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Legal Update 2020 NCPHA Fall Educational Conference KIRSTEN LELOUDIS, JD, MPH, NC DIVISION OF PUBLIC HEALTH VIRGINIA NIEHAUS, JD, MPH, NC DIVISION OF PUBLIC HEALTH JILL MOORE, MPH, JD, UNC SCHOOL OF GOVERNMENT

Legal Update 2020 NCPHA Fall Educational Conference

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Page 1: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 2: Legal Update 2020 NCPHA Fall Educational Conference

Minors: Selected IssuesKIRSTEN LELOUDIS

The information provided in this presentation does not constitute legal advice and does not establish an attorney-client relationship.

Page 3: Legal Update 2020 NCPHA Fall Educational Conference

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)

Page 4: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 5: Legal Update 2020 NCPHA Fall Educational Conference

Minor Opt-Out for NC HealthConnex

Page 6: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 7: Legal Update 2020 NCPHA Fall Educational Conference

Selected Rules & Executive OrdersVIRGINIA NIEHAUS

The information provided in this presentation does not constitute legal advice and does not establish an attorney-client relationship.

Page 8: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 9: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 10: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 11: Legal Update 2020 NCPHA Fall Educational Conference

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.

Page 12: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 13: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 14: Legal Update 2020 NCPHA Fall Educational Conference

EO – Phases

Phase 3: Executive Order 169 and Guidance

https://covid19.ncdhhs.gov/guidance#phase-3-

easing-of-restrictions

Page 15: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 16: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 17: Legal Update 2020 NCPHA Fall Educational Conference

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.

Page 18: Legal Update 2020 NCPHA Fall Educational Conference

Confidentiality & COVID-19

Page 19: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 20: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 21: Legal Update 2020 NCPHA Fall Educational Conference

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?

Page 22: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 23: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 24: Legal Update 2020 NCPHA Fall Educational Conference

Update on NC mandatory reporting laws

Page 25: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 26: Legal Update 2020 NCPHA Fall Educational Conference

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.

Page 27: Legal Update 2020 NCPHA Fall Educational Conference

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

Page 28: Legal Update 2020 NCPHA Fall Educational Conference

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”

Page 29: Legal Update 2020 NCPHA Fall Educational Conference

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).

Page 30: Legal Update 2020 NCPHA Fall Educational Conference

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?

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Page 31: Legal Update 2020 NCPHA Fall Educational Conference

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