Update on Regulatory Relief for North Carolina Long-Term Care Facilities After Hurricane Helene

By Francisco Morales and Jim Wrenn

The North Carolina Division of Health Service Regulation (“DHSR”) has issued guidance to Adult Care Home (ACH), Family Care Home (FCH), and Skilled Nursing Facility (SNF) providers regarding temporary waivers or modification of enforcement of certain regulatory requirements under applicable state regulations, specifically 10A NCAC Subchapters 13D, 13G and 13F.

Skilled Nursing Facilities (SNFs)

On October 11, 2024, DHSR issued two separate memorandums with guidance for nursing home providers on (i) temporary waivers and modification of enforcement of certain Nursing Home licensure rules pursuant to 10A NCAC Subchapter 13D (collectively, the “State Licensure Waivers”) (found here) and (ii) requests for emergency authorization to temporarily increase a facility’s licensed bed capacity and/or to permit a facility to use nursing home beds for adult care home residents or adult care beds for nursing home residents (collectively, the “Physical Environment Waivers”) (found here).

DHSR’s State Licensure Waivers and Physical Environment Waivers are companion state regulation waivers to certain “blanket waivers” and other flexibilities issued by the Centers for Medicare and Medicaid Services (“CMS”) pursuant to Section 1135 of the Social Security Act (the “Act”) (collectively, the “Blanket 1135 Waivers”). CMS guidance regarding the Blanket 1135 Waivers may be found here.

The Blanket 1135 Waivers apply statewide from a CMS perspective since these waivers were issued pursuant to both (i) the Presidential Declaration of Emergency, EM-3717-NC, which covers the entirety of the State of North Carolina and (ii) the Secretary of Health and Human Services Public Health Emergency Declaration, which likewise covers the entirety of the State of North Carolina. In addition, the Blanket 1135 Waivers are retroactive to September 25, 2024, and are in effect through the end of the Hurricane Helene Public Health Emergency Declaration, or when no longer needed.

However, in its October 11, 2024, memorandum, DHSR advised that the State Licensure Waivers and Physical Environment Waivers apply only to nursing homes operating in the “Affected Counties” and to nursing homes that have admitted residents from the Affected Counties. DHSR defined the Affected Counties as the 25 North Carolina counties that the Federal Emergency Management Agency (FEMA) originally designated as included in the Major Disaster Area under DR-4827-NC (found here), plus three (3) additional counties (Cherokee, Swain, and Graham), for a total of 28 counties: Alexander, Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Catawba, Cherokee, Clay, Cleveland, Gaston, Graham, Haywood, Henderson, Jackson, Lincoln, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, Wilkes, and Yancey.

Like the Blanket 1135 Waivers, DHSR advised the State Licensure Waivers apply retroactively to September 25, 2024, (though there was a mistaken reference in the memorandum to a retroactive date of October 1, 2024) and remain in effect until rescinded by DHSR.

On October 24, 2024, DHSR issued a clarifying memorandum extending the State Licensure Waivers statewide, commensurate with the Blanket 1135 Waivers granted by CMS. This means the companion State Licensure Waivers to the Blanket 1135 Waivers apply to all nursing homes in the state, regardless of whether they are in the Affected Counties or are sheltering residents from the Affected Counties. DHSR also clarified that the State Licensure Waivers apply retroactively to September 25, 2024.

Regarding the Physical Environment Waivers, while such waivers are potentially applicable to any nursing home in the state, DHSR will review them on a case-by-case basis upon individual provider requests to DHSR in writing following the instructions included in the DHSR memoranda.

CMS also issued a separate waiver using the authority under Section 1812(f) of the Act to (i) waive the three (3) day inpatient hospitalization requirement for patients being discharged from hospitals and admitted into nursing homes, and (ii) authorize a one-time renewal of nursing home coverage for certain beneficiaries who have recently exhausted their available nursing home benefit days without having to start a new benefit period (collectively, the “1812(f) Waiver”) (found here). Significantly, the 1812(f) Waiver applies statewide and was at no point limited by DHSR’s definition of Affected Counties and facilities sheltering residents from Affected Communities. Like the Blanket 1135 Waivers, the 1812(f) Waiver applies retroactively to September 25, 2024, and is in effect through the end of the Hurricane Helene Public Health Emergency Declaration, or when no longer needed.

Adult Care Homes (ACHs) and Family Care Homes (FCHs)

On October 14, 2024, DHSR issued two separate memorandums with guidance on temporary waivers and modifications of enforcement of (i) Adult Care Home and Family Care Home licensure rules pursuant to 10A NCAC Subchapters 13F and 13G (found here) and (ii) Construction, Design, and Physical Plant requirements of Adult Care Homes and Family Care Homes pursuant to 10A NCAC Subchapters 13F and 13G (found here).

The temporary licensure waivers and modifications of enforcement granted to adult care homes and family care homes apply only to adult care homes and family care homes operating in the “Affected Counties” and to facilities that have admitted residents from the affected counties.

The Affected Counties are the 25 North Carolina counties that FEMA originally designated as included in the Major Disaster Area under DR-4827-NC (found here) plus three (3) additional counties (Cherokee, Swain, and Graham), for a total of 28 counties: Alexander, Alleghany, Ashe, Avery, Buncombe, Burke, Caldwell, Catawba, Cherokee, Clay, Cleveland, Gaston, Graham, Haywood, Henderson, Jackson, Lincoln, Macon, Madison, McDowell, Mitchell, Polk, Rutherford, Swain, Transylvania, Watauga, Wilkes, and Yancey.

These waivers and modifications of enforcement have a retroactive date of September 25, 2024, the effective Date of the North Carolina Governor’s Executive Order No. 315, Declaration of a Statewide Emergency for Tropical Storm Helene and shall remain in effect until rescinded by DHSR.

In addition, these waivers and modifications do not impact any other applicable licensure requirements, and all licensure rules, other than those impacted by waiver or modification, remain in effect.

As outlined in detail in DHSR’s guidance, and subject to the terms and conditions imposed by DHSR, the following licensure rules (or subsections of rules) have been waived, modified, or extended on a temporary basis:

1. Personnel Requirements
   1. Staff Reciprocity for Tuberculosis (TB) Testing
      1. 10A NCAC 13F .0406
      2. 10A NCAC 13G .0405
   2. Staff Reciprocity for Medication Aide Competency Validation
      1. 10A NCAC 13F .0503
      2. 10A NCAC 13G .0503
   3. Personal Care Training and Competency
      1. 10A NCAC 13F .0501
      2. 10A NCAC 13G .0501
2. Resident Admissions & Other Requirements
   1. Annual Medical Exam
      1. 10A NCAC 13F .0703(c)
      2. 10A NCAC 13G .0702(c)
   2. Resident Register Initial Assessment
      1. 10A NCAC 13F .0704(b) and .0801(a)
      2. 10A NCAC 13G .0704(b) and .0801(a)
   3. Resident Assessment
      1. 10A NCAC 13F .0801(b)
      2. 10A NCAC 13G .0801(b)
   4. Care Plan
      1. 10A NCAC 13F .0802(e)
      2. 10A NCAC 13G .0802(e)
   5. Medication Orders
      1. 10A NCAC 13F .1002(d)(1)
      2. 10A NCAC 13G .1002(d)(1)
   6. Pharmaceutical Care
      1. 10A NCAC 13F .1009(a)
      2. 10A NCAC 13G .1009(a)
   7. Licensed Health Professional Support (LHPS) Quarterly Reviews and Evaluations
      1. 10A NCAC 13F .0903(c)
      2. 10A NCAC 13G .0903(c)
   8. Discharge of Residents
      1. 10A NCAC 13F .0702
      2. 10A NCAC 13G .0702
3. Activities
   1. Group Activities & Outings
      1. 10A NCAC 13F .0905
      2. 10A NCAC 13G .0905
4. Nutrition & Food Service
   1. Disposable Place Settings
      1. 10A NCAC 13F .0904(b)(1)
      2. 10A NCAC 13G .0904(b)(1)
   2. Menus
      1. 10A NCAC 13F.0904
      2. 10A NCAC 13G .0904
5. Special Care Units
   1. Special Care Unit Staffing
      1. 10A NCAC 13F .1308(a)
   2. Special Care Unit Resident Profile and Care Plan
      1. 10A NCAC 13F .1307

Additional licensure waiver requests will be considered by DHSR on a case-by-case basis and should be submitted in writing via email to: DHSR.AdultCare.HeleneWaivers@dhhs.nc.gov

DHSR will also consider temporary waivers or modifications for enforcement of the regulatory requirements for certain Construction, Design, and Physical Plant Requirements, as outlined in the DHSR memorandum, on a case-by-case basis upon written request from providers.

Written requests should include:

1. A floor plan (can be a photo of the evacuation plan that is posted in the facility);
2. The number of residents to be relocated;
3. The location to where the residents will be relocated;
4. A detailed narrative of how the new space will be utilized; and
5. The name and telephone number of the primary contact person for the provider.

Waiver requests should be submitted via email to: DHSR.AdultCare.HeleneWaivers@dhhs.nc.gov

North Carolina Medicaid

In response to Hurricane Helene, North Carolina Medicaid issued a Bulletin dated October 11, 2024 (found here) replacing in full the original Bulletin issued on October 1, 2024 (found here). North Carolina Medicaid has added the following areas of relief and flexibilities for long-term care providers effective September 26, 2024, through December 31, 2024 (unless otherwise communicated by the North Carolina Department of Health and Human Services, “NC DHHS”).

1. Home Health
   1. Waiver of Home Health Nursing and Home Health Aide Visit Limits
   2. Waiver of On-Site Supervisory Visits for Home Health
   3. Waiver of Prior Authorization (PA) for Home Health Skilled Nursing Visits
2. Skilled Nursing Facilities and Adult Care Homes
   1. Disaster Relief Applications Available for Providers Not Currently Enrolled as a North Carolina Medicaid Provider
   2. Expedited Nursing Home Admissions for Individuals Displaced due to Hurricane Helene
   3. Temporary PASRR Procedures Due to Hurricane Helene
   4. Personal Care Services (PCS) Reimbursement

If you have any questions about this Alert, please reach out to the authors or the Smith Anderson lawyer you normally work with.