GENERAL ASSEMBLY OF NORTH CAROLINA
1991 SESSION

CHAPTER 59
HOUSE BILL 168

AN ACT TO AMEND THE HOME HEALTH AGENCY LICENSURE ACT.

The General Assembly of North Carolina enacts:

Section 1.  Chapter 131E of the General Statutes reads as rewritten:
"Part C.  Home Care Agency Licensure Act.
"§ 131E-135. Title; purpose.
(a)	This Part shall be known as 'Home Care Agency Licensure Act'.
(b)	The purpose of this Part is to establish licensing requirements for home care agencies.
"§ 131E-136. Definitions.
As used in this Part, unless otherwise specified:
(1)	'Commission' means the North Carolina Medical Care Commission.
(2)	'Home care agency' means a private or public organization which provides home care services.
(3)	'Home care services' means any of the following services and directly related medical supplies and appliances, which are provided to an individual in a place of temporary or permanent residence used as an individual's home:
a.	Nursing care provided by or under the supervision of a registered nurse;
b.	Physical, occupational, or speech therapy, when provided to an individual who also is receiving nursing services, or any other of these therapy services, in a place of temporary or permanent residence used as the individual's home;
c.	Medical social services;
d.	In-home aide services that involve hands-on care to an individual;
e.	Infusion nursing services; and
f.	Assistance with pulmonary care, pulmonary rehabilitation or ventilation.
	The term does not include:  health promotion, preventative health and community health services provided by public health departments; maternal and child health services provided by public health departments, by employees of the Department of Environment, Health, and Natural Resources under G.S. 130A-124, or by developmental evaluation centers under contract with the Department of Environment, Health, and Natural Resources to provide services under G.S. 130A-124; hospitals licensed under Article 5 of Chapter 131E of the General Statutes when providing follow-up care initiated to patients within six months after their discharge from the hospital; facilities and programs operated under the authority of G.S. 122C and providing services within the scope of G.S. 122C; schools, when providing services pursuant to Article 9 of Chapter 115C; the practice of midwifery by a person licensed under Article 10A of Chapter 90 of the General Statutes; hospices licensed under Article 10 of Chapter 131E of the General Statutes when providing care to a hospice patient; an individual who engages solely in providing his own services to other individuals; incidental health care provided by an employee of a physician licensed to practice medicine in North Carolina in the normal course of the physician's practice; or nursing registries if the registry discloses to a client or the client's responsible party, before providing any services, that (i) it is not a licensed home care agency, and (ii) it does not make any representations or guarantees concerning the training, supervision, or competence of the personnel provided.
(4)	'Home health agency' means a home care agency which is certified to receive Medicare and Medicaid reimbursement for providing nursing care, therapy, medical social services, and home health aide services on a part-time, intermittent basis as set out in G.S. 131E-176(12), and is thereby also subject to Article 9 of Chapter 131E.
"§ 131E-137. Services to be provided in all counties.
(a)	Every county shall provide part-time, intermittent home care nursing services, and at least one of the following home care services:  part-time, intermittent physical therapy, occupational therapy, speech therapy, medical social work, or home health aide services.
	(c)	These services shall be provided by a home care agency licensed under this Part.  The county may provide these services by contract with another home care agency in another county.
(d)	Repealed by Session Laws 1985, c. 8, s. 1, effective July 1, 1985.
"§ 131E-138. Licensure requirements.
(a)	No person or governmental unit shall operate a home care agency without a license obtained from the Department.  Nothing in this Part shall be construed to extend or modify the licensing of individual health professionals by the licensing boards for their professions or to create any new professional license category.
	(c)	An application for a license shall be available from the Department, and each application filed with the Department shall contain all information requested by the Department. A license shall be granted to the applicant upon a determination by the Department that the applicant has complied with the provisions of this Part and the rules promulgated by the Commission under this Part.
(d)	The Department shall renew the license in accordance with the rules of the Commission.
(e)	Each license shall be issued only for the premises and persons named in the license and shall not be transferable or assignable except with the written approval of the Department.
(f)	The license shall be posted in a conspicuous place on the licensed premises.
(g)	The Commission shall adopt rules to ensure that a home care agency shall be deemed to meet the licensure requirements and issued a license without further review or inspection if:  (i) the agency is already certified or accredited by the Joint Commission on Accreditation of Health Care Organizations, National League for Nursing, National Home Caring Council, North Carolina Accreditation Commission for In-Home Aide Services, or other entities recognized by the Commission and (ii) the agency is certified or accredited for all of the home care services that it provides; or (iii) in the case of continuing care retirement communities licensed by the North Carolina Department of Insurance under Article 64 of Chapter 58 which also have nursing beds licensed by the Department of Human Resources under Article 6 of Chapter 131E, the Department certifies, as part of its licensure review or survey of the nursing beds, that the facility also meets all of the rules and regulations adopted by the Commission pursuant to this Part.  The Department may, at its discretion, determine the frequency and extent of the review and inspection of home health agencies already certified as meeting federal requirements, but not more frequently than on an annual basis for routine reviews.
"§ 131E-139. Adverse action on a license.
(a)	The Department may suspend, revoke, annul, withdraw, recall, cancel or amend a license when there has been a substantial failure to comply with the provisions of this Part or the rules promulgated under this Part.
(b)	The provisions of Chapter 150B of the General Statutes, The Administrative Procedure Act, shall govern all administrative action and judicial review in cases where the Department has taken the action described in subsection (a).
"§ 131E-140. Rules and enforcement.
(a)	The Commission is authorized to adopt, amend and repeal all rules necessary for the implementation of this Part.  Provided, these rules shall not extend, modify, or limit the licensing of individual health professionals by their respective licensing boards; nor shall these rules in any way be construed to extend the appropriate scope of practice of any individual health care provider.
(a1)	The Commission shall adopt rules that recognize the different types of home care services and shall adopt specific requirements for the provision of each type of home care service.
(b)	The Department shall enforce the rules adopted or amended by the Commission with respect to home care agencies.
"§ 131E-141. Inspection.
(a)	The Department shall inspect home care agencies in accordance with rules adopted by the Commission to determine compliance with the provisions of this Part and the rules established by the Commission.
(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 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.
"§ 131E-141.1.  Penalties for violation.
Any person who knowingly and willfully establishes, conducts, manages or operates any home care agency without a license is guilty of a misdemeanor and upon conviction is liable for a fine of not more than five hundred dollars ($500.00) for the first offense and not more than five hundred dollars ($500.00) for each subsequent offense.
"§ 131E-142. Injunction.
(a)	Notwithstanding the existence or pursuit of any other remedy, the Department shall, in the manner provided by law, maintain an action in the name of the State for injunction or other process against any person or governmental unit to restrain or prevent the establishment, conduct, management or operation of a home care agency without a license.
(b)	If any person shall hinder the proper performance of duty of the Secretary or a representative in carrying out the provisions of this Part, the Secretary may institute an action in the superior court of the county in which the hindrance occurred for injunctive relief against the continued hindrance irrespective of all other remedies at law.
(c)	Actions under this section shall be in accordance with Article 37 of Chapter 1 of the General Statutes and Rule 65 of the Rules of Civil Procedure."
Sec. 2.  The Commission shall adopt rules necessary to regulate home care services provided by a hospital.  Such rules shall be comparable, but not necessarily identical to the Commission's rules for home care agencies and becomes effective July 1, 1992.
Sec. 3.  This act becomes effective July 1, 1992.  The Commission shall upon ratification develop rules to implement this act; provided that these rules shall become effective July 1, 1992.  During the development of the Commission's rules, the Department shall study whether any additional appropriations will be necessary to implement this act; and shall report the results of its study to the beginning of the 1992 Session of the General Assembly.
In the General Assembly read three times and ratified this the 29th day of April, 1991.

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James C. Gardner
President of the Senate

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Daniel Blue, Jr.
Speaker of the House of Representatives