North Carolina § 150B-21 - 1. Procedure for adopting a temporary rule.

§ 150B-21. 1. Procedure for adopting a temporary rule.

Adoption. - An agency may adopt a temporary rule when it finds that adherence to the notice and hearing requirements of G.S. 150B-21.2 would be contrary to the public interest and that the immediate adoption of the rule is required by one or more of the following: A serious and unforeseen threat to the public health, safety, or welfare. The effective date of a recent act of the General Assembly or the United States Congress. A recent change in federal or State budgetary policy. A recent federal regulation. A recent court order. The need for a rule establishing review criteria as authorized by G.S. 131E-183(b) to complement or be made consistent with the State Medical Facilities Plan approved by the Governor, if the rule addresses a matter included in the State Medical Facilities Plan, and the proposed rule and a notice of public hearing is submitted to the Codifier of Rules prior to the effective date of the Plan. The need for the Wildlife Resources Commission to establish any of the following: No wake zones. Hunting or fishing seasons, including provisions for manner of take or any other conditions required for the implementation of such season. Hunting or fishing bag limits. Management of public game lands as defined in G.S. 113-129(8a). The need for the Secretary of State to implement the certification technology provisions of Article 11A of Chapter 66 of the General Statutes, to adopt uniform Statements of Policy that have been officially adopted by the North American Securities Administrators Association, Inc., for the purpose of promoting uniformity of state securities regulation, and to adopt rules governing the conduct of hearings pursuant to this Chapter. The need for the Commissioner of Insurance to implement the provisions of G.S. 58-2-205. The need for the State Chief Information Officer to implement the information technology procurement provisions of Article 15 of Chapter 143B of the General Statutes. The need for the State Board of Elections to adopt a temporary rule after prior notice or hearing or upon any abbreviated notice or hearing the agency finds practical for one or more of the following: In accordance with the provisions of G.S. 163-22.2. To implement any provisions of state or federal law for which the State Board of Elections has been authorized to adopt rules. The need for the rule to become effective immediately in order to preserve the integrity of upcoming elections and the elections process. Repealed by Session Laws 2015-264, s. 22, effective October 1, 2015. , (14) Reserved. Recodified as subdivision (a)(16) of this section by Session Laws 2004-156, s. 1. A recent act, change, regulation, or order as used in subdivisions (2) through (5) of subsection (a) of this section means an act, change, regulation, or order occurring or made effective no more than 210 days prior to the submission of a temporary rule to the Rules Review Commission. Upon written request of the agency, the Commission may waive the 210-day requirement upon consideration of the degree of public benefit, whether the agency had control over the circumstances that required the requested waiver, notice to and opposition by the public, the need for the waiver, and previous requests for waivers submitted by the agency. Unless otherwise provided by law, the agency shall: At least 30 business days prior to adopting a temporary rule, submit the rule and a notice of public hearing to the Codifier of Rules, and the Codifier of Rules shall publish the proposed temporary rule and the notice of public hearing on the Internet to be posted within five business days. At least 30 business days prior to adopting a temporary rule, notify persons on the mailing list maintained pursuant to G.S. 150B-21.2(d) and any other interested parties of its intent to adopt a temporary rule and of the public hearing. Accept written comments on the proposed temporary rule for at least 15 business days prior to adoption of the temporary rule. Hold at least one public hearing on the proposed temporary rule no less than five days after the rule and notice have been published. If notice of a public hearing has been published and that public hearing has been cancelled, the agency shall publish notice at least five days prior to the date of any rescheduled hearing. An agency must also prepare a written statement of its findings of need for a temporary rule stating why adherence to the notice and hearing requirements in G.S. 150B-21.2 would be contrary to the public interest and why the immediate adoption of the rule is required. If the temporary rule establishes a new fee or increases an existing fee, the agency shall include in the written statement that it has complied with the requirements of G.S. 12-3.1. The statement must be signed by the head of the agency adopting the temporary rule. Review. - When an agency adopts a temporary rule it must submit the rule and the agency's written statement of its findings of the need for the rule to the Rules Review Commission. Within 15 business days after receiving the proposed temporary rule, the Commission shall review the agency's written statement of findings of need for the rule and the rule to determine whether the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B-21.9. The Commission shall direct a member of its staff who is an attorney licensed to practice law in North Carolina to review the statement of findings of need and the rule. The staff member shall make a recommendation to the Commission, which must be approved by the Commission or its designee. The Commission's designee shall be a panel of at least three members of the Commission. In reviewing the statement, the Commission or its designee may consider any information submitted by the agency or another person. If the Commission or its designee finds that the statement meets the criteria listed in subsection (a) of this section and the rule meets the standards in G.S. 150B-21.9, the Commission or its designee must approve the temporary rule and deliver the rule to the Codifier of Rules within two business days of approval. The Codifier of Rules must enter the rule into the North Carolina Administrative Code on the sixth business day following receipt from the Commission or its designee. If the Commission or its designee finds that the statement does not meet the criteria listed in subsection (a) of this section or that the rule does not meet the standards in G.S. 150B-21.9, the Commission or its designee must immediately notify the head of the agency. The agency may supplement its statement of need with additional findings or submit a new statement. If the agency provides additional findings or submits a new statement, the Commission or its designee must review the additional findings or new statement within five business days after the agency submits the additional findings or new statement. If the Commission or its designee again finds that the statement does not meet the criteria listed in subsection (a) of this section or that the rule does not meet the standards in G.S. 150B-21.9, the Commission or its designee must immediately notify the head of the agency and return the rule to the agency. If an agency decides not to provide additional findings or submit a new statement when notified by the Commission or its designee that the agency's findings of need for a rule do not meet the required criteria or that the rule does not meet the required standards, the agency must notify the Commission or its designee of its decision. The Commission or its designee shall then return the rule to the agency. When the Commission returns a rule to an agency in accordance with this subsection, the agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes. Notwithstanding any other provision of this subsection, if the agency has not complied with the provisions of G.S. 12-3.1, the Codifier of Rules shall not enter the rule into the Code. Standing. - A person aggrieved by a temporary rule adopted by an agency may file an action for declaratory judgment in Wake County Superior Court pursuant to Article 26 of Chapter 1 of the General Statutes. In the action, the court shall determine whether the agency's written statement of findings of need for the rule meets the criteria listed in subsection (a) of this section and whether the rule meets the standards in G.S. 150B-21.9. The court shall not grant an ex parte temporary restraining order. Filing a petition for rule making or a request for a declaratory ruling with the agency that adopted the rule is not a prerequisite to filing an action under this subsection. A person who files an action for declaratory judgment under this subsection must serve a copy of the complaint on the agency that adopted the rule being contested, the Codifier of Rules, and the Commission. Effective Date and Expiration. - A temporary rule becomes effective on the date specified in G.S. 150B-21.3. A temporary rule expires on the earliest of the following dates: The date specified in the rule. The effective date of the permanent rule adopted to replace the temporary rule, if the Commission approves the permanent rule. The date the Commission returns to an agency a permanent rule the agency adopted to replace the temporary rule. The effective date of an act of the General Assembly that specifically disapproves a permanent rule adopted to replace the temporary rule. 270 days from the date the temporary rule was published in the North Carolina Register, unless the permanent rule adopted to replace the temporary rule has been submitted to the Commission. Publication. - When the Codifier of Rules enters a temporary rule in the North Carolina Administrative Code, the Codifier must publish the rule in the North Carolina Register. (15) Expired pursuant to Session Laws 2002-164, s. 5, effective October 1, 2004. (16) Expired pursuant to Session Laws 2003-184, s. 3, effective July 1, 2005. (17) To maximize receipt of federal funds for the Medicaid or NC Health Choice programs within existing State appropriations, to reduce Medicaid or NC Health Choice expenditures, and to reduce Medicaid and NC Health Choice fraud and abuse. History (1973, c. 1331, s. 1; 1981, c. 688, s. 12; 1981 (Reg. Sess., 1982), c. 1232, s. 1; 1983, c. 857; c. 927, ss. 4, 8; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 1022, s. 1(1), 1(8); 1987, c. 285, ss. 10-12; 1991, c. 418, s. 1; 1991 (Reg. Sess., 1992), c. 900, s. 149; 1993, c. 553, s. 54; 1995, c. 507, s. 27.8(c); 1996, 2nd Ex. Sess., c. 18, ss. 7.10(c), (d); 1997-403, ss. 1-3; 1998-127, s. 2; 1998-212, s. 26B(h); 1999-434, s. 16; 1999-453, s. 5(a); 2000-69, ss. 3, 5; 2000-148, ss. 4, 5; 2001-126, s. 12; 2001-421, ss. 2.3, 5.3; 2001-424, ss. 27.17(b), (c), 27.22(a), (b); 2001-487, s. 21(g); 2002-97, ss. 2, 3; 2002-164, s. 4.6; 2003-184, s. 3; 2003-229, s. 2; 2003-413, ss. 27, 29; 2004-156, s. 1; 2011-398, s. 4; 2013-360, s. 12H.9(d); 2013-413, s. 39; 2015-241, s. 7A.4(ee); 2015-264, s. 22; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1; 2020-3, s. 4.25(a).) Cross References. - As to Commission's ability to adopt temporary rules, notwithstanding this section, to establish maximum mass loads or concentration limits relating to nitrogen and phosphorous discharge limits pursuant to G.S. 143-215.1B, see G.S. 143-215.1B(c). Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163 A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification. Pursuant to this authority, the Revisor of Statutes, in subdivision (a)(11), substituted "G.S. 163A-742" for "G.S. 163-22.2" once, and substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" twice. Session Laws 2018-146, ss. 3.1(a), (b), and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subdivision (a)(11). Coastal Energy Facilities. - Session Laws 1998-221, s. 2.1 provided: "Notwithstanding G.S. 150B-21.1(a) and 26 NCAC 2C.0102(11), the Coastal Resources Commission may adopt temporary rules governing coastal energy facilities until 1 July 2005." Conservation Reserve Enhancement Program. - Session Laws 1998-165, s. 2 provides that the Soil and Water Conservation Commission may adopt temporary rules to implement the Conservation Reserve Enhancement Program. This section shall constitute a recent act of the General Assembly for purposes of G.S. 150B-21.1(a)(2). Area Mental Health Programs. - Session Laws 1998-212, s. 12.35C(b) provides: "Notwithstanding G.S. 150B-21.1, the Secretary may adopt temporary rules to implement subsection (a) of this section [which amended G.S. 122C-112(a)], provided that the temporary rules shall not become effective until 60 days after the Secretary has provided notice and opportunity for written comment to the general public of the Secretary's intent to adopt temporary rules, the purpose and subject matter of the rules, and the effective date of the rules. Notice and comment shall be through publication in the North Carolina Register, in the print media, and through mailings to area mental health authorities and other appropriate mental health institutions and providers that will be subject to the temporary rules." Hurricane Floyd Recovery Act. - Session Laws 1999-463, s. 4 authorizes every State agency to adopt temporary rules necessary to implement the provisions of the act, the Hurricane Floyd Recovery Act of 1999, and provides that notwithstanding § 150B-21.1 (a)(2) and 26 NCAC 2C.0102(11), the authority to adopt temporary rules to implement the provisions of the act shall continue in effect until all rules necessary to implement the provisions of the act have become effective as either temporary rules or permanent rules. Notwithstanding § 150B-21.1 (d), a temporary rule adopted to implement the provisions of the act shall specify the date on which the rule will expire and shall continue in effect until that date. Any agency that adopts a temporary rule to implement the provisions of the act shall report the text of the rule and the agency's written statement of its findings of the need for the rule to the Joint Legislative Administrative Procedure Oversight Committee within 30 days of the adoption of the temporary rule. Section 4 applies to the adoption of temporary rules by the Department of Administration under § 113A-11 (a) and to the adoption of temporary rules that establish minimum criteria by any State agency, as defined in § 113A-9, under § 113A-11 (b). Adult Care Homes - Short-Term Admission. - Session Laws 2000-50, s. 2, provides: "Notwithstanding G.S. 150B-21.1(a), the Medical Care Commission shall adopt temporary rules for the purpose of defining the circumstances under which adult care homes may admit residents on a short-term basis for the purpose of caregiver respite and the rules that shall apply during the course of their stay. The Commission's authority to adopt temporary rules under this section expires on the date that permanent rules pertaining to the same subject matter adopted by the Commission as authorized under G.S. 143B-165(10) become effective." Mental Health Facilities. - Session Laws 2000-55, s. 6, provides: "Notwithstanding G.S. 150B-21.1(a), the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services shall adopt temporary rules to implement G.S. 122C-26(5)." Abuser Treatment Programs. - Session Laws 2000-67, s. 21.5, provides that, notwithstanding the provisions of G.S. 150B-21.1(a), the Department of Administration may adopt temporary rules to approve abuser treatment programs that apply to the North Carolina Council for Women. Session Laws 2000-67, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2000.' " Session Laws 2000-67, s. 28.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2000-2001 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2000-2001 fiscal year." Session Laws 2000-67, s. 28.4, contains a severability clause. Approval of Temporary Rules Governing Residential Treatment for Children or Adolescents. - Session Laws 2005-276, s. 10.35B, provides: "Notwithstanding G.S. 150B-21.1(b) and G.S. 150B-21.3(b2), the Department of Health and Human Services may adopt as temporary rules the rules governing residential treatment for children or adolescents approved for adoption or revision on May 18, 2005, by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services, and approved by the Rules Review Commission. The temporary rules shall become effective as provided in G.S. 150B-21.3(a)." Minimum Separation Distances Between Well Serving Single-Family Dwellings and Certain Other Structures. - Session Laws 2001-113, ss. 1 to 4, provide: "For a well serving a single-family dwelling where lot size or other fixed conditions preclude the separation distances specified in subparagraph (a) (2) of 15A NCAC 2C.0107 (Standards of Construction: Water-Supply Wells), as adopted by the Environmental Management Commission on October 12, 2000, and approved by the Rules Review Commission on November 16, 2000, the required separation distances shall be the maximum possible, but shall in no case be less than the following: "(1) Septic tank and drainfield 50 feet "(2) Water-tight sewage or liquid-waste collection or transfer facility 25 feet "(3) Animal barns 50 feet "(4) Cesspool or privies 50 feet. "This act [Session Laws 2001-113] constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1(a). The Environmental Management Commission may adopt a temporary rule that incorporates the provisions of Section 1 of this act [Section 1 of Session Laws 2001-113]. Notwithstanding G.S. 150B-21.1(d), a temporary rule adopted in accordance with this section shall remain in effect until a permanent rule adopted to replace the temporary rule becomes effective. "Except as provided by Section 1 of this act [Section 1 of Session Laws 2001-113], this act does not limit the authority of the Environmental Management Commission to adopt rules governing the location, construction, repair, and abandonment of wells pursuant to G.S. 87-87 and Article 2A of Chapter 150B of the General Statutes. "This act is effective retroactively to the date on which it is ratified. If the Environmental Management Commission adopts a temporary rule as provided in Section 2 of this act, Section 1 of this act [Sections 1 and 2 of Session Laws 2001-113] expires when the temporary rule becomes effective." Air Quality. - Session Laws 2000-134, s. 21, provides that Session Laws 2000-134, relating to air quality emission inspections, and fund expenditures, constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1, and that, notwithstanding G.S. 150B-21.1(a)(2) and 26 NCAC 2C.0102(11), the Environmental Management Commission and the Division of Motor Vehicles of the Department of Transportation may adopt temporary rules to implement the provisions of the act. Section 21 is to continue in effect until all rules necessary to implement the provisions of the act have become effective as either temporary rules or permanent rules. Tar-Pamlico River Basin. - Session Laws 2001-355, s. 5(b) provides that the Environmental Management Commission may adopt a temporary rule that incorporates the provisions of Sections 2 and 3 of the act (providing for implementation of the Tar-Pamlico River Basin-Nutrient Sensitive Waters Management Strategy: Agricultural Nutrient Control Strategy, as adopted by the Environmental Management Commission on 12 October 2000 and approved by the Rules Review Commission on 20 November 2000, to become effective on 1 September 2001). Notwithstanding G.S. 150B-21.1(d), a temporary rule adopted in accordance with s. 5(b) shall remain in effect until a temporary or permanent rule adopted to replace the temporary rule becomes effective. Catawba River Basin. - Session Laws 2001-418, s. 4(a), as amended by Session Laws 2003-340, s. 5, provides: "Notwithstanding G.S. 150B-21.1(d), temporary rules 15A NCAC 2B.0243 and 15A NCAC 2B.0244, which were adopted pursuant to Section 7.1 of S.L. 1999-329 and which became effective on or before 1 July 2001, shall continue in effect until 1 September 2004 in order to provide sufficient time for the Environmental Management Commission to further consult with businesses and industries, local governments, landowners, and other interested or potentially affected persons in the upper and lower Catawba River Basin as to the appropriate scope of permanent rules to protect water quality and riparian buffers in that river basin. In developing permanent rules, the Commission shall consider whether riparian buffers on the main stem of the Catawba River and on lake shorelines are adequate to protect water quality in the river and whether riparian buffer protection requirements should or should not be extended to some or all of the tributary streams in the river basin, taking into account the sources of water quality degradation in the river, the topography of the land in the river basin, and other relevant factors." Session Laws 2001-418, s. 4(b), provides: "Vested rights recognized or established under the common law or by G.S. 153A-344(b), 153A-344.1, 160A-385(b), or 160A-385.1 shall include the right, as provided in this subsection, to undertake and complete development in the Catawba River Basin without application of temporary rule 15A NCAC 2B.0243. The Commission and the Department shall not apply temporary rule 15A NCAC 2B.0243 to development with vested rights recognized or established under G.S. 153A-344(b), 153A-344.1, 160A-385(b), or 160A-385.1 prior to 1 July 2001. The Commission and the Department shall not apply temporary rule 15A NCAC 2B.0243 to development with vested rights recognized or established under the common law prior to the date this section [s. 4 of Session Laws 2001-418] becomes effective if the Commission has issued a certification pursuant to G.S. 143B-282(a)(1)u. prior to 1 July 2001. The Commission shall not adopt or enforce rules that confer or restrict a vested right to undertake or complete development. It is the intent of the General Assembly that this subsection [s. 4(b)] apply only to the particular circumstances that are the subject of this section [s. 4 of Session Laws 2001-418]. This subsection [s. 4(b)] does not establish a precedent as to the application of vesting under a zoning or land-use planning program administered by a local government or to any other environmental program." Session Laws 2001-416, s. 4(c), provides: "Notwithstanding G.S. 150B-21.3(a), this section [s. 4 of Session Laws 2001-416] shall not be construed to authorize the adoption of additional temporary rules related to protection of water quality and riparian buffers." Medicaid - Other Mental Health Services. - Session Laws 2003-284, s. 10.19(a)(22), as amended by Session Laws 2004-124, s. 10.4, contains provisions regarding the following services and payment bases: 1) services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS); and 2) for children eligible for certain EPSDT services; and 3) certain services for Medicaid-eligible adults. The subdivision further provides: "Notwithstanding G.S. 150B-21.1(a), the Department of Health and Human Services may adopt temporary rules in accordance with Chapter 150B of the General Statutes further defining the qualifications of providers and referral procedures in order to implement this subdivision. Coverage policy for services defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services under sub-subdivisions a. and b.2 of this subdivision shall be established by the Division of Medical Assistance." Reorganization of Human Resources Development Program. - Session Laws 2001-424, ss. 30.3(a) to (e), provide: "(a) The State Board of Community Colleges shall establish a committee to develop and recommend to the Board a core series of employability skills training classes that should be coded in the Continuing Education Master Course List as Human Resources Development. "(b) The State Board of Community Colleges may waive tuition and fees for enrollment in classes coded in the Continuing Education Master Course List as Human Resources Development if the individual enrolling: "(1) Is unemployed; "(2) Has received notification of a pending layoff; "(3) Is working and is eligible for the Federal Earned Income Tax Credit (FEITC); or "(4) Is working and earning wages at or below two hundred percent (200%) of the federal poverty guidelines. "Individuals for whom tuition and fees are waived must sign a form adopted by the State Board of Community Colleges verifying that they meet one of these criteria. "(c) The State Board of Community Colleges shall study the feasibility of integrating the delivery of human resources development services into the frame work of the JobLink Career Centers. The Board shall report its recommendations to the Joint Legislative Education Oversight Committee by May 1, 2002. "(d) The State Board of Community Colleges shall report to the Joint Legislative Education Oversight Committee on its reorganization of the Human Resources Development Program by January 1, 2003. "(e) The State Board of Community Colleges may adopt temporary rules to implement reorganization of the Human Resources Development Program." Buffer Requirement. - Session Laws 2001-494, s. 3, provides: "The Coastal Resources Commission may adopt a temporary rule to amend 15A NCAC 7H.0209 that incorporates the provision of Section 1 of this act [s. 1 of Session Laws 2001-494, relating to the 30 foot buffer requirement along public trust and estuarine waters]. Notwithstanding G.S. 150B-21.1(d), a temporary rule adopted in accordance with this section [s. 1 of Session Laws 2001-494] shall remain in effect until the permanent rule that incorporates the temporary rule becomes effective. Notwithstanding G.S. 150B-21.1(a)(2), this act [Session Laws 2001-494] shall not be construed to authorize the adoption of temporary rules except as specifically provided in this section [s. 1 of Session Laws 2001-494]." Motor Vehicle Emissions. - Session Laws 2001-504, s. 19, provides: "This act constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1. Notwithstanding G.S. 150B-21.1(a) (2) and 26 NCAC 2C.0102(11), the Environmental Management Commission and the Division of Motor Vehicles of the Department of Transportation may adopt temporary rules to implement the provisions of this act. This section [s. 19 of Session Laws 2001-504] shall continue in effect until all rules necessary to implement the provisions of this act have become effective as either temporary rules or permanent rules. " Medicaid Services and Payment Bases. - Session Laws 2011-145, s. 10.31(d), as amended by Session Laws 2012-72, s. 8, provides: "Services and Payment Bases. - The Department shall spend funds appropriated for Medicaid services in accordance with the following schedule of services and payment bases. Unless otherwise provided, services and payment bases will be as prescribed in the State Plan as established by the Department of Health and Human Services and may be changed with the approval of the Director of the Budget. "The Department of Health and Human Services (DHHS) shall operate and manage the Medicaid program within the annual State appropriation. DHHS shall establish policies, practices, rates, and expenditure procedures that are in compliance with CMS regulations and approved State Plans, State laws, and regulations. "Additionally, the Department shall be required to use the Physician's Advisory Group for review and will collaborate with other stakeholder groups in the adoption and implementation of all clinical and payment policies, including all public notice and posting provisions in use as of the effective date of this provision. "(1) Mandatory Services. - In order to manage the Medicaid program within the annual State appropriation, the Secretary shall have the authority to submit State Plan amendments and establish temporary rules affecting the amount of service and payment rate for the following mandatory services: "a. Hospital inpatient. - Payment for hospital inpatient services will be prescribed by the State Plan as established by the Department of Health and Human Services. "b. Hospital outpatient. - Eighty percent (80%) of allowable costs or a prospective reimbursement plan as established by the Department of Health and Human Services. "c. Nursing facilities. - Nursing facilities providing services to Medicaid recipients who also qualify for Medicare must be enrolled in the Medicare program as a condition of participation in the Medicaid program. State facilities are not subject to the requirement to enroll in the Medicare program. Residents of nursing facilities who are eligible for Medicare coverage of nursing facility services must be placed in a Medicare-certified bed. Medicaid shall cover facility services only after the appropriate services have been billed to Medicare. "d. Physicians, certified nurse midwife services, nurse practitioners, physician assistants. - Fee schedules as developed by the Department of Health and Human Services. "e. EPSDT screens. - Payments in accordance with rate schedule developed by the Department of Health and Human Services. "f. Home health and related services, durable medical equipment. - Payments according to reimbursement plans developed by the Department of Health and Human Services. "g. Rural health clinical services. - Provider-based, reasonable cost, nonprovider-based, single-cost reimbursement rate per clinic visit. "h. Family planning. - Negotiated rate for local health departments. For other providers see specific services, e.g., hospitals, physicians. "i. Independent laboratory and X-ray services. - Uniform fee schedules as developed by the Department of Health and Human Services. "j. Medicare Buy-In. - Social Security Administration premium. "k. Ambulance services. - Uniform fee schedules as developed by the Department of Health and Human Services. Public ambulance providers will be reimbursed at cost. "l. Medicare crossover claims. - The Department shall apply Medicaid medical policy to Medicare claims for dually eligible recipients. The Department shall pay an amount up to the actual coinsurance or deductible or both, in accordance with the State Plan, as approved by the Department of Health and Human Services. The Department may disregard application of this policy in cases where application of the policy would adversely affect patient care. "m. Pregnancy-related services. - Covered services for pregnant women shall include nutritional counseling, psychosocial counseling, and predelivery and postpartum home visits as described in clinical policy. "n. Mental health services. - Coverage is limited to children eligible for EPSDT services provided by: "1. Licensed or certified psychologists, licensed clinical social workers, licensed clinical social workers associates, certified clinical nurse specialists in psychiatric mental health advanced practice, nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed professional counselor associates, licensed marriage and family therapists, licensed marriage and family therapist associates, licensed clinical addictions specialists, licensed clinical addiction specialists associate, and certified clinical supervisors, when Medicaid-eligible children are referred by the Community Care of North Carolina primary care physician, a Medicaid-enrolled psychiatrist, or the area mental health program or local management entity, and "2. Institutional providers of residential services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) for children and Psychiatric Residential Treatment Facility services that meet federal and State requirements as defined by the Department. "(2) Optional Services. - In order to manage the Medicaid program within the annual State appropriation, the Secretary shall have the authority to submit State Plan amendments and establish temporary rules affecting the amount of service, payment rate, or elimination of the following optional services: "a. Certified registered nurse anesthetists. "b. Community Alternative Programs. "c. Hearing aids. - Wholesale cost plus dispensing fee to provider. "d. Ambulatory surgical centers. "e. Private duty nursing, clinic services, prepaid health plans. "f. Intermediate care facilities for the mentally retarded. "g. Chiropractors, podiatrists, optometrists, dentists. "h. Dental coverage. - Dental services shall be provided on a restricted basis in accordance with criteria adopted by the Department to implement this subsection. "i. Optical supplies. - Payment for materials is made to a contractor in accordance with 42 C.F.R. § 431.54(d). Fees paid to dispensing providers are negotiated fees established by the State agency based on industry charges. "j. Physical therapy, occupational therapy, and speech therapy. - Services for adults. Payments are to be made only to qualified providers at rates negotiated by the Department of Health and Human Services. "k. Personal care services. - Payment in accordance with the State Plan developed by the Department of Health and Human Services. "l. Case management services. - Reimbursement in accordance with the availability of funds to be transferred within the Department of Health and Human Services. "m. Hospice and palliative care. "n. Medically necessary prosthetics or orthotics. - In order to be eligible for reimbursement, providers must be licensed or certified by the occupational licensing board or the certification authority having authority over the provider's license or certification. Medically necessary prosthetics and orthotics are subject to prior approval and utilization review. "o. Health insurance premiums. "p. Medical care/other remedial care. - Services not covered elsewhere in this section include related services in schools; health professional services provided outside the clinic setting to meet maternal and infant health goals. "q. Bariatric surgeries. - Covered as described in clinical policy 1A-15, Surgery for Clinically Severe Obesity. In order to raise the standard of bariatric care in North Carolina, approval for these procedures shall be granted only to those providers (facilities and surgeons) who are designated as a Bariatric Surgery Center of Excellence (BSCOE) by the American Society for Metabolic and Bariatric Surgery (ASMBS). Providers must then submit to NC Medicaid documentation of their designation as a BSCOE, as well as verify their continued annual participation. "r. Drugs. - "1. Reimbursements. - Reimbursements shall be available for prescription drugs as allowed by federal regulations plus a professional services fee per month, excluding refills for the same drug or generic equivalent during the same month. Payments for drugs are subject to the provisions of this subdivision or in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. Payment of the professional services fee shall be made in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. The professional services fee shall be established by the Department. In addition to the professional services fee, the Department may pay an enhanced fee for pharmacy services. "2. Limitations on quantity. - The Department of Health and Human Services may establish authorizations, limitations, and reviews for specific drugs, drug classes, brands, or quantities in order to manage effectively the Medicaid program. The Department may impose prior authorization requirements on brand-name drugs for which the phrase 'medically necessary' is written on the prescription. "3. Dispensing of generic drugs. - Notwithstanding G.S. 90-85.27 through G.S. 90-85.31, or any other law to the contrary, under the Medical Assistance Program (Title XIX of the Social Security Act), and except as otherwise provided in this subsection for drugs listed in the narrow therapeutic index, a prescription order for a drug designated by a trade or brand name shall be considered to be an order for the drug by its established or generic name, except when the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase 'medically necessary.' An initial prescription order for a drug listed in the narrow therapeutic drug index that does not contain the phrase 'medically necessary' shall be considered an order for the drug by its established or generic name, except that a pharmacy shall not substitute a generic or established name prescription drug for subsequent brand or trade name prescription orders of the same prescription drug without explicit oral or written approval of the prescriber given at the time the order is filled. Generic drugs shall be dispensed at a lower cost to the Medical Assistance Program rather than trade or brand-name drugs. Notwithstanding this subdivision to the contrary, the Secretary of Health and Human Services may prevent substitution of a generic equivalent drug, including a generic equivalent that is on the State maximum allowable cost list, when the net cost to the State of the brand-name drug, after consideration of all rebates, is less than the cost of the generic equivalent. As used in this subsection, 'brand name' means the proprietary name the manufacturer places upon a drug product or on its container, label, or wrapping at the time of packaging; and 'established name' has the same meaning as in section 502(e)(3) of the Federal Food, Drug, and Cosmetic Act, as amended, 21 U.S.C. § 352(e)(3). "4. Specialty drug provider network. - The Department of Health and Human Services shall work with specialty drug providers, manufacturers of specialty drugs, Medicaid recipients who are prescribed specialty drugs, and the medical professionals that treat Medicaid recipients who are prescribed specialty drugs to develop ways to ensure that best practices and the prevention of overutilization are maintained in the delivery and utilization of specialty drugs. "5. Lock controlled substances prescriptions into single pharmacy/provider. - The Department of Health and Human Services, Division of Medical Assistance, shall lock Medicaid enrollees into a single pharmacy and provider when the Medicaid enrollee's utilization of selected controlled substance medications meets the lock-in criteria approved by the North Carolina Physicians Advisory Group, as follows: "I. Enrollees may be prescribed selected controlled substance medications by only one prescribing physician and may not change the prescribing physician at any time without prior approval or authorization by the Division. "II. Enrollees may have prescriptions for selected controlled substance medications filled at only one pharmacy and may not change to another pharmacy at any time without prior approval or authorization by the Division. "5A. Prior authorization. - The Department of Health and Human Services shall not impose prior authorization requirements or other restrictions under the State Medical Assistance Program on medications prescribed for Medicaid recipients for the treatment of (i) mental illness, including, but not limited to, medications for schizophrenia, bipolar disorder, major depressive disorder or (ii) HIV/AIDS. Medications prescribed for the treatment of mental illness shall be included on the Preferred Drug List (PDL). The Department of Health and Human Services, Division of Medical Assistance, may initiate prior authorization for the prescribing of drugs specified for the treatment of mental illness by providers who fail to prescribe those drugs in accordance with indications and dosage levels approved by the federal Food and Drug Administration. The Department may require retrospective clinical justification for the use of multiple psychotropic drugs for a Medicaid patient. For individuals 18 years of age and under who are prescribed three or more psychotropic medications, the Department shall implement clinical edits that target inefficient, ineffective, or potentially harmful prescribing patterns. When such patterns are identified, the Medical Director for the Division of Medical Assistance and the Chief of Clinical Policy for the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services shall require a peer-to-peer consultation with the target prescribers. Alternatives discussed during the peer-to-peer consultations shall be based upon: "a. Evidence-based criteria available regarding efficacy or safety of the covered treatments; and "b. Policy approval by a majority vote of the North Carolina Physicians Advisory Group (NCPAG). "The target prescriber has final decision-making authority to determine which prescription drug to prescribe or refill. "6. Preferred Drug List. - The Department of Health and Human Services shall establish and implement a preferred drug list program under the Division of Medical Assistance. Medications prescribed for the treatment of mental illness shall be included on the Preferred Drug List (PDL). "The pharmaceutical and therapeutics committee of the Physician's Advisory Group (PAG) shall provide ongoing review of the preferred drug list, including the implementation of prior authorization on identified drugs. Members of the committee shall submit conflict of interest disclosure statements to the Department and shall have an ongoing duty to disclose conflicts of interest not included in the original disclosure. "The Department, in consultation with the PAG, shall adopt and publish policies and procedures relating to the preferred drug list, including the following: "I. Guidelines for the presentation and review of drugs for inclusion on the preferred drug list. "II. The manner and frequency of audits of the preferred drug list for appropriateness of patient care and cost-effectiveness. "III. An appeals process for the resolution of disputes. "IV. Such other policies and procedures as the Department deems necessary and appropriate. "The Department and the pharmaceutical and therapeutics committee shall consider all therapeutic classes of prescription drugs for inclusion on the preferred drug list, except medications for treatment of human immunodeficiency virus or acquired immune deficiency syndrome shall not be subject to consideration for inclusion on the preferred drug list. "The Department shall maintain an updated preferred drug list in electronic format and shall make the list available to the public on the Department's Internet Web site. "The Department shall (i) enter into a multistate purchasing pool; (ii) negotiate directly with manufacturers or labelers; (iii) contract with a pharmacy benefit manager for negotiated discounts or rebates for all prescription drugs under the medical assistance program; or (iv) effectuate any combination of these options in order to achieve the lowest available price for such drugs under such program. "The Department may negotiate supplemental rebates from manufacturers that are in addition to those required by Title XIX of the Social Security Act. The committee shall consider a product for inclusion on the preferred drug list if the manufacturer provides a supplemental rebate. The Department may procure a sole source contract with an outside entity or contractor to conduct negotiations for supplemental rebates. "The Secretary of the Department of Health and Human Services shall establish a Preferred Drug List (PDL) Policy Review Panel within 60 days after the effective date of this section. The purpose of the PDL Policy Review Panel is to review the Medicaid PDL recommendations from the Department of Health and Human Services, Division of Medical Assistance, and the Physician Advisory Group Pharmacy and Therapeutics (PAG P&T) Committee. "The Secretary shall appoint the following individuals to the review panel: (i) the Director of Pharmacy for the Division of Medical Assistance, (ii) a representative from the PAG P&T Committee, (iii) a representative from the Old North State Medical Society, (iv) a representative from the North Carolina Association of Pharmacists, (v) a representative from Community Care of North Carolina, (vi) a representative from the North Carolina Psychiatric Association, (vii) a representative from the North Carolina Pediatric Society, (viii) a representative from the North Carolina Academy of Family Physicians, (ix) a representative from the North Carolina Chapter of the American College of Physicians, (x) a representative from a research-based pharmaceutical company, (xi) a representative from a hospital-based pharmacy. "Individuals appointed to the Review Panel, except for the Division's Director of Pharmacy, shall serve only a two-year term. "After the Department, in consultation with the PAG P&T Committee, publishes a proposed policy or procedure related to the Medicaid PDL, the Review Panel shall hold an open meeting to review the recommended policy or procedure along with any written public comments received as a result of the posting. The Review Panel shall provide an opportunity for public comment at the meeting. After the conclusion of the meeting, the Review Panel shall submit policy recommendations about the proposed Medicaid PDL policy or procedure to the Secretary. "The Department may establish a Preferred Drug List for the North Carolina Health Choice for Children program and pursue negotiated discounts or rebates for all prescription drugs under the program in order to achieve the lowest available price for such drugs under such program. The Department may procure a sole source contract with an outside entity or contractor to conduct negotiations for these discounts or rebates. The PAG P&T Committee and Preferred Drug List Policy Review Panel will provide recommendations on policies and procedures for the NC Health Choice Preferred Drug List. "s. Incentive Payments as outlined in the State Medicaid Health Information Plan for Electronic Health Records. "t. Other mental health services. - Unless otherwise covered by this section, coverage is limited to the following: "1. Services as established by the Division of Medical Assistance in consultation with the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) when provided in agencies meeting the requirements and reimbursement is made in accordance with a State Plan developed by the Department of Health and Human Services, not to exceed the upper limits established in federal regulations. "2. For Medicaid-eligible adults, services provided by licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, certified clinical addictions specialists, and licensed clinical supervisors may be self-referred. "3. Payments made for services rendered in accordance with this subdivision shall be qualified providers in accordance with approved policies and the State Plan. Nothing in sub-sub-subdivisions 1. or 2. of this sub-subdivision shall be interpreted to modify the scope of practice of any service provider, practitioner, or licensee, nor to modify or attenuate any collaboration or supervision requirement related to the professional activities of any service provider, practitioner, or licensee. Nothing in sub-sub-subdivisions 1. or 2. of this sub-subdivision shall be interpreted to require any private health insurer or health plan to make direct third-party reimbursements or payments to any service provider, practitioner, or licensee. "Notwithstanding G.S. 150B-21.1(a), the Department of Health and Human Services may adopt temporary rules in accordance with Chapter 150B of the General Statutes further defining the qualifications of providers and referral procedures in order to implement this subdivision. Coverage policy for services established by the Division of Medical Assistance in consultation with the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services under sub-subdivision a. and sub-sub-subdivision b.2. of this subdivision shall be established by the Division of Medical Assistance. "u. Experimental/investigational medical procedures. - Coverage is limited to services, supplies, drugs, or devices recognized as standard medical care for the condition, disease, illness, or injury being treated as determined by nationally recognized scientific professional organizations or scientifically based federal organizations such as the Food and Drug Administration, the National Institutes of Health, the Centers for Disease Control, or the Agency for Health Care Research and Quality. "v. Clinical trials. - The Division of Medical Assistance shall develop clinical policy for the coverage of routine costs in clinical trial services for life-threatening conditions using resources such as coverage criteria from Medicare, NC State Health Plan, and the input of the Physicians Advisory Group. "w. Organ transplants. "(3) Never Events and Hospital Acquired Conditions (HACs) shall not be reimbursed. Medicaid will adhere to Medicare requirements for definition of events and conditions." For prior similar provisions, see Session Laws 2007-323, s. 10.36(d), as amended by Session Laws 2007-345, ss. 1-3, and as amended by Session Laws 2008-107, s. 10.10(b), and Session Laws 2009-451, s. 10.58(d). Medicaid - Rules, Reports, and Other Matters. - Session Laws 2011-145, s. 10.31(g), provides: "Rules, Reports, and Other Matters. - "Rules. - The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. The Department of Health and Human Services shall adopt rules requiring providers to attend training as a condition of enrollment and may adopt temporary or emergency rules to implement the training requirement. "Prior to the filing of the temporary or emergency rules authorized under this subsection with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments." For prior similar provisions, see Session Laws 2007-323, s. 10.36(g), and Session Laws 2009-451, s. 10.58(g). Editor's Note. - Session Laws 2000-69, s. 4, in part, provides: "Interpretation of Act. "(a) Additional Method. This act provides an additional and alternative method for the doing of the things it authorizes and is as supplemental and additional to powers conferred by other laws. Except as otherwise expressly provided, it does not derogate any powers now existing. "(b) Statutory References. References in this act to specific sections or Chapters of the General Statutes are intended to be references to those sections or Chapters as they may be amended from time to time by the General Assembly. "(c) Liberal Construction. This act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect its purposes." This section, as rewritten by Session Laws 2003-229, s. 2, effective July 1, 2003, is applicable to temporary and emergency rules adopted on or after that date and to permanent rules adopted on or after October 1, 2003. Session Laws 2003-229, s. 14, provides that nothing in the act shall be construed to limit or repeal any specific grant of temporary rule-making authority to an agency enacted by the General Assembly prior to July 1, 2003. Session Laws 2003-284, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2003'." Session Laws 2003-284, s. 10.19(s), provides: "The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments." Session Laws 2003-284, s. 35.1(c), provides: "Notwithstanding G.S. 150B-21.1, the Department of Environment and Natural Resources may adopt temporary rules to establish fees under G.S. 113-35(b)(3) , as amended by subsection (b) of this section, within six months after the effective date of this section." Session Laws 2003-284, s. 35.1 became effective on July 1, 2003. Session Laws 2003-284, s. 48.1, provides: "Parts 32 through 47 of this act do not affect the rights or liabilities of the State, a taxpayer, or another person arising under a statute amended or repealed by those parts before the effective date of its amendment or repeal; nor do they affect the right to any refund or credit of a tax that accrued under the amended or repealed statute before the effective date of its amendment or repeal." Session Laws 2003-284, s. 49.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2003-2005 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2003-2005 fiscal biennium." Session Laws 2003-284, s. 49.5, is a severability clause. Session Laws 2003-352, s. 11, provides: "In order to reduce costs associated with the assessment and cleanup of discharges and releases of petroleum from petroleum underground storage tanks, the Environmental Management Commission may adopt temporary and permanent rules to modify the testing requirements set out in 15A NCAC 2L.0115 (Risk-Based Assessment and Corrective Action for Petroleum Underground Storage Tanks). Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule." Session Laws 2003-413, s. 29, provides in part that, if House Bill 1151, 2003 Regular Session, becomes law, then the amendment to G.S. 150B-21.1(a2) made by s. 27 of the act is instead made to G.S. 150B-21.1(a)(8). House Bill 1151 is Session Laws 2003-229, which was approved on June 19, 2003. Session Laws 2003-427, ss. 1 and 2 provide: "Pursuant to G.S. 113A-118.1, the Coastal Resources Commission may adopt temporary and permanent rules to establish a general permit to allow the construction of offshore parallel sills made of stone or other suitable riprap materials for shoreline protection in conjunction with existing, created, or restored wetlands. The permit shall be applicable only where a shoreline is experiencing erosion in public trust areas and estuarine waters. The permit shall not apply to oceanfront shorelines or to waters and shorelines adjacent to the ocean hazard areas of environmental concern except that the permit may apply to those shorelines that exhibit characteristics of estuarine shorelines. Characteristics of estuarine shorelines include the presence of wetland vegetation, lower wave energy, and lower erosion rates than are generally characteristic of ocean erodible areas. Notwithstanding G.S. 150B-21.1(a), the authorization to adopt temporary rules pursuant to this section shall continue in effect until 1 July 2004. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1. "The fee for a general permit established by temporary rules pursuant to Section 1 of this act shall be one hundred dollars ($100.00). In adopting permanent rules pursuant to Section 1 of this act, the Coastal Resources Commission shall set a fee for the general permit as provided in G.S. 113A-119.1." Session Laws 2003-433, s. 4, provides: "The Environmental Management Commission shall adopt temporary and permanent rules to amend the North Carolina Administrative Code to incorporate the provisions of Section 1 of this act. Notwithstanding G.S. 150B-21.1, this act shall not be construed to authorize the Environmental Management Commission to adopt a temporary rule related to the subject matter of this act except as specifically provided by this section, and the Environmental Management Commission shall not be required to provide prior notice or a hearing to adopt the temporary rule required by this section. Reference to this section shall satisfy the requirement for a statement of finding of need for a temporary rule set out in G.S. 150B-21.1." Session Laws 2003-184, s. 3, amended this section by enacting a new subsection (a)(11); however, because of the rewrite of this section by Session Laws 2003-229, s. 2, the subsection was redesignated as (a1) at the direction of the Revisor of Statutes. As a result, the last paragraph of subsection (a) and former subsection (a1), as enacted by Session Laws 2003-229, s. 2, were redesignated as subsections (a2) and (a3), respectively, also at the direction of the Revisor of Statutes. Session Laws 2004-148, s. 3(a), which expires June 30, 2005, provides: "The Secretary of Transportation may adopt temporary rules in accordance with G.S. 150B-21.1 to implement the provisions of G.S. 136-28.1(k) governing the acceptance of bids by electronic means. The authority granted to the Secretary by this section shall expire when the permanent rules necessary to implement this provision are adopted." Session Laws 2005-276, s. 1.2, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2005'." Session Laws 2005-276, s. 46.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2005-2007 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2005-2007 fiscal biennium." Session Laws 2005-276, s. 46.5 is a severability clause. Session Laws 2006-66, s. 1.2, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2006'." Session Laws 2006-66, s. 10.3(e), as amended by Session Laws 2006-198, s. 1, provides: "Services and Payment Bases. - Funds appropriated for Medicaid services shall be expended in accordance with the following schedule of services and payment bases. All services and payments are subject to the language at the end of this subsection. Unless otherwise provided, services and payment bases will be as prescribed in the State Plan as established by the Department of Health and Human Services and may be changed with the approval of the Director of the Budget. "(1) Hospital inpatient. "(2) Hospital outpatient. - Eighty percent (80%) of allowable costs or a prospective reimbursement plan as established by the Department of Health and Human Services. "(3) Nursing facilities. - Nursing facilities providing services to Medicaid recipients who also qualify for Medicare must be enrolled in the Medicare program as a condition of participation in the Medicaid program. State facilities are not subject to the requirement to enroll in the Medicare program. Residents of nursing facilities who are eligible for Medicare coverage of nursing facility services must be placed in a Medicare-certified bed. Medicaid shall cover facility services only after the appropriate services have been billed to Medicare. The Division of Medical Assistance shall allow nursing facility providers sufficient time from the effective date of this act to certify additional Medicare beds if necessary. In determining the date that the requirements of this subdivision become effective, the Division of Medical Assistance shall consider the regulations governing certification of Medicare beds and the length of time required for this process to be completed. "(4) Physicians, certified nurse midwife services, nurse practitioners. - Fee schedules as development by the Department of Health and Human Services. "(5) Community Alternative Program, EPSDT Screens. - Payments in accordance with rate schedule developed by the Department of Health and Human Services. "(6) Home health and related services, durable medical equipment. - Payments according to reimbursement plans developed by the Department of Health and Human Services. "(7) Hearing aids. - Wholesale cost plus dispensing fee to provider. "(8) Rural health clinical services. - Provider-based, reasonable cost; non-provider-based, single cost reimbursement rate per clinic visit. "(9) Family planning. - Negotiated rate for local health departments. For other providers see specific services, e.g. hospitals, physicians. "(10) Independent laboratory and X-ray services. - Uniform fee schedules as developed by the Department of Health and Human Services. "(11) Ambulatory surgical centers. "(12) Private duty nursing, clinic services, prepaid health plans. "(13) Intermediate care facilities for the mentally retarded. "(14) Chiropractors, podiatrists, optometrists, dentists. "(15) Limitations on Dental Coverage. - Dental services shall be provided on a restricted basis in accordance with criteria adopted by the Department to implement this subsection. "(16) Medicare Buy-In. - Social Security Administration premium. "(17) Ambulance services. - Uniform fee schedules as developed by the Department of Health and Human Services. Public ambulance providers will be reimbursed at cost. "(18) Optical supplies. - Payment for materials is made to a contractor in accordance with 42 C.F.R. § 431.54(d). Fees paid to dispensing providers are negotiated fees established by the State agency based on industry charges. "(19) Medicare crossover claims. - The Department shall apply Medicaid medical policy to Medicare claims for dually eligible recipients. The Department shall pay an amount up to the actual coinsurance or deductible or both, in accordance with the State Plan, as approved by the Department of Health and Human Services. "(20) Physical therapy, occupational therapy, and speech therapy. - Services limited to EPSDT-eligible children. Payments are to be made only to qualified providers at rates negotiated by the Department of Health and Human Services. Physical therapy, occupational therapy, and speech therapy services are subject to prior approval and utilization review. "(21) Personal care services. "(22) Case management services. - Reimbursement in accordance with the availability of funds to be transferred within the Department of Health and Human Services. "(23) Hospice. "(24) Medically necessary prosthetics or orthotics. - In order to be eligible for reimbursement, providers must be licensed or certified by the occupational licensing board or the certification authority having authority over the provider's license or certification, or in the case of ocular prosthetists Board certified, licensed, or accredited in accordance with the requirements established by the Department. Medically necessary prosthetics and orthotics are subject to prior approval and utilization review. "(25) Health insurance premiums. "(26) Medical care/other remedial care. - Services not covered elsewhere in this section include related services in schools; health professional services provided outside the clinic setting to meet maternal and infant health goals; and services to meet federal EPSDT mandates. "(27) Pregnancy-related services. - Covered services for pregnant women shall include nutritional counseling, psychosocial counseling, and predelivery and postpartum home visits by maternity care coordinators and public health nurses. "(28) Drugs. - Reimbursements. Reimbursements shall be available for prescription drugs as allowed by federal regulations plus a professional services fee per month, excluding refills for the same drug or generic equivalent during the same month. Payments for drugs are subject to the provisions of this subdivision or in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. Payment of the professional services fee shall be made in accordance with the State Plan adopted by the Department of Health and Human Services, consistent with federal reimbursement regulations. The professional services fee shall be five dollars and sixty cents ($5.60) per prescription for generic drugs and four dollars ($4.00) per prescription for brand-name drugs. Adjustments to the professional services fee shall be established by the General Assembly. In addition to the professional services fee, the Department may pay an enhanced fee for pharmacy services. "Limitations on quantity. - The Department of Health and Human Services may establish authorizations, limitations, and reviews for specific drugs, drug classes, brands, or quantities in order to manage effectively the Medicaid pharmacy program, except that the Department shall not impose limitations on brand-name medications for which there is a generic equivalent in cases where the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase 'medically necessary'. In addition to the entities listed in subsection (a) of this section, the Department shall report to the Joint Legislative Commission on Governmental Operations on authorizations, limitations, and reviews established under this subparagraph, including limitations on monthly brand-name and generic prescriptions as well as restrictions on the total number of medications. The Department shall submit the report not later than May 1, 2006. "Dispensing of generic drugs. - Notwithstanding G.S. 90-85.27 through G.S. 90-85.31, or any other law to the contrary, under the Medical Assistance Program (Title XIX of the Social Security Act), and except as otherwise provided in this subsection for atypical antipsychotic drugs and drugs listed in the narrow therapeutic index, a prescription order for a drug designated by a trade or brand name shall be considered to be an order for the drug by its established or generic name, except when the prescriber has determined, at the time the drug is prescribed, that the brand-name drug is medically necessary and has written on the prescription order the phrase 'medically necessary'. An initial prescription order for an atypical antipsychotic drug or a drug listed in the narrow therapeutic drug index that does not contain the phrase 'medically necessary' shall be considered an order for the drug by its established or generic name, except that a pharmacy shall not substitute a generic or established name prescription drug for subsequent brand or trade name prescription orders of the same prescription drug without explicit oral or written approval of the prescriber given at the time the order is filled. Generic drugs shall be dispensed at a lower cost to the Medical Assistance Program rather than trade or brand-name drugs. As used in this subsection, 'brand name' means the proprietary name the manufacturer places upon a drug product or on its container, label, or wrapping at the time of packaging; and 'established name' has the same meaning as in section 502(e)(3) of the Federal Food, Drug, and Cosmetic Act as amended, 21 U.S.C. § 352(e)(3). "Prior authorization. - The Department of Health and Human Services shall not impose prior authorization requirements or other restrictions under the State Medical Assistance Program on medications prescribed for Medicaid recipients for the treatment of: (i) mental illness, including, but not limited to, medications for schizophrenia, bipolar disorder, and major depressive disorder, or (ii) HIV/AIDS. "(29) Other mental health services. - Unless otherwise covered by this section, coverage is limited to: "a. Services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) when provided in agencies meeting the requirements of the rules established by the Commission for Mental Health, Developmental Disabilities, and Substance Abuse Services and reimbursement is made in accordance with a State Plan developed by the Department of Health and Human Services not to exceed the upper limits established in federal regulations, and "b. For children eligible for EPSDT services provided by: "1. Licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, certified clinical addictions specialists, and certified clinical supervisors, when Medicaid-eligible children are referred by the Community Care of North Carolina primary care physician, a Medicaid-enrolled psychiatrist, or the area mental health program or local management entity, and "2. Institutional providers of residential services as defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services and approved by the Centers for Medicare and Medicaid Services (CMS) for children and Psychiatric Residential Treatment Facility services that meet federal and State requirements as defined by the Department. "c. For Medicaid-eligible adults, services provided by licensed or certified psychologists, licensed clinical social workers, certified clinical nurse specialists in psychiatric mental health advanced practice, and nurse practitioners certified as clinical nurse specialists in psychiatric mental health advanced practice, licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, licensed clinical addictions specialists, and licensed clinical supervisors, Medicaid-eligible adults may be self-referred. "d. Payments made for services rendered in accordance with this subdivision shall be to qualified providers in accordance with approved policies and the State Plan. Nothing in sub-subdivision b. or c. of this subdivision shall be interpreted to modify the scope of practice of any service provider, practitioner, or licensee, nor to modify or attenuate any collaboration or supervision requirement related to the professional activities of any service provider, practitioner, or licensee. Nothing in sub-subdivision b. or c. of this subdivision shall be interpreted to require any private health insurer or health plan to make direct third-party reimbursements or payments to any service provider, practitioner, or licensee. "e. The Department of Health and Human Services shall not enroll licensed psychological associates, licensed professional counselors, licensed marriage and family therapists, licensed clinical addiction specialists, and licensed clinical supervisors until all of the following conditions have been met: "1. The fiscal impact of payments to these qualified providers has been projected; "2. Funding for any projected requirements in excess of budgeted Division of Medical Assistance funding has been identified from within State funds appropriated to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to support area mental health programs or county programs, or identified from other sources; and "3. Approval has been obtained from the Office of State Budget and Management to transfer these State or other source funds from the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services to the Division of Medical Assistance. Upon approval and implementation, the Department of Health and Human Services shall, on a quarterly basis, provide a status report to the Office of State Budget and Management and the Fiscal Research Division. "Notwithstanding G.S. 150B-21.1(a), the Department of Health and Human Services may adopt temporary rules in accordance with Chapter 150B of the General Statutes further defining the qualifications of providers and referral procedures in order to implement this subdivision. Coverage policy for services defined by the Division of Mental Health, Developmental Disabilities, and Substance Abuse Services under sub-subdivisions a. and b.2 of this subdivision shall be established by the Division of Medical Assistance." Session Laws 2006-66, s. 10.3(h), provides: "Rules, Reports, and Other Matters. - "(1) Rules. - The Department of Health and Human Services may adopt temporary or emergency rules according to the procedures established in G.S. 150B-21.1 and G.S. 150B-21.1A when it finds that these rules are necessary to maximize receipt of federal funds within existing State appropriations, to reduce Medicaid expenditures, and to reduce fraud and abuse. Prior to the filing of these temporary or emergency rules with the Rules Review Commission and the Office of Administrative Hearings, the Department shall consult with the Office of State Budget and Management on the possible fiscal impact of the temporary or emergency rule and its effect on State appropriations and local governments. "(2) Changes to Medicaid program; reports. - The Department shall report on any change it anticipates making in the Medicaid program that impacts the type or level of service, reimbursement methods, or waivers, any of which require a change in the State Plan or other approval by the Centers for Medicare and Medicaid Services (CMS). The reports shall be provided at the same time they are submitted to CMS for approval. In addition to the entities listed in subsection (a)(4) of this section, the report shall be submitted to the Joint Legislative Health Care Oversight Committee." Session Laws 2006-66, s. 28.3, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2006-2007 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2006-2007 fiscal year." Session Laws 2006-66, s. 28.6 is a severability clause. Session Laws 2006-240, s. 5, provides: "The Governor's Commission on Early Childhood Vision Care may adopt temporary rules in accordance with G.S. 150B-21.1 to implement this act." Session Laws 2006-264, s. 52(b), provides: "This section constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1(a). The Department of Labor shall adopt within 30 days of the effective date of this section temporary rules to clarify when employees who are subject to Article 20 of Chapter 95 of the General Statutes may utilize a preliminary screening procedure involving a single-use test device consistent with this section." Session Laws 2006-264, s. 102(a) and (b), provides: "(a) The Department of Labor shall adopt rules in connection with its requirements regarding fall protection for tower climbers as follows: "(1) With regard to employer-provided rescue procedures, employers must ensure that at least two trained and designated rescue employees are on-site when employees are working at heights over six feet on the tower, except that where only two employees are on-site, then an employer may comply with this requirement if one employee is a trained and designated rescue employee and one employee has been employed for less than nine months and has received documented orientation from the employer outlining steps to take in an emergency. "(2) With regard to third-party-provided rescue procedures, the employer must obtain verification from the third-party rescue service that the service is able to respond to a rescue summons in a timely manner and that the service is proficient in rescue-related tasks and equipment needed to rescue climbers from elevated heights on communication structures. The employer must also provide the selected third-party rescue service with contact information regarding the tower site and allow the service to conduct whatever preparation for rescue it deems necessary. "(b) Notwithstanding G.S. 150B-21.1(a), the Department of Labor may adopt the rules provided for by this section as temporary rules within 270 days after the effective date of this act." Session Laws 2009-217, s. 5, provides: "Notwithstanding G.S. 150B-21.1, upon the effective date of this act, the Department of Labor shall immediately adopt a temporary rule that is consistent with the requirements of Section 6 of this act without prior notice or hearing. When the Department adopts the rule, it shall submit the rule and a copy of this act to the Codifier of Rules. Within two business days after submission of the rule, the Codifier must review the rule to determine whether the rule as adopted is consistent with the requirements of this act. If the Codifier of Rules finds that the rule as adopted is consistent with the requirements of this act, the Codifier shall notify the Department and enter the rule in the North Carolina Administrative Code on the sixth business day following approval by the Codifier of Rules. The rule shall become effective and shall expire in accordance with G.S. 150B-21.1(d)." The effective date of this act is June 30, 2009. Session Laws 2009-217, s. 6, provides: "The Department of Labor shall adopt a temporary rule in accordance with the procedure set forth in Section 5 of this act. The temporary rule shall establish the scope of application for the Department's rules governing the standards for cranes and derricks in a manner substantially identical to the rule disapproved by this act, except that the temporary rule shall include an exclusion for service trucks with mobile lifting devices designed specifically for use in the power line and electric service industries such as digger derricks (radial boom derricks)." Session Laws 2011-145, s. 6.3(b), provides: "Notwithstanding G.S. 150B-21.1A(a), an agency may adopt an emergency rule in accordance with G.S. 150B-21.1A to establish or increase a fee as authorized by this act if the adoption of a rule would otherwise be required under Article 2A of Chapter 150B of the General Statutes." Session Laws 2011-145, s. 1.1, provides: "This act shall be known as the 'Current Operations and Capital Improvements Appropriations Act of 2011.'" Session Laws 2011-145, s. 32.2, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2011-2013 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2011-2013 fiscal biennium." Session Laws 2011-145, s. 32.5 is a severability clause. Session Laws 2011-398, s. 4, which amended subsection (a3), is applicable to rules adopted on or after October 1, 2011. Session Laws 2011-398, s. 62 is a severability clause. Session Laws 2011-401, s. 1.10(c), as amended by Session Laws 2015-238, s. 2.7, provides: "The Department of Commerce, Division of Employment Security, shall adopt rules and regulations in accordance with Article 2A of Chapter 150B of the General Statutes. Any existing rule that has not been readopted and filed with the Rules Review Commission by May 20, 2015, shall expire." Session Laws 2013-294, s. 11, provides: "Notwithstanding G.S. 150B-21.2, the Industrial Commission shall adopt permanent rules in accordance with the provisions of this act using the procedure and time lines for temporary rules set forth in G.S. 150B-21.1(a3). Rules adopted by the Industrial Commission in accordance with this section shall be subject to review by the Rules Review Commission as provided by G.S. 150B-21.1(b); provided however, that if the rules are approved by the Rules Review Commission, they shall become effective as provided by G.S. 150B-21.3(b). Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(h) or G.S. 150B-21.4. The Industrial Commission shall consult with the Office of Administrative Hearings to ensure that rules adopted in accordance with this section are submitted to the Rules Review Commission in time to be eligible for legislative disapproval in the 2014 Regular Session of the 2013 General Assembly. The rules of the Industrial Commission that were in effect on the effective date of S.L. 2011-287 shall remain in effect with regard to rules disapproved by Sections 1 and 2 of this act until rules adopted to replace the disapproved rules become effective pursuant to this section." Session Laws 2013-413, s. 61(b), provides: "Except as otherwise provided, this act is effective when it becomes law [August 23, 2013]." Session Laws 2013-413, s. 60(c), had provided that: "This act becomes effective July 1, 2015." Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to "This act" with the words "This Part." Session Laws 2013-413, s. 61(a), is a severability clause. At the direction of the Revisor of Statutes, the reference in subdivision (a)(10) to "Article 14 of Chapter 143B " has been changed to "Article 15 of Chapter 143B " to conform to the renumbering of that Article. Session Laws 2020-3, s. 5, is a severability clause. Effect of Amendments. - Session Laws 2003-184, s. 3, effective June 12, 2003 and expiring July 1, 2005, added subsection (a1)[(a)(16)]. See Editor's note. Session Laws 2004-156, s. 1, effective August 2, 2004, in subdivision (a)(6), substituted "a rule establishing review criteria as authorized by G.S. 131E-183(b) to complement" for "the rule to implement" and added the language beginning "and the proposed rule" at the end; redesignated subsection (a1) as subdivision (a)(16); rewrote subdivision (a)(16); inserted the subsection designation and the second sentence in the subsection designated as (a4); and inserted the subsection (b1), (b2), (b3) and (c1) designations. Session Laws 2011-398, s. 4, effective October 1, 2011, and applicable to rules adopted on or after that date, deleted "at least 30 business days prior to adopting a temporary rule" following "provided by law" in the introductory paragraph of subsection (a3); and added "At least 30 business days prior to adopting a temporary rule" in subdivisions (a3)(1) and (a3)(2). Session Laws 2015-241, s. 7A.4(ee), effective September 18, 2015, in subdivision (a)(10), inserted "State" near the beginning and substituted "Article 14 of Chapter 143B " for "Article 3D of Chapter 147 ." Session Laws 2015-264, s. 22, effective October 1, 2015, repealed subdivision (a)(12). Session Laws 2020-3, s. 4.25(a), effective retroactively to March 10, 2020, added the second sentence in subdivision (a3)(4).