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Legal Update2020 NCPHA Fall Educational ConferenceK I RSTEN LELO UDI S, JD, M P H , NC DI V I S I ON O F P UBLI C H EALTH
VI RGI NI A NI EH AUS, JD, M P H , NC DI V I S ION O F P UBLI C H EALTH
J I LL M O O RE, M P H , JD, UNC SCH O O L O F GO VERNMENT
Minors: Selected IssuesKIRSTEN LELOUDIS
The information provided in this presentation does not constitute legal advice and does not establish an attorney-client relationship.
Minor’s Consent Law (G.S. 90-21.5)A minor may consent to medical health services for the prevention, diagnosis, or treatment of:◦ Sexually transmitted diseases or other reportable communicable diseases
◦ Pregnancy (but minors may not receive abortions or medical sterilization on their own consent)
◦ Emotional disturbance (but minors may not consent to admission to a 24-hour facility, except in emergencies)
◦ Abuse of controlled substances or alcohol (with the same restriction on admission to 24-hour facilities)
Minor Consent & NC HealthConnexG.S. 90-414.4 requires providers to connect to the North Carolina Health Information Exchange (HIE), known as “NC Health Connex”
•Opt out process for adults
•Opt out process also needed for minors for health services identified in G.S. 90-21.5
• Minors can only opt out for these services
Minor Opt-Out for NC HealthConnex
Minor’s Consent & VaccinationA minor may consent to medical health services for the prevention, diagnosis, or treatment of:• Sexually transmitted diseases or other reportable communicable diseases […]
• Reportable diseases and conditions listed at 10A NCAC 41A .0101
◦ Includes varicella as of July 2020
◦ Includes COVID-19, a novel coronavirus,
as of February 2020
Selected Rules & Executive OrdersVIRGINIA NIEHAUS
The information provided in this presentation does not constitute legal advice and does not establish an attorney-client relationship.
Public Health Administrative Rules• Implement public health statutes
• Adopted by NC Commission for Public Health
https://cph.publichealth.nc.gov/
• In accordance with the NC Administrative Procedure Act (G.S. Chapter 150B, Art. 2A)
o Emergency, Temporary, Permanent Rulemaking Processes
https://www.ncleg.gov/Laws/GeneralStatuteSections/Chapter150B
• Citations
o 10A NCAC Chapters 39-62
o 15A NCAC 18A (Environmental Health)
http://reports.oah.state.nc.us/ncac.asp
Communicable Disease Reporting
• Physicians and certain others are required by law to report specified diseases & conditions• G.S. 130A, Article 6
• 10A N.C.A.C. 41A .0101
• State Health Director (SHD) may issue a temporary order requiring health care providers to report symptoms, diseases, conditions, trends in use of services, or other information (not to exceed 90 days)• G.S. 130A-141.1
Reporting of COVID-19
State Health Director Temporary Orders To Report
• February 3, 2020: Novel Coronavirus Infections
• March 23, 2020: Novel Coronavirus Infections Causing Death
Rule Amendment
• 10A NCAC 41A .0101
Other COVID-19 Related Rule Changes
• Reporting of COVID-19 Diagnostic Resultso SHD Ordero Adoption of
10A NCAC 41 .0107
• Handling and Transportation of Bodieso Petition for Rulemakingo Amendment of
10A NCAC 41A .0212
These emergency rules were effective September 25, 2020.
Additional Communicable Disease Reporting Changes
The list of reportable diseases and conditions in 10A NCAC 41A
.0101 was also amended earlier this year to add:
oAcute Flaccid Myelitis
oBabesiosis
oVaricella
o Interferon Gamma Release Assay (IGRA) test results
The amendment also made technical updates to the rule.
Effective July 1, 2020
Select COVID-19 Executive Orders
• EO 116 – State of Emergency
• EO 121 – Stay at Home Order
• EO 138 – Phase 1 of Easing Restrictions
• EO 141 – Phase 2 of Easing Restrictions
• EO 163 – Phase 2.5 of Easing Restrictions
• EO 169 – Phase 3 of Easing Restrictions− Effective 5pm Oct. 2 – 5pm Oct. 23, unless repealed, rescinded,
or replaced.
https://www.nc.gov/covid-19/covid-19-orders
EO – Phases
Phase 3: Executive Order 169 and Guidance
https://covid19.ncdhhs.gov/guidance#phase-3-
easing-of-restrictions
Immunization and Health Assessment Requirements
• Every child present in the State is required to receive certain immunizations.
• No child shall attend school, a child care facility, college, or university unless proof of immunization is presented. o On the first day of attendance (school, child care facilities) or the date of first registration
(colleges, universities)
o Exclusion following 30-day grace period
• Each child in the State presented for admission in the public schools for the first time must also show proof of a health assessment. o On the first day of attendance
o Exclusion following 30-day grace period
• Reporting of immunizations and health assessments to NCDHHS
G.S. 130A-152, 130A-155, 130A-155.1, 130A-440, 130A-441; 10A NCAC 41A .0401
Changes to Fall 2020 Requirements
• A State Health Director Memo and the Governor’s Executive Order 156 delayed deadlines for immunization and health assessment requirements
o SHD Temporary Suspension under 10A NCAC 41A .0401(c)
• Allows additional time to address disruptions as a result of COVID-19 pandemic
• Immunization requirements suspended until September 30, 2020; the 30-day grace period begins October 1, 2020
• Aligns health assessment requirement with the immunization requirements (30-day grace period begins October 1, 2020)
• Extends reporting until December 15, 2020
• Student must be excluded from school after deadline (including in-person and remote learning) until compliant with requirements
Confidential Information-Sharing: Selected IssuesJ ILL MOORE
The information provided in this presentation does not constitute legal advice and does not establish an attorney-client relationship.
Confidentiality & COVID-19
COVID-19 Information-SharingNC Communicable Disease Confidentiality Law (G.S. 130A-143)◦ Information that identifies an individual who has or may have a
reportable communicable disease is strictly confidential and not a public record
Information covered by this law may be disclosed:◦ With written consent of the individual (or personal
representative)
◦ For statistical purposes, provided no person can be identified
◦ For treatment, payment, health care operations & research (same as HIPAA)
◦ When necessary to protect the public health, provided disclosure is made as provided in NC communicable disease control measure rules
◦ Other circumstances specified in the statute
This Photo by Unknown Author is licensed under CC BY-SA
Schools, Workplaces, and Other SettingsLHD may reveal the identity and diagnosis of a person with COVID-19 to the following people when necessary to prevent transmission in a facility or establishment for which the person is responsible:◦ School principals
◦ Child day care operators◦ Employers
◦ Superintendents or directors of public or private institutions, hospitals, or jails
Recipient must protect the confidentiality of the information and must require person to comply with communicable disease control measures within the facility/establishment.
10A NCAC 41A .0211
This Photo by Unknown Author is licensed under CC BY-NC
Disclosures to the public?Individually identifiable health information is covered by HIPAA only if it is created, received, or maintained by a HIPAA covered entity (or BA) or a covered component of a hybrid entity.
LHDs have some discretion in what to include in their covered components, so HIPAA coverage—and therefore what may be disclosed without violating HIPAA—may vary somewhat from one LHD to the next.
What local departments may disclose may also be different from what the state may disclose.It’s 2020. Do you know where your
hybrid entity designation is?
Disclosing data to the publicData derived from PHI protected by HIPAA must be de-identified◦ Remove 18 elements, including
county name, or◦ Use expert determination method
Information protected by G.S. 130A-143 may be released for statistical purposes provided no person can be identified
How can county data be shared?A LHD may share county data received from state
A LHD that is a hybrid entity may be able to share data from a non-covered component
A LHD may be able to de-identify county data using the expert determination method
Update on NC mandatory reporting laws
Mandated Reporting Update
• Abuse, neglect, or dependency of a person under age 18
DSS/Child Protective Services
• Gunshot wounds and other specific injuries
• Disappearance of a child under age 16 (Caylee’s law)
• Juvenile victims of certain crimes specified in law
Law Enforcement
Reports of juvenile crime victims (new G.S. 14-318.6)
A person age 18 or older who knows or should have reasonably known that a juvenile has been or is the victim of a violent offense, a sexual offense, or misdemeanor child abuse must make an immediate report to local law enforcement.
“Juvenile” means a person under age 18 who is not married, emancipated, or serving in the armed forces.
Who Must Report
General rule: Universal reporting
• Any adult (18+) who knows or should have reasonably known that a juvenile has been or is the victim of a reportable offense
Exceptions: Some individuals with statutory privileges
• Psychologists, psychological associates, their employees & agents
• Certified/licensed social workers engaged in private delivery of social work services
• Licensed mental health counselors (professional counselors)
• Employees and agents of rape crisis centers & domestic violence programs
• Attorneys
Which offenses must be reported?
Violent offense against a juvenile
Sexual offense against a juvenile
Misdemeanor child abuse
More information is available online:➢Go to ncphlaw.unc.edu
➢Click on Annual Legislative Updates
➢Scroll down to “Information About S.L. 2019-245 (S 199), Part I: Reporting Crimes Against Juveniles to Law Enforcement”
FAQ: ReportingStatutory Offenses Under the New Law
A report of statutory rape or statutory sexual offenses is required when:◦ The victim is under age 13 and the perpetrator is
4 or more years older than the victim
◦ The victim is ages 13-15 and the perpetrator is 6 or more years older than the victim
This is just one example of a crime that must be reported under the new law. For more information, see the resources at www.ncphlaw.unc.edu (click on the link for Annual Legislative Updates).
Issues & Concerns with New Reporting Law
Over-reporting
Effects on public health
Effects on provider-patient relationships
Patient confidentiality after information provided to LE
Other ethical dilemmas◦ Victim autonomy – no choice about involving LE
◦ Risk of other harms to victim
◦ May not be a protective structure for victim if no DSS/other agency involvement
Others?
31
ReferencesN.C. General Statutes
◦ G.S. 7B-301. Duty to report abuse, neglect, dependency, or death due to maltreatment.
◦ G.S. 14-318.6 (enacted by S.L. 2019-245 [S 199], Part I: Expand Duty to Report Crimes Against Juveniles).
◦ G.S. Chapter 90, Article 1A. Treatment of Minors.
◦ G.S. Chapter 130A, Article 6. Communicable Diseases.
◦ G.S. Chapter 130A, Article 18. Health Assessments for Children in the Public Schools.
◦ G.S. Chapter 150B, Article 2A. Administrative Procedure Act – Rules
◦ G.S. Chapter 166A, Article 1A, NC Emergency Management Act.
N.C. Administrative Code◦ 10A NCAC 41A section .0100. Communicable disease control.
◦ 10A NCAC 41A section .0200. Control measures for communicable diseases.
◦ 10A NCAC 41A section .0400. Immunization.
Other laws◦ HIPAA Privacy Rule, Code of Federal Regulations, Title 45, Parts 160
and 164.
Administrative materials◦ N.C. Executive Orders, https://www.nc.gov/covid-19/covid-19-
orders.
◦ U.S. Department of Health & Human Services, Guidance Regarding Methods for De-Identification of Protected Health Information in Accordance with the HIPAA Privacy Rule.
Electronic articles and blog posts◦ Jill D. Moore, Consent to Health Care for Minor Children: Overview
of N.C. Law (May 2016).
◦ Jill D. Moore, Summary of New Legislation and Q&A for Local Health Departments: S.L. 2019-245 (S 199) – Duty to Report Crimes Against Juveniles (November 2019).
◦ Jill D. Moore, Releasing County-Specific Information about COVID-19. Coates’ Canons Local Government Law Blog (April 9, 2020).
Websites◦ https://hiea.nc.gov/: NC Health Information Exchange Authority
(NC HealthConnex)
◦ covid19.ncdhhs.gov: NC DHHS COVID-19 information
◦ https://cph.publichealth.nc.gov/: NC Commission for Public Health