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NC Providers Council Legislative & Policy Initiatives

2023 LEGISLATIVE PRIORITIES

Working in tandem with the Providers Council Board and standing Committees comprised of Provider and Provider Support members, the lobbyists are ensuring that the Providers Council’s legislative priorities are communicated to key Committee Chairs and Members during the 2023 Long Session.

The NC Providers Council has a great reputation for its analysis of legislation, administrative rules, and Medicaid State Plan, waiver, and clinical coverage policy provisions impacting community services funded through the North Carolina General Assembly and North Carolina Department of Health and Human Services (DHHS). With our active involvement at the General Assembly through Maynard and Associates, collaboration with numerous Divisions of DHHS – including participation in statewide workgroups and Committees, and an ongoing, constructive dialogue with Standard Plan and LME/MCO leadership, the association advocates for providers and the people who we support.

Legislative Session bill trackers and other documents related to NC Providers Council legislative advocacy are posted on the password-protected Member Communications page. 

OLMSTEAD UPDATES

Olmstead v. L.C., 527 U.S. 581 (1999), is a U.S. Supreme Court case that laid the groundwork for people with disabilities to live their lives as fully included members of the community. The case addressed the Americans with Disabilities Act’s (ADA) “integration mandate.” The integration mandate requires that all public entities, including the State of North Carolina, “administer services, programs, and activities” for people with disabilities in the most integrated setting appropriate to the person’s needs. “Most integrated setting” has been defined as one that enables people with disabilities to interact “to the fullest extent possible” with individuals that don’t have a disability. Specifically, the case requires states to provide services in the community for eligible persons with a disability when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be “reasonably accommodated.”

In December of 2021, the State Of North Carolina published its long-range plan for  Olmstead compliance.

In November of 2022, in relation to a 2017 Disability Rights North Carolina State lawsuit – Samantha R., et al. v North Carolina and the NC Department of Health and Human Services – an NC Superior Court judge filed an Order requiring NC DHHS to:  1) Divert and transition individuals from institutionalization; 2) Increase access to Home- and Community-Based Services via reductions in the Registry of Unmet Needs waiting list for the North Carolina Innovations Waiver; 3) Address the Direct Support Professional Deficit; and 4) Implement quarterly progress reporting to the Court.  In February of 2023, the same NC Superior Court judge granted an NC DHHS motion for a stay of the Order while the lawsuit appeal is pending in the NC Court of Appeals.
In December of 2022, Disability Rights North Carolina, the NC State Conference of the National Association for the Advancement of Colored People, and a Class of Plaintiffs filed a federal lawsuit – Timothy B. v. Kody Kinsley –  based on the legal claims of violation of civil rights in Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  “This action seeks to end ongoing discrimination by the North Carolina Department of Health and Human Services (“DHHS”) against children with disabilities placed in child welfare custody (“foster care”) who are unnecessarily segregated from their home communities and routinely isolated in heavily restrictive, and often clinically inappropriate, institutional placements known as psychiatric residential treatment facilities (“PRTFs”).”

In addition to any relevant legislation that may be filed during the 2023 Long Session, the North Carolina Providers Council is monitoring the NC Medicaid program’s regulatory and policy environment for any related changes that may arise.  The Providers Council uses its bi-weekly member policy newsletter and standing Committee and workgroup meetings to keep members apprised of developments in these two lawsuits of interest. You can learn more about the benefits of an NC Providers Council membership here.

FEDERAL PUBLIC HEALTH EMERGENCY SUNSETTING MAY 11, 2023

What is happening? 

Since January 2020, the U.S. Health and Human Services Secretary has declared and extended the federal Public Health Emergency in 90-day increments.  The most recent extension began on January 11th.  On January 30, President Biden announced that the Public Health Emergency will end on May 11, 2023.  Many temporary policy flexibilities in Medicaid State Plan and Waiver programs and clinical coverage policies are linked to the federal Public Health Emergency.  Those flexibilities are going to sunset in 2023.  In addition to temporary policy flexibilities, a federally appropriated 6.2% enhanced Federal Medical Assistance Percentage (FMAP) or “match” for State dollars that North Carolina DHHS receives from the federal Centers for Medicare and Medicaid Services (CMS) for every dollar spent on Medicaid services will phase out in 2023.  The enhanced FMAP has enabled NC DHHS to temporarily increase health plan and provider reimbursement rates.  The CMS schedule to phase out the enhanced match is:


Source: SHO-23-002 (medicaid.gov)

Clinical Coverage Policy Flexibilities Sunsetting

In early 2020, the North Carolina Department of Health and Human Services (NC DHHS) received approval from the federal Centers for Medicare and Medicaid Services for several waivers under the COVID-19 Public Health Emergency.  The waivers authorized temporary policy flexibilities for Medicaid State Plan and Waiver services and NC Health Choice services.  Access all relevant NC DHHS documentation and summaries here.

NC Medicaid Special Bulletin COVID-19 #237, Extension of NC State of Emergency Temporary Flexibilities, outlines a Policy Flexibilities Sunsetting Schedule.  It lists:

  • Flexibilities that have been made permanent in clinical coverage policy;
  • Flexibilities that ended on June 30, 2022; and
  • Flexibilities that will end with the federal PHE or 6 months after the end of the PHE

This NC DHHS summary table outlines the sunset timing for temporary policy flexibilities associated with specific COVID-19 NC DHHS waivers:

Medicaid Program Eligibility Redeterminations and Disenrollment Begin April 1, 2023

Although the federal PHE is ending on May 11, the Congressional Omnibus Budget Act signed into law in late 2022 authorizes State Medicaid programs to begin disenrolling Medicaid beneficiaries who have remained enrolled during the PHE regardless of their eligibility status.  As a condition of receiving the aforementioned 6.2% enhanced FMAP, State Medicaid programs have been prohibited from terminating individuals’ Medicaid program enrollment during the PHE.    There are currently approximately 2.9M individuals enrolled in the North Carolina Medicaid program.  There were 2.1M individuals enrolled in June of 2019 before the pandemic.  An estimated 400,000 or more individuals may be deemed ineligible for the program and disenrolled beginning July 1, 2023, as the state’s County DSS offices process the redeterminations during a 12-14 month period.  Some individuals who lose their Medicaid enrollment will qualify for health insurance on North Carolina’s Federally Facilitated Exchange or “Marketplace” at https://www.healthcare.gov.  For individuals who lose their Medicaid enrollment for administrative reasons (failure to return a renewal form or other necessary information timely), CMS has authorized States to reconsider eligibility without requiring a new application if individuals submit the necessary information within 90 days of eligibility termination.

Because each State Medicaid program will be completing these critical eligibility redeterminations, the Federal Communications Commission recently published relevant Guidelines at the request of U.S. HHS Secretary Xavier Becerra to authorize State Medicaid programs to use text messaging, pre-recorded calls, and auto-dialed calls to contact individuals regarding Medicaid program eligibility and enrollment requirements.  These would typically violate FCC robocall and robotext prohibitions [Source:  FCC Provides Guidance to Enable Critical Health Care Calls | Federal Communications Commission].  The goal is to facilitate the redetermination process due to the high volume of individuals to be contacted, and to prevent any lapse in health insurance coverage for the individuals affected.

2023 LEGISLATIVE SESSION ISSUE WATCH: MEDICAID EXPANSION

 

History of Medicaid Expansion Legislation in NC

In 2010, Congress enacted the Affordable Care Act which included a mandate for States to expand their Medicaid programs.

In 2012, the U.S. Supreme Court heard a case regarding whether the federal government had overreached its authority, and the Opinion gave discretion to State governments regarding whether to expand Medicaid enrollment.  North Carolina was one State that did not pursue Medicaid expansion.  There are 11 non-expansion States remaining today.  Initial arguments in the North Carolina General Assembly were that the federal government would not continue the high 90% Federal Medical Assistance Percentage match in the long run for the additional program beneficiaries enrolled, and that the State would ultimately bear a financial burden for the State dollars needed to make up for the regular Federal Medical Percentage match that is lower.

In 2013, the North Carolina General Assembly enacted law to preclude any NC Department of Health and Human Services pursuit of a State Plan Amendment for Medicaid expansion approval with the Centers for Medicare and Medicaid Services [S.L. 2013-5, Section 3]:

Since 2017 [See HB662 “Carolina Cares” bill], any time an NCGA Member has filed a bill for some form of Medicaid expansion, the bill has contained two additional, politically contentious provisions in some form:

    1. Work requirements for individuals who would be eligible to enroll; and
    2. Assessments on health care system providers including hospitals and health plans to fund the 10% State match to the 90% Federal Medical Assistance Percentage so the expansion would not require any additional State appropriations.

From 2017 – 2021, the Trump administration approved Medicaid expansion State Plan Amendments with work requirements.  However, beginning in 2022, the Biden administration retracted those approvals and it is currently not possible to get Centers for Medicare and Medicaid services approval for a Medicaid expansion plan that includes a work requirement.

2022 Legislative Activity and Negotiations

During the 2021 legislative session, the General Assembly enacted law [S.L. 2021-180, Section 5.13] to require the convening of a bicameral Joint Legislative Committee on Access to Healthcare and Medicaid Expansion “. . .to consider various ways in which access to health care and health insurance can be improved for North Carolinians, including those individuals described in section 1902(a)(10)(A)(i)(VIII) of the Social Security Act.” [individuals < 65 years of age; not pregnant; living with a household income < 133% of the Federal Poverty Level; and not entitled to or enrolled in Medicare].  The Committee met throughout the spring of 2022.  Presentations included speakers who supported and opposed Medicaid expansion and separate regulatory and scope of practice issues being considered in tandem to increase access to care if Medicaid expansion were to be implemented in the State.

In 2022, we saw Medicaid expansion bills filed in the House and Senate:

  • HB149:  Expanding Access to Healthcare
    • Medicaid Expansion with hospital assessments to cover the 10% State match
    • Increased hospital reimbursement
    • Work requirements (if federally approved)
    • Expanded scope of practice for Advance Practice RNs
    • Certificate of Need Regulatory Reform
  • SB408: Rural Healthcare Access & Savings Plan Act
    • Medicaid Expansion with hospital assessments to cover the 10% State match
    • American Rescue Plan Act funding for Opioid treatment
    • Rural healthcare access plan
    • Work requirements (if federally approved)

House Bill 149 was worked in both Chambers.  The primary reasons for the bill not passing were:

  1. Certificate of Need regulatory reform impasse;
  2. Advance Practice Registered Nurse expanded scope of practice reform impasse; and
  3. Some Members were fundamentally opposed to Medicaid expansion.

2023 Session Bill Activity

The first year of a new State budget biennium – a “long session” year in North Carolina – convened on January 11th.  Because 2022 was an election year, North Carolina’s General Assembly House and Senate seat composition has changed significantly in terms of the number of new Members, but there is still a Republican supermajority with a Democratic Governor.  The NC DHHS Secretary and the Governor have implored the NCGA to enact Medicaid expansion now since the State would receive a $1.8 billion bonus payment for becoming an expansion state and a 5% enhanced Federal Medical Assistance Percentage match for two years for the non-expansion Medicaid beneficiaries (there are currently 2.9M beneficiaries in NC) as authorized in the American Rescue Plan Act of 2021. The current enhanced match for non-expansion Medicaid beneficiaries is 73.91 cents of federal funding per dollar spent.

On February 8, 2023, the NCGA House of Representatives filed a Medicaid expansion bill (HB76, Access to Healthcare Options).  On March 2, 2023, House and Senate leadership held a press conference to announce that they had reached an agreement to enact Medicaid expansion legislation.  A March 8th Senate Proposed Committee Substitute has been moving rapidly through Senate committees.  We will continue to update this information as bill activity progresses.

The North Carolina Providers Council is monitoring the NC Medicaid program’s regulatory and policy environment for any related changes that may arise as the bill continues to move through NCGA Committees and Chambers.  The Providers Council uses its bi-weekly member policy newsletter and standing Committee and workgroup meetings to keep members apprised of developments when new laws are enacted.  You can learn more about the benefits of an NC Providers Council membership here.

QUALIFIED PROFESSIONAL EDUCATION WAIVER HISTORY AND STATUS

 

  • In 2013, the General Assembly enacted N.C.G.S. 108A-54.1B. to give DHHS State Plans and Waivers the force and effect of rules.  Part (d) of that statute reads, “State Plans, State Plan Amendments, and Waivers approved by the Centers for Medicare and Medicaid Services (CMS) for the North Carolina Medicaid Program and the NC Health Choice program shall have the force and effect of rules adopted pursuant to Article 2A of Chapter 150B of the General Statutes.”
  • In 2017, Session Law authorized an expansion of Qualified Professional hiring qualifications to include pre-education work experience in addition to post-education work experience.
  • In 2018, the Centers for Medicare and Medicaid Services (CMS) approved this North Carolina Medicaid program State Plan Amendment to “allow all years of both pre-graduation and post-graduation full-time MH/DD/SAS experience to apply to the qualifications required for MH/DD/SAS Qualified Professionals.”  The 2018 State Plan Amendment has the force and effect of rule [“NC Administrative Code”].
  • In 2019, DMH/DD/SAS promulgated temporary administrative rule amendments to 10A NCAC 27G .0104 and 10A NCAC 28A .0102 to reflect the 2017 Session Law.  However, the temporary rule amendments expired within six months.  The content linked here is for historical reference only. If you open the two rules today, they will be in their original form and will not reflect the 2017 Session Law.  However, because the 2018 State Plan Amendment has the force and effect of rule, the hiring practice of applying both pre- and post-education experience for Qualified Professionals is still authorized.
  • In 2020, DMH/DD/SAS obtained Commission on DMH/DD/SAS approval for a “rule waiver” since the temporary rule amendments had expired.  The rule waiver expired on 12/31/2021.
  • In 2022, DMH/DD/SAS obtained approval for a new rule waiver request.  The renewed rule waiver will expire in 12/2023.  The rule waiver gives DMH/DD/SAS until December of 2023 to complete the permanent (versus temporary or emergency) rulemaking process so the administrative rules can finally reflect the QP qualification changes authorized in the 2017 Session Law and in the 2018 Medicaid program State Plan Amendment.

NORTH CAROLINA GENERAL ASSEMBLY QUICK LINKS

2023 NC PROVIDERS COUNCIL STATEWIDE COMMITTEE AND WORKGROUP PARTICIPATION

  • Mental Health Coalition
  • Developmental Disabilities Consortium
  • Substance Use Disorder Federation
  • The Coalition
  • Provider-LME/MCO Leadership Forum
  • DHB – DMH/DD/SAS – Provider Forum
  • *Some members also serve on LME/MCO Provider Councils and Boards