CORRECTED-House Health and Human Services Committee 11/29/11

This morning the House Committee on Health and Human Services met on short notice to reconsider H433, Local Human Services Administration. This bill previously passed the Committee in its fourth edition in June after much discussion. Another version, edition 3, was passed in the full Senate. The legislation would allow NC counties to consolidate several human services functions under a single authority, including: the current functions of health departments; departments of social services; and area mental health, developmental disabilities, and substance abuse services. Wake and Mecklenberg Counties already have this authority.

The Committee decided today to go back to the Senate-passed third edition in an effort to have the bill ratified today, since the Senate recessed last night and will not consider any more bills during this mini-session. Democrats in the Committee raised concerns over the process by which the change was made, the precedent of allowing the Senate to dictate the substance of bills passed by the House, and about the removal of certain provisions agreed to in the fourth edition of the bill. Notably, the fourth edition included: a provision allowing county commissioners to subject employees of the consolidated agencies to the State Personnel Act, an exemption for any hospital authority assigned to provide public health services, an incentive program providing monetary incentives for public health improvement, and changes to the list of “essential public health services” under 130A-1.1(b).

The bill failed on a procedural vote on the House floor. Expect this bill to come back in February.

Joint Legislative Oversight Committee on the Department of Health and Human Services

The HHS Oversight Committee met November 8 to get updates from the Department of Health and Human Services on a number of issues important to people with disabilities in NC. A great deal of the time was spent on efforts to meet the budget requirements imposed by the legislature this summer. Secretary Cansler reported the current shortfall for Medicaid is $139 million. As he has said before, Cansler indicated that the only way to fill that gap without additional money is to cut provider rates by 18% for the last three or four months of the fiscal year or to eliminate all Medicaid optional services (except pharmacy) during the same time period. No cuts to services could be implemented immediately because such changes require approval of federal authorities. Perhaps the brightest spot in the session was that Chairman Nelson Dollar indicated the legislature found both of those possibilities untenable and would find a way to avoid them. No word on where the money would come from. DHHS’s responses to questions posed by committee members is available at the committee website here.
Dr. Beth Melcher gave the Department’s update on the implementation of the 1915 b/c Medicaid waiver. She indicated the process is moving forward, with the identification of the entities that will eventually become the Managed Care Organizations running the waiver programs completed in October. Eleven such organizations have been identified. Those organizations will either subsume or partner with other LMEs to provide services statewide.

Health Insurance Exchange Proposed Rule Published

Yesterday, the US Department of Health and Human Services (HHS) released two long-awaited proposed rules relating to the establishment of Exchanges, state-based marketplaces where individuals and small businesses can purchase health insurance coverage. One proposed regulation sets forth the minimum functions of an Exchange and the certification of qualified health plans (QHPs) - online here. In a related proposed rule, HHS establishes a risk adjustment system to assure health care coverage for higher-risk populations - online here.


Additional regulations related to Exchanges will be issued at a later date. These future regulations will address issues including: standards for individual eligibility for participation in an Exchange, the appeals process for eligibility determinations, the definition of essential health benefits, payments of the premium tax credit, and quality standards for Exchanges and QHPs issuers.

Under the proposed rules, the marketplaces will have to post information online about price and quality, offer specific standardized plans and set an annual open enrollment period. Despite lobbying from consumer groups, insurers will be allowed to hold seats on exchange oversight boards and states will not be required to negotiate with plans on price or benefit offerings.  Although there is a deadline of Jan. 1, 2013 for states to show they will have an exchange up and running a year later, the proposal offers some wiggle room: States showing progress will be granted "conditional approval."  HHS is seeking public comment over the next 75 days.

Upcoming Federal Regulations

A number of federal regulatory agencies have published their Semi-Annual Regulatory Agendas.  A Semi-Annual Regulatory Agenda is where the federal regulatory agencies are supposed to notify the public about their plans for regulatory actions over the next year or two. The “Timetable” dates are aspirational but informative.

From the Access Board’s Semi Annual Regulatory Agenda: It appears that a Notice for Proposed Rulemaking (NPRM) on accessible medical equipment will be published in the Federal Register fairly soon and some regulations that have had the comment period completed for some time are scheduled for publication at the end of the year.

• Accessibility Guidelines for Shared Use Paths: This regulation will establish accessibility guidelines for shared use paths (typically designed for bicyclists and pedestrians and are used for recreation and transportation purposes) to ensure that they are accessible to and usable by individuals with disabilities. The guidelines are expected to be adopted as enforceable standards in separate rulemakings by the Department of Justice and the Department of Transportation for public and private entities subject to the American with Disabilities Act and Section 504 of the Rehabilitation Act, which prohibit discrimination on the basis of disability. The General Services Administration, Department of Defense, and Department of Housing and Urban Development are also expected to adopt the guidelines as enforceable standards for facilities constructed or altered with federal funds that are subject to the Architectural Barriers Act. (Advanced Notice of Proposed Rulemaking (ANPRM) 3/28/2011, Comment Period ended 6/27/2011)
• Accessibility Standards for Medical Diagnostic Equipment: This regulation will establish minimum technical criteria to ensure that medical equipment used for diagnostic purposes by health professionals in (or in conjunction with) physician's offices, clinics, emergency rooms, hospitals, and other medical settings is accessible to and usable by individuals with disabilities. (NPRM projected sometime in July, 2011 and comment period ending September, 2011)
• Americans With Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities: Public Rights-of-Way:  This regulation will amend the accessibility guidelines for the Americans With Disabilities Act (ADA) and the Architectural Barriers Act to include requirements for public rights-of-way. (NPRM projected July, 2011)
•  Americans With Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles: This regulation will revise and update the accessibility guidelines for transportation vehicles subject to the Americans With Disabilities Act. (NPRM 07/26/2010, Comment Period End 11/23/2010, Final Action projected December 2011)
• Americans With Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles: Passenger Vessels: This regulation will amend the Americans With Disabilities Act (ADA) Accessibility Guidelines for Transportation Vehicles to include additional requirements for ferries, excursion boats, and other passenger vessels. (ANPRM 11/26/2004, NPRM projected December 2011)
• Architectural Barriers Act (ABA) Accessibility Guidelines for Outdoor Developed Areas: This regulation will establish accessibility guidelines for outdoor developed areas designed, constructed, or altered by Federal agencies subject to the Architectural Barriers Act. (NPRM 06/20/2007,  Final Action projected December 2011)
•  Telecommunications Act Accessibility Guidelines; Electronic and Information Technology Accessibility Standards: This regulation will revise and update the accessibility guidelines for telecommunications products subject to section 255 of the Telecommunications Act of 1996, and accessibility standards for electronic and information technology subject to section 508 of the Rehabilitation Act of 1973, as amended. (ANPRM 03/22/2010, ANPRM Comment Period End 06/21/2010, NPRM projected December 2011 )

From the HUD Semi-Annual Regulatory Agenda:

• Supportive Housing for the Elderly and Persons With Disabilities: This proposed rule would amend HUD's regulations governing capital advances for the following two programs: Section 202 Supportive Housing for the Elderly and section 811 Supportive Housing for People With Disabilities. This proposed rule will provide the mixed finance regulations with more flexibility in order to attract private capital and expertise to the construction of supportive housing for the elderly and disabled. The proposed regulatory changes will streamline the use of low income tax credits as well as funding from other sources. These proposed amendments will permit the mixed finance program to expedite the development of needed affordable housing projects. NPRM projected 11/00/2011.
•  Multi-Family Housing Service Coordinators : This proposed rule would promulgate regulations for the Service Coordinators in multifamily housing development. Service coordinators provide assistance to elderly and disabled families in and in the vicinity of HUD-assisted rental housing developments. The regulations would establish requirements related to service coordinator qualifications, eligible funding sources, and eligible activities. NPRM projected 12/00/2011.
• Affirmatively Furthering Fair Housing: This rule would provide fair housing performance standards for the requirement to affirmatively furthering fair housing. The Department seeks to foster effective fair housing strategies and to provide clear guidance to local communities, public housing agencies, and assisted housing providers to help them in their efforts to responsibly identify and solve fair housing problems, as these recipients strive to achieve equal opportunity in housing for all. To that end, the rule is intended to provide specific standards and the bases upon which these requirements would be measured--both for purposes of receiving HUD funds and to aid the Department in determining that recipients are in compliance with applicable requirements. NPRM projected 12/00/2011.
• Nondiscrimination Based on Disability in Multi-Family Homeownership Projects: This rule would revise HUD's accessibility regulations applicable to multifamily homeownership projects receiving HUD federal financial assistance to achieve three primary purposes. First, the proposed rule would amend the definition of "multifamily housing project" to provide that the term includes all multifamily housing projects funded by HUD that contain five or more dwelling units regardless of whether the units are rental units or homeownership units. Second, the proposed rule would require the construction and alteration of multifamily housing projects containing homeownership units for sale to meet the same accessibility requirements as the construction and alteration of rental units. Third, the proposed rule would require that recipients selling homeownership units with accessible features undertake marketing and outreach efforts, and provide preferences to qualified persons with disabilities who need the features of the units. These proposed changes are designed to ensure that multifamily housing constructed or altered for homeownership with HUD funds includes units that have accessible features, thereby ensuring that HUD and recipients of HUD funds meet their obligations to make available affordable homeownership housing for persons with disabilities. NPRM projected 12/00/2011.
• Equal Access to Housing in HUD Programs--Regardless of Sexual Orientation or Gender Identity:  Through this final rule, HUD strives to ensure that its core programs are open to all Americans regardless of sexual orientation or gender identity. As the nation's housing agency, HUD programs are designed and administered to meet the national goal of a decent home and suitable living environment for every American. It is HUD's responsibility to ensure that all otherwise eligible organizations, entities, individuals, and families have equal access to HUD programs and have the opportunity to compete fairly for HUD funds without being subject to arbitrary exclusion. There is evidence, however, that lesbian, gay, and bisexual, and transgender (LGBT) individuals and families are arbitrarily excluded from some housing opportunities. NPRM 01/25/2011,NPRM Comment Period End 03/25/2011, Final Action projected 09/00/2011.
• Standards Governing Harassment Under the Fair Housing Act: The proposed rule would amend HUD's Fair Housing Regulations to establish standards that the Department will use in harassment cases under the Fair Housing Act. The Department seeks to provide clear guidance for the benefit of housing consumers and providers, as well as legal practitioners for evaluating sexual harassment claims under the Fair Housing Act.  NPRM projected 12/00/2011.
• Implementation of the Fair Housing Act--Disparate Impact: This proposed rule would harmonize existing standards for determining when a housing practice with a discriminatory effect violates the Fair Housing Act. The proposed rule would also discuss the liability standards where a facially neutral housing practice has a discriminatory effect.  NPRM projected 12/00/2011.
• Economic Opportunities for Low- and Very Low-Income Persons: This proposed rule would revise HUD's regulations found at 24 CFR part 135, which ensure that employment, training, and contracting opportunities generated by certain HUD financial assistance shall, to the greatest extent feasible, and consistent with existing Federal, State, and local laws and regulations, be directed to low- and very low-income persons, particularly those who are recipients of Government assistance for housing and to business concerns that provide economic opportunities to these persons. Part 135 was last revised to incorporate the statutory amendments of the Housing and Community Development Act of 1992. This proposed rule will update part 135 to: (1) Reflect certain changes in the design and implementation of HUD programs that are subject to the section 3 regulations; (2) clarify the obligations of covered recipient agencies; and (3) simplify the Department's section 3 complaint processing procedures.  NPRM projected 01/00/2012.

DOJ's Semi-Regulatory Agenda: The DOJ's timetable is usually more aspirational than most but it does appear that several items are hopefully moving in the regulatory process - e.g., the regulations to implement the revised definition of disability under the 2008 ADAAA have a deadline of November 2011. Interestingly, the deadlines for the four ADA Title II & III NPRMs on Equipment and Furniture, NextGen 9-1-1, Accessibility of Websites and Movie Captioning have been given different months for issuance of an NPRM, which may indicate that DOJ did heed the some of the commenters at the public hearings DOJ held, at which commenters urged that DOJ should move forward with the regulations that can be issued quickly and not hold up the other more contentious and difficult ones in an effort to get them all out at once. Unfortunately, the Web Accessibility NPRM has been changed to a Long Term Item and is not scheduled for publication until December 2012.

• Amendments to Coordination of Enforcement of Nondiscrimination in Federally Assisted Programs and Implementation of Executive Order 12250: In 1988, the Civil Rights Restoration Act (CRRA) added definitions of "program or activity" and "program" to title VI. The added definitions were designed to clarify the broad scope of coverage of recipients' programs or activities under these statutes. In a joint rulemaking described at RIN 1190-AA49, and published in the Federal Register on August 26, 2003, the Department of Justice and other Federal agencies conformed their regulations to the CRRA. In the rulemaking described under this RIN (1190-AA52) the Department of Justice proposes to make conforming amendments to its coordination regulations concerning agency enforcement of title VI of the Civil Rights Act of 1964, 28 CFR 42.401 to 42.415. The proposed amendments explicitly incorporate the CRRA's definitions of "program or activity" and "program" into the Department's title VI coordination regulations.  NPRM 09/00/2011, NPRM Comment Period End 11/00/2011
• Implementation of the ADA Amendments Act of 2008: The Department of Justice is amending its regulations implementing section 504 of the Rehabilitation Act of 1973, as amended, 28 CFR part 39 and part 42, subpart G, and its regulation implementing E.O. 12250, 28 CFR part 41, to reflect statutory amendments to the definition of disability enacted in the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (Sep. 25, 2008). The ADA Amendments Act took effect on January 1, 2009. The ADA Amendments Act revised 29 U.S.C. section 705, to make the definition of disability used in the nondiscrimination provisions in title V of the Rehabilitation Act consistent with the amended ADA requirements. These amendments (1) Add illustrative lists of "major life activities," including "major bodily functions," that provide more examples of covered activities and covered conditions than are now contained in agency regulations (sec. 3[2]); (2) clarify that a person who is "regarded as" having a disability does not have to be regarded as being substantially limited in a major life activity (sec. 3[3]); and (3) add rules of construction regarding the definition of disability that provide guidance in applying the term "substantially limits" and prohibit consideration of mitigating measures in determining whether a person has a disability (sec. 3[4]). The Department anticipates that these changes will be published for comment in a proposed rule within the next 12 months. During the drafting of these revisions, the Department will also review the currently published rules to ensure that any other statutory changes in the Rehabilitation Act have been properly addressed in these regulations. NPRM projected 11/00/2011.
• Implementation of the ADA Amendments Act of 2008 (Title II and Title III of the ADA):  The Department of Justice is amending its regulations implementing title II and title III of the Americans with Disabilities Act (ADA), 28 CFR part 35 and 28 CFR part 36, to implement changes to the ADA enacted in the ADA Amendments Act of 2008, Public Law 110-325, 122 Stat. 3553 (Sept. 25, 2008). The ADA Amendments Act took effect on January 1, 2009. The ADA Amendments Act amended the Americans With Disabilities Act, 42 U.S.C. 12101, et seq., to clarify terms within the definition of disability and to establish standards that must be applied to determine if a person has a covered disability. These changes are intended to mitigate the effects of the Supreme Court's decisions in Sutton v. United Airlines, 527 U.S. 471 (1999), and Toyota Motor Manufacturing v. Williams, 534, U.S. 184 (2002). Specifically, the ADA Amendments Act (1) Adds illustrative lists of "major life activities," including "major bodily functions," that provide more examples of covered activities and covered conditions than are now contained in agency regulations (sec. 3[2]); (2) clarifies that a person who is "regarded as" having a disability does not have to be regarded as being substantially limited in a major life activity (sec. 3[3]); and (3) adds rules of construction regarding the definition of disability that provide guidance in applying the term "substantially limits" and prohibit consideration of mitigating measures in determining whether a person has a disability (sec. 3[4]).  NPRM projected 11/00/2011.
• Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture: Title II of the ADA applies to services, programs, or activities of public entities within the meaning of 42 U.S.C. 12133(1)(A). The program accessibility requirement of title II mandates public entities to operate each service, program, or activity so that, when viewed in its entirety, the service, program, or activity is readily accessible to and usable by individuals with disabilities, subject to a defense of fundamental alteration or undue burden (28 CFR 35.150[a]). Section 35.150(b) specifies that such entities may meet their obligation to make each program accessible to individuals with disabilities through the "redesign of equipment." Title II entities also must ensure that communications with individuals with disabilities are as effective as communications with others and provide appropriate auxiliary aids and services where necessary to ensure that individuals with disabilities have an equal opportunity to participate in and benefit from a service, program, or activity (28 CFR 35.160). Title III of the ADA applies to persons who own, lease or lease to, or operate places of public accommodation (42 U.S.C. 12182[a]). Public accommodations discriminate against individuals with disabilities when they enact discriminatory policies or practices, or fail to remove barriers or make requested reasonable modifications in order to accommodate an individual's disability, unless barrier removal is not readily achievable or a modification would fundamentally alter the nature of the business (see 28 CFR 36.304 [barrier removal] and 36.302[a][reasonable modification]). Public accommodations also must ensure that no individuals with disabilities are excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids and services, unless taking such steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or result in an undue burden (28 CFR 36.303[a]). Some types of equipment and furniture are covered specifically by the Department's adoption of the 1991 ADAAG as the ADA Standards for Accessible Design. Equipment and furniture may also be covered by other regulatory provisions including reasonable modifications, 28 CFR 36.302; auxiliary aids, 28 CFR 36.303; and barrier removal, 28 CFR 36.304. While some types of fixed equipment and furniture are explicitly covered by the 1991 Standards, there are no specific provisions in the regulations governing the accessibility of equipment and furniture that are not fixed. See 28 CFR pt. 36, app. A. (Automatic Teller Machines (ATMs) and Fixed or Built-in Seating or Tables). To the extent that the ADA standards apply requirements for fixed equipment and furniture, the Department will look to those standards for guidance on accessibility standards for equipment and furniture that are not fixed. Accessible equipment and furniture is often critical to an entity's ability to provide a person with a disability equal access to its services. Changes in technology have resulted in the development and improved availability of accessible equipment and furniture that benefit individuals with disabilities. Consequently, it is easier now to specify appropriate accessibility standards for such equipment and furniture, as the Access Board has done for several types of fixed equipment and furniture, including ATMs, washing machines, dryers, tables, benches, and vending machines. See sections 903, 902, 707, 611, and 228 of the ADA/ABA Accessibility Guidelines. ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM projected 12/00/2011.
• Nondiscrimination on the Basis of Disability in State and Local Government Services; Next Generation 9-1-1: In 1991, the Department of Justice published a regulation to implement title II of the Americans With Disabilities Act of 1990 (ADA). That regulation includes the requirement that public safety answering points (PSAPs) provide direct access to persons with disabilities who use analog telecommunication devices for the deaf (TTYs). 28 CFR 35.162. On July 26, 2010, the Department published an advance notice of proposed rulemaking (ANPRM) to address in what manner PSAPs should be required to make changes in communication technology to reflect developments that have occurred since the publication of the 1991 regulation. Many individuals with disabilities now use the Internet and wireless text devices as their primary modes of telecommunications. At the same time, PSAPs are considering and planning to shift from analog telecommunications technology to new Internet-Protocol (IP)-enabled Next Generation 9-1-1 services (NG 9-1-1) that will provide voice and data (such as text, pictures, and video) capabilities. This ANPRM seeks information on possible revisions to the Department's regulation to ensure direct access to NG 9-1-1 services for individuals with disabilities.ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM 09/00/2011.
• Nondiscrimination on the Basis of Disability; Accessibility of Web Services of State and Local Government Entities and Public Accommodations: The Department of Justice is considering proposed revisions to the regulations implementing Title III of the Americans with Disabilities Act (ADA) in order to provide specific guidance on the obligations of public accommodations to make goods, services, facilities, privileges, accommodations, or advantages they offer via the Internet, specifically at sites on the World Wide Web (Web), accessible to individuals with disabilities. The Department is also considering revising the ADA's Title II regulations to provide specific guidance on the obligations of public entities to make services, programs, or activities offered to the public via the Web accessible.  ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM 12/00/2012.
•  Nondiscrimination on the Basis of Disability; Movie Captioning and Video Description: On July 26, 1991, the Department of Justice published a final rule implementing title III of the Americans with Disabilities Act of 1990 (ADA). Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation-as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)-to comply with the ADA Standards (42 U.S.C. 12181–89). Title III makes it unlawful for places of public accommodation, such as movie theaters, to discriminate against an individual in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation (42 U.S.C. 12182[a]). Moreover, title III prohibits places of public accommodation from affording an unequal or lesser service to individuals or classes of individuals with disabilities than is offered to other individuals (42 U.S.C. 12182(b)(1)(A)(ii)). Title III requires places of public accommodation to take "such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden," (42 U.S.C. 12182(b)(2)(A)(iii)). The statute defines auxiliary aids to include "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments" and "taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments," (42 U.S.C. 12103(1)(A)-(B)). The Department's title III regulation specifically lists open and closed captioning and audio recordings and other effective methods of making aurally and visually delivered materials available to individuals with hearing and visual impairments as examples of auxiliary aids and services that should be provided by places of public accommodations, 28 CFR 36.303(b)(1)-(2), unless the public accommodation can demonstrate that providing such aids and services would fundamentally alter the nature of the good or service being offered or would result in an undue burden (28 CFR 36.303(a)). Because, in pertinent part, the legislative history of title III stated that "[o]pen-captioning of feature films playing in movie theaters, is not required by this legislation," H.R. Rep. No. 101-485 (II), at 108 (1990), S. Rep. No. 101-116 at 64 (1989), the Department stated in its 1991 rule that "[m]ovie theaters are not required to present open-captioned films," 56 FR 35544, 35567 (July 26, 1991). The Department was silent regarding closed captioning and video description in movie theaters. The Department noted, however, that "other public accommodations that impart verbal information through soundtracks on films, video tapes, or slide shows are required to make such information accessible to persons who are deaf or hard of hearing. Captioning is one means to make the information accessible to individuals with disabilities." Since 1991, there have been many technological advances in the area of closed captioning and video description for first-run movies. In the legislative history of the ADA, the House Committee stated that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available to individuals with disabilities" and that "[s]uch advances may require public accommodations to provide auxiliary aids and services in the future which today would not be required because they would be held to impose undue burdens on such entities." H.R. Rep. No. 101-485 (II), at 108. On June 17, 2008, the Department issued a Notice of Proposed Rulemaking (NPRM) to adopt the revised ADA Standards and, in pertinent part, revise the title III regulation. 73 FR 34508. In that NPRM, the Department stated that it was considering options under which it might require that movie theater owners or operators exhibit movies that are captioned for patrons who are deaf or hard of hearing and movies that provide video (narrative) description for patrons who are blind or have low vision. The Department received numerous comments urging the Department to issue captioning and video description regulations under the ADA. Rather than using these comments to formulate a final rule, however, the Department decided to issue a supplemental ANPRM for three main reasons. First, the Department wished to obtain more information regarding several issues raised by commenters that were not contemplated at the time the 2008 NPRM was published. Second, the Department sought public comment on several technical questions that arose from the research the Department undertook to address some of the issues raised by commenters to the original NPRM. Finally, in the two years that have passed since issuance of the 2008 NPRM, the Department was aware that movie theater owners and operators, particularly major movie theater owners and operators, either have entered into, or had plans to enter into, agreements to convert to digital cinema. However, during this same time period, the United States' economy, and the profitability of many public accommodations, experienced significant setbacks. The Department wished to learn more about the status of digital conversion, concrete projections regarding if and when movie theater owners and operators, both large and small, expected to exhibit movies using digital cinema, when such movie theater owners and operators expected to implement digital cinema, by percentages, in their theaters, and any relevant protocols, standards, and equipment that have been developed regarding captioning and video description for digital cinema. In addition, the Department sought information regarding whether, in the last two years, other technologies or areas of interest (e.g., 3D) have developed or are in the process of development that either would replace or augment digital cinema or make any regulatory requirements for captioning and video description more difficult or expensive to implement.ANPRM 07/26/2010, ANPRM Comment Period End 01/24/2011, NPRM 10/00/2011.

Department of Transportation Semi-Annual Regulatory Agenda

• Transportation for Individuals with Disabilities--Miscellaneous Amendments: This rulemaking would amend several regulations regarding rail station platform standards, reasonable modifications of policies and procedures, and pedestrian access; it would also codify existing DOT procedures for issuing interpretations and guidance. NPRM Comment period 2006, Final Rule projected 08/00/2011.
•  Carrier-Supplied Medical Oxygen, Service Animals, and Accessibility of Carrier Websites, Kiosks, and In-Flight Entertainment Systems: This rulemaking would fulfill a commitment made in the final rule amending the Air Carrier Access Act rules to develop an SNPRM seeking information from the public on: (1) the cost and technical issues involved in requiring carrier website accessibility; (2) whether automated kiosks operated by carriers in airports and elsewhere should be required to be accessible; (3) whether there are safety-related reasons for excluding service animals other than dogs that may be specific to foreign carriers; (4) whether the cost of requiring carriers to supply free in-flight medical oxygen would create an undue burden; and (5) whether providing high-contrast captioning on in-flight entertainment displays is technically and economically feasible. Supplemental NPRM 07/00/2011.

Final 2011 Budget Summary Posted & Special Session Schedule Update

Final Budget Summary is on our website here and all of the bill reports are here.

Special Session
It appears that the House and Senate have set a schedule for the special session at the end of this month:
The Senate will gavel in at noon on Wednesday, July 13, and then hold three skeleton sessions until the full chamber reconvenes Monday, July 25.
The House plans to meet July 13, and then adjourn until Friday, July 22.
Meanwhile, the House and Senate redistricting committees will hold tag team meetings from the morning of Thursday, July 21, through the evening of Saturday, July 23.
Both chambers plan to pass an adjournment resolution on Thursday, July 28.
Note: There will be a Respect & Protect The Vote Rally on July 13 at 11 am at the General Assembly.  You can find a flyer about the event here.

During the special session, will be watching closely:
Their consideration of election laws and possible veto override votes on the following: HB 351, Voter ID; SB 496, Medicaid & Health Choice Provider Requirements; and SB 781, Regulatory Reform Act of 2011; as well as bills being considered in conference committees between the chambers, including HB 773, the Studies Act.

Final Bill Reports Posted on Disability Rights NC website

Final reports on legislation related to people with disabilities has been posted to our website.  The reports include legislation passed as well as bills introduced but not passed, and are broken down into the following categories: Accessibility and Employment; Administrative Law and Rulemaking; Adult Corrections, Ex-Offenders and Law Enforcement; Education and Juvenile Justice; Healthcare and Residential Facilities; Healthcare (including MH/DD/SAS); Housing; Law Practice; Voting Access; and Miscellaneous.

Bill Update for the Week of June 13

The House and the Senate voted to override the Governor’s veto of the budget last week and then spent long days in committee and in session in order to adjourn on Saturday. The following is a summary of bills acted upon last week. Full reports on all of the bills of interest to people with disabilities will be posted soon, along with a final budget summary.

HB 229, Rural Operating Assistance Program Changes (Owens Sponsor). HB 229 will allow regional public transportation authorities, upon written agreement with the counties, to apply for Elderly and Disabled transportation and assistance funds to which the member counties are entitled to receive. The bill was approved by the Senate without changes last week and has been presented to the Governor for her signature.

HB 344, Tax Credits for Children with Disabilities (Stam, Randleman, Jordan and Jones Sponsors). The bill creates an individual income tax credit for families of children with disabilities who require special education and are attending a nonpublic school, including home school. The credit is equal to the amount the taxpayer paid for tuition and special education and related services expenses, not to exceed three thousand dollars ($3,000) per semester. It also creates a Fund for Special Education and Related Services, with $2,000 per tax credit given being transferred to the Fund each year. Last week, this legislation was approved by the Senate, and the House concurred with the changes made in the Senate. It will now proceed to the Governor.



HB 351, Restore Confidence in Government (Lewis, Moore and Killian Sponsors). HB351, aka the “Voter ID” bill will require photo identification before voting. The bill as passed removed all of the compromise language discussed earlier in the session, including the exceptions for people with disabilities. The Senate Judiciary I and Appropriations committees approved the bill last week, and the House concurred in the Senate committee substitute. The bill has now been presented to the Governor and it is hoped that she will veto the legislation.

HB 374, Eugenics Records/Public Records Exemption (Womble and Parmon Sponsors). The bill makes clear that records in the custody of the State concerning the North Carolina Eugenics Board program are not public records to the extent they concern: (i) persons impacted by the program, (ii) persons or their guardians or authorized agents inquiring about the impact of the program on them, (iii) persons or their guardians or authorized agents inquiring about the potential impact of the program on others. It also states that a person impacted by the program may obtain that person's individual records under the program, and a guardian or authorized agent of that person may also obtain them. The bill was approved by the Senate and ratified by the House last week and has been presented to the Governor.



HB 397, DHHS Penalties and Remedies Revision  (Lewis Sponsor). HB 397 seeks to amend facility penalty provisions under 122C, 131D and 131E to split Type A violations into Type A1 (violations that result in result in death or serious physical harm, abuse, neglect, or exploitation) and Type A2 violations (violations that result in substantial risk that death or serious physical harm, abuse, neglect, or exploitation will occur). HB 397 is now a consensus bill that passed through the House last month. HB 397 was approved by the Senate Finance committee where some technical corrections to the bill were made, followed by approval by the full Senate. The House concurred in the Senate committee substitute and the bill has been presented to the Governor.



HB 509, Exclusions from Licensure: Home Services (Hurley Sponsor). HB 509 seeks to allow people with disabilities who receive MH/DD/SA services to live together as roommates without their home being considered a facility for licensing purposes. Specifically, it excludes from licensure: “A home in which up to three adults, two or more having a disability, co own or co rent a home in which the persons with disabilities are receiving three or more hours of day services in the home or up to 24 hours of residential services in the home. The individuals who have disabilities cannot be required to move if the individuals change services, change service providers, or discontinue services.” Disability Rights NC was part of the workgroup that developed this language, and we support this bill. HB 509 was approved by the full Senate last week and has been presented to the Governor.

HB 595, Reorganization/Legislative Oversight Comns (Barnhart, Burr Sponsors). HB 595 proposes a new structure for the numerous legislative committees and commissions, including establishing a Joint Legislative Oversight Committee on Health and Human Services, which merges the Study Commission on Aging, the Joint Legislative Health Care Oversight Committee, the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities, and Substance Abuse Services, and the Public Health Study Commission. Last week, the House concurred with the changes made in the Senate and the bill has been presented to the Governor.



HB 618, Streamline Oversight/DHHS Service Providers (Lewis and Hurley Sponsors). HB 618 seeks to streamline duplicate oversight of DHHS service providers. A very scaled back version of the bill was approved by the Senate last week. The bill no longer includes a task force to make recommendations on duplicative oversight. The bill now directs DHHS to: prepare a rate setting memorandum for every change or adjustment made by DHHS in service definition, policy, rule, or provider requirements that impacts services; dissolve North Carolina Treatment Outcomes Program Performance System (NC TOPPS) Advisory Committee and establish a task force made up of division staff, Behavioral Health Managed Care Organizations, consumers, and providers to objectively evaluate the North Carolina Treatment Outcomes Program Performance System (NC TOPPS) to improve the way data is accessible across services rather than site specific to reflect valid comparisons of program outcomes by August 1, 2011; allow private sector development and implementation of an Internet based, secure, and consolidated data warehouse and archive for maintaining corporate, fiscal, and administrative records of providers by September 1, 2011; and review on an annual basis updates to policy made by national accrediting bodies and take actions necessary to ensure that DHHS policy or procedural requirements do not duplicate the updated accreditation standards. The House concurred in the Senate committee substitute and the bill has been presented to the Governor.

HB 622, Nursing Homes/Food Service Inspections (McCormick, Stevens, Cleveland, Glazier Sponsors), was previously titled “Article 3A Administrative Procedures.” The bill now seeks to allow nursing homes and nursing home beds licensed under Chapter 131E that are also certified by Medicare and Medicaid to be limited to one food service inspection per year unless the facility receives a grade "B" or lower on its annual inspection. It was approved by the Senate last week and has been presented to the Governor.

HB 646, Prison Hospital Completion (Daughtry Sponsor). The bill allows the Department of Correction to use funds allocated for 2 capital projects that came in under budget to finish the hospital at Central Prison (funds will be used to finish the facility, purchase medical equipment, and expand the kitchen). The prison hospital will have 120 beds and will include beds for inmates with psychiatric needs. The bill was approved by the full Senate last week and has been presented to the Governor.

HB 677, Discharge of Adult Care Home Residents (Lewis). HB 677 seeks to change the law governing Adult Care Home discharge of residents. A committee substitute which made several changes was approved by the Senate last week. The bill now places the responsibility for determining an appropriate discharge destination on the local adult care home discharge team members, rather than on the Division of Medical Assistance Hearing Unit. It also adds that the Department cannot prohibit discharge solely for the reason that the discharge destination identified in the written notice does not include an appropriate discharge destination. However, the discharge team must provide the Hearing Unit with the discharge location at or before the discharge hearing. It also now provides that LMEs shall take the lead role for the discharge destination for residents whose primary unmet needs are related to MH/DD/SA and local departments of social services shall take the lead role for those residents whose primary unmet needs are related to health, including Alzheimer's disease and other forms of dementia, welfare, abuse, or neglect. Finally, the legislation now states that the resident shall remain in the facility pending appeal unless (1) The discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility as documented by the resident's physician, physician assistant, or nurse practitioner;(2) The safety of other individuals in the facility is endangered; and (3) The health of other individuals in the facility is endangered as documented by a physician, physician assistant, or nurse practitioner. The full Senate approved the bill, the House concurred in the Senate committee substitute and it has now been presented to the Governor.



HB 678, Pilot Release of Inmates to Adult Care Homes (Lewis Sponsor). HB 678 seeks to establish a pilot program to allow certain inmates released from confinement to be placed in an Adult Care Home (only the inmates selected for the pilot will reside in the facility) to receive Personal Care Services and Medication Management. HB 678 was approved by the Senate and ratified by the House, and has now been presented to the Governor.



HB 736, Amend Law re: School Discipline (Langdon, Luebke, Daughtry, Lucas Sponsors). HB 736 seeks to make a number of changes to Chapter 115C regarding school discipline with the goal of keeping students in school. It is a consensus bill supported by Disability Rights NC that numerous entities representing schools and students contributed to. The conference committee appointed on the bill agreed to incorporate the Corporal Punishment opt-out language of SB 498 into HB 736. To avoid any confusion regarding the new 115C section numbers, the bill also specifies that if Senate Bill 498 becomes law, then that act is repealed. The House and the Senate approved the conference committee report and the bill has now been presented to the Governor.



HB 773, Studies Act of 2011 (Johnson, Murry, McGee, Starnes, Dockham Sponsors). The Senate approved a committee substitute for the study bill but the House did not concur. A conference committee was appointed but did not have time to meet in the rush of the end of the session. However, they may take up the bill during the special session beginning July 13. The current version contains numerous items that may be studied that are relevant to people with disabilities, including: criminal defendants who lacks the capacity to proceed to trial; in home and community based mental health services for youth; a bill of rights for children who are deaf or hearing impaired; a revised process for collecting data to develop a waiting list of persons with intellectual or developmental disabilities; a pilot program to evaluate the costs, quality, consumer satisfaction, and patient outcomes of a program that supports individuals who are in an adult or family care home and who want to move back into independent supported housing; short and intermediate term options for improving economies and efficiencies in the provision of aid and services under the Medicaid plan with respect to services for Medicaid beneficiaries requiring long term care services, including beneficiaries who are aged, blind, and disabled, and those dually eligible for Medicaid and Medicare. Again, the bill has not yet been approved, and, even when it has been, there is no guarantee that any of these issues will be studied.



HB 808, Revise Laws on Adult Care Homes (Burr). HB 808 seeks to waive annual inspections of Adult Care Homes that achieve the highest rating, and to develop an informal dispute resolution procedure that allows Adult Care Homes to dispute cited inspection deficiencies. The full Senate approved the bill last week, the House concurred in the Senate committee substitute, and it has now been presented to the Governor.



SB 8, No Cap on Number of Charter Schools (Stevens sponsor). This bill eliminates the existing cap of 100 charter schools. This bill has been in conference between the House and Senate for the past 2 months. The conference committee reported in this week. The legislation now simply lifts the cap on charter schools. The compromise agreement removes the current limit of 100 charters and allows existing schools to increase annual enrollment by 20 percent. The conference report scraps some of the more controversial provisions - including one that would have granted broader authority to an independent charter board to approve new schools. The latest version also no longer requires charters to provide transportation or free and reduced lunches to low-income students. The Governor signed the bill into law last week and it is now Session Law 2011 164.

SB 375, Facilitate Statewide Health Info. Exchange (Stein and Brunstetter Sponsors). SB 375 seeks to set up a statewide health information exchange network. The framework proposed is to facilitate the exchange of healthcare information among covered healthcare providers within the confines of HIPAA. It allows individuals the right to opt out if they so choose. The provisions proposed only apply to protected health information disclosed within the Health Information Exchange. A House committee substitute was approved last week, which added a requirement for individual notice of the right to opt out (not just public notice). The Senate concurred in the House committee substitute and the bill has been presented to the Governor.



SB 394, Clarify Process/Reportable Offenses in Schools (Newton, Tillman, Preston Sponsors). SB 394 seeks to amend the statute (115C-288(g)) regarding principal reporting of certain acts to law enforcement. It proposes to change the standard from a principal’s “personal knowledge or actual notice from school personnel” to “reasonable belief” (which is further defined) that a specified act has occurred on school property. It also provides that the State Board of Education shall not require the principal to report to law enforcements acts in addition to those required in the statute. Last week, SB 394 was approved by the House, ratified by the Senate, and presented to the Governor.



SB 397, Expunge Nonviolent Offense by Minor (Berger, McKissick, Daniel Sponsors). SB 397 will allow the expunction of criminal records for certain offenses for first offenders who are under 18 years of age at the time of the commission of a nonviolent felony. Last week, a House committee substitute was approved by the House, the Senate concurred in the committee substitute, and the bill has been presented to the Governor.



SB 437 Enact First Evaluation Program (Hartsell Sponsor). SB 437 seeks to codify a practice that has been piloted that allows the Secretary to waive the requirements for a physician or eligible psychologist to perform the initial examination for involuntary commitment and substitute a licensed clinical social worker, a master's level psychiatric nurse, or a master's level certified clinical addictions specialist at the request of an LME. When making and considering the request, certain criteria must be addressed. A House committee substitute was approved by the House last week; the Senate concurred in the Senate committee substitute; and the bill has been presented to the Governor.


SB 449, Task Force on Fraud Against Older Adults (Bingham Sponsor). SB 449 directs the Consumer Protection Division of the NC Department of Justice, to coordinate a task force on fraud against older adults, as recommended by the North Carolina Study Commission on Aging. The bill was approved by the House and ratified by the Senate last week, and it has now been presented to the Governor.



SB 474, Photo ID for Certain Controlled Substances (Apodaca, Hise Sponsors). SB 374 seeks to direct pharmacies to require photo identification prior to dispensing any Schedule II and certain Schedule III Controlled Substances. A committee substitute was passed by the House last week; the Senate concurred; and the bill has been presented to the Governor.



SB 479, Testing in the Public Schools (Tillman, Preston, Soucek Sponsors). SB 479 seeks to implement several additional components of the state’s testing of public school students: continued participation in the development of the Common Core State Standards in conjunction with the consortium of other states, including implementing the assessments that the State Board deems most appropriate to assess student achievement on the Common Core State Standards; to the extent funds are made available, the State Board shall plan for and require the administration of the ACT test for all students in the eleventh grade unless the student has already taken a comparable test and scored at or above a level set by the State Board, as well as diagnostic tests in the eighth and tenth grades that align to the ACT test in order to help diagnose student learning and provide for students an indication of whether they are on track to be remediation free at a community college or university; and to the extent funds are made available for this purpose, the State Board shall plan for and require local school administrative units to make available the appropriate WorkKeys tests for all students who complete the second level of vocational/career courses. A committee substitute was approved by the House last week; the Senate concurred; and the bill has been presented to the Governor.



SB 496, now known as Medicaid and Health Choice Provider Req (was PPACA/Required Fraud and Abuse Provisions) (Pate Sponsor). SB 496 seeks to implement screening for Medicaid and Health Choice providers, identifying providers of certain types of services as low, moderate or high risk. It also provides for criminal history record checks for certain providers. It also amends the procedures for changing medical policies. Last week, the House approved a committee substitute; the Senate concurred; and the bill has been referred to the Governor.



SB 498, Modify Law re: Corporal Punishment (Pate, Purcell Sponsors). SB 498 would allow parents to opt their child out of a school’s corporal punishment policy. An amendment to the bill was adopted in the House that added language stating that the form given to parents shall advise that the student may be subject to suspension, among other possible punishments, for offenses that would otherwise not require suspension if corporal punishment were available. Although the bill was approved by both the House and the Senate, the approved language was incorporated into the school discipline bill mentioned above, which also directed the repeal of this bill if enacted.



SB 578, Facilitate Transfer SPH Beds Com. Facility (Hartsell) was formerly titled “LME Minimum Population.” SB 578 now seeks to allow the Secretary of DHHS to transfer beds from a State psychiatric hospital to a community facility without a written memorandum of agreement between the local management entity serving the county where the beds are to be located and the facility submitting the proposal if certain conditions are met, including that the facility submits a CON application, the facility commits to serve the type of short term patients normally placed at the State psychiatric hospital, the facility proposing to operate the beds is a provider created under G.S. 131E 17 and the facility proposing to operate the beds is in a single county area authority. The bill is intended to fix an issue in the Mecklenburg catchment area that has prevented the transfer of beds from Broughton to the Carolinas Medical Center (the beds at Broughton are un-staffed so this will not decrease, but rather increase, available beds). It was approved by the House last week, ratified by the Senate, and has been presented to the Governor.



SB597 (Purcell) BEHAVIORAL HEALTH SERVICES FOR MILITARY/FUNDS. SB 597 would require LMEs and schools to make certain staffing and procedural changes to ensure care for members of the military, veterans, and their families, whose care is funded through federal programs is coordinated appropriately. The bill was approved by the House, ratified by the Senate and presented to the Governor. It was signed into law this week and is SL2011-0185.



SB 607, Conform Medical Record Laws (Stein). SB 607 seeks to amend various sections in the General Statutes to make it easier to share currently protected health information, including a provision seeking to revise exceptions to confidentiality under 122C, which covers MH/DD/SA service providers. The House approved a committee substitute last week that the Senate concurred with. It has been presented to the Governor. The House committee substitute strengthened the language in the 122C section to add the client’s legally responsible person and to add that the person may object in writing or sign a non disclosure form that shall be supplied by the facility.

SB 683, Residential Building Inspections (Hunt Sponsor). SB 683 seeks to limit the allowable periodic building inspections only when there is reasonable cause to believe that unsafe, unsanitary, or otherwise hazardous or unlawful conditions may exist in a residential building. It was approved by the Senate and the House, and has been presented to the Governor.



SB 781, Regulatory Reform Act of 2011 (Rouzer and H. Brown, Sponsors). SB 781 amends Chapter 150B of the NC general statutes to add requirements for agencies in rulemaking, and analysis of the fiscal impact of rules. It also incorporates changes regarding final agency decision-making authority supported by Disability Rights NC. It was approved by the House and Senate and has been sent to the Governor.