GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 1999
SESSION LAW 1999-113
The General Assembly of North Carolina enacts:
Section 1. G.S. 131D-2(b)(1) reads as rewritten:
"(b) Licensure; inspections. -
(1) The Department of
Health and Human Services shall inspect and license, under rules adopted by the
Social Services Commission, all adult care homes for persons who are aged or
mentally or physically disabled except those exempt in subsection (c) of this
section. Licenses issued under the authority of this section shall be valid for
one year from the date of issuance unless revoked earlier by the Secretary of
Health and Human Services for failure to comply with any part of this section
or any rules adopted hereunder. No new license shall be issued for any
domiciliary home whose administrator was the administrator for any domiciliary
home [adult care home] that had its license revoked until one full year after
the date of revocation. Licenses shall be renewed annually upon
filing and the Department's approval of the renewal application. A license
shall not be renewed if outstanding fines and penalties imposed by the State
against the home have not been paid. Fines and penalties for which an appeal is
pending are exempt from consideration. The renewal application shall contain
all necessary and reasonable information that the Department may by rule
require. The Department may amend a license by reducing it from a full license
to a provisional license whenever the Department finds that:
a. The licensee has substantially failed to comply with the provisions of Articles 1 and 3 of Chapter 131D of the General Statutes and the rules adopted pursuant to these Articles;
b. There is a reasonable probability that the licensee can remedy the licensure deficiencies within a reasonable length of time; and
c. There is a reasonable probability that the licensee will be able thereafter to remain in compliance with the licensure rules for the foreseeable future.
The Department may revoke a license whenever:
a. The Department finds that:
1. The licensee has substantially failed to comply with the provisions of Articles 1 and 3 of Chapter 131D of the General Statutes and the rules adopted pursuant to these Articles; and
2. It is not reasonably probable that the licensee can remedy the licensure deficiencies within a reasonable length of time; or
b. The Department finds that:
1. The licensee has substantially failed to comply with the provisions of Articles 1 and 3 of Chapter 131D of the General Statutes and the rules adopted pursuant to these Articles; and
2. Although the licensee may be able to remedy the deficiencies within a reasonable time, it is not reasonably probable that the licensee will be able to remain in compliance with licensure rules for the foreseeable future; or
c. The Department finds that the licensee has failed to comply with the provisions of Articles 1 and 3 of Chapter 131D of the General Statutes and the rules adopted pursuant to these Articles, and the failure to comply endangered the health, safety, or welfare of the patients in the facility.
The Department may also issue a provisional license to a facility, pursuant to rules adopted by the Social Services Commission, for substantial failure to comply with the provisions of this section or rules promulgated pursuant to this section. Any facility wishing to contest the issuance of a provisional license shall be entitled to an administrative hearing as provided in the Administrative Procedure Act, Chapter 150B of the General Statutes. A petition for a contested case shall be filed within 30 days after the Department mails written notice of the issuance of the provisional license."
Section 2. G.S. 131D-2(b) is amended by adding the following subdivision to read:
"(1b) No new license shall be issued for any adult care home to an applicant for licensure who:
a. Was the owner, principal, or affiliate of an adult care home that had its license revoked until one full year after the date of revocation;
b. Is the owner, principal, or affiliate of an adult care home that was assessed a penalty for a Type A or Type B violation until the earlier of one year from the date the penalty was assessed or until the home has substantially complied with the correction plan established pursuant to G.S. 131D-34 and substantial compliance has been certified by the Department; or
c. Is the owner, principal, or affiliate of an adult care home that had its license summarily suspended or downgraded to provisional status as a result of Type A or B violations until six months from the date of reinstatement of the license, restoration from provisional to full licensure, or termination of the provisional license, as applicable.
An applicant for new licensure may appeal a denial of certification of substantial compliance under subparagraph b. of this subdivision by filing with the Department a request for review by the Secretary within 10 days of the date of denial of the certification. Within 10 days of receipt of the request for review the Secretary shall issue to the applicant a written determination that either denies certification of substantial compliance or certifies substantial compliance. The decision of the Secretary is final."
Section 3. G.S. 131E-124(c) reads as rewritten:
"(c) The Department shall maintain the confidentiality of all persons who register complaints with the Department and of all medical records inspected by the Department. A person who has filed a complaint shall have access to information about a complaint investigation involving a specific resident if written authorization is obtained from the resident, legal representative, or responsible party. The designation of the responsible party shall be maintained by the nursing facility in the resident's medical record."
Section 4. G.S. 131E-141(b) reads as rewritten:
"(b) Notwithstanding the
provisions of G.S. 8-53, "Communications between physician and
patient," or any other provision of law relating to the confidentiality of
communications between physician and patient, the representatives of the
Department who make these inspections may review any writing or other record in
any recording medium which pertains to the admission, discharge, medication,
treatment, medical condition, or history of persons who are or have been
clients of the agency being inspected unless that client objects in writing to
review of that client's records. Physicians, psychiatrists, nurses, and
anyone else involved in giving treatment at or through an agency who may be
interviewed by representatives of the Department may disclose to these
representatives information related to any inquiry, notwithstanding the
existence of the physician-patient privilege in G.S. 8-53, "Communication
between physician and patient," or any other rule of law; provided the
client has not made written objection to this disclosure. The agency, its
employees, and any person interviewed during these inspections shall be immune
from liability for damages resulting from the disclosure of any information to
the Department. Any confidential or privileged information received from
review of records or interviews interviews, except as noted in G.S.
131E-124(c), shall be kept confidential by the Department and not disclosed
without written authorization of the client or legal representative, or unless
disclosure is ordered by a court of competent jurisdiction. The
Department shall institute appropriate policies and procedures to ensure that
this information shall not be disclosed without authorization or court
order. The Department shall not disclose the name of anyone who has
furnished information concerning an agency without the consent of that
person. Neither the names of persons furnishing information nor any confidential
or privileged information obtained from records or interviews shall be
considered "public records" within the meaning of G.S. 132-1,
"'Public records' defined.'" Prior to releasing any information
or allowing any inspections referred to in this section, the client must be
advised in writing by the licensed agency that the client has the right to
object in writing to release of information or review of the client's records
and that by an objection in writing the client may prohibit the inspection or
release of the records."
Section 5. This act is effective when it becomes law. Sections 1 and 2 of this act apply to license applications filed on or after the effective date of this act. The Social Services Commission and the Secretary of Health and Human Services may adopt temporary rules pursuant to Chapter 150B of the General Statutes to implement Sections 1 and 2 of this act.
In the General Assembly read three times and ratified this the 19th day of May, 1999.
s/ Dennis A. Wicker
President of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ James B. Hunt, Jr.
Governor
Approved 3:07 p.m. this 28th day of May, 1999