technician completes a training program provided by the supervising pharmacist-manager. The registration must be renewed annually by paying a registration fee.
3. Registration of Certified Pharmacy Technicians. - The Board must register a certified pharmacy technician who pays the fee required under G.S. 90-85.24 and provides proof of current certification. The registration must be renewed annually by paying a registration fee and providing proof of current certification.
4. Responsibilities of Pharmacist-Manager to Noncertified Pharmacy Technicians. - A pharmacist-manager may hire a person who has a high school diploma or equivalent or is currently enrolled in a program that awards a high school diploma or equivalent to work as a pharmacy technician. Pursuant to G.S. 90-85.21, a pharmacist-manager must notify the Board within 21 days of the date the pharmacy technician began employment. The pharmacist-manager must provide a training program for a pharmacy technician that includes pharmacy terminology, pharmacy calculations, dispensing systems and labeling requirements, pharmacy laws and regulations, record keeping and documentation, and the proper handling and storage of medications. The requirements of a training program may differ depending upon the type of employment. The training program must be provided and completed within 180 days of the date the pharmacy technician began employment.
5. Responsibilities of Pharmacist-Manager to Certified Pharmacy Technicians. - A pharmacist-manager may hire a certified pharmacy technician who has registered with the Board pursuant to subsection (a2) of this section. Pursuant to G.S. 90-85.21, a certified pharmacy technician shall notify the Board within 10 days of beginning employment as a pharmacy technician. The supervising pharmacist-manager and certified pharmacy technician shall be deemed to have satisfied the pharmacy technician training program requirements of subsection (b) of this section.
6. Supervision. -  A pharmacist may not supervise more than two pharmacy technicians unless the pharmacist-manager receives written approval from the Board. The Board may not allow a pharmacist to supervise more than two pharmacy technicians unless the additional pharmacy technicians are certified pharmacy technicians. The Board must respond to a request from a pharmacist-manager to allow a pharmacist to supervise more than two pharmacy technicians within 60 days of the date it received the request. The Board must respond to the request in one of three ways:
   1. Approval of the request.
   2. Approval of the request as amended by the Board.
   3. Disapproval of the request. A disapproval of a request must include a reasonable explanation of why the request was not approved.
7. Disciplinary Action. - The Board may, in accordance with Chapter 150B of the General Statutes and rules adopted by the Board, issue a letter of reprimand or suspend, restrict, revoke, or refuse to grant or renew the registration of a pharmacy technician if the pharmacy technician has done one or more of the following:
   1. Made false representations or withheld material information in connection with registering as a pharmacy technician.
   2. Been found guilty of or plead guilty or nolo contendere to a felony involving the use or distribution of drugs.
   3. Indulged in the use of drugs to an extent that it renders the pharmacy technician unfit to assist a pharmacist in preparing and dispensing prescription medications.
   4. Developed a physical or mental disability that renders the pharmacy technician unfit to assist a pharmacist in preparing and dispensing prescription medications.
   5. Been negligent in assisting a pharmacist in preparing and dispensing prescription medications.
   6. Failed to comply with the laws governing pharmacy technicians, including any provision of this Article or rules adopted by the Board governing pharmacy technicians.
8. Exemption. - This section does not apply to pharmacy students who are enrolled in a school of pharmacy approved by the Board under G.S. 90-85.13.
9. Rule-Making Authority. - The Board may adopt rules necessary to implement this section.

History

(2001-375, s. 2; 2013-379, s. 2.)

Editor's Note. - Session Laws 2001-375, s. 9, provides: "A person employed as a pharmacy technician prior to January 1, 2002, may register with the Board of Pharmacy as a pharmacy technician without completing the pharmacy technician-training program required under G.S. 90-85.15A, as enacted by this act, if (i) the pharmacist-manager who employs the person certifies to the Board that the person has the training necessary to serve as a pharmacy technician and (ii) the person registers with the Board prior to July 1, 2002."

Effect of Amendments. - Session Laws 2013-379, s. 2, effective October 1, 2013, rewrote the section. For applicability, see Editor's note.

§ 90-85.15B. (Effective until February 1, 2022) Immunizing pharmacists.

1. Except as provided in subsection (b) and (c) of this section, an immunizing pharmacist may administer vaccinations or immunizations only if the vaccinations or immunizations are recommended or required by the Centers for Disease Control and Prevention and administered to persons at least 18 years of age pursuant to a specific prescription order.
2. An immunizing pharmacist may administer the vaccinations or immunizations listed in subdivisions (1) through (7) of this subsection to persons at least 18 years of age if the vaccinations or immunizations are administered under written protocols as defined in 21 NCAC 46 .2507(b)(12) and 21 NCAC 32U .0101(b)(12) and in accordance with the supervising physician's responsibilities as defined in 21 NCAC 46 .2507(e) and 21 NCAC 32U .0101(e), and the physician is licensed in and has a practice physically located in North Carolina:
   1. Pneumococcal polysaccharide or pneumococcal conjugate vaccines.
   2. Herpes zoster vaccine.
   3. Hepatitis B vaccine.
   4. Meningococcal polysaccharide or meningococcal conjugate vaccines and Serogroup B meningococcal vaccines.
   5. Tetanus-diphtheria, tetanus and diphtheria toxoids and pertussis, tetanus and diphtheria toxoids and acellular pertussis, or tetanus toxoid vaccines. However, a pharmacist shall not administer any of these vaccines if the patient discloses that the patient has an open wound, puncture, or tissue tear.
   6. Human Papillomavirus vaccine.
   7. Hepatitis A vaccine.
3. An immunizing pharmacist may administer (i) an influenza vaccine, (ii) a COVID-19 vaccine approved by the United States Food and Drug Administration, or (iii) a COVID-19 vaccine authorized under an emergency use authorization by the United States Food and Drug Administration to persons at least 10 years of age pursuant to 21 NCAC 46. 2507 and 21 NCAC 32U. 0101. An immunizing pharmacist may administer (i) an influenza vaccine, (ii) a COVID-19 vaccine approved by the United States Food and Drug Administration, or (iii) a COVID-19 vaccine authorized under an emergency use authorization by the United States Food and Drug Administration to persons at least six years of age pursuant to a specific prescription order initiated by a prescriber following a physical examination of the patient by the prescriber. When supervised by an immunizing pharmacist, pharmacy interns and pharmacy technicians who have completed immunization-related continuing pharmacy education approved by the Accreditation Council for Pharmacy Education may administer (i) an influenza vaccine, (ii) a COVID-19 vaccine approved by the United States Food and Drug Administration, or (iii) a COVID-19 vaccine authorized under an emergency use authorization by the United States Food and Drug Administration to persons at least 10 years of age pursuant to 21 NCAC 46. 2507 and 21 NCAC 32U .0101.
4. An immunizing pharmacist may administer the influenza vaccine to persons at least 10 years of age pursuant to 21 NCAC 46. 2507 and 21 NCAC 32U. 0101. An immunizing pharmacist may administer an influenza vaccine to persons at least six years of age pursuant to a specific prescription order initiated by a prescriber following a physical examination of the patient by the prescriber.
5. An immunizing pharmacist may administer a long-acting injectable medication, including testosterone injections and vitamin B12, to persons at least 18 years of age pursuant to a specific prescription order initiated by a prescriber following an examination of the patient which conforms to the standards of acceptable and prevailing medical practice by the prescriber. An immunizing pharmacist who administers a long-acting injectable medication pursuant to this section shall do all of the following:
   1. Maintain a record of any administration of a long-acting injectable performed by the immunizing pharmacist to the patient in a patient profile or record.
   2. Within 72 hours after the administration of the long-acting injectable performed by the immunizing pharmacist to the patient, notify the prescriber regarding which medication and dosage was administered to the patient. If the long-acting injectable is in the class of psychotropic medications, the immunizing pharmacist shall notify the prescriber within 48 hours of administering the medication.
   3. Within 72 hours of receipt of a specific prescription, notify the prescriber of the long-acting injectable medication if the medication was not administered to the patient. If the prescription is in the class of psychotropic medications, the immunizing pharmacist shall notify the prescriber if the medication was not administered within 48 hours of receipt of the prescription.
6. An immunizing pharmacist who administers a vaccine or immunization to any patient pursuant to this section shall do all of the following:
   1. Maintain a record of any vaccine or immunization administered to the patient in a patient profile.
   2. Within 72 hours after administration of the vaccine or immunization, notify any primary care provider identified by the patient. If the patient does not identify a primary care provider, the immunizing pharmacist shall direct the patient to information describing the benefits to a patient of having a primary care physician, prepared by any of the following: North Carolina Medical Board, North Carolina Academy of Family Physicians, North Carolina Medical Society, or Community Care of North Carolina.
   3. Except for influenza vaccines administered under G.S. 90-85.15B(c), access the North Carolina Immunization Registry prior to administering the vaccine or immunization and record any vaccine or immunization administered to the patient in the registry within 72 hours after the administration. In the event the registry is not operable, an immunizing pharmacist shall report as soon as reasonably possible.

History

(2013-246, s. 4; 2014-115, s. 40; 2019-21, s. 1; 2021-3, s. 2.9(a); 2021-110, ss. 2, 3.)

Section set out twice. - The section above is effective until February 1, 2022. For the section as amended February 1, 2022, see the following section, also numbered G.S. 90-85.15B.

Editor's Note. - Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.3(a)-(d), as amended by Session Laws 2021-3, s. 2.8(a), provides: "(a) In the event the Centers for Disease Control and Prevention recommends an immunization or vaccination for COVID-19 at a time when the General Assembly is not in regular session, any person may petition the State Health Director, in writing, to authorize immunizing pharmacists, as defined in G.S. 90-85.3, to administer the recommended immunization or vaccination for COVID-19 by means of a statewide standing order. The State Health Director shall, within 30 days after receiving such petition, consult with the following entities in evaluating the petition and respond by either approving or denying the petition: Representatives of the North Carolina Academy of Family Physicians, the North Carolina Medical Society, the North Carolina Pediatric Society, the North Carolina Association of Community Pharmacists, the North Carolina Association of Pharmacists, and the North Carolina Retail Merchants Association.

"(b) Following the consultation provided in subsection (a) of this section, if the State Health Director approves the petition, the State Health Director may issue a statewide standing order authorizing the administration of an immunization or vaccination of COVID-19 by immunizing pharmacists. If the State Health Director issues a statewide standing order, it shall expire upon the adjournment of the next regular session of the General Assembly.

"(c) If the State Health Director approves the petition as provided in subsection (a) of this section, the State Health Director shall, within 10 days after approval, consult with the entities listed in subsection (a) of this section to develop and submit to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services a minimum standard screening questionnaire and safety procedures for written protocols for the administration of the recommended immunization or vaccination for COVID-19 by immunizing pharmacists. In the event that the questionnaire and recommended standards are not developed and submitted within the 10-day period as provided in this subsection, then the Immunization Branch of the Department of Health and Human Services, Division of Public Health, shall develop the questionnaire and recommended standards within the next 10 days and submit them to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services. At a minimum, immunizing pharmacists who administer the recommended immunization or vaccination for COVID-19 shall be required to comply with all the requirements of G.S. 90-85.15B.

"(c1) The State Health Director shall amend, reissue, or replace any existing statewide standing order issued pursuant to this section, to ensure that the statewide standing order is consistent with federal law and guidance pertaining to qualified individuals who may administer a COVID-19 vaccine, including P.L. 109-148, 'The Public Readiness and Emergence Preparedness Act,' as amended, and associated declarations of public health emergencies and advisory opinions issued by the Secretary of the United States Department of Health and Human Services.

"(d) All of the following individuals shall be immune from any civil or criminal liability for actions authorized by this section as follows:

"(1) The State Health Director acting pursuant to this section.

"(2) Any pharmacist or qualified individual under State or federal law who administers a COVID-19 immunization or vaccine pursuant to a statewide standing order issued under this section."

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

Session Laws 2021-3, s. 2.9(c), provides: "The North Carolina Board of Pharmacy may adopt temporary rules to implement this section."

Session Laws 2021-110 provides in the preamble:

"Whereas, it is the intention of the North Carolina General Assembly to improve access to care and health outcomes for its citizens; and

"Whereas, North Carolina's public health ranking is in the bottom one-half to one-third of the nation; and

"Whereas, one-third of our nation's states have authorized pharmacists to help with access to care related to public health needs beyond immunizations; and

"Whereas, North Carolinians need and deserve better accessibility to care; Now, therefore,"

Session Laws 2021-110, s. 4(a), (b), provides: "(a) The North Carolina Medical Board and the North Carolina Board of Pharmacy joint subcommittee shall develop statewide written protocols and amend existing rules and protocols to (i) encompass the new authorized treatments and practices as authorized in this act and (ii) develop a statement of ethics for immunizing pharmacists.

"(b) The North Carolina Medical Board and the North Carolina Board of Pharmacy joint subcommittee shall adopt rules to govern the administration of vaccines by pharmacy technicians as authorized in this act."

Session Laws 2021-110, s. 5, provides: "The State Health Director shall issue a standing order authorizing immunizing pharmacists to dispense, deliver, and administer the medications described in G.S. 90-85.15B(c2), as amended by Section 1 of this act. The standing order shall include protocols for the initiation, modification, and discontinuation of each therapeutic class of medication available pursuant to the standing order and it shall remain in effect until the later of the development of the protocols described in Section 4(a) of this act or January 1, 2023."

Session Laws 2021-110, s. 6, provides: "Any statewide standing order issued by the State Health Director pursuant to Section 3D.3 of S.L. 2020-3 or Section 2.8(a) of S.L. 2021-3 shall expire on December 31, 2021, unless the State Health Director determines it is necessary for the order to be extended in order to protect the public safety, health, and welfare of the citizens of North Carolina."

Effect of Amendments. - Session Laws 2014-115, s. 40, effective August 11, 2014, substituted "G.S. 90-85.15B(c)" for "G.S. 90-85.15B(b)(6)" in the first sentence of subdivision (d)(3).

Session Laws 2019-21, s. 1, effective October 1, 2019, substituted "(7)" for "(5)" in the introductory paragraph of subsection (b); added "and Serogroup B meningococcal vaccines" in subdivision (b)(4); added subdivisions (b)(6) and (b)(7); and, in subsection (c), substituted "10" for "14" in the first sentence and added the last sentence.

Session Laws 2021-3, s. 2.9(a), effective October 1, 2021, added subsection (c1).

Session Laws 2021-110, s. 2, effective October 1, 2021, rewrote the introductory language in subsection (c1); added the second sentence in subdivision (c1)(2); and added subdivision (c1)(3).

Session Laws 2021-110, s. 3, effective September 1, 2021, added subsection (b1).

§ 90-85.15B. (Effective February 1, 2022) Immunizing pharmacists.

1. Except as provided in subsections (b), (b1), and (c) of this section, an immunizing pharmacist may administer vaccinations or immunizations only if the vaccinations or immunizations are recommended or required by the Centers for Disease Control and Prevention and administered to persons at least 18 years of age pursuant to a specific prescription order.
2. An immunizing pharmacist may administer the vaccinations or immunizations listed in subdivisions (1) through (7) of this subsection to persons at least 18 years of age if the vaccinations or immunizations are administered under written protocols as defined in 21 NCAC 46. 2507(b)(12) and 21 NCAC 32U. 0101(b)(12) and in accordance with the supervising physician's responsibilities as defined in 21 NCAC 46. 2507(e) and 21 NCAC 32U. 0101(e), and the physician is licensed in and has a practice physically located in North Carolina:
   1. Pneumococcal polysaccharide or pneumococcal conjugate vaccines.
   2. Herpes zoster vaccine.
   3. Hepatitis B vaccine.
   4. Meningococcal polysaccharide or meningococcal conjugate vaccines and Serogroup B meningococcal vaccines.
   5. Tetanus-diphtheria, tetanus and diphtheria toxoids and pertussis, tetanus and diphtheria toxoids and acellular pertussis, or tetanus toxoid vaccines. However, a pharmacist shall not administer any of these vaccines if the patient discloses that the patient has an open wound, puncture, or tissue tear.
   6. Human Papillomavirus vaccine.
   7. Hepatitis A vaccine.
3. An immunizing pharmacist may administer (i) an influenza vaccine, (ii) a COVID-19 vaccine approved by the United States Food and Drug Administration, or (iii) a COVID-19 vaccine authorized under an emergency use authorization by the United States Food and Drug Administration to persons at least 10 years of age pursuant to 21 NCAC 46. 2507 and 21 NCAC 32U. 0101. An immunizing pharmacist may administer (i) an influenza vaccine, (ii) a COVID-19 vaccine approved by the United States Food and Drug Administration, or (iii) a COVID-19 vaccine authorized under an emergency use authorization by the United States Food and Drug Administration to persons at least six years of age pursuant to a specific prescription order initiated by a prescriber following a physical examination of the patient by the prescriber. When supervised by an immunizing pharmacist, pharmacy interns and pharmacy technicians who have completed immunization-related continuing pharmacy education approved by the Accreditation Council for Pharmacy Education may administer (i) an influenza vaccine, (ii) a COVID-19 vaccine approved by the United States Food and Drug Administration, or (iii) a COVID-19 vaccine authorized under an emergency use authorization by the United States Food and Drug Administration to persons at least 10 years of age pursuant to 21 NCAC 46. 2507 and 21 NCAC 32U. 0101.
4. An immunizing pharmacist may administer any other vaccinations approved by the United States Food and Drug Administration in accordance with the protocols established by the Advisory Committee on Immunization Practices to persons at least six years of age pursuant to a specific prescription order initiated by a prescriber following a physical examination of the patient by the prescriber.
5. An immunizing pharmacist may administer a long-acting injectable medication, including testosterone injections and vitamin B12, to persons at least 18 years of age pursuant to a specific prescription order initiated by a prescriber following an examination of the patient which conforms to the standards of acceptable and prevailing medical practice by the prescriber. An immunizing pharmacist who administers a long-acting injectable medication pursuant to this section shall do all of the following:
   1. Maintain a record of any administration of a long-acting injectable performed by the immunizing pharmacist to the patient in a patient profile or record.
   2. Within 72 hours after the administration of the long-acting injectable performed by the immunizing pharmacist to the patient, notify the prescriber regarding which medication and dosage was administered to the patient. If the long-acting injectable is in the class of psychotropic medications, the immunizing pharmacist shall notify the prescriber within 48 hours of administering the medication.
   3. Within 72 hours of receipt of a specific prescription, notify the prescriber of the long-acting injectable medication if the medication was not administered to the patient. If the prescription is in the class of psychotropic medications, the immunizing pharmacist shall notify the prescriber if the medication was not administered within 48 hours of receipt of the prescription.
6. An immunizing pharmacist may dispense, deliver, or administer the following medications:
   1. Nicotine replacement therapy that is approved by the United States Food and Drug Administration.
   2. Self-administered oral or transdermal contraceptives after the patient completes an assessment consistent with the Centers for Disease Control and Prevention's United States Medical Eligibility Criteria (US MEC) for Contraceptive Use; however, an immunizing pharmacist shall not dispense, deliver, or administer ulipristal acetate for emergency contraception without a prescription from a prescriber licensed under this Chapter.
   3. Prenatal vitamins.
   4. Post-exposure prophylaxis medications for the prevention of human immunodeficiency virus pursuant to guidelines and recommendations of the Centers for Disease Control and Prevention.
   5. Glucagon for the treatment of severe hypoglycemia.
7. An immunizing pharmacist may administer to a patient any prescribed, self-administered injectable medication.
8. An immunizing pharmacist who administers a vaccine or immunization to any patient pursuant to this section shall do all of the following:
   1. Maintain a record of any vaccine or immunization administered to the patient in a patient profile.
   2. Within 72 hours after administration of the vaccine or immunization, notify any primary care provider identified by the patient. If the patient does not identify a primary care provider, the immunizing pharmacist shall direct the patient to information describing the benefits to a patient of having a primary care physician, prepared by any of the following: North Carolina Medical Board, North Carolina Academy of Family Physicians, North Carolina Medical Society, or Community Care of North Carolina.
   3. Except for influenza vaccines administered under G.S. 90-85.15B(c), access the North Carolina Immunization Registry prior to administering the vaccine or immunization and record any vaccine or immunization administered to the patient in the registry within 72 hours after the administration. In the event the registry is not operable, an immunizing pharmacist shall report as soon as reasonably possible.
9. An immunizing pharmacist who dispenses, delivers, or administers a medication listed in subsection (c2) of this section to a patient shall do all of the following:
   1. Maintain a record of medication administered to the patient in a patient profile.
   2. Within 72 hours after administration of the medication, notify any primary care provider identified by the patient. If the patient does not identify a primary care provider, the immunizing pharmacist shall direct the patient to information describing the benefits to a patient of having a primary care provider, including information about federally qualified health centers, free clinics, and local health departments, prepared by any of the following: North Carolina Medical Board, North Carolina Academy of Family Physicians, North Carolina Medical Society, or Community Care of North Carolina.
   3. Furnish patient records to the patient upon the patient's request.
   4. Furnish patient records to the primary care provider identified by the patient upon the primary care provider's request.
   5. If the immunizing pharmacist has administered or dispensed a hormonal contraceptive to the patient, the immunizing pharmacist shall counsel the patient about preventative care, including well-woman visits, sexually transmitted infection testing information, and Pap smear testing.
10. An immunizing pharmacist that dispenses, delivers, or administers the medications listed in subsection (c2) of this section shall do all of the following:
    1. Comply with rules adopted by the North Carolina Medical Board and the North Carolina Board of Pharmacy governing the approval of the individual immunizing pharmacist to dispense, deliver, or administer the medications with limitations that the Boards determine to be in the best interest of patient health and safety.
    2. Have current approval from both Boards.
    3. Provide the name, business address, business phone, and business fax number of the pharmacy on any communication with a prescriber.
    4. (Effective March 31, 2022) Provide the name of the immunizing pharmacist who dispenses, delivers, or administers the medication on any communication with the provider.

History

(2013-246, s. 4; 2014-115, s. 40; 2019-21, s. 1; 2021-3, s. 2.9(a); 2021-110, ss. 1-3, 8.)

Section set out twice. - The section above is effective February 1, 2022. For the section as in effect until February 1, 2022, see the preceding section, also numbered G.S. 90-85.15B.

Editor's Note. - Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.3(a)-(d), as amended by Session Laws 2021-3, s. 2.8(a), provides: "(a) In the event the Centers for Disease Control and Prevention recommends an immunization or vaccination for COVID-19 at a time when the General Assembly is not in regular session, any person may petition the State Health Director, in writing, to authorize immunizing pharmacists, as defined in G.S. 90-85.3, to administer the recommended immunization or vaccination for COVID-19 by means of a statewide standing order. The State Health Director shall, within 30 days after receiving such petition, consult with the following entities in evaluating the petition and respond by either approving or denying the petition: Representatives of the North Carolina Academy of Family Physicians, the North Carolina Medical Society, the North Carolina Pediatric Society, the North Carolina Association of Community Pharmacists, the North Carolina Association of Pharmacists, and the North Carolina Retail Merchants Association.

"(b) Following the consultation provided in subsection (a) of this section, if the State Health Director approves the petition, the State Health Director may issue a statewide standing order authorizing the administration of an immunization or vaccination of COVID-19 by immunizing pharmacists. If the State Health Director issues a statewide standing order, it shall expire upon the adjournment of the next regular session of the General Assembly.

"(c) If the State Health Director approves the petition as provided in subsection (a) of this section, the State Health Director shall, within 10 days after approval, consult with the entities listed in subsection (a) of this section to develop and submit to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services a minimum standard screening questionnaire and safety procedures for written protocols for the administration of the recommended immunization or vaccination for COVID-19 by immunizing pharmacists. In the event that the questionnaire and recommended standards are not developed and submitted within the 10-day period as provided in this subsection, then the Immunization Branch of the Department of Health and Human Services, Division of Public Health, shall develop the questionnaire and recommended standards within the next 10 days and submit them to the North Carolina Board of Medicine, the North Carolina Board of Nursing, the North Carolina Board of Pharmacy, and the Joint Legislative Oversight Committee on Health and Human Services. At a minimum, immunizing pharmacists who administer the recommended immunization or vaccination for COVID-19 shall be required to comply with all the requirements of G.S. 90-85.15B.

"(c1) The State Health Director shall amend, reissue, or replace any existing statewide standing order issued pursuant to this section, to ensure that the statewide standing order is consistent with federal law and guidance pertaining to qualified individuals who may administer a COVID-19 vaccine, including P.L. 109-148, 'The Public Readiness and Emergence Preparedness Act,' as amended, and associated declarations of public health emergencies and advisory opinions issued by the Secretary of the United States Department of Health and Human Services.

"(d) All of the following individuals shall be immune from any civil or criminal liability for actions authorized by this section as follows:

"(1) The State Health Director acting pursuant to this section.

"(2) Any pharmacist or qualified individual under State or federal law who administers a COVID-19 immunization or vaccine pursuant to a statewide standing order issued under this section."

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

Session Laws 2021-3, s. 2.9(c), provides: "The North Carolina Board of Pharmacy may adopt temporary rules to implement this section."

Session Laws 2021-110 provides in the preamble:

"Whereas, it is the intention of the North Carolina General Assembly to improve access to care and health outcomes for its citizens; and

"Whereas, North Carolina's public health ranking is in the bottom one-half to one-third of the nation; and

"Whereas, one-third of our nation's states have authorized pharmacists to help with access to care related to public health needs beyond immunizations; and

"Whereas, North Carolinians need and deserve better accessibility to care; Now, therefore,"

Session Laws 2021-110, s. 10, made the amendments to this section by Session Laws 2021-110, s. 1, effective February 1, 2022, and applicable to immunizing pharmacists, pharmacy technicians, and pharmacy interns on or after that date.

Session Laws 2021-110, s. 4(a), (b), provides: "(a) The North Carolina Medical Board and the North Carolina Board of Pharmacy joint subcommittee shall develop statewide written protocols and amend existing rules and protocols to (i) encompass the new authorized treatments and practices as authorized in this act and (ii) develop a statement of ethics for immunizing pharmacists.

"(b) The North Carolina Medical Board and the North Carolina Board of Pharmacy joint subcommittee shall adopt rules to govern the administration of vaccines by pharmacy technicians as authorized in this act."

Session Laws 2021-110, s. 5, provides: "The State Health Director shall issue a standing order authorizing immunizing pharmacists to dispense, deliver, and administer the medications described in G.S. 90-85.15B(c2), as amended by Section 1 of this act. The standing order shall include protocols for the initiation, modification, and discontinuation of each therapeutic class of medication available pursuant to the standing order and it shall remain in effect until the later of the development of the protocols described in Section 4(a) of this act or January 1, 2023."

Session Laws 2021-110, s. 6, provides: "Any statewide standing order issued by the State Health Director pursuant to Section 3D.3 of S.L. 2020-3 or Section 2.8(a) of S.L. 2021-3 shall expire on December 31, 2021, unless the State Health Director determines it is necessary for the order to be extended in order to protect the public safety, health, and welfare of the citizens of North Carolina."

Effect of Amendments. - Session Laws 2014-115, s. 40, effective August 11, 2014, substituted "G.S. 90-85.15B(c)" for "G.S. 90-85.15B(b)(6)" in the first sentence of subdivision (d)(3).

Session Laws 2019-21, s. 1, effective October 1, 2019, substituted "(7)" for "(5)" in the introductory paragraph of subsection (b); added "and Serogroup B meningococcal vaccines" in subdivision (b)(4); added subdivisions (b)(6) and (b)(7); and, in subsection (c), substituted "10" for "14" in the first sentence and added the last sentence.

Session Laws 2021-3, s. 2.9(a), effective October 1, 2021, added subsection (c1).

Session Laws 2021-110, s. 1, substituted "subsections (b), (b1), and (c)" for "subsection (b) and (c)" in subsection (a); substituted "any other vaccinations approved by the United States Food and Drug Administration in accordance with the protocols established by the Advisory Committee on Immunization Practices" for "the influenza vaccine to persons at least 10 years of age pursuant to 21 NCAC 46. 2507 and 21 NCAC 32U. 0101. An immunizing pharmacist may administer an influenza vaccine" in subsection (c); and added subsections (c2), (c3), (d1), and (e). For effective date and applicability, see editor's note.

Session Laws 2021-110, s. 2, effective October 1, 2021, rewrote the introductory language in subsection (c1); added the second sentence in subdivision (c1)(2); and added subdivision (c1)(3).

Session Laws 2021-110, s. 3, effective September 1, 2021, added subsection (b1).

Session Laws 2021-110, s. 8, effective March 31, 2022, added subdivision (e)(4).

§ 90-85.16. Examination.

The license examination shall be given by the Board at least twice each year. The Board shall determine the subject matter of each examination and the place, time and date for administering the examination. The Board shall also determine which persons have passed the examination. The examination shall be designed to determine which applicants can reasonably be expected to safely and properly practice pharmacy.

History

(1905, c. 108, s. 13; Rev., ss. 4479, 4480; 1915, c. 165; C.S., s. 6658; 1921, c. 52; 1933, c. 206, ss. 1, 2; 1935, c. 181; 1937, c. 94; 1971, c. 481; 1981, c. 717, s. 4; 1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.17. License renewal.

In accordance with Board regulations, each license to practice pharmacy shall expire on December 31 and shall be renewed annually by filing with the Board on or after December 1 an application for license renewal furnished by the Board, accompanied by the required fee. It shall be unlawful to practice pharmacy more than 60 days after the expiration date without renewing the license. All licensees shall give the Board notice of a change of mailing address or a change of place of employment within 30 days after the change. The Board may require licensees to obtain up to 30 hours of continuing education every two years from Board-approved providers as a condition of license renewal, with a minimum of 10 hours required per year.

History

(1905, c. 108, ss. 18, 19, 27; Rev., ss. 3653, 4484; 1911, c. 48; C.S., s. 6662; 1921, c. 68, s. 2; 1947, c. 781; 1953, c. 1051; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 2005-402, s. 4.)

Effect of Amendments. - Session Laws 2005-402, s. 4, effective January 1, 2008, in the last sentence, substituted "30 hours" for "10 hours," inserted "every two years" preceding "from Board-approved" and added "with a minimum of 10 hours required per year"; and made a minor punctuation change.

§ 90-85.18. Approval of continuing education programs.

The Board shall approve providers of continuing education programs upon finding that the provider is competent to and does offer an educational experience designed to enable those who successfully complete the program to more safely and properly practice pharmacy.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.19. Reinstatement.

Whenever a pharmacist who has not renewed his license for five or more years seeks to renew or reinstate his license, he must appear before the Board and submit evidence that he can safely and properly practice pharmacy.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.20. Licensure without examination.

1. The Board may issue a license to practice pharmacy, without examination, to any person who is licensed as a pharmacist in another jurisdiction if the applicant shall present satisfactory evidence of possessing the same qualifications as are required of licensees in this State, that he was licensed by examination in such other jurisdiction, and that the standard of competence required by such other jurisdiction is substantially equivalent to that of this State at that time. The Board must be satisfied that a candidate for licensure has a satisfactory understanding of the laws governing the practice of pharmacy and distribution of drugs in this State.
2. Repealed by Session Laws 1991, c. 125, s. 2.

History

(1905, c. 108, s. 16; Rev., s. 4482; C.S., s. 6660; 1945, c. 572, s. 2; 1971, c. 468; 1977, c. 598; 1981, c. 717, ss. 6, 7; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1983, c. 196, ss. 6, 7; 1991, c. 125, s. 2.)

§ 90-85.21. Pharmacy permit.

1. In accordance with Board regulations, each pharmacy in North Carolina shall annually register with the Board on a form provided by the Board. The application shall identify the pharmacist-manager of the pharmacy and all pharmacy personnel employed in the pharmacy. All pharmacist-managers shall notify the Board of any change in pharmacy personnel within 30 days of the change. In addition to identifying the pharmacist-manager, a pharmacy may identify a pharmacy permittee's designated agent that the Board shall notify of any investigation of the pharmacy or a pharmacist employed by the pharmacy. The notice shall include the specific reason for the investigation and be given prior to the initiation of any disciplinary proceedings.
2. A mobile pharmacy shall register annually with the Board in the manner prescribed in subsection (a) of this section, and the registration shall be renewed annually. A mobile pharmacy shall be considered a single pharmacy and shall not be required to pay a separate registration fee for each location but shall pay the annual registration fee prescribed in G.S. 90-85.24. A mobile pharmacy shall provide the Board with the address of every location from which prescription drugs will be dispensed by the mobile pharmacy.
3. Each physician who dispenses prescription drugs, for a fee or other charge, shall annually register with the Board on the form provided by the Board, and with the licensing board having jurisdiction over the physician. Such dispensing shall comply in all respects with the relevant laws and regulations that apply to pharmacists governing the distribution of drugs, including packaging, labeling, and record keeping. Authority and responsibility for disciplining physicians who fail to comply with the provisions of this subsection are vested in the licensing board having jurisdiction over the physician. The form provided by the Board under this subsection shall be as follows:

Application For Registration

With The Pharmacy Board

As A Dispensing Physician

1. 2.     Name and Address of Dispensing        Affix Dispensing Label Here     Physician     3. Physician's North Carolina License Number _____________________________     4. Are you currently practicing in a professional association registered with the North Carolina Medical Board?     ____________ Yes ____________ No. If yes, enter the name and registration number of the professional corporation:     __________________________________________________________________________     __________________________________________________________________________     5. I certify that the information is correct and complete.      __________________          __________________            Signature           Date

History

(1927, c. 28, s. 1; 1953, c. 183, s. 2; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1987, c. 687; 1995, c. 94, s. 25; 1999-246, s. 2; 2001-375, s. 3; 2005-427, s. 1.)

Editor's Note. - Session Laws 2021-161, s. 5, provides: "No later than December 1, 2021, the Department of Insurance shall convene a stakeholder workgroup to study and recommend a single, unified process to accredit specialty pharmacies in the State. The workgroup shall examine at least the regulatory, administrative, and financial challenges facing those who wish to gain specialty pharmacy status. The workgroup shall be composed of at least two representatives from each of the following: independent pharmacies, pharmacy service administrative organizations, pharmacy benefits managers, and insurers who offer health benefit plans. The workgroup shall meet at least three times and shall report its findings and recommendations to the Joint Legislative Oversight Committee on Health and Human Services, the Senate Health Care Committee, and the House Health Committee no later than May 15, 2022.”

Effect of Amendments. - Session Laws 2005-427, s. 1., effective January 1, 2006, added the last two sentences in subsection (a).

§ 90-85.21A. Applicability to out-of-state operations.

1. Any pharmacy operating outside the State which ships, mails, or delivers in any manner a dispensed legend drug into this State shall annually register with the Board on a form provided by the Board. In order to satisfy the registration requirements of this subsection, a pharmacy shall certify that the pharmacy employs a pharmacist who is responsible for dispensing, shipping, mailing, or delivering dispensed legend drugs into this State or in a state approved by the Board and has met requirements for licensure equivalent to the requirements for licensure in this State. In order for the pharmacy's certification of the pharmacists to be valid, a pharmacist shall agree in writing, on a form approved by the Board, to be subject to the jurisdiction of the Board, the provisions of this Article, and the rules adopted by the Board. If the Board revokes this certification, the pharmacy shall no longer have authority to dispense, ship, mail, or deliver in any manner a dispensed legend drug into this State.
2. Any pharmacy subject to this section shall at all times maintain a valid unexpired license, permit, or registration necessary to conduct such pharmacy in compliance with the laws of the state in which such pharmacy is located. No pharmacy operating outside the State may ship, mail, or deliver in any manner a dispensed legend drug into this State unless such drug is lawfully dispensed by a licensed pharmacist in the state where the pharmacy is located.
3. The Board shall be entitled to charge and collect not more than five hundred dollars ($500.00) for original registration of a pharmacy under this section, and for renewal thereof, not more than two hundred dollars ($200.00), and for reinstatement thereof, not more than two hundred dollars ($200.00).
4. The Board may deny a nonresident pharmacy registration upon a determination that the pharmacy has a record of being formally disciplined in its home state for violations that relate to the compounding or dispensing of legend drugs and presents a threat to the public health and safety.
5. Except as otherwise provided in this subsection, the Board may adopt rules to protect the public health and safety that are necessary to implement this section. Notwithstanding G.S. 90-85.6, the Board shall not adopt rules pertaining to the shipment, mailing, or other manner of delivery of dispensed legend drugs by pharmacies required to register under this section that are more restrictive than federal statutes or regulations governing the delivery of prescription medications by mail or common carrier. A pharmacy required to register under this section shall comply with rules adopted pursuant to this section.
6. The Board may deny, revoke, or suspend a nonresident pharmacy registration for failure to comply with any requirement of this section.

History

(1993, c. 455, s. 1; 1998-212, s. 12.3B(b); 2004-199, s. 25; 2005-402, s. 3.)

Effect of Amendments. - Session Laws 2004-199, s. 25, effective August 17, 2004, added the present last three sentences in subsection (a).

Session Laws 2005-402, s. 3, effective October 1, 2005, rewrote subsection (c), raising the fees therein charged.

§ 90-85.21B. Unlawful practice of pharmacy.

It shall be unlawful for any person, firm, or corporation not licensed or registered under the provisions of this Article to:

1. Use in a trade name, sign, letter, or advertisement any term, including "drug", "pharmacy", "prescription drugs", "prescription", "Rx", or "apothecary", that would imply that the person, firm, or corporation is licensed or registered to practice pharmacy in this State.
2. Hold himself or herself out to others as a person, firm, or corporation licensed or registered to practice pharmacy in this State.

History

(2003-284, s. 10.8D.)

§ 90-85.21C. Pharmacy permit exemption for dispensing and delivery of home renal products.

Each location or facility within or outside this State from which dialysate or drugs necessary to perform home renal dialysis are dispensed and delivered to a patient in this State is exempt from the pharmacy permit requirements established by G.S. 90-85.21 and G.S. 90-8.21A, provided that all the following criteria are met:

1. The dialysate or drugs have been approved or cleared by United States Food and Drug Administration.
2. The dialysate or drugs are lawfully held by a manufacturer or an agent of the manufacturer that is properly licensed by the North Carolina Department of Agriculture and Consumer Services as a manufacturer, or as a wholesaler, or as both, as required by G.S. 106-145.3.
3. The dialysate or drugs are held, delivered, and dispensed in their original, sealed packaging from the manufacturing facility.
4. The dialysate or drugs are delivered only by the manufacturer, or an agent of the manufacturer, and only upon receipt of a physician's order.
5. The manufacturer or an agent of the manufacturer delivers the dialysate or drugs directly to either of the following:
   1. A patient with chronic kidney failure or a designee of the patient, for self-administration of the dialysis therapy.
   2. A health care provider, or health care facility licensed under Chapter 122C, 131D, or 131E of the General Statutes, for administration or delivery of the dialysis therapy to a patient with chronic kidney failure.

History

(2015-28, s. 1.)

Editor's Note. - Session Laws 2015-28, s. 3, made this section effective October 1, 2015.

§ 90-85.21D. Dialysis facilities as designated agents to receive home medications for patients with renal failure.

Pharmacies may ship medications for home use by patients with renal failure to renal dialysis facilities for delivery to (i) patients who receive dialysis treatments in a Medicare certified dialysis facility or (ii) patients who self-dialyze at home, provided that all of the following criteria are met:

1. The patient authorizes, in writing, the dialysis facility staff to act as the patient's designated agent for the purpose of receiving mailed medical packages at the dialysis facility.
2. The pharmacy, whether in-state or out-of-state, is licensed as a pharmacy in North Carolina.
3. The medications for home use are dispensed by the licensed pharmacist pursuant to a valid prescription order.
4. The delivered medication packages are held in a secure location in an area not accessible to the public and delivered by the dialysis facility staff, unopened, to the patient.
5. Medication packages are individually labeled with the patient name.
6. The medications exclude controlled substances, as defined under G.S. 90-87.

History

(2015-28, s. 1.)

§ 90-85.22. Device and medical equipment permits; exemptions.

1. Devices. - Each place, whether located in this State or out-of-state, where devices are dispensed or delivered to the user in this State shall register annually with the Board on a form provided by the Board and obtain a device permit. A business that has a current pharmacy permit does not have to register and obtain a device permit. Records of devices dispensed in pharmacies or other places shall be kept in accordance with rules adopted by the Board.
2. Medical Equipment. - Each place, whether located in this State or out-of-state, that delivers medical equipment to the user of the equipment in this State shall register annually with the Board on a form provided by the Board and obtain a medical equipment permit. A business that has a current pharmacy permit or a current device permit does not have to register and obtain a medical equipment permit. Medical equipment shall be delivered only in accordance with requirements established by rules adopted by the Board.
3. This section shall not apply to any of the following:
   1. A pharmaceutical manufacturer registered with the Food and Drug Administration.
   2. A wholly owned subsidiary of a pharmaceutical manufacturer registered with the Food and Drug Administration.
   3. The dispensing and delivery of home renal products in accordance with the criteria specified in G.S. 90-85.21C.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1; 1993 (Reg. Sess., 1994), c. 692, s. 1; 2001-339, s. 1; 2015-28, s. 2.)

Effect of Amendments. - Session Laws 2015-28, s. 2, effective October 1, 2015, substituted "any" for "either" in the introductory language of subsection (c), and added subdivision (c)(3).

Legal Periodicals. - For article, "Nothing Generic About It: Promoting Therapeutic Access by Overcoming Regulatory and Legal Barriers to a Robust Generic Medical Device Market,” see 98 N. C.L. Rev. 595 (2020).

§ 90-85.23. License and permit to be displayed.

Every pharmacist-manager's license, every permit, and every current renewal shall be conspicuously posted in the place of business owned by or employing the person to whom it is issued. The licenses and every last renewal of all other pharmacists employed in the pharmacy must be readily available for inspection by agents of the Board. Failure to display any license or permit and the most recent renewal shall be a violation of this Article and each day that the license or permit or renewal is not displayed shall be a separate and distinct offense.

History

(1905, c. 108, ss. 18, 26; Rev., ss. 3651, 4485; C.S., s. 6663; 1921, c. 68, s. 3; 1953, c. 1051; 1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.24. Fees collectible by Board.

1. The Board of Pharmacy shall be entitled to charge and collect not more than the following fees:
   1. For the examination of an applicant for license as a pharmacist, two hundred dollars ($200.00), plus the cost of the test material;
   2. For renewing the license as a pharmacist, one hundred thirty-five dollars ($135.00);
   3. For reinstatement of a license as a pharmacist, one hundred thirty-five dollars ($135.00);
   4. For annual registration of a pharmacy technician, thirty dollars ($30.00);
   5. For reinstatement of a registration of a pharmacy technician, thirty dollars ($30.00);
   6. For licenses without examination as provided in G.S. 90-85.20, original, six hundred dollars ($600.00);
   7. For original registration of a pharmacy, five hundred dollars ($500.00), and renewal thereof, two hundred dollars ($200.00);
   8. For reinstatement of the registration of a pharmacy, two hundred dollars ($200.00);
   9. For annual registration as a dispensing physician under G.S. 90-85.21(b), seventy-five dollars ($75.00);
   10. For reinstatement of registration as a dispensing physician, seventy-five dollars ($75.00);
   11. For annual registration as a dispensing physician assistant under G.S. 90-18.1, seventy-five dollars ($75.00);
   12. For reinstatement of registration as a dispensing physician assistant, seventy-five dollars ($75.00);
   13. For annual registration as a dispensing nurse practitioner under G.S. 90-18.2, seventy-five dollars ($75.00);
   14. For reinstatement of registration as a dispensing nurse practitioner, seventy-five dollars ($75.00);
   15. For registration of any change in pharmacist personnel as required under G.S. 90-85.21(a), thirty-five dollars ($35.00);
   16. For a duplicate of any license, permit, or registration issued by the Board, twenty-five dollars ($25.00);
   17. For original registration to dispense devices, deliver medical equipment, or both, five hundred dollars ($500.00);
   18. For renewal of registration to dispense devices, deliver medical equipment, or both, two hundred dollars ($200.00);
   19. For reinstatement of a registration to dispense devices, deliver medical equipment, or both, two hundred dollars ($200.00).
2. All fees under this section shall be paid before any applicant may be admitted to examination or the applicant's name may be placed upon the register of pharmacists or before any license or permit, or any renewal or reinstatement thereof, may be issued by the Board.

History

(1905, c. 108, s. 12; Rev., s. 4478; C.S., s. 6657; 1921, c. 57, s. 3; 1945, c. 572, s. 3; 1953, c. 183, s. 1; 1965, c. 676, s. 1; 1973, c. 1183; 1981, c. 72; c. 717, s. 3; 1981 (Reg. Sess., 1982), c. 1188, s. 2; 1983, c. 196, s. 8; 1987, c. 260; 1987 (Reg. Sess., 1988), c. 1039, s. 4; 1993 (Reg. Sess., 1994), c. 692, s. 3; 1997-231, s. 1; 2001-375, s. 4; 2005-402, s. 2.)

Editor's Note. - This section was formerly G.S. 90-60. It was recodified pursuant to Session Laws 1981 (Reg. Sess., 1982), c. 1188, s. 2, effective July 1, 1982.

Session Laws 2005-402, s. 1.1, provides: "It is the goal of the General Assembly that the Board of Pharmacy will use the funds generated by this act to enable it to conduct investigations and inspections under this Article. The Board of Pharmacy shall annually expend at least one hundred thousand dollars ($100,000) of the funds generated by this act for a Pharmacy Recovery Network." Sections 2 through 4 of that act raised fees collectible by the Board of Pharmacy and increased the minimum requirements for continuing education.

Effect of Amendments. - Session Laws 2005-402, s. 2, effective October 1, 2005, rewrote this section, raising the fees therein charged.

§ 90-85.25. Disasters and emergencies.

1. In the event of an occurrence which the Governor of the State of North Carolina has declared a state of emergency, or in the event of an occurrence for which a county or municipality has enacted an ordinance to deal with states of emergency under G.S. 166A-19.31, or to protect the public health, safety, or welfare of its citizens under G.S. 160A-174(a) or G.S. 153A-121(a), as applicable, the Board may waive the requirements of this Article in order to permit the provision of drugs, devices, and professional services to the public.
2. The pharmacist in charge of a pharmacy shall report within 10 days to the Board any disaster, accident, theft, or emergency which may affect the strength, purity, or labeling of drugs and devices in the pharmacy.

History

(1981 Reg. Sess., 1982), c. 1188, s. 1; 1998-212, s. 12.3B(a); 2012-12, s. 2(gg).)

Cross References. - As to emergency management efforts, generally, see G.S. 166A-19 et seq.

Effect of Amendments. - Session Laws 2012-12, s. 2(gg), effective October 1, 2012, in subsection (a), deleted "a disaster or when the Governor has declared" preceding "a state of emergency," and substituted "G.S. 166A-19.31" for "G.S. 14-288.12, 14-288.13, or 14-288.14."

§ 90-85.26. Prescription orders preserved.

1. Every pharmacist-manager of a pharmacy shall maintain for at least three years the original of every prescription order and refill compounded or dispensed at the pharmacy except for prescription orders recorded in a patient's medical record. An automated data processing system may be used for the storage and retrieval of refill information for prescriptions pursuant to the regulations of the Board. A pharmacist-manager may comply with this section by capturing and maintaining an electronic image of a prescription order or refill. An electronic image of a prescription order or refill shall constitute the original prescription order, and a hard copy of the prescription order or refill is not required to be maintained. If a pharmacist-manager elects to maintain prescription orders by capturing electronic images of prescription orders or refills, the pharmacy's computer system must be capable of maintaining, printing, and providing in an electronic or paper format, upon a request by the Board, all of the information required by this Chapter or rules adopted pursuant to this Chapter within 48 hours of such a request.
2. Every pharmacy permittee's designated agent shall maintain documentation of alleged medication errors and incidents described in G.S. 90-85.47(e)(1) for which the pharmacy permittee has knowledge.

History

(1905, c. 108, s. 21; Rev., s. 4490; C.S., s. 6666; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 2005-427, s. 2; 2007-248, s. 1.)

Effect of Amendments. - Session Laws 2005-427, s. 2, effective January 1, 2006, designated the former paragraph as subsection (a) and added subsection (b).

Session Laws 2007-248, s. 1, effective July 20, 2007, added the last three sentences in subsection (a).

§ 90-85.26A. Clinical pharmacist practitioners subcommittee.

The North Carolina Board of Pharmacy shall appoint and maintain a subcommittee of the Board consisting of four licensed pharmacists to work jointly with the subcommittee of the North Carolina Medical Board to develop rules to govern the provision of drug therapy management by clinical pharmacist practitioners and to determine reasonable fees to accompany an application for approval or renewal of such approval as provided in G.S. 90-6. The rules developed by this subcommittee shall govern the performance of acts by clinical pharmacist practitioners and shall become effective when they have been adopted by both Boards.

History

(1999-290, s. 6.)

Editor's Note. - G.S. 90-6, as referred to above, was recodified as G.S. 90-8.1 and 90-8.2 by Session Laws 2007-346, s. 7, effective October 1, 2007.

§ 90-85.27. Definitions.

As used in G.S. 90-85.28 through G.S. 90-85.31:

1. Biological product. - As defined in section 351(i) of the Public Health Service Act, 42 U.S.C. § 262(i).
2. Equivalent drug product. - A drug product which has the same established name, active ingredient, strength, quantity, and dosage form, and which is therapeutically equivalent to the drug product identified in the prescription.
3. Established name. - As defined in section 502(e)(3) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 352(e)(3).
4. Good manufacturing practice. - As defined in Part 211 of Chapter 1 of Title 21 of the Code of Federal Regulations.
5. Interchangeable biological product. - A biological product determined by the United S tates Food and Drug Administration to meet the standards set forth in 42 U.S.C. §  262(k)(4), or deemed therapeutically equivalent by the United States Food and Drug Administration.
6. Manufacturer. - The actual manufacturer of the finished dosage form of the drug.
7. Narrow therapeutic index drugs. - Those pharmaceuticals having a narrowly defined range between risk and benefit. Such drugs have less than a twofold difference in the minimum toxic concentration and minimum effective concentration in the blood or are those drug product formulations that exhibit limited or erratic absorption, formulation-dependent bioavailability, and wide intrapatient pharmacokinetic variability that requires blood-level monitoring. Drugs identified as having narrow therapeutic indices shall be designated by the North Carolina Secretary of Health and Human Services upon the advice of the State Health Director, North Carolina Board of Pharmacy, and North Carolina Medical Board, as narrow therapeutic index drugs and shall be subject to the provisions of G.S. 90-85.28(b1). The North Carolina Board of Pharmacy shall submit the list of narrow therapeutic index drugs to the Codifier of Rules, in a timely fashion for publication in January of each year in the North Carolina Register.
8. Prescriber. - Anyone authorized to prescribe drugs pursuant to the laws of this State.

History

(1979, c. 1017, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 3; 1983, c. 196, s. 9; 1997-76, s. 1; 1997-443, s. 11A.118(b); 2015-27, s. 1.)

Editor's Note. - This section was formerly G.S. 90-76.1. It was recodified pursuant to Session Laws 1981 (Reg. Sess., 1982), c. 1188, s. 3, effective July 1, 1982.

Effect of Amendments. - Session Laws 2015-27, s. 1, effective October 1, 2015, added subdivision (1) and redesignated former sudivision (1) as (1a); added subdivision (3a); and made minor stylistic changes throughout.

Legal Periodicals. - For article, "Specialty Drugs and the Health Care Cost Crisis," see 55 Wake Forest L. Rev. 55 (2020).

§ 90-85.28. Selection by pharmacists permissible; prescriber may permit or prohibit selection; price limit on selected drugs; communication of dispensed biological products under specified circumstances.

1. A pharmacist dispensing a prescription for a drug product prescribed by its brand name may select any equivalent drug or interchangeable biological product which meets all of the following standards:
   1. The manufacturer's name and the distributor's name, if different from the manufacturer's name, shall appear on the label of the stock package.
   2. It shall be manufactured in accordance with current good manufacturing practices.
   3. All oral solid dosage forms shall have a logo, or other identification mark, or the product name to identify the manufacturer or distributor.
   4. The manufacturer shall have adequate provisions for drug recall.
   5. The manufacturer shall have adequate provisions for return of outdated drugs, through the distributor or otherwise.
2. The pharmacist shall not select an equivalent drug or interchangeable biological product if the prescriber instructs otherwise by one of the following methods:
   1. A prescription form shall be preprinted or stamped with two signature lines at the bottom of the form which read:
   2. In the event the preprinted or stamped prescription form specified in subdivision (1) of subsection (b) of this section is not readily available, the prescriber may handwrite "Dispense as Written" or words or abbreviations of the same meaning on a prescription form.
   3. When ordering a prescription orally, the prescriber shall specify either that the prescribed drug product be dispensed as written or that product selection is permitted. The pharmacist shall note the instructions on the file copy of the prescription and retain the prescription form for the period prescribed by law.
3. A prescription for a narrow therapeutic index drug shall be refilled using only the same drug product by the same manufacturer that the pharmacist last dispensed under the prescription, unless the prescriber is notified by the pharmacist prior to the dispensing of another manufacturer's product, and the prescriber and the patient give documented consent to the dispensing of the other manufacturer's product. For purposes of this subsection, the term "refilled" shall include a new prescription written at the expiration of a prescription which continues the patient's therapy on a narrow therapeutic index drug.
4. Expired.
5. The Board of Pharmacy shall maintain a link on its Internet Web site to the current list of biological products determined by the United States Food and Drug Administration to be interchangeable with a specific biological product.
6. Expired.
7. The pharmacist shall not select an equivalent drug or interchangeable biological product unless its price to the purchaser is less than the price of the prescribed drug product.

"________________________ _______________________________________ Product Selection Permitted Dispense as Written"

On this form, the prescriber shall communicate instructions to the pharmacist by signing the appropriate line.

History

(1979, c. 1017, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 3; 1997-76, s. 2; 2015-27, s. 2.)

Editor's Note. - This section was formerly G.S. 90-76.2. It was recodified pursuant to Session Laws 1981 (Reg. Sess., 1982), c. 1188, s. 3, effective July 1, 1982.

Session Laws 2015-27, s. 5, provides in part, that subsections (b2) and (b4), as added by Session Laws 2015-27, s. 2, expire on October 1, 2020.

Effect of Amendments. - Session Laws 2015-27, s. 2, effective October 1, 2015, inserted "or interchangeable biological" following "equivalent drug" throughout the section; added "communication of dispensed biological products under specified circumstances" in the section heading; made minor stylistic and punctuation changes throughout subsections (a) and (b); deleted "Effective January 1, 1982" at the beginning of subdivision (a)(3); and added subsections (b2) through (b4). For expiration of subsections (b2) and (b4), effective October 1, 2020, see editor's note.

§ 90-85.29. Prescription label.

The prescription label of every drug product dispensed shall contain the brand name of any drug product dispensed, or in the absence of a brand name, the established name. The prescription drug label of every drug product dispensed shall:

1. Contain the discard date when dispensed in a container other than the manufacturer's original container. The discard date shall be the earlier of one year from the date dispensed or the manufacturer's expiration date, whichever is earlier, and
2. Not obscure the expiration date and storage statement when the product is dispensed in the manufacturer's original container.

As used in this section, "expiration date" means the expiration date printed on the original manufacturer's container, and "discard date" means the date after which the drug product dispensed in a container other than the original manufacturer's container shall not be used. Nothing in this section shall impose liability on the dispensing pharmacist or the prescriber for damages related to or caused by a drug product that loses its effectiveness prior to the expiration or disposal date displayed by the pharmacist or prescriber.

History

(1979, c. 1017, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 3; 1993, c. 529, s. 7.5.)

Editor's Note. - This section was formerly G.S. 90-76.3. It was recodified pursuant to Session Laws 1981 (Reg. Sess., 1982), c. 1188, s. 3, effective July 1, 1982.

For provisions relating to the dispensing of generic drugs under the Medical Assistance Program, see the Editor's note under G.S. 90-85.27.

§ 90-85.30. Prescription record.

The pharmacy file copy of every prescription shall include the brand or trade name, if any, or the established name and the manufacturer of the drug product dispensed.

History

(1979, c. 1017, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 3.)

Editor's Note. - This section was formerly G.S. 90-76.4. It was recodified pursuant to Session Laws 1981 (Reg. Sess., 1982), c. 1188, s. 3, effective July 1, 1982.

For provisions relating to the dispensing of generic drugs under the Medical Assistance Program, see the Editor's note under G.S. 90-85.27.

§ 90-85.31. Prescriber and pharmacist liability not extended.

The selection of an equivalent drug or interchangeable biological product pursuant to this Article shall impose no greater liability upon the pharmacist for selecting the dispensed drug or biological product or upon the prescriber of the same than would be incurred by either for dispensing the drug or biological product specified in the prescription.

History

(1979, c. 1017, s. 1; 1981 (Reg. Sess., 1982), c. 1188, s. 3; 2015-27, s. 3.)

Editor's Note. - This section was formerly G.S. 90-76.5. It was recodified pursuant to Session Laws 1981 (Reg. Sess., 1982), c. 1188, s. 3, effective July 1, 1982.

For provisions relating to the dispensing of generic drugs under the Medical Assistance Program, see the Editor's note under G.S. 90-85.27.

Effect of Amendments. - Session Laws 2015-27, s. 3, effective October 1, 2015, inserted "or interchangeable biological" and "or biological" throughout the section.

§ 90-85.32. Rules pertaining to filling, refilling, transfer, and mail or common-carrier delivery of prescription orders.

1. Except as otherwise provided in this section, the Board may adopt rules governing the filling, refilling and transfer of prescription orders not inconsistent with other provisions of law regarding the distribution of drugs and devices. The rules shall assure the safe and secure distribution of drugs and devices. Prescriptions marked PRN shall not be refilled more than one year after the date issued by the prescriber unless otherwise specified.
2. Notwithstanding G.S. 90-85.6, the Board shall not adopt rules pertaining to the shipment, mailing, or other manner of delivery of dispensed legend drugs that are more restrictive than federal statutes or regulations governing the delivery of prescription medications by mail or common carrier.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1; 1998-212, s. 12.3B(c).)

§ 90-85.33. Unit dose medication systems.

The Board may adopt regulations governing pharmacists providing unit dose medication systems. The regulations shall ensure the safe and proper distribution of drugs in the patient's best health interests.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.34. Unique pharmacy practice.

Consistent with the provisions of this Article, the Board may regulate unique pharmacy practices including, but not limited to, nuclear pharmacy and clinical pharmacy, to ensure the best interests of patient health and safety.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.34A. Public health pharmacy practice.

1. A registered nurse in a local health department clinic may dispense prescription drugs and devices, other than controlled substances as defined in G.S. 90-87, under the following conditions:
   1. The registered nurse has training acceptable to the Board in the labeling and packaging of prescription drugs and devices;
   2. Dispensing by the registered nurse shall occur only at a local health department clinic;
   3. Only prescription drugs and devices contained in a formulary recommended by the Department of Health and Human Services and approved by the Board shall be dispensed;
   4. The local health department clinic shall obtain a pharmacy permit in accordance with G.S. 90-85.21;
   5. Written procedures for the storage, packaging, labeling and delivery of prescription drugs and devices shall be approved by the Board; and
   6. The pharmacist-manager, or another pharmacist at his direction, shall review dispensing records at least weekly, provide consultation where appropriate, and be responsible to the Board for all dispensing activity at the local health department clinic.
2. This section is applicable only to prescriptions issued on behalf of persons receiving local health department clinic services and issued by an individual authorized by law to prescribe drugs and devices.
3. This section does not affect the practice of nurse practitioners pursuant to G.S. 90-18.2 or of physician assistants pursuant to G.S. 90-18.1.

History

(1985, c. 359; 1989 (Reg. Sess., 1990), c. 1004, s. 2; c. 1075, s. 4; 1997-443, s. 11A.22.)

§ 90-85.35. Availability of patient records.

Pharmacists employed in health care facilities shall have access to patient records maintained by those facilities when necessary for the pharmacist to provide pharmaceutical services. The pharmacist shall make appropriate entries in patient records.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.36. Availability of pharmacy records.

1. Except as provided in subsections (b) and (c) below, written or electronic prescription orders on file in a pharmacy or other place where prescriptions are dispensed are not public records and any person having custody of or access to the prescription orders may divulge the contents or provide a copy only to the following persons:
   1. An adult patient for whom the prescription was issued or a person who is legally appointed guardian of that person;
   2. An emancipated minor patient for whom the prescription order was issued or a person who is the legally appointed guardian of that patient;
   3. An unemancipated minor patient for whom the prescription order was issued when the minor's consent is sufficient to authorize treatment of the condition for which the prescription was issued;
   4. A parent or person in loco parentis of an unemancipated minor patient for whom the prescription order was issued when the minor's consent is not sufficient to authorize treatment for the condition for which the prescription is issued;
   5. The licensed practitioner who issued the prescription;
   6. The licensed practitioner who is treating the patient for whom the prescription was issued;
   7. A pharmacist who is providing pharmacy services to the patient for whom the prescription was issued;
   8. Anyone who presents a written authorization for the release of pharmacy information signed by the patient or his legal representative;
   9. Any person authorized by subpoena, court order or statute;
   10. Any firm, association, partnership, business trust, corporation or company charged by law or by contract with the responsibility of providing for or paying for medical care for the patient for whom the prescription order was issued;
   11. A member or designated employee of the Board;
   12. The executor, administrator or spouse of a deceased patient for whom the prescription order was issued;
   13. Researchers and surveyors who have approval from the Board. The Board shall issue this approval when it determines that there are adequate safeguards to protect the confidentiality of the information contained in the prescription orders and that the researchers or surveyors will not publicly disclose any information that identifies any person;
   14. The person owning the pharmacy or his authorized agent; or
   15. A HIPAA covered entity, or business associate described in 45 C.F.R. § 160.103, or a health care provider who is not a covered entity, for purposes of treatment, payment, or health care operations to the extent that disclosure is permitted or required by applicable State or federal law.
2. A pharmacist may disclose any information to any person only when he reasonably determines that the disclosure is necessary to protect the life or health of any person.
3. Records required to be kept by G.S. 90-93(d) (Schedule V) are not public records and shall be disclosed at the pharmacist's discretion.

History

(1905, c. 108, s. 21; Rev., s. 4490; C.S., s. 6666; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1991, c. 125, s. 3; 2011-314, s. 1.)

Effect of Amendments. - Session Laws 2011-314, s. 1, effective January 1, 2012, inserted "or electronic" in the introductory paragraph of subsection (a); and added subdivision (a)(15) and made related stylistic changes.

Legal Periodicals. - For article, "Regulating Data Mining Post-Sorrell: Using HIPAA to Restrict Marketing Uses of Patients' Private Medical Information," see 47 Wake Forest L. Rev. 1141 (2012).

§ 90-85.37. Embargo.

Notwithstanding any other provisions of law, whenever an authorized representative of the Board has reasonable cause to believe that any drug or device presents a danger to the public health, he shall affix to the drug or device a notice that the article is suspected of being dangerous to the public health and warning all persons not to remove or dispose of the article. Whenever an authorized representative of the Board has reasonable cause to believe that any drug or device presents a danger to the public health and that there are reasonable grounds to believe that it might be disposed of pending a judicial resolution of the matter, he shall seize the article and take it to a safe and secure place. When an article has been embargoed under this section, the Board shall, as soon as practical, file a petition in Orange County District Court for a condemnation order for such article. If the judge determines after hearing, that the article is not dangerous to the public health, the Board shall direct the immediate removal of the tag or other marking, and where appropriate, shall direct that the article be returned to its owner. If the judge finds the article is dangerous to the public health, he shall order its destruction at the owner's expense and under the Board's supervision. If the judge determines that the article is dangerous to the public health, he shall order the owner of the article to pay all court costs, reasonable attorney's fees, storage fees, and all other costs incident to the proceeding.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.38. Disciplinary authority.

1. The Board may, in accordance with Chapter 150B of the General Statutes, issue a letter of reprimand or suspend, restrict, revoke, or refuse to grant or renew a license to practice pharmacy, or require licensees to successfully complete remedial education if the licensee has done any of the following:
   1. Made false representations or withheld material information in connection with securing a license or permit.
   2. Been found guilty of or plead guilty or nolo contendere to any felony in connection with the practice of pharmacy or the distribution of drugs.
   3. Indulged in the use of drugs to an extent that renders the pharmacist unfit to practice pharmacy.
   4. Made false representations in connection with the practice of pharmacy that endanger or are likely to endanger the health or safety of the public, or that defraud any person.
   5. Developed a physical or mental disability that renders the pharmacist unfit to practice pharmacy with reasonable skill, competence and safety to the public.
   6. Failed to comply with the laws governing the practice of pharmacy and the distribution of drugs.
   7. Failed to comply with any provision of this Article or rules adopted by the Board.
   8. Engaged in, or aided and abetted an individual to engage in, the practice of pharmacy without a license.
   9. Been negligent in the practice of pharmacy.
   10. Engaged in unprofessional conduct, including the departure from or failure to comply with the requirements of G.S. 90-85.15B(c1) and (d1), when dispensing, delivering, or administering medication for patients.
2. The Board, in accordance with Chapter 150B of the General Statutes, may suspend, revoke, or refuse to grant or renew any permit for the same conduct as stated in subsection (a). The administration of required lethal substances or any assistance whatsoever rendered with an execution under Article 19 of Chapter 15 of the General Statutes does not constitute the practice of pharmacy under this Article, and any assistance rendered with an execution under Article 19 of Chapter 15 of the General Statutes shall not be the cause for disciplinary action under this Article.
3. Any license or permit obtained through false representation or withholding of material information shall be void and of no effect.

History

(1905, c. 108, ss. 17, 25; Rev., s. 4483; C.S., s. 6661; 1967, c. 807; 1973, c. 138; 1981, c. 412, s. 4; c. 717, s. 8; c. 747, s. 66; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1987, c. 827, s. 1; 2001-375, s. 5; 2013-154, s. 1(c); 2021-110, s. 7.)

Editor's Note. - Session Laws 2021-110 provides in the preamble:

"Whereas, it is the intention of the North Carolina General Assembly to improve access to care and health outcomes for its citizens; and

"Whereas, North Carolina's public health ranking is in the bottom one-half to one-third of the nation; and

"Whereas, one-third of our nation's states have authorized pharmacists to help with access to care related to public health needs beyond immunizations; and

"Whereas, North Carolinians need and deserve better accessibility to care; Now, therefore,"

Effect of Amendments. - Session Laws 2013-154, s. 1(c), effective June 19, 2013, added the second sentence in subsection (b).

Session Laws 2021-110, s. 7, effective October 1, 2021, added subdivision (a)(10).

§ 90-85.39. Injunctive authority.

The Board may apply to any court for an injunction to prevent violations of this Article or of any rules enacted pursuant to it. The court is empowered to grant the injunctions regardless of whether criminal prosecution or other action has been or may be instituted as a result of the violation.

History

(1981 (Reg. Sess., 1982), c. 1188, s. 1.)

§ 90-85.40. Violations.

1. It shall be unlawful for any owner or manager of a pharmacy or other place to allow or cause anyone other than a pharmacist to dispense or compound any prescription drug unless that person is a pharmacy technician or a pharmacy student who is enrolled in a school of pharmacy approved by the Board and is working under the supervision of a pharmacist.
2. Every person lawfully authorized to compound or dispense prescription drugs shall comply with all the laws and regulations governing the labeling and packaging of such drugs by pharmacists.
3. It shall be unlawful for any person not licensed as a pharmacist to compound or dispense any prescription drug, unless that person is a pharmacy technician or a pharmacy student who is enrolled in a school of pharmacy approved by the Board and is working under the supervision of a pharmacist.
4. It shall be unlawful for any person to manage any place of business where devices are dispensed or sold at retail without a permit as required by this Article.
5. It is unlawful for a person to own or manage a place of business from which medical equipment is delivered without a permit as required by this Article.
6. It shall be unlawful for any person without legal authorization to dispose of an article that has been embargoed under this Article.
7. It shall be unlawful to violate any provision of this Article or of any rules or regulations enacted pursuant to it.
8. This Article shall not be construed to prohibit any person from performing an act that person is authorized to perform pursuant to North Carolina law. Health care providers who are authorized to prescribe drugs without supervision are authorized to dispense drugs without supervision.
9. A violation of this Article shall be a Class 1 misdemeanor.

History

(1905, c. 108, ss. 4, 23, 24; Rev., ss. 3649, 3650, 4487; C.S., ss. 6667, 6668, 6669; 1921, c. 68, ss. 6, 7; Ex. Sess. 1924, c. 116; 1953, c. 1051; 1957, c. 617; 1959, c. 1222; 1981 (Reg. Sess., 1982), c. 1188, s. 1; 1993, c. 539, s. 621; 1994, Ex. Sess., c. 24, s. 14(c); 1993 (Reg. Sess., 1994), c. 692, s. 4; 2001-375, ss. 6, 7.)

§ 90-85.41. Board agreements with special peer review organizations for impaired pharmacy personnel.

1. The North Carolina Board of Pharmacy may, under rules adopted by the Board in compliance with Chapter 150B of the General Statutes, enter into agreements with special impaired pharmacy personnel peer review organizations. Peer review activities to be covered by such agreements shall include investigation, review and evaluation of records, reports, complaints, litigation, and other information about the practices and practice patterns of pharmacy personnel licensed or registered by the Board, as such matters may relate to impaired pharmacy personnel. Special impaired pharmacy personnel peer review organizations may include a statewide supervisory committee and various regional and local components or subgroups.
2. Agreements authorized under this section shall include provisions for the impaired pharmacy personnel peer review organizations to receive relevant information from the Board and other sources, conduct any investigation, review, and evaluation in an expeditious manner, provide assurance of confidentiality of nonpublic information and of the peer review process, make reports of investigations and evaluations to the Board, and to do other related activities for operating and promoting a coordinated and effective peer review process. The agreements shall include provisions assuring basic due process for pharmacy personnel that become involved.
3. The impaired pharmacy personnel peer review organizations that enter into agreements with the Board shall establish and maintain a program for impaired pharmacy personnel licensed or registered by the Board for the purpose of identifying, reviewing, and evaluating the ability of those pharmacists to function as pharmacists, and pharmacy technicians to function as pharmacy technicians, and to provide programs for treatment and rehabilitation. The Board may provide funds for the administration of these impaired pharmacy personnel peer review programs. The Board shall adopt rules to apply to the operation of impaired pharmacy personnel peer review programs, with provisions for: (i) definitions of impairment; (ii) guidelines for program elements; (iii) procedures for receipt and use of information of suspected impairment; (iv) procedures for intervention and referral; (v) arrangements for monitoring treatment, rehabilitation, posttreatment support, and performance; (vi) reports of individual cases to the Board; (vii) periodic reporting of statistical information; and (viii) assurance of confidentiality of nonpublic information and of the peer review process.
4. Upon investigation and review of a pharmacist licensed by the Board, or a pharmacy technician registered with the Board, or upon receipt of a complaint or other information, an impaired pharmacy personnel peer review organization that enters into a peer review agreement with the Board shall report immediately to the Board detailed information about any pharmacist licensed or pharmacy technician registered by the Board, if:
   1. The pharmacist or pharmacy technician constitutes an imminent danger to the public or himself or herself.
   2. The pharmacist or pharmacy technician refuses to cooperate with the program, refuses to submit to treatment, or is still impaired after treatment and exhibits professional incompetence.
   3. It reasonably appears that there are other grounds for disciplinary action.
5. Any confidential patient information and other nonpublic information acquired, created, or used in good faith by an impaired pharmacy personnel peer review organization pursuant to this section shall remain confidential and shall not be subject to discovery or subpoena in a civil case. No person participating in good faith in an impaired pharmacy personnel peer review program developed under this section shall be required in a civil case to disclose any information (including opinions, recommendations, or evaluations) acquired or developed solely in the course of participating in the program.
6. Impaired pharmacy personnel peer review activities conducted in good faith pursuant to any program developed under this section shall not be grounds for civil action under the laws of this State, and the activities are deemed to be State directed and sanctioned and shall constitute "State action" for the purposes of application of antitrust laws.

History

(1999-81, s. 1; 2001-375, s. 8.)

§§ 90-85.42, 90-85.43: Reserved for future codification purposes.

PART 2. DRUG, SUPPLIES, AND MEDICAL DEVICE REPOSITORY PROGRAM.

§ 90-85.44. Drug, Supplies, and Medical Device Repository Program established.

1. Definitions. - As used in this section unless the context clearly requires otherwise, the following definitions apply:
   1. Board. - As defined in G.S. 90-85.3.
   2. Dispense. - As defined in G.S. 90-85.3.
   3. Drug. - As defined in G.S. 90-85.3.
   4. Eligible donor. - The following are eligible donors under the Program:
      1. A patient or the patient's family member.
      2. A manufacturer, wholesaler, or supplier of drugs, supplies, or medical devices.
      3. A pharmacy, free clinic, hospital, or a hospice care program.
   5. Eligible patient. - An uninsured or underinsured patient who meets the eligibility criteria established by the Board, free clinic, or pharmacy.
   6. Free clinic. - A private, nonprofit, community-based organization that provides health care services at little or no charge to low-income, uninsured, and underinsured persons through the use of volunteer health care professionals.
   7. Medical device. - A device as defined in G.S. 90-85.3(e).
   8. Pharmacist. - As defined in G.S. 90-85.3.
   9. Pharmacy. - As defined in G.S. 90-85.3.
   10. Practitioner. - A physician or other provider of health services licensed or otherwise permitted to distribute, dispense, or administer drugs, supplies, or medical devices.
   11. Program. - The Drug, Supplies, and Medical Device Repository Program established under this act.
   12. Supplies. - Supplies associated with or necessary for the administration of a drug.
2. Program Purpose. - The Board shall establish and administer the Program. The purpose of the Program is to allow an eligible donor to donate unused drugs, supplies, and medical devices to uninsured and underinsured patients in this State. The unused drugs, supplies, and medical devices shall be donated to a free clinic or pharmacy that elects to participate in the Program. A free clinic that receives a donated unused drug, supplies, or medical device under the Program may distribute the drug, supplies, or medical device to another free clinic or pharmacy for use under the Program.
3. Requirements of Participating Pharmacists or Free Clinics. - A pharmacist may accept and dispense drugs, supplies, and medical devices donated to the Program to eligible patients if all of the following requirements are met:
   1. The drug, supplies, or medical device is in the original, unopened, sealed, and tamper-evident packaging or, if packaged in single-unit doses, the single-unit dose packaging is unopened.
   2. The pharmacist has determined that the drug, supplies, or medical device is safe for redistribution.
   3. The drug has not reached its expiration date.
   4. The drug, supplies, or medical device is not adulterated or misbranded, as determined by a pharmacist.
   5. The drug, supplies, or medical device is prescribed by a practitioner for use by an eligible patient and is dispensed by a pharmacist.
4. Fee. - A participating pharmacist or free clinic shall not resell a drug, supplies, or a medical device donated to the Program. A pharmacist or free clinic may charge an eligible patient a handling fee to receive a donated drug, supplies, or medical device, which shall not exceed the amount specified in rules adopted by the Board.
5. Program Participation Voluntary. - Nothing in this section requires a free clinic or pharmacy to participate in the Program.
6. Eligible Patient. - The Board shall establish eligibility criteria for individuals to receive donated drugs, supplies, or medical devices. Board eligibility criteria shall provide that individuals meeting free clinic or pharmacy eligibility criteria are eligible patients. Dispensing shall be prioritized to patients who are uninsured or underinsured. Dispensing to other patients shall be permitted if an uninsured or underinsured patient is not available.
7. Rules. - The Board shall adopt rules necessary for the implementation of the Program. Rules adopted by the Board shall provide for the following:
   1. Requirements for free clinics and pharmacies to accept and dispense donated drugs, supplies, and medical devices pursuant to the Program, including eligibility criteria, confidentiality of donors, and standards and procedures for a free clinic or pharmacy to accept and safely store and dispense donated drugs, supplies, and medical devices.
   2. The amount of the maximum handling fee that a free clinic or pharmacy may charge for distributing or dispensing donated drugs, supplies, or medical devices.
   3. A list of drugs, supplies, and medical devices, arranged either by category or by individual drug, supply, or medical device, that the Program will accept for dispensing.
8. Immunity. - The following limited immunities apply under the Program:
   1. Unless a pharmaceutical manufacturer exercises bad faith, the manufacturer is not subject to criminal or civil liability for injury, death, or loss to a person or property for matters related to the donation, acceptance, or dispensing of a drug or medical device manufactured by the manufacturer that is donated by any person under the Program, including liability for failure to transfer or communicate product or consumer information or the expiration date of the donated drug or medical device.
   2. The following individuals or entities are immune from civil liability for an act or omission that causes injury to or the death of an individual to whom the drug, supplies, or medical device is dispensed under the Program, and no disciplinary action may be taken against a pharmacist or practitioner as long as the drug, supplies, or medical device is donated in accordance with the requirements of this section:
      1. A pharmacy or free clinic participating in the Program.
      2. A pharmacist dispensing a drug, supplies, or medical device pursuant to the Program.
      3. A practitioner administering a drug, supplies, or medical devices pursuant to the Program.
      4. An eligible donor who has donated a drug, supplies, or a medical device pursuant to the Program.

History

(2009-423, s. 2; 2019-54, s. 1.)

Effect of Amendments. - Session Laws 2019-54, s. 1, effective June 26, 2019, rewrote subdivision (c)(3) which formerly read: "The drug bears an expiration date that is later than six months after the date that the drug was donated."

Legal Periodicals. - For note, "Don't Try This at Home: The FDA's Restrictive Regulation of Home-Testing Devices," see 67 Duke L.J. 383 (2017).

For article, "Nothing Generic About It: Promoting Therapeutic Access by Overcoming Regulatory and Legal Barriers to a Robust Generic Medical Device Market,” see 98 N. C.L. Rev. 595 (2020).

§ 90-85.45. Legislative intent.

It is the intent of the General Assembly to require pharmacy quality assurance programs to further contribute to and enhance the quality of health care and reduce medication errors in this State by facilitating a process for the continuous review of the practice of pharmacy.

History

(2005-427, s. 3.)

Editor's Note. - Session Laws 2005-427, s. 4, provides that this Article is effective January 1, 2006, and shall supersede all administrative rules regulating the maintenance of alleged medication error or incident records in effect as of that date.

§ 90-85.46. Definitions.

The following definitions shall apply in this Article:

1. Board. - The North Carolina Board of Pharmacy.
2. Pharmacy quality assurance program. - A program pertaining to one of the following:
   1. A pharmacy association created under G.S. 90-85.4 or incorporated under Chapter 55A of the General Statutes that evaluates the quality of pharmacy services and alleged medication errors and incidents and makes recommendations to improve the quality of pharmacy services.
   2. A program established by a person or entity holding a valid pharmacy permit pursuant to G.S. 90-85.21 or G.S. 90-85.21A to evaluate the quality of pharmacy services and alleged medication errors and incidents and make recommendations to improve the quality of pharmacy services.
   3. A quality assurance committee or medical or peer review committee established by a health care provider licensed under this Chapter or a health care facility licensed under Chapter 122C, 131D, or 131E of the General Statutes that includes evaluation of the quality of pharmacy services and alleged medication errors and incidents and makes recommendations to improve the quality of pharmacy services.

History

(2005-427, s. 3; 2006-259, s. 16(a).)

Effect of Amendments. - Session Laws 2006-259, s. 16(a), effective August 23, 2006, substituted "G.S. 90-85.21A" for "G.S. 90-85.21(a)" in the middle of subdivision (2)(b).

§ 90-85.47. Pharmacy quality assurance program required; limited liability; discovery.

1. Every person or entity holding a valid pharmacy permit pursuant to G.S. 90-85.21 or G.S. 90-85.21A shall establish or participate in a pharmacy quality assurance program as defined under G.S. 90-85.46(2), to evaluate the following:
   1. The quality of the practice of pharmacy.
   2. The cause of alleged medication errors and incidents.
   3. Pharmaceutical care outcomes.
   4. Possible improvements for the practice of pharmacy.
   5. Methods to reduce alleged medication errors and incidents.
2. There shall be no monetary liability on the part of, or no cause of action for damages arising against, any member of a duly appointed pharmacy quality assurance program or any pharmacy or pharmacist furnishing information to a pharmacy quality assurance program or any person, including a person acting as a witness or incident reporter to or investigator for a pharmacy quality assurance program, for any act or proceeding undertaken or performed within the scope of the functions of the pharmacy quality assurance program.
3. This section shall not be construed to confer immunity from liability on any professional association, pharmacy or pharmacist, or health care provider while performing services other than as a member of a pharmacy quality assurance program or upon any person, including a person acting as a witness or incident reporter to or investigator for a pharmacy quality assurance program, for any act or proceeding undertaken or performed outside the scope of the functions of the pharmacy quality assurance program. Except as provided in subsection (a) or (b) of this section, where a cause of action would arise against a pharmacy, pharmacist, or an individual health care provider, the cause of action shall remain in effect.
4. The proceedings of a pharmacy quality assurance program, the records and materials it produces, and the materials it considers shall be confidential and not considered public records within the meaning of G.S. 132-1 or G.S. 58-2-100 and shall not be subject to discovery or introduction into evidence in any civil action, administrative hearing or Board investigation against a pharmacy, pharmacist, pharmacy technician, a pharmacist manager or a permittee or a hospital licensed under Chapter 122C or Chapter 131E of the General Statutes or that is owned or operated by the State, which civil action, administrative hearing or Board Investigation results from matters that are the subject of evaluation and review by the pharmacy quality assurance program. No person who was in attendance at a meeting of the pharmacy quality assurance program shall be required to testify in any civil action, administrative hearing or Board investigation as to any evidence or other matters produced or presented during the proceedings of the pharmacy quality assurance program or as to any findings, recommendations, evaluations, opinions, or other actions of the pharmacy quality assurance program 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 pharmacy quality assurance program. 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 pharmacy quality assurance program. A member of the pharmacy quality assurance program may testify in a civil or administrative action but cannot be asked about the person's testimony before the pharmacy quality assurance program or any opinions formed as a result of the pharmacy quality assurance program. Nothing in this subsection shall preclude:
   1. A pharmacy, pharmacist, pharmacy technician, or other person or any agent or representative of a pharmacy, pharmacist, pharmacy technician or other person participating on a pharmacy quality assurance program may use otherwise privileged, confidential information for legitimate internal business or professional purposes of the pharmacy quality assurance program.
   2. A pharmacy, pharmacist, pharmacy technician, other person participating on the committee, or any person or organization named as a defendant in a civil action, a respondent in an administrative proceeding, or a pharmacy, pharmacist, or pharmacy technician subject to a Board investigation as a result of participation in the pharmacy quality assurance program may use otherwise privileged, confidential information in the pharmacy quality assurance program or person's own defense. A plaintiff in the civil action or the agency in the administrative proceeding may disclose records or determinations of or communications to the pharmacy quality assurance program in rebuttal to information given by the defendant, respondent, or pharmacist subject to Board investigation.
5. Upon the Board providing written notice to the pharmacy permittee's designated agent under G.S. 90-85.21(a) and pharmacist of an investigation against the pharmacist, including the specific reason for the Board investigation, the pharmacy permittee's designated agent shall compile and provide documentation within 10 days of the receipt of the notice of any alleged medication error or incident committed by the pharmacist in the 12 months preceding the receipt of the notice, that the pharmacy permittee has knowledge of, when:
   1. The alleged medication error or incident resulted in any of the following:
      1. A visit to a physician or an emergency room attributed to the alleged medication incident or error.
      2. Hospitalization requiring an overnight stay or longer.
      3. A fatality.
   2. The Board has initiated a disciplinary proceeding against the pharmacist as a result of the investigation. Unless the documentation relates to an alleged medication error or incident that was specifically the cause of the investigation, the Board may review the documentation only after the Board has made findings of fact and conclusions of law pursuant to G.S. 150B-42(a) and may use the documentation in determining the remedial action the pharmacist shall undergo as part of the disciplinary action imposed by the Board. The documentation shall be released only to the Board or its designated employees pursuant to this subsection and shall not otherwise be released except as required by law.
6. Nothing in this section shall preclude the Board from obtaining information concerning a specific alleged medication error or incident that is the subject of a Board investigation resulting from a complaint to the Board.

The documentation provided to the Board shall not include the proceedings and records of a pharmacy quality assurance program or information prepared by the pharmacy solely for consideration by or upon request of a pharmacy quality assurance program.

History

(2005-427, s. 3; 2006-259, s. 16(b).)

Effect of Amendments. - Session Laws 2006-259, s. 16(b), effective August 23, 2006, substituted "G.S. 90-85.21A" for "G.S. 90-85.21(a)" in the introductory paragraph of subsection (a).

§§ 90-85.48, 90-85.49: Reserved for future codification purposes.

§ 90-85.50. Declaration of pharmacy rights during audit.

1. The following definitions apply in this Article:
   1. "Pharmacy" means a person or entity holding a valid pharmacy permit pursuant to G.S. 90-85.21 or G.S. 90-85.21A.
   2. "Responsible party" means the entity responsible for payment of claims for health care services other than (i) the individual to whom the health care services were rendered or (ii) that individual's guardian or legal representative.
2. Notwithstanding any other provision of law, whenever a managed care company, insurance company, third-party payer, or any entity that represents a responsible party conducts an audit of the records of a pharmacy, the pharmacy has a right to all of the following:
   1. To have at least 14 days' advance notice of the initial on-site audit for each audit cycle.
   2. To have any audit that involves clinical judgment be done with a pharmacist who is licensed, and is employed or working under contract with the auditing entity.
   3. Not to have clerical or record-keeping errors, including typographical errors, scrivener's errors, and computer errors, on a required document or record, in the absence of any other evidence, deemed fraudulent. This subdivision does not prohibit recoupment of fraudulent payments.
   4. If required under the terms of the contract, to have the auditing entity provide a pharmacy, upon request, all records related to the audit in an electronic format or contained in digital media.
   5. To have the properly documented records of a hospital or any person authorized to prescribe controlled substances for the purpose of providing medical or pharmaceutical care for their patients transmitted by any means of communication in order to validate a pharmacy record with respect to a prescription or refill for a controlled substance or narcotic drug.
   6. To have a projection of an overpayment or underpayment based on either the number of patients served with a similar diagnosis or the number of similar prescription orders or refills for similar drugs. This subdivision does not prohibit recoupments of actual overpayments, unless the projection for overpayment or underpayment is part of a settlement by the pharmacy.
   7. Prior to the initiation of an audit, if the audit is conducted for an identified problem, the audit is limited to claims that are identified by prescription number.
   8. If an audit is conducted for a reason other than described in subdivision (6) of this subsection, the audit is limited to 100 selected prescriptions.
   9. If an audit reveals the necessity for a review of additional claims, to have the audit conducted on site.
   10. Except for audits initiated for the reason described in subdivision (6) of this subsection, to be subject to no more than one audit in one calendar year, unless fraud or misrepresentation is reasonably suspected.
   11. Except for cases of Food and Drug Administration regulation or drug manufacturer safety programs, to be free of recoupments based on any of the following unless defined within the billing requirements set forth in the pharmacy provider manual not inconsistent with current North Carolina Board of Pharmacy Regulations:
       1. Documentation requirements in addition to or exceeding requirements for creating or maintaining documentation prescribed by the State Board of Pharmacy.
       2. A requirement that a pharmacy or pharmacist perform a professional duty in addition to or exceeding professional duties prescribed by the State Board of Pharmacy.
   12. To be subject to recoupment only following the correction of a claim and to have recoupment limited to amounts paid in excess of amounts payable under the corrected claim.
   13. Except for Medicare claims, to be subject to reversals of approval for drug, prescriber, or patient eligibility upon adjudication of a claim only in cases in which the pharmacy obtained the adjudication by fraud or misrepresentation of claim elements.
   14. To be audited under the same standards and parameters as other similarly situated pharmacies audited by the same entity.
   15. To have at least 30 days following receipt of the preliminary audit report to produce documentation to address any discrepancy found during an audit.
   16. To have the period covered by an audit limited to 24 months from the date a claim was submitted to, or adjudicated by, a managed care company, an insurance company, a third-party payer, or any entity that represents responsible parties, unless a longer period is permitted by a federal plan under federal law.
   17. Not to be subject to the initiation or scheduling of audits during the first five calendar days of any month due to the high volume of prescriptions filled during that time, without the express consent of the pharmacy. The pharmacy shall cooperate with the auditor to establish an alternate date should the audit fall within the days excluded.
   18. To have the preliminary audit report delivered to the pharmacy within 120 days after conclusion of the audit.
   19. To have a final audit report delivered to the pharmacy within 90 days after the end of the appeals period, as provided for in G.S. 90-85.51.
   20. Not to have the accounting practice of extrapolation used in calculating recoupments or penalties for audits, unless otherwise required by federal requirements or federal plans.
   21. Not to be subject to recoupment on any portion of the reimbursement for the dispensed product of a prescription, unless otherwise provided in this subdivision:
       1. Recoupment of reimbursement, or a portion of reimbursement, for the dispensed product of a prescription may be had in the following cases:
          1. Fraud or other intentional and willful misrepresentation evidenced by a review of the claims data, statements, physical review, or other investigative methods.
          2. Dispensing in excess of the benefit design, as established by the plan sponsor.
          3. Prescriptions not filled in accordance with the prescriber's order.
          4. Actual overpayment to the pharmacy.
       2. Recoupment of claims in cases set out in sub-subdivision a. of this subdivision shall be based on the actual financial harm to the entity or the actual underpayment or overpayment. Calculations of overpayments shall not include dispensing fees unless one of the following conditions is present:
          1. A prescription was not actually dispensed.
          2. The prescriber denied authorization.
          3. The prescription dispensed was a medication error by the pharmacy. For purposes of this subdivision, a medication error is a dispensing of the wrong drug or dispensing to the wrong patient or dispensing with the wrong directions.
          4. The identified overpayment is based solely on an extra dispensing fee.
          5. The pharmacy was noncompliant with Risk Evaluation and Mitigation Strategies (REMS) program guidelines.
          6. There was insufficient documentation, including electronically stored information, as described in this subsection.
          7. Fraud or other intentional and willful misrepresentation by the pharmacy.
   22. To have an audit based only on information obtained by the entity conducting the audit and not based on any audit report or other information gained from an audit conducted by a different auditing entity. This subdivision does not prohibit an auditing entity from using an earlier audit report prepared by that auditing entity for the same pharmacy. Except as required by State or federal law, an entity conducting an audit may have access to a pharmacy's previous audit report only if the previous report was prepared by that entity.
   23. If the audit is conducted by a vendor or subcontractor, that entity is required to identify the responsible party on whose behalf the audit is being conducted without having this information being requested.
   24. To use any prescription that complies with federal or State laws and regulations at the time of dispensing to validate a claim in connection with a prescription, prescription refill, or a change in a prescription.

History

(2011-375, s. 1; 2013-379, s. 3.)

Editor's Note. - Subdivisions (b)(4) through (20) were enacted by Session Laws 2011-375, s. 1, as subdivisions (b)(3a) through (19), respectively. They have been renumbered as subdivisions (b)(4) through (20) at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2013-379, s. 3, effective October 1, 2013, added subdivisions (b)(21) through (b)(24). For applicability, see Editor's note.

§ 90-85.51. Mandatory appeals process.

1. Each entity that conducts an audit of a pharmacy shall establish an appeals process under which a pharmacy may appeal an unfavorable preliminary audit report to the entity.
2. If, following the appeal, the entity finds that an unfavorable audit report or any portion of the unfavorable audit report is unsubstantiated, the entity shall dismiss the unsubstantiated portion of the audit report without any further proceedings.
3. Each entity conducting an audit shall provide a copy, if required under contractual terms, of the audit findings to the plan sponsor after completion of any appeals process.

History

(2011-375, s. 1.)

§ 90-85.52. Pharmacy audit recoupments.

1. The entity conducting an audit shall not recoup any disputed funds, charges, or other penalties from a pharmacy until (i) the deadline for initiating the appeals process established pursuant to G.S. 90-85.51 has elapsed or (ii) after the final internal disposition of an audit, including the appeals process as set forth in G.S. 90-85.51, whichever is later, unless fraud or misrepresentation is reasonably suspected.
2. Recoupment on an audit shall be refunded to the responsible party as contractually agreed upon by the parties.
3. The entity conducting the audit may charge or assess the responsible party, directly or indirectly, based on amounts recouped if both of the following conditions are met:
   1. The responsible party and the entity conducting the audit have entered into a contract that explicitly states the percentage charge or assessment to the responsible party.
   2. A commission or other payment to an agent or employee of the entity conducting the audit is not based, directly or indirectly, on amounts recouped.

History

(2011-375, s. 1; 2013-379, s. 4.)

Editor's Note. - Session Laws 2013-379, s. 6, made the amendment to this section by Session Laws 2013-379, s. 4, which rewrote subsection (a), applicable to audits commencing on or after October 1, 2013.

Effect of Amendments. - Session Laws 2013-379, s. 4, effective October 1, 2013, rewrote subsection (a), which read "Recoupments of any disputed funds shall occur only after final internal disposition of an audit, including the appeals process as set forth in G.S. 90-85.51, unless fraud or misrepresentation is reasonably suspected." For applicability, see Editor's note.

§ 90-85.53. Applicability.

This Article does not apply to any audit, review, or investigation that involves alleged Medicaid fraud, Medicaid abuse, insurance fraud, or other criminal fraud or misrepresentation.

History

(2011-375, s. 1.)

§ 90-86. Title of Article.

This Article shall be known and may be cited as the "North Carolina Controlled Substances Act."

History

(1971, c. 919, s. 1.)

Editor's Note. - Session Laws 2020-3, s. 3A.1(a), provides: "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. 3D.8(a), (b), provides: "(a) Notwithstanding any provision of law to the contrary, for the duration of the COVID-19 emergency, a hospital, nursing home, or clinic holding a valid State registration for controlled substances under Article 5 of Chapter 90 of the General Statutes may temporarily dispense or use controlled substances at additional places of business by completing the registration process developed by the Division of Mental Health, Developmental Disabilities and Substance Abuse Services of the North Carolina Department of Health and Human Services, and providing all information required pursuant to said emergency registration process for any overflow facility or satellite facility that may be established temporarily by the hospital, nursing home, or clinic registrant in response to the COVID-19 emergency, and no registration fee shall be required in connection with any such emergency registration.

"(b) 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.

Legal Periodicals. - For survey of 1976 criminal case law, see 55 N.C.L. Rev. 976 (1977).

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

For comment, "Admissibility of Biochemical Urinalysis Testing Results for the Purpose of Detecting Marijuana Use," see 20 Wake Forest L. Rev. 391 (1984).

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

§ 90-87. Definitions.

As used in this Article:

1. "Administer" means the direct application of a controlled substance, whether by injection, inhalation, ingestion, or any other means to the body of a patient or research subject by:
   1. A practitioner (or, in his presence, by his authorized agent), or
   2. The patient or research subject at the direction and in the presence of the practitioner.
2. "Agent" means an authorized person who acts on behalf of or at the direction of a manufacturer, distributor, or dispenser but does not include a common or contract carrier, public warehouseman, or employee thereof.
3. "Bureau" means the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice or its successor agency.
4. "Commission" means 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.
5. "Control" means to add, remove, or change the placement of a drug, substance, or immediate precursor included in Schedules I through VI of this Article.
6. "Controlled substance" means a drug, substance, or immediate precursor included in Schedules I through VI of this Article.
7. "Controlled substance analogue" means a substance (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in Schedule I or II; (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II; or (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in Schedule I or II; and does not include (i) a controlled substance; (ii) any substance for which there is an approved new drug application; (iii) with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under § 355 of Title 21 of the United States Code to the extent conduct with respect to such substance is pursuant to such exemption; or (iv) any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance. The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to subdivision 802(34) or 802(35) of Title 21 of the United States Code does not preclude a finding pursuant to this subdivision that the chemical is a controlled substance analogue.
8. "Counterfeit controlled substance" means:
   1. A controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed such substance and which thereby falsely purports, or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser; or
   2. Any substance which is by any means intentionally represented as a controlled substance. It is evidence that the substance has been intentionally misrepresented as a controlled substance if the following factors are established:
      1. The substance was packaged or delivered in a manner normally used for the illegal delivery of controlled substances.
      2. Money or other valuable property has been exchanged or requested for the substance, and the amount of that consideration was substantially in excess of the reasonable value of the substance.
      3. The physical appearance of the tablets, capsules or other finished product containing the substance is substantially identical to a specified controlled substance.
9. "Deliver" or "delivery" means the actual constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.
10. "Dispense" means to deliver a controlled substance to an ultimate user or research subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for that delivery.
11. "Dispenser" means a practitioner who dispenses.
12. "Distribute" means to deliver other than by administering or dispensing a controlled substance.
13. "Distributor" means a person who distributes.
14. "Drug" means a. substances recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, or official National Formulary, or any supplement to any of them; b. substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; c. substances (other than food) intended to affect the structure or any function of the body of man or other animals; and d. substances intended for use as a component of any article specified in a, b, or c of this subdivision; but does not include devices or their components, parts, or accessories.
15. "Drug dependent person" means a person who is using a controlled substance and who is in a state of psychic or physical dependence, or both, arising from use of that controlled substance on a continuous basis. Drug dependence is characterized by behavioral and other responses which include a strong compulsion to take the substance on a continuous basis in order to experience its psychic effects, or to avoid the discomfort of its absence.
16. "Immediate precursor" means a substance which the Commission has found to be and by regulation designates as being the principal compound commonly used or produced primarily for use, and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit such manufacture.
17. The term "isomer" means the optical isomer, unless otherwise specified.
18. "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance by any means, whether directly or indirectly, artificially or naturally, or by extraction from substances of a natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and "manufacture" further includes any packaging or repackaging of the substance or labeling or relabeling of its container except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:
    1. By a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice, or
    2. By a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to research, teaching, or chemical analysis and not for sale.
19. (Effective until June 30, 2022) "Marijuana" means all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber produced from such stalks, oil, or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. The term does not include industrial hemp as defined in G.S. 106-568.51, when the industrial hemp is produced and used in compliance with rules issued by the North Carolina Industrial Hemp Commission.
20. "Narcotic drug" means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis:
    1. Opium, opiate and opioid, and any salt, compound, derivative, or preparation of opium, opiate, or opioid.
    2. Any salt, compound, isomer, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in clause a, but not including the isoquinoline alkaloids of opium.
    3. Opium poppy and poppy straw.
    4. Cocaine and any salt, isomer (whether optical or geometric), salts of isomers, compound, derivative, or preparation thereof, or coca leaves and any salt, isomer, salts of isomers, compound, derivative or preparation of coca leaves, or any salt, isomer, salts of isomers, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocanized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.
21. "Opiate" means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having addiction-forming or addiction-sustaining liability. It does not include, unless specifically designated as controlled under G.S. 90-88, the dextrorotatory isomer of 3-methoxy-n-methyl-morphinan and its salts (dextromethorphan). It does include its racemic and levorotatory forms.
22. "Opioid" means any synthetic narcotic drug having opiate-like activities but is not derived from opium.
23. "Opium poppy" means the plant of the species Papaver somniferum L., except its seeds.
24. "Person" means individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity.
25. "Poppy straw" means all parts, except the seeds, of the opium poppy, after mowing.
26. "Practitioner" means:
    1. A physician, dentist, optometrist, veterinarian, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance so long as such activity is within the normal course of professional practice or research in this State.
    2. A pharmacy, hospital or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance so long as such activity is within the normal course of professional practice or research in this State.
27. "Prescription" means:
    1. A written order or other order which is promptly reduced to writing for a controlled substance as defined in this Article, or for a preparation, combination, or mixture thereof, issued by a practitioner who is licensed in this State to administer or prescribe drugs in the course of his professional practice; or issued by a practitioner serving on active duty with the Armed Forces of the United States or the United States Veterans Administration who is licensed in this or another state or Puerto Rico, provided the order is written for the benefit of eligible beneficiaries of armed services medical care; a prescription does not include an order entered in a chart or other medical record of a patient by a practitioner for the administration of a drug; or
    2. A drug or preparation, or combination, or mixture thereof furnished pursuant to a prescription order.
28. "Production" includes the manufacture, planting, cultivation, growing, or harvesting of a controlled substance.
29. "Registrant" means a person registered by the Commission to manufacture, distribute, or dispense any controlled substance as required by this Article.
30. "State" means the State of North Carolina.
31. "Targeted controlled substance" means any controlled substance included in G.S. 90-90(1) or (2) or G.S. 90-91(d).
32. "Ultimate user" means a person who lawfully possesses a controlled substance for his own use, or for the use of a member of his household, or for administration to an animal owned by him or by a member of his household.

(16) (Effective June 30, 2022) "Marijuana" means all parts of the plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature stalks of such plant, fiber produced from such stalks, oil, or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; c. 540, ss. 2-4; c. 1358, ss. 1, 15; 1977, c. 482, s. 6; 1981, c. 51, ss. 8, 9; c. 75, s. 1; c. 732; 1985, c. 491; 1987, c. 105, ss. 1, 2; 1991 (Reg. Sess., 1992), c. 1030, s. 21; 1997-456, s. 27; 2003-249, s. 2; 2011-183, s. 60; 2015-299, s. 2; 2016-93, s. 6; 2017-74, s. 3; 2017-115, s. 2; 2021-155, s. 1.)

Subdivision (16) Set Out Twice. - The first version of subdivision (16) set out above is effective until June 30, 2022. The second version of subdivision (16) set out above is effective June 30, 2022.

Editor's Note. - Session Laws 2015-299, s. 3, as amended by Session Laws 2016-93, s. 7, provides: "The North Carolina Industrial Hemp Commission may adopt temporary rules to implement the provisions of this act. The temporary rules shall remain in effect until permanent rules that replace the temporary rules become effective."

Session Laws 2015-299, s. 4, as amended by Session Laws 2016-93, s. 8, provides: "Section 2 of this act becomes effective on the first day of the month following the adoption of temporary rules pursuant to Section 3 of this act and applies to acts involving the production, possession, or use of industrial hemp occurring on or after that date. The remainder of this act is effective when it becomes law [October 31, 2015]. This act shall expire on June 30 of the fiscal year in which the North Carolina Industrial Hemp Commission adopts and submits to the Governor and to the Revisor of Statutes a resolution that a State pilot program allowing farmers to lawfully grow industrial hemp is no longer necessary because (i) the United States Congress has enacted legislation that removes industrial hemp from the federal Controlled Substances Act and (ii) the legislation has taken effect."

The Industrial Hemp Commission adopted temporary rules on February 24, 2017 and a temporary rule on fees on May 24, 2017. On August 19, 2021, a resolution was received by the Revisor of Statutes from the North Carolina Industrial Hemp Commission that a State pilot program allowing farmers to lawfully grow industrial hemp is no longer necessary. Thus the last sentence in the definition of marijuana in G.S. 90-87(16) expires June 30, 2022.

Session Laws 2017-74, provides in its preamble: "Whereas, the General Assembly recognizes the substantial impact the nationwide opioid epidemic continues to have on the State of North Carolina; and

"Whereas, North Carolina has seen a 442% increase in overdose deaths caused by commonly prescribed opioids between 1999 and 2015; and

"Whereas, the General Assembly fully recognizes the appropriate use of opioids in the treatment of acute and chronic pain; Now, therefore,"

Session Laws 2017-74, s. 1, provides: "This act shall be known and may be cited as the 'Strengthen Opioid Misuse Prevention Act of 2017' or the 'STOP Act.'"

Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'"

Session Laws 2017-115, s. 12, made the amendments to subdivisions (14a), (17), and (18), and the addition of subdivision (18a) by Session Laws 2017-115, s. 2, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2021-155, s. 9, made subdivisions (14a) and (17) of this section, as amended by Session Laws 2021-155, s. 1, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-183, s. 60, effective June 20, 2011, substituted "Armed Forces" for "armed forces" near the middle of subdivision (23)a.

Session Laws 2015-299, s. 2, added the last sentence of subdivision (16). For effective date, applicability, and expiration, see editor's note.

Session Laws 2016-93, s. 6, effective July 11, 2016, deleted "the Board of Agriculture upon the recommendation of" following "in compliance with rules issued by" near the end of subdivision (16).

Session Laws 2017-74, s. 3, effective July 1, 2017, added subdivision (26a).

Session Laws 2017-115, s. 2, rewrote subdivision (14a) which formerly read: "The term 'isomer' means, except as used in G.S. 90-87(17)(d), G.S. 90-89(c), G.S. 90-90(1)d., and G.S. 90-95(h)(3), the optical isomer. As used in G.S. 90-89(c) the term 'isomer' means the optical, position, or geometric isomer. As used in G.S. 90-87(17)(d), G.S. 90-90(1)d., and G.S. 90-95(h)(3) the term 'isomer' means the optical isomer or diastereoisomer."; in subdivision (17)(a), substituted "Opium, opiate, or opioid" for "Opium and opiate" twice; and added subdivision (18a). For effective date and applicability, see editor's note.

Session Laws 2021-155, s. 1, substituted "the optical isomer, unless otherwise specified" for "any type of isomer, including structural, geometric, or optical isomers, and stereoisomers" in subdivision (14a); and substituted "isomer (whether optical or geometric)" for "isomer" in subdivision (17)d. For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For article, "Asset Forfeiture and Third Party Rights: The Need for Further Law Reform," see 5 Duke L.J. 1254 (1989).

§ 90-88. Authority to control.

1. The Commission may add, delete, or reschedule substances within Schedules I through VI of this Article on the petition of any interested party, or its own motion. In every case the Commission shall give notice of and hold a public hearing pursuant to Chapter 150B of the General Statutes prior to adding, deleting or rescheduling a controlled substance within Schedules I through VI of this Article, except as provided in subsection (d) of this section. A petition by the Commission, the North Carolina Department of Justice, or the North Carolina Board of Pharmacy to add, delete, or reschedule a controlled substance within Schedules I through VI of this Article shall be placed on the agenda, for consideration, at the next regularly scheduled meeting of the Commission, as a matter of right.
2. In making a determination regarding a substance, the Commission shall consider the following:
   1. The actual or relative potential for abuse;
   2. The scientific evidence of its pharmacological effect, if known;
   3. The state of current scientific knowledge regarding the substance;
   4. The history and current pattern of abuse;
   5. The scope, duration, and significance of abuse;
   6. The risk to the public health;
   7. The potential of the substance to produce psychic or physiological dependence liability; and
   8. Whether the substance is an immediate precursor of a substance already controlled under this Article.
3. After considering the required factors, the Commission shall make findings with respect thereto and shall issue an order adding, deleting or rescheduling the substance within Schedules I through VI of this Article.
4. If the Commission designates a substance as an immediate precursor, substances which are precursors of the controlled precursor shall not be subject to control solely because they are precursors of the controlled precursor.
5. If any substance is designated, rescheduled or deleted as a controlled substance under federal law, the Commission shall similarly control or cease control of, the substance under this Article unless the Commission objects to such inclusion. The Commission, at its next regularly scheduled meeting that takes place 30 days after publication in the Federal Register of a final order scheduling a substance, shall determine either to adopt a rule to similarly control the substance under this Article or to object to such action. No rule-making notice or hearing as specified by Chapter 150B of the General Statutes is required if the Commission makes a decision to similarly control a substance. However, if the Commission makes a decision to object to adoption of the federal action, it shall initiate rule-making procedures pursuant to Chapter 150B of the General Statutes within 180 days of its decision to object.
6. The Commission shall exclude any nonnarcotic substance from the provisions of this Article if such substance may, under the federal Food, Drug and Cosmetic Act, lawfully be sold over-the-counter without prescription.
7. Authority to control under this Article does not include distilled spirits, wine, malt beverages, or tobacco.
8. The Commission shall similarly exempt from the provisions of this Article any chemical agents and diagnostic reagents not intended for administration to humans or other animals, containing controlled substances which either (i) contain additional adulterant or denaturing agents so that the resulting mixture has no significant abuse potential, or (ii) are packaged in such a form or concentration that the particular form as packaged has no significant abuse potential, where such substance was exempted by the Federal Bureau of Narcotics and Dangerous Drugs.
9. Repealed by Session Laws 1987, c. 413, s. 4.
10. The North Carolina Department of Health and Human Services shall maintain a list of all preparations, compounds, or mixtures which are excluded, exempted and excepted from control under any schedule of this Article by the United States Drug Enforcement Administration and/or the Commission. This list and any changes to this list shall be mailed to the North Carolina Board of Pharmacy, the State Bureau of Investigation and each district attorney of this State.

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; cc. 524, 541; c. 1358, ss. 2, 3, 15; 1977, c. 667, s. 3; 1981, c. 51, s. 9; 1987, c. 413, ss. 1-4; 1989, c. 770, s. 16; 1997-443, s. 11A.118(a); 2000-189, s. 4; 2001-487, s. 22.)

Cross References. - As to the creation and organization of the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, see G.S. 143B-147 et seq.

§ 90-89. Schedule I controlled substances.

This schedule includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that a substance comes within this schedule, the Commission shall find: a high potential for abuse, no currently accepted medical use in the United States, or a lack of accepted safety for use in treatment under medical supervision. The following controlled substances are included in this schedule:

1. Opiates. - Any of the following opiates or opioids, including the isomers, esters, ethers, salts and salts of isomers, esters, and ethers, unless specifically excepted, or listed in another schedule, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation:
   1. Acetyl-alpha-methylfentanyl (N[1-(1-methyl-2-phenethyl)-4-piperidinyl]-N-phenylacet amide).
   2. Acetylmethadol.
   3. Repealed by Session Laws 1987, c. 412, s. 2.
   4. Alpha-methylthiofentanyl (N-[1-methyl-2-(2-thienyl)ethyl/-4-piperidinyl]-N-phenylpro  panamide).
   5. Allylprodine.
   6. Alphacetylmethadol (except levo-alphacetylmethadol, also known as levomethadyl acetate and LAAM).
   7. Alphameprodine.
   8. Alphamethadol.
   9. Alpha-methylfentanyl (N-(1-(alpha-methyl-beta-phenyl) ethyl-4-piperidyl) propionalilide; 1(1-methyl-2-phenyl-ethyl)-4-(N-propanilido) piperidine).
   10. Benzethidine.
   11. Betacetylmethadol.
   12. Beta-hydroxfentanyl (N-[1-(2-hydroxy-2-phenethyl)-4-piperidinyl]-N-phenylpropanamide).
   13. Beta-hydroxy-3-methylfentanyl (N-[1-(2-hydroxy-2-phenethyl)-3-methyl-4-piperidinyl]-N-phenylpropanamide).
   14. Betameprodine.
   15. Betamethadol.
   16. Betaprodine.
   17. Clonitazene.
   18. Dextromoramide.
   19. Diampromide.
   20. Diethylthiambutene.
   21. Difenoxin.
   22. Dimenoxadol.
   23. Dimepheptanol.
   24. Dimethylthiambutene.
   25. Dioxaphetyl butyrate.
   26. Dipipanone.
2. Fentanyl derivatives. - Unless specifically excepted, listed in another schedule, or contained within a pharmaceutical product approved by the United States Food and Drug Administration, any compound structurally derived from N-[1-(2-phenylethyl)-4-piperidinyl]-N-phenylpropanamide (Fentanyl) by any substitution on or replacement of the phenethyl group, any substitution on the piperidine ring, any substitution on or replacement of the propanamide group, any substitution on the anilido phenyl group, or any combination of the above unless specifically excepted or listed in another schedule to include their salts, isomers, and salts of isomers. Fentanyl derivatives include, but are not limited to, the following:
   1. N-(1-phenylethylpiperidin-4-yl)-N-phenylfuran-2-carboxamide (also known as Furanyl Fentanyl).
   2. N-(1-phenethylpiperidin-4-yl)-N-phenylbutyramide; N-(1-phenethylpiperidin-4-yl)-N-phenylbutanamide (also known as Butyryl Fentanyl).
   3. N-[1-[2-hydroxy-2-(thiophen-2-yl)ethyl]piperidin-4-yl]-N-phenylpropionamide; N-[1-[2-hydroxy-2-(2-thienyl)ethyl]-4-piperidinyl]-N-phenylpropanamide (also known as Beta-Hydroxythiofentanyl).
   4. N-phenyl-N-[1-(2-phenylethyl)piperidin-4-yl]-2propenamide (also known as Acrylfentanyl).
   5. N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]-pentanamide (also known as Valeryl Fentanyl).
   6. N-(2-fluorophenyl)-N-[1-(2-phenylethyl)-4-piperidinyl]-propanamide (also known as 2-fluorofentanyl).
   7. N-(3-fluorophenyl)-N-[1-(2-phenylethyl)-4-piperidinyl]-propanamide (also known as 3-fluorofentanyl).
   8. N-(1-phenethylpiperidin-4-yl)-N-phenyltetrahydrofuran-2-carboxamide (also known as tetrahydrofuran fentanyl).
   9. N-(4-fluorophenyl)-2-methyl-N-[1-(2-phenylethyl)-4-piperidinyl]-propanamide (also known as 4-fluoroisobutyryl fentanyl, 4-FIBF).
   10. N-(4-fluorophenyl)-N-[1-(2-phenylethyl)-4-piperidinyl]-butanamide (also known as 4-fluorobutyryl fentanyl, 4-FBF).
3. Opium derivatives. - Any of the following opium derivatives, including their salts, isomers (whether optical, positional, or geometric), and salts of isomers, unless specifically excepted, or listed in another schedule, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
   1. Acetorphine.
   2. Acetyldihydrocodeine.
   3. Benzylmorphine.
   4. Codeine methylbromide.
   5. Codeine-N-Oxide.
   6. Cyprenorphine.
   7. Desomorphine.
   8. Dihydromorphine.
   9. Etorphine (except hydrochloride salt).
   10. Heroin.
   11. Hydromorphinol.
   12. Methyldesorphine.
   13. Methyldihydromorphine.
   14. Morphine methylbromide.
   15. Morphine methylsulfonate.
   16. Morphine-N-Oxide.
   17. Myrophine.
   18. Nicocodeine.
   19. Nicomorphine.
   20. Normorphine.
   21. Pholcodine.
   22. Thebacon.
   23. Drotebanol.
4. Hallucinogenic substances. - Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, including their salts, isomers, and salts of isomers, unless specifically excepted, or listed in another schedule, whenever the existence of such salts, isomers (whether optical, positional, or geometric), and salts of isomers is possible within the specific chemical designation:
   1. 3, 4-methylenedioxyamphetamine.
   2. 5-methoxy-3, 4-methylenedioxyamphetamine.
   3. 3, 4-Methylenedioxymethamphetamine (MDMA).
   4. 3,4-methylenedioxy-N-ethylamphetamine (also known as N-ethyl-alpha-methyl-3,4-(methylenedioxy) phenethylamine, N-ethyl MDA, MDE, and MDEA).
   5. N-hydroxy-3,4-methylenedioxyamphetamine (also known as N-hydroxy-alpha-methyl-3,4-(methylenedioxy) phenethylamine, and N-hydroxy MDA).
   6. 3, 4, 5-trimethoxyamphetamine.
   7. Alpha-ethyltryptamine. Some trade or other names: etryptamine, Monase, alpha-ethyl-1H-indole-3-ethanamine, 3-(2-aminobutyl) indole, alpha-ET, and AET.
   8. Bufotenine.
   9. Diethyltryptamine.
   10. Dimethyltryptamine.
   11. 4-methyl-2, 5-dimethoxyamphetamine.
   12. Ibogaine.
   13. Lysergic acid diethylamide.
   14. Mescaline.
   15. Peyote, meaning all parts of the plant presently classified botanically as Lophophora Williamsii Lemaire, whether growing or not; the seeds thereof; any extract from any part of such plant; and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seed or extracts.
   16. N-ethyl-3-piperidyl benzilate.
   17. N-methyl-3-piperidyl benzilate.
   18. Psilocybin.
   19. Psilocin.
   20. 2, 5-dimethoxyamphetamine.
   21. 2, 5-dimethoxy-4-ethylamphetamine. Some trade or other names: DOET.
   22. v. 4-bromo-2, 5-dimethoxyamphetamine.
   23. 4-methoxyamphetamine.
   24. Ethylamine analog of phencyclidine. Some trade or other names: N-ethyl-1-phenylcyclohexylamine, (1-phenylcyclohexyl) ethylamine, N-(1-phenylcyclohexyl) ethylamine, cyclohexamine, PCE.
   25. Pyrrolidine analog of phencyclidine. Some trade or other names: 1-(1-phenylcyclohexyl)-pyrrolidine, PCPy, PHP.
   26. Thiophene analog of phencyclidine. Some trade or other names: 1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienyl analog of phencyclidine, TPCP, TCP.
5. Systemic depressants. - Any material compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, unless specifically excepted or unless listed in another schedule:
   1. Mecloqualone.
   2. Methaqualone.
   3. Gamma hydroxybutyric acid; Some other names: GHB, gamma-hydroxybutyrate, 4-hydroxybutyrate, 4-hydroxybutanoic acid; sodium oxybate; sodium oxybutyrate.
   4. Etizolam.
   5. Flubromazepam.
   6. Phenazepam.
   7. Clonazolam.
   8. Flualprazolam.
   9. Flubromazolam.
6. Stimulants. - Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation that contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:
   1. Aminorex. Some trade or other names: aminoxaphen; 2-amino-5-phenyl-2-oxazoline; or 4,5-dihydro-5-phenyl-2-oxazolamine.
   2. Cathinone. Some trade or other names: 2-amino-1-phenyl-1-propanone, alpha-aminopropiophenone, 2-aminopropiophenone, and norephedrone.
   3. Fenethylline.
   4. Methcathinone. Some trade or other names: 2-(methylamino)- propiophenone, alpha-(methylamino)propiophenone, 2-(methy- lamino)-1-phenylpropan-1-one, alpha-N-methylamino- propiophenone, monomethylproprion, ephedrone, N-methylcathinone, methylcathinone, AL-464, AL-422, AL-463, and UR1432.
   5. (+-)cis-4-methylaminorex [(+-)cis-4,5-dihydro-4-methyl-5-phenyl-2-oxazolamine] (also known as 2-amino-4-methyl-5-phenyl-2-oxazoline).
   6. N,N-dimethylamphetamine. Some other names: N,N,alpha-tri- methylbenzeneethaneamine; N,N,alpha-trimethylphenethylamine.
   7. N-ethylamphetamine.
   8. 4-methylmethcathinone (also known as mephedrone). For this compound, the term "isomer" includes the optical, positional, or geometric isomer.
   9. 3,4-Methylenedioxypyrovalerone (also known as MDPV). For this compound, the term "isomer" includes the optical, positional, or geometric isomer.
   10. Substituted cathinones. A compound, other than bupropion, that is structurally derived from 2-amino-1-phenyl-1-propanone by modification in any of the following ways: (i) by substitution in the phenyl ring to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, or halide substituents, whether or not further substituted in the phenyl ring by one or more other univalent substituents; (ii) by substitution at the 3-position to any extent; or (iii) by substitution at the nitrogen atom with alkyl, dialkyl, benzyl, or methoxybenzyl groups or by inclusion of the nitrogen atom in a cyclic structure. For the purpose of this paragraph, the term "isomer" includes the optical, positional, or geometric isomer.
   11. N-Benzylpiperazine.
   12. 2,5 - Dimethoxy-4-(n)-propylthiophenethylamine.
7. NBOMe compounds. - Any material compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers (whether optical, positional, or geometric), and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation unless specifically excepted or unless listed in another schedule:
   1. 25B-NBOMe (2C-B-NBOMe) 2-(4-Bromo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine.
   2. 25C-NBOMe (2C-C-NBOMe) 2-(4-Chloro-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine.
   3. 25D-NBOMe (2C-D-NBOMe) 2-(2,5-dimethoxy-4-methylphenyl)-N-(2-methoxybenzyl)ethanamine.
   4. 25E-NBOMe (2C-E-NBOMe) 2-(4-Ethyl-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine.
   5. 25G-NBOMe (2C-G-NBOMe) 2-(2,5-dimethoxy-3,4-dimethylphenyl)-N-(2-methoxybenzyl)ethanamine.
   6. 25H-NBOMe (2C-H-NBOMe) 2-(2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine.
   7. 25I-NBOMe (2C-I-NBOMe) 2-(4-Iodo-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)  ethanamine.
   8. 25N-NBOMe (2C-N-NBOMe) 2-(2,5-dimethoxy-4-nitrophenyl)-N-(2-methoxybenzyl)ethanamine.
   9. 25P-NBOMe (2C-P-NBOMe) 2-(4-Propyl-2,5-dimethoxyphenyl)-N-(2-methoxybenzyl)ethanamine.
   10. 25T2-NBOMe (2C-T2-NBOMe) 2,5-dimethoxy-N-[(2-methoxyphenyl)methyl]-4-(methylthio)-benzeneethanamine.
   11. 25T4-NBOMe (2C-T4-NBOMe) 2,5-dimethoxy-N-[(2-methoxyphenyl)methyl]-4-[(1-methylethyl)thio]-benzeneethanamine.
   12. 25T7-NBOMe (2C-T7-NBOMe) 2,5-dimethoxy-N-[(2-methoxyphenyl)methyl]-4-(propylthio)-benzeneethanamine.
8. Synthetic cannabinoids. - Any quantity of any synthetic chemical compound that (i) is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring substances or (ii) has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is not listed as a controlled substance in Schedules I through V, and is not an FDA-approved drug. Synthetic cannabinoids include, but are not limited to, the substances listed in sub-subdivisions a. through p. of this subdivision and any substance that contains any quantity of their salts, isomers (whether optical, positional, or geometric), homologues, and salts of isomers and homologues, unless specifically excepted, whenever the existence of these salts, isomers, homologues, and salts of isomers and homologues is possible within the specific chemical designation. The following substances are examples of synthetic cannabinoids and are not intended to be inclusive of the substances included in this Schedule:
   1. Naphthoylindoles. Any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Some trade or other names: JWH-015, JWH-018, JWH-019, JWH-073, JWH-081, JWH-122, JWH-200, JWH-210, JWH-398, AM-2201, and WIN 55-212.
   2. Naphthylmethylindoles. Any compound containing a 1H-indol-3-yl-(1-naphthyl)methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the naphthyl ring to any extent.
   3. Naphthoylpyrroles. Any compound containing a 3-(1-naphthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the pyrrole ring to any extent and whether or not substituted in the naphthyl ring to any extent. Another name: JWH-307.
   4. Naphthylmethylindenes. Any compound containing a naphthylideneindene structure with substitution at the 3-position of the indene ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indene ring to any extent and whether or not substituted in the naphthyl ring to any extent.
   5. Phenylacetylindoles. Any compound containing a 3-phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Some trade or other names: SR-18, RCS-8, JWH-250, and JWH-203.
   6. Cyclohexylphenols. Any compound containing a 2-(3-hydroxycyclohexyl)phenol structure with substitution at the 5-position of the phenolic ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not substituted in the cyclohexyl ring to any extent. Some trade or other names: CP 47,497 (and homologues), cannabicyclohexanol.
   7. Benzoylindoles. Any compound containing a 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, or 2-(4-morpholinyl)ethyl group, whether or not further substituted in the indole ring to any extent and whether or not substituted in the phenyl ring to any extent. Some trade or other names: AM-694, Pravadoline (WIN 48,098), and RCS-4.
   8. 2,3-Dihydro-5-methyl-3-(4-morpholinylmethyl)pyrrolo[1,2,3-de]-1, 4-benzoxazin-6-yl]-1-napthalenylmethanone. Some trade or other name: WIN 55,212-2.
   9. (6aR,10aR)-9-(hydroxymethyl)-6, 6-dimethyl-3-(2-methyloctan-2-yl)-6a,7,10,10a-tetrahydrobenzo[c]chromen-1-ol 7370. Some trade or other name: HU-210.
   10. 3-(cyclopropylmethanone) indole or 3-(cyclobutylmethanone) indole or 3-(cyclopentylmethanone) indole by substitution at the nitrogen atom of the indole ring, whether or not further substituted in the indole ring to any extent, whether or not further substituted on the cyclopropyl, cyclobutyl, or cyclopentyl rings to any extent. Substances in this class include, but are not limited to: UR-144, fluoro-UR-144, XLR-11, A-796,260, and A-834,735.
   11. Indole carboxaldehydes. Any compound structurally derived from 1H-indole-3-carboxaldehyde or 1H-indole-2-carboxaldehyde substituted in both of the following ways:
       1. At the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and
       2. At the carbon of the carboxaldehyde by a phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group;
   12. Indole carboxamides. Any compound structurally derived from 1H-indole-3-carboxamide or 1H-indole-2-carboxamide substituted in both of the following ways:
       1. At the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and
       2. At the nitrogen of the carboxamide by a phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group;
   13. Indole carboxylic acids. Any compound structurally derived from 1H-indole-3-carboxylic acid or 1H-indole-2-carboxylic acid substituted in both of the following ways:
       1. At the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and
       2. At the nitrogen of the carboxamide by a phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group;
   14. Indazole carboxaldehydes. Any compound structurally derived from 1H-indazole-3-carboxaldehyde or 1H-indazole-2-carboxaldehyde substituted in both of the following ways:
       1. At the nitrogen atom of the indazole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and
       2. At the carbon of the carboxaldehyde by a phenyl, benzyl,
   15. Indazole carboxamides. Any compound structurally derived from 1H-indazole-3-carboxamide or 1H-indazole-2-carboxamide substituted in both of the following ways:
       1. At the nitrogen atom of the indazole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and
       2. At the nitrogen of the carboxamide by a phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group;
   16. Indazole carboxylic acids. Any compound structurally derived from 1H-indazole-3-carboxylic acid or 1H-indazole-2-carboxylic acid substituted in both of the following ways:
       1. At the nitrogen atom of the indazole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, tetrahydropyranylmethyl, benzyl, or halo benzyl group; and
       2. At the hydroxyl group of the carboxylic acid by a phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group; whether or not the compound is further modified to any extent in the following ways: (i) substitution to the indazole ring to any extent, (ii) substitution to the phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent, (iii) a nitrogen heterocyclic analog of the indazole ring, or (iv) a nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring.
   17. Carbazoles. Any compound containing a carbazole ring system with a substituent on the nitrogen atom and bearing an additional substituent at the 1, 2, or 3 position of the carbazole ring system, with a linkage connecting the ring system to the substituent:
       1. Where the linkage connecting the carbazole ring system to the substituent if its 1, 2, or 3 position is any of the following: Alkyl, Carbonyl, Ester, Thione, Thioester, Amino, Alkylamino, Amido, or Alkylamido.
       2. Where the substituent at the 1, 2, or 3 position of the carbazole ring system, disregarding the linkage, is any of the following groups: Naphthyl, Quinolinyl, Adamantyl, Phenyl, Cycloalkyl (limited to cyclopropyl, cyclobutyl, cyclopentyl, or cyclohexyl), Biphenyl, Alkylamido (limited to ethylamido, propylamido, butanamido, pentamido), Benzyl, Carboxylic acid, Ester, Ether, Phenylpropylamido, or Phenylpropylamino; whether or not further substituted in either of the following ways: (i) the substituent at the 1, 2, or 3 position of the carbazole ring system, disregarding the linkage, is further substituted to any extent (ii) further substitution on the carbazole ring system to any extent. This class includes, but is not limited to, the following: MDMB CHMCZCA, EG-018, and EG-2201.
   18. Naphthoylnaphthalenes. Any compound structurally derived from naphthalene-1-yl-(naphthalene-1-yl) methanone with substitutions on either of the naphthalene rings to any extent. Substances in this class include, but are not limited to: CB-13.
9. Substituted phenethylamines. - This includes any compound, unless specifically excepted, specifically named or included in another subset in this schedule, or listed under a different schedule, structurally derived from phenylethan-2-amine by substitution on the phenyl ring in any of the following ways, that is to say, by substitution with a fused methylenedioxy ring, fused furan ring, or fused tetrahydrofuran ring; by substitution with two alkoxy groups; by substitution with one alkoxy and either one fused furan, tetrahydrofuran, or tetrahydropyran ring system; or by substitution with two fused ring systems from any combination of the furan, tetrahydrofuran, or tetrahydropyran ring systems. Whether or not the compound is further modified in any of the following ways, that is to say: (i) by substitution of phenyl ring by any halo, hydroxyl, alkyl, trifluoromethyl, alkoxy, or alylthio groups, (ii) by substitution at the 2-position by any alkyl groups, or (iii) by substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, hydroxybenzyl, methylenedioxybenzyl, or methoxybenzyl groups. Substances in this class include, but are not limited to: 2C-I (4-Iodo-2,5-dimethoxyphenethylamine), APDB ((2-aminopropyl)-2,3-dihydrobenzofuran), MBDB (3,4-methylenedioxy-N-methylbutanamine), and 2C-I-NBOH (N-(2-hydroxybenzyl)-4-iodo-2,5-dimethoxyphenethylamine).
10. N-Benzyl phenethylamines. - Unless specifically excepted or listed in another schedule, or contained within a pharmaceutical product approved by the United States Food and Drug Administration, any material, compound, mixture, or preparation, including its salts, isomers (whether optical, geometric, or positional), esters, or ethers, and salts of isomers, esters, or ethers, whenever the existence of such salts is possible within any of the following specific chemical designations, any compound containing a phenethylamine structure without a beta-keto group, with substitution on the nitrogen atom of the amino group with a benzyl substituent, with or without substitution on the phenyl or benzyl ring to any extent with alkyl, alkoxy, thio, alkylthio, halide, fused alkylenedioxy, fused furan, fused benzofuran, or fused tetrahydropyran substituents, whether or not further substituted on a ring to any extent, with or without substitution at the alpha position by any alkyl substituent. Substances in this class include, but are not limited to: 25B-NBOH (4-bromo-2,5-dimethoxy-[N-(2-hydroxybenzyl)]phenethylamine), 25I-NBF (4-iodo-2,5-dimethoxy-[N-(2-fluorobenzyl)]phenethylamine), and 25C-NBMD (4-chloro-2,5-dimethoxy-[N-(2,3-methylenedioxybenzyl)]phenethylamine).

aa. Ethylmethylthiambutene.

bb. Etonitazene.

cc. Etoxeridine.

dd. Furethidine.

ee. Hydroxypethidine.

ff. Ketobemidone.

gg. Levomoramide.

hh. Levophenacylmorphan. For purposes of this sub-subdivision only, the term "isomer" includes the optical and geometric isomers.

ii. 1-methyl-4-phenyl-4-propionoxypiperidine (MPPP).

jj. 3-Methylfentanyl (N-[3-methyl-1-(2-Phenylethyl)-4-Pi- peridyl]-N-Phenylpropanamide).

kk. 3-Methylthiofentanyl (N-[(3-methyl-1-(2-thienyl)ethyl-4-piperidinyl]-N-phenylpropanamide).

ll . Morpheridine.

mm. Noracymethadol.

nn. Norlevorphanol.

oo. Normethadone.

pp. Norpipanone.

qq. Para-fluorofentanyl (N-(4-fluorophenyl)-N-[1-(2-phen-ethyl)-4-piperidinyl]-propanamide.

rr. Phenadoxone.

ss. Phenampromide.

tt. 1-(2-phenethyl)-4-phenyl-4-acetoxypiperidine (PEPAP).

uu. Phenomorphan.

vv. Phenoperidine.

ww. Piritramide.

xx. Proheptazine.

yy. Properidine.

zz. Propiram.

aaa. Racemoramide.

bbb. Thiofentanyl (N-phenyl-N-[1-(2-thienyl)ethyl-4-piperidinyl]-propanamide.

ccc. Tilidine.

ddd. Trimeperidine.

eee. Acetyl Fentanyl.

fff. Trans-3,4-dichloro-N-(2(dimethylamino)cyclohexyl)-N-methyl-benzamide (U47700).

ggg. 3,4-dichloro-N([1(dimethylamino)cyclohexyl]methyl)benzamide; 1-(3,4-dichlorobenzamidomethyl)cyclohexyldimethylamine) (also known as AH-7921).

hhh. 3,4-dichloro-N-([diethylamino)cyclohexyl]-N-methylbenzamide (also known as U-49900).

iii. U-77891.

jjj. 1-phenylethylpiperidylidene-2-(4-chlorphenyl)sulfonamide; 1-(4-nitrophenylethyl)piperidylidene-2-(4-chlorophenyl)sulfonamide; 4-chloro-N-[1-[2-(4-nitrophenyl)ethyl]-2-piperidinylidene]-benzenesulfonamide (also known as W-18).

kkk. 1-phenylethylpiperidylidene-2-(4-chlorophenyl)sulfonamide; 4-chloro-N-[1-(2-phenylethyl)-2-piperidinylidene]-benzenesulfonamide (also known as W-15).

lll . 1-cyclohexyl-4-(1,2-diphenylethyl)piperazine (also known as MT-45).

mmm. 3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-isopropylbenzami de (also known as Isopropyl-U-47700).

nnn. 2-(3,4-dichlorophenyl)-N-[2-(dimethylamino)cyclohexyl]-N-methyl acetamide (also known as U-51754).

ooo. 2-(2,4-dichlorophenyl)-N-[2-(dimethylamino)cyclohexyl]-N-methyl acetamide (also known as U-48800).

ppp. Isotonitazene.

qqq. Metonitazene.

rrr. Brorphine.

aa. 1-[1-(2-thienyl)cyclohexyl]pyrrolidine; Some other names: TCPy.

bb. Parahexyl.

cc. 4-Bromo-2, 5-Dimethoxyphenethylamine.

dd. Alpha-Methyltryptamine.

ee. 5-Methoxy-N,N-diisopropyltryptamine.

ff. Methoxetamine (other names: MXE, 3-MeO-2-Oxo-PCE).

gg. BTCP (Benzothiophenylcyclohexylpiperidine).

hh. Deschloroketamine.

jj. 3-MeO-PCP (3-methoxyphencyclidine).

kk. 4-hydroxy-MET.

ll . 4-OH-MiPT (4-hydroxy-N-methyl-N-isopropyltryptamine).

mm. 5-methoxy-N-methyl-N-propyltryptamine (5-MeO-MiPT).

nn. Substituted tryptamines. - Any compound, unless specifically excepted, specifically named in this schedule, or listed under a different schedule, structurally derived from 2-(1H-indol-3-yl)ethanamine (i.e., tryptamine) by mono- or di-substitution of the amine nitrogen with alkyl or alkenyl groups or by inclusion of the amino nitrogen atom in a cyclic structure whether or not the compound is further substituted at the alpha position with an alkyl group or whether or not further substituted on the indole ring to any extent with any alkyl, alkoxy, halo, hydroxyl, or acetoxy groups. Substances in this class include, but are not limited to: 4-AcO-DiPT (4-acetoxy-N,N-diisopropyltryptamine), 4-HO-MPMI ((R)-3-(N-methylpyrrolidin-2-ylmethyl)-4-hydoxyindole), and DALT (N,N-diallyltryptamine).

oo. Substituted phenylcyclohexylamines. - Any compound, unless specifically excepted or unless listed in another schedule, or contained within a pharmaceutical product approved by the United States Food and Drug Administration, any material, compound, mixture, or preparation containing a phenylcyclohexylamine structure, with or without any substitution on the phenyl ring, any substitution on the cyclohexyl ring, any replacement of the phenyl ring with a thiophenyl or benzothiophenyl ring, with or without substitution on the amine with alkyl, dialkyl, or alkoxy substituents, inclusion of the nitrogen in a cyclic structure, or any combination of the above. Substances in this class include, but are not limited to: BCP (benocyclidine), PCMPA ((phenylcyclohexyl(methoxypropylamine)), and Hydroxy-PCP ((hydroxyphenyl)cyclohexylpiperidine).

whether or not the compound is further modified to any extent in the following ways: (i) substitution to the indole ring to any extent, (ii) substitution to the phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent, (iii) a nitrogen heterocyclic analog of the indole ring, or (iv) anitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring. Substances in this class include, but are not limited to: AB-001.

whether or not the compound is further modified to any extent in the following ways: (i) substitution to the indole ring to any extent, (ii) substitution to the phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent, (iii) a nitrogen heterocyclic analog of the indole ring, or (iv) a nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring. Substances in this class include, but are not limited to: SDB-001 and STS-135.

whether or not the compound is further modified to any extent in the following ways: (i) substitution to the indole ring to any extent, (ii) substitution to the phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent, (iii) a nitrogen heterocyclic analog of the indole ring, or (iv) a nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring. Substances in this class include, but are not limited to: SDB-001 and STS-135.

whether or not the compound is further modified to any extent in the following ways: (i) substitution to the indole ring to any extent, (ii) substitution to the phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent, (iii) a nitrogen heterocyclic analog of the indole ring, or (iv) a nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring. Substances in this class include, but are not limited to: PB-22 and fluoro-PB-22.

whether or not the compound is further modified to any extent in the following ways: (i) substitution to the indazole ring to any extent, (ii) substitution to the phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent, (iii) a nitrogen heterocyclic analog of the indazole ring, or (iv) a nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring.

whether or not the compound is further modified to any extent in the following ways: (i) substitution to the indazole ring to any extent, (ii) substitution to the phenyl, benzyl, naphthyl, adamantyl, cyclopropyl, or propionaldehyde group to any extent, (iii) a nitrogen heterocyclic analog of the indazole ring, or (iv) a nitrogen heterocyclic analog of the phenyl, benzyl, naphthyl, adamantyl, or cyclopropyl ring. Substances in this class include, but are not limited to: AKB-48, fluoro-AKB-48, APINCACA, AB-PINACA, AB-FUBINACA, ADB-FUBINACA, and ADB-PINACA.

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; c. 844; c. 1358, ss. 4, 5, 15; 1975, c. 443, s. 1; c. 790; 1977, c. 667, s. 3; c. 891, s. 1; 1979, c. 434, s. 1; 1981, c. 51, s. 9; 1983, c. 695, s. 1; 1985, c. 172, ss. 1-3; 1987, c. 412, ss. 1-5; 1989 (Reg. Sess., 1990), c. 1040, s. 1; 1993, c. 319, ss. 1, 2; 1995, c. 186, ss. 1-3; c. 509, s. 135.1(c); 1997-456, ss. 12, 27; 1999-165, s. 1; 2000-140, s. 92.2(a); 2011-12, s. 1; 2011-326, s. 14(a), (b); 2015-162, s. 1; 2015-264, s. 13; 2017-115, s. 3; 2018-44, ss. 2, 3; 2021-155, s. 2.)

Editor's Note. - Sessions Laws 2011-12, s. 1 and Sessions Laws 2011-326, s. 14(b) each added sub-subdivisions designated as (5)h. and (5)i. Session Laws 2011-12, s. 1 also added a sub-subdivision (5)j. The sub-subdivisions added by Session Laws 2011-326 have been redesignated as sub-subdivisions (5)k. and (5) l . at the direction of the Revisor of Statutes.

As added by Session Laws 2011-12, s. 1, sub-subdivision (5)j. contained a misspelling of the word "bupropion". At the direction of the Revisor of Statutes, the spelling of that word has been corrected.

Session Laws 2015-264, s. 91.7 contains a severability clause.

Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'"

Session Laws 2017-115, s. 12, made the rewriting of this section by Session Laws 2017-115, s. 3, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2018-44, s. 1, provides: "This act shall be known and may be cited as "The Heroin and Opioid Prevention and Enforcement (HOPE) Act of 2018."

Session Laws 2018-44, s. 16, is a severability clause.

Session Laws 2021-155, s. 9, made this section, as amended by Session Laws 2021-155, s. 2, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-12, s. 1, effective June 1, 2011, and applicable to offenses committed on or after that date, added subdivisions (5)h. through (5)j.

Session Laws 2011-326, ss. 14(a) and 14(b), effective June 27, 2011, added subdivisions (3)dd., (3)ee., (5)k., and (5) l .

Session Laws 2015-162, s. 1, effective December 1, 2015, and applicable to offenses committed on or after that date, added subdivision (1)(eee), subdivision (3)(ff), and subdivision (6).

Session Laws 2015-264, s. 13, effective October 1, 2015, substituted "or 4,5-dihydro-5-phenyl-2-oxazolamine" for "or 4,5 dihydro-5-phenly-2-oxazolamine" in subdivision (5)(a); and substituted "dialkyl" for "diakyl" in subdivision (5)(j).

Session Laws 2017-115, s. 3, rewrote the section. For effective date and applicability, see editor's note.

Session Laws 2018-44, ss. 2, 3, effective December 1, 2018, substituted "5-Methoxy-N,N-diisopropyltryptamine" for "5-Methoxy-n-diisopropyltryptamine" in subdivision (3)ee; and in subdivision (6)a. through l. substituted a space for a hyphen between "NBOMe)" and "2".

Session Laws 2021-155, s. 2, added the sentence following "Levophenacylmorphan" in subdivision (1)hh.; added subdivisions (1)mmm. through rrr., (3)nn. and oo., (4)g. through i., (8), and (9); substituted "Unless specifically... any compound" for "Any compounds" in subdivision (1a); in the introductory language of subdivisions (2), (3) and (6), inserted "(whether optical, positional, or geometric)"; in subdivisions (5)h. through j., added the last sentence; and made minor punctuation changes. For effective date and applicability, see editor's note.

Legal Periodicals. - For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

§ 90-89.1. Treatment of controlled substance analogues.

A controlled substance analogue shall, to the extent intended for human consumption, be treated for the purposes of any State law as a controlled substance in Schedule I.

History

(2003-249, s. 1.)

§ 90-90. Schedule II controlled substances.

This schedule includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that a substance comes within this schedule, the Commission shall find: a high potential for abuse; currently accepted medical use in the United States, or currently accepted medical use with severe restrictions; and the abuse of the substance may lead to severe psychic or physical dependence. The following controlled substances are included in this schedule:

1. Any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, unless specifically excepted or unless listed in another schedule:
   1. Opium, opiate, or opioid and any salt, compound, derivative, or preparation of opium and opiate, excluding apomorphine, nalbuphine, dextrorphan, naloxone, naltrexone and nalmefene, and their respective salts, but including the following:
      1. Raw opium.
      2. Opium extracts.
      3. Opium fluid extracts.
      4. Powdered opium.
      5. Granulated opium.
      6. Tincture of opium.
      7. Codeine.
      8. Ethylmorphine.
      9. Etorphine hydrochloride.
      10. Any material, compound, mixture, or preparation which contains any quantity of hydrocodone.
      11. Hydromorphone.
      12. Metopon.
      13. Morphine.
      14. Oxycodone.
      15. Oxymorphone.
      16. Thebaine.
      17. Dihydroetorphine.
   2. Any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances referred to in paragraph 1 of this subdivision, except that these substances shall not include the isoquinoline alkaloids of opium.
   3. Opium poppy and poppy straw.
   4. Cocaine and any salt, isomer (whether optical or geometric), salts of isomers, compound, derivative, or preparation thereof, or coca leaves and any salt, isomer, salts of isomers, compound, derivative, or preparation of coca leaves, or any salt, isomer, salts of isomers, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocanized coca leaves or extraction of coca leaves, which extractions do not contain cocaine or ecgonine.
   5. Concentrate of poppy straw (the crude extract of poppy straw in either liquid, solid or powder form which contains the phenanthrine alkaloids of the opium poppy).
2. Any of the following opiates or opioids, including their isomers, esters, ethers, salts, and salts of isomers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation unless specifically exempted or listed in other schedules:
   1. Alfentanil.
   2. Alphaprodine.
   3. Anileridine.
   4. Bezitramide.
   5. Carfentanil.
   6. Dihydrocodeine.
   7. Diphenoxylate.
   8. Fentanyl.
   9. Isomethadone.
   10. Levo-alphacetylmethadol. Some trade or other names: levo-alpha-acetylmethadol, levomethadyl acetate, or LAAM.
   11. Levomethorphan.
   12. Levorphanol.
   13. Metazocine.
   14. Methadone.
   15. Methadone - Intermediate, 4-cyano-2-dimethylamino-4, 4- diphenyl butane.
   16. Moramide - Intermediate, 2-methyl-3-morpholino-1, 1-diphenyl-propane-carboxylic acid.
   17. Pethidine.
   18. Pethidine - Intermediate - A, 4-cyano-1-methyl-4/y-phenylpiperidine.
   19. Pethidine - Intermediate - B, ethyl-4-phenylpiperidine-4-carboxylate.
   20. Pethidine - Intermediate - C, 1-methyl-4-phenylpiperidine-4-carboxylic acid.
   21. Phenazocine.
   22. Piminodine.
   23. Racemethorphan.
   24. Racemorphan.
   25. Remifentanil.
   26. Sufentanil.
3. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system unless specifically exempted or listed in another schedule:
   1. Amphetamine, its salts, optical isomers, and salts of its optical isomers.
   2. Phenmetrazine and its salts.
   3. Methamphetamine, including its salts, isomers, and salts of isomers.
   4. Methylphenidate, including its salts, isomers, and salts of its isomers.
   5. Phenylacetone. Some trade or other names: Phenyl-2-propanone; P2P; benzyl methyl ketone; methyl benzyl ketone.
   6. Lisdexamfetamine, including its salts, isomers, and salts of isomers.
4. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, unless specifically exempted by the Commission or listed in another schedule:
   1. Amobarbital
   2. Glutethimide
   3. Repealed by Session Laws 1983, c. 695, s. 2.
   4. Pentobarbital
   5. Phencyclidine
   6. Phencyclidine immediate precursors:
      1. 1-Phenylcyclohexylamine
      2. 1-Piperidinocyclohexanecarbonitrile (PCC)
   7. Secobarbital.
5. Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, including their salts, isomers, and salts of isomers, unless specifically excepted, or listed in another schedule, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
   1. Repealed by Session Laws 2001-233, s. 2(a), effective June 21, 2001.
   2. Nabilone [Another name for nabilone: (+/-)-trans-3-(1,1-dimethylheptyl)-6,6a,7,8,10,10a-hexahyd ro-1-hydroxy-6,6-dimethyl-9H-dibenzo[b,d]pyran-9-one].

h1. Fentanyl immediate precursor chemical, 4-anilino-N-phenethyl-4-piperidine (ANPP).

h2. Norfentanyl (N-phenyl-N-(piperidin-4-yl) propionamide).

aa. Tapentadol.

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; c. 540, s. 6; c. 1358, ss. 6, 15; 1975, c. 443, s. 2; 1977, c. 667, s. 3; c. 891, s. 2; 1979, c. 434, s. 2; 1981, c. 51, s. 9; 1983, c. 695, s. 2; 1985, c. 172, ss. 4, 5; 1987, c. 105, s. 3; c. 412, ss. 5A-7; 1989 (Reg. Sess., 1990), c. 1040, s. 2; 1993, c. 319, ss. 3, 4; 1995, c. 186, s. 4; 1997-385, s. 1; 1997-456, s. 27; 1999-165, s. 2; 2001-233, ss. 1, 2(a); 2011-326, s. 14(c), (d); 2015-162, s. 2; 2017-115, s. 4; 2018-44, s. 4; 2021-155, ss. 3, 4.)

Cross References. - As to provisions pertaining to punishment of offenders for murder by the unlawful distribution of certain substances, see G.S. 14-17.

Editor's Note. - As added by Session Laws 2011-326, s. 14, sub-subdivision (2)aa. contained a misspelling of the word "Tapentadol". At the direction of the Revisor of Statutes, the spelling of that word has been corrected.

Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'"

Session Laws 2018-44, s. 1, provides: "This act shall be known and may be cited as 'The Heroin and Opioid Prevention and Enforcement (HOPE) Act of 2018.'"

Session Laws 2018-44, s. 16, is a severability clause.

Session Laws 2021-155, s. 9, made this section, as amended by Session Laws 2021-155, ss. 3 and 4, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-326, ss. 14(c) and 14(d), effective June 27, 2011, added subdivisions (2)aa. and (3)f.

Session Laws 2015-162, s. 2, effective December 1, 2015, inserted "including its salts, isomers, and salts of its isomers" in subdivision (3)(d). For applicability, see Editor's note.

Session Laws 2017-115, s. 4, in subdivision (1), substituted "Opium, opiate, or opioid" for "Opium and opiate,"; rewrote subdivision (1)a.10., which formerly read: "Hydrocodone."; substituted "opiates or opioids" for "opiates" in the first sentence in subdivision (2). For effective date and applicability, see editor's note.

Session Laws 2018-44, s. 4, effective December 1, 2018, in subdivision (2), added sub-subdivision h1.

Session Laws 2021-155, ss. 3 and 4, substituted "isomer (whether optical or geometric)" for "isomer" in subdivision (1)d.; and added subdivision (2)h2. For effective date and applicability, see editor's note.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 417 (1998).

For comment, "One Tough Pill to Swallow: A Call to Revise North Carolina's Drug Trafficking Laws Concerning Prescription Painkillers," see 33 Campbell L. Rev. 451 (2011).

For comment, "'Retribution, Not a Solution': Drug-Induced Homicide in North Carolina," see 42 Campbell L. Rev. 161 (2020).

§ 90-91. Schedule III controlled substances.

This schedule includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that a substance comes within this schedule, the Commission shall find: a potential for abuse less than the substances listed in Schedules I and II; currently accepted medical use in the United States; and abuse may lead to moderate or low physical dependence or high psychological dependence. The following controlled substances are included in this schedule:

1. Repealed by Session Laws 1973, c. 540, s. 5.
2. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system unless specifically exempted or listed in another schedule:
3. Nalorphine.
4. Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof unless specifically exempted or listed in another schedule:
5. Any compound, mixture or preparation containing limited quantities of the following narcotic drugs, which shall include one or more active, nonnarcotic, medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation, valuable medicinal qualities other than those possessed by the narcotic drug alone:
6. Paregoric, U.S.P., may be dispensed at retail as permitted by federal law or administrative regulation without a prescription only by a registered pharmacist and no other person, agency or employee may dispense paregoric, U.S.P., even if under the direct supervision of a pharmacist.
7. Notwithstanding the provisions of G.S. 90-91(f), after the pharmacist has fulfilled his professional responsibilities and legal responsibilities required of him in this Article, the actual cash transaction, credit transaction, or delivery of paregoric, U.S.P., may be completed by a nonpharmacist. A pharmacist may refuse to dispense a paregoric, U.S.P., substance until he is satisfied that the product is being obtained for medicinal purposes only.
8. Paregoric, U.S.P., may only be sold at retail without a prescription to a person at least 18 years of age. A pharmacist must require every retail purchaser of a paregoric, U.S.P., substance to furnish suitable identification, including proof of age when appropriate, in order to purchase paregoric, U.S.P. The name and address obtained from such identification shall be entered in the record of disposition to consumers.
9. The Commission may by regulation except any compound, mixture, or preparation containing any stimulant or depressant substance listed in paragraphs (a)1 and (a)2 of this schedule from the application of all or any part of this Article if the compound, mixture, or preparation contains one or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system; and if the ingredients are included therein in such combinations, quantity, proportion, or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.
10. Any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers (whether optical, positional, or geometric), and salts of said isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, unless specifically excluded or listed in some other schedule:
11. Anabolic steroids. The term "anabolic steroid" means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids) that promotes muscle growth, including, but not limited to, the following:
12. Repealed by Session Laws 2001-233, s. 3(a), effective June 21, 2001.
13. Any drug product containing gamma hydroxybutyric acid, including its salts, isomers, and salts of isomers, for which an application is approved under section 505 of the Federal Food, Drug, and Cosmetic Act.
14. Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved drug product. [Some other names: (6aR-trans), -6a,7,8,10a-tetrahydro-6,6,9-trimethyl-3-pentyl-6H-dibenzo [b,d]pyran-1-o1 or (-)-delta-9-(trans)-tetrahydrocannabinol].

1. Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid.
2. Chlorhexadol.
3. Repealed by Session Laws 1993, c. 319, s. 5.
4. Lysergic acid.
5. Lysergic acid amide.
6. Methyprylon.
7. Sulfondiethylmethane.
8. Sulfonethylmethane.
9. Sulfonmethane.
10. Any compound, mixture or preparation containing
    1. Amobarbital.
    2. Secobarbital.
    3. Pentobarbital.
11. Any suppository dosage form containing
    1. Amobarbital.
    2. Secobarbital.
    3. Pentobarbital.
12. Ketamine.
13. Drostanolone,
14. Fluoxymesterone,
15. Formebulone (formebolone),
16. Mesterolene,
17. Methandienone,
18. Methandranone,
19. Methandriol,
20. Methenolene,
21. Methyltestosterone,
22. Mibolerone,
23. Nandrolene,
24. Norethandrolene,
25. Oxandrolone,
26. Oxymesterone,
27. Oxymetholone,
28. Stanolone,
29. Testolactone,
30. Testosterone,
31. Trenbolone,
32. Any salt, ester, or isomer of a drug or substance described or listed in this subsection, if that salt, ester, or isomer promotes muscle growth. Except such term does not include (i) an anabolic steroid which is expressly intended for administration through implants to cattle or other nonhuman species and which has been approved by the Secretary of Health and Human Services for such administration or (ii) chorionic gonadotropin when administered by injection for veterinary use by a licensed veterinarian or the veterinarian's designated agent. If any person prescribes, dispenses, or distributes such steroid for human use, such person shall be considered to have prescribed, dispensed, or distributed an anabolic steroid within the meaning of this subsection.

9a. Tiletamine and zolazepam or any salt thereof. Some trade or other names for tiletamine-zolazepam combination product: Telazol. Some trade or other names for tiletamine:

2-(ethylamino)-2-(2-thienyl)-cyclohexanone. Some trade or other names for zolazepam: 4-(2-fluorophenyl)-6,8-dihydro-1,3,8-trimethylpyrazolo-[3,4-e][ 1,4]-diazepin-7(1H)-one. flupyrazapon.

or any salt thereof and one or more active ingredients which are not included in any other schedule.

or any salt of any of these drugs and approved by the federal Food and Drug Administration for marketing as a suppository.

1. Not more than 1.80 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit with an equal or greater quantity of an isoquinoline alkaloid of opium.

2. Not more than 1.80 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

3., 4. Repealed by Session Laws 2017-115, s. 5, effective December 1, 2017, and applicable to offenses committed on or after that date.

5. Not more than 1.80 grams of dihydrocodeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

6. Not more than 300 milligrams of ethylmorphine per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

7. Not more than 500 milligrams of opium per 100 milliliters or per 100 grams, or not more than 25 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

8. Not more than 50 milligrams of morphine per 100 milliliters or per 100 grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts.

9. Buprenorphine.

1. Paregoric, U.S.P.; provided, that no person shall purchase or receive by any means whatsoever more than one fluid ounce of paregoric within a consecutive 24-hour period, except on prescription issued by a duly licensed physician.

1. Benzphetamine.

2. Chlorphentermine.

3. Clortermine.

4. Repealed by Session Laws 1987, c. 412, s. 10.

5. Phendimetrazine.

1. Methandrostenolone,

2. Stanozolol,

3. Ethylestrenol,

4. Nandrolone phenpropionate,

5. Nandrolone decanoate,

6. Testosterone propionate,

7. Chorionic gonadotropin,

8. Boldenone,

8a. Boldione,

9. Chlorotestosterone (4-chlorotestosterone),

10. Clostebol,

11. Dehydrochlormethyltestosterone,

11a. Desoxymethyltesterone (17[alpha]-methyl-5[alpha]-androst-2-en-17[beta]-ol) (also known as madol),

12. Dibydrostestosterone (4-dihydrotestosterone),

19a. Methasterone,

31a. 19-nor-4,9(10)-androstadienedione (estra-4,9(10)-diene-3,17-dione), and

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; c. 540, s. 5; c. 1358, ss. 7, 15; 1975, c. 442; 1977, c. 667, s. 3; 1979, c. 434, s. 3; 1981, c. 51, s. 9; 1987, c. 412, ss. 8-10; 1987 (Reg. Sess., 1988), c. 1055; 1991, c. 413, s. 1; 1993, c. 319, s. 5; 1999-370, s. 3; 2000-140, s. 92.2(b); 2001-233, ss. 2(b), 3(a), 3(b); 2011-326, s. 14(e); 2016-113, s. 9; 2017-115, s. 5; 2021-155, s. 5.)

Editor's Note. - Subsection (e) of this section contains a subdivision 1, but no subdivision 2.

Session Laws 2016-113, s. 19(a), is a severability clause.

Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'"

Session Laws 2017-115, s. 12, made the amendments to subsections (d) and (k) by Session Laws 2017-115, s. 5, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2021-3, s. 2.18(a), (b), provides: "(a) Notwithstanding the provisions of subsection (h) of G.S. 90-91, subsection (d) of G.S. 90-93, subsection (a) of G.S. 90-106.1, G.S. 90-113.52, or any other provision of law to the contrary, a pharmacist may dispense the following controlled substances to individuals who present (i) a valid prescription for the controlled substance, if one is required under current law, and (ii) a North Carolina drivers license or identification card that expired while Executive Order No. 116 (2020), Declaration of a State of Emergency to Coordinate Response and Protective Actions to Prevent the Spread of COVID-19, remains in effect:

"(1) Paregoric, U.S.P.

"(2) Any Schedule II controlled substances.

"(3) Any of the Schedule III controlled substances listed in subdivisions (1) through (8) of subsection (d) of G.S. 90-91.

"(4) Any Schedule V controlled substances.

"(5) Pseudoephedrine products.

"(b) This section is effective when it becomes law and expires six months after the date the Governor signs an executive order rescinding said Executive Order No. 116 (2020), Declaration of a State of Emergency to Coordinate Response and Protective Actions to Prevent the Spread of COVID-19, or December 31, 2021, whichever is earlier."

Session Laws 2021-155, s. 9, made subsection (j) of this section, as amended by Session Laws 2021-155, s. 5, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-326, s. 14(e), effective June 27, 2011, substituted "decanoate" for "deconoate" in subdivision (k)5.

Session Laws 2016-113, s. 9, effective July 26, 2016, in the second sentence of subdivision (k)(32), added "(i)" and added "or (ii) chorionic gonadotropin when administered by injection for veterinary use by a licensed veterinarian or the veterinarian's designated agent" at the end.

Session Laws 2017-115, s. 5, deleted subdivision (d)3., which formerly read: "Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit with a four-fold or greater quantity of an isoquinoline alkaloid of opium."; deleted subdivision (d)4., which formerly read: "Not more than 300 milligrams of dihydrocodeinone per 100 milliliters or not more than 15 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts"; added subdivision (d)9.; in subdivision (k), added subdivisions 8a., 11a., 19a., and 31a.; and made a stylistic change. For effective date and applicability, see editor's note.

Session Laws 2021-155, s. 5, substituted "isomers (whether optical, positional, or geometric)" for "isomers" in subsection (j) in the introductory language. For effective date and applicability, see editor's note.

Legal Periodicals. - For article, "Legislative Survey: Criminal Law," see 22 Campbell L. Rev. 253 (2000).

§ 90-92. Schedule IV controlled substances.

1. This schedule includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that a substance comes within this schedule, the Commission shall find: a low potential for abuse relative to the substances listed in Schedule III of this Article; currently accepted medical use in the United States; and limited physical or pyschological dependence relative to the substances listed in Schedule III of this Article. The following controlled substances are included in this schedule:
   1. Depressants. - Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
      1. Alprazolam.
      2. Barbital.
      3. Bromazepam.
      4. Camazepam.
      5. Chloral betaine.
      6. Chloral hydrate.
      7. Chlordiazepoxide.
      8. Clobazam.
      9. Clonazepam.
      10. Clorazepate.
      11. Clotiazepam.
      12. Cloxazolam.
      13. Delorazepam.
      14. Diazepam.
      15. Estazolam.
      16. Ethchlorvynol.
      17. Ethinamate.
      18. Ethyl loflazepate.
      19. Fludiazepam.
      20. Flunitrazepam.
      21. Flurazepam.
      22. Repealed by Session Laws 2000, c. 140, s. 92.2(c), effective December 1, 2000.
      23. Halazepam.
      24. Haloxazolam.
      25. Ketazolam.
      26. Loprazolam.
          1. By substitution at the 2 position with a ketone;
          2. By substitution at the 3 position with a hydroxyl group or ester group, which itself may be further substituted;
          3. By a fused triazole ring at the 1,2 position, which itself may be further substituted;
          4. By a fused imidazole ring at the 1,2 position, which itself may be further substituted;
          5. By a fused oxazolidine ring at the 4,5 position, which itself may be further substituted;
          6. By a fused oxazine ring at the 4,5 position, which itself may be further substituted;
          7. By substitution at the 7 position with a nitro group;
          8. By substitution at the 7 position with a halogen group; or
          9. By substitution at the 1 position with an alkyl group, which itself may be further substituted.
   2. Any material, compound, mixture, or preparation which contains any of the following substances, including its salts, or isomers and salts of such isomers, whenever the existence of such salts, isomers, and salts of isomers is possible:
      1. Fenfluramine. For this compound, the term "isomer" includes the optical, positional, or geometric isomer.
      2. Pentazocine.
   3. Stimulants. - Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers (whether optical, position, or geometric), and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:
      1. Diethylpropion.
      2. Mazindol.
      3. Pemoline (including organometallic complexes and chelates thereof).
      4. Phentermine.
      5. Cathine.
      6. Fencamfamin.
      7. Fenproporex.
      8. Mefenorex.
      9. Sibutramine.
      10. Modafinil.
   4. Other Substances. - Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances, including its salts:
      1. Dextropropoxyphene (Alpha-(plus)-4-dimethylamino-1, 2-diphenyl-3-methyl-2-propionoxybutane).
      2. Pipradrol.
      3. SPA ((-)-1-dimethylamino-1, 2-diphenylethane).
      4. Butorphanol.
   5. Narcotic Drugs. - Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts thereof:
      1. Not more than 1 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
      2. Repealed by Session Laws 2017-115, s. 6, effective December 1, 2017, and applicable to offenses committed on or after that date.
      3. 2-[(dimethylamino)methyl]-1-(3-methoxyphenyl)cyclohexanol, its salts, optical and geometric isomers, and salts of these isomers (including tramadol).
2. The Commission may by regulation except any compound, mixture, or preparation containing any stimulant or depressant substance listed in this schedule from the application of all or any part of this Article if the compound, mixture, or preparation contains one or more active, nonnarcotic, medicinal ingredients not having a stimulant or depressant effect on the central nervous system; provided, that such admixtures shall be included therein in such combinations, quantity, proportion, or concentration as to vitiate the potential for abuse of the substances which do have a stimulant or depressant effect on the central nervous system.

d1. Carisoprodol.

m1. Desalkylflurazepam.

n1. Dichloralphenazone.

n2. Diclazepam.

u1. Fospropol.

aa. Lorazepam.

bb. Lormetazepam.

cc. Mebutamate.

dd. Medazepam.

ee. Meprobamate.

ff. Methohexital.

gg. Methylphenobarbital (mephobarbital).

hh. Midazolam.

ii. Nimetazepam.

jj. Nitrazepam.

kk. Nordiazepam.

ll . Oxazepam.

mm. Oxazolam.

nn. Paraldehyde.

oo. Petrichloral.

pp. Phenobarbital.

qq. Pinazepam.

rr. Prazepam.

ss. Quazepam.

tt. Temazepam.

uu. Tetrazepam.

vv. Triazolam.

ww. Zolpidem.

xx. Zaleplon.

yy. Zopiclone.

zz. Designer benzodiazepines. - Unless specifically excepted or listed in another schedule, or contained within a pharmaceutical product approved by the United States Food and Drug Administration, any material, compound, derivative, mixture, or preparation, including its salts, isomers, salts of isomers, halogen analogues, or homologues, whenever the existence of such salts, isomers, or salts of isomers, halogen analogues, or homologues is possible within the specific chemical designation, structurally derived from 1,4 benzodiazepine by substitution at the 5 position with a phenyl ring system (which may be further substituted), whether or not the compound is further modified in any of the following ways:

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; c. 1358, ss. 8, 15; c. 1446, s. 5; 1975, cc. 401, 819; 1977, c. 667, s. 3; c. 891, s. 3; 1979, c. 434, ss. 4-6; 1981, c. 51, s. 9; 1985, c. 172, ss. 6-8; c. 439, s. 1; 1987, c. 412, ss. 11, 12; 1993, c. 319, s. 6; 1995, c. 509, s. 38; 1997-456, s. 27; 1997-501, s. 1; 1999-165, s. 3; 2000-140, s. 92.2(c); 2001-233, s. 4; 2017-115, s. 6; 2017-212, s. 8.8(a), (b); 2021-155, s. 6.)

Editor's Note. - Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'"

Session Laws 2017-115, s. 12, made the amendments to subdivisions (a)(1) and (a)(5) by Session Laws 2017-115, s. 6, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2017-212, s. 8.8(c), made the amendments to subdivision (a)(5) by Session Laws 2017-212, s. 8.8(a), (b), effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2021-155, s. 9, made this section, as amended by Session Laws 2021-155, s. 6, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2017-115, s. 6, added subdivisions (a)(1)d1, n1, u1, and yy; deleted subdivision (5)(b) which formerly read: "Buprenorphine" and added subdivision (5)(c). For effective date and applicability, see editor's note.

Session Laws 2017-212, s. 8.8(a), (b), repealed sub-subdivision (a)(5)c. as added by S.L. 2017-115, s. 6, which read "Tramadol" and added sub-subdivision (a)(5)c. For effective date and applicability, see editor's note.

Session Laws 2021-155, s. 6, added subdivisions (a)(1)m1., n2., and zz.; and added the sentence after "Fenfluramine" in subdivision (a)(2)a. For effective date and applicability, see editor's note.

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 417 (1998).

For comment, "'Retribution, Not a Solution': Drug-Induced Homicide in North Carolina," see 42 Campbell L. Rev. 161 (2020).

§ 90-93. Schedule V controlled substances.

1. This schedule includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that a substance comes within this schedule, the Commission shall find: a low potential for abuse relative to the substances listed in Schedule IV of this Article; currently accepted medical use in the United States; and limited physical or psychological dependence relative to the substances listed in Schedule IV of this Article. The following controlled substances are included in this schedule:
   1. Any compound, mixture or preparation containing any of the following limited quantities of narcotic drugs or salts thereof, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic alone:
      1. Not more than 200 milligrams of codeine or any of its salts per 100 milliliters or per 100 grams.
      2. Not more than 100 milligrams of dihydrocodeine or any of its salts per 100 milliliters or per 100 grams.
      3. Not more than 100 milligrams of ethylmorphine or any of its salts per 100 milliliters or per 100 grams.
      4. Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit.
      5. Not more than 100 milligrams of opium per 100 milliliters or per 100 grams.
      6. Not more than 0.5 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
   2. Repealed by Session Laws 1985, c. 172, s. 9.
   3. Stimulants. - Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers and salts of isomers:
      1. Repealed by Session Laws 1993, c. 319, s. 7.
      2. Pyrovalerone.
   4. Anticonvulsants. - Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:
      1. Ezogabine.
      2. Lacosamide.
      3. Brivaracetam.
      4. Pregabalin.
      5. Cenobamate.
      6. Lasmiditan.
2. A Schedule V substance may be sold at retail without a prescription only by a registered pharmacist and no other person, agent or employee may sell a Schedule V substance even if under the direct supervision of a pharmacist.
3. Notwithstanding the provisions of G.S. 90-93(b), after the pharmacist has fulfilled the responsibilities required of him in this Article, the actual cash transaction, credit transaction, or delivery of a Schedule V substance, may be completed by a nonpharmacist. A pharmacist may refuse to sell a Schedule V substance until he is satisfied that the product is being obtained for medicinal purposes only.
4. A Schedule V substance may be sold at retail without a prescription only to a person at least 18 years of age. The pharmacist must require every retail purchaser of a Schedule V substance to furnish suitable identification, including proof of age when appropriate, in order to purchase a Schedule V substance. The name and address obtained from such identification shall be entered in the record of disposition to consumers.

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; c. 1358, ss. 9, 15; 1977, c. 667, s. 3; 1979, c. 434, ss. 7, 8; 1981, c. 51, s. 9; 1985, c. 172, s. 9; 1989 (Reg. Sess., 1990), c. 1040, s. 3; 1993, c. 319, s. 7; 1997-456, s. 27; 2017-115, s. 7; 2021-155, s. 8.5.)

Cross References. - As to disclosure of the records required to be kept under subsection (d) of this section, see G.S. 90-85.36.

Editor's Note. - Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'"

Session Laws 2017-115, s. 12, made subdivision (a)(4), as added by Session Laws 2017-115, s. 7, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2021-3, s. 2.18(a), (b), provides: "(a) Notwithstanding the provisions of subsection (h) of G.S. 90-91, subsection (d) of G.S. 90-93, subsection (a) of G.S. 90-106.1, G.S. 90-113.52, or any other provision of law to the contrary, a pharmacist may dispense the following controlled substances to individuals who present (i) a valid prescription for the controlled substance, if one is required under current law, and (ii) a North Carolina drivers license or identification card that expired while Executive Order No. 116 (2020), Declaration of a State of Emergency to Coordinate Response and Protective Actions to Prevent the Spread of COVID-19, remains in effect:

"(1) Paregoric, U.S.P.

"(2) Any Schedule II controlled substances.

"(3) Any of the Schedule III controlled substances listed in subdivisions (1) through (8) of subsection (d) of G.S. 90-91.

"(4) Any Schedule V controlled substances.

"(5) Pseudoephedrine products.

"(b) This section is effective when it becomes law and expires six months after the date the Governor signs an executive order rescinding said Executive Order No. 116 (2020), Declaration of a State of Emergency to Coordinate Response and Protective Actions to Prevent the Spread of COVID-19, or December 31, 2021, whichever is earlier."

Session Laws 2021-155, s. 9, made sub-subdivisions (a)(4)e. and f. of this section, as added by Session Laws 2021-155, s. 8.5, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2017-115, s. 7, added subdivision (a)(4). For effective date and applicability, see editor's note.

Session Laws 2021-155, s. 8.5, added subdivisions (a)(4)e. and f. For effective date and applicability, see editor's note.

Legal Periodicals. - For comment, "One Tough Pill to Swallow: A Call to Revise North Carolina's Drug Trafficking Laws Concerning Prescription Painkillers," see 33 Campbell L. Rev. 451 (2011).

§ 90-94. Schedule VI controlled substances.

This schedule includes the controlled substances listed or to be listed by whatever official name, common or usual name, chemical name, or trade name designated. In determining that such substance comes within this schedule, the Commission shall find: no currently accepted medical use in the United States, or a relatively low potential for abuse in terms of risk to public health and potential to produce psychic or physiological dependence liability based upon present medical knowledge, or a need for further and continuing study to develop scientific evidence of its pharmacological effects.

The following controlled substances are included in this schedule:

1. Marijuana.
2. Tetrahydrocannabinols.
3. Repealed by Session Laws 2017-115, s. 8, effective December 1, 2017, and applicable to offenses committed on or after that date.

History

(1971, c. 919, s. 1; 1973, c. 476, s. 128; c. 1358, s. 15; 1977, c. 667, s. 3; 1981, c. 51, s. 9; 1997-456, s. 27; 2011-12, s. 5; 2013-109, s. 1; 2015-162, s. 3; 2015-264, s. 48(a); 2017-115, s. 8.)

Editor's Note. - Session Laws 2013-109, s. 2, provides: "This act becomes effective July 1, 2013, 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."

Session Laws 2015-264, s. 91.7, is a severability clause.

Session Laws 2017-115, s. 12, made the repeal of subdivision (3) by Session Laws 2017-115, s. 8, effective December 1, 2017, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2011-12, s. 5, effective June 1, 2011, and applicable to offenses committed on or after that date, added subsection (3).

Session Laws 2013-109, s. 1, effective July 1, 2013, in subdivision (3), substituted "Any quantity of any synthetic chemical compound that (i) is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring substances or (ii) has a stimulant, depressant, or hallucinogenic effect on the central nervous system" for "Any material, compound, mixture, or preparation," added "Synthetic cannabinoids include, but are not limited to, the substances listed in sub-subdivisions a. through j. of this subdivision," "any substance that" and the last sentence, and deleted "the following substances" preceding "their salts, isomers"; and added sub-subdivision (3)(j). For effective date and applicability, see Editor's note.

Session Laws 2015-162, s. 3, effective December 1, 2015, and applicable to offenses committed on or after that date, rewrote subdivision (3)j; and added subdivisions (3)k. through (3)p.

Session Laws 2015-264, s. 48(a), effective December 1, 2015, substituted "in sub-subdivisions a. through p." for "in sub-subdivisions a. through j." in the second sentence of the introductory paragraph of subdivision (3).

Session Laws 2017-115, s. 8, repealed subdivision (3). For effective date and applicability, see editor's note.

Legal Periodicals. - For survey of 1976 criminal case law, see 55 N.C.L. Rev. 976 (1977).

For survey of 1982 criminal law, see 61 N.C.L. Rev. 1060 (1983).

§ 90-94.1. Exemption for use or possession of hemp extract.

1. As used in this section, "hemp extract" means an extract from a cannabis plant, or a mixture or preparation containing cannabis plant material, that has all of the following characteristics:
   1. Is composed of less than nine-tenths of one percent (0.9%) tetrahydrocannabinol by weight.
   2. Is composed of at least five percent (5%) cannabidiol by weight.
   3. Contains no other psychoactive substance.
2. Notwithstanding any other provision of this Chapter, an individual may possess or use hemp extract, and is not subject to the penalties described in this Chapter, if the individual satisfies all of the following criteria:
   1. Possesses or uses the hemp extract only to treat intractable epilepsy, as defined in G.S. 90-113.101.
   2. Possesses, in close proximity to the hemp extract, a certificate of analysis that indicates the hemp extract's ingredients, including its percentages of tetrahydrocannabinol and cannabidiol by weight.
   3. Is a caregiver, as defined in G.S. 90-113.101.
3. Notwithstanding any other provision of this Chapter, an individual who possesses hemp extract lawfully under this section may administer hemp extract to another person under the individual's care and is not subject to the penalties described in this Chapter for administering the hemp extract to the person if the individual is the person's caregiver, as defined in G.S. 90-113.101.
4. Any individual who possesses or uses hemp extract, as defined under this section, shall dispose of all residual oil from the extract at a secure collection box managed by a law enforcement agency. No criminal penalty shall attach for any violation of this subsection.

History

(2014-53, s. 3; 2015-154, ss. 1, 8; 2018-36, s. 1.)

Effect of Amendments. - Session Laws 2015-154, s. 1, effective August 1, 2015, substituted "nine-tenths of one percent (0.9%)" for "three-tenths of one percent (0.3%)" in subdivision (a)(1), and substituted "five percent (5%)" for "ten percent (10%)" in subdivision (a)(2); and rewrote subdivision (b)(3) and subsection (c). For applicability, see editor's note.

Session Laws 2018-36, s. 1, effective December 1, 2018, added subsection (d).

§ 90-95. Violations; penalties.

1. Except as authorized by this Article, it is unlawful for any person:
   1. To manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance;
   2. To create, sell or deliver, or possess with intent to sell or deliver, a counterfeit controlled substance;
   3. To possess a controlled substance.
2. Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(1) with respect to:
   1. A controlled substance classified in Schedule I or II shall be punished as a Class H felon, except as follows: (i) the sale of a controlled substance classified in Schedule I or II shall be punished as a Class G felony, and (ii) the manufacture of methamphetamine shall be punished as provided by subdivision (1a) of this subsection.
   2. The manufacture of methamphetamine shall be punished as a Class C felony unless the offense was one of the following: packaging or repackaging methamphetamine, or labeling or relabeling the methamphetamine container. The offense of packaging or repackaging methamphetamine, or labeling or relabeling the methamphetamine container shall be punished as a Class H felony.
   3. A controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class I felon, except that the sale of a controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class H felon. The transfer of less than 5 grams of marijuana for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(1).
3. Any person who violates G.S. 90-95(a)(2) shall be punished as a Class I felon.
4. Except as provided in subsections (h) and (i) of this section, any person who violates G.S. 90-95(a)(3) with respect to:
   1. A controlled substance classified in Schedule I shall be punished as a Class I felon. However, if the controlled substance is MDPV and the quantity of the MDPV is 1 gram or less, the violation shall be punishable as a Class 1 misdemeanor.
   2. A controlled substance classified in Schedule II, III, or IV shall be guilty of a Class 1 misdemeanor. If the controlled substance exceeds four tablets, capsules, or other dosage units or equivalent quantity of hydromorphone or if the quantity of the controlled substance, or combination of the controlled substances, exceeds one hundred tablets, capsules or other dosage units, or equivalent quantity, the violation shall be punishable as a Class I felony. If the controlled substance is methamphetamine, amphetamine, phencyclidine, cocaine, fentanyl, or carfentanil and any salt, isomer, salts of isomers, compound, derivative, or preparation thereof, or coca leaves and any salt, isomer, salts of isomers, compound, derivative, or preparation of coca leaves, or any salt, isomer, salts of isomers, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances (except decocanized coca leaves or any extraction of coca leaves which does not contain cocaine or ecgonine), the violation shall be punishable as a Class I felony.
   3. A controlled substance classified in Schedule V shall be guilty of a Class 2 misdemeanor;
   4. A controlled substance classified in Schedule VI shall be guilty of a Class 3 misdemeanor, but any sentence of imprisonment imposed must be suspended and the judge may not require at the time of sentencing that the defendant serve a period of imprisonment as a special condition of probation. If the quantity of the controlled substance exceeds one-half of an ounce (avoirdupois) of marijuana or one-twentieth of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, the violation shall be punishable as a Class 1 misdemeanor. If the quantity of the controlled substance exceeds one and one-half ounces (avoirdupois) of marijuana, or three-twentieths of an ounce (avoirdupois) of the extracted resin of marijuana, commonly known as hashish, or if the controlled substance consists of any quantity of synthetic tetrahydrocannabinols or tetrahydrocannabinols isolated from the resin of marijuana, the violation shall be punishable as a Class I felony.
      1. Possess an immediate precursor chemical with intent to manufacture a controlled substance; or
      2. Possess or distribute an immediate precursor chemical knowing, or having reasonable cause to believe, that the immediate precursor chemical will be used to manufacture a controlled substance; or
      3. Possess a pseudoephedrine product if the person has a prior conviction for the possession of methamphetamine, possession with the intent to sell or deliver methamphetamine, sell or deliver methamphetamine, trafficking methamphetamine, possession of an immediate precursor chemical, or manufacture of methamphetamine. The prior conviction may be from any jurisdiction within the United States.
5. (1)  Except as authorized by this Article, it is unlawful for any person to:
6. The immediate precursor chemicals to which subsection (d1) of this section applies are those immediate precursor chemicals designated by the Commission pursuant to its authority under G.S. 90-88, and the following (until otherwise specified by the Commission):
   1. Acetic anhydride.
   2. Acetone.
   3. Ammonium nitrate.
   4. Ammonium sulfate.
   5. Anhydrous ammonia.
   6. Anthranilic acid.
   7. Benzyl chloride.
   8. Benzyl cyanide.
   9. 2-Butanone (Methyl Ethyl Ketone).
   10. Chloroephedrine.
   11. Chloropseudoephedrine.
   12. D-lysergic acid.
   13. Ephedrine.
   14. Ergonovine maleate.
   15. Ergotamine tartrate.
   16. Ether based starting fluids.
   17. Ethyl ether.
   18. Ethyl Malonate.
   19. Ethylamine.
   20. Gamma-butyrolactone.
   21. Hydrochloric Acid. (Muriatic Acid).
   22. Iodine.
   23. Isosafrole.
   24. Sources of lithium metal.
   25. Malonic acid.
   26. Methylamine.
   27. Methyl Isobutyl Ketone.
   28. N-acetylanthranilic acid.
   29. N-ethylephedrine.
   30. N-ethylepseudoephedrine.
   31. N-methylephedrine.
   32. N-methylpseudoephedrine.
   33. N-phenethyl-4-piperidinone (NPP).
   34. Norpseudoephedrine.
   35. Petroleum based organic solvents such as camping fuels and lighter fluids.
   36. Phenyl-2-propanone.
   37. Phenylacetic acid.
   38. Phenylpropanolamine.
   39. Piperidine.
   40. Piperonal.
   41. Propionic anhydride.
   42. Pseudoephedrine.
   43. Pyrrolidine.
   44. Red phosphorous.
   45. Safrole.
   46. Sodium hydroxide (Lye).
   47. Sources of sodium metal.
   48. Sulfuric Acid.
   49. Tetrachloroethylene.
   50. Thionylchloride.
   51. Toluene.
7. The prescribed punishment and degree of any offense under this Article shall be subject to the following conditions, but the punishment for an offense may be increased only by the maximum authorized under any one of the applicable conditions:
   1. , (2) Repealed by Session Laws 1979, c. 760, s. 5.
8. Any person convicted of an offense or offenses under this Article who is sentenced to an active term of imprisonment that is less than the maximum active term that could have been imposed may, in addition, be sentenced to a term of special probation. Except as indicated in this subsection, the administration of special probation shall be the same as probation. The conditions of special probation shall be fixed in the same manner as probation, and the conditions may include requirements for rehabilitation treatment. Special probation shall follow the active sentence. No term of special probation shall exceed five years. Special probation may be revoked in the same manner as probation; upon revocation, the original term of imprisonment may be increased by no more than the difference between the active term of imprisonment actually served and the maximum active term that could have been imposed at trial for the offense or offenses for which the person was convicted, and the resulting term of imprisonment need not be diminished by the time spent on special probation.
9. Whenever matter is submitted to the North Carolina State Crime Laboratory, the Charlotte, North Carolina, Police Department Laboratory or to the Toxicology Laboratory, Reynolds Health Center, Winston-Salem for chemical analysis to determine if the matter is or contains a controlled substance, the report of that analysis certified to upon a form approved by the Attorney General by the person performing the analysis shall be admissible without further authentication and without the testimony of the analyst in all proceedings in the district court and superior court divisions of the General Court of Justice as evidence of the identity, nature, and quantity of the matter analyzed. Provided, however, the provisions of this subsection may be utilized by the State only if:
   1. The State notifies the defendant at least 15 business days before the proceeding at which the report would be used of its intention to introduce the report into evidence under this subsection and provides a copy of the report to the defendant, and
   2. The defendant fails to file a written objection with the court, with a copy to the State, at least five business days before the proceeding that the defendant objects to the introduction of the report into evidence.
10. Procedure for establishing chain of custody without calling unnecessary witnesses. -
    1. For the purpose of establishing the chain of physical custody or control of evidence consisting of or containing a substance tested or analyzed to determine whether it is a controlled substance, a statement signed by each successive person in the chain of custody that the person delivered it to the other person indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance in court by the person signing the statement.
    2. The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received. The statement may be placed on the same document as the report provided for in subsection (g) of this section.
    3. The provisions of this subsection may be utilized by the State only if:
       1. The State notifies the defendant at least 15 days before trial of its intention to introduce the statement into evidence under this subsection and provides the defendant with a copy of the statement, and
       2. The defendant fails to notify the State at least five days before trial that the defendant objects to the introduction of the statement into evidence.
    4. Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the statement.
11. Notwithstanding any other provision of law, the following provisions apply except as otherwise provided in this Article:
    1. Any person who sells, manufactures, delivers, transports, or possesses in excess of 10 pounds (avoirdupois) of marijuana shall be guilty of a felony which felony shall be known as "trafficking in marijuana" and if the quantity of such substance involved:
       1. Is in excess of 10 pounds, but less than 50 pounds, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 39 months in the State's prison and shall be fined not less than five thousand dollars ($5,000);
       2. Is 50 pounds or more, but less than 2,000 pounds, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000);
       3. Is 2,000 pounds or more, but less than 10,000 pounds, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
       4. Is 10,000 pounds or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000).
    2. For the purpose of this subsection, a "dosage unit" shall consist of 3 grams of synthetic cannabinoid or any mixture containing such substance. Any person who sells, manufactures, delivers, transports, or possesses in excess of 50 dosage units of a synthetic cannabinoid or any mixture containing such substance, shall be guilty of a felony, which felony shall be known as "trafficking in synthetic cannabinoids," and if the quantity of such substance involved:
       1. Is in excess of 50 dosage units, but less than 250 dosage units, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 39 months in the State's prison and shall be fined not less than five thousand dollars ($5,000);
       2. Is 250 dosage units or more, but less than 1250 dosage units, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000);
       3. Is 1250 dosage units or more, but less than 3750 dosage units, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
       4. Is 3750 dosage units or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000).
    3. Any person who sells, manufactures, delivers, transports, or possesses 1,000 tablets, capsules or other dosage units, or the equivalent quantity, or more of methaqualone, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as "trafficking in methaqualone" and if the quantity of such substance or mixture involved:
       1. Is 1,000 or more dosage units, or equivalent quantity, but less than 5,000 dosage units, or equivalent quantity, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000);
       2. Is 5,000 or more dosage units, or equivalent quantity, but less than 10,000 dosage units, or equivalent quantity, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
       3. Is 10,000 or more dosage units, or equivalent quantity, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000).
    4. Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine and any salt, isomer (whether optical or geometric), salts of isomers, compound, derivative, or preparation thereof, or any coca leaves and any salt, isomer, salts of isomers, compound, derivative, or preparation of coca leaves, and any salt, isomer, salts of isomers, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances (except decocainized coca leaves or any extraction of coca leaves which does not contain cocaine) or any mixture containing such substances, shall be guilty of a felony, which felony shall be known as "trafficking in cocaine" and if the quantity of such substance or mixture involved:
       1. Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
       2. Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000);
       3. Is 400 grams or more, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000).
    5. Repealed by Session Laws 1999-370, s. 1, effective December 1, 1999.
    6. Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of methamphetamine or any mixture containing such substance shall be guilty of a felony which felony shall be known as "trafficking in methamphetamine" and if the quantity of such substance or mixture involved:
       1. Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
       2. Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000);
       3. Is 400 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 282 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000).
    7. Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of amphetamine or any mixture containing such substance shall be guilty of a felony, which felony shall be known as "trafficking in amphetamine", and if the quantity of such substance or mixture involved:
       1. Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 39 months in the State's prison and shall be fined not less than five thousand dollars ($5,000);
       2. Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000);
       3. Is 400 grams or more, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined at least one hundred thousand dollars ($100,000).
    8. Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of any substituted cathinone, as defined in G.S. 90-89(5)(j), or any mixture containing such substance shall be guilty of a felony, which felony shall be known as "trafficking in substituted cathinones," and if the quantity of such substance or mixture involved:
       1. Is 28 grams or more, but less than 200 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
       2. Is 200 grams or more, but less than 400 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000);
       3. Is 400 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 282 months in the State's prison and shall be fined at least two hundred fifty thousand dollars ($250,000).
    9. Repealed by Session Laws 2018-44, s. 7, effective December 1, 2018.
    10. Any person who sells, manufactures, delivers, transports, or possesses four grams or more of opium, opiate, or opioid, or any salt, compound, derivative, or preparation of opium, opiate, or opioid (except apomorphine, nalbuphine, analoxone and naltrexone and their respective salts), including heroin, or any mixture containing such substance, shall be guilty of a felony which felony shall be known as "trafficking in opium, opiate, opioid, or heroin" and if the quantity of such controlled substance or mixture involved:
        1. Is four grams or more, but less than 14 grams, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
        2. Is 14 grams or more, but less than 28 grams, such person shall be punished as a Class E felon and shall be sentenced to a minimum term of 90 months and a maximum term of 120 months in the State's prison and shall be fined not less than one hundred thousand dollars ($100,000);
        3. Is 28 grams or more, such person shall be punished as a Class C felon and shall be sentenced to a minimum term of 225 months and a maximum term of 282 months in the State's prison and shall be fined not less than five hundred thousand dollars ($500,000).
    11. Any person who sells, manufactures, delivers, transports, or possesses 100 tablets, capsules, or other dosage units, or the equivalent quantity, or more, of Lysergic Acid Diethylamide, or any mixture containing such substance, shall be guilty of a felony, which felony shall be known as "trafficking in Lysergic Acid Diethylamide". If the quantity of such substance or mixture involved:
        1. Is 100 or more dosage units, or equivalent quantity, but less than 500 dosage units, or equivalent quantity, such person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000);
        2. Is 500 or more dosage units, or equivalent quantity, but less than 1,000 dosage units, or equivalent quantity, such person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
        3. Is 1,000 or more dosage units, or equivalent quantity, such person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred thousand dollars ($200,000).
    12. Any person who sells, manufactures, delivers, transports, or possesses 100 or more tablets, capsules, or other dosage units, or 28 grams or more of 3,4-methylenedioxyamphetamine (MDA), including its salts, isomers, and salts of isomers, or 3,4-methylenedioxymethamphetamine (MDMA), including its salts, isomers, and salts of isomers, or any mixture containing such substances, shall be guilty of a felony, which felony shall be known as "trafficking in MDA/MDMA." If the quantity of the substance or mixture involved:
        1. Is 100 or more tablets, capsules, or other dosage units, but less than 500 tablets, capsules, or other dosage units, or 28 grams or more, but less than 200 grams, the person shall be punished as a Class G felon and shall be sentenced to a minimum term of 35 months and a maximum term of 51 months in the State's prison and shall be fined not less than twenty-five thousand dollars ($25,000);
        2. Is 500 or more tablets, capsules, or other dosage units, but less than 1,000 tablets, capsules, or other dosage units, or 200 grams or more, but less than 400 grams, the person shall be punished as a Class F felon and shall be sentenced to a minimum term of 70 months and a maximum term of 93 months in the State's prison and shall be fined not less than fifty thousand dollars ($50,000);
        3. Is 1,000 or more tablets, capsules, or other dosage units, or 400 grams or more, the person shall be punished as a Class D felon and shall be sentenced to a minimum term of 175 months and a maximum term of 222 months in the State's prison and shall be fined not less than two hundred fifty thousand dollars ($250,000).
    13. Except as provided in this subdivision or subdivision (5a) of this subsection, a person being sentenced under this subsection may not receive a suspended sentence or be placed on probation. The sentencing judge may reduce the fine, or impose a prison term less than the applicable minimum prison term provided by this subsection, or suspend the prison term imposed and place a person on probation when such person has, to the best of the person's knowledge, provided substantial assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals if the sentencing judge enters in the record a finding that the person to be sentenced has rendered such substantial assistance.
    14. A judge sentencing a person for a conviction pursuant to G.S. 90-95(h) or G.S. 90-95(i) for conspiracy to commit a violation of G.S. 90-95(h) shall impose the applicable minimum prison term provided by this subsection. The sentencing judge may reduce the fine and sentence the person consistent with the applicable offense classification and prior record level provided in G.S. 15A-1340.17, if after a hearing and an opportunity for the district attorney to present evidence, including evidence from the investigating law enforcement officer, other law enforcement officers, or witnesses with knowledge of the defendant's conduct at any time prior to sentencing, the judge enters into the record specific findings that all of the following are met:
        1. The defendant has accepted responsibility for the defendant's criminal conduct.
        2. The defendant has not previously been convicted of a felony under G.S. 90-95.
        3. The defendant did not use violence or a credible threat of violence, or possess a firearm or other dangerous weapon, in the commission of the offense for which the defendant is being sentenced.
        4. The defendant did not use violence or a credible threat of violence, or possess a firearm or other dangerous weapon, in the commission of any other violation of law.
        5. The defendant has admitted that he or she has a substance abuse disorder involving a controlled substance and has successfully completed a treatment program approved by the Court to address the substance abuse disorder.
        6. Imposition of the mandatory minimum prison term would result in substantial injustice.
        7. Imposition of the mandatory minimum prison sentence is not necessary for the protection of the public.
        8. The defendant is being sentenced solely for trafficking, or conspiracy to commit trafficking, as a result of possession of a controlled substance.
        9. There is no substantial evidence that the defendant has ever engaged in the transport for purpose of sale, sale, manufacture, or delivery of a controlled substance or the intent to transport for purpose of sale, sell, manufacture, or deliver a controlled substance.
        10. The defendant, to the best of his or her knowledge, has provided all reasonable assistance in the identification, arrest, or conviction of any accomplices, accessories, co-conspirators, or principals.
        11. The defendant is being sentenced for trafficking, or conspiracy to commit trafficking, for possession of an amount of a controlled substance that is not of a quantity greater than the lowest category for which a defendant may be convicted for trafficking of that controlled substance under G.S. 90-95(h).
    15. Sentences imposed pursuant to this subsection shall run consecutively with and shall commence at the expiration of any sentence being served by the person sentenced hereunder.
12. The penalties provided in subsection (h) of this section shall also apply to any person who is convicted of conspiracy to commit any of the offenses described in subsection (h) of this section.
13. Beginning December 1, 2021, and annually thereafter, the Administrative Office of the Courts shall publish on its Web site a report on the number of sentences modified under G.S. 90-95(h)(5a) in the prior calendar year.

Except where the conduct is covered under subdivision (2) of this subsection, any person who violates this subdivision shall be punished as a Class H felon.

(2) Except as authorized by this Article, it is unlawful for any person to:

a. Possess an immediate precursor chemical with intent to manufacture methamphetamine; or

b. Possess or distribute an immediate precursor chemical knowing, or having reasonable cause to believe, that the immediate precursor chemical will be used to manufacture methamphetamine.

Any person who violates this subdivision shall be punished as a Class F felon.

(3) If any person commits a Class 1 misdemeanor under this Article and if he has previously been convicted for one or more offenses under any law of North Carolina or any law of the United States or any other state, which offenses are punishable under any provision of this Article, he shall be punished as a Class I felon. The prior conviction used to raise the current offense to a Class I felony shall not be used to calculate the prior record level.

(4) If any person commits a Class 2 misdemeanor, and if he has previously been convicted for one or more offenses under any law of North Carolina or any law of the United States or any other state, which offenses are punishable under any provision of this Article, he shall be guilty of a Class 1 misdemeanor. The prior conviction used to raise the current offense to a Class 1 misdemeanor shall not be used to calculate the prior conviction level.

(5) Any person 18 years of age or over who violates G.S. 90-95(a)(1) by selling or delivering a controlled substance to a person under 16 years of age but more than 13 years of age or a pregnant female shall be punished as a Class D felon. Any person 18 years of age or over who violates G.S. 90-95(a)(1) by selling or delivering a controlled substance to a person who is 13 years of age or younger shall be punished as a Class C felon. Mistake of age is not a defense to a prosecution under this section. It shall not be a defense that the defendant did not know that the recipient was pregnant.

(6) For the purpose of increasing punishment under G.S. 90-95(e)(3) and (e)(4), previous convictions for offenses shall be counted by the number of separate trials at which final convictions were obtained and not by the number of charges at a single trial.

(7) If any person commits an offense under this Article for which the prescribed punishment requires that any sentence of imprisonment be suspended, and if he has previously been convicted for one or more offenses under any law of North Carolina or any law of the United States or any other state, which offenses are punishable under any provision of this Article, he shall be guilty of a Class 2 misdemeanor.

(8) Any person 21 years of age or older who commits an offense under G.S. 90-95(a)(1) on property used for a child care center, or for an elementary or secondary school or within 1,000 feet of the boundary of real property used for a child care center, or for an elementary or secondary school shall be punished as a Class E felon. For purposes of this subdivision, the transfer of less than five grams of marijuana for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(1). For purposes of this subdivision, a child care center is as defined in G.S. 110-86(3)a., and that is licensed by the Secretary of the Department of Health and Human Services.

(9) Any person who violates G.S. 90-95(a)(3) on the premises of a penal institution or local confinement facility shall be guilty of a Class H felony.

(10) Any person 21 years of age or older who commits an offense under G.S. 90-95(a)(1) on property that is a public park or within 1,000 feet of the boundary of real property that is a public park shall be punished as a Class E felon. For purposes of this subdivision, the transfer of less than five grams of marijuana for no remuneration shall not constitute a delivery in violation of G.S. 90-95(a)(1).

If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file a written objection as provided in this subsection, then the objection shall be deemed waived and the report shall be admitted into evidence without the testimony of the analyst. Upon filing a timely objection, the admissibility of the report shall be determined and governed by the appropriate rules of evidence.

Nothing in this subsection precludes the right of any party to call any witness or to introduce any evidence supporting or contradicting the evidence contained in the report.

If the defendant's attorney of record, or the defendant if that person has no attorney, fails to file a written objection as provided in this subsection, then the objection shall be deemed waived and the statement shall be admitted into evidence without the necessity of a personal appearance by the person signing the statement. Upon filing a timely objection, the admissibility of the report shall be determined and governed by the appropriate rules of evidence.

History

(1971, c. 919, s. 1; 1973, c. 654, s. 1; c. 1078; c. 1358, s. 10; 1975, c. 360, s. 2; 1977, c. 862, ss. 1, 2; 1979, c. 760, s. 5; 1979, 2nd Sess., c. 1251, ss. 4-7; 1983, c. 18; c. 294, s. 6; c. 414; 1985, c. 569, s. 1; c. 675, ss. 1, 2; 1987, c. 90; c. 105, ss. 4, 5; c. 640, ss. 1, 2; c. 783, s. 4; 1989, c. 641; c. 672; c. 690; c. 770, s. 68; 1989 (Reg. Sess., 1990), c. 1024, s. 17; c. 1039, s. 5; c. 1081, s. 2; 1991, c. 484, s. 1; 1993, c. 538, s. 30; c. 539, s. 1358.1; 1994, Ex. Sess., c. 11, s. 1; c. 14, ss. 46, 47; c. 24, s. 14(b); 1996, 2nd Ex. Sess., c. 18, s. 20.13(c); 1997-304, ss. 1, 2; 1997-443, s. 19.25(b), (u), (ii); 1998-212, s. 17.16(e); 1999-165, s. 4; 1999-370, s. 1; 2000-140, s. 92.2(d); 2001-307, s. 1; 2001-332, s. 1; 2004-178, ss. 3, 4, 5, 6; 2007-375, s. 1; 2009-463, ss. 1, 2; 2009-473, s. 7; 2011-12, ss. 2-4, 6-8; 2011-19, s. 5; 2012-188, s. 5; 2013-124, s. 1; 2013-171, ss. 7, 8; 2014-115, s. 41(a); 2015-32, s. 1; 2015-173, s. 4; 2017-115, s. 11; 2018-44, ss. 5-7; 2020-47, ss. 2(a), 3; 2021-155, ss. 7, 8.)

Cross References. - As to furnishing controlled substances to inmates of charitable, mental or penal institutions, see G.S. 14-258.1.

As to exemption from penalties in Chapter 90 for use or possession of hemp extract for the treatment of intractable epilepsy, see G.S. 90- 94.1.

Task Force on Sentencing Reforms for Opioid Drug Convictions. - Session Laws 2017-115, s. 10(a)-(g), provides: "(a) Creation. - There is established the Task Force on Sentencing Reforms for Opioid Drug Convictions. The Task Force shall have 22 members. The Attorney General, Secretary of Health and Human Services, Secretary of Public Safety, Chief Deputy Secretary of Adult Correction and Juvenile Justice, Director of the Administrative Office of the Courts, and Executive Director of the North Carolina Sentencing and Advisory Commission or their designees shall be ex officio members of the Task Force and shall serve with the same rights and privileges, including voting rights, as other members. Appointments to the Task Force shall be made as follows:

"(1) The Speaker of the House of Representatives shall appoint the following members:

"a. Two members of the House of Representatives.

"b. A sitting or former superior court judge of the General Court of Justice.

"c. A sitting or former district court judge of the General Court of Justice.

"d. A person who is a substance abuse treatment and recovery professional.

"e. A representative from the North Carolina Conference of District Attorneys.

"f. A person who is a criminal defense attorney.

"g. One member at large.

"(2) The President Pro Tempore of the Senate shall appoint the following members:

"a. Two members of the Senate.

"b. A sitting or former superior court judge of the General Court of Justice.

"c. A sitting or former district court judge of the General Court of Justice.

"d. A person who is a substance abuse and recovery professional.

"e. A representative from the North Carolina of District Attorneys.

"f. A person who is a criminal defense attorney.

"g. One member at large.

"(b) Study. - The purpose of the Task Force shall be to study and review cases of inmates who are incarcerated solely for convictions of opioid drug offenses that require active sentences under structured sentencing; to consider how to identify inmates who would be able to successfully reintegrate into society; and to develop and consider options for modifying existing statutes. Specifically, the Task Force shall do all of the following:

"(1) Study the advisability of reducing sentences imposed under structured sentencing for opioid drug convictions based on the case facts and records of incarcerated inmates.

"(2) Study the potential cost-savings and fiscal impact of an early release process for inmates convicted of opioid drug offenses.

"(3) Identify and consider sentencing options that will help restore the ability of judges to use judgment, logic, and facts when imposing a sentence for a conviction of an opioid drug offense.

"(4) Consider whether the mandatory sentences imposed under structured sentencing for convictions of opioid drug offenses serve as a deterrent.

"(5) Consider options such as reclassifying opioid drug offenses, allowing courts to divert convicted offenders into treatment programs in lieu of imposing a sentence of active time in prison, increasing weight thresholds for trafficking in opioids or changing how quantities are measured, aligning minimum mandatory sentence lengths with those for most other drug offenses.

"(6) Consider establishing a "pardon and parole board" that may recommend pardons and paroles for inmates convicted of opioid drug offenses.

"(7) Consider any other options the Task Force deems relevant to this study.

"(c) Cochairs; Quorum; Vacancies. - The Speaker of the House of Representatives shall designate one representative to serve as cochair, and the President Pro Tempore of the Senate shall designate one senator to serve as cochair. A majority of the Task Force shall constitute a quorum for the transaction of its business. A vacancy on the Task Force shall be filled by the original appointing authority using the criteria set out in this act for the original appointment.

"(d) Per Diem, Travel, and Expenses. - Members of the Task Force shall receive per diem and necessary travel and subsistence expenses in accordance with G.S. 120-3.1, 138-5, and 138-6, as applicable.

"(e) Powers. - The Task Force, while in the discharge of its official duties, may exercise all powers provided for under G.S. 120-19 and G.S. 120-19.1 through G.S. 120-19.4. The Task Force may meet at any time upon the call of the chair. The Committee may meet in the Legislative Building or in the Legislative Office Building.

"(f) Staffing. - The Legislative Services Commission, through the Legislative Services Officer, shall assign professional staff to assist the Task Force in its work. The Directors of Legislative Assistants of the Senate and of the House of Representatives shall assign clerical staff to the Task Force and the expenses relating to the clerical employees shall be borne by the Task Force.

"(g) Report. - The Task Force shall submit an interim report to the 2017 General Assembly when it reconvenes in 2018. The Task Force shall submit a final report, including findings and legislative recommendations, to the 2019 General Assembly. The Task Force shall terminate upon filing its final report."

Editor's Note. - G.S. 90-95(d1)(2) was recodified as G.S. 90-95(d1)(1)b. at the direction of the Revisor of Statutes. G.S. 90-95(d1a) was recodified as G.S. 90-95(d1)(2) at the direction of the Revisor of Statutes.

Session Laws 2017-115, s. 1, provides: "This act shall be known and may be cited as the 'Synthetic Opioid and Other Dangerous Drug Control Act.'"

Session Laws 2017-115, s. 12, made the amendments to subdivisions (b)(2) and (d)(4) by Session Laws 2017-115, s. 11, effective December 1, 2017, and applicable to offenses committed on or after that date.

Session Laws 2018-44, s. 1, provides: "This act shall be known and may be cited as "The Heroin and Opioid Prevention and Enforcement (HOPE) Act of 2018."

Session Laws 2018-44, s. 16, is a severability clause.

At the direction of the Revisor of Statutes, a colon was substituted for the period at the end of the introductory language of subsection (h).

Session Laws 2020-47, s. 1, provides: "This act shall be known and may be cited as 'The North Carolina First Step Act.'"

Session Laws 2020-47, s. 2(b), made the amendment of subsection (h) of this section by Session Laws 2020-47, s. 2(a), effective December 1, 2020, and applicable to sentences ordered on or after that date.

Session Laws 2020-47, s. 4(a), (b), provides: "(a) Except as otherwise provided in this section, a person serving an active sentence imposed solely for a violation of G.S. 90-95(h), or conspiracy to commit a violation under G.S. 90-95(i), committed before the effective date of this section may file a motion for appropriate relief in accordance with Article 89 of Chapter 15A of the General Statutes for a modification of the person's sentence under the authority granted in G.S. 90-95(h)(5a), as enacted in Section 2 of this act. A person sentenced under G.S. 90-95(h)(5) is ineligible to file a motion for appropriate relief for a sentence modification under this section. The court shall require the State to respond to a motion for appropriate relief filed pursuant to this section within 60 days of the date of the filing and shall hold any hearing deemed necessary by the court within 180 days of the date of the filing. Notwithstanding any provision of Article 89 of Chapter 15A of the General Statutes to the contrary, a motion for appropriate relief filed pursuant to this section may only be granted if the following conditions are met:

"(1) The motion for appropriate relief is filed within 36 months of the effective date of this act.

"(2) The person seeking a sentence modification has no other felony convictions under G.S. 90-95.

"(3) The person was convicted solely for trafficking, or conspiracy to commit trafficking, as a result of possession of a controlled substance.

"(4) The person seeking a sentence modification was sentenced for trafficking, or conspiracy to commit trafficking, of a controlled substance that was not of a quantity greater than the lowest category for which a defendant may be convicted for trafficking of that controlled substance under G.S. 90-95(h).

"If subdivisions (1), (2), (3), and (4) of this section are met, the court shall order that the person be resentenced in accordance with G.S. 90-95(h)(5a).

"(b) This section becomes effective December 1, 2020, and applies to sentences ordered on or before November 30, 2020."

Session Laws 2021-155, s. 9, made subdivisions (d)(2) and (h)(3) of this section, as amended by Session Laws 2021-155, ss. 7 and 8, effective December 1, 2021, and applicable to offenses committed on or after that date.

Effect of Amendments. - Session Laws 2007-375, s. 1, effective December 1, 2007, and applicable to offenses committed on or after that date, substituted "1,000 feet" for "300 feet" in subdivision (e)(8) and (10); in subdivision (e)(10), deleted "playground in a" preceding "public park" twice in the first sentence and deleted the former last sentence which defined "playground."

Session Laws 2011-12, ss. 2 through 4 and 6 through 8, effective June 1, 2011, and applicable to offenses committed on or after that date, added the last sentence in subdivision (d)(1); added subdivisions (h)(3d) and (h)(3e); in subdivision (b)(2), inserted "or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such substance"; in subdivision (d)(4), inserted "7 grams of a synthetic cannabinoid or any mixture containing such substance" in the second sentence, and "21 grams of a synthetic cannabinoid or any mixture containing such substance" in the last sentence; and added subdivision (h)(1a).

Session Laws 2011-19, s. 5, effective March 31, 2011, substituted "Crime Laboratory" for "Bureau of Investigation Laboratory" in subsection (g).

Session Laws 2012-188, s. 5, effective December 1, 2012, throughout subsection (h), substituted "39 months" for "30 months," "51 months" for "42 months," "93 months" for "84 months," "222 months" for "219 months," "120 months" for "117 months," and "282 months" for "279 months." For applicability, see Editor's note.

Session Laws 2013-124, s. 1, effective December 1, 2013, added sub-subdivision (d1)(1)c. For applicability, see Editor's note.

Session Laws 2013-171, ss. 7 and 8, effective December 1, 2013, substituted "shall" for "may" preceding "be admitted into evidence" in the first sentence of the second full paragraph of subsection (g); and added the last two sentences in subdivision (g1)(3). For applicability, see Editor's note.

Session Laws 2014-115, s. 41(a), in subdivision (d1)(1), made a minor stylistic change in subdivision (d1)(1)c.; and rewrote the undesignated paragraph. See Editor's note for effective date and applicability.

Session Laws 2015-32, s. 1, effective December 1, 2015, in sub-subdivision (d1)(1)c, inserted "of methamphetamine, possession with the intent to sell or deliver methamphetamine, sell or deliver methamphetamine, trafficking methamphetamine, possession of an immediate precursor chemical" in the first sentence, and added the second sentence; and in subsection (d2), deleted "and (d1a)" following "subsection (d1)" in the introductory paragraph, added subdivisions (2a), (2b), (13a), (30a) and (40a), added "(Muriatic Acid)" at the end of subdivision (18), substituted "Sources of lithium metal" for "Lithium" in subdivision (21), and substituted "Sources of sodium metal" for "Sodium" in subdivision (41). For applicability, see editor's note.

Session Laws 2015-173, s. 4, effective July 31, 2015, inserted "the objection shall be deemed waived and" in the next-to-last sentence of subsection (g) and the next-to-last sentence of subdivision (g1)(3). For applicability, see editor's note.

Session Laws 2017-115, s. 11, deleted "or less than 2.5 grams of a synthetic cannabinoid or any mixture containing such substance" following "5 grams of marijuana" in subdivision (b)(2); in subdivision (d)(4), deleted "7 grams of a synthetic cannabinoid or any mixture containing such substance," following "(avoirdupois) of marijuana" in the second sentence and deleted "21 grams of a synthetic cannabinoid or any mixture containing such substance," following "(avoirdupois) of marijuana" in the third sentence. For effective date and applicability, see editor's note.

Session Laws 2018-44, ss. 5-7, effective December 1, 2018, in subsection (d2), added subdivision (29a), and substituted "Phenyl-2-propanone" for "Phenyl-2-propane" in subdivision (31); in subdivision (h)(3d), substituted "more of any substituted cathinone, as defined in G.S. 90-89(5)(j)," for "more of MDPV", and " 'trafficking in substituted cathinones,' " for " 'trafficking in MDPV,' "; deleted subdivision (h)(3e); in subdivision (h)(4), substituted "opium, opiate, or opioid," for "opium or opiate", and "opium, opiate, opioid, or heroin" for "opium or heroin"; and substituted " 'trafficking in MDA/MDMA' " for " 'trafficking in MDADMA' " in subdivision (h)(4b).

Session Laws 2020-47, s. 2(a), added "or subdivision (5a) of this subsection" in the first sentence of subdivision (h)(5); and added subdivision (h)(5a); and made a minor stylistic change. For effective date and applicability, see editor's note.

Session Laws 2020-47, s. 3, effective June 26, 2020, added subsection (j).

Session Laws 2021-155, ss. 7 and 8, substituted "cocaine, fentanyl, or carfentanil" for "or cocaine" in subdivision (d)(2); and substituted "isomer (whether optical or geometric)" for "isomer" in subdivision (h)(3) in the introductory language. For effective date and applicability, see editor's note.

Legal Periodicals. - For note on punishment of physicians under the Controlled Substances Act, see 56 N.C.L. Rev. 154 (1978).

For survey of 1979 criminal law, see 58 N.C.L. Rev. 1350 (1980).

For survey of 1982 criminal law, see 61 N.C.L. Rev. 1060 (1983).

For note, "My Own (Not So) Private Garbage: the North Carolina Supreme Court Gives the Green Light to Warrantless Police Searches of Trash Placed Behind Your House in State v. Hauser," see 31 Wake Forest L. Rev. 1141 (1996).

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

For article, "Legislative Survey: Criminal Law," see 22 Campbell L. Rev. 253 (2000).

For article, "Another 'Straightforward Application': The Impact of Melendez-Diaz on Forensic Testing and Expert Testimony in Controlled Substance Cases," see 33 Campbell L. Rev. 1 (2010).

For comment, "One Tough Pill to Swallow: A Call to Revise North Carolina's Drug Trafficking Laws Concerning Prescription Painkillers," see 33 Campbell L. Rev. 451 (2011).

For article, "Handling Aggravating Facts After Blakely: Findings from Five Presumptive-Guidelines States," see 99 N.C.L. Rev. 1241 (2021).