Governor’s Executive Orders Used to Waive Requirements in Health Care, Social Services and Long-Term Care

Governor Cooper has extended the stay at home order through May 8th using his Executive Order authority to direct citizens in non-essential positions to stay-at-home and to direct specific government agencies to waive certain requirements and develop policies during the pandemic.  Governors have the authority to make such proclamations, particularly in emergencies such as the COVID-19 pandemic.  Some would say that the greatest benefit of this authority is to allow state and local governments to remove regulatory constraints and act quickly in an emergency.  Some key recent Executive Orders include: 

Executive Order #130, signed on April 8, 2020:   

General Health Care Provisions: 

Allows  the Secretary of NC DHHS to “waive or modify enforcement”  to: 

• increase bed capacity;  

• Specific to the increase in bed capacity, the Secretary is given the authority to waive bed capacity for licensed facilities serving individuals with mental health issues, substance use disorders or intellectual/developmental disabilities and also includes adult care homes.  This would be done through a request to the Division of Health Service Regulation.   

• relocate beds from a hospital, nursing home, or adult care home to another facility or physical space;  
• add or relocate dialysis stations;  

• acquire Medical Imaging Equipment 
• allow an ambulatory surgical facility to operate as a temporary hospital.   

This portion of Executive Order #130 will remain in place for the duration of the State of Emergency Order and can be extended for an additional 30 days.   

Expanding the HealthCare Workforce Provisions:   

Another section of the Order allows for regulatory flexibility in order to increase the pool of available health care workers.  This Order aligns with NC DHHS allowance for Medicaid services to be provided by appropriate professionals who are licensed in other states.  Specifically, the Order allows for professionals to provide care if they:  hold a license in another state, territory or the District of Columbia, but not in North Carolina; are  retired health care workers or individuals with inactive licenses; and, students at an advanced stage of their training and education.  In addition, the Order allows for “skilled, but unlicensed individuals to provide care”.   

The section wraps up with authority provided to the boards of licensure of the appropriate guilds to make necessary temporary changes to licensure to accommodate the flexibilities previously stated in the areas of medicine, nursing, social work, psychology, clinical mental health counseling, substance use disorder professional services, respiratory care, pharmacy, midwifery, speech, occupational, physical and recreational therapies,  nursing home and assisted living administration, interpreter and translation services and perfusionist services.  The boards of licensure are given authority to make these allowances on a case-by-case basis.   

This section is only valid while this Executive Order remains in place.   

MH/IDD/SUD Provisions: 

Executive Order #130 also highlights the needs of individuals with mental illness, substance use disorders, intellectual and developmental disabilities.  The Order gives the NC DHHS Secretary authority to make regulatory flexibilities and waivers to maintain the provision of services in the BH/IDD public system, including through the use of telehealth.   

NC DHHS may waive or modify enforcement of requirements around: training and use of interventions; supervision, including face-to-face hours; direct service ratios; drug education, testing and screening; rule provisions around crisis services; timeframe requirements around non-Medicaid services; provision of services in-home, including private home respite services.  Essentially, the Executive Order is a broad authority to temporarily change regulations as needed to recognize that there are situations that must continue to be provided face-to-face and others where use of telehealth and in-home supports are critical.  Much of the authority specified in this section of the Order can be seen in the waivers and flexibilities that NC DHHS has provided for Medicaid and State funded services.   

This section is only valid while this Executive Order remains in place.   

Social Service Provisions: 

The Order gives the NC DHHS Secretary authority to waive regulatory requirements temporarily in the area of social services.  That includes the areas of:  Special Assistance eligibility and maintenance of benefits; in-person requirements for supervision, assessments and interviews; direct care service personnel requirements for licensed residential child-care facilities; and foster home fire and building safety inspection requirements.   

This section is only valid while this Executive Order remains in place.   

The overall Executive Order #130 remains in effect for 60 days unless it is rescinded or replaced before that time.  The only exceptions are the general healthcare provisions that may remain in effect for an additional 30 days.   

Executive Order #131, signed on April 9, 2020: 

Long-Term Care Provisions: 

The provisions related to long-term care facilities in this Order are required for skilled nursing facilities and encouraged for other long-term care settings, including mental health group homes, intermediate care facilities for individuals with intellectual/developmental disabilities, adult care homes and family care homes.  The provisions require skilled nursing facilities and encourage others to: 

• Cancel all communal dining and other group activities; 
• Actively monitor the temperature and respiratory status of each resident at least daily; 
• Screen all staff at the beginning of their shifts for temperature and respiratory symptoms; 
• Require all staff to wear face masks at all times; 
• Remind staff to stay home when they are symptomatic; 

• Advise the local health department when there is a case of COVID-19 or a cluster of respiratory illnesses.   

This provision went into effect on April 10^th and remains in effect for the duration of the State of Emergency.   

Executive Order #134, signed on April 20, 2020: 

This Executive Order allows employers to apply for unemployment claims that cover temporarily-furloughed employees.   

Consistent with USDOL Letter 10-20 and the federal laws, the NC Department of Commerce may allow temporarily-furloughed employees to receive voluntary payments from employers without impairing unemployment benefits and without resulting in the employees waiting additional weeks for benefits.  The employer may file unemployment claims that are considered COVID-19 Support Payments.  The Department is expected to provide additional guidance on their website.