N.D. Admin. Code Title 75 — Department of Human Services

Article 75-01 General Administration

Chapter 75-01-01 Organization of Department [Repealed]

N.D. Admin. Code 75-01-01 Organization of Department [Repealed]

ARTICLE 75-01

GENERAL ADMINISTRATION

Chapter 75-01-01Organization of Department [Repealed] 75-01-02Confidentiality and the Safeguarding of Information 75-01-03Appeals and Hearings 75-01-04Human Services Grant Program [Repealed]

CHAPTER 75-01-01

ORGANIZATION OF DEPARTMENT [Repealed under North Dakota Century Code Section 28-32-18.1, effective July 19, 2005]

Chapter 75-01-02 Confidentiality and the Safeguarding of Information

N.D. Admin. Code 75-01-02-01 Confidentiality and the safeguarding of information

1.The use and disclosure of information concerning applicants for and recipients of aid to families with dependent children is limited to purposes directly connected with the administration of the following programs:

a.The aid to families with dependent children program.

b.The child support enforcement program and the work incentive program.

c.The community services program.

d.The medical assistance program.

e.The supplemental security income program.

f.Any other federal or federally assisted program which provides assistance in cash or in kind or services directly to individuals on the basis of need.

Purposes directly connected with the administration of such programs include the following: the establishing of eligibility; determining the amount of assistance; providing services for applicants and recipients; and the investigation and prosecution of any criminal or civil proceeding conducted in connection with the administration of any such program.

2.The use or disclosure of information concerning applicants for or recipients of medical assistance is limited to purposes directly connected with the administration of the medical assistance program.

Purposes directly connected with the administration of the medical assistance program include the following: the establishing of eligibility; determining the amount of medical assistance; providing services for applicants; and the investigation and prosecution of any criminal or civil proceeding conducted in connection with the administration of the medical assistance program.

3.The use or disclosure of information concerning applicants for or recipients of child support enforcement services under title IV-D of the Federal Social Security Act is limited to purposes directly connected with the administration of the following programs:

a.The child support enforcement program.

b.The aid to families with dependent children program; the child welfare services program; the work incentive program.

c.The old-age, survivors, and disability insurance program.

d.The supplemental security income program.

e.The medical assistance program.

f.The community services program.

g.Any other federal or federally assisted program which provides assistance in cash or in kind, or services, directly to individuals on the basis of need.

History

• General Authority: NDCC 50-06-15
• Law Implemented: NDCC 50-06-15; 45 CFR 205.50

N.D. Admin. Code 75-01-02-02 Confidentiality in research projects

Notwithstanding any other provision of this title, a person engaged in a bona fide research project may have made available to that person records and information concerning persons applying for or receiving assistance or services under any program administered by or under the supervision and direction of the department when such information is derived directly or indirectly from records, files, or communications received in the course of the administration of any such program or in the performance of official duties provided that all of the following conditions are met:

1.No identifying information shall appear in any report, summation, thesis, or other document arising out of the research project.

2.No identifying information shall be provided to a person engaged in a bona fide research project until that person shall submit a written proposal explaining and justifying the need to examine such information satisfactory to the department's institutional review board.

3.All documents received by the researcher and all documents containing identifying information made by or on behalf of the researcher, by whatever means, including handcopies, typewritten copies, or photocopies, shall be returned to the custodian of records who is responsible for the care of the documents on or before a date to be set by the custodian.

4.The researcher shall submit a written plan, explaining how all identifying information in the researcher's possession will be kept secure, to the department's institutional review board, who shall have the authority to determine if the plan is satisfactory, and who shall require written assurance that the plan will be implemented.

5.The researcher shall agree to provide to the department a copy of any report, summation, thesis, or other document arising out of the research project, and shall, in writing, consent to the use and reproduction of the document by the the department and human service zone, for purposes of training and informing the the department and human service zone's employees, agents, consultants, and volunteer staff members.

6.The researcher shall, in writing, agree to pay all costs of the the department and human service zone, incurred in the provision of copy or search services by such the department and human service zone.

History

• History: Effective December 1, 1980.
• General Authority: NDCC 50-06-15, 50-25.1-11
• Law Implemented: NDCC 50-06-15, 50-25.1-11;45 CFR 205.50

Chapter 75-01-03 Appeals and Hearings

N.D. Admin. Code 75-01-03-01 Definitions

In this chapter:

1."Adverse benefit determination" means, in the case of a managed care organization, any of the following:

a.The denial or limited authorization of a requested service, including determinations based on the type or level of service, requirements for medical necessity, appropriateness, setting, or effectiveness of a covered benefit;

b.The reduction, suspension, or termination of a previously authorized service;

c.The denial, in whole or in part, of payment for a service;

d.The failure to provide services in a timely manner, as defined by the department;

e.The failure of a managed care organization to act within the time frames provided in 42 CFR 438.408(b)(1) and (2) regarding the standard resolution of grievances and appeals;

f.For a resident of a rural area with only one managed care organization, the denial of an enrollee's request to exercise the right under 42 CFR 438.52(b)(2) to obtain services outside the network; or

g.The denial of an enrollee's request to dispute a financial liability, including cost sharing, copayments, premiums, deductibles, coinsurance, and other enrollee financial liabilities.

2."Appeal" means a specific request for departmental review, by a dissatisfied applicant, recipient, provider, resident, registrant, or licensee concerning a decision made by a human service zone, division of the department, or nursing facility.

3."Appeal hearing" means an administrative procedure by which the department reviews a decision by considering evidence and argument presented by a claimant, by the entity that made the decision appealed from, or by authorized representatives of either.

4."Appeals supervisor" means the official designated by the department to be responsible for the administration of this chapter.

5."Authorized representative" means an individual, including an attorney at law, who has been authorized by the claimant or has legal authority to act for and represent the claimant in any and all aspects of a hearing. The claimant need not designate an authorized representative.

6."Claimant" means a person who has perfected an appeal.

7."Date of action" means the date upon which an action is intended to become effective.

8."Department" means the North Dakota department of human services.

9."Developmental disability provider" means the entity that has received authorization by the department, pursuant to North Dakota Century Code chapter 25-16, to provide a service or services to individuals with developmental disabilities.

10."Facility" means a nursing facility taking an action to transfer or discharge a resident.

11."Fair hearing" means an appeal hearing, established pursuant to 42 U.S.C. 8624(b)(13), 7 CFR 273.15, 42 CFR part 431, subpart D and E, 45 CFR 205.10, or any other federal law or

regulation that specifically requires the department to provide a dissatisfied claimant an opportunity for a hearing that meets the requirements for due process of law imposed under Goldberg v. Kelly, 397 U.S. 254 (1970).

12."Filing date" of the claimant's appeal, in all cases except supplemental nutrition assistance program and Medicaid appeals, means the postmark date of mailed appeals, the delivery date of delivered appeals, the date of transmission of appeals made by telephone, internet website, and other commonly available electronic means, or, if an oral appeal is permitted, the date of an oral appeal. The filing date of a request for fair hearing or administrative disqualification hearing in supplemental nutrition assistance program or Medicaid matters means the date the request is received by the department or human service zone.

13."Hearing officer" means any person assigned, appointed, or designated to preside in the hearing of an appeal or in an intentional program violation hearing under this chapter.

14."Household" means an individual or group of individuals receiving or applying for supplemental nutrition assistance program benefits.

15."Human service zone" means a county or consolidated group of counties administering human services within a designated area in accordance with an agreement or plan approved by the department.

16."Intentional program violation" means:

a.Supplemental nutrition assistance program:

(1)Any act or false statement intended to mislead, misrepresent, conceal, or withhold facts; or (2)Commission of any act that constitutes a violation of the Food and Nutrition Act of 2008 [7 U.S.C. 2011-2036], the supplemental nutrition assistance program

regulation [7 CFR parts 271-285], or any provision of the North Dakota Century Code relating to the use, presentation, transfer, acquisition, receipt, possession, or trafficking of supplemental nutrition assistance program coupons;

b.Temporary assistance for needy families:

(1)Any act or false statement intended to mislead, misrepresent, conceal, or withhold facts;

(2)Commission of any act intended to mislead, misrepresent, conceal, or withhold facts that constitutes a violation of the temporary assistance for needy families program or any provision of the North Dakota Century Code or federal statute; or (3)Use of temporary assistance for needy families program electronic payment card in a liquor store, a casino, gambling casino, or gambling establishment, or a retail establishment that provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state of environment unless:

(a)The temporary assistance for needy families recipient does not have adequate access to their cash assistance other than one of the establishments listed; or (b)The temporary assistance for needy families recipient does not have access to using or withdrawing assistance with a minimal fee or charge, including an opportunity to access assistance with no fee or charge; or

c.Child care assistance program:

(1)Any act or false statement intended to mislead, misrepresent, conceal, or withhold facts;

(2)Commission of any act that constitutes a violation of the child care assistance program; or (3)The signatures of any provider or caretaker on the application, review form, change report form, child care billing report form, or any other appropriate materials attest to providing factual information that is required to determine eligibility.

17."Intentional program violation hearing" means a hearing conducted for individuals or households accused of intentional program violations, who do not waive their rights to such a hearing, to determine if the individuals or household members committed, and intended to commit, intentional program violations.

18."Regulation", as used in 42 CFR 431.210, 431.244, and 45 CFR 205.10(a)(4)(i)(B), includes any written statement of federal or state law or policy, including federal and state constitutions, statutes, regulations, rules, policy manuals or directions, policy letters or instructions, and relevant controlling decisions of federal or state courts.

19."Request for an intentional program violation hearing" means a written statement from a human service zone, filed at the office of the appeals supervisor, which contains the name, mailing address, and telephone number (if any) of the charged household members or individuals, a detailed statement of charges against household members or individuals, and copies of all available evidence.

20."Request for fair hearing" means a specialized appeal consisting of any clear written expression or in the case of a request in a supplemental nutrition assistance program matter under 7 CFR 273.15, or in the case of a Medicaid matter under 42 CFR 431.220(a)(1), any clear expression through the telephone, internet website, mail, in person, or through other commonly available electronic means, from a claimant, or the claimant's duly authorized representative, filed with the human service zone or in the office of the appeals supervisor, that the claimant wants the department to conduct a fair hearing to take action concerning the claimant's expressed reasons for dissatisfaction.

21."Timely notice period" means that period beginning on the date a timely notice is mailed and concluding on the date of action.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1,

N.D. Admin. Code 75-01-03-02 Vocational rehabilitation determinations - Administrative review procedures - Appeals

Repealed effective January 1, 2019.

N.D. Admin. Code 75-01-03-03 Fair hearing - Who may receive

1.An opportunity for a fair hearing is available to any applicant for or recipient of Medicaid, children's health insurance program, economic assistance programs, intellectual disabilities developmental disabilities program management services, or Medicaid eligibility benefits who requests a hearing in the manner set forth in this chapter and who is dissatisfied:

a.Because an application was denied or not acted upon with reasonable promptness; or

b.Because human service zone or department action has resulted in the suspension, reduction, discontinuance, or termination of benefits.

2.An opportunity for a fair hearing is available to any resident who believes a facility has erroneously determined that the resident must be transferred or discharged.

3.An opportunity for a fair hearing is available to any individual who requests it because the individual believes the department has made an erroneous determination with regard to the preadmission and review requirements of 42 U.S.C. 1396r(e)(7).

4.An opportunity for a fair hearing is available to any individual whose Medicaid benefits are administered through a managed care organization and has received a notice of resolution the managed care organization is upholding the adverse benefit determination or failed to adhere to the notice and timing requirements of 42 CFR 438.408(b)(1) and (2).

5.An opportunity for a fair hearing is available to a parent, custodian, or legal guardian who requests it because the parent, custodian, or legal guardian believes the department has erroneously denied or terminated an autism voucher under chapter 75-03-38.

6.The department may, on its own motion, review individual cases and make determinations binding upon a human service zone. An applicant or recipient aggrieved by such determination shall upon request be afforded the opportunity for a fair hearing. All references in this chapter to appeals from decisions of human service zones must be understood to include appeals taken from determinations made by the department.

7.A fair hearing request may be denied or dismissed when the sole issue is one of state or federal law requiring automatic benefit adjustments for classes of recipients unless the reason for an individual appeal is incorrect benefit computation.

8.The claimant may first seek corrective action from the department or claimant's human service zone before filing a request for a fair hearing.

9.If a claimant dies after a request for a fair hearing has been filed by the claimant, and before the decision of the department has been rendered in the case, the proceedings may be continued on behalf of the claimant's estate, or any successor, as that term is defined in North Dakota Century Code section 30.1-01-06, of the claimant if a personal representative of the estate has been appointed.

10.If a dissatisfied claimant dies before the claimant can file a request for a fair hearing, the duly appointed personal representative of the claimant's estate, or any successor, as that term is defined in North Dakota Century Code section 30.1-01-06, of the claimant if no personal representative of the estate has been appointed, may file such request when the claimant was dissatisfied with the denial of the claimant's application for assistance, or was dissatisfied with the benefits the claimant was receiving prior to the claimant's death.

11.A fair hearing under this section is available only if:

a.Federal law or regulation requires that a fair hearing be provided; or

b.The appeal is related to the autism voucher and intellectual disabilities - developmental disabilities program management services; and

c.The dissatisfied claimant timely perfects an appeal.

An individual or household member, or a representative, who requests a fair hearing or with respect to whom a notice of intentional program violation hearing has been issued, shall have adequate opportunity to:

1.Examine the contents of the individual's or household's case file and all documents and records to be used by the department, human service zone, or nursing facility at the hearing, at a reasonable time before the date of the hearing, and during the hearing;

2.Present the case or have it presented by legal counsel or other person;

3.Bring witnesses;

4.Establish all pertinent facts and circumstances;

5.Advance arguments without undue interference; and

6.Question or refute any testimony or evidence, including the opportunity to confront and cross-examine adverse witnesses. 75-01-03-03.2. Appeals from determinations of the department.

1.A claimant aggrieved of a ratesetting decision of the department may perfect an appeal only if it is accompanied by written documents including all of the following information:

a.A copy of the letter received from the department advising of the department's decision on the claimant's request for reconsideration;

b.A statement of each disputed item and the reason or basis for the dispute;

c.A computation and the dollar amount that reflects the facility's or developmental disability provider's claim as to the correct computation and dollar amount for each disputed item;

d.The authority in statute or rule upon which the facility or developmental disability provider relies for each disputed item; and

e.The name, address, and telephone number of the person upon whom all notices will be served regarding the appeal.

2.A claimant aggrieved by a licensing determination made by any unit of the division may perfect an appeal only if it is accompanied by written documents including all of the following information:

a.A copy of the letter received from the department advising of the department's decision on the claimant's request for reconsideration;

b.A statement of disputed facts, if any;

c.The authority in statute or rule upon which the claimant relies for each disputed item; and

d.The name, address, and telephone number of the person upon whom all notices will be served regarding the appeal.

3.A claimant not entitled to a fair hearing, whose appeal is not described in subsection 1 or 2, may perfect an appeal from a determination of a division of the department only if a statute or

rule of the department specifies that such a claimant may appeal to the department and only in the manner provided for such an appeal.

4.A claimant entitled to a fair hearing of a supplemental nutrition assistance program, Medicaid, or Medicaid eligibility matter may perfect an appeal by making a timely oral, written, telephonic, internet website, and other commonly available electronic transmissions request for fair hearing.

5.A claimant entitled to a fair hearing concerning any other matter may perfect an appeal by making a timely written request for a fair hearing.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; August 1, 2005; April 1, 2018. 75-01-03-03.1. Hearing rights - Fair hearings and intentional program violation hearings.

N.D. Admin. Code 75-01-03-04 Withdrawal of appeal before decision

1.The claimant may withdraw an appeal at any time before a decision is made by the department. A withdrawal in a supplemental nutrition assistance program, Medicaid, or Medicaid eligibility matter may be made through the telephone, internet, mail, in person, or through other commonly available electronic means. All other withdrawals must be in writing.

2.In cases where there appears to be a possibility for corrective action without further appeal proceedings, the claimant may file a conditional withdrawal of the appeal. The conditional withdrawal does not prevent the claimant from filing a new appeal if the claimant remains dissatisfied with any such corrective action. No hearing shall be delayed or canceled because of this possibility unless the claimant consents to the delay.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1,

N.D. Admin. Code 75-01-03-05 Claimant responsibility

1.The claimant must appeal in writing unless the request concerns a supplemental nutrition assistance program, Medicaid, or a Medicaid eligibility decision. A claimant may appeal a supplemental nutrition assistance program, Medicaid, or a Medicaid eligibility decision through the telephone, internet, mail, in person, or through other commonly available electronic means. Oral requests must be clear expressions, made by the claimant or the claimant's authorized representative, to an employee of a human service zone or the department to the effect that the claimant wishes to appeal a decision. The employee hearing such a request shall promptly reduce the request to writing and file it as provided by this chapter. An appeal need not be in any particular form. The human service zone, division of the department, or nursing facility, which issued a decision with respect to which a claimant is entitled to, and requests, a fair hearing, shall assist the claimant in filing the claimant's appeal.

2.For the purpose of prompt action, the claimant may be informed that the claimant's appeal should identify the program involved as well as the reason for the claimant's dissatisfaction with the particular action involved in the case.

3.An appeal must be received by the department or human service zone.

History

• History: Effective September 1, 1979; amended effective July 1, 1980; January 1, 1984; February 1, 1995; April 1, 2018.

N.D. Admin. Code 75-01-03-06 Time limit on appeals

1.The request for fair hearing by a household aggrieved by any action of a human service zone that affects participation in the supplemental nutrition assistance program must be filed within ninety days after the order or action with which the claimant is dissatisfied. In all other cases, except as provided in subsections 3 and 4, an appeal or a request for a fair hearing must be filed within thirty days after the order or action with which the claimant is dissatisfied unless a different limitation is specified in state or federal law for a particular class of cases.

2.The date of the order or action on which the appeal or request for fair hearing is based is the date on which notice of the order or action was mailed to the claimant except:

a.If requests for a fair hearing concern the return of erroneous repayments, the date of collection or the date of the last installment payment is the determining date; and

b.If requests for a fair hearing concern the amount of the grant, the request must be filed within thirty days, but the period of review will extend back only to the first of the month on which the first day of the thirty-day period occurred.

3.A request for a fair hearing by an individual whose Medicaid benefits were denied, reduced, or discontinued because of a denial or discontinuance of disability status by the social security administration or state review team determination must be filed within six months after the official notification from the social security administration that disability status has been approved or reversed.

4.A request for a fair hearing by an individual whose Medicaid benefits are administered through a managed care organization and has received notice of resolution that the managed care organization is upholding the adverse benefit determination must be filed no later than one hundred twenty days from the date of the notice of resolution from the managed care organization.

5.A request for a fair hearing by a parent, custodian, or legal guardian of a child seeking services through the autism voucher must be filed within thirty days of the date of the notice of denial or termination.

In computing any period of time prescribed or allowed by this chapter, the day of the act, event, or determination from which the designated period of time begins to run is not included. The last day of the period so computed is included, unless it is a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays are excluded from the computation. 75-01-03-06.2. Giving of notice.

1.Any notice required to be given by this chapter may be given by first-class mail or personal delivery unless some provision of law specifically requires notice to be given in another manner.

2.Any notice required to be given by certified or registered mail may be so given without requesting a return receipt unless some provision of law specifically requires a return receipt to be requested.

3.Any notice given by certified or registered mail, return receipt requested, is deemed to be effectively given if delivered or if refused.

4.Any notice required to be given by certified or registered mail, return receipt requested, if returned undelivered but not refused, may be supplemented by a notice given by first-class mail. A notice given by first-class mail, in supplementation of such a return notice, is deemed to have been received unless it is shown, by a preponderance of the evidence, that:

a.The mail was not properly addressed;

b.The mail containing the notice was returned by the postal service; and

c.The mailing of the notice cannot be shown by an affidavit.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; May 1, 2006; April 1, 2018. 75-01-03-06.1. Computation of time.
• Law Implemented: NDCC 31-11-03(24), 50-06-05.1

N.D. Admin. Code 75-01-03-07 Explanation of right to fair hearing

1.The human service zone, the department, if the action is taken by the department, or the facility, if action is taken to transfer or discharge a resident of the facility, must, at the times specified in subsection 2, inform the individual in writing:

a.Of the individual's right to a fair hearing;

b.Of the method by which the individual may obtain a fair hearing; and

c.That the individual may represent him or herself or may use legal counsel, a relative, a friend, or other spokesperson.

2.The information described in subsection 1 must be provided:

a.At the time the individual applies for benefits administered by the human service zone under the direction and supervision of the department;

b.At the time of any action to grant, terminate, suspend, discontinue, or reduce such benefits, change the manner or form of a temporary assistance for needy families payment to a protective vendor, or two-party payment, or reduce covered Medicaid services;

c.At the time a facility notifies a resident of the facility that the resident is to be transferred or discharged; and

d.At the time an individual receives an adverse determination by or on behalf of the department with regard to the preadmission screening and resident review requirements of 42 U.S.C. 1396r(e)(7).

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1,

N.D. Admin. Code 75-01-03-08 Timely and adequate notice - Assistance pending hearing

1.A notice is adequate if it includes:

a.An explanation of the type of proposed action;

b.An explanation of the reason for the proposed action and the regulation or law upon which the action is based; and

c.An explanation of the person's right to request corrective action from the human service zone and the department, the person's right to request a fair hearing, and the circumstances under which assistance will be continued if a fair hearing is requested.

2.Except as provided in subsection 6, a notice is timely if mailed at least five days prior to the date of action based on subsection 3, and at least ten days prior to the date of any other action.

3.Except in supplemental nutrition assistance program cases, if facts indicate that assistance should be discontinued, suspended, terminated, or reduced because of suspected fraud by the recipient, and, where possible, such facts have been verified through collateral sources, notice of a benefit adjustment is timely if mailed at least five days prior to the effective date of the proposed action.

4.If human service zone or department action results in a denial of Medicaid, children's health insurance program, economic assistance programs, autism voucher, intellectual disabilities developmental disabilities program management services, or Medicaid eligibility, an adequate written notice must be sent to the person affected.

5.Except as provided in subsection 6, if human service zone or department action results in a discontinuance, termination, suspension, withholding, or reduction of Medicaid, children's health insurance program, economic assistance programs, autism voucher, intellectual disabilities - developmental disabilities program management services, or Medicaid eligibility benefits, a timely and adequate written notice must be sent to the person affected.

6.If human service zone or department action results in a discontinuance, termination, suspension, withholding, or reduction of Medicaid, children's health insurance program, economic assistance programs, autism voucher, intellectual disabilities - developmental disabilities program management services, or Medicaid eligibility benefits, an adequate written notice must be sent to the person affected no later than the date of action if:

a.The human service zone or department has factual information confirming the death of the person affected or for temporary assistance for needy families factual information exists confirming the death of the payee when there is no other relative to serve as a new payee;

b.The human service zone or department receives a clear written statement signed by the person affected that the person no longer wishes assistance; or that gives information which requires discontinuance or reduction of assistance and the person has indicated, in writing, that the person understands that this must be the consequence of supplying such information;

c.The person affected has been admitted or committed to an institution, and further payments to that individual do not qualify for federal financial participation under the state plan;

d.The person affected has been placed in a nursing facility or is receiving long-term hospitalization. A ten-day notice is required for supplemental nutrition assistance program when the individual moves to a long-term care facility, basic care, or institution within the human service zone;

e.The whereabouts of the person affected are unknown and mail directed to the person has been returned by the post office indicating no known forwarding address;

f.A temporary assistance for needy families child is removed from the home as a result of a judicial determination, or voluntarily placed in foster care by the child's parent or legal guardian;

g.The person affected has been accepted for assistance in new jurisdiction and that fact has been established by the human service zone previously providing assistance or the department;

h.A change in level of medical care is prescribed by the recipient patient's physician or other practitioner of the healing arts;

i.A special allowance granted for a specific period is terminated and the recipient has been informed in writing at the time of initiation that the allowance shall automatically terminate at the end of the specified period;

j.The state or federal government initiates a mass change which uniformly and similarly affects all similarly situated applicants, recipients, and households;

k.A determination has been made, based on reliable information, that all members of a household have died;

l.A determination has been made, based on reliable information, that the household has moved from the project area;

m.The household has been receiving an increased allotment to restore lost benefits, the restoration is complete, and the household was previously notified in writing of when the increased allotment would terminate;

n.The household's allotment varies from month to month within the certification period to take into account changes anticipated at the time of certification, and the household was so notified at the time of certification;

o.The household jointly applied for public assistance and supplemental nutrition assistance program benefits and has been receiving supplemental nutrition assistance program benefits pending the approval of the public assistance grant and was notified at the time of certification that supplemental nutrition assistance program benefits would be reduced upon approval of the public assistance grant;

p.A household member is disqualified for an intentional program violation, or the benefits of the remaining household members are reduced or terminated, to reflect the disqualification of that household member;

q.The household contains a member subject to a lockout or strike or signs a waiver of its right to notice of adverse action for purposes of receiving a longer certification period than is otherwise allowed for such households;

r.The human service zone or department has elected to assign a longer certification period to a household certified on an expedited basis and for whom verification was postponed, provided the household has received written notice that the receipt of benefits beyond the month of application is contingent on its providing the verification which was initially postponed and that the human service zone or department may act on the verified information without further notice;

s.The action is based upon information the recipient furnished in a monthly report;

t.The action is taken because the recipient has failed to submit a complete or timely monthly report without good cause;

u.A special item or need or job opportunities and basic skills program supportive service is terminated at the end of a specified period;

v.Benefits are reduced or terminated following the imposition of a child support or job opportunities and basic skills program sanction;

w.Upon receipt of factual information confirming the household is no longer a resident of the state;

x.If household is entitled to a supplemental nutrition assistance program underpayment and has chosen monthly installments instead of a lump sum and the household was previously notified in writing when the monthly installments would terminate;

y.Joint temporary assistance for needy families and supplemental nutrition assistance program application results in the receipt of supplemental nutrition assistance program pending temporary assistance for needy families grant approval and household is notified at the time of certification that supplemental nutrition assistance program benefits would be reduced upon receipt of a grant; or

z.For supplemental nutrition assistance program, changing a household from cash repayment to allotment reductions as a result of failure to make the agreed payments.

7.In any case where assistance has been discontinued, suspended, withheld, or reduced without timely notice, if the person affected requests a fair hearing within ten days of the mailing of the notice of action, assistance must be reinstated retroactively and the provisions of subsection 9 shall apply.

8.If, within the timely notice period, the person affected indicates a wish for a conference, that person or that person's authorized representative will be given an opportunity by the human service zone or department to discuss the problems, and will be given an explanation of the reasons for the proposed action, and will be permitted to show that proposed action is incorrect.

a.During this conference, the person affected will be permitted to represent himself or herself or be represented by legal counsel or by a friend or other spokesman.

b.The conference does not diminish the person's right to a fair hearing.

9.Where the person affected is a recipient and has filed a request for a fair hearing within the timely notice period, the assistance will be continued without implementation of the proposed action, until the fair hearing decision is rendered, unless:

a.Prior thereto the claimant unconditionally withdraws or abandons the fair hearing request;

b.Prior thereto the department reverses the proposed action without a hearing;

c.The department determines, based upon the record of the claimant's fair hearing, that the issue involved in such hearing is one of state or federal law or change in state or federal law and not one of incorrect benefit computation;

d.A change affecting the recipient's benefits occurs before the decision on the request for fair hearing and the recipient fails to file a timely request for a fair hearing after notice of such change; or

e.A supplemental nutrition assistance program household's certification period expires.

10.Any assistance continued under subsection 9 is subject to recovery if the claimant does not prevail in the claimant's appeal.

11.Any notice that is the subject of a request for fair hearing may be supplemented at any time before the conclusion of the hearing. The information in any supplemental notice must be considered in determining the adequacy of the notice unless the claimant shows that the claimant is prejudiced by that consideration.

1.For purposes of this section:

a."Discharge" means movement from a facility to a noninstitutional setting when the discharging facility ceases to be legally responsible for the care of the resident.

b."Resident" includes a person who has been admitted and any legal representative of the resident.

c."Transfer" means movement from a facility to another institutional setting when the legal responsibility for the care of the resident changes from the transferring facility to the receiving institutional setting.

2.Except as provided in subsection 4, a facility shall issue a written notice of involuntary transfer or discharge, which meets the requirements of subsection 3, at least thirty days before the date of intended transfer or discharge. The first day of that thirty-day period is the day after the date of issuance. The date of issuance is the day notice is delivered or mailed to the resident.

3.The notice provided by the facility must contain:

a.A statement that the facility intends to transfer or discharge the resident, as the case may be;

b.The reason for the transfer or discharge;

c.The effective date of the transfer or discharge;

d.The location to which the resident is to be transferred or discharged;

e.The specific provision of subsection 7 authorizing the transfer or discharge, or the change in federal or state law requiring the action;

f.A statement that the resident has the right to appeal the intended transfer or discharge to the department, and the mailing address to which an appeal must be sent;

g.The name, address, and telephone number of the state long-term care ombudsman;

h.If the resident is developmentally disabled or mentally ill, the address and telephone number of the committee on protection and advocacy office that serves the area in which the resident resides;

i.If the Medicaid program is paying for some or all of the cost of services furnished to the resident by the facility, a statement that those Medicaid payments will continue until after the hearing unless:

(1)The sole issue at the hearing is one of state or federal law or policy and the resident is so informed in writing; or (2)Some change in circumstances affects the resident's eligibility for Medicaid benefits and the resident is so notified in writing.

j.A statement that the transfer or discharge will be delayed, if a request for fair hearing is filed before the effective date of the transfer or discharge:

(1)In the case of a discharge for nonpayment of facility charges, at least until the hearing officer recommends a decision that the charges were due and unpaid at the time the facility issued a notice of discharge; and (2)In all other cases, until the fair hearing decision is rendered.

k.A statement that the resident may represent himself or herself at the hearing or may use legal counsel, a relative, a friend, or other spokesperson. 4.a.A facility need not provide a notice under subsection 2 if the resident:

(1)Provides a clear written statement, signed by the resident, that the resident does not object to a proposed transfer or discharge; or (2)Gives information that requires a transfer or discharge and indicates that the resident understands that a transfer or discharge will result.

b.A facility must issue a notice that meets the requirements of subsection 3, as soon as practicable before an involuntary transfer or discharge, when:

(1)The safety of individuals in the facility would be endangered;

(2)The health of individuals in the facility would be endangered;

(3)The transfer or discharge is appropriate because the resident's health has improved sufficiently to allow a more immediate transfer or discharge;

(4)An immediate transfer or discharge is required by the resident's urgent medical needs which cannot be met in the facility; or (5)The resident has not resided in the facility for thirty days.

5.A resident of a facility may appeal a notice from the facility of intent to discharge or transfer the resident. A resident has appeal rights when the resident is transferred from a certified bed to a noncertified bed or from a bed in a certified facility to a bed in a facility certified as a different provider. A resident has no appeal rights when the resident is moved from one bed in a certified facility to another bed in the same certified facility. A resident has no appeal rights if the transfer or discharge has taken place and the resident did not appeal within thirty days after the date of issuance of a notice that meets the requirements of subsection 3.

6.If a resident with appeal rights files an appeal before the effective date of the transfer or discharge, the resident shall not be transferred or discharged:

a.In the case of a discharge for nonpayment of facility charges, earlier than the date a hearing officer recommends a decision that the charges were due and unpaid at the time the facility issued a notice of discharge; and

b.In all other cases, until the fair hearing decision is rendered.

7.A facility may not discharge or transfer a resident unless:

a.The resident has an urgent medical need, which cannot be met in the facility;

b.The resident's physical condition endangers or poses a threat to the health or safety of the resident or other persons in the facility;

c.In cases involving a mental condition or behavioral problem, the behavior of the resident creates a serious and immediate threat to the resident or other residents or persons in the facility and all reasonable alternatives to transfer or discharge, consistent with the attending physician's orders, have been attempted and documented in the resident's medical record;

d.The resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

e.The resident was accepted by the facility for the purpose of receiving specialized services and has fully benefited from those services or can no longer benefit from those services, provided that the purpose of the admission and the expected length of stay were agreed to, in writing, by or on behalf of the resident, prior to admission;

f.The resident's health or safety is at risk because the facility cannot reasonably accommodate the needs of the resident;

g.A public official with jurisdiction over matters of health or safety, in the performance of official duties, determines the health or safety of the resident is endangered by continued residence in the facility;

h.The facility's license is revoked, suspended, or not renewed, or the facility's participation in Medicare or Medicaid is terminated;

i.The facility intends to cease operations; or

j.The resident fails to pay, or to arrange for payment of, charges based on the daily rate established under chapter 75-02-06, provided that no involuntary transfer or discharge may be based on a failure to pay charges for private rooms, holding a bed for a period in excess of the covered bed hold period set forth in section 75-02-06-14, special services not included in the daily rate, or Medicare part B coinsurance and deductible.

1.An individual dissatisfied with an adverse determination made with regard to the preadmission screening and resident review requirements of 42 U.S.C. 1396r(e)(7)(A) or (B) may request a fair hearing in review of that determination.

2.The right to request a fair hearing under subsection 1 arises upon receipt of a notice under subsection 3.

3.If the department's action in administering preadmission screening and resident review is adverse to an individual, the department shall provide to the individual a written notice which conforms to section 75-01-03-07 and which includes:

a.A statement of the adverse determination;

b.The reason for the adverse determination;

c.The date of the adverse determination; and

d.A statement that 42 U.S.C. 1396r(e)(7) requires the department to make such determinations.

4.For purposes of this section and sections 75-01-03-07 and 75-01-03-09.2:

a."Adverse determination" means a determination made in accordance with 42 U.S.C. 1396r(b)(3)(F) or 42 U.S.C. 1396r(e)(7)(B), through the application of section 75-02-02-09, that the individual does not require the level of services provided by a nursing facility or that the individual does or does not require specialized services, but does not mean a determination, made under 42 CFR 483.128, that an individual is not suspected of having mental illness or mental retardation; and

b."Significant change" means:

(1)A significant physical status improvement experienced by a nursing facility resident, such that the resident is more likely to respond to special treatment for that condition or might be considered appropriate for a less restrictive alternative setting;

(2)The presence of a nursing facility resident's mental illness, mental retardation, or condition related to mental retardation, not identified prior to admission, when it later emerges or is discovered;

(3)Exhibition of increased symptoms of mental illness or behavioral problems by a nursing facility resident; or (4)A circumstance arising if a review resulted in a determination requiring inpatient psychiatric treatment for a nursing facility resident, and an update to that determination is needed to support that individual's admission or readmission to a nursing facility following delivery of psychiatric services.

5.Preadmission screening and resident review, including determinations of significant change, is undertaken applying professional judgment and standards approved by the department that are consistent with the requirements of 42 CFR part 483, subpart C, and 42 U.S.C. 1396r(f)

(8).

1.A written notice of an intentional program violation hearing must contain:

a.The date, time, and place of the hearing;

b.The charge against the individual or household member;

c.A summary of the evidence, and how and where the evidence can be examined;

d.A warning that the decision will be based solely on evidence provided by the department or human service zone if the individual or household member fails to appear at the hearing;

e.A statement that the individual or household member may request a postponement of the hearing, provided that the request for postponement is made at least ten days in advance of the scheduled hearing;

f.A statement that the individual, household member, or authorized representative will have ten days from the date of the scheduled hearing to represent good cause for failure to appear in order to receive a new hearing;

g.A description of the penalties that can result from a determination that the individual or household member has committed an intentional program violation and a statement of which penalty the department or human service zone believes applicable to the case;

h.A listing of the rights of the individual or household member, as set forth in section 75-01-03-03.1;

i.A statement that the hearing does not preclude the state or federal government from prosecuting the individual or household member for an intentional program violation in any civil or criminal action, or from collecting overissuances or overpayments;

j.A listing of individuals or organizations that provide free legal representation to individuals or household members alleged to have committed intentional program violations and that have authorized the department to include their name, address, and telephone number on such list;

k.An explanation that the individual or household member may waive the individual's or household member's right to appear at an intentional program violation hearing;

l.A statement of the accused individual or household member's right to remain silent concerning the charge, and that anything said or signed by the individual concerning the charge may be used against the individual in a court of law; and

m.A statement that the individual or household member may waive the right to appear at an intentional program violation hearing that includes:

(1)The date the signed waiver must be received by the department or human service zone to avoid the holding of a hearing;

(2)A signature block for the accused individual, along with a statement that the head of or caretaker relative must also sign the waiver if the accused individual is not the head of household or caretaker relative, with an appropriately designated signature block;

(3)The fact that a waiver of the right to appear at the intentional program violation hearing will result in a disqualification penalty and a reduction in benefits or assistance payment for the appropriate period, even if the accused individual does not admit to the facts presented by the department or human service zone;

(4)An opportunity for the accused individual to specify whether the individual admits to the facts as presented by the department or human service zone; and (5)In supplemental nutrition assistance program matters, a telephone number to contact for additional information and a statement that remaining household members, if any, will be held responsible for repayment of the resulting claim.

2.All notices alleging an intentional program violation concerning the supplemental nutrition assistance program must either:

a.Have attached a copy of the department's published hearing procedures; or

b.Inform the household of its right, upon request, to obtain a copy of the department's published hearing procedures.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1, 75-01-03-08.1. Notice of facility's intention to transfer or discharge a resident.
• History: Effective February 1, 1995; amended effective July 1, 1996; May 1, 2006. 75-01-03-08.2. Notice of preadmission screening and resident review determinations.
• History: Effective February 1, 1995; amended effective April 1, 1999. 75-01-03-08.3. Notice of intentional program violation hearing.

N.D. Admin. Code 75-01-03-09 Human service zone or program responsibility prior to fair hearing concerning assistance or benefits

1.Upon receipt of notice that a recipient has filed a request for a fair hearing, the human service zone or program, if applicable, shall immediately ascertain whether the request for fair hearing was filed within the timely notice period. If the request was not filed within that period, the human service zone or program, if applicable, shall neither reinstate nor continue aid except that households appealing adverse supplemental nutrition assistance program actions may have benefits continued if the household can show good cause for the failure to file a request within ten days.

2.Upon receipt of notice of a request for fair hearing the human service zone or program, if applicable, shall, no later than the fifth day after receiving the request, provide the office of the appeals supervisor with all information pertinent to the request.

3.Prior to the fair hearing, the human service zone or program, if applicable, shall:

a.Review the applicable statutes, regulations, rules, and policies in light of the evidence.

When assistance of the department is required to clarify any question, such assistance shall be sought without delay;

b.Organize all oral and written evidence and plan for its presentation at the hearing;

c.Prepare copies of all written evidence and relevant statutes, regulations, rules, and

d.Arrange for the attendance of all witnesses necessary for the presentation of the case;

e.Notify the appeals supervisor of any communication problem the claimant may have;

f.Notify the appeals supervisor of any hearing site access problem the claimant may have;

g.Prepare a complete final budget computation, month by month, for the period subject to review, and up to the date of hearing, if the issue is:

(1)Amount of aid;

(2)Grant adjustment; or (3)Demand for repayment;

h.Remain in touch with the claimant, and report without delay to the appeals supervisor any change in the claimant's address or in any other circumstances that might affect the necessity for or conduct of the hearing; and

i.Arrange to have present at the hearing a human service zone representative or program representative, if applicable, with full authority to make factual stipulations on behalf of the human service zone or department.

1.Upon receipt of notice of a request for fair hearing, the nursing facility, no later than the fifth day after receiving the request, shall provide the appeals supervisor with all information pertinent to the request.

2.Prior to the fair hearing, the nursing facility shall:

a.Review the applicable statutes, regulations, rules, and policies in light of the evidence;

b.Organize all oral and written evidence and plan for its presentation at the hearing;

c.Prepare copies of all written evidence and relevant statutes, regulations, rules, and

d.Arrange for the attendance of all witnesses necessary for the presentation of the nursing facility's case;

e.Notify the appeals supervisor of any communication problem or hearing facility access problems the resident may have;

f.Notify the appeals supervisor of any hearing site access problem the resident may have;

g.Notify the appeals supervisor of any change in the resident's circumstances that may affect the necessity for or the conduct of the hearing; and

h.Arrange to have present at the hearing a nursing facility representative with full authority to make binding agreements and stipulations. 75-01-03-09.2. Department responsibility prior to fair hearing concerning preadmission screening and resident review.

1.Upon receipt of a request for fair hearing, the division of the department that made the adverse determination, no later than the fifth day after receiving the request, shall provide the appeals supervisor with all information pertinent to the request.

2.Prior to the fair hearing, the division of the department that made the adverse determination shall:

a.Review the applicable statutes, regulations, rules, and policies in light of the evidence;

b.Organize all oral and written evidence and plan for its presentation at the hearing;

c.Prepare copies of all written evidence and relevant statutes, regulations, rules, and

d.Arrange for the attendance of all witnesses necessary for the presentation of the division's case;

e.Notify the appeals supervisor of any communication problem the claimant may have;

f.Notify the appeals supervisor of any hearing site access problem the claimant may have;

g.Notify the appeals supervisor of any change in the claimant's circumstances that may affect the necessity for or the conduct of the hearing; and

h.Arrange to have present at the hearing a division representative with full authority to make factual stipulations. 75-01-03-09.3. Department responsibility prior to appeal hearing.

1.Upon receipt of notice of an appeal, which does not involve a request for a fair hearing, the division of the department that made the adverse determination, no later than the fifth day after receiving the notice of appeal, shall provide the appeals supervisor with all information pertinent to the appeal.

2.Prior to the hearing of the appeal, the division of the department that made the adverse determination shall:

a.Review the applicable statutes, regulations, rules, and policies in light of the evidence;

b.Organize all oral and written evidence and plan for its presentation at the appeal hearing;

c.Prepare copies of all written evidence and relevant statutes, regulations, rules, and policies for presentation at the appeal hearing;

d.Arrange for the attendance of all witnesses necessary for the presentation of the division's case;

e.Notify the appeals supervisor of any change in the resident's circumstances that may affect the necessity for or the conduct of the appeal hearing; and

f.Arrange to have present at the appeal hearing a division representative with full authority to make factual stipulations.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1, 75-01-03-09.1. Facility responsibility prior to fair hearing concerning transfer or discharge.

N.D. Admin. Code 75-01-03-10 Hearing in county other than county responsible for aid - Procedure

Repealed effective February 1, 1995.

N.D. Admin. Code 75-01-03-11 Group hearings

1.The appeals supervisor may schedule a series of appeals for a group hearing when the sole issue set forth in the request is one involving state or federal law or policy or changes in state or federal law, as the supervisor may deem appropriate.

2.In all group hearings, individual claimants may present their own cases, and each may be represented by any person the claimant may desire.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995.

N.D. Admin. Code 75-01-03-12 Compliance with department decisions

Immediately upon receipt of notice of a decision, the human service zone shall comply with the decision.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995.

N.D. Admin. Code 75-01-03-13 Acknowledgment of appeal

1.An appeal must be acknowledged by a written communication to the claimant and to the human service zone, nursing facility, or division of the department that made the determination under appeal.

2.The claimant who is entitled to a fair hearing shall also be provided with a list of all free legal service organizations available to the claimant and that have authorized the department to include their name, address, and telephone number on such list.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1,

N.D. Admin. Code 75-01-03-14 Hearing - Place and notification

1.The hearing of the appeal may be held in the county seat of the county in which the claimant is living at the time of the hearing, at the human service zone office serving such county, at any public building convenient to the parties, or at any other location agreeable to the parties.

If the claimant is unable to travel to the hearing site because of the claimant's health, transportation problems, or other reasons, the claimant shall promptly notify the human service zone, nursing facility, or division of the department that made the determination under appeal. The hearing shall be conducted at a reasonable time, date, and place to be set by the office of administrative hearings.

2.The office of administrative hearings shall mail or deliver to the claimant, the claimant's authorized representative, if any, and the human service zone, nursing facility, or division of the department (whichever made the determination under appeal) a written notice of the time and place of the hearing. In all supplemental nutrition assistance program appeals, the notice must be sent not less than ten days prior to the hearing unless the household should, in writing, request less advance notice to expedite the scheduling of the hearing.

3.The office of administrative hearings shall mail or deliver to the household and its authorized representative, if any, the individual or the individual's authorized representative, (in a proceeding involving temporary assistance for needy families), and the human service zone a written notice of an intentional program violation hearing, that conforms to the requirements of

section 75-01-03-08.3, not less than thirty days prior to the hearing, unless the hearing is combined with a fair hearing and the individual or household member requests that the thirty-day period be waived.

A fair hearing and an intentional program violation hearing may be combined into a single hearing if the factual issues arise out of the same or related circumstances and the individual or household receives advance notice that the hearings will be combined. The times for conducting an intentional program violation hearing will apply when there is a single hearing, but the individual or household is entitled to a waiver of the thirty-day advance notice period upon its request.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1, 75-01-03-14.1. Consolidation of intentional program violation hearing with fair hearing.

N.D. Admin. Code 75-01-03-15 Hearing - General rules and procedure

1.Attendance at the hearing shall be limited to those directly concerned, namely, the claimant; the claimant's authorized representative, if any; an interpreter, if any; witnesses; representatives of the human service zone, nursing facility, or divsions of the department that made the determination under appeal; and the hearing officer. The hearing officer shall exclude unauthorized persons from a fair hearing unless both principals agree to their presence. The hearing officer may exclude persons whose actions cause substantial disruption of the hearing. Appearance by the claimant, in person or by authorized representative, is required at a fair hearing. Representation by the human service zone, nursing facility, or division of the department that made the determination under appeal is also required.

2.Hearings may be conducted by telephone or other acceptable electronic means unless the person requesting the hearing demands to appear personally before the hearing officer. In all supplemental nutrition assistance program telephone or other acceptable electronic means hearings, except supplemental nutrition assistance program intentional program violation hearings, the person requesting the hearing shall be present at the same location as the human service zone representative. This provision may be waived by the department when illness, disability, travel difficulty, or other reason makes attendance of the person requesting the hearing, or that person's authorized representative, at the location of the human service zone representative impracticable.

3.Witnesses may give testimony by telephone or other acceptable electronic means unless the hearing officer determines that it will be unreasonably difficult to judge the witness's credibility without the witness's presence before the hearing officer. The party calling a witness by telephone or other acceptable electronic means shall provide reliable identification of the witness and assume responsibility for providing a satisfactory telephone connection. A party intending to call a witness by telephone or other acceptable electronic means shall provide notice of that intention to the administrative law judge and to the other parties at least three days before the date of the witness's intended testimony unless the administrative law judge determines arrangements for a satisfactory telephone or other acceptable electronic means connection may be made on shorter notice.

4.The hearing must be conducted in an impartial manner. All testimony must be submitted under oath or affirmation.

5.The proceedings at the hearing must be reported or otherwise perpetuated by mechanical, electronic, or other means capable of reproduction or transcription.

6.The hearing officer shall consider if the parties or their authorized representatives are familiar with the North Dakota Rules of Evidence and shall waive application of those rules unless all parties to the proceeding or their authorized representatives are familiar with the North Dakota Rules of Evidence. The waiver, if necessary, must be stated prior to or at any hearing.

7.An interpreter shall be provided by the state if the hearing officer determines this necessary.

January 1, 1997; April 1, 2018. 75-01-03-15.1. Intentional program violation hearing - Procedure.

1.The department or the human service zone has the burden of proving an intentional program violation by clear and convincing evidence.

2.The hearing officer shall advise the individual or household member that he or she may refuse to answer questions during the hearing.

3.If the individual or household member, or a representative, cannot be located or fails to appear at the hearing without good cause, as determined by the hearing officer or by the appeals supervisor, the hearing shall be conducted as scheduled, without the household's representation.

4.The hearing shall be conducted, the decision arrived at, and the individual or household member and the human service zone notified of the decision within ninety days of the date the household member is notified in writing that the hearing has been scheduled.

5.The hearing officer's recommended decision must specify the reasons for the decision, identify the supporting evidence, identify the pertinent regulations, and respond to reasoned arguments made by the individual, household member, or representative.

6.If a hearing has been conducted without the individual, household member, or representative present, and the individual or household member is determined to have committed an intentional program violation, the individual or household member has ten days from the date of the scheduled hearing to present reasons indicating good cause for failure to appear. If a hearing officer or the appeals supervisor later determines there was good cause for the failure to appear, a new hearing must be conducted.

7.There is no further administrative appeal after the intentional program violation hearing. A subsequent fair hearing procedure cannot reverse a determination of an intentional program violation arising out of an intentional program violation hearing.

1.Except as provided in subsection 2, or as specifically required in any law or rule describing the determination of issues at a hearing, the issues for consideration in a hearing requested to review a decision issued by the department, a human service zone, or a facility are limited to matters described in the decision notice.

2.A person seeking a hearing in review of a decision issued by the department, a human service zone, or a facility may raise additional issues only if the person:

a.Provides, at least ten days before the date set for the hearing:

(1)A written statement of additional issues;

(2)A copy of any documents and a description of any exhibit proposed for introduction in support of the additional issues; and (3)A brief synopsis of testimony of any proposed witness relating to the additional issues;

b.Consents to a continuance, waives any requirement that a decision be made within a limited time, and:

(1)If the person is a recipient receiving continued benefits until a fair hearing decision is reached, secures consent of the department; or (2)If the person is appealing a notice of intention to transfer or discharge a resident, secures consent of the facility; or

c.Secures the consent of the department or facility.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995;
• General Authority: NDCC 28-32-05, 50-06-16 75-01-03-15.2. Hearing - Issues to be considered.
• History: Effective January 1, 1997.

N.D. Admin. Code 75-01-03-16 Claimant living outside of North Dakota

When a request for fair hearing is received from an applicant for or recipient of Medicaid, children's health insurance program, economic assistance programs, intellectual disabilities - developmental disabilities program management services, or Medicaid eligibility benefits, who is living outside of the state, it must be acknowledged and reported in the same manner as other requests for fair hearing.

Unless the claimant returns to North Dakota for the hearing or has an authorized representative in North Dakota, the hearing will be conducted by telephone or other acceptable electronic means.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1,

N.D. Admin. Code 75-01-03-17 Continuance for additional evidence

1.If, after a hearing has begun, the hearing officer conducting the hearing determines that additional evidence not available at the hearing is necessary for the proper determination of the case, the hearing officer may continue the hearing to a later date. In connection therewith, the hearing officer may order further investigation and may direct either party to produce the additional evidence.

2.In order to permit the reception of additional documentary evidence or written argument, the hearing officer may close the hearing and hold the record open for a stated period if the request for additional time is accompanied by a written waiver of the requirement that a decision be made within ninety days, as found at 7 CFR 273.16(e)(2)(iv), 42 CFR 431.244(f), and 45 CFR 205.10(a)(16) or sixty days, as found at 7 CFR 273.15(c)(1). If the request for additional time is not accompanied by such a written waiver, the record shall be held open for no more than three additional days. If an expedited hearing has been requested, no additional time may be granted unless a written withdrawal of the request for an expedited hearing accompanies the request for additional time.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995.

N.D. Admin. Code 75-01-03-18 Withdrawal or abandonment

1.An appeal may not be dismissed without hearing unless:

a.The claimant withdraws or abandons the appeal; or

b.The department reverses the decision appealed without a hearing.

2.A withdrawal occurs when the hearing officer is notified by the claimant that the claimant no longer wishes to have a hearing.

3.An abandonment occurs when:

a.The claimant or the claimant's authorized representative fails to appear at the hearing without good cause; or

b.The claimant cannot be located through the claimant's last address of record, or through the claimant's authorized representative, and such inability to locate the claimant precludes the scheduling of a hearing.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1, 2018; January 1, 2019.

N.D. Admin. Code 75-01-03-19 Errors or delays by officials

Errors made by public officials or delays caused by public officials may not form the basis for an award of any benefit to an adversely affected applicant or recipient who would not have been eligible to receive that benefit in the absence of the error or delay.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995.

N.D. Admin. Code 75-01-03-20 Appeals procedures for determinations affecting participation of intermediate care facilities for individuals with intellectual disabilities and certain nursing facilities in Medicaid. 1.a.This section sets forth the appeals procedures the department makes available:

(1)To a nursing facility that is dissatisfied with the department's finding of noncompliance that has resulted in an enforcement action under chapter 75-02-05.2; or (2)To an intermediate care facility for individuals with intellectual disabilities that is dissatisfied with the department's finding of noncompliance with Medicaid program requirements that has resulted in the denial of a provider agreement or the termination or nonrenewal of its provider agreement as a sanction imposed under

chapter 75-02-05.

b.This section also sets forth the special rules that apply in particular circumstances, the limitations on the grounds for appeal, and the scope of review during a hearing. 2.a.Except as provided in subdivision b, a facility is entitled to a full evidentiary hearing, as described in subsection 3, on any of the actions specified in subsection 1.

b.A facility may not appeal:

(1)The choice of sanction or remedy;

(2)The state monitoring remedy;

(3)The loss of approval for a nurse aide training program; or (4)The level of noncompliance found by the state survey agency except when a favorable decision would affect the amount of the civil money penalty imposed under section 75-02-05.2-02.

3.The appealing facility is entitled:

a.To appear before an impartial hearing officer to refute the finding of noncompliance upon which the department has based an action taken under subsection 1;

b.To be represented by counsel or other representative; and

c.To be heard directly or through its representative, to call witnesses, and to provide documentary evidence.

4.In appeals disputing the imposition of a civil money penalty:

a.The department's finding as to a nursing facility's level of noncompliance must be upheld unless it is clearly erroneous; and

b.Upon a finding that a basis for imposing a civil money penalty exists, the appeal decision may not:

(1)Set a penalty of zero or reduce a penalty to zero;

(2)Review the exercise of discretion by the department to impose a civil money penalty; or (3)Consider any factors in reviewing the amount of the penalty other than the factors described in subsection 6 of section 75-02-05.2-04 and the facility's degree of culpability. For purposes of this paragraph, "culpability" includes neglect, indifference, or disregard for resident care, comfort, or safety. The absence of culpability is not a mitigating circumstance in reducing the amount of the penalty.

5.An appeal may be perfected by mailing or delivering the information described in subdivisions a through c to the appeals supervisor. The mailed or delivered material must arrive at the office of the appeals supervisor on or before five p.m. on the sixtieth day from the date of the notice of an action appealable under subdivision a of subsection 1. The appeal request must include:

a.A statement of each disputed deficiency and the reason or basis in fact for the dispute;

b.The authority in statute or rule upon which the appealing party relies for each disputed item; and

c.The name, address, and telephone number upon whom all notices regarding the appeal must be served.

6.An appeal of a deficiency may not suspend or delay enforcement action except as provided in this section and chapter 75-02-05.2.

7.If an intermediate care facility for individuals with intellectual disabilities requests a hearing concerning a finding of noncompliance with Medicaid program requirements that has resulted in an action under paragraph 2 of subdivision a of subsection 1, the evidentiary hearing must be completed within one hundred twenty days after the effective date of the action based on that finding.

8.If a nursing facility requests a hearing on the denial or termination of its provider agreement, the request does not delay the denial or termination and the hearing decision need not be issued before the effective date of the denial or termination.

February 1, 1997; July 1, 2012; April 1, 2018.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995;
• Law Implemented: NDCC 50-06-05.1; 42 CFR 431.151, et seq.

N.D. Admin. Code 75-01-03-21 Submission of proposed decision

After the hearing has been closed, the hearing officer shall issue a recommended decision for review by the appeals supervisor and submission to the executive director or the executive director's designee. The recommended decision must include a statement of the facts and of the statutes, regulations, rules, or policies involved and the reasoning that supports the recommended decision.

January 1, 2019.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995;
• General Authority: NDCC 28-32-02

N.D. Admin. Code 75-01-03-22 Decision by department

1.The decision of the department must be made by the executive director or the executive director's designee.

2.The executive director, or the executive director's designee, after receiving the hearing officer's recommended decision may:

a.Adopt the recommended decision in its entirety;

b.Decide the matter on the record; or

c.Order another hearing to be conducted.

3.Prior to taking action under subsection 2, the executive director, or the executive director's designee, may secure assistance or advice from staff assistants:

a.Without the communication of advice or assistance being treated as an ex parte communication in violation of North Dakota Century Code section 28-32-37, if the assistants do not furnish, augment, diminish, or modify the evidence in the record; or

b.After transmitting the relevant information or evidence, or an abstract thereof, to each party of record in the appeal, and affording each party an opportunity to examine the information, evidence, or abstract, and to present the party's own information or evidence in a hearing to be called on at least ten days' notice, all pursuant to North Dakota Century Code section 28-32-07, if the communication of advice or assistance furnishes, augments, diminishes, or modifies the evidence in the record.

4.For purposes of this section, staff communications that analyze the correct application of law,

rule, regulation, or policy to the evidence in the record do not furnish, augment, diminish, or modify the evidence in the record and do not constitute relevant information or evidence that require notice of an ex parte communication pursuant to North Dakota Century Code section 28-32-37 or furnishing a copy of the advice or assistance to each party of record in the proceeding pursuant to North Dakota Century Code section 28-32-07.

5.The decision rendered for the department must be in writing. It must include a statement of the facts and of the statutes, regulations, rules, or policies involved and the reasoning which supports the decision.

January 1, 2019.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995;

N.D. Admin. Code 75-01-03-23 Notice of decision

1.After a decision is rendered by the executive director or the executive director's designee, the appeals supervisor shall mail a copy to the claimant and the human service zone, nursing facility, or division of the department that made the determination under appeal. The notice of decision must also contain a statement explaining the right to request a rehearing or reconsideration unless the decision is itself a decision on rehearing or reconsideration.

2.The notice may be mailed by certified mail, return receipt requested, by certified mail, or by regular mail. If notice is given by certified mail without return receipt or by regular mail, an affidavit of mailing indicating to whom the order was mailed must be prepared.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1, 2018; January 1, 2019.

N.D. Admin. Code 75-01-03-24 Preservation of record

The verbatim record of the testimony and exhibits, or an official report containing the substance of what transpired at the hearing, together with all papers and requests filed in the proceeding, the hearing officer's recommended decision, and the department's decision constitute the exclusive record for decision and must be available to the parties to the appeal at any reasonable time for three years after the date of the department's decision in all supplemental nutrition assistance program cases, and for ninety days after the date of the department's decision in all other cases. A transcribed copy of recorded testimony requested within ninety days after the date of the department's decision must be made available to the claimant or a human service zone upon payment of a reasonable transcription fee.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995; April 1,

N.D. Admin. Code 75-01-03-25 Rehearing and reconsideration

1.A request for a rehearing or for reconsideration must be filed with the office of the appeals supervisor within fifteen days after a decision is issued by the executive director. The request must be based upon new evidence indicating that an unjust or invalid determination has been made, or upon an allegation that the director has incorrectly interpreted relevant statutory or case law.

2.If the request for rehearing is to permit presentation of additional evidence, the request must:

a.Describe the additional evidence;

b.Show why it was not previously introduced; and

c.Explain its materiality.

3.The executive director may order a rehearing, or may reconsider, on the director's own motion.

4.The grant of a rehearing or reconsideration, either upon request or upon the director's own motion, is a matter for the director's discretion.

5.If a request for a rehearing or reconsideration is granted, the director may:

a.Order reconsideration of the decision on the basis of the evidence in the record;

b.Order the taking of additional evidence; or

c.Order an entire new hearing.

6.A decision issued upon a request for rehearing or for reconsideration must not be subject to further hearing.

7.Notice of a decision upon a request for rehearing or for reconsideration must be given as provided for in section 75-01-03-23.

History

• History: Effective September 1, 1979; amended effective January 1, 1984; February 1, 1995.

N.D. Admin. Code 75-01-03-26 Appeals supervisor address

The appeals supervisor's address is:

Appeals Supervisor North Dakota Department of Human Services State Capitol - Judicial Wing 600 East Boulevard Avenue - Department 325 Bismarck, North Dakota 58505-0250

History

• History: Effective April 1, 2018.

Chapter 75-01-04 Human Services Grant Program [Repealed]

N.D. Admin. Code 75-01-04 Human Services Grant Program [Repealed]

CHAPTER 75-01-04

HUMAN SERVICES GRANT PROGRAM [Repealed effective April 1, 2020]

Article 75-02 Economic Assistance

Chapter 75-02-01 Aid to Families with Dependent Children [Repealed]

N.D. Admin. Code 75-02-01 Aid to Families with Dependent Children [Repealed]

ARTICLE 75-02

ECONOMIC ASSISTANCE

Chapter 75-02-01Aid to Families With Dependent Children [Repealed] 75-02-01.1Aid to Families With Dependent Children [Repealed] 75-02-01.2Temporary Assistance for Needy Families Program 75-02-01.3Child Care Assistance 75-02-02Medical Services 75-02-02.1Eligibility for Medicaid 75-02-02.2Children's Health Insurance Program [Repealed] 75-02-02.3[Reserved] 75-02-02.4Home and Community-Based Services Informed Choice Referrals 75-02-03Homes for Aged and Infirm [Superseded] 75-02-04Child Support Division 75-02-04.1Child Support Guidelines 75-02-04.2State Disbursement Unit 75-02-05Provider Integrity 75-02-05.1Nursing Home Sanctions [Repealed] 75-02-05.2Nursing Facility Enforcement Action 75-02-06Ratesetting for Nursing Home Care 75-02-07Provider Reimbursement - Basic Care Facilities [Repealed] 75-02-07.1Ratesetting for Basic Care Facilities 75-02-08Homes for the Aged and Infirm [Repealed] 75-02-09Ratesetting for Psychiatric Residential Treatment Facilities 75-02-10Aid to Vulnerable Aged, Blind, and Disabled Individuals 75-02-11Food Stamp Program [Repealed] 75-02-12Housing Assistance 75-02-13Family Paid Caregiver Program

CHAPTER 75-02-01

AID TO FAMILIES WITH DEPENDENT CHILDREN [Repealed effective March 1, 1995]

Chapter 75-02-01.1 Aid to Families with Dependent Children [Repealed]

N.D. Admin. Code 75-02-01.1 Aid to Families with Dependent Children [Repealed]

CHAPTER 75-02-01.1

AID TO FAMILIES WITH DEPENDENT CHILDREN [Repealed pursuant to North Dakota Century Code Section 28-32-18.1, effective July 17, 2002]

Chapter 75-02-01.2 Temporary Assistance for Needy Families Program

N.D. Admin. Code 75-02-01.2 Temporary Assistance for Needy Families Program

CHAPTER 75-02-01.2

TEMPORARY ASSISTANCE FOR NEEDY FAMILIES PROGRAM

Section 75-02-01.2-01Definitions 75-02-01.2-02Human Service Zone Demonstration Projects 75-02-01.2-02.1Diversion 75-02-01.2-02.2Kinship Care Assistance 75-02-01.2-02.3Transition Assistance 75-02-01.2-03Request for Benefits 75-02-01.2-03.1Upfront Eligibility 75-02-01.2-04Applicant's or Guardian's Duty to Establish Eligibility 75-02-01.2-05Verification 75-02-01.2-06Selection of Primary Individual 75-02-01.2-07Presumptive Eligibility [Repealed] 75-02-01.2-08Notification of Program Requirements 75-02-01.2-09Decision and Notice 75-02-01.2-10Review - Must Be Complete and Timely 75-02-01.2-11Good Cause for Failure to Submit Complete and Timely Monthly Report [Repealed] 75-02-01.2-12Determining Claims of Good Cause 75-02-01.2-13Residence 75-02-01.2-14Deprivation of Parental Support or Care 75-02-01.2-15Continued Absence of a Parent 75-02-01.2-16Unemployment of the Principal Wage Earner - Pay After Performance [Repealed] 75-02-01.2-17Death of a Parent 75-02-01.2-18Incapacity of a Parent 75-02-01.2-19Legal Custody [Repealed] 75-02-01.2-20Eligibility Throughout Month 75-02-01.2-21Asset Considerations 75-02-01.2-22Asset Limits 75-02-01.2-23Exempt Assets 75-02-01.2-24Lump Sums Received by a Member of the Household 75-02-01.2-25Good-Faith Effort to Sell Real Property 75-02-01.2-26Disqualifying Transfers 75-02-01.2-27Social Security Numbers 75-02-01.2-28Eligibility for Aliens Who Arrived Before August 22, 1996 [Repealed] 75-02-01.2-28.1Eligibility for Aliens Who Arrived on or After August 22, 1996 [Repealed] 75-02-01.2-29Ineligibility Due to Participation in Strikes 75-02-01.2-30Limitation on Benefits to Pregnant Women 75-02-01.2-30.1Benefit Cap [Repealed] 75-02-01.2-31Age of Parent - Effect on Eligibility 75-02-01.2-32Value of Benefit 75-02-01.2-33Assignment of Right to Support 75-02-01.2-34Good Cause for Failure or Refusal to Cooperate in Obtaining Support or Establishing Paternity 75-02-01.2-35Combined Requirements 75-02-01.2-35.1Time Limit on Certain Benefits - Exceptions 75-02-01.2-36Determining Membership in Training, Education, Employment, and Management Household [Repealed] 75-02-01.2-37Determining Membership of the Household 75-02-01.2-38Determining Membership of the Food Stamp Filing Unit [Repealed] 75-02-01.2-39Determining Membership of the Low Income Home Energy Assistance Program Filing Unit [Repealed] 75-02-01.2-40Combined Supplemental Security Income and Temporary Assistance for Needy Families Households 75-02-01.2-41Recipients Living Out of State 75-02-01.2-42Grant Amount in Whole Dollars 75-02-01.2-43Benefits Less Than Ten Dollars 75-02-01.2-44Income Described 75-02-01.2-45Excluded Income 75-02-01.2-46Gross Income Test [Repealed] 75-02-01.2-47Budgeting Process 75-02-01.2-48Net Income Test 75-02-01.2-49Income Considerations 75-02-01.2-50Earned Income Considerations 75-02-01.2-51Disregarded Income 75-02-01.2-52Voluntary Quit or Refusal of Employment 75-02-01.2-53Deduction for Dependent Care 75-02-01.2-54Unearned Income Considerations 75-02-01.2-55Reinstatement Following Suspension or Case Closing [Repealed] 75-02-01.2-56Computing Payment for First and Second Months of Eligibility [Repealed] 75-02-01.2-57Computing Payment for Months Following the Second Month of Eligibility [Repealed] 75-02-01.2-58Computing Payment Where Individuals Are Added to the Household 75-02-01.2-59Computing Payments Where Individuals Leave the Household 75-02-01.2-60Computing Payment Where Stepparent Is Deemed 75-02-01.2-61Computing Benefits When an Individual's Needs Are Deleted From the Cash Grant 75-02-01.2-62Computing Payment for a Child in Boarding School 75-02-01.2-63Budgeting in Unusual Circumstances 75-02-01.2-64Essential Services 75-02-01.2-65Catastrophic Events and Unforeseen Circumstances 75-02-01.2-66Medical Insurance Premiums 75-02-01.2-67Child Restraint Systems 75-02-01.2-68High School Graduate or General Equivalency Diploma Incentive Payment 75-02-01.2-68.1Housing Allowance 75-02-01.2-69Unrestricted Payment of Assistance - Exceptions 75-02-01.2-70Payee 75-02-01.2-71Making Payment - Correcting Overpayments and Underpayments 75-02-01.2-72Intentional Program Violation - Disqualification Penalties 75-02-01.2-72.1Denial of Assistance for Fugitive Felons and Probation and Parole Violators 75-02-01.2-73Health Tracks 75-02-01.2-74Assessment and Case Plan [Repealed] 75-02-01.2-75Temporary Assistance for Needy Families Social Contract [Repealed] 75-02-01.2-76Social Contract [Repealed] 75-02-01.2-77Annual Reassessment [Repealed] 75-02-01.2-78Mandatory Contract Requirements [Repealed] 75-02-01.2-79Sanctions for Noncompliance With Temporary Assistance for Needy Families Program Requirements 75-02-01.2-80Good Cause Determination 75-02-01.2-81Good Cause for Failure to Complete Temporary Assistance for Needy Families Social Contract [Repealed] 75-02-01.2-82Job Opportunities and Basic Skills Program - Definitions 75-02-01.2-83Job Opportunities and Basic Skills Program - Basic Requirements [Repealed] 75-02-01.2-84Job Opportunities and Basic Skills Program - Satisfactory Participation 75-02-01.2-85Job Opportunities and Basic Skills Program - Work Requirements 75-02-01.2-86Job Opportunities and Basic Skills Program - Tribal Native Employment Works Program 75-02-01.2-87Job Opportunities and Basic Skills Program - Exemptions From Participation 75-02-01.2-88Job Opportunities and Basic Skills Program - Referral 75-02-01.2-89Job Opportunities and Basic Skills Program - Orientation, Assessment, and Employability Planning [Repealed] 75-02-01.2-90Job Opportunities and Basic Skills Program - Supportive Services and Post Temporary Assistance for Needy Families Supportive Services 75-02-01.2-91Job Opportunities and Basic Skills Program - Educational Activities Related to Secondary Education, Basic and Remedial Education, or Education in English Proficiency [Repealed] 75-02-01.2-92Job Opportunities and Basic Skills Program - Job Skills Training Directly Related to Employment [Repealed] 75-02-01.2-93Job Opportunities and Basic Skills Program - Unsubsidized Employment [Repealed] 75-02-01.2-94Job Opportunities and Basic Skills Program - Job Search and Job Readiness [Repealed] 75-02-01.2-95Job Opportunities and Basic Skills Program - Job Development and Job Placement Activities [Repealed] 75-02-01.2-96Job Opportunities and Basic Skills Program - Vocational Education [Repealed] 75-02-01.2-97Job Opportunities and Basic Skills Program - Provision of Child Care Services to Another Participant Engaged in a Community Service Program [Repealed] 75-02-01.2-98Job Opportunities and Basic Skills Program - Work Experience and Community Service Program [Repealed] 75-02-01.2-99Job Opportunities and Basic Skills Program - Work Readiness Activities [Repealed] 75-02-01.2-100Job Opportunities and Basic Skills Program - On-the-Job Training [Repealed] 75-02-01.2-101Job Opportunities and Basic Skills Program - Subsidized Public or Private Sector Employment [Repealed] 75-02-01.2-102Job Opportunities and Basic Skills Program - Failure or Refusal to Participate 75-02-01.2-103Job Opportunities and Basic Skills Program - Good Cause for Failure or Refusal to Comply With a Referral to, or Participate in, the Job Opportunities and Basic Skills Program 75-02-01.2-104County Administration [Repealed] 75-02-01.2-01. Definitions.

Unless otherwise stated in this section, the definitions set forth in North Dakota Century Code

section 50-09-01 apply to this chapter. Additionally, in this chapter, unless the context or subject matter requires otherwise:

1."Applicant" means an individual who is seeking a benefit under this chapter.

2."Asset" means any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested with possessory rights.

3."Assistance" includes cash, payments, vouchers, and other forms of benefits designed to meet a family's ongoing basic needs, but does not include nonrecurring, short-term benefits, work subsidies, supportive services provided to families who are employed, and refundable earned income tax credits.

4."Benefit month" means the calendar month for which eligibility and benefits are computed.

5."Benefits" means the amount issued for a household.

6."Caretaker relative" means the relative so designated by the household who:

a.Lives with an eligible dependent child;

b.Is a pregnant woman, caretaker relative to no dependent child; or

c.Lives with a dependent child, under age eighteen and receiving supplemental security income benefits, who is the last child in the home.

7."Child only case" means a case in which the only eligible individual is a dependent child and the caretaker relative is ineligible as a nonlegally responsible caretaker, or as a legally responsible caretaker due to being a supplemental security income recipient, a disqualified alien, a disqualified fleeing felon, a disqualified parole violator, a disqualified probation violator, or disqualified for committing fraud.

8."Child support agency" has the same meaning as defined in North Dakota Century Code

section 14-09-09.10.

9."Department" means the North Dakota department of health and human services.

10."Dependent child" means a needy child:

a.Who lives in the home of a relative by birth, marriage, or adoption;

b.Who has been deprived of parental support or care by reason of:

(1)The continued absence of a parent from the home, other than absence occasioned solely by reason of the performance of active duty in the uniformed services of the United States;

(2)The death of a parent; or (3)The physical or mental incapacity of a parent; and

c.Who is:

(1)Under the age of eighteen; or (2)Under the age of nineteen and a full-time student in a secondary school or a vocational or technical school that is equivalent to a secondary school, if, before the end of the calendar month in which the student attains age nineteen, the student may reasonably be expected to complete the program of such school.

11."Earned income" means income currently received as wages, salaries, commissions, or profits from activities in which a household member is engaged through either employment or self-employment. There must be an appreciable amount of personal involvement and effort, on the part of the household, for income to be considered earned.

12."Eligible caretaker relative" means a caretaker relative who:

a.If, related to an eligible dependent child as a brother or sister, is not under sixteen years of age;

b.If deprivation of parental support or care is by reason of the incapacity or disability of a parent, is the incapacitated or disabled parent or the eligible dependent child's other parent, but not stepparent;

c.If deprivation of parental support or care is by reason of the death or continued absence of a parent, is the eligible dependent child's other parent, but not stepparent;

d.Is not a recipient of supplemental security income benefits; and

e.Is in financial need;

f.Is a pregnant woman, caretaker relative to no other dependent or legally responsible caretaker child, who or whose husband is incapacitated; or

g.Is related to a dependent child by birth, whether by whole or half-blood, by marriage, or by adoption, and who is within the fifth degree of relationship to that child.

13."Family" includes:

a.An individual or group of related individuals within a household whose needs are recognized in a grant of benefits through temporary assistance for needy families;

b.The parents of any dependent child and all brothers and sisters of any dependent child, whether by whole or half-blood, marriage, or adoption, any child, parent of an eligible dependent child, or other caretaker relative who receives supplemental security income benefits;

c.An alien who does not meet citizen and alienage requirements;

d.An alien who is ineligible for temporary assistance for needy families benefits because of the application of sponsor-to-alien deeming;

e.An individual who is ineligible for temporary assistance for needy families benefits as the result of the imposition of a sanction or disqualification; and

f.An individual who is a household member who is a legal dependent or a legally responsible caretaker of a member of the household, but does not include roomers or boarders.

14."Full-time student" means a student who:

a.If in a secondary school, is enrolled in classes which, if completed, will earn the student four or more units of credit;

b.If in a vocational or technical school under state operation, a college, or a university, is enrolled in classes that, if completed, will earn the student twelve or more semester hours of credit during a regular term or six or more semester hours of credit during a summer term at an educational facility operating on a semester system, or twelve or more quarter hours of credit during a regular term or six or more quarter hours of credit during a summer term at an educational facility operating on a quarter system;

c.If in a private vocational or technical school, is enrolled in classes which, according to a written statement from school officials, constitutes full-time enrollment;

d.Is enrolled in an accredited alternative high school, correspondence courses, or adult basic education, according to a written statement from school officials or who is home schooled; or

e.Is an individual participating in job corps, whether an adult or a child.

15."Housing costs" means the full amount of rent or, if purchasing a home, the full amount of the mortgage, property insurance, property taxes, special assessments, repairs, and improvements of the home.

16."Ineligible caretaker relative" means a caretaker relative who is not an eligible caretaker relative.

17."Legally responsible" means having a legal duty for the financial support of another individual.

18."Lives in the home of a relative" means a circumstance that arises when a relative assumes and continues responsibility for the day-to-day care and control of a child in a place of residence maintained by the relative (whether one or more) as the relative's own home. It includes situations in which the child or the relative requires medical treatment that requires a special living arrangement. It also includes situations in which the child is temporarily absent from the home, with a plan to return, when the child:

a.Physically resides in the home, but is under the jurisdiction of a court and is receiving probation services or protective supervision;

b.Receives education while in an educational boarding arrangement in another community if needed specialized services or facilities are unavailable in the home community or if transportation problems make school attendance near home difficult or impossible;

c.Receives services at a summer camp such as Camp Grassick, receives services at an attention deficit hyperactivity disorder summer camp, or receives extended hospital stays during the summer months;

d.Receives special education at the school for the deaf or school for the blind, whether as a day student or a boarding student, except that a boarding student's needs are limited to those maintenance items that are not provided by the school; or

e.Receives education at a boarding school in another community, provided the child was not placed in that setting following removal from the child's home by court order following a determination the child was abused, neglected, or deprived, except the child is entitled to a clothing and personal needs allowance only if that allowance is made available for the child's use on a regular basis.

19."Parent" means the child's mother or father, whether by birth or adoption, but does not mean:

a.An individual whose parental rights have been terminated with respect to that child; or

b.A stepparent.

20."Part-time student" means an individual enrolled in a secondary school, vocational school, correspondence courses, technical school, college, or university, or who is home schooled, who is not a full-time student.

21."Proper individual" means any individual of sufficient maturity and understanding to act responsibly on behalf of the applicant.

22."Prospective budgeting" means the determination of a household's benefits based on income and circumstances for the benefit month.

23."Prudent person concept" means a method or program administration that relies upon individual staff members:

a.To exercise judgment in requesting, reviewing, and weighing information provided by an applicant, recipient, or any source of verification; and

b.To be attentive, vigilant, cautious, perceptive, and governed by reason and common sense.

24."Recipient" means an individual who receives cash assistance under this chapter.

25."Relative by birth, marriage, or adoption" means an individual related to the dependent child by birth, whether by blood or half-blood, by marriage including a marriage that has been terminated by death or divorce, or by adoption, as father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, or first cousin.

26."Sanction penalty month" means the month in which a sanctioned individual's financial needs may be removed from a household's temporary assistance for needy families grant.

27."Special item of need" means an additional benefit paid to a temporary assistance for needy families household to reimburse certain expenses that are not included in the basic standard of need. These items include health insurance premiums, car seats, essential service, house allowance, and catastrophic events.

28."Standard employment expense allowance" means twenty-seven percent of earned income, or one hundred eighty dollars, whichever is greater, to be first disregarded from the earned income of any child or adult relative applying for benefits under this chapter, or any other individual whose needs are taken into account in determining eligibility under this chapter, but whose earned income is not required to be wholly disregarded as the income of a child who is a full-time student or a part-time student who is not a full-time employee.

29."Stepparent" means an individual married to a parent of a child after the birth or adoption of the child, but who is not also a parent of that child by either birth or adoption.

30."Supplemental security income" means a program administered under title XVI of the Social Security Act [42 U.S.C. 1381 et seq.].

31."Supportive services" means services and benefits approved by the department and provided to a household based on eligibility for job opportunities and basic skills program activities, transition assistance, kinship care assistance, post temporary assistance for needy families, or diversion as outlined in this chapter.

32."Temporary assistance for needy families" means a program administered under North Dakota Century Code chapter 50-09 and title IV-A of the Social Security Act [42 U.S.C. 601 et seq.] during periods beginning July 1, 1997.

33."Temporary assistance for needy families household" means an individual or group of individuals who reside together and includes at least one individual in receipt of temporary assistance for needy families.

34."Unearned income" means income that is not earned income.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005;

January 1, 2011; January 1, 2014; April 1, 2024; April 1, 2026. 75-02-01.2-02. Human service zone demonstration projects.

Human service zone within North Dakota may, with the department's approval, conduct a temporary assistance for needy families demonstration project in defined areas which may provide benefits and services that are not identical to benefits and services provided elsewhere in North Dakota.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005. 75-02-01.2-02.1. Diversion.

Diversion may be provided to a family experiencing a specific crisis situation or episode of need.

Diversion is not assistance under title 45, Code of Federal Regulations, part 260.31, and is not a benefit for purposes of North Dakota Century Code section 50-09-06.1. Diversion may be provided to a family that meets all factors of eligibility for assistance under the temporary assistance for needy families program except as provided in this section.

1.A family may not receive diversion and a temporary assistance for needy families grant in the same month. A family may receive diversion for up to four months within a twelve-month period beginning in the month diversion is provided. A family that includes a caretaker who is not a legally responsible relative of a child member of the family may not receive diversion.

2.Diversion may be provided to defray expenses necessary to retain or obtain employment.

Within the limits described by the department, additional funds may be made available to a participant who would be unable to enter into or remain in a work activity without the use of those funds. Necessary expenses incurred in retaining or obtaining employment must be verified.

3.Cooperation in obtaining support or establishing paternity for any child member of the family is permitted but not required.

4.An applicant may appeal a denial, limitation, or termination of diversion, and a recipient of diversion may appeal termination or reduction of diversion, by making a written request for a hearing within thirty days from the date of the notice of adverse action. If diversion is denied or the case is closed, diversion may not be provided pending completion of the fair hearing process. If diversion is reduced, benefits may be continued only based on the reduced level, pending completion of the fair hearing process.

5.A month in which diversion is received does not count toward the temporary assistance for needy families sixty-month lifetime limit provided under section 75-02-01.2-35.1.

6.If a diversion household is determined to have a recurrent or ongoing need, the diversion case must be closed and the household may reapply under temporary assistance for needy families to meet the recurrent or ongoing needs.

7.Diversion households are not subject to an asset limit.

8.Diversion households are subject to an annual federal poverty level determined by the federal government.

History: Effective June 1, 2005; amended effective January 1, 2009; January 1, 2011; April 1, 2026. 75-02-01.2-02.2. Kinship care assistance.

1.Kinship care provides a monthly maintenance payment and supportive services to a child residing outside the child's parental home with a caretaker who is related to that child within the fifth degree of kinship. To be eligible:

a.A court of competent jurisdiction must have entered an order placing a child's care, custody, and control with a human service zone, an official of a human service zone, the executive director of the department, the division of juvenile services, or with a tribal agency; and

b.Before placing a child in kinship care for more than thirty days, the child's custodian must have completed a family study, a child abuse and neglect background check, and other investigations, as identified in chapter 75-03-14, as the department may determine necessary to demonstrate that:

(1)The home in which care is provided is in fit and sanitary condition and properly equipped to provide good care to the child;

(2)The caretaker and other adults residing in the home of the caretaker properly qualify to carry out the duties and responsibilities of a kinship care provider;

(3)Kinship care provided in the home is for the public good in accordance with sound social policy and with due regard to the health, morality, and well-being of all children cared for in the home; and (4)The home is maintained according to standards prescribed for its conduct by the department.

2.Within the limits established by the department, supportive services may provide reimbursements for child care expenses, transportation, clothing, emergent needs, activity fees, and, as a payer of last resort, reasonable legal fees incurred by or on behalf of a child and approved by the department.

3.For purposes of this section, a relative is within the fifth degree of kinship if the relative by birth, marriage, or adoption, is the child's sibling; niece; nephew; grandniece; grandnephew; grandparent; aunt; uncle; first cousin; first cousin once removed; great-grandparent; great-aunt; great-uncle; parent's first cousin; great, great-grandparent; great, great-aunt; great, great-uncle; or great, great, great-grandparent.

4.Kinship care monthly maintenance payments must be the same as the standard of need amount for a shared living arrangement for a child under the temporary assistance for needy families program and an additional monthly amount established by the department.

History: Effective June 1, 2005; amended effective January 1, 2009; January 1, 2011; January 1, 2017;

January 1, 2020. 75-02-01.2-02.3. Transition assistance.

Transition assistance promotes job retention by providing an extended period of cash assistance to qualified families under temporary assistance for needy families. Households with earnings from employment exceeding the allowable standard of need for their household size may remain eligible for transition assistance for up to six months. Transition assistance is assistance under title 45, Code of Federal Regulations, part 260.31, and is a benefit for purposes of North Dakota Century Code section 50-09-06.1. Transition assistance may be provided to a family that meets all factors of eligibility for assistance under the temporary assistance for needy families program except as provided in this

section. For purposes of this section, "caretaker" means an individual who provides support to a minor child and who may or may not receive benefits. All provisions of this chapter apply except:

1.A family may not receive a grant for transition assistance in any month in which that family receives a grant for temporary assistance for needy families or diversion assistance.

2.Transition assistance may not be provided in an application month. Only recipients of temporary assistance for needy families may become eligible for transition assistance.

3.Transition assistance provides a monthly job retention incentive in an amount approved by the department, transportation assistance, and special items of need as allowed under the temporary assistance for needy families program.

4.A family may not receive transition assistance for more than six consecutive months.

5.Transition assistance may not be provided to:

a.A caretaker sanctioned due to noncompliance with work requirements;

b.A caretaker relative, in a child-only case;

c.A minor parent who is not the head of household or spouse of the head of household;

d.An alien who is ineligible to receive assistance due to his or her immigration status;

e.A caretaker in receipt of supplemental security income benefits; and

f.A caretaker with a disqualification penalty applied for a voluntary job quit or voluntary refusal of an offer of employment or training for employment.

History: Effective January 1, 2009; amended effective January 1, 2011; April 1, 2024; April 1, 2026. 75-02-01.2-03. Request for benefits.

1.All individuals wishing to request assistance from the temporary assistance for needy families program shall have the opportunity to do so, without delay.

2.A request for benefits is a written request made by an individual desiring assistance under the program, or by a proper individual seeking such assistance on behalf of another individual, to a human service zone.

3.A request for benefits must be in writing and signed on a prescribed application form.

4.A prescribed request for benefits form must be signed by the applicant if the applicant is physically and mentally able to do so. An application made on behalf of an applicant adjudged incompetent by a court must be signed by the guardian.

5.Information concerning eligibility requirements, available services, and the rights and responsibilities of applicants and recipients must be furnished to all who require it.

6.The date of the request for benefits is the date the applicant-signed form is received in the human service zone. 75-02-01.2-03.1. Upfront eligibility.

Unless first determined exempt or granted good cause for nonparticipation, the applicant, and any member of the family for whom temporary assistance for needy families is requested, shall, as a condition of eligibility, comply with the requirements of the child support agency and job opportunities and basic skills or a tribal native employment works program.

History: Effective June 1, 2005. 75-02-01.2-04. Applicant's or guardian's duty to establish eligibility.

It is the responsibility of the applicant or guardian of the applicant to provide information sufficient to establish the eligibility of each individual for whom assistance is requested, including the furnishing of a social security number or verification of application for a social security number, and the establishment of age, verification of relationship, identity, citizenship, verification of school attendance of any child age sixteen and older, and medical and social information to be used for any necessary incapacity determination, and financial eligibility. 75-02-01.2-05. Verification.

While eligibility for the program is determined in large measure on information supplied by the applicant or recipient, aspects of eligibility that must be supported by conclusive, documenting evidence include:

1.The existence of conditions requiring professional examinations or judgments to establish the existence of incapacity or pregnancy;

2.The amount and source of all income;

3.The equity value of assets whenever available information or the prudent person concept suggests that the equity value may exceed program limitations;

4.The basis for special need requests;

5.The relationship between any dependent child, caretaker relative, and any other member of the household whose presence, assets, or income may affect the composition, eligibility, or benefits of the household;

6.School attendance of any child sixteen or older;

7.Citizenship or alien status of household members;

8.The identity of each member of the household;

9.Proof of or application for a social security number; and

10.Any other factor of eligibility for which available information is lacking, questionable, or inconclusive, and which suggests to a prudent person that further inquiry or documentation is necessary. 75-02-01.2-06. Selection of primary individual.

1.Each household shall have a primary individual. The primary individual must be identified among the household members, with one of the following relationships to a dependent child member of the household, using the following order of priority:

a.A natural or adoptive parent;

b.An adult relative, within the fifth degree of kinship;

c.A stepparent;

d.A spouse of any individual identified in subdivision a, b, or c, whether or not that marriage is terminated by death or divorce; and

e.A minor brother, sister, half-brother, half-sister, stepbrother, or stepsister who is at least sixteen years of age.

2.The primary individual may be eligible or ineligible for the assistance.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2017; April 1, 2024. 75-02-01.2-07. Presumptive eligibility. 75-02-01.2-08. Notification of program requirements.

All applicants must be notified of generally applicable program requirements and of related services through the provision of brochures and through the provision of responses to inquiries made by applicants concerning program requirements. Applicants and recipients are responsible to call attention to their particular circumstances, and to inquire as to the effect of those circumstances on eligibility. 75-02-01.2-09. Decision and notice.

1.A decision as to eligibility must be made promptly on applications, within thirty days, except in unusual circumstances.

2.A decision as to eligibility on review must be made within thirty days.

3.Immediately upon an eligibility determination, whether eligibility can be found, ineligibility can be found, or eligibility cannot be determined, the human service zone shall notify program applicants or recipients. Adequate notice of any decision terminating or reducing benefits must be sent at the time required by section 75-01-03-08.

4.The effective date a case is closed is the last calendar day of the month identified in the notice.

5.Errors made by public officials and delays caused by the actions of public officials do not create eligibility or additional benefits for an applicant or recipient who is adversely affected.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; April 1, 2026. 75-02-01.2-10. Review - Must be complete and timely.

1.If the human service zone receives a completed review, it shall process the review only if all eligibility conditions are met. The human service zone shall notify the household of any changes to the household's payments. If payment is being reduced or assistance terminated as a result of information provided in the review, the human service zone shall send an adequate notice. The household may be reinstated to the original payment amount if an appeal of the decision described in the notice is made within ten days of the date of the notice.

2.A human service zone may terminate assistance if it did not receive a timely review or has received only an incomplete review. The human service zone shall send an adequate notice, mailed to arrive no later than the date it would have made payment if the human service zone had received a timely and complete review. If the household notifies the human service zone and files a complete review within ten days of the date of the notice, the human service zone may accept the replacement review and provide for payment based on the review only if the information indicates that the household is still eligible. If, based on the replacement review, the household is found ineligible or eligible for an amount less than the original payment amount, the human service zone shall promptly notify the household of the right to a fair hearing and, if a hearing is requested within ten days from the date of the notice, the right to have payment reinstated to the original payment .

3.A review period must be assigned to the household as determined by the department.

4.While a review is pending and during the review period, households are required to report to the human service zone all changes within ten days from the date the change occurs to be considered reported timely. Required changes include a change in household members, a change in custody status of a household member, pregnancy, a change in marital status, a combined change in earned and unearned monthly income of more than one hundred dollars, the start or end of an income source, a change in assets, a change in resident or mailing address, or a change in student status.

5.If temporary assistance for needy families closes for failure to submit a review and the review is submitted in the month following the month of closure, the review may be used as an application and all application processing requirements apply. If the review form is received after the month following the month of closure due to failure to submit review, a new application is required.

History: Effective December 9, 1996; amended effective January 1, 2003; June 1, 2005; January 1, 75-02-01.2-11. Good cause for failure to submit complete and timely monthly report. 75-02-01.2-12. Determining claims of good cause.

Determinations concerning claims of good cause require the use of decisionmaking principles.

These principles must be applied to the individual's statements and information to determine if the requirements of good cause are met. The decisionmaking principles are:

1.The individual claiming good cause is responsible to show that good cause exists.

2.Uncorroborated statements of fact are less believable than corroborated statements.

Uncorroborated statements may be accepted if they are consistent, credible, and supported by the circumstances of the case.

3.Statements by individuals with a reputation for being untruthful are less believable than similar statements by individuals without that reputation.

4.A reputation for being untruthful exists if the files maintained by the department, the human service zone, or the job opportunities and basic skills program employment contractor contain evidence of untruthful statements made by the individual, or if the individual has made untruthful statements that are a matter of public record.

5.Statements by individuals with a reputation for failures or delays in furnishing information necessary for official action are less believable than similar statements by individuals without that reputation.

6.A reputation for failures or delays in furnishing information necessary for official action exists if the files maintained by the department, the human service zone, or a job opportunities and basic skills program employment contractor contain evidence of any failure or delay, without good cause, to furnish reports, including review forms, necessary verifications, or a failure or delay in attending meetings or interviews intended to secure information necessary for official action.

7.A statement of fact, made by an individual with something to gain if that statement is regarded as true, is less believable than a similar statement made by an individual with little or nothing to gain.

8.An individual's explanations or reasons for claiming good cause must be judged by a prudent person concept. A prudent person is one who exercises qualities of attention, knowledge, intelligence, and judgment, which society requires of its members for protection of their own interests and the interests of others.

9.Statements of fact made by the individual claiming good cause, or by other individuals who support or oppose the claim of good cause, are not presumed to be either truthful or untruthful. Rather, statements of fact must be evaluated to determine if they are more likely than not or less likely than not true.

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2009; April 1, 2024; April 1, 2026. 75-02-01.2-13. Residence.

1.There is no durational state residence required for eligibility for benefits.

2.No individual who is otherwise eligible may be denied assistance under the program if the individual resides in the state.

3.A resident of the state is one who:

a.Is living in the state voluntarily with the intention of making the individual's home there; or

b.At the time of application, is living in the state and is not receiving temporary assistance for needy families from another state.

4.For purposes of establishing the temporary assistance for needy families filing unit, a child is a resident of the state in which the child is living other than for a temporary basis. For all other purposes of this chapter, a child is a resident of the state in which the child is living.

5.Residence may not depend upon the reason for which the individual entered the state, except insofar as it may bear upon whether the individual is there voluntarily.

6.Residence is retained until abandoned.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-14. Deprivation of parental support or care.

A dependent child must be shown to be both "deprived of parental support or care" and "needy", although a causal relationship between the two need not exist. The phrase encompasses the situation of any child who is in need and otherwise eligible, and whose parent has died, is continually absent from the home, or is physically or mentally incapacitated. The requirement applies whether the parent was the chief breadwinner or devoted himself or herself primarily to the care of the child and whether or not the parents were married to each other. The determination that a child has been deprived of parental support or care is made in relation to the child's natural or adoptive parents.

History: Effective December 9, 1996; amended effective July 1, 1997. 75-02-01.2-15. Continued absence of a parent.

1.For purposes of this chapter:

a."Deprived of parental support or care by reason of the continued absence of a parent" means a situation that occurs when all of the following factors are present:

(1)The parent is physically absent from the home;

(2)The nature of the parent's absence is such as to interrupt or terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child;

(3)The known or indefinite duration of the absence precludes relying on the parent to perform the parent's functions in planning for the present support or care of the child.

b.A "parent's absence is such as to interrupt or terminate the parent's functioning as a provider of maintenance, physical care, or guidance for the child" only if one of these three functions is totally interrupted or finally terminated.

2.A determination that a parent's absence has or has not interrupted or terminated the parent's functioning must be supported by information provided by the applicant or otherwise available to the human service zone.

3.Except as provided in subsections 4 and 5, if all three of the conditions for showing deprivation by reason of the continued absence of a parent are met, the reason for the parent's absence and the length of the parent's absence is immaterial.

4.A parent who is performing active duty in uniformed service is "absent from the home" only if there is evidence that continued absence would have existed irrespective of the parent's serving in uniformed service. Acceptable evidence that such an absence exists includes proof of legal separation, desertion, or divorce, either final or in process. If there has been no legal action taken, some indication of how the parent came to be absent must be provided.

5.A parent temporarily living apart from the child or children while attending school or vocational training or working or seeking work in another community does not meet the requirements for continued absence as long as the parent continues to function as a parent, even if the level of support or care is deficient or diminished.

6.Types of parental absences frequently giving rise to dependency in children include:

a.Divorce. The continued absence of a parent may be established as the result of divorce.

b.Separation. Legal separation is an arrangement by which a husband and wife live apart, subject to a court order that may divide the parties' property, provide for spousal or child support, and provide for custody and visitation of children, but remain married. Such court orders may be temporary or permanent. Separation by mutual consent or agreement involves the discontinuance of the marital relationship without legal action.

Continued absence of a parent as a result of this arrangement can be established if there is no collusion between the parents to render the family eligible for temporary assistance for needy families.

c.Imprisonment. Imprisonment of a parent is a type of parental absence that creates dependency among children. Continued absence exists only if the parent is sentenced to and serves a thirty-day or longer term of incarceration unless:

(1)The term actually served is less than the sentence imposed;

(2)The term served is shortened by order of the court; and (3)Assistance has been issued before information about the shortened term is received by the human service zone.

d.Unmarried parenthood. A child born out of wedlock is deprived of parental support by reason of continued absence of a parent if the child's parents do not reside together.

e.Desertion. Desertion is the voluntary and willful abandonment, by a parent, of the parent's child or children without making adequate provision for the care and support of the child or children.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-16. Unemployment of the principal wage earner - Pay after performance.

Repealed effective July 1, 1997. 75-02-01.2-17. Death of a parent.

A child, if otherwise eligible for temporary assistance for needy families, may be deprived of parental care by reason of the death of a parent. The applicant shall verify that the deceased individual is the parent of the child.

History: Effective December 9, 1996; amended effective July 1, 1997. 75-02-01.2-18. Incapacity of a parent.

1.A child, if otherwise eligible for temporary assistance for needy families, is deprived of parental support or care when the child's parent has a physical or mental condition, supported by current competent medical testimony, of such a debilitating nature as to reduce substantially or eliminate the parent's capacity either to earn a livelihood or to discharge the parent's responsibilities as a homemaker and provider of child care for a period of thirty days or more.

In making a determination of incapacity to earn a livelihood, the department shall take into account the limited employment opportunities of individuals with disabilities.

2.The incapacity must substantially reduce or eliminate employment in the parent's usual occupation. If the incapacity does not allow the parent to be able to return to the parent's usual occupation, once medically capable, the parent will be expected to adapt to another occupation. It does not matter whether a parent was employed or fulfilled the role of homemaker prior to the onset of the asserted incapacity. Incapacity is established either when the individual is unable to earn a livelihood or to act as a homemaker. A parent may also establish incapacity by demonstrating that the parent has reached age sixty-five.

3.A determination that a parent is disabled or blind, made by the social security administration, constitutes adequate substantiation of incapacity for purposes of this section.

4.A parent continues to be incapacitated, for purposes of this section, if the incapacity is not reasonably subject to remediation, or if the parent makes reasonable progress toward remediation of the incapacity. For purposes of this section, reasonable progress toward remediation of the incapacity means cooperation with medical practitioners who prescribe a course of treatment intended to remediate or limit the effect of the incapacity, including physical therapy, counseling, use of prosthesis, drug therapy and weight loss, cooperation with vocational practitioners, cooperation with vocational and functional capacity evaluations, and reasonable progress in a course of training or education intended to qualify the parent to perform an occupation which, with that training or education, the parent would have the capacity to perform.

5.A parent who engages in activities inconsistent with the claimed incapacity may be determined to not be incapacitated.

6.The department may require a parent to demonstrate reasonable progress toward remediation of the incapacity, and may set reasonable deadlines for the demonstrations.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2014; April 1, 2024. 75-02-01.2-19. Legal custody. 75-02-01.2-20. Eligibility throughout month.

In the first month that eligibility is established, the benefit amount is prorated to the percentage of the month remaining as of the first day of eligibility.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; April 1, 2026. 75-02-01.2-21. Asset considerations. 1.a.All assets that are actually available must be considered. Assets are actually available when at the disposal of a member of the household; when a member of the household has a legal interest in a liquidated sum and has the legal ability to make the sum available for support or maintenance; or when a member of the household has the lawful power to make the asset available or to cause the asset to be made available. A determination that an asset is deemed available is a determination that the asset is actually available.

b.Assets must be reasonably evaluated.

c.All assets owned individually or jointly by members of a household are deemed available to the household.

d.Assets owned jointly by a member of the household and an individual who is a member of a separate household, but has a legal obligation to support a member of the household, are presumed available to the household unless the applicant can show that the assets are in fact not available.

e.If the household can demonstrate that only a portion of an asset is available, only that portion may be considered.

f.An asset is not available if it cannot be practically subdivided or sold.

g.A stepparent's assets, whether owned exclusively by the stepparent or jointly with the parent, are deemed available in their entirety to the parent. Because the temporary assistance for needy families filing unit must include the parent, if technically eligible, the equity value of all assets, including the stepparent's assets, must fall within program asset limitations or the unit is ineligible.

h.An asset may be temporarily unavailable while the household is taking reasonable measures to overcome a legal impediment.

i.Assets ordinarily available to the household may be rendered temporarily unavailable to members of such a unit who are being served by shelters for abused individuals while the legal ramifications of the circumstances that led to the need for such services are explored.

j.As in all instances in which there is a question of ownership, the household must be given the opportunity to present evidence in rebuttal of the presumption that a joint account is an available asset. A successful rebuttal may result in a finding that the funds in the joint account are in fact not owned by the household. For example, when the funds are clearly available to the family only in the event of the coowner's death, access is restricted and the funds are therefore not an asset. The funds are likewise not an asset to the family if withdrawals from the account are possible only with the surrendering of the passbook, which is not accessible to the applicant or recipient, or with dual signatures and the coowner may not sign.

k.An asset may be sold or exchanged for another asset. An asset acquired in an exchange or with the proceeds from a sale continues to be treated as an asset subject to the asset limits, exemptions, and exclusions applicable to the type of asset acquired. This subdivision does not supersede other provisions of this chapter which describe or require specific treatment of assets, or which describe specific circumstances that require a particular treatment of assets.

2.The financial responsibility of any individual for any applicant or recipient of temporary assistance for needy families is limited to members of the temporary assistance for needy families filing unit. Such responsibility is imposed upon applicants or recipients as a condition of eligibility. Except as otherwise provided in this section, the assets of the members of the temporary assistance for needy families filing unit are deemed available to an applicant or recipient, even if those assets are not actually contributed. For purposes of this subsection, biological and adoptive parents, but not stepparents, are treated as parents.

3.Temporary assistance for needy families benefits, and any income, earned or unearned, which is taken into account in determining the amount of a grant for a particular month, may not be treated as an asset in that month.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; April 1, 2024. 75-02-01.2-22. Asset limits.

A member of a household may not be found eligible for benefits unless the value of the household's assets, not specifically excluded under this chapter, does not exceed nine thousand dollars for a household consisting of one individual, fifteen thousand dollars for households consisting of two individuals, and an additional five hundred dollars for each additional individual. In all instances, including determination of equity, property must be realistically evaluated in accord with current market value. Any reasonable costs associated with liquidation of excess assets must be taken into account.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; April 1, 2026. 75-02-01.2-23. Exempt assets.

The following assets are exempt from consideration in determining eligibility for temporary assistance for needy families benefits:

1.The home occupied by the household including trailer homes being used as living quarters, and the land upon which the home stands, up to twenty contiguous acres [8.09 hectares], if rural, and up to two acres [.81 hectare], if located within the established boundaries of a city;

2.Personal effects, wearing apparel, household goods, and furniture;

3.One car, van, or pickup of any equity value;

4.Indian trust or restricted lands, the proceeds from the sale thereof so long as those proceeds are impressed with the original trust, and the proceeds from the lease thereof so long as those proceeds are not commingled with other funds;

5.For twelve months from the month of receipt, any refund of federal income taxes made to a member of the household including the earned income tax credit, and any payment made to a member of the household by an employer, relating to advance payment of earned income tax credit;

6.Real property the household is making a good-faith effort to sell;

7.Indian per capita funds and judgment funds awarded by the Indian claims commission or the court of claims after October 19, 1973, interest and investment income accrued on such Indian per capita or judgment funds while held in trust, and purchases made using interest or investment income accrued on such funds while held in trust. The funds must be identifiable and distinguishable from other funds. Commingling of per capita funds, judgment funds, and interest and investment income earned on those funds, with other funds, results in loss of the exclusion;

8.The equity value of all assets owned by a member of the household who is a recipient of supplemental security income;

9.The equity value of the assets, jointly owned by a program household member and a recipient of supplemental security income;

10.Any property, equipment, or vehicle used for the purpose of producing income, including vehicles used for employment, tools or equipment required for a job or trade, or items necessary for self-employment or contracted work;

11.One bona fide funeral agreement and associated financial instrument, including interest accrued, per household member, provided the funds are designated for burial expenses, identifiable, and not commingled with other funds;

12.One burial space or plot per household member;

13.Funds held in an achieving a better life experience account established under section 529A of the Internal Revenue Code;

14.Retirement funds and pension plans, including individual retirement accounts and SEP, SIMPLE, and qualified plans, provided funds remain in the account and are not withdrawn;

15.Funds in a plan for achieving self-support account approved by the social security administration;

16.Resources used as collateral for a business loan, if the resource may not be sold due to a security agreement or lien;

17.Resources determined inaccessible, including those held in probate or under legal restrictions, such as irrevocable trusts in which the funds are not accessible to the household;

18.Funds received under federal disaster assistance programs or the Crime Victim Compensation Act, provided the funds are used as intended or subject to repayment if misused;

19.The value of livestock used to produce income, for home consumption, or maintained as household pets;

20.Cryptocurrency, which must be evaluated for availability and market value if not readily accessible or liquid. If determined inaccessible, it may be excluded as a resource; and

21.For twelve months following the month of receipt, all nonrecurring lump sum payments.

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2014; April 1, 75-02-01.2-24. Lump sums received by a member of the household.

1.Recurring unearned income lump sum payments received after an application has been filed for temporary assistance for needy families must be considered countable income and prorated over the period the payment is intended to cover. The prorated lump sum payment must continue to be counted if the case closes and reopens during the income prorate period in which the payment was received or reopens during the income prorate period immediately succeeding the income prorate period in which the case was closed.

2.For purposes of this section, "lump sum income or payment" includes retroactive monthly benefits provided under title II of the Social Security Act and other retroactive monthly benefits, payments in the nature of windfall, such as lottery or gambling winnings or inheritances, judgments, or settlements for injuries to person or property to the extent that the payment is not earmarked and used for the purpose for which it was paid such as burial costs, and repair or replacement of lost or damaged assets, and workers' compensation awards.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-25. Good-faith effort to sell real property.

A good-faith effort to sell is demonstrated only if the property owner:

1.Arranges for regular advertising, including classified advertisements in newspapers, post "for sale" signs, and marketing efforts made by real estate agencies;

2.Makes sales efforts including contacts with persons who respond to advertising efforts, persons known to be potential purchasers of property of the type offered, and entry into a listing agreement with a real estate agency;

3.Sets and publishes an asking price likely to result in a sale; and

4.Accepts any offer that meets or exceeds seventy-five percent of the published asking price.

History: Effective December 9, 1996. 75-02-01.2-26. Disqualifying transfers.

1.The transfer of an asset, without adequate consideration, disqualifies the household from receipt of benefits. For a participating household, the disqualification begins the first benefit month after notice of adverse action. For a nonparticipating household, the period of disqualification begins with the month of application.

2.Length of disqualification is as follows:

a.One month for a disqualifying transfer of more than zero dollars, but less than two hundred fifty dollars;

b.Three months for a disqualifying transfer of two hundred fifty dollars or more, but less than one thousand dollars;

c.Six months for a disqualifying transfer of one thousand dollars or more, but less than three thousand dollars;

d.Nine months for a disqualifying transfer of three thousand dollars or more, but less than five thousand dollars; and

e.Twelve months for a disqualifying transfer of five thousand dollars of more.

3.Notwithstanding subsection 1, a transfer is not disqualifying if it is made by an individual, who is not a responsible relative, by removing the name of a member of the household from a jointly owned account to which no member of the household contributed, provided that the name of the household member is removed:

a.If the existence of the account is discovered by the human service zone while the household is in the process of applying for assistance, before the initial payment is certified; or

b.If the existence of the account is discovered by the human service zone while the household is receiving benefits, within thirty days after that discovery.

4.If the household member who caused the household's ineligibility due to a disqualifying transfer leaves the household, the remaining household members are no longer subject to the disqualification penalty only if the transferred asset was owned solely by the departing household member. Effective the day following the day in which the individual left the household, the remaining members may apply for benefits. If the transferred asset was jointly owned with any remaining member of the household, the disqualification period must continue as initially calculated.

5.When an individual who caused a household's ineligibility due to a disqualifying transfer moves to a different household, the new household may be disqualified from the receipt of benefits for a period beginning with the month in which the individual became a member of the new household and continuing for the remainder of the period of disqualification.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2017. 75-02-01.2-27. Social security numbers.

Before the needs of an individual may be included in the benefit, the individual shall furnish a social security number or proof that the individual has applied for a social security number. An individual may not be initially included in or added to a household, including newborn children, until the individual's social security number or proof of application has been received. An individual who has been included in or added to a household upon providing proof that the individual has applied for a social security number shall provide a social security number within six months of receipt of the number or at the time of the next review of eligibility following receipt of the number, whichever is earlier.

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2011; April 1, 75-02-01.2-28. Eligibility for aliens who arrived before August 22, 1996. 75-02-01.2-28.1. Eligibility for aliens who arrived on or after August 22, 1996. 75-02-01.2-29. Ineligibility due to participation in strikes.

1.No household is eligible for benefits under this chapter for any month in which any member of that household participates in a strike. If it is discovered that a household member participated in a strike during a month in which a benefit has already been paid for that month, the human service zone shall consider that amount as an overpayment subject to recovery.

2.For purposes of this section:

a."Participating in a strike" means actual refusal, in concert with others, to provide services to one's employer.

b."Strike" means a work stoppage, including a work stoppage due to the expiration of a collective bargaining agreement or a deliberate slowdown or interruption of operations by a body of workers to enforce compliance with demands made on an employer. 75-02-01.2-30. Limitation on benefits to pregnant women.

A pregnant woman, not made ineligible by any other provision of this chapter, who is caretaker relative to no child, may receive temporary assistance for needy families based upon the standard of need for one adult, without consideration of any additional pregnancy-related needs, medical verification of the pregnancy, and the approximate date on which the pregnant woman is expected to deliver must be provided.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-30.1. Benefit cap.

Repealed effective April 1, 2024. 75-02-01.2-31. Age of parent - Effect on eligibility.

1.For purposes of this section:

a."Adult caretaker" means a caretaker who is not a minor caretaker.

b."Minor caretaker" means an individual, under the age of eighteen years, who has never been married and who:

(1)Is the parent of a dependent child living in the same household; or (2)Is eligible as a pregnant woman who is a caretaker relative to no child.

2.A minor caretaker who lives with the minor caretaker's own parents is eligible only if eligibility may be established after consideration of the income, but not the assets, of the parents with whom the minor caretaker lives, applying the following disregards:

a.The greater of one hundred eighty dollars or twenty-seven percent of earned income of each employed parent of the minor caretaker, for work expenses.

b.An amount equal to the standard of need, not including special allowances or special items of need, applicable to a household consisting of the minor caretaker's parents and any other individuals living in the home, who are or could be claimed as dependents of the minor caretaker's parents for federal income tax purposes, but who are not members of the household.

c.Amounts paid by the minor caretaker's parents, to support individuals who are not members of the household, who are or could be claimed as dependents of the minor caretaker's parents for federal income tax purposes.

d.Amounts paid by the minor caretaker's parents, for child support or spousal support, health insurance premiums, or child or adult dependent care costs related to employment or employment and education or training, to individuals who are not members of the household.

3.An adult caretaker, who lives with the adult caretaker's own parent or legal guardian, if eligible, is eligible without consideration of the income or assets of any adult caretaker's parents with whom the adult caretaker lives, except that regular contributions of money made by such adult caretaker's parent to any member of the household must be considered.

4.For purposes of this section, a minor caretaker who becomes an adult while living with the minor caretaker's own parents or legal guardian is treated as an adult caretaker, effective the first day of the month in which the caretaker reaches age eighteen.

5.For purposes of this section, a minor caretaker who ends residency with the minor caretaker's own parent is treated as having ended residency on the first day of the month in which the minor caretaker left the minor caretaker's parent's home.

6.For purposes of this section, a minor caretaker who resumes residency with the minor caretaker's own parent is treated as having resumed that residency on the first day of the month after the month in which the minor caretaker resumed residency with the minor caretaker's parent.

7.A minor caretaker who does not live with either of the minor caretaker's own parents, if eligible, is eligible without consideration of the income or assets of the minor caretaker's parent except that regular contributions of money made by a minor caretaker's parent to any member of the household must be considered. The minor caretaker's parents remain legally responsible for the minor caretaker's support. The matter must be referred to the child support agency for the purpose of securing support from the minor caretaker's parents as well as for the purpose of securing support for the minor caretaker's child from the child's absent parent.

8.No household may include the child of a minor caretaker, living with that minor caretaker, during any time when the minor caretaker is living in a foster home or child care institution and receiving a foster care maintenance benefit. Any amount reasonably necessary to the maintenance of such a child of the minor caretaker is included in the minor caretaker's foster care maintenance benefit.

9.Except as provided in subsection 10, a minor caretaker must live in the home of the minor caretaker's own parent, legal guardian, or other adult relative, or in a state-approved adult supervised supported living arrangement.

10.A minor caretaker may show there is good cause to live in a place other than required in subsection 9. Good cause exists if, based on evidence provided to the human service zone:

a.The minor caretaker has no living parent or legal guardian;

b.No parent or legal guardian of the minor caretaker will allow the minor caretaker to live in the home of the parent or legal guardian;

c.The physical or emotional health or safety of the minor caretaker or the minor caretaker's child would be jeopardized if they lived with the minor caretaker's parent or legal guardian; or

d.After reasonable search, the whereabouts of the minor caretaker's parents or legal guardian are unknown.

11.A household consisting of two natural or adoptive parents may be eligible for benefits when at least one parent is age sixty-five or older, if all factors of eligibility are met and the household's countable income is less than the temporary assistance for needy families standard of need.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-32. Value of benefit.

1.The reasonable value of the physical and custodial care or support that has been furnished to the child or children of a noncustodial parent by the program is, for each month such child or children are eligible, the amount of the assistance received multiplied by the number of children of the noncustodial parent in the household and divided by the total number of children in the household.

2.If a stepparent is eligible to receive assistance, the reasonable value of the physical and custodial care or support which has been furnished to the child or children of a noncustodial parent by the program is, for each month such child or children are eligible, the amount of assistance received multiplied by the number of children of the noncustodial parent in the household and divided by one plus the total number of children in the household.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-33. Assignment of right to support.

1.The child support agency must be notified of any child, except a child in receipt of supplemental security income, who is a member of the household and whose eligibility for assistance is based on the continued absence of the child's parent from the home.

2.The applicant and, upon request, any member of the household for whom temporary assistance for needy families is requested, as a condition of eligibility shall:

a.Execute all necessary documents to protect the right of any member of the household, and the agency, to child support from the absent parent of such member; and

b.Cooperate in obtaining support and in establishing paternity of any child in the household with respect to whom paternity has not been established.

3.The requirement for the assignment of rights to support from absent parents continues through the month in which the latest of the following occurs:

a.The child reaches age eighteen.

b.The child graduates from high school, provided that graduation does not occur after the month of the child's nineteenth birthday.

c.Child support obligations, imposed by a court for periods after the child reaches age eighteen, are terminated.

4.For purposes of this section:

a."Cooperate in obtaining support and in establishing paternity" includes:

(1)Appearing at a state or local office designated by the child support agency to provide information or evidence relevant to the case;

(2)Appearing as a witness at a court or other proceeding;

(3)Providing credible information, or credibly attesting to lack of information;

(4)Paying to the department any support funds received that are covered by the assignment of rights; and (5)Taking any other reasonable steps to assist in establishing paternity and securing child support.

b.A child support agency shall determine if the applicant, recipient, or any member of the household, who is required to cooperate in obtaining support and establishing paternity, has done so. In making that determination, the child support agency shall consider if any information provided, or attestation to lack of information, is corroborated by relevant circumstances and is credible. Information provided, or an attestation to lack of information, is not presumed correct.

5.An individual shall cooperate in establishing paternity of a child born out of wedlock for whom the individual can legally assign rights, and obtaining child support and payments for the individual and any other individual for whom the individual can legally assign rights, unless cooperation is waived by the human service zone for good cause.

6.The custodian who refuses to cooperate in obtaining support, including establishing paternity, is ineligible to receive assistance. If the custodian continues to refuse to cooperate, the entire household shall become ineligible for assistance and may not reapply for one full benefit month following case closure.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-34. Good cause for failure or refusal to cooperate in obtaining support or establishing paternity.

1.For good cause, the requirement that an individual cooperate in obtaining support and establishing paternity may be waived if it is determined cooperation is against the best interests of the child. A human service zone may determine required cooperation is against the best interests of the child only if:

a.The individual's cooperation in establishing paternity or securing child support is reasonably anticipated to result in:

(1)Physical harm to the child for whom support is to be sought;

(2)Emotional harm to the child for whom support is to be sought;

(3)Physical harm to the parent or caretaker relative with whom the child is living which reduces that individual's capacity to care for the child adequately;

(4)Emotional harm to the parent or caretaker relative with whom the child is living, of such nature or degree that it reduces that individual's capacity to care for the child adequately;

(5)Interference with family reunification efforts; or (6)Disruption of child protective services objectives; or

b.At least one of the following circumstances exists, and the human service zone believes because of the existence of that circumstance, in the particular case, proceeding to establish paternity or secure child support would be detrimental to the child for whom support would be sought:

(1)The child for whom support is sought was conceived as a result of incest or forcible rape;

(2)Legal proceedings for the adoption of the child are pending before a court of competent jurisdiction; or (3)The individual, otherwise required to cooperate, is currently being assisted by a public or licensed private social agency to resolve the issue of whether to keep or relinquish the child for adoption, and the discussions have not gone on for more than three months.

2.Physical harm and emotional harm must be of a serious nature in order to justify a waiver.

3.A waiver due to emotional harm may only be based on a demonstration of an emotional impairment that substantially impairs the individual's functioning. In determining a waiver, based in whole or in part upon the anticipation of emotional harm to the child, the parent, or the caretaker relative, the human service zone shall consider:

a.The present emotional state of the individual subject to emotional harm;

b.The emotional health history of the individual subject to emotional harm;

c.Intensity and probable duration of the emotional impairment;

d.The degree of cooperation to be required; and

e.The extent of involvement of the child in the paternity establishment or support activity to be undertaken.

4.In all cases in which the human service zone has determined that good cause exists based on a circumstance subject to change, a determination to grant a waiver must be reviewed, at a minimum, once every twelve months to determine if the circumstances which led to the waiver continue to exist.

5.Claims of good cause must be evaluated using the decisionmaking principles described in

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2014; April 1, 75-02-01.2-35. Combined requirements.

1.The department shall establish combined requirements for the temporary assistance for needy families standards of need that represent amounts of income, by household size and living arrangement, necessary for a standard of living compatible with decency and health.

2.The six basic items of need considered in the temporary assistance for needy families cash grant are:

a.Shelter;

b.Food;

c.Clothing;

d.Personal needs such as combs, toothbrushes, toothpaste, razor blades, sanitary supplies, and haircuts;

e.Household supplies such as cooking utensils, laundry detergent, bedding, and towels;

f.Fuel and utilities.

History: Effective December 9, 1996; amended effective January 1, 2003; June 1, 2005; January 1, 75-02-01.2-35.1. Time limit on certain benefits - Exceptions.

Except as otherwise provided in this section, no household may be provided assistance if that household includes an adult who has received assistance under a temporary assistance for needy families program provided by any state or Indian tribe for sixty months, whether or not consecutive, after the date that program commenced.

1.In determining the number of months an adult received temporary assistance for needy families, the department shall disregard any month in which:

a.The adult was a minor child and not, at the same time, a head of household or married to a head of household; or

b.No adult member of the household was included in the benefit for the federal lifetime count under title 45, Code of Federal Regulations, part 264.1.

2.In determining the number of months an adult received temporary assistance for needy families, the department shall disregard any month in which the adult lived in Indian country if, during the month, at least fifty percent of the adults living in that Indian country were unemployed. The department shall determine the percentage of unemployed adults living in Indian country by any means the department determines to be appropriate and reliable, provided that the means chosen are consistent with requirements imposed under federal law.

3.This section may not be applied to preclude eligibility for members of a household if:

a.The eligible adult caretaker in the temporary assistance for needy families household reaches the age of sixty-five years on or before the sixty-first month in which that individual receives temporary assistance for needy families benefits;

b.The eligible adult caretaker is determined to be incapacitated or has been determined to be disabled by the social security administration;

c.The household includes an individual who is a victim of domestic violence. Domestic violence includes physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members; or

d.The condition of a child or a spouse precludes care by a child care provider, in-home care, or outside of home care and prevents the caretaker from employment.

4.For purposes of this section:

a.An adult caretaker may be treated as "incapacitated" if the individual is incapacitated or treated as incapacitated under section 75-02-01.2-18; and

b."Indian country" means:

(1)All lands within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights of way running through the reservation;

(2)All dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and (3)All Indian allotments, the Indian titles to which have not been extinguished, including rights of way running through the same.

5.The number of households that may be exempted from the temporary assistance for needy families lifetime limit may not exceed twenty percent of the average monthly number of households receiving temporary assistance for needy families assistance.

6.If a household must submit a written request to the human service zone requesting to be exempt from the sixty-month lifetime limit, the written request must explain the reason for the exemption and must include clear and convincing documentation from a professional service provider.

7.During the exemption period from the lifetime limit, all temporary assistance for needy families, job opportunities, and basic skills program policies apply.

8.Applicants and recipients that appeal the denial for an exemption from the lifetime limit may request in writing a fair hearing within the thirty days from the date of the denial or closure notice. Assistance is not continued pending the fair hearing.

History: Effective July 1, 1997; amended effective January 1, 2003; June 1, 2005; January 1, 2009. 75-02-01.2-36. Determining membership in training, education, employment, and management household. 75-02-01.2-37. Determining membership of the household.

1.The household must include at least one eligible child unless:

a.The only child receives supplemental security income benefits; or

b.The household includes a pregnant woman.

2.Any parent and spouse of the parent of a dependent child who reside in the home must be included in the household.

3.If the household includes a parent and a needy dependent child, any other child who resides in the home, for whom assistance is sought, and to whom the parent is a relative by birth, marriage, or adoption, must be included in the household.

4.If the household includes a parent and the parent's nonneedy dependent child or children, any other needy dependent child or children to whom the parent is a relative by birth, marriage, or adoption, must be included in a household which consists only of the needy dependent child or children.

5.If the household includes a parent, the parent's needy dependent child or children, and other dependent children to whom the parent is a relative by birth, marriage, or adoption, the household must include the parent and the parent's needy dependent child or children, and may include any needy dependent child or children to whom the parent is a relative by birth, marriage, or adoption, but exclude any nonneedy dependent child or children who is not the parent's child but to whom the parent is a relative by birth, marriage, or adoption, and who is not a brother or sister, whether by the whole or half-blood or by adoption, to a needy dependent child.

6.If the household includes a stepparent but does not include a natural or adoptive parent, the household must include the stepparent of the natural or adoptive parent's needy dependent child or children and any brothers and sisters of the needy dependent child, whether by whole or half-blood or by adoption, and any natural or adoptive children of the stepparent.

7.A minor parent who lives in the home of a parent of the minor parent is treated as a dependent child in a household that includes a parent of the minor parent unless:

a.The minor parent is married or formerly married and divorced, but not formerly married in an annulled marriage;

b.The minor parent has resided with the other parent of the minor parent's child; or

c.The minor parent has lived separately and apart from the minor parent's parent or lawful guardian, with the consent or acquiescence of the minor parent's parent or lawful guardian, while managing the minor's own financial affairs regardless of the source of income, so long as it is not from any activity declared to be a crime by the laws of North Dakota or the United States.

8.Household members who are receiving supplemental security income benefits may not be included in the household.

9.Household members who are ineligible for assistance because of a sanction or disqualification imposed under this chapter must be included in the household for the purpose of consideration of income and assets of the sanctioned household member.

10.Household members who are ineligible for assistance because they do not meet citizenship or alienage requirements imposed under this chapter must be included in the household for the

purpose of consideration of income and assets of those household members.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-38. Determining membership of the food stamp filing unit. 75-02-01.2-39. Determining membership of the low income home energy assistance program filing unit. 75-02-01.2-40. Combined supplemental security income and temporary assistance for needy families households.

1.With respect to the same month, no individual may receive assistance through both the supplemental security income program and the temporary assistance for needy families

2.An individual who is receiving supplemental security income benefits may be a member of a household as an ineligible caretaker relative for a child in the household.

3.Assets or income owned solely or jointly by the recipient of supplemental security income benefits, including that portion of income disregarded in determining eligibility for supplemental security income benefits, may not be considered available to the members of the household.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-41. Recipients living out of state.

An individual who receives assistance is free to travel without a loss of eligibility so long as the individual remains a resident of the state. An individual remains a resident of the state when absent from the state for brief periods provided the individual returns to the state by the last day of the month following the month the individual left. An individual temporarily living out of state who remains a resident of North Dakota is subject to the same standards and procedures for eligibility determinations and budgeting as a similarly situated individual present in the state.

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2011. 75-02-01.2-42. Grant amount in whole dollars.

Benefits are granted in whole dollar amounts. In calculating benefit amounts, numbers are rounded down to the nearest whole dollar. 75-02-01.2-43. Benefits less than ten dollars.

A benefit payment may not be issued if the calculated benefit is less than ten dollars, but the household must be treated for all other purposes of this chapter as a household to which the department makes a benefit payment.

History: Effective December 9, 1996; amended effective January 1, 2003; April 1, 2026. 75-02-01.2-44. Income described.

1.All income that is actually available must be considered. Income is actually available if it is at the disposal of an applicant or recipient; if the applicant or recipient has a legal interest in a liquidated sum and has the legal ability to make the sum available for support or maintenance; or if the applicant or recipient has the lawful power to make the income available or to cause the income to be made available. In specific circumstances, income available to individuals other than the applicant or recipient is deemed available. This subsection does not supersede other provisions of this chapter which describe or require specific treatment of income, or which describe specific circumstances that require a particular treatment of income.

2.Income may be earned, unearned, or deemed. It may be received regularly, irregularly, or in lump sums. Income may be counted or excluded. It may be disregarded for some purposes, but not for others. Other sections of this chapter explain those treatments.

3.Earned income includes:

a.Wages, salaries, commissions, bonuses, or profits received as a result of holding a job or being self-employed;

b.Earnings from on-the-job training including the Workforce Innovation and Opportunity Act;

c.Wages received as the result of participation in a program under the Older Americans Act;

d.Wages received from sheltered workshop employment;

e.Sick leave pay or loss-of-time private insurance paid for the loss of employment due to illness or injury;

f.Compensation for jury duty;

g.Tips;

h.Income from boarders;

i.Income from room rentals;

j.Income from participation in job corps; and

k.Income from internship or stipends.

4.Unearned income includes:

a.Social security, veterans benefits of any kind, private pensions, pensions provided to former employees of public entities, workers' compensation, unemployment benefits, union compensation during strikes, and military allotments;

b.Rents paid without an appreciable amount of personal involvement and effort provided as a service to the tenant, mineral lease rentals, bonus payments and royalties, dividends, and interest paid;

c.Cash contributions;

d.Cash gifts;

e.General assistance payments made to any member of the household by a human service zone or the bureau of Indian affairs; and

f.Any other form of income that is not earned income.

5.Deemed income includes:

a.In the case of income deemed from a stepparent, that stepparent's entire gross income less:

(1)The greater of one hundred eighty dollars or the twenty-seven percent standard employment expense allowance;

(2)An additional amount for the support of the stepparent and any other individuals living in the home whose needs are not taken into account in making the eligibility determination and who are or could be claimed by the stepparent as dependents for federal income tax purposes, but not including any sanctioned individuals or individuals who are required to be included in the household, but have failed to cooperate, equal to the standard of need amount for a family group of the same composition and size as the stepparent and those other individuals described in this paragraph;

(3)Spousal support payments, child support payments, health insurance premiums, and child or adult dependent care costs related to employment or employment and education or training actually being made to or on behalf of individuals not living in the home; and (4)Amounts actually being paid to individuals not living in the home who are or could be claimed by the stepparent as dependents for federal income tax purposes.

b.In the case of income deemed from the sponsor of a sponsored alien, the income of the sponsor and the sponsor's spouse is calculated by allowing:

(1)The earned income disregard of the greater of one hundred eighty dollars or the twenty-seven percent standard employment expense allowance; and (2)A disregard equal to one hundred thirty percent of the federal poverty level equal to the household size of the sponsor.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2011; January 1, 2017; April 1, 2024; April 1, 2026. 75-02-01.2-45. Excluded income.

1.The following income must be excluded in determining eligibility for assistance:

a.All earned income of any child, except a minor parent, attending elementary or high school full time;

b.A loan from any source that is subject to a written agreement requiring repayment by the recipient;

c.The value of general assistance benefits provided in voucher form by any human service zone, tribe, or the bureau of Indian affairs;

d.Assistance payments from other programs, agencies, or organizations that:

(1)Do not serve the same purposes as the temporary assistance for needy families cash grant; or (2)Provide goods or services that are not included in the standard of need;

e.Scholarships, grants, stipends, and awards for educational purposes, which are given because of need or achievement by the bureau of Indian affairs, other federal sources, state sources, civic, fraternal, and alumni organizations, or relatives, to undergraduate-level and graduate-level students;

f.Workstudy program income earned by an undergraduate-level or graduate-level student;

g.Family subsidy program payments made by the department;

h.Returned deposits from rentals and from utility companies;

i.Adoption assistance and subsidized adoption payments;

j.Foster care payments, subsidized guardianship payments, and payments received as a retainer for services as an emergency shelter foster home;

k.Irregular cash gifts, which total, in any month, less than five hundred dollars per household received for a special occasion, such as Christmas, birthdays, or graduations;

l.Child support disbursed to the household by a child support agency.

2.For purposes of this section, "child" means an individual:

a.Under age eighteen; or

b.Age eighteen and a full-time student in elementary or high school, or in an equivalent level of vocational or technical training, if, before attaining age nineteen, such student may reasonably be expected to complete the high school or vocational training curriculum.

History: Effective December 9, 1996; amended effective January 1, 2003; June 1, 2005; January 1, 2017; April 1, 2026. 75-02-01.2-46. Gross income test. 75-02-01.2-47. Budgeting process.

1.Budgeting is the process by which a household's need is determined. Through the process available, income is matched against the standard of need.

2.If nonexcluded income equals or exceeds the standard of need, the household is not needy, and the household is ineligible for assistance.

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2011. 75-02-01.2-48. Net income test.

The applicant or applicant household is subject to a net income test. The net income test compares the standard of need, personal needs allowance for out-of-home eligible individuals, and special items of need to the adjusted net income. If the adjusted net income is less than the standard of need, personal needs allowance, and special items of need, the household passes the net income test and the cash grant amount is calculated.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003. 75-02-01.2-49. Income considerations.

1.All income must be considered in establishing eligibility and in determining the cash grant amount.

2.Income must be reasonably evaluated. A determination that income is deemed available is a determination that the income is actually available.

3.Income from wages, or any other source, must be considered received in the month in which it was actually received or considered to be available. Wages held at the request of an employee must be considered income in the month in which the wages would otherwise have been paid by the employer.

4.Income must be applied prospectively.

History: Effective December 9, 1996; amended effective January 1, 2003; April 1, 2026.

General Authority: NDCC 50-09-02, 59-09-25 75-02-01.2-50. Earned income considerations.

1.Earned income must be verified and documented in the case record. Earned income may be received from a variety of sources.

2.Net earned income is determined by adding monthly net income from self-employment to other monthly earned income and subtracting the applicable deductions and disregards.

3.Except as provided in subsection 4, monthly self-employment income is determined as follows:

a.Monthly self-employment income is one-twelfth of the business or farm income calculated from the net profit of an individual's income tax forms and schedules, plus gains or minus losses related to self-employment business that are expected to continue during the current year, minus any type of income that must be considered unearned income, and minus expenses with the exception of depreciation and depletion.

b.For a business that has been operating for less than a full tax year, monthly self-employment income is the gross income from the individual's income tax forms and schedules, plus gains or minus losses related to the self-employment business that are expected to continue during the current year, minus any type of income that must be considered unearned income and minus expenses, with the exception of depreciation and depletion, divided by the number of months the business has been in operation.

c.In the case of a business that furnishes room and board, monthly gross receipts less one hundred dollars per room and board client.

d.If the most recent available federal income tax return does not accurately predict income because the business has been recently established, because the business has been terminated or subject to severe reversal, because the applicant or recipient makes a convincing showing that actual net income is substantially less than the amount determined, because the individual has not filed an income tax return, or because the human service zone determines for any reason that actual net profits are substantially greater than the amount determined based on the most recent available federal income tax return, an amount determined by the human service zone to represent the best estimate of monthly net income from self-employment must be used. If the most recent available federal income tax return is not used or if the individual did not file a federal income tax return, the self-employed individual shall provide the best information available on income and expenses. Income and expense statements, when available, must be used as a basis for computation.

4.If earnings from more than one month are received in a lump sum payment, the payment must be divided by the number of months in which the income was earned, and the resulting monthly amounts are attributed to each of the months with respect to which the earnings were received.

5.Income received on a contractual basis is allocated equally to each of the months covered by the contract, regardless of when the contract payments are actually received, and is deemed available to be received in the months to which income is allocated.

6.The standard employment expense allowance recognizes all costs associated with employment, including transportation, uniforms, social security contributions, and income tax withholding. This standard allowance applies to adult household members and nonstudent dependent children who are employed either full time or part time.

7.The standard employment expense allowance is the greater of one hundred eighty dollars or twenty-seven percent of gross earned income per month. This standard employment expense allowance applies to all individuals who receive an employment expenses allowance, including stepparents and parents of minor parents.

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2014. 75-02-01.2-51. Disregarded income.

1.The department shall establish an employment incentive, and an employment incentive limit, to reasonably encourage household members to earn income.

2.If permitted under subsection 3, income must be disregarded, as an employment incentive, in determining the cash grant amount.

a.The greater of one hundred eighty dollars or twenty-seven percent of the household's monthly gross earned income, except earnings of any child who is a full-time elementary or high school student, is disregarded as a standard employment expense allowance.

The amount remaining is net earned income.

b.Any net earned income that exceeds the income incentive limit is treated as countable earned income.

c.A portion of net earned income that is equal to or less than the income incentive limit may be disregarded, under this subdivision, in determining countable earned income.

(1)If an applicant has earned income in the month of application or the month after the month of application, at least fifty percent of the net earned income may be disregarded for six months beginning the month in which the earned income is first budgeted.

(2)If a recipient has earned income, at least thirty-five percent of the net earned income may be disregarded for months seven through nine beginning the month earned income is first budgeted.

(3)If a recipient has earned income, at least twenty-five percent of the net earned income may be disregarded for months ten through twelve after the month earned income is first budgeted.

(4)If a recipient has earned income, no net earned income may be disregarded under this subdivision after the twelfth month after the month earned income is first budgeted.

(5)Individuals that have received a full twelve months of the incentive known as the time-limited percentage are not eligible for this incentive again unless the individual has been off assistance for twelve or more months.

d.An employed household member who receives an employment incentive disregard for a period of at least six consecutive months is provided employment incentive disregards of at least fifty percent for the first six months beginning the month in which the income is first budgeted, at least thirty-five percent for months seven through nine, at least twenty-five percent for months ten through twelve, and none thereafter.

e.An employed household member who receives an employment incentive disregard for a period of less than six consecutive months is, upon reemployment, provided employment incentive disregards as if the member had not received employment incentive disregards.

f.If an employed household member, who is receiving the employment incentive disregard, voluntarily terminates employment and is unable to show good cause for failure or refusal to participate, the employment incentive disregard cycle continues as if the household member was employed.

g.If any nondisregarded income remains, a health insurance premium, or paid child or spousal support, if applicable, may be disregarded.

h.If any nondisregarded income remains, child and dependent care costs that are employment-related or a combination of employment-related and education or training-related may be disregarded.

3.An income disregard is available if the eligible employed individual previously received assistance, has not received temporary assistance for needy families at least twelve months or has not completed the twelve month earned income employment incentive disregard cycle, including months in which the earned income disregard was unavailable because:

a.No payment was made because the calculated cash grant was less than ten dollars; or

b.The household voluntarily requested termination of assistance for the primary purpose of avoiding completion of the earned income employment incentive disregard cycle or any

part of that cycle.

4.Nonhousehold member deduction for stepparent and minor parent budgeting, if applicable, may be made.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; January 1, 2011; January 1, 2017; April 1, 2024; April 1, 2026. 75-02-01.2-52. Voluntary quit or refusal of employment.

No household member, except a dependent child, may refuse a bona fide offer of employment or training for employment, or terminate employment, without good cause, within thirty days before the date of application.

1.If an offer of employment or training was made through job service North Dakota, job service North Dakota shall determine if a bona fide offer was made and if there was good cause for refusing it.

2.If an offer of employment or training was made other than through job service North Dakota, the human service zone shall determine if a bona fide offer was made and if there was good cause for refusing it, considering the following factors:

a.Whether there was a definite offer of employment at wages meeting any applicable minimum wage requirements and that are customary for such work in the community;

b.Whether there were any questions as to the physical or mental ability of the household member to engage in the offered employment or training for employment;

c.Whether there were any questions of the working conditions such as risks to health, safety, or lack of workers' compensation protection;

d.Whether the household member had a way to get to or from the particular job, including evidence the household member reasonably attempted to arrange for transportation;

e.Whether, as a condition of being employed, the household member would be required to join a company union, or to resign or refrain from any bona fide labor organization, or would be denied the right to retain membership in and observe the lawful rules of any such organization;

f.Whether the position offered is vacant directly due to a strike, lockout, or other labor dispute;

g.Whether the work is at an unreasonable distance from the household member's residence, provided one-way traveltime of one hour or less may not be treated as an unreasonable distance;

h.Whether gross wages are less than the allowable employment expense and child care or adult dependent care;

i.Whether an individual's substantially continuous presence in the household is necessary to care for another individual in the household to whom the individual owes a legal duty to provide care, who has a condition, verified by reliable medical evidence, which does not permit self-care or care by another household member; and

j.Whether the individual is a victim of domestic violence.

3.If it is determined that a household member voluntarily quit employment or a bona fide offer of employment or training was refused by a household member, without good cause:

a.In the case of a recipient household, the member who voluntarily quits a job or refuses a bona fide offer of employment or training for employment is subject to sanction through the job opportunity and basic skills program, if the individual is required to participate in the program; and

b.In the case of an applicant household, the entire household is ineligible for the thirty days following the actual date of refusal or termination of employment.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; January 1, 2011. 75-02-01.2-53. Deduction for dependent care.

1.A deduction for a member of a household who is an employed caretaker relative may be made for the cost of necessary care of a child or incapacitated adult who is a member of the household, living in the home, and receiving assistance.

2.The deduction may not be made for the cost of dependent care provided by the caretaker relative's child or stepchild who is under twenty-one years of age, unless:

a.The provider of dependent care does not live in the home occupied by the household;

b.The provider of dependent care is at least eighteen years of age;

c.The provider of dependent care was not claimed as a dependent on the most recent federal income tax return filed by the caretaker relative;

d.A bona fide relationship of employer and employee exists between the caretaker relative and the provider of dependent care; and

e.The provider of dependent care is not a member of the caretaker relative's household.

3.The deduction may not be made for the cost of dependent care provided to a child by that child's stepparent who lives in the home occupied by the household or by the child's natural or adoptive parent.

4.The deduction is for the actual out-of-pocket cost of care. The deduction must be verifiable and made with the caretaker relative's own funds and is not subject to reimbursement.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-54. Unearned income considerations.

1.Unearned income must be verified and documented in the case record.

2.All unearned income must be treated as available in the month in which the income is received unless the income is disregarded. Unearned income must be applied to determine eligibility for, and the amount of, the household's monthly cash grant.

3.All nonexempt unearned income must be considered available in the month in which it is received. Unearned income is usually received at fixed intervals and at regularly scheduled dates. State or federal assistance payments such as supplemental security income or social security received on a recurring basis must be treated as received once per month, even if mailing cycles may cause two payments to be received in one month and none received in another month.

4.Unearned income received annually or received in regular annual totals, but in irregular intervals, must be considered available, in each month, in an amount equal to one-twelfth of the annual total. The twelve-month period may be a calendar year or other twelve-month fiscal period appropriate to the nature of the payment. Sources of income appropriate for this treatment include:

a.Nonexcluded lease payment income deposited in and disbursed through individual Indian moneys accounts maintained by individual Indians by the bureau of Indian affairs as proceeds from the lease of lands held by the federal government in trust for the Indian;

b.Lease payments made to persons for the use of lands occupied or owned by those persons unless the lease specifically provides for monthly payments or unless the lease is for a total term of less than one year; and

c.Mineral lease payments, however denominated, except initial leasing bonus payments.

5.Income must be applied prospectively.

History: Effective December 9, 1996; amended effective January 1, 2003; April 1, 2026. 75-02-01.2-55. Reinstatement following suspension or case closing. 75-02-01.2-56. Computing payment for first and second months of eligibility. 75-02-01.2-57. Computing payment for months following the second month of eligibility. 75-02-01.2-58. Computing payment if individuals are added to the household.

1.If the individual being added to a household did not receive assistance in the previous month, assistance for the added individual is based on a pro rata portion equal to the percentage of the month remaining after the date of birth of a newborn, provided the request for the newborn is made within ten days of the date of birth and the newborn's social security number or application for social security number and verification of birth are furnished within thirty days of the request. In all other cases, the later of the date of the request or the date the individual becomes eligible.

2.If the individual being added to an existing household received a temporary assistance for needy families grant from another state in the preceding calendar month:

a.The added individual's cash grant must be determined effective the first day of the month of request or prorated from the date of eligibility, whichever is later; and

b.The human service zone shall compute the added individual's cash grant for the initial month of eligibility and future months until the individual becomes ineligible or the next review.

3.If the individual being added to an existing household received a temporary assistance for needy families grant in North Dakota during the preceding calendar month:

a.The added individual's benefits must be determined effective the first day of the month of request or prorated from the date of eligibility, whichever is later; and

b.The human service zone shall compute the added individual's cash grant for the initial month of eligibility and future months until the individual becomes ineligible or the next review.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; April 1, 2026. 75-02-01.2-59. Computing payments if individuals leave the household.

1.If an individual who was a household member leaves the household during a benefit month, the individual is included in the household during that month.

2.Eligibility must be recalculated beginning the month following the month the individual left, the household.

History: Effective December 9, 1996; amended effective January 1, 2003; April 1, 2026. 75-02-01.2-60. Computing payment if stepparent income is deemed.

1.The amount of a household's cash grant must be reduced by the deemed income of a stepparent who lives in the home, but who is not a member of the household.

2.To encourage marriage among single-parent families and assist those families when the primary individual in a household marries, the income of the stepparent must be disregarded in determining the cash grant for the first six months, effective the month of the marriage. This subsection applies to recipients only, but not to applicants. No six-month disregard of stepparent income is allowed in situations when a primary individual marries before receiving benefits.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; January 1, 2017. 75-02-01.2-61. Computing benefits when an individual's needs are deleted from the cash grant.

If an individual is subject to sanction, that individual's needs are removed from the cash grant and that individual's income and assets must be considered in determining the eligibility and needs of the remaining members of the household. 75-02-01.2-62. Computing payment for a child in boarding school.

1.If a child leaves the residence occupied by the household to attend boarding school, the child is treated as having left on the first day of the month following the month in which the child actually left.

2.If a child returns from boarding school to the residence occupied by the household for reasons other than home visits, and the caretaker relative notifies the human service zone of the return within ten days of the actual return, the child is treated as having returned on the first day of the month of actual return. If not reported timely, the child is treated as having returned on the first day of the month following the month the change was reported.

3.Payment for any month in which a child who is a member of the household is in boarding school, or is treated as in boarding school, is, with respect to that child, limited to an allowance for clothing and personal needs.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-63. Budgeting in unusual circumstances.

1.Except as provided in subsection 3, if an eligible child lives in the home of a relative who is not the child's parent, the relative is ineligible if the relative's spouse also lives in the home.

2.If an eligible child lives in the home of a relative who is not the child's parent, and the spouse of that relative does not also live in the home, the relative:

a.Must be excluded from the household if the relative's income and assets would cause the household to be ineligible; and

b.May be included in the household if the relative requests inclusion and the relative's income and assets do not cause the household to be ineligible.

3.Except as provided in subsection 5, if an eligible child lives in the home of a relative who is not the child's parent, but who is, and could in the absence of that child be, a member of a household which includes the spouse of the relative, the eligible child must be added as a member of the household of the relative.

4.Except as provided in subsection 5, if two or more eligible children are living in the home of an ineligible relative who is not a parent of either child, all eligible children must be included in a single household.

5.An individual who is a caretaker relative in a household may act as a temporary payee for a child who is a member of another household and with respect to whom the individual is a relative, while that child lives temporarily with the individual, to preserve the child's usual living arrangement with that child's caretaker relative who is:

a.Hospitalized; or

b.Incarcerated for ninety days or less.

6.If two or more relatives, who are each eligible caretakers for one or more children but who are not married to each other and who have no children in common living in the household, live together, each caretaker and the child or children with respect to whom that caretaker is a relative must be budgeted as a household.

7.If a child lives with a relative who receives supplemental security income benefits, budgeting is based on the number of eligible individuals in the household.

8.If a child lives with a parent whose needs are deleted from the benefit due to the parent's failure to cooperate in obtaining support and in establishing paternity or in the job opportunities and basic skills program, the parent's income and assets must be considered in determining eligibility for the remaining members of the household. The income of the parent is subject to any applicable income disregards.

9.If an eligible caretaker leaves a child in the care of another individual while the caretaker pursues an educational program in another community, budgeting for the household must be done as if the unit resided together. 10.a.If a member of a household is hospitalized or residing in a halfway house, a drug and alcohol treatment facility, the North Dakota state hospital, a nursing home, or a swing bed facility, and there is a medical plan that the individual may return to the household:

(1)No reduction in assistance may be made for the first three full months if the individual receives a cash grant, but the needs of the individual must be reduced thereafter to a forty-five dollar clothing and personal needs allowance; and (2)Effective the first day of the month following the date of admittance to the institution, the needs of a household member admitted to a veterans administration hospital or any state institution other than the North Dakota state hospital must be deleted.

b.For periods when the needs of an individual must be reduced, the individual's share of assistance is limited to the amount of the clothing and personal needs allowance, effective with the first month the reduction may be made. This budgeting arrangement must continue as long as the medical plan calls for the individual to return to the household, but may not exceed nine months.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005;

January 1, 2011. 75-02-01.2-64. Essential services.

1.The human service zone may determine a service, which the family cannot perform independently because of infirmity or illness, is essential to the well-being of the household.

2."Essential service" includes housekeeping services and child care during a caregiver's illness or hospitalization, attendant services, and extraordinary costs of accompanying a member of the family to a distant medical or rehabilitation facility, arising out of a special need or condition of a member of the household or an ineligible caretaker who is not a parent of a child in the household and may include other expenses and services, provided:

a.The need is unforeseen and due to no fault of the household;

b.The department is the payer of last resort; and

c.The household receives prior approval from the department.

3.The cost of essential services, which is a special item of need:

a.May be provided for in the cash grant only if the cost has been established through negotiations with the provider of the services; and

b.Must be budgeted and paid retrospectively or prospectively or by supplemental payments.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-65. Catastrophic events and unforeseen circumstances.

1.The human service zone may authorize vendor payments for the replacement of food, clothing, furniture, household equipment, and supplies, as a special item of need, at a level comparable to that maintained by the household prior to a flood, fire, storm, or other disaster, if:

a.The availability of replacements, at no or nominal cost to the household, from sources such as the American red cross, has been determined and assistance with replacements coordinated; and

b.The loss of items for which replacement is sought has been determined.

2.The human service zone may authorize reimbursement for an unforeseen expense incurred by a recipient for a payment made in a situation that was beyond the individual's control.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-66. Medical insurance premiums.

1.The human service zone may authorize payment for the cost of premiums for health insurance carried by the household, as a special item of need. Payment may be made for only one policy of health insurance. If the policy covers individuals who are not members of the household, payment is limited to:

a.If the household or insurer provides information that describes the manner in which the insurance company allocates premium charges between the insureds, the allocation attributable to the members of the household; or, if that allocation is unavailable; and

b.The total premium amount, divided by the number of individuals covered, and then multiplied by the number of covered members of the household.

2.For purposes of this section, "premiums for health insurance" includes payments made for insurance, health care plans, or nonprofit health service plan contracts that provide benefits for hospital, surgical, medical care and dental or vision insurance, but do not include payments made for coverage that is:

a.Limited to disability or income protection coverage;

b.Automobile medical payment coverage;

c.Supplemental to liability insurance;

d.Designed solely to provide payments on a per diem basis, daily indemnity, or nonexpense-incurred basis; or

e.Credit accident and health insurance.

3.Payment for the cost of premiums for health insurance:

a.May be provided in the cash grant only if the cost or pro rata cost has been established;

b.Must be budgeted and paid in the month in which the human service zone is informed of the insurance and receives verification of the cost.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-67. Child restraint systems.

The human service zone may authorize payment, as a special item of need, to members of the household for the verified cost of an approved child restraint system designed to secure a child while riding in a passenger vehicle.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 75-02-01.2-68. High school graduate or general equivalency diploma incentive payment.

The human service zone may authorize a one-time payment of an amount determined by the department, as a special item of need, to each individual in the household upon completion of high school or receipt of general equivalency diploma.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005;

January 1, 2011; January 1, 2014. 75-02-01.2-68.1. Housing allowance.

The human service zone may authorize, as a special item of need, an amount determined by the department when a family has an independent living arrangement and the members of the family have sole responsibility for all housing costs.

History: Effective January 1, 2011; amended effective January 1, 2014. 75-02-01.2-69. Unrestricted payment of assistance - Exceptions.

1.The usual method of providing assistance under this chapter is through payments by check, direct deposit, or credit on account, immediately redeemable at par, made to the caretaker relative or legal guardian at regular intervals, with no restrictions on the use of the funds. This practice is followed because recipients of assistance do not, by virtue of their need for assistance, lose the capacity to select how or when the needs of the household are met. If the caretaker relative or other members of the household manage funds in a manner that is clearly detrimental to members of the household, or if the caretaker relative is subject to sanction for nonconformance to program requirements, protective payments may be used to assist the household in financial management. 2.a.A determination that there is a detrimental mismanagement of funds may be based on:

(1)Continued failure to plan for and make necessary expenditures during periods for which assistance is provided;

(2)Continued failure to provide children in the household with proper food, clothing, or housing so as to threaten the chances of those children for healthy growth and development;

(3)Persistent failure to pay the cost of rent, food, utilities, school supplies, or other essentials;

(4)Repeated loss of housing due to nonpayment of housing costs; or (5)Repeated failure to pay debts that result in attachments of or levies against current income.

b.The fact that debts are not paid on a timely basis may not be the sole basis for a determination that there is detrimental mismanagement of funds unless relevant factors, including the following, have been considered:

(1)Whether the family has experienced an emergency or extraordinary event that reasonably required the expenditure of funds ordinarily used to meet the needs of the household;

(2)Whether reasonable payments on necessarily incurred debt exceed the family's income; or (3)Whether the family has withheld payment on a debt as a part of a legitimate dispute concerning the amount of the debt or the terms or performance of a contract out of which the debt arises. 3.a.The human service zone may select, appoint, and remove a protective payee to receive and manage a household's cash grant. In making a selection, the human service zone shall consider any individual nominated by the caretaker relative.

b.The protective payee is a fiduciary responsible for assuring that the cash grant is expended to achieve the maximum reasonable benefit for the assistance and for working cooperatively with the human service zone.

c.The protective payee may be furnished information about the household, from the human service zone's records, sufficient to allow the protective payee's role to be carried out.

The information furnished to the protective payee under this section remains confidential information subject to the provisions of North Dakota Century Code section 50-06-15.

d.The status of a household for which a protective payee has been appointed must be reviewed by the human service zone as often as necessary, but no less often than every six months, to determine if:

(1)The protective payee is performing satisfactorily;

(2)The household should be restored to unrestricted money payment status; and (3)Some other arrangement should be sought for the care of children who are members of the household.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005;

April 1, 2026. 75-02-01.2-70. Payee.

Each household shall have a designated payee who must be the primary individual unless there is a protective payee. 75-02-01.2-71. Making payment - Correcting overpayments and underpayments.

1.A payment of a cash grant is deemed to be complete as of 12:01 a.m. on the first day of the month for which it is issued.

2.Except as provided in subsection 3, a payment check must be endorsed by the payee, or an attorney-in-fact for the payee, with a signature, written in ink, in the same form as the indicated payee.

a.If the payee is a guardian, the endorsement must so indicate and must name the ward.

b.If the endorsement is by an attorney-in-fact of the payee, the endorsement must so indicate and must name the attorney-in-fact.

3.If the payee dies or becomes absent before a properly issued check has been endorsed, an endorsement may be made:

a.By the payee's spouse or surviving spouse, if that spouse has been living with the payee, and, if there is no such spouse;

b.By a temporary payee, and, if there is no such spouse or temporary payee; or

c.By the director of the human service zone.

4.A payment check endorsed under subsection 3 must include, immediately below the endorsement, a statement of approval dated and signed by the director of the human service zone.

5.A payment check may be issued to replace a lost, stolen, or destroyed payment check only if:

a.An indemnity bond is executed by the payee and delivered to the department's finance office; and

b.A stop-payment order is placed against the payment check alleged to be lost or destroyed.

6.Any overpayment, whether resulting from recipient or administrative error, or from assistance granted pending a decision on an appeal adverse to the appellant, and whenever made, is subject to recovery. Except as provided in subsection 7, an overpayment must be collected from any household that includes a member who benefited from, or who was responsible for, the overpayment, by reducing the cash grant, to that household, by an amount equal to ten percent of the standard of need.

7.If a court order, entered in a matter that considered the circumstances leading to the overpayment, requires restitution of an amount less than the amount of the overpayment, or requires periodic payments of restitution greater or less than the monthly amount determined under subsection 6, the amount of restitution and periodic payments so ordered must be used to calculate reduction, in the cash grant amount, used to recover an overpayment.

8.Unless the overpayment was the result of fraud, including fraud involving the crimes of theft and making false statements in a governmental matter, or an intentional program violation, the human service zone may suspend efforts to collect overpayments when no individual who benefited from, or was responsible for, the overpayment is a member of a household:

a.If the amount of the overpayment is less than thirty-five dollars; or

b.If recovery is not determined to be cost-effective after an effort to recover has failed, including, at a minimum, a written communication describing the amount and basis for the overpayment, and requesting repayment.

9.The human service zone shall promptly correct any underpayment for a current member of a household, or to an individual who would be a current member of a household but for the error that led to the underpayment.

10.The benefit amount may be adjusted to correct an underpayment or overpayment arising out of previous periods of eligibility.

History: Effective December 9, 1996; amended effective January 1, 2003; January 1, 2011; April 1, 75-02-01.2-72. Intentional program violation - Disqualification penalties.

1.For purposes of this section:

a."Intentional program violation" means an individual's intentional action or failure to act which consists of:

(1)Making a false or misleading statement or misrepresenting, concealing, or withholding facts;

(2)Violating provisions of North Dakota Century Code chapter 50-09, this chapter, or any state statute relating to the acquisition or use of assistance provided under North Dakota Century Code chapter 50-09 or this chapter;

(3)Being convicted in federal or state court of having made a fraudulent statement or representation with respect to the place of residence of the individual to receive temporary assistance for needy families, Medicaid, supplemental nutrition assistance program benefits, or supplemental security income simultaneously from two or more states; or (4)Using a temporary assistance for needy families debit card in any liquor store; any casino, gambling casino, or gaming establishment, or any retail establishment that provides adult-oriented entertainment in which performers disrobe or perform in an unclothed state of entertainment in violation of Pub. L. 112-96, provided access to the funds is not otherwise available through an automated teller machine, financial institution, or other means within a reasonable distance of the recipient's residence;

b.An individual intends all results reasonably foreseeable from the actions the individual takes or fails to take.

2.An individual who, on any basis, is found to have committed an intentional program violation by a state administrative disqualification proceeding or by a federal or state court is subject to the penalties provided in this section. Additionally:

a.If a court judgment includes a temporary assistance for needy families disqualification period, the human service zone shall impose the disqualification period according to the temporary assistance for needy families disqualification time frames; or

b.If a court judgment does not include a disqualification period, the human service zone shall pursue any appropriate disqualification according to temporary assistance for needy families disqualification requirements.

3.An individual who waives the individual's right to appear at an intentional program violation hearing is subject to the penalties provided in this section.

4.During any period of disqualification:

a.The individual's needs may not be taken into account when determining the household's need and amount of assistance;

b.All assets and income of the disqualified individual, including gross earned income, must be considered available to the household;

c.Income disregards may be provided for the disqualified individual when determining if the remaining household members are eligible; and

d.The overpayment is recovered through a reduction, at the rate of twenty percent of the standard of need.

5.The duration of the penalty described in this section is:

a.One year for the first offense;

b.Two years for the second offense;

c.Permanent for the third and any subsequent offense; and

d.Ten years for individuals who were convicted in federal or state court of fraudulently misrepresenting residence.

6.Any period of disqualification must remain in effect, without possibility of an administrative stay, unless and until the finding upon which the penalty was based is subsequently reversed by a court of appropriate jurisdiction, but in no event may the duration of the period for which the penalty was imposed be subject to review.

7.If a disqualification penalty and other sanctions or penalties apply:

a.The disqualification penalties in this section must be in addition to, and may not be substituted for, any other sanctions or penalties that may be imposed for the same offense; and

b.The disqualification penalties imposed under this section affect only the individual concerned and cannot substitute for other sanctions imposed under this chapter.

8.A disqualification penalty imposed on an individual by another state may be continued in this state and may be used to determine the appropriate duration of a disqualification penalty imposed under this section.

9.A disqualification penalty period must begin no later than the first day of the second month that follows the date of notice of imposition of the penalty.

10.The department shall issue a written notice informing the individual of the period of disqualification and the amount of assistance the household may receive during the disqualification period.

11.Overpayments must be recovered from the assistance unit which was overpaid, any assistance unit of which a member of the overpaid assistance unit has subsequently become a member, or any individual members of the overpaid assistance unit whether or not currently a recipient.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2011; January 1, 2014; April 1, 2026. 75-02-01.2-72.1. Denial of assistance for fugitive felons and probation and parole violators.

1.An individual may not be included in the cash grant if the individual is:

a.Fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the individual flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees, or which, in the case of the state of New Jersey, is a high misdemeanor under the laws of such state; or

b.Violating a condition of probation or parole imposed under federal or state law.

2.During any period of disqualification:

a.The individual's needs may not be taken into account in determining the household's need and amount of assistance;

b.All assets and income of the disqualified individual, including gross earned income, must be considered available to the household; and

c.Income disregards may be provided for the disqualified individual when determining if the remaining household members are eligible.

History: Effective January 1, 2003; amended effective June 1, 2005; January 1, 2014; April 1, 2026.

Law Implemented: NDCC 50-09-02; 50-09-29 75-02-01.2-73. Health tracks.

The human service zone may authorize an amount to be determined by the department, as a special item of need, to all members of a household, under age twenty-one, who complete a health tracks screening. This amount may only be authorized and issued once every twelve months, beginning with the date of the screening.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; January 1, 2011; January 1, 2014. 75-02-01.2-74. Assessment and case plan. 75-02-01.2-75. Temporary assistance for needy families social contract. 75-02-01.2-76. Social contract. 75-02-01.2-77. Annual reassessment. 75-02-01.2-78. Mandatory contract requirements. 75-02-01.2-79. Sanctions for noncompliance with temporary assistance for needy families program requirements.

1.Temporary assistance for needy families participants who fail or refuse to comply with program requirements, without good cause, may be sanctioned. Actions or failures to comply that may result in sanctions include:

a.Failure or refusal to participate in the job opportunities and basic skills or tribal native employment works programs;

b.Failure or refusal to cooperate in obtaining child support or establishing paternity; and

c.Quit a job or refused an offer of employment without good cause.

2.All sanctions are first imposed against the responsible individual and will result in removal of the individual's financial needs from the household's temporary assistance for needy families grant, for a period of one month in an ongoing case.

3.If the sanctioned individual does not cure the sanction prior to the end of the sanction penalty month, the sanction may progress to closure of the entire temporary assistance for needy families case.

a.A sanction penalty month runs from the effective date of a sanction through the last day of that month.

b.If a sanction, based on noncooperation with the job opportunities and basic skills program leads to closure of the entire temporary assistance for needy families case, the household, at a minimum, is ineligible for assistance in the month following the sanction penalty month, and until the responsible individual cures the sanction.

c.If a sanction, based on noncooperation with the child support agency leads to closure of the entire temporary assistance for needy families case, the household is ineligible for assistance in the month following the sanction penalty month.

4.Sanctions under temporary assistance for needy families follow a noncooperating individual.

5.A job opportunities and basic skills program sanction, or a tribal native employment works program sanction, is cured only if the responsible individual demonstrates, to the satisfaction of the human service zone, that the failure to cooperate or participate, as required, has been corrected for at least five consecutive days unless the responsible individual has been off temporary assistance for needy families for twelve or more consecutive months.

6.A child support sanction may only be considered cured upon notification from the child support agency to the eligibility worker that the sanctioned individual is cooperating in obtaining child support and, if necessary, establishing paternity.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005;

January 1, 2011; July 1, 2023; April 1, 2026. 75-02-01.2-80. Good cause determination.

1.Except with respect to a sanction imposed for failure to obtain child support, or establish paternity, an individual must be provided an opportunity to present the good cause reason for a failure or refusal to cooperate prior to the imposition of a sanction.

2.The eligibility worker or the individual's job opportunities and basic skills employment contractor may oversee the good cause determination process. If the individual is not cooperating with the job opportunities and basic skills program, the employment contractor is responsible to oversee the good cause determination process and shall inform both the individual and the eligibility worker of the outcome of the good cause determination process.

3.Within two days after the employment contractor learns of a failure or a refusal to comply, the eligibility worker or employment contractor, as appropriate, shall send written notice to the individual to offer an opportunity to show good cause. A good cause determination must state that:

a.The individual is responsible to call or meet with the employment contractor within seven business days, from the print date of the notice, to show good cause; and

b.A sanction must be imposed if the individual does not contact the employment contractor or eligibility worker, as appropriate, within the required time or does not show good cause for the individual's failure or refusal to comply.

4.If an individual fails or refuses to participate in the good cause determination process, or if it is determined that the individual did not show good cause for the initial failure or refusal to participate as required in the temporary assistance for needy families program, the eligibility worker shall notify the individual of the sanction.

5.Claims of good cause must be evaluated using the decisionmaking principles described in

History: Effective December 9, 1996; amended effective January 1, 2003; June 1, 2005; January 1, 2009; January 1, 2011; July 1, 2023; April 1, 2026. 75-02-01.2-81. Good cause for failure to complete temporary assistance for needy families social contract. 75-02-01.2-82. Job opportunities and basic skills program - Definitions.

For purposes of the job opportunities and basic skills program:

1."Eligible individual" means an adult or minor child head of household receiving assistance or a nonrecipient parent living with a child receiving assistance.

2."Employment contractor" means the job opportunities and basic skills program agency or staff member responsible for directing and monitoring a participant's planning and activities that relate to the job opportunities and basic skills program. The employment contractor is responsible for completing orientation and an assessment. After orientation and the assessment are completed, the employer contractor assists the participant in the development and execution of an employability plan and oversees the participant's involvement in the job opportunities and basic skills program.

3."Minimum required hours" means the number of hours per week during which a participant must be engaged in approved work activity.

4."Participant" means a member of a household who is not exempt from participating in the job opportunities and basic skills program or who, if exempt, has volunteered to participate in that

5."Satisfactory progress" in any postsecondary education or training program means the participant is maintaining progress minimally sufficient to allow continuation of the course of study or training under the standards of the education or training facility.

6."Work-eligible individual" includes anyone listed in subdivision a, but does not include anyone listed in subdivision b:

a.Included individuals are:

(1)Any adult receiving assistance under temporary assistance for needy families;

(2)Any minor child head of household receiving assistance under temporary assistance for needy families;

(3)Any minor parent head of household receiving assistance under temporary assistance for needy families; or (4)Any nonrecipient parent living with a child receiving assistance, including any parent:

(a)Sanctioned due to noncompliance with work requirements; or (b)Disqualified due to an intentional program violation, status as a fleeing felon, parole or probation violation, or noncompliance with the child support agency.

b.Individuals not included are:

(1)A minor parent who is not the head of household;

(2)A noncitizen who is ineligible to receive assistance due to that individual's immigration status;

(3)A parent providing care for a disabled family member living in the home;

(4)A dependent child who is under age sixteen;

(5)Unless the child is a single head of household, a dependent child who is age sixteen or over, enrolled as a full-time student, who will graduate by the child's nineteenth birthday;

(6)Those receiving supplemental security income; or (7)Those receiving social security disability income.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; January 1, 2011; April 1, 2026. 75-02-01.2-83. Job opportunities and basic skills program - Basic requirements. 75-02-01.2-84. Job opportunities and basic skills program - Satisfactory participation.

1.Except as otherwise provided in this section, all work-eligible individuals and all eligible children, age sixteen or older, who have completed high school or received a general equivalency diploma and who are not enrolled in secondary or vocational education or employed or who have neither completed high school nor received a general equivalency diploma and are not currently attending school, shall comply with work requirements no fewer than the minimum required hours each week. Work activity may be required in addition to the minimum required hours in an approved work activity.

2.A parent or other eligible caretaker relative of a child under age six, who is personally caring for that child full time, is deemed to comply with subsection 1 if engaged in an allowable work activity an average of at least the minimum required hours per week during each month.

3.A single head of household, under twenty years of age, who has not earned a high school diploma or its equivalent, but who maintains satisfactory attendance in school, is deemed to comply with subsection 1.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; April 1, 2026.

Law Implemented: NDCC 50-06-05.1, 50-09 75-02-01.2-85. Job opportunities and basic skills program - Work requirements.

1.The work activities of the job opportunities and basic skills program include:

a.Unsubsidized employment;

b.Subsidized public or private sector employment;

c.On-the-job training;

d.Public or private work experience;

e.Job search and job readiness activities;

f.Community service;

g.Vocational training;

h.Education directly related to employment for a participant who has not completed high school or received a general equivalency diploma;

i.Satisfactory attendance at secondary school or in a course of study leading to a general equivalency diploma;

j.Provision of child care services to another participant engaged in a community service program; and

k.Job skills training directly related to employment.

2.Work requirements include participation in work activities for periods of time necessary to allow a participant to complete tasks that will move the participant directly into employment.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003. 75-02-01.2-86. Job opportunities and basic skills program - Tribal native employment works Tribal native employment works programs are available to enrolled or enrollable members of tribes who live in that tribe's service area, who receive a temporary assistance for needy families cash grant, and who reside in a county within which there is a tribal native employment works program. An individual who participates in a tribal native employment works program shall meet all work requirements described in this chapter. The human service zone shall:

1.Refer work-eligible individuals to the tribal native employment works program based on referral criteria established by a memorandum of understanding between the tribe and the department;

2.Provide child care payments to authorized tribal native employment works program participants, for activities which may be approved under the state child care and development fund plan submitted under the Child Care and Development Block Grant Act of 1996 [42 U.S.C. 9858], based on information furnished by the tribal program; and

3.Upon notification from the tribal program, consider sanctioning individuals for failure or refusal to participate in the program without good cause.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009. 75-02-01.2-87. Job opportunities and basic skills program - Exemptions from participation.

An individual is exempt from participation in the job opportunities and basic skills program if the individual is:

1.A parent or other eligible caretaker relative age sixty-five or older;

2.A dependent child who is under age sixteen or a dependent child who is age sixteen or over and who is enrolled or has been accepted for enrollment as a full-time student for the next school term in an elementary or secondary school or in a vocational or technical school that is equivalent to secondary school and will graduate by the child's nineteenth birthday, unless the child is a single head of household;

3.A parent or other eligible caretaker relative of a child under two months of age who is personally caring for the child full time; or

4.A parent providing care for a disabled family member living in the home, provided that the need for such care is supported by documentation.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; January 1, 2011. 75-02-01.2-88. Job opportunities and basic skills program - Referral.

1.Any individual not exempt from the job opportunities and basic skills program and anyone who volunteers must be referred to the program. Referrals may be made only after the individual is determined otherwise eligible for assistance.

2.The referred individual shall contact the job opportunities and basic skills program within seven business days from the print date of the referral to set up an appointment for program orientation, assessment, and employability planning and shall make a good-faith effort to complete program orientation, initial assessment, and employability planning within thirty days of the application date.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005;

January 1, 2011; July 1, 2023. 75-02-01.2-89. Job opportunities and basic skills program - Orientation, assessment, and employability planning. 75-02-01.2-90. Job opportunities and basic skills program - Supportive services and post temporary assistance for needy families supportive services.

1.Supportive services may be made available to an eligible participant who, but for supportive services, is unable to enter into or remain in an allowable work activity. No supportive service may be provided without approval from the employment contractor, eligibility worker, or state office.

2.Post temporary assistance for needy families supportive services may be provided to assist employed former temporary assistance for needy families recipients to succeed in the workforce and avoid the need to receive further temporary assistance for needy families benefits.

3.Supportive services may include:

a.Relocation assistance provided to a job opportunities and basic skills participant if:

(1)The individual has a verified bona fide offer of employment, which will increase the individual's potential for increased earnings, job advancement, or permanent employment; or (2)The individual requests and receives approval to move from an area of the state with few employment opportunities to another area of the state with greater employment opportunities, or to an area out of state with greater employment opportunities.

b.Monthly transportation assistance provided to participants in an approved work activity, if necessary for continued participation.

c.Child care expense reimbursement in amounts consistent with the provisions of the state child care and development fund plan submitted under the Child Care and Development Block Grant Act of 1990 [42 U.S.C. 9858].

d.Assistance in the purchase of care for an incapacitated or disabled adult member of the participant's household, to whom the participant owes a legal duty to provide care, provided:

(1)There is no other individual in the household who can provide the care; and (2)The incapacitated or disabled adult household member cannot provide self-care.

e.Assistance in the purchase of employment-related items determined to be reasonable and necessary for the participant to enter employment.

f.Assistance in the purchase of tools or equipment determined by the employment contractor to be required for the participant to accept employment.

g.Assistance in the cost of repairs determined to be reasonable and necessary to return a participant's vehicle to operable condition, provided:

(1)The vehicle is registered to a member of the household;

(2)The vehicle is needed by the participant to get to work or another approved work activity; and (3)The general condition and value of the vehicle justifies repairs.

h.Assistance for defraying the cost of books, tuition, and fees associated with an allowable work activity, provided:

(1)Other educational fund sources have been explored and are exhausted; and (2)The participant is eligible for assistance at the time funds are paid or obligated.

i.Assistance with payment for professional license fees and professional examination fees, if there is no other available source of funding, including fee waivers, and the professional license or examination is necessary to achieve an employment-related goal.

j.Assistance with expenses determined to be reasonable and necessary for the individual to engage in employment or participate in employment interviews, including transportation, lodging, grooming, and clothing.

k.Assistance with housing or shelter expenses for applicant households and for ongoing households who are homeless or at risk of experiencing homelessness, as follows:

(1)Provided the family did not receive temporary assistance for needy families in the month prior to the month of application, assistance with housing or shelter expenses may be used for:

(a)Two months prior to the month of application;

(b)Either of the two months prior to the month of application;

(c)The month of application; or (d)One month following the month of application.

(2)The ongoing household's payment may be made for up to two months consecutively. It may not be made for more than two months in total while the case is active.

(3)The caretaker or caretaker's spouse must be participating in the job opportunities and basic skills program.

(4)The applicant or recipient shall show ability to sustain payment of expenses in the future.

4.The maximum expenditures permitted for supportive services and transitional supportive services are limited to amounts and availability as the department may by order determine.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2009; January 1, 2011; April 1, 2024; April 1, 2026. 75-02-01.2-91. Job opportunities and basic skills program - Educational activities related to secondary education, basic and remedial education, or education in English proficiency. 75-02-01.2-92. Job opportunities and basic skills program - Job skills training directly related to employment. 75-02-01.2-93. Job opportunities and basic skills program - Unsubsidized employment. 75-02-01.2-94. Job opportunities and basic skills program - Job search and job readiness. 75-02-01.2-95. Job opportunities and basic skills program - Job development and job placement activities. 75-02-01.2-96. Job opportunities and basic skills program - Vocational education. 75-02-01.2-97. Job opportunities and basic skills program - Provision of child care services to another participant engaged in a community service program. 75-02-01.2-98. Job opportunities and basic skills program - Work experience and community service program. 75-02-01.2-99. Job opportunities and basic skills program - Work readiness activities. 75-02-01.2-100. Job opportunities and basic skills program - On-the-job training. 75-02-01.2-101. Job opportunities and basic skills program - Subsidized public or private sector employment. 75-02-01.2-102. Job opportunities and basic skills program - Failure or refusal to participate.

A failure or refusal to participate in the job opportunities and basic skills program occurs any time the participant:

1.Misses a scheduled appointment for any program or approved work activity;

2.Is absent from a program or approved work activity when scheduled to be there;

3.States an unwillingness to participate in any program or approved work activity;

4.Fails to contact the employment contractor, within seven business days from the print date of the referral, to set up an appointment to begin involvement in the program;

5.Refuses, despite apparent ability, to maintain satisfactory progress in any program or approved work activity; or

6.Fails to comply with the requirements of the participant's employability plan.

History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; June 1, 2005;

January 1, 2009; July 1, 2023. 75-02-01.2-103. Job opportunities and basic skills program - Good cause for failure or refusal to comply with a referral to, or participate in, the job opportunities and basic skills

1.All work-eligible individuals shall participate in the job opportunities and basic skills program unless good cause is granted by the eligibility worker. Good cause for failure or refusal to participate in the job opportunities and basic skills program exists if:

a.The household member is incapacitated with a physical or mental impairment verified by reliable medical evidence which, by itself or in conjunction with age, prevents the individual from working or participating in any job opportunities and basic skills program or work activity;

b.An individual is substantially continuous presence in the household is necessary to care for another member of the household, to whom the individual seeking good cause for nonparticipation owes a legal duty to provide care, and the member of the household has a condition, verified by reliable medical evidence, which does not permit self-care, care by another household member, or care provided as supportive services;

c.An individual has an illness or injury, verified by reliable medical evidence and reviewed every thirty days, which is serious enough to temporarily prevent entry into employment or participation in any job opportunities and basic skills program activity; or

d.A parent or other eligible caretaker relative of a child under age six, is personally caring for the child full time and demonstrates an inability to obtain needed child care for one or more of the following reasons:

(1)Child care is unobtainable at a location where the usual commuting time from the parent's home to the location at which child care is provided, and on to the parent's worksite, is one hour or less;

(2)Suitable child care is unobtainable from a relative, from an approved child care provider licensed or registered under North Dakota Century Code chapter 50-11.1, or from a child care provider not required to be licensed or registered under North Dakota Century Code chapter 50-11.1; or (3)Child care is unobtainable, from a child care provider licensed or registered under North Dakota Century Code chapter 50-11.1, at a rate equal to or less than two times the maximum allowable amount determined by the child care assistance

2.Claims of good cause must be evaluated using the decisionmaking principles described in

History: Effective December 9, 1996; amended effective July 1, 1997; June 1, 2002; June 1, 2005;

January 1, 2009; January 1, 2011; April 1, 2026. 75-02-01.2-104. County administration.

Repealed effective April 1, 2020.

Chapter 75-02-01.3 Child Care Assistance

N.D. Admin. Code 75-02-01.3 Child Care Assistance

CHAPTER 75-02-01.3

CHILD CARE ASSISTANCE

Section 75-02-01.3-01Definitions 75-02-01.3-02Decision and Notice 75-02-01.3-03Closing a Case 75-02-01.3-04Available Benefits 75-02-01.3-05Approved Relative Provider's Background Check Information 75-02-01.3-06Payments to Providers - Child Care Certificate 75-02-01.3-07Treatment of Income 75-02-01.3-08Disregarded Income 75-02-01.3-09Deduction for Child Support and Spousal Support 75-02-01.3-10Caretaker Choice - Contract Between Caretaker and Provider 75-02-01.3-11Limitations 75-02-01.3-12Intentional Program Violation - Disqualification Penalties 75-02-01.3-13Appeals 75-02-01.3-01. Definitions.

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 50-33. In addition, as used in this chapter unless the context or subject matter otherwise requires:

1."Applicant" means an individual who is seeking assistance under this program.

2."Eligible child" means a child member of a child care assistance unit eligible for payment under the child care and development state plan.

3."Intentional program violation" means an individual's intentional action or failure to act which consists of:

a.Making a false or misleading statement or misrepresenting, concealing, or withholding facts; or

b.Being convicted in federal or state court of having made a fraudulent statement or representation with respect to child care assistance.

Law Implemented: NDCC 50-33 75-02-01.3-02. Decision and notice.

1.The human service zone shall notify the applicant or recipient in writing of the approval, denial, or termination. If an applicant's applications is denied or a recipient's eligibility is terminated, the written notice must include:

b.The reason for the proposed action, including the rule, regulation, or statute upon which

c.An explanation of the applicant's or recipient's right to request an appeal.

2.The effective date a case is closed or suspended is the last calendar day of the month identified in the notice.

3.Errors made by public officials and delays caused by the actions of public officials do not create eligibility or additional benefits for an applicant or recipient who is adversely affected.

History: Effective April 1, 2010; amended effective April 1, 2014; October 1, 2016. 75-02-01.3-03. Closing a case.

A case must be closed when:

1.The child care assistance unit includes no eligible child.

2.The review form:

a.Is not submitted timely; or

b.Is incomplete so further eligibility cannot be determined.

3.The household income exceeds the upper income limit for the household size.

4.The family moves out of state.

5.The recipient requests that the case be closed.

History: Effective April 1, 2010; amended effective April 1, 2014; October 1, 2016. 75-02-01.3-04. Available benefits.

The child care assistance program shall pay a portion of child care costs related to allowable activities of the caretaker based on family size and countable income by applying a sliding fee schedule established by the department which is based on household size and income.

History: Effective April 1, 2010; amended effective October 1, 2016. 75-02-01.3-05. Approved relative provider's background check information.

1.Before approving an individual as an approved relative provider, the department shall review available public records and the child abuse information index.

2.The department periodically may review available public records and the child abuse information index on an approved relative provider.

3.Based on information from public records, a relative provider applicant's request shall be denied; and an approved relative provider shall be terminated at the end of the month written notification is given; if he or she has been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapters 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing peace officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; or 14-09-22, abuse of a child; or 14-09-22.1, neglect of a child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense other than an offense identified in subdivision a or b, if the department determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

4.The department has determined that the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on the relative provider applicant's or approved relative provider's ability to serve as an approved relative provider.

5.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

6.If a confirmed decision made under North Dakota Century Code chapter 50-25.1 exists, indicating that a child has been abused or neglected by the applicant or relative provider, that decision has a direct bearing on the applicant's or relative provider's ability to serve as an approved relative provider and the application or certificate may be denied or revoked. If a confirmed decision under North Dakota Century Code chapter 50-25.1 and under chapter 75-03-19 exists indicating that any child has been abused or neglected by the applicant or relative provider, the applicant or relative provider shall furnish information, satisfactory to the department, from which the department can determine the applicant's or relative provider's ability to provide care that is free of abuse or neglect. The department shall furnish the determination of current ability to the applicant or relative provider for consideration and action on the application or relative provider's certificate.

7.The department shall notify the relative provider applicant and approved relative provider in writing of the approval, denial, or termination. If a relative provider applicant's request is denied or an approved relative provider's certificate is terminated, the written notice must include:

b.The reason for the proposed action, including the rule, regulation, or statute upon which

c.An explanation of the applicant's or provider's right to an appeal.

History: Effective April 1, 2010; amended effective April 1, 2014; October 1, 2016; April 1, 2022. 75-02-01.3-06. Payments to providers - Child care certificate.

1.Unless a provider otherwise elects in a signed and dated writing, all payments of child care assistance must be made to a provider.

2.No payment may be made except on presentation of a claim in a form and manner required by the department for periods during which all caretakers in the child care assistance unit were engaged in an allowable activity.

3.No payment to a provider may be made at a rate in excess of that charged by the provider for services to individuals who do not receive child care assistance. The provider may request for an exception if the provider is providing quality child care services to children in vulnerable populations as determined by the department. Exceptions will be reviewed by the department on a case-by-case basis. The department may deny an exemption request or revoke an exception granted under this subsection. The decision to deny or revoke an exception is not an appealable decision.

4.The department shall issue to the eligible caretaker a child care certificate.

History: Effective April 1, 2010; amended effective April 1, 2014; October 1, 2016; October 1, 2018.

Law Implemented: NDCC 50-06-06.1, 50-09-02, 50-33 75-02-01.3-07. Treatment of income.

1.A child care assistance unit's earned income from wages or any other source must be considered received in the month it is normally received or available.

2.A child care assistance unit's earned income from self-employment is computed:

a.From information in the following order of priority by:

(1)Using a federal income tax return and must be prorated over a twelve-month period that coincides with either a calendar year or the fiscal year used on the child care assistance unit member's federal tax return;

(2)Annualizing the income for the period of time the business has been in operation;

(3)Using income and costs of good ledgers; or (4)Estimating the effect on the annual income based on the best information available from the child care assistance unit.

b.By considering the type of business activity, expenses, and income.

3.Depreciation and other costs of doing business associated with a child care assistance unit's self-employment that do not require outlays during the period covered by the tax return must be added to the net income.

4.A child care assistance unit's earned income that is received on a contractual basis must be prorated over the period of the contract, regardless of when it is actually received.

5.Expenses necessarily incurred to maintain the source of the child care assistance unit's unearned income may be deducted to determine countable unearned income. All countable unearned income must be considered received in the month in which it is normally received or normally available. 75-02-01.3-08. Disregarded income.

The following types of income must be disregarded in determining child care assistance eligibility and benefits.

1.Money payments made by the department in connection with foster care, subsidized guardianship, family subsidy, or the subsidized adoption program;

2.Temporary assistance for needy families benefits and support services payments;

3.Benefits received through the low-income home energy assistance program;

4.General assistance;

5.Irregular cash gifts received by a child care assistance unit;

6.A loan from any source that is subject to a written agreement requiring repayment by the child care assistance unit;

7.A child care assistance unit's income tax refunds and earned income credits;

8.Training allowances of up to thirty dollars per week provided to a child care assistance unit member through a tribal native employment works program;

9.Training stipends provided by private, charitable organizations to a child care assistance unit member who is a victim of domestic violence for the member of the child care assistance unit to attend educational programs;

10.The first two thousand dollars per year of lease payments deposited in an individual Indian monies account for a child care assistance unit member;

11.Any income required by federal law to be disregarded;

12.Earned income of all children in the child care assistance unit;

13.A one-time bonus incentive payment or commission to a child care assistance unit member;

14.Vendor payments or other payments made to a third party on behalf of the child care assistance unit;

15.Stipend payments to a child care assistance unit that do not require work as a condition of receipt;

16.Nonrecurring lump sum payments to a child care assistance unit;

17.Irregular income from sale of craft items and rummage sales;

18.Payments made by cafeteria or flex compensation plans to a child care assistance unit member;

19.Funds raised on behalf of the child care assistance unit, or any member of that unit, if the child care assistance unit does not have access to the funds; and

20.Income from contracts for deed.

History: Effective April 1, 2010; amended effective April 1, 2014; October 1, 2016. 75-02-01.3-09. Deduction for child support and spousal support.

Court-ordered child support and court-ordered spousal support, including arrearages, interest, and fees charged for income withholding, paid by or collected from a child care assistance unit member, whose income is counted in determining eligibility and benefit amounts, may be deducted from the child care assistance unit's income. 75-02-01.3-10. Caretaker choice - Contract between caretaker and provider.

The caretaker of each eligible child who receives or is offered child care services for which financial assistance is provided through the child care and development fund may choose the approved relative provider, registrant, holder of a self-declaration, or licensed provider of services to that child. The department is not bound by or responsible for either party's compliance with the terms of any contract entered between a provider and a caretaker. 75-02-01.3-11. Limitations.

1.No caretaker in a child care assistance unit that includes two or more caretakers may be provided a benefit under this chapter for anytime another caretaker is available, or is treated under this chapter as available, to meet the needs of the child for whom assistance is sought.

2.If other eligibility criteria is met, a caretaker who is attending school in a one-year or two-year postsecondary vocational program that will lead to a certificate or a degree, high school or, a program leading to a general equivalency diploma may be eligible to receive assistance under this program.

History: Effective April 1, 2010. 75-02-01.3-12. Intentional program violation - Disqualification penalties.

1.An individual who, on any basis, is found to have committed an intentional program violation by a state administrative disqualification proceeding or by a federal or state court is subject to the penalties provided in this section. An individual who waives the individual's right to appear at an intentional program violation hearing is subject to the penalties provided in this section.

2.The human service zone shall notify an individual in writing of an intentional program violation.

The written notice must include:

b.The reason for the proposed action, including the rule, regulation, or statute upon which

c.An explanation of the individual's right to request an administrative hearing under chapter 75-01-03.

3.During any period of disqualification, if a disqualified individual:

a.Is a provider, the individual may not receive any child care assistance payment;

b.Is employed by a provider, that provider may not receive any child care assistance payment; and

c.Is a member of a child care assistance unit, that child care assistance unit is ineligible for child care assistance benefits.

4.The duration of the penalty described in this section is:

a.One year for the first offense;

b.Two years for the second offense; and

c.Permanently for the third offense.

5.Any period of disqualification must remain in effect, without possibility of an administrative stay, unless and until a court of appropriate jurisdiction subsequently reverses the finding upon which the penalty was based.

6.A disqualification penalty period must begin no later than the first day of the second month that follows the date of notice of imposition of the penalty.

7.The department shall issue a written notice informing the individual of the period of disqualification.

8.Overpayments may be recovered from:

a.The child care assistance unit that includes the disqualified individual;

b.Any child care assistance unit of which the disqualified individual subsequently becomes a member;

c.Any individual members of the child care assistance unit that included the disqualified individual;

d.The provider who was disqualified; and

e.The provider who employed the disqualified individual.

History: Effective April 1, 2010; amended effective April 1, 2014; October 1, 2016. 75-02-01.3-13. Appeals.

1.An applicant, recipient, relative provider applicant, or approved relative provider of child care assistance aggrieved by a determination made under this chapter may appeal that decision by the department. An applicant, recipient, relative provider applicant, or approved relative provider of child care assistance aggrieved by a decision must appeal in writing and include documentation of all of the following information:

a.A copy of the letter received from the department advising of the department's decision;

b.A statement of disputed facts, if any;

c.The authority in statute or rule upon which the applicant for, recipient of relative provider applicant, or approved relative provider of child care assistance relies for each disputed item; and

d.The name, address, and telephone number of the individual to whom the department will send all notices and information regarding the appeal.

2.An appeal must be filed within thirty days after the date of mailing of a decision.

3.A hearing request may be denied or dismissed when the sole issue is one of state or federal law requiring automatic benefit adjustments for classes of recipients.

4.Chapter 75-01-03 governs an appeal made under this chapter.

History: Effective April 1, 2010; amended effective April 1, 2014; October 1, 2016.

Chapter 75-02-02 Medical Services

N.D. Admin. Code 75-02-02-01 Purpose

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-02 Authority and objective

Under authority of North Dakota Century Code chapters 50-24.1 and 50-29, the department is empowered to promulgate such rules and regulations as are necessary to qualify for federal funds under section 1901 specifically and titles XIX and XXI generally of the Social Security Act. These regulations are subject to the Medicaid and children's health insurance program state plan and to applicable federal and state law and regulations.

History

• History: Effective October 1, 1979; amended effective February 1, 1981; April 1, 2020.
• General Authority: NDCC 50-06-05.1, 50-24.1-04
• Law Implemented: NDCC 50-24.1-04; 42 USC 1396a

N.D. Admin. Code 75-02-02-03 State organization

1.Single state agency. The department of health and human services is the single state agency with authority to supervise the administration of the Medicaid and children's health insurance program state plan and program.

2.Statewide operation.

a.The state plan will be in operation, through a system of local offices on a statewide basis, in accordance with equitable standards for assistance and administration that are mandatory throughout the state.

b.The state plan will be administered by the political subdivisions of the state and will be mandatory on such political subdivisions.

c.The department of health and human services, hereinafter referred to as the department, will assure that the plan is continuously in operation in all local offices or local agencies through:

(1)Methods for informing staff of state policies, standards, procedures, and instructions.

(2)Regular planned examination and evaluation of operations in local offices by regularly assigned state staff, including regular visits by such staff; and through reports, controls, or other necessary methods.

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to 75-02-02-03.2. Definitions.

For purposes of this chapter:

1."Certification of need" means a regulatory review process that requires specific health care providers to obtain prior authorization for provision of services for Medicaid applicants or eligible recipients under age twenty-one. Certification of need is a determination of the medical necessity of the proposed services as required for all applicants or recipients under the age of twenty-one prior to admission to a psychiatric hospital, an inpatient psychiatric program in a hospital, or a psychiatric facility, including a psychiatric residential treatment facility. The certification of need evaluates the individual's capacity to benefit from proposed services, the efficacy of proposed services, and consideration of the availability of less restrictive services to meet the individual's needs.

2."Department" means the North Dakota department of health and human services.

3."Drug use review board" means the board established pursuant to North Dakota Century Code chapter 50-24.6.

4."Enrolled in-state provider" means the enrolled medical provider who has assumed responsibility for the advice and care of the recipient.

5."Exercise program" includes regimens to achieve various improvements in physical fitness and health.

6."Home health agency" means a public or private agency or organization, or a subdivision of such an agency or organization, which is qualified to participate as a home health agency under title XVIII of the Social Security Act, or is determined currently to meet the requirements for participation.

7."Indian health service or tribal health facility or clinic" means either a health service facility or clinic operated by the United States department of health and human services Indian health service division or a federally recognized tribal nation that has opted to contract with Indian health service to plan, conduct, and administer one or more individual programs, functions, services, or activities, resulting in tribal health facilities or clinics operated by tribes and tribal organizations under the Indian Self-Determination and Education Assistance Act [Pub. L. 93-638].

8."Licensed practitioner" means an individual other than a physician who is licensed or otherwise authorized by the state to provide health care services within the practitioner's scope of practice.

9."Medical emergency" means a medical condition of recent onset and severity, including severe pain, that would lead a prudent layperson acting reasonably and possessing an average knowledge of health and medicine to believe that the absence of immediate medical attention could reasonably be expected to result in serious impairment to bodily function, serious dysfunction of any bodily organ or part, or would place the individual's health, or with respect to a pregnant woman, the health of the woman or her unborn child, in serious jeopardy.

10."Medically necessary" includes only medical or remedial services or supplies required for treatment of illness, injury, diseased condition, or impairment; consistent with the recipient's diagnosis or symptoms; appropriate according to generally accepted standards of medical practice; not provided only as a convenience to the recipient or provider; not investigational, experimental, or unproven; clinically appropriate in terms of scope, duration, intensity, and site; and provided at the most appropriate level of service that is safe and effective.

11."Provider" means an individual, entity, or facility furnishing medical or remedial services or supplies pursuant to a provider agreement with the department.

12."Psychiatric residential treatment facility" is as defined in subsection 13 of section 75-03-17-01.

13."Recipient" means an individual approved as eligible for Medicaid or children's health insurance program.

14."Rehabilitative services" means any medical or remedial items or services prescribed for a recipient by the recipient's physician or other licensed practitioner of the healing arts, within the scope of the physician's or practitioner's practice as defined by state law, for the purpose of maximum reduction of physical or mental disability and restoration of the recipient to the recipient's best possible functional level.

15."Remedial services" includes those services, including rehabilitative services, which produce the maximum reduction in physical or mental disability and restoration of a recipient to the recipient's best possible functional level.

16."Weight loss program" includes programs designed for reduction in weight, but does not include weight loss surgery.

History

• History: Effective October 1, 1979; amended effective May 1, 1986; April 1, 2020; January 1, 2024.
• Law Implemented: NDCC 50-06-05.1, 50-24.1-04; 42 CFR 431.10; 42 CFR 431.20 75-02-02-03.1. Definitions.
• History: Effective May 1, 2000; amended effective August 29, 2000; November 1, 2001; September 1, 2003; October 1, 2012; April 1, 2016; January 1, 2017; April 1, 2018; April 1, 2020; January 1, 2024.
• Law Implemented: NDCC 50-24.1-01

N.D. Admin. Code 75-02-02-04 Application and decision

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-05 Furnishing assistance

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-06 Coverage for eligibility

Repealed effective May 1, 1986.

N.D. Admin. Code 75-02-02-07 Conditions of eligibility

Repealed effective May 1, 1986.

N.D. Admin. Code 75-02-02-08 Amount, duration, and scope of Medicaid and children's health insurance program

1.Within any limitations which may be established by rule, regulation, or statute and within the limits of legislative appropriations, eligible recipients may obtain the medically necessary medical and remedial care and services which are described in the approved Medicaid and children's health insurance program state plan in effect at the time the service is rendered by providers. Services may include: a.(1)Inpatient hospital services. "Inpatient hospital services" means those items and services ordinarily furnished by the hospital for the care and treatment of inpatients provided under the direction of a physician or dentist in an institution maintained primarily for treatment and care of patients with disorders other than tuberculosis or mental diseases and which is licensed or formally approved as a hospital by an officially designated state standard-setting authority and is qualified to participate under title XVIII of the Social Security Act, or is determined currently to meet the requirements for such participation; and which has in effect a hospital utilization review plan applicable to all patients who receive Medicaid or children's health insurance program.

(2)Inpatient prospective payment system hospitals that are reimbursed by a diagnostic-related group will follow Medicare guidelines for supplies and services included and excluded as outlined in 42 CFR 409.10.

b.Outpatient hospital services. "Outpatient hospital services" means those preventive, diagnostic, therapeutic, rehabilitative, or palliative items or services furnished by or under the direction of a physician or dentist to an outpatient by an institution which is licensed or formally approved as a hospital by an officially designated state standard-setting

authority and is qualified to participate under title XVIII of the Social Security Act, or is determined currently to meet the requirements for such participation and emergency hospital services which are necessary to prevent the death or serious impairment of the health of the individual and which, because of the threat to the life or health of the individual, necessitate the use of the most accessible hospital available that is equipped to furnish such services, even though the hospital does not currently meet the conditions for participation under title XVIII of the Social Security Act.

c.Other laboratory and x-ray services. "Other laboratory and x-ray services" means professional and technical laboratory and radiological services ordered by a physician or other licensed practitioner of the healing arts within the scope of the physician's or practitioner's practice as defined by state law, and provided to a recipient by, or under the direction of, a physician or licensed practitioner, in an office or similar facility other than a hospital outpatient department or a clinic, and provided to a recipient by a laboratory that is qualified to participate under title XVIII of the Social Security Act, or is determined currently to meet the requirements for such participation.

d.Nursing facility services. "Nursing facility services" does not include services in an institution for mental diseases and means those items and services furnished by a licensed and otherwise eligible nursing facility or swing-bed hospital maintained primarily for the care and treatment which are provided under the direction of a physician or other licensed practitioner of the healing arts within the scope of the physician's or practitioner's practice as defined by state law for individuals who need or needed on a daily basis nursing care, provided directly or requiring the supervision of nursing personnel, or other rehabilitation services which, as a practical matter, may only be provided in a nursing facility on an inpatient basis.

e.Intermediate care facility for individuals with intellectual disabilities services.

"Intermediate care" means those items and services which are provided under the direction of a physician or other licensed practitioner of the healing arts within the scope of the physician's or practitioner's practice as defined by state law. "Intermediate care facility for individuals with intellectual disabilities" has the same meaning as provided in

chapter 75-04-01.

f.Early and periodic screening, diagnosis, and treatment of individuals. "Early and periodic screening, diagnosis, and treatment" means the services provided to ensure that individuals under age twenty-one who are eligible under the plan receive appropriate, preventative, mental health developmental, and specialty services to correct or ameliorate medical conditions.

g.Physician's services. "Physician's services" whether furnished in the office, the recipient's home, a hospital, nursing facility, or elsewhere means those services provided, within the scope of practice of the physician's profession as defined by state law, by or under the personal supervision of an individual licensed under state law to practice medicine or osteopathy.

h.Medical care and any other type of remedial care other than physician's services recognized under state law and furnished by licensed practitioners within the scope of their practice as defined by state law.

i.Home health care services. "Home health care services", is in addition to the services of physicians, dentists, physical therapists, and other services and items available to recipients in their homes and described elsewhere in this section, means any of the following items and services when they are provided, based on physician order, medical necessity, and a written plan of care, to a recipient in the recipient's place of residence, excluding a residence that is a hospital or a skilled nursing facility:

(1)Intermittent or part-time skilled nursing services furnished by a home health agency;

(2)Intermittent or part-time nursing services of a registered nurse, or a licensed practical nurse, or which are provided under the direction of a physician and under the supervision of a registered nurse, when a home health agency is not available to provide nursing services;

(3)Medical supplies, equipment, and appliances ordered or prescribed by the physician as required in the care of the patient and suitable for use in the home; and (4)Services of a home health aide provided to a patient in accordance with the plan of treatment outlined for the patient by the attending physician and in collaboration with the home health agency.

j.Hospice care. "Hospice care" means the care described in 42 CFR 418 furnished to an individual who is terminally ill and who has voluntarily elected to have hospice care.

Hospice care may be provided to an individual while the individual is a resident of a nursing facility, but only the hospice care payment may be made. An individual's voluntary election must be made in accordance with procedures established by the department.

k.Private duty nursing services. "Private duty nursing services" means nursing services for recipients who require more individual and continuous care than is available from a visiting nurse or is routinely provided by the nursing staff of a medical facility. Services are provided by a registered nurse or a licensed practical nurse under the direction of and ordered by a physician.

l.Dental services. "Dental services" means any diagnostic, preventive, or corrective procedures administered by or under the supervision of a dentist in the practice of the dentist's profession and not excluded from coverage. Dental services include treatment of the teeth and associated structures of the oral cavity, and of disease, injury, or impairment which may affect the oral or general health of the individual. Dental services reimbursed under 42 C.F.R. 440.90 may only be reimbursed if provided through a public or private nonprofit entity that provides dental services.

m.Physical therapy. "Physical therapy" means those services prescribed by a physician or other licensed practitioner of the healing arts within the scope of that individual's practice under state law and provided to a recipient by or under the supervision of a qualified physical therapist.

n.Occupational therapy. "Occupational therapy" means those services prescribed by a physician or other licensed practitioner of the healing arts within the scope of that individual's practice under state law and provided to a recipient and given by or under the supervision of a qualified occupational therapist.

o.Services for individuals with speech, hearing, and language disorders. "Services for individuals with speech, hearing, and language disorders" means those diagnostic, screening, preventive, or corrective services provided by or under the supervision of a speech pathologist or audiologist in the scope of practice of the speech pathologist's or audiologist's profession for which a recipient is referred by a physician or other licensed practitioner of the healing arts within the scope of the practitioner's practice under state law.

p.Prescribed drugs. "Prescribed drugs" means any simple or compounded substance or mixture of substances prescribed as such or in other acceptable dosage forms for the cure, mitigation, or prevention of disease, or for health maintenance, by a physician or other licensed practitioner of the healing arts within the scope of the physician's or practitioner's professional practice as defined and limited by federal and state law.

q.Durable medical equipment and supplies. "Durable medical equipment and supplies" means those medically necessary items that are primarily and customarily used to serve a medical purpose and are suitable for use in the home and used to treat disease, to promote healing, to restore bodily functioning to as near normal as possible, or to prevent further deterioration, debilitation, or injury which are provided under the direction of a physician or other licensed practitioner of the healing arts within the scope of the physician's or practitioner's practice as defined by state law. Durable medical equipment includes prosthetic and orthotic devices, eyeglasses, and hearing aids. For purposes of this subdivision:

(1)"Eyeglasses" means lenses, including frames when necessary, and other aids to vision prescribed by a physician skilled in diseases of the eye, or by an optometrist, whichever the recipient may select, to aid or improve vision;

(2)"Hearing aid" means a specialized orthotic device individually prescribed and fitted to correct or ameliorate a hearing disorder; and (3)"Prosthetic and orthotic devices" means replacement, corrective, or supportive devices prescribed for a recipient by a physician or other licensed practitioner of the healing arts within the scope of the physician's or practitioner's practice as defined by state law for the purpose of artificially replacing a missing portion of the body, or to prevent or correct physical deformity or malfunction, or to support a weak or deformed portion of the body.

r.Other diagnostic, screening, preventive, and rehabilitative services.

(1)"Diagnostic services", other than those for which provision is made elsewhere in these definitions, includes any medical procedures or supplies recommended for a recipient by the recipient's physician or other licensed practitioner of the healing arts within the scope of the physician's or practitioner's practice as defined by state law, as necessary to enable the physician or practitioner to identify the existence, nature, or extent of illness, injury, or other health deviation in the recipient.

(2)"Preventive services" means those recommended by a physician or other licensed practitioner of the healing arts, within the scope of authorized practice as defined by state law, to prevent illness, disease, disability, and other health conditions or their progression, prolong life, and promote physical and mental health and efficiency.

(3)"Rehabilitative services", in addition to those for which provision is made elsewhere in these definitions, includes any medical or remedial items or services prescribed for a recipient by the recipient's physician or other licensed practitioner of the healing arts, within the scope of the physician's or practitioner's practice as defined by state law, for the purpose of maximum reduction of physical or mental disability and restoration of the recipient to the recipient's best possible functional level.

(4)"Screening services" consists of the use of standardized tests performed under medical direction in the mass examination of a designated population to detect the existence of one or more particular diseases or health deviations, to identify suspects for more definitive studies, or identify individuals suspected of having certain diseases.

s.Inpatient psychiatric services for individuals under age twenty-one, as defined in 42 CFR 440.160, provided consistent with the requirements of 42 CFR part 441 and section 75-02-02-10.

t.Services provided to individuals age sixty-five and older in an institution for mental diseases, as defined in 42 U.S.C. 1396d(i).

u.Personal care services. "Personal care services" means those services that assist an individual with activities of daily living and instrumental activities of daily living in order to maintain independence and self-reliance to the greatest degree possible.

v.Any other medical care and any other type of remedial care recognized under state law and specified by the secretary of the United States' department of health and human services, including:

(1)Nonemergency medical transportation, including expenses for transportation and other related travel expenses, necessary to securing medical examinations or treatment when determined by the department to be medically necessary.

(2)Family planning services, including drugs, supplies, and devices, when such services are under the medical direction of a physician or licensed practitioner of the healing arts within the scope of their practices as defined by state law. There must be freedom from coercion or pressure of mind and conscience and freedom of choice of method, so that individuals may choose in accordance with the dictates of their consciences.

(3)Whole blood, including items and services required in collection, storage, and administration, when it has been recommended by a physician or licensed practitioner and when it is not available to the recipient from other sources.

w.A community paramedic service. "Community paramedic service" means a Medicaid-covered service rendered by a community paramedic, advanced emergency medical technician, or emergency medical technician. The care must be provided under the supervision of a physician or advanced practice registered nurse.

x.Interpreter services. "Interpreter services" means services that assist recipients with sign or oral language interpreter services for assistance in providing covered health care services to a recipient of medical assistance who has limited English proficiency or who has hearing loss and uses interpreter services.

2.The following limitations apply to medical and remedial care and services covered or provided under the Medicaid program and children's health insurance program:

a.Coverage may not be extended and payment may not be made for an exercise program or a weight loss program prescribed for eligible recipients.

b.Coverage may not be extended and payment may not be made for alcoholic beverages prescribed for eligible recipients.

c.Coverage may not be extended and payment may not be made for orthodontia prescribed for eligible recipients, except for orthodontia necessary to correct serious functional problems.

d.Coverage may not be extended and payment may not be made for any service provided to increase fertility or to evaluate or treat fertility.

e.Coverage and payment for eye examinations and eyeglasses for eligible recipients are limited to, and payment will only be made for, examinations and eyeglass replacements necessitated because of visual impairment. f.(1)Coverage may not be extended to and payment may not be made for any physician-administered drugs in an outpatient setting if the drug does not meet the requirements for a covered outpatient drug as outlined in section 1927 of the Social Security Act [42 U.S.C. 1396r-8].

(2)Payment for any physician-administered drugs in an outpatient setting will be the lesser of the provider's submitted charge, the Medicare allowed amount, or the pharmacy services allowed amount described in subdivision n.

g.Coverage and payment for home health care services and private duty nursing services are limited to no more, on an average monthly basis, to the equivalent of one hundred seventy-five visits. The limit for private duty nursing is in combination with the limit for home health services.

(1)This limit may be exceeded in cases where it is determined there is a medical necessity for exceeding the limit and the department has approved a prior treatment authorization request.

(2)The prior authorization request must describe the medical necessity of the home health care services or private duty nursing services, and explain why less costly alternative treatment does not afford necessary medical care.

(3)At the time of initial ordering of home health services, a physician or other licensed practitioner shall document that a face-to-face encounter related to the primary reason the recipient requires home health services occurred no more than ninety days before or thirty days after the start of home health services.

h.Coverage may not be extended and payment may not be made for transportation services except as provided in sections 75-02-02-13.1 and 75-02-02-13.2.

i.Coverage may not be extended and payment may not be made for any abortion except when necessary to save the life of the mother or when the pregnancy is the result of an act of rape or incest.

j.After consideration of North Dakota Century Code section 50-24.1-15, coverage for ambulance services must be in response to a medical emergency and may not be extended and payment may not be made for ambulance services that are not medically necessary, as determined by the department.

k.Coverage for an emergency room must be made in response to a medical emergency and may not be extended and payment may not be made for emergency room services that are not medically necessary, as determined by the department under section 75-02-02-12.

l.Coverage may not be extended and payment may not be made for medically necessary chiropractic services exceeding twelve treatments for spinal manipulation services and two radiologic examinations per year, per recipient, unless the provider requests and receives prior authorization from the department.

m.Coverage and payment for personal care services:

(1)May not be made unless prior authorization is granted, and the recipient meets the criteria established in subsection 1 of section 75-02-02-09.5; and (2)May be approved for:

(a)Up to one hundred twenty hours per month, or at a daily rate;

(b)Up to two hundred forty hours per month if the recipient meets the medical necessity criteria for nursing facility level of care described in section 75-02-02-09 or intermediate care facility for individuals with intellectual disabilities level of care; or (c)Up to three hundred hours per month if the recipient is determined to be impaired in at least five of the activities of daily living of bathing, dressing, eating, incontinence, mobility, toileting, and transferring; meets the medical necessity criteria for nursing facility level of care described in section 75-02-02-09 or intermediate care facility for individuals with intellectual disabilities level of care; and none of the three hundred hours approved for personal care services are allocated to the tasks of laundry, shopping, or housekeeping.

n.Coverage and payment for pharmacy services are limited to the coverage and methodology approved by the centers for Medicare and Medicaid services in the current North Dakota Medicaid state plan. 3.a.Except as provided in subdivision b, remedial services are covered services.

b.Remedial services provided by residential facilities such as licensed basic care facilities, licensed foster care homes or qualified residential treatment programs, and specialized facilities are not covered services, but expenses incurred in securing such services must be deducted from countable income in determining financial eligibility. 4.a.The department may refuse payment for any covered service or procedure for which a prior treatment authorization request is required but not secured.

b.The department may consider making payment if the provider demonstrates good cause for the failure to secure the required prior treatment authorization request. Provider requests for good cause consideration must be received within twelve months of the date the services or procedures were furnished and any related claims must be filed within timely claims submission requirements.

c.The department may refuse payment for any covered service or procedure provided to an individual eligible for both Medicaid and third-party coverage if the third-party coverage denies payment because of the failure of the provider or recipient to comply with the requirements of the third-party coverage.

5.A provider who renders a covered service except for personal care, but fails to receive payment due to the requirements of subsection 4, may not bill the recipient. A provider who attempts to collect from the eligible recipient or the eligible recipient's responsible relatives any amounts which would have been paid by the department but for the requirements of subsection 4, has by so doing breached the terms of their Medicaid provider agreement.

6.Community paramedic services are limited to vaccinations, immunizations, and immunization administration.

July 1, 2006; January 1, 2010; July 1, 2012; October 1, 2012; July 1, 2014; April 1, 2016; January 1, 2017; April 1, 2018; April 1, 2020; January 1, 2022; January 1, 2024.

History

• History: Amended effective September 1, 1978; September 2, 1980; February 1, 1981; November 1, 1983; May 1, 1986; November 1, 1986; November 1, 1987; January 1, 1991; July 1, 1993; January 1, 1994; January 1, 1996; July 1, 1996; January 1, 1997; May 1, 2000; amendments partially voided by the Administrative Rules Committee effective June 5, 2000; November 8, 2002; September 1, 2003;
• Law Implemented: NDCC 50-24.1-04; 42 USC 1396n(b)(1); 42 CFR 431.53; 42 CFR 431.110; 42 CFR 435.1009; 42 CFR Part 440; 42 CFR Part 441, subparts A, B, D

N.D. Admin. Code 75-02-02-09 Nursing facility level of care

1."Nursing facility level of care" means, for purposes of Medicaid and children's health insurance program, services provided by a facility that meets the standards for nursing facility licensing established by the department, and in addition, meets all requirements for nursing facilities imposed under federal law and regulations governing the Medicaid program and the children's health insurance program.

2.Except as provided in subsection 3 or 4, an individual who applies for care in a nursing facility, or who resides in a nursing facility, may demonstrate that a nursing facility level of care is medically necessary only if any one of the criteria in this subsection is met.

a.The individual's nursing facility stay is, or is anticipated to be, temporary for receipt of Medicare part A benefits. A nursing facility stay may be based on this criterion for no more than fourteen days after termination of Medicare part A benefits.

b.The individual is in a comatose state.

c.The individual requires the use of a ventilator at least six hours per day, seven days a week.

d.The individual has respiratory problems that require regular treatment, observation, or monitoring that may only be provided by or under the direction of a registered nurse or, in the case of a facility which has secured a waiver of the requirements of 42 CFR 483.30(b), a licensed practical nurse, and is incapable of self-care.

e.The individual requires constant help sixty percent or more of the time with at least two of the activities of daily living of toileting, eating, transferring, and locomotion. For purposes of this subdivision, constant help is required if the individual requires a caregiver's continual presence or help without which the activity would not be completed.

f.The individual requires aspiration for maintenance of a clear airway.

g.The individual has dementia, physician-diagnosed or supported with corroborative evidence, for at least six months, and as a direct result of that dementia, the individual's condition has deteriorated to the point when a structured, professionally staffed environment is needed to monitor, evaluate, and accommodate the individual's changing needs.

3.If no criteria of subsection 2 is met, an individual who applies for care in a nursing facility or who resides in a nursing facility may demonstrate that a nursing facility level of care is medically necessary if any two of the criteria in this subsection are met.

a.The individual requires administration of prescribed:

(1)Injectable medication;

(2)Intravenous medication or solutions on a daily basis; or (3)Routine oral medications, eye drops, or ointments on a daily basis.

b.The individual has one or more unstable medical conditions requiring specific and individual services on a regular and continuing basis that can only be provided by or under the direction of a registered nurse or, in the case of a facility which has secured a waiver of the requirements of 42 CFR 483.30(b), a licensed practical nurse.

c.The individual is determined to have restorative potential and can benefit from restorative nursing or therapy treatments, such as gait training or bowel and bladder training, which are provided at least five days per week.

d.The individual requires administration of feedings by nasogastric tube, gastrostomy, jejunostomy, or parenteral route.

e.The individual requires care of decubitus ulcers, stasis ulcers, or other widespread skin disorders.

f.The individual requires constant help sixty percent or more of the time with any one of the activities of daily living of toileting, eating, transferring, or locomotion. For purposes of this subdivision, constant help is required if the individual requires a caregiver's continual presence or help without which the activity would not be completed.

4.If no criteria of subsection 2 or 3 is met, an individual who applies to or resides in a nursing facility designated as a facility for nongeriatric individuals with physical disabilities may demonstrate that a nursing facility level of care is medically necessary if the individual is determined to have restorative potential.

5.If no criteria of subsection 2, 3, or 4 is met, an individual who applies for care in a nursing facility may demonstrate that a nursing level of care is medically necessary if:

a.The individual has an acquired brain injury, including anoxia, cerebral vascular accident, brain tumor, infection, or traumatic brain injury; and

b.As a result of the brain injury, the individual requires direct supervision at least four hours a day, five days a week. 6.a.Payment, by the department, for care furnished in a nursing facility to individuals who were applicants for or recipients of Medicaid or children's health insurance program benefits prior to admission to the nursing facility may be made only for periods after a nursing facility level of care determination is made. If a nursing facility admits an individual who has applied for or is receiving Medicaid or children's health insurance program benefits before a nursing facility level of care determination is made, the nursing facility may not solicit or receive payment, from any source, for services furnished before the level of care determination is made.

b.Payment, by the department, for care furnished in a nursing facility to individuals who become applicants for or recipients of Medicaid or children's health insurance program benefits after admission to the nursing facility may be made only after a nursing facility level of care determination is made.

c.Payment, by the department, for care furnished in a nursing facility to individuals who are eligible for Medicare benefits related to that care, and who are also eligible for Medicaid or children's health insurance program, may be made only after a nursing facility level of care determination is made.

7.A nursing facility shall ensure that appropriate medical, social, and psychological services are provided to each resident of the facility who is dependent in whole or in part on the Medicaid program or children's health insurance program. The appropriateness of such services must be based on the need of each resident to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being, and must consider, among other factors, age.

April 1, 2020; January 1, 2024.

Repealed effective April 1, 2020. 75-02-02-09.2. Limitations on inpatient rehabilitation.

No payment will be made for inpatient rehabilitation services provided to a recipient age twenty-one or older, in a distinct part unit of a hospital, except for the first thirty days of each admission.

1.No payment will be made for single crowns on posterior teeth for individuals twenty-one years of age and older except for stainless steel crowns. Payment for other crowns may be allowed by the department for the anterior portion of the mouth for adults if the crown is necessary and has been previously approved by the department.

2.No payment will be made for single crowns on posterior teeth for individuals under age twenty-one except for stainless steel crowns. Payment may be made if a dental condition exists that makes stainless steel crowns impracticable and the provider has secured the prior approval of the department.

3.Payment will be made for partial dentures for upper and lower temporary partial stayplate dentures. Payment may be made for other types of partial dentures designed to replace teeth in the anterior portion of the mouth if the provider secures prior approval from the department.

Replacement of dentures is limited to every five years unless a medical condition of a recipient, verified by a dental consultant, renders the present dentures unusable. This limitation does not apply to individuals eligible for the early and periodic screening, diagnosis, and treatment program.

1.Covered medical or remedial services or supplies are medically necessary when determined so by the medical provider unless the department has:

a.Denied a prior treatment authorization request to provide the service;

b.Imposed a limit that has been exceeded;

c.Imposed a condition that has not been met;

d.Upon review under North Dakota Century Code chapter 50-24.1, determined that the service or supplies are not medically necessary.

2.Limitations on payment for occupational therapy, physical therapy, and speech therapy.

a.No payment will be made for an occupational therapy evaluation except one per calendar year or for occupational therapy provided to individuals twenty-one years of age and older except for thirty visits per individual per calendar year unless the provider requests and receives prior authorization from the department. This limit applies in combination with services delivered by independent occupational therapists and in outpatient hospital settings.

b.No payment will be made for a physical therapy evaluation except one per calendar year or for physical therapy provided to individuals twenty-one years of age and older except for thirty visits per individual per calendar year unless the provider requests and receives prior authorization from the department. This limit applies in combination with services delivered by independent physical therapists and in outpatient hospital settings.

c.No payment will be made for a speech therapy evaluation except one per calendar year or for speech therapy provided to individuals twenty-one years of age and older except for thirty visits per individual per calendar year unless the provider requests and receives prior authorization from the department. This limit applies in combination with services delivered by independent speech therapists and in outpatient hospital settings.

3.Limitation on payment for eye services.

a.No payment will be made for eyeglasses for individuals twenty-one years of age and older except for one pair of eyeglasses no more often than once every two years. No payment will be made for the repair or replacement of eyeglasses during the two-year period unless the provider has secured the prior approval of the department and the department has found that the repair or replacement is medically necessary.

b.No payment will be made for refractive examinations for individuals twenty-one years of age and older except for one refractive examination no more often than every two years after an initial examination paid by the department unless the provider has secured the prior approval of the department.

4.Limitation on chiropractic services.

a.No payment will be made for spinal manipulation treatment services except for twenty spinal manipulation treatment services per individual per calendar year unless the provider requests and receives the prior approval of the department.

b.No payment will be made for radiologic examinations performed by a chiropractor except for two radiologic examinations per individual per year unless the provider requests and receives the prior approval of the department.

April 1, 2016; January 1, 2017; April 1, 2018; January 1, 2022. 75-02-02-09.5. Limitations on personal care services.

1.No payment for personal care services may be made unless an assessment of the recipient is made by the department or the department's designee and the recipient is determined to be impaired in at least one of the activities of daily living of bathing, dressing, eating, incontinence, mobility, toileting, and transferring or in at least three of the instrumental activities of daily living of medication assistance, laundry, housekeeping, and meal preparation.

2.No payment may be made for personal care services unless prior authorization has been granted by the department.

3.Payment for personal care services may only be made to an enrolled qualified service provider who meets the standards described in chapter 75-03-23 or to a basic care assistance provider that qualifies for a rate under chapter 75-02-07.1.

4.No payment may be made for personal care services provided in excess of the services, hours, or time frame authorized by the department in the recipient's approved service plan.

5.Personal care services may not include skilled health care services performed by individuals with professional training.

6.An inpatient or resident of a hospital, a nursing facility, an intermediate care facility for individuals with intellectual disabilities, a psychiatric residential treatment facility, or an institution for mental diseases may not receive personal care services.

7.Personal care services may not include home-delivered meals, services performed primarily as housekeeping tasks, transportation, social activities, or services or tasks not directly related to the needs of the recipient such as doing laundry for family members, cleaning of areas not occupied by the recipient, shopping for items not used by the recipient, or for tasks when they are completed for the benefit of both the recipient and the provider.

8.Payment for the tasks of laundry, shopping, meal preparation, money management, and communication may be made to a provider if the activity benefits the recipient. The department may pay a provider for housekeeping activities involving the recipient's personal private space and if the recipient is living with an adult, the recipient's share of common living space.

9.Meal preparation is limited to the maximum units set by the department. Laundry, shopping, and housekeeping tasks when provided as personal care services must be incidental to the provision of other personal care tasks and cannot exceed thirty percent of the total time authorized for the provision of all personal care tasks. Personal care service tasks of laundry, shopping, and housekeeping are limited to the maximum units set by the department, and the cap cannot be exceeded under other home and community-based services funding sources.

10.No payment may be made for personal care services provided to a recipient by the recipient's spouse, parent of a minor child, or legal guardian.

11.No payment may be made for care needs of a recipient which are outside the scope of personal care services.

12.Authorized personal care services may only be approved for:

a.Up to one hundred twenty hours per month;

b.Up to two hundred forty hours per month, if the recipient meets the medical necessity criteria for nursing facility level of care described in section 75-02-02-09 or intermediate care facility for individuals with intellectual disabilities level of care; or

c.Up to three hundred hours per month if the recipient is determined to be impaired in at least five of the activities of daily living of bathing, dressing, eating, incontinence, mobility, toileting, and transferring; meets the medical necessity criteria for nursing facility level of care described in section 75-02-02-09 or intermediate care facility for individuals with intellectual disabilities level of care; and none of the three hundred hours approved for personal care services are allocated to the tasks of laundry, shopping, or housekeeping.

13.Personal care services may be provided to a recipient who has natural supports. For purposes of this subsection, "natural supports" means an informal, unpaid caregiver that provides care to an applicant or recipient.

14.Personal care services may not be provided for tasks that are otherwise age appropriate or generally needed by an individual within the normal stages of development.

15.The authorization for personal care services may be terminated if the services are not used within sixty days, or if services lapse for at least sixty days, after the issuance of the authorization to provide personal care services.

16.The department may deny or terminate personal care services when service to the recipient presents an immediate threat to the health or safety of the recipient, the provider of services, or others, or when services that are available are not adequate to prevent a threat to the health or safety of the recipient, the provider of services, or others.

17.Decisions regarding personal care services for an incapacitated recipient are health care decisions that may be made pursuant to North Dakota Century Code section 23-12-13.

18.The applicant or guardian of the applicant shall provide information sufficient to establish eligibility for benefits, including a social security number, proof of age, identity, residence, blindness, disability, functional limitation, financial eligibility, and such other information as may be required by this chapter for each month for which benefits are sought.

19.Payment for personal care services may not be made unless the recipient has been determined eligible to receive Medicaid benefits.

20.A daily rate for personal care may be authorized, at the discretion of the department, when determined necessary to maintain a recipient in the least restrictive setting.

April 1, 2016; April 1, 2018; January 1, 2022; January 1, 2024.

History

• History: Amended effective September 1, 1979; July 1, 1993; November 1, 2001; October 1, 2012;
• Law Implemented: NDCC 50-24.1-04; 42 CFR Part 442 75-02-02-09.1. Cost sharing.
• History: Effective January 1, 1997. 75-02-02-09.3. Limitations on payment for dental services.
• History: Effective September 1, 2003; amended effective October 1, 2012; April 1, 2016; April 1, 2018. 75-02-02-09.4. General limitations on amount, duration, and scope.
• History: Effective September 1, 2003; amended effective July 1, 2006; July 1, 2009; October 1, 2012;
• History: Effective July 1, 2006; amended effective January 1, 2010; July 1, 2012; October 1, 2012;
• General Authority: NDCC 50-24.1-18
• Law Implemented: NDCC 50-24.1-18; 42 CFR Part 440.167

N.D. Admin. Code 75-02-02-10 Limitations on inpatient psychiatric services for individuals under age twenty-one

1.Inpatient psychiatric services for individuals under age twenty-one must be provided:

a.Under the direction of a physician;

b.By a psychiatric hospital or an inpatient psychiatric program in a hospital, accredited by the joint commission on accreditation of health care organizations, or by a psychiatric facility that is not a hospital and which is accredited by the joint commission on accreditation of health care organizations, the commission on accreditation of rehabilitation facilities, the council on accreditation of services for families and children, or by any other accrediting organization with comparable standards; and

c.Before the recipient reaches age twenty-one, or, if the individual was under age twenty-one at the time of admission, before the earlier of:

(1)The date the recipient no longer requires inpatient psychiatric services; or (2)The date the recipient reaches age twenty-two.

2.A psychiatric facility or program providing inpatient psychiatric services to individuals under age twenty-one shall:

a.Except as provided in subdivision c, obtain a certification of need from an independent review team qualified under subsection 3 prior to admitting a recipient;

b.Obtain a certification of need from an independent review team qualified under subsection 3 for an individual who applies for Medicaid while in the facility or program covering any period for which claims are made; or

c.Obtain a certification of need from an independent review team qualified under subsection 3 for an emergency admission of an individual, within fourteen days after the admission, covering any period prior to the certification for which claims are made. 3.a.An independent review team must:

(1)Be composed of individuals who have no business or personal relationship with the inpatient psychiatric facility or program requesting a certification of need;

(2)Include a physician;

(3)Have competence in diagnosis and treatment of mental illness; and (4)Have knowledge of the recipient's situation for which the certification of need is requested.

b.Before issuing a certification of need, an independent review team must use professional judgment and standards approved by the department and consistent with the requirements of 42 CFR part 441, subpart D, to demonstrate:

(1)Ambulatory care resources available in the community do not meet the treatment needs of the recipient;

(2)Proper treatment of the recipient's psychiatric condition requires services on an inpatient basis under the direction of a physician; and (3)The requested services can reasonably be expected to improve the recipient's condition or prevent further regression so services may no longer be needed.

4.Payment may not be made for services provided to a recipient under age twenty-one in a psychiatric residential treatment facility without a certification of need.

5.Prior to the dates of services of January 1, 2019, payment may not be made for any other medical services not provided by a psychiatric residential treatment facility if the facility is an institution for mental diseases.

Repealed effective January 1, 2022. 75-02-02-10.2. Limitations on services for treatment of substance use disorder.

a."Clinically managed high-intensity residential care" means services for treatment of substance use disorder as prescribed in chapters 75-09.1-03 and 75-09.1-03.1.

b."Clinically managed low-intensity residential care" means services for treatment of substance use disorder as prescribed in chapters 75-09.1-02 and 75-09.1-02.1.

c."Clinically managed residential withdrawal" means services for treatment of substance use disorder as prescribed in chapter 75-09.1-08.

d."Intensive outpatient treatment" means services for treatment of substance use disorder as prescribed in chapters 75-09.1-06 and 75-09.1-06.1.

e."Medically monitored intensive inpatient treatment" means services for treatment of substance use disorder as prescribed in chapters 75-09.1-04 and 75-09.1-04.1.

f."Outpatient services" means services for treatment of substance use disorder as prescribed in chapters 75-09.1-07 and 75-09.1-07.1.

g."Partial hospitalization" means services for treatment of substance use disorder as prescribed in chapters 75-09.1-05 and 75-09.1-05.1.

h."Services for treatment of substance use disorder" means services provided to an individual with an impairment resulting from a substance use disorder which are provided by a multidisciplinary team of health care professionals and are designed to stabilize the health of the individual. Services for treatment of substance use disorder may be hospital-based or nonhospital-based.

2.Limitations. Payment may not be made for clinically managed low-intensity residential care services, unless the recipient is concurrently receiving intensive outpatient treatment or partial hospitalization services.

3.Licensed addiction counselors, operating within their scope of practice, performing outpatient services, and practicing within a recognized Indian reservation in North Dakota are not required to also have licensure prescribed in article 75-09.1, for Medicaid outpatient billed services provided within a recognized Indian reservation in North Dakota.

4.Licensed addiction counselor includes licensed clinical addiction counselors, licensed master addiction counselors, and practitioners possessing a similar license in a border state and operating within their scope of practice in that state.

5.Licensed addiction programs operating in a border state must provide documentation to the department of their state's approval for the operation of the addiction program.

a."Level A" means an intense level of partial hospitalization psychiatric services which provide treatment for an individual by at least three licensed health care professionals under the supervision of a licensed physician for at least four hours and no more than eleven hours per day for at least three days per week.

b."Level B" means an intermediate level of partial hospitalization psychiatric services which provide treatment for an individual by at least three licensed health care professionals under the supervision of a licensed physician for three hours per day for at least two days per week.

c."Partial hospitalization psychiatric services" means level A or level B services provided to an individual with an impairment resulting from a psychiatric, emotional, or behavior disorder which are provided by a multidisciplinary team of health care professionals and are designed to stabilize the health of the individual with the intent to avert inpatient hospitalization or to reduce the length of a hospital stay.

2.Payment may only be made for partial hospitalization psychiatric services that are hospital based.

History

• History: Effective October 1, 1979; amended effective February 1, 1981; January 1, 1997; November 1, 2001; November 8, 2002; July 1, 2006; October 1, 2012; April 1, 2018; April 1, 2020.
• Law Implemented: NDCC 50-24.1-04; 42 CFR Part 441, subpart D 75-02-02-10.1. Limitations on inpatient psychiatric services.
• History: Effective November 8, 2002; amended effective November 19, 2003; October 1, 2012; July 1, 2014; April 1, 2018; April 1, 2020; January 1, 2022.
• Law Implemented: NDCC 50-24.1-04; 42 CFR Part 431.54 75-02-02-10.3. Partial hospitalization psychiatric services.
• History: Effective April 1, 2018; amended effective April 1, 2020; January 1, 2022.
• Law Implemented: NDCC 50-24.1-04; 42 CFR Part 431.54

N.D. Admin. Code 75-02-02-11 Coordinated services

a."Coordinated services" means the process used to limit a recipient's medical care and treatment to a single physician or other provider to prevent the continued misutilization of services.

b."Coordinated services provider" means a physician, nurse practitioner, physician assistant, or Indian health service or tribal health facility or clinic selected by the coordinated services recipient to provide care and treatment to the recipient. The selected coordinated services provider is subject to approval by the department.

c."Misutilization" means the incorrect, improper, or excessive utilization of medical services which may increase the possibility of adverse effects to a recipient's health or may result in a decrease in the overall quality of care.

2.Coordinated services may be required by the department of a past, current, or future recipient who has misutilized services, including:

a.Securing excessive services from more than one provider when there is little or no evidence of a medical need for those services;

b.Drug acquisition in excess of medical need resulting from securing prescriptions or drugs from more than one provider;

c.Excessive utilization of emergency services when no medical emergency is present; or

d.Causing services to be misutilized due to fraud, deception, or direct action, without regard to payer source.

3.The determination to require coordinated services of a recipient is made by the department upon recommendation of medical professionals who have reviewed and identified the services the recipient appears to be misutilizing.

4.The following factors must be considered in determining if coordinated services is to be required:

a.The seriousness of the misutilization;

b.The historical utilization of the recipient; and

c.The availability of a coordinated services physician or provider.

5.If a coordinated services recipient does not select a coordinated services provider within thirty days after qualifying for the program, the department will limit the recipient to only medically necessary medical and pharmacy services. If a coordinated services recipient selects a coordinated services provider after the initial thirty days, the selection will be reviewed by the department to determine if the selected provider is appropriate and to ensure the provider accepts the assignment. A coordinated services recipient may have a coordinated services provider in more than one specialty, such as medical, dental, or pharmacy.

6.Upon a determination to require coordinated services:

a.The department shall provide the recipient with written notice of:

(1)The decision to require coordinated services;

(2)The recipient's right to choose a coordinated services provider, subject to approval by the department and acceptance by the provider;

(3)The recipient's responsibility to pay for medical care or services rendered by any provider other than the coordinated services provider; and (4)The recipient's right to appeal the requirement of enrollment into the coordinated services program.

b.The appropriate human service zone shall:

(1)Obtain the recipient's selection of a coordinated services provider; and (2)Document that selection in the case record.

7.Coordinated services may be required of an individual recipient and may not be imposed on an entire Medicaid or children's health insurance program case. If more than one recipient within a case is misutilizing medical care, each individual recipient must be treated separately.

8.Coordinated services may be required without regard to breaks in eligibility until the department determines coordinated services is discontinued.

9.No Medicaid or children's health insurance program payment may be made for misutilized medical care or services furnished to the coordinated services recipient by any provider other than the recipient's coordinated services physician or provider, except for:

a.Medical care rendered in a medical emergency; or

b.Medical care rendered by a provider upon referral by the coordinated services physician or provider and approved by the department.

10.A recipient may appeal the decision to require coordinated services in the manner provided by

chapter 75-01-03.

History

• History: Effective May 1, 1981; amended effective May 1, 2000; July 1, 2006; October 1, 2012; April 1, 2016; April 1, 2018; April 1, 2020; January 1, 2024.
• General Authority: NDCC 50-24.1-02
• Law Implemented: NDCC 50-24.1-01; 42 CFR Part 455

N.D. Admin. Code 75-02-02-12 Limitations on emergency room services

1.For purposes of this section, "screening" means the initial evaluation of an individual, intended to determine suitability for a particular medical treatment modality.

2.The provider of emergency services shall assure that a recipient is referred to the appropriate health delivery setting, including the recipient's enrolled in-state provider, when emergency room services are not judged to be appropriate.

3.Payment for emergency room services.

a.Claims for payment, and documentation in support of those claims, must be submitted on forms prescribed by the department. The claim must contain sufficient documentation to indicate that a medical emergency required emergency room diagnostic services and treatment.

b.Except as provided in subsection 4, providers must be paid for any medically necessary services.

c.Except as provided in subsection 4, providers must be paid for screening or examination services rendered.

d.Providers must be paid for services rendered to recipients who reside outside of the provider's regular service area and who do not normally utilize the provider's services.

4.If the emergency room service claim does not demonstrate the existence of a medical emergency, payment must be denied (except for screening services) unless the services are shown to be medically necessary by a redetermination. The provider, upon receipt of notice of denial, may, in writing, make a redetermination request to the department. A redetermination must include a statement refuting the stated basis for the payment denial and affirmatively demonstrating a medical emergency.

April 1, 2018; January 1, 2024.

History

• History: Effective February 1, 1982; amended effective May 1, 2000; October 1, 2012; April 1, 2016;
• General Authority: NDCC 50-24.1-02
• Law Implemented: NDCC 50-24.1-01; 42 CFR Part 455

N.D. Admin. Code 75-02-02-13 Limitations on out-of-state care

a."Out-of-state care" means care or services furnished by any individual, entity, or facility, pursuant to a provider agreement with the department, at a site located more than fifty statute miles [80.45 kilometers] from the nearest North Dakota border.

b."Out-of-state provider" means a provider of care or services that is located more than fifty statute miles [80.45 kilometers] outside of North Dakota. An out-of-state provider may be an individual or a facility but may not be located outside of the United States.

c."Specialist" means a physician board certified in the required medical specialty who regularly practices within North Dakota or at a site within fifty statute miles [80.45 kilometers] from the nearest North Dakota border.

2.Except as provided in subsection 3, no payment for out-of-state care, including related travel expenses, will be made unless:

a.The recipient was first seen by that recipient's enrolled in-state provider;

b.The enrolled in-state provider determines that it is advisable to refer the recipient for care or services which the enrolled in-state provider is unable to render and a referral is made to an in-state, board-certified physician specialist, if available;

c.Recipient is evaluated by a board-certified physician specialist;

d.The physician specialist concludes that the recipient should be referred to an appropriate out-of-state provider because necessary care or services are unavailable in the state;

e.The enrolled in-state provider or in-state, board-certified physician specialist submits, to the department, a written request that includes medical and other pertinent information, including the report of the specialist that documents the specialist's conclusion that the out-of-state referral is medically necessary;

f.The department determines that the medically necessary care and services are unavailable in the state and approves the referral on that basis; and

g.The claim for payment is otherwise allowable and verifies that the department approved the referral for out-of-state care. 3.a.A referral for emergency care, including related travel expenses, to an out-of-state provider can be made by the enrolled in-state provider. A determination that the emergency requires out-of-state care may be made at the enrolled in-state provider's discretion, but is subject to review by the department. Claims for payment for such emergency services must identify the referring enrolled in-state provider and document the emergency.

b.Claims for payment for care for a medical emergency or surgical emergency, as those terms are defined in section 75-02-02-12, which occurs when the affected recipient is traveling outside of North Dakota, will be paid unless payment is denied pursuant to limitations contained in section 75-02-02-12.

c.Claims for payment for any covered service rendered to a recipient who is a resident of North Dakota for Medicaid and children's health insurance program purposes, but whose current place of abode is outside of North Dakota, will not be governed by this section.

d.Claims for payment for any covered service rendered to a recipient during a verified retroactive eligibility period will not be governed by this section.

e.If a recipient is referred for out-of-state care without first securing approval under subsection 2, and the care is not otherwise allowable under this subsection, the department may approve payment upon receipt of a written request, from the enrolled in-state provider or specialist, that:

(1)Demonstrates good cause for not first securing approval under subsection 2;

(2)Clearly establishes that the care and services were unavailable in the state; and (3)Documents that the care and services were medically necessary.

4.An out-of-state provider who does not maintain a physical, in-state location or a location within fifty statute miles [80.45 kilometers] of North Dakota will not be enrolled as a Medicaid provider unless the department determines the provider's enrollment is necessary to ensure access to covered services.

1.For purposes of this section, "travel expenses" means fares, mileage, meals, lodging, and driver and attendant care.

2.General requirements.

a.A transportation service provider shall be enrolled as a provider in the Medicaid program and children's health insurance program and may be an individual, a taxi, a bus, a food service provider, a lodging provider, an airline service provider, a travel agency, or another commercial form of transportation.

b.The department or human service zone may determine and authorize the most efficient, economical, and appropriate means of travel to meet the medical needs of the recipient.

c.The cost of travel provided by a parent, spouse, or any other member of the recipient's Medicaid unit, as defined in section 75-02-02.1-08, may be allowed as an expense of necessary medical or remedial care for recipient liability purposes, unless the parent, spouse, or any other member of the recipient's Medicaid unit is enrolled as a transportation provider. A parent, spouse, friend, household member, or family member of the recipient may be paid as an enrolled provider for transportation for that recipient. An individual who provides foster care, kinship, or guardianship may enroll as a transportation provider and is eligible for reimbursement to transport a Medicaid-eligible child to and from Medicaid-eligible medical appointments in situations in which the Medicaid-eligible child's medical needs exceed ordinary, typical, and routine levels. A guardian of a vulnerable adult may enroll as a transportation provider and is eligible for reimbursement to transport a Medicaid-eligible adult, for whom the guardian has been court-ordered to provide guardianship services, to and from Medicaid-covered medical appointments.

d.Emergency transport by ambulance is a covered service when provided in response to a medical emergency.

e.Nonemergency transportation by ambulance is a covered service only when medically necessary and ordered by the attending licensed provider.

f.A recipient may choose to obtain medical services outside the recipient's community. If similar medical services are available within the community and the recipient chooses to seek medical services elsewhere, travel expenses are not covered services and are the responsibility of the recipient.

g.If a provider refers a recipient to a facility or provider that is not located at the closest medical center, travel expenses may not be covered services and are the responsibility of the recipient, unless special circumstances apply and prior authorization is secured.

3.Out-of-state travel expenses. Travel expenses for nonemergency out-of-state medical services, including follow-up visits, may be authorized if the out-of-state medical services are first approved by the department under section 75-02-02-13 or if prior approval is not required under that section.

4.Limitations.

a.Private or noncommercial vehicle mileage compensation is limited to the amount on the department fee schedule. This limit applies even if more than one recipient is transported at the same time. Mileage is determined by map miles from the residence or community of the recipient to the medical facility. When necessary to ensure volunteer drivers continue to provide transportation services to a recipient, the department may authorize payment for additional mileage. Transportation services may be billed to the Medicaid program or children's health insurance program only upon completion of the service.

b.Meals compensation is allowed only when medical services or travel arrangements require a recipient to stay overnight. Compensation is limited to the amount on the department fee schedule. The entity providing meals must be an enrolled Medicaid provider and must submit the proper requests for payment.

c.Lodging expense is allowed only when medical services or travel arrangements require a recipient to stay overnight. Lodging compensation is limited to the amount on the department fee schedule. Lodging providers must be enrolled in Medicaid and shall submit the proper requests for payment.

d.Travel expenses may not be authorized for both a driver and an attendant unless the referring licensed practitioner determines that one individual cannot function both as driver and attendant. Travel expenses may not be allowed for a noncommercial driver or an attendant while the recipient is a patient in a medical facility unless it is more economical for the driver or attendant to remain in the service area, as determined by the department.

e.Travel expenses may be authorized for one parent to travel with a child who is under eighteen years of age. No additional travel expenses may be authorized for another driver, attendant, or parent unless the referring licensed practitioner determines that individual's presence is necessary for the physical, psychological, or medical needs of the child.

f.Compensation for attendant services, provided by an attendant who is not a family member, may be allowed at a rate determined by the department if the department determines attendant services are medically necessary. Attendant services must be approved by the department or human service zone.

July 1, 2014; April 1, 2016; April 1, 2018; April 1, 2020; January 1, 2024. 75-02-02-13.2. Travel expenses for medical purposes - Individuals in an institution - Limitations.

a."Long-term care facility" means a nursing facility, intermediate care facility for individuals with intellectual disabilities, or swing-bed facility; and

b."Medical center city" means Bismarck, Devils Lake, Dickinson, Fargo, Grand Forks, Jamestown, Minot, and Williston, and includes any city that shares a common boundary with any of those cities.

2.A long-term care facility may not charge a resident for the cost of travel provided by the facility.

Except as provided in subsection 4, a long-term care facility shall provide transportation to and from any provider of necessary medical services located within, or at no greater distance than the distance to, the nearest medical center city. Distance must be calculated by road miles.

3.If the resident has to travel farther than the nearest medical center city, the costs of travel may be reimbursed by Medicaid according to the appropriate fee schedule. Distance must be calculated by map miles.

4.A long-term care facility is not required to pay for transportation by ambulance for emergency or nonemergency situations for residents.

5.A service provider that is paid a rate, determined by the department on a cost basis that includes transportation service expenses, however denominated, may not be compensated as a transportation service provider for transportation services provided to an individual residing in the provider's facility. The following service providers may not be so compensated:

a.Basic care facilities;

b.Residential habilitation services for individuals with intellectual or developmental disabilities;

c.Intermediate care facilities for individuals with intellectual disabilities;

d.Independent habilitation services for individuals with intellectual or developmental disabilities;

e.Nursing facilities;

f.Psychiatric residential treatment facilities;

g.Qualified residential treatment programs; and

h.Swing-bed facilities.

6.If, under the circumstances, a long-term care facility is not required to transport a resident, and the facility does not actually transport the resident, the availability of transportation services and payment of travel expenses is governed by section 75-02-02-13.1.

History

• History: Effective November 1, 1983; amended effective October 1, 1995; October 1, 2012; April 1, 2018; April 1, 2020; January 1, 2024.
• Law Implemented: NDCC 50-24.1-02 75-02-02-13.1. Travel expenses for medical purposes - Limitations.
• History: Effective July 1, 1996; amended effective May 1, 2000; September 1, 2003; October 1, 2012;
• History: Effective July 1, 1996; amended effective July 1, 2012; October 1, 2012; April 1, 2016; April 1, 2018; April 1, 2020; January 1, 2024.

N.D. Admin. Code 75-02-02-14 County administration

Repealed effective April 1, 2020.

N.D. Admin. Code 75-02-02-15 Groups covered

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-16 Basic eligibility factors

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-17 Blindness and disability

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-18 Financial eligibility

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-19 Income and resource considerations

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-20 Income levels and application

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-21 Property resource limits

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-22 Exempt property resources

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-23 Excluded property resources

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-24 Contractual rights to receive money payments

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-25 Disqualifying transfers

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-26 Eligibility under 1972 state plan

Repealed effective December 1, 1991, unless chapter 75-02-02.1 is appealed pursuant to

N.D. Admin. Code 75-02-02-27 Scope of drug benefits - Prior authorization

1.Prior authorization means a process requiring the prescriber or the dispenser to verify with the department or the department's contractor that proposed medical use of a particular drug for a Medicaid program or children's health insurance program recipient meets predetermined criteria for coverage by the Medicaid program or children's health insurance program.

2.A prescriber or a dispenser shall secure prior authorization from the department or its designee as a condition of payment for those drugs subject to prior authorization.

3.A prescriber or a dispenser shall provide to the department or its designee in the format required by the department the data necessary for the department or its designee to make a decision regarding prior authorization. The department shall deny a claim for coverage of a drug requiring prior authorization if the prescription was dispensed prior to authorization or if the required information regarding the prior authorization is not provided by the prescriber or the dispenser.

4.A prescriber or dispenser shall submit a request for prior authorization to the department or its designee by telephone, facsimile, electronic mail, or in any other format designated by the department. The department or its designee shall respond to a prior authorization request within twenty-four hours of receipt of a complete request that contains all of the data necessary for the department to make a determination.

5.Emergency supply.

a.If a recipient needs a drug before a prescriber or dispenser can secure prior authorization from the department, the department shall provide coverage of the lesser of a five-day supply of a drug or the amount prescribed if it is not feasible to dispense a five-day supply because the drug is packaged in such a way that it is not intended to be further divided.

b.The department may not provide further coverage of the drug beyond the five-day supply unless the prescriber or dispenser first secures prior authorization from the department.

6.The department shall authorize the provision of a drug subject to prior authorization if:

a.Other drugs not requiring prior authorization have not been effective or with reasonable certainty are not expected to be effective in treating the recipient's condition;

b.Other drugs not requiring prior authorization cause or are reasonably expected to cause adverse or harmful reactions to the health of the recipient; or

c.The drug is prescribed for a medically accepted use supported by a compendium or by approved product labeling unless there is a therapeutically equivalent drug that is available without prior authorization.

7.If a recipient is receiving coverage of a drug that is later subject to prior authorization requirements, the department shall continue to provide coverage of that drug until the prescriber reevaluates the recipient. The department shall provide a form by which a prescriber may inform the department of a drug that a recipient shall continue to receive beyond the prescription reevaluation period regardless of whether such drug requires prior authorization. The form must contain the following information:

a.The requested drug and its indication;

b.An explanation as to why the drug is medically necessary; and

c.The signature of the prescriber confirming that the prescriber has considered generic or other alternatives and has determined that continuing current therapy is in the best interest for successful medical management of the recipient.

8.If a recipient under the age of twenty-two has a medication regimen that contains five or more concurrent prescriptions for antipsychotics, antidepressants, anticonvulsants, benzodiazepines, mood stabilizers, sedative, hypnotics, or medications used for the treatment of attention deficit hyperactivity disorder, the department shall require that the prescribers certify annually the medical necessity of each medication in the regimen. The department may apply the certification process to other individuals at the discretion of the department.

9.The department may require prior authorization for any medication that is a line extension drug in any of the excluded medication classes under subsection 3 of North Dakota Century Code section 50-24.6-04 if the line extension drug's net cost is higher than the original medication due to federal drug rebate offset differences.

10.The department may require prior authorization for any medication that is a drug in any of the excluded medication classes under subsection 3 of North Dakota Century Code section 50-24.6-04 if a manufacturer of a drug in that class excludes the department from supplemental rebate offers or value-based purchasing agreement offers due to the existence of the prior authorization exclusion in subdivision a of subsection 3 of North Dakota Century Code section 50-24.6-04.

April 1, 2018; April 1, 2020; January 1, 2022; January 1, 2024; January 1, 2026.

History

• History: Effective September 1, 2003; amended effective July 26, 2004; July 1, 2006; October 1, 2012;
• General Authority: NDCC 50-24.6-04, 50-24.6-10
• Law Implemented: NDCC 50-24.6; 42 USC 1396r-8

N.D. Admin. Code 75-02-02-28 Drug use review board and appeals

1.The department shall implement a prospective and retrospective drug use review program for outpatient prescription drugs and determine which drugs shall be subject to prior authorization before payment will be approved. The department shall consider the advice and recommendations of the drug use review board before requiring prior authorization of any drug.

2.The drug use review board shall:

a.Cooperate with the department to implement a drug use review program;

b.Receive and consider information regarding the drug use review process which is provided by the department and interested parties, including prescribers who treat significant numbers of recipients;

c.Review and make recommendations to the department regarding drugs to be included on prior authorization status;

d.Review no less than once each year the status of the drugs that have been deemed to require prior authorization and make recommendations to the department regarding any suggested changes;

e.Review and approve the prior authorization program process used by the department, including the process to accommodate the provision of a drug benefit in an emergency situation;

f.Advise and make recommendations to the department regarding any rule proposed for adoption by the department to implement the provisions of state and federal law related to drug use review; and

g.Propose remedial strategies to improve the quality of care and to promote effective use of Medicaid program and children's health insurance program funds or recipient expenditures.

3.The drug use review board may establish a panel of physicians and pharmacists to provide guidance and recommendations to the board in considering specific drugs or therapeutic classes of drugs to be included in the prior authorization program.

4.The drug use review board shall make a recommendation to the department regarding prior authorization of a drug based on:

a.Consideration of medically and clinically significant adverse side effects, drug interactions and contraindications, assessment of the likelihood of significant abuse of the drug, and any other medically and clinically acceptable analysis or criteria requested by the drug use review board; and

b.An assessment of the cost-effectiveness of the drug compared to other drugs used for the same therapeutic indication and whether the drug offers a clinically meaningful advantage in terms of safety, effectiveness, or clinical outcome over other available drugs used for the same therapeutic indication.

5.Drug use review board meeting procedures.

a.Any interested party may address the drug use review board at its regular meetings if the presentation is directly related to an agenda item.

b.The drug use review board may establish time limits for presentations.

c.The department shall post on its web site the proposed date, time, location, and agenda of any meeting of the drug use review board at least thirty days before the meeting.

6.Within thirty days of the date the drug use review board's recommendation is received by the department, the department shall review the recommendations and make the final determination as to whether a drug requires prior authorization and, if so, when the requirement for prior authorization will begin. If the department's final determination is different from the recommendation of the drug use review board, the department shall present, in writing, to the drug use review board at its next meeting the basis for the final determination.

7.The department shall post on its web site the list of drugs subject to prior authorization and the date on which each drug became subject to prior authorization.

8.A recipient may appeal the department's denial, suspension, reduction, or termination of a covered drug based upon application of this section as authorized under North Dakota Century Code chapter 28-32.

History

• History: Effective September 1, 2003; amended effective October 1, 2012; April 1, 2020.
• General Authority: NDCC 50-24.6-10
• Law Implemented: NDCC 50-24.6; 42 USC 1396r-8

N.D. Admin. Code 75-02-02-29 Primary care provider

Repealed effective January 1, 2024.

Chapter 75-02-02.1 Eligibility for Medicaid

N.D. Admin. Code 75-02-02.1 Eligibility for Medicaid

CHAPTER 75-02-02.1

ELIGIBILITY FOR MEDICAID

Section 75-02-02.1-01Definitions 75-02-02.1-02Application and Redetermination 75-02-02.1-02.1Duty to Establish Eligibility 75-02-02.1-03Decision and Notice 75-02-02.1-04Screening of Recipients of Certain Services 75-02-02.1-04.1Certification of Need for Children in an Institution for Mental Disease 75-02-02.1-05Coverage Groups 75-02-02.1-06Applicant's Choice of Aid Category 75-02-02.1-07Applicant's Duty to Establish Eligibility [Repealed] 75-02-02.1-08Medicaid Unit 75-02-02.1-08.1Caretaker Relatives 75-02-02.1-09Assignment of Rights to Medical Payments and Benefits 75-02-02.1-10Eligibility - Current and Retroactive 75-02-02.1-11Need 75-02-02.1-12Age and Identity 75-02-02.1-12.1Cost-Effective Health Insurance Coverage 75-02-02.1-13Social Security Numbers 75-02-02.1-14Blindness and Disability 75-02-02.1-14.1Eligibility for Medically Frail Medicaid Expansion Enrollees 75-02-02.1-15Incapacity of a Parent 75-02-02.1-16State of Residence 75-02-02.1-17Application for Other Benefits [Repealed] 75-02-02.1-18Citizenship and Alienage 75-02-02.1-19Inmates of Public Institutions 75-02-02.1-19.1Family Coverage Group 75-02-02.1-19.2Institutions for Mental Diseases 75-02-02.1-20Transitional and Extended Medicaid Benefits 75-02-02.1-21Continuous Eligibility for Pregnant Women and Newborns 75-02-02.1-22Medicare Savings Programs 75-02-02.1-23Eligibility of Qualified Disabled and Working Individuals 75-02-02.1-24Spousal Impoverishment Prevention 75-02-02.1-24.1Breast and Cervical Cancer Early Detection Program 75-02-02.1-24.2Eligibility for Workers With Disabilities 75-02-02.1-24.3Eligibility for Children With Disabilities 75-02-02.1-24.4Hospital Presumptive Eligibility 75-02-02.1-25Asset Considerations 75-02-02.1-26Asset Limits 75-02-02.1-27Exempt Assets [Repealed] 75-02-02.1-28Excluded Assets 75-02-02.1-28.1Excluded Assets for Medicare Savings Programs, Qualified Disabled and Working Individuals, and Spousal Impoverishment Prevention 75-02-02.1-29Forms of Asset Ownership 75-02-02.1-30Contractual Rights to Receive Money Payments 75-02-02.1-30.1Annuities [Repealed] 75-02-02.1-31Trusts 75-02-02.1-31.1Trusts Established by Applicants, Recipients, or Their Spouses After August 10, 1993 75-02-02.1-32Valuation of Assets 75-02-02.1-33Disqualifying Transfers Made on or Before August 10, 1993 [Repealed] 75-02-02.1-33.1Disqualifying Transfers Made Before February 8, 2006 [Repealed] 75-02-02.1-33.2Disqualifying Transfers Made on or After February 8, 2006 75-02-02.1-34Income Considerations 75-02-02.1-34.1MAGI-Based Methodology 75-02-02.1-34.2Income Conversion for Individuals Subject to a MAGI-Based Methodology 75-02-02.1-34.3Reasonable Compatibility of Income for Individuals Subject to a MAGI-Based Methodology 75-02-02.1-35Budgeting [Repealed] 75-02-02.1-36Disregarded Income [Repealed] 75-02-02.1-37Unearned Income 75-02-02.1-37.1Unearned Income for Individuals Subject to a MAGI-Based Methodology 75-02-02.1-38Earned Income 75-02-02.1-38.1Post-Eligibility Treatment of Income 75-02-02.1-38.2Disregarded Income 75-02-02.1-38.3Disregarded Income for Certain Individuals Subject to a MAGI-Based Methodology 75-02-02.1-38.4Earned Income for Individuals Subject to a MAGI-Based Methodology 75-02-02.1-39Income Deductions 75-02-02.1-39.1Income Deductions for Individuals Subject to a MAGI-Based Methodology 75-02-02.1-40Income Levels 75-02-02.1-41Deeming of Income 75-02-02.1-41.1Recipient Liability 75-02-02.1-41.2Budgeting 75-02-02.1-42Eligibility Under 1972 State Plan 75-02-02.1-43Payment for Services by Attorney-in-Fact 75-02-02.1-44Children's Health Insurance Program 75-02-02.1-01. Definitions.

For the purposes of this chapter:

1."Agency" means the North Dakota department of health and human services.

2."Applicant" means an individual seeking health care coverage benefits.

3."Asset" means any kind of property or property interest, whether real, personal, or mixed, whether liquid or illiquid, and whether or not presently vested with possessory rights.

4."Blind" has the same meaning as the term has when used by the social security administration in determining blindness for title II or XVI of the Act [42 U.S.C. 401-434, 1381-1385].

5."Child" means an individual, under twenty-one, or, if blind or disabled, under age eighteen, who is not living independently.

6."Children's health insurance program" means the North Dakota children's health insurance program implemented pursuant to North Dakota Century Code chapter 50-29 and 42 U.S.C. 1397aa et seq. to furnish health assistance to low-income children funded through title XXI of the Act [42 U.S.C. 1397aa et seq.].

7."Contiguous" means real property which is not separated by other real property owned by others. Roads and other public rights of way which run through the property, even if owned by others, do not affect the property's contiguity.

8."County agency" means the human service zone.

9."Creditable health insurance coverage" means a health benefit plan that includes coverage for hospital, medical, or major medical. The following are not considered creditable health insurance coverage:

a.Coverage only for accident or disability income insurance;

b.Coverage issued as a supplement to automobile liability insurance;

c.Liability insurance, including general liability insurance and automobile liability insurance;

d.Workforce safety and insurance or similar insurance;

e.Automobile medical payment insurance;

f.Credit-only insurance;

g.Coverage for onsite medical clinics;

h.Other similar insurance coverage specified in federal regulations under which benefits for medical care are secondary or incidental to other insurance;

i.Coverage for dental or vision;

j.Coverage for long-term care, nursing home care, home health care, or community-based care;

k.Coverage only for specified disease or illness;

l.Hospital indemnity or other fixed indemnity insurance; and

m.Coverage provided through Indian health service.

10."Department" means the North Dakota department of health and human services.

11."Deprived child" means a child who is deprived of parental support or care because one or both parents are deceased, incapacitated, disabled, aged, or maintains and resides in a separate verified residence for reasons other than employment, education, training, medical care, or uniformed service.

12."Disabled" has the same meaning as the term has when used by the social security administration in determining disability for title II or XVI of the Act [42 U.S.C. 401-434, 1381- 1385].

13."Disabled adult child" means a disabled or blind individual over the age of twenty-one who became blind or disabled before age twenty-two.

14."Full calendar month" means the period that begins at midnight on the last day of the previous month and ends at midnight on the last day of the month under consideration.

15."Good-faith effort to sell" means an honest effort to sell in a manner which is reasonably calculated to induce a willing buyer to believe the property offered for sale is actually for sale at a fair price. A good-faith effort to sell includes, at a minimum, making the offer at a price based on an appraisal, a market analysis by a realtor, or another method that produces an accurate reflection of fair market value or, with respect to a determination of qualified disabled and working individual benefits under section 75-02-02.1-23, sixty-six and two-thirds percent of fair market value, in the following manner:

a.To any co-owner, joint owner, possessor, or occupier of the property, and, if no buyer is thereby secured;

b.To the regular market for such property, if any regular market exists, or, if no regular market exists;

c.By public advertisement for sale in a newspaper of general circulation, the circulation area of which includes the location of any property resource offered for sale, which advertisement was published successively for two weeks if the newspaper is a weekly publication and for one week if the newspaper is a daily publication, and which includes a plain and accurate description of the property, the selling price, and the name, address, and telephone number of a person who will answer inquiries and receive offers.

16."Home" includes, when used in the phrase "the home occupied by the Medicaid unit", the land on which the home is located, provided that the acreage [hectarage] does not exceed one hundred sixty contiguous acres [64.75 hectares] if rural or two acres [.81 hectares] if located within the established boundaries of a city.

17."Home and community-based services" means services, provided under a waiver secured from the United States department of health and human services, which are:

a.Not otherwise available under Medicaid; and

b.Furnished only to individuals who, but for the provision of such services, would require the level of care provided in a hospital, nursing facility, or intermediate care facility for individuals with intellectual disabilities.

18."Individual on conditional release" means an individual who is away from the institution, for trial placement in another setting or for other approved leave, but who is not discharged.

19."Inmate" means an individual who has been sentenced, placed, committed, admitted, or otherwise required or allowed to live in a public institution, and who has not subsequently been unconditionally released or discharged from the institution. An individual is not considered an inmate if:

a.The individual is in a public educational or vocational training institution for purposes of securing education or vocational training;

b.The individual is in a public institution for a temporary period pending other arrangements appropriate to the individual's needs; or

c.The individual is receiving long-term care services in a public institution.

20."Institution" means an establishment that furnishes food, shelter, and treatment or services in a single or multiple facilities to four or more individuals unrelated to the proprietor.

21."Institution for mental diseases" means a licensed or unlicensed institution that is established and maintained primarily for the care and treatment of individuals with mental diseases. An institution for individuals with intellectual disabilities is not an institution for mental diseases.

22."Institutionalized individual" means an individual who is an inpatient in a nursing facility, an intermediate care facility for individuals with intellectual disabilities, the state hospital, a psychiatric residential treatment facility, an institution for mental disease, or who receives swing-bed care in a hospital.

23."Living independently" means, in reference to an individual under the age of twenty-one, a status which arises in any of the following circumstances:

a.The individual has served a tour of active duty with the armed services of the United States and lives separately and apart from the parent.

b.The individual has married, even though that marriage may have ended through divorce or separation. A marriage ended by legal annulment is treated as if the marriage never occurred.

c.The individual has lived separately and apart from both parents for at least three consecutive full calendar months after the date the individual left a parental home, continues to live separately and apart from both parents, and has received no support or assistance from either parent while living separately and apart. For purposes of this subsection:

(1)Periods when the individual is attending an educational or training facility, receiving care in a specialized facility, or is an institutionalized individual are deemed to be periods when the individual is living with a parent unless the individual first established that the individual was living independently; and (2)Health insurance coverage and court-ordered child support payments are not "assistance or support".

d.The individual is a former foster care recipient who has established a living arrangement separate and apart from either parent and received no support or assistance from either parent.

e.The individual lives separately and apart from both parents due to incest and receives no support or assistance from either parent.

24."Long-term care" means the services received by an individual when the individual is screened or certified as requiring long-term care services.

25."MAGI-based methodology" means the method of determining eligibility for Medicaid that generally follows modified adjusted gross income rules.

26."Medicaid" means a program implemented pursuant to North Dakota Century Code chapter 50-24.1 and title XIX of the Act [42 U.S.C. 1396 et seq.].

27."Medicare cost sharing" means the following costs: a.(1)Medicare part A premiums; and (2)Medicare part B premiums;

b.Medicare coinsurance;

c.Medicare deductibles; and

d.Twenty percent of the allowed cost for Medicare covered services where Medicare covers only eighty percent of the allowed costs.

28."Nursing care services" means nursing care provided in a medical institution, a nursing facility, a swing-bed, the state hospital, or a home and community-based services setting.

29."Occupied" means, when used in the phrase "the home occupied by the Medicaid unit", the home the Medicaid unit is living in or, if temporarily absent from, possessed with an intention to return and the capability of returning within a reasonable length of time. Property is not occupied if the right to occupy has been given up through a rental or lease agreement, whether or not that rental or lease agreement is written. Property is not occupied by an individual in long-term care or the state hospital, with no spouse, disabled adult child, or child under age twenty-one at home, unless a physician has certified that the individual is likely to return home within six months.

30."Poverty level" means the income official poverty line, as defined by the United States office of management and budget, and as revised annually in accordance with 42 U.S.C. 9902(2).

31."Property that is essential to earning a livelihood" means property that a member of a Medicaid unit owns, and which the Medicaid unit is actively engaged in using to earn income, and where the total benefit of such income is derived for the Medicaid unit's needs. A member of a Medicaid unit is actively engaged in using the property if a member of the unit contributes significant current personal labor in using the property for income-producing purposes. The payment of social security taxes on the income from such current personal labor is an indicator of the active use of the property.

32."Property that is not saleable without working an undue hardship" means property that the owner has made a good-faith effort to sell which has produced no buyer willing to pay an amount equaling or exceeding seventy-five percent of the property's fair market value, or sixty-six and two-thirds percent of the property's fair market value with respect to determination of qualified disabled and working individual benefits under section 75-02-02.1-23, and which is continuously for sale. Property may not be included within this definition at any time earlier than the first day of the first month in which a good-faith effort to sell is begun or if a bona fide offer is received by the third month after the month in which the good-faith effort to sell is begun.

33."Public institution" means an institution that is the responsibility of a governmental unit or over which a governmental unit exercises administrative control. The term public institution does not include:

a.A medical institution as defined in 42 CFR 435.1010;

b.An intermediate care facility as defined in 42 CFR 440.140 and 440.150;

c.A publicly operated community residence that serves no more than sixteen residents, as defined in 42 CFR 435.1010; or

d.A child care institution as defined in 42 CFR 435.1010 with respect to:

(1)Children for whom foster care maintenance payments are made under title IV-E of the Act [42 U.S.C. 670 et seq.]; and (2)Children receiving aid to families with dependent children - foster care under title IV-A of the Act [42 U.S.C. 601 et seq.].

34."Recipient" means an individual approved as eligible for health care coverage.

35."Regulation", as used in 42 CFR 431.210, 431.244, and 435.912, includes any written statement of federal or state law or policy, including, but not limited to, federal and state constitutions, statutes, regulations, rules, policy manuals or directives, policy letters or instructions, and relevant controlling decisions of federal or state courts.

36."Remedial services" means those services, provided in specialized facilities, which produce the maximum reduction of physical or mental disability and restoration of the facilities' residents to the residents' best possible level of functioning.

37."Residing in the home" refers to individuals who are physically present, individuals who are temporarily absent, or individuals attending educational facilities.

38."Specialized facility" means a residential facility, including a basic care facility, a licensed family foster care home for children or adults, a licensed group foster care home for children or adults, a transitional living facility, a facility established to provide quarters to clients of a sheltered workshop, and any other facility determined by the department to be a provider of remedial services, but does not mean an acute care facility or a nursing facility.

39."Student" means an individual who regularly attends and makes satisfactory progress in elementary or secondary school, general educational development classes, college, university, vocational training, including summer vacation periods if the individual intends to return to school in the fall, or a home school program recognized or supervised by the student's state or local school district. A full-time student is an individual who attends school on a schedule equal to a full curriculum.

40."Supplemental security income" means a program administered under title XVI of the Act [42 U.S.C. 1381 et seq.].

41."Temporary assistance for needy families" means a program administered under North Dakota Century Code chapter 50-09 and title IV-A of the Act [42 U.S.C. 601 et seq.].

42."The Act" means the Social Security Act [42 U.S.C. 301 et seq.].

43."Title II" means title II of the Social Security Act [42 U.S.C. 401 et seq.].

44."Title IV-E" means title IV-E of the Social Security Act [42 U.S.C. 670 et seq.].

45."Title XIX" means title XIX of the Social Security Act [42 U.S.C. 1396 et seq.].

46."Title XXI" means title XXI of the Social Security Act [42 U.S.C. 1397aa et seq.].

47."Unconditionally released" means released, discharged, or otherwise allowed or required to leave the institution under circumstances such that a return to the institution may not be required by the operator of the institution.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; October 1, 1993; July 1, 2003; August 1, 2005; April 1, 2008; January 1, 2011; April 1, 2012; July 1, 2012;

January 1, 2014; January 1, 2020; January 1, 2024; January 1, 2026. 75-02-02.1-02. Application and redetermination.

1.Application.

a.All individuals wishing to make application for Medicaid must have the opportunity to do so, without delay.

b.An application is a written request made by an individual desiring assistance under the Medicaid program, or by an individual seeking such assistance on behalf of another individual, to a county agency, the department, a disproportionate share hospital, as defined in section 1923(a)(1)(A) of the Act [42 U.S.C. 1396r-4(a)(1)(A)], or a federally qualified health center, as described in section 1905(I)(2)(B) of the Act [42 U.S.C. 1396d(I)(2)(B)].

c.A prescribed application form must be signed by the applicant or by someone acting responsibly for an incapacitated applicant.

d.Information concerning eligibility requirements, available services, and the rights and responsibilities of applicants and recipients must be furnished to all who require it.

e.A relative or other interested party may file an application on behalf of a deceased individual to cover medical costs incurred prior to the deceased individual's death.

f.The date of application is the date an application, signed by an appropriate individual, is received at a county agency, the department, a disproportionate share hospital, or a federally qualified health center.

2.Redetermination. A redetermination must be completed within thirty days after a county agency has received information indicating a possible change in eligibility status, when eligibility is lost under a category, and in any event, no less than annually. A recipient has the same responsibility to furnish information during a redetermination as an applicant has during an application.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003;

May 1, 2006; January 1, 2022. 75-02-02.1-02.1. Duty to establish eligibility.

It is the responsibility of the applicant or recipient to provide information sufficient to establish the eligibility of each individual for whom assistance is requested, including furnishing of a social security number, and establishing age, identity, residence, citizenship, blindness, disability, and financial eligibility in each of the months in which benefits are requested.

History: Effective December 1, 1991; amended effective July 1, 2003; January 1, 2020. 75-02-02.1-03. Decision and notice.

1.A decision as to eligibility must be made promptly on applications, by the forty-fifth day, or within ninety days in cases with a disability determination pending, except in unusual circumstances.

2.Following a determination of eligibility or ineligibility, an applicant must be notified of either approval or denial of benefits.

3.Notice must be sent at the time, and in the manner, required by 42 CFR 431.210 through 431.214.

4.Errors made by public officials and delays caused by the actions of public officials do not create eligibility or additional benefits for an applicant or recipient who is adversely affected.

History: Effective December 1, 1991; amended effective July 1, 2003; January 1, 2020; January 1, 2026. 75-02-02.1-04. Screening of recipients of certain services.

All applicants or recipients who seek nursing care services in nursing facilities, swing-bed facilities, or intermediate care facilities for individuals with intellectual disabilities, or who seek home and community-based services, must demonstrate a medical necessity for the service sought on or prior to admission to a facility, upon application for Medicaid while in a facility, or upon request for home and community-based services. That demonstration must be through the department's established screening process.

History: Effective December 1, 1991; amended effective July 1, 2003; April 1, 2008; October 1, 2010;

January 1, 2011; July 1, 2012. 75-02-02.1-04.1. Certification of need for children in an institution for mental disease.

1.Children under age twenty-one who seek services in an institution for mental disease must obtain certification of need in order to be eligible for Medicaid.

2.For an individual who attains age twenty-one while receiving treatment and continues to receive treatment as an inpatient, eligibility may continue through the month the individual attains the age of twenty-two.

History: Effective July 1, 2003. 75-02-02.1-05. Coverage groups.

Within the limits of legislative appropriation, the department may provide benefits to coverage groups described in the approved Medicaid state plan in effect at the time those benefits are sought.

These coverage groups do not define eligibility for benefits. Any individual who is within a coverage group must also demonstrate that all other eligibility criteria are met.

1.The categorically needy coverage group includes:

a.Children for whom adoption assistance maintenance payments are made under title IV-E;

b.Children for whom foster care maintenance payments are made under title IV-E;

c.Children who are living in North Dakota and are receiving title IV-E adoption assistance payments from another state;

d.Children in a foster care placement in North Dakota and receiving a title IV-E foster care payment from another state;

e.Caretakers of deprived children who meet the parent and caretaker relative eligibility criteria;

f.Families who were eligible under the family coverage group in at least three of the six months immediately preceding the month in which the family became ineligible because of the caretaker relative's earned income or because a member of the unit has a reduction in the time-limited earned income disregard;

g.Families who were eligible under the family coverage group in at least three of the six months immediately preceding the month in which they became ineligible as a result, wholly or partly, of the collection or increased collection of child or spousal support continue eligible for Medicaid for four calendar months;

h.Pregnant women who meet the nonfinancial requirements with modified adjusted gross income at or below the modified adjusted gross income level for pregnant women;

i.Eligible pregnant women who applied for and were eligible for Medicaid as categorically needy during pregnancy continue to be eligible for twelve months beginning on the last day of the pregnancy, and through the end of the month in which the twelve-month period ends;

j.Children born to the categorically needy eligible pregnant women who applied for and were found eligible for Medicaid on or before the day of the child's birth, for twelve months beginning on the day of the child's birth and through the end of the month in which the twelve-month period ends;

k.Children up to age nineteen who meet the nonfinancial Medicaid requirements with modified adjusted gross income at or below the modified adjusted gross income level for that child's age;

l.Adults between the ages of nineteen and sixty-four, inclusive, who meet the nonfinancial Medicaid requirements:

(1)Who are not eligible under subdivisions e through k above; or (2)Who are not eligible for supplemental security income, unless they fail the medically needy asset test; or (3)Whose modified adjusted gross income is at or below the established modified adjusted gross income level for this group;

m.Former foster care children through the month they turn twenty-six years of age, who were enrolled in Medicaid and were in foster care when they turned eighteen years old, provided they are not eligible under any of the categorically eligible groups other than the group identified in subdivision l.

n.Aged, blind, or disabled individuals who are receiving supplemental security income payments or who appear on the state data exchange as zero payment as a result of supplemental security income's recovery of an overpayment or who are suspended because the individuals do not have a protective payee, provided that the more restrictive Medicaid criteria is met; and

o.Individuals who meet the more restrictive requirements of the Medicaid program and qualify for supplemental security income benefits under section 1619(a) or 1619(b) of the Act [42 U.S.C. 1382h(a) or 1382h(b)].

2.The optional categorically needy coverage group includes:

a.Individuals under age twenty-one who are residing in adoptive homes and who have been determined under the state-subsidized adoption program to be eligible as provided in state law and in accordance with the requirements of the department;

b.Uninsured individuals under age sixty-five, who are not otherwise eligible for Medicaid, who have been screened for breast or cervical cancer under the centers for disease control and prevention breast and cervical cancer early detection program, and who need treatment for breast or cervical cancer, including a precancerous condition of the breast or cervix;

c.Gainfully employed individuals with disabilities age eighteen to sixty-five who meet medically needy nonfinancial criteria, have countable assets within the medically needy asset levels, have income below two hundred twenty-five percent of the poverty level, and are not eligible for Medicaid under any other provision except as a qualified Medicare beneficiary or a special low-income Medicare beneficiary. Coverage under this group ends on the last day of the month before the month in which the individual attains the age of sixty-five; and

d.Individuals under age nineteen who are disabled, who meet medically needy nonfinancial criteria, who have income at or below two hundred fifty percent of the poverty level, and who are not eligible for Medicaid under any other provision. Coverage under this group ends on the last day of the month in which the individual reaches age nineteen.

3.The medically needy coverage group includes:

a.Individuals under the age of twenty-one who qualify for and require medical services on the basis of insufficient income, but who do not qualify under categorically needy or optional categorically needy groups, including foster care children who do not qualify as categorically needy or optional categorically needy;

b.Pregnant women whose pregnancy has been medically verified and who qualify on the

basis of financial eligibility;

c.Eligible pregnant women who applied for Medicaid during pregnancy, and for whom recipient liability for the month was met no later than on the date each pregnancy ends, continue to be eligible for twelve months beginning on the last day of pregnancy and through the end of the month in which the twelve-month period ends;

d.Children born to eligible pregnant women who have applied for and been found eligible for Medicaid on or before the day of the child's birth, for twelve months beginning on the day of the child's birth, and through the end of the month in which the twelve-month period ends;

e.Aged, blind, or disabled individuals who are not in receipt of supplemental security income; and

f.Individuals under age twenty-one who have been certified as needing the service, or age sixty-five and over in the state hospital who qualify on the basis of financial eligibility.

4.The poverty level coverage group includes:

a.Qualified Medicare beneficiaries who are entitled to Medicare part A benefits, who meet the medically needy nonfinancial criteria, whose assets do not exceed the maximum resource level applied for the year under subparagraph (D) of section 1860D-14(a)(3) [42 U.S.C. 1395w-114(a)(3)], and have income at or below one hundred percent of the poverty level;

b.Qualified disabled and working individuals who are individuals entitled to enroll in Medicare part A under section 1818a of the Social Security Act [42 U.S.C. 1395i-2(a)], who have income no greater than two hundred percent of the federal poverty level and assets no greater than twice the supplemental security income resource standard, and who are not eligible for Medicaid under any other provision;

c.Special low-income Medicare beneficiaries who are entitled to Medicare part A benefits, who meet the medically needy nonfinancial criteria, whose assets do not exceed the maximum resource level applied for the year under subparagraph (D) of section 1860D-14(a)(3) [42 U.S.C. 1395w-114(a)(3)], and have income above one hundred percent of the poverty level, but not in excess of one hundred twenty percent of the poverty level;

d.Qualifying individuals who are entitled to Medicare part A benefits, who meet the medically needy nonfinancial criteria, whose assets do not exceed the maximum resource level applied for the year under subparagraph (D) of section 1860D-14(a)(3) [42 U.S.C. 1395w-114(a)(3)], have income above one hundred twenty percent of the poverty level, but not in excess of one hundred thirty-five percent of the poverty level, and are not eligible for Medicaid under any other provision; and

e.Individuals eligible for the Medicare part B immunosuppressive drug benefit are entitled to coverage for the Medicare part B immunosuppressive drug benefit only, and who are not eligible for Medicaid under any other provision.

5.Children's health insurance program includes individuals under age nineteen, and who have income at or below two hundred ten percent of the poverty level. Coverage under this group ends on the last day of the month in which the individual reaches age nineteen.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; January 1, 1994; January 1, 1997; July 1, 2003; June 1, 2004; April 1, 2008; January 1, 2010; April 1, 2012;

January 1, 2014; April 1, 2018; January 1, 2020; January 1, 2023; January 1, 2024.

Law Implemented: NDCC 50-24.1-02, 50-24.1-31, 50-24.1-37; 42 USC 1396a(e) 75-02-02.1-06. Applicant's choice of aid category.

An individual who could establish eligibility under more than one category may have eligibility determined under the category the individual selects. Except for qualified Medicare beneficiaries and special low-income Medicare beneficiaries, who may also establish eligibility as aged, blind, or disabled, an individual may establish eligibility under only one category.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003. 75-02-02.1-07. Applicant's duty to establish eligibility.

Repealed effective December 1, 1991. 75-02-02.1-08. Medicaid unit.

1.For individuals not subject to MAGI-based methodology, a Medicaid unit may be one individual, a married couple, or a family with children under twenty-one years of age or, if blind or disabled child, under age eighteen, whose income and assets are considered in determining eligibility for any member of that unit, without regard to whether the members of the unit all physically reside in the same location. An applicant or recipient who is also a caretaker of children under twenty-one years of age may select the children who will be included in the Medicaid unit. Anyone whose needs are included in the unit for any month is subject to all Medicaid requirements which may affect the unit. The financial responsibility of relatives must be considered with respect to all members of the assistance unit.

2.For individuals subject to a MAGI-based methodology, a Medicaid unit is determined by the individual's tax filing status as well as the individual's relationship to those with whom the individual lives.

Each individual will have his or her own Medicaid unit determined as follows:

a.If the individual is a tax filer, and is not also claimed as a dependent by someone else, the individual's Medicaid unit consists of the individual, the individual's spouse, if living with the individual, and anyone the individual or his or her spouse claims as a dependent, plus a dependent's spouse that lives with them, and any unborn children of a pregnant woman who is included in the unit.

b.If the individual is claimed as a tax dependent by another, even if the individual files his or her own tax return, and does not meet any of the following exceptions, that individual's Medicaid unit is the same as the household that claims the individual as a dependent, plus the individual's spouse that lives with them and any unborn children of a pregnant woman who is included in the unit:

(1)The individual is claimed as a dependent by someone other than a spouse, or a natural, adopted, or stepparent;

(2)The individual is under nineteen years old and is living with both parents but the parents are not filing a joint return; or (3)The individual is under nineteen years old and will be claimed as a dependent by a noncustodial parent.

c.If the individual is not a tax filer, is not expected to be claimed as a dependent by another, or meets one of the conditions set forth in paragraphs 1, 2, or 3 of subdivision b, the individual is subject to the nonfiler rules. A nonfiler individual's Medicaid unit is the individual, and, if living with the individual, the individual's spouse; natural, adopted, or stepchildren under nineteen years old; natural, adopted, or stepparents; or natural, adopted, or step-siblings under nineteen years old, plus any of their spouses that live with them, and any unborn children of a pregnant woman who is in the household.

3.Individuals may not be opted out of a Medicaid household unit determined under subsection 2.

4.To determine medically needy eligibility for pregnant women, children aged to nineteen, or parent or caretaker relatives, income budgeting will be based on non-MAGI income methodology with the exclusion of assets.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; January 1, 2014; January 1, 2020. 75-02-02.1-08.1. Caretaker relatives.

1.A caretaker relative who is not a child's parent may be eligible for Medicaid as a caretaker relative only if:

a.Age sixteen or older;

b.Actually living in the same home as the dependent child; and

c.The dependent child is not only temporarily absent from the home of the child's parent.

2.An individual may be a caretaker relative only if the individual is the dependent child's parent, stepparent, grandparent, brother, sister, stepbrother, stepsister, great-grandparent, aunt, uncle, niece, nephew, great-great-grandparent, great-aunt, great-uncle, first cousin, grandniece, grandnephew, great-great-great-grandparent, great-great-aunt, great-great-uncle, second cousin (a great-aunt's or great-uncle's child), first cousin once removed (an aunt's or uncle's grandchild), great-grandniece, or great-grandnephew, whether by birth or adoption, and whether by whole or half-blood.

3.A child is considered to be living with a caretaker relative when away at school or when otherwise temporarily absent from the home. A child is not considered to be living with a caretaker relative when either the child or the caretaker relative is residing in a nursing care facility, an intermediate care facility for individuals with intellectual disabilities, or a specialized facility on other than a temporary basis.

4.A child may not be considered to be living with more than one caretaker relative in more than one Medicaid unit for the same time period.

History: Effective July 1, 2003; amended effective June 1, 2004; May 1, 2006; July 1, 2012; January 1, 2014. 75-02-02.1-09. Assignment of rights to medical payments and benefits.

1.The applicant and each individual for whom assistance is requested must, as a condition of eligibility, assign rights to payment or benefits from any third party or private insurer and cooperate in obtaining medical payments and benefits. This assignment of rights to payment or benefits is automatic under North Dakota Century Code sections 50-24.1-02 and 50-24.1-02.1. As a condition of eligibility, the applicant or recipient may be required to execute a written assignment whenever appropriate to facilitate establishment of liability of a third party or private insurer.

a.The department and county agency shall take reasonable measures to obtain, from an applicant or recipient, health coverage information and other necessary information to determine the liability of third parties and private insurers.

b.For purposes of this subsection:

(1)"Private insurer" includes any commercial insurance company offering health or casualty insurance to individuals or groups, including both experience-related insurance contract and indemnity contracts; any profit or nonprofit prepaid plan offering either medical services or full or partial payment for services covered by the Medicaid program; and any organization administering health or casualty insurance plans for professional associations, employer-employee benefit plans, or any similar organization offering these payments or services, including self-insured and self-funded plans.

(2)"Third party" means any individual, entity, or program that is or may be liable to pay all or a part of the expenditures for services furnished under Medicaid, including a parent or other person who owes a duty to provide medical support to or on behalf of a child for whom Medicaid benefits are sought.

2.Except as provided in this subsection, each applicant and each individual for whom assistance is requested must, as a condition of eligibility, assign rights to medical support from any absent parent of a deprived child, and cooperate with the department and county agency in obtaining medical support and establishing paternity of a child in the Medicaid unit with respect to whom paternity has not been legally established. This assignment of rights is automatic under North Dakota Century Code sections 50-09-0-6.1 and 50-24.1-02.1. The requirement for the assignment of rights to medical support from absent parents continues through the month in which the child reaches age eighteen.

a.A pregnant woman is not required to cooperate in establishing paternity and obtaining medical support and payments from, or derived from, the noncustodial parent of a child born out of wedlock, while pregnant, for twelve months beginning on the date the pregnancy ends, and through the end of the month in which the twelve-month period ends.

b.Recipients of transitional or extended Medicaid benefits are not required to cooperate in obtaining medical support and establishing paternity.

c.The county agency may waive the requirement to cooperate in obtaining medical support and establishing paternity for good cause if it determines that cooperation is against the best interests of the child. A county agency may determine that cooperation is against the best interests of the child only if:

(1)The applicant's or recipient's cooperation in establishing paternity or securing medical support is reasonably anticipated to result in:

(a)Physical harm to the child for whom support is to be sought;

(b)Emotional harm to the child for whom support is to be sought;

(c)Physical harm to the parent or caretaker relative with whom the child is living which reduces such person's capacity to care for the child adequately; or (d)Emotional harm to the parent or caretaker relative with whom the child is living, of such nature or degree that it reduces such person's capacity to care for the child adequately; or (2)At least one of the following circumstances exists, and the county agency believes that because of the existence of that circumstance, in the particular case, proceeding to establish paternity or secure medical support would be detrimental to the child for whom support would be sought.

(a)The child for whom support is sought was conceived as a result of incest or forcible rape;

(b)Legal proceedings for the adoption of the child are pending before a court of competent jurisdiction; or (c)The applicant or recipient is currently being assisted by a public or licensed private social agency to resolve the issue of whether to keep or relinquish the child for adoption, and the discussions have not gone on for more than three months.

d.Physical harm and emotional harm must be of a serious nature in order to justify a waiver of the requirement to cooperate under this subsection.

e.A waiver of the requirement to cooperate under this subsection due to emotional harm may only be based on a demonstration of an emotional impairment that substantially impairs the individual's functioning. In determining a waiver of the requirement to cooperate under this subsection, based in whole or in part upon the anticipation of emotional harm to the child, the parent, or the caretaker relative, the county agency must consider:

(1)The present emotional state of the individual subject to emotional harm;

(2)The emotional health history of the individual subject to emotional harm;

(3)Intensity and probable duration of the emotional impairment;

(4)The degree of cooperation to be required; and (5)The extent of involvement of the child in the paternity establishment or support enforcement activity to be undertaken.

f.A determination to grant a waiver of the requirement to cooperate under this subsection must be reviewed no less frequently than every twelve months to determine if the circumstances which led to the waiver continue to exist.

3.For purposes of this section, "cooperate in obtaining medical support and establishing paternity" and "cooperate in obtaining medical payments and benefits" includes:

a.Appearing at a state or local office designated by the department or county agency to provide information or evidence relevant to the case;

b.Appearing as a witness at a court or other proceeding;

c.Providing credible information, or credibly attesting to lack of information;

d.Paying to the department any support or medical care funds received that are covered by the assignment of rights; and

e.Taking any other reasonable steps to assist in establishing paternity and securing medical support and medical payments and benefits.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; January 1, 2023. 75-02-02.1-10. Eligibility - Current and retroactive.

1.Current eligibility may be established from the first day of the month in which the application was received. This subsection does not apply to qualified Medicare beneficiaries.

2.Retroactive eligibility may be established for as many as three calendar months prior to the month in which the application was received. Eligibility can be established in each of those months for which benefits are sought and if all factors of eligibility are met during each such month. If a previous application has been taken and denied in the same month, eligibility for that entire month may be established based on the current application. Retroactive eligibility may be established even if there is no eligibility in the month of application. This subsection does not apply to qualified Medicare beneficiaries.

3.An individual determined eligible for part of a month is eligible for the entire calendar month unless a specific factor prevents eligibility during part of that month. Specific factors include:

a.An individual is born in the month, in which case the date of birth is the first date of eligibility;

b.An individual entering the state is eligible for Medicaid as of the date the individual entered the state; or

c.An individual is discharged from a public institution, in which case the date of eligibility is the date of discharge.

4.Eligibility for qualified Medicare beneficiaries begins in the month following the month in which the individual is determined eligible.

5.An individual cannot be eligible as a qualifying individual and be eligible under any other Medicaid coverage for the same period of time.

6.A child cannot be eligible for Medicaid for the same period of time the child is covered under the children's health insurance program.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; January 1, 2020; January 1, 2022; January 1, 2024. 75-02-02.1-11. Need.

Need is a factor of eligibility. Need in this sense is not to be confused with the necessity for a particular medical service.

1.Need is established for individuals who are determined to be categorically needy, optionally categorically needy, or poverty level eligible.

2.For a medically needy applicant or recipient, need is established if the individual has:

a.Applied for Medicaid;

b.No client share; or

c.Incurred or may incur medical expenses that the individual is responsible for after any third-party payments that equal or exceed client share.

3.If an individual does not meet the individual's client share for six consecutive months, the individual's eligibility must end the following month.

History: Effective December 1, 1991; amended effective July 1, 2003; April 1, 2008;January 1, 2026. 75-02-02.1-12. Age and identity.

1.An eligible categorically or medically needy aged applicant or recipient is eligible for Medicaid for the entire calendar month in which that individual reaches age sixty-five.

2.An individual who attains age twenty-one while receiving treatment and continues to receive treatment as an inpatient in an institution for mental diseases remains eligible through the month the individual reaches age twenty-two.

3.Blind individuals, disabled individuals, and caretaker relatives are not subject to any age requirements for purposes of Medicaid eligibility.

4.The identity of each applicant must be established and documented.

5.Citizenship status of each applicant must be established and documented.

History: Effective December 1, 1991; amended effective July 1, 2003; June 1, 2004; January 1, 2010;

January 1, 2014. 75-02-02.1-12.1. Cost-effective health insurance coverage.

1.For purposes of this section:

a."Cost effective" means that Medicaid payments for a set of Medicaid-covered services are likely to exceed the cost of paying the health plan premium, coinsurance charges, and deductibles for those services.

b."Health plan" means any plan under which a third party is obligated by contract to pay for health care provided to an applicant for or recipient of Medicaid.

2.Any recipient of Medicaid benefits who is enrolled in a cost-effective health plan may have the health plan premium paid by Medicaid.

3.Applicants for and recipients of Medicaid benefits must provide the information necessary to determine if a health plan is cost effective.

4.Recipients with a health plan the department has determined is cost effective must cooperate with all of the conditions and requirements of the health plan. Applicants and recipients must take any optional coverage provided through the plan when it is cost effective to do so. Failure to cooperate with plan requirements, or to select cost-effective options of the plan, will:

a.Result in termination of payments for health plan premiums; and

b.Result in nonpayment for services, by Medicaid, which the health plan would pay, or would have paid, had the recipient conformed to the requirements of the health plan.

5.If an applicant for or recipient of Medicaid benefits is eligible for enrollment, but is not enrolled in Medicare part B, enrollment in any other health plan is not considered cost effective.

6.The department shall determine, using information provided by or at the direction of a Medicaid applicant or recipient, guidelines established by the department, and other information at its disposal, whether a health plan is cost effective. The department may make determinations under this subsection on a case-by-case basis, on a plan-by-plan basis, or both.

History: Effective July 1, 1993; amended effective July 1, 2003.

Law Implemented: NDCC 50-24.1-02; 42 USC 1396e 75-02-02.1-13. Social security numbers.

A social security number must be furnished as a condition of eligibility, for each individual for whom Medicaid benefits are sought, except for:

1.A newborn child who is eligible during the birth month, for sixty days after the date of birth beginning on the date of birth and for the remaining days of the month in which the sixtieth day falls or, if the newborn is continuously eligible, for the remaining days of the newborn's first eligibility period;

2.Coverage of emergency services provided to illegal aliens; and

3.Individuals who have applied for, but not yet received, social security numbers.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; July 1, 2016. 75-02-02.1-14. Blindness and disability.

1.In any instance in which a determination is to be made as to whether any individual is disabled, each medical report form and social history shall be reviewed by a review team consisting of technically competent individuals, not less than a physician and an individual qualified by professional training and pertinent experience, acting cooperatively, who shall determine if the applicant meets the appropriate definitions of disability.

2.In any instance in which a determination is to be made whether an individual is blind, the individual shall be examined by a physician skilled in the diseases of the eye, or by an optometrist, whichever the individual may select, who shall prepare and submit an eye examination report. The state review team shall review and compare that report with the state's definition of blindness and determine:

a.Whether the individual meets the definition of blindness; and

b.Whether and when reexaminations are necessary for periodic redeterminations of

3.The state review team must decline to determine blindness or disability for a period of time that such a determination is made for supplemental security income or title II disability benefits by the social security administration, unless the Medicaid applicant is applying for workers with disabilities coverage and is not eligible for title II disability due to substantial gainful activity.

4.The agency may not make an independent determination of disability if the social security administration has made a disability determination or will make a disability determination within ninety days after the date of application for Medicaid.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; April 1, 2008.

Law Implemented: NDCC 50-24.1-02; 42 CFR Part 435 75-02-02.1-14.1. Eligibility for medically frail Medicaid expansion enrollees.

1.For the purpose of this section, "medically frail" means an individual who is eligible for or enrolled with Medicaid expansion and has been deemed to meet the status of medically frail which upon a review and determination may include an individual with any of the following: serious or complex medical conditions; disabling mental disorders; chronic substance use disorders; or physical, intellectual, or developmental disability that significantly impairs one's ability to perform one or more activities of daily living.

2.A Medicaid expansion enrollee interested in applying for a medically frail determination shall complete a self-assessment and return the completed form to the department.

3.In any instance in which a determination is to be made as to whether any individual is medically frail, documentation that validates the diagnosis or medical condition along with any other supporting documentation must be submitted to the department. The self-assessment form and documentation submitted shall be reviewed by a medical professional with professional training and pertinent experience, and who shall determine if the applicant meets medically frail eligibility requirements.

4.If the Medicaid expansion enrollee is approved for eligibility as medically frail, the enrollee may choose coverage through a managed care organization or through the Medicaid state plan services, except for individuals ages nineteen and twenty as their coverage will be determined under the Medicaid state plan services.

5.Coverage of an enrollee as medically frail may begin no earlier than the first of the month in which the self-assessment was received by the department.

History: Effective January 1, 2014; amended effective April 1, 2018; January 1, 2022.

Law Implemented: NDCC 50-24.1-01, 50-24.1-37; 42 CFR 440.315(f) 75-02-02.1-15. Incapacity of a parent.

1.A child, if otherwise eligible for Medicaid benefits, is "deprived of parental support or care" when the child's parent has a physical or mental defect, supported by current competent medical testimony, of such a debilitating nature as to reduce substantially or eliminate the parent's capacity either to earn a livelihood or to discharge the parent's responsibilities as a homemaker and provider of child care for a period of thirty days or more. In making a determination of capacity to earn a livelihood, the department takes into account the limited employment opportunities of disabled parents.

2.The incapacity must be such that it reduces substantially or eliminates employment in the parent's usual occupation. It does not matter whether a parent was employed or fulfilled the role of homemaker prior to the onset of the asserted incapacity. Incapacity is established either when the parent is unable to earn a livelihood or to act as a homemaker. A parent may also establish incapacity by demonstrating that the parent has reached age sixty-five.

3.A determination that a parent is disabled or blind, made by the social security administration, constitutes adequate substantiation of incapacity for purposes of this section.

4.A parent continues to be incapacitated, for purposes of this section, if the incapacity is not reasonably subject to remediation, or if the parent makes reasonable progress towards remediation of the incapacity. For purposes of this section, "reasonable progress towards remediation of the incapacity" means cooperation with medical practitioners who prescribe a course of treatment intended to remediate or limit the effect of the incapacity, including physical therapy, counseling, use of prosthesis, drug therapy and weight loss, cooperation with vocational practitioners, cooperation with vocational and functional capacity evaluations, and reasonable progress in a course of training or education intended to qualify the parent to perform an occupation which, with that training or education, the parent would have the capacity to perform.

5.A parent who engages in activities inconsistent with the claimed incapacity may be determined to not be incapacitated.

6.The department may require a parent to demonstrate reasonable progress towards remediation of the incapacity, and may set reasonable deadlines for the demonstrations.

History: Effective December 1, 1991; amended effective December 1, 1991; February 1, 1997; April 1, 2012. 75-02-02.1-16. State of residence.

A resident of the state is an individual who is living in the state voluntarily and not for a temporary

purpose. Temporary absences from the state with subsequent returns to the state, or intent to return when the purpose of the absence has been accomplished, do not interrupt continuity of residence.

Residence is retained until abandoned or established in another state.

1.For individuals entering the state, the earliest date of eligibility is the date of entry. Residence may not be established for individuals who claim residence in another state.

2.Individuals under age twenty-one.

a.For any individual under age twenty-one who is living independently from the individual's parents or who is married and capable of indicating intent, the state of residence is the state where the individual is living with the intention to remain there.

b.For any individual who is receiving foster care or adoption assistance payments, under title IV-E, from another state and is living in North Dakota, North Dakota is the state of residence for Medicaid purposes.

c.For any individual under age twenty-one not residing in an institution, whose Medicaid eligibility is based on blindness or disability, the state of residence is the state in which the individual is living.

d.For any other noninstitutionalized individual under age twenty-one, the state of residence is the state in which the child is living with the child's parent or caretaker relative on other than a temporary basis. A child who comes to North Dakota to receive an education, special training, or services in a facility such as the Anne Carlsen facility, a maternity home, or a vocational training center is normally regarded as living temporarily in the state if the intent is to return to the child's home state upon completion of the education or service. A child placed by an out-of-state placement authority, including a court, into the home of relatives or foster parents in North Dakota on other than a permanent basis or for an indefinite period is living in the state for a temporary purpose and remains a legal resident of the state of origin unless the interstate compact on the placement of children is silent regarding Medicaid coverage. If the interstate compact on the placement of children is silent, the child must be considered a resident of North Dakota for Medicaid purposes. A resident of North Dakota who leaves the state temporarily to pursue educational goals (including any child participating in job corps) or other specialized services (including a child placed by a North Dakota placement authority, including a court, into the home of out-of-state relatives or foster parents) does not lose residence in the state.

e.For any institutionalized individual, under age twenty-one, who is neither married nor living independently, residence is that of the parents or legal guardian at the time of placement or the state of residence of the parent or legal guardian at the time of Medicaid application if the child is institutionalized in the same state. Only if the parental rights have been terminated, and a guardian or custodian appointed, may the residence of the guardian or custodian be used. If the individual has been abandoned by the individual's parents and does not have a guardian, the individual is a resident of the state in which the individual is institutionalized.

3.Individuals age twenty-one and over:

a.For any individual not residing in an institution, the state of residence is the state where the individual is living with the intention to remain there or is entering the state with a job commitment or seeking employment. The state of residence, for Medicaid purposes, of a migrant or seasonal farm worker is the state in which the individual is employed or seeking employment.

b.Except as provided in subdivision c, the state of residence of an institutionalized individual is the state where the individual is living with the intention to remain there.

c.For an institutionalized individual who became incapable of indicating intent before age twenty-one, the state of residence is that of the parent or guardian making application, at the time of placement or, if the individual is institutionalized in that state, at the time of application. If the individual has no guardian, the application is not made by either parent, and the placement was not made by another state, the state of residence is the state in which the individual is physically present.

4.For purposes of this subsection:

a."Individual incapable of indicating intent" means one who:

(1)Has an intelligence quotient of forty-nine or less, or a mental age of seven or less, based upon tests acceptable to the behavioral health division of the department;

(2)Has been found by a court of competent jurisdiction to be an incapacitated person as defined in subsection 2 of North Dakota Century Code section 30.1-26-01;

(3)Has been found by a court of competent jurisdiction to be legally incompetent; or (4)Is found incapable of indicating intent based on medical documentation obtained from a physician or surgeon, clinical psychologist, or other person licensed by the state in the field of mental retardation; and

b."Institution" means an establishment that furnishes, in single or multiple facilities, food, shelter, and some treatment or services to four or more individuals unrelated to the proprietor.

5.Notwithstanding any other provision of this section except subsections 6 through 9, individuals placed in out-of-state institutions by a state retain residence in that state regardless of the individual's indicated intent or ability to indicate intent. The application of this subsection ends when a person capable of indicating intent leaves an institution in which the person was placed by this state. Providing information about another state's Medicaid program or about the availability of health care services and facilities in another state, or assisting an individual in locating an institution in another state, does not constitute a state placement.

6.For any individual receiving a state supplemental payment, the state of residence is the state making the payment.

7.For any individual on whose behalf payments for regular foster care or state adoption assistance are made, the state of residence is the state making the payment.

8.If an interstate reciprocal residency agreement has been entered into between this state and another state pursuant to 42 CFR 435.403(k), the state of residence of an affected individual is the state determined under that agreement.

9.When two or more states cannot agree which state is the individual's state of residence, the state of residence is the state in which the individual is physically present.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; January 1, 2010; January 1, 2014; January 1, 2024.

Law Implemented: NDCC 50-24.1-02, 50-24.1-37; 42 CFR Part 435 75-02-02.1-17. Application for other benefits.

Repealed effective January 1, 2025. 75-02-02.1-18. Citizenship and alienage.

1.An applicant or recipient must be a United States citizen or an alien lawfully admitted for permanent residence. Acceptable documents to establish United States citizenship and naturalized citizen status are defined in 42 CFR 435.407.

2.For purposes of qualifying as a United States citizen, the United States includes the fifty states, the District of Columbia, Puerto Rico, Guam, the United States Virgin Islands, and the Northern Mariana Islands. Nationals from American Samoa or Swain's Island are also regarded as United States citizens for purposes of Medicaid.

3.American Indians born in Canada, who may freely enter and reside in the United States, are considered to be lawfully admitted for permanent residence if at least one-half American Indian blood. A spouse or child of such an Indian, or a noncitizen individual whose membership in an Indian tribe or family is created by adoption, may not be considered to be lawfully admitted under this subsection unless the individual is of at least one-half American Indian blood by birth.

4.The following categories of aliens, while lawfully admitted for a temporary or specified period of time, are not eligible for Medicaid, except for emergency services, because of the temporary nature of their admission status:

a.Foreign government representatives on official business and their families and servants;

b.Visitors for business or pleasure, including exchange visitors;

c.Aliens in travel status while traveling directly through the United States;

d.Crewmen on shore leave;

e.Treaty traders and investors and their families;

f.Foreign students;

g.International organization representatives and personnel and their families and servants;

h.Temporary workers, including agricultural contract workers; and

i.Members of foreign press, radio, film, or other information media and their families.

5.Except for aliens identified in subsection 4, aliens who are not lawfully admitted for permanent residence in the United States are not eligible for Medicaid, except for emergency services.

6.Individuals from the compact of free associated states, including the Federated States of Micronesia, the Republic of Marshall Islands, and the Republic of Palau, pursuant to section 208 of division CC of the Consolidated Appropriations Act of 2021 [Pub. L. 116-260], are eligible for Medicaid benefits without the five-year, forty-quarter ban.

7.Aliens who lawfully entered the United States for permanent residence before August 22, 1996, and who meet all other Medicaid criteria may be eligible for Medicaid.

8.The following categories of aliens who entered the United States for permanent residence on or after August 22, 1996, and who meet all other Medicaid criteria may be eligible for Medicaid as qualified aliens:

a.Honorably discharged veterans, aliens on active duty in the United States armed forces, and the spouse or unmarried dependent children of such individuals;

b.Refugees and asylees;

c.Aliens whose deportation was withheld under section 243(h) of the Immigration and Naturalization Act;

d.Cuban and Haitian entrants;

e.Aliens admitted as Amerasian immigrants;

f.Victims of a severe form of trafficking;

g.Iraqi and Afghan aliens and family members who are admitted under section 101(a)(27) of the Immigration and Naturalization Act;

h.For the period paroled, aliens paroled into the United States for at least one year under

section 212(d)(5) of the Immigration and Nationality Act;

i.Aliens granted conditional entry pursuant to section 203(a)(7) of the Immigration and Nationality Act in effect prior to April 1, 1980;

j.Aliens granted nonimmigrant status under section 101(a)(15)(T) of the Immigration and Nationality Act or who have a pending application that sets forth a prima facie case for eligibility for that nonimmigrant status;

k.Certain battered aliens and their children who have been approved or have a petition pending which sets forth a prima facie case as identified in 8 U.S.C. 1641(c), but only if the department determines there is a substantial connection between the battery and the need for the benefits to be provided; and

l.All other aliens, other than for emergency services, only after five years from the date they entered the United States, and then only if the individual is a lawful permanent resident who has been credited with forty qualifying quarters of social security coverage.

9.An alien who is not eligible for Medicaid because of the time limitations or lack of forty qualifying quarters of social security coverage may be eligible to receive emergency services that are not related to an organ transplant procedure if:

a.The alien has a medical condition, including labor and delivery, manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in:

(1)Placing health in serious jeopardy;

(2)Serious impairment to bodily functions; or (3)Serious dysfunction of any bodily organ or part;

b.The alien meets all other eligibility requirements for Medicaid except the requirements concerning furnishing social security numbers and verification of alien status; and

c.The alien's need for the emergency service continues.

10.Pregnant women who are lawfully present in the United States and are otherwise eligible for Medicaid are not subject to the five-year, forty-quarter ban through the twelve months postpartum coverage.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; January 1, 2010; January 1, 2011; January 1, 2014; January 1, 2022; January 1, 2024. 75-02-02.1-19. Inmates of public institutions.

1.Incarceration status is not a condition of Medicaid eligibility and does not make an individual ineligible. An individual who is an inmate of a public institution who meets all eligibility factors for Medicaid is eligible. Medicaid eligibility for individuals who are inmates of a public institution must be suspended.

2.The period of Medicaid suspension under this section begins the day after the day the individual enters the public institutions and ends the day before the day the individual is discharged from the public institution. A ten-day advanced notice is not required if suspending benefits due to entry into the public institution.

History: Effective December 1, 1991; amended effective July 1, 2003; July 1, 2012; July 1, 2016;

January 1, 2026.

Law Implemented: NDCC 50-24.1-02; 42 CFR 435.1008; 42 CFR 435.1009 75-02-02.1-19.1. Family coverage group.

1.Parents and caretaker relatives, and their spouses, who meet the medically needy technical requirements and the requirements of this section are eligible under the parent and caretaker relative group.

2.Parents and caretaker relatives eligible under the parent and caretaker relative group must be living with a child who is deprived of a biological or adoptive parent's support or care. The child described in this subsection must be under age eighteen.

3.A family may establish deprivation, for purposes of the parent or caretaker relative group, if the family's countable income is within the parent or caretaker relative group income levels and at least one of the caretaker relatives is:

a.Employed less than one hundred hours per month; or

b.Employed more than one hundred hours in the current month, but was employed less than one hundred hours in the previous month and is expected to be employed less than one hundred hours in the following month.

4.This group shall follow a MAGI-based methodology.

History: Effective January 1, 2003; amended effective September 1, 2003; June 1, 2004; April 1, 2008;

January 1, 2014.

Law Implemented: 50-24.1-37; 42 USC 1396a(e), 42 USC 1396u-1 75-02-02.1-19.2. Institutions for mental diseases.

1.An institution for mental diseases is determined by its overall character as that of a facility established and maintained primarily for the care and treatment of individuals with mental diseases.

2.An institution for mental disease consists of more than sixteen beds.

3.Federal financial participation is:

a.Not available to individuals under age sixty-five;

b.Available to individuals age sixty-five and older; and

c.Available to individuals under age twenty-one who have a certification of need.

4.An individual on conditional release or convalescent leave from an institution for mental diseases is not considered to be a patient in that institution for mental diseases. However, an individual who is under age twenty-two and has been receiving inpatient psychiatric services under 42 CFR 440.160 is considered to be a patient in the institution for mental diseases until unconditionally released or, if earlier, the last day of the month in which the patient reaches age twenty-two.

History: Effective January 1, 2026.

Law Implemented: NDCC 50-24.1-02; 42 CFR 435.1008; 42 CFR 435.1009; 42 CFR 440.160 75-02-02.1-20. Transitional and extended Medicaid benefits.

Families that cease to be eligible under the parent and caretaker relative group and who meet the requirements of this section may continue to be eligible for Medicaid benefits without making further application for Medicaid.

1.Families that include at least one individual who was eligible under the parent and caretaker relative group in at least three of the six months immediately preceding the month in which the family became ineligible because of the relative's earned income may continue to be eligible for transitional Medicaid benefits for up to twelve months if:

a.The family has a child living in the home who meets the children's coverage group age requirements;

b.The caretaker relative remains a resident of the state; and

c.At least one member of the family remains employed or shows good cause for not being employed; or

2.Families that include at least one individual who was eligible under the parent and caretaker relative group in at least three of the six months immediately preceding the month in which the family became ineligible wholly or partly as a result of the collection or increased collection of spousal support continue to be eligible for extended Medicaid for four calendar months if:

a.The family has a child living in the home who meets the children's coverage group age requirements; and

b.The caretaker relative remains a resident of the state.

3.A family that seeks to demonstrate eligibility in at least three of the six months immediately preceding the month in which the family became ineligible must have been eligible in this state in the month immediately preceding the month in which the family became ineligible.

4.Children who no longer meet the age requirements under the parent and caretaker relative group are not eligible for transitional or extended Medicaid benefits.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; January 1, 2014; April 1, 2018. 75-02-02.1-21. Continuous eligibility for pregnant women and newborns.

When a pregnant woman, whose pregnancy has been confirmed, becomes eligible for Medicaid, she continues eligible, without regard to any increase in income of the Medicaid unit, while pregnant, for twelve months beginning on the last day of pregnancy, and through the end of the month in which the twelve-month period ends. A child born to a woman who is eligible on the day of the child's birth is eligible and continues to be eligible for Medicaid, without regard to the child's income or assets, for twelve months beginning on the day of birth, and through the end of the month in which the twelvemonth period ends.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; May 1, 2006; January 1, 2023. 75-02-02.1-22. Medicare savings programs.

1.Qualified Medicare beneficiaries are entitled only to Medicare cost-sharing benefits described in subsection 19 of section 75-02-02.1-01, beginning in the month following the month in which the individual is determined eligible.

2.Special low-income Medicare beneficiaries are entitled only to Medicare cost-sharing benefits described in paragraph 2 of subdivision a of subsection 19 of section 75-02-02.1-01. Eligibility may be established for as many as three calendar months prior to the month in which the application was received.

3.Qualifying individuals are entitled only to Medicare cost-sharing benefits described in paragraph 2 of subdivision a of subsection 19 of section 75-02-02.1-01. Eligibility may be established for as many as three calendar months prior to the month in which the application was received unless the individual was in receipt of any other Medicaid benefits for the same period. Eligibility shall be established on a first-come, first-served basis to the extent of funding allocated for coverage of this group under section 1933 of the Act [42 U.S.C. 1396u-3].

4.Individuals eligible for the Medicare part B immunosuppressive drug benefit are entitled to coverage for the Medicare part B immunosuppressive drug benefit only. To be eligible, the individual is required to have Medicare coverage under Medicare end stage renal disease and this benefit ends thirty-six months after a successful transplant.

5.All medically needy technical eligibility factors apply to the Medicare savings programs except as identified in this section.

6.No individual may be found eligible for the Medicare savings programs unless the total value of all nonexcluded assets does not exceed:

a.For periods of eligibility prior to January 1, 2010:

(1)Four thousand dollars for a one-person unit; or (2)Six thousand dollars for a two-person unit.

b.For periods of eligibility on or after January 1, 2010, the asset limit described in 42 U.S.C. 1396d(p)(1)(C).

7.Provisions of this chapter governing asset considerations at section 75-02-02.1-25, valuation of assets at section 75-02-02.1-32, excluded assets at section 75-02-02.1-28.1, and forms of asset ownership at section 75-02-02.1-29 apply to eligibility determinations for Medicare savings programs except:

a.Half of a liquid asset held in common with another Medicare savings program is presumed available;

b.Assets owned by a child, under age twenty-one, in the unit are not considered available in determining eligibility for the child's parent, except that all liquid assets held in common by the child and the parent are considered available to the parent; and

c.Assets owned by a spouse who is not residing with an applicant or recipient are not considered available unless the assets are liquid assets held in common. 8.a.Income calculations must consider income in the manner provided for in section 75-02-02.1-34, income considerations; section 75-02-02.1-37, unearned income; section 75-02-02.1-38, earned income; section 75-02-02.1-38.2, disregarded income; and

section 75-02-02.1-39, income deductions; except:

(1)Married individuals living separate and apart from a spouse are treated as single individuals.

(2)Income disregards in section 75-02-02.1-38.2 are allowed regardless of the individual's living arrangement.

(3)The earned income of any blind or disabled student under age twenty-two is disregarded.

(4)The deductions described in subsections 2, 3, 5, 8, and 9 of section 75-02-02.1-39, income deductions, are not allowed.

(5)The deductions described in subsection 10 and subdivision e of subsection 11 of

section 75-02-02.1-39, income deductions, are allowed regardless of the individual's living arrangement.

(6)Annual title II cost of living allowances effective in January shall be disregarded when determining eligibility for Medicare savings programs for January, February, and March.

b.A qualified Medicare beneficiary is eligible if countable income is equal to or less than one hundred percent of the poverty level applicable to a family of the size involved, and if the individual meets all of the requirements described in this section.

c.A special low-income Medicare beneficiary is eligible if countable income is more than one hundred percent but equal to or less than one hundred twenty percent of the poverty level applicable to a family of the size involved, and if the individual meets all of the requirements described in this section.

d.A qualifying individual is income eligible if countable income is more than one hundred twenty percent, but equal to or less than one hundred thirty-five percent of the poverty level applicable to a family of the size involved, and if the individual meets all of the requirements described in this section.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; May 1, 2006; January 1, 2010; January 1, 2022; January 1, 2024. 75-02-02.1-23. Eligibility of qualified disabled and working individuals.

1.Qualified disabled and working individuals are entitled only to Medicare cost-sharing benefits described in paragraph 1 of subdivision a of subsection 19 of section 75-02-02.1-01.

2.No person may be found to be a qualified disabled and working individual unless the total value of all assets not described in subsection 4 does not exceed:

a.Four thousand dollars for a one-person unit; or

b.Six thousand dollars for a two-person unit.

3.Provisions of this chapter governing asset considerations at section 75-02-02.1-25, valuation of assets at section 75-02-02.1-32, excluded assets at section 75-02-02.1-28.1, and forms of asset ownership at section 75-02-02.1-29 apply to qualified disabled and working individual eligibility determinations except:

a.Half of a liquid asset held in common with another qualified disabled and working individual is presumed available;

b.Assets owned by a child, under age twenty-one, in the unit are not considered available in determining eligibility for the child's parent except that all liquid assets held in common by the child and the parent are considered available to the parent; and

c.Assets owned by a spouse who is not residing with an applicant for or recipient are not considered available unless they are liquid assets held in common. 4.a.Income methodologies used in the supplemental security income program shall be used in determining income eligibility.

b.Annual title II cost of living allowances effective in January shall be disregarded when determining qualified disabled and working individual eligibility for January, February, and March.

c.A qualified disabled and working individual is eligible if countable income is equal to or less than two hundred percent of the poverty level applicable to a family of the size involved, and if the individual meets all of the requirements described in this section; but is otherwise ineligible for Medicaid.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003. 75-02-02.1-24. Spousal impoverishment prevention.

1.For purposes of this section:

a."Community spouse" means the spouse of an institutionalized spouse or the spouse of a home and community-based services spouse.

b."Family member" means only a minor or dependent child, dependent parent, or dependent sibling of the institutionalized spouse, home and community-based services spouse, or community spouse who is residing with the community spouse. For purposes of applying this definition, a family member is dependent only if that family member is, and may properly be, claimed as a dependent on the federal income tax return filed by the institutionalized spouse or home and community-based services spouse, or the community spouse, or filed jointly by both.

c."Home and community-based services spouse" means an individual who:

(1)Requires care of the type provided in a nursing facility, but chooses to receive home and community-based services in the community; and (2)Is married to a spouse who resides in the community at least one day of each

d."Institutionalized spouse" means an individual who:

(1)Requires care in a medical institution, a nursing facility, a swing bed, or the state hospital and, at the beginning of the individual's institutionalization, was likely to be in the facility for at least thirty consecutive days even though the individual does not actually remain in the facility for thirty consecutive days; and (2)Is married to a spouse who resides in the community at least one day of each

e."Monthly maintenance needs allowance" means for a community spouse, the minimum amount permitted under section 1924(d)(3) of the Act [42 U.S.C. 1396r-5(d)(3)], as adjusted pursuant to section 1924(g) of the Act [42 U.S.C. 1396r-5(g)]. 2.a.At the request of an institutionalized spouse, a home and community-based services spouse, or a community spouse, at the beginning of the first continuous period of institutionalization of the institutionalized spouse, or the beginning of the first continuous period of receipt of home and community-based services by a home and community-based services spouse, and upon receipt of relevant documentation of assets, the total value described in subdivision b must be assessed and documented.

b.There shall be computed, as of the beginning of the first continuous period of institutionalization of the institutionalized spouse, or as of the beginning of the first continuous period of receipt of home and community-based services by a home and community-based services spouse:

(1)The total value of the countable assets to the extent either the institutionalized spouse or the community spouse, or the home and community-based services spouse and the community spouse, has an ownership interest; and (2)A spousal share, which is equal to one-half of all countable assets, but not less than the minimum amount permitted under section 1924(f)(2)(A)(i) of the Act [42 U.S.C. 1396r-5(f)(2)(A)(i)], as adjusted pursuant to section 1924(g) of the Act [42 U.S.C. 1396r-5(g)], and not more than the maximum amount permitted under section 1924(f)(2)(A)(ii)(II) of the Act [42 U.S.C. 1396r-5(f)(2)(A)(ii)(II)], as adjusted pursuant to section 1924(g) of the Act [42 U.S.C. 1396r-5(g)].

c.In determining the assets of the institutionalized spouse at the time of application, all countable assets held by the institutionalized spouse, the community spouse, or both, must be considered available to the institutionalized spouse to the extent they exceed the community spouse countable asset allowance.

d.In determining the assets of the home and community-based services spouse at the time of application, all countable assets held by the home and community-based services spouse, the community spouse, or both, must be considered available to the home and community-based services spouse to the extent they exceed the community spouse asset allowance.

e.During the continuous period in which the spouse is in an institution or receiving home and community-based services, and after the month in which an institutionalized spouse or a home and community-based services spouse is determined to be eligible for benefits under this chapter, no countable assets of the community spouse may be deemed available to the institutionalized spouse or home and community-based services spouse.

Assets owned by the community spouse are not considered available to the institutionalized spouse or home and community-based services spouse during this continuous period of eligibility. A transfer of assets or income by the community spouse for less than fair market value is governed by section 75-02-02.1-33.1 and must be considered in determining continuing eligibility of the institutionalized spouse or home and community-based services spouse.

f.The institutionalized spouse or home and community-based services spouse is not ineligible by reason of assets determined under subdivision c or d to be available for the cost of care if:

(1)The institutionalized spouse or the home and community-based services spouse has assigned to the state any rights to support from the community spouse; or (2)It is determined that a denial of eligibility would work an undue hardship because the presumption described in subsection 3 of section 75-02-02.1-25 has been rebutted.

g.An institutionalized spouse or home and community-based services spouse is allowed the medically needy asset limit of three thousand dollars.

h.An institutionalized spouse or a home and community-based services spouse is asset eligible if the total value of all countable assets owned by both spouses is less than the total of the community spouse countable asset allowance and the institutionalized spouse asset limit or home and community-based services asset limit, as applicable. The assets may be owned by either spouse provided that the requirements of subdivision i are complied with.

i.An institutionalized spouse or a home and community-based services spouse may transfer an amount equal to the community spouse countable asset allowance, but only to the extent the assets of the institutionalized spouse or home and community-based services spouse are transferred to, or for the sole benefit of, the community spouse.

Such transfers, if made by an individual who has otherwise qualified for Medicaid benefits, must be completed before the next regularly scheduled redetermination of eligibility. During this period, such assets are not counted as available to the institutionalized spouse even though the assets are not yet transferred.

(1)If an eligible institutionalized spouse or home and community-based services spouse exceeds the asset limits due to an increase in the value of assets or the receipt of assets not previously owned, the institutionalized spouse or home and community-based services spouse may transfer additional assets to the community spouse equal to no more than the current community spouse countable asset allowance less the total value of assets owned by the community spouse, previously transferred to, or for the sole benefit of, the community spouse under this subdivision.

(2)If a transfer made under this subdivision causes the total value of all assets owned by the community spouse immediately prior to the transfer, plus the value of all assets transferred at any time under this subdivision, to equal or exceed the current community spouse asset allowance, no further transfer may be made under paragraph 1.

(3)If a court has entered an order against an institutionalized spouse for the support of a community spouse, assets required by such order to be transferred, by the institutionalized spouse to the community spouse, may not be counted as available to the institutionalized spouse even though the assets are not yet transferred.

3.A community spouse may retain or receive assets, which do not exceed the community spouse countable asset allowance, for purposes of determining the Medicaid eligibility of the institutionalized spouse. The community spouse countable asset allowance means the spousal share determined under paragraph 2 of subdivision b of subsection 2, as adjusted pursuant to section 1924(g) of the Act [Pub. L. 105-33; 111 Stat. 549; 42 U.S.C. 1396r-5(g)] plus:

a.Any additional amount transferred under a court order in the manner and for the purpose described in paragraph 4 of subdivision i of subsection 2; or

b.Any additional amount established through a fair hearing conducted under subsection 6.

4.Countable assets include all assets that are not specifically excluded. The provisions of

section 75-02-02.1-28.1 governing asset exclusions apply to this section.

5.Income calculations must consider income in the manner provided for in section 75-02-02.1-34, income considerations, section 75-02-02.1-37, unearned income, section 75-02-02.1-38, earned income, section 75-02-02.1-38.1, post-eligibility treatment of income,

section 75-02-02.1-38.2, disregarded income, section 75-02-02.1-39, income deductions, and

section 75-02-02.1-40, income levels, except:

a.No income of the community spouse may be deemed available to an institutionalized spouse during any month in which an institutionalized spouse is in the institution, or to a home and community-based services spouse during any month in which that spouse receives home and community-based services; and

b.No institutionalized spouse may be income eligible for Medicaid in any month in which that spouse's income, after all income disregards and deductions other than the deduction of amounts provided to a spouse or family member, exceed an amount equal to that individual's current monthly medical expenses, not covered by a third party, plus the medically needy income level for one.

6.The provisions of this section describing the treatment of income and assets for the community spouse do not describe that treatment for the purposes of determining Medicaid eligibility for the community spouse or for children of the community spouse. 7.a.Notice must be provided of the amount of the community spouse income allowance, of the amount of any family allowances, of the method of computing the amount of the community spouse countable asset allowance, and of the right to a fair hearing respecting ownership or availability of income and assets, and the determination of the community spouse monthly income or countable asset allowance. The notice must be provided, upon a determination of Medicaid eligibility of an institutionalized spouse, to both spouses, and upon a subsequent request by either spouse or a representative acting on behalf of either spouse, to the spouse making the request.

b.A community spouse, or an institutionalized spouse or a home and community-based services spouse, is entitled to a fair hearing under chapter 75-01-03 if application for Medicaid has been made on behalf of the institutionalized spouse or home and community-based services spouse and either spouse is dissatisfied with a determination of:

(1)The community spouse monthly income allowance;

(2)The amount of monthly income otherwise available to the community spouse as determined in calculating the community spouse monthly income allowance;

(3)The computation of the spousal share of countable assets;

(4)The attribution of countable assets; or (5)The determination of the community spouse countable asset allowance.

c.Any hearing respecting the determination of the community spouse countable asset allowance must be held within thirty days of the request for the hearing.

d.If either spouse establishes that the community spouse needs income, above the level provided by the monthly maintenance needs allowance, due to exceptional circumstances resulting in significant financial duress, the monthly maintenance needs allowance for that spouse must be increased to an amount adequate to provide necessary additional income. e.(1)If either spouse establishes that the assets included within the community spouse countable asset allowance generate an amount of income inadequate to raise the community spouse's income to the monthly maintenance needs allowance, to the extent that total assets permit, the community spouse countable asset allowance for that spouse must be increased to an amount adequate to provide such a monthly maintenance needs allowance. For purposes of calculations made under this subdivision, all income of the institutionalized spouse that could be made available to a community spouse, in accordance with the calculation of the community spouse monthly income allowance under this subsection, must be treated as having been made available before an additional amount of assets may be allocated to the community spouse under this subdivision.

(2)To establish a need for an increased asset allowance under this subdivision, the applicant, recipient, or the community spouse must provide verification of all income and assets of the community spouse.

(3)The amount of assets adequate to provide a monthly maintenance needs allowance for the community spouse must be based on the cost of a single premium lifetime annuity selected by the department that provides monthly payments equal to the difference between the monthly maintenance needs allowance and other income of both spouses not generated by either spouse's countable assets.

(4)The monthly maintenance needs allowance amount upon which calculations under this subdivision are made must be the amount in effect upon filing of the appeal.

(5)The estimate of the cost of an annuity described in paragraph 3 must be substituted for the amount of assets attributed to the community spouse if the amount of assets previously determined is less than the estimate. If the amount of assets attributed to the community spouse prior to the hearing is greater than the estimate of the cost of an annuity described in paragraph 3, the attribution of assets to the community spouse made prior to the hearing must be affirmed.

(6)No applicant, recipient, or community spouse is required to purchase an annuity as a condition of the applicant or recipient's eligibility for Medicaid benefits.

8.Any transfer of an asset or income is a disqualifying transfer under section 75-02-02.1-33.1 or 75-02-02.1-33.2, whether made by a community spouse, a home and community-based services spouse, or an institutionalized spouse, unless specifically authorized by this section.

The income that may be received by or deemed provided to an ineligible community spouse, and the asset amounts that an ineligible community spouse may retain, are intended to allow that community spouse to avoid impoverishment. They are not intended to allow the community spouse to make transfers of assets or income, for less than adequate consideration, which would disqualify the institutionalized spouse or home and community-based services spouse, if made by the institutionalized spouse or home and community-based services spouse.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; October 1, 1993; July 1, 2003; June 1, 2004; May 1, 2006; April 1, 2008; January 1, 2011; April 1, 2016; January 1, 2022; January 1, 2026.

Law Implemented: NDCC 50-24.1-02; 42 USC 1396r-5 75-02-02.1-24.1. Breast and cervical cancer early detection program.

The breast and cervical cancer early detection group consists of individuals under age sixty-five who:

1.Are uninsured and not otherwise eligible for Medicaid;

2.Have been screened for breast and cervical cancer under the centers for disease control and prevention's national breast and cervical cancer early detection program and have been found to require treatment for breast cancer, cervical cancer, or a precancerous condition relating to breast cancer or cervical cancer;

3.Meet the requirements of section 75-02-02.1-16, relating to residence, section 75-02-02.1-18, relating to citizenship, and section 75-02-02.1-19, relating to inmates of public institutions; and

4.Become eligible on the first day of the later of the month of diagnosis or the first month of retroactive eligibility, as provided in section 75-02-02.1-10, and continue to be eligible until they no longer require treatment for breast or cervical cancer or a precancerous condition or no longer meet the requirements of this subsection.

History: Effective July 1, 2003; amended effective April 1, 2020.

Law Implemented: NDCC 50-24.1-17 75-02-02.1-24.2. Eligibility for workers with disabilities.

1.An individual shall be enrolled as a member of the workers with disabilities coverage if that individual:

a.Is gainfully employed;

b.Is at least sixteen, but less than sixty-five, years of age;

c.Is disabled as determined by the social security administration or the state review team;

d.Meets the requirements of this section; and

e.Is not in receipt of any other Medicaid benefits under this chapter other than coverage as a qualified Medicare beneficiary or a special low-income Medicare beneficiary.

2.An individual may be regarded as gainfully employed only if, taking all factors into consideration, the individual shows that the activity asserted as employment:

a.Produces a product or service that someone would ordinarily be employed to produce and for which payment is received;

b.Reflects a relationship of employer and employee or producer and customer;

c.Requires the individual's physical effort for completion of job tasks, or, if the individual has the skills and knowledge to direct the activity of others, reflects the outcome of that direction; and

d.The employment setting is not primarily an evaluative or experiential activity.

3.Asset considerations provided under section 75-02-02.1-25, asset limits provided under

section 75-02-02.1-26, and excluded assets provided under section 75-02-02.1-28.1 are applicable to the workers with disabilities coverage except that each individual enrolled as a member of the workers with disabilities coverage group is allowed an additional ten thousand dollars in assets.

4.Except for Indians who are exempt from cost-sharing under federal law, an individual who has not paid a one-time enrollment fee of one hundred dollars may not be enrolled.

5.Any individual who fails to pay the premium established under this section for three months shall be disenrolled and may not be reenrolled thereafter without first reestablishing eligibility under this section and paying all outstanding enrollment fees and premiums. Any month in which no premium is due shall not be counted as a month in which the individual failed to pay a premium.

6.Payments received by the department from an individual claiming eligibility under this section shall be credited first to unpaid enrollment fees and then to the oldest unpaid premium. The department shall credit payments on the day received, provided that credit for any payment made by an instrument that is not honored shall be reversed. The department may require any individual who has attempted payment by a dishonored instrument to make subsequent payments in a specified manner.

7.A monthly premium is due on the tenth day of each month for which coverage is sought and shall be equal to five percent of the individual's gross countable income. This requirement does not apply to Indians who are exempt from cost-sharing under federal law.

8.No individual may be found eligible under this section if the individual and the individual's family have total net income equaling or exceeding two hundred twenty-five percent of the poverty level.

9.This section becomes effective on the effective date of approved amendments to the Medicaid state plan sufficient to secure federal financial participation in the cost of services provided to individuals found eligible under this section, remains effective as long as federal financial participation continues to be available and state law authorizes such coverage, and is thereafter ineffective.

10.The department may not require the payment of a premium or disenroll an individual for failure to pay a premium or enrollment fee for workers with disabilities coverage during a federally declared emergency if collection of the premium or enrollment fee may impact the receipt of federal funds.

History: Effective June 1, 2004; amended effective August 1, 2005; April 1, 2008; January 1, 2011;

April 1, 2012; January 1, 2022.

Law Implemented: NDCC 50-24.1-02.7, 50-24.1-18.1 75-02-02.1-24.3. Eligibility for children with disabilities.

1.A child must be enrolled as a member of the children with disabilities coverage if that child:

a.Is under age nineteen, including the month the child turns age nineteen;

b.Is disabled;

c.Meets the requirements of this section; and

d.Is not in receipt of any other Medicaid benefits under this chapter.

2.As a condition of eligibility, a child must be enrolled in a health insurance policy if:

a.The child's family has an employer-based health insurance plan available to them; and

b.The employer pays at least fifty percent of the premium.

3.A monthly premium is due on the tenth day of each month for which coverage is sought and is equal to five percent of the family's gross countable income. This premium may be offset by any other health insurance premium the family pays for a health insurance plan that provides coverage for the individual claiming eligibility under this section. This subsection does not apply to Indians who are exempt from cost-sharing under federal law.

4.If the premium established for an individual's coverage under this section is not paid for three months, the individual will be disenrolled and may not be reenrolled without first reestablishing eligibility under this section and paying all outstanding premiums. Any month in which no payment is due may not be counted as a month in which the individual's premium failed to be paid.

5.Payments received by the department from or on behalf of an individual claiming eligibility under this section will be credited first to the oldest unpaid premium. The department will credit payments on the day received, provided that credit for any payment made by an instrument that is not honored will be reversed. The department may require any individual who has attempted payment by a dishonored instrument to make subsequent payments in a specified manner.

6.No individual may be found eligible under this section if the individual and the individual's family have total net income in excess of two hundred fifty percent of the poverty level.

7.This section becomes effective March 1, 2008, remains effective as long as federal financial participation continues to be available and state law authorizes such coverage, and is thereafter ineffective.

8.For purposes of this section, "family" means any member of the Medicaid unit who is a spouse, parent, financially responsible caretaker relative, sibling, or child of the individual requesting benefits under this section.

9.The department may not require the payment of a premium or disenroll an individual for failure to pay a premium for families of children with disabilities coverage during a federally declared emergency if collection of the premium may impact the receipt of federal funds.

History: Effective April 1, 2008; amended effective January 1, 2011; January 1, 2020; January 1, 2022.

Law Implemented: NDCC 50-24.1-31 75-02-02.1-24.4. Hospital presumptive eligibility.

1.For purposes of this section, "qualified hospital" means a hospital or hospital-owned physician practice or clinic that:

a.Is a Medicaid provider;

b.Notifies the department of its election to make presumptive eligibility determinations; and

c.Has been approved by the department to make presumptive eligibility determinations under this section.

2.The department may provide Medicaid benefits during a period of presumptive eligibility, prior to a determination of Medicaid eligibility, to the following individuals:

a.Children through the month they turn nineteen years of age;

b.Former foster care children through the month they turn twenty-six years of age, who were enrolled in Medicaid and were in foster care when they turned eighteen years old;

c.Parents and caretaker relatives of children through the month the children turn nineteen years of age;

d.Pregnant women; and

e.Medicaid expansion group ages nineteen through sixty-four, from the month following the month they turn nineteen years of age through the month prior to the month they turn sixty-five years of age.

3.An applicant shall apply for presumptive eligibility coverage at a qualified hospital. Applicants do not need to be hospitalized. Presumptive eligibility determinations may be made only by qualified hospital employees who are trained and certified to determine presumptive eligibility.

4.The application for presumptive eligibility must be signed by the applicant, an authorized representative, or if the applicant is incompetent or incapacitated and has not designated an authorized representative, someone acting responsibly for the applicant.

5.The presumptive eligibility determination is based on the information reported by the applicant and verification is not required. The applicant shall provide all information the qualified hospital needs to determine presumptive eligibility.

6.Applicants shall attest to each of the following for each household member requesting presumptive eligibility:

a.United States citizen, United States national, or eligible immigrant status;

b.North Dakota residency;

c.Gross income amount;

d.Whether or not the applicant is currently enrolled in Medicaid; and

e.That the applicant does not have any other health insurance coverage that meets minimum essential coverage, as defined in section 5000A(f) of subtitle D of the Internal Revenue Code, as added by section 1401 of the Affordable Care Act, and implementing regulations.

7.MAGI-based methodology must be used to determine presumptive eligibility.

8.The presumptive eligibility period begins on the day the presumptive eligibility determination is made and ends the earlier of:

a.If a Medicaid application has been submitted, the day on which a decision is made on that application; or

b.If a Medicaid application has not been submitted, the last day of the month following the month the presumptive eligibility determination was made.

9.Individuals, excluding pregnant women, are eligible for one period of presumptive eligibility per calendar year. Pregnant women are eligible for presumptive eligibility coverage once per pregnancy.

10.Presumptive eligibility coverage does not include the three-month prior period.

11.An individual may not appeal presumptive eligibility determinations.

12.Qualified hospitals shall:

a.Make presumptive eligibility determinations for applicants without Medicaid or other health care coverage;

b.Assure timely access to care while the presumptive eligibility determination is being made;

c.Ensure all employees assisting in and completing presumptive eligibility determinations follow department regulations and policies for presumptive eligibility determinations;

d.Provide the applicant with notice of the presumptive eligibility determination;

e.Inform applicants at the time of the presumptive eligibility determination that applicants must submit an application for Medicaid to obtain Medicaid coverage beyond the presumptive eligibility period;

f.Assist applicants in completing and submitting an application for Medicaid and children's health insurance program or subsidized insurance through the federally facilitated marketplace;

g.Meet the performance standards as set forth in subsection 13;

h.Ensure all employees assisting in and completing presumptive eligibility applications and determinations attend all presumptive eligibility policy training provided by the department and stay current with changes, including the following:

(1)Participate in all inperson, telephone conference, webinar, and computer-based presumptive eligibility training sessions; and (2)Read all information provided regarding updates and changes to presumptive eligibility policies and regulations; and

i.Provide verification to the department upon request that all employees assisting in and completing presumptive eligibility applications and determinations have completed the training set forth in subdivision h.

13.Qualified hospitals shall meet the following performance standards:

a.Ninety-five percent of applicants are not enrolled in Medicaid at the time the presumptive eligibility determination is made;

b.Ninety percent of applicants determined presumptively eligible by the qualified hospital submit a Medicaid application during the presumptive eligibility period; and

c.Eighty-five percent of applicants that are determined presumptively eligible and submit a Medicaid application during the presumptive eligibility period are determined eligible for Medicaid.

14.Qualified hospitals that do not meet the performance standards set forth in subsection 13 for three consecutive months are required to participate in additional training or other reasonable corrective action measures, or both, provided by the department. If the qualified hospital continues to fail to meet the performance standards for an additional two consecutive months after the training or other corrective action measures, the department will disqualify the qualified hospital.

History: Effective July 1, 2016; amended effective January 1, 2023. 75-02-02.1-25. Asset considerations.

Except as otherwise provided in this chapter, this section applies to all aged, blind, and disabled applicants and recipients of Medicaid.

1.All actually available assets must be considered in establishing eligibility for Medicaid. Assets are actually available when at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the asset available, or to cause the asset to be made available. This subsection does not supersede other provisions of this chapter which describe or require specific treatment of assets, or which describe specific circumstances which require a particular treatment of

2.The financial responsibility of any individual for any applicant or recipient of Medicaid is limited to the responsibility of spouse for spouse and parents for a disabled child under age eighteen.

Such responsibility is imposed upon applicants or recipients as a condition of eligibility for Medicaid. Except as otherwise provided in this section, the assets of the spouse and parents are considered available to an applicant or recipient, even if those assets are not actually contributed. For purposes of this subsection, biological and adoptive parents, but not stepparents, are treated as parents.

3.It is presumed that all spousal assets are actually available. In order to rebut this presumption, the applicant or recipient must demonstrate that the spousal assets are unavailable despite reasonable and diligent efforts to access such assets. No applicant or recipient who has a statutory or common-law cause of action for support out of the assets of a spouse, but who has failed to diligently pursue that cause of action, may rebut the presumption. Any applicant or recipient who documents any of the following circumstances will have rebutted the presumption without further proof:

a.A court order, entered following a contested case, determines the amounts of support that a spouse must pay to the applicant or recipient;

b.The spouse from whom support could ordinarily be sought, and the property of such spouse, is outside the jurisdiction of the courts of the United States or any of the United States;

c.The applicant or recipient has been subject to marital separation, with or without court order, and the parties have not separated for the purpose of securing Medicaid benefits; or

d.In cases where section 75-02-02.1-24 applies, the assets are those properly treated as belonging to the community spouse.

4.All parental assets are considered actually available to a disabled child under age eighteen unless the child is living:

a.Independently; or

b.With a parent who is separated from the child's other parent, with or without court order, if the parents did not separate for the purpose of securing Medicaid benefits, in which case only the assets of the parent with whom the child is living are considered available.

5.When considering the availability of assets from an estate, assets received from the estate of a spouse, or a parent who was providing support, are available as of the date of the death of the person who was providing such support. Assets received from the estate of any other person are available at the earlier of:

a.The day on which the assets are received from the estate; or

b.Six months after the person's death.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; May 1, 2006; April 1, 2012. 75-02-02.1-26. Asset limits.

In all instances, including determinations of equity, property must be realistically evaluated in accord with current fair market value. No one subject to an asset limit may be found eligible for Medicaid unless the combined equity value of the Medicaid unit's assets of whatever nature, not excluded pursuant to section 75-02-02.1-28 or section 75-02-02.1-28.1, do not exceed:

1.For individuals who seek benefits as members of the categorically needy or medically needy aged, blind, and disabled groups:

a.Three thousand dollars for a one-person unit;

b.Six thousand dollars for a two-person unit; and

c.An additional amount of twenty-five dollars for each member of the unit in excess of two;

2.For individuals who seek benefits as qualified Medicare beneficiaries, qualifying individuals, or special low-income Medicare beneficiaries pursuant to section 75-02-02.1-22, the asset limits provided in that section; or

3.For individuals who seek benefits as qualified disabled and working individuals pursuant to

section 75-02-02.1-23, the asset limits provided in that section.

History: Effective December 1, 1991; amended effective July 1, 1993; July 1, 2003; April 1, 2012. 75-02-02.1-27. Exempt assets.

Repealed effective April 1, 2012. 75-02-02.1-28. Excluded assets.

Except as provided in section 75-02-02.1-28.1, the following types of assets will be excluded in determining if the available assets of an applicant or recipient exceed asset limits:

1.The home occupied by the Medicaid unit, including trailer homes being used as living quarters.

2.Personal effects, wearing apparel, household goods, and furniture.

3.One motor vehicle.

4.Indian trust or restricted lands and the proceeds from the sale thereof, so long as those proceeds are impressed with the original trust.

5.Indian per capita funds and judgment funds awarded by either the Indian claims commission or the court of claims after October 19, 1973, interest and investment income accrued on such Indian per capita or judgment funds while held in trust, and purchases made using interest or investment income accrued on such funds while held in trust. The funds must be identifiable and distinguishable from other funds. Commingling of per capita funds, judgment funds, and interest and investment income earned on those funds, with other funds, results in loss of the exemption. 6.a.In determining the eligibility of an individual with respect to skilled nursing services, swing-bed, or home and community-based benefits, the individual will be ineligible for those Medicaid benefits if the individual's equity interest in the individual's home exceeds five hundred thousand dollars.

b.The dollar amount specified in this subsection will be increased, beginning with 2011, from year to year based on the percentage increase in the consumer price index for all urban consumers, all items, United States city average, rounded to the nearest one thousand dollars.

c.This subsection does not apply to an individual whose spouse, or child who is under age twenty-one or is blind or disabled, lawfully resides in the individual's home.

d.This subsection may not be construed as preventing an individual from using a reverse mortgage or home equity loan to reduce the individual's total equity interest in the home.

e.This subsection applies only to individuals who made application for Medicaid with respect to skilled nursing facility services, swing-bed, or home and community-based benefits on or after January 1, 2006. 7.a.Notwithstanding any other provision to the contrary, the assets of an individual must be disregarded when determining Medicaid eligibility in an amount equal to the insurance benefit payments that are made to or on behalf of an individual who is a beneficiary under a long-term care insurance policy that:

(1)Covers an insured who was a resident of North Dakota when coverage first became effective under the policy;

(2)Is a qualified long-term care insurance policy, as defined in section 7702B(b) of the Internal Revenue Code of 1986, issued not earlier than the effective date of the state plan amendment described in subdivision b;

(3)The agency determines meets the requirements of the long-term care insurance model regulations and the long-term care insurance model act promulgated by the national association of insurance commissioners as adopted as of October 2000, or the state insurance commissioner certifies that the policy meets such requirements;

(4)Is sold to an individual who:

(a)Has not attained age sixty-one as of the date of purchase, if the policy provides compound annual inflation protection;

(b)Has attained age sixty-one but has not attained age seventy-six as of the date of purchase, if the policy provides some level of inflation protection; or (c)Has attained age seventy-six as of the date of purchase.

b.This subsection applies only to individuals who have purchased a long-term care insurance policy described in this subsection with an issue date on or after the date specified in an approved Medicaid state plan amendment that provides for the disregard of assets:

(1)To the extent that payments are made under such a long-term care insurance policy; or (2)Because an individual has received or is entitled to receive benefits under such a long-term care insurance policy.

8.Property that is essential to earning a livelihood.

a.Property may be excluded as essential to earning a livelihood only during months in which a member of the Medicaid unit is actively engaged in using the property to earn a livelihood, or during months when the Medicaid unit is not actively engaged in using the property to earn a livelihood, if the Medicaid unit shows that the property has been in such use and there is a reasonable expectation that the use will resume:

(1)Within twelve months of the last use; or (2)If the nonuse is due to the disabling condition of a member of the Medicaid unit, within twenty-four months of the last use.

b.Property consisting of an ownership interest in a business entity that employs anyone whose assets are used to determine eligibility may be excluded as property essential to earning a livelihood if:

(1)The individual's employment is contingent upon ownership of the property; or (2)There is no ready market for the property.

c.A ready market for property consisting of an ownership interest in a business entity exists if the interest may be publicly traded. A ready market does not exist if there are unreasonable limitations on the sale of the interest, such as a requirement that the interest be sold at a price substantially below its actual value or a requirement that effectively precludes competition among potential buyers.

d.Property currently enrolled in the conservation reserve program is considered to be property essential to earning a livelihood.

e.Property from which a Medicaid unit is receiving only rental or lease income is not essential to earning a livelihood.

f.Liquid assets, to the extent reasonably necessary for the operation of a trade or business, are considered to be property essential to earning a livelihood. Liquid assets may not otherwise be treated as essential to earning a livelihood.

9.Property which is not saleable without working an undue hardship. Such property may be excluded no earlier than the first day of the month in which good-faith attempts to sell are begun, and continues to be excluded only for so long as the asset continues to be for sale and until a bona fide offer for at least seventy-five percent of the property's fair market value is made. Good-faith efforts to sell must be repeated at least annually in order for the property to continue to be excluded.

a.Persons seeking to establish retroactive eligibility must demonstrate that good-faith efforts to sell were begun and continued in each of the months for which retroactive eligibility is sought. Information concerning attempts to sell, which demonstrate that an asset is not saleable without working an undue hardship, are relevant to establishing eligibility in the month in which the good-faith efforts to sell are begun, but are not relevant to months prior to that month and do not relate back to prior months.

(1)A good-faith effort to sell real property or a mobile home must be made for at least three calendar months in which no bona fide offer for at least seventy-five percent of the property's fair market value is received before the property can be shown to be not saleable without working an undue hardship. The three calendar months must include a good-faith effort to sell through the regular market for three calendar months.

(2)A good-faith effort to sell property other than real property, a mobile home, or an annuity must be made for at least thirty days in which no bona fide offer for at least seventy-five percent of the property's fair market value is received before the property can be shown to be not saleable without working an undue hardship.

b.Property may not be shown to be not saleable without working an undue hardship if the owner of the property fails to take action to collect amounts due and unpaid with respect to the property or otherwise fails to assure the receipt of regular and timely payments due with respect to the property. 10.a.Any pre-need burial contracts, prepayments, or deposits up to the amount set by the department in accordance with state law and the Medicaid state plan, which are designated by an applicant or recipient for the burial of the applicant or recipient.

Earnings accrued on the total amount of the designated burial fund are excluded.

(1)The burial fund must be identifiable and irrevocable.

(2)The value of an irrevocable burial arrangement shall be considered toward the burial exclusion.

(3)The prepayments on a whole life insurance policy or annuity are the lesser of the face value or the premiums that have been paid.

(4)Any fund, insurance, or other property given to another person or entity in contemplation that its value will be used to meet the burial needs of the applicant or recipient must be irrevocable.

(5)An applicant shall be determined eligible for the three-month prior period when a burial fund is established at the time of application if the value of all assets are within the Medicaid burial fund exclusion and asset limit amounts for each of the three prior months. Future earnings on the newly established burial fund must be excluded.

b.A burial plot for each family member.

11.Home replacement funds, derived from the sale of an excluded home, and if intended for the purchase of another excluded home, until the last day of the third month following the month in which the proceeds from the sale are received. This asset must be identifiable and not commingled with other assets.

12.Unspent assistance, and interest earned on unspent assistance, received under the Disaster Relief and Emergency Assistance Act of 1974 [Pub. L. 93-288] or some other federal statute, because of a presidentially declared major disaster, and comparable disaster assistance received from a state or local government, or from a disaster assistance organization. This asset must be identifiable and not commingled with other assets.

13.Payments, interest earned on the payments, and in-kind items received for the repair or replacement of lost, damaged, or stolen exempt or excluded assets are excluded for nine months, and may be excluded for an additional twenty-one months, if circumstances beyond the person's control prevent the repair or replacement of the lost, damaged, or stolen assets, and keep the person from contracting for such repair or replacement. This asset must be identifiable and not commingled with other assets.

14.For nine months, beginning after the month of receipt, unspent assistance received from a fund established by a state to aid victims of crime, to the extent that the applicant or recipient demonstrates that such amount was paid in compensation for expenses incurred or losses suffered as a result of a crime. This asset must be identifiable and not commingled with other

15.Payments from a fund established by a state as compensation for expenses incurred or losses suffered as a result of a crime. This asset must be identifiable and not commingled with other assets.

16.Payments made pursuant to the Confederate Tribes of the Colville Reservation Grand Coulee Dam Settlement Act, [Pub. L. 103-436; 108 Stat. 4577 et seq.]. This asset must be identifiable and not commingled with other assets.

17.Stock in regional or village corporations held by natives of Alaska issued pursuant to section 7 of the Alaska Native Claims Settlement Act, [Pub. L. 92-203; 42 U.S.C. 1606].

18.For nine months beginning after the month of receipt, any educational scholarship, grant, or award and any fellowship or gift, or portion of a gift, used to pay the cost of tuition and fees at any educational institution. This asset must be identifiable and not commingled with other

19.For nine months beginning after the month of receipt, any income tax refund, any earned income tax credit refund, or any advance payments of earned income tax credit. This asset must be identifiable and not commingled with other assets.

20.Assets set aside, by a blind or disabled, but not an aged, supplemental security income recipient, as a part of a plan to achieve self-support which has been approved by the social security administration.

21.The value of a life estate.

22.Allowances paid to children of Vietnam veterans who are born with spina bifida. This asset must be identifiable and not commingled with other assets.

23.The value of mineral acres.

24.Funds, including interest accruing, maintained in an individual development account established under title IV of the Assets for Independence Act, as amended [Pub. L. 105-285; 42 U.S.C. 604, note].

25.Property connected to the political relationship between Indian tribes and the federal government which consists of:

a.Any Indian trust or restricted land, or any other property under the supervision of the secretary of the interior located on a federally recognized Indian reservation, including any federally recognized Indian tribe's pueblo or colony, and including Indian allotments on or near a reservation as designated and approved by the bureau of Indian affairs of the department of interior.

b.Property located within the most recent boundaries of a prior federal reservation, including former reservations in Oklahoma and Alaska native regions established by the Alaska Native Claims Settlement Act.

c.Ownership interests in rents, leases, royalties, or usage rights related to natural resources (including extraction of natural resources or harvesting of timber, other plants and plant products, animals, fish, and shellfish) resulting from the exercise of federally protected rights.

d.Property with unique Indian significance such as ownership interests in or usage rights to items not covered by subdivisions a through c that have unique religious, spiritual, traditional, or cultural significance, or rights that support subsistence or a traditional lifestyle according to applicable tribal law or custom.

26.Funds held in retirement plans that are considered qualified retirement plans in the Internal Revenue Code [26 U.S.C.].

27.A charitable gift annuity that is irrevocable and may not be assigned to another person.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; August 1, 2005; April 1, 2008; January 1, 2010; January 1, 2011; April 1, 2012; April 1, 2014; April 1, 2018; January 1, 2020.

Law Implemented: NDCC 50-24.1-02, 50-24.1-02.3 75-02-02.1-28.1. Excluded assets for Medicare savings programs, qualified disabled and working individuals, and spousal impoverishment prevention.

1.An asset may be excluded for purposes of Medicare savings programs, qualified disabled and working individuals, and spousal impoverishment prevention only if this section provides for the exclusion. An asset may be excluded under this section only if the asset is identified.

2.The assets described in subsections 2 through 5 and subsections 8, 9, and 11 through 27 of

section 75-02-02.1-28 are excluded.

3.A residence occupied by the individual, the individual's spouse, or the individual's dependent relative is excluded for Medicare savings programs and qualified disabled and working individuals. A residence occupied by the community spouse is excluded for spousal impoverishment prevention cases. The residence may include a mobile home suitable for use, and being used, as a principal place of residence. The residence remains excluded during temporary absence of the individual from the residence so long as the individual intends to return. Renting or leasing part of the residence to a third party does not affect this definition.

For purposes of this subsection:

a."Dependent" means an individual who relies on another for medical, financial, and other forms of support, provided that an individual is financially dependent only when another individual may lawfully claim the financially dependent individual as a dependent for federal income tax purposes;

b."Relative" means the parent, child, stepparent, stepchild, grandparent, grandchild, brother, sister, stepbrother, stepsister, aunt, uncle, niece, nephew, or first cousin, whether by birth or adoption, and whether by whole or half-blood, of the individual or the individual's current or former spouse; and

c."Residence" includes all contiguous lands, including mineral interests, upon which it is located.

4.Burial funds of up to one thousand five hundred dollars each, plus earnings on excluded burial funds, held for the individual and for the individual's spouse, are excluded from the date of application. Burial funds may consist of revocable burial accounts, revocable burial trusts, other revocable burial arrangements including the value of installment sales contracts for burial spaces, cash, financial accounts such as savings or checking accounts, or other financial instruments with definite cash value, such as stocks, bonds, or certificates of deposit.

The fund must be unencumbered and available for conversion to cash on very short notice.

The fund may not be commingled with non-burial-related assets, and must be identified as a burial fund by title of account or a signed statement. Life or burial insurance designated under subsection 10 must be considered at face value toward meeting the burial fund exclusion.

Cash surrender value of an individual's life insurance not excluded under subsection 10 may be applied toward the burial fund exclusion.

5.A burial space or agreement which represents the purchase of a burial space, paid for in full, for the individual, the individual's spouse, or any other member of the individual's immediate family is excluded. The burial space exclusion is in addition to the burial fund exclusion set forth in subsection 4. Only one item intended to serve a particular burial purpose, per individual, may be excluded. For purposes of this subsection:

a."Burial space" means a burial plot, gravesite, crypt, or mausoleum; a casket, urn, niche, or other repository customarily and traditionally used for a deceased's bodily remains; a vault or burial container; a headstone, marker, or plaque; and prepaid arrangements for the opening and closing of the gravesite or for care and maintenance of the gravesite;

b."Other member of the individual's immediate family" means the individual's parents, minor or adult children, siblings, and the spouses of those individuals, whether the relationship is established by birth, adoption, or marriage, except that a relationship established by marriage ends when the marriage ends.

6.At the option of the individual, and in lieu of, but not in addition to, the burial fund described in subsection 4 and the burial space described in subsection 5, the Medicaid burial described in subsection 3 of section 75-02-02.1-28 may be excluded. This optional exclusion is not available to qualified disabled and working individuals or to community spouses.

7.Property essential to self-support is excluded.

a.Up to six thousand dollars of the equity value of nonbusiness, income-producing property, which produces annual net income at least equal to six percent of the excluded amount, may be excluded. Two or more properties may be excluded if each property produces at least a six percent annual net return, but no more than a total of six thousand dollars of the combined equity value of the properties may be excluded. Equity in such property is a countable asset to the extent that equity exceeds six thousand dollars. Equity in such property is a countable asset if it produces an annual net income of less than six percent of equity.

b.Up to six thousand dollars of the equity value of nonbusiness property used to produce goods and services essential to daily activities is excluded. Such nonbusiness property is used to produce goods and services essential to daily activities when, for instance, it is used to grow produce or livestock solely for consumption in the individual's household.

Equity in such property is a countable asset to the extent that equity exceeds six thousand dollars.

c.To be excluded, property essential for self-support must be in current use, or, if not in current use, must have been in such use, and there must be a reasonable expectation that the use will resume, and, with respect to property described in subdivision a, the annual return test must be met:

(1)Within twelve months of the last use;

(2)If the nonuse is due to the disabling condition of the applicant or recipient, or, with respect to spousal impoverishment prevent cases, the community spouse, within twenty-four months of the last use; or (3)With respect to property described in subdivision a, if the property produces less than a six percent return for reasons beyond the control of the applicant or recipient, and there is a reasonable expectation that the property shall again produce a six percent return within twenty-four months of the tax year in which the return dropped below six percent.

d.Liquid assets are not property essential to self-support.

8.Lump sum payments of title II or supplemental security income benefits are excluded for nine consecutive months following the month of receipt.

9.Real property, the sale of which would cause undue hardship to a co-owner, is excluded for so long as the co-owner uses the property as a principal residence, would have to move if the property were sold, and has no other readily available housing. This exclusion is not available in spousal impoverishment cases.

10.Life or burial insurance that generates a cash surrender value is excluded if the face value of all such life and burial insurance policies on the life of that individual total one thousand five hundred dollars or less. This exclusion is not available for applicants or recipients who select the Medicaid burial described in subsection 10 of section 75-02-02.1-28.

11.The value of assistance is excluded if paid with respect to a dwelling unit occupied by the applicant or recipient, or by the applicant's or recipient's spouse, under the United States Housing Act of 1937 [42 U.S.C. 1437 et seq.], the National Housing Act [12 U.S.C. 1701 et seq.], section 101 of the Housing and Urban Development Act of 1965 [12 U.S.C. 1701s], title V of the Housing Act of 1949 [42 U.S.C. 1471 et seq.], or section 202(h) of the Housing Act of 1959 [12 U.S.C. 1701q(h)].

12.Relocation assistance is excluded if provided under title II of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 [42 U.S.C. 4621 et seq.], which is subject to the treatment required by section 216 of such Act [42 U.S.C. 4636].

Relocation assistance provided by a state or local government that is comparable to the described federal relocation assistance is excluded, but only for nine months following the month of receipt.

13.Agent orange payments are excluded.

14.Payments to certain United States citizens of Japanese ancestry, resident Japanese aliens, and eligible Aleuts made under the Wartime Relocation of Civilians Reparations Act [50 U.S.C.

App. 1989 et seq.] are excluded.

15.German reparations payments to survivors of the holocaust, and reparations payments made under sections 500 through 506 of the Austrian General Social Insurance Act are excluded.

History: Effective July 1, 2003; amended effective June 1, 2004; May 1, 2006; April 1, 2008; April 1, 2012; April 1, 2018.

Law Implemented: NDCC 50-24.1-02, 50-24.1-02.3 75-02-02.1-29. Forms of asset ownership.

1.Ownership of real or personal property or liquid assets can take various forms. The first basic consideration is the distinction between real and personal property. Real property relates to land and those things, such as houses, barns, and office buildings, which are more or less permanently attached to it. Personal property describes all other things which are subject to individual rights. Personal property includes liquid assets, but liquid assets are distinguished from other personal property because liquid assets have a market at a price that may not ordinarily be negotiated between buyer and seller. Liquid assets include cash, accounts, publicly traded stocks, bonds, and other securities, and commodities for which there is an established market.

2.Since the various types of property ownership may affect the valuation of the applicant's or recipient's assets, it is important to carefully record information relating to such property.

a."Fee" or "fee simple" ownership is a term applied to real property in which the "owner" has the sole ownership interest. A fee simple interest will, in theory, last as long as the land. Even though one owner dies, that owner has the power to sell or to "will" the property. The resulting series of owners each has a fee simple. A fee simple ownership interest is not changed when the property is mortgaged. The mortgage merely secures the owner's promise to repay a debt. If the debt is not paid, the owner may be obliged to forfeit the property. Fee simple ownership may be individual or may be shared.

b.Shared ownership means that the ownership interest in the property is vested in more than one person. Shared ownership may be by "joint tenancy" or by "tenancy in common". Shared ownership occurs both with real property and with valuable personal property, such as accounts, motor vehicles, and mobile homes.

(1)In joint tenancy, each of two or more joint tenants has an equal interest in the whole property. On the death of one of two joint tenants, the survivor becomes the sole owner. On the death of one of three or more joint tenants, the survivors remain joint tenants in the entire interest. Any joint tenant, acting independently, may convert the joint tenancy to a tenancy in common by selling that person's interest.

(2)In tenancy in common, two or more persons have an undivided fractional interest in the whole property. There is no "right of survivorship" in a tenancy in common. On the death of one of the tenants in a tenancy in common, the surviving tenants gain nothing, and the estate of the deceased tenant thereafter owns the deceased tenant's share.

c.Life estates and remainder interests.

(1)Real property interests may be divided in terms of the time when the owner of the interest is entitled to possession of the property. The owner of a life estate, or life tenant, is entitled to possession of the real property for a period measured by the lifetime of a specific person or persons. A life tenant has the right to use the property and is entitled to any rents or profits from the property. A life tenant may sell the life estate, but such a sale does not change the identity of the person or persons whose lifetimes measure the duration of the life estate. A life estate may be referred to as a "life lease".

(2)When a life estate is created, a right to possess the property, after the death of the life tenant, must also be created. That right is called a "remainder interest", and the owner of that right is called a "remainderman". Upon the death of the life tenant, the remainderman owns the property. The remainderman is not entitled to possess or use the property until the death of the life tenant. The remainderman does have the right to sell the remainder interest.

(3)A life estate may be created in which the right to possess the property returns, upon the death of the life tenant, to the person or entity that created the life estate. The right to have possession of property returned after the end of a life estate is properly called a "reversion", but is treated as a remainder interest for purposes of valuation.

3.The effect of an interest in property, and not what that interest is called, governs the rules to be applied in its treatment for Medicaid purposes.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003. 75-02-02.1-30. Contractual rights to receive money payments.

1.An applicant or recipient may own contractual rights to receive money payments. Such contractual rights are available assets subject to the asset limits. If the applicant or recipient has sold property and received in return a promise of payments of money at a later date, usually to be made periodically, and an attendant promise to return the property if the payments are not made, the arrangement is usually called a "contract for deed". The essential feature of such a contract is the right to receive future payments, usually coupled with a right to get the property back if the payments are not made. Contractual rights to receive money payments also arise out of other types of transactions. The valuable contract document may be called a promissory note, accounts receivable, annuity, mortgage, or by some other name.

2.There is a presumption that the holder's interest in contractual rights to receive money payments is saleable without working an undue hardship. This presumption may be rebutted by evidence demonstrating that the contractual rights are not saleable without working an undue hardship.

History: Effective December 1, 1991; amended effective July 1, 2003. 75-02-02.1-30.1. Annuities.

Repealed pursuant to North Dakota Century Code section 28-32-18.1, effective July 16, 2003. 75-02-02.1-31. Trusts.

1.A trust is an arrangement whereby a person known as the "grantor" or "trustor" gives assets to another person known as the "trustee" with instructions to use the assets for the benefit of a third person known as the "beneficiary". The assets placed in trust are called the "principal" or "corpus". The positions of grantor, trustee, and beneficiary occur in all trusts, but it is not uncommon for a single trust to involve more than one grantor, trustee, or beneficiary. It is also not uncommon for a grantor to establish a trust where the grantor is also a beneficiary or where the trustee is also a beneficiary. "Trusts" includes escrow accounts, investment accounts, conservatorship accounts, and any other legal instruments, devices, or arrangements, whether or not written, managed by an individual or entity with fiduciary obligations. A trust may have an effect on eligibility whether the applicant is a grantor, trustee, or beneficiary.

2.Review of a trust as a part of an eligibility determination includes efforts to ascertain the intent of the grantor. The grantor has no authority or power to determine eligibility or to require a particular outcome in an eligibility determination, and a grantor's efforts to do so may be disregarded.

3.Trusts may be categorized in many ways, but the revocability of a trust is a fundamental characteristic. A revocable trust is a trust that the grantor, or someone acting at the request, direction, or influence of the grantor, has the power to revoke, remove from, or otherwise end the trust. An irrevocable trust is a trust that may not be revoked in any way by the grantor or anyone acting at the request, direction, or influence of the grantor. The determination of trust revocability is not based solely on trust terms stating the trust is irrevocable. A trust is treated as revocable, regardless of its terms, if:

a.The trust reserves a power to amend to the grantor, or grants a power to amend to some other person, unless the power to amend is limited to authority to terminate the trust for impossibility of administration, and the trust also provides for distribution of the trust assets to the primary beneficiary, free of trust;

b.The grantor and the beneficiaries consent to the revocation;

c.The grantor is also the sole beneficiary of the trust;

d.The grantor of a trust and all trust beneficiaries are part of a Medicaid unit;

e.The grantor is a parent, and beneficiaries of the trust include only the grantor, the grantor's spouse, or the grantor's minor children;

f.The trust has been amended subsequent to its establishment, unless the trust was amended under North Dakota Century Code section 59-12-11;

g.The trust provides for termination and disbursement to the grantor upon conditions relating to the grantor during the grantor's lifetime; or

h.The trust provides for revocation or amendment only upon order of a court.

4.In the case of a revocable trust:

a.The corpus of the trust shall be considered assets available to the grantor;

b.Payments from the trust to or for the benefit of grantor, the grantor's spouse, or the grantor's dependent child shall be considered income of the grantor;

c.Any other payments from the trust shall be considered income or assets disposed of by the grantor for purposes of section 75-02-02.1-33.1 or 75-02-02.1-33.2.

5.Once distributed or paid, a distribution or payment from a trust is not a trust asset, but is an asset of, or income to, the distributee or payee. 6.a.For purposes of this subsection:

(1)"Medicaid-qualifying trust" means a trust established, other than by will, by an individual or the individual's spouse, under which the individual may be the beneficiary of all or part of the payments from the trust, and the distribution of such payments is determined by one or more trustees who are permitted to exercise any discretion with respect to the distribution to the individual.

(2)"A trust established by an individual or the individual's spouse" includes trusts created or approved by courts or by the individual or the individual's spouse where the property placed in trust is intended to satisfy or settle a claim made by or on behalf of the individual or the individual's spouse against any third party.

b.The amount from an irrevocable Medicaid-qualifying trust deemed available to the grantor or the grantor's spouse is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the grantor, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the grantor. For purposes of this subdivision, "grantor" means the individual referred to in paragraph 1 of subdivision a.

c.This subsection applies:

(1)Even though the Medicaid-qualifying trust is irrevocable or is established for purposes other than to enable a grantor to qualify for Medicaid; and (2)Whether or not the discretion described in paragraph 1 of subdivision a is actually exercised. 7.a.For purposes of this subsection, "support trust" means a trust which has, as a purpose, the provision of support or care to a beneficiary. The purpose of a support trust is indicated by language such as "to provide for the care, support, and maintenance of . . .";

"to provide as necessary for the support of . . ."; or "as my trustee may deem necessary for the support, maintenance, medical expenses, care, comfort, and general welfare". No particular language is necessary, but words such as "care", "maintenance", "medical needs", or "support" are usually present. The term includes trusts which may also be called "discretionary support trusts", so long as support is a trust purpose and the trustee's discretion is not unfettered. This subsection applies without regard to:

(1)Whether or not the support trust is irrevocable or is established for purposes other than to enable a beneficiary to qualify for Medicaid or any other benefit program where availability of benefits requires the establishment of financial need; or (2)Whether or not the discretion is actually exercised.

b.Except as provided in subdivisions c and d, the amount from a support trust deemed available to the beneficiary, the beneficiary's spouse, and the beneficiary's children is the maximum amount of payments that may be permitted under the terms of the trust to be distributed to the beneficiary, assuming the full exercise of discretion by the trustee or trustees for the distribution of the maximum amount to the beneficiary.

c.A beneficiary of a support trust, under which the distribution of payments to the beneficiary is determined by one or more trustees who are permitted to exercise any discretion with respect to that distribution, may show that the amounts deemed available under subdivision b are not actually available by:

(1)Commencing proceedings against the trustee or trustees in a court of competent jurisdiction;

(2)Diligently and in good faith asserted in the proceeding that the trustee or trustees is required to provide support out of the trust; and (3)Showing that the court has made a determination, not reasonably subject to appeal, that the trustee must pay some amount less than the amount determined under subdivision b.

d.If the beneficiary makes the showing described in subdivision c, the amount deemed available from the trust is the amount determined by the court.

e.Any action by a beneficiary or the beneficiary's representative, or by the trustee or the trustee's representative, in attempting a showing under subdivision c, to make the department, the state of North Dakota, or a county agency a party to the proceeding, or to show to the court that Medicaid benefits may be available if the court limits the amounts deemed available under the trust, precludes the showing of good faith required under subdivision c. 8.a.For purposes of this subsection, "other trust" means any trust for which treatment is not otherwise described in this section or section 75-02-02.1-31.1.

b.The amount from an "other trust" deemed available to a beneficiary of that trust is the greater of the amount which must be distributed to that beneficiary under the terms of the trust, whether or not that amount is actually distributed, and the amount which is actually distributed.

9.An applicant or recipient who is a trustee has the legal ownership of trust property and the legal powers to distribute income or trust assets which are described in the trust. However, those powers may be exercised only on behalf of trust beneficiaries. If the trustee or other members of the Medicaid unit are not also beneficiaries or grantors to whom trust income or assets are treated as available, trust assets are not available to the trustee.

10.Trusts may provide that trust benefits are intended only for a beneficiary's "special needs", and require the trustee to take into consideration the availability of public benefits and resources, including Medicaid. Some trusts may provide that the trust is not to be used to supplant or replace public benefits, including Medicaid benefits. Some trusts may contain terms which attempt to declare or make the determination of the availability of trusts assets for Medicaid purposes. If a trust contains such terms, the amount available to the Medicaid applicant or recipient is the amount provided in this section, assuming, for the purposes of making that determination, that the applicant or recipient is ineligible for Medicaid.

11.A trust is established, with respect to any asset that is a part of the trust corpus, on the date that asset is made subject to the trust by an effective transfer to the trustee.

12.This section applies to any trust to which section 75-02-02.1-31.1 does not apply.

Subsections 1, 2, and 3 apply to trusts described in section 75-02-02.1-31.1.

History: Effective December 1, 1991; amended effective December 1, 1991; October 1, 1993; July 1, 2003; April 1, 2008; April 1, 2010; April 1, 2018.

Law Implemented: NDCC 50-24.1-02; 42 USC 1396a(k) 75-02-02.1-31.1. Trusts established by applicants, recipients, or their spouses after August 10, 1993.

1.For purposes of determining an individual's eligibility under this chapter, subject to subsection 4, this section applies to a trust established by the individual after August 10, 1993.

Subsections 1, 2, and 3 of section 75-02-02.1-31 apply to this section. 2.a.For purposes of this subsection, an individual shall be considered to have established a trust if assets of the individual were used, by someone with lawful authority over those assets, to form all or part of the corpus of the trust and if any of the following individuals established that trust other than by will:

(1)The individual;

(2)The individual's spouse;

(3)A person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or (4)A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

b.In the case of a trust the corpus of which includes assets of an individual, as determined under subdivision a, and assets of any other person or persons, the provisions of this subsection shall apply to the portion of the trust attributable to the assets of the individual.

c.Subject to subsection 4, this section shall apply without regard to:

(1)The purposes for which a trust is established;

(2)Whether the trustees have or exercise any discretion under the trust;

(3)Any restrictions on when or whether distributions may be made from the trust; or (4)Any restrictions on the use of distributions from the trust. 3.a.In the case of a revocable trust:

(1)The corpus of the trust shall be considered assets available to the individual;

(2)Payments from the trust to or for the benefit of the individual shall be considered income of the individual; and (3)Any other payments from the trust shall be considered income or assets disposed of by the individual for purposes of section 75-02-02.1-33.1 or 75-02-02.1-33.2.

b.In the case of an irrevocable trust:

(1)If there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered available to the individual, and payments from that portion of the corpus or income:

(a)To or for the benefit of the individual, shall be considered income of the individual; and (b)For any other purpose, shall be considered a transfer of income or assets by the individual subject to section 75-02-02.1-33.1; and (2)Any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust, or, if later, the date on which payment to the individual was foreclosed, to be income or assets disposed by the individual for purposes of section 75-02-02.1-33.1 or 75-02-02.1-33.2, and the value of the trust shall be determined for purposes of section 75-02-02.1-33.1 or 75-02-02.1-33.2 by including the amount of any payments made from such portion of the trust after such date.

4.This section shall not apply to:

a.A trust containing the assets of an individual under age sixty-five who is disabled and which is established for the benefit of such individual by the individual, a parent, grandparent, legal guardian of the individual, or a court, to the extent the person establishing the trust has lawful authority over the individual's assets, and if, under the terms of the trust, the department will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total Medicaid benefits paid under North Dakota Century Code chapter 50-24.1 on behalf of the individual; or

b.A trust containing the assets of a disabled individual that meets the following conditions:

(1)The trust is established and managed by a qualified nonprofit association that acts as trustee;

(2)A separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, the trust pools these accounts;

(3)Accounts in the trust are established solely for the benefit of a disabled individual by the parent, grandparent, or legal guardian of the individual, by the individual, or by a court; and (4)To the extent that amounts remaining in the beneficiary's account upon the death of the beneficiary are not retained by the trust, the trust pays to the department from such remaining amounts in the account an amount equal to the total amount of Medicaid benefits paid under North Dakota Century Code chapter 50-24.1 on behalf of the beneficiary.

5.The department may waive application of this section as creating an undue hardship if the individual establishes that some other person, not currently receiving Medicaid, supplemental nutrition assistance program benefits, temporary assistance for needy families benefits, or low-income home energy assistance program benefits, would become eligible for such benefits because of and upon application of this section, and that the cost of those benefits, provided to that other person, exceeds the cost of Medicaid benefits available to the individual if application is waived.

6.For purposes of this section "income" and "assets" include all income and assets of the individual and of the individual's spouse, including any income or assets that the individual or the individual's spouse is entitled to, but does not receive because of action:

a.By the individual or the individual's spouse;

b.By a person, including a court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual's spouse; or

c.By any person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual's spouse.

7.A trust is established, with respect to any asset that is a part of the trust corpus, on the date that asset is made subject to the trust by an effective transfer to the trustee.

8.A nonprofit association is qualified to establish and manage a trust described in subdivision b of subsection 4 only if the nonprofit corporation:

a.Is organized and operated exclusively for other than profit-making purposes and distributes no part of the corporation's income to its members;

b.Is qualified to receive charitable donations for which a taxpayer may lawfully claim a deduction under the provisions of section 501(c)(3) of the Internal Revenue Code [26 U.S.C. 501(c)(3)];

c.Has a governing board that includes no more than twenty percent membership related to any one disabled individual with an account maintained in the trust:

(1)As a parent, child, stepparent, stepchild, grandparent, grandchild, brother, sister, stepbrother, stepsister, great-grandparent, great-grandchild, aunt, uncle, niece, nephew, great-great-grandparent, great-great-grandchild, great-aunt, great-uncle, first cousin, grandniece, or grandnephew, whether by birth or adoption, and whether by whole or half-blood, of the disabled individual or the disabled individual's current or former spouse; or (2)As agent or fiduciary of any kind except with respect to the trust established and managed by the nonprofit association.

d.Has no employee or agent whose compensation is in any way related to or conditioned upon the amount or nature of funds retained by the trust from the account of any deceased beneficiary;

e.Complies with the provisions of North Dakota Century Code section 10-33-12, whether or not incorporated or doing business in North Dakota; and

f.Retains funds from a deceased beneficiary's account only if:

(1)The retained funds are to compensate the trust for services rendered;

(2)The account is that of a beneficiary who was a disabled individual who did not receive benefits under this chapter; or (3)The account does not contain the assets of a disabled individual.

History: Effective October 1, 1993; amended effective July 1, 2003; April 1, 2008; January 1, 2011;

April 1, 2018.

Law Implemented: NDCC 50-24.1-02; 42 USC 1396p(d) 75-02-02.1-32. Valuation of assets.

It is not always possible to determine the value of assets with absolute certainty, but it is necessary to determine a value in order to determine eligibility. The valuation must be based on reasonably reliable information. It is the responsibility of the applicant or recipient, or the persons acting on behalf of the applicant or recipient, to furnish reasonably reliable information. Because an applicant or recipient may not be knowledgeable of asset values, and particularly because that person may have a strong interest in the establishment of a particular value, whether or not that value is accurate, some verification of value must be obtained. If a valuation from a source offered by an applicant or recipient is greatly different from generally available or published sources, the applicant or recipient must provide a convincing explanation for the differences particularly if the applicant or recipient may be able to influence the person providing the valuation. If reasonably reliable information concerning the value of assets is not made available, eligibility may not be determined. Useful sources of verification include:

1.With respect to liquid assets: reliable account records.

2.With respect to personal property other than liquid assets:

a.Publicly traded stocks, bonds, and securities: stockbrokers.

b.Autos, trucks, mobile homes, boats, farm equipment, or any other property listed in published valuation guides accepted in the trade: the valuation guide.

c.With respect to harvested grains or produce: grain buyers, grain elevator operators, produce buyers; and, for crops grown on contract: the contract.

d.With respect to stock in corporations not publicly traded: appraisers, accountants.

e.With respect to other personal property: dealers and buyers of that property.

f.With respect to a life insurance policy: the life insurance company.

3.Real property.

a.With respect to mineral interests:

(1)If determining current value, the best offer received following a good-faith effort to sell the mineral interests. A good-faith effort to sell means offering the mineral interests to at least three companies purchasing mineral rights in the area, or by offering for bids through public advertisement.

(2)If determining a past value for mineral rights previously sold or transferred:

(a)If producing, the value is an amount equal to any lease income received after the transfer plus three times the annual royalty income based on actual royalty income from the sixty months following the transfer, or if sixty months have not yet passed, based on actual royalty income in the months that have already passed plus an estimate for the remainder of the sixty-month period.

(b)If not producing, but the mineral rights are leased, the value is an amount equal to two times the total lease amount; or (c)If not leased, the value is an amount equal to the greater of two times the estimated lease amount or the potential sale value of the mineral rights, as determined by a geologist, mineral broker, or mineral appraiser.

(3)In determining current or past value, an applicant, recipient, or the department may provide persuasive evidence establishing a value different from the value established using the process described in this subdivision.

b.With respect to agricultural lands: appraisers, real estate agents dealing in the area, loan officers in local agricultural lending institutions, and other persons known to be knowledgeable of land sales in the area in which the lands are located, but not the "true and full" value from tax records.

c.With respect to real property other than mineral interests and agricultural lands: market value or "true and full" value from tax records, whichever represents a reasonable approximation of fair market value; real estate agents dealing in the area; and loan officers in local lending institutions.

4.Divided or partial interests. Divided or partial interests include assets held by the applicant or recipients; jointly or in common with persons who are not in the Medicaid unit; assets where the applicant or recipient or other persons within the Medicaid unit own only a partial share of what is usually regarded as the entire asset; and interests where the applicant or recipient owns only a life estate or remainder interest in the asset.

a.Liquid assets. The value of a partial or shared interest in a liquid asset is equal to the total value of that asset.

b.Personal property other than liquid assets and real property other than life estates and remainder interests. The value of a partial or shared interest is a proportionate share of the total value of the asset equal to the proportionate share of the asset owned by the applicant or recipient.

c.Life estates and remainder interests.

(1)The life estate and remainder interest tables must be used to determine the value of a life estate or remainder interest. In order to use the table, it is necessary to first know the age of the life tenant or, if there are more than one life tenants, the age of the youngest life tenant; and the fair market value of the property which is subject to the life estate or remainder interest. The value of a life estate is found by selecting the appropriate age in the table and multiplying the corresponding life estate decimal fraction times the fair market value of the property. The value of a remainder interest is found by selecting the appropriate age of the life tenant in the table and multiplying the corresponding remainder interest decimal fraction times the fair market value of the property.

Life Estate and Remainder Interest Table AgeLife EstateRemainder Interest 0.97188.02812 1.98988.01012 2.99017.00983 3.99008.00992 4.98981.01019 5.98938.01062 6.98884.01116 7.98822.01178 8.98748.01252 9.98663.01337 10.98565.01435 11.98453.01547 12.98329.01671 13.98198.01802 14.98066.01934 15.97937.02063 16.97815.02185 17.97700.02300 18.97590.02410 19.97480.02520 20.97365.02635 21.97245.02755 22.97120.02880 23.96986.03014 24.96841.03159 25.96678.03322 26.96495.03505 27.96290.03710 28.96062.03938 29.95813.04187 30.95543.04457 31.95254.04746 32.94942.05058 33.94608.05392 34.94250.05750 35.93868.06132 36.93460.06540 37.93026.06974 38.92567.07433 39.92083.07917 40.91571.08429 41.91030.08970 42.90457.09543 43.89855.10145 44.89221.10779 45.88558.11442 46.87863.12137 47.87137.12863 48.86374.13626 49.85578.14422 50.84743.15257 51.83674.16126 52.82969.17031 53.82028.17972 54.81054.18946 55.80046.19954 56.79006.20994 57.77931.22069 58.76822.23178 59.75675.24325 60.74491.25509 61.73267.26733 62.72002.27998 63.70696.29304 64.69352.30648 65.67970.32030 66.66551.33449 67.65098.34902 68.63610.36390 69.62086.37914 70.60522.39478 71.58914.41086 72.57261.42739 73.55571.44429 74.53862.46138 75.52149.47851 76.50441.49559 77.48742.51258 78.47049.52951 79.45357.54643 80.43659.56341 81.41967.58033 82.40295.59705 83.38642.61358 84.36998.63002 85.35359.64641 86.33764.66236 87.32262.67738 88.30859.69141 89.29526.70474 90.28221.71779 91.26955.73045 92.25771.74229 93.24692.75308 94.23728.76272 95.22887.77113 96.22181.77819 97.21550.78450 98.21000.79000 99.20486.79514 100.19975.80025 101.19532.80468 102.19054.80946 103.18437.81563 104.17856.82144 105.16962.83038 106.15488.84512 107.13409.86591 108.10068.89932 109.04545.95455 (2)The life estate and remainder interest tables are based on the anticipated lifetimes of individuals of a given age according to statistical tables of probability. If the life tenant suffers from a condition likely to cause death at an unusually early age, the value of the life estate decreases and the value of the remainder interest increases.

An individual who requires long-term care, who suffers from a condition that is anticipated to require long-term care within twelve months, or who has been diagnosed with a disease or condition likely to reduce the individual's life expectancy is presumed to suffer from a condition likely to cause death at an unusually early age, and may not rely upon statistical tables of probability applicable to the general population to establish the value of a life estate or remainder interest.

If an individual is presumed to suffer from a condition likely to cause death at an unusually early age, an applicant or recipient whose eligibility depends upon establishing the value of a life estate or remainder interest must provide a reliable medical statement that estimates the remaining duration of life in years. The estimated remaining duration of life may be used, in conjunction with a life expectancy table, to determine the comparable age for application of the life estate and remainder interest table.

5.Contractual rights to receive money payments:

a.Except during any disqualifying transfer penalty period as established by subdivision d, the value of contractual rights to receive money payments in which payments are current is an amount equal to the total of all outstanding payments of principal required to be made by the contract unless evidence is furnished that establishes a lower value.

b.Except during any disqualifying transfer penalty period as established by subdivision d, the value of contractual rights to receive money payments in which payments are not current is the current fair market value of the property subject to the contract.

c.Except during any disqualifying transfer penalty period as established by subdivision d, if upon execution the total of all principal payments required under the terms of the contract is less than the fair market value of the property sold, the difference is a disqualifying transfer governed by section 75-02-02.1-33.1 or 75-02-02.1-33.2, and the value of the contract is determined under subdivision a or b.

d.A contractual right to receive money payments that consists of a promissory note, loan, or mortgage is a disqualifying transfer governed by section 75-02-02.1-33.2 of an amount equal to the outstanding balance due as of the date the lender or purchaser, or the lender's or purchaser's spouse, first applies for Medicaid to secure nursing care services, as defined in section 75-02-02.1-33.2, if:

(1)Any payment on the contract is due after the end of the contract payee's life expectancy as established in accordance with actuarial publications of the office of the chief actuary of the social security administration;

(2)The contract provides for other than equal payments or for any balloon or deferred payment; or (3)The contract provides for any payment otherwise due to be diminished after the contract payee's death.

e.The value of a secured contractual right to receive money payments that consists of a promissory note, loan, or mortgage not described in subdivision d shall be determined under subdivision a or b. For an unsecured note, loan, or mortgage, the value is the outstanding payments of principal and overdue interest unless evidence is furnished that establishes a lower value.

6.Contract values.

a.The value of a contract under which payments are made to an applicant or a recipient and in which payments are current is equal to the total of all outstanding payments of principal required to be made by the contract, unless evidence is furnished that establishes a lower value.

b.The value of a contract under which payments are made to an applicant or a recipient and in which payments are not current is an amount equal to the current fair market value of the property subject to the contract. If the contract is not secured by property, the value of the contract is the total of all outstanding payments of principal and past-due interest required to be made under the contract.

c.If the contractual right to receive money payments is not collectible and is not secured, the debt has no collectible value and is not a countable asset. An applicant or recipient can establish that a note has no collectable value if:

(1)The debtor is judgement proof which means a money judgement has been secured, an execution has been served upon the debtor which has been returned as wholly unsatisfied, and the debtor's affidavit and claim for exemptions exempt all of the debtor's property or as determined by the department; or (2)The applicant or recipient verifies the debt is uncollectible due to a statute of limitations which may be shown, among other ways, by an attorney's letter identifying the applicable statute and the facts that make the debt uncollectible under that statute of limitations.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

April 1, 2008; January 1, 2010; January 1, 2011; April 1, 2014; April 1, 2018. 75-02-02.1-33. Disqualifying transfers made on or before August 10, 1993.

Repealed effective February 1, 1996. 75-02-02.1-33.1. Disqualifying transfers made before February 8, 2006.

Repealed effective January 1, 2024. 75-02-02.1-33.2. Disqualifying transfers made on or after February 8, 2006.

1.This section applies to transfers of income or assets made on or after February 8, 2006.

2.Except as provided in subsections 7 and 16, an individual is ineligible for skilled nursing care, swing-bed, or home and community-based benefits if the individual or the individual's spouse disposes of assets or income for less than fair market value on or after the look-back date.

The look-back date is a date that is sixty months before the first date on which the individual is both receiving skilled nursing care, swing-bed, or home and community-based services and has applied for benefits under this chapter, without regard to the action taken on the application.

3.An applicant, recipient, or anyone acting on behalf of an applicant or recipient, has a duty to disclose any transfer of any asset or income made by or on behalf of the applicant or recipient, or the spouse of the applicant or recipient, for less than full fair market value:

a.When making an application;

b.When completing a redetermination; and

c.If made after eligibility has been established, by the end of the month in which the transfer was made.

4.The date that a period of ineligibility begins is the latest of:

a.The first day of the month in which the income or assets were transferred for less than fair market value;

b.The first day on which the individual is receiving nursing care services and would otherwise have been receiving benefits for institutional care but for the penalty;

c.The first day thereafter which is not in a period of ineligibility; or

d.The date of discovery after eligibility has been established. 5.a.The number of months and days of ineligibility for an individual shall be equal to the total cumulative uncompensated value of all income and assets transferred by the individual, or individual's spouse, on or after the look-back date divided by the average monthly cost or average daily cost, as appropriate, of nursing facility care in North Dakota at the time of the individual's application.

b.A fractional period of ineligibility may not be rounded down or otherwise disregarded with respect to any disposal of assets or income for less than fair market value.

c.Notwithstanding any contrary provisions of this section, in the case of an individual or an individual's spouse who makes multiple fractional transfers of assets or income in more than one month for less than fair market value on or after the look-back date established under subsection 2, the period of ineligibility applicable to such individual must be determined by treating the total, cumulative uncompensated value of all assets or income transferred during all months on or after the look-back date as one transfer and one penalty period must be imposed beginning on the earliest date applicable to any of the transfers.

d.Any portion of the transferred asset or income returned prior to the imposition of the period of ineligibility reduces the total amount of the disqualifying transfer.

6.For purposes of this section, "assets" includes the purchase of a life estate interest in another individual's home unless the purchaser resides in the home for a period of at least one year after the date of the purchase.

7.An individual may not be ineligible for Medicaid by reason of subsection 2 to the extent that:

a.The assets transferred were a home, and title to the home was transferred to:

(1)The individual's spouse;

(2)The individual's son or daughter who is under age twenty-one, blind, or disabled;

(3)The individual's brother or sister who has an equity interest in the individual's home and who was residing in the individual's home for a period of at least one year immediately before the date the individual became an institutionalized individual; or (4)The individual's son or daughter, other than a child described in paragraph 2, who was residing in the individual's home for a period of at least two years immediately before the date the individual began receiving nursing care services, and who provided care to the individual which permitted the individual to avoid receiving nursing care services;

b.The income or assets:

(1)Were transferred to the individual's spouse or to another for the sole benefit of the individual's spouse;

(2)Were transferred from the individual's spouse to another for the sole benefit of the individual's spouse;

(3)Were transferred to, or to a trust established solely for the benefit of, the individual's child who is blind or disabled; or (4)Were transferred to a trust established solely for the benefit of an individual less than sixty-five years of age who is disabled;

c.The individual makes a satisfactory showing that:

(1)The individual intended to dispose of the income or assets, either at fair market value or other valuable consideration, and the individual had an objectively reasonable belief that fair market value or its equivalent was received;

(2)The income or assets were transferred exclusively for a purpose other than to qualify for Medicaid; or (3)For periods after the return, all income or assets transferred for less than fair market value have been returned to the individual; or

d.The asset transferred was an asset excluded for Medicaid purposes other than:

(1)The home or residence of the individual or the individual's spouse;

(2)Property that is not saleable without working an undue hardship;

(3)Excluded home replacement funds;

(4)Excluded payments, excluded interest on those payments, and excluded in-kind items received for the repair or replacement of lost, damaged, or stolen exempt or excluded assets;

(5)Life estate interests;

(6)Mineral interests;

(7)An asset received from a decedent's estate during any period it is considered to be unavailable under subsection 5 of section 75-02-02.1-25;

(8)An annuity; or (9)A motor vehicle. 8.a.An individual shall not be ineligible for Medicaid by reason of subsection 2 to the extent the individual makes a satisfactory showing that an undue hardship exists for the individual. Upon imposition of a period of ineligibility because of a transfer of assets or income for less than fair market value, the department shall notify the applicant or recipient of the right to request an undue hardship exception. An individual may apply for an exception to the transfer of asset penalty if the individual claims that the ineligibility period will cause an undue hardship to the individual. A request for a determination of undue hardship must be made within ninety days after the circumstances upon which the claim of undue hardship is made were known or should have been known to the affected individual or the person acting on behalf of that individual if incompetent. The individual must provide to the department sufficient documentation to support the claim of undue hardship. The department shall determine whether a hardship exists upon receipt of all necessary documentation submitted in support of a request for a hardship exception. An undue hardship exists only if the individual shows that all of the following conditions are met:

(1)Application of the period of ineligibility would deprive the individual of food, clothing, shelter, or other necessities of life or would deprive the individual of medical care such that the individual's health or life would be endangered;

(2)The individual who transferred the assets or income, or on whose behalf the assets or income were transferred, has exhausted all reasonable means to recover the assets or income or the value of the transferred assets or income, from the transferee, a fiduciary, or any insurer; and (3)The individual's remaining available assets and the remaining assets of the individual's spouse are less than the asset limit in subsection 1 of section 75-02-02.1-26, or if applicable, the minimum allowed under section 75-02-02.1-24, counting the value of all assets except:

(a)A home, exempt under section 75-02-02.1-28, but not if the individual or the individual's spouse has equity in the home in excess of twenty-five percent of the amount established in the approved state plan for medical assistance which is allowed as the maximum home equity interest for nursing facility services or other long-term care services;

(b)Household and personal effects;

(c)One motor vehicle if the primary use is for transportation of the individual, or the individual's spouse or minor, blind, or disabled child who occupies the home; and (d)Funds for burial up to the amount excluded in subsection 10 of section 75-02-02.1-28 for the individual and the individual's spouse.

b.Upon the showing required by this subsection, the department shall state the date upon which an undue hardship begins and, if applicable, when it ends.

c.The agency shall terminate the undue hardship exception, if not earlier, at the time an individual, the spouse of the individual, or anyone with authority to act on behalf of the individual, makes any uncompensated transfer of income or assets after the undue hardship exception is granted. The agency shall deny any further requests for an undue hardship exception due to either the disqualification based on the transfer upon which the initial undue hardship determination was based, or a disqualification based on any subsequent transfer.

9.If a request for an undue hardship waiver is denied, the applicant or recipient may request a fair hearing in accordance with the provisions of chapter 75-01-03.

10.There is a presumption that a transfer for less than fair market value was made for purposes that include the purpose of qualifying for Medicaid:

a.In any case in which the individual's assets and the assets of the individual's spouse remaining after the transfer produce income which, when added to other income available to the individual and to the individual's spouse, total an amount insufficient to meet all living expenses and medical costs reasonably anticipated to be incurred by the individual and by the individual's spouse in the month of transfer and in the fifty-nine months following the month of transfer;

b.In any case in which an inquiry about Medicaid benefits was made, by or on behalf of the individual to any person, before the date of the transfer;

c.In any case in which the individual or the individual's spouse was an applicant for or recipient of Medicaid before the date of transfer;

d.In any case in which a transfer is made by or on behalf of the individual or the individual's spouse, if the value of the transferred income or asset, when added to the value of the individual's other countable assets, would exceed the asset limits in section 75-02-02.1-26; or

e.In any case in which the transfer was made, on behalf of the individual or the individual's spouse, by a guardian, conservator, or attorney in fact, to a relative of the individual or the individual's spouse, or to the guardian, conservator, or attorney in fact or to any parent, child, stepparent, stepchild, grandparent, grandchild, brother, sister, stepbrother, stepsister, great-grandparent, great-grandchild, aunt, uncle, niece, or nephew, whether by birth, adoption, and whether by whole or half-blood, of the guardian, conservator, or attorney in fact or the spouse or former spouse of the guardian, conservator, or attorney in fact.

11.An applicant or recipient who claims that income or assets were transferred exclusively for a

purpose other than to qualify for Medicaid must show that a desire to receive Medicaid benefits played no part in the decision to make the transfer and must rebut any presumption arising under subsection 10. The fact, if it is a fact, that the individual would be eligible for the Medicaid coverage for nursing care services, had the individual or the individual's spouse not transferred income or assets for less than fair market value, is not evidence that the income or assets were transferred exclusively for a purpose other than to qualify for Medicaid.

12.If a transfer results in a period of ineligibility under this section for an individual receiving nursing care services, and if the individual's spouse is otherwise eligible for Medicaid and requires nursing care services, the remaining period of ineligibility shall be apportioned equally between the spouses. If one such spouse dies or stops receiving nursing care services, any months remaining in that spouse's apportioned period of ineligibility must be assigned or reassigned to the spouse who continues to receive nursing care services.

13.No income or asset transferred to a parent, stepparent, child, stepchild, grandparent, grandchild, brother, sister, stepsister, stepbrother, great-grandparent, great-grandchild, aunt, uncle, niece, or nephew of the individual or the individual's spouse, purportedly for services or assistance furnished by the transferee to the individual or the individual's spouse, may be treated as consideration for the services or assistance furnished unless:

a.The transfer is made pursuant to a valid written contract entered into prior to rendering the services or assistance or in absence of a valid written contract, evidence is provided the services were required and provided;

b.The contract was executed by the individual or the individual's fiduciary who is not a provider of services or assistance under the contract;

c.Compensation is consistent with rates paid in the open market for the services or assistance actually provided; and

d.The parties' course of dealing included paying compensation upon rendering services or assistance, or within thirty days thereafter.

14.A transfer is complete when the individual or the individual's spouse making the transfer has no lawful means of undoing the transfer or requiring a restoration of ownership.

15.For purposes of this section:

a."Annuity" means a policy, certificate, contract, or other arrangement between two or more parties whereby one party pays money or other valuable consideration to the other party in return for the right to receive payments in the future, but does not mean an employee benefit that qualifies for favorable tax treatment under the Internal Revenue Code or a plan described in the Internal Revenue Code as a retirement plan under which contributions must end and withdrawals must begin by age seventy and one-half.

b."Average monthly cost of nursing facility care" means the cost determined by the department under section 1917(c)(1)(E)(i)(II) of the Act [42 U.S.C. 1396p(c)(1)(E)(i)(II)].

c."Fair market value" means:

(1)In the case of a liquid asset that is not subject to reasonable dispute concerning its value, such as cash, bank deposits, stocks, and fungible commodities, one hundred percent of apparent fair market value;

(2)In the case of real or personal property that is subject to reasonable dispute concerning its value, seventy-five percent of the estimated fair market value; and (3)In the case of income, one hundred percent of apparent fair market value.

d."Major medical policy" includes any policy, certificate, or subscriber contract issued on a group or individual basis by any insurance company, nonprofit health service organization, fraternal benefit society, or health maintenance organization, which provides a plan of health insurance or health benefit coverage, including medical, hospital, and surgical care, approved for issuance by the insurance regulatory body in the state of issuance, but does not include accident-only, credit, dental, vision, Medicare supplement, long-term care, or disability income insurance, coverage issued as a supplement to liability insurance or automobile medical payment insurance, or a policy or certificate of specified disease, hospital confinement indemnity, or limited benefit health insurance.

e."Medicare" means the Health Insurance for the Aged and Disabled Act, title XVIII of the Social Security Act of 1965, as amended [42 U.S.C. 1395 et seq; Pub. L. 92-603; 86 Stat. 1370].

f."Medicare supplement policy offering plan F benefits" means a policy, group, or individual accident and health insurance policy or a subscriber contract of a health service corporation or a health care plan of a health maintenance organization or preferred provider organization, other than a policy issued pursuant to a contract under

section 1876 or 1833 of the Social Security Act [42 U.S.C. 1395 et seq.] or an issued policy under a demonstration project authorized pursuant to amendments to the Social Security Act that:

(1)Is advertised, marketed, or designed primarily as a supplement to reimbursements under Medicare for the hospital, medical, or surgical expenses of persons eligible for Medicare;

(2)Is not a policy or contract of one or more employers or labor organizations, or the trustees of a fund established by one or more employers or labor organizations, or combination thereof, for employees or former employees, or combination thereof, or for members or former members, or combination thereof, of the labor organization;

(3)Is approved for issuance by the insurance regulatory body in the state of issuance;

(4)Includes:

(a)Hospitalization benefits consisting of Medicare part A coinsurance plus coverage for three hundred sixty-five additional days after Medicare benefits end;

(b)Medical expense benefits consisting of Medicare part B coinsurance;

(c)Blood provision consisting of the first three pints of blood each year;

(d)Skilled nursing coinsurance;

(e)Medicare part A deductible coverage;

(f)Medicare part B deductible coverage;

(g)Medicare part B excess benefits at one hundred percent coverage; and (h)Foreign travel emergency coverage.

g."Relative" means a parent, child, stepparent, stepchild, grandparent, grandchild, brother, sister, stepbrother, stepsister, great-grandparent, great-grandchild, aunt, uncle, niece, nephew, great-great-grandparent, great-great-grandchild, great-aunt, great-uncle, first cousin, grandniece, or grandnephew, whether by birth or adoption, and whether by whole or half-blood, of the individual or the individual's current or former spouse.

h."Uncompensated value" means the difference between fair market value and the value of any consideration received.

16.The provisions of this section do not apply in determining eligibility for Medicare savings programs.

17.An individual disposes of assets or income when the individual, or anyone on behalf of the individual or at the request of the individual, acts or fails to act in a manner that effects a transfer, conveyance, assignment, renunciation, or disclaimer of any asset or income in which the individual had or was entitled to claim an interest of any kind.

18.An individual may demonstrate that an asset was transferred exclusively for a purpose other than to qualify for Medicaid if, for a period of at least thirty-six consecutive months, beginning on the date the asset was transferred, the individual has in force home care and long-term care coverage, purchased on or before July 31, 2003, with a daily benefit at least equal to 1.25 times the average daily cost of nursing care for the year in which the policy is issued or an aggregate benefit at least equal to 1,095 times that daily benefit, and:

a.For each such month during which the individual is not eligible for Medicare benefits, the individual has in force a major medical policy that provides a lifetime maximum benefit of one million dollars or more, an annual aggregate deductible of five thousand dollars or less, and an out-of-pocket maximum annual expenditure per qualifying individual of five thousand dollars or less; and

b.For each such month during which the individual is eligible for Medicare benefits, the individual has in force a Medicare supplement policy offering plan F benefits, or their equivalent.

19.An individual may demonstrate that an asset was transferred exclusively for a purpose other than to qualify for Medicaid if, for a period of at least thirty-six consecutive months, beginning on the date the asset was transferred, the individual has in force home health care coverage, assisted living coverage, basic care coverage, and skilled nursing facility coverage, purchased on or after August 1, 2003, and before January 1, 2007, with a daily benefit at least equal to 1.57 times the average daily cost of nursing care for the year in which the policy is issued or an aggregate benefit at least equal to 1,095 times that daily benefit, and:

a.For each month during which the individual is not eligible for Medicare benefits, the individual has in force a major medical policy that provides a lifetime maximum benefit of one million dollars or more, an annual aggregate deductible of five thousand dollars or less, and an out-of-pocket maximum annual expenditure per qualifying individual of five thousand dollars or less; and

b.For each such month during which the individual is eligible for Medicare benefits, the individual has in force a Medicare supplement policy offering plan F benefits, or their equivalent.

20.With respect to an annuity transaction which includes the purchase of, selection of an irrevocable payment option, addition of principal to, elective withdrawal from, request to change distribution from, or any other transaction that changes the course of payments from an annuity which occurs on or after February 8, 2006, an individual may demonstrate that an asset was transferred exclusively for a purpose other than to qualify for Medicaid, if the asset was used to acquire an annuity, only if:

a.The owner of the annuity provides documentation satisfactory to the department that names the department as the remainder beneficiary in the first position for at least the total amount of medical assistance paid on behalf of the annuitant or the department is named in the second position after the community spouse or minor or disabled child, and that establishes that any attempt by such spouse or a representative of such child to dispose of any such remainder shall cause the department to become the remainder beneficiary for at least the total amount of medical assistance paid on behalf of the annuitant;

b.The annuity is purchased from an insurance company or other commercial company that sells annuities as part of the normal course of business;

c.The annuity is irrevocable and neither the annuity nor payments due under the annuity may be assigned or transferred;

d.The annuity provides substantially equal payments of principal and interest, no less frequently than annually, that vary by five percent or less from the total annual payment of the previous year, and does not have a balloon or deferred payment of principal or interest; and

e.The annuity will return the full principal and interest within the purchaser's life expectancy as determined in accordance with actuarial publications of the office of the chief actuary of the social security administration.

History: Effective April 1, 2008; amended effective January 1, 2010; January 1, 2011; April 1, 2012;

April 1, 2014; April 1, 2018; January 1, 2024.

Law Implemented: NDCC 50-24.1-02; 42 USC 1396p(c) 75-02-02.1-34. Income considerations.

1.All income that is actually available shall be considered. Income is actually available when it is at the disposal of an applicant, recipient, or responsible relative; when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available for support, maintenance, or medical care; or when the applicant, recipient, or responsible relative has the lawful power to make the income available or to cause the income to be made available. Income shall be reasonably evaluated. This subsection does not supersede other provisions of this chapter which describe or require specific treatment of income, or which describe specific circumstances which require a particular treatment of income.

2.The financial responsibility of any individual for any applicant or recipient of Medicaid will be limited to the responsibility of spouse for spouse and parents for a child under age twenty-one.

Such responsibility is imposed as a condition of eligibility for Medicaid. Except as otherwise provided in this section, the income of the spouse and parents is considered available to the applicant or recipient, even if that income is not actually contributed. Biological and adoptive parents, and stepparents, are treated as parents.

3.All spousal income is considered actually available unless:

a.A court order, entered following a contested case, determines the amounts of support that a spouse must pay to the applicant or recipient;

b.The spouse from whom support could ordinarily be sought, and the property of such spouse, is outside the jurisdiction of the courts of the United States or any of the United States; or

c.The applicant or recipient is subject to marital separation, with or without court order, and there has been no collusion between the applicant or recipient and that person's spouse to render the applicant or family member eligible for Medicaid.

4.All parental income is considered actually available to a child under age twenty-one unless the child is:

a.Disabled and at least age eighteen;

b.Living independently;

c.Living with a parent who is separated from the child's other parent, with or without court order, if the parents did not separate for the purpose of securing Medicaid benefits; or

d.Filing an income tax return and the parents are not claiming the child as a tax dependent.

5.Income may be received weekly, biweekly, monthly, intermittently, or annually. However income is received, a monthly income amount must be computed.

6.Payments from any source, which are or may be received as a result of a medical expense or increased medical need, are not income, but are considered to be medical payments which must be applied toward the recipient's medical costs. These payments include health or long-term care insurance payments, veterans administration aid and attendance, veterans administration reimbursements for unusual medical expenses, and veterans administration homebound benefits intended for medical expenses.

a.Health or long-term care insurance payments must be considered as payments received in the months the benefit was intended to cover and must be applied to medical expenses incurred in those months.

b.Except for individuals subject to a MAGI-based methodology, veterans administration aid and attendance benefits must be considered as payments received in the months the benefit was intended to cover and must be applied to the medical expense incurred in those months;

c.Except for individuals subject to a MAGI-based methodology, veterans administration reimbursements for unusual medical expenses must be considered as payments received in the months in which the increased medical expense occurred and must be applied to the medical expense incurred in those months; and

d.Except for individuals subject to a MAGI-based methodology, veterans administration homebound benefits intended for medical expenses must be considered as payments received in the months the benefit was intended to cover and must be applied to the medical expenses incurred in those months. This does not apply to homebound benefits which are not intended for medical expenses. 7.a.In determining ownership of income from a document, income must be considered available to each individual as provided in the document, or, in the absence of a specific provision in the document:

(1)If payment of income is made solely to one individual, the income shall be considered available only to that individual; and (2)If payment of income is made to more than one individual, the income shall be considered available to each individual in proportion to the individual's interest.

b.In the case of income available to a couple in which there is no document establishing ownership, one-half of the income shall be considered to be available to each spouse.

c.Except in the case of income from a trust, the rules for determining ownership of income are superseded to the extent that the applicant or recipient can establish that the ownership interests are otherwise than as provided in those rules.

8.Except for individuals not subject to a MAGI-based methodology, countable income from a business entity that employs anyone whose income is used to determine eligibility is:

a.If the applicant or recipient and other members of the Medicaid unit, in combination, own a controlling interest in the business entity, an amount determined as for a self-employed individual or family under section 75-02-02.1-38;

b.If the applicant or recipient and other members of the Medicaid unit, in combination, own less than a controlling interest, but more than a nominal interest, in the business entity, an amount determined by:

(1)Subtracting any cost of goods for resale, repair, or replacement, and any wages, salaries, or guarantees (but not draws) paid to all owners of interests in the business entity who are actively engaged in the business to establish the business entity's adjusted gross income, from the business entity's gross income;

(2)Establishing the applicant or recipient's share of the business entity's adjusted gross income, based on the Medicaid unit's proportionate share of ownership of the business entity;

(3)Adding any wages, salary, or guarantee paid to the applicant's or recipient's share of the business entity's adjusted gross income; and (4)Applying the disregards appropriate to the type of business as described in section 75-02-02.1-38; or

c.If the applicant or recipient and other members of the Medicaid unit, in combination, own a nominal interest in the business entity, and are not able to influence the nature or extent of employment by that business entity, the individual's earned income as an employee of that business entity, plus any unearned income gained from ownership of the interest in the business entity.

9.For an individual subject to a MAGI-based methodology, the individual's share of the net income plus any gross wages paid from the entity is countable income from the entity.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; June 1, 2004; January 1, 2014. 75-02-02.1-34.1. MAGI-based methodology.

Effective for the benefit month of January 2014, the following MAGI-based methodology will be used in determining income eligibility for Medicaid.

1.Income is based on household composition.

2.Monthly income is used prospectively for new applications; annualized income is used for ongoing cases.

3.Current, point in time income is used; however, reasonable expected changes in income must be included.

4.A tax dependent child's income does not count in a taxpayer parent's or caretaker relative's household if the child is not required to file a tax return. The child's needs are included in the taxpayer's household.

a.If the taxpayer parent or taxpayer caretaker relative is in the child's Medicaid household, the child's income does not count in the child's household, either.

b.If the taxpayer parent or taxpayer caretaker relative is not in the child's Medicaid household, the child's income counts in the child's household.

c.If the child is not required to file a tax return, however, files a return to get a refund of taxes withheld, the child's income is not counted.

d.If the child is required to file a tax return, the child's income is counted in all of the households in which the child is included.

5.If eligibility is determined by using an individual's federal tax return, modified adjusted gross income is as stated in the federal tax return:

a.Plus:

(1)Any foreign earned income excluded from taxes.

(2)Tax-exempt interest.

(3)Tax-exempt social security income.

b.Less:

(1)Scholarships, awards, or fellowship grants used for education purposes and not for living expenses if included in taxable income.

(2)Certain distributions, payments, and student financial assistance for American Indians and Alaska Natives if included in taxable income.

6.When available, the department shall use the most current information to reflect the income elements identified in subsection 5, regardless of whether they were the amounts used for the tax return.

7.If eligibility is determined without using an individual's federal tax return, the department shall determine modified adjusted gross income using internal revenue service rules combined with Medicaid and children's health insurance program rules as follows:

a.Add:

(1)Gross wages less pretax deductions;

(2)Gross interest income;

(3)Gross dividend income;

(4)Taxable refunds of state or local income taxes (counted only in the month received);

(5)Gross alimony received;

(6)Net business income or loss from self-employment;

(7)Capital gains or losses, if expected to recur;

(8)Taxable amount of individual retirement account distributions;

(9)Taxable amount of pensions and annuities;

(10)Net rents, royalties, and partnership, S corporation, or trust income;

(11)Net farm income or loss;

(12)Gross unemployment compensation;

(13)Gross social security income;

(14)Gross foreign earned income; and (15)Other income determined to be reportable by the internal revenue service.

b.Subtract from that sum:

(1)Educator expenses;

(2)Business expenses of reservist, performing artist, and fee-basis government official;

(3)Health savings account deduction;

(4)Moving expenses;

(5)Deductible portion of self-employment tax;

(6)Contributions to self-employed SEP, SIMPLE, and qualified plans;

(7)Self-employed health insurance deduction;

(8)Penalty on early withdrawal of savings;

(9)Alimony paid;

(10)Contributions to an individual retirement account;

(11)Student loan interest deduction;

(12)Tuition and fees;

(13)Domestic production activities deduction;

(14)Scholarships, awards, or fellowship grants used for education purposes and not for living expenses; and (15)Certain distributions, payments, and student financial assistance for American Indians and Alaska Natives.

8.The following income types are not reported on internal revenue service form 1040 and are not countable income under a MAGI-based methodology:

a.Child support income;

b.Veterans' benefits (aid and attendance, homebound benefits, and reimbursements for unusual medical expenses);

c.Supplemental security income;

d.Temporary assistance for needy families benefits;

e.Proceeds from life insurance, accident insurance, or health insurance;

f.Gifts and loans;

g.Inheritances; and

h.Workers' compensation payments.

9.Instead of itemized disregards and deductions, the department may apply a standard disregard equal to five percent of the federal poverty level as part of the MAGI-based 75-02-02.1-34.2. Income conversion for individuals subject to a MAGI-based methodology.

1.For purposes of this section, "biweekly" means every two weeks.

2.Income received either weekly or biweekly must be converted to monthly income in determining the household's countable income under MAGI-based methodology. Income must be received each week for those paid weekly, or every other week for those paid biweekly, for income to be converted.

3.Income conversion is not done for the three month prior period. Actual income received in those months is counted in determining eligibility.

History: Effective July 1, 2016. 75-02-02.1-34.3. Reasonable compatibility of income for individuals subject to a MAGI-based

1.For purposes of this section, "reasonable compatibility" refers to an allowable difference or discrepancy between the income reported by an applicant or recipient and the income reported by an electronic data source.

2.The department may request additional information or documentation from an applicant or recipient only if verification cannot be obtained from an electronic data source or information obtained from the electronic data source is not reasonably compatible with information provided by the applicant or recipient.

3.The most recent verification of income from an electronic data source is reasonably compatible if it results in the same eligibility outcome as information reported by the applicant or recipient.

4. Any income verification information requested and received by the department as a result of the application or review of other economic assistance programs must be used to determine eligibility for Medicaid and children's health insurance program and reasonable compatibility does not need to be determined.

5.If an applicant or recipient has multiple types of income and income from different sources, each type of income and each source of income must be compared for reasonable compatibility, and the highest amount from each type and source must be used to determine

6.When income verification is received quarterly, the income must be converted to a monthly amount to determine reasonable compatibility.

7.For purposes of determining reasonable compatibility for earned income, other than selfemployment, and unearned income:

a.When both the electronic data source and the applicant or recipient report total countable income that is below the budget unit income level, the two data sources are considered to be reasonably compatible and further verification may not be requested. The higher of the two amounts will be used to determine eligibility.

b.When both the electronic data source and the applicant or recipient report total countable income that is above the budget unit income level, the two data sources are considered to be reasonably compatible and further verification may not be requested.

c.When verification from the electronic data source is above the budget unit income level, but the information reported by the applicant or recipient is less than the budget unit income level, or when verification from the electronic data source is below the budget unit income level but the information reported by the applicant or recipient is higher than the budget unit income level, the two data sources are not reasonably compatible and further verification is required to determine eligibility.

d.When the electronic data source does not provide verification of income from the same source and type as the applicant or recipient reported, the two data sources are not reasonably compatible and further verification is required in order to determine eligibility.

8.Reasonable compatibility is not determined for self-employment income.

History: Effective July 1, 2016. 75-02-02.1-35. Budgeting.

Repealed effective December 1, 1991. 75-02-02.1-36. Disregarded income.

Repealed effective July 1, 2003. 75-02-02.1-37. Unearned income.

Unearned income is income that is not earned income. Unearned income received in a fixed amount each month shall be applied in the month in which it is normally received. The following income rules apply to individuals not subject to a MAGI-based methodology:

1.Recurring unearned lump sum payments received after application for Medicaid shall be prorated over the number of months the payment is intended to cover. When a payment is received and prorated in an ongoing case, or after a period of Medicaid eligibility or eligibility for the children's health insurance program as provided in chapter 75-02-02.2, and the case is closed and then reopened during the prorated period, or within the following proration period, the lump sum payment proration must continue. All other recurring unearned lump sum payments received before application for Medicaid or for the children's health insurance program as provided in chapter 75-02-02.2 are considered income in the month received and are not prorated.

2.All nonrecurring unearned lump sum payments, except health or long-term care insurance payments, veterans administration aid and attendance, veterans administration reimbursements for unusual medical expenses, and veterans administration homebound benefits intended for medical expenses shall be considered as income in the month received and assets thereafter.

3.One-twelfth of annual conservation reserve program payments, less expenses, such as seeding and spraying, necessary to maintain the conservation reserve program land in accordance with that program's requirements, is unearned income in each month.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; June 1, 2004; August 1, 2005; January 1, 2011; January 1, 2014. 75-02-02.1-37.1. Unearned income for individuals subject to a MAGI-based methodology.

Unearned income is income that is not earned income. Unearned income received in a fixed amount each month shall be applied in the month in which it is normally received. Effective January 1, 2014, individuals subject to a MAGI-based methodology will have income treated as follows:

1.Recurring unearned lump sum payments received after application for Medicaid shall be prorated over the number of months the payment is intended to cover. When a payment is received and prorated in an ongoing case, or after a period of Medicaid eligibility or eligibility for the children's health insurance program as provided in chapter 75-02-02.2, and the case is closed and then reopened during the prorated period, or within the following proration period, the lump sum payment proration must continue. All other recurring unearned lump sum payments received before application for Medicaid or for the children's health insurance program as provided in chapter 75-02-02.2 are considered income in the month received and are not prorated.

2.All nonrecurring unearned lump sum payments, except health or long-term care insurance payments, veterans administration aid and attendance, veterans administration reimbursements for unusual medical expenses, and veterans administration homebound benefits intended for medical expenses shall be considered as income in the month received and assets thereafter.

3.Net taxable conservation reserve program (CRP) income is considered income and prorated over the year. 75-02-02.1-38. Earned income.

Earned income is income that is currently received as wages, salaries, commissions, or profits from activities in which an individual or family is engaged through either employment or self-employment.

Income is "earned" only if the individual or family contributes an appreciable amount of personal involvement and effort. Earned income shall be applied in the month in which it is normally received.

The following income rules apply to individuals not subject to a MAGI-based methodology:

1.If earnings from more than one month are received in a single payment, the payment must be divided by the number of months in which the income was earned, and the resulting monthly amounts shall be attributed to each of the months with respect to which the earnings were received.

2.If a self-employed individual's business does not require the purchase of goods for sale or resale, net income from self-employment is seventy-five percent of gross earnings from self-employment.

3.If a self-employed individual's business requires the purchase of goods for sale or resale, net income from self-employment is seventy-five percent of the result determined by subtracting cost of goods purchased from gross receipts.

4.If a self-employed individual's business furnishes room and board, net income from self-employment is monthly gross receipts less one hundred dollars per room and board client.

5.If a self-employed individual is in a service business that requires the purchase of goods or parts for repair or replacement, net income from self-employment is twenty-five percent of the result determined by subtracting cost of goods or parts purchased from gross earnings from self-employment.

6.If a self-employed individual receives income other than monthly, and the most recently available federal income tax return accurately predicts income, net income from self-employment is twenty-five percent of gross annual income, plus any net gain resulting from the sale of capital items, plus ordinary gains or minus ordinary losses, divided by twelve.

If the most recent available federal income tax return does not accurately predict income because the business has been recently established, because the business has been terminated or subject to a severe change, such as a decrease or increase in the size of the operation, or an uninsured loss, net income from self-employment is an amount determined by the county agency to represent the best estimate of monthly net income from self-employment. A self-employed individual may be required to provide, on a monthly basis, the best information available on income and cost of goods. Income statements, when available, shall be used as a basis for computation. If the business is farming, or any other seasonal business, the annual net income, divided by twelve, is the monthly net income.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; January 1, 2014. 75-02-02.1-38.1. Post-eligibility treatment of income.

Except in determining eligibility for workers with disabilities or children with disabilities, this section prescribes specific financial requirements for determining the treatment of income and application of income to the cost of care for an individual screened as requiring nursing care services who resides in a nursing facility, the state hospital, an institution for mental disease, a psychiatric residential treatment facility, or an intermediate care facility for individuals with intellectual disabilities, or who receives swing-bed care in a hospital.

1.The following types of income may be disregarded in determining Medicaid eligibility:

a.Occasional small gifts;

b.For so long as 38 U.S.C. 5503 remains effective, ninety dollars of veterans administration improved pensions paid to a veteran, or a surviving spouse of a veteran, who has neither spouse nor child, and who resides in a Medicaid-approved nursing facility;

c.Payments to certain United States citizens of Japanese ancestry, resident Japanese aliens, and eligible Aleuts made under the Wartime Relocation of Civilians Reparations Act [50 U.S.C. App. 1989 et seq.];

d.Agent orange payments;

e.German reparation payments made to survivors of the holocaust, and reparation payments made under sections 500 through 506 of the Austrian General Social Insurance Act;

f.Netherlands reparation payments based on Nazi, but not Japanese, persecution during World War II [Pub. L. 103-286; 42 U.S.C. 1437a, note];

g.Radiation Exposure Compensation Act [Pub. L. 101-426; 42 U.S.C. 2210, note];

h.Interest or dividend income from liquid assets; and

i.From annual countable gross rental income, an amount equal to real estate taxes for rental property that the recipient is responsible for paying on that property.

2.The mandatory payroll deductions under the Federal Insurance Contributions Act [26 U.S.C. 3101 et seq.] and Medicare are allowed from earned income.

3.In establishing the application of income to the cost of care, the following deductions are allowed in the following order:

a.The nursing care income level;

b.Amounts provided to a spouse or family member for maintenance needs;

c.The cost of premiums for health insurance in the month the premium is paid or prorated and deducted from income in the months for which the premium affords coverage;

d.The cost of premiums for long-term care insurance carried by an individual or the individual's spouse in the month the premium is paid or prorated and deducted from income in the months for which the premium affords coverage;

e.Medical expenses for necessary medical or remedial care that are each:

(1)Documented in a manner which describes the service, the date of the service, the amount of cost incurred, and the name of the service provider;

(2)Incurred in the month for which eligibility is being determined, or was incurred in a prior month but was actually paid in the month for which eligibility is being determined and was not previously allowed as a deduction or offset of recipient liability, and was not applied previously to recipient liability;

(3)Provided by a medical practitioner licensed to furnish the care;

(4)Not subject to payment by any third party, including Medicaid and Medicare;

(5)Not incurred for nursing facility services, swing-bed services, or home and community-based services during a period of ineligibility because of a disqualifying transfer; and (6)Claimed; and

f.The cost of services of an applicant's or recipient's guardian or conservator, up to a maximum equal to five percent of countable gross monthly income excluding nonrecurring lump sum payments.

4.For purposes of this section, "premiums for health insurance" include any payments made for insurance, health care plans, or nonprofit health service plan contracts which provide benefits for hospital, surgical, and medical care, but do not include payments made for coverage which is:

a.Limited to disability or income protection coverage;

b.Automobile medical payment coverage;

c.Supplemental to liability insurance;

d.Designed solely to provide payments on a per diem basis, daily indemnity, or nonexpense-incurred basis; or

e.Credit accident and health insurance.

History: Effective July 1, 2003; amended effective June 1, 2004; May 1, 2006; April 1, 2008; January 1, 2010; January 1, 2011; April 1, 2012; July 1, 2012. 75-02-02.1-38.2. Disregarded income.

This section applies to an individual residing in the individual's own home or in a specialized facility, workers with disabilities coverage, children with disabilities coverage, and to the Medicare savings programs, but does not apply to an individual receiving nursing care services in a nursing facility, the state hospital, an institution for mental disease, a psychiatric residential treatment facility, an intermediate care facility for individuals with intellectual disabilities, or receiving swing-bed care in a hospital. The department shall disregard the following types of income in determining Medicaid eligibility for individuals not subject to a MAGI-based methodology:

1.Money payments made by the department, another state, or tribal entities in connection with the North Dakota long-term subsidy program, foster care, subsidized guardianship, or the subsidized adoption program;

2.Effective July 1, 2026, court-ordered child support payments and social security survivor income for a child under the age of eighteen years and enrolled in a Medicaid waiver under

section 1915(c) of the Act [42 U.S.C. 1396n(c)];

3.County general assistance that may be issued on an intermittent basis to cover emergency-type situations;

4.Income received as a housing allowance by programs sponsored by the United States department of housing and urban development and rent supplements or utility payments provided through a housing assistance program;

5.Income of an individual living in the parental home if the individual is not included in the Medicaid unit;

6.Educational loans, scholarships, grants, awards, workers compensation, vocational rehabilitation payments, and work study received by a student, or any fellowship or gift, or portion of a gift, used to pay the cost of tuition and fees at any educational institution;

7.In-kind income except in-kind income received in lieu of wages;

8.Per capita judgment funds paid to members of the Blackfeet Tribe and the Gross Ventre Tribe under Pub. L. 92-254, to any tribe to pay a judgment of the Indian claims commission or the court of claims under Pub. L. 93-134, or to the Turtle Mountain Band of Chippewa Indians, the Chippewa Cree Tribe of Rocky Boy's Reservation, the Minnesota Chippewa Tribe, or the Little Shell Tribe of Chippewa Indians of Montana under Pub. L. 97-403;

9.Compensation received by volunteers participating in the action program as stipulated in the Domestic Volunteer Service Act of 1973 [Pub. L. 93-113; 42 U.S.C. 4950 et seq.], including foster grandparents, older American community service program, retired senior volunteer program, service corps of retired executives, volunteers in service to America, and university year for action;

10.Benefits received through the low income home energy assistance program;

11.Training funds received from vocational rehabilitation;

12.Training allowances of up to thirty dollars per week provided through a tribal native employment works program, or the job opportunity and basic skills program;

13.Income tax refunds and tax income credits;

14.Needs-based payments, support services, and relocation expenses provided through programs established under the Workforce Investment Act [29 U.S.C. 2801 et seq.], and through the job opportunities and basic skills program;

15.Income derived from submarginal lands, conveyed to Indian tribes and held in trust by the United States, as required by section 6 of Pub. L. 94-114 [25 U.S.C. 459e];

16.Income earned by an eligible child who is a full-time student or a part-time student who is not employed one hundred hours or more per month. The earnings of an eligible child are counted if the child is a part-time student who is employed full-time;

17.Payments from the family subsidy program;

18.The first fifty dollars per month of current child support, received on behalf of children in the Medicaid unit, from each budget unit that is budgeted with a separate income level;

19.Payments made to recipients under title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [Pub. L. 91-646, 42 U.S.C. 4621 et seq.];

20.Payments made tax exempt as a result of section 21 of the Alaska Native Claims Settlement Act [Pub. L. 92-203];

21.Payments to certain United States citizens of Japanese ancestry, resident Japanese aliens, and eligible Aleuts made under the Wartime Relocation of Civilians Reparations Act [Pub. L. 100-383; 50 U.S.C. App. 1989 et seq.];

22.Agent orange payments;

23.A loan from any source that is subject to a written agreement requiring repayment by the recipient;

24.The Medicare part B premium refunded by the social security administration;

25.Payments from a fund established by a state as compensation for expenses incurred or losses suffered as a result of a crime;

26.Temporary assistance for needy families benefit and support service payments;

27.Lump sum supplemental security income benefits in the month in which the benefit is received;

28.German reparation payments made to survivors of the holocaust and reparation payments made under sections 500 through 506 of the Austrian General Social Insurance Act;

29.Assistance received under the Disaster Relief and Emergency Assistance Act of 1974 [Pub. L. 93-288; 42 U.S.C. 5121 et seq.], or some other federal statute, because of a presidentially declared major disaster, and interest earned on that assistance;

30.Refugee cash assistance or grant payments;

31.Payments from the child and adult food program for meals and snacks to licensed families who provide day care in their home;

32.Extra checks consisting only of the third regular payroll check or unemployment benefit payment received in a month by an individual who is paid biweekly, and the fifth regular payroll check received in a month by an individual who is paid weekly;

33.All income, allowances, and bonuses received as a result of participation in the job corps program;

34.Payments received for the repair or replacement of lost, damaged, or stolen assets;

35.Homestead tax credit;

36.Training stipends provided to victims of domestic violence by private, charitable organizations for attending their educational programs;

37.Allowances paid to children of Vietnam veterans who are born with spina bifida, or to children of women Vietnam veterans who are born with certain covered birth defects, under 38 U.S.C. 1805 or 38 U.S.C. 1815;

38.Netherlands reparation payments based on Nazi, but not Japanese, persecution during World War II [Pub. L. 103-286; 42 U.S.C. 1437a, note];

39.Radiation Exposure Compensation Act [Pub. L. 101-426; 42 U.S.C. 2210, note];

40.Interest or dividend income from liquid assets;

41.Additional pay received by military personnel as a result of deployment to a combat zone;

42.All wages paid by the census bureau for temporary employment related to census activities;

43.Occasional small gifts;

44.Money received by American Indians from the lease or sale of natural resources and rent or lease income, resulting from the exercise of federally protected rights on excluded American Indian property, which is considered an asset conversion and is therefore not considered as income. This includes distributions of per capita judgment funds or property earnings held in trust for a tribe. This does not include local tribal funds that a tribe distributes to individuals on a per capita basis, but which have not been held in trust by the secretary of interior;

45.Medicare part D premiums, copayments, and deductibles refunded by prescription drug plans;

46.Wages paid by the census bureau for temporary employment related to census activities;

47.The first two thousand dollars received by an individual over the age of nineteen as compensation for participation in a clinical trial for rare diseases or conditions meeting the requirements of section 1612(b)(26) of the Act [42 U.S.C. 1382a(b)(26)];

48.Monthly food coupons distributed to individuals over the age of fifty-five from the Sisseton- Wahpeton Oyate Lake Traverse Reservation food distribution program;

49.Payments distributed by the emergency rent assistance program;

50.Reimbursements from an employer, training agency, or other organization for past or future training, or volunteer-related expenses. Reimbursements must be specified for an identified expense, other than normal living expenses and used for the purpose intended. Disregarded reimbursements include reimbursements for job or training-related expenses such as travel, per diem, uniforms, and transportation to and from the job or training site and for out-of-pocket expenses of a volunteer incurred in the course of the volunteer's work; and

51.Disbursements from the people's fund and general disbursements to a member of the Mandan, Hidatsa, Arikara Nation that come from natural resources royalties.

History: Effective July 1, 2003; amended effective June 1, 2004; May 1, 2006; April 1, 2008; January 1, 2010; January 1, 2011; April 1, 2012; July 1, 2012; January 1, 2014; January 1, 2026. 75-02-02.1-38.3. Disregarded income for certain individuals subject to a MAGI-based This section applies to an individual residing in the individual's own home or in a specialized facility, workers with disabilities coverage, children with disabilities coverage, and to the Medicare savings programs, but does not apply to an individual receiving nursing care services in a nursing facility, the state hospital, an institution for mental disease, a psychiatric residential treatment facility, an intermediate care facility for individuals with intellectual disabilities, or receiving swing-bed care in a hospital. The department shall allow the above-identified individuals subject to a MAGI-based methodology the following income disregards:

1.Nontaxable income other than:

a.Nontaxable foreign earned income;

b.Nontaxable interest; and

c.The nontaxable portion of social security benefits.

2.Supplemental security income.

3.Veterans administration benefits other than retirement pensions, including:

a.Disability benefits;

b.Aid and attendance payments;

c.Homebound benefits; and

d.Reimbursements for unusual medical expenses.

4.Child support income.

5.Temporary assistance for needy families benefits and support services payments.

6.Workforce safety and insurance benefits.

7.Proceeds from life, accident , or health insurance.

8.Income tax credits and income tax refunds.

9.Gifts and loans.

10.Inheritances.

11.Child's income when allowed under the Patient Protection and Affordable Care Act [Pub L. 111-148; 42 U.S.C. 18001 et seq.] income methodologies.

12.Tribal general assistance payments.

13.Subsidized guardianship payments.

14.Educational scholarships, awards, and fellowship grants used for educational expenses that are not used for living expenses or other noneducational-related expenses.

15.Certain distributions, payments, and student financial assistance for American Indians and Alaska Natives if they were initially counted as taxable income.

16.Nonrecurring and recurring lump sum payments of disregarded earned or unearned income:

a.Veterans administration aid and attendance payments;

b.Veterans administration homebound benefits;

c.Veterans administration reimbursements for unusual medical expenses;

d.Veterans administration dependents indemnity compensation;

e.Insurance settlements for destroyed exempt property;

f.Death benefits;

g.Health or long-term care insurance payments;

h.Life insurance proceeds; or

i.Accident insurance proceeds.

17.Voluntary cash contributions from others.

18.Proceeds from a loan agreement, including reverse mortgages. If the individual lending the money receives interest, the interest received is income.

19.Hostile fire pay if an individual is on active military duty serving in a combat zone. The full amount of the individual's military pay must be excluded from taxable income.

20.Deposits to a joint checking account made by a nonhousehold member.

21.Monetary payments made by the department, another state, or tribal entities in connection with the North Dakota long-term care subsidy program, foster care, subsidized guardianship, or the subsidized adoption program.

22.Benefits received through the low-income home energy assistance program.

23.Refugee cash assistance or grant payments.

24.County general assistance that may be issued on an intermittent basis to cover emergencytype situations.

25.Payments from the child and adult food program for meals and snacks to licensed families who provide day care in their home.

26.Payments from the family subsidy program.

27.Income received as a housing allowance by programs sponsored by the United States department of housing and urban development and rent supplements or utility payments provided through the housing assistance program.

28.Money received by American Indians from the lease or sale of natural resources and rent or lease income, resulting from the exercise of federally protected rights on excluded American Indian property, which is considered an asset conversion and is therefore not considered as income. This includes distributions of per capita judgment funds or property earnings held in trust, for a tribe. This does not include local tribal funds that a tribe distributes to individuals on a per capita basis, but which have not been held in trust by the secretary of interior.

29.Income derived from submarginal lands, conveyed to Indian tribes and held in trust by the United States, as required by Pub. L. 94-114.

30.Compensation received by volunteers participating pursuant to the Domestic Volunteer Service Act of 1973 [Pub. L. 93-113; 42 U.S.C. 4950 et seq.].

31.Payments made to recipients under title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [Pub. L. 91-646, 42 U.S.C. 4621 et seq.].

32.All income, allowances, and bonuses received as a result of participation in the job corps program.

33.Payments received for the repair or replacement of lost, damaged, or stolen assets.

34.Homestead tax credits.

35.Training funds received from vocational rehabilitation.

36.Training allowances of up to thirty dollars per week provided through a tribal native employment workers program or the job opportunities and basic skills training program.

37.Needs-based payments, support services, and relocation expenses provided through programs established under the Workforce Innovation and Opportunity Act [Pub. L. 113-128; 29 U.S.C. 701 et seq.] and through the job opportunities and basic skills program.

38.Training stipends provided to victims of domestic violence by private, charitable organizations for attending their educational programs.

39.Tax-exempt portions of payments made as a result of the Alaska Native Claims Settlement Act [Pub. L. 92-203].

40.Payments to certain United States citizens of Japanese ancestry, resident Japanese noncitizens and eligible Aleuts made under the Wartime Relocation of Civilians Reparations Act [Pub. L. 100-383; 50 U.S.C. App. 1989 et seq.].

41.Agent orange payments.

42.Crime victims reparation payments.

43.German reparation payments made to survivors of the holocaust and reparation payments made under sections 500 through 506 of the Austrian General Social Insurance Act.

44.Assistance received under the Disaster Relief and Emergency Assistance Act of 1974 [Pub. L. 93-288; 42 U.S.C. 5121 et seq.] or other federal statute, because of the presidentially declared major disaster, including disaster assistance unemployment compensation, and interest earned on that assistance. Comparable assistance received from a state or local government or from a disaster assistance organization is also excluded.

45.Allowances paid to children of Vietnam veterans who are born with spina bifida or to children of women Vietnam veterans who are born with certain covered birth defects.

46.Netherlands reparation payments based on Nazi, but not Japanese, persecution during World War II [Public L. 103-286; 42 U.S.C. 1437a, note].

47.Radiation Exposure Compensation Act [Public L. 101-426; 42 U.S.C. 2210, note].

48.The Medicare part B premium refunded by the social security administration.

49.Medicare part D premiums, copayments, and deductibles refunded by prescription drug plans.

50.Reimbursements from an employer, training agency, or other organization or past or future training, or volunteer-related expenses. Reimbursements must be specified for an identified expense other than normal living expenses and used for the purpose intended. Disregarded reimbursements include reimbursements for job or training related expenses such as travel, per diem, uniforms, and transportation to and from the job or training site and for reimbursements for out-of-pocket expenses of a volunteer incurred in the course of the volunteer's work.

51.The first two thousand dollars received by an individual over the age of nineteen as compensation for participation in a clinical trial for rare diseases or conditions meeting the requirements of section 1612(b)(26) of the Act [42 U.S.C. 1382a(b)(26)].

52.Monthly food coupons distributed to individuals over the age of fifty-five from the Sisseton- Wahpeton Oyate Lake Traverse Reservation food distribution program.

53.Payments of flat rate insurance like a hospital plan that pays a daily rate to the client for each day in the hospital.

54.Any withdrawal made from a 529 plan is excluded as income if the funds are used for the intended purposes. If the funds are withdrawn and not used for the qualified education expenses of the designated beneficiary, the withdrawn funds become taxable income and must be counted.

55.Payments distributed by the emergency rent assistance program.

56.Parent mentor compensation of a parent or guardian of a Medicaid or children's health insurance program eligible-child who is trained to assist families with children who have no health insurance coverage with respect to improving social determinants of the health of such child.

57.Alimony received if the alimony agreement is finalized or an existing alimony agreement if modified on or after January 1, 2019.

58.Discharged student loan debt, normally included in MAGI-based income, for tax years 2018 through 2025 in cases of discharged debt on account of the death or permanent and total disability of a student. Debt is not included as income of the borrower.

59.Disbursements from the people's fund and general disbursements to members of the Mandan, Hidatsa, Arikara Nation that come from natural resources royalties.

History: Effective January 1, 2014; amended effective January 1, 2026. 75-02-02.1-38.4. Earned income for individuals subject to a MAGI-based methodology.

Earned income is income that is currently received as wages, salaries, commissions, or profits from activities in which an individual or family is engaged through either employment or self-employment.

Income is "earned" only if the individual or family contributes an appreciable amount of personal involvement and effort. Earned income shall be applied in the month in which it is normally received.

Effective January 1, 2014, individuals subject to a MAGI-based methodology will have income treated as follows:

1.If earnings from more than one month are received in a single payment, the payment must be divided by the number of months in which the income was earned, and the resulting monthly amounts shall be attributed to each of the months with respect to which the earnings were received.

2.Net earnings or losses from self-employment as considered for income tax purposes are counted for modified adjusted gross income households. 75-02-02.1-39. Income deductions.

This section applies to an individual residing in the individual's own home or in a specialized facility, workers with disabilities coverage, children with disabilities coverage, and to the Medicare savings programs, but does not apply to an individual receiving nursing care services in a nursing facility, the state hospital, an institution for mental disease, a psychiatric residential treatment facility, an intermediate care facility for individuals with intellectual disabilities, or receiving swing-bed care in a hospital. No deduction not described in subsections 1 through 14 may be allowed in determining Medicaid eligibility. For individuals not subject to a MAGI-based methodology, the following deductions apply:

1.Except in determining eligibility for the Medicare savings programs, the cost of premiums for health insurance may be deducted from income in the month the premium is paid or prorated and deducted from income in the months for which the premium affords coverage. In determining eligibility for the workers with disabilities coverage, the workers with disabilities enrollment fee and premiums are not deducted. In determining eligibility for the children with disabilities coverage, the children with disabilities premiums are not deducted. For purposes of this subsection, "premiums for health insurance" include payments made for insurance, health care plans, or nonprofit health service plan contracts which provide benefits for hospital, surgical, and medical care, but do not include payments made for coverage which is:

a.Limited to disability or income protection coverage;

b.Automobile medical payment coverage;

c.Supplemental to liability insurance;

d.Designed solely to provide payments on a per diem basis, daily indemnity, or nonexpense-incurred basis; or

e.Credit accident and health insurance.

2.Except in determining eligibility for the Medicare savings programs, medical expenses for necessary medical or remedial care may be deducted only if each is:

a.Documented in a manner which describes the service, the date of the service, the amount of the cost incurred, and the name of the service provider;

b.Incurred by a member of a Medicaid unit in the month for which eligibility is being determined, or was incurred in a prior month but was actually paid in the month for which eligibility is being determined and was not previously allowed as a deduction or offset of recipient liability, and was not previously applied to recipient liability;

c.Provided by a medical practitioner licensed to furnish the care;

d.Not subject to payment by any third party, including Medicaid and Medicare;

e.Not incurred for nursing facility services, swing-bed services, or home and community-based services during a period of ineligibility determined under section 75-02-02.1-33.1; and

f.Claimed.

3.Reasonable expenses such as food and veterinarian expenses necessary to maintain a service animal that is trained to detect seizures for a member of the Medicaid unit.

4.Except for a support payment withheld from an extra check that is disregarded, nonvoluntary child and spousal support payments may be deducted if actually paid by a member of the Medicaid unit.

5.The cost of premiums for long-term care insurance carried by an individual or the individual's spouse may be deducted from income in the month the premium is paid or prorated and deducted from income the months for which the premium affords coverage. No premium deduction may be made in determining eligibility for the Medicare savings programs.

6.Reasonable child care expenses, not otherwise reimbursed, may be deducted to the extent necessary to permit a caretaker or a spouse to work or participate in training. Reasonable child care expenses do not include payments to parents to care for their own children.

7.With respect to each individual in the Medicaid unit who is employed or in training, but who is not aged, blind, or disabled, thirty dollars may be deducted as a work or training allowance, but only if the individual's income is counted in the eligibility determination.

8.Except in determining eligibility for the Medicare savings programs, transportation expenses may be deducted if necessary to secure medical care provided for a member of the Medicaid unit.

9.Except in determining eligibility for the Medicare savings programs, the cost of remedial care for an individual residing in a specialized facility, limited to the difference between the recipient's cost of care at the facility and the regular medically needy income level, may be deducted.

10.A disregard of twenty dollars per month is deducted from any income, except income based on need, such as supplemental security income and need-based veterans' pensions. This deduction applies to all aged, blind, and disabled applicants or recipients, provided that:

a.When more than one aged, blind, or disabled person lives together, no more than a total of twenty dollars may be deducted;

b.When both earned and unearned income is available, this deduction must be made from unearned income; and

c.When only earned income is available, this deduction must be made before deduction of sixty-five dollars plus one-half of the remaining monthly gross income made under subdivision b of subsection 13.

11.Reasonable adult dependent care expenses for an incapacitated or disabled adult member of the Medicaid unit may be deducted to the extent necessary to permit a caretaker or a spouse to work or participate in training.

12.The cost to purchase or rent a car safety seat for a child through age ten is allowed as a deduction if a seat is not otherwise reasonably available.

13.The deductions described in this subsection may be allowed only on earned income.

a.For all individuals except aged, blind, or disabled applicants or recipients, deduct:

(1)Mandatory payroll deductions and union dues withheld, or ninety dollars, whichever is greater;

(2)Mandatory retirement plan deductions;

(3)Union dues actually paid; and (4)Expenses of a nondisabled blind person, reasonably attributable to earning income.

b.For all aged, blind, or disabled applicants or recipients, deduct sixty-five dollars plus one-half of the remaining monthly gross earned income, provided that, when more than one aged, blind, or disabled person lives together, no more than sixty-five dollars, plus one-half of the remaining combined earned income, may be deducted.

14.A deduction may be made for the cost of services of an applicant's or recipient's guardian or conservator, up to a maximum equal to five percent of countable gross monthly income excluding nonrecurring lump sum payments.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; April 1, 2008; January 1, 2010; January 1, 2011; April 1, 2012; July 1, 2012; January 1, 2014. 75-02-02.1-39.1 Income deductions for individuals subject to a MAGI-based methodology.

This section applies to an individual residing in the individual's own home or in a specialized facility, workers with disabilities coverage, children with disabilities coverage, and to the Medicare savings programs. This section does not apply to an individual receiving nursing care services in a nursing facility, the state hospital, an institution for mental disease, a psychiatric residential treatment facility, an intermediate care facility for individuals with intellectual disabilities, or receiving swing-bed care in a hospital. Effective January 1, 2014. individuals subject to a MAGI-based methodology are allowed a standard deduction of five percent of the one hundred percent of poverty level applicable to the size of the individual's Medicaid unit. 75-02-02.1-40. Income levels.

1.The department shall use levels of income for maintenance as a basis for establishing financial eligibility for Medicaid. The income levels applicable to individuals and units are:

a.Categorically needy income levels.

(1)Family coverage income levels established in the Medicaid state plan are applied to the family coverage group. The family size is increased for each unborn child when determining the appropriate family size.

(2)Except for individuals subject to the nursing care income level, the income level for categorically needy aged, blind, or disabled recipients is that which establishes supplemental security income eligibility.

b.Medically needy income levels.

(1)Medically needy income levels established in the Medicaid state plan are applied if a Medicaid individual or unit resides in the individual's or the unit's own home or in a specialized facility, and if a Medicaid individual has been screened as requiring nursing care, but elects to receive home and community-based services. The family size is increased for each unborn child when determining the appropriate family size.

(2)The nursing care income levels established in the Medicaid state plan are applied to residents receiving care in a nursing facility, an intermediate care facility for individuals with intellectual disabilities, the state hospital, an institution for mental disease, a psychiatric residential treatment facility, or receiving swing-bed care in a hospital.

(3)The community spouse income level for a Medicaid eligible community spouse is subject to subdivision a, paragraph 1 of subdivision b, or subdivision c. The level for an ineligible community spouse is the minimum amount permitted under section 1924(d)(3)(c) of the Act [42 U.S.C. 1396r-5(d)(3)(C)], as adjusted pursuant to

section 1924(g) of the Act [42 U.S.C. 1396r-5(g)].

(4)The income level for each ineligible family member in a spousal impoverishment prevention case is equal to one-third of an amount determined in accordance with

section 1924(d)(3)(A)(i) of the Act [42 U.S.C. 1396r-5(d)(3)(A)(i)], less the monthly income of that family member. For purposes of this paragraph, "family member" has the meaning given in subsection 1 of section 75-02-02.1-24.

c.Poverty income level.

(1)The income level for children under age six is equal to one hundred forty-seven percent of the poverty level applicable to a family of the size involved. The family size is increased for each unborn child when determining the appropriate family size.

(2)The income level for pregnant women is equal to one hundred seventy percent of the poverty level applicable to a family of the size involved. The family size is increased for each unborn child when determining the appropriate family size.

(3)Qualified Medicare beneficiaries. The income level for qualified Medicare beneficiaries is equal to one hundred percent of the poverty level applicable to the family of the size involved. The income level applies regardless of living arrangement.

(4)The income level for children aged six to nineteen and adults aged nineteen to sixty-five is equal to one hundred thirty-three percent of the poverty level applicable to a family of the size involved. The family size is increased for each unborn child when determining the appropriate family size.

(5)The income level for transitional Medicaid benefits is equal to one hundred and eighty-five percent of the poverty level applicable to a family of the size involved.

The family size is increased for each unborn child when determining the appropriate family size.

(6)The income level for qualified working and disabled individuals is equal to two hundred percent of the poverty level applicable to the family of the size involved.

The income level applies regardless of living arrangement.

(7)The income level for specified low-income Medicare beneficiaries is equal to one hundred twenty percent, of the poverty level applicable to a family of the size involved. The income level applies regardless of living arrangement.

(8)The income level for qualified individuals is equal to one hundred thirty-five percent of the poverty level applicable to a family of the size involved. The income level applies regardless of living arrangement.

(9)The income level for workers with disabilities is two hundred twenty-five percent of the poverty level applicable to a family of the size involved. The income level applies regardless of living arrangement.

(10)The income level for children with disabilities is two hundred fifty percent of the poverty level applicable to a family of the size involved. The income level applies regardless of living arrangement.

2.Determining the appropriate income level in special circumstances.

a.During a month in which an individual enters a specialized facility or leaves a specialized facility to return home, the individual must be included in the family unit in the home for the purpose of determining the family size and the appropriate income level. An individual residing in a specialized facility is entitled to the appropriate medically needy, workers with disabilities, or children with disabilities income level for one during all full calendar months in which the individual resides in the facility.

b.During a month in which an individual with eligible family members in the home enters or leaves a nursing facility to return home, or elects to receive home and community-based services or terminates that election, the individual must be included in the family unit in the home for the purpose of determining the family size and the appropriate medically needy, workers with disabilities, or children with disabilities income level. An individual in a nursing facility must be allowed one hundred fifteen dollars to meet maintenance needs during all full calendar months in which the individual resides in the nursing facility. The department yearly shall adjust the maintenance needs payment based on the consumer price index. A recipient of home and community-based services is entitled to the medically needy income level for one during all full calendar months in which the individual receives home and community-based services. In determining eligibility for workers with disabilities or children with disabilities coverage, individuals in a nursing facility, or in receipt of home and community-based services, are entitled to the appropriate workers with disabilities or children with disabilities income level for one during all full calendar months in which the individual resides in the facility.

c.For an institutionalized spouse with an ineligible community spouse, the one hundred fifteen dollar income level is effective in the month of entry, during full calendar months, and in the month of discharge. The department yearly shall adjust the maintenance needs payment based on the consumer price index. The ineligible community spouse and any other family members remaining in the home shall have the income levels described in paragraphs 3 and 4 of subdivision b of subsection 1.

d.For a spouse electing to receive home and community-based services, who has an ineligible community spouse, the medically needy income level for one is effective in the month the home and community-based services begin, during full calendar months, and in the month the home and community-based services are terminated. The ineligible community spouse and any other family members remaining in the home shall have the income levels described in paragraphs 3 and 4 of subdivision b of subsection 1.

e.An individual who enters a nursing facility may receive the medically needy income level for one if a physician certifies that the individual is likely to return to the individual's home within six months. The six-month period begins with the first full calendar month the individual is in the nursing facility. If, at any time during the six-month period, the individual's status changes and the stay in the nursing facility is expected to exceed the six months, the individual may have only the nursing care income level beginning in the month following the month of the status change. An individual may receive the medically needy income level for only one six-month period per stay in a nursing facility. If an individual is discharged, then readmitted to a nursing facility, there must be a break of at least one full calendar month between the periods of institutionalization in order for the new stay to be considered a new period of institutionalization.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; April 1, 2008; January 1, 2010; January 1, 2011; July 1, 2012; January 1, 2014;

January 1, 2020; January 1, 2024; January 1, 2025; January 1, 2026.

Law Implemented: NDCC 50-24.1-02, 50-24.1-02.7, 50-24.1-37, 50-24.1-41 75-02-02.1-41. Deeming of income.

Excess income is the amount of net income remaining after allowing the appropriate disregards, deductions, and Medicaid income level.

1.Twenty-five percent of the excess income of an ineligible Medicaid unit shall be deemed available during any full calendar month an eligible member of the Medicaid unit receives services in a specialized facility.

2.No income may be deemed to a supplemental security income recipient in a specialized facility or receiving home and community-based services as such a recipient's maintenance needs are met by the supplemental security income grant.

3.If subdivision a or b applies, the excess income of an individual in nursing care, an intermediate care facility for individuals with intellectual disabilities, the state hospital, or the Anne Carlsen facility, receiving swing bed care in a hospital or receiving home and community-based services may be deemed to the individual's legal dependents to bring their income up to the appropriate medically needy income level.

a.The legal dependents who are also eligible for Medicaid do not receive a temporary assistance for needy families payment or supplemental security income. In these circumstances, income may be deemed only to the extent it raises the legal dependents' income to the appropriate medically needy income level.

b.The legal dependents are ineligible for Medicaid or choose not to be covered by Medicaid. In these circumstances, income may be deemed only to the extent it raises the legal dependents' net income to the appropriate community spouse or family member income level.

(1)Income of the institutionalized or home and community-based spouse may be deemed to an ineligible community spouse only to the extent that income is made available to the community spouse.

(2)Excess income shall be deemed to family members in spousal impoverishment cases, up to the family members' income level.

4.The excess income of a spouse or parent may not be deemed to a recipient to meet medical expenses during any full calendar month in which the recipient receives nursing care services in a nursing facility, an intermediate care facility for individuals with intellectual disabilities, the state hospital, an institution for mental disease, or a psychiatric residential treatment facility, receives swing-bed care in a hospital, or receives home and community-based services.

Income of any eligible spouse or parent shall be deemed to an individual who is ineligible for supplemental security income, up to the appropriate income level.

5.For purposes of determining eligibility for workers with disabilities or children with disabilities coverage, income of a spouse or parent may be deemed to a nonsupplemental security income spouse or child, who is in the Medicaid unit, but who is not residing with the applicant or recipient, to bring their income up to the appropriate workers with disabilities or children with disabilities income level.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 1993; July 1, 2003;

June 1, 2004; April 1, 2008; January 1, 2011; July 1, 2012. 75-02-02.1-41.1. Recipient liability.

Recipient liability is the amount of monthly net income remaining after all appropriate deductions, disregards, and Medicaid income levels have been allowed. All such income must be considered to be available for the payment of medical services provided to the eligible individual or family.

The following deductions apply to all individuals:

1.Up to fifteen dollars per month of expenses for necessary medical or remedial care, incurred by a member of the Medicaid unit or spouse or child for whom that member is legally responsible, in a month prior to the month for which eligibility is being determined, may be subtracted from recipient liability other than recipient liability created as a result of medical care payments, to determine remaining recipient liability, provided that:

a.The expense was incurred in any month during which the individual who received the medical or remedial care was not a Medicaid recipient or the expense was incurred in a month the individual was a Medicaid recipient, but for a medical or remedial service not covered by Medicaid;

b.The expense was not previously applied in determining eligibility for, or the amount of, Medicaid benefits for any Medicaid recipient;

c.The medical or remedial care was provided by a medical practitioner licensed to furnish the care;

d.The expense is not subject to payment by any third party, including Medicaid and Medicare;

e.The expense was not incurred for swing-bed services provided in a hospital, nursing facility services, or home and community-based services during a period of ineligibility determined under section 75-02-02.1-33.1;

f.Each expense claimed for subtraction is documented by the applicant or recipient in a manner which describes the service, the date of the service, the amount of the cost incurred, the amount of the cost remaining unpaid, the amount of the cost previously applied in determining Medicaid benefits for any Medicaid recipient, and the name of the service provider; and

g.The Medicaid unit is still obligated to pay the provider of the medical or remedial service.

2.The Medicaid unit must apply the remaining recipient liability to expenses of necessary medical care incurred by a member of the Medicaid unit in the month for which eligibility is being determined. The Medicaid unit is eligible for Medicaid benefits to the extent the expenses of necessary medical care incurred in the month for which eligibility is being determined exceed remaining recipient liability in that month.

History: Effective December 1, 1991; amended effective January 1, 2003; January 1, 2014; January 1, 2020. 75-02-02.1-41.2. Budgeting.

1.Definitions. For purposes of this section:

a."Base month" means the calendar month prior to the processing month.

b."Benefit month" means the calendar month for which eligibility and recipient liability is being computed.

c."Best estimate" means an income, expense, or circumstance prediction based on past amounts of income and expenses and known factual information concerning future circumstances which affect eligibility, expenses to be incurred; or income to be received in the benefit month. Factual information concerning future circumstances must be based on information by which the applicant or recipient demonstrates known changes or highly probable changes to the income, expenses, or circumstances which offset eligibility, from the base month to the benefit month.

d."Processing month" means the month between the base month and the benefit month.

e."Prospective budgeting" means computation of a household's eligibility and recipient liability based on the best estimate of income, expenses, and circumstances for a benefit

2.Computing recipient liability for previous month. Compute the amount of recipient liability by use of actual verified information, rather than best estimate, in each of the previous months for which eligibility is sought.

3.Computing recipient liability for the current month and next month at time of approval of the application. Compute the amount of the recipient liability prospectively for the current month and the next month. The income received or best estimate of income to be received during the current month must be used to compute the recipient liability for the current month.

The best estimates of income to be received during the next month must be used to compute the recipient liability for the next month.

4.Computing recipient liability for ongoing cases.

a.For cases with fluctuating income, compute the recipient liability using verified income, expenses, and circumstances which existed during the base month, unless factual information concerning future circumstances is available. Recipients must report their income, expenses, and other circumstances on a monthly basis to determine continued

b.For cases with stable income, compute the recipient liability using the best estimate of income, expenses, and circumstances. Recipients with stable income must report changes in income, expenses, and other circumstances within ten days of the day the recipients became aware of the change. A determination of continued eligibility, after a change is reported and demonstrated, is based on a revised best estimate which takes the changes into consideration.

5.Budgeting procedures used when adding individuals to an eligible unit. Individuals may be added to an eligible unit up to one year prior to the current month, provided the individual meets all eligibility criteria for Medicaid, the eligible unit was eligible in all of the months in which eligibility for the individual is established, and the individual was in the unit in the months with respect to which eligibility for that individual is sought unless the individual would have been eligible under the adult group. Recipient liability will be based on the unit's actual income and circumstances when adding each individual for retroactive periods. Recipient liability must be based on the unit's income and circumstances from the base month, plus the best estimate of each individual's income and circumstances when adding each individual to the current or next month, unless the individual would have been eligible under the adult group.

6.Budgeting procedures when deleting individuals from a case. When a member of an existing unit is expected to leave the unit during the benefit month, that person may remain as a member of the unit until the end of the benefit month.

7.Budgeting procedures when determining overpayments. When a household fails to report a change that results in a decrease in coverage, the maximum amount of the overpayment is:

a.The difference between the correct amount of recipient liability and the actual recipient liability paid by the Medicaid household;

b.The amount paid in error for all months the individual should not have been eligible under a fee-for-service benefit plan; or

c.The amount paid for a premium under a managed care benefit plan.

History: Effective December 1, 1991; amended effective May 1, 2006; January 1, 2014; April 1, 2018.

Law Implemented: NDCC 50-24.1-02, 50-24.1-37 75-02-02.1-42. Eligibility under 1972 state plan.

No individual may be determined to be ineligible for Medicaid for any month if, had the approved state plan for medical assistance in effect on January 1, 1972, been in effect in such month, that individual would be eligible. The following income and resource standards were a part of the approved state plan in effect on January 1, 1972, and may not be exceeded by any individual who claims eligibility under this section:

1.The income level for a family of one is one hundred fifty dollars per month. The income level for a family of two is two hundred dollars per month. The income level for a family of three is two hundred fifty dollars per month. The income level for a family of four is three hundred dollars per month. The income level for a family of five is three hundred forty-two dollars per month. The income level for a family of six is three hundred eighty-four dollars per month. The income level for a family of seven is four hundred twenty-five dollars per month. An additional thirty-four dollars per month will be added for each family member beyond seven to establish the income level for families with more than seven members. The income level for a person residing in a long-term care facility is eight dollars per month.

2.The home occupied by the Medicaid unit will be exempted in determining Medicaid eligibility.

3.Real property other than the home may not exceed an equity of two thousand five hundred dollars, except that real property which is essential to earning a livelihood shall be exempt from the limitation, if the liquidation of such assets would cause undue hardship. Liquidation of income-producing real property, which would result in reducing annual income below the established income levels, would be considered undue hardship. If undue hardship is not a consideration, equity in excess of the two thousand five hundred dollars would be considered available for meeting medical costs, providing the property is saleable. The person would have the option of liquidating the excess property or borrowing funds on it.

4.For the purposes of subsections 5, 6, and 7, personal property includes cash, savings, redeemable stocks and bonds, vehicles, machinery, or livestock, but does not include personal effects, wearing apparel, household goods, furniture, or trailer homes being used for living quarters. Cash surrender value of life insurance policies will be considered personal property, but will not be considered cash.

5.Personal property may not exceed an equity of two thousand five hundred dollars except that such property which is essential to the earning of a livelihood shall be exempt from the limitation if the liquidation of such excess assets would cause undue hardship. Liquidation of income-producing personal property which would result in reducing annual income below the established income levels would be considered undue hardship. If undue hardship is not found to be a consideration, equity in excess of the two thousand five hundred dollars would be considered available for meeting medical costs providing the property is saleable. The person would have the option of liquidating the excess property or borrowing funds on it.

6.In all instances, real and personal property must be realistically evaluated in accord with current market value and, in considering net equity, any possible costs which may be associated with liquidation of the excess property must be taken into account.

7.With respect to cash, savings, redeemable stocks and bonds, and other liquid assets, the following levels will be applicable to families of various sizes:

a.Three hundred fifty dollars for one person;

b.Seven hundred dollars for two persons;

c.Fifty dollars for each family member through ten; and

d.Twenty-five dollars for each additional family member. These amounts will not be considered as being available for medical expenses.

History: Effective December 1, 1991. 75-02-02.1-43. Payment for services by attorney-in-fact.

1.For purposes of determining an individual's eligibility under this chapter, if payment is made by the individual to the individual's attorney-in-fact for services or assistance furnished to the individual by the attorney-in-fact, the department may not treat the services or assistance furnished as consideration for the transferred income or asset unless: a.(1)The payment is made pursuant to a valid written contract entered between the individual and the attorney-in-fact prior to the attorney-in-fact rendering the services;

(2)The contract was executed by the individual or the individual's fiduciary who is not the provider or services or assistance under the contract;

(3)Compensation is reasonable and consistent with rates paid in the open market for the services actually provided; and (4)The services are necessary and reasonable; or

b.The prior course of dealing between the individual and the attorney-in-fact included the individual paying compensation to the attorney-in-fact upon the attorney-in-fact's rendering of services or assistance to the individual, or within thirty days thereafter.

2.Reasonable payments are allowed as a spend-down of assets but not as a deduction from income.

History: Effective April 1, 2014.

General Authority: NDCC 50-06-16 75-02-02.1-44. Children's health insurance program.

1.Children ages birth through eighteen years of age are eligible for plan coverage provided all other eligibility criteria are met. Coverage for children who are eighteen years of age will continue through the last day of the month in which the child turns nineteen years of age.

2.A child who has current creditable health insurance coverage or has coverage, which is available at no cost, as defined in section 2701 (c) of the Public Health Service Act [42 U.S.C. 300gg(c)] is not eligible for plan coverage.

3.If the department estimates available funds are insufficient to allow plan coverage for additional applicants, the department may take any action appropriate to avoid commitment of funds in excess of available funds, including denying applications and establishing waiting lists not forbidden by title XXI of the Social Security Act [42 U.S.C. section 1397aa et seq.] or regulations adopted thereunder. If federal children's health insurance program funding decreases, the department may decrease the income eligibility limit to accommodate the decrease in federal funding.

4.Assets may not be considered in determining eligibility for plan coverage.

5.This subsection applies to applications and reviews received and processed for those requesting benefits prior to January 1, 2014. A plan unit may consist of one individual, a married couple, or a family with children under twenty-one years of age, or if disabled, under age eighteen, whose income is considered in determining eligibility for any member of that unit, without regard to whether the members of the unit all physically reside in the same location. A parent or other caretaker of children under twenty-one years of age may select the children who will be included in the plan unit. Anyone who is included in the unit for any month is subject to all plan requirements that may affect the unit. The financial responsibility of relatives must be considered with respect to all members of the assistance unit.

6.This subsection applies to applications and reviews received and processed for those requesting benefits prior to January 1, 2014. All income that is actually available must be considered. Income is actually available when it is at the disposal of an applicant, recipient, or responsible relative when the applicant, recipient, or responsible relative has a legal interest in a liquidated sum and has the legal ability to make the sum available; or when the applicant, recipient, or responsible relative has the lawful power to make the income available or to cause the income to be made available. It is presumed all parental income is actually available to a child under twenty-one years of age. This presumption may be rebutted by a showing that the child is:

a.Living independently; or

b.Living with a parent who is separated from the child's other parent, with or without court order, if the parents did not separate for the purpose of securing plan coverage. The financial responsibility of any individual for any other member of the plan unit is limited to the responsibility of spouse for spouse and parents for children under age twenty-one or under age eighteen if the child is disabled. Such responsibility is imposed as a condition of plan eligibility. Except as otherwise provided in this subsection, the income of the spouse and parents is considered available even if that income is not actually contributed. Natural and adoptive parents, but not stepparents, are treated as parents.

7.Income may be received weekly, biweekly, monthly, intermittently, or annually. A monthly income amount must be computed by the department or county agency regardless of how often income is received.

8.The following types of income must be disregarded in determining eligibility for plan coverage:

a.Supplemental security income benefits provided by the social security administration.

b.Income disregards in section 75-02-02.1-38.2.

9.In determining ownership of income from a document, income must be considered available to each individual as provided in the document or in the absence of a specific provision in the document: a.(1)Income is considered available only to the individual if payment of the income was made solely to that individual; and (2)Income is considered available to each individual in proportion to the individual's interest if payment of income is made to more than one individual.

b.One-half of income is considered available to each spouse in the case of income available to a married couple in which there is no document establishing ownership otherwise.

c.Except in the case of income from a trust, the rules for determining ownership of income are superseded to the extent the applicant or recipient can establish the ownership interests are otherwise than as provided in subdivision d of subsection 4.

10.To determine the appropriate income level for a plan unit:

a.The size of the household is increased by one for each unborn child of a household member;

b.A child who is away at school is not treated as living independently, but is allowed a separate income level for one in addition to the income level applicable for the family unit remaining at home;

c.A child who is living outside of the parental home but who is not living independently; or a spouse who is temporarily living outside of the home to attend training or college, to secure medical treatment, because of temporary work relocation required by an employer, or for other reasons beyond the control of the spouse, is allowed a separate income level. This does not apply to situations in which an individual simply decides to live separately;

d.An individual in a specialized facility is allowed a separate income level for one during all full calendar months in which the individual resides in the facility;

e.An individual in a nursing facility is allowed a separate income level for one; and

f.A recipient of home and community-based services is allowed a separate income level for one.

11.For a child to be eligible for plan coverage, the income remaining after allowing the appropriate disregards and deductions must be equal to or below the income level set by the department in accordance with state law and federal authorization and must be based on the size of the household. If federal children's health insurance program funding decreases, the department may decrease the income eligibility limit to accommodate the decrease in federal funding.

12.This subsection applies to applications and reviews received and processed for those requesting benefits prior to January 1, 2014. The following deductions must be subtracted from monthly income to determine adjusted gross income:

a.For household members with countable earned income:

(1)Actual mandatory payroll deductions, including federal, state, or social security taxes or ninety dollars per month, whichever is greater;

(2)Mandatory retirement plan deductions;

(3)Union dues actually paid; and (4)Expenses of a nondisabled blind individual, reasonably attributable to earning income;

b.Reasonable child care expenses, not otherwise reimbursed by third parties if necessary to engage in employment or training. Reasonable child care expenses do not include payments to parents to care for their own children;

c.Except for a support payment withheld from an extra check that is disregarded, nonvoluntary child and spousal support payments if actually paid by a parent on behalf of an individual who is not a member of the household;

d.With respect to each individual in the unit who is employed or in training, thirty dollars as a work or training allowance, but only if the individual's income is counted in the eligibility determination;

e.The cost of premiums for health insurance may be deducted from income in the month the premium is paid or may be prorated and deducted from income in the months for which the premium affords coverage. This deduction applies primarily for premiums paid for health insurance coverage of members in the unit who are not eligible for this plan coverage. For eligible members, this deduction may be allowed if the health insurance coverage is not creditable health insurance coverage for hospital, medical, or major medical coverage; and

f.The cost of medical expenses for necessary medical or remedial care for members of the unit who are not eligible for this plan coverage.

History: Effective January 1, 2020; amended effective January 1, 2024; January 1, 2025.

General Authority: NDCC 50-29-02

Law Implemented: NDCC 50-24.1-37, 50-29-02, 50-29-04; 42 U.S.C. 1397aa et seq.

Chapter 75-02-02.2 Children's Health Insurance Program [Repealed]

N.D. Admin. Code 75-02-02.2 Children's Health Insurance Program [Repealed]

CHAPTER 75-02-02.2

CHILDREN'S HEALTH INSURANCE PROGRAM [Repealed effective January 1, 2020]

Chapter 75-02-02.3 [Reserved]

N.D. Admin. Code 75-02-02.3 [Reserved]

CHAPTER 75-02-02.3 [Reserved]

Chapter 75-02-02.4 Home and CommunityHome and Community-Based Services Informed Choice Referrals

N.D. Admin. Code 75-02-02.4 Home and CommunityHome and Community-Based Services Informed Choice Referrals

CHAPTER 75-02-02.4

HOME AND COMMUNITY-BASED SERVICES INFORMED CHOICE REFERRALS

Section 75-02-02.4-01Definitions 75-02-02.4-02Informed Choice for Target Population Members 75-02-02.4-03Powers and Duties of the Department 75-02-02.4-04Powers and Duties of Public and Private Entities 75-02-02.4-05Service Availability 75-02-02.4-06Disclosure 75-02-02.4-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

1."Case manager" means the individual who coordinates and leads the person-centered planning process, and who provides each target population member with information about and assistance in accessing home and community-based services.

2."Community provider" means an individual or entity that provides one or more home and community-based services, paid in whole or part by the department, to target population members.

3."Department" means the North Dakota department of human services.

4."Home and community-based services" means department-administered long-term services and supports that target population members are eligible to receive, and which are determined to be necessary through a person-centered planning process to serve target population members in the community.

5."Informed choice" means:

a.The process by which the department ensures target population members have an opportunity to make an informed decision about where to receive services;

b.A choice made after the department has provided virtual or face-to-face person-centered planning and information about the benefits of integrated settings; which may include facilitated visits or other experiences in such settings; and offered opportunities to meet with other individuals with disabilities who are living, working, and receiving services in integrated settings, with their families, and with community providers; and

c.Making reasonable efforts to identify and address any concerns or objections raised by the target population member or another relevant decisionmaker.

6."Most integrated setting" means a setting, determined through person-centered planning, that enables individuals with physical disabilities to interact with nondisabled persons to the fullest extent possible. The most integrated setting for a target population member usually will be a private residence owned or rented by the individual or their family member and in which the individual or their family member has property rights.

7."Nursing facility level of care" means criteria that an individual must meet to be eligible to receive services provided by a nursing facility, pursuant to section 75-02-02-09.

8."Person-centered planning" means:

a.A Medicaid-mandated process, which is driven by the individual, that identifies supports and services that are necessary to meet the individual's needs in the most integrated setting;

b.The individual directs the process to the maximum extent possible and is provided sufficient information and support to provide informed choice; and

c.The process is timely and occurs at times and locations convenient to the individual, reflects the cultural and linguistic considerations of the individual, provides information in plain language and in a manner that is accessible to individuals within the target population, and includes strategies for resolving conflict or disagreement that arises in the planning process.

9."Physical disability" means an impairment, including age-related impairments, that substantially limits a major life activity, including one or more major bodily functions, that the individual meets nursing facility level of care.

10."Public and private entities" include those organizations enrolled as North Dakota Medicaid providers who submit nursing facility level of care determinations for target population members in need of long-term care.

11."Target population member" means an individual with a physical disability over the age of twenty-one who is eligible or likely to become eligible to receive Medicaid long-term services and supports and is likely to require such services for at least ninety days.

Law Implemented: 42 USC 12102; 28 CFR 35, Appendix B; 28 CFR 35.108; 42 CFR 441.725; S.L. 2019, ch. 37, § 44 75-02-02.4-02. Informed choice for target population members.

The department will work with public and private entities in identifying target population members in order to inform them about home and community-based service options. A public or private entity may not require target population members and their guardians or legal representatives to consent to the referral or sign a release of information before a referral is made. However, target population members and their guardians or legal representatives may refuse to participate in the informed choice process.

The target population is comprised of:

1.Individuals with physical disabilities who are at serious risk of entering nursing facilities to access Medicaid-funded long-term care composed of individuals with physical disabilities who:

a.Have been referred for a level of care determination screening to access nursing facility services and are likely to require long-term services and supports;

b.Need services to continue living in the community, have impairments that make them likely to screen at a nursing facility level of care, and have been determined eligible for service payments for the elderly and disabled with less than twenty-five thousand dollars in assets; or

c.Need home and community-based services to continue living in the community and currently have a case management provider or have contacted the North Dakota aging and disability resource link; and

2.Individuals with physical disabilities who:

a.Are receiving Medicaid-funded nursing facility services and are likely to require long-term services and supports; or

b.Are receiving nursing facility services, are likely to become eligible for Medicaid within ninety days, have submitted a Medicaid application, and seeking approval for a long-term nursing facility stay. 75-02-02.4-03. Powers and duties of the department.

The department has the following powers and duties under this chapter:

1.To assign a case manager to complete the informed choice process.

2.To provide information through a person-centered planning process led by the case manager to target population members and their guardians or legal representatives about home and community-based service options and the benefits of integrated settings.

3.To ask target population members or their guardians or legal representatives to provide written or verbal confirmation that they received information through a person-centered planning process, or that they waive their right to receive such information. The department shall retain documentation of the consent or waiver.

4.To determine and develop the type of information necessary to provide the target population members or their guardians or legal representatives with an opportunity to decide whether they oppose receiving services in the least integrated setting appropriate to meet their needs.

5.To provide information about transition supports that may be available to target population members already receiving services in a nursing facility who do not oppose receiving services in the community.

6.To not unnecessarily delay the hospital discharge or nursing facility admission process of target population members if an appropriate referral has been made by a public or private entity to the North Dakota aging and disability resource link or through the request for a level of care determination no later than the day a request for a nursing facility level of care determination is submitted for approval.

7.To assist target population members in accessing home and community-based services if the target population member or their guardian or legal representative do not oppose receiving services in the community and services are appropriate to meet their needs.

8.To not impede any decision made to receive services in a nursing facility for those target population members or their guardians or legal representatives who determine after receiving information about home and community-based options to receive or continue to receive services in a nursing facility. 75-02-02.4-04. Powers and duties of public and private entities.

Public and private entities enrolled as North Dakota Medicaid providers have the following powers and duties to assist the department in identifying target population members and informing target population members about home and community-based service options:

1.To make a referral in a form and manner determined by the department to the North Dakota aging and disability resource link or through the request for a level of care determination for all target population members and their guardians or legal representatives who formally request or are referred for placement in a nursing facility or who are screened for a continued stay in a nursing facility. Nursing facility level of care screening determinations will not be made for target population members unless an appropriate referral has been submitted to the aging and disability resource link or through the request for a level of care determination.

2.To make a referral as soon as the target population member or their guardian or legal representative formally requests or is referred for placement in a nursing facility but no later than the day when a nursing facility level of care is submitted for approval.

3.To inform target population members, or their guardians or legal representatives, in a form and manner determined by the department, that a referral to complete the informed choice process must be made.

4.To afford case managers full access to target population members who are residing in or currently admitted to their facility to complete the informed choice process.

5.To not prevent or impede the informed choice process or attempt to influence in any way the decision of a target population member or their guardian or legal representative to receive services in the most integrated setting appropriate to meet their needs. 75-02-02.4-05. Service availability.

The extent to which appropriate services other than informed choice services are available to target population members are dependent upon legislative appropriations and resources. Eligibility for informed choice services does not create an entitlement to services other than information about home and community-based service options if resources are not available. 75-02-02.4-06. Disclosure.

Public and private entities may disclose target population members individually identifiable health information to the department or its contractors for referral purposes and the disclosure is a disclosure for treatment, including the provision, coordination, and management of health care.

Chapter 75-02-03 Homes for Aged and Infirm

N.D. Admin. Code 75-02-03 Homes for Aged and Infirm

CHAPTER 75-02-03

HOMES FOR AGED AND INFIRM [Superseded by Chapter 75-02-08]

Chapter 75-02-04 Child Support Division [Repealed]

N.D. Admin. Code 75-02-04 Child Support Division [Repealed]

CHAPTER 75-02-04

CHILD SUPPORT DIVISION [Repealed effective October 1, 2018]

Chapter 75-02-04.1 Child Support Guidelines

N.D. Admin. Code 75-02-04.1 Child Support Guidelines

CHAPTER 75-02-04.1

CHILD SUPPORT GUIDELINES

Section 75-02-04.1-01Definitions 75-02-04.1-02Determination of Support Amount - General Instructions 75-02-04.1-03Determination of Child Support Obligation - Split Custody or Primary Residential Responsibility 75-02-04.1-04Minimum Support Level [Repealed] 75-02-04.1-05Determination of Net Income From Self-Employment 75-02-04.1-06Determining the Cost of Supporting a Child Living With the Obligor 75-02-04.1-06.1Determination of Support Amount in Multiple-Family Cases 75-02-04.1-07Imputing Income Based on Earning Capacity 75-02-04.1-08Income of Spouse 75-02-04.1-08.1Adjustment for Extended Parenting Time 75-02-04.1-08.2Equal Residential Responsibility - Determination of Child Support Obligation 75-02-04.1-09Criteria for Rebuttal of Guideline Amount 75-02-04.1-10Child Support Amount 75-02-04.1-11Parental Responsibility for Children in Foster Care or Guardianship Care 75-02-04.1-12Uncontested Proceedings 75-02-04.1-13Application 75-02-04.1-01. Definitions.

1."Child" means any child, by birth or adoption, to whom a parent owes a duty of support.

2."Child living with the obligor" means the obligor's child who lives with the obligor most of the year.

3."Children's benefits" means a payment, to or on behalf of a child of the person whose income is being determined, made by a government, insurance company, trust, pension fund, or similar entity, derivative of the parent's benefits or a result of the relationship of parent and child between such person and such child. Children's benefits do not mean benefits received from public assistance programs that are means tested or provided in the form of subsidy payments made to adoptive parents. 4.a."Gross income" means income from any source, in any form, but does not mean:

(1)Benefits received from public assistance programs that are means tested such as the temporary assistance for needy families, supplemental security income, and supplemental nutrition assistance programs, or that are provided in the form of subsidy payments made to adoptive parents;

(2)Employee benefits over which the employee does not have significant influence or control over the nature or amount unless:

(a)That benefit may be liquidated; and (b)Liquidation of that benefit does not result in the employee incurring an income tax penalty;

(3)Child support payments;

(4)Atypical overtime wages or nonrecurring bonuses over which the employee does not have significant influence or control;

(5)Overseas housing-related allowances paid to an obligor who is in the military to the extent those housing-related allowances exceed the housing allowance in effect at the Minot air force base;

(6)Nonrecurring capital gains; or (7)Early withdrawals from retirement accounts.

b.Examples of gross income include salaries, wages, overtime wages, commissions, bonuses, employee benefits, currently deferred income, dividends, severance pay, pensions, interest, trust income, annuities income, gains, social security benefits, workers' compensation benefits, unemployment insurance benefits, distributions of retirement benefits, receipt of previously deferred income to the extent not previously considered in determining a child support obligation for the child whose support is under consideration, veterans' benefits (including gratuitous benefits), gifts and prizes to the extent they annually exceed one thousand dollars in value, spousal support payments received, refundable tax credits, value of in-kind income received on a regular basis, children's benefits, income imputed based upon earning capacity, military subsistence payments, and net income from self-employment.

c.For purposes of this subsection, income tax due or paid is not an income tax penalty.

5."In-kind income" means the receipt from employment or income-producing activity of any valuable right, property or property interest, other than money or money's worth, including forgiveness of debt (other than through bankruptcy), use of property, including living quarters at no charge or less than the customary charge, and the use of consumable property or services at no charge or less than the customary charge.

6."Net income" means total gross annual income less:

a.A hypothetical federal income tax obligation based on the obligor's gross income, reduced by that part of the obligor's gross income that is not subject to federal income tax and reduced by deductions allowed in arriving at adjusted gross income under the Internal Revenue Code, and applying:

(1)The standard deduction for the tax filing status of single; and (2)Tax tables for a single individual for the most recent year published by the internal revenue service;

b.A hypothetical state income tax obligation equal to eleven percent of the amount determined under subdivision a;

c.A hypothetical obligation for Federal Insurance Contributions Act (FICA), Railroad Retirement Tax Act (RRTA) tier I and tier II, Medicare, and self-employment tax obligations based on that part of the obligor's gross income that is subject to FICA, RRTA, Medicare, or self-employment tax under the Internal Revenue Code;

d.A portion of premium payments, made by the person whose income is being determined, for health insurance policies or health service contracts, including coverage for dental and vision care, intended to afford coverage for the child or children for whom support is being sought, determined by:

(1)If the cost of single coverage for the obligor and the number of persons associated with the premium payment are known:

(a)Reducing the premium payment by the cost for single coverage for the obligor;

(b)Dividing the difference by the total number of persons, exclusive of the obligor, associated with the premium payment; and (c)Multiplying the result times the number of insured children for whom support is being sought; or (2)If the cost of single coverage for the obligor is not known:

(a)Dividing the payment by the total number of persons covered; and (b)Multiplying the result times the number of insured children for whom support is being sought;

e.Payments made on actual medical expenses of the child or children for whom support is sought to the extent it is reasonably likely similar expenses will continue;

f.Union dues and occupational license fees if required as a condition of employment;

g.Employee retirement contributions, deducted from the employee's compensation and not otherwise deducted under this subsection, to the extent required as a condition of employment;

h.Subject to documentation, unreimbursed employee expenses for:

(1)Special equipment or clothing required as a condition of employment:

(2)Lodging expenses, not exceeding ninety-six dollars per night, incurred when engaged in travel required as a condition of employment; or (3)Noncommuting mileage incurred for driving a personal vehicle between work locations when required as a condition of employment, computed at the rate of sixty-five and one-half cents per mile, less any actual mileage reimbursement from the employer; and

i.Employer reimbursed out-of-pocket expenses of employment, if included in gross income, but excluded from adjusted gross income on the obligor's federal income tax return.

7."Obligee" includes, for purposes of this chapter, an obligee as defined in North Dakota Century Code section 14-09-09.10 and a person who is alleged to be owed a duty of support on behalf of a child.

8."Obligor" includes, for purposes of this chapter, an obligor as defined in North Dakota Century Code section 14-09-09.10 and a person who is alleged to owe a duty of support.

9."Parent with primary residential responsibility" means a parent who acts as the primary caregiver on a regular basis for a proportion of time greater than the obligor, regardless of descriptions such as "shared" or "joint" parental rights and responsibilities given in relevant judgments, decrees, or orders.

10."Self-employment" means employment in one or more related activities that results in an obligor earning income from any business organization or entity which the obligor is, to a significant extent, able to directly or indirectly control. For purposes of this chapter, it also includes any activity that generates income from rental property, royalties, business gains, partnerships, trusts, corporations, and any other organization or entity regardless of form and regardless of whether such activity would be considered self-employment activity under the Internal Revenue Code.

11."Split parental rights and responsibilities" means a situation where the parents have more than one child in common, and where each parent has primary residential responsibility for at least one child.

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003; October 1, 2008; April 1, 2010; July 1, 2011; September 1, 2015; January 1, 2019; July 1, 2023. 75-02-04.1-02. Determination of support amount - General instructions.

1.Except as provided in section 75-02-04.1-08.2, calculations of child support obligations provided for under this chapter consider and assume that one parent acts as a primary caregiver and the other parent contributes a payment of child support to the child's care.

Calculation of a child support obligation under section 75-02-04.1-08.2 does not preclude a court from apportioning specific expenses related to the care of the child, such as child care expenses and school activity fees, between the parents. An apportionment under this subsection is in addition to the child support amount determined by application of this chapter.

2.Calculations assume that the care given to the child during temporary periods when the child resides with the obligor or the obligor's relatives do not substitute for the child support obligation.

3.Net income received by an obligor from all sources must be considered in the determination of available money for child support.

4.The result of all calculations which determine a monetary amount ending in fifty cents or more must be rounded up to the nearest whole dollar, and must otherwise be rounded down to the nearest whole dollar.

5.In applying the child support guidelines, an obligor's monthly net income amount ending in fifty dollars or more must be rounded up to the nearest one hundred dollars, and must otherwise be rounded down to the nearest one hundred dollars.

6.The annual total of all income considered in determining a child support obligation must be determined and then divided by twelve in order to determine the obligor's monthly net income.

7.Income must be sufficiently documented through the use of tax returns, current wage statements, and other information to fully apprise the court of all gross income. Where gross income is subject to fluctuation, regardless of whether the obligor is employed or self-employed, information reflecting and covering a period of time sufficient to reveal the likely extent of fluctuations, not to exceed five years, must be provided.

8.Calculations made under this chapter are ordinarily based upon recent past circumstances because past circumstances are typically a reliable indicator of future circumstances, particularly circumstances concerning income. If circumstances that materially affect the child support obligation have changed in the recent past or are very likely to change in the near future, consideration may be given to the new or likely future circumstances.

9.Each child support order must include a statement of the net income of the obligor used to determine the child support obligation, and how that net income was determined.

10.A payment of children's benefits made to or on behalf of a child who is not living with the obligor must be credited as a payment toward the obligor's child support obligation in the month (or other period) the payment is intended to cover, but may not be credited as a payment toward the child support obligation for any other month or period. The court may order the obligee to reimburse the obligor for any overpayment that results from the credit provided in this subsection.

11.No amount may be deducted to determine net income unless that amount is included in gross income.

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003; October 1, 2008; July 1, 2011; January 1, 2019; July 1, 2023. 75-02-04.1-03. Determination of child support obligation - Split custody or primary residential responsibility.

A child support obligation must be determined and specifically ordered for the child or children for whom each parent has primary residential responsibility pursuant to a court order or, if there is no court order, for whom each parent has primary physical custody. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation.

The offset of child support obligations in this section is for payment purposes only and must be discontinued for any month in which the rights to support of a child for whom the obligation was determined are assigned to a government agency as a condition of receiving public assistance.

History: Effective February 1, 1991; amended effective August 1, 2003; October 1, 2008; July 1, 2011. 75-02-04.1-04. Minimum support level.

Repealed effective January 1, 2018. 75-02-04.1-05. Determination of net income from self-employment.

1.Net income from self-employment means total income, for internal revenue service purposes, of the obligor:

a.Reduced by that amount, if any, of:

(1)That total income that is not the obligor's income or that is otherwise included in gross income; and (2)With respect to a partnership or a small business corporation for which an election under 26 U.S.C. section 1362(a) is in effect and over which the obligor is not able to exercise direct or indirect control to a significant extent, that income of the partnership or small business corporation which is not available, and has not yet been distributed, to the obligor; and

b.Increased by that amount, if any, for:

(1)Business expenses attributable to the obligor or a member of the obligor's household for employee's or proprietor's benefits, pensions, and profit-sharing plans;

(2)Payments made from the obligor's self-employment activity to a member of the obligor's household, other than the obligor, to the extent the payment exceeds the fair market value of the service furnished by the household member; and (3)With respect to a corporation that pays its own tax over which the obligor is able to exercise direct or indirect control to a significant extent, the taxable income of the corporation, less the corporation's federal income tax, multiplied by seventy percent of the obligor's ownership interest in the corporation.

2."Member of the obligor's household" includes any individual who shares the obligor's home a substantial part of the time, without regard to whether that individual maintains another home.

3.If the tax returns are not available or do not reasonably reflect the income from self-employment, profit and loss statements which more accurately reflect the current status must be used.

4.Self-employment activities may experience significant changes in production and income over time. To the extent that information is reasonably available, the average of the most recent five years of each self-employment activity, if undertaken on a substantially similar scale, must be used to determine self-employment income. When self-employment activity has not been operated on a substantially similar scale for five years, a shorter period may be used.

5.When averaging self-employment income pursuant to subsection 4, no amount may be included in income for one year that was previously included in income for any other year during the period being averaged.

6.When less than three years were averaged under subsection 4, a loss resulting from the averaging may be used to reduce other income that is not related to the self-employment activity that produced the loss only if the loss is not related to a hobby activity and monthly gross income, reduced by one-twelfth of the average annual self-employment loss, equals or exceeds the greatest of:

a.A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage;

b.An amount equal to six-tenths of this state's statewide average earnings for persons with similar work history and occupational qualifications; or

c.An amount equal to eighty percent of the obligor's greatest average gross monthly earnings, calculated without using self-employment losses, in any twelve consecutive months included in the current calendar year and the two previous calendar years before commencement of the proceeding before the court.

7.When three or more years were averaged under subsection 4, a loss resulting from the averaging may be used to reduce other income that is not related to the self-employment activity that produced the loss only if the loss is not related to a hobby activity, losses were calculated for no more than forty percent of the years averaged, and monthly gross income, reduced by one-twelfth of the average annual self-employment loss, equals or exceeds the greatest of:

a.A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage;

b.An amount equal to six-tenths of this state's statewide average earnings for persons with similar work history and occupational qualifications; or

c.An amount equal to ninety percent of the obligor's greatest average gross monthly earnings, calculated without using self-employment losses, in any twelve consecutive months included in the current calendar year and the two previous calendar years before commencement of the proceeding before the court.

8.For purposes of subsections 6 and 7, an activity is presumed to be a hobby activity if the result from averaging is a loss. The presumption may be rebutted if the obligor shows that the activity is not done primarily for enjoyment purposes, is a vocation and not an avocation and, in the context of the child support obligation, there is a reasonable expectation that the children will receive long-term benefits.

9.Net income from self-employment is an example of gross income and is subject to the deductions from gross income set forth in subsection 6 of section 75-02-04.1-01, to the extent not already deducted when calculating net income from self-employment.

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003; October 1, 2008; July 1, 2011; September 1, 2015. 75-02-04.1-06. Determining the cost of supporting a child living with the obligor.

The cost of supporting a child living with the obligor, who is not also a child of the obligee, may be deducted from net income under subsection 4 of section 75-02-04.1-06.1 and is determined by applying the obligor's net income and the total number of children living with the obligor, who are not also children of the obligee, to whom the obligor owes a duty of support, to section 75-02-04.1-10.

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003. 75-02-04.1-06.1. Determination of support amount in multiple-family cases.

1.This section must be used to determine the child support amount presumed to be the correct amount of child support in all cases involving an obligor who:

a.Owes duties of support payable to two or more obligees; or

b.Owes a duty of support to at least one obligee and also owes a duty of support to a child living with the obligor who is not also the child of that obligee.

2.If a court consolidates proceedings involving an obligor and two or more obligees, the court must determine all obligations that may be determined in the consolidated proceeding without regard to whom the initial moving party may be.

3.A hypothetical amount that reflects the cost of supporting children living with the obligor, as determined under section 75-02-04.1-06, and a hypothetical amount due to each obligee under this chapter must first be determined for the children living with the obligor and each obligee, whether or not the obligee is a party to the proceeding, assuming for purposes of that determination:

a.The obligor has no support obligations except to the obligee in question;

b.The guidelines amount is not rebutted; and

c.The obligor does not have extended parenting time.

4.A hypothetical amount due to each obligee under this chapter must next be determined for each obligee who is a party to the proceeding, assuming for purposes of that determination:

a.The obligor's net income is reduced by:

(1)The amount of child support due to all other obligees, as determined under subsection 3; and (2)The cost of supporting a child living with the obligor, who is not also the child of that obligee, as determined under section 75-02-04.1-06;

b.The guidelines amount is not rebutted;

c.Any support amount otherwise determined to be less than one dollar is determined to be one dollar; and

d.The obligor does not have extended parenting time. 5.a.Except as provided in subdivision b, for each obligee before the court, the support obligation presumed to be the correct amount of child support is equal to one-half of the total of the two amounts determined, with respect to that obligee, under subsections 3 and 4.

b.Any necessary determination under this section must be made before an adjustment for extended parenting time appropriate under section 75-02-04.1-08.1. The "amount otherwise due under this chapter", for purposes of section 75-02-04.1-08.1, is equal to one-half of the total of the two amounts determined, with respect to that obligation, under subsections 3 and 4.

6.The fact, if it is a fact, that the obligor is required to pay, or pays, a different amount than the hypothetical amounts determined under subsections 3 and 4 is not a basis for deviation from the procedure described in this section.

7.When determining a support amount under paragraph 1 of subdivision a of subsection 4, consider only children to whom an obligor owes a current monthly support obligation pursuant to a support order and other children under the age of eighteen to whom an obligor owes a duty of support.

History: Effective January 1, 1995; amended effective August 1, 1999; August 1, 2003; July 1, 2011. 75-02-04.1-07. Imputing income based on earning capacity.

1.For purposes of this section:

a."Earnings" includes in-kind income and amounts received in lieu of actual earnings, such as social security benefits, workers' compensation wage replacement benefits, unemployment insurance benefits, veterans' benefits, and earned income tax credits; and

b.An obligor is "underemployed" if the obligor's gross income from earnings is significantly less than this state's statewide average earnings for persons with similar work history and occupational qualifications.

2.An obligor is presumed to be underemployed if the obligor's gross income from earnings is less than the greater of:

a.A monthly amount equal to one hundred sixty-seven times the federal hourly minimum wage; or

b.Six-tenths of this state's statewide average earnings for persons with similar work history and occupational qualifications.

3.Except as provided in subsections 4, 5, 6, and 7, gross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.

a.A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.

b.An amount equal to six-tenths of this state's statewide average earnings for persons with similar work history and occupational qualifications.

c.An amount equal to ninety percent of the obligor's greatest average gross monthly earnings, in any twelve consecutive months included in the current calendar year and the two previous calendar years, for which reliable evidence is provided.

4.Monthly gross income based on earning capacity may not be imputed under subsection 3 if:

a.The reasonable cost of child care equals or exceeds seventy percent of the income which would otherwise be imputed where the care is for the obligor's child:

(1)For whom the obligor has primary residential responsibility;

(2)Who is under the age of thirteen; and (3)For whom there is no other adult caretaker in the obligor's home available to meet the child's needs during absence due to employment.

b.A current medical statement confirms the obligor suffers from a disability sufficient in severity to reasonably preclude the obligor from gainful employment that produces average monthly gross earnings equal to at least one hundred sixty-seven times the hourly federal minimum wage.

c.The unusual emotional or physical needs of a minor child of the obligor require the obligor's presence in the home for a proportion of the time so great as to preclude the obligor from gainful employment that produces average monthly gross earnings equal to one hundred sixty-seven times the hourly federal minimum wage.

d.The obligor has average monthly gross earnings equal to or greater than one hundred sixty-seven times the hourly federal minimum wage and those earnings are similar to or greater than the statewide average earnings for persons with similar work history and occupational qualifications.

e.The obligor is under eighteen years of age or is under nineteen years of age and enrolled in and attending high school.

f.The obligor is receiving:

(1)Supplemental security income payments;

(2)Social security disability payments;

(3)Workers' compensation wage replacement benefits;

(4)Total and permanent disability benefits paid by the railroad retirement board;

(5)Pension benefits, as defined in subsection 9, paid by the veterans benefits administration; or (6)Disability compensation paid by the veterans benefits administration based on an overall disability rating of eighty percent.

g.It has been less than one hundred eighty days since the obligor was released from incarceration under a sentence of at least one hundred eighty days.

h.The obligor is incarcerated under a sentence of one hundred eighty days or longer, excluding credit for time served before sentencing.

5.If an unemployed or underemployed obligor shows that employment opportunities, which would provide earnings at least equal to the lesser of the amounts determined under subdivision b or c of subsection 3, are unavailable within one hundred miles [160.93 kilometers] of the obligor's actual place of residence, income must be imputed based on earning capacity equal to the amount determined under subdivision a of subsection 3, less actual gross earnings.

6.If the obligor fails, upon reasonable request made in any proceeding to establish or review a child support obligation, to furnish reliable information concerning the obligor's gross income from earnings, and if that information cannot be reasonably obtained from sources other than the obligor, income must be imputed based on the greatest of:

a.A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.

b.An amount equal to one hundred percent of this state's statewide average earnings for persons with similar work history and occupational qualifications.

c.An amount equal to one hundred percent of the obligor's greatest average gross monthly earnings, in any twelve consecutive months included in the current calendar year and the two previous calendar years, for which reliable evidence is provided.

7.Notwithstanding subsections 4, 5, and 6, if an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor's greatest average monthly earnings, in any twelve consecutive months included in the current calendar year and the two previous calendar years, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed. For purposes of this subsection, a voluntary change in employment is a change made for the purpose of reducing the obligor's child support obligation and may include becoming unemployed, taking into consideration the obligor's standard of living, work history, education, literacy, health, age, criminal record, barriers to employment, record of seeking employment, stated reason for change in employment, likely employment status if the family before the court were intact, and any other relevant factors. The burden of proof is on the obligor to show that the change in employment was not made for the purpose of reducing the obligor's child support obligation.

8.Imputed income based on earning capacity is an example of gross income and is subject to the deductions from gross income set forth in subsection 6 of section 75-02-04.1-01.

9.For purposes of paragraph 5 of subdivision f of subsection 4, "pension benefits" means only needs-based payments made by the veterans benefits administration to war-time veterans whose income is below a yearly limit set by Congress and who are age sixty-five or older or have a total and permanent disability.

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003; October 1, 2008; July 1, 2011; September 1, 2015; January 1, 2018; July 1, 2023. 75-02-04.1-08. Income of spouse.

The income and financial circumstances of the spouse of an obligor may not be considered as income for child support purposes unless the spouse's income and financial circumstances are, to a significant extent, subject to control by the obligor as where the obligor is a principal in a business employing the spouse.

History: Effective February 1, 1991; amended effective January 1, 1995; January 1, 2019. 75-02-04.1-08.1. Adjustment for extended parenting time.

1.For purposes of this section, "extended parenting time" means parenting time between an obligor and a child living with an obligee scheduled by court order to exceed an annual total of one hundred overnights. If a child support order includes an adjustment for extended parenting time under this section, the order must specify the number of parenting time overnights.

2.Notwithstanding any other provision of this chapter and as limited by subsection 3, if a court order provides for extended parenting time between an obligor and a child living with an obligee, the support obligation presumed to be the correct child support amount due on behalf of all children of the obligor living with the obligee must be determined under this subsection.

a.Determine the amount otherwise due under this chapter from the obligor for those children.

b.Divide the amount determined under subdivision a by the number of those children.

c.For each child, multiply the number of that child's parenting time overnights times .32 and subtract the resulting amount from three hundred sixty-five.

d.Divide the result determined under subdivision c by three hundred sixty-five.

e.Multiply the amount determined under subdivision b times each decimal fraction determined under subdivision d.

f.Total all amounts determined under subdivision e.

3.An adjustment for extended parenting time is not authorized if the parents of a child for whom support is being determined have equal residential responsibility according to section 75-02-04.1-08.2.

History: Effective August 1, 1999; amended effective July 1, 2011; September 1, 2015; January 1, 2019; July 1, 2023. 75-02-04.1-08.2. Equal residential responsibility - Determination of child support obligation.

A child support obligation must be determined as described in this section in all cases in which a court orders each parent to have equal residential responsibility for their child or children. Equal residential responsibility means each parent has residential responsibility for the child or children for an equal amount of time as determined by the court. If equal residential responsibility is ordered for all the children, a child support obligation for each parent must be calculated under this chapter, and specifically ordered, assuming the other parent has primary residential responsibility for the child or children subject to the equal residential responsibility order. If equal residential responsibility is not ordered for all the children, a child support obligation must be calculated and specifically ordered for each parent for the children for whom the other parent has primary residential responsibility plus the children for whom the parents have equal residential responsibility. The lesser obligation is then subtracted from the greater. The difference is the child support amount owed by the parent with the greater obligation. Each parent is an obligee to the extent of the other parent's calculated obligation.

Each parent is an obligor to the extent of that parent's calculated obligation. The offset of child support obligations in this section is for payment purposes only and must be discontinued for any month in which the rights to support of a child for whom the obligation was determined are assigned to a government agency as a condition of receiving public assistance.

History: Effective August 1, 2003; amended effective October 1, 2008; July 1, 2011; September 1, 2015. 75-02-04.1-09. Criteria for rebuttal of guideline amount.

1.The child support amount provided for under this chapter, except for subsection 2, is presumed to be the correct amount of child support. No rebuttal of the guidelines may be based upon evidence of factors described or applied in this chapter, except in subsection 2, or upon:

a.Except as provided in subdivision m of subsection 2, the subsistence needs, work expenses, and daily living expenses of the obligor; or

b.Except as provided for in subdivision p of subsection 2, the income of the obligee, which is reflected in a substantial monetary and nonmonetary contribution to the child's basic care and needs by virtue of being a parent with primary residential responsibility.

2.The presumption that the amount of child support that would result from the application of this

chapter, except for this subsection, is the correct amount of child support is rebutted only if a preponderance of the evidence establishes that a deviation from the guidelines is in the best interest of the supported children and:

a.The increased need if support for more than six children is sought in the matter before the court;

b.The increased ability of an obligor, with a monthly net income which exceeds twenty-five thousand dollars, to provide additional child support based on demonstrated needs of the child, including, if applicable, needs arising from activities in which a child participated while the child's family was intact;

c.The increased need if educational costs have been voluntarily incurred, at private schools, with the prior written concurrence of the obligor;

d.The increased needs of children with disabling conditions or chronic illness;

e.The increased needs of children age twelve and older;

f.The increased needs of children related to the cost of child care, purchased by the obligee, for reasonable purposes related to employment, job search, education, or training;

g.The increased ability of an obligor, whose net income has been substantially reduced as a result of depreciation and to whom income has been imputed under section 75-02-04.1-07, to provide child support;

h.The increased ability of an obligor, who is able to secure additional income from assets, to provide child support;

i.The increased ability of an obligor, who has engaged in an asset transaction for the

purpose of reducing the obligor's income available for payment of child support, to provide child support;

j.The reduced ability of an obligor who is responsible for all parenting-time expenses to provide support due to travel expenses incurred predominantly for the purpose of visiting a child who is the subject of the order taking into consideration the amount of court-ordered parenting time and, when such history is available, actual expenses and practices of the parties;

k.The reduced ability of the obligor to pay child support due to a situation, over which the obligor has little or no control, which requires the obligor to incur a continued or fixed expense for other than subsistence needs, work expenses, or daily living expenses, and which is not otherwise described in this subsection;

l.The reduced ability of the obligor to provide support due to the obligor's health care needs, to the extent that the costs of meeting those health care needs:

(1)Exceed ten percent of the obligor's gross income;

(2)Have been incurred and are reasonably certain to continue to be incurred by the obligor;

(3)Are not subject to payment or reimbursement from any source except the obligor's income; and (4)Are necessary to prevent or delay the death of the obligor or to avoid a significant loss of income to the obligor.

m.The reduced ability of the obligor to provide support when the obligor is in the military, is on a temporary duty assignment, and must maintain two households as a result of the assignment;

n.The reduced ability of an obligor who is responsible for educational costs for the supported children that are incurred at private schools;

o.The reduced ability of an obligor who is responsible for child care costs for the supported children;

p.The reduced needs of the child to support from the obligor in situations where the net income of the obligee is at least three times higher than the net income of the obligor;

q.The reduced needs of the child to support from the obligor in situations where the child is residing outside the family home at government expense and the obligation is not assigned to a government agency; or

r.The improved convenience to the parents, and negligible impact to the child, of a nominal increase in the child support obligation of the parent with the smaller obligation as determined under section 75-02-04.1-03 or 75-02-04.1-08.2, not to exceed seventy-five dollars per month, in order for the obligation of each parent to be equal prior to application of the payment offset provided in that section and eliminate any net amount being due except during months when the obligation is assigned to a government agency.

3.Assets may not be considered under subdivisions h and i of subsection 2, to the extent they:

a.Are exempt under North Dakota Century Code section 47-18-01;

b.Consist of necessary household goods and furnishings; or

c.Include one motor vehicle in which the obligor owns an equity not in excess of twenty thousand dollars.

4.For purposes of subdivision i of subsection 2, a transaction is presumed to have been made for the purpose of reducing the obligor's income available for the payment of child support if:

a.The transaction occurred after the birth of a child entitled to support;

b.The transaction occurred no more than twenty-four months before the commencement of the proceeding that initially established the support order; and

c.The obligor's income is less than it likely would have been if the transaction had not taken place.

5.For purposes of subdivision k of subsection 2, a situation over which the obligor has little or no control does not exist if the situation arises out of spousal support payments, discretionary purchases, or illegal activity.

6.For purposes of subdivisions a through f and subdivisions q through r of subsection 2, any adjustment shall be made to the child support amount resulting from application of this

chapter. When section 75-02-04.1-03 or 75-02-04.1-08.2 applies, the adjustment must be made to the parent's obligation before the lesser obligation is subtracted from the greater obligation.

7.For purposes of subdivisions g through o of subsection 2, any adjustment shall be made to the obligor's net income.

8.For purposes of subdivision p of subsection 2, any adjustment shall be made to the child support amount resulting from application of this chapter after taking into consideration the proportion by which the obligee's net income exceeds the obligor's net income. When section 75-02-04.1-03 or 75-02-04.1-08.2 applies, the adjustment must be made to the parent's obligation before the lesser obligation is subtracted from the greater obligation.

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003; July 1, 2008; April 1, 2010; July 1, 2011; September 1, 2015; January 1, 2019; July 1, 2023. 75-02-04.1-10. Child support amount.

The amount of child support payable by the obligor is determined by the application of the following schedule to the obligor's monthly net income and the number of children for whom support is being sought in the matter before the court.

Obligor's Monthly Net Income One Child Two Three Four Five Six or More 800 or less000000 90090126171198234261 1000140183232265305337 1100190240293332375414 1200240296355399446490 1300290353416466516566 1400316385453508563617 1500342416491550609669 1600368448528592656720 1700384476562630696761 1800400505596668736803 1900416533631706776844 2000431562665744816885 2100447590699781856926 2200463619733819896968 23004796477678579361009 24004956768028959761050 250051170483693310171091 260052773387097110571133 2700542761904100910971174 2800558789939104711371215 2900574818973108411771257 30005908461007112212171298 31006068751041116012571339 32006229031075119812971380 33006379321110123613371422 34006539601144127413771463 35006699891178131214171504 360068510171212135014571545 370070110451246138714971587 380071710741281142515371628 390073311021315146315771669 400074811311349150116171710 410076411591383153916581752 420078011881417157716981793 430079612161452161517381834 440081212451486165317781876 450082812731520169118181917 460084413021554172818581958 470085913301589176618981999 480087513581623180419382041 490089113871657184219782082 500090714151691188020182123 510092314441725191820582164 520093914721760195620982206 530095415011794199421382247 540097015291828203121782288 550098615581862206922182330 5600100215861896210722582371 5700101816141931214522982412 5800103416431965218323392453 5900105016711999222123792495 6000106517002033225924192536 6100108117282067229724592577 6200109717572102233424992618 6300111317852136237225392660 6400112918142170241025792701 6500114518422204244826192742 6600116118712239248626592784 6700117618992273252426992825 6800119219272307256227392866 6900120819562341260027792907 7000122419842375263828192949 7100124020132410267528592990 7200125620412444271328993031 7300127120702478275129393072 7400128720982512278929793114 7500130321272546282730203155 7600131921552581286530603196 7700133521832615290331003237 7800135122122649294131403279 7900136722402683297831803320 8000138222692717301632203361 8100139822972752305432603403 8200141423262786309233003444 8300143023542820313033403485 8400144623832854316833803526 8500146224112888320634203568 8600147824402923324434603609 8700149324682957328135003650 8800150924962991331935403691 8900152525253025335735803733 9000154125533060339536203774 9100155725823094343336613815 9200157326103128347137013857 9300158826393162350937413898 9400160426673196354737813939 9500162026963231358538213980 9600163627243265362238614022 9700165227523299366039014063 9800166827813333369839414104 9900168428093367373639814145 10000169928383402377440214187 10100171528473412378540344202 10200173028573423379740474218 10300174528663434380840614233 10400176028753444382040744248 10500177528853455383140874264 10600178928943466384341004279 10700180429043476385441134295 10800181929133487386641274310 10900183329233498387841404325 11000184829323508388941534341 11100186329413519390141664356 11200187729513529391241794372 11300189229603540392441934387 11400190629703551393542064403 11500192129793561394742194418 11600193529883572395842324433 11700194929983583397042454449 11800196430073593398142584464 11900197830173604399342724480 12000199230263615400442854495 12100200630353625401642984511 12200202030453636402743114526 12300203430543647403943244541 12400204830643657405043384557 12500206330733668406243514572 12600207630833679407343644588 12700209030923689408543774603 12800210431013700409643904618 12900211831113711410844044634 13000213231203721411944174649 13100214631303732413144304665 13200216031393743414244434680 13300217331483753415444564696 13400218731583764416544694711 13500220131673775417744834726 13600221431773785418844964742 13700222831863796420045094757 13800224131963806421145224773 13900225532053817422345354788 14000226832143828423445494803 14100228132243838424645624819 14200229532333849425745754834 14300230832433860426945884850 14400232132523870428046014865 14500233532613881429246154881 14600234832713892430346284896 14700236132803902431546414911 14800237432903913432646544927 14900238732993924433846674942 15000240033083934434946814958 15100241333183945436146944973 15200242633273956437247074989 15300243933373966438447205004 15400245233463977439547335019 15500246533563988440747465035 15600247733653998441847605050 15700249033744009443047735066 15800250333844020444247865081 15900251533934030445347995096 16000252834034041446548125112 16100254134124051447648265127 16200255334214062448848395143 16300256634314073449948525158 16400257834404083451148655174 16500259134504094452248785189 16600260334594105453448925204 16700261534684115454549055220 16800262834784126455749185235 16900264034874137456849315251 17000265234974147458049445266 17100266435064158459149585282 17200267635164169460349715297 17300268835254179461449845312 17400270035344190462649975328 17500271335444201463750105343 17600272435534211464950235359 17700273635634222466050375374 17800274835724233467250505389 17900276035814243468350635405 18000277235914254469550765420 18100278436004265470650895436 18200279636104275471851035451 18300280736194286472951165467 18400281936294297474151295482 18500283136384307475251425497 18600284236474318476451555513 18700285436574328477551695528 18800286536664339478751825544 18900287736764350479851955559 19000288836854360481052085574 19100289936944371482152215590 19200291137044382483352355605 19300292237134392484452485621 19400293337234403485652615636 19500294537324414486752745652 19600295637414424487952875667 19700296737514435489053005682 19800297837604446490253145698 19900298937704456491353275713 20000300037794467492553405729 20100301137894478493653535744 20200302237984488494853665760 20300303338074499495953805775 20400304438174510497153935790 20500305538264520498254065806 20600306538364531499454195821 20700307638454542500554325837 20800308738544552501754465852 20900309738644563502954595867 21000310838734574504054725883 21100311938834584505254855898 21200312938924595506354985914 21300314039024605507555125929 21400315039114616508655255945 21500316139204627509855385960 21600317139304637510955515975 21700318139394648512155645991 21800319239494659513255776006 21900320239584669514455916022 22000321239674680515556046037 22100322239774691516756176053 22200323239864701517856306068 22300324239964712519056436083 22400325240054723520156576099 22500326340144733521356706114 22600327240244744522456836130 22700328240334755523656966145 22800329240434765524757096160 22900330240524776525957236176 23000331240624787527057366191 23100332240714797528257496207 23200333240804808529357626222 23300334140904819530557756238 23400335140994829531657886253 23500336141094840532858026268 23600337041184850533958156284 23700338041274861535158286299 23800338941374872536258416315 23900339941464882537458546330 24000340841564893538558686345 24100341741654904539758816361 24200342741744914540858946376 24300343641844925542059076392 24400344541934936543159206407 24500345542034946544359346423 24600346442124957545459476438 24700347342224968546659606453 24800348242314978547759736469 24900349142404989548959866484 25000 or more350042505000550060006500

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 2003; July 1, 2011;

September 1, 2015; January 1, 2018; January 1, 2019. 75-02-04.1-11. Parental responsibility for children in foster care or guardianship care.

It is important that parents maintain a tie to and responsibility for their child when that child is in foster care. Financial responsibility for the support of that child is one component of the maintenance of the relationship of parent and child. Parents of a child subject to a guardianship order under North Dakota Century Code chapter 27-20.1 or 30.1-27 remain financially responsible for the support of that child.

1.In order to determine monthly net income, it is first necessary to identify the parent or parents who have financial responsibility for any child entering foster care or guardianship care, and to determine the net income of those financially responsible parents. If the parents of a child in foster care or guardianship care reside together, and neither parent has a duty to support any child who is not also a child of the other parent, the income of the parents, including imputed income of each parent, if applicable, must be combined and treated as the income of the obligor. In all other cases, each parent is treated as an obligor, and each parent's support obligation must be separately determined.

2.Unless subsection 3 applies to the obligor, the net income and the total number of children are applied to section 75-02-04.1-10 to determine the child support amount. That child support amount is then divided by the total number of children to determine the child support obligation for each child in foster care or guardianship care. For purposes of this subsection, the "total number of children" means:

a.If a child entering foster care or guardianship care resides in the obligor's home, the total number of children residing in the obligor's home to whom the obligor owes a duty of support, including the child or children entering foster care or guardianship care, plus any other full siblings of the child or children entering foster care or guardianship care to whom the obligor owes a duty of support who are not residing in the obligor's home; or

b.If no child entering foster care or guardianship care resides in the obligor's home, the child or children entering foster care or guardianship care plus the full siblings of the child or children entering foster care or guardianship care to whom the obligor owes a duty of support.

3.If an obligor owes a duty of support to any child other than the child or children described in subdivision a or b of subsection 2, as applicable to that obligor, the support obligation must be determined through application of section 75-02-04.1-06.1 such that:

a.The total number of children, as described in subdivision a or b of subsection 2, as applicable to that obligor, are treated as one obligee; and

b.The amount resulting from the application of section 75-02-04.1-06.1 for the children described in subdivision a or b of subsection 2, as applicable to that obligor, is divided by the total number of such children to determine the child support obligation for each child in foster care or guardianship care.

4.For purposes of subsection 2, a full sibling of the child or children entering foster care or guardianship care is a brother or sister who has both parents in common with the child or children entering foster care or guardianship care.

History: Effective February 1, 1991; amended effective January 1, 1995; August 1, 1999; August 1, 2003; July 1, 2011; July 1, 2023. 75-02-04.1-12. Uncontested proceedings.

In a proceeding where the obligor appears, but does not resist the child support amount sought by the obligee, and in proceedings where the parties agree or stipulate to a child support amount, credible evidence describing the obligor's income and financial circumstances, which demonstrates that the uncontested or agreed amount of child support conforms to the requirements of this chapter, must be presented.

History: Effective February 1, 1991. 75-02-04.1-13. Application.

The child support guideline schedule amount is rebuttably presumed to be the correct amount of child support in all child support determinations, including both temporary and permanent determinations, and including determinations necessitated by actions for the support of children of married persons, actions seeking domestic violence protection orders, actions arising out of divorce, actions arising out of paternity determinations, actions based upon a claim for necessaries, actions arising out of juvenile court proceedings, interstate actions for the support of children in which a court of this state has the authority to establish or modify a support order, and actions to modify orders for the support of children. The fact that two or more such actions may be consolidated for trial or otherwise joined for convenient consideration of facts does not prevent the application of this chapter to those actions.

History: Effective February 1, 1991; amended effective January 1, 1995; October 1, 2008.

Chapter 75-02-04.2 State Disbursement Unit

N.D. Admin. Code 75-02-04.2 State Disbursement Unit

CHAPTER 75-02-04.2

STATE DISBURSEMENT UNIT

Section 75-02-04.2-01Definitions 75-02-04.2-02Fees for Child Support Enforcement Services 75-02-04.2-01. Definitions.

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 14-09 or 50-09 unless the context indicates otherwise. In addition:

1."Child support case" means the combination of a noncustodial parent or putative father, custodial parent, and children in common.

2."IV-D case" means a child support case that is serviced by the child support agency under title IV-D.

3."Non-IV-D case" means a child support case that is not serviced by the child support agency under title IV-D.

History: Effective October 1, 2007.

General Authority: NDCC 50-09-02

Law Implemented: NDCC 50-09-02 75-02-04.2-02. Fees for child support enforcement services.

1.For purposes of this section, "year" means federal fiscal year.

2.Unless subsection 3 applies, an individual who is an obligee in a IV-D case and who has never received assistance under the aid to families with dependent children program or temporary assistance for needy families program and for whom the child support agency has collected and disbursed at least five hundred fifty dollars in child support in any given year will be assessed an annual fee of thirty-five dollars. The child support agency will retain the fee from child support collected on behalf of the obligee.

3.An obligee in a IV-D case is exempt from the fee assessed under subsection 2 if:

a.The child support agency is providing services as a responding jurisdiction in an interjurisdictional case; or

b.The obligee is a Medicaid recipient who has opted out of child support enforcement services.

4.Unless subsection 5 applies, an individual who is an obligee in a non-IV-D case, or who is an obligee in a IV-D case but who has opted out of child support enforcement services, and for whom child support has been received in a given month will be assessed a monthly fee of five dollars or the amount of child support received for that month, whichever is less. The child support agency will retain the fee from support received.

5.A non-IV-D case is exempt from the fee assessed under subsection 4 if the case is a former IV-D case that was closed by the child support agency because:

a.The obligor's location was unknown;

b.The obligation was uncollectible because the obligor could not pay support and showed no evidence of support potential;

c.The obligor was a citizen and resident of a foreign country with which the state does not have a treaty or reciprocity; or

d.The past-due support balance is under five hundred dollars and is not collectible through commercially reasonable efforts.

History: Effective October 1, 2007; amended effective October 1, 2018.

General Authority: NDCC 50-06.3-02, 50-09-02

Law Implemented: NDCC 14-09-09.36, 50-06.3-02; 42 USC 654(6)(B)(ii)

Chapter 75-02-05 Provider Integrity

N.D. Admin. Code 75-02-05-01 Purpose

The purpose underlying administrative remedies and sanctions in the Medicaid and children's health insurance program is to ensure the proper and efficient utilization of Medicaid and children's health insurance program funds by those individuals providing medical and other health services and goods to recipients.

N.D. Admin. Code 75-02-05-02 Authority and objective

Under authority of North Dakota Century Code chapters 50-24.1 and 50-29, the department of human services is empowered to promulgate such rules and regulations necessary to qualify for federal funds under section 1901 specifically, title XIX and title XXI generally of the Social Security Act. These rules are subject to the Medicaid and children's health insurance program state plan and to applicable federal law, federal regulation, state law, and state rules.

History

• General Authority: NDCC 50-06-01.9, 50-06-05.1, 50-24.1-04, 50-29-02
• Law Implemented: NDCC 50-24.1-04

N.D. Admin. Code 75-02-05-03 Definitions

In this chapter, unless the context or subject matter otherwise requires:

1."Abuse" means practices that:

a.Are inconsistent with sound fiscal, business, or medical practices and result in an unnecessary cost to Medicaid and children's health insurance program;

b.Elicit reimbursement for services that are not medically necessary;

c.Are in violation of an agreement or certificate of coverage; or

d.Fail to meet professionally recognized standards for health care.

2."Administrative or fiscal agent" means an organization which processes and pays provider claims on behalf of the department.

3."Affiliates" means persons having an overt or covert relationship each with the other such that any one of them directly or indirectly controls or has the power to control another.

4."Business integrity agreement" means an agreement between the department and the provider that addresses the concerns of the department and recognizes essential elements of required compliance for the provider to preempt further sanction, exclusion from participation, or termination.

5."Children's health insurance program" means a program to provide health assistance to low-income children funded through title XXI of the Social Security Act [42 U.S.C. 1397 aa et seq.].

6."Client share" means the amount of monthly net income remaining after all appropriate deductions, disregards, and Medicaid income levels have been allowed. This is also referred to as recipient liability.

7."Credible allegation of fraud" means an allegation which has been verified by the department.

8."Department" means the department of human services' medical services, aging services, and developmental disabilities divisions.

9."Direct owner" means someone with an active ownership interest in the disclosing entity.

10."Disclosing entity" means a Medicaid or children's health insurance program provider, excluding an individual practitioner or group of practitioners, or a fiscal agent, that is required to provide ownership and enrollment information.

11."Exclusion from participation" means permanent removal from provider participation in the North Dakota medical assistance or children's health insurance program.

12."Fraud" means deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to that person or another and includes an act that constitutes fraud under applicable federal or state law.

13."Group of practitioners" means two or more health care practitioners who practice their profession at a common location.

14."High-risk providers" means a provider or a provider type or specialty deemed by the department as high risk, based on federal regulations, policy, and guidance.

15."Indirect ownership interest" means disclosing ownership interest in a disclosing entity, including an ownership interest in any entity that has an indirect ownership in the disclosing entity.

16."Institutional provider" for purposes of assessing an application fee means those defined by centers for Medicare and Medicaid services or as deemed by the department based on federal regulations, policy, and guidance.

17."Licensed practitioner" means an individual, other than a physician who is licensed or otherwise authorized by the state to provide health care services within the practitioner's scope of practice.

18."Loss of contact" means postal mail sent to an enrolled provider at the last known address is returned to the department.

19."Managed care organization" means an entity that has, or is seeking to qualify for, a comprehensive risk contract under 42 C.F.R. part 438, and that is:

a.A federally qualified health management organization that meets the advance directives requirements of 42 C.F.R. 489.102; or

b.Any public or private entity that meets the advance directives requirements and is determined by the secretary of the federal department of health and human services, or designee, to also make the services it provides to program enrollees as accessible as those services are to other Medicaid and children's health insurance program recipients within the area served by the entity and meets the solvency standards of 42 C.F.R. 438.116.

20."Medicaid" means "medical assistance" and is a term precisely equivalent thereto.

21."Ownership interest" means the possession of equity in the capital, the stock, or the profits of the disclosing entity.

22."Person" means any natural person, company, firm, association, corporation, or other legal entity.

23."Provider" means any individual or entity furnishing Medicaid or children's health insurance program services under a provider agreement with the department or managed care organization.

24."Provider specialty" means the area that a provider specializes in.

25."Provider type" means a general type of service or provider.

26."Sanction" means an action taken by the department against a provider for noncompliance with a federal or state law, rule, or policy, or with the provisions of the Medicaid and children's health insurance program provider agreement.

27."Suspend payments" means the withholding of payments due a provider until the matter in dispute between the provider and the department is resolved.

28."Suspension from participation" means temporary suspension of provider participation in the Medicaid program for a specified period of time.

29."Termination" means determining a provider to be indefinitely ineligible to be a Medicaid and children's health insurance program provider.

History

• History: Effective July 1, 1980; amended effective July 1, 2012; April 1, 2018; April 1, 2020.

N.D. Admin. Code 75-02-05-04 Provider responsibility

To assure quality medical care and services, Medicaid and children's health insurance program payments may be made only to providers meeting established standards. Providers who are certified for participation in Medicare are eligible for participation, providing no sanction has been imposed as provided for in section 75-02-05-07. Comparable standards for providers who do not participate in Medicare are established by state law and appropriate licensing and standard-setting authorities in the health and mental health fields.

1.Payment for services under Medicaid and children's health insurance program is limited to those covered services that are medically necessary for the proper management, control, or treatment of an individual's medical problem and provided under the physician's or licensed practitioner's direction and supervision.

2.Each provider agrees to retain documentation to support medical services rendered for a minimum of seven years and, upon request, to make the documentation available to persons acting on behalf of the department and the United States department of health and human services. A provider shall provide the records at no charge.

3.A provider must accept, as payment in full, the amounts paid in accordance with the payment structure established by the department. A provider performing a procedure or service may not request or receive any payment, in addition to the amounts established by the department, from the recipient, or anyone acting on the recipient's behalf, for the same procedure or service. In cases where a client share has been properly determined by a human service zone, the provider may hold the recipient responsible for the client share.

4.A provider may not bill a recipient for services that are allowable under Medicaid or children's health insurance program, but not paid due to the provider's lack of adherence to Medicaid or children's health insurance program requirements.

5.If an enrolled Medicaid or children's health insurance program provider does not bill Medicaid for certain services, the enrolled Medicaid or children's health insurance program provider must notify all recipients of any limitation and secure acknowledgment, in writing. If the provider expressly informs the recipient, or in the case of a child, the recipient's parent or guardian, that provider would not accept Medicaid or children's health insurance program payment for certain services, the provider may bill the recipient as a private-pay client for the services.

6.No Medicaid or children's health insurance program payment will be made for original claims received by the department later than one hundred eighty days from the date of service. Final claim adjustments must be submitted within three hundred sixty-five days from the date of service. The department may grant a variance to extend the deadline for a provider to submit a final claim adjustment. A refusal to grant a variance is not subject to a request for review or an appeal.

7.The department will process claims within one hundred eighty days from the date on the Medicare explanation of benefits if the provider followed Medicare's timely filing policy.

8.In all joint Medicare/Medicaid cases, a provider must accept assignment of Medicare payment to receive payment from Medicaid for amounts not covered by Medicaid and children's health insurance program.

9.When the recipient has other medical insurance, all benefits available due from that other insurance must be applied prior to the provider accepting payment by Medicaid.

10.A provider may not offer or accept a fee, portion of a fee, charge, rebate, or kickback for a Medicaid or children's health insurance program patient referral.

11.Claims for payment and documentation must be submitted as required by the department or its designee.

12.A provider shall comply with all accepted standards of professional conduct and practice in dealing with recipients and the department.

13.Each provider shall comply with all applicable centers for Medicare and Medicaid services regulations.

14.Each provider shall comply with requests for documentation from the provider's practice, that may include patient information for non-Medicaid or non-children's health insurance program recipients, which allows department staff or its authorized agent to evaluate overall scheduling, patient-to-provider ratios, billing practices, or evaluating the feasibility of services provided per day.

The department may deny an application to become a Medicaid or children's health insurance program provider if:

1.The applicant voluntarily withdraws the application;

2.The applicant is not in compliance with applicable federal law, federal regulation, state law, state rules, or program issuances governing providers;

3.The applicant, if previously enrolled as a Medicaid or children's health insurance program provider, was not in compliance with the terms set forth in the application or provider agreement;

4.The applicant, if previously enrolled as a Medicaid or children's health insurance program provider, was not in compliance with the provider certification terms on the claims submitted for payment;

5.The applicant, if previously enrolled as a Medicaid or children's health insurance program provider, had demonstrated a pattern of submitting inaccurate billings or cost reports;

6.The applicant, if previously enrolled as a Medicaid or children's health insurance program provider, had demonstrated a pattern of submitting billings for services not covered under department programs;

7.The applicant has been debarred or the applicant's license or certificate to practice in the applicant's profession or to conduct business has been suspended or terminated;

8.The applicant delivers goods, supplies, or services that are of an inferior quality or are harmful to individuals;

9.The applicant has been convicted of an offense in section 75-02-05-11, which is determined by the department to have a direct bearing upon the applicant's ability to be enrolled as a Medicaid or children's health insurance program provider, or the department determines, following conviction of any other offense, the applicant is not sufficiently rehabilitated;

10.The applicant, if previously enrolled as a Medicaid or children's health insurance program provider, owes the department money for payments incorrectly made to the provider;

11.The provider is currently excluded from participation in Medicare, Medicaid, children's health insurance program, or any other federal health care program; and

12.For good cause. 75-02-05-04.2. Termination of provider enrollment.

The department may terminate the enrollment of a Medicaid or children's health insurance program provider under the following circumstances:

1.The individual is enrolled to provide transportation, but does not possess a current driver's license or has a driver's license that has been suspended or revoked;

2.The enrolled provider fails to revalidate its enrollment per federal requirements and according to the re-enrollment schedule established by the department;

3.The enrolled provider or practitioner does not submit a Medicaid or children's health insurance program claim to the department for twenty-four months or more;

4.There is a loss of contact with the enrolled provider; or

5.As a result of sanction imposed in accordance with section 75-02-05-07 or North Dakota Century Code chapter 50-24.8.

History

• History: Effective July 1, 1980; amended effective July 1, 2012; April 1, 2018; April 1, 2020; January 1, 2022. 75-02-05-04.1. Denial of application to become a Medicaid or children's health insurance program provider.
• History: Effective April 1, 2020.
• General Authority: NDCC 50-06-01.9, 50-24.1-04, 50-24.1-36, 50-29-02
• Law Implemented: NDCC 50-24.1-36; 42 CFR 431.107

N.D. Admin. Code 75-02-05-05 Grounds for sanctioning providers

Sanctions may be imposed by the department against a provider who:

1.Presents or causes to be presented for payment any false or fraudulent claim for care or services.

2.Submits or causes to be submitted false, intentionally misleading, or fraudulent information for the purpose of obtaining greater compensation than that to which the provider is legally entitled.

3.Submits or causes to be submitted false, intentionally misleading, or fraudulent information for the purpose of meeting prior authorization or level of care requirements.

4.Submits or causes to be submitted false, intentionally misleading, or fraudulent information in an application status for provider status under the Medicaid or children's health insurance program or any quality review or other submission required to maintain enrollment.

5.Fails to disclose or make available to the department or its authorized agent records of services provided to Medicaid and children's health insurance program recipients and records of payments received for those services; or fails to make available records from the provider's practice that allows department staff to evaluate overall scheduling, patient-to-provider ratios, review billing practices, or evaluate the feasibility of services provided per day.

6.Submits a false, intentionally misleading, or fraudulent certification or statement, whether the certification or statement is explicit or implied, to the department or department's representative or to any other publicly or privately funded health care program.

7.Fails to provide and maintain services to Medicaid and children's health insurance program recipients within accepted medical and industry standards. Failing to provide or maintain quality services, or a requisite assurance of a framework of quality services to Medicaid and children's health insurance program recipients within accepted medical community standards as adjudged by professional peers, if applicable. For purposes of this subsection, "quality services" mean services provided in accordance with the applicable rules and regulations governing the services.

8.Fails to comply with the terms of the Medicaid provider agreement or provider certification which is printed on the Medicaid claim form.

9.Overutilizes the Medicaid and children's health insurance program by inducing, furnishing, or otherwise causing a recipient to receive care and services that are not medically necessary.

10.Rebates or accepts a fee or portion of a fee or charge for a Medicaid and children's health insurance program patient referral.

11.Is convicted of a criminal offense arising out of the practice of medicine.

12.Fails to comply and to maintain compliance with all regulations and statutes, both state and federal, which are applicable to the provider's profession, business, or enterprise.

13.Is excluded from Medicare.

14.Is suspended, excluded from participation, terminated, or sanctioned by any other state's Medicaid and children's health insurance program.

15.Is suspended or involuntarily terminated from participation in any governmentally sponsored medical program.

16.Bills or collects from the recipient any amount in violation of section 75-02-05-04.

17.Fails to correct deficient provider operations within a reasonable time, not to exceed thirty days, after receiving written notice of these deficiencies from the department, another responsible state agency, or their designees.

18.Is formally reprimanded or censured by an association of the provider's peers for unethical practices.

19.Fails to change or modify delivery patterns and services within a reasonable period after receipt of a request so to do by a peer review committee whose jurisdiction includes the provider.

20.Is convicted of a criminal offense arising out of the making of false or fraudulent statements or of an omission of fact for the purpose of securing any governmental benefit to which the provider is not entitled, or out of conspiring, soliciting, or attempting such an action.

21.Refuses to repay or make arrangements for the repayment of identified overpayments or otherwise erroneous payments. A refusal of repayment exists if no repayment or arrangement for repayment is made within thirty days of the date written notice of discrepancy was sent.

22.Is served with a search warrant by a member of any law enforcement agency for the purpose of obtaining evidence of a crime of fraud committed by that provider against the Medicaid or children's health insurance program, or is charged with such a crime, provided that no provider may be terminated from participation in the Medicaid or children's health insurance program on such grounds.

23.Refuses to attend a department educational program or fails to agree to implement a business integrity agreement, if required by the department.

24.Defrauds any health care benefit program.

History

• History: Effective July 1, 1980; amended effective November 1, 1983; July 1, 2012; April 1, 2018.
• General Authority: NDCC 50-06-1.9, 50-24.1-04, 50-29-02
• Law Implemented: NDCC 12.1-11-02; 42 CFR 455.13, 42 CFR 455.16, 42 CFR 431.107

N.D. Admin. Code 75-02-05-06 Reporting of violations and investigation

1.Information from any source indicating that a provider has failed or is failing to fulfill the provider's responsibilities, as set forth in section 75-02-05-04; or that a provider has acted in a manner which forms a ground for sanction as set forth in section 75-02-05-05 must be transmitted to the department.

2.The department shall investigate the matter and, if the report is substantiated, shall take whatever action or impose whatever sanction is most appropriate. The taking of any action or the imposition of any sanction does not preclude subsequent or simultaneous civil or criminal court action. 3.a.The department may investigate suspected fraud or abuse. The department may conduct an investigation to determine whether:

(1)Fraud or abuse exists and can be substantiated;

(2)Sufficient evident exists to support the recovery of overpayments or the imposition of sanctions; or (3)The matter should be referred for action by another agency, including a law enforcement agency, to determine whether sufficient evidence exists to pursue any other civil or criminal action permitted by law.

b.The department may undertake an investigation to:

(1)Examine a provider's medical, financial, or patient records;

(2)Interview a provider and a provider's associates, agents, or employees;

(3)Verify a provider's professional credentials and the credentials of the provider's associates, agents, and employees;

(4)Interview recipients;

(5)Examine equipment, prescriptions, supplies, or other items used in a recipient's treatment;

(6)Sample a random mix of paid claims, prior authorizations, and medical records;

(7)Determine whether services provided to a recipient were medically necessary;

(8)Examine insurance claims or records or records of any other source of payment, including recipient payments; or (9)The department may refer the case to the appropriate authority for further investigation and prosecution.

4.The department may contract with specialists outside the department as part of the investigation.

History

• General Authority: NDCC 50-24.1-04
• Law Implemented: 42 CFR 455.14; 42 CFR 455.15; 42 CFR 455.16

N.D. Admin. Code 75-02-05-07 Activities leading to and including sanction. 1.a.When the department determines that a provider has been rendering care or services in a form or manner inconsistent with program requirements or rules, or has received payment for which the provider may not be properly entitled, the department shall notify the provider in writing of the discrepancy noted. The notice to the provider may set forth:

(1)The nature of the discrepancy or inconsistency.

(2)The dollar value, if any, of such discrepancy or inconsistency.

(3)The method of computing such dollar values.

(4)Further actions which the department may take.

(5)Any action which may be required of the provider.

b.When the department has notified the provider in writing of a discrepancy or inconsistency, it may withhold payments on pending and future claims awaiting a response from the provider.

2.If the department determines that a provider's claims were not submitted properly or that a provider has engaged in suspected fraud or abuse, the department may require the provider to participate in and complete an educational program.

a.If the department decides that a provider should participate in an educational program, the department shall provide written notice to the provider, by certified mail, setting forth the following:

(1)The reason the provider is being directed to attend the educational program;

(2)The educational program determined by the department; and (3)That continued participation as a provider in Medicaid and children's health insurance program is contingent upon completion of the educational program identified by the department.

b.An educational program may be presented by the department. The educational program may include:

(1)Instruction on the correct submission of claims;

(2)Instruction on the appropriate utilization of services;

(3)Instruction on the correct use of provider manuals;

(4)Instruction on the proper use of procedure codes;

(5)Education on statutes, rules, and regulations governing the Medicaid and children's health insurance program;

(6)Education on reimbursement rates and payment methodologies;

(7)Instructions on billing or submitting claims; and (8)Other educational tools identified by the department.

3.If a provider who is required to participate in an educational program refuses to participate in that program, the department shall suspend the provider from participation in Medicaid and children's health insurance program until the provider successfully completes the required program. The time frame to successfully complete the educational program may be extended upon provider request and with department approval.

4.If the department determines that a provider's claims were not submitted properly or that a provider has engaged in suspected fraud or abuse, the department may require the provider to implement a business integrity agreement. If the department requires a provider to enter a business integrity agreement and the provider refuses, the department shall ensure the provider is suspended from participation in Medicaid and children's health insurance program until the provider implements the required agreement.

5.The department shall suspend payments to a provider after the department determines there is a credible allegation of fraud for which an investigation is pending under the Medicaid and children's health insurance program unless the provider has demonstrated good cause why the department should not suspend payments or should suspend payment only in part. If the provider also is enrolled in a managed care organization under contract with the department, the managed care organization must suspend all Medicaid payments to the provider.

6.The department may not make payments to a provider that is not complying with a department-directed repayment plan. Recoveries may be taken across any Medicaid program payment and delivery system.

7.The director of the medical services division, or the director's designee, shall determine the appropriate sanction for a provider under this chapter. The following may be considered in determining the sanction to be imposed:

a.Seriousness of the provider's offense.

b.Extent of the provider's violations.

c.Provider's history of prior violations.

d.Prior imposition of sanctions against the provider.

e.Prior provision of information and training to the provider.

f.Provider's agreement to make restitution to the department.

g.Actions taken or recommended by peer groups or licensing boards.

h.Access to care for recipients.

i.Provider's self-disclosure or self-audit discoveries.

j.Provider's willingness to enter a business integrity agreement.

8.When a provider has been excluded from the Medicare program, the provider will also be terminated or excluded from participation in the Medicaid and children's health insurance program.

9.If the division determines there is a credible allegation of fraud, the division may impose any one or a combination of the following temporary sanctions:

a.Prepayment review of claims;

b.Postpayment review of claims;

c.Recovery of costs associated with an investigation;

d.Requirement of a provider self-audit;

e.Notification and referral to the appropriate state regulatory agency or licensing agency;

f.Suspension from participation in the Medicaid or children's health insurance program, including providers operating under an arrangement with a managed care organization;

g.Suspend payments to a provider;

h.Prior authorization of all services; and

i.Peer review at the provider's expense.

10.After the completion of a further investigation, the department shall document its findings in writing and provide a copy of that documentation to the provider. Following a determination by the department that the provider has engaged in fraud or abuse; the department may terminate, exclude or impose sanctions with conditions, including the following:

a.Recovery of overpayments;

b.Recovery of excess payments;

c.Recovery of costs associated with an investigation;

d.Requirement of a provider self-audit;

e.Prepayment review of claims;

f.Postpayment review of claims;

g.Notification and referral to the appropriate state regulatory agency or licensing agency;

h.Prior authorization of all services;

i.Penalties as established by the department; and

j.Peer review at the provider's expense.

11.A sanction may be applied to all known affiliates of a provider, provided that each sanctioned affiliate knew or should have known of the violation.

12.A provider subject to termination or exclusion from participation may not submit claims for payment, either personally or through claims submitted by any clinic, group, corporation, or other association to the department, its fiscal agent or managed care organization for any services or supplies provided under the Medicaid or children's health insurance program except for any services or supplies provided prior to the effective date of the termination or exclusion.

13.A clinic, group, corporation, or other organization which is a provider may not submit claims for payment to the department or its fiscal agent for any services or supplies provided by a person within the clinic, group, corporation, or organization who has been terminated or is under exclusion from participation in this state or any other state or who has been excluded from Medicare except for those services or supplies provided prior to the effective date of the termination or exclusion.

14.When the department determines there is a need to sanction a provider, the director of the medical services division, or the director's designee, shall notify the provider in writing of the sanction imposed. The notice must advise the provider of the right to a review, when applicable.

15.After the department sanctions a provider, the director of the medical services division may notify the applicable professional society, board of registration or licensure, and any appropriate federal, state, human service zone, or county agency of the reasons for the sanctions and the sanctions imposed.

16.If the department sanctions a provider who also serves as a billing agent for other providers, the department may also impose sanctions against the other providers upon a finding that the actions performed as the billing agent fails to meet department standards.

History

• History: Effective July 1, 1980; amended effective July 1, 2012; April 1, 2014; April 1, 2018; April 1, 2020.
• General Authority: NDCC 50-06-01.9, 50-24.1-04, 50-24.1-36, 50-29-02
• Law Implemented: NDCC 50-24.1-04, 50-24.1-36; 42 CFR 455.13, 42 CFR 455.14, 42 CFR 455.15, 42 CFR 455.16, 42 CFR 455.17, 42 CFR 455.23

N.D. Admin. Code 75-02-05-08 Imposition and extent of sanction

Repealed effective July 1, 2012.

N.D. Admin. Code 75-02-05-09 Review and appeal

1.A provider may not request a review of a temporary sanction until further investigation has been completed and the department has made a final decision.

2.After completion of further investigation, if there is an imposition of a subsequent sanction, the provider may request a review of the sanction pursuant to subsection 6 of North Dakota Century Code section 50-24.1-36.

3.A provider who is aggrieved by the decision the department issues in response to a request for review may appeal as set forth in subsection 6 of North Dakota Century Code section 50-24.1-36.

4.An applicant may appeal a decision to deny enrollment or terminate provider enrollment by filing a written appeal with the department within fifteen days of the date of the written notice of the denial or termination. Upon receipt of a timely appeal, an administrative hearing may be conducted in the manner provided in chapter 75-01-03. An applicant who receives notice of denial and requests a timely review of that decision is not eligible to provide services until a final decision has been made by the department that reverses the decision to deny the application.

42 CFR 431.151; 42 CFR 455.13

History

• History: Effective July 1, 1980; amended effective July 1, 2012; April 1, 2014; April 1, 2018; April 1, 2020.
• General Authority: NDCC 50-06-01.9, 50-09-02, 50-24.1-04
• Law Implemented: NDCC 23-01-03, 23-16-01, 23-17.1-01, 23-20.1-04, 23-27-01, 25-16-02, 26.1-18-02, 43-05-09, 43-06-08, 43-12.1-03, 43-13-15, 43-15-15, 43-17-34, 43-26-13, 43-28-10, 43-32-17, 43-33-02, 43-37-03, 50-11.1-03, 50-24.1-36; NDAC 75-01-03; 42 USC 1396a(a)(39);

N.D. Admin. Code 75-02-05-10 Provider information sessions

Repealed effective July 1, 2012.

N.D. Admin. Code 75-02-05-11 Fingerprint-based criminal background checks

1.The department shall provide fingerprint-based criminal background checks screenings for enrolled or newly enrolling providers and indirect owners with five percent or more ownership in a high-risk provider, unless that provider and indirect owners has had a successful fingerprint-based background check completed within five years of the enrollment or revalidation date by centers for Medicare and Medicaid or another state Medicaid agency. The department requires a provider, or any person with a five percent or more direct or indirect ownership interest in the provider, to submit a set of fingerprints, within thirty days upon request from centers for Medicare and Medicaid or the medical services division. The provider and owners are required to cover the cost associated with obtaining the fingerprint-based criminal background check. That includes the cost of obtaining the fingerprints and the cost of processing the background investigation. The department will inform high-risk providers of the form and manner for providing fingerprint-based criminal background check information.

2.The department shall evaluate criminal history against the reasons for revocation found in 42 C.F.R. 424.535(a)(3) and based on offenses described in North Dakota Century Code

chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-06, sexual abuse of wards; 12.1-20-06.1, sexual exploitation by therapist; 12.1-20-07, sexual assault; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering a vulnerable adult; 12.1-31-07.1, exploitation of a vulnerable adult; subsection 1 of section 26.1-02.1-02.1 of North Dakota Century Code, fraudulent insurance acts; or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the enumerated North Dakota statutes.

3.The results of the fingerprint-based criminal background checks is confidential and may be reviewed by the medical services division only to determine if the provider or their owners are fit to participate in Medicaid or children's health insurance program. Results from the fingerprint-based criminal background checks must be reviewed by the medical services division to determine if the provider is allowed enrollment or continued enrollment. A provider, or any person with five percent or greater direct or indirect ownership interest in the provider, who is required by the medical services division or centers for Medicare and Medicaid services to submit a set of fingerprints and fails to do so may have its application denied or enrollment terminated.

N.D. Admin. Code 75-02-05-12 Application fee

The department shall assess an application fee for all institutional providers who have not been assessed an application fee by centers for Medicare and Medicaid services or another state Medicaid agency. The amount of the application fee is determined by centers for Medicare and Medicaid services and is specific to a calendar year.

Chapter 75-02-05.1 Nursing Home Sanctions [Repealed]

N.D. Admin. Code 75-02-05.1 Nursing Home Sanctions [Repealed]

CHAPTER 75-02-05.1

NURSING HOME SANCTIONS [Repealed effective July 1, 1995]

Chapter 75-02-05.2 Nursing Facility Enforcement Action

N.D. Admin. Code 75-02-05.2 Nursing Facility Enforcement Action

CHAPTER 75-02-05.2

NURSING FACILITY ENFORCEMENT ACTION

Section 75-02-05.2-01Definitions 75-02-05.2-02Available Enforcement Remedies 75-02-05.2-03Enforcement Action 75-02-05.2-04Civil Money Penalties 75-02-05.2-05Imposition of Enforcement Remedies 75-02-05.2-06Notice of Enforcement Action - Delivery or Mailing - Posting 75-02-05.2-07Prohibition on Submission of Claims Through Other Providers 75-02-05.2-08Appeals 75-02-05.2-09Application 75-02-05.2-01. Definitions.

1."Certification of compliance" means a facility is in at least substantial compliance and is eligible to participate in Medicaid as a nursing facility.

2."Certification of noncompliance" means a facility is not in substantial compliance and is not eligible to participate in Medicaid as a nursing facility.

3."Deficiency" means the occurrence of a violation recorded by the survey agency, including a violation found during a standard survey, during an extended survey, or in response to a complaint, investigation, visit, or otherwise. A deficiency may include a violation that occurred at a time prior to the date of the survey or visit, even if the violation no longer exists at the time of the survey or visit.

4."Department" means the department of human services.

5."Enforcement action" means the process of imposing one or more remedies available under this chapter.

6."Facility" means an institution or a distinct part of an institution which:

a.Is primarily engaged in providing:

(1)Nursing care and related services for residents who require medical or nursing care;

(2)Rehabilitation services for the rehabilitation of injured, disabled, or sick persons; or (3)On a regular basis, health-related care and services to individuals who because of mental or physical conditions require care and services above the level of basic care that can be made available only through an institutional facility;

b.Is required to have in effect a transfer agreement, meeting the requirements of 42 U.S.C. 1396x(1), with one or more hospitals having agreements in effect under 42 U.S.C. 1395cc;

c.Is required to meet the requirements for a nursing facility described in 42 U.S.C. 1396r(b), (c), and (d); and

d.Is not primarily engaged in providing care and treatment of mental diseases.

7."Medicaid agency" means the department of human services.

8."New admission" means a resident is admitted to a facility on or after the effective date of a denial of payment remedy and, if previously admitted, has been discharged before the effective date of a denial of payment. A resident admitted before the effective date of the denial of payment and taking temporary leave is not considered a new admission.

9."Noncompliance" means any deficiency that causes a facility not to be in substantial

10."Regional office" means the health care financing administration's regional office responsible for program administration in North Dakota.

11."Repeated noncompliance" means a facility has received three consecutive findings of substandard quality of care on three consecutive standard surveys. The consecutive findings need not be based on the exact tag number of a deficiency.

12."Secretary" means the secretary of the United States department of health and human services.

13."Substandard quality of care" means a facility has one or more deficiencies related to participation requirements for resident behavior and facility practices, quality of life, or quality of care that constitute immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimum harm, but less than immediate jeopardy, with no actual harm.

14."Substantial compliance" means compliance with the participation requirements and includes any identified deficiencies posing no greater risk to resident health or safety than the potential for causing minimal harm.

15."Survey agency" means the state department of health. 75-02-05.2-02. Available enforcement remedies.

The following enforcement remedies may be imposed on a facility that is not in substantial

1.Category one remedies:

a.A directed plan of care.

b.Directed in-service training.

c.State monitoring.

2.Category two remedies:

a.Denial of payment for all new Medicaid admissions.

b.A ban on new admissions of residents.

c.A civil money penalty ranging from a minimum of fifty dollars to a maximum of three thousand dollars for each day the facility is not in substantial compliance.

3.Category three remedies:

a.Termination of the provider agreement.

b.Appointment of a receiver to oversee the operation of the facility.

c.A civil money penalty ranging from a minimum of three thousand fifty dollars to a maximum of ten thousand dollars for each day the facility is not in substantial

d.In case of an emergency, transfer of residents to other facilities.

e.In case of an emergency, transfer of residents to other facilities with closure of the facility. 75-02-05.2-03. Enforcement action.

The department may impose the enforcement remedies described in section 75-02-05.2-02 if the facility is not in substantial compliance. The scope and severity matrix established by the health care financing administration must be used to determine the appropriate category of enforcement remedy or remedies to be imposed.

1.If immediate jeopardy to the health or safety of residents exists, the department shall impose a remedy provided in subdivision a or b and may, in addition, impose any or all remedies provided in subdivisions c, d, and e. The department may:

a.Terminate the provider agreement no later than twenty-three days after the immediate jeopardy is identified if the immediate jeopardy is not removed by the twenty-first day;

b.Appoint a receiver to oversee the operation of the facility to ensure the health and safety of residents, where there is a need for a temporary management while:

(1)There is an orderly closure of the facility; or (2)Improvements are made in order to bring the facility into substantial compliance;

c.Impose a civil money penalty of at least three thousand fifty dollars per day and not exceeding ten thousand dollars per day, effective as of the date the noncompliance was identified;

d.Immediately impose state monitoring; or

e.Impose any other remedy identified in section 75-02-05.2-02, beginning at least two days from the date the provider receives notice of the remedy to be imposed.

2.If immediate jeopardy does not exist, the department may terminate the provider agreement in effect or apply one or more of the enforcement remedies identified in section 75-02-05.2-02 instead of, or in addition to, termination. The department may:

a.Impose a denial of payment for new admissions no sooner than fifteen days after the survey, but must impose a denial of payment for new admissions effective no later than three months after the last day of a standard survey if substantial compliance is not achieved;

b.Impose state monitoring without notice;

c.Impose a civil money penalty effective as of the date the noncompliance was identified;

d.Authorize the survey agency to impose one or more category one remedies; or

e.Impose other remedies available under section 75-02-05.2-02 no sooner than fifteen days from the date the provider receives notice.

3.If a provider has been found to have provided substandard quality of care on the last three consecutive standard surveys, the department shall:

a.Deny payment for all new admissions as soon as possible within, but no later than, ninety days from the last day of the third consecutive survey;

b.Impose state monitoring; and

c.Provide notification of the finding of substandard quality of care to the attending physician of each resident found to have received the substandard quality of care.

4.If the provider fails to properly post a notice of enforcement action, removes a posted notice without authorization, fails to inform a person inquiring about availability of beds of the enforcement action, or fails to publish a required notice, the department shall impose a civil money penalty.

5.The department may not enter into a provider agreement with any prospective provider who is not in substantial compliance. 75-02-05.2-04. Civil money penalties.

1.The department may impose a civil money penalty for the number of days a provider is not in substantial compliance with one or more participation requirements.

2.The department may impose a civil money penalty for the number of days of past noncompliance since the last standard survey.

3.A minimum of fifty dollars per day and a maximum of three thousand dollars per day in penalties may be imposed when immediate jeopardy does not exist, but deficiencies either caused actual harm or caused no acutal harm, but have the potential for more than minimal harm.

4.A minimum of three thousand fifty dollars per day and a maximum of ten thousand dollars per day in penalties may be imposed when immediate jeopardy exists or when immediate jeopardy does not exist if a penalty in the lower range of penalty identified in subsection 3 was previously imposed and deficiencies are repeated.

5.A civil money penalty imposed under subsection 4 must be decreased to the range of penalties provided in subsection 3 when the penalty was imposed for a situation of immediate jeopardy and the immediate jeopardy is removed, but noncompliance continues.

6.The following factors must be considered in determining the amount of a civil money penalty to impose.

a.The seriousness of the deficiency determined by:

(1)Severity measured as:

(a)No actual harm with a potential for minimal harm;

(b)No actual harm with a potential for more than minimal harm, but not immediate jeopardy;

(c)Actual harm that is not immediate jeopardy; or (d)Immediate jeopardy to residents' health or safety; and (2)Scope measured as:

(a)Isolated;

(b)Patterned; or (c)Widespread;

b.The relationship of one deficiency to another;

c.History of noncompliance:

(1)For all deficiencies; and (2)For deficiencies specifically related to deficiencies currently cited;

d.The provider's financial condition; and

e.The likelihood the civil money penalty may achieve correction and continued compliance.

7.A civil money penalty may be increased when continued noncompliance by a provider becomes sufficiently serious to pose immediate jeopardy.

8.The department shall increase a civil money penalty by twenty-five percent if the provider has repeated deficiencies. The increased civil money penalty may exceed the maximum amount per day established in this section.

9.A civil money penalty is collectible for the number of days of noncompliance from the date the penalty starts until the date the provider achieves substantial compliance or, if applicable, the date of termination.

10.The provider may, in accordance with 42 CFR part 431, appeal the decision that resulted in imposition of a civil money penalty.

a.The collection of the civil money penalty must be delayed if a hearing is requested.

b.The civil money penalty must be reduced by thirty-five percent if the provider, in writing, waives the right to appeal no later than sixty days from the date of the notice of the imposition of the civil money penalty.

11.Payment of a civil money penalty is due:

a.Fifteen days after a provider comes into substantial compliance or the provider agreement is terminated;

b.Fifteen days after a final administrative decision is made upholding the imposition of the civil money penalty if the provider has achieved substantial compliance or was terminated prior to the final administrative decision; or

c.Fifteen days after the time period for requesting a hearing has expired and the provider has achieved substantial compliance or was terminated prior to the final day the hearing request was due.

12.Interest is payable on the unpaid civil money penalty balance beginning on the due date.

Interest will accrue at three times the legal rate.

13.Civil money penalties and applicable interest, if any, not paid within thirty days after the due date must be deducted from any payment owing to the provider.

14.Civil money penalties collected must be used for the protection of the health or property of residents of facilities found deficient. 75-02-05.2-05. Imposition of enforcement remedies.

1.The survey agency shall recommend enforcement action.

2.The department shall consider the survey agency recommendation when determining the appropriate enforcement action, except the appointment of a receiver must be as provided in North Dakota Century Code chapter 23-16.1. The department shall provide for the imposition of incrementally more severe remedies for repeated, uncorrected, or pervasive deficiencies or deficiencies presenting a threat to the health, safety, or welfare of residents.

3.The provisions of 42 U.S.C. 1396r(h)(6) govern the imposition of remedies when the department and the regional office do not agree.

4.Enforcement action must cease upon recommendation of the survey agency indicating the conditions or circumstances causing a deficiency appear to be corrected. 75-02-05.2-06. Notice of enforcement action - Delivery or mailing- Posting.

1.A written notice of enforcement action issued by the department must be hand delivered or mailed to the facility owner, administrator, or head of the facility's governing board. The notice must include:

a.The basis for the decision;

b.A statement of the deficiencies upon which the decision was based; and

c.If the facility is also participating or seeking to participate in Medicare as a skilled nursing facility, and the basis for the department's denial or termination of participation in Medicaid is also a basis for denial or termination in Medicare:

(1)That the appeals procedures specified for Medicare facilities in 42 CFR part 498 apply; and (2)A final decision entered under the Medicare appeals procedure is binding on the department.

2.If the department imposes a remedy:

a.Except as provided in subdivision b, the department must impose all remedies timely, even if the facility requests a hearing; and

b.The department may not collect a civil money penalty until after the period for requesting a hearing has elapsed or, if the facility requests a hearing, until issuance of a final administrative decision that supports imposition of the penalty.

3.The facility shall place the notice of enforcement action at all facility entrances and exits. In the event of the imposition of a ban on admission, denial of payment for new admissions, receivership, closure, or termination, the facility shall inform every person inquiring about the availability of beds in the facility of the deficiencies and the enforcement actions. The department may require the facility to publish a notice in area newspapers to achieve public dissemination of information concerning enforcement action. 75-02-05.2-07. Prohibition on submission of claims through other providers.

A facility subject to termination from participation or to any limitation or denial of payment may not submit claims for payment, either directly or indirectly through any clinic, group, corporation, or other association, to the department or any fiscal agent for any services or supplies provided under the medical services program except for any services or supplies provided prior to the effective date of an enforcement action. 75-02-05.2-08. Appeals.

1.A nonstate-owned facility, participating only in Medicaid, dissatisfied with an informal dispute resolution decision of the survey agency may appeal the issue of whether or not a deficiency occurred in the manner provided in section 75-01-03-20. Correction of the deficiency may not be used as a reason for appealing a decision.

2.A facility not entitled to appeal under subsection 1 may appeal under 42 CFR part 498. 75-02-05.2-09. Application.

The department is responsible for the application of this chapter to nonstate-operated nursing facilities participating only in the Medicaid program. The department may make recommendations to the regional office for the application of this chapter to other nursing facilities. This chapter must be applied on or after July 1, 1995.

Chapter 75-02-06 Ratesetting for Nursing Home Care

N.D. Admin. Code 75-02-06-01 Definitions

In this chapter, unless the context or subject matter requires otherwise:

1."Accrual basis" means the recording of revenue in the period when it is earned, regardless of when it is collected, and the recording of expenses in the period when incurred, regardless of when they are paid.

2."Actual rate" means the facility rate for each cost category calculated using allowable historical operating costs and adjustment factors.

3."Adjustment factor" means the centers for Medicare and Medicaid services skilled nursing facility market basket index four-quarter moving average percent change for quarter two of the applicable rate year from the current market basket data file publicly available as of August thirty-first of the year preceding the rate year. The adjustment factor also shall include any legislatively approved inflation increase for nursing facilities.

4."Admission" means any time a resident is admitted to the facility from an outside location, including readmission resulting from a discharge.

5."Allowable cost" means the facility's actual cost after appropriate adjustments as required by medical assistance regulations.

6."Bona fide sale" means the purchase of a facility's capital assets with cash or debt in an arm's-length transaction. It does not include:

a.A purchase of shares in a corporation that owns, operates, or controls a facility except as provided under subsection 3 of section 75-02-06-07;

b.A sale and leaseback to the same licensee;

c.A transfer of an interest to a trust;

d.Gifts or other transfers for nominal or no consideration;

e.A merger of two or more related organizations;

f.A change in the legal form of doing business;

g.The addition or deletion of a partner, owner, or shareholder; or

h.A sale, merger, reorganization, or any other transfer of interest between related organizations.

7."Building" means the physical plant, including building components and building services equipment, licensed as a facility, and used directly for resident care, and auxiliary buildings including sheds, garages, and storage buildings located on the site used directly for resident care.

8."Capital asset" means a facility's buildings, land improvements, fixed equipment, movable equipment, leasehold improvements, and all additions to or replacements of those assets used directly for resident care.

9."Certified nurse aide" means:

a.An individual who has satisfactorily completed a nurse aide training and competency evaluation program approved by the state as meeting the requirements of 42 CFR 483.151 through 483.154 and is registered on a state-established registry of nurse aides as required by 42 CFR 483.156; or who has been deemed or determined competent as provided in 42 CFR 483.151(a) and (b) and is registered on a state-established registry of nurse aides as required by 42 CFR 483.156; or

b.An individual who has worked less than four months as a nurse aide and is enrolled in a training and evaluation program approved by the state as meeting the requirements of 42 CFR 483.151 through 483.154.

10."Chain organization" means a group of two or more health care facilities owned, leased, or, through any other device, controlled by one business entity. This includes not only proprietary chains, but also chains operated by various religious and other charitable organizations. A chain organization may also include business organizations engaged in other activities not directly related to health care.

11."Close relative" means an individual whose relationship by blood, marriage, or adoption to an individual who is directly or indirectly affiliated with, controls, or is controlled by a facility is within the third degree of kinship.

12."Community contribution" means a contribution to a civic organization or sponsorship of community activities. It does not include a donation to a charity.

13."Cost category" means the classification or grouping of similar or related costs for purposes of reporting, the determination of cost limitations, and determination of rates.

14."Cost center" means a division, department, or subdivision thereof, group of services or employees or both, or any unit or type of activity into which functions of a facility are divided for purposes of cost assignment and allocations.

15."Cost rate" means the rate calculated using historical operating costs and adjustment factors up to the limit rate for direct care, other direct care, and indirect care. The cost rate shall include an efficiency incentive and operating margin.

16."Cost report" means the department approved form for reporting costs, statistical data, and other relevant information of the facility.

17."Department" means the department of health and human services.

18."Depreciable asset" means a capital asset for which the cost must be capitalized for ratesetting purposes.

19."Depreciation" means an allocation of the cost of an asset over its estimated useful life.

20."Depreciation guidelines" means the American hospital association's guidelines as published by American hospital publishing, inc., in "Estimated Useful Lives of Depreciable Hospital Assets", revised 2018 edition.

21."Desk audit rate" means the rate established by the department based upon a review of the cost report submission prior to an audit of the cost report.

22."Direct care costs" means the cost category for allowable nursing and therapy costs.

23."Direct costing" means identification of actual costs directly to a facility or cost category without use of any means of allocation.

24."Discharge" means the voluntary or involuntary release of a bed by a resident when the resident vacates the nursing facility premises.

25."Effective age" means a facility's building chronological age reduced by allowable projects for improvements to land, building, and fixed equipment. A facility's effective age must be calculated annually based upon improvements made during the cost report period.

26."Employment benefits" means fringe benefits, other employee benefits including vision insurance, disability insurance, long-term care insurance, employee assistance programs, employee child care benefits, and payroll taxes.

27."Established rate" means the rate paid for services.

28."Facility" means a nursing facility not owned or administered by state government or a nursing facility, owned or administered by state government, which agrees to accept a rate established under this chapter. It does not mean an intermediate care facility for individuals with intellectual disabilities.

29."Fair market value" means value at which an asset could be sold in the open market in a transaction between informed, unrelated parties.

30."Fair rental value" means the depreciated replacement value of the building, land improvements, and fixed equipment based on the facility's effective age; land as a percentage of the building replacement value; and a moveable equipment replacement value based on licensed beds. The calculation of the fair rental value of the building, land improvements, and fixed equipment must include a location factor, annual depreciation, and an annual replacement cost inflation factor. The fair rental value must be calculated using any limitations identified in sections 75-02-06-16 and 75-02-06-16.3.

31."Fair rental value rate" means the per diem rate calculated using the fair rental value.

32."Final decision rate" means the amount, if any, determined on a per day basis, by which a rate otherwise set under this chapter is increased as a result of a request for reconsideration, a request for an administrative appeal, or a request for judicial appeal taken from a decision on an administrative appeal.

33."Final rate" means the rate established after any adjustments by the department, including adjustments resulting from cost report reviews and audits.

34."Fixed equipment" means equipment used directly for resident care affixed to a building, not easily movable, and identified as such in the depreciation guidelines.

35."Freestanding facility" means a nursing facility which does not share basic services with a hospital-based provider.

36."Fringe benefits" means workers' compensation insurance, group health or dental insurance, group life insurance, retirement benefits or plans, uniform allowances, and medical services furnished at nursing facility expense.

37."Highest market-driven compensation" means the highest compensation given to an employee of a freestanding facility who is not an owner of the facility or is not a member of the governing board of the facility.

38."Historical operating costs" means the allowable operating costs incurred by the facility during the report year immediately preceding the rate year for which the established rate becomes effective.

39."Hospice general inpatient care" means short-term inpatient care necessary for pain control or acute or chronic symptom management that cannot feasibly be provided in other settings. It does not mean care provided to an individual residing in a nursing facility.

40."Hospice inpatient respite care" means short-term inpatient care provided to an individual when necessary to relieve family members or other persons caring for the individual at home.

Care may be provided for no more than five consecutive days. For purposes of the definition, home does not include nursing facility.

41."Hospital leave day" means any day that a resident is not in the facility, but is in an acute care setting as an inpatient or has been identified in a resident assessment instrument as "discharged anticipated to return".

42."Indirect care costs" means the cost category for allowable administration, plant, housekeeping, medical records, chaplain, pharmacy, and dietary, exclusive of food costs.

43."In-house resident day" for nursing facilities means a day that a resident was actually residing in the facility and was not on therapeutic leave or in the hospital. "In-house resident day" for hospitals means an inpatient day.

44."Institutional leave day" means any day that a resident is not in the facility, but is in another nursing facility, swing-bed facility, transitional care unit, subacute care unit, or intermediate care facility for individuals with intellectual disabilities.

45."Land improvements" means any improvement to the land surrounding the facility used directly for resident care and identified as such in the depreciation guidelines.

46."Limit rate" means the rate established as the maximum allowable rate for a cost category.

47."Lobbyist" means any person who in any manner, directly or indirectly, attempts to secure the passage, amendment, defeat, approval, or veto of any legislation, attempts to influence decisions made by the legislative council, and is required to register as a lobbyist.

48."Managed care organization" means a Medicaid managed care organization as that term is defined in section 1903(m) of the Social Security Act [42 U.S.C. 1396b(m)].

49."Margin cap" means a percentage of the price rate limit which represents the maximum per diem amount a facility may receive if the facility has historical operating costs, including adjustment factors, below the price rate.

50."Medical assistance program" means the program which pays the cost of health care provided to eligible recipients pursuant to North Dakota Century Code chapter 50-24.1.

51."Medical records costs" means costs associated with the determination that medical record standards are met and with the maintenance of records for individuals who have been discharged from the facility. It does not include maintenance of medical records for in-house residents.

52."Movable equipment" means movable care and support services equipment generally used in a facility, including equipment identified as major movable equipment in the depreciation guidelines.

53."Noncovered day" means a resident day that is not payable by medical assistance but is counted as a resident day.

54."Other direct care costs" means the cost category for allowable activities, social services, laundry, and food costs.

55."Payroll taxes" means the employer's share of Federal Insurance Contributions Act (FICA) taxes, governmentally required retirement contributions, and state and federal unemployment compensation taxes.

56."Passthrough costs" means the cost category for allowable reasonable legal and related expenses, startup costs, bad debt, education expense, and computer software and related technology costs.

57."Peer group" means the grouping of facilities based on their licensed bed capacity available for occupancy as of June thirtieth of the report year to determine the indirect care cost category price rate. The large peer group must be facilities with licensed bed capacity greater than fifty-five beds. The small peer group must be facilities with licensed bed capacity of fifty-five beds or fewer.

58."Pending decision rate" means the amount, determined on a per day basis, by which a rate otherwise set under this chapter would increase if a facility prevails on a request for reconsideration, on a request for an administrative appeal, or on a request for a judicial appeal taken from a decision on an administrative appeal; however, the amount may not cause any component of the rate to exceed rate limits established under this chapter.

59."Price rate" means the rate calculated using historical operating costs and adjustment factors up to the limit rate for the direct care, other direct care, and indirect care cost categories.

60."Private-pay resident" means a nursing facility resident on whose behalf the facility is not receiving medical assistance payments and whose payment rate is not established by any governmental entity with ratesetting authority, including veterans' administration or Medicare, or whose payment rate is not negotiated by any managed care organization contracting with a facility to provide services to the resident.

61."Private room" means a room equipped for use by only one resident.

62."Property costs" means the cost category for allowable real property costs and lease and rental costs.

63."Provider" means the organization or individual who has executed a provider agreement with the department.

64."Rate adjustment percentage" means the percentage used to determine the minimum adjustment threshold to the rate weight of one for all facilities. The percentage is thirty-sixth hundredths of one percent effective with the June 30, 2019, cost reporting period.

65."Rate year" means the calendar year from January first through December thirty-first.

66."Reasonable resident-related cost" means the cost that must be incurred by an efficiently and economically operated facility to provide services in conformity with applicable state and federal laws, regulations, and quality and safety standards. Reasonable resident-related cost takes into account that the provider seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or services.

67."Related organization" means a close relative or person or an organization which a provider is, to a significant extent, associated with, affiliated with, able to control, or controlled by, and which furnishes services, facilities, or supplies to the provider. Control exists where an individual or an organization has the power, directly or indirectly, significantly to influence or direct the policies of an organization or provider.

68."Report year" means the fiscal year from July first through June thirtieth of the year immediately preceding the rate year.

69."Resident" means an individual who has been admitted to the facility, but not discharged.

70."Resident day" in a nursing facility means all days for which service is provided or for which payment is ordinarily sought, including hospital leave days and therapeutic leave days. The day of admission and the day of death are resident days. The day of discharge is not a resident day. "Resident day" in a hospital means all inpatient days for which payment is ordinarily sought.

71."Respite care" means short-term care provided to an individual when necessary to relieve family members or other persons caring for the individual at home.

72."Routine hair care" means hair hygiene which includes grooming, shampooing, cutting, and setting.

73."Significant capacity increase" means an increase of fifty percent or more in the number of licensed beds or an increase of twenty beds, whichever is greater; but does not mean an increase by a facility which reduces the number of its licensed beds and thereafter relicenses those beds, and does not mean an increase in a nursing facility's licensed capacity resulting from converting beds formerly licensed as basic care beds.

74."Standardized resident day" means a resident day times the classification weight for the resident.

75."Therapeutic leave day" means any day that a resident is not in the facility, another nursing facility, swing-bed facility, transitional care unit, subacute unit, an intermediate care facility for individuals with intellectual disabilities, or an acute care setting, or, if not in an institutional setting, is not receiving home- and community-based waivered services.

76."Top management personnel" means owners, board members, corporate officers, general, regional, and district managers, administrators, and any other person performing functions ordinarily performed by such personnel.

77."Working capital debt" means debt incurred to finance nursing facility operating costs, but does not include debt incurred to acquire or refinance a capital asset or to refund or refinance debt associated with acquiring a capital asset.

September 1, 1987; January 1, 1990; January 1, 1992; November 22, 1993; January 1, 1996; July 1, 1996; January 1, 1998; January 1, 1999; January 1, 2000; July 2, 2002; July 2, 2003; December 1, 2005; October 1, 2010; July 1, 2012; January 1, 2014; July 1, 2016; January 1, 2020; January 1, 2022;

October 1, 2022; January 1, 2024.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; June 1, 1985;

N.D. Admin. Code 75-02-06-02 Financial reporting requirements

1.Records.

a.The facility shall maintain on the premises the required census records and financial information in a manner sufficient to provide for a proper audit or review. For any cost being claimed on the cost report, sufficient data must be available as of the audit date to fully support the report item.

b.When several facilities are associated with a group and their accounting and reports are centrally prepared, added information must be submitted, for those items known to be lacking support at the reporting facility, with the cost report or must be provided to the local facility prior to the audit or review of the facility. Accounting or financial information regarding related organizations must be readily available to substantiate cost. Home office cost reporting and cost allocation must be in conformance with this chapter and HCFA-15 paragraphs 2150 and 2153.

c.Each provider shall maintain, for a period of not less than five years following the date of submission of the cost report to the department, accurate financial and statistical records of the period covered by such cost report in sufficient detail to substantiate the cost data reported. Each provider shall make such records available upon reasonable demand to representatives of the department or to the secretary of health and human services or representatives of the secretary.

d.Except for motor vehicles used exclusively for resident-related activities, the provider shall maintain a mileage log for all motor vehicles which identifies mileage and purpose of each trip. Vehicle mileage for nonresident-related activities must be documented.

2.Accounting and reporting requirements.

a.The accrual basis of accounting, in accordance with generally accepted accounting principles, must be used for cost reporting purposes. A facility may maintain its accounting records on a cash basis during the year, but adjustments must be made to reflect proper accrual accounting procedures at yearend and when subsequently reported. Ratesetting procedures must prevail if conflicts occur between ratesetting procedures and generally accepted accounting principles.

b.To properly facilitate auditing, the accounting system must be maintained in a manner that allows cost accounts to be grouped by cost center and readily traceable to the cost report.

c.No later than October first of each year, each facility shall provide to the department:

(1)A cost report for the report year ended June thirtieth, on forms prescribed by the department.

(2)Except for state-owned facilities, a copy of an audited report of the facility's financial records from an independent certified public accountant which must include an audited statement of the rates charged to private-pay residents. The examination must be conducted in accordance with generally accepted auditing standards. For provider organizations that operate more than one nursing facility, a consolidated audit report may be provided. The information must be reconciled to each facility's (3)A complete statement of fees and charges for private-pay residents for the report (4)A statement of ownership for the facility, including the name, address, and proportion of ownership of each owner.

(a)If a privately held or closely held corporation or partnership has an ownership interest in the facility, the facility shall report the name, address, and proportion of ownership of all owners of the corporation or partnership who have an ownership interest of five percent or more, except that any owner whose compensation or portion of compensation is claimed in the facility's cost report must be identified regardless of the proportion of ownership interest.

(b)If a publicly held corporation has an ownership interest of fifteen percent or more in the facility, the facility shall report the name, address, and proportion of ownership of all owners of the publicly held corporation who have an ownership interest of ten percent or more.

(5)Copies of leases, purchase agreements, appraisals, financing arrangements, and other documents related to the lease or purchase of the facility or a certification that the content of the document remains unchanged since the most recent statement given pursuant to this subsection.

(6)Supplemental information reconciling the costs on the financial statements with costs on the cost report.

(7)The following information upon request by the department:

(a)Access to certified public accountant's audit workpapers that support the audited financial statements.

(b)Copies of leases, purchase agreements, and other documents related to the acquisition of equipment, goods, and services claimed as allowable costs.

(c)Audited financial statements for any organization, excluding individual nursing facilities of a chain organization owned in whole or in part by an individual or entity that has an ownership interest in the facility, together with supplemental information that reconciles costs on the financial statements to costs for the report year.

(d)Audited financial statements for every organization with which the facility conducts business and is owned in whole or in part by an individual or entity that has an ownership interest in the facility, together with supplemental information that reconciles costs on the financial statements to costs for the report year.

d.In the event a facility fails to file the required cost report on or before the due date, the department may reduce the current payment rate to eighty percent of the rate in effect on October first. Reinstatement of the rate must occur on the first of the month beginning after receipt of the required information, but is not retroactive.

e.The facility shall make all adjustments, allocations, and projections necessary to arrive at allowable costs. The department may reject any cost report when the information filed is incomplete or inaccurate. If a cost report is rejected, the department may reduce the current payment rate to eighty percent of its most recently established rate until the information is completely and accurately filed.

f.Costs reported must include total costs and be adjusted to allowable costs. Adjustments required by the provider audit unit, to attain allowable cost, though not meeting the Medicaid state agency or the state Medicaid investigative group criteria of fraud or abuse on their initial identification, may, if repeated on future cost filings, be considered as possible fraud or abuse. The provider audit unit may forward all such items identified to the appropriate Medicaid investigative group.

g.The department may grant an extension of the reporting deadline to a facility for good cause.

3.The department may perform an audit of the latest available report year of each facility at least once every six years and retain for at least three years all audit-related documents, including cost reports, working papers, and internal reports on rate calculations used and generated by audit staff in performance of audits and in the establishment of rates. Audits must meet generally accepted governmental auditing standards.

4.Penalties for false reports.

a.A false report is one where a facility knowingly supplies inaccurate or false information in a required report that results in an overpayment. If a false report is received, the department may:

(1)Immediately adjust the facility's payment rate to recover the entire overpayment within the rate year;

(2)Terminate the department's agreement with the provider;

(3)Prosecute under applicable state or federal law; or (4)Use any combination of the foregoing actions.

b.The department may determine a report is a false report if a facility claims previously adjusted costs as allowable costs. Previously adjusted costs being appealed must be identified as nonallowable costs. The provider may indicate that the costs are under appeal and not claimed under protest to perfect a claim if the appeal is successful.

January 1, 1990; November 22, 1993; January 1, 1996; January 1, 2002. 75-02-06-02.1. General cost principles.

1.For ratesetting purposes, a cost must:

a.Be ordinary, necessary, and related to resident care;

b.Be what a prudent and cost-conscious business person would pay for the specific good or service in the open market in an arm's-length transaction; and

c.Be for goods or services actually provided in the facility.

2.The cost effects of transactions which circumvent this chapter are not allowable under the principle that the substance of the transaction prevails over form.

3.Costs incurred due to management inefficiency, unnecessary care, unnecessary facilities, agreements not to compete, or activities not commonly accepted in the nursing facility industry are not allowable.

4.Reasonable resident-related costs must be determined in accordance with the ratesetting procedures of this chapter, the ratesetting manual, instructions issued by the department, and principles of reimbursement for provider costs (Centers for Medicare and Medicaid Services Provider Reimbursement Manual). If conflicts occur between this chapter, the ratesetting manual, or instructions issued by the department and Centers for Medicare and Medicaid Services Provider Reimbursement Manual, this chapter, the ratesetting manual, or instructions issued by the department must prevail.

Direct care costs include only those costs identified in this section.

1.Therapies.

a.Salary and employment benefits for speech, occupational, and physical therapists, or for personnel, who are not reported in subsection 2, performing therapy under the direction of a licensed therapist.

b.The cost of noncapitalized therapy equipment or supplies used to directly provide therapy.

c.Training required to maintain licensure, certification, or professional standards, and the related travel costs.

2.Nursing.

a.Salary and employment benefits for the director of nursing, nursing supervisors, inservice trainers for nursing staff, registered nurses, licensed practical nurses, quality assurance personnel, certified nurse aides, individuals providing assistance with activities of daily living, individuals with a cognitive impairment who provide care-related services and who require the direction or supervision of a registered nurse in order to perform those services, and ward clerks.

b.Allowable routine nursing supplies, personal hygiene supplies, medical supplies, and noncapitalized equipment necessary to provide for the care of residents routinely used in the provision of daily care of residents based on the resident's needs.

c.Training required to maintain licensure, certification, or professional standards requirements, and the related travel costs.

d.Routine hair care.

e.The cost of noncapitalized wheelchairs.

January 1, 1996; January 1, 2000; July 2, 2002; November 19, 2003; January 1, 2020; January 1, 2026. 75-02-06-02.3. Other direct care costs.

Other direct care costs include only those costs identified in this section.

1.The cost of consumable food products.

2.Dietary supplements, including supplements used for tube feedings such as elemental high nitrogen diet.

3.Laundry costs:

a.Salary and employment benefits for a director of laundry, laundry aides, seamstresses, and other people who gather, transport, sort, and clean linen and clothing.

b.The cost of laundry supplies including detergents, softeners, and linens.

c.Contracted services for laundry.

4.Social service costs: Salary and employment benefits or consultant fees for social workers or social worker designees.

5.Activities costs:

a.Salary and employment benefits for an activities director and activities aides.

b.The cost of leisure and recreational activities and supplies including games, ceramics, pets, out-of-house activities, and noncapitalized exercise equipment.

Indirect care costs include all costs specifically identified in this section. Indirect care costs must be included in total, without direct or indirect allocation to other cost categories unless specifically provided for elsewhere.

1.Administration. Direct costs for administering the overall activities of the facility include:

a.Salary and employment benefits for administrators, except in a facility of sixty or fewer beds, part of an administrator's salary may be allocated to other cost categories provided adequate records identifying the hours and services provided are maintained by the

b.Salary and employment benefits for assistant administrators, top management personnel, accounting personnel, clerical personnel, secretaries and receptionists, data processing personnel, purchasing, receiving, and store personnel, medical director, security personnel, and of all personnel not designated in other cost categories.

c.Board of directors' fees and related travel expenses.

d.Security personnel or services.

e.Supplies except as specifically provided for in the direct care, other direct care, and other cost centers of the indirect care cost category.

f.Insurance, except insurance included as a fringe benefit and insurance included as part of related party lease costs.

g.Telephone and telegraph.

h.Postage and freight.

i.Membership dues and subscriptions.

j.Professional fees for services such as legal, accounting, and data processing.

k.Central or home office costs including property costs except as provided for in section 75-02-06-06.1.

l.Advertising and personnel recruitment costs.

m.Management consultants and fees.

n.Bad debts and collection fees as provided for in section 75-02-06-10.

o.Business meetings, conventions, association meetings, and seminars.

p.Travel, except as necessary for training programs for personnel required to maintain licensure, certification, or professional standards requirements.

q.Training, except for training for personnel required to maintain licensure, certification, or professional standards requirements.

r.Business office functions.

s.Working capital interest.

t.Any costs that cannot be specifically classified to other cost categories.

2.Chaplain.

a.Salary and employment benefits for all personnel assigned to meet the spiritual needs of the residents.

b.Supplies and other expenses related to meeting the spiritual needs of the residents.

3.Pharmacy. Compensation for pharmacy consultants.

4.Plant operations.

a.Salary and employment benefits for a director of plant operations, engineers, carpenters, electricians, plumbers, caretakers, vehicle drivers, and all other personnel performing tasks related to maintenance or general plant operations.

b.The cost of heating and cooling, electricity, water, sewer and garbage, and cable television.

c.Repairs and maintenance contracts and purchased services.

d.Supplies necessary for repairs and maintenance of the facility, including hardware, building materials and tools, other maintenance-related supplies, and noncapitalized equipment not included elsewhere.

e.Motor vehicle operating and resident transportation expenses.

5.Housekeeping.

a.Salary and employment benefits for a director of housekeeping, housekeepers, and other cleaning or housekeeping personnel.

b.Cost of cleaning supplies including soaps, waxes, polishes, household paper products such as hand towels and toilet paper, and noncapitalized cleaning equipment.

c.Contracted services for housekeeping.

6.Dietary.

a.Salary and employment benefits for a director of dietary, nutritionists, dieticians, cooks, and kitchen personnel involved in the preparation and delivery of food.

b.The cost of dietary supplies and utensils including dietary paper products, silverware, and noncapitalized kitchen and dining equipment.

7.Medical records. Salary and employment benefits for personnel performing medical records maintenance.

January 1, 1996; January 1, 2000; January 1, 2020. 75-02-06-02.5. Property costs and other passthrough costs.

Property-related costs and other passthrough costs include only those costs identified in this

section:

1.Depreciation.

2.Interest expense on capital debt.

3.Property taxes including special assessments as provided for in section 75-02-06-09.

4.Lease and rental costs.

5.Startup costs.

6.Reasonable legal and related expenses:

a.Incurred or as a result of a successful challenge to a decision by a governmental agency, made on or after January 1, 1990, regarding a rate year beginning on or after January 1, 1990;

b.Related to legal services furnished on or after January 1, 1990; and

c.In the case of a partially successful challenge, not in excess of an amount determined by developing a ratio of total amounts claimed successfully to total amounts claimed in the partially successful challenge and applying that ratio to the total legal expenses paid.

7.Allowable bad debt expense under section 75-02-06-10 in the report year in which bad debt is determined to be uncollectible with no likelihood of future recovery.

8.Education expense allowed under section 75-02-06-12.1 in the report year in which it is expended.

9.Computer software and related technology costs, including cloud-based costs.

January 1, 2010; January 1, 2020. 75-02-06-02.6. Cost allocations.

1.Direct costing of allowable costs must be used whenever possible. For a facility that cannot direct cost, the following allocation methods must be used:

a.If a facility is combined with a hospital or has more than one license (including basic care), the following allocation methods must be used:

(1)Nursing salaries that cannot be reported based on actual costs must be allocated using time studies. Time studies must be conducted at least semiannually for a two-week period or quarterly for a one-week period. Time studies must represent a typical period of time when employees are performing normal work activities in each of their assigned areas of responsibilities. Allocation percentages based on the time studies must be used starting with the next pay period following completion of the time studies or averaged for the report year. The methodology used by the facility may not be changed without approval by the department. If time studies are not completed, nursing salaries must be allocated based on revenues for resident services.

(2)Salaries for a director of nursing or nursing supervisors that cannot be reported based on actual costs or time studies must be allocated based on nursing salaries or full-time equivalents of nursing staff.

(3)Salaries for cost center supervisors must be allocated based on cost center salaries or full-time equivalents of supervised staff.

(4)Staff development or inservice trainer salaries must be allocated to nursing and therapies based on the ratio of nursing and therapy salaries to total salaries, to non-long-term care based on the ratio of non-long-term care salaries to total salaries, and to administration based on the ratio of total salaries less nursing salaries, therapy salaries, and non-long-term care salaries to total salaries.

(5)Other nursing costs must be allocated based on resident days.

(6)Therapy costs, other than therapy salaries and purchased services, must be allocated based on the ratio of therapy salaries and purchased services in the nursing facility to total therapy salaries and purchased services.

(7)Dietary and food costs must be allocated based on number of meals served or in-house resident days.

(8)Laundry costs must be allocated on the basis of pounds of laundry or in-house resident days.

(9)Activity costs must be allocated based on in-house resident days.

(10)Social service costs must be allocated based on resident days.

(11)Housekeeping costs must be allocated based on weighted square footage.

(12)Plant operation costs must be allocated based on weighted square footage.

(13)Medical records costs must be allocated based on the number of admissions or discharges and deaths.

(14)Pharmacy costs for consultants must be allocated based on in-house resident days.

(15)Administration costs must be allocated on the basis of the percentage of total adjusted cost, excluding property, administration, chaplain, and utility costs, in each (16)Property costs must be allocated first to a cost center based on square footage. The property costs allocated to a given cost center must be allocated using the methodologies set forth in this section for that particular cost center.

(17)Chaplain costs must be allocated based on the percentage of total adjusted costs, excluding property, administration, chaplain, and utility costs.

(18)Employment benefits must be allocated based on the ratio of salaries to total salaries.

b.If any of the allocation methods in subdivision a cannot be used by a facility, a waiver request may be submitted to the medical services division. The request must include an adequate explanation as to why the referenced allocation method cannot be used by the facility. The facility shall also provide a rationale for the proposed allocation method.

Based on the information provided, the department shall determine the allocation method used to report costs.

c.Malpractice, professional liability insurance, therapy salaries, and purchased therapy services must be direct costed.

d.The costs of operating a pharmacy must be included as non-long-term care costs.

e.For purposes of this subsection, "weighted square footage" means the allocation of the facility's total square footage, excluding common areas, identified first to a cost category and then allocated based on the allocation method described in this subsection for that cost category.

2.If a facility cannot directly identify salaries and employment benefits to a cost category, the following cost allocation methods must be used:

a.Salaries, excluding staff development and inservice trainer salaries, must be allocated using time studies. Time studies must be conducted semiannually for a two-week period or quarterly for a one-week period. Time studies must represent a typical period of time when employees are performing normal work activities in each of their assigned areas of responsibilities. Allocation percentages based on the time studies must be used starting with the next pay period following completion of time study or averaged for the reporting year. The methodology used by the facility may not be changed without approval by the department. If time studies are not completed, salaries and employment benefits must be allocated entirely to the indirect care costs, if any of the employee's job duties are included in this cost category. Otherwise, salaries and employment benefits must be other directcare costs.

b.Staff development and inservice trainer salaries must be allocated to nursing and therapies based on the ratio of nursing and therapy salaries to total salaries and to administration based on the ratio of total salaries less nursing and therapy salaries to total salaries.

c.Employment benefits must be allocated based on the ratio of salaries in the cost category to total salaries.

3.A facility that operates or is associated with nonresident-related activities, such as apartment complexes, shall allocate all costs, except administration costs, in the manner required by subsection 1, and shall allocate administration costs as follows:

a.If total costs of all nonresident-related activities, exclusive of property, administration, chaplain, and utility costs, exceed five percent of total facility costs, exclusive of property, administration, chaplain, and utility costs, administration costs must be allocated on the

basis of the percentage of total cost, excluding property, administration, chaplain, and utility costs.

b.If total costs of all nonresident-related activities, exclusive of property, administration, chaplain, and utility costs, are less than five percent of total facility costs, exclusive of property, administration, chaplain, and utility costs, administration costs must be allocated to each activity based on the percentage gross revenues for the activity is of total gross revenues, except that the allocation may not be based on a percentage exceeding two percent for each activity.

c.If the provider can document, to the satisfaction of the department, that none of the facility resources or services are used in connection with the nonresident-related activities, no allocation need be made.

d.The provisions of this subsection do not apply to the activities of hospital and basic care facilities associated with a facility.

4.All costs associated with a vehicle not exclusively used by a facility must be allocated between resident-related and nonresident-related activities based on usage logs.

November 22, 1993; January 1, 1996; January 1, 1999; January 1, 2000.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; September 1, 1987;
• History: Effective January 1, 1990; amended effective November 22, 1993; January 1, 1996; July 1, 2016. 75-02-06-02.2. Direct care costs.
• History: Effective January 1, 1990; amended effective January 1, 1992; November 22, 1993;
• History: Effective January 1, 1990; amended effective January 1, 1996. 75-02-06-02.4. Indirect care costs.
• History: Effective January 1, 1990; amended effective November 1, 1992; November 22, 1993;
• History: Effective January 1, 1990; amended effective November 22, 1993; January 1, 1996;
• History: Effective January 1, 1990; amended effective January 1, 1992; November 1, 1992;

N.D. Admin. Code 75-02-06-03 Depreciation

1.Ratesetting principles require that payment for services includes depreciation on all capital assets used to provide necessary services.

a.Capital assets that may have been fully or partially depreciated on the books of the provider, but are in use at the time the provider enters the program, may be depreciated.

The useful lives of such assets are considered not to have ended and depreciation calculated on the revised extended useful life is allowable. To properly provide for costs or the valuation of such assets, an appraisal is required if the provider has no historical cost records or has incomplete records of the capital assets.

b.A depreciation allowance is permitted on assets used in a normal standby or emergency capacity.

c.If any depreciated personal property asset is sold or disposed of for an amount different than its undepreciated value, the difference represents an incorrect allocation of the cost of the asset to the facility and must be included as a gain or loss on the cost report. The facility shall use the sale price in computing the gain or loss on the disposition of assets.

2.Depreciation methods.

a.The straight-line method of depreciation must be used. All accelerated methods of depreciation, including depreciation options made available for income tax purposes, such as those offered under the asset depreciation range system, may not be used. The method and procedure for computing depreciation must be applied on a basis consistent from year to year and detailed schedules of individual assets must be maintained. If the books of account reflect depreciation different than that submitted on the cost report, a reconciliation must be prepared by the facility.

b.Except as provided in subdivision c, a provider shall apply the same methodology for determining the useful lives of all assets purchased after June 30, 1995. If a composite useful life methodology is chosen, the provider may not thereafter use the depreciation guidelines without the department's written approval. The provider shall use, at a minimum, the depreciation guidelines to determine the useful life of buildings and land improvements. The provider may use:

(1)A composite useful life of ten years for all equipment except automobiles and five years for automobiles; or (2)The useful lives for all equipment identified in the depreciation guidelines and a useful life of ten years for all equipment not identified in the depreciation guidelines.

c.A provider acquiring assets as an ongoing operation shall use as a basis for determining depreciation:

(1)The estimated remaining life, as determined by a qualified appraiser, for land improvements, buildings, and fixed equipment; and (2)A composite remaining useful life for movable equipment, determined from the seller's records.

3.Acquisitions.

a.If a depreciable asset has, at the time of its acquisition, a historical cost of at least one thousand dollars, its cost must be capitalized and depreciated over the estimated useful life of the asset. Cost incurred during the construction of an asset, such as architectural, consulting and legal fees, and interest, must be capitalized as a part of the cost of the asset.

b.All repair or maintenance costs in excess of five thousand dollars per project on equipment or buildings must be capitalized and depreciated over the remaining useful life of the equipment or building repaired or maintained, or one-half of the original estimated useful life, whichever is greater.

4.Proper records must provide accountability for the fixed assets and provide adequate means by which depreciation can be computed and established as an allowable resident-related cost.

Tagging of major equipment items is not mandatory, but alternate records must exist to satisfy audit verification of the existence and location of the assets.

5.Donated assets, excluding assets acquired as an ongoing operation, may be recorded and depreciated based on their fair market value. In the case where the provider's records do not contain the fair market value of the donated asset, as of the date of the donation, an appraisal may be made. The appraisal must be made by a recognized appraisal expert and may be accepted for depreciation purposes. The useful life of a donated asset must be determined in accordance with subsection 2. The facility may elect to forego depreciation on a donated asset thereby negating the need for a fair market value determination.

6.Basis for depreciation of assets acquired as an ongoing operation. Determination of the cost

basis of a facility and its depreciable assets of an ongoing operation depends on whether or not the transaction is a bona fide sale. Should the issue arise, the purchaser has the burden of proving that the transaction was a bona fide sale. Purchases where the buyer and seller are related organizations are not bona fide.

a.The cost basis of a facility and its depreciable assets acquired in a bona fide sale after July 1, 1985, is limited to the lowest of:

(1)Purchase price paid by the purchaser;

(2)Fair market value at the time of the sale; or (3)The seller's cost basis, increased by one-half of the increase in the consumer price index for all urban consumers, United States city average, all items, from the date of acquisition by the seller to the date of acquisition by the buyer, less accumulated depreciation recognized for cost reporting purposes.

b.In a sale not bona fide, the cost basis of an acquired facility and its depreciable assets is the seller's cost basis, less accumulated depreciation recognized for cost reporting purposes as of the end of the report year immediately preceding the date of acquisition by the buyer.

c.The cost basis of a facility and its depreciable assets acquired by donation or for a nominal amount is the cost basis of the seller or donor, less accumulated depreciation recognized for cost reporting purposes as of the end of the report year immediately preceding the date of acquisition by the buyer or donee.

d.In order to calculate the increase over the seller's cost basis, an increase may be allowed, under subdivision a, only for assets with a historical cost basis established separately and distinctly in the seller's depreciable asset records.

e.An adjustment may not subsequently be allowed for any depreciable cost disallowed in rate periods prior to January 1, 2006.

f.For purposes of this subsection, "date of acquisition" means the date when ownership of the depreciable asset transfers from the transferor to the transferee such that both are bound by the transaction. For purposes of transfers of real property, the date of acquisition is the date of delivery of the instrument transferring ownership. For purposes of titled personal property, the date of acquisition is the date the transferee receives a title acceptable for registration. For purposes of all other capital assets, the date of acquisition is the date the transferee possesses both the asset and an instrument, describing the asset, which conveys the property to the transferee.

g.For rate years beginning on or after January 1, 2006, the limitations of paragraph 3 of subdivision a shall not apply to the valuation basis of assets acquired as an ongoing operation between July 1, 1985, and July 1, 2000.

7.A per bed cost limitation based on single and double occupancy must be used to determine the total allowable cost basis of buildings and fixed equipment for a facility with construction, renovation, or remodeling. The per bed cost limitation applies to construction or renovation projects currently in process or which have approved financing in place on or before December 31, 2021.

a.Effective July 1, 2019, the per bed limitation basis for double occupancy is $168,864 and for a single occupancy is $253,297.

b.The per bed limitation basis for single occupancy must be calculated using the limitation determined in subdivision a, multiplied by 1.5.

c.The double and single occupancy per bed limitation must be adjusted annually on July first, using the increase, if any, in the consumer price index for all urban consumers, United States city average, all items, for the twelve-month period ending the preceding May thirty-first.

d.The per bed limitation in effect at the time a construction, renovation, or remodeling project is put in service must be multiplied times the number of beds in double and single occupancy rooms to establish the maximum allowable cost basis of buildings and fixed equipment.

e.The cost basis of a facility's buildings and fixed equipment must be limited to the lower of the recorded cost of total facility buildings and fixed equipment or the per bed limitation.

f.The per bed limitation is not applicable to projects started or approved by the state health council before July 1, 1994.

g.For rate years beginning after December 31, 2007, the limitations of subdivision a do not apply to the valuation basis of assets acquired as a result of a natural disaster before December 31, 2006. The provisions of this subsection may not be applied retroactively to any rate year before January 1, 2008.

September 1, 1987; January 1, 1990; January 1, 1992; November 22, 1993; January 1, 1996;

January 1, 1998; July 2, 2003; September 7, 2007; July 1, 2009; January 1, 2014; July 1, 2016;

January 1, 2020; October 1, 2022.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; October 1, 1984;

N.D. Admin. Code 75-02-06-04 Interest expense

1.To be allowable, interest expense must meet all of the following criteria:

a.Interest expense must be supported by evidence of an agreement that funds were borrowed and that payment of interest and repayment of the funds are required.

b.Interest expense must be identifiable in the facility's accounting records.

c.Interest expense must be related to the reporting period in which the costs are incurred.

d.Interest expense must be necessary and proper for the operation, maintenance, or acquisition of the facility.

e.Interest expense must not relate to funds borrowed to finance costs of assets in excess of the depreciable cost basis established at the time of purchase, construction, or renovation, as recognized under the provisions of section 75-02-06-03.

f.If associated with borrowing for the purpose of acquiring assets as an ongoing operation in a bona fide sale, interest expense must be limited to the amount of interest associated with borrowing, occurring at the time of the sale, that does not exceed ninety percent of the cost basis, as determined in section 75-02-06-03.

g.In a sale not bona fide, interest expense may not exceed the amount that would have been allowable had the sale not occurred.

h.If associated with refinancing or refunding debt, interest expense associated with the original borrowing must have been allowable when the debt was initially incurred.

2.In cases where it was necessary to issue bonds for financing, any bond premium or discount must be amortized over the life of the bond issue.

3.Interest paid by the provider to partners, stockholders, or related organizations of the provider is not allowable as a cost. Where the owner loans funds to a facility, the funds are considered capital, rather than borrowed funds.

4.If a facility incurs interest expense because of late payments for resident services and charges a service charge or interest for late payments, the income must be offset against interest expense. If no interest expense is incurred by the facility because of late payments for resident services, interest or service charges paid must be offset against administrative expense.

5.Repayment of working capital debt must be made within three years of the borrowing.

6.For the purposes of this section:

a."Necessary" means that the interest is incurred on debt made to satisfy a financial need of the facility and for a purpose reasonably related to resident care; and

b."Proper" means that the interest is incurred at a rate not in excess of what a prudent borrower would be obliged to pay in an arm's-length transaction and is incurred on debt obtained from a lender not related to the borrower through common ownership or control, except for funds borrowed in accordance with section 75-02-06-04.1.

7.For refinanced or refunded debt, the total net aggregate allowable costs to be incurred for all reporting periods may not exceed the total net aggregate costs that would have been allowed had the refinancing or refunding not occurred. Annual allowable costs must be limited to the lesser of the costs that would have been allowed had the refinancing or refunding not occurred or the costs associated with the refinancing or refunding plus the portion, if any, of adjustments not recognized in prior cost reporting periods.

8.Interest expense must be allocated between allowable and nonallowable expense based on the ratio of the principal balance of allowable debt to the principal balance of nonallowable debt at the time the debt was incurred, except that the ratio may be adjusted to reflect principal payments on nonallowable debt made in excess of scheduled repayments, provided no funded depreciation or borrowed funds are used to make the excess principal payment.

September 1, 1987; January 1, 1990; November 22, 1993; January 1, 1996. 75-02-06-04.1. Funded depreciation.

1.Funding of depreciation is the practice of placing funds, including nonborrowed bond reserve and sinking funds, in a segregated account for the acquisition of capital assets used in rendering resident care or for other capital purposes related to resident care. Other capital purposes include capital debt liquidation, such as principal payments for bonds and mortgages.

2.All provisions of this subsection must be met in order to qualify as funding of depreciation. If the provisions are not met, income earned on investments must be offset to interest expense.

a.The action to fund depreciation must be approved by the appropriate managing body of the facility.

b.The fund or funds must be clearly designated in the facility's records as funded depreciation accounts.

c.The total market value of the funded depreciation fund, including loans made pursuant to subsection 5, must be available, unless contractually committed as provided in subsection 8 or 9, on an as-needed basis for the acquisition of the facility's capital assets used to render resident care, or for other capital purposes related to resident care. Loans made from funded depreciation do not alter the requirement that funded depreciation must be available.

d.Income earned on investments in the fund must be deposited in and become part of the funded depreciation account.

e.Deposits to the funded depreciation account must remain for six months or more to be considered as funded depreciation. Deposits of less than six months are not eligible for the benefits of the funded depreciation account. Investment income earned prior to elapse of the six-month period may not be offset unless the deposits are actually withdrawn and then only if the withdrawal is not for capital purposes.

f.Funded depreciation may not be restricted for a specific or future purpose.

g.When a provider invests or transfers the assets of the fund to a home office of a chain organization, or the motherhouse or governing body of a religious order or to other related parties, the assets are considered to be the facility's funds and are subject to all provisions of this section.

3.Total funded depreciation from deposits in excess of accumulated depreciation on resident-related assets must be considered as ordinary investments and the income therefrom must be used to offset interest expense.

4.Withdrawals for the acquisition of capital assets, the payment of mortgage principal on the assets, and other capital expenditures are on a first-in, first-out basis. Withdrawals for general operating purposes or for loans to the general fund are made on a last-in, first-out basis.

5.The facility may borrow from funded depreciation to obtain working capital for normal operating expenses used for resident care. In addition, the facility may borrow from funded depreciation accounts of related nursing and hospital facilities if the funded depreciation accounts of the related facilities are maintained in accordance with HCFA-15, section 226. The interest incurred by the general fund is allowable provided the loans are necessary and proper, and provided the funds withdrawn have met the six-month funding requirement. If the funds withdrawn do not meet the six-month funding requirement, interest paid on the loan is not an allowable cost. Funds loaned under the provisions of this subsection are available funded depreciation. Costs incurred to secure lines of credit to ensure availability are not allowable costs.

6.Interest paid by the general fund to the funded depreciation account is not an allowable cost if the facility borrows the funds to acquire capital assets. The facility is expected to use funded depreciation for that purpose.

7.Deposits of funds into the funded depreciation account must be first applied to reduce loans outstanding from the funded depreciation account to the general fund. Until such loans, including related-party loans, are repaid in full, funds deposited in the funded depreciation account must be considered as repayments on the loans and any subsequent interest expense of the general fund to the extent of the repaid loans is not allowable.

8.Available funded depreciation must be withdrawn and used before resorting to borrowing for the acquisition of capital assets or other capital purposes. Because it is frequently difficult to time a bond offering or other borrowing to coincide with the exhaustion of available funded depreciation, it is sufficient if available funded depreciation is contractually committed to and expended during the course of construction.

9.Funds are considered available unless committed, by virtue of contractual arrangements, to the acquisition of capital assets used to render resident care, or to other capital purposes.

Borrowing for a purpose intended by funded depreciation is unnecessary to the extent funded depreciation is available. Thus, interest expense for borrowing up to the amount of available funded depreciation is not an allowable cost.

10.When funded depreciation is used by the facility for other than the acquisition of capital assets, other capital purposes related to resident care, or loans to the general fund for current operating costs, the income earned on these funds while on deposit in the funded account must be adjusted in the report year the withdrawal was made. The adjustment must include all offsets not made in prior reporting periods for earnings applicable to these funds.

11.Borrowing for a purpose for which funded depreciation account funds may have been used makes the borrowing unnecessary to the extent that funded depreciation account funds were available at the time of the borrowing. Available funds in the funded depreciation account, to the extent of the unnecessary borrowing, are tainted funds. Interest expense incurred on borrowing for a capital purpose is not an allowable cost to the extent that funded depreciation account funds were available at the time of the borrowing.

12.A provider may remove the unnecessary characterization of borrowing, and thereby cure tainted funded depreciation, by using the tainted funds for a proper purpose described in subsection 1. Any funded depreciation that existed at the time of the unnecessary borrowing and is not classified as tainted must be used before any of the tainted funds.

13.When only a portion of the borrowing is considered unnecessary under subsection 11, subsequent repayments of the borrowing from general funds must first be applied to the allowable portion of the borrowing and then, when all of the allowable borrowing is repaid, to the unallowable portion of the borrowing. When funds from the funded depreciation account are used for the repayment of the unnecessary borrowing, an equivalent amount of tainted funds is cured without regard to the provisions of subsections 11 and 12. Where general funds are used to pay for the unallowable borrowing after the necessary borrowing has been repaid, an equivalent amount of tainted funded depreciation is cured without regard to the provisions of subsections 11 and 12.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; October 1, 1984;
• History: Effective January 1, 1990; amended effective November 1, 1992; January 1, 1996.

N.D. Admin. Code 75-02-06-05 Compensation

1.Compensation on an annual basis for top management personnel must be limited, prior to allocation, if any, to the highest market-driven compensation of an administrator employed by a freestanding facility, with licensed capacity, during the previous report year, at least equal to the licensed capacity of the smallest facility within the top quartile of all facilities ranked by licensed capacity, increased by the consumer price index for all urban consumers (all items, United States city average). Compensation for top management personnel employed for less than a year must be limited to an amount equal to the limitation divided by three hundred sixty-five times the number of calendar days the individual was employed.

2.Compensation includes:

a.Salary for managerial, administrative, professional, and other services.

b.Amounts paid for the personal benefits of the individual, e.g., housing allowance, flat-rate automobile allowance.

c.The cost of assets and services the individual receives from the facility.

d.Deferred compensation, pensions, and annuities.

e.Supplies and services for the personal use of the individual.

f.The cost of a domestic or other employee who works in the home of the individual.

g.Life and health insurance premiums paid for the individual and medical services furnished at facility expense.

3.Reasonable compensation for a person with at least five percent ownership, individuals on the governing board, or any individual related within the third degree of kinship to top management personnel must be considered an allowable cost if services are actually performed and required to be performed. The amount to be allowed must be an amount determined by the department to be equal to the amount normally required to be paid for the same services if provided by a nonrelated employee. Reasonableness also requires that functions performed be necessary in that, had the services not been rendered, the facility would have to employ another person to perform them. Reasonable compensation on an hourly basis may not exceed the amount determined to be the limitation in subsection 1, divided by two thousand eighty.

4.Costs otherwise nonallowable under this chapter may not be included as personal compensation.

September 1, 1987; January 1, 1990; November 22, 1993; January 1, 1996; January 1, 1999;

January 1, 2020; January 1, 2024.

History

• History: Effective September 1, 1980; amended effective July 1, 1981; December 1, 1983;

N.D. Admin. Code 75-02-06-06 Return on investment

No return on investment shall be allowed.

September 1, 1987. 75-02-06-06.1. Home office costs.

1.Home offices of chain organizations vary greatly in size, number of locations, staff, mode of operations, and services furnished to member facilities. Although the home office of a chain is normally not a provider in itself, it may furnish central administration or other services including centralized accounting, purchasing, personnel, or management services. To the extent the home office furnishes services related to resident care to a facility, the reasonable resident-related costs, not to exceed actual costs of such services, are includable in the facility's cost report and are includable as part of the facility's rate.

2.Where the home office makes a loan to or borrows money from one of the components of a chain organization, the interest paid is not an allowable cost and interest income is not used to offset interest expense.

3.Home office costs incurred for expansion of a chain organization must be directly allocated to the appropriate component of the chain. The costs of abandoned plans are not allowable.

4.Central or home office costs representing services of consultants required by law in areas for social services, nursing, therapies, or activities and central, affiliated, or corporate office costs representing services of consultants not required by law in the areas of nursing or therapies may be allocated to the appropriate cost category of a facility according to subdivisions a through e.

a.Only the salaries and employment benefits associated with the individual performing the service may be allocated. No other costs may be allocated.

b.The allocation must be based on direct identification and only to the extent justified in time distribution records that show the actual time spent by the consultant performing the services in the facility.

c.The cost in subdivision a for each consultant may not be allocated to more than one cost category in the facility. If more than one facility is served by a consultant, all facilities shall allocate the consultant's cost to the same operating category.

d.Top management personnel may not be considered consultants.

e.An allocation may not be made unless the consultant's full-time responsibilities are to provide the services allocated under this section.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; October 1, 1984;
• History: Effective January 1, 1990; amended effective November 22, 1993; January 1, 1996.

N.D. Admin. Code 75-02-06-07 Related organization

1.Except as provided in subsection 3, costs applicable to services, facilities, and supplies furnished to a provider by a related organization may not exceed the lower of the cost to the related organization or the price of comparable services, facilities, or supplies purchased elsewhere primarily in the local market. The provider shall identify the related organizations and costs in the cost report.

2.The relationship between a provider and a related organization at the time a transaction between the two parties occurs must govern the treatment of cost regardless of subsequent events that may change the relationship between the parties.

3.In the case of a facility acquired through purchase of shares, interest and depreciation expense are treated in the same manner as if the capital assets of the acquired corporation were acquired as an ongoing operation by the acquiring entity on the day the secretary of state issues a certificate of dissolution of the acquired corporation if organized in North Dakota, or on the day the acquired corporation is irrevocably dissolved if organized other than in North Dakota, provided the transaction has all of the following characteristics:

a.The facility was owned and operated by the acquired corporation;

b.The acquired corporation is irrevocably dissolved, and all of its capital assets become the property of the acquiring entity, within one year after the first day on which any ownership interest in the acquired corporation was acquired by the acquiring entity; and

c.Neither the acquiring entity nor any related organization of the acquiring entity has had any ownership interest in the acquired corporation, or any ownership interest in any related organization of the acquired corporation, for at least ten years prior to the day the acquiring entity, or a related organization of the acquiring entity, first acquired any ownership interest in the acquired corporation.

4.For purposes of subsection 3, "acquiring entity" means the entity that, upon dissolution of the acquired corporation, owns all the capital assets formerly owned by the acquired corporation.

January 1, 1990; January 1, 1996; July 1, 1996.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; September 1, 1987;

N.D. Admin. Code 75-02-06-08 Rental expense paid to a related organization

A provider may lease a facility from a related organization within the meaning of ratesetting principles. In such case, the rent paid to the lessor by the provider is not allowable as cost unless the rent paid is less than the allowable costs of ownership. If rent paid exceeds the allowable costs of ownership, the provider may include the allowable costs of ownership of the facility. These costs are property insurance, depreciation, interest on the mortgage, and real estate taxes. Other operating expenses of the related organization are not includable by the provider as an allowable cost of ownership, but may be included as allowable operating expenses subject to the provisions of section 75-02-06-07.

January 1, 1990; November 22, 1993; January 1, 1996.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; September 1, 1987;

N.D. Admin. Code 75-02-06-09 Taxes

1.Taxes assessed against the provider, in accordance with the levying enactments of the several states and lower levels of government and for which the provider is liable for payment, are allowable costs. Tax expense may not include fines, penalties, or those taxes identified as nonallowable costs in section 75-02-06-12.1.

2.Whenever exemptions to taxes are legally available the provider is to take advantage of them.

If the provider does not take advantage of available exemptions, the expense incurred for taxes is not an allowable cost.

3.Special assessments in excess of one thousand dollars paid in a lump sum must be capitalized and depreciated. Special assessments not paid in a lump sum may be expensed as billed by the taxing authority.

November 22, 1993; January 1, 1996.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; January 1, 1990;

N.D. Admin. Code 75-02-06-10 Bad debts

1.Bad debts for charges incurred on or after January 1, 1990, and fees paid for the collection of those bad debts, are allowable, provided all the requirements of this subsection are met.

a.The bad debt must result from nonpayment of the payment rate or part of the payment

b.The facility shall document that reasonable collection efforts have been made, the debt was uncollectible, and there is no likelihood of future recovery. Reasonable collection efforts include pursuing all avenues of collection available to the facility, including liens and judgments. In instances where the bad debt is owed by a person determined to have made a disqualifying transfer or assignment of property for the purpose of securing eligibility for medical assistance benefits, the facility shall document that it has made all reasonable efforts to secure payment from the transferee, including the bringing of an action for a transfer in fraud of creditors.

c.The collection fee may not exceed industry standards for collection agencies and the amount of the bad debt.

d.The bad debt may not result from the facility's failure to comply with federal and state laws, state rules, and federal regulations.

e.The bad debt may not result from nonpayment of a private room rate in excess of the established rate, charges for special services not included in the established rate, or charges for bed hold days not billable to the medical assistance program under subsections 3, 4, 5, and 6 of section 75-02-06-14.

f.The facility shall have an aggressive policy of avoiding bad debt expense that limits potential bad debts. The facility shall document that the facility has taken action to limit bad debts for individuals who refuse to make payment.

2.Allowable bad debt expense may not exceed one hundred eighty days of resident care per rate year or an aggregate of three hundred sixty days of resident care for any one individual.

3.Finance charges on bad debts allowable under subsections 1 and 2 are allowable only if the finance charges have been offset as interest income.

November 22, 1993; January 1, 1996; January 1, 1998; January 1, 2010; July 1, 2016.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; January 1, 1990;

N.D. Admin. Code 75-02-06-11 Startup costs

In the first stages of operation, a new facility incurs certain costs in developing its ability to care for residents prior to admission. Staff is obtained and organized, and other operating costs are incurred during this time of preparation which cannot be allocated to resident care during that period because there are no residents receiving services. These costs are commonly referred to as startup costs.

Actual allowable startup costs may be considered as deferred charges and allocated over a number of periods which benefit from such costs. Where a facility has properly capitalized startup costs as a deferred charge, the startup costs will be recognized as allowable costs amortized over sixty consecutive months starting with the month in which the first resident is admitted.

November 22, 1993; January 1, 1996.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; January 1, 1990;

N.D. Admin. Code 75-02-06-12 Offsets to cost

1.Several items of income must be considered as offsets against various costs as recorded in the books of the facility. Income in any form received by the facility must be offset up to the total of the appropriate actual allowable costs, with the following exceptions:

a.An established rate;

b.Income from payments made under the Workforce Investment Act;

c.Bed reduction incentive payments;

d.Donations;

e.The deferred portion of patronage dividends credited to the facility and not previously offset;

f.Charges for private rooms or special services;

g.Noncovered bed hold days; or

h.Sales tax revenue received from a political subdivision or local taxing authority for a facility located in a community with a population of less than twelve thousand five hundred people.

2.If actual costs are not identifiable, income must be offset up to the total of costs described in this section. If costs relating to income are reported in more than one cost category, the income must be offset in the ratio of the costs in each cost category. Sources of income include:

a."Activities income". Income from the activities department and the gift shop must be offset to activity costs.

b."Dietary income". Amounts received from or on behalf of employees, guests, or other nonresidents for lunches, meals, or snacks must be offset to dietary and food costs.

c."Drugs or supplies income". Amounts received from employees, doctors, or others not admitted as residents must be offset to nursing supplies. Medicare part B income for drugs and supplies must be offset to nursing supplies.

d."Insurance recoveries income". Any amount received from insurance for a loss incurred must be offset against the appropriate cost category, regardless of when or if the cost is incurred, if the facility did not adjust the basis for depreciable assets.

e."Interest or investment income". Interest received on investments, except amounts earned on funded depreciation or from earnings on gifts where the identity remains intact, must be offset to interest expense.

f."Laundry income". All amounts received for laundry services rendered to or on behalf of employees, doctors, or others must be offset to laundry costs.

g."Private duty nurse income". Income received for the providing of a private duty nurse must be offset to nursing salaries.

h."Rentals of facility space income". Income received from outside sources for the use of facility space and equipment must be offset to property costs.

i."Telephone income". Income received from residents, guests, or employees must be offset to administration costs. Income from emergency answering services need not be offset.

j."Therapy income". Except for income from Medicare part A, income from therapy services must be offset to therapy costs unless the provider has elected to make therapy costs nonallowable under subsection 39 of section 75-02-06-12.1.

k."Vending income". Income from the sale of beverages, candy, or other items must be offset to the cost of the vending items or, if the cost is not identified, all vending income must be offset to the cost category where vending costs are recorded.

l."Bad debt recovery". Income for bad debts previously claimed must be offset to property costs in total in the year of recovery.

m."Other cost-related income". Miscellaneous income, including amounts generated through the sale of a previously expensed or depreciated item, such as supplies or equipment, or the amount related to the default of a contractual agreement related to education expense assistance, must be offset, in total, to the cost category where the item was expensed or depreciated.

n."Medicare part B income". Income from Medicare part B must be offset to the cost category where the expense is recorded. Medicare part B therapy income must be offset unless the provider has elected to make therapy costs nonallowable under subsection 39 of section 75-02-06-12.1.

3.Payments to a provider by its vendor must ordinarily be treated as purchase discounts, allowances, refunds, or rebates, even though these payments may be treated as "contributions" or "unrestricted grants" by the provider and the vendor. Payments that represent a true donation or grant need not be treated as purchase discounts, allowances, refunds, or rebates. Examples of payments that represent a true donation or grant include contributions made by a vendor in response to building or other fundraising campaigns in which communitywide contributions are solicited or when the volume or value of purchases is so nominal that no relationship to the contribution can be inferred. The provider shall provide verification, satisfactory to the department, to support a claim that a payment represents a true donation.

4.When an owner, agent, or employee of a provider directly receives from a vendor monetary payments or goods or services for the owner's, agent's, or employee's own personal use as a result of the provider's purchases from the vendor, the value of the payments, goods, or services constitutes a type of refund or rebate and must be applied as a reduction of the provider's costs for goods or services purchased from the vendor.

5.When the purchasing function for a provider is performed by a central unit or organization, all discounts, allowances, refunds, and rebates must be credited to the costs of the provider and may not be treated as income by the central unit or organization or used to reduce the administrative costs of the central unit or organization.

6.Purchase discounts, allowances, refunds, and rebates are reductions of the cost of whatever was purchased.

7.For purposes of this section, "Medicare part B income" means the interim payment made by Medicare during the report year plus any cost settlement payments made to the provider or due from the provider for previous periods which are made during the report year and which have not been reported to the department prior to June 30, 1997.

September 1, 1987; June 1, 1988; January 1, 1990; January 1, 1992; November 22, 1993; January 1, 1996; January 1, 1998; January 1, 2002; January 1, 2010; January 1, 2012; July 1, 2016; April 1, 2018. 75-02-06-12.1. Nonallowable costs.

Costs not related to resident care are costs not appropriate or necessary and proper in developing and maintaining the operation of resident care facilities and activities. These costs are not allowed in computing the rates. Nonallowable costs include:

1.Political contributions;

2.Salaries or expenses of a lobbyist;

3.Advertising designed to encourage potential residents to select a particular facility;

4.Fines or penalties, including interest charges on the penalty, bank overdraft charges, and late payment charges;

5.Legal and related expenses for challenges to decisions made by governmental agencies except for successful challenges as provided for in section 75-02-06-02.5;

6.Costs incurred for activities directly related to influencing employees with respect to unionization;

7.Cost of memberships in sports, health, fraternal, or social clubs or organizations, such as elks, country clubs, or knights of columbus;

8.Assessments made by or the portion of dues charged by associations or professional organizations for lobbying costs, contributions to political action committees or campaigns, or litigation, except for successful challenges to decisions made by governmental agencies (including all dues unless an allocation of dues to such costs is provided);

9.Community contributions, employer sponsorship of sports teams, and dues to civic and business organizations, i.e., lions, chamber of commerce, or kiwanis, in excess of one thousand five hundred dollars per cost reporting period;

10.Home office costs not otherwise allowable if incurred directly by the facility;

11.Stockholder servicing costs incurred primarily for the benefit of stockholders or other investors that include annual meetings, annual reports and newsletters, accounting and legal fees for consolidating statements for security exchange commission purposes, stock transfer agent fees, and stockholder and investment analysis;

12.Corporate costs not related to resident care, including reorganization costs; costs associated with acquisition of capital stock, except otherwise allowable interest and depreciation expenses associated with a transaction described in subsection 3 of section 75-02-06-07; and costs relating to the issuance and sale of capital stock or other securities;

13.The full cost of items or services such as telephone, radio, and television, including cable hookups or satellite dishes, located in resident accommodations, excluding common areas, furnished solely for the personal comfort of the residents;

14.Fundraising costs, including salaries, advertising, promotional, or publicity costs incurred for such a purpose;

15.The cost of any equipment, whether owned or leased, not exclusively used by the facility except to the extent that the facility demonstrates, to the satisfaction of the department, that any particular use of equipment was related to resident care;

16.Costs, including, by way of illustration and not by way of limitation, legal fees, accounting and administrative costs, travel costs, and the costs of feasibility studies, attributed to the negotiation or settlement of the sale or purchase of any capital assets, whether by sale or merger, when the cost of the asset has been previously reported and included in the rate paid to any hospital or facility;

17.Costs incurred by the provider's subcontractors, or by the lessor of property that the provider leases, that are an element in the subcontractor's or lessor's charge to the provider, if the costs would not have been allowable had the costs been incurred by a provider directly furnishing the subcontracted services, or owning the leased property except no facility shall have a particular item of cost disallowed under this subsection if that cost arises out of a transaction completed before July 18, 1984;

18.The cost, in excess of charges, of providing meals and lodging to facility personnel living on premises;

19.Depreciation expense for facility assets not related to resident care;

20.Nonnursing facility operations and associated administration costs;

21.Direct costs or any amount claimed to Medicare for Medicare utilization review costs;

22.All costs for services paid directly by the department to an outside provider, such as prescription drugs;

23.Travel costs involving the use of vehicles not exclusively used by the facility except to the extent:

a.The facility supports vehicle travel costs with sufficient documentation to establish that the purpose of the travel is related to resident care;

b.Resident-care related vehicle travel costs do not exceed a standard mileage rate established by the internal revenue service; and

c.The facility documents all costs associated with a vehicle not exclusively used by the facility;

24.Travel costs other than vehicle-related costs unless supported, reasonable, and related to resident care;

25.Additional compensation paid to an employee, who is a member of the board of directors, for service on the board;

26.Fees paid to a member of a board of directors for meetings attended to the extent that the fees exceed the compensation paid, per day, to a member of the legislative council, pursuant to North Dakota Century Code section 54-35-10;

27.Travel costs associated with a board of directors meeting to the extent the meeting is held in a location where the organization has no facility;

28.The costs of deferred compensation and pension plans that discriminate in favor of certain employees, excluding the portion of the cost which relates to costs that benefit all eligible employees;

29.Employment benefits associated with salary costs not includable in a rate set under this

chapter;

30.Premiums for top management personnel life insurance policies, except that the premiums must be allowed if the policy is included within a group policy provided for all employees, or if the policy is required as a condition of mortgage or loan and the mortgagee or lending institution is listed as the sole beneficiary;

31.Personal expenses of owners and employees, including vacations, personal travel, and entertainment;

32.Costs not adequately documented through written documentation, date of purchase, vendor name, listing of items or services purchased, cost of items purchased, account number to which the cost is posted, and a breakdown of any allocation of costs between accounts or facilities;

33.The following taxes:

a.Federal income and excess profit taxes, including any interest or penalties paid thereon;

b.State or local income and excess profit taxes;

c.Taxes in connection with financing, refinancing, or refunding operation, such as taxes on the issuance of bonds, property transfers, or issuance or transfer of stocks, which are generally either amortized over the life of the securities or depreciated over the life of the asset, but not recognized as tax expense;

d.Taxes, including real estate and sales tax, for which exemptions are available to the provider;

e.Taxes on property not used in the provision of covered services;

f.Taxes, including sales taxes, levied against the residents and collected and remitted by the provider; and

g.Self-employment (FICA) taxes applicable to persons including individual proprietors, partners, members of a joint venture;

34.The unvested portion of a facility's accrual for sick or annual leave;

35.The cost, including depreciation, of equipment or items purchased with funds received from a local or state agency, exclusive of any federal funds, unless identified as an offset to cost exception in subdivision h of subsection 1 of section 75-02-06-12;

36.Hair care, other than routine hair care, furnished by the facility;

37.The cost of education unless:

a.The facility is claiming an amount for repayment of an employee's student loans related to educational expenses incurred by the employee prior to the current cost report year provided:

(1)The education was provided by an accredited academic or technical educational facility;

(2)The allowable portion of a student loan relates to education expenses for materials, books, or tuition and does not include any interest expense;

(3)The education expenses were incurred as a result of the employee being enrolled in a course of study that prepared the employee for a position at the facility, and the employee is in that position; and (4)The facility claims the amount of student loan repayment assistance for work performed by the employee in the position for which the employee received education, provided the amount claimed per employee may not exceed an aggregate of fifteen thousand dollars, and in any event may not exceed the cost of the employee's education.

b.The facility is claiming education expense for an individual who is currently enrolled in an accredited academic or technical educational facility provided:

(1)The education expense is for materials, books, or tuition;

(2)The facility claims the education expense in an amount not to exceed the individual's education expense incurred;

(3)The aggregate amount of education expense claimed for an individual over multiple cost report periods does not exceed fifteen thousand dollars; and (4)The facility has a contract with the individual which stipulates a minimum commitment to work for the facility of six thousand six hundred fifty-six hours of employment after completion of the individual's education program, as well as a repayment plan if the individual does not fulfill the contract obligations. The number of hours of employment required may be prorated for an individual who receives less than fifteen thousand dollars in assistance.

38.Increased lease costs of a facility, unless:

a.The lessor incurs increased costs related to the ownership of the facility or a resident-related asset;

b.The increased costs related to the ownership are charged to the lessee; and

c.The increased costs related to the ownership would be allowable had the costs been incurred directly by the lessee;

39.At the election of the provider, the direct and indirect costs of providing therapy services to nonnursing facility residents, third-party payer therapy services, or Medicare part B therapy services, including purchase of service fees and operating or property costs related to providing therapy services;

40.Costs associated with or paid for the acquisition of licensed nursing facility capacity;

41.Goodwill;

42.Lease costs in excess of the amount allocable to the leased space as reported on the Medicare cost report by a lessor who provides services to recipients of benefits under title XVIII or title XIX of the Social Security Act;

43.Salaries accrued at a facility's fiscal yearend but not paid within seventy-five days of the cost report yearend;

44.Supplemental payments not offset to costs; and

45.Alcohol and tobacco products.

November 22, 1993; January 1, 1996; July 1, 1996; January 1, 1998; January 1, 1999; January 1, 2010; January 1, 2012; January 1, 2014; July 1, 2016; April 1, 2018.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; October 1, 1984;
• History: Effective January 1, 1990; amended effective January 1, 1992; November 1, 1992;

N.D. Admin. Code 75-02-06-13 Cost allocation and classification

Repealed effective January 1, 1990.

N.D. Admin. Code 75-02-06-14 Resident days

1.A resident day is any day for which service is provided or for which payment is ordinarily sought for use of a bed. The amount of remuneration has no bearing on whether a day should be counted.

2.Adequate census records must be prepared and maintained on a daily basis by the facility to allow for proper audit of the census data. The daily census records must include:

a.Identification of the resident;

b.Entries for all days, and not just by exception;

c.Identification of type of day, i.e., hospital, in-house;

d.Identification of the resident's classification; and

e.Monthly totals by resident, by classifications for all residents, and by type of day.

3.A maximum of fifteen days per occurrence may be allowed for payment by the medical assistance program for hospital leave. The payment rate for allowed hospital leave days may not exceed the established rate for group PA1 under the reduced physical functioning category. Hospital days in excess of fifteen consecutive days not billable to the medical assistance program are not resident days unless any payment is sought as provided for in subdivision c of subsection 1 of section 75-02-06-22.

4.A maximum of twenty-four therapeutic leave days per individual per rate year may be allowed for payment by the medical assistance program. The payment rate for allowed therapeutic leave days may not exceed the established rate for group PA1 under the reduced physical functioning category. Therapeutic leave days in excess of twenty-four per year are not resident days unless any payment is sought as provided for in subdivision c of subsection 1 of section 75-02-06-22.

5.Institutional leave days are not billable to the department and are not resident days unless any payment is sought as provided for in subdivision c of subsection 1 of section 75-02-06-22.

6.Hospital and therapeutic leave days, occurring immediately following a period when a resident was receiving Medicare part A benefits in the facility, are not billable to the department and are not resident days unless any payment is sought as provided for in subdivision c of subsection 1 of section 75-02-06-22.

7.Residents admitted to the facility through a hospice program or electing hospice benefits while in a facility must be identified as hospice residents for billing purposes.

January 1, 1990; November 1, 1992; November 22, 1993; January 1, 1996; January 1, 1998;

January 1, 1999; July 2, 2002; January 1, 2020.

History

• History: Effective September 1, 1980; amended effective December 1, 1983; September 1, 1987;

N.D. Admin. Code 75-02-06-15 Nursing care

Repealed effective January 1, 1990.

N.D. Admin. Code 75-02-06-16 Rate determinations for cost

1.This section is applicable for establishing a cost rate for direct care, other direct care, and indirect care for the June 30, 2021, report year.

2.Rate determination.

a.For the direct cost category, the actual rate is calculated using allowable historical operating costs and adjustment factors provided for in subsection 5 divided by standardized resident days. The actual rate as calculated is compared to the limit rate to determine the lesser of the actual rate or the limit rate. The lesser rate is given the rate weight of one. The rate weight of one for direct care is then multiplied times the weight for each classification to establish the direct care rate for that classification.

b.For the other direct cost category, the actual rate is calculated using allowable historical operating costs and adjustment factors provided for in subsection 4 divided by resident days. The actual rate as calculated is compared to the limit rate to determine the lesser of the actual rate or the limit rate.

c.For the indirect cost category, the actual rate is calculated using allowable historical operating costs and adjustment factors provided for in subsection 4 divided by resident days subject to the adjustments provided for in subdivision g of subsection 4. The actual rate as calculated is compared to the limit rate to determine the lesser of the actual rate or the limit rate.

d.For the passthrough costs category, the actual rate is calculated using allowable historical operating costs divided by resident days subject to the adjustments provided for in subdivision g of subsection 4.

e.The property rate must be the greater of the fair rental value rate or the rate calculated using allowable property costs. The property rate must be calculated using resident days subject to the adjustments provided for in subdivision g of subsection 4. The fair rental value rate must be the rate established under subdivision e of subsection 1 of section 75-02-06-16.3.

f.The lesser of the actual rate or the limit rate for other direct care and indirect care, the passthrough rate, the property rate, and the adjustments provided for in subsections 3 and 4 are then added to the direct care rate for each classification to arrive at the established rate for a given classification. 3.a.For a facility with an actual rate below the limit rate for indirect care costs, an incentive amount equal to seventy percent times the difference between the actual rate, exclusive of the adjustment factor, and the limit rate in effect at the end of the year immediately preceding the rate year, up to a maximum of two dollars and sixty cents or the difference between the actual rate, inclusive of the adjustment factor and the limit rate for indirect care costs, whichever is less, must be included as part of the indirect care cost rate.

b.A facility shall receive an operating margin of four and four-tenths percent, effective January 1, 2020, through December 31, 2021, and four and four-tenths percent effective January 1, 2022, through December 31, 2023, based on the lesser of the actual direct care and other direct care rates, exclusive of the adjustment factor, or the limit rate in effect at the end of the year immediately preceding the rate year. The operating margin must be added to the rate for the direct care and other direct care cost categories.

4.Limitations.

a.The department shall accumulate and analyze statistics on costs incurred by facilities.

Statistics may be used to establish reasonable ceiling limitations and incentives for efficiency and economy based on reasonable determination of standards of operations necessary for efficient delivery of needed services. Limitations and incentives may be established on the basis of cost of comparable facilities and services and may be applied as ceilings on the overall costs of providing services or on specific areas of operations.

The department may implement ceilings at any time based upon information available.

b.The department shall review, on an ongoing basis, aggregate payments to facilities to determine that payments do not exceed an amount that can reasonably be estimated would have been paid for those services under Medicare payment principles. If aggregate payments to facilities exceed estimated payments under Medicare, the department may make adjustments to rates to establish the upper limitations so that aggregate payments do not exceed an amount that can be estimated would have been paid under Medicare payment principles.

c.All facilities except those nongeriatric facilities for individuals with physical disabilities or units within a nursing facility providing geropsychiatric services described in North Dakota Century Code section 50-24.4-13 must be used to establish a limit rate for the direct care, other direct care, and indirect care cost categories. The base year is the report year ended June 30, 2021. The limit rates for the direct care, other direct care, and indirect care cost categories must be established using the June 30, 2021, base year.

Base year costs may not be adjusted in any manner or for any reason not provided for in this subsection.

d.The limit rate for each of the cost categories must be established as follows:

(1)Historical costs for the report year ended June 30, 2020, as adjusted, must be used to establish rates for all facilities in the direct care, other direct care, and indirect care cost categories. The rates as established must be ranked from low to high for each cost category.

(2)For the rate year beginning January 1, 2021, the limit rate for each cost category is:

(a)For the direct care cost category, two hundred four dollars and eighty-four cents;

(b)For the other direct care cost category, twenty-nine dollars and eighty-four cents; and (c)For the indirect care cost category, eighty-four dollars and fifty-one cents.

e.A facility with an actual rate that exceeds the limit rate for a cost category shall receive the limit rate.

f.The cost rate for the January 1, 2023, rate year must be the previous rate year's cost rate increased by the adjustment factor.

g.The actual rate for indirect care costs, passthrough costs, and the fair rental value rate must be the lesser of the rate established using:

(1)Actual census for the report year; or (2)Ninety percent of licensed bed capacity available for occupancy as of June thirtieth of the report year:

(a)Multiplied times three hundred sixty-five; and (b)Reduced by the number of affected beds, for each day any bed is not in service during the report year, due to a remodeling, renovation, or construction project.

h.The department may waive or reduce the application of subdivision g if the facility demonstrates that occupancy below ninety percent of licensed capacity results from the use of alternative home and community services by individuals who would otherwise be eligible for admission to the facility and:

(1)The facility has reduced licensed capacity; or (2)The facility's governing board has approved a capacity decrease to occur no later than the end of the rate year which would be affected by subdivision g.

i.The department may waive the application of paragraph 2 of subdivision g for nongeriatric facilities for individuals with disabilities or geropsychiatric facilities or units if occupancy below ninety percent is due to lack of department-approved referrals or admissions.

5.An adjustment factor must be used for purposes of adjusting historical costs for direct care, other direct care, and indirect care under subsection 2 and for purposes of adjusting the limit rates for direct care costs, other direct care costs, and indirect care costs under subsection 4, but may not be used to adjust passthrough costs and the fair rental value under either subsection 2 or 4. The adjustment factor for the January 1, 2023, rates must be reduced by one-half percent.

6.Rate adjustments.

a.Desk audit rate.

(1)The cost report must be reviewed taking into consideration the prior year's adjustments. The facility must be notified by electronic mail of any adjustments based on the desk review. Within seven working days after notification, the facility may submit information to explain why the desk adjustment should not be made.

The department shall review the information and make appropriate adjustments.

(2)The desk audit rate must be effective January first of each rate year unless the department specifically identifies an alternative effective date and must continue in effect until a final rate is established.

(3)Until a final rate is effective, pursuant to paragraph 3 of subdivision b, private-pay rates may not exceed the desk audit rate except as provided for in section 75-02-06-22 or subdivision c.

(4)The facility may request a reconsideration of the desk rate for purposes of establishing a pending decision rate. The request for reconsideration must be filed with the department's medical services division within thirty days of the date of the rate notification and must contain the information required in subsection 1 of section

N.D. Admin. Code 75-02-06-26 No decision on the request for reconsideration of the desk rate may be made by the department unless, after the facility has been notified that the desk rate is the final rate, the facility requests, in writing within thirty days of the rate notification, the department to issue a decision on that request for reconsideration

(5)The desk rate may be adjusted for special rates or one-time adjustments provided for in this section.

(6)The desk rate may be adjusted to reflect errors, adjustments, or omissions for the report year that result in a change of at least the rate adjustment percentage per day.

b.Final rate.

(1)The cost report may be field audited to establish a final rate. If no field audit is performed, the desk audit rate must become the final rate upon notification from the department. The final rate is effective January first of each rate year unless the department specifically identifies an alternative effective date.

(2)The final rate must include any adjustments for nonallowable costs, errors, or omissions that result in a change from the desk audit rate of at least the rate adjustment percentage per day that are found during a field audit or are reported by the facility within twelve months of the rate yearend.

(3)The private-pay rate must be adjusted to the final rate no later than the first day of the second month following receipt of notification by the department of the final rate and is not retroactive except as provided for in subdivision c.

(4)The final rate may be revised at any time for special rates or one-time adjustments provided for in this section.

(5)If adjustments, errors, or omissions are found after a final rate has been established, the following procedures must be used:

(a)Adjustments, errors, or omissions found within twelve months of establishment of the final rate, not including subsequent revisions, resulting in a change of at least the rate adjustment percentage per day must result in a change to the final rate. The change must be applied retroactively as provided for in this

section.

(b)Adjustments, errors, or omissions found later than twelve months after the establishment of the final rate, not including subsequent revisions, that would have resulted in a change of at least the rate adjustment percentage per day had they been included, must be included as an adjustment in the report year that the adjustment, error, or omission was found.

(c)The two report years immediately preceding the report year to which the adjustments, errors, or omissions apply may also be reviewed for similar adjustments, errors, or omissions.

c.Pending decision rates for private-pay residents.

(1)If a facility has made a request for reconsideration, taken an administrative appeal, or taken a judicial appeal from a decision on an administrative appeal, and has provided information sufficient to allow the department to accurately calculate, on a per day basis, the effect of each of the disputed issues on the facility's rate, the department shall determine and issue a pending decision rate within thirty days of receipt of the request for reconsideration, administrative appeal, or judicial appeal. If the information furnished is insufficient to determine a pending decision rate, the department, within thirty days of receipt of the request for reconsideration, shall inform the facility of the insufficiency and may identify information that would correct the insufficiency.

(2)The department shall add the pending decision rate to the rate that would otherwise be set under this chapter, and, notwithstanding North Dakota Century Code section 50-24.4-19, the total must be the rate chargeable to private-pay residents until a final decision on the request for reconsideration or appeal is made and is no longer subject to further appeal. The pending decision rate is subject to any rate limitation that may apply.

(3)The facility shall establish and maintain records that reflect the amount of any pending decision rate paid by each private-pay resident from the date the facility charges a private-pay resident the pending decision rate.

(4)If the pending decision rate paid by a private-pay resident exceeds the final decision rate, the facility shall refund the difference, plus interest accrued at the legal rate from the date of notification of the pending decision rate, within sixty days after the final decision is no longer subject to appeal. If a facility fails to provide a timely refund to a living resident or former resident, the facility shall pay interest at three times the legal rate for the period after the refund is due. If a former resident is deceased, the facility shall pay the refund to a person lawfully administering the estate of the deceased former resident or lawfully acting as successor to the deceased former resident. If no person is lawfully administering the estate or lawfully acting as a successor, the facility may make any disposition of the refund permitted by law. Interest paid under this subsection is not an allowable cost.

d.The final rate as established must be retroactive to the effective date of the desk rate, except with respect to rates paid by private-pay residents. A pending decision rate is not subject to adjustment or refund until a decision on the disputed amount is made.

7.Rate payments.

a.The rate as established must be considered as payment for all accommodations and includes all items designated as routinely provided. No payments may be solicited or received from the resident or any other person to supplement the rate as established.

b.The rate as established must be paid by the department only if the rate charged to private-pay residents for semiprivate accommodations equals the established rate. If at any time the facility discounts rates for private-pay residents, the discounted rate must be the maximum chargeable to the department for the same bed type, i.e., hospital or leave days.

c.If the established rate exceeds the rate charged to a private-pay resident, on any given date, the facility shall immediately report that fact to the department and charge the department at the lower rate. If payments were received at the higher rate, the facility shall, within thirty days, refund the overpayment. The refund must be the difference between the established rate and the rate charged the private-pay resident times the number of medical assistance resident days paid during the period in which the established rate exceeded the rate charged to private-pay residents, plus interest calculated at two percent over the Bank of North Dakota prime rate on any amount not repaid within thirty days. The refund provision also applies to all duplicate billings involving the department. Interest charges on these refunds are not allowable costs.

d.Peer groupings, limitations, or adjustments based upon data received from or relating to more than one facility are effective for a rate period. Any change in the data used to establish peer groupings, limitations, or adjustments may not be used to change such peer groupings, limitations, or adjustments during the rate period, except with respect to the specific facility or facilities to which the data change relates.

e.The established rate is paid based on a prospective ratesetting procedure. No retroactive settlements for actual costs incurred during the rate year that exceed the established rate may be made unless specifically provided for in this section.

8.Partial year.

a.Rates for a facility changing ownership during the rate period are set under this subdivision.

(1)The rates established for direct care, other direct care, indirect care, passthrough, operating margins, and incentives for the previous owner must be retained through the end of the rate period and the rates for the next rate period following the change in ownership must be established:

(a)For a facility with six or more months of operation under the new ownership during the report year, through use of a cost report for the period;

(b)For a facility with less than six months of operation under the new ownership during the report year, by indexing the rates established for the previous owner forward using the adjustment factor in subsection 5; or (c)If the change of ownership occurred after the report year end, but prior to the beginning of the next rate year, and the previous owner submits and allows audit of a cost report, by establishing a rate based on the previous owner's (2)The fair rental value rate established for property for the previous owner must be retained.

b.For a new facility placed into service before December 31, 2022, the department shall establish a rate equal to the limit rates for direct care, other direct care, and indirect care in effect for the rate year in which the facility begins operation, plus the projected property rate. The projected property rate is subject to subdivision d of subsection 8. For the rate period following submission of any partial year cost report by a facility, census used to establish rates for property and indirect care costs must be the greater of actual census, projected census, or census imputed at ninety-five percent of licensed beds.

(1)If the effective date of the rate is on or after January first and on or before June thirtieth, the rate must be effective for the remainder of that rate year and must continue through June thirtieth of the subsequent rate year. The facility shall file by March first a cost report for the period ending December thirty-first of the year in which the facility first provides services. The cost report is used to establish the actual rate effective July first of the subsequent rate year. The partial year rate established based on the cost report must include applicable incentives, margins, phase-ins, and adjustment factors and may not be subject to any cost settle-up.

(2)If the effective date of the rate is on or after July first and on or before December thirty-first, the rate must remain in effect through the end of the subsequent rate year. The facility shall file a cost report for the partial report year ending June thirtieth of the subsequent rate year. This cost report must be used to establish the rate for the next subsequent rate year. The facility shall file by March first a cost report for the period July first through December thirty-first of the subsequent rate (3)The final rate for direct care, other direct care, and indirect care costs established under this subdivision must be limited to the lesser of the limit rate for the current rate year or the actual rate.

c.For a facility terminating its participation in the medical assistance program, whether voluntarily or involuntarily, the department may authorize the facility to receive continued payment until medical assistance residents can be relocated to facilities participating in the medical assistance program.

d.For a projected property rate in place before January 1, 2023, at such time as twelve months of property costs are reflected in the report year, the difference between a projected property rate and the property rate that would otherwise be established based on historical costs must be determined. The property rate paid in each of the twelve years, beginning with the first rate year following the use of a projected property rate reduced by one-twelfth of that difference.

9.One-time adjustments.

a.Adjustments to meet certification standards.

(1)The department may provide for an increase in the established rate for additional costs incurred to meet certification standards. The survey conducted by the department's public health division must clearly require that the facility take steps to correct deficiencies dealing with resident care. The plan of correction must identify the salary and other costs that must be increased to correct the deficiencies cited in the survey process.

(2)The facility shall submit a written request to the medical services division within thirty days of submitting the plan of correction to the department's public health division. The request must:

(a)Include a statement that costs or staff numbers have not been reduced for the report year immediately preceding the department's public health division's certification survey;

(b)Identify the number of new staff or additional staff hours and the associated costs required to meet the certification standards; and (c)Provide a detailed list of any other costs necessary to meet survey standards.

(3)The department shall review the submitted information and may request additional established rate must be adjusted to an amount not to exceed the limit rate.

(4)Any additional funds provided must be used in accordance with the facility's written request to the department and are subject to audit. If the department determines the funds were not used for the intended purpose, an adjustment must be made in accordance with subsection 6.

b.Adjustments for unforeseeable expenses.

(1)The department may provide for an increase in the established rate for additional costs incurred to meet major unforeseeable expenses. The expenses must be resident related and must be beyond the control of those responsible for the management of the facility.

(2)Within sixty days after first incurring the unforeseeable expense, the facility shall submit a written request to the medical services division containing the following information:

(a)An explanation as to why the facility believes the expense was unforeseeable;

(b)An explanation as to why the facility believes the expense was beyond the managerial control of the facility; and (c)A detailed breakdown of the unforeseeable expenses by expense line item.

(3)The department shall base its decision on whether the request clearly demonstrates that the economic or other factors that caused the expense were unexpected and arose because of conditions that could not have been anticipated by management based on its background and knowledge of nursing care industry and business trends.

(4)The department shall review the submitted information and may request additional established rate must be adjusted upward not to exceed the limit rate.

(5)Any additional funds provided must be used to meet the unforeseeable expenses outlined in the facility's request to the department and are subject to audit. If the department determines that the funds were not used for the intended purpose, an adjustment must be made in accordance with subsection 6.

c.Adjustment to historical operating costs.

(1)A facility may receive a one-time adjustment to historical operating costs when the facility has been found to be significantly below care-related minimum standards described in subparagraph a of paragraph 2 and when it has been determined the facility cannot meet the minimum standards through reallocation of costs and efficiency incentives.

(2)The following conditions must be met before a facility can receive the adjustment:

(a)The facility shall document, based on nursing hours and standardized resident days, the facility cannot provide a minimum of one and two-tenths nursing hours per standardized resident day;

(b)The facility shall document all available resources, including efficiency incentives, if used to increase nursing hours, are not sufficient to meet the minimum standards; and (c)The facility shall submit a written plan describing how the facility will meet the minimum standard if the adjustment is received, including the number and type of staff to be added to the current staff and the projected cost for salary and fringe benefits for the additional staff.

(3)The adjustment must be calculated based on the costs necessary to increase nursing hours to the minimum standards less any operating margins and incentives included when calculating the established rate. The net increase must be divided by standardized resident days and the amount calculated must be added to the rate.

This rate is subject to any rate limitations that may apply.

(4)If the facility fails to implement the plan to increase nursing hours to one and two-tenths hours per standardized resident day, the amount included as the adjustment must be adjusted in accordance with the methodologies set forth in subsection 6.

(5)If the cost of implementing the plan exceeds the amount included as the adjustment, no retroactive settlement may be made.

d.Adjustments for disaster recovery costs when evacuation of residents occurs.

(1)A facility may incur certain costs when recovering from a disaster such as a flood, tornado, or fire. If evacuation of residents was necessary because of the disaster, actual recovery costs during the evacuation period, net of insurance recoveries, may be considered as deferred charges and allocated over a number of periods that benefit from the costs.

(2)When a facility has evacuated residents and capitalizes recovery costs as a deferred charge, the recovery costs must be recognized as allowable costs amortized over sixty consecutive months beginning with the sixth month after the first resident is readmitted to the facility.

(3)Recovery costs must be identified as startup costs and included as passthrough costs for report purposes. Recovery costs are not subject to any limitations except as provided in paragraph 4.

(4)If a facility evacuates residents, the ninety percent occupancy limitation may not be applied during the recovery period or for the first six months following the month the facility readmits the first resident.

(5)Insurance recoveries relating to the disaster recovery period must be reported as a reduction of recovery costs. Insurance recoveries received after the first month of the sixty-month amortization period must be included as a reduction of deferred charges not yet amortized, except that the reduction for insurance recoveries may occur only at the beginning of a rate year.

10.Under no circumstances, including an appeal or judicial decision to the effect a rate was erroneously established, may a rate adjustment be made to any rate established under this

chapter, unless the cumulative impact of all adjustments not already included in the established rate equals or exceeds the rate adjustment percentage per day.

November 22, 1993; January 1, 1996; January 1, 1998; January 1, 1999; January 1, 2000; January 1, 2002; July 2, 2003; December 1, 2005; January 1, 2010; July 1, 2010; January 1, 2012; January 1, 2014; July 1, 2016; April 1, 2018; January 1, 2020; January 1, 2022; October 1, 2022; January 1, 2024;

January 1, 2026. 75-02-06-16.1. Adjustments for salary and benefit enhancements.

Repealed effective July 2, 2003. 75-02-06-16.2. One-time adjustments for legislatively approved cost increases.

1.The department shall increase rates otherwise established by this chapter for supplemental payments or one-time adjustments to historical costs approved by the legislative assembly.

2.Any additional funds made available by the supplemental payments or one-time adjustments must be used for the legislatively prescribed purpose and are subject to audit. If the department determines that the funds were not used for the appropriate purpose, an adjustment must be made in accordance with subsection 6 of section 75-02-06-16.

1.Rate determination.

a.For the direct cost category, the actual rate is calculated using allowable historical operating costs and adjustment factors provided for in subsection 4 divided by standardized resident days. The actual rate must include the margin cap. The actual rate as calculated is compared to the price rate to determine the lesser of the actual rate or the price rate. The lesser rate is given the rate weight of one. The rate weight of one for direct care is then multiplied times the weight for each classification to establish the direct care rate for that classification.

b.For the other direct cost category, the actual rate is calculated using allowable historical operating costs and adjustment factors provided for in subsection 5 divided by resident days. The actual rate must include the margin cap. The actual rate as calculated is compared to the price rate to determine the lesser of the actual rate or the price rate.

c.For the indirect cost category, the actual rate is calculated using allowable historical operating costs and adjustment factors provided for in subsection 5 divided by resident days subject to the adjustments provided for in subdivision i of subsection 3. The actual rate must include the margin cap. The actual rate as calculated is compared to the price rate to determine the lesser of the actual rate or the price rate.

d.For the passthrough costs category, the actual rate is calculated using allowable historical operating costs divided by resident days subject to the adjustments provided for in subdivision i of subsection 3.

e.The property rate must be the greater of the fair rental value rate or the rate calculated using allowable property costs subject to subsection 2. The property rate must be calculated using resident days subject to the adjustments provided for in subdivision i of subsection 3.

f.The lesser of the actual rate or the price rate for other direct care and indirect care, the passthrough rate, the property rate, and the adjustments provided for in subsection 3 are then added to the direct care rate for each classification to arrive at the established rate for a given classification.

2.Effective with the 2023 rate year and subsequent rate years:

a.If the fair rental value rate is greater than the rate calculated using allowable property costs:

(1)The increase must be phased in over a four-year period.

(2)The increase must be reserved for renovations or replacements that enhance the fair rental value.

(3)The increase must be reserved until a renovation or replacement of at least two thousand dollars per licensed bed is placed in service. Only allowable costs for building, land improvements, and fixed equipment may be used in calculating the amount per licensed bed.

b.If the fair rental value rate is less than the rate calculated using allowable property costs:

(1)The department shall inform the facility of the property rate using allowable property costs and the fair rental value rate.

(2)Annually by November twenty-eighth, the facility shall inform the department if they want to accept the rate calculated using allowable property costs as the property

c.Once the fair rental value rate is equal to or greater than the rate calculated using allowable property costs, or the facility does not inform the department it wants to accept the rate calculated using allowable property costs, the department no longer may inform the facility of the rate calculated using allowable property costs and the property rate must be the fair rental value rate.

3.Limitations.

a.The department shall accumulate and analyze statistics on costs incurred by facilities.

Statistics may be used to establish reasonable ceiling limitations and incentives for efficiency and economy based on reasonable determination of standards of operations necessary for efficient delivery of needed services. Limitations and incentives may be established on the basis of cost of comparable facilities and services and may be applied as ceilings on the overall costs of providing services or on specific areas of operations.

The department may implement ceilings at any time based upon information available.

b.The department shall review, on an ongoing basis, aggregate payments to facilities to determine that payments do not exceed an amount that can reasonably be estimated would have been paid for those services under Medicare payment principles. If aggregate payments to facilities exceed estimated payments under Medicare, the department may make adjustments to rates to establish the upper limitations so that aggregate payments do not exceed an amount that can be estimated would have been paid under Medicare payment principles.

c.All facilities, except those nongeriatric facilities for individuals with physical disabilities or units within a nursing facility providing geropsychiatric services described in North Dakota Century Code section 50-24.4-13, must be used to establish a price rate for the direct care and other direct care cost categories. The base year is the report year ended June 30, 2021. A new base year will be established using the report year ended June 30, 2023. Base year costs may not be adjusted in any manner or for any reason not provided for in this subsection or subsection 4.

d.All facilities must be grouped into peer groups based on the licensed bed capacity available for occupancy as of June thirtieth of the report year. Facilities in each peer group must be used to establish a price rate for the indirect care cost category for that peer group. The base year is the report year ended June 30, 2021. A new base year will be established using the report year ended June 30, 2023. Base year costs may not be adjusted in any manner or for any reason not provided for in this subsection or subsection 4.

e.The price rate for each of the cost categories must be established using historical operating costs for the base year. The price rate will be established using the same percentage of the median used to establish the limit rates for the January 1, 2021, rate

f.A facility with an actual rate that exceeds the price rate for a cost category shall receive the price rate.

g.The price rate for each of the cost categories for the January 1, 2023, rate year must be the price rate for the previous rate year increased by the adjustment factor.

h.The price rate for each of the cost categories for the January 1, 2025, rate year must be the price rate for the previous rate year increased by the adjustment factor.

i.The actual rate for indirect care costs, passthrough costs, and the fair rental value rate must be the lesser of the rate established using:

(1)Actual census for the report year; or (2)Ninety percent of licensed bed capacity available for occupancy as of June thirtieth of the report year:

(a)Multiplied times three hundred sixty-five; and (b)Reduced by the number of affected beds, for each day any bed is not in service during the report year, due to a remodeling, renovation, or construction project.

j.The department may waive or reduce the application of subdivision i if the facility demonstrates that occupancy below ninety percent of licensed capacity results from the use of alternative home and community services by individuals who would otherwise be eligible for admission to the facility and:

(1)The facility has reduced licensed capacity; or (2)The facility's governing board has approved a capacity decrease to occur no later than the end of the rate year that would be affected by subdivision i.

k.The department may waive the application of subdivision i for nongeriatric facilities for individuals with disabilities or geropsychiatric facilities or units if occupancy below ninety percent is due to lack of department-approved referrals or admissions.

l.When calculating the fair rental value rate:

(1)The maximum allowable square footage must be nine hundred fifty square feet [88.26 square meters] per licensed bed.

(2)The replacement value of land will be ten percent of the building replacement cost.

(3)The maximum allowable moveable equipment replacement value must be fifteen thousand dollars per licensed bed.

(4)The maximum annual replacement cost inflation factor for building and land must be two percent.

(5)The maximum annual depreciation factor for building must be two percent.

(6)The location factor must be the city of Minneapolis.

(7)The minimum allowable project to impact a facility's effective age must be one thousand dollars per licensed bed. Only allowable costs for building, land improvements, and fixed equipment may be used in calculating the amount per licensed bed.

(8)The maximum allowable rental rate must be eight percent.

(9)The building replacement cost must be calculated by multiplying a facility's allowable square footage times the cost per square foot adjusted for the location factor. The building replacement cost per square foot must be for a thirty thousand square foot [2787.09 square meter] building with exterior walls of precast concrete for the calendar year before the end of the cost report year.

(10)A facility's effective age may be updated due to a renovation project reported in the cost report year the project was completed. The following will be used when calculating the update:

(a)The cost per square foot adjusted for the location factor for the cost report year in which the renovation project was completed.

(b)Additional square footage added due to the renovation project must be included in the total square footage.

(c)Only allowable renovation project costs for building, land improvements, and fixed equipment.

4.An adjustment factor must be used for purposes of adjusting historical operating costs for direct care, other direct care, and indirect care under subsection 1 and for purposes of adjusting the price rate for direct care costs, other direct care costs, and indirect care costs under subsection 3, but may not be used to adjust passthrough costs and the fair rental value under either subsection 1 or 3.

5.Rate adjustments.

a.Desk audit rate.

(1)The cost report must be reviewed taking into consideration the prior year's adjustments. The facility must be notified by electronic mail of any adjustments based on the desk review. Within seven working days after notification, the facility may submit information to explain why the desk adjustment should not be made.

The department shall review the information and make appropriate adjustments.

(2)The desk audit rate must be effective January first of each rate year unless the department specifically identifies an alternative effective date and must continue in effect until a final rate is established.

(3)Until a final rate is effective, pursuant to paragraph 3 of subdivision b, private-pay rates may not exceed the desk audit rate, except as provided for in section 75-02-06-22 or subdivision c.

(4)The facility may request a reconsideration of the desk rate for purposes of establishing a pending decision rate. The request for reconsideration must be filed with the department's medical services division within thirty days of the date of the rate notification and must contain the information required in subsection 1 of section

History

• History: Effective September 1, 1980; amended effective July 1, 1981; December 1, 1983; July 1, 1984; September 1, 1987; January 1, 1990; April 1, 1991; January 1, 1992; November 1, 1992;
• History: Effective July 1, 2009; amended effective January 1, 2022.
• Law Implemented: NDCC 50-24.4 75-02-06-16.3. Rate determinations for price.

N.D. Admin. Code 75-02-06-26 A decision on the request for reconsideration of the desk rate may not be made by the department unless, after the facility has been notified that the desk rate is the final rate, the facility requests, in writing within thirty days of the rate notification, the department to issue a decision on that request for reconsideration

(5)The desk rate may be adjusted for special rates or one-time adjustments provided for in this section.

(6)The desk rate may be adjusted to reflect errors, adjustments, or omissions for the report year which result in a change of at least the rate adjustment percentage per day.

b.Final rate.

(1)The cost report may be field audited to establish a final rate. If a field audit is not performed, the desk audit rate must become the final rate upon notification from the department. The final rate is effective January first of each rate year, unless the department specifically identifies an alternative effective date.

(2)The final rate must include any adjustments for nonallowable costs, errors, or omissions that result in a change from the desk audit rate of at least the rate adjustment percentage per day which are found during a field audit or are reported by the facility within twelve months of the rate year end.

(3)The private-pay rate must be adjusted to the final rate no later than the first day of the second month following receipt of notification by the department of the final rate and is not retroactive, except as provided for in subdivision c.

(4)The final rate may be revised at any time for special rates or one-time adjustments provided for in this section.

(5)If adjustments, errors, or omissions are found after a final rate has been established, the following procedures must be used:

(a)Adjustments, errors, or omissions found within twelve months of establishment of the final rate, not including subsequent revisions, resulting in a change of at least the rate adjustment percentage per day must result in a change to the final rate. The change must be applied retroactively as provided for in this

section.

(b)Adjustments, errors, or omissions found later than twelve months after the establishment of the final rate, not including subsequent revisions, which would have resulted in a change of at least the rate adjustment percentage per day had they been included, must be included as an adjustment in the report year that the adjustment, error, or omission was found.

(c)The two report years immediately preceding the report year to which the adjustments, errors, or omissions apply may also be reviewed for similar adjustments, errors, or omissions.

c.Pending decision rates for private-pay residents.

(1)If a facility has made a request for reconsideration, taken an administrative appeal, or taken a judicial appeal from a decision on an administrative appeal, and has provided information sufficient to allow the department to accurately calculate, on a per-day basis, the effect of each of the disputed issues on the facility's rate, the department shall determine and issue a pending decision rate within thirty days of receipt of the request for reconsideration, administrative appeal, or judicial appeal. If the information furnished is insufficient to determine a pending decision rate, the department, within thirty days of receipt of the request for reconsideration, shall inform the facility of the insufficiency and may identify information that would correct the insufficiency.

(2)The department shall add the pending decision rate to the rate that would otherwise be set under this chapter, and, notwithstanding North Dakota Century Code section 50-24.4-19, the total must be the rate chargeable to private-pay residents until a final decision on the request for reconsideration or appeal is made and is no longer subject to further appeal. The pending decision rate is subject to any rate limitation that may apply.

(3)The facility shall establish and maintain records that reflect the amount of any pending decision rate paid by each private-pay resident from the date the facility charges a private-pay resident the pending decision rate.

(4)If the pending decision rate paid by a private-pay resident exceeds the final decision rate, the facility shall refund the difference, plus interest accrued at the legal rate from the date of notification of the pending decision rate, within sixty days after the final decision is no longer subject to appeal. If a facility fails to provide a timely refund to a living resident or former resident, the facility shall pay interest at three times the legal rate for the period after the refund is due. If a former resident is deceased, the facility shall pay the refund to a person lawfully administering the estate of the deceased former resident or lawfully acting as successor to the deceased former resident. If no person is lawfully administering the estate or lawfully acting as a successor, the facility may make any disposition of the refund permitted by law. Interest paid under this subsection is not an allowable cost.

d.The final rate as established must be retroactive to the effective date of the desk rate, except with respect to rates paid by private-pay residents. A pending decision rate is not subject to adjustment or refund until a decision on the disputed amount is made.

6.Rate payments.

a.The rate as established must be considered as payment for all accommodations and includes all items designated as routinely provided. Payments may not be solicited or received from the resident or any other person to supplement the rate as established.

b.The rate as established must be paid by the department only if the rate charged to private-pay residents for semiprivate accommodations equals the established rate. If at any time the facility discounts rates for private-pay residents, the discounted rate must be the maximum chargeable to the department for the same bed type, i.e., hospital or leave days.

c.If the established rate exceeds the rate charged to a private-pay resident, on any given date, the facility immediately shall report that fact to the department and charge the department at the lower rate. If payments were received at the higher rate, the facility, within thirty days, shall refund the overpayment. The refund must be the difference between the established rate and the rate charged the private-pay resident times the number of medical assistance resident days paid during the period in which the established rate exceeded the rate charged to private-pay residents, plus interest calculated at two percent over the Bank of North Dakota prime rate on any amount not repaid within thirty days. The refund provision also applies to all duplicate billings involving the department. Interest charges on these refunds are not allowable costs.

d.Peer groupings, limitations, or adjustments based upon data received from or relating to more than one facility are effective for a rate period. Any change in the data used to establish peer groupings, limitations, or adjustments may not be used to change such peer groupings, limitations, or adjustments during the rate period, except with respect to the specific facility or facilities to which the data change relates.

e.The established rate is paid based on a prospective ratesetting procedure. No retroactive settlements for actual costs incurred during the rate year which exceed the established rate may be made unless specifically provided for in this section.

7.Partial year.

a.Rates for a facility changing ownership during the rate period are set under this subdivision.

(1)The rates established for direct care, other direct care, indirect care, and passthrough for the previous owner must be retained through the end of the rate period and the rates for the next rate period following the change in ownership must be established:

(a)For a facility with six or more months of operation under the new ownership during the report year, through use of a cost report for the period;

(b)For a facility with less than six months of operation under the new ownership during the report year, by indexing the rates established for the previous owner forward using the adjustment factor in subsection 5; or (c)If the change of ownership occurred after the report year end, but before the beginning of the next rate year, and the previous owner submits and allows audit of a cost report, by establishing a rate based on the previous owner's (2)The fair rental value rate established for the previous owner must be retained.

b.For a new facility placed into service before December 31, 2022, the department shall establish a rate equal to the price rate for direct care, other direct care, and indirect care in effect for the rate year in which the facility begins operation, plus the projected property rate. The projected property rate is subject to subdivision f. For the rate period following submission of any partial year cost report by a facility, census used to establish rates for property and indirect care costs must be the greater of actual census, projected census, or census imputed at ninety-five percent of licensed beds.

(1)If the effective date of the rate is on or after January first and on or before June thirtieth, the rate must be effective for the remainder of that rate year and must continue through June thirtieth of the subsequent rate year. The facility shall file by March first a cost report for the period ending December thirty-first of the year in which the facility first provides services. The cost report is used to establish the actual rate effective July first of the subsequent rate year. The partial year rate established based on this cost report must include applicable margins and adjustment factors and may not be subject to any cost settle-up.

(2)If the effective date of the rate is on or after July first and on or before December thirty-first, the rate must remain in effect through the end of the subsequent rate year. The facility shall file a cost report for the partial report year ending June thirtieth of the subsequent rate year. This cost report must be used to establish the rate for the next subsequent rate year.

c.For a new facility placed into service after December 31, 2022, the department shall establish a rate equal to the price rate for direct care, other direct care, and indirect care in effect for the rate year in which the facility begins operation, plus the fair rental value

d.For a facility with a major renovation of at least fifteen thousand dollars per licensed bed:

(1)If the renovation is placed into service between July first and December thirty-first, a fair rental value rate must be calculated including the major renovation. The fair rental value rate must be effective July first of the subsequent rate year.

(2)If the renovation is placed into service between January first and June thirtieth, a fair rental value rate must be calculated including the major renovation. The fair rental value rate must be effective January first of the subsequent rate year.

e.For a facility terminating its participation in the medical assistance program, whether voluntarily or involuntarily, the department may authorize the facility to receive continued payment until medical assistance residents can be relocated to facilities participating in the medical assistance program.

f.For a projected property rate in place before January 1, 2023, at such time as twelve months of property costs are reflected in the report year, the difference between a projected property rate and the property rate that would otherwise be established based on historical costs must be determined. The property rate paid in each of the twelve years, beginning with the first rate year following the use of a projected property rate reduced by one-twelfth of that difference.

8.One-time adjustments.

a.Adjustments to meet certification standards.

(1)The department may provide for an increase in the established rate for additional costs incurred to meet certification standards. The survey conducted by the department's public health division must clearly require that the facility take steps to correct deficiencies dealing with resident care. The plan of correction must identify the salary and other costs that must be increased to correct the deficiencies cited in the survey process.

(2)The facility shall submit a written request to the medical services division within thirty days of submitting the plan of correction to the department's public health division. The request must:

(a)Include a statement that costs or staff numbers have not been reduced for the report year immediately preceding the department's public health division's certification survey;

(b)Identify the number of new staff or additional staff hours and the associated costs required to meet the certification standards; and (c)Provide a detailed list of any other costs necessary to meet survey standards.

(3)The department shall review the submitted information and may request additional established rate must be adjusted to an amount not to exceed the price rate.

(4)Any additional funds provided must be used in accordance with the facility's written request to the department and are subject to audit. If the department determines the funds were not used for the intended purpose, an adjustment must be made in accordance with subsection 5.

b.Adjustments for unforeseeable expenses.

(1)The department may provide for an increase in the established rate for additional costs incurred to meet major unforeseeable expenses. The expenses must be resident related and must be beyond the control of those responsible for the management of the facility.

(2)Within sixty days after first incurring the unforeseeable expense, the facility shall submit a written request to the medical services division containing the following information:

(a)An explanation as to why the facility believes the expense was unforeseeable;

(b)An explanation as to why the facility believes the expense was beyond the managerial control of the facility; and (c)A detailed breakdown of the unforeseeable expenses by expense line item.

(3)The department shall base its decision on whether the request clearly demonstrates that the economic or other factors that caused the expense were unexpected and arose because of conditions that could not have been anticipated by management based on its background and knowledge of nursing care industry and business trends.

(4)The department shall review the submitted information and may request additional established rate must be adjusted upward, not to exceed the price rate.

(5)Any additional funds provided must be used to meet the unforeseeable expenses outlined in the facility's request to the department and are subject to audit. If the department determines that the funds were not used for the intended purpose, an adjustment must be made in accordance with subsection 5.

c.Adjustment to historical operating costs.

(1)A facility may receive a one-time adjustment to historical operating costs when the facility has been found to be significantly below care-related minimum standards described in subparagraph a of paragraph 2 and when it has been determined the facility cannot meet the minimum standards through reallocation of costs and use of margin cap.

(2)The following conditions must be met before a facility can receive the adjustment:

(a)The facility shall document, based on nursing hours and standardized resident days, the facility cannot provide a minimum of one and two-tenths nursing hours per standardized resident day;

(b)The facility shall document all available resources, including margin cap, if used to increase nursing hours, are not sufficient to meet the minimum standards; and (c)The facility shall submit a written plan describing how the facility will meet the minimum standard if the adjustment is received, including the number and type of staff to be added to the current staff and the projected cost for salary and fringe benefits for the additional staff.

(3)The adjustment must be calculated based on the costs necessary to increase nursing hours to the minimum standards less any margin cap included when calculating the established rate. The net increase must be divided by standardized resident days and the amount calculated must be added to the rate. This rate is subject to any price rate limitations that may apply.

(4)If the facility fails to implement the plan to increase nursing hours to one and two-tenths hours per standardized resident day, the amount included as the adjustment must be adjusted in accordance with the methodologies set forth in subsection 5.

(5)If the cost of implementing the plan exceeds the amount included as the adjustment, no retroactive settlement may be made.

d.Adjustments for disaster recovery costs when evacuation of residents occurs.

(1)A facility may incur certain costs when recovering from a disaster, such as a flood, tornado, or fire. If evacuation of residents was necessary because of the disaster, actual recovery costs during the evacuation period, net of insurance recoveries, may be considered as deferred charges and allocated over a number of periods that benefit from the costs.

(2)When a facility has evacuated residents and capitalizes recovery costs as a deferred charge, the recovery costs must be recognized as allowable costs amortized over sixty consecutive months beginning with the sixth month after the first resident is readmitted to the facility.

(3)Recovery costs must be identified as startup costs and included as passthrough costs for report purposes. Recovery costs are not subject to any limitations except as provided in paragraph 4.

(4)If a facility evacuates residents, the ninety percent occupancy limitation may not be applied during the recovery period or for the first six months following the month the facility readmits the first resident.

(5)Insurance recoveries relating to the disaster recovery period must be reported as a reduction of recovery costs. Insurance recoveries received after the first month of the sixty-month amortization period must be included as a reduction of deferred charges not yet amortized, except that the reduction for insurance recoveries may occur only at the beginning of a rate year.

e.Adjustments for a significant reduction in census.

(1)A facility may request a revised desk rate if the facility has a significant reduction in census. The reduction in census cannot be due to renovation.

(2)For purposes of this section a significant reduction in census is defined as:

(a)At least ten percent of licensed bed capacity for a facility in the large peer group; and (b)At least five percent of licensed bed capacity for a facility in the small peer group.

(3)The licensed bed capacity will be based on the licensed beds used to establish the peer groups.

(4)The revised desk rate must be calculated using:

(a)The facility's allowable historical operating costs from the most recent base year increased by the adjustment factors, if any, up to the current report year.

(b)The facility's allowable property costs from the most recent report year.

(c)The standardized resident days and resident days from the most recent report (d)The revised desk rate must be limited to the price rate for direct care, other direct care, and indirect cost categories.

(5)A facility that receives a revised desk rate under this section may not increase licensed bed capacity during the rate year.

9.Under no circumstances, including an appeal or judicial decision to the effect a rate was erroneously established, may a rate adjustment be made to any rate established under this

chapter, unless the cumulative impact of all adjustments not already included in the established rate equals or exceeds the rate adjustment percentage per day.

History

• History: Effective January 1, 2022; amended effective October 1, 2022; January 1, 2024; January 1, 2026.
• Law Implemented: NDCC 50-24.4

N.D. Admin. Code 75-02-06-17 Classifications

1.A facility shall complete a resident assessment for any resident occupying a licensed facility bed, except a respite care resident.

2.A resident must be classified based on the resident assessment. If a resident assessment is not performed in accordance with subsection 3, except for a respite care resident, the resident must be included in the default classification, until the next required resident assessment is performed in accordance with subsection 3. A resident, except for a respite care resident, who has not been classified, must be billed at the default classification established rate. The case-mix weight for establishing the rate for the default classification is 0.64. Days for a respite care resident who is not classified must be given a weight of one when determining standardized resident days. Therapeutic, hospital, or institutional leave days that are resident days must be given a weight of 0.64 when determining standardized resident days.

3.Resident assessments must be completed as follows:

a.The facility shall assess the resident within the first fourteen days after any admission or return from an acute hospital stay. The assessment reference date must be between day seven and day fourteen.

b.The facility shall assess the resident quarterly after any admission or return from an acute hospital stay. The quarterly assessment reference period ends on the day of the third subsequent month corresponding to the day of admission or return from an acute hospital stay, except if that month does not have a corresponding date, the quarterly assessment reference period ends on the first day of the next month. The assessment reference period begins seven days prior to the ending date of a quarterly assessment period. The assessment reference date used for the resident assessment instrument must be within the assessment reference period.

4.The resident classification is based on resident characteristics and health status recorded on the resident assessment instrument, including clinical complexity, functional status, need for restorative services, cognitive impairment, and comorbidities.

5.The classification is effective the date the resident assessment must be completed in all cases except an admission or for a return from an acute hospital stay. The classification for an admission or for a return is effective the date of the admission or return.

6.A facility complying with any provision of this section that requires a resident assessment shall use the minimum data set in a resident assessment instrument that conforms to standards for a resident classification system described in 42 CFR 413.333.

January 1, 1996; January 1, 1998; January 1, 1999; January 1, 2000; July 2, 2002; October 1, 2010;

January 1, 2012; January 1, 2014; January 1, 2020; January 1, 2026.

History

• History: Effective September 1, 1987; amended effective January 1, 1990; November 22, 1993;

N.D. Admin. Code 75-02-06-18 Reviewer criteria

Repealed effective January 1, 1999.

N.D. Admin. Code 75-02-06-19 Appeal from facility transfer or discharge

Repealed effective February 1, 1995.

N.D. Admin. Code 75-02-06-20 Resident personal funds

1.A facility may not require a resident to deposit personal funds with the facility.

2.Upon written authorization of a resident or the resident's legal representative, a facility shall hold, safeguard, manage, and account for the resident's personal funds deposited with the

3.A facility may not charge the resident for holding, safeguarding, managing, or accounting for the resident's personal funds. Any related administrative costs, including bank charges, must be included in the daily rate. A facility may not impose a charge against a resident's personal funds for any item or service included in the daily rate.

4.A facility may maintain a resident's personal funds that do not exceed fifty dollars in a noninterest-bearing account. A facility shall deposit any resident's personal funds in excess of fifty dollars in an interest-bearing account that is separate from any of the facility's accounts and that credits all interest earned on the resident's account to the account.

5.A facility shall maintain a system that ensures a full, complete, and separate accounting, according to generally accepted accounting principles, of each resident's personal funds. An individual financial record must be available on request and a written accounting of transactions must be provided quarterly to the resident or the resident's legal representative.

6.A resident's personal funds may not be commingled with any facility funds or with funds of any person other than another resident.

7.Upon death of a resident, the facility shall promptly convey the resident's personal funds, and a final accounting of those funds, to the individual administering the resident's estate. For purposes of this section, an "individual administering the resident's estate" includes a person lawfully empowered to facilitate the transfer of small estates without the use of a personal representative.

8.A facility shall purchase a surety bond or provide self-insurance to ensure the security of all resident personal funds deposited with the facility.

History

• History: Effective May 1, 1992; amended effective January 1, 1996.

N.D. Admin. Code 75-02-06-21 Specialized rates for extraordinary medical care

1.A specialized rate for an individual with extraordinary medical needs may be established if the criteria in both subdivisions a and b are met. a.(1)The individual requires specialized therapies that are:

(a)Restorative in nature (restorative means the individual has the ability to improve);

(b)Medically necessary and provided in the facility;

(c)Of at least two different types; and (d)Provided in excess of fifteen hours per week;

(2)The individual requires extensive pulmonary care resulting from:

(a)Suctioning and related tracheostomy care performed by a licensed nurse or therapist in excess of three and one-half hours in a twenty-four-hour period; or (b)A drug-resistant respiratory infection;

(3)The individual requires total parenteral nutrition (TPN) and:

(a)The individual is not eligible for or has been denied Medicare part A or B benefits; and (b)The individual requires total parenteral nutrition based on medical necessity for a minimum of three months; or (4)The individual requires the use of a ventilator and:

(a)Is dependent on the ventilator a minimum of six hours per day;

(b)Requires direct care by a licensed nurse, nurse aide, or therapist on a daily average of nine hours per day;

(c)Is physiologically stable; and (d)Attempts to wean the individual from the ventilator have occurred during the acute hospital stay.

b.Costs to provide direct care to the individual for the specialized services must exceed two and one-quarter times the actual direct care rate, adjusted for inflation, prior to limitations, for the individual's resident classification, except the department may use a cost limitation of one and three-quarters times the actual direct care rate, if specialized equipment is purchased for use by the resident. Costs that may be included in determining if the cost factor is exceeded include salaries and fringe benefits of all direct care staff, nursing supplies, drugs, dietary supplements, and specialized equipment costs.

2.A specialized rate must be calculated for an individual who meets the criteria by subtracting the actual cost per day for direct care, prior to limitations, for the individual's classification from the total cost per day for the individual.

3.A one-time startup cost of one thousand dollars must be included in the initial specialized rate for the first thirty days after the effective date of the specialized rate.

4.Except as provided for in subsection 7, all income received for a specialized rate must be offset proportionately to the affected cost categories.

5.The facility shall report costs on a monthly basis for the first three full months after admission and on a quarterly basis thereafter. The specialized rates must be adjusted to actual on a prospective basis based on the report submissions.

6.The specialized rate must be paid in addition to the rate established for the individual's resident classification and may only be paid for in-house resident days.

7.If a specialized rate has been established and costs to provide direct care to the individual decrease to less than the cost limits provided for in subdivision b of subsection 1, the specialized rate must continue until the end of the rate year. Income from the specialized rate may not be offset to reported costs for the report year in which the costs to provide direct care to the individual decreased to less than the established cost limits.

January 1, 1999.

History

• History: Effective November 22, 1993; amended effective January 1, 1996; January 1, 1998;
• Law Implemented: NDCC 50-24.4-19.2

N.D. Admin. Code 75-02-06-22 Participation requirement

A facility must comply with the following provisions in order to be eligible to receive medical assistance payments.

1.A facility may not charge private-pay residents rates that exceed those rates approved by the department for medical assistance recipients, except that:

a.A facility may charge a higher rate for a private room.

b.A facility may charge for special services not included in the daily rate if medical assistance residents are charged separately at the same rate for the same services.

Special services must be available to all residents and residents must be free to select or decline the special services. Special services may not include services provided by the facility in order to comply with licensure or certification standards which, if not provided, would result in a deficiency or violation by the facility. Services beyond those required to comply with licensure or certification standards may not be charged separately as special services if the services were included as allowable costs used to establish the current established rate. Special services may include cable television, telephones, long-distance calls, nonroutine hair care such as permanents requested by a resident, and the additional cost of brand name supplies requested by a resident and not ordinarily stocked. A facility shall inform the resident or a person acting on behalf of the resident that a charge may be made and the amount of the charge at the time a request for the special services is made.

c.A facility may charge to hold a bed for a period in excess of the periods covered by subsections 3, 4, 5, and 6 of section 75-02-06-14 if:

(1)The resident, or a person acting on behalf of the resident, has requested the bed be held and the facility informs the person making the request, at the time of the request, of the amount of the charge;

(2)For a medical assistance resident, the payment comes from sources other than from the resident's monthly income; and (3)All residents are charged the same amount.

d.A facility may charge for Medicare part A and part B coinsurance and deductibles.

2.A facility may not require, as a condition of admission, any applicant to pay a fee or a deposit, loan any money to the facility, or promise to leave all or part of the applicant's estate to the

3.A facility may not require any resident to use a vendor of health care services who is a licensed physician or pharmacist chosen by the facility.

4.A facility may not provide differential treatment on the basis of status with regard to public assistance.

5.A facility may not discriminate in admission, services offered, or room assignment on the basis of status with regard to medical assistance. The collection and use by a facility of financial information of any applicant pursuant to a preadmission screening program does not raise an inference that the facility is using that information for any purpose prohibited by this chapter.

Admission discrimination includes:

a.Basing admission decisions upon an assurance by the applicant to the facility, or the applicant's guardian or conservator, that the applicant is neither eligible for nor will seek medical assistance for payment of facility care costs; or

b.Engaging in preferential selection from waiting lists based on an applicant's ability to pay privately.

6.A facility may not require any vendor of medical care, who is reimbursed by medical assistance under a separate fee schedule, to pay any portion of the fee to the facility except as payment for the fair market value of renting or leasing space or equipment of the facility or purchasing support services, if those agreements are disclosed to the department.

7.A facility may not refuse, for more than twenty-four hours, to accept a resident returning to the same bed or an available bed certified for the same level of care, in accordance with a physician's order authorizing transfer, after receiving inpatient hospital services.

8.A facility may not violate any rights of a health care facility resident as set forth in North Dakota Century Code section 50-10.2-02.

9.Any facility certified as a nursing facility shall participate in Medicare part A and part B with respect to at least thirty percent of the beds in the facility.

10.If Medicare covered services are provided to a resident who is simultaneously eligible for medical assistance and Medicare, the facility shall bill for Medicare part A and part B before billing medical assistance, and may not bill medical assistance if the resident, or someone acting on the resident's behalf, has refused or waived use of available Medicare benefits. The department may be billed only for charges not payable by Medicare. Medicare part B covered services are not included in the daily rate.

11.A facility shall file on behalf of each resident or assist each resident in filing requests for any third-party benefits to which the resident may be entitled.

12.A facility shall be certified to participate in the medical assistance program and have a provider agreement with the department.

13.If a facility does not comply with the provisions of this section, the department may continue, if extreme hardship to the residents would otherwise result, to make medical assistance payments to the facility for a period not to exceed one hundred eighty days from the date of mailing a formal notice. In these cases, the department shall issue an order requiring the facility to correct the violation. If the violation is not corrected within the twenty-day period, the department may reduce the payment rate to the facility by up to twenty percent. The amount of the payment rate reduction must be related to the severity of the violation and must remain in effect until the violation is corrected. The facility may seek reconsideration of or appeal the department's action as provided for in section 75-02-06-25.

14.A facility may charge a higher rate for a private room used by a medical assistance resident if:

a.The private room is not medically necessary;

b.The resident, or a person acting on behalf of the resident, has requested the private room and the facility informs the person making the request, at the time of the request, of the amount of the payment and that the payment must come from sources other than a resident's monthly income; and

c.The payment does not exceed the amount charged to private-pay residents.

15.A facility may not accept any payment to hold a bed prior to the admission of a resident.

16.A facility shall readmit a resident whose leave exceeds the facility's bed hold period upon the first availability of a bed in a semiprivate room if the resident:

a.Requires the services provided by the facility; and

b.Is eligible for medical assistance.

17.A facility may not charge a managed care organization a rate that is less than the rate approved by the department for a medical assistance recipient in the same classification.

History

• History: Effective January 1, 1996; amended effective January 1, 1998; January 1, 2000.

N.D. Admin. Code 75-02-06-23 Violation of chapter subjects facility to action

A facility that charges a private-pay resident a rate in violation of this chapter is subject to action for civil damages. The damages awarded may include three times the payments that result from the violation, together with costs and disbursements, including reasonable attorney's fees or their equivalent.

History

• History: Effective January 1, 1996.

N.D. Admin. Code 75-02-06-24 Exclusions

1.A facility that exclusively provides residential services for nongeriatric individuals with physical disabilities or a unit within a facility which exclusively provides geropsychiatric services shall not be included in the calculation of the rate limitations.

2.The rate for a unit within a facility which exclusively provides geropsychiatric services must be established using the actual allowable historical costs adjusted by the indices under subsection 5 of section 75-02-06-16. Actual allowable historical costs must be determined using the applicable sections of the policies and procedures. An operating margin and incentive determined under subsection 3 of section 75-02-06-16 must be included in the facility's cost rate.

3.The direct care rate for a unit within a facility that exclusively provides geropsychiatric services must be established using the allowable historical operating costs and adjustment factors under subsection 4 of section 75-02-06-16.3. The margin cap for direct care must be included in the facility's direct care rate.

4.The direct care rate for a facility that exclusively provides residential services for nongeriatric individuals with physical disabilities must be established using the allowable historical operating costs and adjustment factors under subsection 4 of section 75-02-06-16.3. The direct care rate must be limited to two times the limit rate under subdivision c of subsection 3 of section 75-02-06-16.3. The margin cap for direct care must be included in the facility's direct care rate up to two times the limit rate.

5.The other direct care rate and indirect care rate for a facility that exclusively provides residential services for nongeriatric individuals with physical disabilities must be limited to one and one-half times the limit rate set under subdivision c of subsection 3 of section 75-02-06-16.3. The margin cap for other direct and indirect care must be included in the facility's rate up to one and one-half times the limit rate.

6.A facility may establish a rate for respite care, hospice inpatient respite care, or hospice general inpatient care services.

History

• History: Effective January 1, 1996; amended effective July 1, 1999; January 1, 2022; October 1, 2022.

N.D. Admin. Code 75-02-06-25 Notification of rates

1.The department shall notify each facility of the desk audit rate on or before November twentyfourth of the year preceding the rate year, except a facility that has requested and received a cost reporting deadline extension of fifteen days or less shall be notified on or before November thirtieth of the year preceding the rate year, and a facility that has requested and received a cost reporting deadline extension in excess of fifteen days shall be notified on or before December fifteenth of the year preceding the rate year.

2.The department shall notify each facility of the cost rate and the price rate for the 2022 and 2023 rate years.

3.The facility shall notify the department on or before November 29, 2021, if the facility accepts the cost rate as the established rate for the 2022 rate year.

4.The facility shall notify the department on or before November 28, 2022, if the facility accepts the cost rate as the established rate for the 2023 rate year. The facility does not have the option to choose the cost rate for the 2023 rate year if the facility's 2022 rate was the price

5.The facility shall provide to all private-pay residents a thirty-day written notification of any increase in the rates for each classification. An increase in rates is not effective unless the facility has notified private-pay residents that the rate increase is effective by the first day of the second month following the date of notification by the department. If the facility does not notify private-pay residents by the first day of the first month following notification by the department, the established rate in effect at the time of notification by the department must remain in effect until the date the rate is payable by private-pay residents. No retroactive adjustment may be made to an established rate that remains in effect because the facility did not promptly notify private-pay residents unless the adjustment would result in a decrease of at least the rate adjustment percentage per day. A facility may make a rate change without giving a thirty-day written notice when the purpose of the rate change is to reflect a necessary change in the case-mix classification of a resident.

6.If the department fails to notify the facility of the desk rate, as provided in subsection 1, the time required for giving written notice, as provided for in subsection 5, must be decreased by the number of days by which the department was late in setting the rate.

History

• History: Effective January 1, 1996; amended effective January 1, 2000; January 1, 2020; January 1, 2022.

N.D. Admin. Code 75-02-06-26 Reconsiderations

1.Any requests for reconsideration of the final rate must be filed with the department's medical services division within thirty days of the date of the rate notification.

2.A request for reconsideration must include:

a.A statement of each disputed item and the reason or basis for the dispute;

b.The dollar amount of each adjustment that is disputed; and

c.The authority in statute or rule upon which the facility is relying for each disputed item.

3.The department may request additional documentation or information relating to a disputed item. If additional documentation is not provided within fourteen days of the department's request, the department shall make its determination based on the information and documentation available as of the fourteenth day following the date the department requested additional documentation.

4.The department's medical services division shall make a determination regarding the reconsideration within forty-five days of receiving the reconsideration filing and any requested documentation.

History

• History: Effective January 1, 1996; amended effective January 1, 1998; July 1, 2016.

Chapter 75-02-07 Provider Reimbursement - Basic Care Facilities [Repealed]

N.D. Admin. Code 75-02-07 Provider Reimbursement - Basic Care Facilities [Repealed]

CHAPTER 75-02-07

PROVIDER REIMBURSEMENT - BASIC CARE FACILITIES [Repealed effective July 1, 1996]

Chapter 75-02-07.1 Ratesetting for Basic Care Facilities

N.D. Admin. Code 75-02-07.1 Ratesetting for Basic Care Facilities

CHAPTER 75-02-07.1

RATESETTING FOR BASIC CARE FACILITIES

Section 75-02-07.1-01Definitions 75-02-07.1-02Financial Reporting Requirements 75-02-07.1-03General Cost Principles 75-02-07.1-04Participation Requirement 75-02-07.1-05Resident Census 75-02-07.1-06Direct Care Costs 75-02-07.1-07Indirect Care Costs 75-02-07.1-08Property Costs 75-02-07.1-08.1Food and Plant Costs 75-02-07.1-09Cost Allocations 75-02-07.1-10Nonallowable Costs 75-02-07.1-11Offsets to Costs 75-02-07.1-12Home Office Costs 75-02-07.1-13Related Organizations 75-02-07.1-14Compensation 75-02-07.1-15Depreciation 75-02-07.1-16Interest Expense 75-02-07.1-17Taxes 75-02-07.1-18Startup Costs 75-02-07.1-19Funded Depreciation 75-02-07.1-20Rate Calculation 75-02-07.1-21Adjustment Factor for Direct Care, Indirect Care, and Food and Plant Costs 75-02-07.1-22Rate Limitations 75-02-07.1-23Rates 75-02-07.1-24Rate Payments 75-02-07.1-25Special Rates 75-02-07.1-26One-Time Adjustments 75-02-07.1-27No Rate Adjustments of Less Than Twenty-Five Cents Per Day 75-02-07.1-28Notification of Rates 75-02-07.1-29Reconsiderations and Appeals 75-02-07.1-30Resident Personal Funds 75-02-07.1-01. Definitions.

1."Accrual basis" means the recording of revenue in the period when it is earned, regardless of when it is collected, and the recording of expenses in the period when incurred, regardless of when they are paid.

2."Actual rate" means the facility rate for each cost category calculated using allowable historical operating costs and adjustment factors.

3."Adjustment factor" means the legislatively approved inflation rate for basic care services.

4."Admission" means any time a resident is admitted to the facility from an outside location, including readmission resulting from a discharge.

5."Aid to vulnerable aged, blind, and disabled individuals" means a program that supplements the income of an eligible beneficiary who resides in a facility.

6."Allowable cost" means the facility's actual cost after appropriate adjustments as required by basic care regulations.

7."Alzheimer's and related dementia facility" means a licensed basic care facility which primarily provides services specifically for individuals with Alzheimer's disease or related dementia.

8."Bona fide sale" means the purchase of a facility's capital assets with cash or debt in an arm's-length transaction. It does not include:

a.A purchase of shares in a corporation that owns, operates, or controls a facility except as provided under subsection 4 of section 75-02-07.1-13;

b.A sale and leaseback to the same licensee;

c.A transfer of an interest to a trust;

d.Gifts or other transfer for nominal or no consideration;

e.A change in the legal form of doing business;

f.The addition or deletion of a partner, owner, or shareholder; or

g.A sale, merger, reorganization, or any other transfer of interest between related organizations.

9."Building" means the physical plant, including building components and building services equipment, licensed as a facility and used directly for resident care, and auxiliary buildings including sheds, garages, and storage buildings if used directly for resident care.

10."Capital assets" means a facility's buildings, land improvements, fixed equipment, movable equipment, leasehold improvements, and all additions to or replacements of those assets used directly for resident care.

11."Chain organization" means a group of two or more basic care or health care facilities owned, leased, or through any other device controlled by one business entity. This includes not only proprietary chains, but also chains operated by various religious and other charitable organizations. A chain organization may also include business organizations engaged in other activities not directly related to basic care or health care.

12."Close relative" means an individual whose relationship by blood, marriage, or adoption to an individual who is directly or indirectly affiliated with, controls, or is controlled by a facility is within the third degree of kinship.

13."Community contribution" means contributions to civic organizations and sponsorship of community activities. It does not include donations to charities.

14."Cost category" means the classification or grouping of similar or related costs for purposes of reporting, determination of cost limitations, and determination of rates.

15."Cost center" means a division, department, or subdivision thereof, group of services or employees, or both, or any unit or type of activity into which functions of a facility are decided for purposes of cost assignment and allocations.

16."Cost report" means the department-approved form for reporting costs, statistical data, and other relevant information of the facility.

17."Department" means the department of health and human services.

18."Depreciable asset" means a capital asset for which the cost must be capitalized for ratesetting purposes.

19."Depreciation" means an allocation of the cost of a depreciable asset over its estimated useful life.

20."Depreciation guidelines" means the American hospital association's depreciation guidelines as published by American hospital publishing, inc., in "Estimated Useful Lives of Depreciable Hospital Assets", revised 2018 edition.

21."Desk audit rate" means the rate established by the department based upon a review of the cost report submission prior to an audit of the cost report.

22."Direct care costs" means the cost category for allowable resident care, activities, social services, and laundry costs.

23."Direct costing" means identification of actual costs directly to a facility or cost category without use of any means of allocation.

24."Discharge" means the voluntary or involuntary release of a bed by a resident when the resident vacates the facility premises.

25."Eligible beneficiary" means a facility resident who is eligible for aid to vulnerable aged, blind, and disabled individuals.

26."Employment benefits" means fringe benefits and other employee benefits including vision insurance, disability insurance, long-term care insurance, employee assistance programs, employee child care benefits, and payroll taxes.

27."Facility" means a provider licensed as a basic care facility, not owned or administered by state government, which does not meet the definition of an Alzheimer's and related dementia facility, traumatic brain injury facility, or institution for mental disease, which is enrolled with the department as a basic care assistance program provider.

28."Fair market value" means value at which an asset could be sold in the open market in a transaction between informed, unrelated parties.

29."Final rate" means the rate established after any adjustments by the department, including adjustments resulting from cost report reviews and audits.

30."Fixed equipment" means equipment used directly for resident care affixed to a building, not easily movable, and identified as such in the depreciation guidelines.

31."Food and plant costs" means the cost category for allowable food, utilities, and maintenance and repair costs.

32."Freestanding facility" means a facility that does not share basic services with a hospital-based provider or a nursing facility.

33."Fringe benefits" means workers' compensation insurance, group health or dental insurance, group life insurance, retirement benefits, uniform allowances, and medical services furnished at facility expense.

34."Highest market-driven compensation" means the highest compensation given to an employee of a freestanding facility who is not an owner of the facility or is not a member of the governing board of the facility.

35."Historical operating costs" means the allowable operating costs incurred by the facility during the report year immediately preceding the rate year for which the established rate becomes effective.

36."Indirect care costs" means the cost category for allowable administration, plant, housekeeping, medical records, chaplain, pharmacy, and dietary, exclusive of food costs.

37."In-house resident day" for basic care, swing bed, and nursing facilities means a day that a resident was actually residing in the facility. "In-house resident day" for hospitals means an inpatient day.

38."Institution for mental disease" means a facility with a licensed capacity of seventeen or more beds which provides treatment or services primarily to individuals with a primary diagnosis of mental disease.

39."Land improvements" means any improvement to the land surrounding the facility used directly for resident care and identified as such in the depreciation guidelines.

40."Limit rate" means the rate established as the maximum allowable rate for direct care and indirect care.

41."Lobbyist" means any person who in any manner, directly or indirectly, attempts to secure the passage, amendment, defeat, approval, or veto of any legislation, attempts to influence decisions made by the legislative council, and is required to register as a lobbyist.

42."Medical care leave day" means any day that a resident is not in the facility but is in a licensed health care facility, including a hospital, swing bed, nursing facility, or transitional care unit, and is expected to return to the facility.

43."Medical records costs" means costs associated with the determination that medical record standards are met and with the maintenance of records for individuals who have been discharged from the facility. It does not include maintenance of medical records for in-house residents.

44."Movable equipment" means movable care and support services equipment generally used in a facility, including equipment identified as major movable equipment in the depreciation guidelines.

45."Payroll taxes" means the employer's share of Federal Insurance Contributions Act taxes, governmentally required retirement contributions, and state and federal unemployment compensation taxes.

46."Personal care rate" means a per diem rate that is the sum of the rates established for direct personal care costs, indirect personal care costs, and the operating margin for personal care.

47."Private-pay resident" means a resident on whose behalf the facility is not receiving any aid to vulnerable aged, blind, and disabled individuals program payments and whose payment rate is not established by any governmental entity with ratesetting authority.

48."Private room" means a room equipped for use by only one resident.

49."Property costs" means the cost category for allowable real property costs and passthrough costs.

50."Provider" means the organization or individual who has executed a provider agreement with the department.

51."Rate year" means the year from July first through June thirtieth.

52."Reasonable resident-related cost" means the cost that must be incurred by an efficiently and economically operated facility to provide services in conformity with applicable state laws, regulations, and quality and safety standards. Reasonable resident-related cost takes into account that the provider seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or services.

53."Related organization" means a close relative or person or an organization which a provider is, to a significant extent, associated with, affiliated with, able to control, or controlled by, and which furnishes services, facilities, or supplies to the provider. Control exists when an individual or an organization has the power, directly or indirectly, significantly to influence or direct the policies of an organization or provider.

54."Report year" means the fiscal year from July first through June thirtieth of the year immediately preceding the rate year.

55."Resident" means an individual who has been admitted to the facility but not discharged.

56."Resident day" in a facility means any day for which service is provided or for which payment in any amount is ordinarily sought, including medical care leave and therapeutic leave days.

The day of admission and the day of death are resident days. The day of discharge is not a resident day. "Resident day" in a hospital means all inpatient days for which payment is ordinarily sought. The amount of remuneration has no bearing on whether a day should be counted as a resident day. "Resident day" for assisted living or any other residential services provided means a day for which payment is sought by the provider regardless of remuneration.

57."Room and board rate" means a per diem rate that is the sum of the rates established for property costs, direct room and board costs, indirect room and board costs, the operating margin for room and board and food and plant costs.

58."Routine hair care" means hair hygiene which includes grooming, shampooing, cutting, and setting.

59."Significant capacity increase" means an increase of fifty percent or more in the number of licensed beds or an increase of twenty beds, whichever is greater. It does not mean an increase by a facility which reduces the number of its licensed beds and thereafter relicenses those beds. It does not mean an increase in a facility's capacity resulting from converting beds formerly licensed as nursing facility beds.

60."Specialized facility for individuals with mental disease" means a licensed basic care facility with a licensed capacity of less than seventeen which provides treatment or services primarily to individuals with mental disease.

61."Therapeutic leave day" means any day that a resident is not in the facility or in a licensed health care facility.

62."Top management personnel" means corporate officers, general, regional, and district managers, administrators, and any other person performing functions ordinarily performed by such personnel.

63."Traumatic brain injury facility" means a licensed basic care facility which primarily provides services to individuals with traumatic brain injuries.

64."Working capital debt" means debt incurred to finance facility operating costs, but does not include debt incurred to acquire or refinance a capital asset or to refund or refinance debt associated with acquiring a capital asset.

History: Effective July 1, 1996; amended effective July 1, 1998; January 1, 2000; July 1, 2001;

February 1, 2007; October 1, 2011; July 1, 2014; April 1, 2018; October 1, 2022; January 1, 2024. 75-02-07.1-02. Financial reporting requirements.

1.Records.

a.The facility shall maintain on the premises the required census records and financial information in a manner sufficient to provide for a proper audit or review. For any cost being claimed on the cost report, sufficient data must be available as of the audit date to fully support the report item.

b.Where several facilities are associated with a group and their accounting and reports are centrally prepared, added information must be submitted, for those items known to be lacking support at the reporting facility, with the cost report or must be provided to the local facility prior to the audit or review of the facility. Accounting or financial information regarding related organizations must be readily available to substantiate cost. Home office cost reporting and cost allocation must be in conformance with applicable sections in this chapter.

c.Each provider shall maintain, for a period of not less than five years following the date of submission of the cost report to the department, accurate financial and statistical records of the period covered by such cost report in sufficient detail to substantiate the cost data reported. Each provider shall make such records available upon reasonable demand to representatives of the department.

d.Except for motor vehicles used exclusively for resident-related activities, the provider shall maintain a mileage log for all motor vehicles that identifies mileage and purpose of each trip. Vehicle mileage for nonresident-related activities must be documented.

2.Accounting and reporting requirements.

a.The accrual basis of accounting, in accordance with generally accepted accounting principles, must be used for cost reporting purposes. A facility may maintain its accounting records on a cash basis during the year, but adjustments must be made to reflect proper accrual accounting procedures at yearend and when subsequently reported. Ratesetting procedures must prevail if conflicts occur between ratesetting procedures and generally accepted accounting principles.

b.To properly facilitate auditing, the accounting system must be maintained in a manner that allows cost accounts to be grouped by cost category and readily traceable to the cost report.

c.No later than December first of each year, each facility shall provide to the department:

(1)A cost report on forms prescribed by the department.

(2)A copy of the facility's financial statement. For provider organizations that operate more than one facility, a consolidated financial report can be provided. The information must be reconciled to each facility's cost report.

(3)A statement of ownership for the facility, including the name, address, and proportion of ownership of each owner.

(a)If a privately held or closely held corporation or partnership has an ownership interest in the facility, the facility shall report the name, address, and proportion of ownership of all owners of the corporation or partnership who have an ownership interest of five percent or more, except that any owner whose compensation or portion of compensation is claimed in the facility's cost report must be identified regardless of the proportion of ownership interest.

(b)If a publicly held corporation has an ownership interest of fifteen percent or more in the facility, the facility shall report the name, address, and proportion of ownership of all owners of the publicly held corporation who have an ownership interest of ten percent or more.

(4)Copies of leases, purchase agreements, appraisals, financing arrangements, and other documents related to the lease or purchase of the facility or a certification that the content of any such document remains unchanged since the most recent statement given pursuant to this subsection.

(5)Supplemental information reconciling the costs on the financial statements with costs on the cost report.

(6)The following information, upon request by the department:

(a)Access to certified public accountant's workpapers that support audited, reviewed, or compiled financial statements.

(b)Copies of leases, purchase agreements, and other documents related to the acquisition of equipment, goods, and services claimed as allowable costs.

(c)Separate financial statements for any organization, excluding individual facilities of a chain organization owned in whole or in part by an individual or entity that has an ownership interest in the facility, together with supplemental information that reconcile costs on the financial statements to costs for the report year.

(d)Separate financial statements for any organization with which the facility conducts business and is owned in whole or in part by an individual or entity that has an ownership interest in the facility, together with supplemental information that reconcile costs on the financial statements to costs for the report year.

d.If a facility fails to file the required cost report on or before the due date, the department may reduce the current payment rate to eighty percent of the facility's most recently established rate. Reinstatement of the current payment rate must occur on the first of the month beginning after receipt of the required information, but is not retroactive.

e.A facility shall make all adjustments, allocations, and projections necessary to arrive at allowable costs. The department may reject any cost report when the information filed is incomplete or inaccurate. If a cost report is rejected, the department may reduce the current payment rate to eighty percent of its most recently established rate until the information is completely and accurately filed.

f.Costs reported must include total costs and be adjusted to allowable costs. Adjustments made by the department, to attain allowable cost, may, if repeated on future cost filings, be considered as possible fraud and abuse. The department may forward all such items identified to the appropriate investigative group.

g.The department may grant an extension of the reporting deadline to a facility for good cause. To receive an extension, a facility shall submit a written request to the department. The deadline for filing may not be extended past January fifteenth of the year following the report year.

3.In order to properly validate the accuracy and reasonableness of cost information reported by the facility, the department may provide for an onsite audit.

4.Penalties for false reports.

a.A false report is one where a facility knowingly supplies inaccurate or false information in a required report that results in an overpayment. If a false report is received, the department may:

(1)Immediately adjust the facility's payment rate to recover the entire overpayment within the rate year;

(2)Terminate the department's agreement with the provider;

(3)Prosecute under applicable state or federal law; or (4)Use any combination of the foregoing actions.

b.The department may determine a report is a false report if a provider claims previously adjusted costs as allowable costs. Previously adjusted costs being appealed must be identified as nonallowable costs. The provider may indicate that the costs are under appeal and not claimed under protest to perfect a claim if the appeal is successful.

History: Effective July 1, 1996; amended effective October 1, 2011; October 1, 2022; January 1, 2024. 75-02-07.1-03. General cost principles.

1.For ratesetting purposes, a cost must:

a.Be ordinary, necessary, and related to resident care;

b.Be what a prudent and cost-conscious business person would pay for the specific good or service in the open market in an arm's-length transaction; and

c.Be for goods or services actually provided in the facility.

2.The cost effects of transactions which circumvent these rules are not allowable under the principle that the substance of the transaction prevails over form.

3.Costs incurred due to management inefficiency, unnecessary care, unnecessary facilities, agreements not to compete, or activities not commonly accepted in the basic care industry are not allowable. 75-02-07.1-04. Participation requirement.

A facility may not receive aid to vulnerable aged, blind, and disabled individuals assistance payments unless it complies with all provisions of this section.

1.A facility shall have an effective provider agreement with the department.

2.A facility may charge to hold a bed for a period in excess of the periods covered under subsection 2 or 3 of section 75-02-07.1-05 if:

a.The resident, or a person acting on behalf of the resident, has requested the bed be held and the facility informs the person making the request, at the time of the request, of the amount of the charge; and

b.For an eligible beneficiary, the payment comes from sources other than from the beneficiary's monthly income.

3.A facility may not violate any resident rights as set forth in North Dakota Century Code section 50-10.2-02. Collection and use by a facility of financial information of any applicant pursuant to a screening process does not raise an inference that the facility is using that information for any purpose prohibited by North Dakota Century Code section 50-10.2-02 or this section.

4.A facility may not require any vendor of medical care, who is paid by medical assistance under a separate fee schedule, to pay any portion of the vendor's fee to the facility except as payment for the fair market value of renting or leasing space or equipment of the facility or purchasing support services, if those agreements are disclosed to the department.

5.A facility shall file on behalf of each resident or assist each resident in filing requests for any third-party benefits to which the resident may be entitled.

6.If a facility does not comply with this section, the department, if extreme hardship to the residents would otherwise result, may continue to make medical assistance and aid to vulnerable aged, blind, and disabled individuals program payments to the facility for a period not to exceed ninety days from the date of mailing a written notice of a violation of this section.

The facility may seek reconsideration of or appeal the department's action.

7.A facility may charge a higher rate for a private room used by an eligible beneficiary if:

a.The private room is not necessary to meet the eligible beneficiary's care needs;

b.The eligible beneficiary, or a person acting on behalf of the eligible beneficiary, has requested the private room;

c.The facility informs the individual making the request, at the time of the request, of the amount of payment and that the payment must come from sources other than the eligible beneficiary's monthly income;

d.The payment does not exceed the amount charged to private-pay individuals for use of a private room; and

e.Appropriate semiprivate accommodations are available at the time the first charges for a private room apply.

History: Effective July 1, 1996; amended effective July 1, 2001; October 1, 2011; January 1, 2024. 75-02-07.1-05. Resident census.

1.Adequate census records must be prepared and maintained on a daily basis by the facility to allow for proper audit of the census data. The daily census records must include:

a.Identification of the resident;

b.Entries for all days, and not just by exception;

c.Identification of type of day, i.e., medical care, in-house; and

d.Monthly totals by resident and by type of day.

2.A maximum of thirty days per occurrence may be allowed for payment of the room and board rate for medical care leave. Medical care leave days in excess of thirty consecutive days not billable to the aid to vulnerable aged, blind, and disabled individuals program are not resident days unless any payment is sought as provided for in subsection 2 of section 75-02-07.1-04.

3.A maximum of twenty-eight therapeutic leave days per rate year may be allowed for payment of the room and board rate. Nonbillable therapeutic leave days in excess of twenty-eight are not resident days unless any payment is sought as provided for in subsection 2 of section 75-02-07.1-04.

4.Residents admitted to the facility through a hospice program, or electing hospice benefits while in a facility, must be identified as hospice residents for census purposes.

5.Payment may not be sought for payment of the personal care rate for any day in which an eligible beneficiary is not in the facility or for the day of discharge. Payment of the personal care rate may be sought for the day of death.

History: Effective July 1, 1996; amended effective July 1, 1998; July 1, 2001; April 1, 2018; January 1, 2024. 75-02-07.1-06. Direct care costs.

Direct care costs include only those costs identified in this section.

1.Resident care.

a.Salary and employment benefits for the director or supervisor of resident care staff, inservice trainers for resident care staff, quality assurance personnel, resident care aides, medication aides, and ward clerks.

b.Routine hair and personal hygiene items and services furnished routinely and relatively uniformly to all residents; items stocked at nursing stations or on the floor in gross supply and distributed or used individually in small quantities; and items used by individual residents that are reusable, vary by the needs of the individual, and are expected to be available in the facility.

c.Medically necessary items, services, and durable medical equipment which could otherwise be billed directly to Medicaid if the facility chooses to provide them.

2.Licensed health care professionals.

a.Salary and employment benefits for the director or supervisor of licensed health care professional staff, registered nurses, licensed practical nurses, speech, occupational, and physical therapists.

b.The cost of supplies used to provide therapy, or noncapitalized therapy and resident care equipment.

3.Laundry.

a.Salary and employment benefits for a director of laundry, laundry aides, seamstresses, and other personnel who gather, transport, sort, and clean linen and clothing.

b.The cost of laundry supplies including detergents, softeners, and linens.

c.Contracted services for laundry.

4.Social services. Salary and employment benefits or consultant fees for social workers or social worker designees.

5.Activities.

a.Salary and employment benefits for activities director, activities aides, and other personnel who directly provide for leisure and recreational activities.

b.The cost of leisure and recreational activities and supplies including games, ceramics, pets, out-of-house activities, and noncapitalized exercise equipment.

History: Effective July 1, 1996; amended effective July 1, 2001; October 1, 2011. 75-02-07.1-07. Indirect care costs.

Indirect care costs include all costs specifically identified in this section. Indirect care costs must be included in total, without direct or indirect allocation to other cost categories unless specifically provided for elsewhere.

1.Administration. Costs for administering the overall activities of the facility include:

a.Salary and employment benefits for administrators, except that part of an administrator's salary may be allocated to other cost categories provided adequate records identifying the hours and services provided are maintained by the facility.

b.Salary and employment benefits for assistant administrators, top management personnel, accounting personnel, clerical personnel, secretaries, receptionists, data processing personnel, purchasing, receiving and store personnel, medical director, and salary and employment benefits of all personnel not designated in other cost categories.

c.Board of directors' fees and related travel expenses.

d.Security personnel or services.

e.Supplies except as specifically provided for in the direct care and other cost centers of the indirect care cost category.

f.Insurance, except insurance included as a fringe benefit and insurance included as part of related party lease costs.

g.Telephone.

h.Postage and freight.

i.Membership dues and subscriptions.

j.Professional fees for services such as legal, accounting, and data processing.

k.Central or home office costs including property costs, but not including costs that may be allocated to other cost centers under subsection 4 of section 75-02-07.1-12.

l.Advertising and personnel recruitment costs.

m.Management consultants and fees.

n.Business meetings, conventions, association meetings, and seminars.

o.Travel.

p.Training, including inservice training.

q.Business office functions.

r.Computer software costs, except costs that must be capitalized, and computer maintenance contracts.

s.Working capital interest.

t.Any costs that cannot be specifically classified to other cost categories.

2.Chaplain.

a.Salary and employment benefits for all personnel assigned to meet the spiritual needs of the residents.

b.Supplies and other expenses related to meeting the spiritual needs of the residents.

3.Pharmacy. Compensation for pharmacy consultants.

4.Plant operations.

a.Salary and employment benefits for a director of plant operations, engineers, carpenters, electricians, plumbers, caretakers, vehicle drivers, and all other personnel performing tasks related to maintenance or general plant operations.

b.Motor vehicle operating and resident transportation expenses.

5.Housekeeping.

a.Salary and employment benefits for a director of housekeeping, housekeepers, and other cleaning personnel.

b.Cost of cleaning supplies including soaps, waxes, polishes, household paper products such as hand towels and toilet paper, and noncapitalized cleaning equipment.

c.Contracted services for housekeeping.

6.Dietary.

a.Salary and employment benefits for a director of dietary, nutritionists, dieticians, cooks, and kitchen personnel involved in the preparation and delivery of food.

b.The cost of dietary supplies and utensils including dietary paper products, silverware, and noncapitalized kitchen and dining equipment.

7.Medical records. Salary and employment benefits for personnel performing medical records maintenance.

History: Effective July 1, 1996; amended effective July 1, 2001; April 1, 2018. 75-02-07.1-08. Property costs.

Property-related costs and pass-through costs include only those costs identified in this section.

1.Depreciation.

2.Interest expense on capital debt.

3.Property taxes including special assessments as provided for in section 75-02-07.1-17.

4.Lease and rental costs.

5.Startup costs.

6.Reasonable legal and related expenses:

a.Incurred or as a result of a successful challenge to a decision by a governmental agency, made on or after July 1, 1995, regarding a rate year beginning on or after July 1, 1995;

b.Related to legal services furnished on or after July 1, 1995; and

c.In the case of a partially successful challenge, not in excess of an amount determined by developing a ratio of total amounts claimed successfully to total amounts claimed in the partially successful challenge and applying that ratio to the total legal and related expenses paid. 75-02-07.1-08.1. Food and plant costs.

Food and plant costs include only those costs identified in this section.

1.The cost of consumable food products and dietary supplements.

2.The cost of heating and cooling, electricity, water, sewer and garbage, and cable television.

3.Repairs and maintenance contracts and purchased services.

4.Supplies necessary for repairs and maintenance of the facility, including hardware, building materials and tools, other maintenance-related supplies, and noncapitalized equipment not included elsewhere.

5.Allowable bad debt expense in the report year in which it was determined to be uncollectible with no likelihood of future recovery. The allowable bad debt expense may not exceed three hundred sixty-five days per individual.

History: Effective July 1, 2001; amended effective January 1, 2024.

General Authority: NDCC 50-06-16 75-02-07.1-09. Cost allocations.

1.Direct costing of allowable costs must be used whenever possible. For a facility that cannot direct cost, the following allocation methods must be used:

a.If a facility is combined with other residential or health care facilities, except for a nursing facility, the following allocation methods must be used:

(1)Resident care salaries that cannot be reported based on actual costs must be allocated using time studies. Time studies must be conducted at least semiannually for a two-week period or quarterly for a one-week period. Time studies must represent a typical period of time when employees are performing normal work activities in each of their assigned areas of responsibilities. Allocation percentages based on the time studies must be used starting with the next pay period following completion of the time studies or averaged for the report year. The methodology used by the facility may not be changed without approval by the department. If time studies are not completed, resident care salaries must be allocated based on revenues for resident services.

(2)Salaries for a director or supervisor of resident care or licensed health care professionals that cannot be reported based on actual costs or time studies must be allocated based on resident care salaries, licensed health care professional salaries or full-time equivalents of resident care staff, or licensed health care professional staff.

(3)Salaries for cost center supervisors must be allocated based on cost center salaries or full-time equivalents of supervised staff.

(4)Other resident care costs must be allocated based on resident days.

(5)Dietary and food costs must be allocated based on the number of meals served or in-house resident days.

(6)Laundry costs must be allocated on the basis of pounds of laundry or in-house resident days.

(7)Activity costs must be allocated based on in-house resident days.

(8)Social service costs must be allocated based on resident days.

(9)Housekeeping costs must be allocated based on weighted square footage.

(10)Plant operation costs must be allocated based on weighted square footage.

(11)Medical records costs must be allocated based on the number of admissions or discharges and deaths.

(12)Pharmacy costs for consultants must be allocated based on in-house resident days.

(13)Administration costs must be allocated on the basis of the percentage of total adjusted cost, excluding property, administration, chaplain, and utility costs, in each facility.

(14)Property costs must be allocated first to a cost center based on square footage. The property costs allocated to a given cost center must be allocated using the methodologies set forth in this section for that particular cost center.

(15)Chaplain costs must be allocated based on the percentage of total adjusted costs, excluding property, administration, and chaplain.

(16)Employment benefits must be allocated based on the ratio of salaries to total salaries.

b.If any of the allocation methods in subdivision a cannot be used by a facility, a waiver request may be submitted to the department. The request must include an adequate explanation as to why the referenced allocation method cannot be used by the facility.

The facility shall also provide a rationale for the proposed allocation method. Based on the information provided, the department shall determine the allocation method used to report costs.

c.Malpractice, professional liability insurance, therapy salaries, purchased therapy services, and resident care salaries and benefits costs for a facility combined with an optional Alzheimer's, dementia, special memory care or traumatic brain injury facility, or unit must be direct costed.

d.The costs of operating a pharmacy may not be included as facility costs.

e.For purposes of this subsection, "weighted square footage" means the allocation of the facility's total square footage, excluding common areas, identified first to a cost category and then allocated based on the allocation method described in this subsection for that cost category.

2.If a facility is combined with a nursing facility, the allocation methodologies, exceptions, and waivers set forth in chapter 75-02-06 must also be used for the facility.

3.If a facility cannot directly identify salaries and employment benefits to a cost category, the following cost allocation methods must be used:

a.Salaries must be allocated using time studies. Time studies must be conducted semiannually for a two-week period or quarterly for a one-week period. Time studies must represent a typical period of time when employees are performing normal work activities in each of their assigned areas of responsibilities. Allocation percentages based on the time studies must be used starting with the next pay period following completion of the time studies or averaged for the report year. The methodology used by the facility may not be changed without approval by the department. If time studies are not completed, salaries must be allocated entirely to indirect care costs if any of the employee's job duties are included in this cost category.

b.Employment benefits must be allocated based on the ratio of salaries in the cost center to total salaries.

4.A facility that operates or is associated with nonresident-related activities, such as apartment complexes, shall allocate all costs, except administration costs, in the manner required by subsection 1, and shall allocate administration costs as follows:

a.If total costs of all nonresident-related activities, exclusive of property, administration, chaplain, and utility costs, exceed five percent of total facility costs, exclusive of property, administration, chaplain, and utility costs, administration costs must be allocated on the

basis of the percentage of total costs, excluding property, administration, chaplain, and utility costs.

b.If total costs of all nonresident-related activities, exclusive of property, administration, chaplain, and utility costs, are less than five percent of total facility costs, exclusive of property, administration, chaplain, and utility costs, administration costs must be allocated to each activity based on the percent gross revenues for the activity is of total gross revenues except that the allocation may not be based on a percentage exceeding two percent for each activity.

c.If the provider can document, to the satisfaction of the department, that none of the facility resources or services are used in connection with the nonresident-related activities, no allocation need be made.

d.The provisions of this subsection do not apply to the activities of health care facilities associated with a facility.

5.All costs associated with a vehicle not exclusively used by a facility must be allocated between resident-related and nonresident-related activities based on mileage logs.

History: Effective July 1, 1996; amended effective July 1, 1998; January 1, 2000; October 1, 2011;

April 1, 2018. 75-02-07.1-10. Nonallowable costs.

Costs not related to resident care are costs not appropriate or necessary and proper in developing and maintaining the operation of the facility and its activities. These costs are not allowed in computing the rates. Nonallowable costs include:

1.Political contributions;

2.Salaries or expenses of a lobbyist;

3.Advertising designed to encourage potential residents to select a particular facility;

4.Fines or penalties, including interest charges on the penalty, bank overdraft charges, and late payment charges;

5.Legal and related expenses for challenges to decisions made by governmental agencies except for successful challenges as provided for in section 75-02-07.1-08;

6.Costs incurred for activities directly related to influencing employees with respect to unionization;

7.Cost of memberships in sports, health, fraternal, or social clubs or organizations such as elks, YMCA, country clubs, or knights of columbus;

8.Assessments made by or the portion of dues charged by associations or professional organizations for lobbying costs, contributions to political action committees or campaigns, or litigation, except for successful challenges to decisions made by governmental agencies, including all dues unless an allocation of dues to such costs is provided;

9.Community contributions, employer sponsorship of sports teams, and dues to civic and business organizations, i.e., lions, chamber of commerce, kiwanis, in excess of one thousand five hundred dollars per cost reporting period;

10.Home office costs not otherwise allowable if incurred directly by the facility;

11.Stockholder servicing costs incurred primarily for the benefit of stockholders or other investors that include annual meetings, annual reports and newsletters, accounting and legal fees for consolidating statements for security exchange commission purposes, stock transfer agent fees, and stockbroker and investment analysis;

12.Corporate costs not related to resident care, including reorganization costs; costs associated with the acquisition of capital stock, except otherwise allowable interest and depreciation expenses associated with the transaction described in subsection 4 of section 75-02-07.1-13; and costs relating to the issuance and sale of capital stock or other securities;

13.The full cost of items or services such as telephone, radio, and television, including cable hookups or satellite dishes, located in resident accommodations, excluding common areas, furnished solely for the personal comfort of the residents;

14.Fundraising costs, including salaries, advertising, promotional, or publicity costs incurred for such a purpose;

15.The cost of any equipment, whether owned or leased, not exclusively used by the facility except to the extent that the facility demonstrates, to the satisfaction of the department, that any portion of the use of equipment was related to resident care;

16.Costs, including, by way of illustration and not by way of limitation, legal fees, accounting and administration costs, travel costs, and the costs of feasibility studies, attributed to the negotiation or settlement of the sale or purchase of any capital assets, whether by sale or merger, when the cost of the asset has been previously reported and included in the rate paid to any health care facility or basic care facility;

17.Costs incurred by the provider's subcontractors or by the lessor of property that the provider leases, that are an element in the subcontractor's or lessor's charge to the provider, if the costs would not have been allowable had the costs been incurred by a provider directly furnishing the subcontracted services, or owning the leased property, except no facility shall have a particular item of cost disallowed under this subsection if that cost arises out of a transaction completed before July 1, 1995;

18.The cost, in excess of charges, of providing meals and lodging to facility personnel living on premises;

19.Depreciation expense for facility assets not related to resident care;

20.Nonbasic care facility operations and associated administration costs;

21.All costs for services paid directly by a government entity to an outside provider, such as prescription drugs;

22.Travel costs involving the use of vehicles not exclusively used by the facility except to the extent:

a.The facility supports vehicle travel costs with sufficient documentation to establish that the purpose of the travel is related to resident care;

b.Resident-care related vehicle travel costs do not exceed a standard mileage rate established by the internal revenue service; and

c.The facility documents all costs associated with a vehicle not exclusively used by the facility;

23.Travel costs other than vehicle-related costs unless supported, reasonable, and related to resident care;

24.Additional compensation paid to an employee, who is a member of the board of directors, for service on the board;

25.Fees paid to a member of a board of directors for meetings attended to the extent that the fees exceed the compensation paid, per day, to a member of the legislative council, pursuant to North Dakota Century Code section 54-35-10;

26.Travel costs associated with a board of directors meeting to the extent the meeting is held in a location where the organization has no facility;

27.The costs of deferred compensation and pension plans that discriminate in favor of certain employees, excluding the portion which relates to costs that benefit all eligible employees;

28.Premiums for top management personnel life insurance policies, except that the premiums must be allowed if the policy is included within a group policy provided for all employees, or if the policy is required as a condition of mortgage or loan and the mortgagee or lending institution is listed as the sole beneficiary;

29.Personal expenses of owners and employees, including vacations, personal travel, and entertainment;

30.Costs not adequately documented through written documentation, date of purchase, vendor name, listing of items or services purchased, cost of items purchased, account number to which the cost is posted, and a breakdown of any allocation of costs between accounts or facilities;

31.The following taxes:

a.Federal income and excess profit taxes, including any interest or penalties paid thereon;

b.State or local income and excess profit taxes;

c.Taxes in connection with financing, refinancing, or refunding operation, such as taxes on the issuance of bonds, property transfers, or issuance or transfer of stocks, which are generally either amortized over the life of the securities or depreciated over the life of the asset, but not recognized as tax expense;

d.Taxes, including real estate and sales tax, for which exemptions are available to the provider;

e.Taxes on property not used in the provision of covered services;

f.Taxes, including sales taxes, levied against the residents and collected and remitted by the provider; and

g.Self-employment (FICA) taxes, applicable to persons such as individual proprietors, partners, or members of a joint venture;

32.The unvested portion of a facility's accrual for sick or annual leave;

33.Salaries accrued at a facility's fiscal yearend but not paid within seventy-five days of the facility's fiscal yearend;

34.Employment benefits associated with salary costs not includable in a rate set under this

chapter;

35.The cost, including depreciation, of equipment or items purchased with funds received from a government agency;

36.Hair care, other than routine hair care, furnished by the facility;

37.The cost of education unless:

a.The education was provided by an accredited academic or technical educational facility;

b.The expenses were for materials, books, or tuition;

c.The employee was enrolled in a course of study intended to prepare the employee for a position at the facility and is in that position; and

d.The facility claims the cost of the education at a rate that does not exceed one dollar per hour of work performed by the employee in the position for which the employee received education at the facility's expense, provided the amount claimed per employee may not exceed two thousand dollars per year, or an aggregate of eight thousand dollars, and in any event may not exceed the cost to the facility of the employee's education;

38.Repealed effective July 1, 1999.

39.Increased lease costs of a provider except to the extent:

a.The lessor incurs increased costs related to the ownership of the facility or a resident-related asset;

b.The increased costs related to the ownership are charged to the lessee; and

c.The increased costs related to the ownership would be allowable had the costs been incurred directly by the lessee;

40.Bad debts expense in excess of subsection 5 of section 75-02-07.1-08.1;

41.Costs associated with or paid for the acquisition of licensed basic care capacity; and

42.Goodwill.

History: Effective July 1, 1996; amended effective July 1, 1998; January 1, 2000; January 1, 2024. 75-02-07.1-11. Offsets to costs.

1.Several items of income must be considered as offsets against various costs as recorded in the books of the facility. Income received by the facility in any form must be offset up to the total of the appropriate allowable costs, with the following exceptions:

a.The established rate;

b.Income from payments made under the Job Training Partnership Act;

c.Income from charges for private rooms or special services;

d.Noncovered bed hold days; or

e.The deferred portion of patronage dividends credited to the facility and not previously offset.

2.If actual costs are not identifiable, income must be offset up to the total of costs as described in this section. If costs relating to income are reported in more than one cost category, the income must be offset in the ratio of the costs in each of the cost categories. Sources of income and the related offset include:

a.Activities income. Income from the activities department and the gift shop must be offset to activity costs.

b.Bad debt recovery. Income for bad debts previously claimed must be offset to administration costs in total in the year of recovery.

c.Dietary income. Amounts received from or on behalf of employees, guests, or other nonresidents for lunches, meals, or snacks must be offset to dietary and food costs.

d.Drugs or supplies income. Amounts received from the sale of resident care supplies to employees, doctors, or others not admitted as residents must be offset to resident care supplies.

e.Insurance recoveries income. Any amount received from insurance for a loss incurred must be offset against the appropriate cost category, regardless of when or if the cost is incurred, if the facility did not adjust the basis for depreciable assets.

f.Interest or investment income. Interest received on investments, except amounts earned on funded depreciation or from earnings on gifts where the identity remains intact, must be offset to interest expense.

g.Laundry income. All amounts received for laundry services rendered to or on behalf of employees, doctors, or others must be offset to laundry costs.

h.Other cost-related income. Miscellaneous income, including amounts generated through the sale of a previously expensed or depreciated item, e.g., supplies or equipment, must be offset, in total, to the cost category where the item was expensed or depreciated.

i.Rentals of facility space income. Revenues received from outside sources for the use of facility space and equipment must be offset to property costs.

j.Telephone income. Revenues received from residents, guests, or employees for use of a telephone must be offset to administration costs. Income from emergency answering services need not be offset.

k.Therapy income. Income from all therapy services must be offset to licensed health care professional costs.

l.Vending income. Income from the sale of beverages, candy, or other items must be offset to the cost of the vending items or, if the cost is not identified, all vending income must be offset to the cost category where vending costs are recorded.

3.Purchase discounts, allowances, refunds, and rebates are reductions of the cost of whatever was purchased.

4.Payments to a provider by its vendor must ordinarily be treated as purchase discounts, allowances, refunds, or rebates, even though these payments may be treated as "contributions" or "unrestricted grants" by the provider and the vendor. Payments that represent a true donation or grant need not be treated as purchase discounts, allowances, refunds, or rebates. Examples of payments that represent a true donation or grant include contributions made by a vendor in response to building or other fundraising campaigns in which communitywide contributions are solicited or when the volume or value of purchases is so nominal that no relationship to the contribution can be inferred. The provider shall provide verification, satisfactory to the department, to support a claim that a payment represents a true donation.

5.Where an owner, agent, or employee of a provider directly receives from a vendor monetary payments or goods or services for the owner's, agent's, or employee's own personal use as a result of the provider's purchases from the vendor, the value of the payments, goods, or services constitutes a type of refund or rebate and must be applied as a reduction of the provider's cost for goods or services purchased from the vendor.

6.Where the purchasing function for a provider is performed by a central unit or organization, all discounts, allowances, refunds, and rebates must be credited to costs of the provider and may not be treated as income by the central unit or organization or used to reduce the administrative costs of the central unit or organization.

History: Effective July 1, 1996; amended effective July 1, 1998; July 1, 2016. 75-02-07.1-12. Home office costs.

1.Home offices of chain organizations vary greatly in size, number of locations, staff, mode of operations, and services furnished to member facilities. Although the home office of a chain is normally not a provider in itself, it may furnish central administration or other services including centralized accounting, purchasing, personnel, or management services. To the extent the home office furnishes services related to resident care to a facility, the reasonable resident-related costs, not to exceed actual costs of the services, are includable in the facility's cost report and are includable as part of the facility's rate.

2.Where the home office makes a loan to or borrows money from one of the components of a chain organization, the interest paid is not an allowable cost and interest income is not used to offset interest expense.

3.Home office costs incurred for expansion of a chain organization must be directly allocated to the appropriate component of the chain. The costs of abandoned plans are not allowable.

4.Central or home office costs representing services of consultants required by law in areas for social services, nursing, therapies, or activities and central, affiliated, or corporate office costs representing services of consultants not required by law in the areas of resident care may be allocated to the appropriate cost category of a facility according to subdivisions a through e.

a.Only the salaries and employment benefits associated with the individual performing the service may be allocated. No other costs may be allocated.

b.The allocation must be based on direct identification and only to the extent justified in time distribution records that show the actual time spent by the consultant performing the services in the facility.

c.The cost in subdivision a for each consultant may not be allocated to more than one cost category in the facility. If more than one facility is served by a consultant, all facilities shall allocate the consultant's cost to the same operating category.

d.Top management personnel may not be considered consultants.

e.An allocation may not be made unless the consultant's full-time responsibilities are to provide the services identified in this section. 75-02-07.1-13. Related organizations.

1.Except as provided in subsection 4, costs applicable to services, facilities, and supplies furnished to a provider by a related organization may not exceed the lower of the cost to the related organization or the price of comparable services, facilities, or supplies purchased elsewhere primarily in the local market. The provider shall identify the related organizations and costs in the cost report.

2.A provider may lease a facility from a related organization within the meaning of ratesetting principles. In such case, the rent paid to the lessor by the provider is not allowable as cost.

The provider may include in its cost the allowable costs of ownership of the facility. These costs are property insurance, depreciation as provided for in section 75-02-07.1-15, interest on the mortgage as provided for in section 75-02-07.1-16, and real estate taxes as provided for in section 75-02-07.1-17. Other operating expenses of the related organization, relating to the leased facility, are not includable by the provider as an allowable cost of ownership, but may be included as allowable operating expenses subject to subsection 1.

3.The relationship between a provider and a related organization at the time a transaction between the two parties occurs must govern the treatment of cost regardless of subsequent events that may change the relationship between the parties.

4.In the case of a facility acquired through purchase of shares, interest and depreciation expense are treated in the same manner as if the capital assets of the acquired corporation were acquired as an ongoing operation by the acquiring entity on the day the secretary of state issues a certificate of dissolution of the acquired corporation if organized in North Dakota, or on the day the acquired corporation is irrevocably dissolved if organized other than in North Dakota, provided the transaction has all of the following characteristics:

a.The facility was owned and operated by the acquired corporation;

b.The acquired corporation is irrevocably dissolved, and all of its capital assets become the property of the acquiring entity, within one year after the first day on which any ownership interest in the acquired corporation was acquired by the acquiring entity; and

c.Neither the acquiring entity nor any related organization of the acquiring entity has had any ownership interest in the acquired corporation, or any ownership interest in any related organization of the acquired corporation, for at least ten years prior to the day the acquiring entity, or a related organization of the acquiring entity, first acquired any ownership interest in the acquired corporation.

5.For purposes of subsection 4, "acquiring entity" means the entity that, upon dissolution of the acquired corporation, owns all the capital assets formerly owned by the acquired corporation. 75-02-07.1-14. Compensation.

1.Compensation on an annual basis for top management personnel must be limited, prior to allocation, if any, to the greatest of:

a.The highest market-driven compensation of an administrator employed by a freestanding not-for-profit facility during the previous report year increased by the consumer price index for all urban consumers, United States city average, all items;

b.If the facility is combined with a nursing facility or hospital, the compensation limit for top management personnel as determined by chapter 75-02-06, except the allocation of the compensation to the basic care facility may not exceed subdivision a; or

c.For a facility licensed before July 1, 2016, which is located in North Dakota and shares a home office that is also located in North Dakota with no more than two nursing facilities that are located in North Dakota, but whose cost report does not include nursing facility costs, the compensation limit for top management personnel as determined by chapter 75-02-06, except the allocation of the compensation to the basic care facility may not exceed subdivision a.

2.Compensation for top management personnel employed for less than a year must be limited to an amount equal to the limitation described in subsection 1, divided by three hundred sixty-five times the number of calendar days the individual was employed.

3.Compensation includes:

a.Salary for managerial, administrative, professional, and other services;

b.Amounts paid for the personal benefit of the individual, e.g., housing allowance, flat-rate automobile allowance;

c.The cost of assets and services the individual receives from the provider;

d.Deferred compensation, pensions, and annuities;

e.Supplies and services provided for the personal use of the individual;

f.The cost of a domestic or other employee who works in the home of the individual; or

g.Life and health insurance premiums paid for the individual and medical services furnished at facility expense.

4.Reasonable compensation for a person with at least five percent ownership, individuals on the governing board, or any individual related within the third degree of kinship to top management personnel must be considered an allowable cost if services are actually performed and required to be performed. The amount to be allowed must be an amount determined by the department to be equal to the amount required to be paid for the same services if provided by a nonrelated employee to a North Dakota facility. Reasonableness also requires that functions performed be necessary in that, had the services not been rendered, the facility would have to employ another person to perform them. Reasonable hourly compensation may not exceed the amount determined under subsection 1, divided by two thousand eighty.

5.Costs otherwise nonallowable under this chapter may not be included as compensation.

History: Effective July 1, 1996; amended effective July 1, 1998; October 1, 2011; July 1, 2011; April 1, 2018; October 1, 2022; January 1, 2024.

General Authority: NDCC 50-06-16, 50-24.5-02(3), 50-24.5-10

Law Implemented: NDCC 50-24.5-02(3), 50-24.5-10 75-02-07.1-15. Depreciation.

1.Ratesetting principles require that payment for services include depreciation on all capital assets used to provide necessary services.

a.Capital assets that may have been fully or partially depreciated on the books of the provider, but are in use at the time the provider enters the program, may be depreciated.

The useful lives of such assets are considered not to have ended and depreciation calculated on the revised extended useful life is allowable. To properly provide for costs or the valuation of such assets, an appraisal is required if the provider has no historical cost records or has incomplete records of the capital assets.

b.A depreciation allowance is permitted on assets used in a normal standby or emergency capacity.

c.If any depreciated personal property asset is sold or disposed of for an amount different than its undepreciated value, the difference represents an incorrect allocation of the cost of the asset to the facility and must be included as a gain or loss on the cost report. The facility shall use the sale price in computing the gain or loss on the disposition of assets.

2.Depreciation methods.

a.The straight-line method of depreciation must be used. All accelerated methods of depreciation, including depreciation options made available for income tax purposes, such as those offered under the asset depreciation range system, may not be used. The method and procedure for computing depreciation must be applied on a basis consistent from year to year and detailed schedules of individual assets must be maintained. If the books of account reflect depreciation different from that submitted on the cost report, a reconciliation must be prepared by the facility.

b.Except as provided in subdivision c, a provider shall apply the same methodology for determining the useful lives of all assets purchased after June 30, 1995. If a composite useful life methodology is chosen, the provider may not thereafter use the depreciation guidelines without the department's written approval. The provider shall use, at a minimum, the depreciation guidelines to determine the useful life of buildings and land improvements. The provider may use:

(1)A composite useful life of ten years for all equipment except automobiles and five years for automobiles; or (2)The useful lives for all equipment identified in the depreciation guidelines and a useful life of ten years for all equipment not identified in the depreciation guidelines.

c.A provider acquiring assets as an ongoing operation shall use as a basis for determining depreciation:

(1)The estimated remaining life, as determined by a qualified appraiser, for land improvements, buildings, and fixed equipment; and (2)A composite remaining useful life for movable equipment, determined from the seller's records.

3.Acquisitions.

a.If a depreciable asset has, at the time of its acquisition, a historical cost of at least one thousand dollars for each item, its cost must be capitalized and depreciated over the estimated useful life of the asset. Costs incurred during the construction of an asset, such as architectural, consulting and legal fees, and interest, must be capitalized as a

part of the cost of the asset.

b.All repair or maintenance costs in excess of five thousand dollars per project on equipment or buildings must be capitalized and depreciated over the remaining useful life of the equipment or building repaired or maintained, or one-half of the original estimated useful life, whichever is greater.

4.Proper records must provide accountability for the fixed assets and provide adequate means by which depreciation can be computed and established as an allowable resident-related cost.

Tagging of major equipment items is not mandatory, but alternate records must exist to satisfy audit verification of the existence and location of the assets.

5.Donated assets, excluding assets acquired as an ongoing operation, may be recorded and depreciated based on fair market value. In the case where the provider's records do not contain the fair market value of the donated asset, as of the date of the donation, an appraisal may be made. The appraisal must be made by a recognized appraisal expert and must be accepted for depreciation purposes. The useful life of a donated asset must be determined in accordance with subsection 2. The facility may elect to forego depreciation on a donated asset thereby negating the need for a fair market value determination.

6.Basis for depreciation of assets acquired as an ongoing operation.

a.Determination of the cost basis of a facility and its depreciable assets acquired as an ongoing operation depends on whether or not the transaction is a bona fide sale. Should the issue arise, the purchaser has the burden of proving that the transaction was a bona fide sale. Purchases where the buyer and seller are related organizations are not bona fide.

b.The cost basis of a facility and its depreciable assets acquired in a bona fide sale after July 1, 1995, is limited to the lowest of:

(1)Purchase price paid by the purchaser;

(2)Fair market value at the time of the sale; or (3)The seller's cost basis, increased by one-half of the increase in the consumer price index for all urban consumers, United States city average, all items, from the date of acquisition by the seller to the date of acquisition by the buyer, less accumulated depreciation recognized for cost reporting purposes.

c.In a sale not bona fide, the cost basis of an acquired facility and its depreciable assets is the seller's cost basis, less accumulated depreciation recognized for cost reporting purposes as of the end of the report year immediately preceding the date of acquisition by the buyer.

d.The cost basis of a facility and its depreciable assets acquired through donation or for a nominal amount is the cost basis of the seller or donor, less accumulated depreciation recognized for cost reporting purposes as of the end of the report year immediately preceding the date of acquisition by the buyer or donee.

e.In order to calculate the increase over the seller's cost basis, an increase may be allowed, under paragraph 3 of subdivision b, only for assets with a historical cost basis established separately and distinctly in the seller's depreciable asset records.

f.For purposes of this subsection, "date of acquisition" means the date when ownership of the depreciable asset transfers from the transferor to the transferee such that both are bound by the transaction. For purposes of transfers of real property, the date of acquisition is the date of delivery of the instrument transferring ownership. For purposes of titled personal property, the date of acquisition is the date the transferee receives a title acceptable for registration. For purposes of all other capital assets, the date of acquisition is the date the transferee possesses both the asset and an instrument, describing the asset, which conveys the property to the transferee.

7.An adjustment may not be allowed for any depreciable cost that exceeded the basis in effect for rate periods prior to July 1, 1995.

8.The department shall establish a cost basis limitation for construction or renovation of a facility. A per bed cost limitation must be used to determine the total allowable cost basis of buildings and fixed equipment for a facility with construction, renovation, or remodeling.

a.Effective August 1, 2009, the per bed limitation basis for double occupancy is one hundred twelve thousand seven hundred thirty-two dollars.

b.The per bed limitation basis for single occupancy must be calculated using the limitation determined in subdivision a, multiplied by one and one-half.

c.The existing per bed limitations for single and double occupancy must be adjusted annually on July first, using the increase, if any, in the consumer price index for all urban consumers, United States city average, all items, for the twelve-month period ending the preceding May thirty-first.

d.The per bed limitations in effect at the time a construction, renovation, or remodeling project is put in service must be multiplied times the number of beds in double and single occupancy rooms to establish the maximum allowable cost basis of buildings and fixed equipment.

e.The cost basis of a facility's buildings and fixed equipment must be limited to the lower of the recorded cost of total facility buildings and fixed equipment or the per bed limitations.

History: Effective July 1, 1996; amended effective July 1, 1998; October 1, 2011. 75-02-07.1-16. Interest expense.

1.To be allowable, interest expense must meet all of the following criteria:

a.Interest expense must be supported by evidence of an agreement that funds were borrowed and that payment of interest and repayment of the funds is required.

b.Interest expense must be identifiable in the facility's accounting records.

c.Interest expense must be related to the reporting period in which the costs are incurred.

d.Interest expense must be necessary and proper for the operation, maintenance, or acquisition of the facility.

e.Interest expense must not relate to funds borrowed to finance costs of assets in excess of the depreciable cost basis established at the time of purchase as recognized in section 75-02-07.1-15.

f.If associated with refinancing or refunding debt, interest expense associated with the original borrowing must have been allowable when the debt was initially incurred.

g.If associated with borrowing for the purpose of acquiring assets as an ongoing operation in a bona fide sale, interest expense must be limited to the amount of interest associated with borrowing, occurring at the time of the sale, that does not exceed ninety percent of the cost basis as determined in subsection 6 of section 75-02-07.1-15.

h.In a sale not bona fide, interest expense may not exceed the amount that would have been allowable had the sale not occurred.

2.In cases where it is necessary to issue bonds for financing, any bond premium or discount must be amortized over the life of the bond issue.

3.Interest paid by the provider to partners, stockholders, or related organizations of the provider is not allowable as a cost. Where the owner loans funds to a facility, the funds are considered capital, rather than borrowed funds.

4.If a facility incurs interest expense because of late payments for resident services and charges a service charge or interest for late payments, the income must be offset against interest expense. If no interest expense is incurred by the facility because of late payments for resident services, service charges or interest paid must be offset against administration expenses.

5.For refinanced or refunded debt, the total net aggregate allowable costs to be incurred for all reporting periods may not exceed the total net aggregate costs that would have been allowed had the refinancing or refunding not occurred. Annual allowable costs must be limited to the lesser of the cost that would have been allowed had the refinancing or refunding not occurred or the costs associated with the refinancing or refunding plus the portion, if any, of adjustments not recognized in prior cost reporting periods.

6.Interest on operating loans paid more than three years after the borrowing is not allowable.

7.Interest expense must be allocated between allowable and nonallowable expense based on the ratio of the principal balance of allowable debt to the principal balance of nonallowable debt at the time the debt was incurred, except that the ratio may be adjusted to reflect principal payments on nonallowable debt made in excess of scheduled repayments, provided no funded depreciation or borrowed funds are used to make the excess principal payments.

8.For purposes of this section:

a."Necessary" means that the interest is incurred on debt made to satisfy a financial need of the facility and for a purpose reasonably related to resident care; and

b."Proper" means that the interest is incurred at a rate not in excess of what a prudent borrower would be obliged to pay in an arm's-length transaction and is incurred on debt made by a lender that is not a related organization, except for funds borrowed in accordance with section 75-02-07.1-19. 75-02-07.1-17. Taxes.

1.Taxes assessed against the provider, in accordance with the levying enactments of the several states and lower levels of government and for which the provider is liable for payment, are allowable costs. Tax expense may not include fines, penalties, or those taxes identified as nonallowable costs in section 75-02-07.1-10.

2.Whenever exemptions to taxes are legally available, the provider is to take advantage of them. If the provider does not take advantage of available exemptions, the expense incurred for the taxes is not an allowable cost.

3.Special assessments in excess of one thousand dollars paid in a lump sum must be capitalized and depreciated. Special assessments not paid in a lump sum may be expensed as they are billed by the taxing authority. 75-02-07.1-18. Startup costs.

In the first stages of operation, a new facility incurs certain costs in developing its ability to care for residents prior to admission. Staff is obtained and organized, and other operating costs are incurred during this time of preparation that cannot be allocated to resident care because there are no residents receiving services. These costs are commonly referred to as startup costs. Actual allowable startup costs may be considered as deferred charges and allocated over a number of periods that benefit from the costs. Where a facility has properly capitalized startup costs as a deferred charge, the startup costs must be recognized as allowable costs amortized over sixty consecutive months starting with the month in which the first resident is admitted. 75-02-07.1-19. Funded depreciation.

1.Funding of depreciation is the practice of placing funds, including nonborrowed bond reserve and sinking funds, in a segregated account for the acquisition of capital assets used in rendering resident care or for other capital purposes related to resident care. Other capital purposes include capital debt liquidation, such as principal payments for bonds and mortgages.

2.All provisions of this subsection must be met in order to qualify as funding of depreciation. If the provisions are not met, income earned on investments must be offset to interest expense.

a.The action to fund depreciation must be approved by the appropriate managing body of the facility.

b.The fund or funds must be clearly designated in the facility's records as funded depreciation.

c.Funded depreciation (total market value of fund) must be available, unless contractually committed as provided in subsections 8 and 9, on an as-needed basis for the acquisition of the facility's capital assets used to render resident care, or for other capital purposes related to resident care. Loans made from funded depreciation do not alter the requirement that funded depreciation must be available.

d.Income earned on investments in the fund must be deposited in and become part of the funded depreciation account.

e.Deposits to the funded depreciation account must remain for six months or more to be considered as funded depreciation. Deposits of less than six months are not eligible for the benefits of the funded depreciation account. Investment income earned prior to elapse of the six-month period may not be offset unless the deposits are actually withdrawn and then only if the withdrawal is not for capital purposes.

f.Funded depreciation may not be restricted for a specific or future purpose.

g.When a provider invests or transfers the assets of the fund to a home office of a chain organization or the motherhouse or governing body of a religious order or to other related parties, the assets are considered to be the facility's funds and are subject to all provisions of this section.

3.Total funded depreciation from deposits in excess of accumulated depreciation on resident-related assets must be considered as ordinary investments and the income therefrom must be used to offset interest expense.

4.Withdrawals for the acquisition of capital assets, the payment of mortgage principal on the assets, and other capital expenditures are on a first-in, first-out basis. Withdrawals for general operating purposes or for loans to the general fund are made on a last-in, first-out basis.

5.The facility may borrow from funded depreciation to obtain working capital for normal operating expenses used for resident care. In addition, the facility may borrow from funded depreciation accounts of related health care facilities if the funded depreciation accounts of the related facilities are maintained in accordance with health care financing administration regulations. The interest incurred by the general fund is allowable provided the loans are necessary and proper, and provided the funds withdrawn have met the six-month funding requirement. If the funds withdrawn do not meet the six-month funding requirement, interest paid on the loan is not an allowable cost. Funds loaned from funded depreciation under the provisions of this subsection are treated as available funded depreciation for purposes of this

section. Costs incurred to secure lines of credit to ensure availability are not allowable costs.

6.Interest paid by the general fund to the funded depreciation account is not an allowable cost if the facility borrows the funds to acquire capital assets. The facility is expected to use funded depreciation for that purpose.

7.Deposits of funds into the funded depreciation account must be first applied to reduce loans outstanding from the funded depreciation account to the general fund. Until such loans, including related-party loans, are repaid in full, funds deposited in the funded depreciation account must be considered as repayments on the loans and any subsequent interest expense of the general fund to the extent of the repaid loans is not allowable.

8.Available funded depreciation must be withdrawn and used before resorting to borrowing for the acquisition of capital assets or other capital purposes. Because it is frequently difficult to time a bond offering or other borrowing to coincide with the exhaustion of available funded depreciation, it is sufficient if available funded depreciation is contractually committed to and expended during the course of construction.

9.Funds are considered available unless committed, by virtue of contractual arrangements, to the acquisition of capital assets used to render resident care, or to other capital purposes.

Borrowing for a purpose intended by funded depreciation is unnecessary to the extent funded depreciation is available. Thus, interest expense for borrowing up to the amount of available funded depreciation is not an allowable cost.

10.When funded depreciation is used by the facility for other than the acquisition of capital assets, other capital purposes related to resident care, or loans to the general fund for current operating costs, the income earned on these funds while on deposit in the funded account must be adjusted in the report year the withdrawal was made. The adjustment must include all offsets not made in prior reporting periods for earnings applicable to the funds.

11.Borrowing for a purpose for which funded depreciation account funds may have been used makes the borrowing unnecessary to the extent that funded depreciation account funds were available at the time of the borrowing. Available funds in the funded depreciation account, to the extent of the unnecessary borrowing, are tainted funds. Interest expense incurred on borrowing for a capital purpose is not an allowable cost to the extent that funded depreciation account funds were available at the time of the borrowing.

12.A provider may remove the unnecessary characterization of borrowing, and thereby cure tainted funded depreciation, by using the tainted funds for a proper purpose described in subsection 1. Any funded depreciation that existed at the time of the unnecessary borrowing and is not classified as tainted must be used before any of the tainted funds.

13.When only a portion of the borrowing is considered unnecessary under subsection 11, subsequent repayments of the borrowing from general funds must first be applied to the allowable portion of the borrowing and then, when all of the allowable borrowing is repaid, to the unallowable portion of the borrowing. When funds from the funded depreciation account are used for the repayment of the unnecessary borrowing, an equivalent amount of tainted funds is cured without regard to the provisions of subsections 11 and 12. Where general funds are used to pay for the unallowable borrowing after the necessary borrowing has been repaid, an equivalent amount of tainted funded depreciation is cured without regard to the provisions of subsections 11 and 12. 75-02-07.1-20. Rate calculation.

1.For each cost category, the actual rate is calculated using allowable historical operating costs plus adjustment factors provided for in section 75-02-07.1-21 for the direct care, indirect care, and food and plant cost categories, divided by in-house resident days for the direct care and indirect care cost categories and resident days for the food and plant and property cost categories. The actual rate as calculated for direct care and indirect care is compared to the limit rate for each category to determine the lesser of the actual rate or the limit rate. The lesser of the actual rates or the limit rates for the direct personal care and indirect personal care costs and the operating margin are added to establish the facility's personal care rate.

The rates for property costs, food and plant costs, the operating margin for room and board, and the lesser of the actual rates or the limit rates for direct room and board and indirect room and board costs are added to establish the facility's room and board rate. The sum of the personal care rate and the room and board rate is the facility's established rate.

2.The established rate for a licensed nursing facility providing services to an eligible beneficiary is:

a.For a nursing facility that shares basic services with a licensed basic care facility, the rate established for the licensed basic care facility as provided for in subsection 1; and

b.For a nursing facility that does not share basic services with a licensed basic care facility, the sum of the limit rates for direct care and indirect care costs, the maximum three percent operating margin calculated in section 75-02-07.1-21, and a rate calculated using allowable food and plant and property costs and census used in establishing the nursing facility's current rate under chapter 75-02-06.

History: Effective July 1, 1996; amended effective July 1, 1999; July 1, 2001; October 1, 2011. 75-02-07.1-21. Adjustment factor for direct care, indirect care, and food and plant costs.

1.The adjustment factor must be applied to adjust historical costs. The adjustment factor must be used to adjust direct care, indirect care, and food and plant costs, exclusive of bad debt expense.

2.Historical costs must be adjusted to December thirty-first of a report year using the increase, if any, in the consumer price index, urban wage earners and clerical workers, United States city average, all items, over the period ending December thirty-first of the report year, and beginning at the end of the month within which the report period ends. The increase, if any, must be applied prior to any application of the adjustment factor.

History: Effective July 1, 1996; amended effective July 1, 2001; July 2, 2002; October 1, 2011;

January 1, 2024; January 1, 2026. 75-02-07.1-22. Rate limitations.

Historical costs, as adjusted, for all facilities for which a rate is established excluding specialized facilities for individuals with mental disease, must be used in the establishment of a limit rate for the direct care and indirect care cost categories. The actual rate for each cost category for each facility must be determined in accordance with this chapter. When establishing a facility's rate:

1.Except for a specialized facility for individuals with mental disease, a facility with an actual rate that exceeds the limit rate for direct care cost category shall receive the limit rate for that cost category;

2.A specialized facility for individuals with mental disease with an actual rate that exceeds two times the limit rate for the direct care cost category shall receive the limit rate times two for that cost category; and

3.A facility with an actual rate that exceeds the limit rate for the indirect care cost category shall receive the limit rate for that cost category. A facility shall receive an operating margin of three percent based on the lesser of the actual direct care rate, exclusive of the adjustment factor, or the direct care limit rate, exclusive of the adjustment factor, established for the rate year.

4.The July 1, 2023, direct care limit rate is seventy-six dollars and ninety-one cents.

5.The July 1, 2023, indirect care limit rate is sixty-two dollars and seventy-nine cents.

6.The department may use an adjustment factor to calculate the direct care and indirect care limits for future rate years within legislative appropriation.

History: Effective July 1, 1996; amended effective July 1, 1998; July 1, 1999; amendments partially voided by the Administrative Rules Committee effective June 5, 2000; amended July 1, 2001;

February 1, 2007; October 1, 2011; July 1, 2014; April 1, 2018; January 1, 2024. 75-02-07.1-23. Rates.

1.Desk audit rate.

a.The cost report must be reviewed taking into consideration the prior year's adjustments.

The facility must be notified by telephone or electronic mail of any adjustments based on the desk review. Within seven working days after notification, the facility may submit information to explain why the desk adjustment may not be made. The department shall review the information and make any appropriate adjustments.

b.The desk audit rate must be effective July first of each rate year unless the department specifically identifies an alternative effective date, and must continue in effect until a final rate is established.

c.The desk rate may be adjusted for special rates or one-time adjustments provided for in

section 75-02-07.1-25 or 75-02-07.1-26.

d.The desk rate may be adjusted to reflect errors, omissions, or adjustments for the report year that results in a change of at least twenty-five cents per day.

2.Final rate.

a.The cost report may be field audited to establish a final rate. If no field audit is performed, the desk audit rate must become the final rate upon notification from the department. The final rate is effective July first of each rate year unless the department specifically identifies an alternative effective date.

b.The final rate must include any adjustments for nonallowable costs, errors, or omissions found during a field audit or reported by the facility and that result in a change from the desk audit rate of at least twenty-five cents per day.

c.The final rate may be revised at any time for special rates or one-time adjustments provided for in section 75-02-07.1-25 or 75-02-07.1-26.

d.If adjustments, errors, or omissions are found after a final rate has been established, the following procedures must be used:

(1)Adjustments, errors, or omissions found within twelve months of the date of notification of the final rate not including subsequent revisions, and resulting in a change of at least twenty-five cents per day, must result in a change to the final rate.

The change must be applied retroactively as provided for in this section.

(2)Adjustments, errors, or omissions found later than twelve months after the establishment of the final rate not including subsequent revisions, and that would have resulted in a change of at least twenty-five cents per day had they been included, must be included as an adjustment on the latest filed cost report.

(3)Adjustments resulting from an audit of home office costs, and that result in a change of at least twenty-five cents per day, must be included as an adjustment in the report year in which the costs were incurred.

(4)The two report years immediately preceding the report year to which the adjustments, errors, or omissions apply may also be reviewed for similar adjustments, errors, or omissions.

3.Adjustment of the total payment rate. The final rate as established must be retroactive to the effective date of the desk rate.

History: Effective July 1, 1996; amended effective July 1, 1998; January 1, 2002; July 1, 2014. 75-02-07.1-24. Rate payments.

1.The established rate must be considered as payment for all accommodations and includes all items includable as allowable under this chapter for an eligible beneficiary. No payment may be solicited or received from the eligible beneficiary or any other person to supplement the rate as established, unless otherwise provided for in this chapter.

2.The department may supplement the income of an eligible beneficiary receiving necessary basic care services only if the lowest rate charged to private-pay residents equals or exceeds the established rate. If at any time the facility discounts rates for private-pay residents, the discounted rate must be the maximum chargeable to an eligible beneficiary for the same bed type, including medical leave or therapeutic leave days.

3.If the established rate exceeds the rate charged to a private-pay resident on any given date, the facility shall immediately report that fact to the department and charge an eligible beneficiary at the lower rate. If payments were received at the higher rate, the facility shall, within thirty days, refund the overpayment to the department. The refund must be the difference between the established rate and the rate charged the private-pay residents times the number of resident days paid for eligible beneficiaries during the period in which the established rate exceeded the rate charged to the private-pay residents, plus interest calculated at two percent over the Bank of North Dakota prime rate on any amount not repaid within thirty days. The refund provision also applies to all duplicate billings involving the department. Interest charges on these refunds are not allowable costs.

4.The established rate is paid based on a prospective ratesetting procedure. No retroactive settlements for actual costs incurred during the rate year that exceed the established rate may be made unless specifically identified in other sections of this chapter.

5.Peer groupings, limitations, or adjustments based upon data received from or relating to more than one facility are effective for a rate period. Any change in the data used to establish peer groupings, limitations, or adjustments may not be used to change the peer groupings, limitations, or adjustments during the rate period, except with respect to the specific facility or facilities to which the data change relates.

History: Effective July 1, 1996; amended effective July 1, 2001; October 1, 2011. 75-02-07.1-25. Special rates.

1.For a new facility, the department shall establish an interim rate equal to the lesser of the limit rates for direct and indirect care for the rate year in which the facility begins operation, plus the maximum operating margin, plus a room and board rate equal to the average food and plant rate, of all facilities for which a rate was established for the rate year, plus a projected property rate calculated based on projected property costs and imputed census, or a rate established based on an annual budget submitted by the facility. The interim rate may be in effect for no more than eighteen months. No retroactive adjustment may be made to the rate.

a.If the effective date of the interim rate is on or after September first and on or before December thirty-first, the interim rate must be effective for the remainder of that rate year and must continue through December thirty-first of the subsequent rate year. By August thirty-first, the facility shall file an interim cost report for the period ending June thirtieth of the period in which the facility first provides services. The interim cost report is used to establish the actual rate to be effective January first of the subsequent rate year.

b.If the effective date of the interim rate is on or after January first and on or before June thirtieth, the interim rate must remain in effect through the end of the subsequent rate year. By March first, the facility shall file a cost report for the partial report year ending December thirty-first of the subsequent rate year. This cost report must be used to establish the rate for the next subsequent rate year.

c.If the effective date of the interim rate is on or after July first and on or before August thirty-first, the interim rate must remain in effect through the end of the rate year in which the interim rate becomes effective. By March first, the facility shall file a cost report for the period ending December thirty-first of the current rate year. This cost report must be used to establish the rate for the subsequent rate year.

2.For a facility with renovations or replacements in excess of fifty thousand dollars, and without a significant capacity increase, the rate established for direct care, indirect care, food and plant, and the operating margin, based on the last report year, plus a property rate calculated based on projected property costs and imputed census, must be applied to all licensed beds.

The projected property rate must be effective on the first of the month following the time the project is completed and placed into service or on the first of the month following submission of a request for a projected property rate, whichever is later. The property rate for the subsequent rate year must be based on projected property costs and imputed census, rather than on property costs actually incurred in the report year. Imputed census is based on the greater of actual census of all licensed beds existing before the renovation or ninety percent of the available licensed beds existing prior to renovation, plus ninety percent of the increase in licensed bed capacity and unavailable licensed beds existing prior to the renovation.

Subsequent property rates must be adjusted using this methodology, except imputed census must be actual census if actual census exceeds ninety percent of total licensed capacity, until such time as twelve months of property costs are reflected in the report year.

3.For a facility with a significant capacity increase, the rate established for direct care, indirect care, food and plant, and the operating margin, based on the last report year, must be applied to all licensed beds. A property rate must be established based on projected property costs and projected census. The property rate must be effective from the first day of the month beginning after the date in which the increase in licensed beds is issued by the department's public health division through the end of the rate year.

4.For a facility with no significant capacity increase and no renovations or replacements in excess of fifty thousand dollars, the established rate based on the report year must be applied throughout the rate year for all licensed beds.

5.Rates for a facility changing ownership during the rate period are set under this subsection.

The total rate established by adding the components of the rate may not exceed the limit rate established under subsection 1 of section 75-02-07.1-22.

a.The rates established for direct care, indirect care, food and plant, and the operating margin for the previous owner must be retained through the end of the rate period and the rates for the next rate period following the change in ownership must be established:

(1)For a facility with four or more months of operation under the new ownership during the report year, through use of a cost report for the period; or (2)For a facility with less than four months of operations under the new ownership during the report year:

(a)By indexing the rate established for the previous owner forward using the adjustment factors as set forth in section 75-02-07.1-21; or (b)If the previous owner submits a cost report and allows the audit of that cost report, and if the change of ownership occurred after the report year end but prior to the beginning of the next rate year, by establishing a rate based on the previous owner's cost report.

b.Unless a facility elects to have a property rate established under subdivision c, the rate established for property for the previous owner must be retained through the end of the rate period and the property rate for the next rate period following the change in ownership must be established:

(1)For a facility with four or more months of operation under the new ownership during the report year, through use of a cost report for the period; and (2)For a facility with less than four months of operation under the new ownership during the report year:

(a)By using the rate established for the previous owner for the previous rate year; or (b)If the previous owner submits a cost report and allows the audit of that cost report, and if the change of ownership occurred after the report year end but prior to the beginning of the next rate year, by establishing a rate based on the previous owner's cost report.

c.A facility may choose to have a property rate established during the remainder of the rate year and the subsequent rate year based on interest and principal payments on the allowable portion of debt expended during the rate years. The property rate must go into effect on the first of the month following notification by the department. The difference between a property rate established based on the facility's election and a property rate established based on subdivision b, multiplied by actual census for the period, must be determined. The property rate established in each of the twelve years, beginning with the first rate year following the use of a property rate established using this subdivision, may not exceed the property rate otherwise allowable, reduced by one-twelfth of that difference.

6.For a facility terminating its participation in the aid to vulnerable aged, blind, and disabled individuals program, whether voluntarily or involuntarily, the department may authorize the facility to receive continued payment until eligible beneficiaries can be relocated.

7.At such time as twelve months of property costs are reflected in the report year, the difference between a projected property rate established using subsection 2 or 3 and the property rate that would otherwise be established based on historical costs must be determined. The property rate paid in each of the twelve years, beginning with the first rate year following the use of a property rate established using subsection 2 or 3 may not exceed the property rate otherwise allowable, reduced by one-twelfth of that difference.

8.For purposes of this section, "new facility" means a facility operated in a premises for which no costs were claimed and no rate was set under this chapter for any period prior to July 1, 1995, but does not mean a facility with:

a.Renovations or replacements;

b.A capacity increase; or

c.A change of ownership.

9.When a nursing facility converts licensed bed capacity to basic care bed capacity and the nursing facility does not share basic services with a licensed basic care facility prior to the conversion:

a.For the rate year in which the conversion occurs, the personal care rate shall be the sum of the limit rates for the direct and indirect cost category, the maximum operating margin, and the room and board rate shall be calculated using the nursing facility's food and plant and property costs and census applicable to the rate year;

b.For the first rate year following the rate year in which the conversion occurs, the personal care rate shall be the sum of the limit rates for the direct and indirect cost category, the maximum operating margin, and the room and board rate shall be calculated using the nursing facility's food and plant and property costs and census applicable to the rate year; and

c.A cost report must be used to establish the rates for all subsequent rate years.

10.When a nursing facility converts licensed bed capacity to basic care bed capacity and the nursing facility shares basic services with a licensed basic care facility prior to the conversion, the rates established for the licensed basic care facility shall apply to the converted bed capacity.

11.A facility that meets the definition of a specialized facility for individuals with mental disease as a result of a reduction in licensed capacity to less than seventeen may choose to have an interim rate established for the remainder of the rate year following the capacity decrease and the subsequent rate based on the lesser of the limit rates for a specialized facility for individuals with mental disease for the rate year in which the institution for mental disease decreases its licensed capacity, plus the maximum operating margin, plus a room and board rate equal to the average food and plant rate, of all facilities for which a rate was established for the rate year, plus a projected property rate calculated based on projected property costs and imputed census, or a rate established based on an annual budget submitted by the facility. The interim rate may be in effect for no more than eighteen months. Retroactive adjustments may not be made to the rate.

a.If the effective date of the interim rate is on or after September first and on or before December thirty-first, the interim rate must be effective for the remainder of that rate year and must continue through December thirty-first of the subsequent rate year. By August thirty-first, the facility shall file an interim cost report for the period ending June thirtieth of the period in which the facility first provides services. The interim cost report is used to establish the actual rate to be effective January first of the subsequent rate year.

b.If the effective date of the interim rate is on or after January first and on or before June thirtieth, the interim rate must remain in effect through the end of the subsequent rate year. By March first, the facility shall file a cost report for the partial report year ending December thirty-first of the subsequent rate year. This cost report must be used to establish the rate for the next subsequent rate year.

c.If the effective date of the interim rate is on or after July first and on or before August thirty-first, the interim rate must remain in effect through the end of the rate year in which the interim rate becomes effective. By March first, the facility shall file a cost report for the period ending December thirty-first of the current rate year. This cost report must be used to establish the rate for the subsequent rate year.

History: Effective July 1, 1996; amended effective July 1, 1998; July 1, 2001; February 1, 2007;

October 1, 2011; January 1, 2024. 75-02-07.1-26. One-time adjustments.

1.Adjustments to meet licensure standards.

a.The department may provide for an increase in the established rate for additional costs incurred to meet licensure standards. The survey conducted by the department's public health division must clearly require that the facility take steps to correct deficiencies dealing with resident care. The plan of correction must identify the salary or other costs increased to correct the deficiencies cited in the survey process.

b.The facility shall submit a written request to the department within thirty days of submitting the plan of correction to the department's public health division. The request must:

(1)Include a statement that costs or staff numbers have not been reduced for the report year immediately preceding the department's public health division's licensure survey;

(2)Identify the number of new staff or additional staff hours and the associated costs required to meet the licensure standards;

(3)Provide a detailed list of any other costs necessary to meet licensure standards;

(4)Describe how the facility shall meet licensure standards if the adjustment is received, including the number and type of staff to be added to the current staff and the projected salary and fringe benefit cost for the additional staff; and (5)Document that all available resources, including efficiency incentives, if used to increase staffing, are not sufficient to meet licensure standards.

c.The department shall review the submitted information and may request additional documentation or conduct onsite visits.

d.If an increase in costs is approved, the adjustment must be calculated based on the costs necessary to meet licensure standards less any incentives included when calculating the established rate. The net increase must be divided by resident days and the amount calculated must be added to the established rate. This rate must then be subject to any rate limitations that may apply.

e.Any additional funds provided must be used in accordance with the facility's written request to the department and are subject to audit. If the department determines that the funds were not used for the intended purpose, an adjustment must be made in accordance with section 75-02-07.1-23.

f.If the actual cost of implementation exceeds the amount included in the adjustment, no retroactive settlement may be made.

2.Adjustments for unforeseeable expenses.

a.The department may provide for an increase in the established rate for additional costs incurred to meet major unforeseeable expenses. The expenses must be resident related and beyond the control of those responsible for the management of the facility.

b.Within sixty days after first incurring the unforeseeable expense, the facility shall submit to the department a written request containing:

(1)An explanation as to why the facility believes the expense was unforeseeable;

(2)An explanation as to why the facility believes the expense was beyond the managerial control of the owner or administrator of the facility; and (3)A detailed breakdown of the unforeseeable expenses by expense line item.

c.The department shall base its decision on whether the request clearly demonstrates that the economic or other factors that caused the expense were unexpected and arose because of conditions that could not have been anticipated by management based on their background and knowledge of basic care industry and business trends.

d.The department shall review the submitted information and may request additional documentation or conduct onsite visits. If an increase in costs is approved, the established rate must be adjusted upward not to exceed the limit rate.

e.Any additional funds provided must be used to meet the unforeseeable expenses outlined in the facility's request to the department and are subject to audit. If the department determines that the funds were not used for the intended purpose, an adjustment must be made in accordance with section 75-02-07.1-23.

3.One-time adjustments for cost increases approved by the legislative assembly.

a.The department shall increase rates otherwise established by this chapter for supplemental payments or one-time adjustments to historical costs approved by the legislative assembly.

b.Any additional funds made available by the supplemental payments or one-time adjustments must be used for the legislatively prescribed purpose and are subject to audit. If the department determines that the funds were not used for the legislatively prescribed purpose, an adjustment must be made in accordance with section 75-02-07.1-23.

History: Effective July 1, 1996; amended effective July 1, 1998; July 1, 2001; July 1, 2009; October 1, 2011; July 1, 2014; January 1, 2024. 75-02-07.1-27. No rate adjustments of less than twenty-five cents per day.

Under no circumstances, including an appeal or judicial decision to the effect that a rate was erroneously established, may a rate adjustment be made unless the cumulative impact of adjustments equals or exceeds twenty-five cents per day.

History: Effective July 1, 1996; amended effective January 1, 2002. 75-02-07.1-28. Notification of rates.

The department shall notify each facility of the desk audit rate on or before May twenty-first of the year in which the rate year begins. 75-02-07.1-29. Reconsiderations and appeals.

1.Reconsiderations.

a.Any requests for reconsideration of the final rate must be filed with the department within thirty days of the date of the rate notification.

b.A request for reconsideration must include:

(1)A statement of each disputed item and the reason or basis for the dispute;

(2)The dollar amount of each adjustment that is disputed; and (3)The authority in statute or rule upon which the facility is relying for each disputed item.

c.The department may request additional documentation or information relating to the disputed item. If additional documentation is not provided within fourteen days of the department's request, the department shall make its determination based on the information and documentation available as of the fourteenth day following the date the department requested additional documentation.

d.The department shall make a determination regarding the reconsideration within forty-five days of receiving the reconsideration filing and any requested documentation.

2.Appeals.

a.A provider dissatisfied with the final rate established may appeal upon completion of the reconsideration process as provided for in subsection 1. An appeal may be perfected by mailing or delivering, on or before five p.m. on the thirty-first day after the date of mailing of the determination made with respect to a request for reconsideration, the information described in this subsection to the department, at the address the department designates. An appeal under this section is perfected only if accompanied by written documents including:

(1)A copy of the letter received from the department advising of the decision on the request for reconsideration;

(2)A statement of each disputed item and the reason or basis for the dispute;

(3)A computation and the dollar amount that reflects the appealing party's claim as to the correct computation and dollar amount for each disputed item;

(4)The authority in statute or rule upon which the appealing party relies for each disputed item; and (5)The name, address, and telephone number of the person to whom all notices regarding the appeal may be sent.

History: Effective July 1, 1996; amended effective July 1, 1998. 75-02-07.1-30. Resident personal funds.

1.A facility may not require a resident to deposit personal funds with the facility.

2.Upon written authorization of a resident or the resident's legal representative, a facility shall hold, safeguard, manage, and account for the resident's personal funds deposited with the facility.

3.A facility may not charge the resident for holding, safeguarding, managing, or accounting for the resident's personal funds. Any related administrative costs, including bank charges, must be included in the daily rate. A facility may not impose a charge against a resident's personal funds for any item or service included in the daily rate.

4.A facility may maintain a resident's personal funds not exceeding one hundred dollars in a noninterest-bearing account. A facility shall deposit any resident's personal funds in excess of one hundred dollars in an interest-bearing account separate from any of the facility's accounts.

The facility shall credit interest earned to the resident's account.

5.A facility shall maintain a system that ensures a full, complete, and separate accounting, according to generally accepted accounting principles, of each resident's personal funds. An individual financial record must be available on request and a written accounting of transactions must be provided quarterly to the resident or the resident's legal representative.

6.A resident's personal funds may not be commingled with any facility funds or with funds of any person other than another resident.

7.Upon death of a resident, a facility shall promptly convey the resident's personal funds, and a final accounting of those funds, to the individual administering the resident's estate. For purposes of this section, an "individual administering the resident's estate" includes a person lawfully empowered to facilitate the transfer of small estates without the use of a personal representative.

Chapter 75-02-08 Homes for the Aged and Infirm [Repealed]

N.D. Admin. Code 75-02-08 Homes for the Aged and Infirm [Repealed]

CHAPTER 75-02-08

HOMES FOR THE AGED AND INFIRM [Repealed effective December 1, 1990]

Determined repealed by the office of the Legislative Council pursuant to subsection 3 of North Dakota Century Code section 28-32-03 because the authority for the adoption of the rules was repealed by S.L. 1989, ch. 317 and replacement rules, chapter 33-03-24, were adopted by the Department of Health and Consolidated Laboratories effective December 1, 1990.

Chapter 75-02-09 Ratesetting for Psychiatric Residential Treatment Facilities

N.D. Admin. Code 75-02-09-01 Definitions

1."Accrual basis" means the recording of revenue in the period when it is earned, regardless of when it is collected, and the recording of expenses in the period when incurred, regardless of when they are paid.

2."Adjustment factor" means the legislatively approved inflation rate for psychiatric residential treatment facilities services.

3."Allowable cost" means the facility's actual and reasonable cost after adjustments required by department rules.

4."Capital asset" means a facility's buildings, land improvements, fixed equipment, movable equipment, leasehold improvements, and all additions to or replacements of those assets used directly for resident care.

5."Certification of need" has the same meaning as provided in section 75-02-02-03.2.

6."Chain organization" means a group of two or more health care facilities owned, leased, or, through any other device, controlled by one business entity. This includes not only proprietary chains, but also chains operated by various religious and other charitable organizations. A chain organization may also include business organizations engaged in other activities not directly related to health care.

7."Cost category" means the classification or grouping of similar or related costs for purposes of reporting which are used in the determination of cost limitations and rates.

8."Cost report" means the department-approved form for reporting costs, statistical data, and other relevant information to the department.

9."Department" means the department of health and human services.

10."Depreciation" means an allocation of the cost of an asset over its estimated useful life.

11."Depreciation guidelines" means the American hospital association's depreciation guidelines as published by American hospital publishing, inc., in "Estimated Useful Lives of Depreciable Hospital Assets", revised 2021 edition.

12."Desk rate" means the rate established by the department based upon a review of the cost report submission prior to an audit of the cost report.

13."Direct costing" means identification of actual costs directly to a facility or cost category without use of any means of allocation.

14."Education" means the cost of activities related to academic and vocational training generally provided by a school district.

15."Facility" means an entity that is a licensed psychiatric residential treatment facility for children under chapter 75-03-17.

16."Fair market value" means value at which an asset could be sold in the open market in a transaction between informed, unrelated parties.

17."Final rate" means the rate established after any adjustments by the department, including adjustments resulting from cost report reviews and audits.

18."Fringe benefits" means workers' compensation insurance, group health, dental or vision insurance, group life insurance, payment toward retirement plans, uniform allowances, employer's share of Federal Insurance Contributions Act, unemployment compensation taxes, and medical services furnished at facility expense.

19."Generally accepted accounting principles" means the accounting principles approved by the American institute of certified public accountants.

20."Historical costs" means the allowable costs incurred by the facility during the report year immediately preceding the rate year for which the established rate becomes effective.

21."Hospital leave day" means any day that a resident is not in the facility, but is in an acute care or psychiatric hospital or psychiatric unit setting and admitted as an inpatient.

22."In-house day" means a day that an individual was actually residing in the facility and was not on leave.

23."Interest" means cost incurred for the use of borrowed funds.

24."Leave day" means any day that an individual is not in the facility but is expected to return to the facility.

25."Private-pay resident" means an individual on whose behalf the facility is not receiving medical assistance payments.

26."Rate year" means the calendar year from January first through December thirty-first.

27."Reasonable cost" means the cost that must be incurred by an efficiently and economically operated facility to provide services in conformity with applicable state and federal laws, rules, and quality and safety standards. Reasonable cost takes into account that the facility seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or service.

28."Related organization" means an organization that a facility is, to a significant extent, associated with, affiliated with, able to control, or controlled by; and which furnishes services, facilities, or supplies to the facility. Control exists when an individual or organization has the power, directly or indirectly, to significantly influence or direct the policies of an organization or facility.

29."Report year" means fiscal year from July first through June thirtieth of the year immediately preceding the rate year.

30."Resident day" means a day for which service is actually provided or for which payment is ordinarily sought.

31."Special rate" means a desk rate or a final rate adjusted for nonrecurring or initial costs not included in the historical cost basis.

32."Therapeutic leave day" means any day that a resident is not in the facility, another psychiatric residential treatment facility, an intermediate care facility for individuals with intellectual disabilities, or an acute care or psychiatric hospital or psychiatric unit setting, or, if not in an institutional setting, is not receiving home and community-based waivered services.

33."Working capital debt" means debt incurred to finance facility operating costs, but does not include debt incurred to acquire or refinance a capital asset or to refund or refinance debt associated with acquiring a capital asset.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025; January 1, 2026.

N.D. Admin. Code 75-02-09-02 Financial reporting requirements

1.Records.

a.The facility shall maintain on the premises census records and financial information sufficient to provide for a proper audit or review. For any cost being claimed on the cost report, sufficient data must be available as of the audit date to fully support the report item.

b.If several facilities are associated with a group and their accounting and reports are centrally prepared, added information must be submitted for those items known to be lacking support at the reporting facility prior to the audit or review of the facility.

Accounting or financial information regarding a related organization must be readily available to substantiate cost.

c.Each facility shall maintain, until any rate based upon a cost report is final and not subject to any appeal, but in any event, for a period of not less than five years following the date of submission of the cost report to the state agency, accurate financial and statistical records of the period covered by the cost report in sufficient detail to substantiate the cost data reported. Each facility shall make the records available upon reasonable demand to representatives of the department.

2.Accounting and reporting requirements.

a.The accrual basis of accounting, in accordance with generally accepted accounting principles, must be used for cost reporting purposes. Ratesetting procedures must prevail if conflicts occur between ratesetting procedures and generally accepted accounting principles. A facility may maintain its accounting records on a cash basis during the year, but adjustments must be made to reflect proper accrual accounting procedures at yearend and when subsequently reported.

b.To properly facilitate auditing, the accounting system must be maintained in a manner that allows cost accounts to be grouped by cost category and readily traceable to the cost report.

c.The cost report must be submitted on or before October first. The report must contain all actual costs of the facility, adjustments for nonallowable costs, and resident days.

d.The department may impose a nonrefundable penalty of ten percent of any amount claimed for services furnished after the due date if the facility fails to file the cost report on or before the due date. The penalty may be imposed on the first day of the fourth month following the facility's fiscal yearend and continues to the end of the month in which the statement or report is received.

e.Upon request, the following information must be made available:

(1)A statement of ownership including the name, address, and proportion of ownership of each owner;

(2)Copies of leases, purchase agreements, appraisals, financing arrangements, and other documents related to the lease or purchase of the facility or a certification that the content of those documents remains unchanged since the most recent statement given pursuant to this subsection;

(3)Supplemental information reconciling the costs on the financial statements with costs on the cost report; or (4)Copies of leases, purchase agreements, and other documents related to the acquisition of equipment, goods, and services claimed as allowable costs.

f.The facility shall make all adjustments and allocations necessary to arrive at allowable costs. The department may reject any cost report when the information filed is incomplete or inaccurate. If a cost report is rejected, the department may impose the penalties described in subdivision d.

g.The department may grant one thirty-day extension of the reporting deadline to a facility.

To receive an extension, a facility must submit a written request to the department's medical services division.

h.If a facility fails to file the required cost report on or before the due date, the department may reduce the current payment rate to eighty percent of the facility's most recently established rate. Reinstatement of the rate must occur on the first of the month beginning after receipt of the required information, but is not retroactive.

3.The department shall perform an audit of the latest available report year of each facility at least once every six years and retain for at least three years all audit-related documents, including cost reports, working papers, and internal reports on rate calculations used and generated by audit staff in the performance of audits and in the establishment of rates. Audits must meet generally accepted governmental auditing standards.

4.A false report is one where a facility knowingly supplies inaccurate or false information in a required report which results in an overpayment. If a false report is received, the department may:

a.Immediately adjust the facility's payment rate to recover the entire overpayment within the rate year;

b.Terminate the department's agreement with the facility;

c.Prosecute under applicable state or federal law; or

d.Use any combination of the foregoing actions.

5.The department may determine a report is a false report if a facility claims previously adjusted costs as allowable costs. Previously adjusted costs being appealed must be identified as nonallowable costs. The facility may indicate that the costs are under appeal and not claimed under protest to perfect a claim should the appeal be successful.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025; January 1, 2026.

N.D. Admin. Code 75-02-09-03 General cost principles

1.For ratesetting purposes, a cost must:

a.Be ordinary, necessary, and related to resident care;

b.Be no more than an amount a prudent and cost-conscious business person would pay for the specific good or service in the open market in an arm's-length transaction; and

c.Be for goods or services actually provided by the facility.

2.The cost effects of transactions which circumvent these rules are not allowable under the principle that the substance of the transaction prevails over the form.

3.Reasonable resident-related costs will be determined in accordance with the ratesetting procedures set forth in this chapter and instructions issued by the department.

N.D. Admin. Code 75-02-09-04 Ratesetting

1.The established rate is based on prospective ratesetting procedures. The establishment of a rate begins with historical costs. Adjustments are then made for claimed costs not includable in allowable costs. Adjustment factors are then applied to allowable costs. Retroactive settlements for actual costs incurred during the rate year exceeding the final rate may not be made unless specifically provided in this chapter.

2.The department shall establish a desk rate, based on the cost report, which must be effective January first of each rate year or on an alternate effective date determined by the department.

a.The desk rate must continue in effect until a final rate is established.

b.The cost report must be reviewed taking into consideration the prior year's adjustments.

A facility must be notified by telephone or electronic mail of any desk adjustments based on the desk review. Within seven working days after notification, the facility may submit information to explain why a desk adjustment should not be made. The department shall review the submitted information, make appropriate adjustments, including adjustment factors, and issue the desk rate.

c.Reconsideration may not be given by the department for the desk rate unless the facility has been notified that the desk rate is the final rate.

d.A desk rate may be adjusted at any time if subsection 4 applies to the facility.

3.The cost report may be field audited by the department to establish a final rate. If no field audit is performed, the desk rate will become the final rate upon notification to the facility from the department.

a.The final rate must be effective as of the effective date of the desk rate.

b.The final rate must include any adjustments for nonallowable costs, errors, or omissions that result in a change from the desk rate of at least twenty-five cents per day.

c.Adjustments, errors, or omissions found after a final rate has been established must be included as an adjustment in the report year the adjustments, errors, or omissions are found.

d.The final rate may be adjusted at any time if subsection 4 applies.

4.A special rate must be established for a facility providing services for the first time, changing ownership, having a capacity increase or major renovation or construction, or having changes in services or staff.

a.The rate for a facility providing first-time services purchased by the department must be established using this subdivision for the first two fiscal years of the facility if that period is less than twenty-four months.

(1)The facility shall submit a budget, to the department's medical services division, for the first twelve months of operation. A final rate based on the budget and adjustments, if any, must be established for a rate period beginning on the first of the month in which the facility begins operation. This rate must remain in effect for eighteen months. Adjustment factors may not be included in the first year final rate.

No retroactive settlements may be made.

(2)Upon completion of the first twelve months of operation, the facility must submit a cost report for the twelve-month period regardless of the fiscal yearend of the facility.

(a)The twelve-month cost report is due on or before the last day of the third month following the end of the twelve-month period.

(b)The twelve-month cost report must be used to establish a rate for the remainder of the second rate year. Appropriate adjustment factors must be used to establish the rate.

(3)The facility shall submit a cost report that must be used to establish rates in accordance with subsections 2 and 3 after the facility has been in operation for the entire twelve months of the facility's fiscal year.

b.For a facility with a change in ownership, the rate established for the previous owner must be retained until the end of the rate year in which the change of ownership occurs.

The rate for the second rate year after a change in ownership occurs must be established as follows:

(1)For a facility with four or more months of operation under the new ownership during the report year, a cost report for the period since the ownership change occurred must be used to establish the rate for the next rate year; and (2)For a facility with less than four months of operation under the new ownership in the reporting year, the prior report year's costs as adjusted for the previous owner must be indexed forward using the appropriate adjustment factor.

c.For a facility that increases licensed capacity by twenty percent or more or has a renovation or construction project in excess of fifty thousand dollars, the established desk or final rate may be adjusted for the period after the licensed capacity increase occurs or the construction or renovation is complete to include projected property costs.

(1)For the rate year in which the capacity increase occurs or construction or renovation is completed, an adjusted rate must be calculated based on a rate for historical costs, exclusive of property costs, as adjusted, divided by historical census, plus a rate for property costs based on projected property costs divided by projected census. The adjusted rate will be effective on the first day of the month in which the renovation or construction is complete or when the capacity increase is approved if no construction or renovation is necessary.

(2)For the rate year immediately following the rate year in which the capacity increase occurred or construction and renovation was completed, a rate must be established based on historical costs, exclusive of property costs, as adjusted for the report year, divided by reported census plus a rate for property costs, based on projected property costs, divided by projected census.

d.The department may provide for an increase in the established rate for additional costs necessary to add services or staff to the existing program.

(1)The facility shall submit information, to the department's medical services division, supporting the request for the increase in the rate. Information must include a detailed listing of new or additional staff or costs associated with the increase in services.

(2)The department shall review the submitted information and may request additional documentation or conduct onsite visits. The established rate must be adjusted if an increase in costs is approved. The effective date of the rate increase must be the later of the first day of the month following approval by the department or the first day of the month following the addition of services or staff. The adjustment may not be retroactive to the beginning of the rate year and will exclude adjustment factors provided for in subsection 8.

(3)For the rate year immediately following a rate year in which a rate was adjusted under paragraph 2, the facility may request consideration be given to additional costs. The facility shall demonstrate to the department's satisfaction that historical costs do not reflect twelve months of actual costs of the additional staff or added services in order to adjust the rate for the second rate year. The additional costs must be based on a projection of costs for the remainder of a twelve-month period, exclusive of adjustment factors provided for in subsection 8.

5.The final rate must be considered as payment for all accommodations that include items identified in section 75-02-09-06. For any resident whose rate is paid in whole or in part by the department, no payment may be solicited or received from the resident or any other person to supplement the rate as established.

6.When a facility terminates its participation in the program, whether voluntarily or involuntarily, the department may authorize the facility to receive continued payment until residents can be relocated.

7.Limitations.

a.The department shall accumulate and analyze statistics on costs incurred by psychiatric residential treatment facilities. Statistics may be used to establish reasonable ceiling limitations and incentives for efficiency and economy based on reasonable determination of standards of operations necessary for efficient delivery of needed services. Limitations and incentives may be established on the basis of cost of comparable facilities and services and may be applied as ceilings on the overall costs of providing services or on specific areas of operations. The department may implement ceilings at any time based upon information available.

b.The department shall review, on an ongoing basis, aggregate payment to facilities to determine that payments do not exceed an amount that can be reasonably estimated would have been paid for these services under federally required payment principles. If aggregate payments to facilities exceed estimated payments under federally required payments principles, the department may make adjustments to rates so that aggregate payments do not exceed an amount that can be estimated would have been paid under an upper payment limit.

c.Allowable administration costs to be included in the established rate are the lesser of the actual cost of administration as direct costed or allocated to the facility or an amount equal to seventeen percent of the total allowable costs, exclusive of administration costs, for the facility.

8.An adjustment factor may be used to adjust historical allowable costs but may not be used to adjust property costs.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025; January 1, 2026.

N.D. Admin. Code 75-02-09-05 Resident census

1.A daily census record must be maintained by the facility. Any day services provided or for which payment is ordinarily sought for an available bed must be counted as a resident day.

The day of admission and day of death are resident days. The day of discharge must be counted if payment is sought for that day. For a medical assistance resident, payment may not be sought for the day of discharge.

2.The daily census records must include:

a.Identification of the resident;

b.Entries for all days, and not just by exception;

c.Identification of type of day, i.e., in-house, hospital leave, or therapeutic leave day; and

d.Monthly totals by resident and by type of day.

3.A maximum of fifteen consecutive days per occurrence are allowed for payment by the medical assistance program for hospital leave. Hospital leave days in excess of fifteen consecutive days not billable to the medical assistance program are not resident days unless any payment is sought as provided for in subsection 2 of section 75-02-09-19.

4.A maximum of fifteen days per certification of need period are allowed for payment by the medical assistance program for therapeutic leave. Prior authorization is necessary for additional days beyond the fifteen-day certification of need period. The payment rate for therapeutic leave days must be five hundred dollars per day.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025; January 1, 2026.

N.D. Admin. Code 75-02-09-06 Allowable costs by cost category

1.Administration costs are the allowable costs of activities performed by the staff in which the direct recipient of the activity is the organization itself, including fiscal activities, statistical reporting, recruiting, and general office management indirectly related to reimbursable services provided. Administration personnel includes administrators, regional directors, program directors, accounting personnel, clerical personnel, secretaries, receptionists, data processing personnel, purchasing personnel, and security personnel. Administration costs directly assignable to the facility must be reported as facility administration. Administration costs not directly assignable to the facility must be reported as other administration. Costs for administration include:

a.Salary and fringe benefits for individuals who provide services administrative in nature or who are not included specifically in any other cost category;

b.Office supplies;

c.Insurance, except property insurance and insurance included as a fringe benefit;

d.Postage and freight;

e.Professional fees for services such as legal, accounting, and data processing;

f.Central or home office costs;

g.Personnel recruitment costs;

h.Management consultants and fees;

i.Dues, license fees, and subscriptions;

j.Travel and training for employees, except for training for personnel required to maintain licensure, certification, or professional standards requirements;

k.Interest on funds borrowed for working capital if repayment of working capital debt is made within three years of the borrowing;

l.Startup costs;

m.Security personnel or services;

n.Telephone service not included in other cost categories; and

o.All costs not specifically identified in other cost categories.

2.Direct care costs are the allowable costs incurred for providing services for the maximum reduction of physical or mental disability and restoration of a resident to the best possible functional level and for providing for the personal needs of the resident. The services may include any medical or remedial service recommended by a physician or other licensed practitioner of the healing arts, within the scope of the practitioner's practice under state law.

Direct care costs include:

a.Salaries and fringe benefits for individuals providing treatment or supervision of residents;

b.Personal supplies used by an individual resident;

c.Clothing necessary to maintain a resident's wardrobe;

d.School supplies and activity fees, when not provided by or at the expense of the school;

e.Costs incurred for providing recreation to the residents including subscriptions, sports equipment, and admission fees to sporting, recreation, and social events;

f.All costs related to transporting residents, and transportation costs that may include actual expenses of facility-owned vehicles or mileage paid to employees for use of personal vehicle;

g.The cost of services purchased and not provided at the facility, including case management, addiction, psychiatric, psychological, and other clinical evaluations, medication review, and partial care or day treatment; and

h.Training required to maintain licensure, certification, or professional standards requirements, and the related travel costs.

3.Dietary costs are the allowable costs associated with the preparation and serving of food.

Dietary costs include:

a.Salaries and fringe benefits for all personnel involved with the preparation and delivery of food;

b.Food; and

c.Dietary supplies and utensils including paper products and noncapitalized dietary equipment.

4.Laundry costs are the allowable costs associated with gathering, transporting, sorting, and cleaning of linen and clothing. Laundry costs include:

a.Salaries and fringe benefits of personnel who gather, transport, sort, and clean linen and clothing;

b.The cost of laundry supplies; and

c.Contracted laundry services.

5.Plant and housekeeping costs are the allowable costs related to repairing, cleaning, and maintaining the facility's physical plant. Plant and housekeeping costs include:

a.Salaries and fringe benefits of personnel involved in cleaning, maintaining, and repairing the facility;

b.Supplies necessary to maintain the facility, including such items as cleaning supplies, paper products, and hardware goods;

c.Utility costs, including heating and cooling, electricity, water, sewer, garbage, and cable television;

d.Local telephone service to the living quarters and long distance telephone service directly related to providing treatment; and

e.Routine repairs and maintenance of property and equipment, including maintenance contracts and purchased services.

6.Property costs are the allowable capital costs associated with the physical plant of the facility.

Property costs include:

a.Depreciation;

b.Interest;

c.Lease costs on equipment and buildings;

d.Property taxes; and

e.Property insurance on buildings and equipment.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025.

N.D. Admin. Code 75-02-09-07 Cost allocation

1.Direct costing of allowable facility costs must be used whenever possible. If direct costing is not possible, the allocation methods for facility and nonfacility operations described in this subsection must be used.

a.Salaries for direct care employees, which cannot be reported based on direct costing, must be allocated using time studies. Time studies must be conducted at least semiannually for a two-week period or quarterly for a one-week period. The time study must represent a typical period of time when employees are performing normal work activities in each of their assigned areas of responsibility. Allocation percentages based on the time studies must be used starting with the next pay period following completion of the time study or averaged for the report year.

b.Salaries of supervisory personnel must be allocated based on full-time equivalents of the employees supervised or on a ratio of salaries.

c.Fringe benefits must be allocated based on the ratio of salaries to total salaries.

d.Plant and housekeeping expenses must be allocated based on square footage.

e.Property costs must be allocated based on square footage.

f.Administration costs must be allocated on the basis of the percentage of total costs, excluding the allocable administration, property, and utility costs.

g.Dietary costs must be allocated based on meals served.

h.Laundry costs must be allocated on the basis of pounds of laundry or in-house resident days.

i.Vehicle expenses must be allocated based on mileage logs. Mileage logs must include documentation for all miles driven and purpose of travel. If sufficient documentation is not available to determine which cost category vehicle expenses are to be allocated, vehicle expenses must be allocated in total to administration.

j.Costs not direct costed or allocable using methods identified in subdivisions a through i must be included as administration costs.

2.If the facility cannot use any of the allocation methods described in subsection 1, a waiver request may be submitted to the department's medical services division. The request must include an adequate explanation as to why the referenced allocation method cannot be used by the facility. The facility shall also provide a rationale for the proposed allocation method.

Based on the information provided, the department shall determine the allocation method used to report costs.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025.

N.D. Admin. Code 75-02-09-08 Nonallowable costs

Nonallowable costs include:

1.Promotional, publicity, and advertising expenses, exclusive of personnel procurement;

2.Political contributions;

3.Salaries or expenses of a lobbyist;

4.Basic research;

5.Fines or penalties including interest charges on the penalty, bank overdraft charges, and late payment charges;

6.Bad debts;

7.Compensation and expenses for officers, directors, or stockholders, except as provided for in

section 75-02-09-15;

8.Contributions or charitable donations;

9.Costs incurred for activities directly related to influencing employees with respect to unionization;

10.Costs of membership or participation in health, fraternal, or social organizations such as eagles, country clubs, or knights of columbus;

11.Corporate costs such as organization costs, reorganization costs, costs associated with acquisition of capital stock, costs relating to the issuance and sale of capital stock or other securities, and other costs not related to resident services;

12.Home office costs that would be nonallowable if incurred directly by the facility;

13.Stockholder servicing costs incurred primarily for the benefit of stockholders or other investors, including annual meetings, annual reports and newsletters, accounting and legal fees for consolidating statements, stock transfer agent fees, and stockbroker and investment analyses;

14.The cost of any equipment, whether owned or leased, not exclusively used by the facility except to the extent the facility demonstrates to the satisfaction of the department that any particular use of equipment was related to resident care;

15.Costs, including by way of illustration and not by way of limitation, for legal fees, accounting and administrative costs, travel costs, and the costs of feasibility studies, attributed to the negotiation or settlement of the sale or purchase of any capital assets, whether by sale or merger, when the cost of the asset has been previously reported and included in the rate paid to any facility;

16.Depreciation expense for facility assets not related to resident care;

17.Personal expenses of owners and employees for items or activities including vacation, boats, airplanes, personal travel or vehicles, and entertainment;

18.Costs not adequately documented (adequate documentation includes written documentation of date of purchase, vendor name, listing of items or services purchased, cost of items purchased, account number to which the cost is posted, and a breakdown of any allocation of costs between accounts or facilities);

19.The following taxes, if levied on a facility:

a.Federal income and excess profit taxes, including any interest or penalties paid thereon;

b.State or local income and excess profit taxes;

c.Taxes in connection with financing, refinancing, or refunding operations such as taxes in the issuance of bonds, property transfers, issuance or transfer of stocks, etc., which are generally either amortized over the life of the securities or depreciated over the life of the asset, but not recognized as tax expense;

d.Taxes such as real estate and sales tax for which exemptions are available to the facility;

e.Taxes on property not used in the provision of covered services; and

f.Taxes such as sales taxes, levied, collected, and remitted by the facility;

20.The unvested portion of a facility's accrual for sick or annual leave;

21.Expenses or liabilities established through or under threat of litigation against the state of North Dakota or any of its agencies, provided that reasonable insurance expenses may not be limited by this subsection;

22.Fringe benefits, not within the definition of that term, which have not received written prior approval of the department;

23.Fringe benefits that discriminate in favor of certain employees, excluding any portion that relates to costs that benefit all employees;

24.Fundraising costs, including salaries, advertising, promotional, or publicity costs incurred for such a purpose;

25.Funeral and cemetery expenses;

26.Travel not directly related to professional conferences, state or federally sponsored activities, or resident services;

27.Items or services such as telephone, television, and radio located in a resident's room and furnished solely for the convenience of the resident;

28.Value of donated goods and services;

29.Religious salaries, space, and supplies;

30.Miscellaneous expenses not related to resident services;

31.Premiums for top management personnel life insurance policies, except that the premiums shall be allowed if the policy is included within a group policy provided for all employees, or if a policy is required as a condition of a mortgage or loan and the mortgagee or lending institution is listed as the beneficiary;

32.Travel costs involving the use of vehicles not exclusively used by the facility unless:

a.Vehicle travel costs do not exceed the amount established by the internal revenue service;

b.The facility supports vehicle costs related to resident care with sufficient documentation, including mileage logs for all miles, purpose of travel, and receipts for purchases; and

c.The facility documents all costs associated with a vehicle not exclusively used by the facility;

33.Vehicle and aircraft costs not directly related to facility business or resident services;

34.Nonresident-related operations and the associated administrative costs;

35.Costs related to income-producing activities regardless of the profitability of the activity;

36.Costs incurred by the facility's subcontractors or by the lessor of property the facility leases, and which become an element in the subcontractor's or lessor's charge to the facility, if such costs would not have been allowable had they been incurred by a facility directly furnishing the subcontracted services or owning the leased property;

37.All costs for services paid directly by the department to an outside facility;

38.Depreciation on the portion of assets acquired with government grants;

39.Costs incurred due to management inefficiency, unnecessary care or services, agreements not to compete, or activities not commonly accepted in the industry;

40.The cost of consumable food products, in excess of income from employees, guests, and nonresidents offset in accordance with subsection 1 of section 75-02-09-16, consumed by individuals other than residents or direct care personnel;

41.Payments to residents, whether in cash or in kind, for work performed or for bonuses or rewards based on behavior;

42.In-house education costs including:

a.Compensation for teachers and teacher aides who provide academic training to residents in-house;

b.Property and plant operation expenses for space used to provide in-house academic training to residents; and

c.The cost of supplies and equipment used in a classroom normally provided by a school district as part of the academic training; and

43.Medical assistance noncovered services.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025.

N.D. Admin. Code 75-02-09-09 Depreciation

1.Ratesetting principles require that payment for services should include depreciation on all depreciable type assets used to provide necessary services. This includes assets that may have been fully or partially depreciated on the books of the facility, but are in use at the time the facility enters the program. The useful lives of such assets are considered not to have ended and depreciation calculated on the revised extended useful life is allowable. Likewise, a depreciation allowance is permitted on assets used in a normal standby or emergency capacity. If any depreciated personal property asset is sold or disposed of for an amount different than its undepreciated value, the difference represents an incorrect allocation of the cost of the asset to the facility and must be included as a gain or loss on the cost report.

2.Depreciation methods.

a.The straight-line method of depreciation must be used. All accelerated methods of depreciation including depreciation options made available for income tax purposes, such as those offered under the asset depreciation range system, are unacceptable. The method and procedure for computing depreciation must be applied on a basis consistent from year to year, and detailed schedules of individual assets must be maintained. If the books of account reflect depreciation different than that submitted on the cost report, a reconciliation must be prepared by the facility.

b.A facility must use a minimum composite useful life of ten years for all equipment and land improvements, and four years for vehicles. Buildings and improvements to buildings are to be depreciated over the length of the mortgage or a minimum of twenty-five years, whichever is greater.

3.Acquisitions.

a.If a depreciable asset has at the time of its acquisition historical cost of at least one thousand dollars for each item, its cost must be capitalized and depreciated over the estimated useful life of the asset except as provided for in subsection 3 of section

N.D. Admin. Code 75-02-09-11 Costs, such as architectural, consulting and legal fees, and interest, incurred during the construction of an asset must be capitalized as a part of the cost of the asset

b.All repair or maintenance costs in excess of five thousand dollars per project on equipment or buildings must be capitalized and depreciated over the remaining useful life of the equipment or building or one-half of the original estimated useful life, whichever is greater.

4.Proper records must provide accountability for the fixed assets and also provide adequate means by which depreciation can be computed and established as an allowable resident-related cost. Tagging of major equipment items is not mandatory, but alternate records must exist to satisfy audit verification of the existence and location of the assets.

5.Basis for depreciation.

a.Determination of the cost basis of a facility's depreciable assets, which have not been involved in any programs funded in whole or in part by the department, depends on whether or not the transaction is a bona fide purchase. Should the issue arise, the purchaser has the burden of proving that the transaction was a bona fide purchase.

Purchases where the buyer and seller are related organizations are not bona fide.

(1)If the purchase is bona fide, the cost basis will be the lower of the actual cost of the buyer or the fair market value of the asset at the time of the purchase.

(2)If the purchase is not bona fide, the cost basis will be the seller's cost basis less accumulated depreciation.

b.Cost basis of a facility's depreciable assets purchased as an ongoing operation will be the seller's cost basis less accumulated depreciation.

c.Cost basis of a facility's depreciable assets used in any programs funded in whole or in

part by the department will be the cost basis used by the other program less accumulated depreciation.

d.Sale and leaseback transactions will be considered a related party transaction. The cost

basis of a facility's depreciable assets purchased and subsequently leased to an entity who continues to operate the facility will be the seller's cost basis less accumulated depreciation.

N.D. Admin. Code 75-02-09-10 Interest expense

1.To be allowable under the program, interest must be:

a.Supported by evidence of an agreement that funds were borrowed and that payment of interest and repayment of the funds are required. Repayment of operating loans must be made within two years of the borrowing;

b.Identifiable in the facility's accounting records;

c.Related to the reporting period in which the costs are incurred;

d.Necessary and proper for the operation, maintenance, or acquisition of the facility.

Necessary means that the interest be incurred on a loan made to satisfy a financial need of the facility and for a purpose reasonably related to resident care. Proper means that the interest be incurred at a rate not in excess of what a prudent borrower would have had to pay in an arm's-length transaction. In addition, the interest must be paid to a lender not related to the facility through common ownership or control;

e.Unrelated to funds borrowed to finance costs of assets in excess of the depreciable cost of the asset as recognized in section 75-02-09-09; and

f.If associated with refinancing or refunding debt, interest expense associated with the original borrowing must have been allocable when the debt was initially incurred.

2.If it is necessary to issue bonds to finance the costs of assets, any bond premium or discount must be amortized on a straight-line basis over the life of the bond issue.

N.D. Admin. Code 75-02-09-11 Taxes

1.Taxes assessed against the facility in accordance with the levying enactments of the several states and lower levels of government and for which the facility is liable for payment are allowable costs except for those taxes identified as nonallowable in section 75-02-09-08.

2.Whenever exemptions to taxes are legally available, the facility is to take advantage of them.

If the facility does not take advantage of available exemptions, the expense incurred for such taxes is not an allowable cost.

3.Special assessments in excess of one thousand dollars paid in a lump sum must be capitalized and depreciated. Special assessments not paid in a lump sum may be expensed as they are billed by the taxing authority.

N.D. Admin. Code 75-02-09-12 Home office costs

1.Home offices of chain organizations vary greatly in size, number of locations, staff, mode of operations, and services furnished to their member facilities. Although the home office of a chain is normally not a facility in itself, it may furnish to the individual facility central administration or other services such as centralized accounting, purchasing, personnel, or management services. Only the home office's actual costs of providing services is includable in the facility's allowable costs under the program.

2.Costs not allowed in the facility are not allowed as home office costs allocated to the facility.

3.Any service provided by the home office included in costs as payments by the facility to an outside vendor or which duplicates costs for services provided by the facility is a duplication of costs and is not allowed.

4.Where the home office makes a loan to or borrows money from one of the components of a chain organization, the interest paid is not an allowable cost and interest income is not used to offset interest expense.

N.D. Admin. Code 75-02-09-13 Related organizations

1.Costs applicable to services, buildings, equipment, and supplies furnished to a facility by a related organization may not exceed the lower of the costs to the related organization or the price of comparable services, buildings, equipment, or supplies purchased elsewhere primarily in the local market. A facility must identify such related organizations and costs. If any such costs are allocated, the allocation methods and statistics supporting the allocations must be submitted with the cost report.

2.A facility may lease buildings or equipment from a related organization within the meaning of ratesetting principles. In such a case, the rent paid to the lessor by the facility is not allowable as cost unless the rent paid is less than the allowable costs of ownership. If rent paid exceeds the allowable costs of ownership, the facility may include only the allowable costs of ownership. These costs are property insurance, depreciation, interest on the mortgage, real estate taxes, and plant operation expenses incurred by the lessor.

N.D. Admin. Code 75-02-09-14 Startup costs

In the first stages of operation, a new facility incurs certain costs in developing its ability to care for residents prior to their admission. Staff is obtained and organized, and other operating costs are incurred during this time of preparation which cannot be allocated to resident care during that period because there are not residents receiving services. These costs are commonly referred to as startup costs. The startup costs are to be capitalized and will be recognized as allowable administration costs amortized over sixty consecutive months on a straight-line basis starting with the month the first resident is admitted.

N.D. Admin. Code 75-02-09-15 Compensation

Reasonable compensation for an individual with a minimum of five percent ownership, individuals on the governing board, or family members of top management personnel, including spouses and individuals in the following relationship to top management personnel or their spouses: parent, stepparent, child, stepchild, grandparent, stepgrandparent, grandchild, stepgrandchild, brother, sister, half-brother, half-sister, stepbrother, and stepsister will be considered an allowable cost if services are actually performed and required to be performed. The amount allowed must be in an amount not to exceed the average of salaries paid to individuals in like positions in all psychiatric residential treatment facilities that are nonprofit organizations and have no top management personnel who have a minimum of five percent ownership or are on the governing board. Salaries used to determine the average must be based on the latest information available to the department. Reasonableness also requires that functions performed be necessary in that, had the services not been rendered, the facility would have to employ another individual to perform them.

History

• History: Effective May 1, 1994; amended effective October 1, 2011; January 1, 2025.

N.D. Admin. Code 75-02-09-16 Revenue offsets

A facility must identify income to offset facility costs when applicable so state financial participation does not supplant or duplicate other funding sources. Any income whether in cash or in any other form received by the facility, with the exception of the established rate, income from payments made under the Workforce Investment Act, donations, and income from charges for private rooms, special services, or bed holds will be offset up to the total of the appropriate actual costs. If actual costs are not identifiable, income will be offset in total to the appropriate cost category. If costs relating to income are reported in more than one cost category, the income must be offset based on the ratio of costs in each of the cost categories. Sources of income include:

1.Income received from or on behalf of employees, guests, or other nonresidents for meals or snacks, or the income received for food and related costs from other government programs such as the United States department of agriculture or the department of public instruction must be offset against dietary costs.

2.Income received from the sale of beverages, candy, or other food items must be offset against dietary costs.

3.Any amount received from insurance for a loss incurred must be offset against the appropriate cost category regardless of when the cost was incurred if the facility did not adjust the basis for depreciable assets.

4.Any refund, rebate, or discount received for a reported cost must be offset against the appropriate cost.

5.Any amount received for use of the facility's vehicles must be offset against transportation costs.

6.Gain on the sale of an asset must be offset against depreciation expense.

7.Revenue received from outside sources for the use of facility buildings or equipment will be offset against property expenses.

8.Any amount received by the facility from outside sources for services provided by facility employees will be offset against salaries.

9.Revenue from investments will be offset against interest expense.

10.Grants, gifts, restricted donations, and awards from the federal, state, local, or philanthropic agencies will be offset against the appropriate cost.

11.Gifts or endowment income designated by a donor for paying specific operating costs incurred in providing contract services must be offset against costs in the year the cost is incurred regardless of when the gift or endowment is received.

12.Other cost-related income or miscellaneous income, including amounts generated through the sale of a previously expensed item, e.g., supplies or equipment, must be offset against the cost category where the item was expensed.

13.Other income to the facility from local, state, or federal units of government may be determined by the department to be an offset against costs.

N.D. Admin. Code 75-02-09-17 Private pay rates

1.The medical assistance rate may not exceed the rate charged to nonmedical assistance residents for the same service. The rate being charged nonmedical assistance residents at the time the services are provided will govern. In cases where the residents are not charged a daily rate, a daily rate will be computed by dividing the total nonmedical assistance charges for each month by the total nonmedical assistance census for each month.

2.If the established medical assistance rate exceeds the rate charged to nonmedical assistance residents for a service, on any given date, the facility shall immediately report that fact to the department and charge the department at the lower rate. If payments were received at the higher rate, the facility shall, within thirty days, refund the overpayment. The refund must be the difference between the established rate and the rate charged to nonmedical assistance residents times the number of medical assistance resident days paid during the period in which the established rate exceeded the nonmedical assistance rate plus interest calculated at two percent over the Bank of North Dakota prime rate on any amount not repaid within thirty days. Interest charges on these refunds are not allowable costs.

N.D. Admin. Code 75-02-09-18 Reconsiderations and appeals

1.Reconsiderations.

a.A facility dissatisfied with the final rate established must request a reconsideration of the final rate before a formal appeal may be made. Any requests for reconsideration must be filed with the department's medical services division within thirty days of the date of the rate notification.

b.A request for reconsideration must include:

(1)A statement of each disputed item and the reason or basis for the dispute;

(2)The dollar amount of each item that is disputed; and (3)The statute or rule upon which the facility is relying for each disputed item.

c.The department may request additional documentation or information relating to a disputed item. If additional documentation is not provided within fourteen days of the department's request, the department shall make its determination based on the information and documentation available as of the fourteenth day following the date the department requested additional documentation.

d.The department's medical services division shall make a determination regarding the reconsideration within forty-five days of receiving the reconsideration filing and any requested documentation.

2.Appeals.

a.A facility dissatisfied with the final rate established may appeal upon completion of the reconsideration process as provided in subsection 1. An appeal must be filed with the department within thirty days of the date on the written notice of the determination by the medical services division with respect to a request for reconsideration.

b.An appeal under this section is timely perfected only if accompanied by written documents, including:

(1)A copy of the letter received from the department's medical services division advising of that division's decision on the request for reconsideration;

(2)A statement of each disputed item and the reason or basis for the dispute;

(3)A computation and the dollar amount which reflects the appealing party's claim as to the correct computation and dollar amount for each disputed item;

(4)The authority in statute or rule upon which the appealing party relies for each disputed item; and (5)The name, address, and telephone number of the person upon whom all notices will be served regarding the appeal.

N.D. Admin. Code 75-02-09-19 Participation requirement

1.A facility shall have an effective provider agreement with the department.

2.A facility may charge to hold a bed for a period in excess of the period covered under subsection 3 of section 75-02-09-05, if:

a.The resident, or a person acting on behalf of the resident, has requested the bed be held and the facility informs the person making the request, at the time of the request, of the amount of the charge; and

b.For a medical assistance resident, the payment comes from sources other than the resident's monthly income.

History

• History: Effective January 1, 2025.

Chapter 75-02-10 Aid to Vulnerable Aged, Blind, and Disabled Individuals

N.D. Admin. Code 75-02-10-01 Definitions

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 50-24.5. In addition, for purposes of this chapter, unless the context requires otherwise:

1."Activities of daily living" means bathing, dressing, toileting, transferring, eating, bed mobility, medication management, and personal hygiene.

2."Basic care facility" means a residence, not licensed under North Dakota Century Code

chapter 23-16 by the department, that provides room and board to five or more individuals who are not related by blood or marriage to the owner or manager of the residence and who, because of impaired capacity for independent living, require health, social, or personal care services, but do not require regular twenty-four-hour medical or nursing services and:

a.Makes response staff available at all times to meet the twenty-four-hour per day scheduled and unscheduled needs of the individual; or

b.Is kept, used, maintained, advertised, or held out to the public as an Alzheimer's, dementia, or special memory care facility.

3."Countable income" means gross income reduced by:

a.The cost of guardianship or conservatorship fees actually charged, but no more than five percent of monthly gross income;

b.The cost of the Medicare premium, but only if the individual is ineligible for Medicare cost-sharing benefits described in subdivision a of subsection 19 of section 75-02-02.1-01 as a qualified Medicare beneficiary or a special low-income Medicare beneficiary;

c.Court-ordered child support payments actually paid on behalf of a minor child who is not a member of the individual's Medicaid unit; and

d.For individuals receiving benefits provided under subsection 1 or 2 of section 75-02-10-02:

(1)In the month the individual enters the facility, the medically needy income level for a family of the size of the family in which the individual was a member at the beginning of the month; and (2)Sixty-five dollars plus one-half of the remaining monthly gross earned income.

4."Gross income" includes any income at the disposal of an applicant, recipient, or responsible relative; any income with respect to which an applicant, recipient, or responsible relative has a legal interest in a liquidated sum and the legal ability to make the sum available for support or maintenance; or any income an applicant, recipient, or responsible relative has the lawful power to make available or to cause to be made available. It includes any income that would be applied in determining eligibility for benefits under chapter 75-02-02.1; any income, except occasional small gifts, that would be disregarded in determining eligibility for benefits under

chapter 75-02-02.1, and recovery rebates authorized by section 2201 of the federal Coronavirus Aid, Relief, and Economic Security Act of 2020 [Pub. L. 116-136]; annuities, pensions, retirement, and disability benefits to which an applicant or recipient, or spouse of an applicant or recipient, may be entitled, including veterans' compensation and pensions of any type, old-age survivors, and disability insurance benefits; railroad retirement benefits; and unemployment compensation.

5."Institution" means a facility licensed under North Dakota Century Code chapter 23-09.3.

6."Instrumental activities of daily living" means activities to support independent living, including housekeeping, shopping, laundry, transportation, and meal preparation.

7."Necessary benefits" means those benefits:

a.Provided under this chapter;

b.Identified by the department, or a human service zone under the direction and supervision of the department, as appropriate to meet the needs of an applicant or recipient; and

c.Which, when provided in coordination and conjunction with benefits available from any other source, represent the means least costly to the department of meeting the needs of the applicant or recipient.

May 19, 2020.

History

• History: Effective May 1, 1995; amended effective January 1, 1997; June 1, 2002; April 1, 2012;

N.D. Admin. Code 75-02-10-02 Benefits available under this chapter

To the extent that an eligible individual lacks income sufficient to meet the cost of necessary benefits, the following benefits are available:

1.Supplementation of the income of users of basic care services;

2.Case management;

3.Other services the department determines to be essential and appropriate to sustain an individual in the individual's home and community, and to delay or prevent institutional care; and

4.Room and board, which is limited to the rate set for services in that facility by the department.

History

• History: Effective May 1, 1995; amended effective June 1, 2002; April 1, 2012.

N.D. Admin. Code 75-02-10-03 Application and redetermination. 1.a.All individuals wishing to make application for benefits under this chapter must have the opportunity to do so, without delay

b.An application is a request made by an individual desiring benefits under this chapter, or by a proper individual seeking such benefits on behalf of another individual, to a human service zone. A proper individual means any individual of sufficient maturity and understanding to act responsibly on behalf of the applicant.

c.An application consists of an application for Medicaid benefits and an application for services, which includes a functional assessment.

d.Application forms must be signed by the applicant if the applicant is physically and mentally able to do so. An application made on behalf of an applicant adjudged incompetent by a court must be signed by the guardian.

e.Information concerning eligibility requirements, available services, and the rights and responsibilities of applicants and recipients must be furnished to all who require it.

f.The date of application is the date an application, signed by an appropriate individual, is received at a human service zone.

2.A redetermination must be made within thirty days after a human service zone has received information indicating a possible change in eligibility status, when a recipient enters a nursing facility, and, in any event, no less than annually. A recipient or recipient's guardian has the same responsibility to furnish information during a redetermination as an applicant or an applicant's guardian has during an application.

N.D. Admin. Code 75-02-10-04 Applicant's or guardian's duty to establish eligibility

The applicant or guardian of the applicant shall provide information sufficient to establish eligibility for benefits, including a social security number and proof of age, identity, residence, blindness, disability, functional limitation, financial eligibility, and such other information as may be required by this

chapter for each month for which benefits are sought.

History

• History: Effective May 1, 1995.

N.D. Admin. Code 75-02-10-05 Eligibility criteria

An individual may receive necessary benefits under this chapter if the individual:

1.Is a resident of this state;

2.Is:

a.Sixty-five years of age or older; or

b.Eighteen years of age or older and disabled or blind;

3.Has applied for and been found eligible for Medicaid benefits;

4.Has countable income which, when reduced by the cost of necessary benefits provided under:

a.Subsection 1 or 2 of section 75-02-10-02, does not exceed the personal needs allowance established pursuant to legislative appropriation; or

b.Section 75-02-10-02, except subsection 1 or 2, does not exceed an amount equal to the cash benefit under title XVI of the Social Security Act [42 U.S.C. 1381, et seq.], which the individual would receive if the individual had no income or assets;

5.Has not made an assignment or transfer of property for the purpose of rendering the individual eligible for assistance under this chapter; and

6.Based on a functional assessment made in accordance with this chapter, is not severely impaired in any of the activities of daily living of toileting, transferring to or from a bed or chair, or eating; and

a.Has health, welfare, or safety needs, including a need for supervision or a structured environment, which require care in a licensed adult family foster care home or a licensed basic care facility; or

b.Is impaired in three of the following four instrumental activities of daily living:

(1)Preparing meals;

(2)Doing housework;

(3)Taking medicine; and (4)Doing laundry.

History

• History: Effective May 1, 1995; amended effective June 1, 2002; January 1, 2010.

N.D. Admin. Code 75-02-10-06 Functional assessment

1.For purposes of this section, "functional assessment" means an instrument used to record basic demographic and medical information about an individual, including age, date of birth, spoken language, marital status, individuals residing with, emergency contacts, medical resources, health care coverage, and source and reason for referral; and to secure measurable information regarding:

a.Physical health;

b.Cognitive and emotional functioning;

c.Activities of daily living;

d.Instrumental activities of daily living;

e.Informal supports;

f.Need for twenty-four-hour supervision;

g.Social participation;

h.Physical environment;

i.Financial resources; and

j.Other information about the individual's condition not recorded elsewhere.

2.An initial functional assessment, using an appropriate form determined by the department, must be completed as a part of the application for benefits under this chapter. An update of the individual's functional assessment must be completed in conjunction with each Medicaid eligibility redetermination that is anticipated to be completed at least six months after the initial functional assessment.

3.A functional assessment must include an interview with the individual in the home where the individual resides. 75-02-10-06.1. Adaptive assessment services.

Repealed effective April 1, 2012.

N.D. Admin. Code 75-02-10-07 Decision and notice

1.A decision as to eligibility will be made promptly on applications, usually within forty-five days, except in unusual circumstances.

2.A decision as to eligibility on a redetermination will be made within thirty days.

3.Immediately upon an eligibility determination, whether eligibility can be found, ineligibility can be found, or eligibility cannot be determined, applicants or recipients must be notified by the human service zone. A notice must be sent in advance of any decision terminating or reducing benefits under this chapter.

4.Notice must be timely and adequate, as provided under chapter 75-01-03.

5.Errors made by public officials and delays caused by the actions of public officials do not create eligibility and may not form the basis for the award of any benefit to an adversely affected applicant or recipient who would not otherwise be eligible to receive that benefit.

History

• History: Effective May 1, 1995.

N.D. Admin. Code 75-02-10-08 Disqualifying transfers. 1.a.Except as provided in subsection 2, an individual is ineligible for benefits under this

chapter if the individual or the spouse of the individual disposes of assets or income for less than fair market value on or after the look-back date specified in subdivision b.

b.The look-back date specified in this subdivision is a date that is thirty-six months, or, in the case of payments from a trust or portions of a trust that are treated as income or assets disposed of by an individual, sixty months, before the date on which the individual has applied for benefits under this chapter.

2.An individual is not ineligible for benefits under this chapter by reason of subsection 1 to the extent that:

a.The assets transferred were a home, and title to the home was transferred to:

(1)The individual's spouse; or (2)The individual's son or daughter who is under age twenty-one, blind, or disabled;

b.The income or assets:

(1)Were transferred to the individual's spouse or to another for the sole benefit of the individual's spouse; or (2)Were transferred from the individual's spouse to another for the sole benefit of the individual's spouse;

c.The individual makes a satisfactory showing that:

(1)The individual intended to dispose of the income or assets, either at fair market value or other valuable consideration, and the individual had an objectively reasonable belief that fair market value or its equivalent was received;

(2)The income or assets were transferred exclusively for a purpose other than to qualify for Medicaid or benefits under this chapter; or (3)For periods after the return, all income or assets transferred for less than fair market value have been returned to the individual; and

d.The individual shows that the total cumulative uncompensated value of all income and assets transferred for less than fair market value by the individual or the individual's spouse is less than the actual cost of services of a type provided as benefits under this

chapter, provided after the transfer was made, for which payment has not been made and which are not subject to payment by any third party, provided that such a showing may only be made with respect to periods when the individual is otherwise eligible for benefits under this chapter.

3.There is a presumption that a transfer for less than fair market value was made for purposes, including the purpose of qualifying for benefits under this chapter:

a.In any case in which the individual's assets and the assets of the individual's spouse remaining after the transfer produce income which, when added to other income available to the individual and to the individual's spouse totals an amount insufficient to meet all living expenses and medical costs reasonably anticipated to be incurred by the individual and by the individual's spouse in the month of transfer and in the thirty-five months, or fifty-nine months in the case of a transfer to a trust, following the month of transfer;

b.In any case in which an inquiry about Medicaid benefits or benefits under this chapter was made, by or on behalf of the individual to any other individual, before the date of the transfer;

c.In any case in which the individual or the individual's spouse was an applicant for or recipient of Medicaid or benefits under this chapter before the date of transfer;

d.In any case in which a transfer is made by or on behalf of the individual's spouse, if the value of the transferred income or asset, when added to the value of the individual's other assets, would exceed asset limits; or

e.In any case in which the transfer was made, on behalf of the individual or the individual's spouse, by a guardian, conservator, or attorney in fact, to the guardian, conservator, or attorney in fact or to any spouse, child, grandchild, brother, sister, niece, nephew, parent, or grandparent, by birth, adoption, or marriage, of the guardian, conservator, or attorney in fact.

4.An applicant or recipient who claims that income or assets were transferred exclusively for a

purpose other than to qualify for Medicaid or benefits under this chapter must show that a desire to receive Medicaid or benefits under this chapter played no part in the decision to make the transfer and must rebut any presumption arising under subsection 3. The fact, if it is a fact, that the individual would be eligible for Medicaid or benefits under this chapter had the individual's spouse not transferred income or assets for less than fair market value, is not evidence that the income or assets were transferred exclusively for a purpose other than to qualify for Medicaid or benefits under this chapter.

5.If the transferee of any income or asset is the child, grandchild, brother, sister, niece, nephew, parent, or grandparent of the individual or the individual's spouse, services or assistance furnished by the transferee to the individual or the individual's spouse may not be treated as consideration for the transferred income or asset unless the transfer is made pursuant to a valid written contract entered into prior to rendering the services.

6.A transfer is complete when the individual, or the individual's spouse, making the transfer has no lawful means of undoing the transfer or requiring a restoration of ownership.

7.For purposes of this section:

a.Fair market value is received:

(1)In the case of an asset not subject to reasonable dispute concerning its value, such as cash, bank deposits, stocks, and fungible commodities, when one hundred percent of apparent fair market value is received;

(2)In the case of an asset subject to reasonable dispute concerning its value, when seventy-five percent of estimated fair market value is received; and (3)In the case of income, when one hundred percent of apparent fair market value is received.

b."Uncompensated value" means the difference between fair market value and the value of any consideration received.

8.This section is applicable to all transfers whenever made.

N.D. Admin. Code 75-02-10-09 Residency

For purposes of this chapter:

1.An individual is a resident of this state if:

a.The individual is not living in an institution and is living in this state:

(1)With intent to remain in this state permanently or for an indefinite period; or (2)Without intent if the individual is incapable of stating intent.

b.The individual is living in an institution outside this state and was receiving a benefit under North Dakota Century Code chapter 50-01 immediately before January 1, 1995.

c.The individual was placed in an out-of-state institution by a county agency, human service zone, or the department while the individual was incapable of indicating intent.

d.The individual is living in an in-state institution, has lived in that institution for at least thirty days, and was not placed in that institution by another state. An individual placed in an institution by another state is a resident of the state making the placement. Any action beyond providing information to the individual and the individual's family constitutes arranging or making a state placement. The following actions do not constitute state placement:

(1)Providing basic information about this chapter and information about the availability of this chapter; or (2)Assisting an individual in locating an institution in this state, if the individual is capable of indicating intent and independently decides to move.

2.An individual who is a resident of this state is a resident of the human service zone in which the individual is a resident for purposes of receipt of benefits under North Dakota Century Code chapter 50-01.

N.D. Admin. Code 75-02-10-10 County administration

Repealed effective April 1, 2020.

Chapter 75-02-11 Food Stamp Program [Repealed]

N.D. Admin. Code 75-02-11 Food Stamp Program [Repealed]

CHAPTER 75-02-11

FOOD STAMP PROGRAM [Repealed effective September 27, 2005]

Repealed under North Dakota Century Code section 28-32-18.1 on the grounds that the chapter is obsolete.

Chapter 75-02-12 Housing Assistance

N.D. Admin. Code 75-02-12-01 Definitions

As used in this chapter, unless the context or subject matter otherwise requires:

1."Department" means the North Dakota department of human services.

2."Fraud" means deception or misrepresentation made by a person with knowledge that the deception could result in some unauthorized housing assistance benefit to that person or another and includes an act that constitutes fraud under applicable federal or state law.

3."Household" means any individual or group of individuals, regardless of relationship, who are living together as one economic unit which meets the identified eligibility criteria for housing assistance.

4."Housing provider" means an individual, partnership, association, corporation, or limited liability company that leases housing units to individuals.

N.D. Admin. Code 75-02-12-02 Application for housing provider participation in the housing assistance program

The department shall approve or deny a housing provider's application within thirty days of receipt of a complete housing provider's application. The department may declare an application withdrawn if the housing provider fails to submit a complete housing provider's application within twenty-one days of the department's notification to the household that the housing assistance application is incomplete. A complete housing provider's application includes:

1.A completed and signed housing provider's application in the form and manner prescribed by the department;

2.A signed agreement pursuant to section 75-02-12-05; and

3.Any information or documentation that has been requested by the department.

N.D. Admin. Code 75-02-12-03 Housing provider denials and revocations

1.A housing provider's application to participate in the housing assistance program may be denied if:

a.The housing provider is not the legal owner or property manager of the housing unit listed in the household's housing assistance application;

b.The housing provider's application contains false or misleading material information or the housing provider intentionally withheld material information;

c.The housing provider's participation in the housing assistance program has been previously revoked;

d.The department determines there is a credible allegation of fraud;

e.The household's housing assistance application is denied or withdrawn;

f.The exhaustion of appropriated funds has occurred for the housing assistance program; or

g.The housing assistance program has ended.

2.A housing provider's participation in the housing assistance program may be revoked:

a.For failure to comply with the terms and conditions of any signed agreements;

b.If it is discovered that a housing provider is not the legal owner or property manager of the housing unit for which housing assistance is being issued;

c.If a housing provider is not applying all housing assistance payments to the oldest rental and late fee arrears obligation first;

d.If the housing provider's participation approval was issued upon false or misleading material information or the housing provider intentionally withheld material information;

e.If the department determines there is a credible allegation of fraud;

f.If the household's housing assistance is revoked;

g.If the exhaustion of appropriated funds has occurred for the housing assistance program; or

h.If the housing assistance program has ended.

3.Housing assistance payment made directly to the housing provider may be denied if:

a.A revocation of the housing provider's participation approval in the housing assistance program has occurred before the household's rent payment being due;

b.The housing provider fails to comply with the terms and conditions of any signed agreements; or

c.The eligible household moves out of the housing unit.

4.The department may revoke all the housing provider's participation approvals pursuant to subsection 2.

N.D. Admin. Code 75-02-12-04 Housing provider's appeals of denials and revocations

A housing provider whose application to participate in or receive payment through the housing assistance program is denied or revoked may appeal a decision to deny the completed housing provider's application to participate in or receive payment or revocation. An appeal under this section must be made in writing on a form developed and provided by the department within ten days of the date of the department's notice of denial or revocation. A housing provider shall submit the written request for an appeal and hearing under North Dakota Century Code chapter 28-32 to the appeals supervisor for the department. A housing provider may not appeal a denial or revocation resulting from an exhaustion of appropriated funds for the housing assistance program, the housing assistance program ending, the submission of an invalid housing assistance payment request, or the housing provider's application being considered withdrawn. The household and the housing provider are not entitled to a housing assistance payment ten days after the issuance of a notice of revocation unless a final decision has been made by the department that reverses the decision to revoke.

N.D. Admin. Code 75-02-12-05 Signed acknowledgment required

A housing provider shall sign the acknowledgments contained in the housing provider application.

The signed acknowledgments are considered a signed agreement as referenced herein.

N.D. Admin. Code 75-02-12-06 Household eligibility for housing assistance

The household is eligible for housing assistance if:

1.The household completes and submits a housing assistance application in the form and manner prescribed by the department;

2.The household resides in North Dakota;

3.The household is at risk of eviction or experiencing housing instability;

4.The household has a written rental agreement with the housing provider or both parties selfattest to a rental agreement;

5.The household has an annual income no greater than eighty percent of area median income by household size by county;

6.The household's housing assistance application and housing provider's application does not contain false or misleading material information, or the household or housing provider did not intentionally withhold material information;

7.The exhaustion of appropriated funds has not occurred for the housing assistance program; and

8.The housing assistance program has not ended.

N.D. Admin. Code 75-02-12-07 Approval of a household's housing assistance application and payment

1.A notice of determination should be made no later than thirty days following the day that the household submitted a completed housing assistance application. A complete housing assistance application includes:

a.A completed and signed application in the form and manner prescribed by the department pursuant to section 75-02-12-06; and

b.Any information or documentation that has been requested by the department.

2.Housing assistance payments shall be made directly to the housing provider unless:

a.The housing provider's application to participate in the housing assistance program is denied;

b.The housing provider's participation in the housing assistance program is revoked before the household's rent payment being due;

c.The housing provider fails to comply with the terms and conditions of any signed agreements;

d.The housing provider refuses to participate in the program;

e.The housing provider refuses to receive payment; or

f.The eligible household moves out of the housing unit.

3.Housing assistance payments may be made directly to the household for the program purposes of promoting housing stability if the housing assistance payments are not made directly to the housing provider.

4.The department may declare a household's housing assistance application withdrawn if the department does not receive a complete application within twenty-one days of the department's notification to the household that the application is incomplete.

N.D. Admin. Code 75-02-12-08 Denial or revocation of housing assistance payment

1.A notice of denial should be sent no later than thirty days following the day that the household submitted a completed housing application. The department may deny the household's housing assistance application if the household is not eligible pursuant to section 75-02-12-06.

2.The department shall notify the household that the housing assistance is revoked. The department may revoke the household's housing assistance if the household no longer meets the eligibility criteria under section 75-02-12-06.

3.The department shall inform the household requesting the housing assistance of the reason for the denial or revocation and that the household may appeal the denial or revocation.

N.D. Admin. Code 75-02-12-09 Appeals of denials and revocation of eligibility for housing assistance

A household that has requested housing assistance may appeal a decision to deny the completed application or revocation of eligibility for assistance. An appeal under this section must be made in writing on a form developed and provided by the department within ten days of the date of the notice issued under section 75-02-12-08. A household shall submit the written request for an appeal and hearing under North Dakota Century Code chapter 28-32 to the appeals supervisor for the department.

A household may not appeal a denial or revocation resulting from an exhaustion of appropriated funds for the housing assistance program or the housing assistance program ending. The household and the housing provider are not entitled to a housing assistance payment ten days after the issuance of a notice of revocation unless a final decision has been made by the department that reverses the decision to revoke.

N.D. Admin. Code 75-02-12-10 Exceptions to eligibility rules considered

A household may request an exception to the eligibility criteria. Exceptions will be considered with regard to a household meeting the eligibility criteria. Exception requests will be reviewed on a case-bycase basis. The department may deny a request for an exception and may revoke an exception granted under this section. The decision to deny a request for an exception or to revoke an exception is not an appealable decision.

Chapter 75-02-13 Family Paid Caregiver Program

N.D. Admin. Code 75-02-13-01 Definitions

1."Applicant" means an individual seeking services under this chapter.

2."Application" means a request in the form and manner prescribed by the department signed by an applicant or by a legally responsible individual on behalf of the applicant.

3."Assessment" means the tool used by the family paid caregiver program to determine when an applicant needs extraordinary care considering the unique needs and circumstances of an applicant, including age, community living skills, social and communication skills, medication needs, medical needs, specialized physical and therapeutic needs, and maladaptive issues.

4."Department" means the department of health and human services.

5."Extraordinary care" means care determined by the assessment as exceeding the range of activities that a legally responsible individual would ordinarily perform in the household on behalf of the applicant or eligible participant without extraordinary medical or behavioral needs and is necessary to assure the health and welfare and to avoid institutionalization of the applicant or eligible participant in need of care.

6."Family caregiver" means a legally responsible individual who lives with and provides daily care to an eligible participant.

7."Legally responsible individual" means an individual who has a duty under law to care for the applicant or eligible participant, including a biological or adoptive parent, nonentity custodian, guardian, or a spouse.

8."Medicaid 1915(c) waiver" means the approved autism spectrum disorder waiver, medically fragile waiver, children's hospice waiver, or traditional individuals with intellectual disabilities and developmental disabilities home and community-based services waiver.

History

• History: Effective April 1, 2024; amended effective June 29, 2026.

N.D. Admin. Code 75-02-13-02 Application - Eligibility

1.An applicant or legally responsible individual may apply to the department to participate in the family paid caregiver program.

2.A completed application must be submitted to the department upon initial application and annually thereafter.

3.The date of application is the date a completed application is received by the department.

4.The department may declare an application withdrawn if the applicant or legally responsible individual fails to submit all required documentation or information within thirty days of the department's notification to the applicant or legally responsible individual that the application is incomplete.

5.An applicant is eligible to become an eligible participant if all the following conditions are met:

a.The applicant is enrolled in a Medicaid 1915(c) waiver;

b.The applicant's support needs are not otherwise compensated for through other services available through a Medicaid 1915(c) waiver or Medicaid state plan;

c.The applicant's assessment score is at least fifty percent of the applicable points based on the age of the applicant to meet the extraordinary care requirement; and

d.The requirements of section 75-02-13-03 are met.

History

• History: Effective April 1, 2024; amended effective June 29, 2026.

N.D. Admin. Code 75-02-13-03 Administration

1.Eligible participants supported under this chapter may not exceed the limits of legislative appropriations for the family paid caregiver program.

2.The department shall review completed applications in the order received and shall only approve applications within the limits of legislative appropriations for the family paid caregiver program.

3.Upon review of an application form, the department shall request that the applicant or legally responsible individual complete the assessment. The department shall score the assessment to determine whether the applicant's score is at least fifty percent of the applicable points based on the age of the applicant to meet the extraordinary care requirement. An assessment is part of a completed application.

4.Upon approval of a completed application, the department shall issue an authorization not to exceed six months. The department may reissue an authorization for an additional six months.

5.The family caregiver shall attest annually the family caregiver will not seek reimbursement for extraordinary care through the family caregiver service pilot program on days when other 1915(c) waiver services are paid by the department.

6.The department shall conduct face-to-face visits in the eligible participant's home at a minimum of every six months.

7.If the family caregiver has not submitted a request for payment for thirty calendar days, the department shall inform the eligible participant or legally responsible individual that if an additional thirty calendar days pass without a request for payment, the service may be terminated due to inactivity.

8.The department shall deny an application if approval would exceed the limits of legislative appropriations for the family paid caregiver program or if the applicant does not meet the eligibility requirements pursuant to section 75-02-13-02. The department shall terminate an authorization if the funding awarded is exhausted or due to inactivity. The department shall revoke an authorization if the eligible participant is no longer eligible pursuant to

section 75-02-13-02 or if the department is unable to conduct face-to-face visits due to refusal.

9.Funds are not available until the department approves the application and issues an authorization.

History

• History: Effective April 1, 2024; amended effective January 1, 2026; June 29, 2026.

N.D. Admin. Code 75-02-13-04 Denials - Revocations - Terminations - Appeals

1.The department shall issue a written notice to an applicant, eligible participant, or a legally responsible individual if the department denies, revokes, or terminates.

2.The department shall include the reason for the denial, revocation, or termination and shall inform the applicant, eligible participant, or legally responsible individual of the right to appeal the denial, revocation, or termination, if applicable.

3.An application may be denied, revoked, or terminated under the terms and conditions of this

chapter or North Dakota Century Code section 50-24.1-47.

4.An applicant, eligible participant, or legally responsible individual may appeal a denial, revocation, or termination of an application or authorization under this chapter. An appeal under this section must be made in writing within thirty days of the date of the notice issued under this section. The applicant, eligible participant, or legally responsible individual shall submit the written request for an appeal and hearing under chapter 75-01-03 and North Dakota Century Code chapter 28-32 to the appeals supervisor for the department.

5.An applicant, eligible participant, or legally responsible individual may not appeal:

a.A denial, revocation, termination, or reduction in payment resulting from exhausting or exceeding the limits of legislative appropriations for the family paid caregiver program;

b.A denial, revocation, or termination of an application or authorization under this chapter if the applicant is no longer eligible for a Medicaid 1915(c) waiver at the time of the denial, revocation, or termination;

c.If the family caregiver is not a legally responsible individual who lives with and provides daily care to an eligible participant; or

d.An application that has been withdrawn.

6.A family caregiver is not entitled to payment upon notice of revocation or termination to the eligible participant or legally responsible individual or during an appeal.

History

• History: Effective April 1, 2024; amended effective January 1, 2026.

Article 75-03 Community Services

Chapter 75-03-01 Supplemental Parental Child Care and Family Day Care

N.D. Admin. Code 75-03-01 Supplemental Parental Child Care and Family Day Care

ARTICLE 75-03

COMMUNITY SERVICES

Chapter 75-03-01Supplemental Parental Child Care and Family Day Care [Superseded] 75-03-01.1Supplemental Parental Care and Family Day Care [Superseded] 75-03-02Day Care Centers [Superseded] 75-03-02.1Day Care Centers [Superseded] 75-03-03Foster Care Group Homes [Superseded] 75-03-04Residential Child Care Facilities [Superseded] 75-03-05Family Boarding Homes for Students With Disabilities [Repealed] 75-03-06Family Subsidy Program [Redesignated] 75-03-07In-Home Child Care Early Childhood Services 75-03-07.1Self-Declaration Providers Early Childhood Services 75-03-08Family Child Care Homes Early Childhood Services 75-03-09Group Child Care Early Childhood Services 75-03-10Child Care Center Early Childhood Services 75-03-11Preschool Educational Facilities Early Childhood Services 75-03-11.1School Age Child Care Center Early Childhood Services 75-03-12Foster Parent Grievance Procedure [Repealed] 75-03-13Information Corroborating Paternity 75-03-14Family Foster Care Homes 75-03-14.1Shelter Care Program Certification 75-03-15Ratesetting for Providers of Services to Foster Children - Qualified Residential Treatment Programs 75-03-16Licensing of Group Homes and Residential Child Care Facilities [Repealed] 75-03-17Psychiatric Residential Treatment Facilities for Children 75-03-17.1Authorized Agent in Providing Child Welfare Services 75-03-18Procedures for Appeal of Child Abuse and Neglect Assessments 75-03-18.1Child Abuse and Neglect Assessment Grievance Procedure for Conduct of the Assessment 75-03-19Assessment of Child Abuse and Neglect Reports 75-03-19.1Child Fatality Review Panel 75-03-19.2Approved Locations for Abandoned Infants 75-03-20Ratesetting for Residential Treatment Centers for Children 75-03-21Licensing of Foster Homes for Adults 75-03-22Transitional Living [Repealed] 75-03-23Provision of Home and Community-Based Services Under the Service Payments for Elderly and Disabled Program and the Medicaid Waiver for the Aged and Disabled Program 75-03-23.1Target Population Member Rental Assistance Program 75-03-23.2Community Transition and Diversion Program 75-03-24Expanded Service Payments For Elderly and Disabled 75-03-25Ombudsman Program 75-03-26Aging Services Community Programs Under the Older Americans Act [Repealed] 75-03-27[Reserved] 75-03-28[Reserved] 75-03-29[Reserved] 75-03-30[Reserved] 75-03-31[Reserved] 75-03-32Mill Levy [Repealed] 75-03-33Intergovernmental Transfer Program 75-03-34Licensing of Assisted Living Facilities 75-03-35Provision of Medical Food and Low-Protein Modified Food Products to Individuals With Phenylketonuria and Maple Syrup Urine Disease 75-03-36Licensing of Child-Placing Agencies 75-03-37Transition-Aged Youth at Risk 75-03-38Autism Spectrum Disorder Voucher Program [Repealed] 75-03-39Autism Services Waiver 75-03-40Licensing of Qualified Residential Treatment Program Providers 75-03-41Supervised Independent Living 75-03-42Authorized Electronic Recording 75-03-43Certified Peer Support Specialists 75-03-44Certified Community Behavioral Health Clinic Certification

CHAPTER 75-03-01

SUPPLEMENTAL PARENTAL CHILD CARE AND FAMILY DAY CARE [Superseded by Chapter 75-03-01.1]

Chapter 75-03-01.1 Supplemental Parental Care and Family Day Care

N.D. Admin. Code 75-03-01.1 Supplemental Parental Care and Family Day Care

CHAPTER 75-03-01.1

SUPPLEMENTAL PARENTAL CARE AND FAMILY DAY CARE [Superseded by Chapters 75-03-07, 75-03-08, and 75-03-09]

Chapter 75-03-02 Day Care Centers

N.D. Admin. Code 75-03-02 Day Care Centers

CHAPTER 75-03-02

DAY CARE CENTERS [Superseded by Chapter 75-03-02.1]

Chapter 75-03-02.1 Day Care Centers

N.D. Admin. Code 75-03-02.1 Day Care Centers

CHAPTER 75-03-02.1

DAY CARE CENTERS [Superseded by Chapters 75-03-09, 75-03-10, and 75-03-11]

Chapter 75-03-03 Foster Care Group Homes

N.D. Admin. Code 75-03-03 Foster Care Group Homes

CHAPTER 75-03-03

FOSTER CARE GROUP HOMES [Superseded by Chapter 75-03-16]

Chapter 75-03-04 Residential Child Care Facilities

N.D. Admin. Code 75-03-04 Residential Child Care Facilities

CHAPTER 75-03-04

RESIDENTIAL CHILD CARE FACILITIES [Superseded by Chapter 75-03-16]

Chapter 75-03-05 Family Boarding Homes for Students with Disabilities [Repealed]

N.D. Admin. Code 75-03-05 Family Boarding Homes for Students with Disabilities [Repealed]

CHAPTER 75-03-05

FAMILY BOARDING HOMES FOR STUDENTS WITH DISABILITIES [Repealed pursuant to North Dakota Century Code Section 28-32-18.1, effective October 17, 2002]

Chapter 75-03-06 Family Subsidy Program

N.D. Admin. Code 75-03-06 Family Subsidy Program

CHAPTER 75-03-06

FAMILY SUBSIDY PROGRAM [Redesignated as Chapter 75-04-04]

Chapter 75-03-07 In-Home Child Care Early Childhood Services

N.D. Admin. Code 75-03-07-01 Purpose

Repealed effective January 1, 2011.

N.D. Admin. Code 75-03-07-02 Objective of rules

Repealed effective January 1, 2011.

N.D. Admin. Code 75-03-07-03 Definitions

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-11.1-02.

History

• History: Effective December 1, 1981; amended effective January 1, 2011.
• Law Implemented: NDCC 50-11.1-02, 50-11.1-06, 50-11.1-08

N.D. Admin. Code 75-03-07-04 In-home registration and standards

1.An application for a registration document must be submitted to the department wherein the applicant proposes to provide in-home services. Application must be made in the form and manner prescribed by the department.

2.An applicant for an in-home registration document shall be directly responsible for the care, supervision, and guidance of the child or children in the child or children's home and shall comply with the following standards, certifying in the application that the applicant:

a.Is at least eighteen years of age.

b.Is physically, cognitively, socially, and emotionally healthy and will use mature judgment when making decisions impacting the quality of child care.

c.Shall devote adequate time and attention to the children in the applicant's care and provide an environment that is physically and socially adequate for children.

d.Shall participate in specialized training related to child care if provided by or approved by the department.

e.Shall complete one hour of department-approved training annually on safe sleep prior to in-home provider having unsupervised access to infants and one hour on mandated reporter of suspected child abuse or neglect.

f.Shall provide food of sufficient quantity and nutritious quality in accordance with the United States department of agriculture standards which satisfies the dietary needs of the children while in the applicant's care.

g.Shall provide proper care, supervision, and protection for children in the applicant's care.

Supervision means the provider being within sight or hearing range of an infant, toddler, or preschooler at all times so the provider is capable of intervening to protect the health and safety of the child. For the school-age child, it means a provider being available for assistance and care so that the child's health and safety are protected.

h.Shall provide for a safe and sanitary environment while children are in care.

i.May not use or be under the influence of any illegal drugs or alcoholic beverages while children are in care.

j.May not leave children without supervision.

k.Shall ensure that discipline is constructive or educational in nature and may include diversion, separation from the problem situation, talking with the child about the situation, praising appropriate behavior, or gentle physical restraint, such as holding. A child may not be subjected to physical harm, fear, or humiliation. Disregard of any of the following disciplinary rules or any disciplinary measure resulting in physical or emotional injury, or neglect or abuse, to any child is grounds for denial or revocation of an in-home registration.

(1)Authority to discipline may not be delegated to children nor may discipline be administered by children.

(2)Separation, when used as discipline, must be appropriate to the child's development and circumstances. The child must be in a safe, lighted, well-ventilated room within sight or hearing range of the in-home provider. An in-home provider may not isolate a child in a locked room or closet.

(3)A child may not be punished for lapses in toilet training.

(4)An in-home provider may not use verbal abuse or make derogatory remarks about a child, or a child's family, race, or religion when addressing the child or in the presence of a child.

(5)An in-home provider may not use profane, threatening, unduly loud, or abusive language in the presence of a child.

(6)An in-home provider may not force-feed a child or coerce a child to eat, unless medically prescribed and administered under a medical provider's care.

(7)An in-home provider may not use deprivation of meals or snacks as a form of discipline or punishment.

(8)An in-home provider may not kick, punch, spank, shake, pinch, bite, roughly handle, strike, mechanically restrain, or physically maltreat a child.

(9)An in-home provider may not force a child to ingest substances that would cause pain or discomfort, for example, placing soap in a child's mouth to deter the child from biting other children.

(10)An in-home provider may not withhold active play from a child as a form of discipline or punishment, beyond a brief period of separation.

l.Shall discuss methods of discipline and child management with the parent or parents.

3.If the physical or mental, cognitive, social, or emotional health capabilities of an in-home applicant or provider appear to be questionable, the department may require the individual to present evidence of the individual's ability to provide the required care based on a formal evaluation. The department is not responsible for costs of any required evaluation.

4.In-home providers shall ensure safe care for the children receiving services in their care. If a confirmed decision made under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists, indicating that a child has been abused or neglected by the applicant or in-home provider, that decision has a direct bearing on the applicant's or in-home provider's ability to serve the public in a capacity involving the provision of child care and the application or in-home registration may be denied or revoked. If a confirmed determination under North Dakota Century Code

chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists indicating that any child has been abused or neglected by the applicant or in-home provider, the applicant or in-home provider shall furnish information, satisfactory to the department, from which the department can determine the applicant's or in-home provider's ability to provide care that is free of abuse or neglect. The department shall furnish the determination of current ability to the applicant or in-home provider. Each applicant shall complete a department-approved authorization for background check form no later than the first day of employment.

5.An in-home provider may provide early childhood services in a private residence for up to five children through the age of eleven, of which no more than three may be under the age of twenty-four months.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; January 1, 2011; April 1, 2016; April 1, 2018; July 1, 2020; January 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-11.1-01, 50-11.1-02, 50-11.1-06, 50-11.1-07, 50-11.1-08

N.D. Admin. Code 75-03-07-05 Minimum requirements for care of children with special needs

An in-home provider shall make appropriate accommodations, as required by the Americans with Disabilities Act, to meet the needs of children with special needs. The in-home provider must receive documentation of the child's special needs by the parent upon the child's enrollment.

1.When a child with special needs is being cared for, the in-home provider shall consult with the child's parents, and, with the parent's permission, the child's source of professional health care, or, when appropriate, other health and professional consultants to gain an understanding of the child's individual needs. The in-home provider shall receive a written health care plan from the child's medical provider or parent with information related to the child's special needs, such as a description, definition of the diagnosis, and general information for emergency and required care such as usual medications and procedures.

2.In-home providers shall receive proper instructions as to the nature of the child's special needs and potential for growth and development.

History

• History: Effective January 1, 2011.
• Law Implemented: NDCC 50-11.1-01, 50-11.1-06, 50-11.1-08

N.D. Admin. Code 75-03-07-06 Denial or revocation of in-home registration

1.The right to provide early childhood services is dependent upon the applicant's or provider's continuing compliance with the terms of the registration as listed in section 75-03-07-04.

2.A fraudulent or untrue representation is grounds for revocation or denial. 3.a.The applicant or in-home provider may not have been found guilty of, pled guilty to, or pled no contest to:

(1)An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2 sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; or 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

(2)An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in paragraph 1; or (3)An offense, other than an offense identified in paragraph 1 or 2, if the department determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

b.The department has determined that the offenses enumerated in paragraphs 1 and 2 of subdivision a have a direct bearing on the applicant's or provider's ability to serve the public in a capacity as a provider.

c.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; in the case of a class B misdemeanor offense described in North Dakota Century Code section 12.1-17-01.2, domestic violence; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

4.An in-home provider shall submit an application for a fingerprint-based criminal history record check at the time of application and within five years from the date of initial approval and at least once every five years thereafter. The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department shall submit a request to the bureau of criminal investigation for a nationwide name-based criminal history record check.

5.Review of fingerprint-based criminal history record check results.

a.If an individual disputes the results of the criminal history record check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the department's memo outlining the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

c.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

January 1, 2022; April 1, 2024.

History

• History: Effective January 1, 2011; amended effective April 1, 2014; April 1, 2016; April 1, 2018;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-06, 50-11.1-06.1, 50-11.1-06.2, 50-11.1-07, 50-11.1-08

N.D. Admin. Code 75-03-07-07 Appeals

An applicant for an in-home registration or in-home provider may appeal a decision to deny or revoke a registration document by filing a written appeal with the department. The appeal must be postmarked or received by the department within ten calendar days of the in-home registration or in-home provider's receipt of written notice of the decision to deny or revoke the registration document.

Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

History

• History: Effective January 1, 2011.
• Law Implemented: NDCC 50-11.1-06, 50-11.1-08, 50-11.1-10

Chapter 75-03-07.1 Self‑Declaration Providers Early Childhood Services

N.D. Admin. Code 75-03-07.1 Self‑Declaration Providers Early Childhood Services

CHAPTER 75-03-07.1

SELF-DECLARATION PROVIDERS EARLY CHILDHOOD SERVICES

Section 75-03-07.1-00.1Definitions 75-03-07.1-01Fees [Repealed] 75-03-07.1-02Self-Declaration Standards - Application 75-03-07.1-03Smoke-Free Environment [Repealed] 75-03-07.1-04One Per Residence - Nontransferability of Self-Declaration and Emergency Designee 75-03-07.1-05Appeals 75-03-07.1-06Denial or Revocation of Self-Declaration Document 75-03-07.1-07Minimum Sanitation Requirements 75-03-07.1-08Infant Care 75-03-07.1-09Minimum Requirements for the Care of Children With Special Needs 75-03-07.1-10Correction of Violations 75-03-07.1-11Fiscal Sanctions 75-03-07.1-12Restricted Self-Declaration 75-03-07.1-13Minimum Emergency and Disaster Plans 75-03-07.1-00.1. Definitions.

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-11.1-02. In addition, as used in this chapter:

1."Annual" is defined as the provider's approved self-declaration year.

2."Application" means all forms the department requires when applying or reapplying for a selfdeclaration.

3."Aquatic activity" means an activity in or on a body of water, either natural or manmade, including rivers, lakes, streams, swimming pools, and water slides.

4."Attendance" means the total number of children present at any one time.

5."Child with special needs" means a child whose medical providers have determined that the child has or is at risk for chronic physical, developmental, behavioral, or emotional conditions.

6."Emergency designee" means an individual designated by a provider to be a backup staff member for emergency assistance or to provide substitute care.

7."Infant" means a child who is less than twelve months of age.

8."Provider" means the holder of a self-declaration document.

9."Supervision" means a provider or emergency designee responsible for caring for or teaching children being within sight or hearing range of an infant, toddler, or preschooler at all times so that the provider or emergency designee is capable of intervening to protect the health and safety of the child. For the school-age child, it means a provider or emergency designee responsible for caring for or teaching children being available for assistance and care so that the child's health and safety is protected.

History: Effective January 1, 2011; amended effective April 1, 2016; January 1, 2022; January 1, 2023.

Law Implemented: NDCC 50-11.1-02, 50-11.1-08, 50-11.1-17 75-03-07.1-01. Fees.

Repealed effective January 1, 2011. 75-03-07.1-02. Self-declaration standards - Application.

1.An applicant for a self-declaration document shall submit the application to the department in which the applicant proposes to provide early childhood services. An application, including a department-approved authorization for background check for household members age twelve and older, an emergency designee, and an applicant, and an application for a fingerprintbased criminal history record check for the applicant and emergency designee, must be made in the form and manner prescribed by the department.

2.The current self-declaration document must be displayed prominently in the premises to which it applies.

3.A provisional self-declaration document may be issued:

a.The department may issue a provisional self-declaration document although the applicant or provider fails to, or is unable to, comply with all applicable standards and rules of the department.

b.A provisional self-declaration document must:

(1)State that the provider has failed to comply with all applicable standards and rules of the department;

(2)State the items of noncompliance;

(3)Expire at a set date, not to exceed six months from the date of issuance; and (4)Be exchanged for an unrestricted self-declaration document, which bears an expiration date of one year from the date of issuance of the provisional self-declaration document, after the applicant or provider demonstrates compliance, satisfactory to the department, with all applicable standards and rules.

c.The department may issue a provisional self-declaration document only to an applicant or provider who has waived, in writing:

(1)The right to a written statement of charges as to the reasons for the denial of an unrestricted self-declaration document; and (2)The right to an administrative hearing, in the manner provided in North Dakota Century Code chapter 28-32, concerning the nonissuance of an unrestricted self-declaration document, either at the time of application or during the period of operation under a provisional self-declaration document.

d.Any provisional self-declaration document issued must be accompanied by a written statement of violations signed by the department and must be acknowledged in writing by the provider.

e.Subject to the exceptions contained in this section, a provisional self-declaration document entitles the provider to all rights and privileges afforded the provider of an unrestricted self-declaration document.

f.The provider shall display prominently the provisional self-declaration document and agreement.

g.The provider shall provide parents written notice that the provider is operating on a provisional self-declaration document and the basis for the provisional self-declaration document.

4.The provider shall be directly responsible for the care, supervision, and guidance of the children.

a.The provider:

(1)Must be at least eighteen years of age;

(2)Shall provide an environment that is physically and socially adequate for the children; and that the provider is of good physical, cognitive, social, and emotional health and shall use mature judgment when making decisions impacting the quality of child care;

(3)Shall devote adequate time and attention to the children in the provider's care;

(4)Shall provide food of sufficient quantity and nutritious quality in accordance with the United States department of agriculture standards which satisfies the dietary needs of the children while in the provider's care;

(5)Shall provide proper care and protection for children in the provider's care;

(6)May not use or be under the influence of, and will not allow any household member or emergency designee to use or be under the influence of any illegal drugs or alcoholic beverages while caring for children;

(7)May not leave children without supervision;

(8)Shall verify that the child has received all immunizations appropriate for the child's age, as prescribed by the public health division of the department, or have on file a document stating that the child is medically exempt or exempt from immunizations based on religious, philosophical, or moral beliefs;

(9)Shall report immediately, as a mandated reporter, suspected child abuse or neglect as required by North Dakota Century Code section 50-25.1-03;

(10)Shall provide a variety of games, toys, books, crafts, and other activities and materials to enhance the child's intellectual and social development and to broaden the child's life experience. Each provider shall have enough play materials and equipment so that at any one time each child in attendance may be involved individually or as a group;

(11)Shall ensure a current health assessment or a health assessment statement completed by the parent is obtained at the time of initial enrollment of the child, which must indicate any special precautions for diet, medication, or activity. This assessment must be completed annually;

(12)Shall ensure a child information form completed by the parent is obtained at the time of initial enrollment of the child and annually thereafter;

(13)Shall certify completion of a department-approved basic child care course within ninety days of being approved as a provider;

(14)Shall be currently certified in infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department;

(15)Shall be currently certified in pediatric first aid by a program approved by the department;

(16)Shall complete a minimum of three hours of department-approved training annually, including one hour on safe sleep prior to provider providing care to infants and one hour on mandated reporter of suspected child abuse or neglect. The same training courses may be counted toward self-declaration annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of safe sleep and mandated reporter annual training;

(17)Shall ensure the emergency designee is currently certified in infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department;

(18)Shall ensure the emergency designee is currently certified in pediatric first aid by a program approved by the department;

(19)Shall ensure the emergency designee certifies completion of a departmentapproved basic child care course within ninety days;

(20)Shall ensure that the emergency designee completes required departmentapproved training annually, including one hour on safe sleep prior to emergency designee providing care to infants and one hour on mandated reporter of suspected child abuse or neglect;

(21)Shall release a child only to the child's parent, legal custodian, guardian, or an individual who has been authorized by the child's parent, legal custodian, or guardian;

(22)Shall report to the department within twenty-four hours:

(a)A death or serious accident or illness requiring hospitalization of a child while in the care of the self-declaration provider or attributable to care received by the self-declaration provider;

(b)An injury to any child which occurs while the child is in the care of the self-declaration provider and which requires medical treatment;

(c)Poisonings or errors in the administration of medication;

(d)Closures or relocation of self-declaration program due to emergencies; and (e)Fire that occurs or explosions that occur in or on the premises of the self-declaration provider;

(23)Shall secure written permission and follow proper instructions as to the administration of medication.

(a)Medication prescribed by a medical provider must be accompanied by the medical provider's written instructions as to dosage and storage and labeled with the child's name and date.

(b)The provider shall store medications in an area inaccessible to children.

(c)Medications stored in a refrigerator must be stored collectively in a spillproof container.

(d)The provider shall keep a written record of the administration of medication, including over-the-counter medication, for each child. Records must include the date and time of each administration, the dosage, the name of the staff member administering the medication, and the name of the child. Completed medication records must be included in the child's record; and (24)Shall notify parents, legal custodians, or guardians of child's exposure to a presumed or confirmed reportable infectious disease.b.The provider shall ensure that discipline will be constructive or educational in nature and may include diversion, separation from the problem situation, talking with the child about the situation, praising appropriate behavior, or gentle physical restraint such as holding. A child may not be subjected to physical harm or humiliation. Disregard of any of the following disciplinary rules or any disciplinary measure resulting in physical or emotional injury or neglect or abuse to any child is grounds for denial or revocation of a self-declaration document.

(1)A child may not be kicked, punched, spanked, shaken, pinched, bitten, roughly handled, struck, mechanically restrained, or physically maltreated by the provider, emergency designee, household member, or any other adult in the residence.

(2)Authority to discipline may not be delegated to or be administered by children.

(3)Separation, when used as discipline, must be appropriate to the child's development and circumstances, and the child must be in a safe, lighted, well-ventilated room within sight or hearing range of an adult. A child may not be isolated in a locked room or closet.

(4)A child may not be punished for lapses in toilet training.

(5)A provider may not use verbal abuse or make derogatory remarks about the child, or the child's family, race, or religion when addressing a child or in the presence of a child.

(6)A provider may not use profane, threatening, unduly loud, or abusive language in the presence of a child.

(7)A provider may not force-feed a child or coerce a child to eat unless medically prescribed and administered under a medical provider's care.

(8)A provider may not use deprivation of snacks or meals as a form of discipline or punishment.

(9)A provider may not force a child to ingest substances that would cause pain or discomfort, for example, placing soap in a child's mouth to deter the child from biting other children.

(10)A provider may not withhold active play from a child as a form of discipline or punishment, beyond a brief period of separation.

c.The provider shall ensure that a working smoke detector is properly installed and in good working order on each floor used by children.

d.The provider shall ensure that a fire extinguisher that is inspected annually is properly installed, is in good working order, and is located in the area used for child care.

e.The provider shall ensure that a working telephone is located in the location used for child care. Current emergency numbers for parents and first responders must be posted.

f.When transportation is provided by a provider, children must be protected by adequate supervision, safety precautions, and liability insurance.

(1)Drivers must be eighteen years of age or older and must comply with all relevant federal, state, and local laws, including child restraint laws.

(2)A child must not be left unattended in a vehicle.

g.Aquatic activities:

(1)The provider shall have policies that ensure the health and safety of children in care while participating in aquatic activities, including types of aquatic activities the selfdeclaration program may participate in, staff-to-child ratios appropriate to the ages and swimming ability of the children participating in aquatic activities, and additional safety precautions to be taken.

(2)The provider may not permit any child to participate in an aquatic activity without written parental permission, which includes parent disclosure of the child's swimming ability.

5.Potential hazards, such as guns, household cleaning chemicals, uninsulated wires, medicines, noncovered electrical outlets, poisonous plants, and open stairways must not be accessible to children. Guns and ammunition must be kept in separate locked storage, or trigger locks must be used. Other weapons and dangerous sporting equipment, such as bows and arrows, must not be accessible to children.

6.The provider shall ensure the self-declaration program has a drinking water supply from an approved community water system or from a source tested and approved annually by the department of environmental quality.

7.If the physical, cognitive, social, or emotional health capabilities of an applicant or provider appear to be questionable, the department may require that the individual present evidence of capability to provide the required care based on a formal evaluation. The department is not responsible for costs of any required evaluation.

8.A self-declaration document is only effective for one year.

History: Effective June 1, 1995; amended effective January 1, 2011; January 1, 2013; April 1, 2016;

April 1, 2018; July 1, 2020; January 1, 2022; January 1, 2023; April 1, 2024.

Law Implemented: NDCC 50-11.1-07, 50-11.1-08, 50-11.1-16, 50-11.1-17 75-03-07.1-03. Smoke-free environment.

Repealed effective January 1, 2011. 75-03-07.1-04. One per residence - Nontransferability of self-declaration and emergency designee.

1.The department may not authorize more than one in-home registration, self-declaration, or license per residence. A residence means real property that is typically used as a single family dwelling.

2.The applicant may identify one emergency designee for the self-declaration at the time of the application. The emergency designee must be at least eighteen years old and must be approved by the department.

3.The provider shall be on the premises supervising the children at all times when children are present, except in situations during which the emergency designee is providing care.

4.The self-declaration is nontransferable to another residence.

History: Effective June 1, 1995; amended effective January 1, 2011; January 1, 2013; April 1, 2018.

Law Implemented: NDCC 50-11.1-16, 50-11.1-17 75-03-07.1-05. Appeals.

An applicant for a self-declaration document or a provider has the right to appeal a decision to deny or revoke a self-declaration document. A written appeal must be postmarked or received by the department within ten calendar days of the applicant's or provider's receipt of written notice of the decision to deny or revoke the document. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner prescribed by chapter 75-01-03.

History: Effective June 1, 1995; amended effective January 1, 2011; April 1, 2016.

Law Implemented: NDCC 50-11.1-10 75-03-07.1-06. Denial or revocation of self-declaration document.

1.The right to provide early childhood services is dependent upon the applicant's or provider's continuing compliance with the terms of the application as listed in section 75-03-07.1-02.

2.A fraudulent or untrue representation is grounds for revocation or denial. 3.a.The applicant, self-declaration provider, emergency designee, and household members may not have been found guilty of, pled guilty to, or pled no contest to:

(1)An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

(2)An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in paragraph 1; or (3)An offense, other than an offense identified in paragraph 1 or 2, if the department determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

b.The department has determined that the offenses enumerated in paragraphs 1 and 2 of subdivision a have a direct bearing on the applicant's, provider's, or emergency designee's ability to serve the public in a capacity as a provider or emergency designee.

c.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; in the case of a class B misdemeanor offense described North Dakota Century Code section 12.1-17-01.2, domestic violence; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

4.A provider shall submit an application for a fingerprint-based criminal history record check at the time of application and within five years from the date of initial approval and at least once every five years thereafter. The provider shall ensure that each emergency designee submits an application for a fingerprint-based criminal history record check upon hire and within five years from the date of initial approval and at least once every five years thereafter. The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department shall submit a request to the bureau of criminal investigation for a nationwide name-based criminal history record check.

5.Review of fingerprint-based criminal history record check results.

a.If an individual disputes the results of the criminal history record check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the department's memo outlining the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

c.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

6.A provider shall ensure safe care for the children receiving services in the provider's residence. If a confirmed decision made under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists indicating that a child has been abused or neglected by an applicant, provider, emergency designee, or household member, that decision has a direct bearing on the applicant's or provider's ability to serve the public in a capacity involving the provision of child care, and the application or self-declaration document may be denied or revoked.

a.If a confirmed determination under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists indicating that any child has been abused or neglected by the applicant, provider, emergency designee, or household member, the applicant or provider shall furnish information to the department, from which the department can determine the applicant's, provider's, or emergency designee's ability to provide care that is free of abuse or neglect. The department shall furnish the determination of ability to the applicant or provider.

b.Each applicant, provider, and emergency designee shall complete, and the provider shall submit to the department, a department-approved authorization for background check form no later than the first day of employment.

c.Household members age twelve and older shall complete, and the provider shall submit to the department, a department-approved authorization for background check form at the time of application or upon obtaining residence at the location of the self-declaration program.

History: Effective June 1, 1995; amended effective January 1, 2011; January 1, 2013; April 1, 2014;

April 1, 2016; April 1, 2018; July 1, 2020; January 1, 2022; January 1, 2023; April 1, 2024.

General Authority: NDCC 50-11.1-08, 50-11.1-09

Law Implemented: NDCC 50-11.1-06.2, 50-11.1-08, 50-11.1-09, 50-11.1-16, 50-11.1-17 75-03-07.1-07. Minimum sanitation requirements.

1.The provider shall operate according to the recommendations by the federal centers for disease control and prevention, including washing hands, before preparing or serving meals, after diapering, after using toilet facilities, and after any other procedure that may involve contact with bodily fluids. Hand soap and single-use or individually designated cloth towels or paper towels must be available at each sink. Clean towels must be provided at least daily.

2.The provider shall ensure that the residence, grounds, and equipment are located, cleaned, and maintained to protect the health and safety of children. The provider shall establish routine cleaning procedures to protect the health of the children.

3.Pets and animals.

a.The provider shall ensure that only small pets that are contained in an aquarium or other approved enclosed container, cats, and dogs are present in areas occupied by children.

Wire cages are not approved containers. Other indoor pets and animals must be restricted by a solid barrier and must not be accessible to children. The department may restrict any pet or animal from the premises that may pose a risk to children and may approve additional pets that do not pose a health or safety risk to children.

b.The provider shall ensure that animals are maintained in good health and are appropriately immunized. Pet immunizations must be documented with a current certificate from a veterinarian.

c.The provider shall ensure parents are aware of the presence of pets and animals in the self-declaration program.

d.The provider shall notify parents immediately if a child is bitten or scratched and skin is broken.

e.The provider shall ensure that all contact between pets and children is closely supervised. The provider shall immediately remove the pet if the pet or animal shows signs of distress or the child shows signs of treating the pet or animal inappropriately.

f.The provider shall ensure that pets, pet feeding dishes, cages, and litter boxes are not present in any food preparation, food storage, or serving areas. The provider shall ensure that pet and animal feeding dishes and litter boxes are not placed in areas accessible to children.

g.The provider shall ensure that indoor and outdoor areas accessible to children must be free of animal excrement.

h.The provider shall ensure that the self-declaration program is in compliance with all applicable state and local ordinances regarding the number, type, and health status of pets or animals.

History: Effective January 1, 2011; amended effective April 1, 2018; April 1, 2024. 75-03-07.1-08. Infant care.

1.Environment and interactions.

a.A provider serving children from birth to twelve months shall provide an environment which protects the children from physical harm.

b.The provider shall ensure that each infant receives positive stimulation and verbal interaction such as being held, rocked, talked with, or sung to.

c.The provider shall respond to comfort an infant's or toddler's physical and emotional distress:

(1)Especially when indicated by crying or due to conditions such as hunger, fatigue, wet or soiled diapers, fear, teething, or illness; and (2)Through positive actions such as feeding, diapering, holding, touching, smiling, talking, singing, or eye contact.

d.The provider shall ensure that infants have frequent and extended opportunities during each day for freedom of movement, including creeping or crawling in a safe, clean, open, and uncluttered area.

e.The provider shall take children outdoors or to other areas within the self-declaration program for a part of each day to provide some change of physical surroundings and to interact with other children.

f.The provider shall ensure that infants are not shaken or jostled.

g.The provider shall ensure that low chairs and tables, high chairs with trays, or other age-appropriate seating systems are provided for mealtime for infants no longer being held for feeding. High chairs, if used, must have a wide base and a safety strap.

h.The provider shall ensure that thermometers, pacifiers, teething toys, and similar objects are cleaned and sanitized between uses. Pacifiers may not be shared.

2.Feeding.

a.The provider shall ensure that infants are provided developmentally appropriate nutritious foods. Only breast milk or iron-fortified infant formula may be fed to infants less than six months of age, unless otherwise instructed by the infant's parent or medical provider in writing.

b.The provider shall ensure that infants are fed only the specific brand of iron-fortified infant formula requested by the parent. The provider shall use brand-specific mixing instructions unless alternative mixing instructions are directed by a child's medical provider in writing.

c.The provider shall ensure that mixed formula that has been unrefrigerated more than one hour is discarded.

d.The provider shall ensure that frozen breast milk is thawed under cool running tap water or in the refrigerator in amounts needed. Unused, thawed breast milk must be discarded or given to the parent within twenty-four hours.

e.The provider shall ensure that an infant is not fed by propping a bottle.

f.The provider shall ensure that cereal and other nonliquids or suspensions are only fed to an infant through a bottle on the written orders of the child's medical provider.

g.The provider shall be within sight and hearing range of an infant during the infant's feeding or eating process.

3.Diapering.

a.The provider shall ensure that there is a designated cleanable diapering area, located separately from food preparation and serving areas in the child care if children requiring diapering are in care.

b.The provider shall ensure that diapers are changed promptly when needed and in a sanitary manner.

c.Diapers must be changed on a nonporous surface area which must be cleaned and disinfected after each diapering.

d.The provider shall ensure that soiled or wet diapers are stored in a sanitary, covered container separate from other garbage and waste until removed from the child care.

4.Sleeping.

a.The provider shall ensure that infants are placed on their back initially when sleeping to lower the risk of sudden infant death syndrome, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise. The infant's face must remain uncovered when sleeping.

b.The provider shall ensure that infants sleep in a crib with a firm mattress or in a portable crib with the manufacturer's pad that meets consumer product safety commission standards.

c.The provider shall ensure that if an infant falls asleep while not in a crib or portable crib, the infant must be moved immediately to a crib or portable crib, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise.

d.Water beds, adult beds, sofas, pillows, soft mattresses, and other soft surfaces are prohibited as infant sleeping surfaces.

e.The provider shall ensure that all items are removed from and that no toys or objects are hung over or attached to the crib or portable crib when an infant is sleeping or preparing to sleep. With written parental permission, the provider may place one individual infant blanket or sleep sack, a pacifier, and a security item that does not pose a risk of suffocation to the infant in the crib or portable crib while the infant is sleeping or preparing to sleep.

f.The provider shall ensure that mattresses and sheets are properly fitted. The provider shall ensure that sheets and mattress pads are changed whenever they become soiled or wet, when cribs are used by different infants, or at least weekly.

g.The provider shall check on sleeping infants regularly and have a monitor in the room with sleeping infants, unless the provider or an emergency designee is in the room with the infants while the infants are sleeping.

History: Effective January 1, 2011; amended effective January 1, 2013; April 1, 2016; April 1, 2018;

April 1, 2024. 75-03-07.1-09. Minimum requirements for the care of children with special needs.

A provider shall make appropriate provisions, as required by the Americans with Disabilities Act, to meet the needs of children with special needs. The provider shall receive documentation of the child's special needs by the parent upon the child's enrollment.

1.When a child with special needs is admitted, the provider shall consult with the child's parents, and with the parent's permission, the child's source of professional health care or, when appropriate, other health and professional consultants, to gain an understanding of the child's individual needs. The provider shall receive a written health care plan from the child's medical provider or parent with information related to the child's special needs, such as a description, definition of the diagnosis, and general information for emergency and required care such as usual medications and procedures.

2.The provider shall ensure that emergency designees responsible for caring for or teaching children receive proper instructions as to the nature of the child's disability and potential for growth and development.

History: Effective January 1, 2011; amended effective April 1, 2016. 75-03-07.1-10. Correction of violations.

1.A provider shall correct violations noted in a correction order within the following times:

a.For a violation of subsection 24 of North Dakota Century Code section 50-11.1-02, North Dakota Century Code section 50-11.1-02.2, paragraph 5 or 7 of subdivision a of subsection 3 of section 75-03-07.1-02, subdivision b of subsection 3 of section 75-03-07.1-02, or subsection 4 of section 75-03-07.1-02, or section 75-03-07.1-08, within twenty-four hours.

b.For a violation of subdivision g or h of subsection 1 of North Dakota Century Code

section 50-11.1-17 or all other deficiencies of chapter 75-03-07.1, within twenty days.

2.All periods of correction begin on the date of the receipt of the correction order by the provider.

3.The department may grant an extension of additional time to correct violations, up to a period of one-half the original allowable time allotted. An extension may be granted upon application by the provider and a showing that the need for the extension is created by unforeseeable circumstances and the provider has diligently pursued the correction of the violation.

4.The provider shall furnish a written notice to the department upon completion of the required corrective action. The correction order remains in effect until the department confirms the corrections have been made.

5.The provider shall notify the parent of each child receiving care at the residence and each emergency designee how to report a complaint or suspected rule violation.

6.Within ten business days of mailing or within three days of electronic transmission of the correction order, the provider shall notify the parents of each child receiving care by this provider that a correction order has been issued. In addition to providing notice to the parent of each child, the provider also must post the correction order in a conspicuous location within the residence until the violation has been corrected or five days, whichever is longer.

7.A provider who has been issued a correction order must be reinspected at the end of the period allowed for correction. If, upon reinspection, it is determined that the provider has not corrected a violation identified in the correction order, the department shall mail or send by electronic mail a notice of noncompliance with the correction order to the provider. The notice must specify the violations not corrected and the penalties assessed in accordance with North Dakota Century Code section 50-11.1-07.5.

8.Refutation process for a correction order:

a.A self-declared provider may refute a correction order by submitting a refutation request in writing on the form provided by the department within five calendar days of receiving the correction order.

b.The department shall respond to written refutations within five business days of receipt.

History: Effective January 1, 2011; amended effective January 1, 2013; April 1, 2014; April 1, 2016;

July 1, 2020; January 1, 2022; April 1, 2024.

Law Implemented: NDCC 50-11.1-07, 50-11.1-07.1, 50-11.1-07.2, 50-11.1-08 75-03-07.1-11. Fiscal sanctions.

1.The department shall assess a fiscal sanction of twenty-five dollars per day for each violation of North Dakota Century Code chapter 50-11.1; subdivision b, c, d, or e of subsection 3 of

section 75-03-07.1-02; or subsection 4 of section 75-03-07.1-02 for each day that the provider has not verified correction, after the allowable time for correction of violations ends.

2.The department shall assess fiscal sanction of five dollars per day for each violation of any other provision of this chapter for each day that the provider has not verified correction, after the allowable time for correction of violations ends.

History: Effective January 1, 2011; amended effective January 1, 2013.

Law Implemented: NDCC 50-11.1-07.4, 50-11.1-07.5, 50-11.1-08 75-03-07.1-12. Restricted self-declaration.

The department may issue a restricted self-declaration:

1.To restrict an individual's presence when children are in child care;

2.To restrict a pet or animal from areas accessible to children; or

3.When necessary to inform the parents that the provider is restricted to operating in certain rooms or floors of the residence or from using specified outdoor space of the residence.

History: Effective April 1, 2016.

Law Implemented: NDCC 50-11.1-04 75-03-07.1-13. Minimum emergency disaster plans.

1.Each self-declared provider shall establish and post an emergency disaster plan for the safety of the children in care. Written disaster plans must be developed in cooperation with local emergency management agencies. The plan must include:

a.Emergency procedures, including the availability of emergency food, water, and first aid supplies;

b.Procedures for evacuation, relocation, shelter-in-place, and lockdown;

c.Communications and reunification with families;

d.Continuity of operations; and

e.Accommodations for infants, toddlers, children with disabilities, and children with chronic medical conditions.

2.Fire and emergency evacuation drills must be performed monthly.

History: Effective April 1, 2018; amended effective January 1, 2022.

Law Implemented: NDCC 50-11.1-17

Chapter 75-03-08 Family Child Care Early Childhood Services

N.D. Admin. Code 75-03-08-01 Purpose

Repealed effective January 1, 2011.

N.D. Admin. Code 75-03-08-02 Authority and objective

Repealed effective January 1, 2011.

N.D. Admin. Code 75-03-08-03 Definitions

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-11.1-02. In addition, as used in this chapter, unless the context or subject matter otherwise requires:

1."Annual" is defined as the provider's licensing year.

2."Application" means all forms the department requires when applying or reapplying for a license.

3."Aquatic activity" means an activity in or on a body of water, either natural or manmade, including rivers, lakes, streams, swimming pools, and water slides.

4."Attendance" means the total number of children present at any one time at the family child care.

5."Child with special needs" means a child determined by a medical provider to have or to be at risk for chronic physical, developmental, behavioral, or emotional conditions.

6."Emergency designee" means an individual designated by the provider to be a backup staff member for emergency assistance or to provide substitute care.

7."Infant" means a child who is younger than twelve months of age.

8."Medication" is defined as any drug or remedy which is taken internally or orally, inhaled, or applied topically.

9."Substitute staff" means paid or unpaid staff who work less than thirty-two hours per month and are not regularly scheduled for work.

10."Volunteer" means an individual who visits or provides an unpaid service, including a firefighter for fire safety week, a practicum student, or a foster grandparent.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; January 1, 2022; January 1, 2023; April 1, 2024.
• Law Implemented: NDCC 50-11.1-02

N.D. Admin. Code 75-03-08-04 Effect of licensing and display of license

1.The issuance of a license to operate a family child care is evidence of compliance with the standards contained in this chapter and North Dakota Century Code chapter 50-11.1 at the time of licensure.

2.The current license must be displayed prominently in the premises to which it applies.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04

N.D. Admin. Code 75-03-08-05 Denial or revocation of license

1.A license may be denied or revoked under the terms and conditions of North Dakota Century Code sections 50-11.1-04, 50-11.1-06.2, 50-11.1-09, and 50-11.1-10.

2.If an action to revoke a license is appealed, the provider may continue the operation of the family child care pending the final administrative determination or until the license expires, whichever occurs first, unless continued operation would jeopardize the health and safety of the children attending the family child care. This subsection does not limit the actions the department may take pursuant to North Dakota Century Code sections 50-11.1-07.8 and 50-11.1-12.

3.The department may revoke a license to operate a family child care without first issuing a correction order, or simultaneously with a suspension if continued operation would jeopardize the health and safety of the children present or would violate North Dakota Century Code

section 50-11.1-09.

Repealed effective January 1, 2013.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011.
• Law Implemented: NDCC 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09, 50-11.1-10 75-03-08-05.1. Family child care license.

N.D. Admin. Code 75-03-08-06 Provisional license

1.The department may issue a provisional license for the operation of a family child care although the applicant or provider fails to, or is unable to, comply with all applicable standards and rules of the department.

2.A provisional license must:

a.State that the provider has failed to comply with all applicable standards and rules of the department;

b.State the items of noncompliance;

c.Expire at a set date, not to exceed six months from the date of issuance; and

d.Be exchanged for an unrestricted license, which bears an expiration date of one year from the date of issuance as the provisional license, after the applicant or provider demonstrates compliance, satisfactory to the department, with all applicable standards and rules.

3.The department may issue a provisional license only to an applicant or provider who has waived, in writing:

a.The right to a written statement of charges as to the reasons for the denial of an unrestricted license; and

b.The right to an administrative hearing, in the manner provided in North Dakota Century Code chapter 28-32, concerning the nonissuance of an unrestricted license, either at the time of application or during the period of operation under a provisional license.

4.Any provisional license issued must be accompanied by a written statement of violations signed by the department and must be acknowledged in writing by the provider.

5.Subject to the exceptions contained in this section, a provisional license entitles the holder to all rights and privileges afforded to the holder of an unrestricted license.

6.The department may not issue a provisional license if the family child care is not in compliance with section 75-03-08-14.

7.The provider shall prominently display the provisional license and agreement.

8.The provider shall provide parents written notice that the family child care is operating on a provisional license and the basis for the provisional license.

The department may issue a restricted license:

1.To restrict an individual's presence when children are in child care;

2.To restrict a pet or animal from areas accessible to children; or

3.When necessary to inform the parents that the provider is licensed, but is restricted to operating in certain rooms or floors of the residence or restricted from using specified outdoor space of the residence.

History

• History: Effective December 1, 1981; amended effective July 1, 1984; January 1, 1987; January 1, 1989; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2020.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-08 75-03-08-06.1. Restricted license.
• Law Implemented: NDCC 50-11.1-04

N.D. Admin. Code 75-03-08-07 Application for and nontransferability of family child care license

1.An application for a license must be submitted to the department in which the family child care is located. Application must be made in the form and manner prescribed by the department.

2.The license is nontransferable and valid only for the premises indicated on the license. A new application for a license must be filed upon change of provider or location.

3.The department may not issue more than one in-home registration, self-declaration, or license per residence. A residence means real property that is typically used as a single family dwelling.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2018; July 1, 2020; April 1, 2024.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08

N.D. Admin. Code 75-03-08-08 Family child care homes registered prior to effective date

Repealed effective January 1, 1987. 75-03-08-08.1. Duties of the provider.

1.A provider shall be currently certified:

a.In infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department; and

b.In pediatric first aid by a program approved by the department.

2.The provider shall have an adult staff member responsible for caring for or teaching children present in the family child care at all times to supervise staff members under the age of eighteen and children in care.

3.A staff member may not at any time place a child in an environment that would be harmful or dangerous to the child's physical, cognitive, social, or emotional health.

4.The provider shall report to the department within twenty-four hours:

a.A death or serious accident or illness requiring hospitalization of a child while in the care of the family child care or attributable to care received in the family child care;

b.An injury to any child which occurs while the child is in the care of the family child care and which requires medical treatment;

c.Poisonings or errors in the administration of medication;

d.Closures or relocations of the family child care due to emergencies; and

e.Fire that occurs or explosions that occur in or on the premises of the family child care.

5.The provider shall be present in the family child care no less than sixty percent of the time when children are in care.

6.The provider, as a mandatory reporter, shall report any suspected child abuse or neglect as required by North Dakota Century Code section 50-25.1-03.

7.The provider may select an emergency designee.

8.The provider shall maintain necessary information to verify staff members' qualifications and to ensure safe care for the children in the family child care.

9.The provider must be an adult of good physical, cognitive, social, and emotional health and shall use mature judgment when making decisions impacting the quality of child care.

10.The provider shall ensure safe care for the children under supervision. Supervision means a staff member responsible for caring for or teaching children being within sight or hearing range of an infant, toddler, or preschooler at all times so that the staff member is capable of intervening to protect the health and safety of the child. For the school-age child, it means a staff member responsible for caring for or teaching children being available for assistance and care so the child's health and safety is protected.

11.The provider shall ensure that each child is released only to the child's parent, legal custodian, guardian, or an individual who has been authorized by the child's parent, legal custodian, or guardian.

April 1, 2018; July 1, 2020; January 1, 2023; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2016;

N.D. Admin. Code 75-03-08-09 Staffing requirements

1.Staffing requirements are established by the number of children physically in care at the family child care at any given time, rather than total enrollment.

2.If a child with special needs is admitted to the program, the child's developmental age level must be used in determining the number of children for which care may be provided.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; January 1, 2022.
• Law Implemented: NDCC 50-11.1-02.1, 50-11.1-04, 50-11.1-08

N.D. Admin. Code 75-03-08-10 Minimum qualifications of providers

A provider shall:

1.Be at least eighteen years of age;

2.Certify completion of a department-approved basic child care course within ninety days of licensure;

3.Certify completion of a minimum of nine hours of department-approved training related to child care annually, including one hour on mandated reporter of suspected child abuse or neglect.

The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of safe sleep and mandated reporter annual training; and

4.Certify completion of one hour of department-approved safe sleep training prior to provider providing care to infants and annually thereafter.

January 1, 2023; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; April 1, 2016; April1 ,2018;

N.D. Admin. Code 75-03-08-11 [Reserved]

N.D. Admin. Code 75-03-08-12 Minimum qualifications for all staff members responsible for caring for or teaching children

Each staff member who provides care shall:

1.Be at least fourteen years of age, provided that each staff member under age sixteen provides written parental consent for employment as a staff member, and the employment arrangements comply with North Dakota Century Code chapter 34-07. A member of the immediate family of the provider may provide care if the family member is at least twelve years of age;

2.Be an individual of good physical, cognitive, social, and emotional health and use mature judgment when making decisions impacting the quality of child care;

3.Certify completion of a department-approved basic child care course within ninety days of employment;

4.Be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department;

5.Be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in pediatric first aid by a program approved by the department;

6.Certify annual completion of one hour of department-approved mandated reporter of suspected child abuse or neglect training;

7.Certify completion of one hour of department-approved safe sleep training prior to staff member providing care to infants and annually thereafter; and

8.Receive orientation to the family child care program during the first week of employment. The orientation must be documented on an orientation certification form and must address the following:

a.Emergency health, fire, and safety procedures;

b.The importance of handwashing and sanitation procedures to reduce the spread of infection and disease among children and staff members;

c. Any special health or nutrition instructions regarding the children assigned to the staff member;

d. Any special needs of the children assigned to the staff member;

e. The planned program of activities at the family child care;

f. Rules and policies of the family child care; and

g. Child abuse and neglect reporting laws.

January 1, 2023; April 1, 2024. 75-03-08-12.1. Minimum qualifications of volunteers.

If a volunteer is providing child care, the volunteer shall meet the qualifications of a staff member responsible for caring for or teaching children and shall receive orientation for all assigned tasks.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; April 1, 2016; April 1, 2018;

N.D. Admin. Code 75-03-08-13 Minimum health requirements for all applicants, providers, and staff members responsible for caring for or teaching children

1.If the physical, cognitive, social, or emotional health capabilities of an applicant, provider, or staff member appears questionable, the department may require the individual to present evidence of the individual's capability to provide the required care based on a formal evaluation. The department is not responsible for the costs of any required evaluation.

2.A staff member or household member may not use or be under the influence of any illegal drugs or alcoholic beverages while caring for children.

N.D. Admin. Code 75-03-08-14 Minimum requirements of the facility

1.The family child care must contain adequate space, indoors and out, for the daily activities of the children. Adequate space must include a minimum of thirty-five square feet [3.25 square meters] of space per child indoors and a minimum of seventy-five square feet [6.97 square meters] of play space per child outdoors. Indoor space considered must exclude bathrooms, pantries, passageways leading to outdoor exits, areas occupied by furniture or appliances that children should not play on or under, and space children are not permitted to occupy.

Providers who provide seventy-five square feet [6.97 square meters] of separate indoor recreation space per child are exempt from the outdoor space requirement.

2.The family child care must be clean and maintained to protect the health and safety of children. The family child care and outdoor play area must be free of clutter, accumulation of refuse, standing water, unprotected wells, debris, and other health and safety hazards.

Garbage must be regularly removed.

3.The provider shall ensure adequate heating, ventilation, humidity, and lighting for the comfort and protection of the health of the children.

4.The provider shall ensure that the family child care is equipped with one properly installed smoke detector located in each sleeping area used by the children, and one properly installed smoke detector and one fire extinguisher per level. Properly installed means installed according to manufacturer's or fire inspector's directions.

5.The provider shall ensure that elevated areas, including stairs and porches, have railings and safety gates where necessary to prevent falls.

6.The provider shall ensure that the family child care has a drinking water supply from an approved community water system or from a source tested and approved annually by the department of environmental quality.

7.The provider shall ensure that each child has a comfortable and clean place to sleep or rest and an individual blanket. The provider may allow a child to sleep or rest on the floor only when the floor is carpeted or padded, warm, and free from drafts.

8.The provider shall ensure that exterior play areas in close proximity to busy streets and other unsafe areas are contained or fenced, or have natural barriers, to restrict children from those unsafe areas. Outdoor play areas must be inspected daily for hazards and necessary maintenance.

9.The provider shall ensure that potential hazards, such as guns, household cleaning chemicals, uninsulated wires, medicines, noncovered electrical outlets, and poisonous plants are not accessible to children. The provider shall keep guns and ammunition in locked storage, each separate from the other, or shall use trigger locks. The provider shall ensure other weapons and dangerous sporting equipment, such as bows and arrows, are not accessible to children.

10.The provider shall ensure indoor and outdoor equipment, toys, and supplies are safe, strong, nontoxic, and in good repair. The provider shall ensure that all toys and equipment are kept clean and sanitary. Books and other toys that are not readily cleanable must be sanitized as much as possible without damaging the integrity or educational value of the item.

11.The provider shall ensure that exit doorways and pathways are not blocked.

12.The provider shall ensure that the family child care has a working telephone in the location used for child care. The provider shall post emergency numbers of parents and first responders.

13.The family child care must have an indoor bathroom with a minimum of one sink and one flush toilet.

14.The family child care must have hot and cold running water. The water in the faucets used by children must not exceed one hundred twenty degrees Fahrenheit [49.2 degrees Celsius].

15.The family child care must meet the local minimum fire and safety standards. The provider shall obtain a fire inspection prior to licensure and annually thereafter. Any inspection fees are the provider's responsibility. The provider shall have any code violations noted by the fire inspector corrected and shall file reports of the inspections and any corrections with the department. If the fire, safety, health, or sanitation environment appears questionable, the department may require the provider to obtain additional inspections at the cost of the provider. The provider shall provide:

a.The fire inspector's written statement of compliance with the local fire code, if there is one; or

b.The fire inspector's written statement that the family child care has been inspected and that the inspector is satisfied that the family child care meets minimum fire and safety standards.

16.The provider shall ensure that accumulations of water, ice, snow, or debris are removed from steps and walkways as quickly as possible.

17.The provider shall ensure that combustible materials are kept away from light bulbs and other heat sources.

July 1, 2020; January 1, 2023; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; April 1, 2014; April 1, 2016;

N.D. Admin. Code 75-03-08-15 Minimum standards for provision of transportation

1.Prior to licensure, the provider shall establish a written policy governing the transportation of children to and from the family child care, if the family child care provides transportation. This policy must specify who is to provide transportation and how parental permission is to be obtained for activities which occur outside the family child care. If the family child care provides transportation, the provider shall inform the parents of any insurance coverage on the vehicles. Any vehicle used for transporting children must be in safe operating condition and in compliance with state and local laws.

2.When transportation is provided by a family child care, children must be protected by adequate staff supervision, safety precautions, and liability insurance.

a.Staffing requirements must be maintained to assure the safety of children while being transported.

b.A child may not be left unattended in a vehicle.

3.Children must be instructed in safe transportation conduct appropriate to their age and stage of development.

4.The driver shall be eighteen years of age or older and shall comply with all relevant federal, state, and local laws, including child restraint system laws.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2022.

N.D. Admin. Code 75-03-08-16 Minimum emergency evacuation and disaster plan

1.Each provider shall establish and post an emergency disaster plan for the safety of the children in care. Written disaster plans must be developed in cooperation with local emergency management agencies. The plan must include:

a.Emergency procedures, including the availability of emergency food, water, and first-aid supplies;

b.Procedures for evacuation, relocation, shelter-in-place, and lockdown;

c.Communications and reunification with families;

d.Continuity of operations; and

e.Accommodations for infants, toddlers, children with disabilities, and children with chronic medical conditions.

2.Fire and emergency evacuation drills must be performed monthly.

History

• History: Effective January 1, 2011; amended effective January 1, 2022.

N.D. Admin. Code 75-03-08-17 [Reserved]

N.D. Admin. Code 75-03-08-18 [Reserved]

N.D. Admin. Code 75-03-08-19 Admission procedures

1.The provider shall request a preadmission visit with the child and the child's parents to acquaint the child and the parent with the family child care and its surroundings, the other children, and the provider.

2.The provider shall inform parents about the family child care, places and times of special activities outside the family child care, policies, and emergency procedures, and shall discuss information concerning the child to identify and accommodate the child's needs. Written policies must include:

a.An explanation of how accidents and illnesses will be handled;

b.The methods of developmentally appropriate discipline and guidance techniques that are to be used;

c.The process for a parent or staff member to report a complaint, a suspected licensing violation, or suspected child abuse or neglect;

d.Hiring practices and personnel policies for staff members;

e.Informing parents that they may request daily reports for their child, including details regarding eating, napping, and diapering;

f.Procedure for accountability when a child fails to arrive as expected at the family child care; and

g.Transportation procedures, if the provider provides transportation.

3.The provider shall notify parents of the payment rates and the time of payment.

4.The provider shall provide parents with unlimited access and opportunities to observe their children at any time their children are in care. This does not prohibit a provider from locking the doors of the family child care while children are in care.

5.The provider shall verify the identification of the child through official documentation such as a certified birth certificate, certified school records, passport, or any other documentary evidence the provider considers appropriate proof of identity and shall comply with North Dakota Century Code section 12-60-26.

6.The provider shall ensure that children do not depart from the family child care premises unsupervised, except when the parent and provider consent that an unsupervised departure is safe and appropriate for the age and development of the child. The provider shall obtain written parental consent for the child to leave the family child care premises unsupervised, which must specify the activity, time the child is leaving and length of time the child will be gone, method of transportation, and parental responsibility for the child once the child leaves the family child care premises.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2024.
• Law Implemented: NDCC 50-11.1-04, 50-11.1-08

N.D. Admin. Code 75-03-08-20 Program requirements

1.The provider shall have a program of daily individual and small group activities appropriate to the ages and needs of the children in the family child care. The program must include activities that foster sound social, cognitive, emotional, and physical growth, developed in consultation with parents as to their children's needs. A written daily routine, including mealtimes, rest times, planned developmentally appropriate activities, free play, and outside time shall be available to parents. The daily routine must be flexible enough to allow for spontaneous activity as appropriate.

2.The program must be designed with intervals of stimulation and relaxation and a balance between periods of active play and quiet play or rest. The daily routine must foster the development of good health habits and self-discipline, adequate indoor and outdoor play, rest, and sleep, with sufficient time and opportunities for various experiences.

3.The program must provide a variety of educational experiences for all ages of children served with an adequate supply of safe play equipment, toys, and materials for indoor and outdoor activity. Each family child care shall have enough play materials and equipment so each child in attendance may be involved individually or as a group.

4.Areas used for napping must provide an opportunity for undisturbed rest. The provider shall set napping schedules for children according to the children's ages and needs.

N.D. Admin. Code 75-03-08-21 Minimum standards for food and nutrition

A provider shall serve children nutritious meals or snacks according to the following requirements:

1.When the provider is responsible for providing food to children, the food supplied must meet United States department of agriculture standards and must be properly prepared, sufficient in amount, nutritious, varied according to the diets of the children enrolled, and served at appropriate hours in a sanitary manner.

2.When parents bring sack lunches for their children, the provider shall supplement lunches, as necessary, to provide nutritious and sufficient amounts of food for children, and shall provide adequate and appropriate refrigeration and storage as required.

3.When a child is in care for more than three hours, that child shall receive either a snack or a meal, whichever is appropriate to that time of day.

4.Children in care during any normal mealtime hour must be served nutritious food appropriate to that time of day.

5.Children in care after school shall be provided with a snack.

6.Information provided by the childrens parents regarding special diets, allergies, or other dietary conditions shall be adhered to in the feeding schedule and planning of menus.

7.The provider shall serve snacks and meals to children in a manner commensurate with their development, using appropriate foods, portions, dishes, and eating utensils.

8.The provider or staff member may encourage children to eat the food served, but the provider or staff member may not coerce or force-feed children.

9.The provider shall post a daily or weekly menu for meals and snacks. 75-03-08-21.1. Minimum sanitation and safety requirements.

1.Children shall have received all immunizations appropriate for the child's age, as prescribed by the public health division of the department, unless the child is medically exempt or exempt from immunizations based on religious, philosophical, or moral beliefs.

2.Staff members and children shall wash their hands, according to recommendations by the federal centers for disease control and prevention, before preparing or serving meals, after diapering, after using toilet facilities, and after any other procedure that may involve contact with bodily fluids. Hand soap and sanitary hand-drying equipment, single-use or individually designated cloth towels, or paper towels must be available at each sink.

3.The provider shall have a statement on file, signed by the child's parents, authorizing emergency medical care for each child.

4.The provider shall ensure at least one department-approved first-aid kit is maintained and kept in a designated location, inaccessible to children, yet readily accessible to staff members at all times.

5.The provider shall have plans to respond to illness and emergencies, including evacuation in case of fire, serious injury, and ingestion of poison.

6.If children in care require medication, the provider shall secure written permission and follow proper instructions as to the administration of medication.

a.Medication prescribed by a medical provider must be accompanied by the medical provider's written instructions as to dosage and storage and labeled with the child's name and date.

b.The provider shall store medications in an area inaccessible to children.

c.Medications stored in a refrigerator must be stored collectively in a spillproof container.

d.The provider shall keep a written record of the administration of medication, including over-the-counter medication, for each child. Records must include the date and time of each administration, the dosage, the name of the staff member administering the medication, and the name of the child. Completed medication records must be included in the child's record.

7.The provider shall establish practices in accordance with guidance obtained through consultation with local health unit authorities or authorities from the public health division of the department regarding the exclusion and return of children with infectious or communicable conditions. The provider may obtain this guidance directly or through current published materials regarding exclusion and return to the family child care. The provider shall notify the parents, legal custodians, or guardians of a child's exposure to a presumed or confirmed reportable infectious disease.

8.The provider may release a child only to the child's parent or individual who has been authorized by the child's parent.

9.The provider shall ensure that children playing outdoors are clothed appropriately for weather conditions.

10.The provider shall ensure that a staff member responsible for caring for or teaching children is supervising directly any child who is bathing or using a pool.

11.The provider shall ensure that children receive proper supervision when playing outdoors.

12.Children's personal items, including combs, brushes, pacifiers, and toothbrushes, must be individually identified and stored in a sanitary manner.

13.Pets and animals.

a.The provider shall ensure that only small pets that are contained in an aquarium or other approved container, cats, and dogs are present in areas occupied by children. Wire cages are not approved containers. Other indoor pets and animals must be restricted by a solid barrier and must not be accessible to children. The department may restrict any pet or animal from the premises that may pose a risk to children or may approve additional pets that do not pose a health or safety risk to children.

b.The provider shall ensure that animals are maintained in good health and are appropriately immunized. Pet immunizations must be documented with a current certificate from a veterinarian.

c.The provider shall ensure parents are aware of the presence of pets and animals in the family child care.

d.The provider shall notify parents immediately if a child is bitten or scratched and skin is broken.

e.A staff member responsible for caring for or teaching children shall supervise closely all contact between pets or animals and children. The staff member shall immediately remove the pet if the pet or animal shows signs of distress or the child shows signs of treating the pet or animal inappropriately.

f.The provider shall ensure that pets, pet feeding dishes, cages, and litter boxes are not present in any food preparation, food storage, or serving areas. The provider shall ensure that pet and animal feeding dishes and litter boxes are not placed in areas accessible to children.

g.The provider shall ensure that indoor and outdoor areas accessible to children must be free of animal excrement.

h.The provider shall ensure that the family child care is in compliance with all applicable state and local ordinances regarding the number, type, and health status of pets or animals.

14.Staff members responsible for caring for or teaching children shall strictly supervise wading pools used by the family child care and shall empty, clean, and sanitize wading pools daily.

15.All swimming pools used by the children must be approved annually by the local health unit.

16.Aquatic activities:

a.The provider shall have policies that ensure the health and safety of children in care while participating in aquatic activities, including types of aquatic activities the program may participate in, staff-to-child ratios appropriate to the ages and swimming ability of children participating in aquatic activities, and additional safety precautions to be taken.

b.The provider may not permit any child to participate in an aquatic activity without written parental permission, which includes parent disclosure of the child's swimming ability.

17.The provider shall ensure that garbage stored outside is kept away from areas used by children and is kept in covered containers. Open burning is not permitted. The provider shall keep indoor garbage in containers with lids. The provider may allow paper waste to be kept in open waste containers.

18.The provider shall ensure that beds, cots, mats, or cribs, complete with a mattress or pad, are available and the provider shall ensure:

a.Pillows and mattresses have clean coverings.

b.Sheets and pillowcases are changed as often as necessary for cleanliness and hygiene, at least weekly.

c.If beds, cots, mats, or cribs are used by different children, sheets and pillowcases are laundered before use by other children.

d.Cots, mats, and cribs are cleaned as often as necessary for cleanliness and hygiene, at least weekly, and after each use if used by different children.

e.That cots, mats, and cribs are single occupancy.

f.Each bed, cot, or mat has sufficient blankets available.

g.That aisles between beds, cots, mats, or cribs are a minimum space of two feet [60.96 centimeters] and are kept free of all obstructions while beds, cots, mats, or cribs are occupied.

h.Provide separate storage for personal blankets or coverings.

i.That mattresses and sheets are properly fitted.

July 1, 2020; January 1, 2023; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; April 1, 2016; April 1, 2018;

N.D. Admin. Code 75-03-08-22 Records

1.A copy of this chapter must be kept on the premises and available to staff members at all times.

2.The provider shall maintain the following records:

a.The child's full name, birth date, current home address, legal names of the child's parents, and current business and personal telephone numbers where they can be reached;

b.A written statement from the parents or legal guardian authorizing emergency medical care;

c.Names and telephone numbers of individuals authorized to take the child from the family child care;

d.Verification that the child has received all immunizations appropriate for the child's age, as prescribed by the public health division of the department, or have on file a document citing that the child is medically exempt or exempt from immunizations based on religious, philosophical, or moral beliefs; and

e.A current health assessment or a health assessment statement completed by the parent, obtained at the time of initial enrollment of the child, that must indicate any special precautions for diet, medication, or activity. This assessment shall be completed annually.

3.The provider shall ensure that all records, photographs, and information maintained with respect to children receiving child care services are kept confidential, and that access is limited to staff members, the parents of each child, and to the following, unless otherwise protected by law:

a.Department representatives;

b.Individuals having a definite interest in the well-being of the child concerned and who, in the judgment of the department, are in a position to serve the child's interests should that be necessary; and

c.Individuals who possess written authorization from the child's parent. The family child care shall have a release of information form available and shall have the form signed prior to the release of information.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2022; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-08-23 Discipline - Punishment prohibited

Disregard of any of the following disciplinary rules or any disciplinary measure resulting in physical or emotional injury, or neglect or abuse, to any child is grounds for denial or revocation of a provider's license.

1.Discipline must be constructive or educational in nature and may include diversion, separation from the problem situation, talking with the child about the situation, praising appropriate behavior, or gentle physical restraint, such as holding. A child may not be subjected to physical harm, fear, or humiliation.

2.Authority to discipline may not be delegated to or be administered by children.

3.Separation, when used as discipline, must be appropriate to the child's development and circumstances. The child must be in a safe, lighted, well-ventilated room within sight or hearing range of a staff member responsible for caring for or teaching children. A child may not be isolated in a locked room or closet.

4.A child may not be punished for lapses in toilet training.

5.A staff member may not use verbal abuse or make derogatory remarks about the child, the child's family, race, or religion when addressing a child or when in the presence of a child. A staff member may not use profane, threatening, unduly loud, or abusive language in the presence of a child.

6.A staff member may not force-feed a child or coerce a child to eat, unless medically prescribed and administered under a medical provider's care.

7.A staff member may not use deprivation of snacks or meals as a form of discipline or punishment.

8.A staff member, household member, or any other adult in the family child care may not kick, punch, spank, shake, pinch, bite, roughly handle, strike, mechanically restrain, or physically maltreat a child.

9.A staff member may not force a child to ingest substances that would cause pain or discomfort, for example, placing soap in the mouth of a child to deter the child from biting other children.

10.A staff member may not withhold active play from a child as a form of discipline or punishment, beyond a brief period of separation.

N.D. Admin. Code 75-03-08-24 Specialized types of care and minimum requirements

1.Infant care.

a.Environment and interactions.

(1)A provider serving children from birth to twelve months shall provide an environment which protects the children from physical harm.

(2)The provider shall ensure that each infant receives positive stimulation and verbal interaction with a staff member responsible for caring for or teaching children, such as being held, rocked, talked with, or sung to.

(3)The staff members responsible for caring for or teaching children or emergency designee shall respond promptly to comfort an infant's or toddler's physical and emotional distress:

(a)Especially when indicated by crying or due to conditions such as hunger, fatigue, wet or soiled diapers, fear, teething, or illness; and (b)Through positive actions such as feeding, diapering, holding, touching, smiling, talking, singing, or eye contact.

(4)The provider shall ensure that infants have frequent and extended opportunities during each day for freedom of movement, including creeping or crawling in a safe, clean, open, and uncluttered area.

(5)Staff members responsible for caring for or teaching children shall take children outdoors or to other areas within the family child care for a part of each day to provide some change of physical surroundings and to interact with other children.

(6)The provider shall ensure that infants are not shaken or jostled.

(7)The provider shall ensure that low chairs and tables, high chairs with trays, or other age-appropriate seating systems are provided for mealtime for infants no longer being held for feeding. High chairs, if used, must have a wide base and a safety strap.

(8)The provider shall ensure that thermometers, pacifiers, teething toys, and similar objects are cleaned and sanitized between uses. Pacifiers may not be shared.

b.Feeding.

(1)The provider shall ensure that infants are provided developmentally appropriate nutritious foods. Only breast milk or iron-fortified infant formula may be fed to infants less than six months of age, unless otherwise instructed by the infant's parent or medical provider in writing.

(2)The provider shall ensure that infants are fed only the specific brand of iron-fortified infant formula requested by the parent. Staff members shall use brand-specific mixing instructions unless alternative mixing instructions are directed by a child's medical provider in writing.

(3)The provider shall ensure that mixed formula that has been unrefrigerated more than one hour is discarded.

(4)The provider shall ensure that frozen breast milk is thawed under cool running tap water, or in the refrigerator in amounts needed. Unused, thawed breast milk must be discarded or given to the parent within twenty-four hours.

(5)The provider shall ensure that an infant is not fed by propping a bottle.

(6)The provider shall ensure that cereal and other nonliquids or suspensions are only fed to an infant through a bottle on the written orders of the child's medical provider.

(7)The provider shall ensure that a staff member responsible for caring for or teaching children is within sight and hearing range of an infant during the infant's feeding or eating process.

c.Diapering.

(1)The provider shall ensure that there is a designated cleanable diapering area, located separately from food preparation and serving areas in the family child care, if children requiring diapering are in care.

(2)The provider shall ensure that diapers are changed promptly when needed and in a sanitary manner.

(3)Diapers must be changed on a nonporous surface area which must be cleaned and disinfected after each diapering.

(4)The provider shall ensure that soiled or wet diapers are stored in a sanitary, covered container separate from other garbage and waste until removed from the family child care.

d.Sleeping.

(1)The provider shall ensure that infants are placed on their back initially when sleeping to lower the risk of sudden infant death syndrome, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise.

The infant's face must remain uncovered when sleeping.

(2)The provider shall ensure that infants sleep in a crib with a firm mattress or in a portable crib with the manufacturer's pad that meets consumer product safety commission standards.

(3)The provider shall ensure that if an infant falls asleep while not in a crib or portable crib, the infant must be moved immediately to a crib or portable crib, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise.

(4)Water beds, adult beds, sofas, pillows, soft mattresses, and other soft surfaces are prohibited as infant sleeping surfaces.

(5)The provider shall ensure that all items are removed from and that no toys or objects are hung over or attached to the crib or portable crib when an infant is sleeping or preparing to sleep. With written parental permission, the provider may place one individual infant blanket or sleep sack, a pacifier, and a security item that does not pose a risk of suffocation to the infant in the crib or portable crib while the infant is sleeping or preparing to sleep.

(6)A staff member shall check on sleeping infants regularly and have a monitor in the room with the sleeping infant, unless a staff member is in the room with the infants while the infants are sleeping.

2.Night care.

a.Any family child care offering night care shall provide program modifications for the needs of children and their parents during the night.

b.In consultation with parents, special attention must be given by the staff member responsible for caring for or teaching children to provide a transition into this type of care, appropriate to the child's needs.

c.The provider shall encourage parents to leave their children in care or pick them up before and after their normal sleeping period when practical, to ensure minimal disturbance of the child during sleep, with consideration given to the parents' work schedule.

d.The provider shall ensure that children under the age of six are supervised directly when bathing.

e.The provider shall ensure that comfortable beds, cots, or cribs, complete with a mattress or pad, are available.

f.The provider shall require each child in night care to have night clothing and a toothbrush marked for identification.

History

• History: Effective January 1, 2011; amended effective January 1, 2013; April 1, 2016; April 1, 2018.

N.D. Admin. Code 75-03-08-25 Minimum requirements for care of children with special needs

A provider shall make appropriate accommodations, as required by the Americans with Disabilities Act, to meet the needs of children with special needs. The provider shall receive documentation of the child's special needs by the parent upon the child's enrollment.

1.When children with special needs are being cared for, the provider shall consult with the child's parents, and with the parent's permission, the child's source of professional health care or, when appropriate, other health and professional consultants to gain an understanding of the child's individual needs. The provider shall receive a written health care plan from the child's medical provider or parent with information related to the child's special needs, such as a description of the special needs, definition of the diagnosis, and general information for emergency and required care such as usual medications and procedures.

2.The provider shall ensure staff members responsible for caring for or teaching children receive proper instructions as to the nature of the child's special needs and potential for growth and development.

N.D. Admin. Code 75-03-08-26 [Reserved]

N.D. Admin. Code 75-03-08-27 Effect of conviction on licensure and employment

1.An applicant or provider may not be, and a family child care may not employ or allow, in any capacity that involves or permits contact between the emergency designee, staff member, or household member and any child cared for by the family child care, a provider, emergency designee, staff member, or household member who has been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code

section 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department in the case of an applicant, provider, or household member, or the provider in the case of a staff member or emergency designee, determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

2.The department has determined that the offenses enumerated in subdivision a or b of subsection 1 have a direct bearing on the applicant's, provider's, emergency designee's, or staff member's ability to serve the public in a capacity as a provider, emergency designee, or staff member.

3.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; in the case of a class B misdemeanor offense described in North Dakota Century Code section 12.1-17-01.2, domestic violence; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

4.The provider shall establish written policies and engage in practices that conform to those policies to effectively implement this section before the hiring of any staff members.

5.A provider shall submit an application for a fingerprint-based criminal history record check at the time of application and within five years from the date of initial approval and at least once every five years thereafter. The provider shall ensure that each staff member submits an application for a fingerprint-based criminal history record check upon hire and within five years from the date of initial approval and at least once every five years thereafter. The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department shall submit a request to the bureau of criminal investigation for a nationwide name-based criminal history record check.

6.Review of fingerprint-based criminal history record check results.

a.If an individual disputes the results of the criminal history record check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the department's memo outlining the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

c.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

April 1, 2018; January 1, 2022; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; April 1, 2014; April 1, 2016;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-06.1, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09

N.D. Admin. Code 75-03-08-28 Child abuse and neglect decisions

1.A provider shall ensure safe care for the children receiving services in the provider's family child care. If a confirmed decision made under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists, indicating that a child has been abused or neglected by an applicant, provider, emergency designee, staff member, or household member, that decision has a direct bearing on the applicant's or provider's ability to serve the public in a capacity involving the provision of child care, and the application or license may be denied or revoked. If a confirmed determination under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists, indicating that any child has been abused or neglected by the applicant, provider, emergency designee, staff member, or household member, the applicant or provider shall furnish information satisfactory to the department, from which the department can determine the applicant's, provider's, or staff member's ability to provide care that is free of abuse and neglect. The department shall furnish the determination of current ability to the applicant or provider.

2.Each applicant, provider, emergency designee, and staff member in the family child care shall complete, and the provider shall submit to the department, a department-approved authorization for background check form no later than the first day of employment.

3.Household members age twelve and older shall complete, and the provider shall submit to the department, a department-approved authorization for background check form at the time of application, relicensure, or upon obtaining residence at the location of the family child care.

April 1, 2016; July 1, 2020; January 1, 2022; January 1, 2023; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2014;

N.D. Admin. Code 75-03-08-29 Correction of violations

1.A provider shall correct violations noted in a correction order within the following times:

a.For a violation of subsection 8 of North Dakota Century Code section 50-11.1-02, North Dakota Century Code section 50-11.1-02.2, section 75-03-08-04, subsection 4 or 11 of

section 75-03-08-08.1, section 75-03-08-09, subsection 2 or 9 of section 75-03-08-14,

section 75-03-08-23, or subsection 1 of section 75-03-08-24, within twenty-four hours.

b.For a violation that requires an inspection by a state fire marshal or local fire department

authority pursuant to section 75-03-08-14, within sixty days.

c.For a violation that requires substantial building remodeling, construction, or change, within sixty days.

d.For all other violations, within twenty days.

2.All periods for correction begin on the date of receipt of the correction order by the provider.

3.The department may grant an extension of additional time to correct violations, up to a period of one-half the original allowable time allotted. An extension may be granted upon application by the provider and a showing that the need for the extension is created by unforeseeable circumstances and the provider has diligently pursued the correction of the violation.

4.The provider shall furnish a written notice to the department upon completion of the required corrective action. The correction order remains in effect until the department confirms the corrections have been made.

5.Within ten business days of mailing or within three days of electronic transmission of the correction order, the provider shall notify the parents of each child receiving care at the family child care that a correction order has been issued. In addition to providing notice to the parent of each child, the provider also shall post the correction order in a conspicuous location within the family child care until the violation has been corrected or for five days, whichever is longer.

6.A family child care that has been issued a correction order must be reinspected at the end of the period allowed for correction. If, upon reinspection, it is determined that the family child care has not corrected a violation identified in the correction order, the department shall mail or send by electronic mail a notice of noncompliance with the correction order to the provider.

The notice must specify the violations not corrected and the penalties assessed in accordance with North Dakota Century Code section 50-11.1-07.5.

7.If a family child care receives more than one correction order in a single year, the provider may be referred by the department for consulting services to assist the provider in maintaining compliance and to avoid future corrective action.

8.Refutation process for a correction order:

a.A provider may refute a correction order by submitting a refutation request in writing on the form provided by the department within five calendar days of receiving the correction order.

b.The department shall respond to written refutations within five business days of receipt.

July 1, 2020; January 1, 2022; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2014;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.1, 50-11.1-07.2, 50-11.1-07.3

N.D. Admin. Code 75-03-08-30 Fiscal sanctions

1.The department shall assess a fiscal sanction of twenty-five dollars per day for each violation of North Dakota Century Code chapter 50-11.1; section 75-03-08-09; subsection 1, 2, or 9 of

section 75-03-08-14; or section 75-03-08-23, 75-03-08-27, or 75-03-08-28 for each day that the provider has not verified correction, after the allowable time for correction of violations ends.

2.The department shall assess a fiscal sanction of fifteen dollars per day for each violation of subsection 8 or 10 of section 75-03-08-14, or subsection 13 of section 75-03-08-21.1 for each day that the provider has not verified correction, after the allowable time for correction of violations ends.

3.The department shall assess a fiscal sanction of five dollars per day for each violation of any other provision of this chapter for each day that the provider has not verified correction, after the allowable time for correction of violations ends.

History

• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013.
• General Authority: NDCC 50-11.1-07.4, 50-11.1-08
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.4, 50-11.1-08

N.D. Admin. Code 75-03-08-31 Appeals

An applicant or provider may appeal a decision to deny or revoke a license. A written appeal must be postmarked or received by the department within ten calendar days of the applicant's or provider's receipt of written notice of the decision to deny or revoke the license. Upon receipt of a timely appeal, an administrative hearing will be conducted in the manner prescribed by chapter 75-01-03.

History

• Law Implemented: NDCC 50-11.1-08, 50-11.1-10

Chapter 75-03-09 Group Child Care Early Childhood Services

N.D. Admin. Code 75-03-09-01 Purpose

Repealed effective January 1, 2011.

N.D. Admin. Code 75-03-09-02 Authority and objective

Repealed effective January 1, 2011.

N.D. Admin. Code 75-03-09-03 Definitions

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-11.1-02. In addition, as used in this chapter, unless the context or subject matter otherwise requires:

1."Annual" is defined as the provider's licensing year.

2."Application" means all forms the department requires when applying or reapplying for a license.

3."Aquatic activity" means an activity in or on a body of water, either natural or manmade, including rivers, lakes, streams, swimming pools, and water slides.

4."Attendance" means the total number of children present at any one time at the group child care.

5."Child with special needs" means a child whose medical providers have determined that the child has or is at risk for chronic physical, developmental, behavioral, or emotional conditions.

6."Emergency designee" means an individual designated by the operator to be a backup caregiver for emergency assistance or to provide substitute care.

7."Group child care supervisor" means an individual responsible for overseeing the day-to-day operation of a group child care.

8."Infant" means a child who is less than twelve months of age.

9."Medications" means any drug or remedy which is taken internally or orally, inhaled, or applied topically.

10."Operator" means the person that has operational responsibility for the early childhood program and premises at which the early childhood service operates.

11."Owner" means the person that has legal responsibility for the early childhood program and premises at which the early childhood service operates.

12."Provider" means the group child care owner or operator.

13."Substitute staff" means paid or unpaid staff who work less than thirty-two hours per month and are not regularly scheduled for work.

14."Volunteer" means an individual who visits or provides an unpaid service or visit, including a firefighter for fire safety week, a practicum student, or a foster grandparent.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2014; April 1, 2016; January 1, 2022; January 1, 2023; April 1, 2024.
• Law Implemented: NDCC 50-11.1-02

N.D. Admin. Code 75-03-09-04 Effect of licensing and display of license

1.The issuance of a license to operate a group child care is evidence of compliance with the standards contained in this chapter and North Dakota Century Code chapter 50-11.1 at the time of licensure.

2.The current license must be displayed prominently in the premises to which it applies.

3.The license must specify the maximum number of children who may be cared for by the group child care. The group child care may not admit a greater number of children than the license allows.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04

N.D. Admin. Code 75-03-09-05 Denial or revocation of license

1.A license may be denied or revoked under the terms and conditions of North Dakota Century Code sections 50-11.1-04, 50-11.1-06.2, 50-11.1-09, and 50-11.1-10.

2.If an action to revoke a license is appealed, the provider may continue the operation of the group child care pending the final administrative determination or until the license expires, whichever occurs first, unless continued operation would jeopardize the health and safety of the children attending the group child care. This subsection does not limit the actions the department may take pursuant to North Dakota Century Code sections 50-11.1-07.8 and 50-11.1-12.

3.The department may revoke a license to operate a group child care without first issuing a correction order or simultaneously with a suspension if continued operation would jeopardize the health and safety of the children present or would violate North Dakota Century Code

section 50-11.1-09.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended
• Law Implemented: NDCC 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09, 50-11.1-10

N.D. Admin. Code 75-03-09-06 Provisional license

1.The department may issue a provisional license for the operation of a group child care although the applicant or provider fails to, or is unable to, comply with all applicable standards and rules of the department.

2.A provisional license must:

a.State that the provider has failed to comply with all applicable standards and rules of the department;

b.State the items of noncompliance;

c.Expire at a set date, not to exceed six months from the date of issuance; and

d.Be exchanged for an unrestricted license, which bears an expiration date of one year from the date of issuance of the provisional license, after the applicant or provider demonstrates compliance, satisfactory to the department, with all applicable standards and rules.

3.The department may issue a provisional license only to an applicant or provider who has waived, in writing:

a.The right to a written statement of charges as to the reasons for the denial of an unrestricted license; and

b.The right to an administrative hearing, in the manner provided in North Dakota Century Code chapter 28-32, concerning the nonissuance of an unrestricted license, either at the time of application or during the period of operation under a provisional license.

4.Any provisional license issued must be accompanied by a written statement of violations signed by the department and must be acknowledged in writing by the provider.

5.Subject to the exceptions contained in this section, a provisional license entitles the operator to all rights and privileges afforded the operator of an unrestricted license.

6.The department may not issue a provisional license if the group child care is not in compliance with section 75-03-09-17 or 75-03-09-18.

7.The provider shall display prominently the provisional license and agreement.

8.The provider shall provide parents written notice that the group child care is operating on a provisional license and the basis for the provisional license.

The department may issue a restricted license:

1.To restrict an individual's presence when children are in child care;

2.To restrict a pet or animal from areas accessible to children; or

3.When necessary to inform the parents that the provider is licensed, but is restricted to operating in certain rooms or floors of the residence or restricted from using specific outdoor space of the residence.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2020.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-08 75-03-09-06.1. Restricted license.
• History: Effective January 1, 2011.
• Law Implemented: NDCC 50-11.1-04

N.D. Admin. Code 75-03-09-07 Application for and nontransferability of group child care license

1.An application for license must be submitted to the department. Application must be made in the form and manner prescribed by the department.

2.A license issued under this chapter is nontransferable and valid only for the premises indicated on the license.

3.An application for a new license must be filed upon change of provider or location.

4.The department may not issue more than one in-home registration, self-declaration, or license per residence. A residence means real property that is typically used as a single family dwelling.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; July 1, 2020; January 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08

N.D. Admin. Code 75-03-09-08 Duties of group child care provider

1.The provider of a group child care is responsible for compliance with requirements set forth in the standards and North Dakota Century Code chapter 50-11.1. The provider shall:

a.Establish the group child care;

b.Apply for a license for the group child care;

c.Possess knowledge or experience in management and interpersonal relationships;

d.Formulate written policies and procedures for the operation of the group child care.

Policies must include:

(1)An explanation of how accidents and illnesses will be handled;

(2)The methods of developmentally appropriate discipline and guidance techniques that are to be used;

(3)The process for a parent or staff member to report a complaint, a suspected licensing violation, and suspected child abuse or neglect;

(4)Hiring practices and personnel policies for staff members;

(5)Informing parents that they may request daily reports for their child, including details regarding eating, napping, and diapering;

(6)Procedure for accountability when a child fails to arrive as expected at the group child care; and (7)Transportation procedures, if the provider provides transportation;

e.Notify the department of any major changes in the operation or in the ownership of the group child care, including staff member changes;

f.Maintain records of enrollment, attendance, health, and other required records;

g.May select an emergency designee;

h.Maintain necessary information to verify staff members' qualifications and to ensure safe care for the children in the group child care;

i.Ensure the group child care is sufficiently staffed at all times to meet the child and staff ratios for children in attendance and that no more children than the licensed capacity are served at any one time;

j.Ensure preadmission visits for children and their parents are offered so the group child care, fees, operating policies, and procedures can be viewed and discussed;

k.Ensure that there are signed written agreements with the parents of each child that specify the fees to be paid, methods of payment, and policies regarding delinquency of fees;

l.Provide parents, upon request, with progress reports on their children, and provide unlimited opportunities for parents to observe their children while in care. Providing unlimited access does not prohibit a group child care from locking its doors while children are in care;

m.Provide parents with the name of the group child care provider, the group child care supervisor, staff members, and the emergency designee;

n.Report, as a mandatory reporter, any suspected child abuse or neglect as required by North Dakota Century Code section 50-25.1-03;

o.Ensure that children do not depart from the group child care premises unsupervised, except when the parent and provider consent that an unsupervised departure is safe and appropriate for the age and development of the child. The provider shall obtain written parental consent for the child to leave the group child care premises unsupervised, which must specify the activity, time the child is leaving and length of time the child will be gone, method of transportation, and parental responsibility for the child once the child leaves the group child care premises; and

p.Ensure that each child is released only to the child's parent, legal custodian, guardian, or individual who has been authorized by the child's parent, legal custodian, or guardian.

2.If the provider is also the group child care supervisor, the provider shall also meet the qualifications of the supervisor in section 75-03-09-10.

3.The provider shall report to the department within twenty-four hours:

a.A death or serious accident or illness requiring hospitalization of a child while in the care of the group child care or attributable to care received in the group child care;

b.An injury to any child which occurs while the child is in the care of the group child care and which requires medical treatment;

c.Poisonings or errors in the administering of medication;

d.Closures or relocations of the group child care due to emergencies; and

e.Fire that occurs and explosions that occur in or on the premises of the group child care.

April 1, 2024.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2016; April 1, 2018; July 1, 2020;

N.D. Admin. Code 75-03-09-09 Staffing requirements

1.The number of staff members and their responsibilities must reflect program requirements, individual differences in the needs of the children enrolled, and may permit flexible groupings, if necessary. 2.a.A provider may provide early childhood services for no more than seven children at any one time, which includes no more than three children under twenty-four months of age. A provider may also provide early childhood services to two additional school-age children; or

b.A provider may elect to staff according to the following minimum ratio of staff members responsible for caring for or teaching children to children in group child care:

(1)For children younger than eighteen months of age, a ratio of .25 in decimal form is (2)For children eighteen months of age to thirty-six months of age, a ratio of .20 in decimal form is assigned;

(3)For children thirty-six months of age to four years of age, a ratio of .14 in decimal form is assigned;

(4)For children four years of age to five years of age, a ratio of .10 in decimal form is (5)For children five years of age to six years of age, a ratio of .08 in decimal form is (6)For children six years to twelve years of age, a ratio of .05 in decimal form is assigned; and (7)When there is a mixed-aged group, the number of children in each age category is multiplied by the corresponding ratio number, converted to decimal form, and carried to the nearest hundredth. To determine the number of staff members responsible for caring for or teaching children necessary at any given time, numbers of staff members for all age categories are added, and any fractional staff member count is then rounded to the next highest whole number whenever the fractional staff member count amounts to thirty-five hundredths or more. If lower than thirty-five hundredths, the fractional amount is dropped. No more than four children under the age of eighteen months per staff member are allowed in any mixed-aged group.

3.A provider licensed for at least two years may apply for a waiver of the required ratio, not to exceed .25 decimal point. The department shall consider demonstration of need, health and safety of children, age of children, number of children, and licensing history of the provider in determining whether to approve the application for a waiver. The department may deny an application for waiver and may revoke a waiver granted under this subsection. The decision to deny or revoke a waiver is not an appealable decision. The department shall review each waiver granted under this subsection annually to determine if the circumstances which led to granting the waiver continue to exist.

4.The provider of a group child care shall ensure that the group child care is sufficiently staffed at all times to meet the child and staff ratios for children in attendance, and that no more children than the licensed capacity are served at one time.

5.If a child with special needs is admitted to the group child care, the child's developmental age level must be used in determining the number of children for which care can be provided.

6.The provider shall ensure that children with special needs requiring more than usual care and supervision have adequate care and supervision provided to them without adversely affecting care provided to the remaining children in the group child care.

January 1, 2022.

History

• History: Effective December 1, 1981; amended effective July 1, 1984; January 1, 1987; January 1, 1989; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2013; April 1, 2014;
• Law Implemented: NDCC 50-11.1-02.1, 50-11.1-04, 50-11.1-08

N.D. Admin. Code 75-03-09-10 Minimum qualifications of group child care supervisor

1.A group child care supervisor must be an adult of good physical, cognitive, social, and emotional health and shall use mature judgment when making decisions impacting the quality of child care.

2.The group child care supervisor shall meet at least one of the following qualifications, in addition to those set out in subsection 1:

a.A bachelor's degree in the field of early childhood education or child development;

b.An associate's degree with at least one of the following:

(1)Eight semester hours or twelve quarter hours of department-approved early childhood education or child development;

(2)One hundred twenty hours of department-approved early childhood training; or (3)A director's credential approved by the department;

c.Current certification as a child development associate or successful completion of a department-approved diploma program with emphasis in early childhood or child care;

d.Certification from a Montessori teacher training program;

e.At least one year of exclusive experience as a self-declaration holder or licensed child care provider with positive references from at least two parents whose children were in the provider's care;

f.A high school degree or equivalency with certification of completion in a secondary occupational child care program and at least one year of exclusive experience working with young children, with references from at least two individuals who either had their children in the group child care supervisor's care or instructed the group child care supervisor in child care programming; or

g.A minimum of one year of exclusive experience providing care to three or more children, with positive references from at least two parents whose children were in the group child care supervisor's care or a center director or teacher who observed the group child care supervisor's care of children first hand.

3.The group child care supervisor shall certify completion of a minimum of ten hours of department-approved training related to child care annually, including one hour on safe sleep prior to providing care to infants and one hour on mandated reporter of suspected child abuse or neglect. A department-approved basic child care course must be completed within ninety days of employment. The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of safe sleep and mandated reporter annual training.

4.The group child care supervisor must be present in the group child care no less than sixty percent of the time when children are in care.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2016; April 1, 2018; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-09-11 Duties of group child care supervisor

The group child care supervisor, in collaboration with the group child care provider, shall:

1.Plan, supervise, and conduct daily activities in the group child care;

2.Ensure that staff members and children under the age of eighteen shall have adult supervision in the group child care at all times;

3.Develop and deliver orientation for new staff members and keep a record of the items covered during orientation; and

4.Instruct each employee of the group child care of the process for reporting a complaint, a suspected licensing violation, or a suspected child abuse or neglect incident.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011.

N.D. Admin. Code 75-03-09-12 Minimum qualifications for all staff members responsible for caring for or teaching children

Staff members shall:

1.Be at least fourteen years of age, provided that each staff member under age sixteen provides written parental consent for employment as a staff member, and the employment arrangements comply with North Dakota Century Code chapter 34-07. A member of the immediate family of the provider may provide care if the family member is at least twelve years of age;

2.Be individuals of good physical, cognitive, social, and emotional health and shall use mature judgment when making decisions impacting the quality of child care;

3.Receive orientation related to the group child care program during the first week of work. The orientation must be documented on an orientation certification form and must address the following:

a.Emergency health, fire, and safety procedures;

b.The importance of handwashing and sanitation procedures to reduce the spread of infection and disease among children and staff members;

c.Any special health or nutrition instructions of the children assigned to the staff member;

d.Any special needs of the children assigned to the staff member;

e.The planned program of activities at the group child care;

f.Rules and policies of the group child care; and

g.Child abuse and neglect reporting laws;

4.Ensure that at no time a child is placed in an environment that would be harmful or dangerous to the child's physical, cognitive, social, or emotional health;

5.Certify completion of a department-approved basic child care course within ninety days of employment;

6.Certify the staff member's own completion of department-approved training related to child care annually as set forth below:

a.A staff member working thirty or more hours per week shall certify a minimum of eight hours of department-approved training annually;

b.A staff member working fewer than thirty and at least twenty hours per week shall certify a minimum of six hours of department-approved training annually;

c.A staff member working fewer than twenty and at least ten hours per week shall certify a minimum of four hours of department-approved training annually;

d.A staff member working fewer than ten hours per week shall certify a minimum of two hours of department-approved training annually;

e.An emergency designee is exempt from department-approved annual training, with the exception of training required by subsections 5, 7, and 8; and

f.The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of safe sleep and mandated reporter annual training;

7.Certify completion of one hour of department-approved safe sleep training prior to staff member providing care to infants and annually thereafter;

8.Certify annual completion of one hour of department-approved mandated reporter of suspected child abuse or neglect training;

9.Ensure safe care for the children under supervision. Supervision means a staff member responsible for caring for or teaching children being within sight or hearing range of an infant, toddler, or preschooler at all times so the staff member is capable of intervening to protect the health and safety of the child. For the school-age child, it means a staff member responsible for caring for or teaching children being available for assistance and care so that the child's health and safety are protected;

10.Be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department; and

11.Be currently certified within ninety days of employment and prior to staff member having unsupervised access to children in care, in pediatric first aid by a program approved by the department.

If a volunteer is providing child care, the volunteer shall meet the qualifications of a staff member responsible for caring for or teaching children and shall receive orientation for all assigned tasks.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; April 1, 2018; January 1, 2023; April 1, 2024. 75-03-09-12.1. Minimum qualifications of volunteers.
• History: Effective January 1, 2011.

N.D. Admin. Code 75-03-09-13 Minimum health requirements for all applicants, operators, and staff members

1.If the physical, cognitive, social, or emotional health capabilities of an applicant or staff member appear questionable, the department may require the individual to present evidence of the individual's ability to provide the required care based on a formal evaluation. The department is not responsible for the costs of any required evaluation.

2.A staff member or household member may not use or be under the influence of any illegal drugs or alcoholic beverages while caring for children.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended
• Law Implemented: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-07, 50-1.1-08

N.D. Admin. Code 75-03-09-14 Minimum requirements for facility

1.The provider shall ensure that the group child care is properly lighted. If the lighting of the group child care appears questionable, the department may require the provider to obtain additional lights.

2.The provider shall ensure that safe and comfortable arrangements for naps for enrolled children are provided.

a.The provider may allow a child to sleep or rest on the floor only when the floor is carpeted or padded, warm, free from drafts, and when each child has an individual blanket or sleeping mat.

b.The provider shall ensure that there is a room available, separate from the nap room, where an individual child can go for supervised play if the child is unable to nap, so as not to disrupt the other children's rest.

3.Water supply:

a.The provider shall ensure that the group child care has a drinking supply from a community water system or from a source tested and approved annually by the department of environmental quality.

b.The group child care must have hot and cold running water. The water in the faucets used by children must not exceed one hundred twenty degrees Fahrenheit [49.2 degrees Celsius].

4.Toilet and sink facilities:

a.The provider shall provide toilet and sink facilities which are easily accessible to the areas used by the children and staff.

b.Toilets must be located in rooms separate from those used for cooking, eating, and sleeping. A minimum of one flush toilet must be provided for each fifteen children, excluding those children who are not toilet trained.

c.The provider shall provide child-sized toilet adapters, training chairs, or potty chairs for use by children who require them. Training chairs must be emptied promptly and thoroughly cleaned and sanitized after each use.

d.The provider shall provide at least one handwashing sink per toilet room facility or diapering area. The provider shall provide sanitary hand-drying equipment, single-use or individually designated cloth towels, or paper towels near handwashing sinks.

e.The provider shall provide safe step stools to allow standard-size toilets and sinks to be used by the children or the provider shall ensure the availability of child-size toilets and sinks.

5.The provider of a group child care not on a municipal or public water supply or wastewater disposal system shall ensure the group child care's sewage and wastewater system has been approved by the department of environmental quality.

July 1, 2020; April 1, 2024.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2014; April 1, 2016; April 1, 2018;

N.D. Admin. Code 75-03-09-15 Minimum standards for provision of transportation

1.Prior to licensure, the provider shall establish a written policy governing the transportation of children to and from the group child care, if the group child care provides transportation. This policy must specify who is to provide transportation and how parental permission is to be obtained for activities which occur outside the group child care. If the group child care provides transportation, the provider shall inform the parents of any insurance coverage on the vehicles. Any vehicle used for transporting children must be in safe operating condition and in compliance with state and local laws.

2.When transportation is provided by a group child care, children must be protected by adequate staff supervision, safety precautions, and liability insurance.

a.Staffing requirements must be maintained to assure the safety of children while being transported.

b.A child may not be left unattended in a vehicle.

3.Children must be instructed in safe transportation conduct as appropriate to their age and stage of development.

4.The driver must be eighteen years of age or older and must comply with all relevant federal, state, and local laws, including child restraint system laws.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-09-16 Minimum emergency evacuation and disaster plan

1.Each provider shall establish and post an emergency disaster plan for the safety of the children in care. Written disaster plans must be developed in cooperation with local emergency management agencies. The plan must include:

a.Emergency procedures, including the availability of emergency food, water, and first-aid supplies;

b.Procedures for evacuation, relocation, shelter-in-place, and lockdown;

c.Communications and reunification with families;

d.Continuity of operations; and

e.Accommodations for infants, toddlers, children with disabilities, and children with chronic medical conditions.

2.Fire and emergency evacuation drills must be performed monthly.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2018; January 1, 2022; April 1, 2024.

N.D. Admin. Code 75-03-09-17 Fire inspections

1.The provider shall ensure that initial and annual fire inspections are completed by local or state fire authorities for all group child cares in which care is provided. The group child care is responsible for any inspection fee. The provider shall have any code violations noted by the fire inspector corrected and shall file reports of the inspections and any corrections with the department. If the fire, safety, health, or sanitation environment appears questionable, the department may require the provider to obtain additional inspections at the cost of the provider.

2.The provider shall provide:

a.The fire inspector's written statement of compliance with the local fire code, if there is one; or

b.The fire inspector's written statement that the group child care has been inspected and that the inspector is satisfied that the facility meets minimum fire and safety standards.

3.The provider shall ensure that the group child care is equipped with sufficient smoke detectors and fire extinguishers, as recommended by the local fire department or state fire marshal.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; July 1, 2020; April 1, 2024.

N.D. Admin. Code 75-03-09-18 Minimum sanitation and safety requirements

1.The provider shall ensure that the group child care bathroom sinks, toilets, tables, chairs, and floors are cleaned daily.

2.The provider shall ensure that the group child care building, grounds, and equipment are located, cleaned, and maintained to protect the health and safety of children. Routine maintenance and cleaning procedures must be established to protect the health of the children and the staff members.

3.Staff members and children shall wash their hands, according to recommendations by the federal centers for disease control and prevention, before preparing or serving meals, after diapering, after using toilet facilities, and after any other procedure that may involve contact with bodily fluids. Hand soap and sanitary hand-drying equipment, individually designated cloth towels, or paper towels must be available at each sink.

4.The provider shall ensure that indoor and outdoor equipment, toys, and supplies are safe, strong, nontoxic, and in good repair. The provider shall ensure that all toys and equipment are kept clean and in sanitary condition. Books and other toys that are not readily cleanable must be sanitized as much as possible without damaging the integrity or educational value of the item.

5.The provider shall ensure that the group child care ground areas are free from accumulations of refuse, standing water, unprotected wells, debris, flammable material, and other health and safety hazards.

6.The provider shall ensure that garbage stored outside is kept away from areas used by children and is kept in containers with lids. Open burning is not permitted. The provider shall keep indoor garbage in covered containers. The provider may allow paper waste to be kept in open waste containers.

7.The provider shall ensure that exterior play areas in close proximity to busy streets and other unsafe areas are contained or fenced, or have natural barriers, to restrict children from those unsafe areas. Outdoor play areas must be inspected daily for hazards and necessary maintenance.

8.The provider shall ensure that potential hazards, such as noncovered electrical outlets, guns, household cleaning chemicals, uninsulated wires, medicines, and poisonous plants are not accessible to children. The provider shall keep guns and ammunition in locked storage, each separate from the other, or shall use trigger locks . The provider shall ensure other weapons and dangerous sporting equipment, such as bows and arrows, are not accessible to children.

9.The provider shall ensure that indoor floors and steps are not slippery and do not have splinters. The provider shall ensure that accumulations of water, ice, snow, or debris are removed from steps and walkways as quickly as possible.

10.The provider shall ensure that elevated areas, including stairs and porches, have railings and safety gates where necessary to prevent falls.

11.The provider shall take steps to keep the group child care free of insects and rodents.

Chemicals for insect and rodent control may not be applied in areas accessible to children when children are present in the group child care. Insect repellant may be applied outdoors on children with parental permission.

12.The provider shall ensure that exit doorways and pathways are not blocked.

13.The provider shall ensure that light bulbs in areas used by children are properly shielded or shatterproof.

14.The provider shall ensure that combustible materials are kept away from light bulbs and other heat sources.

15.The provider shall ensure adequate heating, ventilation, humidity, and lighting for the comfort and protection of the health of the children. All heating devices must be approved by local fire authorities. During the heating season when the group child care is occupied by children, the room temperature must not be less than sixty-five degrees Fahrenheit [18 degrees Celsius] and not more than seventy-five degrees Fahrenheit [24 degrees Celsius].

16.A provider shall ensure that all group child care buildings erected before January 1, 1970, which contain painted surfaces in a peeling, flaking, chipped, or chewed condition in any area where children may be present, have painted surfaces repainted or shall submit evidence that the paints or finishes do not contain hazardous levels of lead-bearing substances. For the purposes of this chapter, "hazardous levels of lead-bearing substances" means any paint, varnish, lacquer, putty, plaster, or similar coating of structural material which contains lead or its compounds in excess of seven-tenths of one milligram per square centimeter, or in excess of five-tenths of one percent in the dried film or coating, when measured by a lead-detecting instrument approved by the department of environmental quality.

17.The provider shall ensure that personal items, including combs, pacifiers, and toothbrushes, are individually identified and stored in a sanitary manner.

18.Pets and animals.

a.The provider shall ensure that only small pets that are contained in an aquarium or other approved enclosed container, cats, and dogs are present in areas occupied by children.

Wire cages are not approved containers. Other indoor pets and animals must be restricted by a solid barrier and must not be accessible to children. The department may restrict any pet or animal from the premises that may pose a risk to children or may approve additional pets that do not pose a health or safety risk to children.

b.The provider shall ensure that animals are maintained in good health and are appropriately immunized. Pet immunizations must be documented with a current certificate from a veterinarian.

c.The provider shall ensure parents are aware of the presence of pets and animals in the group child care.

d.The provider shall notify parents immediately if a child is bitten or scratched and skin is broken.

e.A staff member responsible for caring for or teaching children shall supervise closely all contact between pets or animals and children. The staff member shall immediately remove the pet if the pet or animal shows signs of distress or the child shows signs of treating the pet or animal inappropriately.

f.The provider shall ensure that pets, pet feeding dishes, cages, and litter boxes are not present in any food preparation, food storage, or serving areas. The provider shall ensure that pet and animal feeding dishes and litter boxes are not placed in areas accessible to children.

g.The provider shall ensure that indoor and outdoor areas accessible to children must be free of animal excrement.

h.The provider shall ensure that the group child care is in compliance with all applicable state and local ordinances regarding the number, type, and health status of pets or animals.

19.Staff members responsible for caring for or teaching children shall strictly supervise wading pools used by the group child care and shall empty, clean, and sanitize wading pools daily.

20.All swimming pools used by children must be approved annually by the local health unit.

21.Aquatic activities:

a.The provider shall have policies that ensure the health and safety of children in care while participating in aquatic activities, including types of aquatic activities the group child care may participate in, staff-to-child ratios appropriate to the ages and swimming ability of children participating in aquatic activities, and additional safety precautions to be taken.

b.The provider may not permit any child to participate in an aquatic activity without written parental permission, which includes parent disclosure of the child's swimming ability.

22.The provider shall ensure that beds, cots, mats, or cribs, complete with a mattress or pad, are available and the provider shall ensure:

a.Pillows and mattresses have clean coverings.

b.Sheets and pillowcases are changed as often as necessary for cleanliness and hygiene, at least weekly.

c.If beds, cots, mats, or cribs are used by different children, sheets and pillowcases are laundered before use by other children.

d.Cots, mats, or cribs are cleaned as often as necessary for cleanliness and hygiene, at least weekly, and after each use if used by different children;

e.That cots, mats, and cribs are single occupancy.

f.Each bed, cot, or mat has sufficient blankets available.

g.That aisles between beds, cots, mats, or cribs are a minimum space of two feet [60.96 centimeters] and are kept free of all obstructions while beds, cots, mats, or cribs are occupied.

h.Provide separate storage for personal blankets or coverings.

i.That mattresses and sheets are properly fitted.

History

• History: Effective December 1, 1981; amended effective January 1, 1999; January 1, 2011; April 1, 2014; April 1, 2016; April 1, 2018; July 1, 2020; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-09-19 Minimum requirements regarding space

Each group child care shall provide adequate indoor and outdoor space for the daily activities of all children within the licensed capacity of the group child care.

1.There must be a minimum of thirty-five square feet [3.25 square meters] of appropriate indoor space per child in the group child care. Indoor space considered must exclude bathrooms, pantries, passageways leading to outdoor exits, areas occupied by furniture or appliances that children should not play on or under, and space that children are not permitted to occupy.

2.There must be a minimum of seventy-five square feet [6.97 square meters] of appropriate outdoor play space per child for the group child care. If available outdoor play space does not accommodate the licensed capacity of the group child care at one time, the total appropriate outdoor play space available must be no less than the number of children in the largest class or group of the group child care multiplied by seventy-five square feet [6.97 square meters].

Operators who provide seventy-five square feet [6.97 square meters] of separate indoor recreation space per child for the largest class or group are exempt from the outdoor space requirement. The provider shall prepare a written schedule of outdoor or separate indoor recreation space playtime which limits the use of the play area to its capacity, giving each class or group an opportunity to play daily.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; September 1, 1990; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2014.

N.D. Admin. Code 75-03-09-20 Program requirements

1.The group child care provider shall have a program of daily individual or small group activities appropriate to the ages and needs of the children in the group child care. The program must include activities which foster sound social, cognitive, emotional, and physical growth, and the program must be developed with consideration of parental input. A written daily routine including mealtimes, rest times, planned developmentally appropriate activities, free play, and outside time must be available to parents. The daily routine must be flexible enough to allow for spontaneous activity as appropriate.

2.The provider shall design the program with intervals of stimulation and relaxation, and a balance between periods of active play and quiet play or rest. The daily routine must be written, but subject to change. The daily routine must foster the development of good health habits and self-discipline, adequate indoor and outdoor play, rest, and sleep, with sufficient time and opportunities for various experiences.

3.The program must provide a variety of educational experiences for all ages of children served with an adequate supply of safe play equipment, toys, and materials for indoor and outdoor activity. Each group child care must have enough play materials and equipment so that each child in attendance may be involved individually or as a group.

4.Areas used for napping must provide an opportunity for undisturbed rest. The provider shall set napping schedules for children in consultation with their parents, according to the children's ages and needs.

5.At the time of enrollment, the provider shall meet with the parents to discuss the child's habits, activities, and schedules while at home and in school and the parent's special concerns about the child's past and future behavior and development. The provider shall design the schedule and activities to complement and supplement the child's experiences at home or in school.

6.The group child care provider shall contact parents to exchange information concerning the child and any concerns about the health, development, or behavior of the child. These concerns must be communicated to parents promptly and directly.

7.Staff members shall stress personal hygiene practices appropriate for a child's age and development.

8.Each child's cultural and ethnic background and primary language or dialect must be respected by the staff members.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-09-21 Minimum standards for food and nutrition

1.When the provider is responsible for providing food to children, the food supplied must meet United States department of agriculture standards and must be properly prepared, sufficient in amount, nutritious, varied according to the diets of the children enrolled, and served at appropriate hours. Food that is prepared, served, or stored in the group child care must be treated in a safe and sanitary manner with safe and sanitary equipment.

2.When parents bring sack lunches for their children, the provider shall supplement lunches, as necessary, to provide nutritious and sufficient amounts of food for children and shall provide adequate and appropriate refrigeration and storage as required.

3.Children in care for more than three hours shall receive either a snack or meal, whichever is appropriate to that time of day.

4.The provider shall serve nutritious meals to children in care during any normal mealtime hour.

5.The provider shall serve snacks to children in care after school.

6.When the provider is responsible for providing food to children, menus must be posted on a daily or weekly basis.

7.The provider shall consider information provided by the children's parents as to their eating habits, food preferences, or special needs in creating the feeding schedules and in tailoring menus.

8.The provider shall serve snacks and meals to children in a manner commensurate with their age, using appropriate foods, portions, dishes, and eating utensils.

9.The provider or staff member may encourage children to eat the food served, but the provider or staff member may not coerce or force-feed children.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-09-22 Records

1.The provider shall keep a copy of this chapter on the premises of the group child care and shall make it available to staff members at all times.

2.The provider shall maintain the following records:

a.The child's full name, birthdate, and current home address;

b.Legal names of the child's parents, and current business and personal telephone numbers where they can be reached;

c.Names and telephone numbers of individuals who may assume responsibility for the child if the individuals legally responsible for the child cannot be reached immediately in an emergency;

d.A written statement from the parents authorizing emergency medical care;

e.Names and telephone numbers of individuals authorized to take the child from the group child care;

f.Verification that the child has received all immunizations appropriate for the child's age, as prescribed by the public health division of the department, or have on file a document citing that the child is medically exempt or exempt from immunizations based on religious, philosophical, or moral beliefs; and

g.A current health assessment or a health assessment statement completed by the parent, obtained at the time of initial enrollment of the child which must indicate any special precautions for diet, medication, or activity. This assessment must be completed annually.

3.The provider must verify the identification of the child through official documentation such as a certified birth certificate, certified school records, passport, or any other documentary evidence the provider considers appropriate proof of identity and shall comply with North Dakota Century Code section 12-60-26.

4.The provider shall ensure that all records, photographs, and information maintained with respect to children receiving child care services are kept confidential, and that access is limited to staff members, the parents of each child, and to the following, unless otherwise protected by law:

a.The department representatives;

b.Individuals having a definite interest in the well-being of the children concerned and who, in the judgment of the department, are in a position to serve the children's interests should that be necessary; and

c.Individuals who possess a written authorization from the child's parent. The group child care shall have a release of information form available and shall have the form signed prior to the release of information.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2022; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-09-23 Discipline - Punishment prohibited

Disregard of any of the following disciplinary rules or any disciplinary measure resulting in physical or emotional injury, neglect, or abuse to any child is grounds for denial or revocation.

1.The group child care must have a written policy regarding the discipline of children. The provider shall provide the policy to, and discuss the policy with, staff members before the group child care begins operation or before staff members begin working with children.

2.Discipline must be constructive or educational in nature and may include diversion, separation from the problem situation, talking with the child about the situation, praising appropriate behavior, or gentle physical restraint, such as holding. A child may not be subjected to physical harm, fear, or humiliation.

3.Authority to discipline may not be delegated to children nor may discipline be administered by children.

4.Separation, when used as discipline, must be appropriate to the child's development and circumstances. The child must be in a safe, lighted, well-ventilated room within sight or hearing range of a staff member responsible for caring for or teaching children. A staff member may not isolate a child in a locked room or closet.

5.A child may not be punished for lapses in toilet training.

6.A staff member may not use verbal abuse or make derogatory remarks about the child, the child's family, race, or religion when addressing a child or in the presence of a child.

7.A staff member may not use profane, threatening, unduly loud, or abusive language in the presence of a child.

8.A staff member may not force-feed a child or coerce a child to eat unless medically prescribed and administered under a medical provider's care.

9.A staff member may not use deprivation of meals or snacks as a form of discipline or punishment.

10.A staff member, household member, or any other adult in or at the group child care may not kick, punch, spank, shake, pinch, bite, roughly handle, strike, mechanically restrain, or physically maltreat a child.

11.A staff member may not force a child to ingest substances that would cause pain or discomfort, for example, placing soap in the mouth of a child to deter the child from biting other children.

12.A staff member may not withhold active play from a child as a form of discipline or punishment, beyond a brief period of separation.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-09-24 Specialized types of care and minimum requirements

1.Infant care.

a.Environment and interactions.

(1)A group child care serving children from birth to twelve months shall provide an environment which protects the children from physical harm.

(2)The provider shall ensure that each infant receives positive stimulation and verbal interaction with a staff member responsible for caring for or teaching children, or emergency designee, such as being held, rocked, talked with, or sung to.

(3)The staff members responsible for caring for or teaching children, or emergency designee, shall respond promptly to comfort an infant's or toddler's physical and emotional distress.

(a)Especially when indicated by crying or due to conditions such as hunger, fatigue, wet or soiled diapers, fear, teething, or illness; and (b)Through positive actions such as feeding, diapering, holding, touching, smiling, talking, singing, or eye contact.

(4)The provider shall ensure that infants have frequent and extended opportunities during each day for freedom of movement, including creeping or crawling in a safe, clean, open, and uncluttered area.

(5)Staff members responsible for caring for or teaching children shall take children outdoors or to other areas within the group child care for a part of each day to provide some change of physical surroundings and to interact with other children.

(6)The provider shall ensure that infants are not shaken or jostled.

(7)The provider shall ensure that low chairs and tables, high chairs with trays, or other age-appropriate seating systems are provided for mealtime for infants no longer being held for feeding. High chairs, if used, must have a wide base and a safety strap.

(8)The provider shall ensure that thermometers, pacifiers, teething toys, and similar objects are cleaned and sanitized between uses. Pacifiers may not be shared.

b.Feeding.

(1)The provider shall ensure that infants are provided developmentally appropriate nutritious foods. Only breast milk or iron-fortified infant formula may be fed to infants less than six months of age, unless otherwise instructed by the infant's parent or medical provider in writing.

(2)The provider shall ensure that infants are fed only the specific brand of iron-fortified infant formula requested by the parent. Staff members shall use brand-specific mixing instructions unless alternative mixing instructions are directed by a child's medical provider in writing.

(3)The provider shall ensure that mixed formula that has been unrefrigerated more than one hour is discarded.

(4)The provider shall ensure that frozen breast milk is thawed under cool running tap water or in the refrigerator in amounts needed. Unused, thawed breast milk must be discarded or given to the parent within twenty-four hours.

(5)The provider shall ensure that an infant is not fed by propping a bottle.

(6)The provider shall ensure that cereal and other nonliquids or suspensions are only fed to an infant through a bottle on the written orders of the child's medical provider.

(7)The provider shall ensure that a staff member responsible for caring for or teaching children is within sight and hearing range of an infant during the infant's feeding or eating process.

c.Diapering.

(1)The provider shall ensure that there is a designated cleanable diapering area, located separately from food preparation and serving areas in the group child care if children requiring diapering are in care.

(2)The provider shall ensure that diapers are changed promptly when needed and in a sanitary manner.

(3)Diapers must be changed on a nonporous surface area which must be cleaned and disinfected after each diapering.

(4)The provider shall ensure that soiled or wet diapers are stored in a sanitary, covered container separate from other garbage and waste until removed from the group child care.

d.Sleeping.

(1)The provider shall ensure that infants are placed on their back initially when sleeping to lower the risk of sudden infant death syndrome, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise.

The infant's face must remain uncovered when sleeping.

(2)The provider shall ensure that infants sleep in a crib with a firm mattress or in a portable crib with the manufacturer's pad that meets consumer product safety commission standards.

(3)The provider shall ensure that if an infant falls asleep while not in a crib or portable crib, the infant must be moved immediately to a crib or portable crib, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise.

(4)Water beds, adult beds, sofas, pillows, soft mattresses, and other soft surfaces are prohibited as infant sleeping surfaces.

(5)The provider shall ensure that all items are removed from and that no toys or objects are hung over or attached to the crib or portable crib when an infant is sleeping or preparing to sleep. With written parental permission, the provider may place one individual infant blanket or sleep sack, a pacifier, and a security item that does not pose a risk of suffocation to the infant in the crib or portable crib while an infant is sleeping or preparing to sleep.

(6)A staff member shall check on sleeping infants regularly and have a monitor in the room with the sleeping infants, unless a staff member is in the room with the infants while the infants are sleeping.

2.Night care.

a.Any group child care offering night care shall provide program modifications for the needs of children and their parents during the night.

b.In consultation with parents, special attention must be given by the staff member responsible for caring for or teaching children to provide a transition into this type of care, appropriate to the child's needs.

c.The provider shall encourage parents to leave their children in care or pick them up before and after their normal sleeping period when practical, to ensure minimal disturbance of the child during sleep, with consideration given to the parents' work schedule.

d.The provider shall ensure that children under the age of six are supervised directly when bathing.

e.The provider shall ensure that comfortable beds, cots, or cribs, complete with a mattress or pad, are available.

f.The provider shall require each child in night care to have night clothing and a toothbrush marked for identification.

g.For a group child care not operating out of an occupied private residence, staff members responsible for caring for or teaching children must be awake and within hearing range during sleeping hours to provide for the needs of children and to respond to an emergency.

3.Drop-in group child care.

a.If a group child care serves drop-in children, schoolchildren, or before-school and afterschool children, the group child care must be sufficiently staffed to effectively handle admission records and explain the policies and procedures of the group child care and to maintain the proper staff member to child ratio.

b.The provider shall ensure that the program reflects the individual needs of the children who are provided drop-in care.

c.The provider shall ensure that records secured comply with all enrollment requirements contained in section 75-03-09-22.

d.The provider shall ensure that admittance procedures provide for a period of individual attention for the child to acquaint the child with the group child care, its equipment, and the staff members.

e.A group child care may not receive drop-in care or part-time children who, when added to the children in regular attendance, cause the group child care to exceed the total number of children for which the group child care is licensed.

4.A provider shall ensure that a group child care serving only drop-in care children complies with this chapter but is exempt from the following provisions:

a.Subsections 4 and 5 of section 75-03-09-20, subsections 6 and 7 of section 75-03-09-21, subdivision f of subsections 2 and 3 of section 75-03-09-22, and subsection 1 of section 75-03-09-25.

b.A group child care serving only drop-in care children is exempt from the outdoor space requirements.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2016; April 1, 2018; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-09-25 Minimum requirements for care of a child with special needs

A provider shall make appropriate accommodations, as required by the Americans with Disabilities Act, to meet the needs of children with special needs. The provider shall receive documentation of the child's special needs from the parent upon the child's enrollment.

1.When a child with special needs is admitted, the group child care supervisor shall consult with the child's parents, and with the parent's permission, the child's source of professional health care, or, when appropriate, other health and professional consultants to gain an understanding of the child's individual needs. The provider shall receive a written health care plan from the child's medical provider or parent with information related to the child's special needs, such as a description of the special needs, definition of the diagnosis, and general information for emergency and required care such as usual medications and procedures.

2.The provider shall ensure staff members responsible for caring for or teaching children receive proper instructions as to the nature of the child's special needs and potential for growth and development.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-09-26 Minimum provisions regarding emergency care for children

The group child care must have written plans to respond to illness and emergencies, including burns, serious injury, and ingestion of poison. The provider shall ensure that parents of enrollees are advised of these plans. Plans must:

1.Establish emergency response procedures;

2.Provide accessible posting of emergency response procedures and require training for all staff members concerning those emergency procedures;

3.Require the availability of at least one working flashlight;

4.Require at least one department-approved first-aid kit maintained and kept in a designated location, inaccessible to children, yet readily accessible to staff members at all times;

5.Provide a working telephone line immediately accessible to staff members with a list of emergency telephone numbers conspicuously posted;

6.Require a plan for responding to minor illnesses and minor accidents when children are in the care of the group child care;

7.Require written permission to dispense medication and proper instructions for the administration of medication obtained from the parent of a child in the group child care who requires medication.

a.Medication prescribed by a medical provider must be accompanied by the medical provider's written instructions as to dosage and storage, and labeled with the child's name and date.

b.Medication must be stored in an area inaccessible to children, and medication stored in a refrigerator must be stored collectively in a spillproof container.

c.The provider shall keep a written record of the administration of medication, including over-the-counter medication, for each child. Records must include the date and time of each administration, the dosage, the name of the staff member administering the medication, and the name of the child. The provider shall include completed medication records in the child's record;

8.Require a supervised temporary isolation area designated for a child who is too ill to remain in the group child care or who has an infectious or contagious disease, with the following procedures being followed when those signs or symptoms are observed:

a.Parents are notified immediately and asked to pick up their child; and

b.First aid is provided and medical care is sought, as necessary;

9.Identify a source of emergency health services available to the group child care, including:

a.A prearranged plan for emergency medical care in which the parent of each enrolled child is advised of the arrangement; and

b.Provisions for emergency transportation, specifically that when a child is to be brought to another place for emergency care, an adult staff member responsible for caring for or teaching children shall remain with the child until medical personnel assume responsibility for the child's care and until the parent or emergency contact is notified;

10.Establish and implement practices in accordance with guidance obtained through consultation with local health unit authorities or authorities from the public health division of the department regarding the exclusion and return of children with infectious or communicable conditions. The provider may obtain this guidance directly or through current published materials regarding exclusion and return to the group child care;

11.Require that the group child care provider inform parents in writing of any first aid administered to their child within twenty-four hours of the incident, and immediately notify parents of any injury which requires emergency care beyond first aid, and require each injury report to be made part of the child's record; and

12.Notify parents, legal custodians, or guardians of a child's exposure to a presumed or confirmed reportable infectious disease.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-09-27 Effect of conviction on licensure and employment

1.An applicant or provider may not be, and a group child care may not employ or allow, in any capacity that involves or permits contact between the emergency designee, group child care supervisor, staff member, or household member and any child cared for by the group child care, a provider, emergency designee, group child care supervisor, staff member, or household member who has been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code

section 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department in the case of a group child care applicant, provider, or group child care supervisor, or household member, or the provider in the case of a staff member or emergency designee, determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

2.The department has determined that the offenses enumerated in subdivisions a and b of subsection 1 have a direct bearing on the applicant's, provider's, emergency designee's, or staff member's ability to serve the public as a provider, emergency designee, or staff member.

3.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; in the case of a class B misdemeanor offense described in North Dakota Century Code section 12.1-17-01.2, domestic violence; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

4.The provider shall establish written policies and engage in practices that conform to those policies to effectively implement this section before the hiring of any staff.

5.A provider shall submit an application for a fingerprint-based criminal history record check at the time of application and within five years from the date of initial approval and at least once every five years thereafter. The provider shall ensure that each staff member submits an application for a fingerprint-based criminal history record check upon hire and within five years from the date of initial approval and at least once every five years thereafter. The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department shall submit a request to the bureau of criminal investigation for a nationwide name-based criminal history record check.

6.Review of fingerprint-based criminal history record check results.

a.If an individual disputes the results of the criminal history record check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the department's memo outlining the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

c.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

April 1, 2024.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2014; April 1, 2016; April 1, 2018; January 1, 2022;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-06.1, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09

N.D. Admin. Code 75-03-09-28 Child abuse and neglect decisions

1.An operator and provider shall ensure safe care for the children receiving services in the provider's group child care. If a confirmed decision made under North Dakota Century Code

chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists, indicating that a child has been abused or neglected by an applicant, operator, provider, emergency designee, staff member, or household member, that decision has a direct bearing on the applicant's, operator's, or provider's ability to serve the public in a capacity involving the provision of child care and the application or license may be denied or revoked. If a confirmed determination under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists indicating that any child has been abused or neglected by the applicant, operator, provider, emergency designee, staff member, or household member, the applicant, operator, or provider shall furnish information satisfactory to the department, from which the department can determine the applicant's, operator's, provider's, emergency designee's, or staff member's ability to provide care that is free of abuse and neglect. The department shall furnish the determination of current ability to the applicant or provider.

2.Each applicant, operator, provider, emergency designee, and staff member in the group child care shall complete, and the provider shall submit to the department, a department-approved authorization for background check form no later than the first day of employment.

3.Household members age twelve and older shall complete, and the provider shall submit to the department, a department-approved authorization for background check form at the time of application or relicensure or upon obtaining residence at the location of the group child care.

January 1, 2023; April 1, 2024.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2014; April 1, 2016; July 1, 2020; January 1, 2022;
• General Authority: NDCC 50-11.1-04, 50-11.1-08

N.D. Admin. Code 75-03-09-29 Correction of violations

1.Within ten business days of mailing or within three days of electronic transmission of the correction order, the provider shall notify the parents of each child receiving care at the group child care that a correction order has been issued. In addition to providing notice to the parent of each child, the provider shall post the correction order in a conspicuous location within the group child care until the violation has been corrected or for five days, whichever is longer.

2.Violations noted in a correction order must be corrected:

a.For a violation of North Dakota Century Code section 50-11.1-02.2; section 75-03-09-04; subdivision i of subsection 1 of section 75-03-09-08; section 75-03-09-09; subsection 4 or 8 of section 75-03-09-12; subsection 3, 6, 9, or 10 of section 75-03-09-18; section 75-03-09-23; or subsection 1 of section 75-03-09-24, within twenty-four hours;

b.For a violation requiring the hiring of a group child care supervisor with those qualifications set forth in section 75-03-09-10, within sixty days;

c.For a violation that requires an inspection by a state fire marshal or local fire department

authority pursuant to section 75-03-09-17, within sixty days;

d.For a violation that requires substantial building remodeling, construction, or change, within sixty days; and

e.For all other violations, within twenty days.

3.All periods for correction begin on the date of receipt of the correction order by the provider.

4.The department may grant an extension of additional time to correct violations, up to a period of one-half the original allowable time allotted. An extension may be granted upon application by the provider and a showing that the need for the extension is created by unforeseeable circumstances and the provider has diligently pursued the correction of the violation.

5.The provider shall furnish written notice to the department upon completion of the required corrective action. The correction order remains in effect until the department confirms the corrections have been made.

6.At the end of the period allowed for correction, the department shall reinspect a group child care that has been issued a correction order. If, upon reinspection, it is determined that the group child care has not corrected a violation identified in the correction order, the department shall mail or send by electronic mail a notice of noncompliance with the correction order to the group child care. The notice must specify the violations not corrected and the penalties assessed in accordance with North Dakota Century Code section 50-11.1-07.5.

7.If a group child care receives more than one correction order in a single year, the department may refer the group child care for consulting services to assist the provider in maintaining compliance and to avoid future corrective action.

8.Refutation process for a correction order:

a.A provider may refute a correction order by submitting a refutation request in writing on the form provided by the department within five calendar days of receiving the correction order.

b.The department shall respond to written refutations within five business days of receipt.

January 1, 2022; April 1, 2024.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2014; April 1, 2018; July 1, 2020;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.1, 50-11.1-07.2, 50-11.1-07.3

N.D. Admin. Code 75-03-09-30 Fiscal sanctions

1.The department shall assess a fiscal sanction of twenty-five dollars per day for each violation of North Dakota Century Code chapter 50-11.1; subdivision i of subsection 1 of section 75-03-09-08; section 75-03-09-09 or 75-03-09-17; subsection 6, 9, or 13 of section 75-03-09-18; or section 75-03-09-19, 75-03-09-23, 75-03-09-27, or 75-03-09-28, for each day the provider has not verified correction after the allowable time for correction of violations ends.

2.The department shall assess a fiscal sanction of fifteen dollars per day for each violation of subsection 2 of section 75-03-09-10; section 75-03-09-12; subsection 2 or subdivision b or d of subsection 4 of section 75-03-09-14; section 75-03-09-15; subsection 3, 5, 8, 10, or 12 of

section 75-03-09-18; subsection 2 or 4 of section 75-03-09-20; subsection 1 of section 75-03-09-21; or subsection 1 or 3 of section 75-03-09-24, for each day that the provider has not verified correction, after the allowable time for correction of violations ends.

3.The department shall assess a fiscal sanction of five dollars per day for each violation of any other provision of this chapter for each day that the provider has not verified correction after the allowable time for correction of violations ends.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013.
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.4, 50-11.1-08

N.D. Admin. Code 75-03-09-31 Appeals

An applicant or provider may appeal a decision to deny or revoke a license by filing a written appeal with the department. The appeal must be postmarked or received by the department within ten calendar days of the applicant's or provider's receipt of written notice of the decision to deny or revoke the license. Upon receipt of a timely appeal, an administrative hearing may be conducted in the manner prescribed by chapter 75-01-03.

History

• History: Effective January 1, 1999; amended effective January 1, 2011.
• Law Implemented: NDCC 50-11.1-08, 50-11.1-10

Chapter 75-03-10 Child Care Center Early Childhood Services

N.D. Admin. Code 75-03-10-01 Purpose

N.D. Admin. Code 75-03-10-02 Authority and objective

N.D. Admin. Code 75-03-10-03 Definitions

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-11.1-02. In addition, as used in this chapter, unless the context or subject matter otherwise requires:

1."Annual" is defined as the provider's licensing year.

2."Application" means all forms the department requires when applying or reapplying for a license.

3."Aquatic activity" means an activity in or on a body of water, either natural or manmade, including rivers, lakes, streams, swimming pools, and water slides.

4."Attendance" means the total number of children present at any one time at the facility.

5."Child with special needs" means a child whose medical providers have determined that the child has or is at risk of chronic physical, developmental, behavioral, or emotional conditions.

6."Director" means the individual responsible for overseeing the general operation and implementing the policies and procedures of the child care center.

7."Emergency designee" means an individual designated by the operator to be a backup staff member for emergency assistance or to provide substitute care.

8."Infant" means a child who is less than twelve months of age.

9."Medication" means any drug or remedy which is taken internally or orally, inhaled, or applied topically.

10."Operator" means the person that has operational responsibility for the early childhood program and premises at which the early childhood service operates.

11."Owner" means the person that has legal responsibility for the early childhood program and premises at which the early childhood service operates.

12."Substitute staff" means staff who work less than thirty-two hours per month and are not regularly scheduled for work.

13."Supervisor" means any individual with the responsibility for organizing and supervising daily child care center activities.

14."Volunteer" means an individual who visits or provides an unpaid service, including a firefighter for fire safety week, a practicum student, or a foster grandparent.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; January 1, 2022; January 1, 2023; April 1, 2024.
• Law Implemented: NDCC 50-11.1-02

N.D. Admin. Code 75-03-10-04 Effect of licensing and display of license

1.The issuance of a license to operate a child care center is evidence of compliance with the standards contained in this chapter and North Dakota Century Code chapter 50-11.1 at the time of licensure.

2.The current license must be displayed prominently in the premises to which it applies.

3.The license must specify the maximum number of children who may be cared for by the center. The child care center may not admit a greater number of children than the license allows.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2024.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04

N.D. Admin. Code 75-03-10-05 Denial or revocation of license

1.A license may be denied or revoked under the terms and conditions of North Dakota Century Code sections 50-11.1-04, 50-11.1-06.2, 50-11.1-09, and 50-11.1-10.

2.If an action to revoke a license is appealed, the operator may continue the operation of the child care center pending the final administrative determination or until the license expires, whichever occurs first; provided, however, that this subsection does not limit the actions the department may take pursuant to North Dakota Century Code sections 50-11.1-07.8 and 50-11.1-12.

3.The department may revoke a license to operate a child care center without first issuing a correction order or simultaneously with a suspension if continued operation would jeopardize the health and safety of the children present or would violate North Dakota Century Code

section 50-11.1-09.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended
• Law Implemented: NDCC 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09, 50-11.1-10

N.D. Admin. Code 75-03-10-06 Provisional license

1.The department may issue a provisional license for the operation of a child care center although the applicant or operator fails to, or is unable to, comply with all applicable standards and rules of the department.

2.A provisional license must:

a.State that the owner has failed to comply with all applicable standards and rules of the department;

b.State the items of noncompliance;

c.Expire at a set date, not to exceed six months from the date of issuance; and

d.Be exchanged for an unrestricted license, which bears an expiration date of one year from the date of issuance of the provisional license, after the applicant or owner demonstrates compliance, satisfactory to the department, with all applicable standards and rules.

3.The department may issue a provisional license only to an applicant or owner who has waived, in writing:

a.The right to a written statement of charges as to the reasons for the denial of an unrestricted license; and

b.The right to an administrative hearing, in the manner provided in North Dakota Century Code chapter 28-32, concerning the nonissuance of an unrestricted license, either at the time of application or during the period of operation under a provisional license.

4.Any provisional license issued must be accompanied by a written statement of violations signed by the department and must be acknowledged in writing by the owner.

5.Subject to the exceptions contained in this section, a provisional license entitles the holder to all rights and privileges afforded the holder of an unrestricted license.

6.The department may not issue a provisional license if the child care center is not in compliance with section 75-03-10-17 or 75-03-10-18.

7.The owner shall display prominently the provisional license and agreement.

8.The owner shall provide parents written notice that the child care center is operating on a provisional license and the basis for the provisional license.

The department may issue a restricted license:

1.To restrict an individual's presence when children are in child care;

2.To restrict a pet or animal from areas accessible to children; or

3.When necessary to inform parents that the owner is licensed, but is restricted to operating in certain rooms or floors or restricted from using specific outdoor space.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2020; April 1, 2024.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-08 75-03-10-06.1. Restricted license.
• History: Effective January 1, 2011; amended effective April 1, 2024.
• Law Implemented: NDCC 50-11.1-04

N.D. Admin. Code 75-03-10-07 Application for and nontransferability of child care center license

An application for a license must be submitted to the department.

1.An applicant shall submit an application for a license to the department. Application must be made in the form and manner prescribed by the department.

2.A license issued under this chapter is nontransferable and is valid only for the premises that are indicated on the license.

3.An application for a new license must be filed by the owner upon change of owner or location.

4.The department may not issue more than one in-home registration, self-declaration, or license per residence. A residence means real property that is typically used as a single family dwelling.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; July 1, 2020; January 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08

N.D. Admin. Code 75-03-10-08 Staffing and group size requirements

1.The number of staff members and their responsibilities must reflect program requirements and individual differences in the needs of the children enrolled, and may permit mixed-age groups, if necessary. Service personnel engaged in housekeeping and food preparation may not be counted in the child to staff ratio for periods of time when they are engaged in housekeeping or food preparation. 2.a.The operator shall ensure that the child care center is sufficiently staffed at all times to meet the child to staff ratios for children in attendance and that no more children than the licensed capacity are served at one time. The minimum ratio of staff members responsible for caring for or teaching children to children in child care centers and maximum group size of children must be:

(1)For children less than eighteen months of age, one staff member may care for four children, a ratio of .25 in decimal form, with a maximum group size of ten children;

(2)For children eighteen months of age to thirty-six months of age, one staff member may care for five children, a ratio of .20 in decimal form, with a maximum group size of fifteen children;

(3)For children three years of age to four years of age, one staff member may care for seven children, a ratio of .14 in decimal form, with a maximum group size of twenty children;

(4)For children four years of age to five years of age, one staff member may care for ten children, a ratio of .10 in decimal form, with a maximum group size of twenty-five children;

(5)For children five years of age to six years of age, one staff member may care for twelve children, a ratio of .08 in decimal form, with a maximum group size of thirty children; and (6)For children six years to twelve years of age, one staff member may care for twenty children, a ratio of .05 in decimal form, with a maximum group size of forty children.

b.When there are mixed-age groups in the same room, the operator shall ensure:

(1)The maximum group size is consistent with the:

(a)Age of the majority of the children; or (b)Highest number of children in the youngest age group;

(2)When children age zero to eighteen months are in the mixed-age group, the maximum group size does not exceed ten children;

(3)The mixed-age group does not exceed the acceptable ratio pursuant to subdivision d of subsection 2 of section 75-03-10-08 and the maximum number of children per staff member pursuant to subdivision a of subsection 2 of section 75-03-10-08; and (4)If the mixed-age group contains the maximum number of children per staff member pursuant to subdivision a of subsection 2 of section 75-03-10-08, the mixed-age group may only contain additional older children.

c.When there is a mixed-age group, the number of children in each age category is multiplied by the corresponding ratio number, converted to decimal form, and carried to the nearest hundredth. To determine the number of staff members responsible for caring for or teaching children necessary at any given time, numbers of staff members for all age categories are added, and any fractional staff member count is then rounded to the next highest whole number whenever the fractional staff member count amounts to thirty-five hundredths or more. If lower than thirty-five hundredths, the fractional amount is dropped.

3.If a child with special needs is admitted to the child care center, the child's developmental age level must be used to determine into which age group the child should be placed for determining child to staff ratios.

4.The operator shall ensure that a child with special needs requiring more than usual care and supervision has adequate care and supervision without adversely affecting care provided to the other children in the child care center.

5.An operator licensed for at least two years may apply for a waiver of the required ratio and maximum group size, not to exceed .25 decimal point per group. The department shall consider demonstration of need, health and safety of children, age of children, number of children, and licensing history of the operator in determining whether to approve the application for a waiver. The department may deny an application for waiver and may revoke a waiver granted under this subsection. The decision to deny or revoke a waiver is not an appealable decision. The department shall review each waiver granted under this subsection annually to determine if the circumstances which led to granting the waiver continue to exist.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2013; April 1, 2014; January 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-11.1-02.1, 50-11.1-04, 50-11.1-08

N.D. Admin. Code 75-03-10-09 Duties of child care center operator

The operator is responsible for compliance with the requirements set forth in this chapter and North Dakota Century Code chapter 50-11.1. The operator shall:

1.Designate a qualified director and shall delegate appropriate duties to the director:

a.The operator shall ensure that the director or a designated acting director is present at the child care center at least sixty percent of the time when the child care center is open;

b.The operator shall ensure that the individual designated as an acting director meets the qualifications of a supervisor and for an ongoing period of more than thirty days meets the qualifications of a director; and

c.The operator shall ensure that when the director and acting director are not present at the center, an individual who meets the qualifications of a supervisor is on duty;

2.Provide an environment that is physically and socially adequate for children;

3.Notify the department of any major changes in the operation, ownership, or governing body of the child care center, including staff member changes;

4.Ensure that liability insurance is carried to insure against bodily injury and property damage for the child care center;

5.Formulate written policies and procedures for the operation of the child care center. Policies must include:

a.Hiring practices and personnel policies for staff members;

b.Methods for obtaining references and employment histories of staff members;

c.Methods of conducting staff member performance evaluations;

d.Children's activities, care, and enrollment;

e.The responsibilities and rights of staff members and parents;

f.An explanation of how accidents and illnesses will be handled;

g.The methods of developmentally appropriate discipline and guidance techniques that are to be used;

h.The process for a parent or staff member to report a complaint, a suspected licensing violation, and suspected child abuse or neglect;

i.The care and safeguarding of personal belongings brought to the child care center by a child or by another on a child's behalf;

j.Procedures for accountability when a child fails to arrive as expected at the child care center; and

k.Transportation procedures, if the operator provides transportation;

6.Maintain records of enrollment, attendance, health, and other required records;

7.May select an emergency designee;

8.Maintain necessary information to verify staff members' qualifications and to ensure safe care for the children in the child care center;

9.Ensure that parents of enrolled children and other interested parties are informed of the goals, policies, procedures, and content of the child care center's program;

10.Ensure that parents of enrolled children:

a.Are advised of the child care center's service fees, operating policies and procedures, location, and the name, address, and telephone number of the operator and the director;

b.Receive written notice of the effective date, duration, scope, and impact of any significant changes in the child care center's services; and

c.Receive notice that they may request written daily reports for their child, including details regarding eating, napping, and diapering;

11.Ensure that the child care center is sufficiently staffed at all times to meet the child to staff ratios for children in attendance and that no more children than the licensed capacity are served at any one time;

12.Ensure that the child care center has sufficient qualified staff members available to substitute for regularly assigned staff who are sick, on leave, or otherwise unable to be on duty;

13.Ensure that there are signed written agreements with the parents of each child that specify the fees to be paid, methods of payment, and policies regarding delinquency of fees;

14.Provide parents with unlimited access and opportunities for parents to observe their children while in care, and provide parents with regular opportunities to meet with staff members responsible for caring for or teaching children before and during enrollment to discuss their children's needs. Providing unlimited access does not prohibit a child care center from locking its doors while children are in care;

15.Provide parents, upon request, with progress reports on their children;

16.Report immediately, as a mandatory reporter, suspected child abuse or neglect as required by North Dakota Century Code section 50-25.1-03;

17.Ensure that staff members responsible for caring for or teaching children under the age of eighteen are supervised by an adult staff member;

18.Meet the qualifications of the director set forth in section 75-03-10-10, if the operator is also the director;

19.Report to the department within twenty-four hours:

a.A death or a serious accident or illness requiring hospitalization of a child while in the care of the child care center or attributable to care received in the child care center;

b.An injury to any child which occurs while the child is in the care of the child care center and which requires medical treatment;

c.Poisonings or errors in the administering of medication;

d.Closures or relocations of the child care center due to emergencies; and

e.Fire that occurs or explosions that occur in or on the premises of the child care center;

20.Ensure that children do not depart from the child care center premises unsupervised, except when the parent and provider consent that an unsupervised departure is safe and appropriate for the age and development of the child. The provider shall obtain written parental consent for the child to leave the child care center premises unsupervised, which must specify the activity, time the child is leaving and length of time the child will be gone, method of transportation, and parental responsibility for the child once the child leaves the child care center premises; and

21.Ensure that each child is released only to the child's parent, legal custodian, guardian, or an individual who has been authorized by the child's parent, legal custodian, or guardian.

April 1, 2018; July 1, 2020; April 1, 2024.

History

• History: Effective December 1, 1981; amended effective July 1, 1984; January 1, 1987; September 1, 1990; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2016;

N.D. Admin. Code 75-03-10-10 Minimum qualifications of child care center director

A director shall:

1.Be an adult of good physical, cognitive, social, and emotional health, and shall use mature judgment when making decisions impacting the quality of child care;

2.Possess knowledge or experience in management and interpersonal relationships;

3.Hold at least one of the following qualifications, in addition to those set out in subsection 1:

a.A bachelor's degree in the field of early childhood education or child development;

b.A bachelor's degree with at least six months of experience in a child care center or similar setting and one of the following:

(1)Eight semester hours or twelve quarter hours of department-approved early childhood education or child development;

(3)A director's credential approved by the department;

c.An associate's degree in the field of early childhood education or child development with at least six months of experience in a child care center or similar setting;

d.An associate's degree with at least one year of experience in a child care center or similar setting and one of the following:

(1)Eight semester hours or twelve quarter hours of department-approved early childhood education or child development;

(3)A director's credential approved by the department;

e.A teaching certificate in elementary education with at least six months of experience in a child care center or similar setting;

f.A current certification as a child development associate or successful completion of a department-approved diploma program with emphasis in early childhood or child care, with at least one year of experience in a child care center or similar setting; or

g.Certification from a Montessori teacher training program with at least one year of experience in a Montessori school, child care center, or similar setting and at least one of the following:

(1)Eight semester hours or twelve quarter hours of department-approved child development or early childhood education;

(3)A director's credential approved by the department; and

4.Certify annual completion of a minimum of thirteen hours of department-approved training related to child care, including one hour on safe sleep prior to the director providing care to infants and one hour on mandated reporter of suspected child abuse or neglect.. A department-approved basic child care course must be completed within ninety days of employment. The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of safe sleep and mandated reporter annual training.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; September 1, 1990; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2016; April 1, 2018; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-10-11 Duties of child care center director

The director, in collaboration with the operator, shall:

1.Plan, supervise, and conduct daily activities in the child care center;

2.Maintain required enrollment, attendance, health, and other required records;

3.Screen, schedule, supervise, and be responsible for the conduct of staff members while staff members are on duty; and

4.Perform other duties as delegated by the operator.

A supervisor shall:

1.Be an adult of good physical, cognitive, social, and emotional health and shall use mature judgment when making decisions impacting the quality of child care;

2.Have a demonstrated ability in working with children;

3.Hold at least one of the following qualifications:

a.An associate degree in the field of early childhood development;

b.Current certification as a child development associate or successful completion of a department-approved diploma program with an emphasis in early childhood or child care;

c.Certification from a Montessori teacher training program; or

d.A high school diploma or high school equivalency with at least one year of experience in a child care or similar setting;

4.Possess knowledge and experience in building and maintaining interpersonal relationships;

5.Successfully complete a department-approved basic child care course within ninety days of employment; and

6.Successfully complete a minimum of thirteen hours of department-approved training related to child care each year, and annually thereafter. The supervisor shall certify completion of one hour of department-approved safe sleep training before providing care to infants and one hour on mandated reporter of suspected child abuse or neglect. The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of safe sleep and mandated reporter annual training.

The supervisor, in collaboration with the director, shall:

1.Communicate with parents about the individual needs of their children, including any special concerns the parents may have;

2.Plan daily and weekly schedules of activities and make those plans available to parents; and

3.Ensure that program policies are adhered to in the classes and groups assigned to the supervisor.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended 75-03-10-11.1. Minimum qualifications of child care center supervisor.
• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2016; 75-03-10-11.2. Duties of the child care center supervisor.
• History: Effective January 1, 2011.

N.D. Admin. Code 75-03-10-12 Minimum qualifications for all staff members responsible for caring for or teaching children

1.Staff members:

a.Shall be at least fourteen years of age, provided that each staff member under age sixteen has written parental consent for employment as a staff member, and the employment arrangements comply with North Dakota Century Code chapter 34-07;

b.Shall be individuals of good physical, cognitive, social, and emotional health and shall use mature judgment when making decisions impacting the quality of child care;

c.Shall certify completion of a department-approved basic child care course within ninety days of employment;

d.Shall be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department;

e.Shall be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in pediatric first aid by a program approved by the department;

f.Shall certify the staff member's own successful completion of the department-approved training related to child care each year, and annually thereafter, as set forth below:

(1)If working thirty or more hours per week, certify thirteen hours of department-approved training annually;

(2)If working fewer than thirty hours and more than twenty hours per week, certify eleven hours of department-approved training annually;

(3)If working fewer than twenty hours and at least ten hours per week, certify nine hours of department-approved training annually;

(4)If working fewer than ten hours per week, certify seven hours of department-approved training annually;

(5)Completion of one hour of department-approved safe sleep prior to the staff member providing care to infants;

(6)Completion of one hour of department-approved mandated reporter of suspected child abuse or neglect training;

(7)The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of safe sleep and mandated reporter annual training; and (8)Substitute staff and emergency designees are exempt from the annual training requirement with the exception of paragraphs 5 and 6; and

g.Shall not place a child in an environment that would be harmful or dangerous to the child's physical, cognitive, social, or emotional health;

2.Receive orientation to the child care center during the first week of employment. The director shall document orientation of each staff member responsible for caring for or teaching children on an orientation certification form. The orientation must address the following:

a.Emergency health, fire, and safety procedures for the child care center;

b.The importance of handwashing and sanitation procedures to reduce the spread of infection and disease among children and staff members;

c.Any special health or nutrition instructions of the children assigned to the staff member;

d.Any special needs of the children assigned to the staff member;

e.The planned program of activities at the child care center;

f.Rules and policies of the child care center; and

g.Child abuse and neglect reporting laws; and

3.Ensure safe care for children under supervision. Supervision means a staff member responsible for caring for or teaching children being within sight or hearing range of an infant, toddler, or preschooler at all times so the staff member is capable of intervening to protect the health and safety of the child. For the school-age child, it means a staff member responsible for caring for or teaching children being available for assistance and care so that the child's health and safety is protected.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; April 1, 2018; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-10-13 Minimum health requirements for all applicants, operators, and staff members

1.If the physical, cognitive, social, or emotional health capabilities of an applicant, operator, or staff member appears questionable, the department may require the individual to present evidence of the individual's ability to provide the required care based on a formal evaluation.

The department is not responsible for the costs of any required evaluation.

2.A staff member may not use or be under the influence of any illegal drugs or alcoholic beverages while caring for children.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-10-14 Minimum qualifications for volunteers

If a volunteer is providing child care, the volunteer shall meet the qualifications of a staff member responsible for caring for or teaching children and shall receive orientation for all assigned tasks.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-10-15 Minimum standards for provision of transportation

1.The operator shall establish a written policy governing the transportation of children to and from the child care center, if the child care center provides transportation. This policy must specify who is to provide transportation and how parental permission is to be obtained for activities which occur outside the child care center. If the child care center provides transportation, the operator shall inform the parents of any insurance coverage on the vehicles. Any vehicle used for transporting children must be in safe operating condition and in compliance with state and local laws.

2.When transportation is provided by a child care center, children must be protected by adequate staff member supervision, safety precautions, and liability insurance.

a.Staffing requirements must be maintained to assure the safety of children while being transported.

b.A child may not be left unattended in a vehicle.

3.Children must be instructed in safe transportation conduct as appropriate to their age and stage of development.

4.The driver must be eighteen years of age or older and shall comply with all relevant federal, state, and local laws, including child restraint system laws.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-10-16 Minimum emergency evacuation and disaster plan

1.The operator shall establish and post an emergency disaster plan for the safety of the children in care. The operator shall develop written disaster plans in cooperation with local emergency management agencies. The plan must include:

a.Emergency procedures, including the availability of emergency food, water, and first-aid supplies;

b.Procedures for evacuation, relocation, shelter-in-place, and lockdown;

c.Communications and reunification with families;

d.Continuity of operations; and

e.Accommodations for infants, toddlers, children with disabilities, and children with chronic medical conditions.

2.Fire and emergency evacuation drills must be performed monthly.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2018; January 1, 2022.

N.D. Admin. Code 75-03-10-17 Fire inspections

1.The operator shall ensure that annual fire inspections are completed by local or state fire authorities. The operator shall correct or have corrected any code violations noted by the fire inspector and shall file reports of the inspections and any corrections with the department.

2.The operator shall ensure that the child care center is equipped with sufficient smoke detectors and fire extinguishers, as recommended by the local fire department or state fire marshal.

3.The operator shall provide:

a.The fire inspector's written statement of compliance with the local fire code, if there is one; or

b.The fire inspector's written statement that the child care center has been inspected and that the inspector is satisfied that the child care center meets minimum fire and safety standards.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2020; April 1, 2024.

N.D. Admin. Code 75-03-10-18 Minimum sanitation and safety requirements

1.The operator shall ensure that in child care centers licensed for more than thirty children, where meals are prepared, comply with the public health division of the department child care food service establishment license requirements pursuant to North Dakota Century Code

chapter 23-09. If only snacks or occasional cooking projects are prepared, an inspection by the public health division of the department is not required. The operator shall correct any code violations noted by the health inspector and shall file reports of the inspections and corrections made with the department.

2.The operator shall ensure that the child care center bathroom sinks, toilets, tables, chairs, and floors are cleaned daily.

3.The operator shall ensure that beds, cots, mats, or cribs, complete with a mattress or pad, are available and the operator shall ensure:

a.Pillows and mattresses have clean coverings.

b.Sheets and pillowcases are changed as often as necessary for cleanliness and hygiene, at least weekly.

c.If beds, cots, mats, or cribs are used by different children, sheets and pillowcases are laundered before use by other children.

d.Cots, mats, and cribs are cleaned as often as necessary for cleanliness and hygiene, at least weekly, and after each use if used by different children.

e.That cots, mats, and cribs are single occupancy.

f.Each bed, cot, or mat has sufficient blankets available.

g.That aisles between beds, cots, mats, cribs, and portable cribs are a minimum space of two feet [60.96 centimeters] and are kept free of all obstructions while beds, cots, mats, cribs, and portable cribs are occupied.

h.Provide separate storage for personal blankets or coverings.

i.That mattresses and sheets are properly fitted.

4.The operator shall ensure that the child care center's building, grounds, and equipment are located, cleaned, and maintained to protect the health and safety of children. The operator shall establish routine maintenance and cleaning procedures to protect the health of the children and the staff members.

5.Staff members and children shall wash their hands, according to recommendations by the federal centers for disease control and prevention, before preparing or serving meals, after diapering, after using toilet facilities, and after any other procedure that may involve contact with bodily fluids. Hand soap and sanitary hand-drying equipment, single-use or individually designated cloth towels, or paper towels must be available at each sink.

6.The operator shall ensure that indoor and outdoor equipment, toys, and supplies are safe, strong, nontoxic, and in good repair. The operator shall ensure that all toys and equipment are kept clean and in sanitary condition. Books and other toys are not readily cleanable must be sanitized as much as possible without damaging the integrity or educational value of the item.

7.The operator shall ensure that the child care center ground areas are free from accumulations of refuse, standing water, unprotected wells, debris, flammable material, and other health and safety hazards.

8.The operator shall ensure that the garbage stored outside is kept away from areas used by children and is kept in containers with lids. Open burning is not permitted. The operator shall keep indoor garbage in covered containers. The operator may allow paper waste to be kept in open waste containers.

9.The operator shall ensure that exterior play areas in close proximity to busy streets and other unsafe areas are contained or fenced, or have natural barriers to restrict children from those unsafe areas. Outdoor play areas must be inspected daily for hazards and necessary maintenance.

10.The operator shall ensure that potential hazards, such as noncovered electrical outlets, guns, household cleaning chemicals, uninsulated wires, medicines, and poisonous plants are not accessible to children. The operator shall keep guns and ammunition in locked storage, each separate from the other, or shall use trigger locks. The operator shall ensure other weapons and dangerous sporting equipment, such as bows and arrows, are not accessible to children.

11.The operator shall ensure that indoor floors and steps are not slippery and do not have splinters. The operator shall ensure that steps and walkways are kept free from accumulations of water, ice, snow, or debris.

12.The operator shall ensure that elevated areas, including stairs and porches, have railings and safety gates where necessary to prevent falls.

13.The operator shall take steps to keep the child care center free of insects and rodents.

Chemicals for insect and rodent control may not be applied in areas accessible to children when children are present in the child care center. Insect repellant may be applied outdoors on children with written parental permission.

14.The operator shall ensure that exit doorways and pathways are not blocked.

15.If the child care center is providing care to children in wheelchairs, the operator shall ensure doors have sufficient width and construction to accommodate any children in wheelchairs who are receiving care at the child care center.

16.The operator shall ensure that light bulbs in areas used by children are properly shielded or shatterproof.

17.The operator shall ensure that combustible materials are kept away from light bulbs and other heat sources.

18.The operator shall ensure adequate heating, ventilation, humidity, and lighting for the comfort and protection of the health of the children. All heating devices must be approved by the local fire authorities. During the heating season when the child care center is occupied by children, the room temperature may not be less than sixty-five degrees Fahrenheit [18 degrees Celsius] and not more than seventy-five degrees Fahrenheit [24 degrees Celsius].

19.The operator shall ensure that all child care center buildings erected before January 1, 1970, which contain painted surfaces in a peeling, flaking, chipped, or chewed condition in any area where children may be present, have painted surfaces repainted or shall submit evidence that the paints or finishes do not contain hazardous levels of lead-bearing substances. For purposes of this chapter, "hazardous levels of lead-bearing substances" means any paint, varnish, lacquer, putty, plaster, or similar coating of structural material which contains lead or its compounds in excess of seven-tenths of one milligram per square centimeter, or in excess of five-tenths of one percent in the dried film or coating, when measured by a lead-detecting instrument approved by the department of environmental quality.

20.The operator shall ensure that personal items including combs, pacifiers, and toothbrushes are individually identified and stored in a sanitary manner.

21.Pets and animals.

a.The operator shall ensure that only small pets that are contained in an aquarium or other approved enclosed container, cats, and dogs are present in areas occupied by children.

Wire cages are not approved containers. Other indoor pets and animals must be restricted by a solid barrier and must not be accessible to children. The department may restrict any pet or animal from the premises that may pose a risk to children or may approve additional pets that do not pose a health or safety risk to children.

b.The operator shall ensure that animals are maintained in good health and appropriately immunized. Pet immunizations must be documented with a current certificate from a veterinarian.

c.The operator shall ensure parents are aware of the presence of pets and animals in the child care center.

d.The operator shall notify parents immediately if a child is bitten or scratched and skin is broken.

e.A staff member responsible for caring for or teaching children shall supervise closely all contact between pets or animals and children. The staff member shall remove the pet or animal immediately if the pet or animal shows signs of distress or the child shows signs of treating the pet or animal inappropriately.

f.The operator shall ensure that pets, pet feeding dishes, cages, and litter boxes are not present in any food preparation, food storage, or serving areas. The operator shall ensure that pet and animal feeding dishes and litter boxes are not placed in areas accessible to children.

g.The operator shall ensure that indoor and outdoor areas accessible to children are free of animal excrement.

h.The operator shall ensure that the child care center is in compliance with all applicable state and local ordinances regarding the number, type, and health status of pets or animals.

22.Staff members responsible for caring for or teaching children shall strictly supervise wading pools used by the child care center and shall empty, clean, and sanitize wading pools daily.

23.All swimming pools used by children must be approved annually by the local health unit.

24.Aquatic activities:

a.The operator shall have policies that ensure the health and safety of children in care while participating in aquatic activities, including types of aquatic activities the child care center may participate in, staff-to-child ratios appropriate to the ages and swimming ability of children participating in aquatic activities, and additional safety precautions to be taken.

b.The operator may not permit any child to participate in an aquatic activity without written parental permission, which includes parent disclosure of the child's swimming ability.

25.Water supply:

a.The operator shall ensure that the child care center has a drinking supply from an approved community water system or from a source tested and approved annually by the department of environmental quality.

b.Drinking water must be easily accessible to the children and must be provided by either an angle-jet drinking fountain with mouthguard or by a running water supply with individual, single-serve drinking cups.

c.The child care center must have hot and cold running water. The water in the faucets used by children may not exceed one hundred twenty degrees Fahrenheit [49.2 degrees Celsius].

26.Toilet and sink facilities:

a.The operator shall provide toilet and sink facilities which are easily accessible to the areas used by the children and staff members.

b.Toilets must be located in rooms separated from those used for cooking, eating, and sleeping. A minimum of one flush toilet must be provided for each fifteen children, excluding those children who are not toilet trained.

c.The operator shall ensure that separate restrooms are provided for boys and girls six years of age and over, and partitions are installed to separate toilets in these restrooms.

d.The operator shall provide child-sized toilet adapters, training chairs, or potty chairs for use by children who require them. Training chairs must be emptied promptly and thoroughly cleaned and sanitized after each use.

e.The operator shall provide at least one handwashing sink per toilet room facility or diapering area.

f.The operator shall provide safe step stools to allow children to use standard-size toilets and sinks or the operator shall ensure the availability of child-size toilets and sinks.

27.The operator of a child care center not on a municipal or public water supply or wastewater disposal system shall ensure the child care center's sewage and wastewater system has been approved by the department of environmental quality.

28.Laundry:

a.If the child care center provides laundry service for common use linens, towels, or blankets, it shall have adequate space and equipment for safe and effective operation.

b.The operator shall ensure that soiled linens are placed in closed containers or hampers during storage and transportation.

c.The operator shall ensure that in all new or extensively remodeled child care centers, the handling, sorting, or washing of soiled linens or blankets takes place in a designated area that is separated by a permanent partition from food preparation, serving, and kitchen areas.

d.The operator shall ensure that in an existing child care center where physical separation of laundry and kitchen areas is impractical, procedures are developed that prohibit the washing or transportation of laundry while meals are being prepared or served.

e.The operator shall ensure that sorting of laundry is not allowed in food preparation, serving, or kitchen areas.

f.If the child care center provides laundry service for common use linens, towels, or blankets, or if different children's clothing, towels, or blankets are laundered together, the operator shall ensure that water temperature must be greater than one hundred forty degrees Fahrenheit [60 degrees Celsius].

g.The operator shall ensure that if the water temperature is less than one hundred forty degrees Fahrenheit [60 degrees Celsius], bleach or sanitizer is used in the laundry process during the rinse cycle or the child care center shall use a clothes dryer that reaches a temperature of at least one hundred forty degrees Fahrenheit [60 degrees Celsius].

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2016; April 1, 2018; July 1, 2020;

N.D. Admin. Code 75-03-10-19 Minimum requirements regarding space and lighting

1.Each operator shall provide adequate indoor and outdoor space for the daily activities of all children within the licensed capacity of the child care center.

2.Adequate space must include a minimum of thirty-five square feet [3.25 square meters] of space per child indoors and a minimum of seventy-five square feet [6.97 square meters] of play space per child outdoors. Indoor space considered must exclude bathrooms, pantries, passageways leading to outdoor exits, areas occupied by furniture or appliances that children should not play on or under, and space children are not permitted to occupy. If available outdoor play space does not accommodate the licensed capacity of the child care center at one time, the total appropriate outdoor play space available must not be less than what is required for the number of children in the largest class or group of the center multiplied by seventy-five square feet [6.97 square meters]. Operators who provide seventy-five square feet [6.97 square meters] of separate indoor recreation space per child for the largest class or group are exempt from the outdoor space requirement. The child care center operator shall prepare a written schedule of outdoor or separate indoor recreation space playtime which limits use of the play area to its capacity, giving every child an opportunity to play daily.

3.The child care center must be properly lighted. If the lighting of the child care center appears questionable, the department may require the operator to obtain additional lights so that a minimum of sixty-five foot-candles of light is used in the areas generally used for children's activities.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2014.

N.D. Admin. Code 75-03-10-20 Program requirements

1.The child care center operator shall have a program of daily individual or small group activities appropriate to the ages and needs of the children in the child care center. The program must include activities which foster sound social, cognitive, emotional, and physical growth, and the program must be developed with consideration of parental input. A written daily routine including mealtimes, rest times, planned developmentally appropriate activities, free play, and outside time must be available to parents. The daily routine must be flexible enough to allow for spontaneous activity as appropriate.

2.The program must be flexible and subject to modification for individual child differences.

3.The program must be written and varied to promote the physical and emotional well-being of the children, to encourage the acquisition of information and knowledge, and to foster the development of language skills, concepts, self-discipline, and problem-solving activities. The program must describe how the activities planned meet the children's developmental needs, including the special needs of children. The written program must be made available to parents.

4.The program must include firsthand experiences for children to learn about the world in which they live.

5.Learning experiences must be conducted in consultation with parents to ensure harmony with the lifestyle and cultural background of the children.

6.The program must provide a balance of quiet and active indoor and outdoor group and individual activities. A time for supervised child-initiated and self-selected activity must be established.

7.If children are allowed to assist in any food preparation, the activity must be limited to use of equipment and appliances that do not present a safety hazard. Children may not be allowed in the kitchen or laundry area unsupervised.

8.A variety of games, toys, books, crafts, and other activities and materials must be provided to enhance the child's intellectual and social development and to broaden the child's life experience. Each child care center must have enough play materials and equipment so, that at any one time, each child in attendance may be involved individually or as a group.

9.The cultural diversity of the children must be reflected in the program through incorporation of their language, food, celebration, and lifestyles, if appropriate.

10.Equipment and furniture must be durable and safe and must be appropriately adapted for children's use.

11.Sufficient space accessible to children must be provided for each child's personal belongings.

12.The child care center shall supplement, augment, and reinforce the child's activities at home and, where applicable, at school.

13.At the time of enrollment, the director or supervisor shall discuss with the parents the children's habits, activities, and schedules while at home and in school and the parents' special concerns about their past and future behavior and development. The schedule and activities must be designed to complement and supplement the children's experiences at home and in school.

14.Staff members responsible for caring for or teaching children shall encourage parents to visit the facility, observe, and participate in the care of their children.

15.The director or supervisor shall contact parents to offer meaningful opportunities to participate in general program policymaking.

16.The child care center shall stress personal hygiene practices appropriate for a child's age and development.

17.The director or supervisor shall contact parents to exchange information concerning the child and any concerns about the health, development, or behavior of the child. These concerns must be communicated to the parent promptly and directly.

18.Each child's cultural and ethnic background and primary language or dialect must be respected by the staff members.

19.Each child care center shall have a designated area where a child can sit quietly or lie down to rest. There must be sufficient cots or sleeping mats to allow each child in attendance an individual napping space. The floor may be used only when the floor is carpeted or padded, warm, and free from drafts, and when individual blankets or coverings are used. The child care center shall set napping schedules for children according to the children's ages and needs. For children unable to sleep, the director or supervisor shall provide time and space for quiet play.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011.

N.D. Admin. Code 75-03-10-21 Minimum standards for food and nutrition

1.When the operator is responsible for providing food to children, the food supplied must meet United States department of agriculture standards and must be properly prepared, sufficient in amount, nutritious, varied according to diets of the children enrolled, and served at appropriate hours. Food that is prepared, served, or stored in a child care center must be treated in a sanitary and safe manner with sanitary and safe equipment.

2.When parents bring sack lunches for their children, the operator may supplement lunches, as necessary, to provide nutritious and sufficient amounts of food for children, and shall provide adequate and appropriate refrigeration and storage as required.

3.Children in care for more than three hours shall receive either a snack or meal, whichever is appropriate to that time of the day.

4.The operator shall serve nutritious meals to children in care during any normal mealtime hour.

5.The operator shall serve snacks to children in care in afterschool child care center programs.

6.When the operator is responsible for providing food to children, menus must be prepared on a weekly or daily basis and made available to the parents, the department, and other appropriate individuals.

7.The operator shall consider information provided by the children's parents as to the children's eating habits, food preferences, or special needs in creating the feeding schedules and in tailoring menus.

8.The operator shall serve snacks and meals to children in a manner commensurate with their age, using appropriate foods, portions, dishes, and eating utensils.

9.The operator or staff member may encourage children to eat the food served, but the operator or staff member may not coerce or force-feed children.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2020; April 1, 2024.
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07, 50-11.1-08

N.D. Admin. Code 75-03-10-22 Records

1.The operator shall keep a copy of this chapter on the premises of the child care center and shall make it available to staff members at all times.

2.The operator shall maintain the following records:

a.The child's full name, birth date, and current home address;

b.Legal names of the child's parents and current business and personal telephone numbers where they can be reached;

c.Names and telephone numbers of individuals who may assume responsibility for the child if the individuals legally responsible for the child cannot be reached immediately in an emergency;

d.A written statement from the parents authorizing emergency medical care;

e.Names and telephone numbers of individuals authorized to take the child from the child care center;

f.Verification that the child has received all immunizations appropriate for the child's age, as prescribed by the public health division of the department, or have on file a document stating that the child is medically exempt or exempt from immunizations based on religious, philosophical, or moral beliefs; and

g.A current health assessment or a health assessment statement completed by the parent, obtained at the time of initial enrollment of the child which must indicate any special precautions for diet, medication, or activity. This assessment must be completed annually.

3.The operator shall record and verify the identification of the child through official documentation such as a certified birth certificate, certified school records, passport, or any other documentary evidence the operator considers appropriate proof of identity and shall comply with North Dakota Century Code section 12-60-26.

4.The operator shall ensure that all records, photographs, and information maintained with respect to children receiving child care services are kept confidential, and that access is limited to staff members, the parents of each child, and to the following, unless otherwise protected by law:

a.The department representatives;

b.Individuals having a definite interest in the well-being of the children concerned and who, in the judgment of the department, are in a position to serve the child's interests should that be necessary; and

c.Individuals who possess a written authorization from the child's parent. The child care center shall have a release of information form available and shall have the form signed prior to the release of information.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2022; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-10-23 Discipline - Punishment prohibited

Disregard of any of the following disciplinary rules or any disciplinary measure resulting in physical or emotional injury, or neglect, or abuse, to any child is grounds for license denial or revocation:

1.The child care center must have a written policy regarding the discipline of children. The operator shall provide the policy to, and discuss the policy with, the staff members responsible for caring for or teaching children before the child care center begins operation or before staff members begin working with children.

2.Discipline must be constructive or educational in nature and may include diversion, separation from the problem situation, talking with the child about the situation, praising appropriate behavior, or gentle physical restraint, such as holding. A child may not be subjected to physical harm, fear, or humiliation.

3.Authority to discipline may not be delegated to children nor may discipline be administered by children.

4.Separation, when used as discipline, must be appropriate to the child's development and circumstances. The child must be in a safe, lighted, well-ventilated room within sight or hearing range of an adult staff member responsible for caring for or teaching children. A staff member may not isolate a child in a locked room or closet.

5.A child may not be punished for lapses in toilet training.

6.A staff member may not use verbal abuse or make derogatory remarks about a child, or a child's family, race, or religion when addressing the child or in the presence of a child.

7.A staff member may not use profane, threatening, unduly loud, or abusive language in the presence of a child.

8.A staff member may not force-feed a child or coerce a child to eat, unless medically prescribed and administered under a medical provider's care.

9.A staff member may not use deprivation of meals or snacks as a form of discipline or punishment.

10.A staff member or any other adult in or at the child care center may not kick, punch, spank, shake, pinch, bite, roughly handle, strike, mechanically restrain, or physically maltreat a child.

11.A staff member may not force a child to ingest substances that would cause pain or discomfort, for example, placing soap in a child's mouth to deter the child from biting other children.

12.A staff member may not withhold active play from a child as a form of discipline or punishment, beyond a brief period of separation.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-10-24 Specialized types of care and minimum requirements

1.Infant care.

a.Environment and interactions.

(1)A child care center serving children from birth to twelve months shall provide an environment which protects the children from physical harm.

(2)The operator shall ensure that each infant receives positive stimulation and verbal interaction with a staff member responsible for caring for or teaching children or emergency designee such as the staff member or emergency designee holding, rocking, talking with, or singing to the child.

(3)A staff member shall respond to comfort an infant's or toddler's physical and emotional distress:

(a)Especially when indicated by crying or due to conditions such as hunger, fatigue, wet or soiled diapers, fear, teething, or illness; and (b)Through positive actions such as feeding, diapering, holding, touching, smiling, talking, singing, or eye contact.

(4)The operator shall ensure that infants have frequent and extended opportunities during each day for freedom of movement, including creeping or crawling in a safe, clean, open, uncluttered area.

(5)Staff members responsible for caring for or teaching children shall take children outdoors or to other areas within the child care center for a part of each day to provide children with some change of physical surroundings and to allow them to interact with other children.

(6)The operator shall ensure that low chairs and tables, high chairs with trays, or other age-appropriate seating systems are provided for mealtime for infants no longer being held for feeding. High chairs, if used, must have a wide base and a safety strap.

(7)The operator shall ensure that infants are not shaken or jostled.

(8)The operator shall ensure that thermometers, pacifiers, teething toys, and similar objects are cleaned and sanitized between uses. Pacifiers may not be shared.

b.Feeding.

(1)The operator shall ensure that infants are provided developmentally appropriate nutritious foods. Only breast milk or iron-fortified infant formula may be fed to infants less than six months of age, unless otherwise instructed in writing by the infant's parent or medical provider in writing.

(2)The operator shall ensure that infants are fed only the specific brand of iron-fortified infant formula requested by the parent. Staff members shall use brand-specific mixing instructions unless alternative mixing instructions are directed by a child's medical provider in writing.

(3)The operator shall ensure that mixed formula that has been unrefrigerated more than one hour is discarded.

(4)The operator shall ensure that frozen breast milk is thawed under cool running tap water, or in the refrigerator in amounts needed. Unused, thawed breast milk must be discarded or given to the parent within twenty-four hours.

(5)The operator shall ensure that an infant is not fed by propping the bottle.

(6)The operator shall ensure that cereal and other nonliquids or suspensions are only fed to an infant through a bottle on the written orders of the child's medical provider.

(7)The operator shall ensure that staff members responsible for caring for or teaching children, emergency designee, or substitute staff are within sight and hearing range of an infant during the infant's feeding or eating process.

c.Diapering.

(1)The operator shall ensure that there is a designated cleanable diapering area, located separately from food preparation and serving areas in the child care center if children requiring diapering are in care.

(2)The operator shall ensure that diapers are changed promptly and in a sanitary manner when needed.

(3)Diapers must be changed on a nonporous surface area which must be cleaned and disinfected after each diapering.

(4)The operator shall ensure that soiled or wet diapers are stored in a sanitary, covered container, separate from other garbage and waste until removed from the child care center.

d.Sleeping.

(1)The operator shall ensure that infants are placed on their back initially when sleeping to lower the risk of sudden infant death syndrome, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise.

The infant's face must remain uncovered when sleeping.

(2)The operator shall ensure that infants sleep in a crib with a firm mattress or in a portable crib with the manufacturer's pad that meets consumer product safety commission standards.

(3)The operator shall ensure that if an infant falls asleep while not in a crib, the infant must be moved immediately to a crib or portable crib, unless the infant's parent has provided a note from the infant's medical provider specifying otherwise.

(4)Water beds, adult beds, sofas, pillows, soft mattresses, and other soft surfaces are prohibited as infant sleeping surfaces.

(5)The operator shall ensure that all items are removed from and that no toys or objects are hung over or attached to the crib or portable crib when an infant is sleeping or preparing to sleep. With written parental permission, the provider may place one individual infant blanket or sleep sack, a pacifier, and a security item that does not pose a risk of suffocation to the infant in the crib or portable crib while the infant is sleeping or preparing to sleep.

(6)The operator shall ensure that a staff member responsible for caring for or teaching children checks on sleeping infants regularly and that a monitor is in the room with the infants, unless a staff member is in the room with the infants while the infants are sleeping.

e.The operator shall ensure that parents of each infant receive a written daily report detailing the infant's sleeping and eating processes for the day, and the infant's diapering schedule for the day.

2.Night care.

a.Any child care center offering night care shall provide program modifications for the needs of children and their parents during the night.

b.In consultation with parents, attention must be given by the staff member responsible for caring for or teaching children to provide a transition into this type of care appropriate to the child's needs.

c.The operator shall encourage parents to leave their children in care and pick them up before and after their normal sleeping period when practical, to ensure minimal disturbance of the child during sleep, with consideration given to the parent's work schedule.

d.The operator shall ensure that children under the age of six are supervised when bathing.

e.The operator shall ensure that comfortable beds, cots, or cribs, complete with a mattress or pad, are available.

f.The operator shall require each child in night care to have night clothing and a toothbrush marked for identification.

g.The operator shall ensure that during sleeping hours, staff members are awake and within hearing range to provide for the needs of children and to respond to an emergency.

3.Drop-in child care.

a.If a child care center serves drop-in children, schoolchildren, or before-school and afterschool children, the child care center must be sufficiently staffed to effectively handle admission records and explain the policies and procedures of the child care center and to maintain the proper staff member to child ratio.

b.The operator shall ensure that the program reflects the individual needs of the children who are provided drop-in care.

c.The operator shall ensure that admission records comply with all enrollment requirements contained in section 75-03-10-22.

d.The operator shall ensure that admittance procedures provide for a period of individual attention for the child to acquaint the child with the child care center, its equipment, and the staff members.

e.A child care center may not receive drop-in care or part-time children who, when added to the children in regular attendance, cause the child care center to exceed the total number of children for which the child care center is licensed.

4.An operator shall ensure that a child care center serving only drop-in care children complies with this chapter, but is exempt from the following provisions:

a.The maximum group size requirements listed in section 75-03-10-08;

b.Subsections 5, 9, 12, 13, 14, 15, and 19 of section 75-03-10-20; subsections 6 and 7 of

section 75-03-10-21; subdivision f of subsection 2 of section 75-03-10-22; and subsection 1 of section 75-03-10-25; and

c.A child care center serving only drop-in care children is exempt from the outdoor space requirements.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2014; April 1, 2016; April 1, 2018;

N.D. Admin. Code 75-03-10-25 Minimum requirements for care of a child with special needs

An operator shall make appropriate accommodations, as required by the Americans with Disabilities Act, to meet the needs of children with special needs. The child care center shall receive documentation of the child's special needs from the parent upon the child's enrollment.

1.When a child with special needs is admitted, the director or supervisor shall consult with the child's parents, and, with the parent's permission, the child's source of professional health care, or, when appropriate, other health and professional consultants to gain an understanding of the child's individual needs. The operator shall receive a written health care plan from the child's medical provider or parent with information related to the child's special needs, such as a description, definition of the diagnosis, and general information for emergency and required care such as usual medications and procedures.

2.The operator shall ensure staff members responsible for caring for or teaching children receive proper instructions as to the nature of the child's special needs and potential for growth and development.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-10-26 Minimum provisions regarding emergency care for children

The child care center shall have written plans to respond to illness and emergencies, including burns, serious injury, and ingestion of poison. The operator shall ensure that parents of enrollees are advised of these plans. Plans must:

1.Establish emergency response procedures;

2.Provide accessible posting of emergency response procedures and require training for all staff members concerning those emergency procedures;

3.Require the availability of at least one working flashlight;

4.Require at least one department-approved first-aid kit maintained and kept in a designated location, inaccessible to children, yet readily accessible to staff members at all times;

5.Provide a working telephone line immediately accessible to staff members with a list of emergency telephone numbers conspicuously posted;

6.Require a plan for responding to minor illnesses and minor accidents when children are in the care of the child care center;

7.Require written permission to dispense medication and proper instructions for the administration of medication obtained from the parent of a child in the child care center who requires medication:

a.Medication prescribed by a medical provider must be accompanied by the medical provider's written instructions as to dosage and storage, and labeled with the child's name and date;

b.Medication must be stored in an area inaccessible to children, and medication stored in a refrigerator must be stored collectively in a spillproof container;

c.The operator shall keep a written record of the administration of medication, including over-the-counter medication, for each child. Records must include the date and time of each administration, the dosage, the name of the staff member administering the medication, and the name of the child; and

d.The operator shall include completed medication records in the child's record;

8.Require a supervised temporary isolation area designated for a child who is too ill to remain in the child care center or who has an infectious or contagious disease, with the following procedures being followed when those signs or symptoms are observed:

a.Parents are notified immediately and asked to pick up their child; and

b.First aid is provided and medical care is sought as necessary;

9.Establish and implement practices in accordance with guidance obtained through consultation with local health unit authorities or authorities from the public health division of the department implemented regarding the exclusion and return of children with infectious or communicable conditions. The operator may obtain this guidance directly or through current published materials regarding exclusion and return to the child care center;

10.Notify parents, legal custodians, or guardians of a child's exposure to a presumed or confirmed reportable infectious disease;

11.Identify a source of emergency health services readily available to the child care center, including:

a.A prearranged plan for emergency medical care in which parents of enrollees are advised of the arrangement; and

b.Provisions for emergency transportation, specifically that when a child is to be brought to another place for emergency care, an adult staff member responsible for caring for or teaching children shall remain with the child until medical personnel assume responsibility for the child's care and until the parent is notified;

12.Require information be provided to parents, as needed, concerning child health and social services available in the community; and

13.Require that the child care center inform parents in writing of any first aid administered to their child within twenty-four hours of the incident, immediately notify parents of any injury which requires emergency care beyond first aid, and require each injury report to be made a part of the child's record.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-10-27 Effect of conviction on licensure and employment

1.An applicant, operator, director, or supervisor may not be, and a child care center may not employ or allow, in any capacity that involves or permits contact between the emergency designee, substitute staff member, or staff member and any child cared for by the child care center, an operator, emergency designee, substitute staff member, director, supervisor, or staff member who has been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code

section 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense other than an offense identified in subdivision a or b, if the department in the case of a child care center applicant, operator, director, or supervisor, or the operator in the case of an emergency designee, substitute staff, or staff member, determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

2.The department has determined that the offenses enumerated in subdivisions a and b of subsection 1 have a direct bearing on the applicant's, operator's, emergency designee's, substitute staff member's, director's, supervisor's, or staff member's ability to serve the public as an operator, emergency designee, substitute staff member, director, supervisor, or staff member.

3.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; in the case of a class B misdemeanor offense described in North Dakota Century Code section 12.1-17-01.2, domestic violence; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

4.The operator shall establish written policies and engage in practices that conform to those policies to effectively implement this section before hiring any staff member.

5.An owner shall submit an application for a fingerprint-based criminal history record check at the time of application and within five years from the date of initial approval and at least once every five years thereafter. The owner shall ensure that each staff member submits an application for a fingerprint-based criminal history record check upon hire and within five years from the date of initial approval and at least once every five years thereafter. The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department shall submit a request to the bureau of criminal investigation for a nationwide name-based criminal history record check.

6.Review of fingerprint-based criminal history record check results.

a.If an individual disputes the results of the criminal history record check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the department's memo outlining the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

c.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

April 1, 2024.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2014; April 1, 2016; April 1, 2018; January 1, 2022;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-06.1, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09

N.D. Admin. Code 75-03-10-28 Child abuse and neglect decisions

An owner and operator shall ensure safe care for the children receiving services in the child care center.

1.If a confirmed decision made under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists, indicating that a child has been abused or neglected by an applicant, owner, operator, director, supervisor, emergency designee, substitute staff member, or staff member, that decision has a direct bearing on the applicant's, owner, or operator's ability to serve the public in a capacity involving the provisions of child care and the application or license may be denied or revoked.

If a confirmed determination under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists indicating that any child has been abused or neglected by the applicant, owner, operator, director, supervisor, emergency designee, substitute staff member, or staff member, the applicant or operator shall furnish information satisfactory to the department, from which the department can determine the applicant's, owner, operator's, director's, supervisor's, emergency designee's, substitute staff member's, or staff member's ability to provide care that is free of abuse and neglect. The department shall furnish the determination of current ability to the applicant or operator.

2.Each applicant, owner, operator, director, supervisor, emergency designee, substitute staff member, and staff member shall complete, and the operator shall submit to the department, a department-approved authorization for background check form no later than the first day of employment.

January 1, 2022; April 1, 2024.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2014; April 1, 2016; July 1, 2020;

N.D. Admin. Code 75-03-10-29 Correction of violations

1.Within ten business days of mailing or within three days of electronic transmission of the correction order, the owner shall notify the parents of each child receiving care at the child care center that a correction order has been issued. In addition to providing notice to the parent of each child, the owner shall post the correction order in a conspicuous location within the child care center until the violation has been corrected or for five days, whichever is longer.

2.Violations noted in a correction order must be corrected:

a.For a violation of North Dakota Century Code section 50-11.1-02.2; section 75-03-10-04 or 75-03-10-08; subsection 12 of section 75-03-10-09; subdivision e of subsection 1 of

section 75-03-10-12; subsection 3 of section 75-03-10-12; subsection 3, 6, 9, or 10 of

section 75-03-10-18; section 75-03-10-23; or subsection 1 of section 75-03-10-24, within twenty-four hours;

b.For a violation requiring the hiring of a child care supervisor with those qualifications set forth in section 75-03-10-11.1, or a child care center director with those qualifications set forth in section 75-03-10-10, within sixty days;

c.For a violation that requires an inspection by a state fire marshal or local fire department

authority pursuant to section 75-03-10-17, within sixty days;

d.For a violation that requires substantial building remodeling, construction, or change, within sixty days; and

e.For all other violations, within twenty days.

3.All periods for correction begin on the date of receipt of the correction order by the owner and operator.

4.The department may grant an extension of additional time to correct violations, up to a period of one-half the original allowable time allotted. An extension may be granted upon application by the owner and a showing that the need for the extension is created by unforeseeable circumstances and the owner has diligently pursued the correction of the violations.

5.The owner shall furnish a written notice to the department upon completion of the required corrective action. The correction order remains in effect until the department or its authorized agent confirms that the corrections have been made.

6.At the end of the period allowed for correction, the department shall reinspect a child care center that has been issued a correction order. If, upon reinspection, the department determines that the child care center has not corrected a violation identified in the correction order, the department shall mail or send by electronic mail a notice of noncompliance with the correction order to the owner and operator. The notice must specify the violations not corrected and the penalties assessed in accordance with North Dakota Century Code section 50-11.1-07.5.

7.If a child care center receives more than one correction order in a single year, the owner and operator may be referred by the department for consulting services to assist the owner in maintaining compliance and to avoid future corrective action.

8.Refutation process for a correction order:

a.An owner may refute a correction order by submitting a refutation request in writing on the form provided by the department within five calendar days of receiving the correction order.

b.The department shall respond to written refutations within five business days of receipt.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2014; July 1, 2020; January 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.1, 50-11.1-07.2, 50-11.1-07.3

N.D. Admin. Code 75-03-10-30 Fiscal sanctions

1.The department shall assess a fiscal sanction of twenty-five dollars per day for each violation of North Dakota Century Code chapter 50-11.1; subsection 2 of section 75-03-10-08; subsection 12 of section 75-03-10-09; section 75-03-10-17; subsection 6, 9, or 13 of section 75-03-10-18; or section 75-03-10-19, 75-03-10-23, 75-03-10-27, or 75-03-10-28, for each day that the operator has not verified correction after the allowable time for correction of violations ends.

2.The department shall assess a fiscal sanction of fifteen dollars per day for each violation of

section 75-03-10-10, 75-03-10-12, or 75-03-10-15; subsection 2, 3, 4, 7, 8, 11, or 19 of section 75-03-10-18; subsection 3, 8, or 19 of section 75-03-10-20; or subdivision a of subsection 1 of

section 75-03-10-24, for each day that the operator has not verified correction after the allowable time for correction of violations ends.

3.The department shall assess a fiscal sanction of five dollars per day for each violation of any other provision of this chapter, for each day that the operator has not verified correction after the allowable time for correction of violations ends.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2018.
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.4, 50-11.1-08

N.D. Admin. Code 75-03-10-31 Appeals

An applicant or operator may appeal a decision to deny or revoke a license by filing a written appeal with the department. The appeal must be postmarked or received by the department within ten calendar days of the applicant's or operator's receipt of written notice of the decision to deny or revoke the license. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended
• Law Implemented: NDCC 50-11.1-08, 50-11.1-10

N.D. Admin. Code 75-03-10-32 Penalties

Chapter 75-03-11 Preschool Early Childhood Services

N.D. Admin. Code 75-03-11-01 Purpose

Repealed effective January 1, 1999.

N.D. Admin. Code 75-03-11-02 Authority and objective

Repealed effective January 1, 1999.

N.D. Admin. Code 75-03-11-03 Definitions

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-11.1-02. In addition, as used in this chapter, unless the context or subject matter otherwise requires:

1."Annual" is defined as the provider's licensing year.

2."Application" means all forms the department requires when applying or reapplying for a license.

3."Aquatic activity" means an activity in or on a body of water, either natural or manmade, including rivers, lakes, streams, swimming pools, and water slides.

4."Assistant" means any individual who works directly with children in a preschool under the supervision of a teacher or a director.

5."Attendance" means the total number of children present at any one time at the facility.

6."Child with special needs" means a child whose medical providers have determined that the child has or is at risk for chronic physical, developmental, behavioral, or emotional conditions.

7."Director" means an individual responsible for supervising and organizing program activities in a preschool.

8."Emergency designee" means an individual designated by the operator to be a backup staff member for emergency assistance or to provide substitute care.

9."Medication" means any drug or remedy which is taken internally or orally, inhaled, or applied topically.

10."Operator" means the person that has operational responsibility for the early childhood program and premises at which the early childhood service operates.

11."Owner" means the person who has legal responsibility for the early childhood program and premises at which the early childhood service operates.

12."Substitute staff" means staff who work less than thirty-two hours per month, and are not regularly scheduled for work.

13."Teacher" means an individual with the responsibility of implementing program activities, either as the director or under the supervision of the director.

14."Volunteer" means an individual who visits or provides an unpaid service or visit, including a firefighter for fire safety week, a practicum student, or a foster grandparent.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; January 1, 2022; January 1, 2023; April 1, 2024.
• Law Implemented: NDCC 50-11.1-02

N.D. Admin. Code 75-03-11-04 Effect of licensing and display of license

1.The issuance of a license to operate a preschool is evidence of compliance with the standards contained in this chapter and North Dakota Century Code chapter 50-11.1 at the time of licensure.

2.The current license must be displayed prominently in the premises to which it applies.

3.The license must specify the maximum number of children for whom the preschool may provide care. The preschool may not admit a greater number of children than the license allows.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04

N.D. Admin. Code 75-03-11-05 Denial or revocation of license

1.The department may deny or revoke a license under the terms and conditions of North Dakota Century Code sections 50-11.1-04, 50-11.1-06.2, 50-11.1-09, and 50-11.1-10.

2.If an applicant or operator appeals an action to revoke a license, the operator may continue the operation of the preschool pending the final administrative determination or until the license expires, whichever occurs first; provided, however, that this subsection does not limit the actions the department may take pursuant to North Dakota Century Code sections 50-11.1-07.8 and 50-11.1-12.

3.The department may revoke a license to operate a preschool without first issuing a correction order or simultaneously with a suspension if continued operation would jeopardize the health and safety of the children present or would violate North Dakota Century Code section 50-11.1-09.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended
• Law Implemented: NDCC 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09, 50-11.1-10

N.D. Admin. Code 75-03-11-06 Provisional license

1.The department may issue a provisional license for the operation of a preschool although the preschool educational facility applicant or owner fails to, or is unable to, comply with all applicable standards and rules of the department.

2.A provisional license must:

a.State that the owner has failed to comply with all applicable standards and rules of the department;

b.State the items of noncompliance;

c.Expire at a set date, not to exceed six months from the date of issuance; and

d.Be exchanged for an unrestricted license, which bears an expiration date of one year from the date of issuance of the provisional license, after the applicant or owner demonstrates compliance, satisfactory to the department, with all applicable standards and rules.

3.The department may issue a provisional license only to an applicant or owner who has waived, in writing:

a.The right to a written statement of charges as to the reasons for the denial of an unrestricted license; and

b.The right to an administrative hearing, in the manner provided in North Dakota Century Code chapter 28-32, concerning the nonissuance of an unrestricted license, either at the time of application or during the period of operation under a provisional license.

4.Any provisional license issued must be accompanied by a written statement of violations signed by the department and must be acknowledged in writing by the applicant or owner.

5.Subject to the exceptions contained in this section, a provisional license entitles the owner to all rights and privileges afforded the owner of an unrestricted license.

6.The department may not issue a provisional license if the preschool is not in compliance with

section 75-03-11-17 or 75-03-11-18.

7.The owner shall display prominently the provisional license and agreement.

8.The owner shall provide parents written notice that the preschool is operating on a provisional license and the basis for the provisional license.

The department may issue a restricted license:

1.To restrict an individual's presence when children are in child care;

2.To restrict a pet or animal from areas accessible to children; or

3.When necessary to inform the parents that the owner is licensed, but is restricted to operating in certain rooms or floors or restricted from using specific outdoor space.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2020; April 1, 2024.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-08 75-03-11-06.1. Restricted license.
• History: Effective January 1, 2011; amended effective April 1, 2024.
• Law Implemented: NDCC 50-11.1-04

N.D. Admin. Code 75-03-11-07 Application for and nontransferability of preschool license

1.An applicant shall submit an application for a license to the department. Application must be made in the form and manner prescribed by the department.

2.A license issued under this chapter is nontransferable and valid only for the premises indicated on the license. An application for a new license must be filed upon change of owner or location.

3.The department may not issue more than one in-home registration, self-declaration, or license per residence. A residence means real property that is typically used as a single family dwelling.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; July 1, 2020; January 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08

N.D. Admin. Code 75-03-11-08 Duties of preschool operator

The operator of a preschool is responsible for compliance with the requirements set forth in this

chapter and North Dakota Century Code chapter 50-11.1. The operator shall:

1.Designate a qualified director, delegate appropriate duties to the director, and shall:

a.Ensure that the preschool director or designated acting director is present at the preschool at least sixty percent of the time that the preschool is open;

b.Ensure that the individual designated as an acting director for an ongoing period of more than thirty days meets the qualifications of a preschool director; and

c.Ensure that the individual designated as a teacher for more than thirty-two hours per month meets the qualifications of a preschool teacher;

2.Possess knowledge or experience in management and interpersonal relations;

3.Notify the department of any major changes in the operation or in the ownership or governing body of the preschool, including staff member changes;

4.Ensure that liability insurance against bodily injury and property damage for the preschool is carried;

5.Formulate written policies and procedures for the operations of the preschool. Policies must include:

a.Hiring practices and personnel policies for staff members;

b.Methods for obtaining references and employment histories of staff members;

c.Methods of conducting staff member performance evaluations;

d.Children's activities, care, and enrollment;

e.The responsibilities and rights of staff members and parents;

f.An explanation of how accidents and illnesses will be handled;

g.The methods of developmentally appropriate discipline and guidance techniques that are to be used;

h.The process for a parent or staff member to report a complaint, a suspected licensing violation, and suspected child abuse or neglect;

i.The care and safeguarding of personal belongings brought to the preschool by a child or by another on a child's behalf;

j.Procedure for accountability when a child fails to arrive as expected at the preschool; and

k.Transportation procedures, if the operator provides transportation;

6.Maintain records of enrollment, attendance, health, financial, and other required records;

7.Be responsible for all preschool staff members, teachers, preschool assistants, substitute staff members, emergency designees, volunteers, or others who provide services in the preschool;

8.Report immediately, as a mandatory reporter, any suspected child abuse or neglect as required by North Dakota Century Code section 50-25.1-03;

9.Maintain necessary information to verify staff members' qualifications and to ensure safe care for the children in the preschool;

10.Ensure preadmission visits for children and their parents are offered so the preschool's program, fees, operating policies, and procedures can be viewed and discussed;

11.Ensure that there are signed written agreements with the parents of each child which specify the fees to be paid, methods of payments, and policies regarding delinquency of fees;

12.Ensure the preschool is sufficiently staffed at all times to meet the child and staff member ratios for children in attendance and that no more children than the licensed capacity are served at any one time;

13.Provide parents, upon request, with progress reports on their children and provide unlimited opportunities for parents to observe their children while in care;

14.Provide parents with the name of the preschool operator, the director, teachers, preschool assistants, staff members, substitute staff members, and the emergency designee;

15.Meet the qualifications of the director set forth in section 75-03-11-08.1 if the operator is also the director;

16.Report to the department within twenty-four hours:

a.A death or serious accident or illness requiring hospitalization of a child while in the care of the preschool or attributable to care received in the preschool;

b.An injury to any child which occurs while the child is in the care of the preschool which requires medical treatment;

c.Poisonings or errors in the administering of medication;

d.Closures or relocations due to emergencies; and

e.Fire that occurs or explosions that occur in or on the premises of the preschool;

17.Ensure that children do not depart from the preschool premises unsupervised, except when the parent and provider consent that an unsupervised departure is safe and appropriate for the age and development of the child. The provider shall obtain written parental consent for the child to leave the preschool premises unsupervised, which must specify the activity, time the child is leaving and length of time the child will be gone, method of transportation, and parental responsibility for the child once the child leaves the preschool premises; and

18.Ensure that each child is released only to the child's parent, legal custodian, guardian, or an individual who has been authorized by the child's parent, legal custodian, or guardian.

April 1, 2024. 75-03-11-08.1. Minimum qualifications of a preschool director.

1.A preschool director shall be an adult of good physical, cognitive, social, and emotional health, and shall use mature judgment when making decisions impacting the quality of child care.

2.The director shall hold at least one of the following qualifications, in addition to those set out in subsection 1:

a.A bachelor's degree in the field of early childhood education with eight or more weeks of supervised student teaching experience in a preschool or similar setting;

b.A bachelor's degree with at least six months of experience in a preschool or similar childhood education or child development;

(2)One hundred twenty hours of department-approved early childhood training; or (3)A director's credential approved by the department;

c.An associate degree in the field of early childhood education or child development with at least six months of experience in a preschool or similar setting;

d.An associate's degree with at least one year of experience in a preschool or similar childhood education or child development;

(2)One hundred twenty hours of department-approved early childhood training; or (3)A director's credential approved by the department;

e.Current certification as a child development associate or similar status, with at least one year of experience in a preschool or similar setting; or

f.Certification from a Montessori teacher training program with at least one year of experience in a Montessori school, preschool, or similar setting.

A teacher shall:

1.Be an adult of good physical, cognitive, social, and emotional health, and shall use mature judgment when making decisions impacting the quality of child care and early childhood education.

2.Hold at least one of the following qualifications:

a.A bachelor's degree with at least eight semester hours or twelve quarter hours of department-approved early childhood education or child development;

b.A teaching certificate in elementary education or kindergarten endorsement;

c.An associate's degree in the field of early childhood education or child development;

d.An associate's degree with at least one year of experience in a preschool or similar childhood education or child development; or (2)One hundred twenty hours of department-approved early childhood training;

e.Current certification as a child development associate or similar status; or

f.Certification from a Montessori teacher training program.

3.Meet the qualifications of the director and perform the function of a director as defined in

section 75-03-11-08.1, if the teacher is also the director.

Each assistant shall:

1.Be an individual of good physical, cognitive, social, and emotional health and use mature judgment when making decisions impacting the quality of child care and early education.

2.Hold either a high school diploma or a high school equivalency.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2016; April 1, 2018; July 1, 2020;
• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2018. 75-03-11-08.2. Minimum qualifications of a preschool teacher.
• History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2018. 75-03-11-08.3. Minimum qualifications of a preschool assistant.
• History: Effective January 1, 1999; amended effective January 1, 2011.

N.D. Admin. Code 75-03-11-09 Staffing requirements

1.The number of staff members and their responsibilities must reflect program requirements and individual differences in the needs of the children enrolled, and may permit mixed-age groups, if necessary. Service personnel engaged in housekeeping and food preparations may not be counted in the child to staff member ratio for periods of time when they are engaged in housekeeping or food preparation.

2.The minimum ratio of staff members responsible for caring for or teaching children to children in preschool must be:

a.If all children in care are children two years of age to three years of age, one staff member may care for six children, a ratio of .167 in decimal form.

b.If all children in care are children three years of age to four years of age, one staff member may care for eleven children, a ratio of .09 in decimal form.

c.If all children in care are children four years of age to five years of age, one staff member may care for thirteen children, a ratio of .077 in decimal form.

d.If all children in care are children five years of age to six years of age, one staff member may care for sixteen children, a ratio of .063 in decimal form.

e.There must be at least one director or teacher, in addition to at least one staff member responsible for caring for or teaching children, per group of ten children, if the group includes children two years old.

f.There must be at least one director or teacher, in addition to at least one staff member responsible for caring for or teaching children, per group of twenty children, if the group includes children three years old.

g.There must be at least one director or teacher, in addition to at least one staff member responsible for caring for or teaching children, per group of twenty-four children, ages four to six.

3.When there are mixed-age groups, the number of children in each category is multiplied by the corresponding ratio number, converted to decimal form, and carried to the nearest hundredth. To determine the number of staff members responsible for caring for or teaching children necessary at any given time, numbers of staff members for all age categories are added, and any fractional staff member count is then rounded to the next highest whole number whenever the fractional staff member count amounts to thirty-five hundredths or more.

If lower than thirty-five hundredths, the fractional amount is dropped.

4.If a child with special needs is admitted to the preschool, the child's developmental age level must be used in determining the child to staff ratios.

5.The operator shall ensure that a child with special needs requiring more than usual care and supervision has adequate care and supervision without adversely affecting care provided to the other children in the preschool.

July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2022.

History

• History: Effective December 1, 1981; amended effective July 1, 1984; January 1, 1987; July 1, 1996;
• Law Implemented: NDCC 50-11.1-02.1, 50-11.1-04, 50-11.1-08

N.D. Admin. Code 75-03-11-10 Duties of a preschool director

The director, in collaboration with the operator, shall:

1.Implement policies and procedures for maintaining compliance with licensing rules;

2.Maintain required enrollment, attendance, health, and other required records;

3.Screen, schedule, supervise, and be responsible for the conduct of staff members while the staff members are on duty;

4.Ensure safe care for the children under supervision. Supervision means a staff member responsible for caring for or teaching children being within sight or hearing range of each child at all times so the staff member is capable of intervening to protect the health and safety of the child;

5.Ensure all staff responsible for caring for or teaching children receive orientation to the preschool during the first week of employment. The orientation must be documented on an orientation certification form and must address the following:

a.Emergency health, fire, and safety procedures;

b.The importance of handwashing and sanitation procedures to reduce the spread of infection and disease among children and staff members;

c.Any special health or nutrition instructions of the children assigned to the staff member;

d.Any special needs of the children assigned to the staff member;

e.The planned program of activities at the preschool;

f.Rules and policies of the preschool; and

g.Child abuse and neglect reporting laws; and

6.Perform other duties as delegated by the operator.

History

• History: Effective January 1, 2011; amended effective April 1, 2024.

N.D. Admin. Code 75-03-11-11 Duties of a preschool teacher

A teacher, in collaboration with the director, shall:

1.Communicate with parents about the individual needs of their children, including any special concerns the parents may have;

2.Plan daily and weekly schedules of activities and make those plans available to parents; and

3.Ensure that the program policies are adhered to in the class or group assigned to the teacher.

History

• History: Effective January 1, 2011.

N.D. Admin. Code 75-03-11-12 Minimum qualifications of volunteers

If a volunteer is providing child care, the volunteer shall meet the qualifications of a staff member responsible for caring for or teaching children and must receive orientation for all assigned tasks.

History

• History: Effective January 1, 2011.

N.D. Admin. Code 75-03-11-13 Minimum health and training requirements for applicants, operators, and staff members

1.If the physical, cognitive, social, or emotional health capabilities of an applicant, operator, or staff member appears questionable, the department may require the individual to present evidence of the individual's ability to provide the required care based on a formal evaluation.

The department is not responsible for the costs of any required evaluation.

2.A staff member or household member may not use or be under the influence of any alcoholic beverages or illegal drugs while children are in care.

3.A staff member may not place a child in an environment that is harmful or dangerous to the child's physical, cognitive, social, or emotional health.

4.All staff members responsible for caring for or teaching children shall certify completion of department-approved training related to child care annually.

a.A staff member working thirty or more hours per week shall certify a minimum of thirteen hours of department-approved training annually.

b.A staff member working fewer than thirty hours and at least twenty hours per week shall certify a minimum of eleven hours of department-approved training annually.

c.A staff member working fewer than twenty hours and at least ten hours a week shall certify a minimum of nine hours of department-approved training annually.

d.A staff member working fewer than ten hours per week shall certify a minimum of seven hours of department-approved training annually.

e.A staff member shall complete one hour of department-approved mandated reporter of suspected child abuse or neglect training.

f.The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of subdivision e.

g.Substitute staff and emergency designees are exempt from the annual training requirement with the exception of subdivision e.

5.All staff members responsible for caring for or teaching children shall certify completion of a department-approved basic child care course within ninety days of employment.

6.All staff members shall be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department.

7.All staff members shall be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in pediatric first aid by a program approved by the department.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; April 1, 2018; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-11-14 Minimum requirements for facility

1.The preschool must be properly lighted. If the lighting of the preschool appears questionable, the department may require the operator to obtain additional lights so that a minimum of sixty-five foot-candles of light is used in the areas generally used for children's activities.

2.Water supply.

a.The operator shall ensure that the preschool has a drinking water supply from an approved community water system or from a source tested and approved annually by the department of environmental quality;

b.Drinking water must be easily accessible to the children and must be provided by either an angle-jet drinking fountain with mouthguard or by a running water supply with individual single-service drinking cups; and

c.The preschool must have hot and cold running water. The water in the faucets used by children must not exceed one hundred twenty degrees Fahrenheit [49.2 degrees Celsius].

3.Toilet and sink facilities:

a.The operator shall provide toilet and sink facilities which are easily accessible to the areas used by the children and staff members;

b.The operator shall provide a minimum of one flush toilet for each fifteen children, excluding those children who are not toilet trained;

c.The operator shall provide at least one handwashing sink per toilet room facility; and

d.The operator shall provide hand soap, sanitary hand-drying equipment, single-use or individually designated cloth towels, or paper towels near handwashing sinks.

4.The operator of a preschool not on a municipal or public water supply or wastewater disposal system shall ensure the preschool's sewage and wastewater system has been approved by the department of environmental quality.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2018.

N.D. Admin. Code 75-03-11-15 Minimum standards for provision of transportation

1.Prior to licensing, the operator shall establish a written policy governing the transportation of children to and from the preschool, if the preschool provides transportation. This policy must specify who is to provide transportation and how parental permission is to be obtained for activities which occur outside the preschool. If the preschool provides transportation, the operator shall inform the parents of any insurance coverage on the vehicles. Any vehicle used for transporting children must be in safe operating condition and in compliance with state and local laws.

2.When transportation is provided by a preschool, children must be protected by adequate staff member supervision, safety precautions, and liability insurance.

a.Staffing requirements must be maintained to assure the safety of children while being transported.

b.A child may not be left unattended in a vehicle.

3.Children must be instructed in safe transportation conduct as appropriate to their age and stage of development.

4.The driver must be eighteen years of age or older and must comply with all relevant federal, state, and local laws, including child restraint system laws.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended

N.D. Admin. Code 75-03-11-16 Minimum emergency evacuation and disaster plan

1.Each operator shall establish and post an emergency disaster plan for the safety of the children in care. Written disaster plans must be developed in cooperation with local emergency management agencies. The plan must include:

a.Emergency procedures, including the availability of emergency food, water, and first-aid supplies;

b.Procedures for evacuation, relocation, shelter-in-place, and lockdown;

c.Communications and reunification with families;

d.Continuity of operations; and

e.Accommodations for infants, toddlers, children with disabilities, and children with chronic medical conditions.

2.Fire and emergency evacuation drills must be performed monthly.

History

• History: Effective January 1, 2011; amended effective April 1, 2018; January 1, 2022.

N.D. Admin. Code 75-03-11-17 Fire inspections

1.The operator shall ensure that annual fire inspections are completed for the preschool by local or state fire authorities. The operator shall correct or have any code violations noted by the fire inspector corrected and shall file reports of the inspections and any corrections with the department.

2.The operator shall ensure that the preschool is equipped with sufficient smoke detectors and fire extinguishers, as recommended by the local fire department or state fire marshal.

3.The operator shall provide:

a.The fire inspector's written statement of compliance with the local fire code; or

b.The fire inspector's written statement that the preschool has been inspected and that the inspector is satisfied that the preschool meets the minimum fire and safety standards.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; July 1, 2020; April 1, 2024.

N.D. Admin. Code 75-03-11-18 Minimum sanitation and safety requirements

1.The operator shall ensure that the preschool's bathroom sinks, toilets, tables, chairs, and floors are cleaned daily. Cots and mats, if used, must be maintained in a clean, sanitary condition.

2.The operator shall ensure that the preschool's building, grounds, and equipment are located, cleaned, and maintained to protect the health and safety of children. The operator shall establish routine maintenance and cleaning procedures to protect the health of the children and staff members.

3.The operator shall ensure that in preschools licensed for more than thirty children, where meals are prepared, comply with the public health division of the department child care food service establishment license requirements pursuant to North Dakota Century Code chapter 23-09. If only snacks or occasional cooking projects are prepared, an inspection by the public health division of the department is not required. The operator shall correct any code violations noted by the health inspector and shall file reports of the inspections and corrections made with the department.

4.The operator shall ensure that indoor and outdoor equipment, toys, and supplies are safe, strong, nontoxic, and in good repair. The operator shall ensure that all toys and equipment are kept clean and in a sanitary condition. Books and other toys that are not readily cleanable must be sanitized as much as possible without damaging the integrity or educational value of the item.

5.The operator shall ensure adequate heating, ventilation, humidity, and lighting for the comfort and protection of the health of the children. All heating devices must be approved by the local fire authorities. When the preschool is occupied by children, the room temperature may not be less than sixty-five degrees Fahrenheit [18 degrees Celsius] and not more than seventy-five degrees Fahrenheit [24 degrees Celsius].

6.The operator shall ensure that exterior play areas in close proximity to busy streets and other unsafe areas are contained or fenced, or have natural barriers to restrict children from those unsafe areas. Outdoor play areas must be inspected daily for hazards and necessary maintenance.

7.The operator shall ensure that potential hazards, such as noncovered electrical outlets, guns, cleaning chemicals, uninsulated wires, medicines, and poisonous plants are not accessible to children. The operator shall keep guns and ammunition in locked storage, each separate from the other, or shall use trigger locks. The operator shall ensure other weapons and dangerous sporting equipment, such as bows and arrows, are not accessible to children.

8.The operator shall ensure that indoor floors and steps are not slippery and do not have splinters. The operator shall ensure that steps and walkways are kept free from accumulations of water, ice, snow, or debris.

9.The operator shall ensure that elevated areas including stairs and porches have railings and safety gates where necessary to prevent falls.

10.The operator shall take steps to keep the preschool free of insects and rodents. Chemicals for insect and rodent control may not be applied in areas accessible to children when children are present in the preschool. Insect repellant may be applied outdoors on children with written parental permission.

11.The operator shall ensure that combustible materials are kept away from light bulbs and other heat sources.

12.The operator shall ensure that exit doorways and pathways are not blocked.

13.An operator shall ensure that all preschool buildings erected before January 1, 1970, which contain painted surfaces in a peeling, flaking, chipped, or chewed condition in any area where children may be present, have painted surfaces repainted or shall submit evidence that the paints or finishes do not contain hazardous levels of lead-bearing substances. For the purposes of this chapter, "hazardous levels of lead-bearing substances" means any paint, varnish, lacquer, putty, plaster, or similar coating of structural material which contains lead or its compounds in excess of seven-tenths of one milligram per square centimeter, or in excess of five-tenths of one percent in the dried film or coating, when measured by a lead-detecting instrument approved by the department of environmental quality.

14.Staff members responsible for caring for or teaching children shall strictly supervise wading pools used by the preschool and shall empty, clean, and sanitize wading pools daily.

15.All swimming pools used by children must be approved annually by the local health unit.

16.Aquatic activities:

a.An operator shall have policies that ensure the health and safety of children in care while participating in aquatic activities, including types of aquatic activities the preschool may participate in, staff-to-child ratios appropriate to the ages and swimming ability of children participating in aquatic activities, and additional safety precautions to be taken.

b.The operator may not permit any child to participate in an aquatic activity without written parental permission, which includes parent disclosure of the child's swimming ability.

17.Pets and animals.

a.The operator shall ensure that only small pets that are contained in an aquarium or other approved enclosed container, cats, and dogs are present in areas occupied by children.

Wire cages are not approved containers. Other indoor pets and animals must be restricted by a solid barrier and must not be accessible to children. The department may restrict any pet or animal from the premises that may pose a risk to children or may approve additional pets that do not pose a health or safety risk to children.

b.The operator shall ensure that animals are maintained in good health and appropriately immunized. Pet immunizations must be documented with a current certificate from a veterinarian.

c.The operator shall ensure parents are aware of the presence of pets and animals in the preschool.

d.The operator shall notify parents immediately if a child is bitten or scratched and skin is broken.

e.A staff member responsible for caring for or teaching children shall closely supervise all contact between pets or animals and children. The staff member shall remove the pet or animal immediately if the pet or animal shows signs of distress or the child shows signs of treating the pet or animal inappropriately.

f.The operator shall ensure that pets, pet feeding dishes, cages, and litter boxes are not present in any food preparation, food storage, or serving areas. The operator shall ensure that pet and animal feeding dishes and litter boxes are not placed in areas accessible to children.

g.The operator shall ensure that indoor and outdoor areas accessible to children are free of animal excrement.

h.The operator shall ensure that the preschool is in compliance with all applicable state and local ordinances regarding the number, type, and health status of pets or animals.

18.Staff members and children shall wash their hands, according to recommendations by the federal centers for disease control and prevention, before preparing or serving meals, after diapering, after using toilet facilities, and after any other procedure that may involve contact with bodily fluids.

19.The operator shall ensure that soiled or wet clothes or diapers are stored in a sanitary, covered container, separate from other garbage and waste until removed from the preschool facility.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; September 1, 1990; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; April 1, 2016; July 1, 2020; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-11-19 Minimum requirements regarding space

1.Each preschool shall provide adequate indoor and outdoor space for the daily activities of all children for the licensed capacity of the preschool.

2.Adequate space must include a minimum of thirty-five square feet [3.25 square meters] of indoor space per child. Indoor space considered must exclude bathrooms, pantries, passageways leading to outdoor exits, areas occupied by furniture or appliances that children should not play on or under, and space children are not permitted to occupy.

3.There must be a minimum of seventy-five square feet [6.97 square meters] of appropriate outdoor play space per child for the preschool. If available outdoor play space does not accommodate the licensed capacity of the preschool at one time, the total appropriate outdoor play space available must be no less than the number of children in the largest class or group of the preschool multiplied by seventy-five square feet [6.97 square meters]. Operators who provide seventy-five square feet [6.97 square meters] of separate indoor recreation space per child for the largest class or group are exempt from the outdoor space requirement. The operator shall prepare a written schedule of outdoor or separate indoor recreation space playtime which limits the use of the play area to its capacity, giving each class or group an opportunity to play daily.

4.An owner holding a current license under this chapter on or before January 1, 2022, is exempt from subsection 3 unless the owner's license lapses for more than six months.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; January 1, 2022; April 1, 2024.

N.D. Admin. Code 75-03-11-20 Program requirements

1.A preschool must have a written curriculum which describes the preschool's philosophy, goals, objectives, program, and a program evaluation process.

a.The curriculum must promote cognitive, social, emotional, and physical growth of children in care.

b.The curriculum must be based on the developmental levels and needs of children enrolled.

c.The curriculum must provide for daily outdoor play.

2.The director shall exchange information with parents concerning the preschool, its activities, and the adjustment of the child to the preschool.

3.Each child's cultural and ethnic background and primary language or dialect must be respected by the staff members.

4.The director or teacher shall design a written daily plan of program activities for the children enrolled in the preschool.

History

• History: Effective December 1, 1981; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2013; April 1, 2024.

N.D. Admin. Code 75-03-11-21 Minimum standards for the provision of snacks

1.An operator shall serve a nutritious snack on a regular basis to children in care for more than two and one-half hours.

2.If the operator is responsible for providing food to children, the food supplied must meet United States department of agriculture standards and must be properly prepared, sufficient in amount, nutritious, varied according to diets of the children enrolled, and served at appropriate hours. Food that is prepared, served, or stored in a preschool must be treated in a sanitary and safe manner with sanitary and safe equipment.

3.The operator shall serve snacks and meals to children in a manner commensurate with the child's age, using appropriate foods, portions, dishes, and eating utensils.

4.The operator or staff member may encourage children to eat the food served, but the operator or staff member may not coerce or force-feed children.

History

• History: Effective December 1, 1981; amended effective January 1, 2011; April 1, 2024.

N.D. Admin. Code 75-03-11-22 Records

1.The operator shall keep a copy of this chapter on the premises of the preschool and shall make it available to staff members at all times.

2.The operator shall maintain the following records:

a.The child's full name, birth date, current home address, legal names of the child's parents, and current business and personal telephone numbers where they can be reached;

b.A written statement from the parents authorizing emergency medical care;

c.Names and telephone numbers of individuals who may assume responsibility for the child if the individuals legally responsible for the child cannot be reached immediately in an emergency;

d.Names and telephone numbers of individuals authorized to take the child from the preschool;

e.Verification that the child has received all immunizations appropriate for the child's age, as prescribed by the public health division of the department, or have on file a document citing that the child is medically exempt or exempt from immunizations based on religious, philosophical, or moral beliefs; and

f.A current health assessment or a health assessment statement completed by the parent, obtained at the time of initial enrollment of the child which must indicate any special precautions for diet, medication, or activity. This assessment must be completed annually.

3.The operator shall verify the identification of the child through official documentation such as a certified birth certificate, certified school records, passport, or any other documentary evidence the provider considers appropriate proof of identity and shall comply with North Dakota Century Code section 12-60-26.

4.The operator shall ensure that all records, photographs, and information maintained with respect to children receiving child care services are kept confidential, and that access is limited to staff members, the parents, and to the following, unless otherwise protected by law:

a.The department representatives;

b.Individuals having a definite interest in the well-being of the child concerned and who, in the judgment of the department, are in a position to serve the child's interests should that be necessary; and

c.Individuals who possess written authorization from the child's parent. The preschool shall have a release of information form available and shall have the form signed prior to the release of information.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2022; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-11-23 Discipline - Punishment prohibited

Disregard of any of the following disciplinary rules or any disciplinary measure resulting in physical or emotional injury, neglect, or abuse to any child is grounds for license denial or revocation:

1.The preschool must have a written policy regarding the discipline of children. The operator shall provide the policy to, and discuss the policy with, staff members responsible for caring for or teaching children before the preschool begins operation or before staff members begin working with children.

2.Discipline must be constructive or educational in nature and may include diversion, separation from the problem situation, talking with the child about the situation, praising appropriate behavior, or gentle physical restraint, such as holding. A child may not be subjected to physical harm, fear, or humiliation.

3.Authority to discipline may not be delegated to children nor may discipline be administered by children.

4.Separation, when used as discipline, must be appropriate to the child's development and circumstances. The child must be in a safe, lighted, well-ventilated room within sight or hearing range of a staff member responsible for caring for or teaching children. A staff member may not isolate a child in a locked room or closet.

5.A child may not be punished for lapses in toilet training.

6.A staff member may not use verbal abuse or make derogatory remarks about a child, or a child's family, race, or religion when addressing the child or in the presence of other children.

7.A staff member may not use profane, threatening, unduly loud,or abusive language in the presence of a child.

8.A staff member may not force-feed a child or coerce a child to eat unless medically prescribed and administered under a medical provider's care.

9.A staff member may not use deprivation of meals or snacks as a form of discipline or punishment.

10.A staff member, or household member, or any other adult in or at the preschool may not kick, punch, spank, shake, pinch, bite, roughly handle, strike, mechanically restrain, or physically maltreat a child.

11.A staff member may not force a child to ingest substances that would cause pain or discomfort, for example, placing soap in the mouth of a child to deter the child from biting other children.

12.A staff member may not withhold active play as a form of discipline or punishment, beyond a brief period of separation.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 1, 2011; January 1, 2023.

N.D. Admin. Code 75-03-11-24 [Reserved]

N.D. Admin. Code 75-03-11-25 Minimum requirements for care of a child with special needs

The operator shall make appropriate accommodations, as required by the Americans with Disabilities Act, to meet the needs of children with special needs. The operator shall receive documentation of the child's special needs from the parent upon the child's enrollment.

1.When a child with special needs is admitted, the operator shall consult with the child's parents, and with the parent's permission, the child's source of professional health care, or, when appropriate, other health and professional consultants to gain an understanding of the child's individual needs. The operator shall receive a written health care plan from the child's medical provider or parent with information related to the child's special needs, such as a description, definition of the diagnosis, and general information for emergency and required care such as usual medications and procedures.

2.The operator shall ensure staff members responsible for caring for or teaching children receive proper instructions as to the nature of the child's special needs and potential for growth and development.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 2, 2011.

N.D. Admin. Code 75-03-11-26 Minimum provisions regarding emergency care for children

The preschool must have written plans to respond to illness and emergencies including burns, serious injury, and ingestion of poison. The operator shall ensure that parents of enrolled children are advised of these plans. Plans must:

1.Establish emergency response procedures;

2.Provide accessible posting of emergency response procedures and require training for all staff members concerning those emergency procedures;

3.Require the availability of at least one working flashlight;

4.Require at least one department-approved first-aid kit maintained and kept in a designated location, inaccessible to children, yet readily accessible to staff members at all times;

5.Provide a working telephone line immediately accessible to staff members with a list of emergency telephone numbers conspicuously posted;

6.Provide a plan for responding to minor illnesses and minor accidents when children are in the care of the preschool, and provide a plan for accessing available medical consultation regarding special care and medication;

7.Require written permission to dispense medication and proper instructions for the administration of medication, obtained from the parent of a child in the preschool who requires medication.

a.Medication prescribed by a medical provider must be accompanied by the medical provider's written instructions as to dosage and storage, and labeled with the child's name and date;

b.Medication must be stored in an area inaccessible to children, and medication stored in a refrigerator must be stored collectively in a spillproof container; and

c.The operator shall keep a written record of the administration of medication, including over-the-counter medication, for each child. Records must include the date and time of each dose administered, the dosage, the name of the staff member administering the medication, and the name of the child. The operator shall include completed medication records in the child's record;

8.Require a supervised temporary isolation area designated for a child who is too ill to remain in the preschool, or who has an infectious or contagious disease, with the following procedures being followed when those signs or symptoms are observed:

a.Parents are notified immediately and asked to pick up their child; and

b.First aid is provided and medical care is sought, as necessary;

9.Identify a source of emergency services available to the preschool, including:

a.A prearranged plan for emergency medical care in which parents of enrolled children are advised of the arrangement;

b.Provisions for emergency transportation, specifically that when a child is to be brought to another place for emergency care, an adult staff member responsible for caring for or teaching children shall remain with the child until medical personnel assume the responsibility for the child's care and until the parent is notified;

10.Establish and implement practices in accordance with guidance obtained through consultation with local health unit authorities or authorities from the public health division of the department regarding the exclusion and return of children with infectious or communicable conditions. The operator may obtain this guidance directly or through current published materials regarding exclusion and return to the preschool;

11.Require information be provided to parents, as needed, concerning child health and social services available in the community;

12.Require that the preschool inform parents in writing of any first aid administered to their child within twenty-four hours of the incident, immediately notify parents of any injury which requires emergency care beyond first aid, and require each injury report to be made a part of the child's record; and

13.Notify parents, legal custodians, or guardians of a child's exposure to a presumed of confirmed reportable infectious disease.

History

• History: Effective December 1, 1981; amended effective January 1, 1987; July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; January 2, 2011; January 1, 2023; April 1, 2024.

N.D. Admin. Code 75-03-11-27 Effect of conviction on licensure and employment

1.An applicant, operator, or director may not be, and a preschool may not employ or allow, in any capacity that involves or permits contact between the teacher, assistant, emergency designee, staff member, or household member, and any child cared for by the preschool, an operator, director, staff member, teacher, assistant, emergency designee, or household member, who has been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code

section 12.1-17-01, simple assault; 12.1-17-01.2, domestic violence; 12.1-17-01.1, assault; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department in the case of an applicant, operator, household member, or director, or the operator in the case of a staff member, teacher, assistant, substitute staff member, or emergency designee, determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

2.The department has determined that the offenses enumerated in subdivision a or b of subsection 1 have a direct bearing on the applicant's, operator's, director's, teacher's, assistant's, substitute staff member's, emergency designee's, or a staff member's ability to serve the public as an operator, director, teacher, assistant, emergency designee, or a staff member.

3.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; in the case of a class B misdemeanor offense described in North Dakota Century Code section 12.1-17-01.2, domestic violence; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

4.The operator shall establish written policies and engage in practices that conform to those policies to effectively implement this section, before hiring any directors, staff members, teachers, assistants, substitute staff members, or emergency designees.

5.An owner shall submit an application for a fingerprint-based criminal history record check at the time of application and within five years from the date of initial approval and at least once every five years thereafter. The owner shall ensure that each staff member submits an application for a fingerprint-based criminal history record check upon hire and within five years from the date of initial approval and at least once every five years thereafter. The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department shall submit a request to the bureau of criminal investigation for a nationwide name-based criminal history record check.

6.Review of fingerprint-based criminal history record check results.

a.If an individual disputes the results of the criminal history record check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the department's memo outlining the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

c.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

April 1, 2018; January 1, 2022; January 1, 2023; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 2, 2011; April 1, 2014; April 1, 2016;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-06.1, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09

N.D. Admin. Code 75-03-11-28 Child abuse and neglect determinations

An owner and operator shall ensure safe care for the children receiving services in the preschool.

1.If a confirmed decision made under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists, indicating that a child has been abused or neglected by any applicant, owner, operator, director, teacher, assistant, staff member, substitute staff member, emergency designee, or household member, it has a direct bearing on the applicant's, owner, or operator's ability to serve the public in a capacity involving the provision of child care and the application or license may be denied or revoked. If a confirmed determination under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists indicating that any child has been abused or neglected by the applicant, owner, operator, director, teacher, assistant, staff member, substitute staff member, emergency designee, or household member, the applicant or operator shall furnish information satisfactory to the department, from which the department can determine the applicant's, owner, operator's, director's, teacher's, assistant's, staff member's, substitute staff member's, or emergency designee's ability to provide care that is free of abuse and neglect.

The department shall furnish the determination of current ability to the applicant or operator.

2.Each applicant, owner, operator, director, teacher, assistant, staff member, substitute staff member, and emergency designee shall complete, and the operator shall submit to the department, a department-approved authorization for background check form no later than the first day of employment.

3.Household members age twelve and older shall complete, and the operator shall submit to the department, a department-approved authorization for background check form at the time of application, relicensure, or upon obtaining residence at the location of the preschool.

April 1, 2016; July 1, 2020; January 1, 2022; January 1, 2023; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 2, 2011; January 1, 2013; April 1, 2014;
• General Authority: NDCC 50-11.1-04, 50-11.1-08

N.D. Admin. Code 75-03-11-29 Correction of violations

1.Within ten business days of mailing or within three days of electronic transmission of the correction order, the owner shall notify the parents of each child enrolled in the preschool that a correction order has been issued. In addition to providing notice to the parent of each child, the owner shall post the correction order in a conspicuous location within the preschool until the violation has been corrected or for five days, whichever is longer.

2.Violations noted in a correction order must be corrected:

a.For a violation of North Dakota Century Code section 50-11.1-02.2; section 75-03-11-04; subsection 13 of section 75-03-11-08; section 75-03-11-09; subsection 4 of section 75-03-11-10; subsection 3 of section 75-03-11-13; subsection 2, 7, or 8 of section 75-03-11-18; or section 75-03-11-23, within twenty-four hours;

b.For a violation requiring the hiring of a director with those qualifications set forth in

section 75-03-11-08.1 or a teacher with those qualifications as set forth in section 75-03-11-08.2, within sixty days;

c.For a violation that requires an inspection by a state fire marshal or local fire department

authority pursuant to section 75-03-11-17, within sixty days;

d.For a violation that requires substantial building remodeling, construction, or change, within sixty days; and

e.For all other violations, within twenty days.

3.All periods for correction begin on the date of receipt of the correction order by the owner and operator.

4.The department may grant an extension of additional time to correct violations, up to a period of one-half the original allowable time allotted. An extension may be granted upon application by the owner and a showing that the need for the extension is created by unforeseeable circumstances and the owner has diligently pursued the correction of the violation.

5.The owner shall furnish written notice to the department upon completion of the required corrective action. The correction order remains in effect until the department or its authorized agent confirms that the corrections have been made.

6.At the end of the period allowed for correction, the department shall reinspect a preschool that has been issued a correction order. If, upon reinspection, the department or determines that the preschool has not corrected a violation identified in the correction order, the department shall mail or send by electronic mail a notice of noncompliance with the correction order to the owner and operator. The notice must specify the violations not corrected and the penalties assessed in accordance with North Dakota Century Code section 50-11.1-07.5.

7.If a preschool receives more than one correction order in a single year, the owner and operator may be referred by the department for consulting services. The consulting services will be offered to assist the owner in maintaining compliance and to avoid future corrective action.

8.Refutation process for a correction order:

a.An owner may refute a correction order by submitting a refutation request in writing on the form provided by the department within five calendar days of receiving the correction orders.

b.The department shall respond to written refutations within five business days of receipt.

July 1, 2020; January 1, 2022; April 1, 2024.

History

• History: Effective January 1, 1999; amended effective January 2, 2011; January 1, 2013; April 1, 2014;
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.1, 50-11.1-07.2, 50-11.1-07.3

N.D. Admin. Code 75-03-11-30 Fiscal sanctions

1.The department shall assess a fiscal sanction of twenty-five dollars per day for each violation of North Dakota Century Code chapter 50-11.1; subsection 13 of section 75-03-11-08; or

section 75-03-11-09, 75-03-11-13, 75-03-11-17, 75-03-11-18, or 75-03-11-19 for each day that the operator has not verified correction, after the allowable time for correction of violations ends, that the operator has not verified correction.

2.The department shall issue a fiscal sanction of fifteen dollars per day for each violation of

section 75-03-11-08.1, 75-03-11-08.2, 75-03-11-08.3, or 75-03-11-15; subsection 1, 2, or 4 of

section 75-03-11-18; or subsection 1 of section 75-03-11-20 for each day that the operator has not verified correction, after the allowable time for correction of violations ends, that the operator has not verified correction.

3.The department shall issue a fiscal sanction of five dollars per day for each violation of any other provision of this chapter for each day that the operator has not verified correction, after the allowable time for correction of violations ends, that the operator has not verified correction.

History

• History: Effective January 1, 1999; amended effective January 2, 2011; January 1, 2013.
• General Authority: NDCC 50-11.1-07.4, 50-11.1-08
• Law Implemented: NDCC 50-11.1-01, 50-11.1-07.4, 50-11.1-08

N.D. Admin. Code 75-03-11-31 Appeals

An applicant or operator may appeal a decision to deny or revoke a license by filing a written appeal with the department. The appeal must be postmarked or received by the department within ten calendar days of the applicant's or operator's receipt of written notice of the decision to deny or revoke the license. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

History

• History: Effective January 1, 1999; amended effective January 2, 2011.
• Law Implemented: NDCC 50-11.1-08, 50-11.1-10

Chapter 75-03-11.1 School-Age Child Care Program Early Childhood Services

N.D. Admin. Code 75-03-11.1 School-Age Child Care Program Early Childhood Services

CHAPTER 75-03-11.1

SCHOOL-AGE CHILD CARE PROGRAM EARLY CHILDHOOD SERVICES

Section 75-03-11.1-01[Reserved] 75-03-11.1-02[Reserved] 75-03-11.1-03Definitions 75-03-11.1-04Effect of Licensing and Display of License 75-03-11.1-05Denial or Revocation of License 75-03-11.1-06Provisional License 75-03-11.1-06.1Restricted License 75-03-11.1-07Application for and Nontransferability of School-Age Child Care Program License 75-03-11.1-08Duties of School-Age Child Care Program Operator 75-03-11.1-08.1Minimum Qualifications of a School-Age Child Care Program Director 75-03-11.1-08.2Duties of School-Age Child Care Program Director 75-03-11.1-08.3Minimum Qualifications of School-Age Child Care Program Supervisor 75-03-11.1-08.4Minimum Qualifications for All School-Age Child Care Program Staff Members Responsible for Caring for or Teaching Children 75-03-11.1-08.5Minimum Qualifications for Volunteers 75-03-11.1-08.6Duties of School-Age Child Care Program Supervisor 75-03-11.1-09Staffing and Group Size Requirements 75-03-11.1-10[Reserved] 75-03-11.1-11[Reserved] 75-03-11.1-12[Reserved] 75-03-11.1-13Minimum Health Requirements for All Applicants, Operators, and Staff Members 75-03-11.1-14[Reserved] 75-03-11.1-15Minimum Standards for Provision of Transportation 75-03-11.1-16Minimum Emergency Evacuation and Disaster Plan 75-03-11.1-17Fire Inspections 75-03-11.1-18Minimum Sanitation and Safety Requirements 75-03-11.1-19Minimum Requirements Regarding Space and Lighting 75-03-11.1-20Program Requirements 75-03-11.1-21Minimum Standards for Food and Nutrition 75-03-11.1-22Records 75-03-11.1-23Discipline - Punishment Prohibited 75-03-11.1-24Specialized Types of Care and Minimum Requirements 75-03-11.1-25Minimum Requirements for Care of a Child With Special Needs 75-03-11.1-26Minimum Provisions Regarding Emergency Care for Children 75-03-11.1-27Effect of Conviction on Licensure and Employment 75-03-11.1-28Child Abuse and Neglect Decisions 75-03-11.1-29Correction of Violations 75-03-11.1-30Fiscal Sanctions 75-03-11.1-31Appeals 75-03-11.1-32Appeals [Repealed] 75-03-11.1-01. [Reserved] 75-03-11.1-02. [Reserved] 75-03-11.1-03. Definitions.

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-11.1-02. In addition, as used in this chapter, unless the context or subject matter otherwise requires:

1."Annual" is defined as the provider's licensing year.

2."Application" means all forms the department requires when applying or reapplying for a license.

3."Aquatic activity" means an activity in or on a body of water, either natural or manmade, including rivers, lakes, streams, swimming pools, and water slides.

4."Attendance" means the total number of children present at any one time at the facility.

5."Child with special needs" means a child whose medical providers have determined that the child has or is at risk of chronic physical, developmental, behavioral, or emotional conditions.

6."Director" means an individual responsible for overseeing the general operation of, and implementing the policies and procedures of, the school-age child care program.

7."Emergency designee" means an individual designated by the school-age child care program to be a backup staff member for emergency assistance or to provide substitute care.

8."Medication" means any drug or remedy which is taken internally or orally, inhaled, or applied topically.

9."Operator" means the person that who has operational responsibility for the school-age child care program and premises at which the school-age child care program operates.

10."Owner" means the person that has legal responsibility for the early childhood program and premises at which the early childhood service operates.

11."Substitute staff" means staff who work less than thirty-two hours per month and are not regularly scheduled for work.

12."Supervisor" means any individual with the responsibility for organizing and supervising daily program activities.

13."Volunteer" means an individual who visits or provides an unpaid service or visit, including a firefighter for fire safety week, a practicum student, or a foster grandparent.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; April 1, 2016; January 1, 2022; January 1, 2023; April 1, 2024.

Law Implemented: NDCC 50-11.1-02 75-03-11.1-04. Effect of licensing and display of license.

1.The issuance of a license to operate a school-age child care program is evidence of compliance with the standards contained in this chapter and North Dakota Century Code

chapter 50-11.1 at the time of licensure.

2.The current license must be displayed prominently in the premises to which it applies.

3.The license must specify the maximum number of children for whom the school-age child care program may provide care. The school-age child care program may not admit a greater number of children than the license allows.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; January 1, 2022.

Law Implemented: NDCC 50-11.1-03, 50-11.1-04 75-03-11.1-05. Denial or revocation of license.

1.The department may deny or revoke a license under the terms and conditions of North Dakota Century Code sections 50-11.1-04, 50-11.1-06.2, 50-11.1-09, and 50-11.1-10.

2.If an operator appeals an action to revoke a license, the operator may continue the operation of the school-age child care program pending the final administrative determination or until the license expires, whichever occurs first; provided, however, that this subsection does not limit the actions the department may take pursuant to North Dakota Century Code sections 50-11.1-07.8 and 50-11.1-12.

3.The department may revoke a license to operate a school-age child care program without first issuing a correction order or simultaneously with a suspension if continued operation would jeopardize the health and safety of the children present or would violate North Dakota Century Code section 50-11.1-09.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

Law Implemented: NDCC 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09, 50-11.1-10 75-03-11.1-06. Provisional license.

1.The department may issue a provisional license for the operation of a school-age child care program although the applicant or owner fails to, or is unable to, comply with all applicable standards and rules of the department.

2.A provisional license must:

a.State that the owner has failed to comply with all applicable standards and regulations of the department;

b.State the items of noncompliance;

c.Expire at a set date, not to exceed six months from the date of issuance; and

d.Be exchanged for an unrestricted license, which bears an expiration date of one year from the date of issuance of the provisional license, after the applicant or owner demonstrates compliance, satisfactory to the department, with all applicable standards and rules.

3.The department may issue a provisional license only to an applicant or owner who has waived, in writing:

a.The right to a written statement of charges as to the reasons for the denial of an unrestricted license; and

b.The right to an administrative hearing, in the manner provided in North Dakota Century Code chapter 28-32, concerning the nonissuance of an unrestricted license, either at the time of application or during the period of operation under a provisional license.

4.Any provisional license issued must be accompanied by a written statement of violations signed by the department and must be acknowledged in writing by the applicant or owner.

5.Subject to the exceptions contained in this section, a provisional license entitles the owner to all rights and privileges afforded the owner of an unrestricted license.

6.The department may not issue a provisional license if the school-age child care program is not in compliance with section 75-03-11.1-17 or 75-03-11.1-18.

7.The owner shall display prominently the provisional license and agreement.

8.The owner shall provide parents written notice that the school-age child care program is operating on a provisional license and the basis for the provisional license.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; July 1, 2020; April 1, 2024.

Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-08 75-03-11.1-06.1. Restricted license.

The department may issue a restricted license:

1.To restrict an individual's presence when children are in care;

2.To restrict a pet or animal from areas accessible to children; or

3.When necessary to inform parents that the owner is licensed, but is restricted to operating in certain rooms or floors of the facility or restricted from using specific outdoor space of the facility.

History: Effective January 1, 2011; amended effective April 1, 2024.

Law Implemented: NDCC 50-11.1-04 75-03-11.1-07. Application for and nontransferability of school-age child care program license.

1.An applicant shall submit an application for a license to the department. Application must be made in the form and manner prescribed by the department.

2.A license issued under this chapter is nontransferable and is valid only for the premises indicated on the license.

3.An application for a new license must be filed upon change of owner or location.

4.The department may not issue more than one in-home registration, self-declaration, or license per residence. A residence means real property that is typically used as a single family dwelling.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; January 1, 2013; July 1, 2020; January 1, 2022; April 1, 2024.

Law Implemented: NDCC 50-11.1-03, 50-11.1-04, 50-11.1-06.2, 50-11.1-07, 50-11.1-08 75-03-11.1-08. Duties of school-age child care program operator.

The operator of a school-age child care program is responsible for compliance with the requirements set forth in this chapter and North Dakota Century Code chapter 50-11.1. The operator:

1.Shall designate a qualified director, shall delegate appropriate duties to the director, and shall:

a.Ensure that the director is present at the school-age child care program at least sixty percent of the time that the program is open. If the operator has legal responsibility and the administrative authority over two or more school-age child care programs, a director shared between two or more school-age child care programs shall be present a combined total of sixty percent of the school-age programs' hours of operation.

b.Ensure that when the director and designated acting director are not present at the program, an individual who meets the qualifications of a supervisor is on duty.

c.Ensure that the individual designated as an acting director for longer than thirty consecutive days meets the qualifications of a school-age child care program director.

d.Ensure that if the operator of the school-age child care program is also the director, that the operator meets the qualifications of a director set forth in section 75-03-11.1-08.1;

2.Shall provide an environment that is physically and socially adequate for children;

3.Shall notify the department of any major changes in the operation of, or in the ownership or governing body of the school-age child care program, including staff member changes;

4.Shall ensure that the school-age child care program carries liability insurance against bodily injury and property damage;

5.Shall formulate written policies and procedures for the operation of the school-age child care program relating to:

a.Hiring practices and personnel policies for all staff members;

b.Methods for obtaining references and employment histories of staff members;

c.Methods of conducting staff member performance evaluations;

d.Children's activities, care, and enrollment;

e.The responsibilities and rights of staff members and parents;

f.An explanation of how accidents and illnesses may be handled;

g.The methods of developmentally appropriate discipline and guidance techniques that are to be used;

h.The process for a parent or staff member to report a complaint, a suspected licensing violation, and suspected child abuse or neglect;

i.The care and safeguarding of personal belongings brought to the school-age child care program by a child or by another on a child's behalf;

j.Procedure for accountability when a child fails to arrive as expected at the school-age child care program; and

k.Transportation procedures, if the operator provides transportation;

6.Shall maintain enrollment, attendance, health, and other required records;

7.May select an emergency designee;

8.Shall maintain necessary information to verify staff member qualifications and to ensure safe care for the children in the school-age child care program;

9.Shall inform parents of enrolled children and other interested parties about the school-age child care program's goals, policies, procedures, and content of the program;

10.Shall advise parents of enrolled children of the school-age child care program's service fees, operating policies and procedures, location, and the name, address, and telephone number of the operator and the director;

11.Shall provide parents of enrolled children information regarding the effective date, duration, scope, and impact of any significant changes in the school-age child care program's services;

12.Shall ensure that the school-age child care program is sufficiently staffed at all times to meet the child to staff ratios for children in attendance and that no more children than the licensed capacity are served at any one time;

13.Shall ensure that the school-age child care program has sufficient qualified staff members available to substitute for regularly assigned staff who are sick, on leave, or who are otherwise unable to be on duty;

14.Shall ensure that there are signed written agreements with the parents of each child that specify the fees to be paid, methods of payment, and policies regarding delinquency of fees;

15.Shall provide parents with unlimited access and opportunities for parents to observe their children while in care and provide parents with regular opportunities to meet with staff members responsible for caring for or teaching children before and during enrollment to discuss their children's needs. Providing unlimited access does not prohibit a school-age child care program from locking its doors when children are in care;

16.Shall provide parents, upon request, with progress reports on their children;

17.Shall ensure that provisions are made for safe arrival and departure of all children, and a system is developed to ensure that children are released only as authorized by the parent;

18.Shall develop a system to ensure the safety of children whose parents have agreed to allow them to leave the program without supervision, which must include, at a minimum:

a.Written permission from the parents allowing a child to leave the program without supervision; and

b.Consistent sign-out procedures for released children;

19.Shall report immediately, as a mandated reporter, any suspected child abuse or neglect as required by North Dakota Century Code chapter 50-25.1;

20.Shall meet the qualifications of the director set forth in section 75-03-11.1-08.1 if the operator of the school-age child care program is also the director;

21.Shall ensure that staff members responsible for caring for or teaching children under the age of eighteen are directly supervised by an adult staff member;

22.Shall report to the department within twenty-four hours:

a.The death or serious accident or illness requiring hospitalization of a child while in the care of the program or attributable to care received in the program;

b.An injury to any child which occurs while the child is in the care of the program and which requires medical treatment;

c.Poisonings or errors in the administration of medication;

d.Closures or relocations of child care programs due to emergencies; and

e.Fire that occurs or explosions that occur in or on the premises of the school-age child care program; and

23.Shall ensure that each child is released only to the child's parent, legal custodian, guardian, or an individual who has been authorized by the child's parent, legal custodian, or guardian.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; January 1, 2013; April 1, 2016; April 1, 2018; July 1, 2020; January 1, 2022; April 1, 2024. 75-03-11.1-08.1. Minimum qualifications of a school-age child care program director.

A director shall:

1.Be an adult of good physical, cognitive, social, and emotional health, and shall use mature judgment when making decisions impacting the quality of child care;

2.Possess knowledge and experience in management and interpersonal relationships;

3.Hold at least one of the following qualifications, in addition to those set out in subsection 1:

a.A bachelor's degree in the field of early childhood education, child development, or elementary education;

b.A bachelor's degree with at least six months of experience in a school-age child care program or similar setting and one of the following:

(1)Eight semester hours or twelve quarter hours of department-approved early childhood education, child development, or elementary education;

(3)A director's credential approved by the department;

c.An associate degree in the field of early childhood education or child development with at least six months of experience in a school-age child care program or similar setting;

d.An associate's degree with at least one year of experience in a school-age child care program and one of the following:

(1)Eight semester hours or twelve quarter hours of department-approved early childhood education, child development, or elementary education;

(3)A director's credential approved by the department;

e.A current certification as a child development associate or similar status with at least one year of experience in a school-age child care program or similar setting;

f.Certification from a Montessori teacher training program with one year of experience in a Montessori school, school-age child care program, or similar setting, and at least one of the following:

(1)Eight semester hours or twelve quarter hours of department-approved child development, early childhood education, or elementary education;

(3)A director's credential approved by the department; and

4.Certify annual completion of a minimum of thirteen hours of department-approved training related to child care, including one hour on mandated reporter of suspected child abuse or neglect. The same training courses may be counted toward licensing annual requirements only if three years has passed since the last completion date of that training course, with the exception of mandated reporter annual training.

History: Effective January 1, 1999; amended effective January 1, 2011; January 1, 2013; April 1, 2018; 75-03-11.1-08.2. Duties of school-age child care program director.

The school-age child care program director, in collaboration with the school-age child care program operator, shall:

1.Plan, supervise, and conduct daily activities in the school-age child care program;

2.Maintain enrollment, health, attendance, and other required records;

3.Screen, schedule, supervise, and be responsible for the conduct of staff members while the staff members are on duty;

4.Designate a supervisor for each school-age child care program site; and

5.Perform other duties as delegated by the operator.

History: Effective January 1, 1999; amended effective January 1, 2011. 75-03-11.1-08.3. Minimum qualifications of school-age child care program supervisor.

1.A supervisor shall hold at least one of the following qualifications:

a.An associate degree in the field of early childhood development or elementary education, or a secondary degree with an emphasis on middle school or junior high training;

b.Current certification as a child development associate;

c.Certification from a Montessori teacher training program; or

d.A high school diploma or high school equivalency with at least one year of experience in a child care program or similar setting.

2.The supervisor shall demonstrate the ability to work with children and the willingness to increase skills and competence through experience, training, and supervision.

3.The supervisor shall be an adult of good physical, emotional, social, and cognitive health, and shall use mature judgment when making decisions impacting the quality of child care. A supervisor must possess knowledge and experience in building and maintaining interpersonal relationships.

4.The supervisor shall certify annual completion of a minimum of thirteen hours of department-approved training related to child care annually, including one hour on mandated reporter of suspected child abuse or neglect. The same training courses may be counted toward licensing annual requirements only if three years has passed since the last completion date of that training course, with the exception of mandated reporter annual training.

History: Effective January 1, 1999; amended effective January 1, 2011; April 1, 2014; April 1, 2018; 75-03-11.1-08.4. Minimum qualifications for all school-age child care program staff members responsible for caring for or teaching children.

1.Each staff member shall be at least sixteen years of age, shall be an individual of good physical, cognitive, social, and emotional health, and shall use mature judgment when making decisions impacting the quality of child care. 2.a.Each staff member shall certify the staff member's own annual completion of department-approved training related to child care as set forth below:

(1)Staff members working more than thirty hours per week shall certify a minimum of thirteen hours of department-approved training annually;

(2)Staff members working fewer than thirty hours and at least twenty hours per week shall certify a minimum of eleven hours of department-approved training annually;

(3)Staff members working fewer than twenty hours and at least ten hours per week shall certify a minimum of nine hours of department-approved training annually; and (4)Staff members working fewer than ten hours per week shall certify a minimum of seven hours of department-approved training annually.

b.Each staff member shall certify annual completion of one hour of department-approved mandated reporter of suspected child abuse or neglect training.

c.The same training courses may be counted toward licensing annual requirements only if at least three years has passed since the last completion date of that training course, with the exception of subdivision b.

d.Substitute staff and emergency designees are exempt from the annual training requirement with the exception of subdivision b.

3.All staff members responsible for caring for or teaching children shall certify completion of a department-approved basic child care course within ninety days of employment.

4.The director shall provide newly hired staff members with responsibilities for caring for or teaching children and orientation to the school-age child care program during the first week of employment. The director shall document orientation of each staff member on an orientation certification form. The orientation must address:

a.Emergency health, fire, and safety procedures for the school-age child care program;

b.The importance of handwashing and sanitation procedures to reduce the spread of infection and disease among children and staff members;

c.Any special health or nutrition instructions of the children assigned to the staff member;

d.Any special needs of the children assigned to the staff member;

e.The planned program of activities at the school-age child care program;

f.Rules and policies of the school-age child care program; and

g.Child abuse and neglect reporting laws.

5.Staff members shall ensure safe care for children under supervision. For the school-age child, supervision means a staff member responsible for caring for or teaching children being available for assistance and care so that the child's health and safety are protected.

6.A staff member may not place a child in an environment that would be harmful or dangerous to the child's physical, cognitive, social, or emotional health.

7.All staff members shall be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in infant and pediatric cardiopulmonary resuscitation and the use of an automated external defibrillator by the American heart association, American red cross, or other similar cardiopulmonary resuscitation and automated external defibrillator training programs that are approved by the department.

8.All staff members shall be currently certified within ninety days of employment and prior to staff member having unsupervised access to children under care, in pediatric first aid by a program approved by the department.

History: Effective January 1, 1999; amended effective January 1, 2011; April 1, 2016; April1, 2018;

January 1, 2023; April 1, 2024. 75-03-11.1-08.5. Minimum qualifications for volunteers.

If a volunteer is providing child care, the volunteer shall meet the qualifications of a staff member responsible for caring for or teaching children and shall receive orientation for all assigned tasks.

History: Effective January 1, 1999; amended effective January 1, 2011. 75-03-11.1-08.6. Duties of school-age child care program supervisor.

The supervisor, in collaboration with the director, shall:

1.Communicate with parents about the individual needs of their children, including any special concerns the parents may have;

2.Plan daily and weekly schedules of activities and make those plans available to parents; and

3.Ensure that program policies are adhered to in the classes and groups assigned to the supervisor.

History: Effective January 1, 2011. 75-03-11.1-09. Staffing and group size requirements.

1.The number of staff members responsible for caring for or teaching children and their responsibilities must reflect program requirements and individual differences in the needs of the children enrolled, and may permit mixed groups, if necessary. Service personnel engaged in housekeeping and food preparation may not be counted in the child to staff ratio for periods of time when they are engaged in housekeeping or food preparation. The operator shall ensure that a child with special needs requiring more than usual care and supervision has adequate care and supervision without adversely affecting care provided to the other children in the school-age child care program.

2.Staffing requirements and maximum group size.

a.The operator of a school-age child care program shall ensure that the program is sufficiently staffed at all times to meet the child to staff ratios for children in attendance, and that no more children than the licensed capacity are served at one time. One staff member may care for or teach a maximum of twenty children, with a maximum group size of forty children.

b.A staff member may be counted in the required ratio only for the time the staff member is directly responsible for a group of children.

c.The director shall ensure that staff members responsible for caring for or teaching children and children under the age of eighteen are supervised by an adult at all times while in the school-age child care program.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; January 1, 2022.

Law Implemented: NDCC 50-11.1-02.1, 50-11.1-04, 50-11.1-08 75-03-11.1-10. [Reserved] 75-03-11.1-11. [Reserved] 75-03-11.1-12. [Reserved] 75-03-11.1-13. Minimum health requirements for all applicants, operators, and staff members.

1.If the physical, cognitive, social, or emotional health capabilities of an applicant, operator, or staff member appear questionable, the department may require the individual to present evidence of the individual's ability to provide the required care based on a formal evaluation.

The department is not responsible for the costs of any required evaluation.

2.A staff member or household member may not use or be under the influence of any illegal drugs or alcoholic beverages while caring for children.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; January 1, 2023. 75-03-11.1-14. [Reserved] 75-03-11.1-15. Minimum standards for provision of transportation.

1.The operator shall establish a written policy governing the transportation of children to and from the school-age child care program, if the school-age child care program provides transportation. This policy must specify who is to provide transportation and how parental permission is to be obtained for activities which occur outside the school-age child care program. If the school-age child care program provides transportation, the operator shall inform the parents of any insurance coverage on the vehicles. Any vehicle used for transporting children must be in safe operating condition and in compliance with state and local laws.

2.When transportation is provided by a school-age child care program, children must be protected by adequate staff member supervision, safety precautions, and liability insurance.

a.Staffing requirements must be maintained to assure the safety of the children while being transported.

b.A child may not be left unattended in a vehicle.

3.Children must be instructed in safe transportation conduct as appropriate to their age and stage of development.

4.The driver must be at least eighteen years of age and shall comply with all relevant federal, state, and local laws, including child restraint system laws.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; 75-03-11.1-16. Minimum emergency evacuation and disaster plan.

1.The operator shall establish and post an emergency disaster plan for the safety of the children in care. The operator shall develop written disaster plans in cooperation with local emergency management agencies. The plan must include:

a.Emergency procedures, including the availability of emergency food, water, and first-aid supplies;

b.Procedures for evacuation, relocation, shelter-in-place, and lockdown;

c.Communications and reunification with families;

d.Continuity of operations; and

e.Accommodations for infants, toddlers, children with disabilities, and children with chronic medical conditions.

2.Fire and emergency evacuation drills must be performed monthly.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; April 1, 2018;

January 1, 2022. 75-03-11.1-17. Fire inspections.

1.The operator shall ensure that annual fire inspections are completed by local or state fire authorities. The operator shall correct or have corrected any code violations noted by the fire inspector and shall file reports of the inspections and any corrections with the department.

2.The operator shall ensure that the school-age child care program is equipped with sufficient smoke detectors and fire extinguishers, as recommended by the local fire department or state fire marshal.

3.The operator shall ensure that the school-age child care program provides:

a.The fire inspector's written statement of compliance with the local fire code, if there is one; or

b.The fire inspector's written statement that the school-age child care program has been inspected and that the inspector is satisfied that the school-age child care program meets minimum fire and safety standards.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; July 1, 2020; April 1, 2024. 75-03-11.1-18. Minimum sanitation and safety requirements.

1.The operator shall ensure that school-age child care programs for more than thirty children, where meals are prepared, comply with the public health division of the department child care food service establishment license requirements pursuant to North Dakota Century Code

chapter 23-09. The operator shall correct any code violations noted by the health inspector and shall file reports of the inspections and corrections made with the department. If only snacks or occasional cooking projects are prepared, an inspection by the public health division of the department is not required.

2.The operator shall ensure that the school-age child care program's building, grounds, and equipment are located, cleaned, and maintained to protect the health and safety of children.

The operator shall establish routine maintenance and cleaning procedures to protect the health of the children and the staff members.

3.The operator shall ensure that the school-age child care program ground areas are free from accumulations of refuse, standing water, unprotected wells, debris, flammable material, and other health and safety hazards.

4.The operator shall ensure that exterior play areas in close proximity to busy streets and other unsafe areas are contained or fenced, or have natural barriers to restrict children from those unsafe areas. Outdoor play areas must be inspected daily for hazards and necessary maintenance.

5.The operator shall ensure that garbage stored outside is kept away from areas used by children and is kept in containers with lids. Open burning is not permitted. The operator shall keep indoor garbage in covered containers. The operator may allow paper waste to be kept in open waste containers.

6.The operator shall ensure that wading pools used by the school-age child care program are strictly supervised and are emptied, cleaned, and sanitized daily.

7.The operator shall ensure that all swimming pools are approved annually by the local health unit.

8.Aquatic activities:

a.The operator shall have policies which ensure the health and safety of children in care while participating in aquatic activities, including types of aquatic activities the program may participate in, staff-to-child ratios appropriate to the ages and swimming ability of children participating in aquatic activities, and additional safety precautions to be taken.

b.The operator may not permit any child to participate in an aquatic activity without written parental permission, which includes parent disclosure of the child's swimming ability.

9.The operator shall ensure that all school-age child care program buildings erected before January 1, 1970, which contain painted surfaces in a peeling, flaking, chipped, or chewed condition in any area where children may be present, have painted surfaces repainted or shall submit evidence that the paints or finishes do not contain hazardous levels of lead-bearing substances. For the purposes of this chapter, "hazardous levels of lead-bearing substances" means any paint, varnish, lacquer, putty, plaster, or similar coating of structural material which contains lead or its compounds in excess of seven-tenths of one milligram per square centimeter, or in excess of five-tenths of one percent in the dried film or coating, when measured by a lead-detecting instrument approved by the department of environmental quality.

10.The operator shall ensure that indoor and outdoor equipment, toys, and supplies are safe, strong, nontoxic, and in good repair. The operator shall ensure that all toys are kept clean and in a sanitary condition. Books and other toys that are not readily cleanable must be sanitized as much as possible without damaging the integrity or educational value of the item.

11.The operator shall ensure that indoor floors and steps are not slippery and do not have splinters. The operator shall ensure that steps and walkways are kept free from accumulations of water, ice, snow, or debris.

12.The operator shall ensure that elevated areas, including stairs and porches, have railings and safety gates where necessary to prevent falls.

13.If the school-age child care program is providing care to children in wheelchairs, the operator shall provide doors of sufficient width and construction to accommodate any children in wheelchairs who are receiving care.

14.The operator shall ensure that exit doorways and pathways are not blocked.

15.The operator shall ensure that light bulbs in areas used by children are properly shielded or shatterproof.

16.The operator shall ensure that combustible materials are kept away from light bulbs and other heat sources.

17.The operator shall ensure adequate heating, ventilation, humidity, and lighting for the comfort and protection of the health of the children. All heating devices must be approved by local fire authorities. During the heating season when the school-age child care program is occupied by children, the room temperature must not be less than sixty-five degrees Fahrenheit [18 degrees Celsius] and not more than seventy-five degrees Fahrenheit [24 degrees Celsius].

18.The operator shall ensure that school-age child care program bathroom sinks, toilets, tables, chairs, and floors are cleaned daily.

19.The operator shall ensure that personal items including combs and toothbrushes are individually identified and stored in a sanitary manner.

20.Staff members and children shall wash their hands, according to recommendations by the federal centers for disease control and prevention, before preparing or serving meals, after using toilet facilities, and after any other procedure that may involve contact with bodily fluids.

Hand soap and paper towels, sanitary hand-drying equipment, or single-use or individually designated cloth towels must be available at each sink.

21.The operator shall ensure that potential hazards, such as guns, household cleaning chemicals, uninsulated wires, medicines, poisonous plants, and open stairways are not accessible to children. The operator shall keep guns and ammunition in locked storage, each separate from the other, or shall use trigger locks. The operator shall ensure other weapons and dangerous sporting equipment, such as bows and arrows, are not accessible to children.

22.Water supply standards:

a.The operator shall ensure that the school-age child care program has a drinking supply from an approved community water system or from a source tested and approved annually by the department of environmental quality;

b.Drinking water must be easily accessible to the children and must be provided by either an angle-jet drinking fountain with mouthguard or by a running water supply with individual, single-serve drinking cups; and

c.The school-age child care program must have hot and cold running water.

23.Toilet and sink facilities:

a.The operator shall provide toilet and sink facilities which are easily accessible to the areas used by the children and staff members;

b.Toilets must be located in rooms separate from those used for cooking, eating, and sleeping;

c.A minimum of one flush toilet must be provided for each fifteen children;

d.The operator shall provide separate restrooms for boys and girls and shall ensure that partitions are installed to separate toilets in these restrooms;

e.The operator shall provide at least one handwashing sink per toilet room facility; and

f.The operator shall provide safe step stools to allow children to use standard-size toilets and sinks or the operator shall ensure the availability of child-size toilets and sinks.

24.The operator of a school-age child care program not on a municipal or public water supply or wastewater disposal system shall ensure the school-age child care program's sewage and wastewater system has been approved by the department of environmental quality.

25.Laundry:

a.If the school-age child care program provides laundry service for common use linens, towels, or blankets, it shall have adequate space and equipment for safe and effective operation;

b.The operator shall ensure that soiled linens are placed in closed containers or hampers during storage and transportation;

c.The operator shall ensure that in all new or extensively remodeled school-age child care programs, the handling, sorting, or washing of soiled linens or blankets takes place in a designated area that is separated by a permanent partition from food preparation, serving, and kitchen areas;

d.The operator shall ensure that in an existing school-age child care program where physical separation of laundry and kitchen areas is impractical, procedures are developed to prohibit the washing or transportation of laundry while meals are being prepared or served;

e.The operator shall ensure that sorting of laundry is not allowed in food preparation, serving, or kitchen areas;

f.If the school-age child care program provides laundry service for common use linens, towels, or blankets, or if different children's clothing, towels, or blankets are laundered together, the water temperature must be greater than one hundred forty degrees Fahrenheit [60 degrees Celsius]; and

g.The operator shall ensure that if the water temperature is less than one hundred forty degrees Fahrenheit [60 degrees Celsius], bleach or sanitizer is used in the laundry process during the rinse cycle or the program shall use a clothes dryer that reaches a temperature of at least one hundred forty degrees Fahrenheit [60 degrees Celsius].

26.The operator shall take steps to keep the school-age child care program free of insects and rodents. Chemicals for insect and rodent control may not be applied in areas accessible to children when children are present in the school-age child care program. Insect repellant may be applied outdoors on children with written parental permission.

27.Pets and animals:

a.The operator shall ensure that only small pets that are contained in an aquarium or other approved enclosed container, cats, and dogs are present in areas occupied by children.

Wire cages are not approved containers. Other indoor pets and animals must be restricted by a solid barrier and must not be accessible to children. The department may restrict any pet or animal from the premises that may pose a risk to children or may approve additional pets that do not pose a health or safety risk to children.

b.The operator shall ensure that animals are maintained in good health and appropriately immunized. Pet immunizations must be documented with a current certificate from a veterinarian.

c.The operator shall ensure parents are aware of the presence of pets and animals in the school-age child care program.

d.The operator shall notify parents immediately if a child is bitten or scratched and skin is broken.

e.A staff member responsible for caring for or teaching children shall supervise closely all contact between pets or animals and children. The staff member shall remove the pet or animal immediately if the pet or animal shows signs of distress or the child shows signs of treating the pet or animal inappropriately.

f.The operator shall ensure that pets, pet feeding dishes, cages, and litter boxes are not present in any food preparation, food storage, or serving areas. The operator shall ensure that pet and animal feeding dishes and litter boxes are not placed in areas accessible to children.

g.The operator shall ensure that indoor and outdoor areas accessible to children are free of animal excrement.

h.The operator shall ensure that the school-age child care program is in compliance with all applicable state and local ordinances regarding the number, type, and health status of pets or animals.

28.The operator shall ensure that beds, cots, mats, or cribs, complete with a mattress or pad, are available and the operator shall ensure:

a.Pillows and mattresses have clean coverings.

b.Sheets and pillowcases are changed as often as necessary for cleanliness and hygiene, at least weekly.

c.If beds, cots, mats, or cribs are used by different children, sheets and pillowcases are laundered before use by other children.

d.Cots, mats, or cribs are cleaned as often as necessary for cleanliness and hygiene, at least weekly, and after each use if used by different children;

e.That cots, mats, and cribs are single occupancy.

f.Each bed, cot, or mat has sufficient blankets available.

g.That aisles between beds, cots, mats, or cribs are a minimum space of two feet [60.96 centimeters] and are kept free of all obstructions while beds, cots, mats, or cribs are occupied.

h.Provide separate storage for personal blankets or coverings.

i.That mattresses and sheets are properly fitted.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; January 1, 2013;

April 1, 2016; April 1, 2018; July 1, 2020; January 1, 2023; April 1, 2024. 75-03-11.1-19. Minimum requirements regarding space and lighting.

1.Each school-age child care program shall provide adequate indoor and outdoor space for the daily activities of all children within the licensed capacity of the school-age child care program.

2.Adequate space must include a minimum of thirty-five square feet [3.25 square meters] of space per child indoors and a minimum of seventy-five square feet [6.97 square meters] of play space per child outdoors. Indoor space considered must exclude bathrooms, pantries, passageways leading to outdoor exits, areas occupied by furniture or appliances that children should not play on or under, and space children are not permitted to occupy. If available outdoor play space does not accommodate the licensed capacity of the school-age child care program at one time, the total appropriate outdoor space available must not be less than what is required for the number of children in the largest class or group of the program multiplied by seventy-five square feet [6.96 square meters]. Operators who provide seventy-five square feet [6.97 square meters] of separate indoor recreation space per child for the largest class or group are exempt from the outdoor space requirement. The operator shall prepare a written schedule of outdoor or separate indoor recreation space playtime which limits use of the play area to its capacity, giving every child an opportunity to play daily.

3.The school-age child care program must be properly lighted. If the lighting of the school-age child care program appears questionable, the department may require the operator to obtain additional lights so that a minimum of sixty-five foot-candles of light is used in the areas generally used for children's activities.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; April 1, 2014. 75-03-11.1-20. Program requirements.

1.The school-age child care program operator shall have a plan of daily individual or small group activities appropriate to the ages and needs of the children in the school-age child care program. The plan must include activities which foster sound social, cognitive, emotional, and physical growth, and the plan must be developed with consideration of parental input. A written daily routine including mealtimes, rest times, planned developmentally appropriate activities, free play, and outside time must be available to parents. The daily routine must be flexible enough to allow for spontaneous activity as appropriate.

2.The plan must be flexible and subject to modification for individual child differences.

3.The plan must be written and varied to promote the physical and emotional well-being of the children, to encourage the acquisition of information and knowledge, and to foster the development of language skills, concepts, self-discipline, and problem-solving activities. The plan must describe how the activities planned meet the children's developmental needs, including the special needs of children. The written plan must be made available to parents.

4.The plan must include firsthand experiences for children to learn about the world in which they live.

5.Learning experiences must be conducted in consultation with parents to ensure harmony with the lifestyle and cultural background of the children.

6.The plan must provide a balance of quiet and active indoor and outdoor group and individual activities. A time for supervised child-initiated and self-selected activity must be established.

7.If the children are allowed to assist in any food preparation, the activity must be limited to use of equipment and appliances that do not present a safety hazard. Children may not be allowed in the kitchen or laundry area unsupervised.

8.A variety of games, toys, books, crafts, and other activities and materials must be provided to enhance the child's intellectual and social development and to broaden the child's life experience. Each school-age child care program must have enough play materials and equipment so that at any one time, each child in attendance can be involved individually or as a group.

9.The cultural diversity of the children must be reflected in the plan through incorporation of their language, food, celebration, and lifestyles, if appropriate.

10.Equipment and furniture must be durable and safe, and must be appropriately adapted for children's use.

11.Sufficient space accessible to children must be provided for each child's personal belongings.

12.The school-age child care program shall supplement, augment, and reinforce the child's activities at home and school.

13.At the time of enrollment, the director or supervisor shall discuss with the parents the children's habits, activities, and schedules while at home and in school and the parents' special concerns about their past and future behavior and development. The schedule and activities must be designed to complement and supplement the children's experiences at home and in school.

14.Staff members responsible for caring for or teaching children shall encourage parents to visit the facility, observe, and participate in the care of their children.

15.The director or supervisor shall contact parents to offer them meaningful opportunities to participate in general program policymaking.

16.Staff members shall stress hygiene practices appropriate for a child's age and development.

17.The director or supervisor shall contact parents to exchange information concerning the child and any concerns about the health, development, or behavior of the child. These concerns must be communicated to the parent promptly and directly.

18.Each child's cultural and ethnic background and primary language or dialect must be respected by the staff members.

19.Each school-age child care program shall have a designated area where a child can sit quietly or lie down to rest.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999; 75-03-11.1-21. Minimum standards for food and nutrition.

1.When the operator is responsible for providing food to children, the food supplied must meet United States department of agriculture standards, and must be properly prepared, sufficient in amount, nutritious, varied according to diets of the children enrolled, and served at appropriate hours. Food that is prepared, served, or stored in a school-age child care program must be treated in a sanitary and safe manner with sanitary and safe equipment.

2.When parents bring sack lunches for their children, the operator shall supplement lunches when necessary to provide nutritious and sufficient amounts of food for children, and shall provide adequate and appropriate refrigeration and storage as required.

3.Children in care for more than three hours shall receive either a snack or meal, whichever is appropriate to that time of day. The operator shall serve nutritious meals to children in care during any normal mealtime hour.

4.When the operator is responsible for providing food to children, menus must be prepared on a weekly basis and made available to the parents, the department, and other appropriate individuals.

5.The operator shall consider information provided by the children's parents as to the children's eating habits, food preferences, or special needs in creating the feeding schedules and in tailoring menus.

6.The operator shall serve snacks and meals to children in a manner commensurate with their age, using appropriate foods, portions, dishes, and eating utensils.

7.The operator or staff members may encourage children to eat the food served, but the operator or staff members may not coerce or force-feed children.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; July 1, 2020; 75-03-11.1-22. Records.

1.The operator shall keep a copy of this chapter on the premises of the school-age child care program and shall make it available to staff members at all times.

2.The operator shall maintain the following records and shall keep copies at the school age program premises where the child is enrolled:

a.The child's full name, birth date, and current home address;

b.Legal names of the child's parents, and current business and personal telephone numbers where they can be reached;

c.Names and telephone numbers of individuals who may assume responsibility for the child if the individual legally responsible for the child cannot be reached immediately in an emergency;

d.A written statement from the parents authorizing emergency medical care;

e.Names and telephone numbers of individuals authorized to take the child from the school-age child care program;

f.Verification that the child has received all immunizations appropriate for the child's age, as prescribed by the public health division of the department, or have on file a document stating that the child is medically exempt or exempt from immunizations based on religious, philosophical, or moral beliefs; and

g.A current health assessment or a health assessment statement completed by the parent, obtained at the time of initial enrollment of the child which must indicate any special precautions for diet, medication, or activity. This assessment must be completed annually.

3.The operator shall record and verify the identification of the child through official documentation such as a certified birth certificate, certified school records, passport, or any other documentary evidence the operator considers appropriate proof of identity and shall comply with North Dakota Century Code section 12-60-26.

4.The operator shall ensure that all records, photographs, and information maintained with respect to children receiving child care services are kept confidential, and that access is limited to staff members, the parents, and to the following, unless protected by law:

a.The department representatives;

b.Individuals having a definite interest in the well-being of the child concerned and who, in the judgment of the department, are in a position to serve the child's interests should that be necessary; and

c.Individuals who possess written authorization from the child's parent. The school-age child care program shall have a release of information form available and shall have the form signed prior to the release of information.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; April 1, 2016;

January 1, 2022; January 1, 2023; April 1, 2024. 75-03-11.1-23. Discipline - Punishment prohibited.

Disregard of any of the following disciplinary rules or disciplinary measure resulting in physical or emotional injury, neglect, or abuse to any child is grounds for license denial or revocation.

1.The school-age child care program must have a written policy regarding the discipline of children. The operator shall provide the policy to, and discuss the policy with, the staff members before the school-age child care program begins operation or before staff members begin working with children.

2.Discipline must be constructive or educational in nature and may include diversion, separation from the problem situation, talking with the child about the situation, praising appropriate behavior, or gentle physical restraint, such as holding. A child may not be subjected to physical harm, fear, or humiliation.

3.Authority to discipline may not be delegated to children nor may discipline be administered by children.

4.Separation, when used as discipline, must be appropriate to the child's development and circumstances. The child must be in a safe, lighted, well-ventilated room within sight or hearing range of a staff member responsible for caring for or teaching children. A staff member may not isolate a child in a locked room or closet.

5.A child may not be punished for lapses in toilet training.

6.A staff member may not use verbal abuse or make derogatory remarks about a child, or a child's family, race, or religion when addressing a child or in the presence of a child.

7.A staff member may not use profane, threatening, unduly loud, or abusive language in the presence of a child.

8.A staff member may not force-feed a child or coerce a child to eat, unless medically prescribed and administered under a medical provider's care.

9.A staff member may not use deprivation of meals or snacks as a form of discipline or punishment.

10.A staff member, household member, or any other adult at the school-age child care program may not kick, punch, spank, shake, pinch, bite, roughly handle, strike, mechanically restrain, or physically maltreat a child.

11.A staff member may not force a child to ingest substances that would cause pain or discomfort, for example, placing soap in a child's mouth to deter the child from biting other children.

12.A staff member may not withhold active play from children as a means of discipline or punishment, beyond a brief period of separation.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; January 1, 2023.

General Authority: NDCC 50-11.1-01, 50-11.1-08 75-03-11.1-24. Specialized types of care and minimum requirements.

1.Night care.

a.Any school-age child care program offering night care shall provide program modifications for the needs of children and their parents during the night;

b.In consultation with parents, attention must be given by the staff member responsible for caring for or teaching children to provide for a transition into this type of care appropriate to the child's needs;

c.The operator shall encourage parents to leave their children in care or pick them up before and after their normal sleeping period when practical, to ensure minimal disturbance of the child during sleep, with consideration given to the parent's work schedule;

d.The operator shall ensure that comfortable beds and cots, complete with a mattress or pad, are available;

e.The school-age child care program shall require each child in night care to have night clothing and a toothbrush marked for identification; and

f.The operator shall ensure that during sleeping hours, staff members responsible for caring for or teaching children are awake and within hearing range to provide for the needs of children and to respond to an emergency.

2.Drop-in school-age child care.

a.If a school-age child care program serves drop-in children, it shall be sufficiently staffed to effectively handle admission records and explain the policies and procedures of the program and to maintain the proper staff member to child ratio.

b.The operator shall ensure that the program reflects the individual needs of the children who are provided drop-in care.

c.The operator shall ensure that admission records comply with all enrollment requirements contained in section 75-03-11.1-22.

d.The operator shall ensure that admittance procedures provide for a period of individual attention for the child to acquaint the child with the school-age child care program, its equipment, and the staff members.

e.A school-age child care program may not receive drop-in care or part-time children who, when added to the children in regular attendance, cause the school-age child care program to exceed the total number of children for which the school-age child care program is licensed.

3.Drop-in school-age child care programs. An operator shall ensure that a school-age child care program serving only drop-in care children complies with this chapter, but is exempt from the following provisions:

a.Subsections 12, 14, and 15 of section 75-03-11.1-20; subdivision f of subsection 2 of

section 75-03-11.1-22; and subsection 1 of section 75-03-11.1-25; and

b.A school-age child care program serving only drop-in children is exempt from the outdoor space requirements.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; April 1, 2018;

January 1, 2023. 75-03-11.1-25. Minimum requirements for care of a child with special needs.

An operator shall make appropriate accommodations, as required by the Americans with Disabilities Act, to meet the needs of a child with special needs. The operator shall receive documentation of the child's special needs from the parent upon the child's enrollment.

1.When a child with special needs is admitted, the director or supervisor shall consult with the child's parents, and with the parent's permission, the child's source of professional health care, or, when appropriate, other health and professional consultants to gain an understanding of the child's individual needs. The operator shall receive a written health care plan from the child's medical provider or parent with information related to the child's special needs, such as a description of the special needs, definition of the diagnosis, and general information for emergency and required care such as usual medication and procedures.

2.The operator shall ensure staff members responsible for caring for or teaching children receive proper instructions as to the nature of the child's special needs and potential for growth and development.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011.

General Authority: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-08

Law Implemented: NDCC 50-11.1-01, 50-11.1-04 75-03-11.1-26. Minimum provisions regarding emergency care for children.

The school-age child care program shall have written plans to respond to illness, accidents, and emergencies, including burns, serious injury, and ingestion of poison. The operator shall ensure that parents of enrolled children are advised of these plans. Plans must:

1.Establish emergency response procedures;

2.Provide accessible posting of emergency response procedures and training for all staff members concerning those emergency procedures;

3.Require the availability of at least one working flashlight;

4.Require at least one department-approved first-aid kit be maintained and kept in each major activity area, inaccessible to children, yet readily accessible to staff members at all times;

5.Provide a working telephone immediately accessible to staff members with a list of emergency telephone numbers conspicuously posted;

6.Require that the program inform parents in writing of any first aid administered to their child within twenty-four hours of the incident and immediately notify parents of any injury which requires emergency care beyond first aid, and require an injury report to be made a part of the child's record;

7.Require a plan for responding to minor illnesses and minor accidents when children are in the care of the school-age child care program;

8.Require written permission to dispense medication and require proper instructions for the administration of medication be obtained from the parent of a child in the school-age child care program who requires medication:

a.Medication prescribed by a medical provider must be accompanied by the medical provider's written instructions as to its dosage and storage, and labeled with the child's name and date.

b.The program shall keep a written record of the administration of medication, including over-the-counter medication, for each child. Records must include the date and time of each administration, the dosage, the name of the staff member administering the medication, and the name of the child. The program shall include completed medication records in the child's record.

c.Medication must be stored in an area inaccessible to children, and medication stored in a refrigerator must be stored collectively in a spillproof container;

9.Require a supervised, temporary isolation area be designated for a child who is too ill to remain in the school-age child care program, or who has an infectious or contagious disease, with the following procedures being followed when those signs or symptoms are observed:

a.Parents are notified immediately and asked to pick up their child; and

b.First aid is provided and medical care sought, as necessary;

10.Establish and implement practices in accordance with guidance obtained through consultation with local health unit authorities or authorities from the public health division of the department regarding the exclusion and return of children with infectious or communicable conditions. The operator may obtain this guidance directly or through current published material regarding exclusion and return to the school-age child care program;

11.Notify parents, legal custodians, or guardians of a child's exposure to a presumed or confirmed reportable infectious disease;

12.Identify a source of emergency health services readily available to the school-age child care program, including:

a.A prearranged plan for emergency medical care in which parents of enrolled children are advised of the arrangement; and

b.Provisions for emergency transportation, specifically when a child is to be brought to another place for emergency care, an adult staff member responsible for caring for or teaching children shall remain with the child until medical personnel assume responsibility for the child's care and until the parent is notified; and

13.Require information be provided to parents, as needed, concerning child health and social services available in the community.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011; January 1, 2023;

General Authority: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-08

Law Implemented: NDCC 50-11.1-01 75-03-11.1-27. Effect of conviction on licensure and employment.

1.An applicant, operator, director, or supervisor may not be, and a school-age child care program may not employ or allow, in any capacity that involves or permits contact between the emergency designee, substitute staff member, staff member, or household member and any child cared for by the school-age child care program, an operator, emergency designee, substitute staff member, director, supervisor, staff member, or household member who has been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code

section 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department in the case of a school-age child care program applicant, operator, director, supervisor, or household member, or the school-age child care program operator in the case of an emergency designee, substitute staff member, or staff member, determines that the individual has not been sufficiently rehabilitated. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

2.The department has determined that the offenses enumerated in subdivisions a and b of subsection 1 have a direct bearing on the applicant's, operator's, emergency designee's, substitute staff member's, director's, supervisor's, or staff member's ability to serve the public as an operator, emergency designee, substitute staff member, director, supervisor, or staff member.

3.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; in the case of a class B misdemeanor offense described in North Dakota Century Code section 12.1-17-01.2, domestic violence; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

4.The operator shall establish written policies, and engage in practices that conform to those policies, to effectively implement this section before hiring any staff member.

5.An owner shall submit an application for a fingerprint-based criminal history record check at the time of application and within five years from the date of initial approval and at least once every five years thereafter. The owner shall ensure that each staff member submits an application for a fingerprint-based criminal history record check upon hire and within five years from the date of initial approval and at least once every five years thereafter. The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department shall submit a request to the bureau of criminal investigation for a nationwide name-based criminal history record check.

6.Review of fingerprint-based criminal history record check results.

a.If an individual disputes the results of the criminal history record check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the department's memo outlining the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel. An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

c.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; April 1, 2014; April 1, 2016; April 1, 2018; January 1, 2022; January 1, 2023; April 1, 2024.

Law Implemented: NDCC 50-11.1-01, 50-11.1-04, 50-11.1-06.1, 50-11.1-06.2, 50-11.1-07, 50-11.1-08, 50-11.1-09 75-03-11.1-28. Child abuse and neglect decisions.

An operator shall ensure safe care for the children receiving services in the school-age child care program.

1.If a confirmed decision made under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists, indicating that a child has been abused or neglected by an applicant, owner, operator, director, supervisor, emergency designee, substitute staff member, staff member, or household member, that decision has a direct bearing on the applicant's, owner or operator's ability to serve the public in a capacity involving the provision of child care and the application or license may be denied or revoked. If a confirmed determination under North Dakota Century Code chapter 50-25.1 or a similar finding in another jurisdiction which requires proof of substantially similar elements exists indicating that a child has been abused or neglected by the applicant, owner, operator, director, supervisor, emergency designee, substitute staff member, staff member, or household member, the applicant or operator shall furnish information satisfactory to the department from which the department can determine the applicant's, owner, operator's, director's, supervisor's, emergency designee's, substitute staff member's, or staff member's ability to provide care that is free of abuse and neglect. The department shall furnish the determination of current ability to the applicant or operator.

2.Each applicant, owner, operator, director, supervisor, emergency designee, substitute staff member, and staff member shall complete, and the operator shall submit to the department, a department-approved authorization for background check form no later than the first day of employment.

3.Household members age twelve and older shall complete, and the operator shall submit to the department, a department-approved authorization for background check form at the time of application, relicensure, or upon obtaining residence at the location of the school-age child care.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; January 1, 2013; April 1, 2014; April 1, 2016; July 1, 2020; January 1, 2022;

January 1, 2023; April 1, 2024.

General Authority: NDCC 50-11.1-04, 50-11.1-08 75-03-11.1-29. Correction of violations.

1.Within ten business days of mailing or three days of electronic transmission of a correction order, the owner shall notify the parents of each child receiving care at the school-age child care program that a correction order has been issued. In addition to providing notice to the parent of each child, the owner shall post the correction order in a conspicuous location within the school-age child care program until the violation has been corrected or for five days, whichever is longer.

2.Violations noted in a correction order must be corrected:

a.For a violation of North Dakota Century Code section 50-11.1-02.2; subsection 13 of

section 75-03-11.1-08; subsection 4 or 5 of section 75-03-11.1-08.4; section 75-03-11.1-09; subsection 2, 3, 10, or 20 of section 75-03-11.1-18; or section 75-03-11.1-23, within twenty-four hours.

b.For a violation requiring the hiring of a school-age child care program director with those qualifications set forth in section 75-03-11.1-08.1 or a child care supervisor with those qualifications set forth in section 75-03-11.1-08.3, within sixty days.

c.For a violation that requires an inspection by a state fire marshal or local fire department

authority pursuant to section 75-03-11.1-17, within sixty days.

d.For a violation that requires substantial building remodeling, construction, or change, within sixty days.

e.For all other violations, within twenty days.

3.All time periods for correction begin on the date of receipt of the correction order by the owner and operator.

4.The department may grant an extension of additional time to correct violations, up to a period of one-half the original allowable time allotted. An extension may be granted upon application by the owner and a showing that the need for the extension is created by unforeseeable circumstances and the owner has diligently pursued the correction of the violation.

5.The owner shall furnish a written notice to the department upon completion of the required corrective action. The correction order remains in effect until the department confirms that the corrections have been made.

6.At the end of the period allowed for correction, the department shall reinspect a school-age child care program that has been issued a correction order. If, upon reinspection, the department or its authorized agent determines that the school-age child care program has not corrected a violation identified in the correction order, the department shall mail or send electronic mail a notice of noncompliance with the correction order to the owner and operator.

The notice must specify the violations not corrected and the penalties assessed in accordance with North Dakota Century Code section 50-11.1-07.5.

7.If a school-age child care program receives more than one correction order in a single year, the department may refer the school-age child care program for consulting services to assist the owner in maintaining compliance to avoid future corrective action.

8.Refutation process for a correction order:

a.An owner may refute a correction order by submitting a refutation request in writing on the form provided by the department within five calendar days of receiving the correction order.

b.The department shall respond to written refutations within five business days of receipt.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; January 1, 2013; April 1, 2014; July 1, 2020; January 1, 2022; April 1, 2024.

Law Implemented: NDCC 50-11.1-01, 50-11.1-07.1, 50-11.1-07.2, 50-11.1-07.3 75-03-11.1-30. Fiscal sanctions.

1.The department shall assess a fiscal sanction of twenty-five dollars per day for each violation of North Dakota Century Code chapter 50-11.1; subsection 13 of section 75-03-11.1-08;

section 75-03-11.1-09; subsection 2, 3, 10, or 20 of section 75-03-11.1-18; or section 75-03-11.1-23 for each day that the operator has not verified correction, after the allowable time for correction of violations ends.

2.The department shall assess a fiscal sanction of fifteen dollars per day for each violation of

section 75-03-11.1-08, except a violation of subsection 13 of section 75-03-11.1-08; subsection 1, 4, 5, 17, or 19 of section 75-03-11.1-18; subsection 1 of section 75-03-11.1-19;

section 75-03-11.1-20; or subsection 1 of section 75-03-11.1-24 for each day that the operator has not verified correction, after the allowable time for correction of violations ends.

3.The department shall assess a fiscal sanction of five dollars per day for each violation of any other provision of this chapter for each day that the operator has not verified correction, after the allowable time for correction of violations ends.

History: Effective June 1, 1995; amended effective July 1, 1996; July 1, 1996, amendments voided by the Administrative Rules Committee effective August 24, 1996; amended effective January 1, 1999;

January 1, 2011; January 1, 2013.

General Authority: NDCC 50-11.1-07.4, 50-11.1-08

Law Implemented: NDCC 50-11.1-01, 50-11.1-07.4, 50-11.1-08 75-03-11.1-31. Appeals.

An applicant or operator may appeal a decision to deny or revoke a license by filing a written appeal with the department. The appeal must be postmarked or received by the department within ten calendar days of receipt of the applicant's or operator's written notice of the decision to deny or revoke the license. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

History: Effective June 1, 1995; amended effective January 1, 1999; January 1, 2011.

Law Implemented: NDCC 50-11.1-08, 50-11.1-10 75-03-11.1-32. Appeals.

Repealed effective January 1, 1999.

Chapter 75-03-12 Foster Parent Grievance Procedure [Repealed]

N.D. Admin. Code 75-03-12 Foster Parent Grievance Procedure [Repealed]

CHAPTER 75-03-12

FOSTER PARENT GRIEVANCE PROCEDURE [Repealed effective April 1, 2022]

Chapter 75-03-13 Information Corroborating Paternity

N.D. Admin. Code 75-03-13-01 Definitions

"Alleged father" means an individual identified by the genetic mother of an adopted person as the genetic father of the adopted person.

N.D. Admin. Code 75-03-13-02 Corroborative information

Information which corroborates an allegation of paternity includes information in the form provided for in subsection 4 of North Dakota Century Code section 14-15-16, and also includes:

1.Written communications from the alleged father to the genetic mother, child-placing agency, or other persons concerning the adopted child; provided, that a communication containing a denial of paternity is not corroborative information.

2.A written report of an interview, with the alleged father, by a representative of a licensed child-placing agency, or other reputable person; provided, that a report containing a denial of paternity is not corroborative information.

3.A record of any payment made by the alleged father for the care of the child, for the care of the genetic mother during pregnancy or birth of the child, or for any cost of adoption.

4.A report of admission or acknowledgment of paternity of the adopted child, whether or not the admission or acknowledgment is legally sufficient to establish a parent and child relationship or create a presumption of paternity.

N.D. Admin. Code 75-03-13-03 When additional information to be secured

A licensed child-placing agency must secure and disclose nonidentifying information concerning an alleged father, when that information is not a part of the files and records of the agency or of the North Dakota department of human services, only if those files and records contain:

1.The name of the alleged father; and

2.Information which corroborates the allegation of paternity.

Chapter 75-03-14 Family Foster Home for Children

N.D. Admin. Code 75-03-14-01 Definitions

Those definitions set forth in North Dakota Century Code section 50-11-00.1 are applicable to this

chapter. Additionally, in this chapter, unless the context or subject matter requires otherwise:

1."Authorized licensing agent" means the department or entity identified or licensed by the department to complete the foster care for children license, certification, or approval home study assessment.

2."Background check" means a fingerprint-based criminal history record investigation inclusive of a child abuse and neglect index check in each state or tribal jurisdiction that the individual has resided in the previous five years.

3."Certified foster care provider" means an individual residing in a private dwelling providing temporary care and safety services to no more than three children placed out of the home, unless otherwise approved by the department.

4."Dwelling" means a home, townhouse, apartment, condominium, or manufactured home where an applicant resides and is approved by the department.

5."Foster care provider" means an individual residing in a private dwelling who maintains a license, certification, or approval from the department to provide family foster care to children in need of temporary safety services when placed out of the home.

6."Identified relative foster care provider" means an individual residing in a private dwelling providing temporary care and safety services to no more than six relative children placed out of the home, unless otherwise approved by the department.

7."Reasonable and prudent parent standard" means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child participating in extracurricular, enrichment, cultural, and social activities.

8."Supervising agency" means the human service zone, division of juvenile services, or tribe having care, custody, and control of the child in foster care as ordered by a court of competent jurisdiction or the designee of that agency or person.

History

• History: Effective December 1, 1984; amended effective January 1, 2014; April 1, 2016; October 1, 2019; July 1, 2020; April 1, 2024.
• Law Implemented: NDCC 50-11-00.1, 50-11-06.8

N.D. Admin. Code 75-03-14-02 License, certification, or approval

1.Application to provide foster care for children license, certification, or approval must be made as prescribed by the department.

2.The licensing or certification process requires completion and documentation of the following items:

a.Application;

b.Intial background check;

c.Initial and annual child abuse and neglect index check;

d.Training requirements;

e.Home visits completed by the authorized licensing agent; and

f.Home study assessment completed by the authorized licensing agent. The assessment may include interviews with each household member determined age appropriate.

3.The license, certification, or approval must be issued to the applicant for a specific number, age, and gender of children eligible to be served in the foster care provider's dwelling.

4.The duration of the license, certification, or approval may not exceed two years.

5.The department may issue a license, certification, or approval with stated limitations, restrictions, and conditions.

6.The license, certification, or approval is not transferable and is valid only for the applicants residing at a physical location noted at the time of issuance, unless otherwise approved by the department. Only one license, certification, or approval may be permitted for each physical location.

7.After reviewing an application, the department may deny a license or certification if:

a.The application contains fraudulent information;

b.After completing the home study, the department determines the dwelling is unsanitary;

c.After completing the home study, the department determines the applicant or dwelling is not properly equipped to provide for the health and safety of the children served; or

d.The applicant is not in compliance with the regulations prescribed for licensing or certification by the department.

8.If the facility located on or near, as defined by the tribe, a recognized Indian reservation in this state is identified as a foster care provider, and is not subject to the jurisdiction of the state of North Dakota for licensing or certification purposes, the department, with a signed agreement with the tribe, shall accept an affidavit from an agent of the tribal child welfare agency or an appropriate tribal officer in lieu of completing the foster care for children licensing or certification procedure. The department shall issue an approval of the license or certification if the affidavit represents the following:

a.A home study of the foster care provider was completed by the tribe's child welfare agency or tribal council; and

b.The foster care provider is in compliance with the standards adopted by the tribe for family foster care for children licensing or certification, as described in the agreement signed by the tribe and the department; or

c.The foster care provider is in compliance with the standards required by North Dakota Century Code section 50-11-02, as described in the agreement signed by the tribe and the department.

9.The department may withdraw its approval if the provisions in subsection 8 are no longer met.

History

• History: Effective December 1, 1984; amended effective April 1, 2004; January 1, 2014; October 1, 2019; April 1, 2024.
• Law Implemented: NDCC 50-11-01, 50-11-02, 50-11-02.2

N.D. Admin. Code 75-03-14-03 Minimum physical standards

The foster care provider shall reside in a dwelling occupied by an individual or a single family. The foster care provider's dwelling must be in compliance with applicable state or local zoning requirements and must meet the following criteria:

1.General dwelling areas must include:

a.Cleanliness, neatness, and may not include hazards that jeopardize health and safety;

b.Adequate light, heat, ventilation, and plumbing;

c.A kitchen with operating sink, refrigerator, stove, and oven;

d.A bathroom with sink, toilet, and bathtub or shower;

e.Interior doors that allow for entry from the outside in an emergency when locked;

f.Exterior doors maintained to permit easy exit;

g.Doors that prevent a child from being trapped, including closet doors that can open from the inside;

h.An operational telecommunications device; and

i.Proper storage of medications, alcohol, poisonous materials, cleaning supplies, and other hazardous materials to prevent access to children, which is appropriate for the age and development of the children in placement.

2.Sleeping space in the dwelling must:

a.Accommodate the size of the household, including an individual bed and bedding for each child in foster care;

b.Prohibit co-sleeping or bed sharing with a child in foster care; and

c.Have more than one exit, including an accessible window that opens to the outside.

3.Fire safety parameters in the dwelling must include:

a.Compliance with local building code and guidelines prescribed by the local fire department or state fire marshal regarding fire safety in a dwelling;

b.Completion of a fire safety self-declaration;

(1)The department may request the foster care provider satisfactorily complete a fire inspection by the local fire inspector or, in the absence of a local fire inspector, the state fire marshal; and (2)If an inspection is required, the foster care provider shall ensure all deficiencies noted during the inspection are remedied in efforts to obtain a license, certification, or approval;

c.Smoke detectors installed and maintained in accordance with the manufacturer's instructions and located in areas defined in the fire code;

d.Carbon monoxide detectors, where applicable, installed and maintained in accordance with the manufacturer's instructions and located in areas defined in the fire code; and e.2A 10BC fire extinguishers certified by Underwriters' Laboratories maintained in accordance with the manufacturer's instructions and located in areas defined in the fire code.

4.Food, water, and milk consumption in the dwelling must include:

a.Food in wholesome condition, free from spoilage or contamination, and safe for human consumption;

b.Water supply in compliance with regulations for human consumption as noted in North Dakota Century Code chapter 33.1-16. Water must be from an approved municipal water system where available. If a municipal system is not available, a water sample must pass the approved drinking water standard bacteriological water analysis testing. The foster care provider shall obtain results from an environmental protection agency laboratory approved by the department; and

c.The milk supply consumed in the family foster home for children must be obtained from a department-approved source.

5.Firearms must be kept in locked storage or trigger locks must be used, and ammunition must be kept separate from firearms.

6.Transportation must be available, reliable, legal, and safe to transport children in placement.

7.Pets belonging to the foster care provider must be properly vaccinated per veterinary guidelines.

8.Swimming pools must meet safety standards prescribed by the department. In the ground or aboveground swimming pools with a depth of four feet or greater must have a barrier on all sides to minimize unsupervised access.

9.Hot tubs on the premises must have a safety cover that is locked when not in use.

April 1, 2016; October 1, 2019; April 1, 2024.

History

• History: Effective December 1, 1984; amended effective July 1, 1993; April 1, 2004; January 1, 2014;
• General Authority: NDCC 50-11-03, 50-11-04

N.D. Admin. Code 75-03-14-04 Qualifications of individuals residing in the dwelling

1.An applicant for licensure, certification, or approval must:

a.Be age twenty-one years or greater;

b.Be financially stable with reasonable income or resources available to the foster care provider to properly care for children; and

c.Have functional literacy, demonstrating their ability to read communications delivered by the authorized licensing agent or supervising agency, policy, child care plans, and medication labels.

2.An individual may not smoke or vape in the foster care provider's dwelling or in an enclosed area when the child in foster care is present.

3.A household member, not including a child in foster care, may not exhibit symptoms of a mental health or behavioral health condition, including substance use, that inhibit the applicant's ability to provide care to children.

a.Upon initial licensing, certification, or approval, an applicant or household member may not have symptoms of a mental health or behavioral health condition, including substance use, inhibiting the applicant's ability to provide care to children for a period of at least twelve months.

b.Throughout licensing, certification, or approval periods, if an applicant or household member is experiencing symptoms of a mental health or behavioral health condition, including substance use, and a child in foster care is in placement, every effort should be made to keep the placement intact if safety has been assessed and the household member is receiving treatment or services. The authorized licensing agent must reassess the foster care provider's protective capacities to ensure the symptoms do not inhibit the applicant's ability to provide care.

4.A household member, not including a child in foster care, may not have been the subject of a child abuse or neglect assessment where a confirmed decision was made unless the department, after making appropriate consultation with child protective services, approves the issuance of a license, certification, or approval; and

a.The household member has followed the recommendations of the child protection assessment; or

b.The household member can demonstrate the elimination of underlying factors precipitating the confirmed decision.

5.The department may require psychological testing for any household member, as determined necessary. The cost of any psychological testing required pursuant to this subsection is the responsibility of the department.

6.Prior to the department approving an initial license, certification, or approval, the applicant shall submit the results of a physical examination dated within twelve months of the date of application. All foster care providers, annually thereafter, shall discuss the health of the provider and all other individuals residing in the dwelling as part of the home study assessment. Any foster care provider continuously licensed prior to October 1, 2019, is exempt from having to submit a physical examination. Identified relative foster care providers are exempt from completing the initial physical exam, unless otherwise determined by the department.

7.The department may require proof of immunizations for all individuals residing in the foster care provider's dwelling, except a child in foster care. It is recommended all members of the household be up to date on immunizations as recommended by a health care professional, unless the immunization is contrary to the individual's health as documented by a licensed health care professional or the individual provides written documentation that immunizations are against the individual's religious, philosophical, or moral beliefs.

8.The department or supervising agency may require a foster care provider specializing in the care of medically fragile children to receive specific vaccines if the needs of the child require such precaution.

9.Physical disabilities or age of a foster care provider does not affect licensing, certification, or approval provided that the applicant can show that these factors do not inhibit the ability to care for children in foster care.

10.A foster care provider shall comply with the department's approved preservice training competencies and demonstrate the ability to apply the skills when caring for children in foster care.

11.A foster care provider shall comply with the department's reasonable and prudent parent standard by allowing children in foster care the opportunity to participate in developmentally and age appropriate activities.

12.A foster care provider shall meet the training requirements defined by the department.

April 1, 2016; October 1, 2019; July 1, 2020; April 1, 2022; April 1, 2024.

1.The department requires an initial fingerprint-based criminal background check for each applicant and adult household member residing in the dwelling. Subsequent fingerprint-based background checks are not required when a foster care provider maintains continuous licensure, certification, or approval, unless the authorized licensing agent, supervising agency, or the department determines a need exists to conduct a subsequent investigation.

2.The department requires a child abuse and neglect index check as part of the initial fingerprint-based background check. An annual child abuse and neglect index must be completed and placed in the licensing, certification, or approval file.

3.A foster care provider, or adult household members residing in the dwelling must not be known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter; or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery, if a class A or B felony under subsection 2 of that section; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; or 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department determines the individual has not been sufficiently rehabilitated.

(1)The department may not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions has elapsed.

(2)An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

4.The department has determined that the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on an individual's ability to provide foster care for children.

5.In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C felony; or 12.1-31-07.1, exploitation of an eligible adult - penalty, if a class B or C felony or a class A misdemeanor; or

chapter 19-03.1, Uniform Controlled Substance Act, if a class A, B, or C felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that an individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions. The department may not be compelled to make such determination.

6.The department may discontinue processing a request for a criminal background check for any individual who provides false or misleading information about the individual's criminal

history.

7.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community;

b.Acknowledged by the individual; or

c.Discovered by the authorized agent or department as a result of a background check.

8.The department may request a fingerprint-based criminal background check whenever a licensed, certified, or approved foster care provider or adult household member is known to have been involved in, charged with, or convicted of an offense.

9.The department shall review fingerprint-based criminal background check results as follows:

a.If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel.

c.An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

d.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

e.The final decision of the review panel may not be appealed.

10.The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the individual lived during the eleven years preceding the signed authorization for the background check.

11.A foster care provider consecutively licensed or approved prior to August 1, 1999, is not required to have a record of a fingerprint-based background check on file.

April 1, 2024; October 1, 2024.

History

• History: Effective December 1, 1984; amended effective April 1, 2004; July 1, 2006; January 1, 2014;
• General Authority: NDCC 50-11-03, 50-11-03.4 75-03-14-04.1. Background checks and criminal conviction - Effect on licensure, certification, or approval.
• History: Effective April 1, 2004; amended effective January 1, 2014; April 1, 2016; October 1, 2019;
• Law Implemented: NDCC 50-11-02, 50-11-06.8

N.D. Admin. Code 75-03-14-05 Provisions of service

Foster care providers shall ensure the health and safety of children placed in their dwelling and provide a safety service to best meet the needs of the child in foster care. The provision of service may be accomplished in many ways, including meeting the daily needs of the child, supporting family connections, and complying with goals and tasks to assist the child in achieving timely permanency.

The foster care provider shall:

1.Participate in the child and family team meetings. Child and family team meetings are held at least quarterly, facilitated by the supervising agency to address and review the permanency plan of the child.

2.Cooperate in carrying out the objectives and goals of the permanency plan for the child developed and implemented in collaboration with the supervising agency and child and family team. Foster care providers shall meet the needs of the child while placed in the foster care provider's dwelling.

3.Acknowledge their role as a service provider and recognize, as a foster care provider, they may be considered, but are not guaranteed, to be a permanent option for the child. Foster care providers shall sign an acknowledgment that federal law establishes a permanency preference for children eligible under the Indian Child Welfare Act and North Dakota Century Code chapter 27-19.1 and with identified relatives of the child.

4.If requested by the supervising agency or the juvenile court, provide information concerning the child in foster care and the child's family.

5.Allow public officials to enter the provider's dwelling as determined necessary by the public official to ensure child safety.

6.Allow personnel of the authorized licensing agent or supervising agency to enter the provider's dwelling at any reasonable time. For the purposes of this subsection, "any reasonable time" means a time mutually convenient to the foster care provider and authorized licensing agent or supervising agency personnel or any time the authorized licensing agent or supervising agency determines that a child in foster care's health, safety, or welfare requires the admittance.

7.Cooperate with the supervising agency to make efforts to maintain and improve the relationships between the child in foster care and the child's family, whenever appropriate and possible. The foster care providers may not attempt to diminish the relationship between the child in foster care and the child's parents or between the supervising agency and the child in foster care.

8.Cooperate with the supervising agency to develop an approved visitation plan with the child's parents or guardian. If it is appropriate, visitation may take place in the foster care provider's dwelling or in a community setting to allow for formal or informal mentoring and support by the foster care provider. If visitation occurs in the foster care provider's dwelling, the provider does not have to allow entry to any individual who has been using alcohol, drugs, or any other intoxicating substance, or who attempts a visit in a manner that is not in accordance with the approved visitation plan.

9.Inform the authorized licensing agent if a child or adult is moving into the dwelling. All changes in the number of individuals living in the foster care provider's dwelling must be reported immediately.

10.Communicate with the supervising agency if a child in foster care is in need of substitute care during the absence of the foster care provider. Prior approval of the substitute care must be given by the supervising agency, not to exceed fourteen calendar days. Prior approval is not required for short periods of substitute care such as a portion of one day. A child in foster care may not be removed from this state without the prior approval of the supervising agency.

11.Make opportunities available for a child in foster care to attend religious ceremonies chosen by the child in foster care, or that child's parents, within the community in which the foster family resides. The foster care provider must respect and not interfere with the religious belief of the child in foster care and the child's family.

12.Engage in appropriate discipline that is constructive or educational in nature and may include diversion, separation, discussions with the child in foster care about the situation, praise for appropriate behavior, and gentle therapeutic physical restraint, for providers with proper training.

a.No child in foster care may be kicked, bitten, punched, spanked, shaken, pinched, roughly handled, or struck with an object by a foster care provider or any other individual residing in the family foster provider's dwelling.

b.Cruel and unusual punishments are prohibited.

c.Authority to discipline may not be delegated to or be accomplished by children.

d.Separation, when used as discipline, must be brief and appropriate to the age and circumstances of the child in foster care, and when used to discipline a child in foster care, must be within hearing of an adult in a safe, lighted, well-ventilated room. A child in foster care may not be separated from the household in a locked room or closet.

e.A child in foster care may not be disciplined for lapses in toilet training.

f.Verbal abuse or derogatory remarks about a child in foster care, the child's family, race, religion, sexual orientation, gender identity, or cultural background may not be used and are not permitted.

g.A child in foster care may not be force fed unless medically prescribed and administered under a physician's care.

h.Deprivation of means, including food, clothing, shelter, hygiene, and medical care is not permitted.

13.Maintain confidentiality of all information given to the foster care provider by the supervising agency or the child in foster care's family. Information may not be disclosed to any person without prior approval of the supervising agency.

14.Utilize foster care maintenance payments to meet the needs of the child in foster care.

History

• History: Effective December 1, 1984; amended effective April 1, 2004; January 1, 2014; October 1, 2019; April 1, 2024.

N.D. Admin. Code 75-03-14-06 Child and family team meeting

N.D. Admin. Code 75-03-14-07 Background checks required

N.D. Admin. Code 75-03-14-08 Fingerprints excused

N.D. Admin. Code 75-03-14-09 Identified relative licensing, approval, and waiver

Applicants who meet the definition of identified relative, who apply to be an identified relative foster care provider shall comply with this chapter and standards for relative licensing prescribed by the department. The department may grant a waiver from a provision of this chapter to an applicant to provide foster care for children if the applicant is an identified relative of a child in foster care. A waiver may not be issued if it would result in a danger to the health and safety of any child in foster care cared for by the child's identified relatives. The department shall prescribe the terms of the waiver. A refusal to grant or revoke an identified relative waiver is not subject to appeal.

History

• History: Effective January 1, 2014; amended effective April 1, 2024.

N.D. Admin. Code 75-03-14-10 Certification

Applicants who apply to be a certified foster care provider offering time limited foster care for children shall comply with the standards for certification prescribed by the department.

History

• History: Effective April 1, 2024.

Chapter 75-03-14.1 Shelter Care Program Certification

N.D. Admin. Code 75-03-14.1 Shelter Care Program Certification

CHAPTER 75-03-14.1

SHELTER CARE PROGRAM CERTIFICATION

Section 75-03-14.1-01Definitions 75-03-14.1-02Shelter Care Program Certification 75-03-14.1-03Shelter Care Program Rate 75-03-14.1-04Shelter Care Program Operations 75-03-14.1-05Employees and Nonemployees 75-03-14.1-05.1Background Check and Criminal Conviction - Effect on Operation of Agency or Employment or Placement by Agency 75-03-14.1-06Employee and Nonemployee Training 75-03-14.1-07Buildings and Grounds 75-03-14.1-08Admissions and Discharges 75-03-14.1-09Resident Files 75-03-14.1-10Correction Orders 75-03-14.1-11Incident and Sentinel Event Reporting 75-03-14.1-12Denial, Revocation, and Appeal Rights 75-03-14.1-13Variance 75-03-14.1-01. Definitions.

1."Agency" means the entity applying for or receiving a shelter care program certification.

2."Attendant care" means a site for juveniles who are cited or citable by law enforcement and need constant short-term supervision on a preadjudicatory basis.

3."Incident" means an event involving the resident and law enforcement and includes runaway status, criminal activity, behavior resulting in harm to others, harassment, violence, and discrimination.

4."Resident" means a child age ten to eighteen years old in need of temporary safe out-of-home placement.

5."Sentinel event" means a serious injury or trauma to a resident, attempted suicide by the resident, death of a resident, or inappropriate sexual contact involving a resident.

6."Shelter care home" means a licensed foster home that has agreed to provide temporary shelter care to a resident in need of emergency placement and is available twenty-four hours per day.

7."Shelter care program" means a nonsecure permanent dwelling run by an agency with certification obtained by the department, where employees offer safe shelter, food, and structured routine and is available twenty-four hours a day to a resident in need of emergency placement, not to exceed seven days, unless otherwise approved by the department. 75-03-14.1-02. Shelter care program certification.

1.An agency may not apply for a shelter care program certification until the department has reviewed the need for additional shelter care programs. To enable the department to make a determination of need for a new shelter care program, the potential applicant shall submit an initial request for application, including the following documentation and information to the department:

a.The number, gender, and age range of the residents to be served;

b.The employee staffing, including a list of full-time and part-time positions by job titles and description;

c.A description of the proposed program;

d.A proposed budget; and

e.The geographic location of the shelter care program.

2.Upon receipt of initial request for application, the department shall:

a.Review the detailed plan for the operation proposed by the agency;

b.Ask for additional materials or information necessary for evaluation of need purposes;

c.Respond in writing within thirty days of receipt of all required information from the potential agency;

d.Send written notice of determination of need. The notice must state the specific reason for the determination. If the department determines there is need for additional shelter care program beds, the notice must be accompanied by an authorization for the agency to apply for certification to operate a shelter care program; and

e.Inform the potential agency of what is required to move forward with the application process.

3.A shelter care home may not apply for a shelter care program certification as it does not qualify as an agency.

4.If an agency receives an authorization to apply for a shelter care program certification, the agency shall submit its application in the form and manner prescribed by the department.

5.Shelter care program certification applications must include the following documentation or information:

a.A detailed plan for the operation of the shelter care program;

b.Physical location and address of the shelter care program;

c.A copy of the shelter care program floor plan with dedicated sleeping spaces;

d.A list of current employees, background check dates, annual child abuse and neglect checks, and full-time and part-time status and job titles;

e.A copy of the shelter care program's general comprehensive liability insurance;

f.A copy of the shelter care program's vehicular insurance for transportation purposes; and

g.Inspection reports.

6.Shelter care program certification is nontransferable and is valid only on the premises and for the specified number of residents indicated on the shelter care program certification, unless otherwise approved by the department.

7.An agency shall submit a new application for a shelter care program certification when there is a change in ownership.

8.Shelter care program certification is available for a maximum period of two years.

9.Shelter care program certification requires an agency to submit an annual application to the department, which will initiate an annual onsite visit. 75-03-14.1-03. Shelter care program rate.

The department shall establish the fee for service for shelter care programs. The shelter care program shall enter a financial contract with the department and other eligible referral agencies seeking placement into the shelter care program. 75-03-14.1-04. Shelter care program operations.

The shelter care program shall:

1.Ensure the shelter care program is funded, staffed, and equipped in a manner required for the provision of services;

2.Provide the most recent fiscal year end financial record to the department, upon request;

3.Employ a qualified supervisor of shelter care program operations to oversee program operations, policy, and employee and nonemployee performance;

4.Provide twenty-four-hour supervision for all residents residing in the shelter care program;

5.Provide access to an on-call twenty-four-hour crisis line by which employees may be reached in the event of an emergency placement;

6.Establish policy and procedures specific to operations of a shelter care program, including:

a.Policy defining residents served in the shelter care program. The shelter care program shall define the parameters of each population of residents served. The shelter care program shall have a policy to ensure the safety of all residents and allow adequate space to properly separate residents who are children in need of protection from children who engage in delinquent acts;

b.Policy addressing supervision requirements of residents by employees during each shift, to include:

(1)Awake hours; and (2)Overnight hours, requiring awake employees to check on residents at a minimum of every fifteen minutes, and more frequently if the acuity of the resident demands greater supervision;

c.Nondiscrimination policy;

d.Medication dispensing;

e.Resident search criteria;

f.At-risk behaviors and protocol surrounding accepting and caring for a resident who has been drinking or using drugs; and

g.Process for contacting law enforcement or emergency contacts, as needed;

7.Establish disaster planning, including protocol for when the shelter care program experiences:

a.Power outage;

b.Fire;

c.Winter blizzard conditions;

d.Flood; or

e.Tornado;

8.Establish a policy to ensure proper and efficient procedure in the event the shelter care program would cease operations, including:

a.Notification to the department at least sixty days before closure;

b.Notification to community partners at least thirty days before closure; and

c.Identification of a depository in North Dakota to maintain the retention of the shelter care program's fiscal, employee, nonemployee, and resident files;

9.Notify the department, in writing, of the corrective action the shelter care program has taken, or plans to take, to comply with any resulting recommendations from the institutional child protection team. The shelter care program shall make assurances that revised practice will reduce the risk of the incident or sentinel event reoccurring. The shelter care program shall respond within thirty days of receiving written notification of the indicated determination; and

10.Establish written policies specifying how to proceed if a current or former employee or nonemployee is known to be:

a.Involved in any capacity in a reported incident of institutional child abuse or neglect;

b.Involved in any capacity in a reported incident of suspected child abuse or neglect;

c.The subject in a child abuse or neglect report that occurred outside the facility, for which the subject has been confirmed to have abused or neglected a child; or

d.Found guilty of, pled guilty to, or pled no contest to a criminal offense. 75-03-14.1-05. Employees and nonemployees.

1.The shelter care program clearly shall define, in writing, the roles and responsibilities of the employees and nonemployees assuring the health and safety of the resident and coordination of the resident's safe return to the custodian, parent, or guardian.

2.The shelter care program shall establish policy and procedures for employee and nonemployee roles and responsibilities, including:

a.Initial fingerprint-based criminal background checks for employees and a criminal background check for nonemployees;

b.Annual child abuse and neglect checks;

c.Job descriptions; and

d.Assigned shifts and protocol for shift changes.

3.A shelter care program shall hire a supervisor of shelter care program operations and the supervisor:

a.Must have a bachelor's degree in business or public administration, social work, behavioral science, or a human services field and have two years of related work experience in administration;

b.Shall ensure the shelter care program has written policy and procedure;

c.Shall oversee daily operations;

d.Shall administer admission and discharge criteria; and

e.Shall provide adequate supervision to all employees and nonemployees.

4.A shelter care program shall hire employees and the employees:

a.Must be at least twenty years of age;

b.Must have a high school diploma or equivalent;

c.Shall assure and be devoted to the health and safety of each resident in placement and coordination of the resident's safe return to the custodian, parent, or guardian;

d.Shall achieve the competencies necessary to meet the needs and engage appropriately with each resident in placement;

e.Shall prepare meals;

f.Shall organize activities and structure a daily routine for the resident in placement; and

g.Shall document a daily activity log to share with the custodian, parent, or guardian.

5.A shelter care program shall ensure there are adequate employees working to meet the minimum employee-to-resident ratios, including:

a.A rotating on-call employee who must be available twenty-four hours a day, seven days a week; and

b.Regardless of awake or overnight hours, the shelter care program must have no fewer than one employee for each six residents in placement.

6.A shelter care program, utilizing nonemployees, shall:

a.Ensure nonemployees are at least twenty years of age;

b.Develop and provide a copy of a description of nonemployee duties and specified responsibilities;

c.Designate an employee to supervise and evaluate nonemployees;

d.Develop a plan for the orientation and training of nonemployees, including the philosophy of the shelter care program and the needs of the residents and the residents' families;

e.Develop a policy stating nonemployees may support employees, but may not depend on nonemployees to carry out the duties of the certified shelter care program on a permanent basis;

f.Develop a policy stating nonemployees may be counted as an employee for purposes of employee-to-resident ratio requirements imposed by this chapter, if all equivalent training requirements are met;

g.Develop a policy stating nonemployees shall create records of incidents that occur during their presence at the shelter care program to the same extent employees are required to create such records; and

h.Conduct a criminal background check on all nonemployees with direct contact with residents.

7.The shelter care program shall maintain a file on each employee; including:

a.Employment application, including a record of previous employment;

b.Results of an initial fingerprint-based criminal background check and subsequent background checks as determined necessary;

c.Results of the initial child abuse or neglect record, and annually thereafter;

d.A job description specifying the employee's roles and responsibilities;

e.A statement signed by the employee acknowledging the confidentiality policy;

f.Documentation of an annual training record detailing the date, topic, and length of presentation; and

g.Evidence of the employee having read and received a copy of the law and shelter program procedures requiring the reporting of suspected child abuse and neglect, initially upon hire and annually thereafter.

8.The shelter care program shall maintain a file on each nonemployee, including:

a.Personal identification information;

b.The results of a criminal background check, motor vehicle operator's license record, as applicable, and child abuse or neglect record;

c.A description of duties;

d.Orientation and training records consisting of name of presenter, date of presentation, topic of presentation, and length of presentation;

e.A statement signed by the nonemployee indicating the nonemployee has read and received a copy of the law and facility procedures requiring the reporting of suspected child abuse and neglect pursuant to North Dakota Century Code chapter 50-25.1, initially and annually thereafter; and

f.A statement signed by the nonemployee acknowledging the confidentiality policy.

9.The shelter program shall adopt a policy regarding the retention of employee and nonemployee files.

History: Effective January 1, 2022; amended effective April 1, 2024; October 1, 2024.

Law Implemented: NDCC 50-06-01.4, 50-06-01.10 75-03-14.1-05.1. Background check and criminal conviction - Effect on operation of agency or employment or placement by agency.

1.The department requires an initial fingerprint-based criminal background check for each employee with direct contact with residents and a criminal background check for each nonemployee with direct contact with residents. Subsequent fingerprint-based background checks are not required for an employee who maintains continuous employment at the shelter care program unless the program or the department determines a need exists to conduct a subsequent investigation.

2.The department requires a child abuse and neglect index check as part of the initial fingerprint-based background check and criminal background check. An annual child abuse and neglect index must be completed and placed in the employee or nonemployee file.

3.A shelter care program supervisor may not be, and a shelter care program may not employ or place, in any capacity that involves or permits contact between an employee or nonemployee and any resident cared for by the shelter care program, an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; 12.1-41, Uniform Act on Prevention of Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter; or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery, if a class A or B felony under subsection 2 of that section; 12.1-22-02 burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department determines the individual has not been sufficiently rehabilitated.

(1)The department will not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all criminal convictions has elapsed.

(2)An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

4.The department has determined that the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on an individual's ability to provide shelter care for children.

5.In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C felony; or 12.1-31-07.1, exploitation of an eligible adult - penalty, if a class B or C felony or a class A misdemeanor; or

chapter 19-03.1, Uniform Controlled Substances Act, if a class A, B, or C felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine an individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions. The department is not compelled to make such determination.

6.The department may discontinue processing a request for a criminal background check for any individual who provides false or misleading information about the individual's criminal

history.

7.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community;

b.Acknowledged by the individual; or

c.Discovered by the authorized agent or department as a result of a background check.

8.The department may request a fingerprint-based or a criminal background check if an employee or nonemployee of the certified shelter care program is known to have been involved in, charged with, or convicted of an offense.

9.The department shall review fingerprint-based criminal background check results as follows:

a.If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel.

c.An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

d.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

e.The final decision of the review panel may not be appealed.

10.The shelter care program shall make an offer of employment to an employee conditioned upon the individual's consent to complete required background checks. While awaiting the results of the required background check, the shelter care program may choose to provide training and orientation to an employee. However, until the completed and approved required background check results are placed in the employee file, the employee is limited to supervised interaction with residents.

11.The department may excuse an employee from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an employee is excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the employee lived during the eleven years preceding the signed authorization for the background check.

12.A shelter care program employee or nonemployee shall comply with this section or must be an employee otherwise qualified and employed by a certified shelter care program prior to April 1, 2024.

History: Effective April 1, 2024; amended effective October 1, 2024.

Law Implemented: NDCC 50-06-01.4, 50-06-01.10 75-03-14.1-06. Employee and nonemployee training.

Shelter care programs shall provide training to employees and nonemployees which includes:

1.Initial orientation topics of:

a.Overall general shelter care program policy and procedures;

b.Resident's emotional and physical needs;

c.Resident's daily routine, activities, transportation, and meals;

d.Roles and responsibilities of employees versus nonemployees;

e.Expected employee and nonemployee conduct toward residents;

f.Expected resident conduct while residing onsite;

g.Shelter care program's behavior management, including de-escalation techniques;

h.Protocol for observing and reporting resident behavior;

i.Protocol for identifying and reporting of child abuse and neglect, including completion of child abuse and neglect mandated reporter training;

j.Suicide prevention, including identifying signs and shelter program response;

k.Fire safety and evacuation procedures;

l.Disaster plan;

m.Resident search procedures and policies;

n.Confidentiality standards;

o.Protocol for reporting a runaway;

p.Protocol for emergency medical procedures;

q.Protocol for shelter care program security and access to visitors; and

r.Interest in becoming certified for medication distribution;

2.Required certification trainings, upon hire and updated accordingly thereafter, including:

a.First-aid training; and

b.Cardiopulmonary resuscitation training;

3.Institutional child abuse and neglect training, which includes how employees and nonemployees are to report incidents and sentinel events and what to do in the case of an institutional child abuse and neglect indicated determination; and

4.Other trainings determined necessary by the shelter care program to provide safe care to a resident. 75-03-14.1-07. Buildings and grounds.

A shelter care program shall comply with all state, county, and local building, zoning, safety, and sanitation laws, codes, and ordinances. The shelter care program may install automatic sprinklers in bedrooms, hallways, and areas required by the fire code. If an automatic sprinkler system is installed, it must be inspected annually and a copy of the inspection provided to the department. The shelter care program must have:

1.An inspection by the local fire department or the state fire marshal's office as determined necessary for the dwelling to ensure fire safety;

2.A 2A 10BC fire extinguisher certified by Underwriters’ Laboratories and maintained in accordance with the manufacturer’s instructions and located in areas defined in the fire code.

All required fire extinguishers must be checked once a year and serviced as needed. Each fire extinguisher must have a tag or label securely attached indicating the month and year the maintenance check was completed;

3.Smoke detectors installed and maintained in accordance with the manufacturer’s instructions and located in areas defined in the fire code;

4.Carbon monoxide detectors, where applicable, installed and maintained in accordance with the manufacturer’s instructions and located in areas defined in the fire code;

5.A clean, comfortable, sanitary, and safe dwelling with adequate lights, heat, and ventilation;

6.Furnishings suitable to the needs of all residents;

7.Recreational space and equipment that is safe, functional, and available for all residents;

8.One centrally located living room for the informal use of residents;

9.A dining room area large enough to accommodate the number of residents served;

10.A private space for individual interviewing and case meetings for ongoing program activities;

11.Sleeping accommodations that ensure:

a.At least one bed for each resident;

b.Clean linens and bedding for each resident;

c.Appropriate privacy and separation of resident sleep space dependent on age and gender;

d.Individual storage space to accommodate the resident's clothing and other personal belongings; and

e.For bedrooms, at least one window that opens to the outside. A bedroom located in a basement with over half its outside walls below grade and no door opening directly to the outside may not be used for sleeping, unless the bedroom space has at least one egress window;

12.One complete bathroom to include a toilet, sink, and a tub or shower;

13.A kitchen area and proper food storage. If applicable, the department may request a health inspection A shelter care program shall document compliance with sanitation standards and provide documentation to the department;

14.Storage to lock all medications;

15.Storage to lock all toxic cleaning supplies, aerosols, chemical, agricultural, and ground maintenance chemicals, pesticides, and other poisons;

16.Storage to lock shampoos, body wash, hair products, and hand sanitizers when not distributed to resident for use. Shelter care programs shall distribute shampoos, body wash, hair products, and hand sanitizers in a limited quantity;

17.Policy and signs that address the prohibition of the use of alcohol on the premises and prohibition of the use of tobacco and vaping within the shelter care program facilities and vehicles and in the line of sight of the residents;

18.Policy and signs that prohibit firearms in program or living areas on the premises. Firearms kept at any other location on the shelter care program premises must be stored in a locked and secure area; and

19.Policy that all pet inoculations comply with local and state requirements. 75-03-14.1-08. Admissions and discharges.

1.A shelter care program shall have written resident admission and discharge policies and procedures that describe:

a.The eligibility and criteria for admitting a resident;

b.Procedures for completing initial screenings upon admission, including:

(1)Mental health screening; and (2)Basic personal health screening, which may include documenting height, weight, and identification of any distinct markings, such as resident's birthmark, tattoos, bruises, or cuts;

c.Procedure for discharge planning with the custodian, parent, or guardian upon date of admission; and

d.Procedures for accepting an extension request.

2.The shelter care program shall provide documentation of a discharge report to the custodian, parent, or guardian which includes:

a.Date of discharge;

b.Detailed location and contact of where the resident is being discharged to; and

c.Details of services or community referrals made by the shelter care program.

3.A shelter care program placement may not exceed seven days from date of admission unless an extension request is approved by the department. The shelter care program supervisor shall submit extension requests to the department for approval. The department may approve an extension request for up to an additional seven days. The department may grant an extension request beyond seven days upon such terms as the department may prescribe. A refusal to grant an extension request is not subject to appeal.

Law Implemented: NDCC 50-06-01.4, 50-11-03.2 75-03-14.1-09. Resident files.

Upon placement, a resident's file is confidential and must be protected from unauthorized examination unless permitted or required by law or regulation. The shelter care program shall adopt a policy regarding the retention of the resident file. The resident file must include:

1.Admissions application, including:

a.Resident's full name;

b.Date of birth;

c.Name and contact information of the referral;

d.Name and contact information of the resident's custodian, if applicable;

e.Name and contact information of the resident's parent or guardian;

f.Name and dosage of current medication; and

g.Documented consent to:

(1)Complete initial screenings;

(2)Provide first aid;

(3)Transport to emergency room, if applicable; and (4)Distribute medications;

2.Resident photo;

3.Documentation of a daily activity log detailing the resident's time in the shelter care program; and

4.Documentation of discharge report, including the individual who the resident was discharged to, date, and location.

Law Implemented: NDCC 50-06-01.4, 50-06-15, 50-11-05 75-03-14.1-10. Correction orders.

1.The shelter care program shall comply with all sections of this chapter, in order to maintain certification from the department. The department may issue a correction order if the shelter care program violates any provision of this chapter.

2.The department may require immediate correction of a violation that threatens the life or safety of a resident and twenty days for all other violations.

3.Upon written request by the shelter care program and upon showing need for an extension created by circumstances beyond the control of the shelter care program and documentation that the shelter care program has diligently pursued correction of the violation, the department may grant extensions of time to correct violations. 75-03-14.1-11. Incident and sentinel event reporting.

1.The shelter care program must have written policy outlining the documentation of incidents and sentinel events that occur while the resident is in placement. The policy must include:

a.Reporting procedures of an incident as an unplanned occurrence that resulted or could have resulted in injury to people or damage to property, specifically involving the general public, residents, or employees, or nonemployees; and

b.Reporting procedures of a sentinel event as an unexpected occurrence involving death or serious physical or psychological injury not related to the natural course of a resident's illness or underlying condition, including any process variation for which a reoccurrence would carry a significant chance of a serious adverse outcome.

2.The shelter care program shall document the incident or sentinel event in the resident's file within twenty-four hours and notify the resident's custodian, parent, or guardian immediately or within twelve hours.

3.The shelter care program shall maintain a log of written reports of incidents and sentinel events involving residents.

4.The shelter care program shall provide employees or nonemployees time at the beginning of each shift to be informed of or review reports of incidents and sentinel events occurring since the employee's or nonemployee's last shift.

5.The shelter care program shall provide employees or nonemployees and residents time to debrief the incident and sentinel event with supervisors. 75-03-14.1-12. Denial, revocation, and appeal rights.

1.The department may deny or revoke a shelter care program certification if the:

a.Application contains fraudulent information, an untrue representation, or is incomplete;

b.Agency or shelter care program has violated any applicable provision of North Dakota Century Code chapters 50-06 and 50-11 or fails to meet the minimum requirements of this chapter; or

c.Shelter care program fails to ensure the required shelter care program's policies under this chapter are enforced and complied with.

2.If the department decides to deny or revoke a shelter care program certification, the department shall notify the shelter care program in writing of its decision and the reasons for the denial or revocation. Upon receipt of notification of revocation, the shelter care program may not accept any additional residents and immediately shall make arrangements in cooperation with each current resident's custodian, parent, or guardian for alternative placement.

3.An agency or shelter care program may appeal a decision to deny or revoke a shelter care program certification by filing a written appeal with the department within thirty days of written notice of such a decision. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03. During an appeal, the shelter care program may not have residents. 75-03-14.1-13. Variance.

Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance regarding a specific provision of this chapter upon such terms as the department may prescribe, except no variance may permit or authorize a danger to the health or safety of any resident cared for by the shelter care program and no variance may be granted except at the discretion of the department. A shelter care program shall submit a written request to the department justifying the variance. A refusal to grant a variance is not subject to appeal.

Chapter 75-03-15 Ratesetting for Providers of Services to Foster Children - Qualified Residential Treatment Programs

N.D. Admin. Code 75-03-15-01 Definitions

1."Administration" means the cost of activities performed by the facility employees in which the direct recipient of the activity is the organization itself. These include fiscal activities, statistical reporting, recruiting, and general office management which are indirectly related to services for which a rate is set.

2."Allowable cost" means the facility's actual cost after appropriate adjustments as required by this chapter.

3."Base rate" means a fee for service granted to the facility as a combination of allowable administrative and maintenance costs, such as salaries, fringe benefits, property costs, and other costs which allow the facility to operate and provide treatment and services to residents and their families.

4."Bed hold" means a maximum fourteen-day reimbursable absence that is eligible to be included in census tracking when a resident absconds from placement or needs temporary hospitalization and the facility acknowledges acceptance of the resident back into placement when located or discharged from the hospital.

5."Chain organization" means two or more program entities which are owned, leased, or, through any other device, controlled by one business entity.

6."Department" means the North Dakota department of human services.

7."Depreciable asset" means a capital asset or other asset for which the cost must be capitalized for statement of costs purposes.

8."Depreciation" means an allocation of the cost of an asset over its estimated useful life.

9."Difficulty of care" means the individual rate for each resident determined after the completion of the assessment administered by the department or designee.

10."Facility" means a qualified residential treatment program.

11."Property costs" means the allowable costs to operate the owned or leased property.

12."Qualified residential treatment program" means a licensed or approved residence providing an out-of-home treatment placement for residents.

13."Reasonable cost" means the cost of providing food, clothing, shelter, daily supervision, school supplies, and personal incidentals for residents, employee liability insurance with respect to residents, travel of a resident for visitation, and operation of the facility which must be incurred by an efficient and economically operated facility to provide services in conformity with applicable federal and state laws, regulations, rules, and quality and safety standards.

Reasonable cost takes into account that the facility seeks to minimize costs and that actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or service.

14."Resident" means an individual under the age of twenty-one admitted to and residing in the facility.

15."Room and board" means the cost associated with the provision of shelter, food, dietary supplies, and housekeeping services and the maintenance thereof, including depreciation and interest or lease payments of a vehicle used for transportation of residents, included in the facility base rate.

October 1, 2019; October 1, 2021.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; June 1, 2004; July 1, 2014;

N.D. Admin. Code 75-03-15-02 Eligibility for payment - Financial reporting requirements

1.Facilities are eligible for payment rates contingent upon the following:

a.The facility has a current license, issued pursuant to the provisions of chapter 75-03-40;

b.The facility has a contract with the department authorizing payment;

c.The facility is in compliance with the terms of the contract; and

d.The facility participates in the financial audit process established by the department.

2.Records.

a.The facility shall maintain the required resident census records.

b.The facility shall maintain financial information sufficient to provide a proper audit or review. Financial records must be provided to the department in the form and manner requested by the department.

c.The facility shall maintain financial records for a period of not less than six years.

3.Accounting and reporting requirements.

a.Generally accepted accounting principles must be used for purposes of financial reporting.

b.To properly facilitate auditing by the department, the facility accounting system must be maintained in a manner that ensures program cost accounts are grouped by cost category. If several programs are associated with the facilities' accounting system, the qualified residential treatment program costs must be separate.

c.The facility shall submit required financial information within ninety days of the request of the department.

d.Upon request, the following information must be made available:

(1)A statement of ownership including the name, address, and proportion of ownership of each owner.

(2)Copies of leases, purchase agreements, appraisals, financing arrangements, and other documents related to the lease or purchase of the facility, or a certification that the content of any of these documents remain unchanged since the most recent statement given pursuant to this subsection.

(3)Supplemental information reconciling the costs on the financial statements with costs on the requested financial report.

(4)Copies of leases, purchase agreements, and other documents related to the acquisition of equipment, goods, and services that are claimed as allowable costs.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; July 1, 2014; October 1, 2021.

N.D. Admin. Code 75-03-15-03 Resident census

1.A facility shall maintain a daily resident census record. The facility shall count any day for which services are provided, including the day of discharge, as one day for the resident census. The day of admission or death must be counted.

2.A facility shall prepare and maintain resident census records on a daily basis to allow for proper tracking of resident census data. The daily resident census records must include:

a.Identification of the resident;

b.Entries for all days a resident is in placement;

c.Identification of type of day: treatment programming, bed hold, aftercare, or respite care; and

d.Monthly totals by resident in placement and by type of day.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; July 1, 2014; October 1, 2019;

N.D. Admin. Code 75-03-15-04 Payment rate

1.The department shall determine the payment rates. Payment rates are developed in three parts:

a.A base rate;

b.Difficulty of care rate; and

c.Performance-based contracting options.

2.Base rates established by the department include facility financial components of direct care wage, direct care fringe benefits, property, and administrative and other costs.

3.Difficulty of care is calculated by utilizing the individual resident assessment weighted score from the department-approved assessment tool. The difficulty of care rate is:

a.Effective the date of admission; and

b.Reassessed every ninety days in conjunction with the resident continued stay review.

4.Performance-based contracts will detail facility payment rates specific to admission and discharge and aftercare outcomes.

5.The daily rate for each resident accepted by the facility must follow the difficulty of care payment rates developed by the department. The daily rate charged must be consistent for all residents in placement regardless of the resident's custodian, parent, or guardian or payment source. The maximum authorized payment rate for a resident paid by the department will be determined by the resident's weighted score conducted by the qualified individual completing the assessment and the performance-based contracting options.

6.Limitations.

a.The department may accumulate and analyze statistics on costs incurred by the facilities.

The department may use these statistics to establish cost ceilings and incentives for efficiency and economy, based on a reasonable determination of the standards of operations necessary for efficient delivery of needed services. The department may establish limitations and incentives on the basis of the cost of comparable facilities and services and the department may apply these limitations and incentives as ceilings on the overall costs of providing services or on specific areas of operations.

b.When federal regulations establish a ceiling on foster care rates for these facilities, that ceiling must also be considered the maximum payment under title IV-E of the Social Security Act, [42 U.S.C. 670 et seq.].

c.Administrative costs must be limited to the percent of total allowable costs exclusive of administrative costs, authorized by the department.

7.The department may apply rate adjustments if required by state or federal law or regulation, appropriation, or as determined necessary by the department.

June 1, 2004; July 1, 2014; October 1, 2019; October 1, 2021.

History

• History: Effective November 1, 1985; amended effective July 1, 1993; March 1, 1999; August 1, 2002;

N.D. Admin. Code 75-03-15-05 Cost allocation

Cost allocation methods described in this section must be used.

1.Salaries that cannot be reported based on direct costs are to be allocated using time studies.

Time studies must be preapproved by the department and must be conducted at least semiannually for a two-week period or quarterly for a one-week period. The time study must represent a typical period of time when employees are performing normal work activities in each assigned area of responsibility. Allocation percentages based on the time studies are to be used starting with the next pay period following completion of the time study or averaged for the report year. The methodology used by the facility may not be changed without approval by the department.

2.Housekeeping costs must be allocated based on usable square footage.

3.Property and facility costs must be allocated based on usable square footage.

4.Administration costs must be allocated on the basis of percentage of the total direct cost of the activity to the total costs, excluding administration.

5.Fringe benefits must be allocated based on the ratio of salaries to total salaries.

6.Dietary costs and food must be allocated based on meals served.

7.Vehicle expenses must be allocated based on mileage logs. Mileage logs must include documentation for miles driven and the purpose of travel. If sufficient documentation is not available to determine to which cost category vehicle expenses are to be allocated, vehicle expenses must be assigned to administration.

8.Costs not direct costed, or allocable using methods identified in subsections 1 through 7, must be included as administration costs.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; October 1, 2021.

N.D. Admin. Code 75-03-15-06 Private pay rates

N.D. Admin. Code 75-03-15-07 Allowable costs

1.Maintenance rate. Rates include allowable costs described in this subsection.

a.Salary and fringe benefits for direct care employees, which must be limited to:

(1)The direct care supervisors;

(2)Direct care employees;

(3)Family engagement specialists performing aftercare services;

(4)Cooks;

(5)Janitors and housekeepers;

(6)Laundry; and (7)Nurses when performing daily supervision, physical examinations, and medical care treatment for residents. If the nurse is providing other services within the facility, a time study will need to be completed. The portion that is daily supervision, resident physical examinations, and medical care treatment may be included in the calculation of the daily rate for maintenance.

b.Food. Actual food costs. The value of donated food may not be included in food costs.

c.Operating supplies. The cost of supplies necessary to maintain the household for the residents. Costs include cleaning supplies, paper products, and hardware supplies.

d.Personal supplies and allowances. The cost of supplies used by an individual resident, including medicine chest supplies, personal hygiene items, sanitary needs, and moneys given periodically to residents for personal use. Personal supplies and allowances do not include payment, whether in cash or in kind, for work performed by the residents or for bonuses or rewards paid based on behavior.

e.School supplies. The cost of school supplies, books, activity fees, class dues, and transportation to school.

f.Clothing. The cost of clothing to maintain a wardrobe for any resident.

g.Recreation. Costs incurred for providing recreation to residents, including magazine and newspaper subscriptions, sports equipment, games, dues for clubs, and admission fees to sporting, recreation, and social events.

h.Utilities. The cost of heat, lights, water, sewage, garbage, and common area cable or satellite TV.

i.Telephone. The cost of local service to the living quarters. Long distance calls are allowable only if specifically identified as being related to maintenance and are not service or administrative in nature. Cellular telephones or electronic communication systems, including associated monthly service fees which are less than the capitalization threshold, and are purchased by the facility for use by direct care or aftercare employees to communicate for the purpose of resident safety, programming, transportation, and supervision while on shift are allowable telephone costs.

j.Repairs. The cost of routine repairs and upkeep of property and equipment used for the residents. The facility shall capitalize and depreciate repair or maintenance costs in excess of five thousand dollars per project on equipment or over the remaining useful life of the equipment or building or over one-half of the original estimated useful life, whichever is greater.

k.Travel. All costs related to transporting residents, exclusive of transportation for evaluations and social service activities. Transportation costs may include actual vehicle expenses or actual costs not to exceed the amount established by the internal revenue service.

l.Leases and rentals. The cost of leasing assets from a nonrelated organization. If the lease cost cannot be directly associated with a function, the department shall allocate the cost in accordance with section 75-03-15-05.

m.Depreciation expense. Depreciation expense on all capitalized equipment and property which was not purchased with funds made available through other government programs or grants is allowable.

n.Insurance. The cost of insuring property and equipment used in the maintenance of residents and liability insurance for direct care employees.

o.Medical. Costs for necessary medical-related items for residents which are not covered by the resident's private insurance or governmental medical care programs, provided that facility records demonstrate that the facility has made reasonable attempts to secure insurance or program benefits. Costs may include physical examinations, drugs, dental work, corrective appliances, and required medical care and treatment for residents.

p.Administration. Costs of administration which do not exceed limitations, provided that the department, in its discretion, may exclude costs of administration based upon a lack of appropriated funds.

2.Administration costs. Costs for administration include only those allowable costs for administering the overall activities of the facility identified as follows:

a.Compensation for employees, such as facility administrators, accounting employees, clerical employees, administrative support staff, data processing employees, purchasing employees, security employees, clinical team members, such as social workers, treatment coordinators, psychologists, psychiatrists, nursing costs not covered under the maintenance rate, and other professional clinical or treatment employees;

b.Office supplies and forms;

c.Insurance, except property insurance directly identified to other cost categories, and insurance included as a fringe benefit;

d.The cost of telephone service not specifically included in other cost categories;

e.Postage and freight;

f.Professional fees for legal, accounting, and data processing;

g.Computer software costs, except costs that must be capitalized, and computer maintenance contracts;

h.Central or home office costs;

i.Employee recruitment costs;

j.Management consultants and fees;

k.Dues, license fees, and subscriptions;

l.Travel not specifically included in other costs categories;

m.The cost of heating and cooling, electricity, and water, sewer, and garbage for space used to provide administration;

n.The cost of routine repairs and maintenance of property and equipment used to provide administration;

o.The cost of facility operation associated with the space used to provide administration;

p.Property costs. Depreciation, interest, taxes, and lease costs on equipment and buildings for space used to provide administration; or

q.Training. Staff professional development costs, excluding salary and fringe benefits, but including registration, travel, and per diem expenses when addressing allowable training topics noted in 45 CFR 1356.60.

October 1, 2019; October 1, 2021.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; June 1, 2004; July 1, 2014;

N.D. Admin. Code 75-03-15-08 Rehabilitation costs

N.D. Admin. Code 75-03-15-09 Nonallowable costs

N.D. Admin. Code 75-03-15-10 Revenue offsets

The department shall require facilities to submit financial records inclusive of revenue offsets for financial auditing and rate adjustments. Facilities shall identify income to offset costs, where applicable, so that state financial participation does not supplant or duplicate other funding sources. Any income, whether in cash or in any other form which is received by the facility, with the exception of the established rate and income from payment made under the Job Training Partnership Act, must be offset up to the total of the appropriate actual costs. If actual costs are not identifiable, income must be offset in total to the appropriate cost category. If costs relating to income are reported in more than one cost category, the income must be offset in the ratio of the costs in each of the cost categories. Treatment appropriate to some sources of income is provided in this section:

1.Clothing. Facilities receiving initial clothing allowances separately from the state or other sources shall reduce costs by the amount of the reimbursement.

2.Food income. Facilities receiving revenue for food and related costs from other programs, including the United States department of agriculture or the department of public instruction or amounts from or paid on behalf of employees, guests, or nonresidents for meals or snacks shall reduce allowable food costs by the revenue received.

3.Insurance recovery. A facility shall offset any amount received from insurance for a loss incurred against the appropriate cost category, regardless of when the cost was incurred, if the facility did not adjust the basis for depreciable assets.

4.Refunds and rebates. A facility shall offset any refund or rebate received for a reported cost to the appropriate cost.

5.Transportation income. A facility shall offset any amount received for use of the facility's vehicles to transportation costs.

6.Vending income. A facility shall offset income from the sale of beverages, candy, or other items to the cost of the vending items or, if the cost is not identified, the facility shall offset all vending income to maintenance costs.

7.Gain on the sale of assets. A facility shall offset gain from the sale of an asset against depreciation expenses.

8.Rental income. A facility shall offset revenue received from outside sources for the use of facility buildings or equipment to property expenses.

9.Grant income. A facility shall offset grants, gifts, and awards from the federal, state, or local agencies to the costs which are allowed under the grant.

10.Other cost-related income. A facility shall offset miscellaneous income, including amounts generated through the sale of a previously expensed item, e.g., supplies or equipment, to the cost category where the item was expensed.

11.Other income from government sources. The department may determine that other income to the facility from local, state, or federal units of government is an offset to costs.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; June 1, 2004; July 1, 2014;

N.D. Admin. Code 75-03-15-11 Related organization

1.Costs applicable to services, facilities, and supplies furnished to a facility by a related organization may not exceed the lower of the costs to the related organization or the price of comparable services, facilities, or supplies purchased elsewhere primarily in the local market.

The facility shall identify such related organizations and costs, and shall submit allocations with the requested financial record.

2.A facility may lease buildings or equipment from a related organization. In that case, the rent or lease expense paid to the lessor is allowable in an amount not to exceed the actual costs associated with the asset if the rental of the buildings or equipment is necessary to provide programs and services to residents. The actual costs associated with the asset are limited to depreciation, real estate taxes, property insurance, and plant operation expenses incurred by the lessor.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; June 1, 2004; July 1, 2014;

N.D. Admin. Code 75-03-15-12 Home office costs

1.Home offices of chain organizations vary greatly in size, number of locations, employees, mode of operations, and services furnished to member facilities. Although the home office of a chain is normally not a facility in itself, the home office may furnish to the individual facility central administration or other services, including centralized accounting, purchasing, employees, or management services. Only the home office's actual costs of providing these services are includable in the facility's allowable costs under the program.

2.Costs that are not allowed in the facility may not be allowed as home office costs that are allocated to the facility.

3.Any service provided by the home office which is included in costs as payments by the facility to an outside vendor or which duplicates costs for services provided by the facility is considered a duplication of costs and is not allowed.

4.If a home office makes a loan to or borrows money from one of the components of its chain organization, the interest paid is not an allowable cost and interest income is not used to offset interest expense.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; July 1, 2014. 75-03-15-12.1. Startup costs.

N.D. Admin. Code 75-03-15-13 Taxes

1.Taxes assessed against the facility in accordance with the levying enactments of several states and lower levels of government and for which the facility is liable for payment are allowable costs.

2.Whenever exemptions to taxes are legally available, the facility shall take advantage of exemptions. If the facility does not take advantage of available exemptions, the expense incurred for taxes may not be recognized as an allowable cost under the program.

3.Special assessments in excess of one thousand dollars, which are paid in a lump sum, must be capitalized and depreciated. Special assessments not paid in a lump sum may be expensed as billed by the taxing authority.

1.General principles. Ratesetting principles require that payment for services must include depreciation on all depreciable type assets that are used to provide necessary services. This includes assets that may have been fully or partially depreciated on the books of the facility, but are in use at the time the facility enters the program. If any depreciated personal property asset is sold or disposed of for an amount different than its undepreciated value, the difference represents an incorrect allocation of the cost of the asset to the facility and the facility shall include it as a gain or loss on the requested financial record.

2.Depreciation methods.

a.A facility shall use the straight-line method of depreciation. All accelerated methods of depreciation, including depreciation options made available for income tax purposes, such as those offered under the asset depreciation range system, are unacceptable. The facility shall apply the method and procedure for computing depreciation on a basis consistent from year to year, and shall maintain detailed schedules of individual assets. If the books of account reflect depreciation different from that submitted on the requested financial records, the facility shall prepare a reconciliation.

b.A facility shall use a composite useful life of ten years for all equipment and land improvements and four years for vehicles. A facility shall depreciate buildings and improvements to buildings over the length of the mortgage or a minimum of twenty-five years, whichever is greater.

3.Acquisitions.

a.If a depreciable asset has, at the time of its acquisition, a historical cost of at least five thousand dollars for each item, the facility shall capitalize and depreciate the cost over the estimated useful life of the asset, except as provided in subsection 3 of section

History

• History: Effective November 1, 1985; amended effective March 1, 1999; June 1, 2004; October 1, 2021. 75-03-15-13.1. Depreciation.

N.D. Admin. Code 75-03-15-13 A facility shall capitalize costs, including architectural, consulting, legal fees, and interest, incurred during the construction of an asset, as a part of the cost of the asset

b.A facility shall capitalize and depreciate repair or maintenance costs in excess of five thousand dollars per project on equipment or buildings over the remaining useful life of the equipment or building or one-half of the original estimated useful life, whichever is greater.

4.Recordkeeping. Proper records must provide accountability for the fixed assets and must also provide adequate means by which depreciation may be computed and established as an allowable child-related cost. Tagging of major equipment items is not mandatory, but alternate records must exist to satisfy audit verification of the existence and location of the assets.

5.Donated assets. For purposes of this chapter, a facility may record and depreciate donated assets based on their fair market value. If the facility's records do not contain the fair market value of the donated asset as of the date of the donation, the donated item must be appraised. The appraisal must be performed by a recognized appraisal expert and must be accepted for depreciation purposes. The facility may elect to forego depreciation on donated assets, negating the need for a fair market value determination.

6.Basis for depreciation.

a.Determination of the cost basis of a facility and its depreciable assets, which have not been involved in any programs which are funded in whole or in part by the department, depends on whether or not the transaction is a bona fide sale. If the issue arises, the purchaser has the burden of proving that the transaction was a bona fide sale.

Purchases where the buyer and seller are related organizations are not bona fide.

(1)If the sale is bona fide, the cost basis must be the cost to the buyer.

(2)If the sale is not bona fide, the cost basis must be the seller's cost basis less accumulated depreciation.

b.The cost basis of a facility, including depreciable assets which are purchased as an ongoing operation, must be the seller's cost basis less accumulated depreciation.

c.The cost basis of a facility, including depreciable assets which have been used in any programs which are funded in whole or in part by the department, must be the cost basis used by the other program less accumulated depreciation.

d.Sale and leaseback transactions must be considered a related party transaction. The cost basis of a facility, including depreciable assets purchased and subsequently leased to a provider who operates the facility, must be the seller's cost basis less accumulated depreciation.

History

• History: Effective March 1, 1999; amended effective July 1, 2014; October 1, 2021.

N.D. Admin. Code 75-03-15-14 Cost allowability and limitations

Any questions regarding cost allowability and limitations are governed by title IV-E of the Social Security Act [42 U.S.C. 670 et seq.] and 45 CFR part 74, unless further limited by this chapter. The department sets rates under this chapter for not-for-profit organizations only and purchases facility services for children in foster care only from facilities in North Dakota for which rates have been set under this chapter.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; July 1, 2014.

N.D. Admin. Code 75-03-15-15 Variance

1.Upon written application, and good cause shown to the satisfaction of the department, the department may grant a variance from the provisions of this chapter upon terms the department may prescribe, except no variance may permit or authorize a danger to the health or safety of residents and no variance may be granted except at the discretion of the department.

2.A facility may request excess maintenance cost variance specific to a resident need beyond the difficulty of care rate upon terms the department may prescribe. No variance may be granted except at the discretion of the department.

3.A refusal to grant a variance is not subject to a request for review or an appeal.

History

• History: Effective November 1, 1985; amended effective March 1, 1999; July 1, 2014; October 1, 2021.

N.D. Admin. Code 75-03-15-16 Review and appeals

1.Review.

a.A facility may request a review of denial of payment by filing a written request for review with the department within thirty days of the date of the department's denial of payment.

The written request for review must include the notice and a statement of each disputed item with the reason or basis for the dispute. A facility may not request review for a full or partial denial, recoupment, or adjustment of a claim due to required federal or state changes, payment system defects, or improper claims submission or of the rate paid for a particular service or difficulty of care rate.

b.Within thirty days after requesting a review, a facility shall provide to the department all documents, written statements, exhibits, and other written information that support the facility's request for review, together with a computation and the dollar amount that reflects the facility's claim as to the correct computation and dollar amount for each disputed item.

c.The department shall make and issue a decision within seventy-five days, or as soon thereafter as possible, of receipt of notice of request for review.

2.Appeals. A facility may appeal the final decision of the department to the district court in the manner provided in North Dakota Century Code section 28-32-42, and the district court shall review the department's final decision in the manner provided in North Dakota Century Code

section 28-32-46. The judgment of the district court in an appeal from a request for review may be reviewed in the supreme court on appeal by any party in the same manner as provided in North Dakota Century Code section 28-32-49.

3.Upon receipt of notice that the facility has appealed its final decision to the district court, the department shall make a record of all documents, written statements, exhibits, and other written information submitted by the facility or the department in connection with the request for review and the department's final decision on review, which constitutes the entire record.

Within thirty days after an appeal has been taken to district court as provided in this section, the department shall prepare and file in the office of the clerk of the district court in which the appeal is pending the original and a certified copy of the entire record, and that record must be treated as the record on appeal for purposes of North Dakota Century Code section 28-32-44.

History

• History: Effective March 1, 1999; amended effective October 1, 2021.

Chapter 75-03-16 Licensing of Group Homes and Residential Child Care Facilities [Repealed]

N.D. Admin. Code 75-03-16 Licensing of Group Homes and Residential Child Care Facilities [Repealed]

CHAPTER 75-03-16

LICENSING OF GROUP HOMES AND RESIDENTIAL CHILD CARE FACILITIES [Repealed effective October 1, 2019]

Chapter 75-03-17 Psychiatric Residential Treatment Facilities for Children

N.D. Admin. Code 75-03-17-01 Definitions

1."Accredited" means to be accredited and in good standing by an independent, not-for-profit accreditation organization approved by the United States department of health and human services and the department, including the commission on accreditation of rehabilitation facilities, the joint commission, and the council on accreditation.

2."Active treatment" means a strength based, culturally competent, and medically appropriate treatment designed to meet immediate needs with specific outcome and return to the family or another less restrictive community setting as soon as clinically possible and when treatment in a facility is no longer medically necessary.

3."Aftercare" means followup support and services provided to a resident and family after discharge from a facility.

4."Applicant" means the entity requesting licensure as a psychiatric residential treatment facility for children under this chapter.

5."Child", "children", or "resident" means an individual or individuals under the age of twenty-one.

6."Clinical supervision" means the oversight responsibility for individual treatment plans and individual service delivery.

7."Condition" means a violation of the requirements of any applicable law or regulation.

8."Department" means the department of health and human services.

9."Diagnostic assessment" means a written summary of the history, diagnosis, and individual treatment needs of an individual with a mental illness using diagnostic, interview, and other relevant assessment techniques.

10."Discharge planning" means the multidisciplinary process that begins at the time of admission that identifies the child's and family's needed services and supports upon discharge.

11."Employee" means an individual compensated by the facility to work, including contracted service providers who conduct onsite training, treatment groups, individual therapy, or other facility services.

12."Family-driven" means the family has a primary decisionmaking role in the care of its own children.

13."Individual person-centered treatment plan" means a youth-guided and family-driven written plan of intervention, treatment, and services that is developed under clinical supervision on the basis of a diagnostic assessment.

14."Individual with a mental illness" means an individual with an organic, mental, or emotional disorder that substantially impairs the capacity to use self-control, judgment, and discretion in the conduct of personal affairs and social relations. "Individual with a mental illness" does not include an individual with intellectual disabilities of significantly subaverage general intellectual functioning which originate during the developmental period and is associated with impairment in adaptive behavior, although an individual who has intellectual disabilities may also be an individual who has a mental illness. A substance use disorder does not per se constitute mental illness, although an individual who has a substance use disorder may also be an individual who has a mental illness.

15."Initial license" means a license for a new facility that is in effect for one year.

16."Nonemployee" means an individual, including a volunteer or student intern, who is not compensated by the facility

17."Psychiatric residential treatment facility for children" or "facility" means a facility or a distinct

part of a facility that provides to children and adolescents a total, twenty-four-hour, therapeutic environment integrating group living, educational services, and a clinical program based upon a comprehensive, interdisciplinary clinical assessment and an individualized treatment plan that meets the needs of the child and family. The services are available to children in need of and able to respond to active psychotherapeutic intervention and who cannot be effectively treated in their own family, in another home, or in a less restrictive setting. The facility must be in compliance with requirements for psychiatric residential treatment facilities under 42 U.S.C. 1396d [Pub. L. 89-97; 79 Stat. 351] and title 42, Code of Federal Regulations, subpart D,

part 441 and subpart G, part 483.

18."Residential treatment" means a twenty-four-hour a day program under clinical supervision in a community residential setting other than an acute care hospital, for the active treatment of individuals with mental illness.

19."Sentinel event" means any serious injury or trauma to a resident, death of a resident, or inappropriate sexual contact.

20."Serious injury" means any significant impairment of the physical condition of the child as determined by qualified medical personnel. This includes burns, lacerations, bone fractures, substantial hematoma, and injuries to internal organs, whether self-inflicted or inflicted by someone else.

21."Serious risk of harm" means a substantial likelihood of:

a.Suicide, as manifested by current suicidal threats, attempts, or significant depression creating immediate risk of suicide;

b.Killing or inflicting serious bodily harm to self or another individual, as manifested by current act; or

c.Substantial deterioration in physical health or substantial injury, disease, or death based on current poor self-control or judgment.

22."Special treatment procedures" are defined as follows:

a."Drug used as a restraint" means any drug that:

(1)Is administered to manage a resident's behavior in a way that reduces the safety risk to the resident or others;

(2)Has a temporary effect of restricting the resident's freedom of movement; and (3)Is not a standard treatment for the resident's medical or psychiatric condition.

b."Emergency safety interventions" means the use of restraint or seclusion as an immediate response to an emergency safety situation.

c."Emergency safety situation" means unanticipated resident behavior that places the resident or others at serious threat of violence or injury if no intervention occurs and that calls for an emergency safety intervention.

d."Mechanical restraint" means any device attached or adjacent to the resident's body that the resident cannot easily remove that restricts freedom of movement or normal access to the resident's body.

e."Personal restraint" means the application of physical force without the use of any device, for the purposes of restraining the free movement of a resident's body. The term personal restraint does not include briefly holding without undue force a resident in order to calm or comfort the resident, or holding a resident's hand to safely escort a resident from one area to another.

f."Physical escort" means the temporary touching or holding of the hand, wrist, arm, shoulder, or back for the purpose of inducing a resident who is acting out to walk to a safe location.

g."Restraint" means a personal restraint, mechanical restraint, or drug used as a restraint.

h."Seclusion" means the confinement of a resident alone in a room or an area from which the resident is physically prevented from leaving.

i."Timeout" means the voluntary option of a resident to move to a designated area from which the resident is not physically prevented from leaving, for the purpose of providing the resident an opportunity to regain self-control.

23."Tier 1 mental health professional" means a licensed psychiatrist, licensed psychologist, licensed physician or a physical assistant, or an advanced practice registered nurse.

24."Trauma-informed" means an understanding of the prevalence of traumatic experiences in a child who receives mental health services and of the profound neurological, biological, psychological, and social effect of trauma and violence on the child being treated.

25."Youth-guided" means a child has the right to be empowered, educated, and given a decisionmaking role in the care of the child's own life.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; July 1, 2012; April 1, 2014; April 1, 2016; July 1, 2022; April 1, 2024.
• Law Implemented: NDCC 25-03.2-01, 25-03.2-03

N.D. Admin. Code 75-03-17-02 Procedures for licensing

1.Application. An application for license or for renewal as a facility must be submitted to the department. The department shall determine the suitability of the applicant for licensure under this chapter. The application must contain any materials the department may require, including:

a.A comprehensive list and description of the program plan which includes:

(1)A plan demonstrating compliance with this chapter;

(2)A copy of current accreditation certification, accreditation letter, and findings report;

(3)The facility's organizational chart;

(4)The treatment modalities offered, including milieu therapy, family therapy, psychopharmacology, and psychotherapy;

(5)Prohibited treatment modalities; and (6)The services provided directly by the facility and those provided by other community resources, including special education as required by law and contracted services.

b.A copy of all policies and procedures as required by this chapter with a detailed plan for their implementation.

c.A list of licensed professionals employed or to be employed by or contracting with the facility.

2.License contents. The license to operate a psychiatric residential treatment facility for children must specify:

a.The name of the licensee;

b.The premises for which the license is applicable;

c.The number of children who may reside at the facility at any one time;

d.The date of expiration of the license;

e.The facility license number; and

f.The name of the accreditation body.

3.Initial license and license renewal.

a.An initial license for a new facility is in effect for one year. Subsequent licenses shall be renewed at least once every two years, either through a full onsite license review or the facility may receive deemed status, at the discretion of the department.

b.The license is valid only on the premises indicated and is not transferable.

c.License renewals are based on the outcomes of the department's licensure reviews, the facility's ongoing compliance with the licensure rules set forth in this chapter, and the facility's accreditation standings. The facility must list the department as a confidential inquiry for the accrediting body on their accreditation intent to survey prior to each accreditation review. If the accrediting body determines a facility to not be in good standing, the facility shall report that determination to the department within five working days after the facility has learned of that determination.

d.A facility shall submit a license renewal application on a form required by the department to the department licensor fifteen days prior to the date the department has notified the facility will be the date the facility's licensure review will begin.

4.Provisional license. The department may issue a provisional license, effective for up to ninety days, to a facility that has failed to comply with any of the standards of this chapter or with any other state law or regulation, compliance with which is required for licensure. The facility will have thirty days from the issuance of the provisional license to submit a written plan of correction for the department's review and approval. The department may perform an onsite followup visit to assure that the standards have been met by the facility.

a.The department may renew a provisional license if the licensee demonstrates to the department that it has made progress towards compliance and can be fully compliant within the next ninety days. A provisional license may be renewed but may not exceed one hundred eighty consecutive days.

b.When a facility operating under a provisional license notifies the department that it has corrected its deficiencies, the department must ascertain whether all deficiencies have been corrected. Upon finding compliance and sustainability, the department shall issue an unrestricted license for the balance of the licensing period.

c.The department may apply restrictions to a provisional license to limit the number of children in residence or the ages of the children in residence while the provisional license is in effect.

5.License display. A facility shall display its license in a conspicuous place within the facility.

6.Notice of change. A facility shall notify the department in writing at least thirty days before any of the following changes occur:

a.Transfer of or change in ownership.

b.Transfer of operating rights, including a lease of the facility where the lessor retains no control of the operation or management of the facility.

c.Change in the name of the facility.

7.Denial and revocation of a license. Failure to comply with any of the standards of this

chapter or other state law or regulation is cause for refusal or revocation of a license.

Conviction of an offense by an owner or operator of a facility does not disqualify the facility from licensure unless the department determines that the offense has a direct bearing upon an individual's ability to serve the public as an owner or operator of a psychiatric residential treatment facility for children, or that, following conviction of any offense, the individual is not sufficiently rehabilitated under section 12.1-33-02.1.

8.Appeal. An applicant may appeal a license denial or a department decision not to allow an increase or decrease in bed capacity in accordance with North Dakota Century Code chapter 28-32 and North Dakota Administrative Code chapter 75-01-03.

9.License report procedures.

a.Within thirty days of an onsite review of a facility, the department shall send a license report to the facility that was reviewed.

b.A license report must contain a description of the programs and services reviewed, strengths, concerns, recommendations, and conditions.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,
• Law Implemented: NDCC 25-03.2-02, 25-03.2-03,25-03.2-04, 25-03.2-05, 25-03.2-08

N.D. Admin. Code 75-03-17-03 Organization and administration

1.Governing body. The applicant must have a governing body that designates or assigns responsibility for the operation, policies, program, and practice of the facility. The governing body shall:

a.Define:

(1)The facility's philosophy;

(2)The facility's purpose;

(3)The facility's function;

(4)The geographical area served by the facility;

(5)The ages and types of children accepted for care by the facility; and (6)The clinical disorders addressed by the facility's program;

b.Ensure that all policies and procedures required by this chapter are in writing and on file at the facility and are accessible to all employees, family members, and residents;

c.Develop a records retention policy and procedures consistent with state and federal law;

d.Assure that all vehicles transporting children are:

(1)Subject to routine inspection and maintenance;

(2)Licensed by the state motor vehicle department;

(3)Equipped with seatbelts for every passenger;

(4)Equipped with a first-aid kit and a fire extinguisher;

(5)Carrying no more individuals than the manufacturer's recommended maximum capacity;

(6)Disability accessible where appropriate; and (7)Driven by an individual who holds a valid driver's license, of a class appropriate to the vehicle driven, issued by the driver's jurisdiction of residence; and

e.Obtain sufficient insurance, including:

(1)Liability insurance covering bodily injury, property damage, personal injury, professional liability; and (2)Automobile or vehicle insurance covering property damage, comprehensive, collision, uninsured motorist, bodily injury, and no fault.

2.Quality improvement. The applicant and facility shall implement a quality improvement program. The applicant and facility shall submit the quality improvement program and evaluations of the program to the department for review at a minimum of every six months.

The applicant shall create policies and procedures and have them in place to implement its facility's quality improvement program. The facility must monitor and evaluate the quality and appropriateness of care of children, and identify performance indicators that will be monitored to assess the program's effectiveness. The quality improvement program must include:

a.A plan for child and employee safety and protection;

b.A method to evaluate personnel performance and the utilization of personnel;

c.A plan to ensure the facility accesses and maintains copies of the current license of all employees, contract workers, and consultants when relevant for that individual's role or function;

d.A system of credentialing, granting, and withholding employee privileges;

e.A method to review and update policies and procedures assuring the usefulness and appropriateness of policies and procedures;

f.A method to review the appropriateness of admissions, care provided, and employee utilization;

g.A plan for the review of individual treatment plans that ensures compliance with paragraph 3 of subdivision b of subsection 3 of section 75-03-17-05;

h.A plan for program evaluations that includes measurements of progress toward the facility's stated goals and objectives; and

i.A method to evaluate and monitor standards of resident care.

3.Outcomes and data collection. The department shall require a facility to engage in data management practices to collect and report outcomes every six months. Data collection efforts will offer facilities a continuous quality improvement process that measures and monitors the safety, wellbeing, and service delivery provided to children in placement. Facilities must have written policy to identify a plan to implement, collect, and measure outcomes data requirements. The policy must also include how a facility will respond to identified data outcomes by utilizing one or more facility improvement plans every six months.

4.Children's case records. The facility shall establish and implement policies and procedures to ensure the facility maintains a confidential record for each child which must be current and reviewed monthly. Each record must contain:

a.An application for service;

b.A social history;

c.A release of information and medical treatment consent form signed by a person who may lawfully act on behalf of the child and any consent for the use of psychotropic medications as required under subdivision d of subsection 10 of section 75-03-17-07;

d.The name, address, and telephone number of individuals to be contacted in an emergency;

e.Reports on medical examinations, including immunizations, any medications received, allergies, dental examinations, and psychological and psychiatric evaluations which occurred prior to the placement;

f.An explanation of custody and legal responsibility for the child and relevant court documents, including custody or guardianship papers;

g.Documentation on all medical examinations, including immunizations, all medications received, allergies, dental examinations, and psychological and psychiatric evaluations received during placement;

h.Documentation of medical care given during placement as a result of an admission to the hospital or inpatient care, including:

(1)Hospitalization admission and discharge records to include history and physical;

(2)Medications administered, with the quantity, directions, physician's name, date of issue, and name of the pharmacy indicated; and (3)Significant illnesses or accidents;

i.Records of the annual medical examination required under section 75-03-17-07; and

j.A written agreement between a person who may lawfully act on behalf of the child and the facility and a record that the person who acted on behalf of the child received a copy.

The agreement must include:

(1)A statement as to who has financial responsibility;

(2)How payments are to be made to cover the cost of care;

(3)Which items are covered by the normal or regular facility charges for care;

(4)Medical arrangements, including the cost of medical care;

(5)Visiting arrangements and expectations;

(6)Arrangements for clothing and allowances;

(7)Arrangements for therapeutic leave;

(8)Regulations about gifts permitted;

(9)Arrangements for participation by the person who acted on behalf of the child through regularly scheduled interviews with designated employee;

(10)The facility's policy on personal monetary allowance to be provided to the child at the facility;

(11)Records of special treatment orders; and (12)Educational arrangements agreed upon discharge.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,

N.D. Admin. Code 75-03-17-04 Admissions

1.A child may be admitted to a psychiatric residential treatment facility for children if:

a.The child has been diagnosed by a psychiatrist or psychologist as suffering from a mental illness or emotional disturbance;

b.The child's situation meets the definition of serious risk of harm; and

c.A less restrictive setting cannot meet the immediate treatment need.

2.The facility shall provide a short-term, intense, focused mental health treatment program to promote successful return of the child to the community with specific outcomes of the mental health services to include the child returning to the family or another less restrictive community living situation as soon as clinically possible.

3.Every facility shall have specific admission policies that describe which professional staff have admission authority. Admissions must occur emergently and planned. Diagnostic assessment and plan of care must document immediate need for inpatient psychiatric residential services.

4.A tier 1 mental health professional must complete an assessment of a child upon admission to a facility.

5.The facility shall grant or deny admission within three business days of receipt of a completed application.

6.If admission is denied, the facility shall indicate the reason in writing to the individual or referral source making the application for placement, including recommendations for services and supports available to the child and family.

7.No child may be denied admission to a facility on the basis of race, color, creed, religion, or national origin.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,
• Law Implemented: NDCC 25-03.2-03, 25-03.2-06

N.D. Admin. Code 75-03-17-05 Diagnosis and treatment while at the facility

1.Duties of the facility. The facility shall:

a.Provide for a medical, psychiatric, and psychological assessment of each child no later than seventy-two hours after admission;

b.Immediately include family and custodians in the active treatment;

c.Involve the families and the person who may lawfully act on behalf of the child in the person-centered treatment plan;

d.Provide daily therapy and programming that are individually tailored to meeting a child's need and in sufficient volume to resolve immediate inpatient need. Therapies must include individual and family components to facilitate rapid return of the child to a family setting;

e.Provide ongoing and consistent individual therapy utilizing evidence-based models of care for psychiatric residential treatment facilities for children. Individual therapy must focus on providing the child skills they need to be successful in their home and community;

f.Complete a diagnostic assessment, completed by a licensed psychiatrist, no less than seventy-two hours after admission that includes:

(1)A psychiatric history;

(2)A mental status examination, including an assessment of suicide;

(3)Psychosocial, including family history; and (4)Complete set of diagnosis and recommendations for immediate treatment; and

g.Ensure therapeutic leave such as weekend overnight visits or day passes with family must be documented in the child's case file and be tied to family therapy and therapeutic goals of the child and family, or it must be documented in the child's case file why weekend overnight visits or day passes are not tied to therapy and therapeutic goals of the child and family.

2.Specialists. The facility shall provide a sufficient number of qualified psychiatric professionals to meet the resident needs. Each facility shall provide a minimum of one-half hour per week per bed of psychiatry time, one hour per week per bed of family therapy time, and two hours per week per bed of individual therapy time. Each facility shall provide twenty-four-hour nursing, which may include a combination of onsite or on-call hours.

3.Individual person-centered treatment plan.

a.The facility shall develop and implement an individual person-centered treatment plan that includes the child's input giving the child a voice and a choice in the treatment planning and interventions used. The plan must be based upon a comprehensive interdisciplinary diagnostic assessment, which includes the role of the family, identifies the goals and objectives of the therapeutic activities and treatment and it must be developed by an interdisciplinary team. The plan must provide a schedule for accomplishing the therapeutic activities and treatment goals and objectives, and identify the individuals responsible for providing services to children consistent with the individual person-centered treatment plan. Clinical supervision for the individual person-centered treatment plan must be accomplished by full-time or part-time employment of or contracts with a licensed psychiatrist, a licensed psychologist, a licensed clinical social worker, or a nurse who holds advanced licensure in psychiatric nursing. Clinical supervision must be documented by the clinical supervisor cosigning individual person-centered treatment plans and by entries in the child's record regarding supervisory activity. The child, and the person who lawfully may act on the child's behalf, must be involved in all phases of developing and implementing the individual person-centered treatment plan. The child may be excluded from planning if excluding the child is determined to be in the best interest of the child and the reasons for the exclusion are documented in the child's plan.

b.The plan must be:

(1)Based on a diagnosis using the current diagnostic and statistical manual of mental disorders and a biopsychosocial assessment;

(2)Developed within three business days of admission; and (3)Reviewed at a minimum every fourteen days and updated or amended to meet the needs of the child by the interdisciplinary team.

c.The person-centered treatment plan must identify:

(1)Treatment goals that are short term and intense, focused on successful return to home and community;

(2)Time frames for achieving the goals;

(3)Goals that are achievable and measurable;

(4)The individuals responsible for coordinating and implementing child and family treatment goals;

(5)Therapeutic intervention or techniques or both for achieving the child's treatment goals;

(6)The projected length of stay and discharge plan; and (7)Referrals made to other service providers based on treatment needs, and the reasons referrals are made.

4.Solicitation of funds. A facility may not use a child for advertising, soliciting funds, or in any other way that may cause harm or embarrassment to a child or the child's family. A facility may not make public or otherwise disclose by electronic, print, or other media for fundraising, publicity, or illustrative purposes, any image or identifying information concerning any child or member of a child's immediate family, without first securing the child's written consent and the written consent of the person who may lawfully act on behalf of the child. The written consent must apply to an event that occurs no later than ninety days after the date the consent was signed and must specifically identify the image or information that may be disclosed by reference to dates, locations, and other event-specific information. Consent documents that do not identify a specific event are invalid to confer consent for fundraising, publicity, or illustrative purposes. The duration of an event identified in a consent document may not exceed fourteen days.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,

N.D. Admin. Code 75-03-17-06 Special treatment procedures

A facility shall have written policies and procedures regarding implementation of special treatment procedures. Special treatment procedures must be therapeutic and meaningful interventions and may not be used for punishment, for the convenience of employees, or as substitute for therapeutic programming. Upon admission, the facility shall inform the child and the person who may lawfully act on behalf of the child of the facility policy on restraint and seclusion procedures during an emergency safety situation. The facility shall provide education to the children, providing each child the opportunity to express the child's opinion and educating the child on alternative behavior choices to avoid the use of special treatment procedures. Alternatives to behaviors must be documented in each child's individual person-centered treatment plan. The health, safety, and well-being of children receiving care and treatment in the facility must be properly safeguarded. A physician shall review the use of special treatment procedures.

1.Timeout. Employees shall supervise the use of timeout procedures at all times, and shall document the use of timeout procedures in the child's file. The use of the resident's bedroom for timeout is prohibited.

2.Physical escort. Employees shall supervise the use of physical escort procedures at all times and shall document the use of physical escort in the child's file.

3.Physical restraints.

a.Physical restraints must be ordered by a psychiatrist or other physician, a licensed psychologist, a licensed clinical social worker, or a nurse who holds advanced licensure in psychiatric nursing. Staff authorized to order physical restraint must be trained in the use of emergency interventions. A psychiatrist or other physician, a licensed psychologist, a licensed clinical social worker, or a nurse who holds advanced licensure in psychiatric nursing must review and sign the order within forty-eight hours after the ordered physical restraint. Physical restraints may be imposed only in emergency circumstances and must be used with extreme caution to ensure the immediate physical safety of the child, an employee, or others after all other less intrusive alternatives have failed or have been deemed inappropriate;

b.All physical restraints must be applied by employees who are certified in the use of restraints and emergency safety interventions; and

c.The facility shall have established protocols that require:

(1)Entries made in the child's file as to the date, time, employee involved, reasons for the use of, and the extent to which physical restraints were used, and which identify less restrictive measures attempted;

(2)Notification within twelve hours of the individual who lawfully may act on behalf of the child; and (3)Face-to-face assessment of children in physical restraint completed by a psychiatrist or other physician, a licensed psychologist, a licensed clinical social worker, a nurse who holds advanced licensure in psychiatric nursing, or other licensed health care professional or practitioner who is trained in the use of safety, emergency interventions. The face-to-face assessment must be documented in the child's case file and include assessing the mental and physical well-being of the child. The face-to-face assessment must be completed as soon as possible, and no later than one hour after the initiation of physical restraint or seclusion.

4.Seclusion. Seclusion must be ordered by a psychiatrist or other physician, a licensed psychologist, a licensed clinical social worker, or a nurse who holds advanced licensure in psychiatric nursing. Staff authorized to order seclusion must be trained in the use of emergency interventions. A psychiatrist or other physician, a licensed psychologist, a licensed clinical social worker, or a nurse who holds advanced licensure in psychiatric nursing must review and sign the order within forty-eight hours after the ordered seclusion. Seclusion may be imposed only in emergency circumstances after all other less intrusive alternatives have failed or have been deemed inappropriate. Seclusion is to be used with extreme caution, and only to ensure the immediate physical safety of the child, an employee, or others. A child's bedroom may not be used for seclusion. If seclusion is indicated, the facility shall ensure that:

a.The proximity of the employee allows for visual and auditory contact with the child at all times;

b.Employees conduct assessments of the child every fifteen minutes and document the assessments in the child's case file;

c.The seclusion room is not locked, or is equipped with a lock that only operates with an employee present such as a push-button lock that only remains locked while it is being pushed;

d.All nontherapeutic objects are removed from the area in which the seclusion occurs;

e.All fixtures within the room are tamperproof, with switches located outside the room;

f.Smoke-monitoring or fire-monitoring devices are an inherent part of the seclusion room;

g.Security mattresses used are made of fire-resistant material;

h.The room is properly ventilated;

i.Notification of the individual who lawfully may act on behalf of the child is made within twelve hours of a seclusion and is documented in the child's case file;

j.A child under special treatment procedures is provided a similar diet that other children in the facility are receiving;

k.No child remains in seclusion:

(1)For more than four hours in a twenty-four-hour period; and (2)Without physician approval;

l.Seclusion is limited to the maximum time frame per episode for fifteen minutes for children aged nine and younger and one hour for children aged ten and older; and

m.Face-to-face assessment of children in seclusion is completed by a psychiatrist or other physician, licensed psychologist, a licensed clinical social worker, a nurse who holds advanced licensure in psychiatric nursing, or other licensed health care professional or practitioner who is trained in the use of safety, emergency interventions. The face-to-face assessment must be documented in the child's case file and include assessing the mental and physical well-being of the child. The face-to-face assessment must occur no later than one hour after the initiation of seclusion.

5.Within twenty-four hours of each use of seclusion or physical restraint, the facility shall conduct a face-to-face discussion which includes the child and all employees involved in the emergency intervention, except when the involvement of a particular employee may jeopardize the wellbeing of the child, and which:

a.Evaluates and documents in the child's case file the well-being of the child served and identifies the need for counseling or other therapeutic services related to the incident;

b.Identifies antecedent behaviors and modifies the child's individual person-centered treatment plan as appropriate; and

c.Analyzes the incident and identifies needed changes to policy and procedures, employee training, and strategies that could have been used by an employee, by the child, or by others which could prevent the future use of seclusion or physical restraint.

6.Within twenty-four hours after the use of physical restraint or seclusion, all employees involved in the emergency safety intervention, and appropriate supervisory and administrative employees, shall conduct a debriefing session that includes, at a minimum a review and discussion of:

a.Precipitating factors to the emergency situation;

b.Alternative techniques that might have prevented the use of physical restraint or seclusion;

c.The procedures, if any, that employees are to implement to prevent any recurrence of the use of physical restraint or seclusion; and

d.The outcomes of the intervention, including any injuries that may have resulted from the use of the physical restraint or seclusion.

7.Employees shall document in the child's record both the face-to-face discussion and debriefing sessions identified in subsections 5 and 6 and the names of employees involved, employees excused, and any changes to the child's treatment plan as a result of the face-toface discussion and debriefing. The facility also shall document that the person who may lawfully act on behalf of the child was notified.

8.Special treatment procedure training. Each facility must have policies and procedures regarding annual training in the use of all special treatment procedures listed in this section, which comply with the standards set forth by the facility's accrediting body.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,
• Law Implemented: NDCC 50-11-03, 50-11-03.2

N.D. Admin. Code 75-03-17-07 Medical care

The facility shall institute policies and procedures to address the medical care for each child during placement at the facility, including:

1.Medical examination. Each child must have a medical examination within thirty days prior to admission or within seventy-two hours of admission.

2.Immunizations. Each child must have current immunizations as required by North Dakota Century Code section 23-07-17.1.

3.Medical care arrangements. A facility shall make arrangements with a physician for medical care of each child.

4.Annual medical examination. Each child shall have a medical examination at least annually.

5.Employee instruction. The facility shall train employees what medical care, including first aid, may be given by employees without specific orders from a physician. The facility shall instruct employees how to obtain further medical care and how to handle emergency cases.

6.Hospital admission. Each facility shall institute policies and procedures regarding transfers and discharges from an admission to the hospital. A facility's policies and procedures must include arrangements made with a hospital for the admission of children from the facility in the event of serious illness or an emergency.

7.Hospitalization or death reports. A facility shall report all hospitalizations immediately to an individual who lawfully may act on behalf of the involved child. The facility shall report any death immediately to the department, an individual who lawfully may act on behalf of the child, a law enforcement agency, and the county coroner. The facility shall document these contacts in the involved child's case file.

8.Prescription labels. The facility shall obtain prescribed medications on an individual prescription basis and labeled according to state and federal rules.

9.Administration of medications.

a.The facility shall institute policies and procedures for guidance in the administration of all medications. Medications must be administered by a designated employee who is medication-certified. All medications must be labeled and stored in a locked cabinet, with the keys for the cabinet kept under the supervision of the designated employee assigned to administer the medications. The medication cabinet must be equipped with separate cubicles, plainly labeled with each child's name.

b.The facility shall return medications belonging to a child to the person who lawfully may act on behalf of the child upon discharge, or the designated individual in charge of medication storage shall dispose of the medications according to the facility's policies and procedures for the disposal of medications. The facility's policies and procedures for the disposal of medications must be in accordance with state and federal requirements for the disposal of medications.

c.The facility may possess a limited quantity of nonprescription medications. The medications must be ordered by a physician and administered under the supervision of medication-certified employee. d.(1)The facility shall obtain written consent, including via electronic mail, or shall obtain verbal consent witnessed by another individual, from a person who lawfully may act on behalf of the child prior to administering:

(a)A newly prescribed medication to the child except in an emergency situation;

(b)A psychotropic medication; or (c)A medication dosage or dosage range change.

A person who lawfully may act on behalf of the child who receives medication must be informed of benefits, risks, and the potential side effects of all prescribed medication. The facility shall obtain written consent within fourteen days verifying verbal consent received. The facility shall document and file all consents in the child's case file.

(2)The facility shall institute policies and procedures governing the use of psychotropic medications, which require documentation in the case file justifying the necessity and therapeutic advantages for the child receiving psychotropic medication.

Documentation must reflect that a trauma screening has been completed and that the symptomology that the psychotropic medication is attempting to treat is not more effectively treated through therapeutic interventions that specifically address symptomology related to trauma.

e.Upon admission, when a new psychotropic medication is prescribed, and when a psychotropic medication is discontinued, a child's psychotropic medication regime must be reviewed by the attending psychiatrist every seven days for the first thirty days and every thirty days thereafter. Additionally, the facility's nursing staff shall complete an involuntary movement assessment prior to the start of, or a change in the dose of, a psychotropic medication. An involuntary movement assessment must be repeated every three months, or sooner if determined necessary, following completion of the initial involuntary movement assessment to monitor the child for side effects of the psychotropic medication.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,

N.D. Admin. Code 75-03-17-08 Dental care

Each child shall have an annual dental examination. If a child has not had an examination in the twelve months prior to admission, an examination must be scheduled within ninety days of admission.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008.

N.D. Admin. Code 75-03-17-09 General health

1.Sleep. Each child must receive enough sleep for the child's age at regular and reasonable hours, and under situations conducive to rest.

2.Personal hygiene. The facility shall educate children on age-appropriate hygiene.

3.Bathing facilities. The facility shall maintain properly and keep clean toilet facilities.

4.Personal articles. The facility shall ensure that each child has a toothbrush, comb, and an adequate supply of towels, washcloths, and personal toiletry articles.

5.Daily diet. The facility shall provide food that meets all dietary needs for each child's daily nutritional requirements, including special dietary needs, such as food allergies and diabetes.

6.Clothing. Each child shall have clothing for the child's exclusive use. The clothing must be comfortable and appropriate for current weather conditions.

7.Play. The facility shall provide safe, age-appropriate equipment for indoor and outdoor play.

The facility shall provide safety instructions on all equipment prior to the child participating in the activity.

8.Services. The facility shall provide education on general health and promote positive healthy activities, such as sufficient therapeutic treatment, and educational, recreational, and leisure activities.

9.Spirituality. The facility shall make a reasonable effort to make opportunities available for children to attend spiritual ceremonies within the area in which the facility is located, giving reasonable consideration to requests by the child or a person with lawful authority to act on behalf of the child. The facility shall respect the spiritual beliefs of the child and the child's family.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1, 2014; July 1, 2022.

N.D. Admin. Code 75-03-17-10 Education and training

1.Public education. Any primary or secondary program offered by a facility must be in compliance with standards established by the department of public instruction. The facility shall ensure that children comply with all state school attendance laws.

2.Employee training. The facility shall provide quarterly training to employees which is relevant to address the changing needs of the milieu and according to the requirements of the facility's accrediting body.

a.All employees on duty must have satisfactorily completed annual training on current first aid, therapeutic crisis intervention or crisis prevention intervention, suicide awareness and prevention training, standard precautions as used by the centers for disease control and prevention, training on institutional child abuse and neglect to include reporting requirements and prohibition of employer retaliation for reporting, and cardiopulmonary resuscitation training and have on file at the facility a certificate of satisfactory completion prior to having direct contact with residents. A certificate must be provided to each employee demonstrating their competencies in cardiopulmonary resuscitation on an annual basis and therapeutic crisis intervention on a semi-annual basis. An employee who is in orientation status and who is in the process of completing the required trainings and background check may be allowed to job shadow with an employee who the facility has deemed to be an experienced and competent employee to supervise during orientation status. The facility ensures that employees who are in orientation status are always under the supervision of experienced employees and are not left alone with the children until all required training and background check has been completed.

b.Each employee must be able to recognize the common symptoms of illnesses of children, signs and symptoms of an overdose, and to note any marked physical defects of children. The facility shall ensure a sterile clinical thermometer and a complete first-aid kit are available.

3.Discipline. A facility shall create a trauma-informed culture that promotes respect, healing, and positive behaviors and which minimizes the use of restrictive behavior management interventions to the extent possible. Discipline must be constructive or educational in nature and follow the discipline guidelines of the facility's accrediting body. A facility shall adopt and implement written policies and procedures for discipline and behavior management consistent with the following:

a.Only employees of the facility may prescribe, administer, or supervise the discipline of children. Authority to discipline may not be delegated to children or nonemployees.

b.A child may not be slapped, punched, spanked, shaken, pinched, roughly handled, struck with an object, or receive any inappropriate physical treatment.

c.Verbal abuse and derogatory actions or remarks about the child, the child's family, religion, or cultural background may not be used or permitted.

d.A child may not be locked in any room.

e.The facility shall develop and implement a youth-guided, family-driven plan of discipline as part of the child's person-centered treatment planning, emphasizing the use of positive behavior supports and therapeutic interventions, that promote an effective means of discipline. Daily documentation must reflect whether the interventions are effective and if they need revising.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,

N.D. Admin. Code 75-03-17-11 Children as employees prohibited

Children may not be solely responsible for any major phase of the facility's operation or maintenance, including cooking, laundering, housekeeping, farming, or repairing.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008.

N.D. Admin. Code 75-03-17-12 Discharge

1.Discharge planning for each child must begin during the admission process. The facility shall develop an evolving discharge plan within seven days of admission that identifies the child's and family's needed services and supports upon discharge and include the discharge plan in the treatment plan. The facility's interdisciplinary team shall review the discharge plan every fourteen days at the same time as the treatment plan review. The facility's interdisciplinary team shall update or amend the discharge plan to meet the needs of the child.

2.Prior to discharge, the facility shall complete a discharge plan, coordinate community services required for the child to return to the home, and provide information for aftercare services with each child's family, school, and community to ensure continuity of care. The discharge plan must address and include:

a.Psychiatric, medical, educational, psychological, social, behavioral, developmental, and chemical dependency treatment needs;

b.The reason for discharge;

c.A progress report, including an update on the child's psychiatric care and treatment recommendations;

d.An assessment of community-based service needs for the child and family;

e.A statement that the discharge plan recommendations have been reviewed with the child and the person who lawfully may act on behalf of the child;

f.The name and title of the individual into whose care the child was discharged.

3.The discharge committee shall review and approve each anticipated discharge thirty days before the discharge and provide the completed discharge plan to the custodian at least seven days before the anticipated discharge.

4.At least seven days prior to discharge a team meeting involving the child, the person who lawfully may act on behalf of the child, the facility treatment team, and related community services providers must take place to ensure the continuity of services consistent with the child's treatment needs after discharge. As part of the discharge planning requirements, facilities shall:

a.Identify a prescribing provider in the community and schedule an outpatient visit;

b.Ensure the child has a seven-day supply of needed medication and a written prescription for medication to last through the first outpatient visit in the community with a prescribing provider; and

c.Include documentation of the medication plan and arrangements for the outpatient visit in the medical records in the child's case file. If medication has been used during the child's treatment in the facility but is not needed upon discharge, the reason the medication is being discontinued must be documented in the medical records in the child's case file.

5.The discharge committee shall review and approve each discharge from a facility prior to the discharge. The discharge committee must include the following:

a.Tier 1 mental health professional;

b.Attending therapist;

c.Assigned social worker;

d.Facility nurse;

e.Facility educator;

f.Facility residential staff; and

g.A person who lawfully may act on behalf of the child.

6.The facility shall assist the child and the person who lawfully may act on behalf of the child in preparing for the transition from residential treatment to return the child home, to a foster family, adoptive family, an institution, or to the home of relatives.

7.The facility treatment team shall develop a discharge plan that ensures appropriate appointments are scheduled, based on the child's needs and input from the person who lawfully may act on behalf of the child, as part of the post discharge plan. Appointments must support continuity of care addressing needs for individual therapy, psychiatric services and educational services, and other services or supports that may be appropriate. The facility treatment team shall provide a copy of the plan to the person who lawfully may act on behalf of the child and a copy must remain in the chart.

8.If a discharge is not anticipated at least thirty calendar days ahead of time, the discharge is considered unplanned and the facility shall:

a.Hold a discharge planning meeting involving the child, custodian, parent, guardian, facility treatment team, additional family members, and any other relevant parties. This meeting must allow relevant parties time to review the discharge plan and aftercare engagement strategies while discussing services needed to best meet the needs of the child; and

b.Create and provide in writing a finalized discharge and aftercare plan to the custodian and parent or guardian at least seven days before the child's discharge.

9.A child's discharge from the facility may not be based on the child's need for short-term inpatient treatment at a psychiatric facility.

10.The facility may not discharge a child without community-based support services in place. If a child does not have a home or safe place for discharge, the facility shall work with the legal custodian or placing agency to implement a safety plan for the child until a safe place is available.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1,

N.D. Admin. Code 75-03-17-13 Responsibility for notification - Elopement of children

When a facility confirms that a child's whereabouts are unknown, the facility shall immediately notify law enforcement officials and the individual who may lawfully act on behalf of the child. The child's return must be reported immediately to law enforcement and the individual who may lawfully act on behalf of the child. The facility shall institute policies and procedures for responding to the elopement of children from the facility.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1, 2014.

N.D. Admin. Code 75-03-17-14 Employee health qualifications

1.All employees, including nonemployees, must be in good health and physically and mentally capable of performing assigned tasks.

2.All employees must have a health screening that includes a test for tuberculosis, performed by or under the supervision of a physician not more than one year prior to or thirty days after employment. The individual performing the screening shall sign a report indicating the presence of any health condition that would create a hazard to children of the facility or other employees.

3.Unless effective measures are taken to prevent transmission, an employee or nonemployee suffering from a serious communicable disease shall be isolated from other employees, nonemployees, and children of the facility who have not been infected.

4.Information obtained concerning the medical condition or history of an employee must be collected and maintained on forms and in medical files separate from other forms and files and must be treated as a confidential medical record.

5.The facility shall develop a policy regarding health requirements for nonemployees that addresses tuberculin testing.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1, 2014; April 1, 2016.
• Law Implemented: NDCC 25-03.2-03, 25-03.2-04, 25-03.2-07

N.D. Admin. Code 75-03-17-15 Staff-to-child ratio

1.The ratio of employee to children must meet the standards of the facility's accredited body and be included in the facility's policies and procedures. The facility shall follow the employee-tochild ratio set by its accrediting body, or the ratios set forth in this subsection, if the ratios set forth in this subsection require a greater number of employee to children than the ratios set by the accrediting body. The employee-to-child ratio on the premises during waking hours Monday through Friday is dependent on the needs of the children and the requirements of the individual person-centered treatment plans, but may not be less than:

a.Two employees present who are qualified to provide direct care for one to six residents.

b.Three employees present who are qualified to provide direct care for seven to nine

c.Four employees present who are qualified to provide direct care for ten to twelve

d.Five employees present who are qualified to provide direct care for thirteen to sixteen

2.On evenings, nights, weekends, and holidays, during non-programming hours, the ratio of employees to children is dependent on the needs of the children and the requirements of the individual person-centered treatment plans. Additionally, the ratio of employee-to-children must meet the minimum standards of the accrediting body but may not be less than two employees on premises qualified to provide direct care. The facility shall implement a policy that if there is an emergency, and additional employees are not available to respond to the facility within fifteen minutes, the facility will call for law enforcement or emergency medical assistance.

3.All night employees must be awake and within hearing distance of children. Employees shall perform bedroom checks at a minimum of every fifteen minutes to assure that each sleeping child is in that child's assigned room and is safe.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; July 1, 2014; April 1, 2016.

N.D. Admin. Code 75-03-17-16 Personnel policies and employee and nonemployee files

1.The facility shall have clearly written personnel policies. The policies must be made available to each employee and nonemployee and must include:

a.An employee training and development plan;

b.Procedures for reporting suspected child abuse and neglect for employees and nonemployees;

c.Procedures for employee evaluation, disciplinary actions, and termination;

d.A prohibition of sexual contact between employees and nonemployees and children in accordance with the Prison Rape Elimination Act of 2003 [Pub. L. 108-79];

e.Procedures for employee grievances;

f.Both oral and written instructions regarding employee and nonemployee responsibility for preserving confidentiality;

g.Evaluation procedures that include a written evaluation following the probationary period for new employees and at least annually thereafter; and

h.A plan for review of the personnel policies and practices with employee and, as appropriate, nonemployee, participation at least once every three years, or more often if necessary.

2.The facility shall maintain an individual file on each employee. The file must include:

a.The application for employment including a record of previous employment and the applicant's statement in answer to the question, "Have you been convicted of a crime?";

b.Annual performance evaluations; or

c.Annual professional development and training records consisting of name of presenter, date of presentation, topic of presentation, and length of presentation;

d.The following required training certificates:

(1)First-aid training;

(2)Cardiopulmonary resuscitation and automated external defibrillator;

(3)Nonviolent crisis intervention;

(4)Suicide prevention training;

(5)Evidence-based treatment modalities; and (6)Trauma training;

e.Evidence of the employee having read the law requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, and having read and received a copy of the facility's written child abuse and neglect procedures;

f.Results of background checks for criminal conviction record, motor vehicle operator's license record, as applicable, and child abuse or neglect record;

g.Any other evaluation or background check deemed necessary by the administrator of the facility; and

h.Documentation of the status of any required license or qualification for the position or tasks assigned to the employee.

3.The facility shall maintain an individual file on each nonemployee. The file must include:

a.Personal identification information;

b.Results of background checks for criminal conviction record, motor vehicle operator's license record, as applicable, and child abuse or neglect record;

c.Description of duties;

d.Orientation and training records consisting of name of presenter, date of presentation, topic of presentation, and length of presentation; and

e.Evidence of the nonemployee having read the law requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, and having read and received a copy of the facility's written child abuse and neglect procedures.

4.The facility shall adopt a policy regarding the retention of employee and nonemployee files.

1.All facility employees and nonemployees, upon hire and annually thereafter, shall certify having read the law requiring the reporting of suspected child abuse or neglect, North Dakota Century Code chapter 50-25.1, and having read and received a copy of the facility's written child abuse and neglect reporting procedures.

2.The facility shall adopt written policies and procedures requiring employees and nonemployees to report cases of suspected child abuse and neglect. The procedures must include the following statements:

"All employees and nonemployees shall comply with North Dakota Century Code chapter 50-25.1, child abuse and neglect. Therefore, it is the policy of this facility that an employee or nonemployee who knows or reasonably suspects that a current resident or former resident receiving aftercare services whose health or welfare has been, or appears to have been, harmed as a result of abuse or neglect, that employee or nonemployee shall immediately report this information to the department.

Failure to report this information in the prescribed manner constitutes grounds for dismissal from employment or placement of nonemployee and referral of the employee or nonemployee to the office of the state's attorney for investigation of possible criminal violation."

3.The facility's policies and procedures must address:

a.To whom a report is made;

b.When a report must be made;

c.The contents of the report;

d.The responsibility of each individual in the reporting chain;

e.The status of an employee or nonemployee who is the alleged perpetrator subject of a report pending assessment, administrative proceeding, or criminal proceeding;

f.The discipline of an employee or nonemployee who is the perpetrator subject of a confirmed decision or a determination that institutional child abuse or neglect is indicated, up to and including termination; and

g.The status and discipline of an employee or nonemployee who fails to report suspected child abuse or neglect.

4.The facility shall cooperate fully with the department throughout the course of any assessment or investigation of any allegation of child abuse or neglect made concerning care furnished to a resident. The facility shall, at a minimum, provide the assessors, investigators, or reviewers with all documents and records available to the facility and reasonably relevant to the assessment or investigation, and shall permit confidential interviews with employees, nonemployees, and residents. Internal facility interviews and investigations are not permitted to occur concurrent with a department assessment or law enforcement investigation. A facility may use risk reduction techniques to ensure safety and security of employees, nonemployees, and residents. In the case of an indicated determination, the facility shall notify the department licensing administrator, in writing, of the corrective action the facility has taken, or plans to take, to comply with any resulting recommendations from the state child protection team. The facility shall make assurances that revised facility practice will reduce the risk of the incident reoccurring. The facility shall respond within thirty days of receiving written notification of the determination.

April 1, 2022; July 1, 2022. 75-03-17-16.2. Criminal conviction - Effect on operation of facility or employment by facility.

1.A facility operator may not be, and a facility may not employ, in any capacity that involves or permits contact between the employee, contracted service providers, or nonemployee and any child cared for by the facility, an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1- 16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children, 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter; or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery, if class A or B felony under subsection 2 of that section; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of a child;or 14-09-22.1, neglect of a child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department determines that the individual has not been sufficiently rehabilitated.

(1)The department will not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions has elapsed.

(2)An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

2.A facility shall establish written policies, and engage in practices that conform to those policies, to effectively implement subsection 1.

3.The department has determined the offenses enumerated in subdivisions a and b of subsection 1 have a direct bearing on the individual's ability to serve the public in a capacity involving the provision of foster care to children.

4.In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C; or 12.1-31-07.1, exploitation of an eligible adult - penalty, if class B or C felony or a class A misdemeanor; or

chapter 19-03.1, Uniform Controlled Substances Act, if a class A, B, or C felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, for all other criminal convictions. The department may not be compelled to make such determination.

5.The department may discontinue processing a request for a criminal background check for any individual who provides false or misleading information about the individual's criminal

history.

6.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community;

b.Acknowledged by the individual; or

c.Discovered by the facility, authorized agent, or department as result of a background check.

7.The facility shall require a fingerprint-based criminal background check and child abuse or neglect index be completed for each employee and nonemployee.

8.The facility shall make an offer of employment to an employee or an offer of placement to a nonemployee conditional upon the individual's consent to complete required background checks. While awaiting the results of the required background checks, a facility may choose to provide training and orientation to an employee or nonemployee. However, until the completed and approved required background check results are placed in the employee or nonemployee file, the employee or nonemployee shall only have supervised interaction with any child cared for by the facility.

9.A facility shall establish written policies specific to how the facility will proceed if a current employee or nonemployee is known to have been found guilty of, plead guilty to, or pled no contest to a criminal offense.

10.If a prospective employee has previously been employed by one or more group homes, residential child care facilities, or facilities, the facility shall request a reference from all previous group home, residential child care facility, and facility employers regarding the existence of any determination or incident of reported child abuse or neglect in which the prospective employee is the perpetrator subject.

11.The facility shall perform a background check for reported suspected child abuse or neglect each year on each facility employee. Each employee, including direct care staff, supervisors, administrators, administrative, and facility maintenance staff, shall complete a departmentapproved authorization for child abuse and neglect background check form no later than the first day of employment and annually thereafter to facilitate the background checks required under this subsection.

12.The department may excuse an individual from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an individual is excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the person lived during the eleven years preceding the signed authorization for the background check.

13.A facility shall establish written policies and engage in practices that conform to those policies, to effectively implement this section.

14.Fingerprint-based criminal background check results must be reviewed as follows:

a.If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel.

c.An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

d.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

e.The final decision of the review panel may not be appealed.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1, 75-03-17-16.1. Child abuse and neglect reporting.
• History: Effective September 1, 1998; amended effective April 1, 2008; April 1, 2014; April 1, 2016;
• History: Effective April 1, 2016; amended effective July 1, 2022; April 1, 2024; October 1, 2024.
• Law Implemented: NDCC 25-03.2-03, 25-03.2-04.1, 25-03.2-07

N.D. Admin. Code 75-03-17-17 Facility employee

1.The facility's employees shall include:

a.An executive director who has a bachelor's degree in a behavioral science, or a bachelor's degree in any field and two years of experience in administration;

b.A program director who has a bachelor's degree in social work, psychology, or in a related field with professional experience working with children suffering from mental illnesses or emotional disturbances;

c.Facility care employees who are at least twenty-one years of age and have sufficient training and demonstrated skills experience to perform assigned duties;

d.A sufficient number of qualified psychiatric professionals, employed or contracted, to meet the resident needs; and

e.Educators, where onsite education is provided.

2.Nonemployees may be used to augment and assist other employees in carrying out program or treatment plans. Nonemployees shall receive orientation training regarding the program, employees, and children of the facility, and the functions to be performed.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1, 2016; July 1, 2022; April 1, 2024.

N.D. Admin. Code 75-03-17-18 Safety, buildings, and grounds

1.Compliance with fire, sanitation, and zoning standards. An applicant shall demonstrate compliance with applicable state or local fire, sanitation, and zoning standards. The premises to be used must be in fit, safe, and sanitary condition and properly equipped to provide good care and treatment.

a.Fire. For fire safety, the facility shall meet the applicable life safety standards established by the city. If the city has not established life safety standards, the facility shall comply with chapter 21 of the Life Safety Code of the national fire protection association, 1985 edition, and amendments thereto.

(1)Compliance is shown by submitting the written report of an authorized fire inspector, following an initial or subsequent inspection of a building which states the:

(a)Rated occupancy and approval of the building for occupancy; or (b)Existing hazards, and recommendations for correction which, if followed, would result in approval of the building for occupancy.

(2)All electrical and heating equipment must be approved by underwriters laboratories, incorporated, or another nationally recognized testing laboratory.

b.Sanitation. Compliance with sanitation standards is shown by submitting a statement prepared by a licensed environmental health professional or authorized public health officer, following an initial or subsequent annual inspection, that the building's plumbing, sewer disposal, water supply, milk supply, and food storage and handling comply with the applicable rules of the department and the department of environmental quality.

c.Zoning. Compliance with zoning requirements is shown by submitting a statement prepared by the appropriate county or municipal official having jurisdiction that the premises are in compliance with local zoning laws and ordinances.

2.Safety. Safety requirements of a facility must include:

a.Prohibition of smoking on the premises;

b.Procedures for water safety where swimming facilities are on the grounds;

c.A copy of the Red Cross manual on first-aid measures, or a book of its equivalent, and first-aid supplies;

d.Prohibiting a child's possession and use of any firearms while at the facility;

e.Advising children of emergency and evacuation procedures upon admission and thereafter every two months;

f.Training in properly reporting a fire, in extinguishing a fire, and in evacuation from the building in case of fire. Fire drills must be held monthly. Fire extinguishers must be provided and maintained throughout each building in accordance with standards of the state fire marshal; and

g.Telephones with emergency numbers posted by each telephone in all buildings that house children.

3.Buildings and grounds. The facility must have sufficient outdoor recreational space, and the facility's buildings must meet the following standards:

a.Bedrooms. Each child must have eighty square feet [7.43 square meters] in a single sleeping room, and sixty square feet [5.57 square meters] per individual in a multiple occupancy sleeping room; the child's own bed, and bed covering in good condition; and a private area to store the child's personal belongings. A facility may not permit more than two children in each sleeping room; children to sleep in basements or attics; nonambulatory children to sleep above the first floor; and a child to share a bedroom with a child of the opposite sex.

b.Bathrooms. The facility's bathroom facilities must have an adequate supply of hot and cold water; be maintained in a sanitary condition; have separate toilet and bath facilities for male and female children, and employees; and have one bathroom that contains a toilet, washbasin, and tub or shower with hot and cold water for every four children.

c.Dining and living rooms must have suitably equipped furnishings designed for use by children within the age range of children served by the facility.

d.The facility shall provide sufficient space for indoor quiet play and active group play.

e.The facility shall provide adequate heating, lighting, and ventilation.

f.Employee quarters must be separate from those of children, although near enough to assure proper supervision of children.

g.A facility shall provide a quiet area for studying.

h.A facility shall lock all outbuildings on the property at all times when not in use by facility employees.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1, 2014; April 1, 2016; April 1, 2024.

N.D. Admin. Code 75-03-17-19 Interstate compact on the placement of children

1.The facility shall comply with the interstate compact on the placement of children and the interstate compact for juveniles.

2.All placements from any state which has not adopted the interstate compact on the placement of children or the interstate compact on juveniles must comply with all North Dakota laws and rules prior to the arrival of a child at a facility.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008.
• Law Implemented: NDCC 25-03.2-03, 25-03.2-06

N.D. Admin. Code 75-03-17-20 Rights and obligations of the applicant

1.Right to apply for license. An applicant has the right to apply to receive a license to operate a facility under this chapter.

2.Entry and inspection.

a.The department may evaluate a facility's compliance with this chapter at any time through:

(1)An announced or unannounced onsite review; or (2)A request for written documentation verifying compliance.

b.The applicant shall allow authorized representatives of the department to enter any of the applicant's buildings or facilities to determine the extent to which the applicant is in compliance with the rules of the department, to verify information submitted with an application for licensure or license renewal, and to investigate complaints. Inspections must be scheduled for the mutual convenience of the department and the facility unless the effectiveness of the inspection would be substantially diminished by prearrangement.

3.Access to records. The applicant shall allow duly authorized representatives of the department to inspect the records of the applicant, to facilitate verification of the information submitted with an application for licensure, and to determine the extent to which the applicant is in compliance with the rules of the department.

4.Denial of access to facilities and records. Any applicant or licensee which denies access, by the authorized representative of the department, to a facility or records for the purpose of determining the applicant's or licensee's state of compliance with the rules of the department shall have its license revoked or application denied.

5.License refusal or revocation. Failure to comply with any of the standards of this chapter or other state law or regulation is cause for refusal or revocation of a license. Conviction of an offense by an owner or operator of a facility does not disqualify the facility from licensure unless the department determines that the offense has a direct bearing upon an individual's ability to serve the public as an owner or operator of a psychiatric residential treatment facility for children or that, following conviction of any offense, the individual is not sufficiently rehabilitated under North Dakota Century Code section 12.1-33-02.1.

6.Appeal. An applicant may appeal a license denial in accordance with North Dakota Century Code chapter 28-32 and North Dakota Administrative Code chapter 75-01-03.

7.Deemed status. The department may recognize "deemed status" for those providers who are accredited by nationally recognized bodies who review and certify providers of psychiatric residential treatment services for children. When applying for licensure or licensure renewal, proof of accreditation or "deemed status" in the form of the accreditation agency's most recent review and certification must be submitted to the department. "Deemed status" means status conferred on a facility accredited by a national accreditation body based on standards that exceed the standards set forth in these licensure rules.

History

• History: Effective December 1, 1989; amended effective September 1, 1998; April 1, 2008; April 1, 2014; July 1, 2022; April 1, 2024.
• Law Implemented: NDCC 25-03.2-02, 25-03.2-03, 25-03.2-07, 25-03.2-08, 25-03.2-09

N.D. Admin. Code 75-03-17-21 Increase or decrease in the number of licensed beds in a facility

1.A facility may not increase or decrease bed capacity without approval of the department. A facility requesting a bed capacity change shall submit a request to the department licensor. To qualify for an increase, a facility must:

a.Be in compliance with this chapter.

b.Submit a plan for the use of its beds.

2.The department shall review the facility's request and may approve or deny the request considering the programming need for the beds and the number of beds available.

History

• History: Effective April 1, 2014.
• Law Implemented: NDCC 25-03.2-03.1

N.D. Admin. Code 75-03-17-22 Incident and sentinel event reporting

1.The facility shall have a written policy outlining the documentation of incidents that occur while the resident is in placement. The policy must include:

a.A description of an incident as an unplanned occurrence that resulted or could have resulted in injury to an individual or damage to property, specifically involving the public, residents, or agency employees and nonemployees; incidents involving law enforcement, including in the case of a runaway, criminal activity, behavior resulting in harm to others, or restraint injury; and incidents involving outbreak of a serious communicable disease, harassment, violence, and discrimination; and

b.Notification must be made to the custodian and parent or guardian immediately or no more than twelve hours;

2.The facility shall have a written policy outlining the documentation of sentinel events that occur while the resident is in placement. The policy must include:

a.A description of a sentinel event as an unexpected occurrence involving death or serious physical or psychological injury not related to the natural course of a resident's illness or underlying medical condition, including any process variation for which a reoccurrence would carry a significant chance of a serious adverse outcome, trauma to a resident, attempted suicide by the resident, or inappropriate sexual contact; and

b.Notification must be made to the custodian and parent or guardian, and the department immediately or no more than twelve hours;

3.Documentation of an incident or sentinel event must be completed and placed in the resident's record. The report must include:

a.Resident's name, age, and sex;

b.A description of the incident or event;

c.The date, time, and location of the incident or event;

d.The name of each employee or nonemployee involved;

e.Methods used to address the resident's behavior, including duration of each intervention;

f.Detailed description of the technique or approach engaged with the resident at the time of the incident or event;

g.Results achieved from methods used to address resident behavior; and

h.Injuries received by either the resident, employee, or nonemployee in using physically enforced separation or restraint, how the injuries occurred, and any medical care provided;

4.The facility shall maintain a log of written reports of incidents involving residents;

5.Direct care staff must be given time at the beginning of each shift to be informed of or review incident reports occurring since their last shift; and

6.Employees, nonemployees, and residents must be given time to debrief the incident with clinical staff.

N.D. Admin. Code 75-03-17-23 Conditions

1.The department may require immediate correction of a condition that threatens the life or safety of a resident.

2.The facility shall submit to the department a plan of corrective action within thirty days of receiving the licensure visit report. The facility shall be allowed sixty days after the plan of corrective action is submitted to and approved by the department to implement the plan and satisfy the conditions.

3.The department may conduct another onsite review before issuing the license after a facility has developed a plan of corrective action.

4.If the facility does not satisfy a condition or develop a plan of corrective action to satisfy the condition within the time frames allowed, the department may impose a ninety-nine-day suspension of the facility's license. At the end of the ninety-nine-day suspension, if the condition has been corrected, the department may issue a one-year provisional license to the facility. If the facility has not corrected the condition, the department may revoke the facility's license.

5.Upon written request by the facility and upon showing a need for an extension created by circumstances beyond the control of the facility and documentation that the facility has diligently pursued correction of the condition, the department may grant extensions of time to correct conditions.

6.A facility which has had its license revoked is prohibited from submitting a new application to the department for consideration for a license for any facility during the three hundred sixty-five days following a license revocation.

N.D. Admin. Code 75-03-17-24 Variance

Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance regarding a specific provision of this chapter upon such terms as the department may prescribe, except no variance may permit or authorize a danger to the health or safety of any resident cared for by the facility and no variance may be granted except at the discretion of the department. A facility shall submit a written request to the department justifying the variance. A refusal to grant a variance is not subject to appeal.

Chapter 75-03-17.1 Authorized Agent in Providing Child Welfare Services [Repealed]

N.D. Admin. Code 75-03-17.1 Authorized Agent in Providing Child Welfare Services [Repealed]

CHAPTER 75-03-17.1

AUTHORIZED AGENT IN PROVIDING CHILD WELFARE SERVICES [Repealed effective April 1, 2020]

Chapter 75-03-18 Procedures for Appeal of Child Abuse and Neglect Assessments

N.D. Admin. Code 75-03-18-01 Definitions

1."Assessing agency" means the human service zone where the report of suspected abuse or neglect is assessed, or, in certain instances, the department.

2."Assessment" is the factfinding process designed to provide information which enables a decision to be made whether a child meets the definition of an abused or neglected child.

3."Decision" means the determination made under North Dakota Century Code section 50-25.1-05.1 whether a child meets the definition an abused or neglected child.

4."Department" means the North Dakota department of human services or its authorized agent.

5."Subject" means a person responsible for the child's welfare as defined by North Dakota Century Code section 50-25.1-02.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1,1996; July 1, 2020; April 1, 2022.
• Law Implemented: NDCC 50-25.1-04.1, 50-25.1-05.4

N.D. Admin. Code 75-03-18-02 Who may file an appeal

1.The subject of an assessment of suspected child abuse or neglect who is aggrieved by the result of the assessment or child protection tier designation may file an appeal.

2.A staff member of child protection services shall notify the subject in writing of the decision resulting from an assessment, including the child protection tier designation. The staff member of child protection services who notifies the subject of the decision resulting from the assessment shall complete an affidavit of mailing that becomes a part of the assessment record in the form and manner prescribed by the department.

3.Written appeal procedures are available from the department upon request.

September 1, 1997; April 1, 2022; April 1, 2024.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1,1996;

N.D. Admin. Code 75-03-18-03 Request for appeal to be in writing - Where filed - Content

A request for an appeal must be in writing on forms developed and provided by the department.

The subject shall submit the written request for an appeal and formal hearing to:

Appeals Supervisor North Dakota Department of Human Services State Capitol - Judicial Wing 600 East Boulevard Avenue Bismarck, North Dakota 58505-0250 The written request must include:

1.A succinct statement by the subject as to why the subject disagrees with the decision;

2.All reasons or grounds the subject disagrees with must be included in a single request for appeal; and

3.A statement of the relief sought by the subject.

September 1, 1997.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1,1996;

N.D. Admin. Code 75-03-18-04 Time for filing request for appeal

An appeal may not be filed before the date of an assessment decision or child protection tier designation and must be received by the department within thirty days after the documented date of the subject notification of the decision in accordance with procedures in chapter 75-01-03. Notification is considered to have occurred three days after the date on the affidavit of mailing. A postmark date is not accepted as the received date.

September 1, 1997; April 1, 2022; April 1, 2024.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1,1996;

N.D. Admin. Code 75-03-18-05 Informal meeting

This chapter shall be construed to encourage informal, mutually consensual meetings or discussions between the subject and the assessing agency. Such informal review will not suspend or extend the time for filing an appeal pursuant to section 75-03-18-04.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1,1996; July 1, 2020.

N.D. Admin. Code 75-03-18-06 Request for formal hearing

N.D. Admin. Code 75-03-18-07 Formal hearing

The formal hearing must be conducted in substantial conformity with applicable provisions of

chapter 75-01-03.

January 1, 1996, amendments voided by the Administrative Rules Committee effective August 8, 1996; amended effective September 1, 1997. 75-03-18-07.1. Treatment of witnesses.

1.The hearing must be conducted according to any fair treatment standards adopted by the legislative assembly or the supreme court for the protection of witnesses or children in court proceedings.

2.If any child is to be called as a witness during the appeal hearing, whether for deposition, discovery, or for the hearing, the office of administrative hearings may appoint a guardian ad litem for the child witness. If the child witness is the victim and the party calling the victim is the subject and the victim's parent or guardian, the office of administrative hearings shall appoint a guardian ad litem for the child victim. A guardian ad litem's involvement is considered to be assisting in an investigation or child protection assessment.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1, 1996;
• History: Effective January 1, 1996; January 1, 1996, amendments voided by the Administrative Rules Committee effective August 8, 1996; amended effective September 1, 1997; April 1, 2022.
• Law Implemented: NDCC 50-25.1-03, 50-25.1-05.4

N.D. Admin. Code 75-03-18-08 Hearing decision

N.D. Admin. Code 75-03-18-09 Probable cause finding not directly reviewable

N.D. Admin. Code 75-03-18-10 Confidentiality

1.Information furnished at any informal conference, grievance meeting, and formal hearing is confidential and subject to the provisions of North Dakota Century Code sections 50-06-15, 50-25.1-11, and 50-25.1-14.

2.The identity of a reporter of any incident of suspected abuse and neglect may not be disclosed at any informal conference or at any grievance meeting conducted under this chapter or

chapter 75-03-18.1.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; April 1, 2022.
• Law Implemented: NDCC 50-25.1-05.4, 50-06-15, 50-25.1-11, 50-25.1-14

N.D. Admin. Code 75-03-18-11 Evidence

1.Any privilege of communication between husband and wife or between any professional person and that person's patient or client, except between attorney and client or involving members of the clergy acting as spiritual advisers, does not constitute grounds for the exclusion of evidence during an assessment of reported suspected child abuse or neglect, or during an appeal under this chapter or under North Dakota Century Code chapter 28-32.

2.Any statement, relied upon by the department made by a child who is a suspected victim of a report of suspected child abuse or neglect or who is a witness to the suspected abuse or neglect of another child may be introduced into evidence.

3.Copies of any statements or any records sought to be entered into evidence shall be redacted to protect any statutory confidentiality requirements.

History

• History: Effective November 1, 1994; amended effective January 1, 1996; January 1, 1996, amendeds voided by Administrative Rules Committee effective August 8, 1996; amended effective September 1, 1997.
• Law Implemented: NDCC 50-25.1-03, 50-25.1-05.4

N.D. Admin. Code 75-03-18-12 Effect of appeal

Neither a request for appeal under this chapter nor an appeal from that decision under North Dakota Century Code chapter 28-32 shall be construed to suspend the requirement to provide services during the time of the appeal until such time as a final decision overturning the case decision has been made and not appealed.

History

• History: Effective November 1, 1994; amended effective January 1, 1996; July 1, 2020.

N.D. Admin. Code 75-03-18-13 Effect of reversal of case decision or appeal

If an assessment decision is reversed on appeal under this chapter or under North Dakota Century Code chapter 28-32, a notation of the fact that the finding was reversed must be added to the record and the department may not place the subject on the child abuse information index.

History

• History: Effective November 1, 1994; amended effective January 1, 1996; April 1, 2022; April 1, 2024.

Chapter 75-03-18.1 Child Abuse and Neglect Assessment Grievance Procedure for Conduct of the Assessment

N.D. Admin. Code 75-03-18.1 Child Abuse and Neglect Assessment Grievance Procedure for Conduct of the Assessment

CHAPTER 75-03-18.1

CHILD ABUSE AND NEGLECT ASSESSMENT GRIEVANCE PROCEDURE FOR CONDUCT

OF THE ASSESSMENT

Section 75-03-18.1-01Definitions 75-03-18.1-02Who May File Grievance 75-03-18.1-03Grievance to be in Writing - Contents - Time for Filing 75-03-18.1-04Grievance Meeting 75-03-18.1-05Grievance Meeting Decision 75-03-18.1-06Informal Conference 75-03-18.1-07Confidentiality 75-03-18.1-01. Definitions.

1."Department" means the North Dakota department of human services.

2."Director" means the director of the human service zone or the director's designee.

3."Subject" means a person responsible for the child's welfare as defined by North Dakota Century Code section 50-25.1-02. 75-03-18.1-02. Who may file grievance.

Only the subject of a report of suspected child abuse or neglect who is aggrieved by the conduct of the assessment may file a grievance. 75-03-18.1-03. Grievance to be in writing - Contents - Time for filing.

1.The grievance must be in writing on forms developed and provided by the department and must contain a succinct statement of the grievant's objections to the conduct of the assessment.

2.A grievance must be filed with the director of the human service zone which provided the written assessment decision notification within ten days of the grievant's receipt of the written decision of the department.

History: Effective September 1, 1997; July 1, 2020. 75-03-18.1-04. Grievance meeting.

1.If a grievance is filed, the human service zone completing the assessment shall schedule a grievance meeting with the subject. This meeting must be held within ten days of the director's receipt of the written grievance. The director shall preside at the grievance meeting.

2.At a maximum, the grievance meeting may include the following participants:

a.An individual designated by the department;

b.Two individuals that the subject determines should be present; and

c.Up to two human service zone-selected individuals having information concerning the conduct of the assessment. 75-03-18.1-05. Grievance meeting decision.

Within ten days after conclusion of the grievance meeting, the director shall prepare a written summary of the meeting and the resolution of the grievance. The written summary must be based on the files, records, and information received at the grievance hearing. The written summary and resolution constitutes the final determination of the grievance. The summary and resolution of the director must be sent to the grievants and the individual designated by the department. 75-03-18.1-06. Informal conference.

This chapter must be construed to encourage informal, mutually consensual conferences or discussions between the subject and the assessing agency. Such informal conferences may not suspend or extend the time for filing a grievance under this chapter or for filing an appeal under chapter 75-03-18. 75-03-18.1-07. Confidentiality.

Information furnished at the informal conference and grievance meeting is confidential and subject to the provisions of North Dakota Century Code section 50-25.1-11.

Chapter 75-03-19 Assessment of Child Abuse and Neglect Reports

N.D. Admin. Code 75-03-19-01 Definitions

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 50-25.1, except:

1."Assessment" means an alternative response assessment, child protection assessment, and family services assessment as defined in North Dakota Century Code chapter 50-25.1-02.

2."Decision" means the determination made under North Dakota Century Code section 50-25.1-05.1 whether a child meets the definition of an abused or neglected child.

3."Subject" means a person responsible for the child's welfare as defined by North Dakota Century code section 50-25.1-02.

January 1, 1996, amendments voided by Administrative Rules Committee effective August 8, 1996;

September 1, 1997; July 1, 2020; April 1, 2022.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1, 1996;

N.D. Admin. Code 75-03-19-02 Department's authorized agent to receive reports and conduct assessments - Reimbursement

The department's authorized agent shall act as designee of the department for the purpose of receiving reports of suspected child abuse or neglect and conducting assessments, except as otherwise provided for by law or as otherwise determined by the department in a particular case.

History

• History: Effective September 1, 1990; amended effective January 1, 1996; July 1, 2006; July 1, 2020.
• Law Implemented: NDCC 50-25.1-02(3), 50-25.1-04, 50-25.1-05, 50-25.1-05.1

N.D. Admin. Code 75-03-19-03 Time for initiating assessments - Emergencies

All nonemergency child abuse or neglect assessments must be initiated within time frames established by the department after receipt of a report by the assessing agency. In cases involving a serious threat or danger to the life or health of a child, the assessment and any appropriate protective measures must commence immediately upon receipt of a report by the assessing agency. An assessment is initiated by contact with the alleged abused or neglected child, a law enforcement officer with jurisdiction in the location where the child may be found or where the alleged abuse or neglect occurred, or the subject of the report.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1, 1996; April 1, 2022.

N.D. Admin. Code 75-03-19-04 Time for completing assessments

Assessments of reports of suspected child abuse or neglect must be completed, a decision made, and a written report completed and submitted to the individual designated by the department within sixty-two days from the date of receipt of the report unless an extension of the time is requested of and granted by the department.

History

• History: Effective September 1, 1990; amended effective January 1, 1996; July 1, 2006; July 1, 2020.

N.D. Admin. Code 75-03-19-05 Time for submitting written assessment reports

Repealed effective July 1, 2006.

N.D. Admin. Code 75-03-19-06 Assessment procedures

Assessments of reports of suspected child abuse or neglect must be conducted by the department or its authorized agents in substantial conformity with the policies of the department. Assessments of reports of suspected child abuse or neglect must reflect:

1.An assessment process designed to collect sufficient information to make a decision whether child abuse or neglect is confirmed, confirmed with an unknown subject, unconfirmed, or unable to determine to provide for the protection and treatment of an abused or neglected child;

2.Assessment techniques that include interviewing and observing the subject and the child victim, interviewing other interested or affected persons, and documenting those interviews and observations;

3.Conclusions and a summary based on information gathered by assessment techniques described in subsection 2; and

4.If the child abuse or neglect decision is confirmed or confirmed within an unknown subject and the child remains at substantial risk of continued abuse or neglect due to a supported state of impending danger, development of service plans for the provision of protective services based on goals and objectives established by the department or its authorized agent for the subject and for the family of the child victim.

History

• History: Effective September 1, 1990; amended effective November 1, 1994; January 1, 1996; July 1, 2006; July 1, 2020; April 1, 2022.
• General Authority: NDCC 50-25.1-05, 50-25.1-05.4
• Law Implemented: NDCC 50-25.1-05, 50-25.1-05.4

N.D. Admin. Code 75-03-19-07 Caseload standards

Any authorized agent designated by the department to receive reports and conduct assessments of reports of suspected child abuse or neglect shall adhere to the caseload standards establishing minimum staff-to-assessment ratios.

History

• History: Effective September 1, 1990; amended effective January 1, 1996; July 1, 2006; April 1, 2022.
• Law Implemented: NDCC 50-25.1-05, 50-25.1-06.1

N.D. Admin. Code 75-03-19-08 Exchange and transfer of information

The department and its authorized agent may exchange or transfer information and records concerning the reports or assessments among and between personnel of each respective agency to the extent necessary to perform the duties and effectuate the purposes set forth in North Dakota Century Code chapter 50-25.1.

History

• History: Effective September 1, 1990; amended effective January 1, 1996; July 1, 2006.

N.D. Admin. Code 75-03-19-09 Child abuse or neglect complaint or allegation

At the initial contact, the department or its authorized agent shall advise the subject of a report of suspected child abuse or neglect of the specific complaints or allegations made against the individual.

History

• History: Effective July 1, 2006.

N.D. Admin. Code 75-03-19-10 Training requirements

The department shall maintain a child welfare certification training program to protect the legal rights and safety of children and families. The training curriculum must include the legal duties of child protection services. Each child protective services worker providing child protection services must complete the first available training program upon hiring, unless otherwise approved by the department.

History

• History: Effective July 1, 2006; amended effective July 1, 2020.

N.D. Admin. Code 75-03-19-11 Child abuse information index

1.The child abuse information index is comprised of three child protection tiers. The highest child protection tier is comprised of the most severe form of maltreatment with the lowest tier consisting of the least severe form of maltreatment. The department shall assign each subject with a confirmed or confirmed with unknown subject determination a child protection tier in correlation with the maltreatment determination.

a.Child protection tier 1. Subjects determined to have abused or neglected a child for any of the following maltreatment determinations shall remain on the child abuse information index for a period of twenty-five years:

(1)Physical abuse resulting in death of a child;

(2)Neglect resulting in death of a child;

(3)Sexual abuse;

(4)Physical abuse or neglect resulting in near death of a child;

(5)Physical abuse or neglect resulting in bodily injury that created a substantial risk of death, or caused serious permanent disfigurement, unconsciousness, extreme pain, permanent loss or impairment of the function of any bodily member or organ, a bone fracture, or impediment of air flow or blood flow to the brain or lungs; or (6)Physical abuse or neglect resulting in substantial temporary disfigurement, loss, or impairment of the function of any bodily member or organ.

b.Child protection tier 2. Subjects determined to have abused or neglected a child for any of the following maltreatment determinations shall remain on the child abuse information index for a period of seven years:

(1)Physical abuse or neglect resulting in any impairment of physical condition, including physical pain;

(2)Neglect impacting the child's physical, mental, or emotional health;

(3)Neglect resulting in environmental exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia as prohibited by North Dakota Century Code section 19-03.1-22.2; or (4)Neglect resulting in prenatal exposure to alcohol misuse or any controlled substance in a manner not lawfully prescribed by a practitioner.

c.Child protection tier 3. Child protection tier 3 consists of all other confirmed reports of child abuse and neglect, excluding educational neglect, that do not meet child protection tier 1 or tier 2 criteria. Subjects determined to have abused or neglected a child for any remaining form of maltreatment shall remain on the child abuse information index for a period of three years.

2.If two or more forms of maltreatment are found to occur on a confirmed determination, the department shall place the subject on the child abuse information index for the highest applicable child protection tier.

3.The department shall remove the subject from the child abuse information index after the child protection term of years has expired for a confirmed or confirmed with an unknown determination in correlation with the maltreatment determination.

History

• History: Effective April 1, 2024.
• General Authority: NDCC 50-25.1-05.4, 50-25.1-05.5
• Law Implemented: NDCC 50-25.1-05.4, 50-25.1-05.5

Chapter 75-03-19.1 Child Fatality Review Panel

N.D. Admin. Code 75-03-19.1 Child Fatality Review Panel

CHAPTER 75-03-19.1

CHILD FATALITY REVIEW PANEL

Section 75-03-19.1-01Definitions 75-03-19.1-02Panel Membership 75-03-19.1-03Duties 75-03-19.1-04Confidentiality of Records 75-03-19.1-01. Definitions.

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 50-25.1, except:

1."Decision" means the conclusion reached by the panel regarding:

a.Manner of death listed on the death certificate;

b.Whether a death was preventable, nonpreventable, or preventability undeterminable;

c.Cause of death, if possible;

d.Circumstances that contributed to the death; and

e.Changes in policy, practices, and law to prevent children's deaths.

2."Indepth review" means the process of reviewing information contained in written documentation obtained from any hospital, physician, medical professional, medical facility, mental health professional, mental health facility, or other entity regarding a child who has died, and using the information as a basis of a panel decision.

3."Panel" means the child fatality review panel, governed by North Dakota Century Code

chapter 50-25.1.

4."Presiding officer" means the representative of the department's child protection services program.

History: Effective July 1, 2006; amended effective April 1, 2022. 75-03-19.1-02. Panel membership.

1.A panel member may be removed by a majority vote of the panel for:

a.A violation of confidentiality;

b.A violation of that panel member's professional code of ethics;

c.Any criminal violation;

d.Resignation from the position which made the panel member eligible for panel membership; or

e.Absenteeism.

2.Vacancies on the panel shall be filled by invitation issued by the presiding officer.

3.Attendance of nonpanel members at panel meetings must be approved by the presiding officer prior to the meeting. 75-03-19.1-03. Duties.

1.The panel shall review death certificates of all children whose deaths occurred in North Dakota. Deaths of children which are sudden, unexpected, or unexplained shall receive an indepth review.

2.The department of human services and the state department of health shall collaborate in the review of child deaths. The vital records division of the state department of health shall provide death certificates for children under the age of eighteen to the panel.

3.The panel shall provide an indepth review of child deaths identified on the death certificate as:

a.Accident;

b.Suicide;

c.Homicide;

d.Pending investigation; or

e.Could not be determined.

4.When a child's manner of death is identified as "natural" or no manner of death is identified on the death certificate, the panel will determine whether the cause or condition of death was sudden, unexpected, or unexplained.

5.The panel shall review only the death certificate when a child's death is identified as "natural" and does not fall within the criteria identified in subsection 4, unless a panel member specifically requests an indepth review.

6.A decision reached by the panel represents the consensus of the panel, but not necessarily the opinion of an individual member. A decision of the panel may not be considered as an expert opinion in a criminal or civil case. 75-03-19.1-04. Confidentiality of records.

Panel records are confidential and shall be released according to North Dakota Century Code sections 23-02.1-27 and 50-25.1-11, except that third-party information received by the panel may not be rereleased.

Chapter 75-03-19.2 Approved Locations for Abandoned Infants

N.D. Admin. Code 75-03-19.2 Approved Locations for Abandoned Infants

CHAPTER 75-03-19.2

APPROVED LOCATIONS FOR ABANDONED INFANTS

Section 75-03-19.2-01Definitions 75-03-19.2-02Department's Authorized Agent to Receive Reports and Conduct Assessments 75-03-19.2-03Approved Locations 75-03-19.2-04Infants Abandoned at a Hospital at Birth 75-03-19.2-01. Definitions.

Those definitions set forth in North Dakota Century Code section 50-25.1-02 are applicable to this

chapter. Additionally, in this chapter, unless the context or subject matter requires otherwise:

1."Criminal justice agencies" means the state highway patrol, a county sheriff's department, bureau of criminal investigation, a city police department, a university or college police department.

2."Emergency medical services operations" has the same meaning as defined in North Dakota Century Code section 23-27-02.

3."Human service zones" has the same meaning as defined in North Dakota Century Code

section 50-01.1-01.

4."Local public health units" has the same meaning as defined in North Dakota Century Code

section 23-35-01.

5."Long-term care nursing facilities" has the same meaning as a "facility" or "nursing facility" as defined in section 33-07-05-03.

6."Regional human service centers" has the same meaning as defined in North Dakota Century Code section 50-06-05.3. 75-03-19.2-02. Department's authorized agent to receive reports and conduct assessments.

The department's authorized agent shall act as designee of the department for the purpose of receiving reports of infants abandoned under the provisions of chapter 75-03-19 and North Dakota Century Code section 50-25.1-15. Upon receipt of a report of an infant abandoned under North Dakota Century Code section 50-25.1-15, the department's authorized agent shall conduct an assessment.

Upon a determination that the infant is unharmed, the assessment must be terminated and no child abuse or neglect assessment decision shall be made.

History: Effective October 1, 2020; amended effective April 1, 2022. 75-03-19.2-03. Approved locations.

Approved locations for relinquishing an infant with an on-duty staff member under this chapter is limited to the following physical locations, as well as the offsite location of on-duty staff members of the following:

1.Local public health units;

2.Human service zones;

3.Regional human service centers;

4.Long-term care nursing facilities;

5.Children's advocacy centers;

6.Emergency medical services operations; and

7.Criminal justice agencies. 75-03-19.2-04. Infants abandoned at a hospital at birth.

When an infant is born and abandoned at birth while remaining at the same hospital, the infant will be considered an abandoned infant under this chapter when the parent of a child in that parent's custody fails to arrange for the child's discharge within ten days after the child no longer requires hospital care without regard to a parent's or agent's verbal statement of intention to abandon the infant.

Chapter 75-03-20 Ratesetting for Residential Treatment Centers for Children

N.D. Admin. Code 75-03-20-01 Definitions

1."Accrual basis" means the recording of revenue in the period when it is earned, regardless of when it is collected, and the recording of expenses in the period when incurred, regardless of when they are paid.

2."Addiction evaluation" means an assessment by an addiction counselor to determine the nature or extent of possible alcohol abuse, drug abuse, or chemical dependency.

3."Adjustment factors" means indices used to adjust reported costs for inflation or deflation based on economic forecasts for the rate year.

4."Administration" means the cost of activities performed by the center staff in which the direct recipient of the activity is the organization itself. These include, but are not limited to, fiscal activities, statistical reporting, recruiting, and general office management which are indirectly related to reimbursable services provided.

5."Allowable cost" means the center's actual and reasonable cost after adjustments required by department rules.

6."Case management" means services which may assist individuals to gain access to needed medical, social, educational, and other services. Case management includes case-related paper work, contacts with significant others and agencies, phone contacts, case-related travel, and consultation with other staff, supervisors, and peers.

7."Center" means the residential treatment center for children.

8."Client day" means a day for which service is provided or for which payment is ordinarily sought and includes in-house, trial placement, approved leave, or hospital days.

9."Clinical consultation" means services provided by psychiatrists, clinical psychologist, psychiatric nurses, social workers, addiction counselors, occupational therapists, and other mental health professionals to center staff to develop or increase their skills in providing mental health services.

10."Cost category" means the classification or grouping of similar or related costs for purposes of reporting and the determination of cost limitations and rates. For the purposes of this chapter, the cost categories of administration, education, maintenance, and rehabilitation will be used.

11."Cost report" means the department-approved form for reporting costs, statistical data, and other relevant information to the department.

12."Department" means the department of human services.

13."Depreciation" means an allocation of the cost of an asset over its estimated useful life.

14."Education" means the cost of activities related to academic and vocational training generally provided by a school district.

15."Family counseling or therapy" means treatment in which a counselor or a therapist works with various combinations of family members.

16."Final rate" means the rate established after any adjustments by the department, including, but not limited to, adjustments resulting from cost report reviews and audits.

17."Fringe benefits" means workers compensation insurance, group health, dental or vision insurance, group life insurance, payment towards retirement plans, accrued compensation for absences, uniform allowances, employer's share of Federal Insurance Contributions Act and unemployment compensation taxes.

18."Group counseling" or "group therapy" means a form of treatment in which a group of clients, with similar problems, meet with a counselor or a therapist to discuss difficulties, provide support for each other, gain insight into problems, and develop better methods of meeting their problems.

19."Individual counseling" or individual therapy" means a form of treatment in which a counselor or therapist works with a client on an individual basis.

20."Interest" means cost incurred for the use of borrowed funds.

21."Maintenance" means room and board and includes all costs associated with the preparation and serving of food, the provision of shelter and the maintenance thereof, including depreciation and interest or lease payments, and operating expenses of a vehicle used for transportation of clients.

22."Medication review" means prescription monitoring and consultation to a client regarding the client's use of medication performed by a psychiatrist or a physician, or a registered nurse or a licensed practical nurse under the medical direction and supervision of a psychiatrist or physician.

23."Other clinical evaluation" means the evaluation of the client's environmental and personal situation. This includes, but is not limited to, developmental, social, and independent living evaluations.

24."Partial care" means center or community-based rehabilitative services provided to mentally ill persons to maintain and promote social, emotional, and physical well-being through opportunities for socialization, therapy, work participation, education, and other self-enhancement activities.

25."Plant operations costs" means the costs for repairing and maintaining the physical plant of the center. These costs include utilities, repairs, and compensation for housekeepers, janitors, engineers, caretakers, and all personnel performing tasks related to repairing and maintaining the physical plant.

26."Program consultation" means services provided to center staff for development of program design and planning for mental health services to the center.

27."Property costs" means depreciation, interest on capital debt, property taxes, and rental expense.

28."Psychiatric evaluation" means the assessment or evaluation of a client by a psychiatrist.

29."Psychological evaluation" means the assessment or evaluation of a client by or under the supervision of a licensed psychologist.

30."Rate year" means the twelve-month period beginning the seventh month after the end of a center's fiscal year.

31."Reasonable cost" means the cost that must be incurred by an efficiently and economically operated center to provide services in conformity with applicable state and federal laws, rules, and quality and safety standards. Reasonable cost takes into account that the center seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or services.

32."Rehabilitation" means services provided for maximum reduction of physical or mental disability and restoration of a client to the best possible functional level. Services can include any medical or remedial service recommended by a physician or other licensed practitioner of the healing arts, within the scope of the practitioner's practice under state law.

33."Related organization" means an organization which a center is, to a significant extent, associated with, affiliated with, able to control, or controlled by; and which furnishes services, facilities, or supplies to the center. Control exists where an individual or organization has the power, directly or indirectly, to significantly influence or direct the policies of an organization or center.

34."Report year" means the center's fiscal year.

N.D. Admin. Code 75-03-20-02 Financial reporting requirements

1.Records.

a.The center will maintain on the premises census records and financial information which will be sufficient to provide for a proper audit or review. For any cost being claimed on the cost report, sufficient data must be available as of the audit date to fully support the report item.

b.Where several centers are associated with a group and their accounting and reports are centrally prepared, added information must be submitted for those items known to be lacking support at the reporting center prior to the audit or review of the center.

Accounting or financial information regarding related organizations must be readily available to substantiate cost.

c.Each center shall maintain, for a period of not less than five years following the date of submission of the cost report to the state agency, financial and statistical records of the period covered by such cost report which are accurate and in sufficient detail to substantiate the cost data reported. Each center shall make such records available upon reasonable demand to representatives of the department.

2.Accounting and reporting requirements.

a.The accrual basis of accounting, in accordance with generally accepted accounting principles, must be used for cost reporting purposes. However, if conflicts occur between ratesetting procedures and generally accepted accounting principles, ratesetting procedures will prevail. A center may maintain its accounting records on a cash basis during the year, but adjustments must be made to reflect proper accrual accounting procedures at yearend and when subsequently reported.

b.To properly facilitate auditing, the accounting system should be maintained in such a manner that cost accounts will be grouped by cost category and be readily traceable to the cost report.

c.The cost report must be submitted on or before the last day of the third month following the center's report year. The report must contain all actual costs of the provider, adjustments for nonallowable costs, and client days.

d.Upon request, the following information must be made available.

(1)A statement of ownership including the name, address, and proportion of ownership of each owner.

(2)Copies of leases, purchase agreements, appraisals, financing arrangements, and other documents related to the lease or purchase of the center or a certification that the content of any such document remains unchanged since the most recent statement given pursuant to this subsection.

(3)Supplemental information reconciling the costs on the financial statements with costs on the cost report.

(4)Copies of leases, purchase agreements, and other documents related to the acquisition of equipment, goods, and services which are claimed as allowable costs.

e.If the center fails to file the cost report on or before the due date, the department may impose a nonrefundable penalty of ten percent of any amount claimed for reimbursement. The penalty may be imposed after the last day of the first month following the due date and continues through the month in which the statement or report is received.

f.The center will make all adjustments and allocations necessary to arrive at allowable costs. The department may reject any cost report when the information which has been filed is incomplete or inaccurate. In the event that a cost report is rejected, the department may impose the penalties described in subdivision e.

g.The department may grant an extension of the reporting deadline to a center. To receive such an extension, a center must submit a written request to the division of mental health services.

3.The department will perform an audit of the latest available report year of each center at least once every six years and retain for at least three years all audit-related documents, including cost reports, working papers, and internal reports on rate calculations which are utilized and generated by audit staff in performance of audits and in establishing rates. Audits will meet generally accepted governmental auditing standards.

4.Penalties for false reports.

a.A false report is one wherein a center knowingly supplies inaccurate or falseinformation in a required report that results in an overpayment. If a false report is received, the department may:

(1)Immediately adjust the center's payment rate to recover the entire overpayment within the rate year;

(2)Terminate the department's agreement with the center;

(3)Prosecute under applicable state or federal law; or (4)Use any combination of the foregoing actions.

b.If a center claims as an allowable cost costs which have been previously adjusted, the department may determine that the report is a false report. Previously adjusted costs which are being appealed must be identified as unallowable costs. The center may indicate that the costs are under appeal and not claimed under protest to perfect a claim should the appeal be successful.

History

• Law Implemented: NDCC 25-03.2, 25-03.2-08(3)

N.D. Admin. Code 75-03-20-03 General cost principles

1.For ratesetting purposes, a cost must:

a.Be ordinary, necessary, and related to client care;

b.Be no more than an amount which a prudent and cost-conscious business person would pay for the specific good or service in the open market in an arm's length transaction; and

c.Be for goods or services actually provided in the center.

2.The cost effects of transactions which circumvent these rules are not allowable under the principle that the substance of the transaction prevails over the form.

3.Reasonable client-related costs will be determined in accordance with the ratesetting procedures set forth in this chapter and instructions issued by the department.

N.D. Admin. Code 75-03-20-04 Ratesetting

1.The established rate is based on prospective ratesetting procedures. The establishment of a rate begins with historical costs. Adjustments are then made for claimed costs which are not includable in allowable costs. Adjustment factors are then applied to allowable costs. No retroactive settlements for actual costs incurred during the rate year which exceed the final rate will be made unless specifically provided for in this chapter.

2.Desk audit rate.

a.The department will establish desk rates for maintenance and rehabilitation, based on the cost report, which will be effective the first day of the seventh month following the center's fiscal yearend.

b.The desk rates will continue in effect until final rates are established.

c.The cost report will be reviewed taking into consideration the prior year's adjustments.

Centers will be notified by telephone or mail of any desk adjustments based on the desk review. Within seven working days after notification, the center may submit information to explain why a desk adjustment should not be made. The department will review the submitted information, make appropriate adjustments, including adjustment factors, and issue the desk rates.

d.No reconsideration will be given by the department for the desk rates unless the center has been notified that the desk rates are the final rates.

3.Final rate.

a.The cost report may be field audited to establish final rates. If no field audit is performed, the desk rates will become the final rates upon notification to the center from the

b.The final rate for rehabilitation will be effective beginning the first day of the seventh month following the center's fiscal yearend.

c.The final rate for maintenance will be effective beginning the first day of the month in which notification of the rate is given to the center. There will be no retroactive adjustments to the beginning of the rate year for any increase or decrease in the maintenance rate.

d.The final rate will include any adjustments for nonallowable costs, errors, or omissions that result in a change from the desk rate of at least five cents per day.

e.Adjustments, errors, or omissions which are found after a final rate has been established will be included as an adjustment in the report year that the adjustments, errors, or omissions are found.

4.Special rates.

a.Centers providing services for the first time.

(1)Rates for a center which is providing services which are purchased by the department will be established using the following methodology for the first two fiscal years of the center if such period is less than twenty-four months.

(a)The center must submit a budget for the first twelve months of operation. A final rate will be established for a rate period which begins on the first of the month in which the center begins operation. This rate will remain in effect for eighteen months. No adjustment factors will be included in the first year final rate.

(b)Upon completion of the first twelve months of operation, the center must submit a cost report for the twelve-month period regardless of the fiscal yearend of the center. [1]The twelve-month cost report is due on or before the last day of the third month following the end of the twelve-month period. [2]The twelve-month cost report will be used to establish a rate for the remainder of the second rate year. Appropriate adjustment factors will be used to establish the rate.

(2)The center must submit a cost report which will be used to establish rates in accordance with subsections 2 and 3 after the center has been in operation for the entire twelve months of the center's fiscal year.

b.Centers changing ownership.

(1)For centers changing ownership, the rate established for the previous owner will be retained until the end of the rate year in which the change occurred.

(2)The rate for the second rate year after a change in ownership occurs will beestablished as follows:

(a)For a center with four or more months of operation under the new ownership during the report year, a cost report for the period since the ownership change occurred will be used to establish the rate for the next rate year.

(b)For a center with less than four months of operation under the new ownership in the reporting year, the prior report year's costs as adjusted for the previous owner will be indexed forward using appropriate adjustments.

c.Centers having a capacity increase or major renovation or construction.

(1)For centers which increase licensed capacity by twenty percent or more or have renovation or construction projects in excess of fifty thousand dollars, the rate established for the rate year in which the licensed increase occurs or the construction or renovation is complete may be adjusted to include projected property costs. The adjusted rate will be calculated based on a rate for historical costs, exclusive of property costs, as adjusted, divided by historical census, plus a rate for property costs based on projected property costs divided by projected census. The established rate for rehabilitation, including projected property costs, will be effective on the first day of the month in which the renovation or construction is complete or when the capacity increase is approved if no construction or renovation is necessary. The established rate for maintenance including projected property costs will be effective on the first of the month in which notification of the rate is given to the center.

(2)For the rate year immediately following the rate year in which the capacity increase occurred or construction and renovation was completed, a rate will be established based on historical costs, exclusive of property costs, as adjusted for the report year, divided by reported census plus a rate for property costs, based on projected property costs, divided by projected census.

d.Centers that have changes in services or staff.

(1)The department may provide for an increase in the established rate for additional costs that are necessary to add services or staff to the existing program.

(2)The center must submit information to the division of mental health services supporting the request for the increase in the rate. Information must include a detailed listing of new or additional staff or costs associated with the increase in services.

(3)The department will review the submitted information and may request additional documentation or conduct onsite visits. If an increase in costs is approved, the established rate will be adjusted. The effective date of the rate increase will be on the first of the month following approval by the department. The adjustment will not be retroactive to the beginning of the rate year.

(4)For the rate year immediately following a rate year in which a rate was adjusted under paragraph 3, the center may request that consideration be given to additional costs. The center must demonstrate to the department's satisfaction that historical costs do not reflect twelve months of actual costs of the additional staff or added services in order to adjust the rate for the second rate year. The additional costs would be based on a projection of costs for the remainder of a twelve-month period.

5.The final rate must be considered as payment for all accommodations which include items identified in section 75-03-20-06. For any client whose rate is paid in whole or in part by the department, no payment may be solicited or received from the client or any other person to supplement the rate as established.

6.For a center terminating its participation in the program, whether voluntarily or involuntarily, the department may authorize the center to receive continued payment until clients can be relocated.

7.Limitations.

a.The department may accumulate and analyze statistics on costs incurred by the centers.

These statistics may be used to establish reasonable ceiling limitations and incentives for efficiency and economy based on reasonable determination of standards of operations necessary for efficient delivery of needed services. These limitations and incentives may be established on the basis of cost of comparable centers and services and may be applied as ceilings on the overall costs of providing services or on specific areas of operations. Limitations and incentives are effective upon notification of a center by the

b.Allowable administration costs to be included in the maintenance and rehabilitation rates are the lesser of the actual cost of administration as allocated to the cost category or an amount equal to fifteen percent of the allowable costs for the cost category.

8.Adjustment factors. Adjustment factors may be applied to adjust historical costs. The department shall annually determine an appropriate adjustment factor to be applied to allowable costs exclusive of property costs.

History

• History: Effective December 1, 1991; amended effective July 1, 1999.

N.D. Admin. Code 75-03-20-05 Client census

1.A daily census record must be maintained by the center. Any day for which services are provided or payment is ordinarily sought for an available bed must be counted as a client day.

The day of admission or death must be counted. The day of discharge must be counted if payment is sought for that day. No payment may be sought from the department for the day of discharge. No payment may be sought from the department for the rehabilitation portion of the rate for any day in which the resident was not in the facility.

2.The daily census records must include:

a.Identification of the client;

b.Entries for all days. Entries may not be made just by exception; and

c.Identification of type of day, i.e., in-house or hospital day.

History

• History: Effective December 1, 1991; amended effective January 1, 2000.

N.D. Admin. Code 75-03-20-06 Cost categories

1.Administration. Costs for administration include only those allowable costs for administering the overall activities of the center identified as follows:

a.Compensation for administrators, regional directors, program directors, accounting personnel, clerical personnel, secretaries, receptionists, data processing personnel, purchasing personnel, and security personnel.

b.Office supplies and forms.

c.Insurance, except property insurance directly identified to other cost categories, and insurance included as a fringe benefit.

d.The cost of telephone service not specifically included in other cost categories.

e.Postage and freight.

f.Professional fees for services such as legal, accounting, and data processing.

g.Central or home office costs.

h.Personnel recruitment costs.

i.Management consultants and fees.

j.Dues, license fees, and subscriptions.

k.Travel and training not specifically included in other cost categories.

l.Utilities. The cost of heating and cooling, electricity, and water, sewer, and garbage for space used to provide administration.

m.Repairs. The cost of routine repairs and maintenance of property and equipment used to provide administration.

n.Plant and housekeeping salaries. The cost of plant operation and housekeeping salaries and fringe benefits associated with the space used to provide administration.

o.Property costs. Depreciation, interest, taxes, and lease costs on equipment and buildings for space used to provide administration.

p.Interest on funds borrowed for working capital.

q.Startup costs.

r.Any costs which cannot be specifically classified or assigned as a direct cost to other cost categories.

2.Maintenance. Costs for maintenance include only those allowable costs identified as follows:

a.Compensation for community home counselors when performing functions other than rehabilitation, houseparents, dietary personnel, cooks, and laundry personnel.

b.Plant and housekeeping salaries. The cost of plant operation and housekeeping salaries and fringe benefits associated with the space used to provide maintenance.

c.Food. The cost of consumable food products consumed by clients, houseparents, or community home counselors when performing functions other than rehabilitation.

d.Operating supplies. The cost of supplies necessary to maintain the householdfor clients.

Costs include such items as cleaning supplies, paper products, and hardware goods.

e.Personal supplies. The cost of supplies used by an individual client for his or her personal needs.

f.Clothing. The cost of clothing to maintain a client's wardrobe.

g.Personal allowances. The cost of moneys given periodically to clients for personal use.

The cost does not include payment, whether in cash or in kind, for work performed by the client or for bonuses or rewards based on behavior.

h.School supplies. The cost of school supplies and activity fees, when not provided by or at the expense of the school.

i.Recreation expenses. Costs incurred for providing recreation to the clients including subscriptions, sports equipment, dues for clubs, and admission fees to sporting, recreation, and social events.

j.Utilities. The cost of heating and cooling, electricity, water, sewer, and garbage, and cable television for space which would normally be included in a single-family dwelling.

k.Telephone. The cost of local telephone service to the living quarters.

l.Repairs. The cost of routine repairs and maintenance of property and equipment used for the maintenance of the clients.

m.Travel. All costs related to transporting clients exclusive of transportation costs involved with active treatment. Transportation costs may include actual expenses of center-owned vehicles or mileage paid to employees for use of personal vehicles.

n.Property costs. Depreciation, interest, taxes, and lease costs on equipment and buildings for space associated with the provision of shelter.

o.Property insurance. The cost of insuring property and equipment used in the maintenance of clients.

3.Rehabilitation. Costs for rehabilitation include only those allowable costs identified as follows:

a.Compensation for social workers, human relations counselors, community home counselors, clinical psychologists, psychiatrists, physicians, nurses or other individuals who provide ongoing rehabilitative services in order to reduce the mental disability of the clients and restore them to their best possible functional level. Rehabilitative services include family, group, and individual counseling or therapy, and case and program consultation.

b.The cost of services purchased and not provided at the center which include: case management; addiction, psychiatric, psychological, and other clinical evaluations; medication review; and partial care or day treatment.

c.Utilities. The cost of heating and cooling, electricity, and water, sewer, and garbage for space used to provide rehabilitation.

d.Telephone. The cost of long distance telephone service directly related to providing rehabilitation.

e.Repairs. The cost of routine repairs and maintenance of property and equipment used to provide rehabilitation.

f.Plant and housekeeping salaries. The cost of plant operation and housekeeping salaries and fringe benefits associated with the space used to provide rehabilitation.

g.Property costs. Depreciation, interest, taxes, and lease costs on equipment and buildings for space used to provide rehabilitation.

h.Property insurance. The cost of insuring property and equipment used to provide rehabilitation.

i.Travel. Costs related to transporting clients for rehabilitation. Transportation costs may include actual expenses of center-owned vehicles or mileage paid to employees for use of personal vehicles.

j.Training. The cost of training which is necessary to maintain licensure, certification, or professional standards for rehabilitation personnel and the related travel costs.

4.Education. Costs for education include only those allowable costs identified as follows:

a.Compensation for teachers and teacher aides who provide academic training to clients in-house.

b.Property and plant operation expenses for space used to provide in-house academic training to clients.

c.The cost of supplies and equipment used in a classroom that are normally provided by a school district as part of the academic training.

N.D. Admin. Code 75-03-20-07 Cost allocation

1.Direct costing of allowable costs will be used whenever possible. If direct costing is not possible and the center has more than one license or has services which are jointly used for administration, education, maintenance, rehabilitation, or nonclient activities, the following allocation methods will be used:

a.Salaries which cannot be reported based on direct costs are to be allocated using time studies. Time studies must be conducted at least semiannually for a two-week period or quarterly for a one-week period. The time study must represent a typical period of time when employees are performing normal work activities in each of their assigned areas of responsibility. Allocation percentages based on the time studies are to be used starting with the next pay period following completion of the time study or averaged for the report year. The methodology used by the center may not be changed without approval by the

b.Salaries of direct care supervisory personnel may be allocated based on full-time equivalents of the employees supervised or on a ratio of salaries.

c.Fringe benefits must be allocated based on the ratio of salaries to total salaries.

d.Plant operation expenses must be allocated based on square footage.

e.Property costs must be allocated based on square footage.

f.Administration cost must be allocated on the basis of the percentage of total costs, excluding administration and property costs, in each cost center.

g.Dietary costs and food must be allocated based on meals served.

h.Vehicle expenses must be allocated based on mileage logs. Mileage logs must include documentation for all miles driven and purpose of travel. If sufficient documentation is not available to determine which cost category vehicle expenses are to be allocated to, vehicle expenses will be allocated in total to administration.

i.Costs not direct costed or allocable using methods identified in subdivisions a through h must be included as administration costs.

2.If any of the above allocation methods cannot be used by the center, a waiver request may be submitted to the division of mental health services. The request must include an adequate explanation as to why the referenced allocation method cannot be used by the center. The center must also provide a rationale for the proposed allocation method. Based on the information provided, the department will determine the allocation method that will be used to report costs.

N.D. Admin. Code 75-03-20-08 Nonallowable costs

Nonallowable costs include, but are not limited to:

1.Promotional, publicity, and advertising expenses, exclusive of personnel procurement;

2.Political contributions;

3.Salaries or expenses of a lobbyist;

4.Basic research;

5.Fines or penalties including interest charges on the penalty, bank overdraft charges, and late payment charges;

6.Bad debts;

7.Compensation and expenses for officers, directors, or stockholders;

8.Contributions or charitable donations;

9.Costs incurred for activities directly related to influencing employees with respect to unionization;

10.Costs of membership or participation in health, fraternal, or social organizations such as eagles, country clubs, knights of columbus;

11.Corporate costs such as organization costs, reorganization costs, costs associated with acquisition of capital stock, costs relating to the issuance and sale of capital stock or other securities, and other costs not related to client services;

12.Home office costs which would be unallowable if incurred directly by the center;

13.Stockholder servicing costs incurred primarily for the benefit of stockholders or other investors.

Such costs include, but are not limited to, annual meetings, annual reports and newsletters, accounting and legal fees for consolidating statements, stock transfer agent fees, and stockbroker and investment analysis;

14.The cost of any equipment, whether owned or leased, not exclusively used by the center except to the extent that the center demonstrates to the satisfaction of the department that any particular use of equipment was related to client care;

15.Costs, including by way of illustration and not by way of limitation, for legal fees, accounting and administrative costs, travel costs, and the costs of feasibility studies, attributed to the negotiation or settlement of the sale or purchase of any capital assets, whether by sale or merger, when the cost of the asset has been previously reported and included in the rate paid to any center;

16.Depreciation expense for center assets which are not related to client care;

17.Personal expenses of owners and employees for items or activities including, but not limited to, vacations, boats, airplanes, personal travel or vehicles, and entertainment;

18.Costs which are not adequately documented. Adequate documentation includes written documentation, date of purchase, vendor name, listing of items or services purchased, cost of items purchased, account number to which the cost is posted, and a breakdown of any allocation of costs between accounts or centers;

19.The following taxes, when levied on providers:

a.Federal income and excess profit taxes, including any interest or penalties paid thereon;

b.State or local income and excess profit taxes;

c.Taxes in connection with financing, refinancing, or refunding operations such as taxes in the issuance of bonds, property transfers, issuance or transfer of stocks, etc. Generally, these costs are either amortized over the life of the securities or depreciated over the life of the asset. They are not, however, recognized as tax expense;

d.Taxes such as real estate and sales tax for which exemptions are available to the center;

e.Taxes on property which is not used in the provision of covered services; and

f.Taxes such as sales taxes, levied, collected, and remitted by the center;

20.The unvested portion of a center's accrual for sick or annual leave;

21.Expense or liabilities established through or under threat of litigation against the state of North Dakota or any of its agencies; provided, that reasonable insurance expense may not be limited by this subsection;

22.Fringe benefits, exclusive of the Federal Insurance Contributions Act, unemployment compensation, health, dental and vision insurance, life insurance, workers compensation insurance, payments toward retirement plans, accrued compensation for absences, and uniform allowances which have not received written prior approval of the department;

23.Fundraising costs including salaries, advertising, promotional, or publicity costs incurred for such a purpose;

24.Funeral and cemetery expenses;;

25.Travel not directly related to professional conferences, state or federally sponsored activities, or client services;

26.Items or services such as telephone, television, and radio which are located in a client's room and which are furnished solely for the convenience of the clients;

27.Value of donated goods and services except as provided for in subsection 5 of section 75-03-20-09;

28.Religious salaries, space, and supplies;

29.Miscellaneous expenses not related to client services;

30.Premiums for top management personnel life insurance policies, except that such premiums shall be allowed if the policy is included within a group policy provided for all employees, or if such a policy is required as a condition of a mortgage or loan and the mortgagee or lending institution is listed as the beneficiary;

31.Travel costs involving the use of vehicles not exclusively used by the center are allowable only within the limits of this subsection:

a.Vehicle travel costs may not exceed the amount established by the internal revenue service.

b.The center must support vehicle costs related to client care with sufficient documentation.

Documentation includes mileage logs for all miles, purpose of travel, and receipts for purchases.

c.The center must document all costs associated with a vehicle not exclusively used by the center;

32.Vehicle and aircraft costs not directly related to center business or client services;

33.Nonclient-related operations and the associated administrative costs;

34.Costs related to income-producing activities regardless of the profitability of the activity;

35.Costs which are incurred by the center's subcontractors or by the lessor of property which the center leases, and which become an element in the subcontractor's or lessor's charge to the center, if such costs would not have been allowable had they been incurred by a center directly furnishing the subcontracted services or owning the leased property;

36.All costs for services paid directly by the department to an outside provider;

37.Depreciation on assets acquired with federal or state grants;

38.Costs that are incurred due to management inefficiency, unnecessary care or services, agreements not to compete, or activities not commonly accepted in the industry;

39.The cost of consumable food products, in excess of income from employees, guests, and nonclients offset in accordance with section 75-03-20-16.1, consumed by persons other than clients or maintenance personnel identified in subdivision c of subsection 2 of section 75-03-20-06; and

40.Payments to clients, whether in cash or in kind, for work performed or for bonuses or rewards based on behavior.

N.D. Admin. Code 75-03-20-09 Depreciation

1.Ratesetting principles require that payment for services should include depreciation on all depreciable type assets that are used to provide necessary services. This includes assets that may have been fully or partially depreciated on the books of the center, but are in use at the time the center enters the program. The useful lives of such assets are considered not to have ended and depreciation calculated on the revised extended useful life is allowable. Likewise, a depreciation allowance is permitted on assets that are used in a normal standby or emergency capacity. If any depreciated personal property asset is sold or disposed of for an amount different than its undepreciated value, the difference represents an incorrect allocation of the cost of the asset to the center and must be included as a gain or loss on the cost report.

2.Depreciation methods.

a.The straight-line method of depreciation must be used. All accelerated methods of depreciation including depreciation options made available for income tax purposes, such as those offered under the asset depreciation range system, are unacceptable. The method and procedure for computing depreciation must be applied on a basis consistent from year to year, and detailed schedules of individual assets must be maintained. If the books of account reflect depreciation different than that submitted on the cost report, a reconciliation must be prepared by the center.

b.Centers must use a composite useful life of ten years for all equipment and land improvements, and four years for vehicles. Buildings and improvements to buildings are to be depreciated over the length of the mortgage or a minimum of twenty-five years, whichever is greater.

3.Acquisitions.

a.If a depreciable asset has at the time of its acquisition historical cost of at least one thousand dollars for each item, its cost must be capitalized and depreciated over the estimated useful life of the asset except as provided for in subsection 3 of section

N.D. Admin. Code 75-03-20-11 Costs, such as architectural, consulting and legal fees, and interest, incurred during the construction of an asset must be capitalized as a part of the cost of the asset

b.All repair or maintenance costs in excess of five thousand dollars per project on equipment or buildings must be capitalized and depreciated over the remaining useful life of the equipment or building or one-half of the original estimated useful life, whichever is greater.

4.Proper records must provide accountability for the fixed assets and also provide adequate means by which depreciation can be computed and established as an allowable client-related cost. Tagging of major equipment items is not mandatory, but alternate records must exist to satisfy audit verification of the existence and location of the assets.

5.For purposes of this chapter, donated assets may be recorded and depreciated based on their fair market value. In the case where the center's records do not contain the fair market value of the donated asset as of the date of the donation, an appraisal must be made. The appraisal will be made by a recognized appraisal expert and will be accepted for depreciation purposes.

The center may elect to forego depreciation on donated assets thereby negating the need for a fair market value determination.

6.Basis for depreciation.

a.Determination of the cost basis of a center and its depreciable assets, which have not been involved in any programs which are funded in whole or in part by the department, depends on whether or not the transaction is a bona fide sale. Should the issue arise, the purchaser has the burden of proving that the transaction was a bona fide sale.

Purchases where the buyer and seller are related organizations are not bona fide.

(1)If the sale is bona fide, the cost basis will be the actual cost of the buyer.

(2)If the sale is not bona fide, the cost basis will be the seller's cost basis less accumulated depreciation.

b.Cost basis of a center and its depreciable assets which are purchased as an ongoing operation will be the seller's cost basis less accumulated depreciation.

c.Cost basis of a center and its depreciable assets which have been used in any programs which are funded in whole or in part by the department will be the cost basis used by the other program less accumulated depreciation.

d.Sale and leaseback transactions will be considered a related party transaction. The cost

basis of a center and its depreciable assets purchased and subsequently leased to a provider who will operate the center will be the seller's cost basis less accumulated depreciation.

N.D. Admin. Code 75-03-20-10 Interest expense

To be allowable under the program, interest must be:

1.Supported by evidence of an agreement that funds were borrowed and that payment of interest and repayment of the funds are required. Repayment of operating loans must be made within two years of the borrowing.

2.Identifiable in the center's accounting records.

3.Related to the reporting period in which the costs are incurred.

4.Necessary and proper for the operation, maintenance, or acquisition of the center. Necessary means that the interest be incurred on a loan made to satisfy a financial need of the center and for a purpose reasonable related to client care. Proper means that the interest be incurred at a rate not in excess of what a prudent borrower would have had to pay in an arm's-length transaction. In addition, the interest must be paid to a lender not related to the center through common ownership or control.

5.Unrelated to funds borrowed to finance costs of assets in excess of the depreciable cost of the asset as recognized in "depreciation".

6.In such cases where it is necessary to issue bonds for financing, any bond premium or discount will be amortized on a straight-line basis over the life of the bond issue.

N.D. Admin. Code 75-03-20-11 Taxes

1.Taxes assessed against the center in accordance with the levying enactments of the several states and lower levels of government and for which the center is liable for payment are allowable costs except for those taxes identified as unallowable in section 75-30-20-08.

2.Whenever exemptions to taxes are legally available, the center is to take advantage of them.

If the center does not take advantage of available exemptions, the expense incurred for such taxes is not recognized as an allowable cost under the program.

3.Special assessments in excess of one thousand dollars which are paid in a lump sum must be capitalized and depreciated. Special assessments not paid in a lump sum may be expensed as they are billed by the taxing authority.

N.D. Admin. Code 75-03-20-12 Home office costs

1.Home offices of chain organizations vary greatly in size, number of locations, staff, mode of operations, and services furnished to their member facilities. Although the home office of a chain is normally not a center in itself, it may furnish to the individual center central administration or other services such as centralized accounting, purchasing, personnel, or management services. Only the home office's actual costs of providing such services is includable in the center's allowable costs under the program.

2.Costs which are not allowed in the center will not be allowed as home office costs which are allocated to the center.

3.Any service provided by the home office which is included in costs as payments by the center to an outside vendor or which duplicates costs for services provided by the center will be considered a duplication of costs and will not be allowed.

4.Where the home office makes a loan to or borrows money from one of the components of a chain organization, the interest paid is not an allowable cost and interest income is not used to offset interest expense.

N.D. Admin. Code 75-03-20-13 Related organizations

1.Costs applicable to services, facilities, and supplies furnished to a center by a related organization may not exceed the lower of the costs to the related organization or the price of comparable services, facilities, or supplies purchased elsewhere primarily in the local market.

Centers must identify such related organizations and costs, and allocations must be submitted with the cost report.

2.A center may lease buildings or equipment from a related organization within the meaning of ratesetting principles. In such case, rent or lease expense paid to the lessor is allowable in an amount not to exceed the actual costs associated with the asset if the rental of the buildings or equipment is necessary to provide programs and services to clients. the actual costs associated with the asset are limited to depreciation, interest, real estate taxes, property insurance, and plant operation expenses incurred by the lessor.

N.D. Admin. Code 75-03-20-14 Startup costs

In the first stages of operation, a new center incurs certain costs in developing its ability to care for clients prior to their admission. Staff is obtained and organized, and other operating costs are incurred during this time of preparation which cannot be allocated to client care during that period because there are no clients receiving services. Such costs are commonly referred to as startup costs. The startup costs are to be capitalized and will be recognized as allowable administration costs amortized over sixty consecutive months starting with the month in which the first client is admitted.

N.D. Admin. Code 75-03-20-15 Compensation

1.Reasonable compensation for a person with a minimum of five percent ownership, persons on the governing board, or any person related within the third degree of kinship to top management personnel must be considered an allowable cost if services are actually performed and required to be performed. The amount allowed must be in an amount not to exceed the average of salaries paid to individuals in like positions in all centers which are nonprofit organizations and which have no top management personnel who have a minimum of five percent ownership or are on the governing board. Salaries used to determine the average will be based on the latest information available to the department. Reasonableness also requires that functions performed be necessary in that, had the services not been rendered, the center would have to employ another person to perform them.

2.Items which are considered compensation include, but are not limited to, the following:

a.Salary.

b.Amounts paid by the center for the personal benefit of the person, e.g., housing or automobile allowance.

c.The cost of assets, services, or supplies provided by the center for the personal use of the person.

d.Pension, retirement benefits, annuities, or deferred compensation.

e.Insurance premiums.

N.D. Admin. Code 75-03-20-16 Revenue offsets

Centers must identify income to offset costs where applicable in order that state financial participation not supplant or duplicate other funding sources. Any income whether in cash or in any other form which is received by the center, with the exception of the established rate and income from payment made under the Job Training Partnership Act, will be offset up to the total of the appropriate actual costs. If actual costs are not identifiable, income will be offset in total to the appropriate cost category. If costs relating to income are reported in more than one cost category, the income must be offset in the ratio of the costs in each of the cost categories. These sources of income include, but are not limited to:

1.Food income. Centers receiving reimbursement for food and related costs from other programs such as the United States department of agriculture or the department of public instruction or amounts from or paid on behalf of employees, guests, or other nonclients for meals or snacks must reduce allowable food costs by the revenue received.

2.Vending income. Income from the sale of beverages, candy, or other items will be offset to the cost of the vending items or, if the cost is not identified, all vending income will be offset to maintenance costs.

3.Insurance recovery. Any amount received from insurance fora loss incurred must be offset against the appropriate cost category regardless of when the cost was incurred if the center did not adjust the basis for depreciable assets.

4.Refunds and rebates. Any refund or rebate received for a reported cost must be offset against the appropriate cost.

5.Transportation income. Any amount received for use of the center's vehicles must be offset to transportation costs.

6.Gain on the sale of assets. Revenue from the sale of an asset will be offset against depreciation expense.

7.Rental income. Revenue received from outside sources for the use of center buildings or equipment will be offset to property expenses.

8.Interest income. Revenue from investments will be offset against interest expense.

9.Grant income. Grants, gifts, and awards from the federal, state, or philanthropic agencies will be offset to the costs which are allowed under the grant.

10.Restricted gifts and income from endowments. Gifts or endowment income designated by a donor for paying specific operating costs incurred in providing contract services must be offset to costs in the year the cost is incurred regardless of when the gift or endowment is received.

11.Other cost-related income. Miscellaneous income including amounts generated through the sale of a previously expensed item, e.g., supplies or equipment, must be offset to the cost category where the item was expensed.

12.Other income to the center from local, state, or federal units of government may be determined by the department to be an offset to costs.

N.D. Admin. Code 75-03-20-17 Private pay rates

1.The department's rate will not exceed the full rate charged to nondepartmental or private pay clients for the same service. The rate being charged nondepartmental or private pay clients at the time the services were provided will govern. In cases where the clients are not charged a daily rate, a daily rate will be computed by dividing the total nondepartmental or private pay charges for each month by the total nondepartmental or private pay census for each month. If at any time the center discounts any rates for those periods of time that a client is not in the facility and the discount creates a situation in which the rate is less than the established rate paid by the department, then the discounted rate will be the maximum chargeable for departmental clients and the department will be afforded a discount in the amount of the difference between the discounted rate and the established rate.

2.If the established rate exceeds the rate charged to nondepartmental or private pay clients for a service, on any given date, the center shall immediately report that fact to the department and charge the department at the lower rate. If payments were received at the higher rate, the center shall, within thirty days, refund the overpayment. The refund will be the difference between the established rate and the rate charged to nondepartmental or private pay clients times the number of department client days paid during the period in which the established rate exceeded the nondepartmental or private rate plus interest calculated at two percent over the Bank of North Dakota prime rate on any amount not repaid within thirty days. Interest charges on these refunds are not allowable costs.

N.D. Admin. Code 75-03-20-18 Reconsiderations and appeals

1.Reconsiderations.

a.A center dissatisfied with the final rate established must request a reconsideration of the final rate before a formal appeal can be made. Any requests for reconsideration must be filed with the department's division of mental health services for administrative consideration within thirty days of the date of the rate notification.

b.The department's division of mental health services will make a determination regarding the reconsideration within forty-five days of receiving the reconsideration filing and any requested documentation.

2.Appeals.

a.A center dissatisfied with the final rate established may appeal upon completion of the reconsideration process as provided for in subsection 1. This appeal must be filed with the department within thirty days of the date of the written notice of the determination by the division of mental health services with respect to the request for reconsideration.

b.An appeal under this section is timely perfected only if accompanied by written documents including the following information:

(1)A copy of the letter received from the division of mental health services advising of that division's decision on the request for reconsideration.

(2)A statement of each disputed item and the reason or basis for the dispute.

(3)A computation and the dollar amount which reflects the appealing party's claim as to the correct computation and dollar amount for each disputed item.

(4)The authority in statute or rule upon which the appealing party relies for each disputed item.

(5)The name, address, and telephone number of the person upon whom all notices will be served regarding the appeal.

Chapter 75-03-21 Licensing of Foster Homes for Adults

N.D. Admin. Code 75-03-21-01 Definitions

In this chapter, unless the context or subject matter otherwise requires:

1."Abuse" means any willful act or omission of a caregiver or any other individual which results in physical injury, mental anguish, unreasonable confinement, sexual abuse, or exploitation to or of a resident.

2."Agency" means an organization which monitors the facility.

3."Applicant" means the individual or individuals completing and submitting to the department an application to be licensed to provide care.

4."Care" means foster care for adults as defined by North Dakota Century Code section 50-11-00.1 and includes the provision of personal, nonmedical services provided to assist a resident with tasks of a personal nature that are performed daily and which involve such activities as bathing, dressing, toileting, transferring from bed or chair, continence, eating or feeding, and mobility inside the facility.

5."Department" means the North Dakota department of health and human services.

6."Electronic monitoring device" means a device installed in the room of a resident which is intended to live action monitor, record, or record and transmit video, communications, or other sounds occurring in the room.

7."Exploitation" means the act or process of a provider using the income, assets, or person of a resident for monetary or personal benefit, profit, gain, entertainment, or gratification.

8."Facility" means a foster care home for adults.

9."Home and community-based setting experience interview" means an instrument used to record information about a resident's experiences in the facility.

10."License" means a document issued by the department authorizing an applicant to operate a facility.

11."Mental anguish" means psychological or emotional damage that requires medical treatment or medical care, or is characterized by behavioral changes or physical symptoms.

12."Monitoring" means overseeing the care provided to a resident by a provider and verifying compliance with laws, rules, and standards pertaining to care and the resident's rights related to the facility.

13."Neglect" means the failure of the provider to provide the goods or services necessary to avoid physical harm, mental anguish, or mental illness.

14."Person-centered service plan" means a plan that describes the Medicaid waiver recipient resident's assessed needs, outcomes, and goals and how the services and natural supports provided will assist the resident in achieving their outcomes and live safely and successfully in the community.

15."Provider" means a primary caregiver in active charge of a facility who has documented qualifications in providing care and is enrolled as a qualified service provider.

16."Qualified service provider" means an individual who has met all standards and requirements for that status established under chapter 75-03-23.

17."Resident" means any adult who is receiving care in a facility for compensation on a twenty-four-hour basis, but does not mean any other individual who lives or stays in the facility.

18."Respite care" means care provided by a respite care provider in a facility or substitute caregiver to a resident for the purpose of providing temporary relief to the provider from the stresses and demands associated with daily care or emergencies.

19."Respite care provider in a facility" means an individual enrolled as a qualified service provider who provides respite care to residents, whose care is funded by the state, in the absence of the provider.

20."Sexual abuse" means conduct directed against a resident which constitutes any of those sex offenses defined in North Dakota Century Code sections 12.1-20-02, 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, 12.1-20-06.1, 12.1-20-07, 12.1-20-11, 12.1-20-12.1, and 12.1-20-12.2 and North Dakota Century Code chapter 12.1-41.

21."Substitute caregiver" means an individual who meets qualified service provider standards and provides respite care to private pay residents in the absence of the provider.

October 1, 2012; October 1, 2016; April 1, 2026.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; April 1, 1999; September 1, 2004;

N.D. Admin. Code 75-03-21-02 Application

1.An application for a license to operate a facility must be made to the department.

2.An application must be made in the form and manner prescribed by the department.

3.An application for a license must be filed immediately upon change of provider or location.

4.An application is not complete until all required information and verifications are submitted to the department, including:

a.Fire inspections by the state fire marshal or local fire inspector, if required under subsection 7 of section 75-03-21-06;

b.A self-declaration of medical history and, when requested by the department, a report of a physician's examination;

c.A report of psychological examinations, when requested by the department;

d.Proof of age and relationship, when requested by the department;

e.Sanitation and safety inspection reports, when requested by the department;

f.Completed application form;

g.Drug and alcohol evaluation report, when requested by the department;

h.Licensing study report assessing the applicant's compliance with this chapter and North Dakota Century Code chapter 50-11;

i.Documentation of completion of a course related to fire prevention and safety;

j.Fire safety self-declaration form;

k.Evidence that all caregivers are properly qualified to provide care as provided in section 75-03-21-08;

l.A successfully completed criminal background check as specified in North Dakota Century Code sections 50-11-02.4, 50-11-06.8, and 50-11-06.9;

m.Examples of service logs to be used to account for service time and tasks performed for each resident;

n.An evacuation disaster plan; and

o.A sample menu plan compliant with dietary guidelines outlined in subsection 4 of section 75-03-21-11.

5.The department has sixty days from receipt of all application requirements to issue or deny a license. The department has an additional forty-five days to grant or deny a license required by this chapter if the department notifies the applicant that additional time is necessary.

6.An applicant may not hold itself out as a facility before the applicant has been issued a license by the department.

October 1, 2012; October 1, 2016; July 1, 2020; April 1, 2026.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; September 1, 2004; January 1, 2009;
• Law Implemented: NDCC 50-11-02, 50-11-03, 50-11-06.7

N.D. Admin. Code 75-03-21-03 License

1.Issuance of a license to operate a facility indicates compliance with the required standards, rules, and laws at the time of issuance.

2.A license is nontransferable.

3.A license is valid only for the individual or individuals named and the premises described on the license.

4.A license is valid only for the maximum number of residents and gender makeup for which the facility is licensed.

5.An initial license is valid for no longer than twelve months from the date of issuance.

6.A license that is issued after the initial licensing period has expired is valid for no longer than twenty-four months from the date of issuance or the date of expiration of the provider's status as a qualified service provider, whichever occurs first.

7.A provider may obtain both a license to operate a facility and a license as a family foster care home for children, but may not provide services to both adults and children simultaneously without prior written approval from the department.

8.If the private residence of a native American family, not subject to the jurisdiction of the state of North Dakota for licensing purposes, is located on a recognized Indian reservation in North Dakota, an affidavit from an agent of the tribal agency or an appropriate tribal officer may be accepted in lieu of a licensing procedure if the affidavit represents the following:

a.That an investigation of the facility was completed by the tribe's agency or tribal council.

b.That the prospective facility is in compliance with the standards required by North Dakota Century Code section 50-11-02 and this chapter.

9.If the private residence of an active duty military family, not subject to the jurisdiction of the state of North Dakota for licensing purposes, is located on a recognized military base in North Dakota, an affidavit from an agent of the base agency or other appropriate military officer may be accepted in lieu of a licensing procedure if the affidavit represents the following:

a.That an investigation of the facility was completed by the military base's agency.

b.That the prospective facility is in compliance with the standards required by North Dakota Century Code section 50-11-02 and this chapter.

September 1, 2004; October 1, 2012.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; March 1, 1997; April 1, 1999;

N.D. Admin. Code 75-03-21-04 Facility

1.The facility must be:

a.Free of warped or damaged floors, loose or unsecured floor coverings, loose tiles, broken or damaged windows, loose or broken handrails, broken light bulbs, and other hazards that would affect the safety of an adult residing in the facility;

b.Maintained free of offensive odors, vermin, and dampness;

c.Maintained by a central heating system at a temperature of at least sixty-eight degrees Fahrenheit [20 degrees Celsius];

d.Maintained so as to prevent crawling and flying pests from entering the facility through windows;

e.Equipped with handrails in all stairways;

f.Equipped with nonporous surfaces for shower enclosures;

g.Equipped with safety mats or slip-preventing materials on the bottom of tubs and floors of showers; and

h.Physically accessible for the resident.

2.Bedrooms for all residents must be constructed as a bedroom with walls or partitions of standard construction which extend from floor to ceiling and which provide privacy for the

3.Bedrooms occupied by one resident must have no less than seventy square feet [6.50 square meters] of usable floor space.

4.Bedrooms occupied by two residents must have no less than one hundred twenty square feet [11.15 square meters] of usable floor space and provide for privacy in the sleeping area.

5.Bedroom ceilings must be at least six feet and eight inches [203.20 centimeters] above the finished floor surface at the ceiling's lowest point.

6.No more than two residents may be assigned to one bedroom and residents sharing a bedroom must have a choice of roommates in that facility.

7.Bedroom and bathroom doors must be lockable by the resident for privacy, with only the resident and appropriate staff having keys to the bedroom doors. Any restrictions on having a lockable bedroom or bathroom door must be documented and justified in the person-centered service plan or service and rental agreement.

8.Bedrooms occupied by residents may not be located in a level of the facility below grade level unless there are two means of egress, one of which leads to the outside of the facility.

9.At least one full bathroom must be available on the same floor as any bedroom occupied by a

10.The facility shall have a telecommunication device on the main floor available for use by residents.

11.The facility's use of an electronic monitoring device in the resident's bedroom and bathroom is prohibited if the resident's care is funded by the state in whole or in part unless in compliance with the federal home and community-based services settings rule, 42 CFR 441.530. The allowable modification must be documented in the resident's person-centered service plan by the department or the department's designee.

12.The facility's use of an electronic monitoring device is allowable for monitoring an otherwise unattended private pay resident within a limited range, which allows the provider to remain nearby while ensuring the safety of the resident, if the use is approved in writing by the resident or, if the resident is incapacitated, a family member or legal representative of the

13.The facility shall limit access to the electronic monitoring device and to any information on or obtained by it to individuals with a need to have the information. Information on or obtained by the electronic monitoring device must be obtained, transmitted, and stored securely.

14.Mobile home units used as a facility must:

a.Have been constructed since 1976;

b.Have been designed for use as a dwelling, rather than as a travel trailer;

c.Meet the flame spread rate requirements; and

d.Have a manufacturer's label permanently affixed stating the mobile home meets the requirements of the department of housing and urban development or the American national standards institute.

October 1, 2016; April 1, 2026.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; January 1, 2009; October 1, 2012;
• Law Implemented: NDCC 50-11-02, 50-11-03, 50-11-03.7; 42 CFR 441.530

N.D. Admin. Code 75-03-21-05 Sanitation

1.Septic tanks or other nonmunicipal sewage disposal systems must comply with chapter 62-03.1-03, private sewage disposal systems.

2.Rubbish, garbage, and other refuse must be stored in readily cleanable containers and removed from the facility at least every second day. Rubbish, garbage, and other refuse kept outside of the facility must be stored in readily cleanable, rodent-proof containers and disposed of weekly.

3.The facility must be kept reasonably free of animal feces, urine, and hair.

4.Drinking water must be obtained from an approved community water system or from a source tested by a certified laboratory and approved by the department of environmental quality. A copy of the test report must be submitted to the department. The water and wastewater plumbing systems must comply with article 62-03.1, plumbing installation standards.

5.Milk must be obtained from an approved commercial source.

History

• History: Effective May 1, 1992; amended effective September 1, 2004; October 1, 2012; October 1, 2016.

N.D. Admin. Code 75-03-21-06 Safety - Inspections

1.Pets not confined in enclosures must not present a danger to a resident or the resident's guests based upon the size, temperament, or obedience of the pet. Proof of pet vaccination is required and shall be submitted to the department.

2.The facility must be located where a community or rural fire department is available.

3.Firearms must be stored, unloaded, in a locked cabinet. Any firearms cabinet must be located in an area of the facility that is not readily accessible to residents.

4.Interior doors with a locking mechanism must be provided with a means to unlock the door from either side.

5.The heating and electrical system must be inspected for operability and safety at the time of the initial license application and periodically thereafter if requested by the department.

6.Food preparation areas, equipment, and food storage areas must be clean, free of offensive odors, and in sound working condition.

7.The department may require that the facility be inspected by a local fire inspector or the state fire marshal at the time of initial license application and periodically thereafter if the department suspects that the facility is not fire safe or when structural changes are made to the facility.

8.Deficiencies noted during an inspection must be corrected within sixty days after the issuance of the inspection report.

9.Any fees for the inspections required by the department or costs associated with correcting deficiencies noted during an inspection must be the responsibility of the applicant or provider.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; September 1, 2004; October 1, 2012.

N.D. Admin. Code 75-03-21-07 Insurance

The provider shall maintain liability insurance, uninsured motorist coverage, and underinsured motorist coverage, according to the terms and conditions of North Dakota Century Code sections 39-16.1-11, 26.1-40-15.2, and 26.1-40-15.3, on all vehicles operated by the provider or members of the provider's household in which residents may be a passenger. The provider shall submit proof of insurance coverage to the department, upon request.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; October 1, 2012; April 1, 2026.
• Law Implemented: NDCC 50-11-02, 50-11-03

N.D. Admin. Code 75-03-21-08 Provider qualifications

1.The provider shall:

a.Be twenty-one years of age or older;

b.Live continuously in the facility;

c.Possess the physical health necessary to provide care;

d.Be literate and capable of understanding instructions and communicating in the English language;

e.Be free of communicable diseases;

f.Be in good physical health, emotionally and functionally stable, and not abusing drugs or alcohol;

g.Be a qualified service provider; and

h.Successfully complete criminal background check requirements as specified in North Dakota Century Code sections 50-11-02.4, 50-11-06.8, and 50-11-06.9.

2.In addition to the requirements of subsection 1, the provider shall also:

a.Provide evidence of competence in:

(1)The generally accepted procedure for infection control and proper handwashing methods;

(2)The generally accepted procedure for handling and disposing of body fluids;

(3)The generally accepted procedure for tub, shower, and bed bathing techniques;

(4)The generally accepted procedure for hair care techniques, bed and sink shampoo, and shaving;

(5)The generally accepted procedure for oral hygiene techniques of brushing teeth and cleaning dentures;

(6)The generally accepted procedure for caring for an incontinent resident;

(7)The generally accepted procedure for feeding or assisting a resident with eating;

(8)The generally accepted procedure for basic meal planning and preparation;

(9)The generally accepted procedure for assisting a resident with the self-administration of medications;

(10)The generally accepted procedures and techniques, which include dusting, vacuuming, sweeping, floor care, garbage removal, changing linens, and other similar tasks, for maintaining a kitchen, bathroom, and other rooms used by residents in a clean and safe condition;

(11)The generally accepted procedures in laundry techniques, which include mending, washing, drying, folding, putting away, ironing, and related work;

(12)The generally accepted procedure for assisting a resident with bill paying and balancing a check book;

(13)The generally accepted procedure for dressing and undressing a resident;

(14)The generally accepted procedure for assisting with toileting;

(15)The generally accepted procedure for routine eye care;

(16)The generally accepted procedure for proper care of fingernails;

(17)The generally accepted procedure for caring for skin, including giving a back rub;

(18)The generally accepted procedure for turning and positioning a resident in bed;

(19)The generally accepted procedure for transfer using a belt, standard sit, bed to wheelchair;

(20)The generally accepted procedure for assisting a resident with ambulation; and (21)The generally accepted procedure for making beds; or

b.Meet developmental disability competency standards for homes in which the responsible service provider is licensed according to chapter 75-04-01 and services are provided according to chapter 75-04-07.

October 1, 2012. 75-03-21-08.1. Verification and demonstration of competence.

1.A physician, registered nurse, occupational therapist, physical therapist, or other individual with a professional degree in specialized areas of care shall verify in writing, on forms furnished by the department, that a provider is competent to perform each procedure specified in subsection 9 of section 75-03-21-08. Verification that a provider is competent to perform a procedure is evidence of competence with respect to that procedure.

2.Competence may be demonstrated in the following ways:

a.A demonstration of the procedure being performed;

b.A detailed verbal explanation of the procedure; or

c.A detailed written explanation of the procedure.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; April 1, 1999; September 1, 2004;
• History: Effective April 1, 1999; amended effective September 1, 2004; October 1, 2012.
• General Authority: NDCC 50-06-16

N.D. Admin. Code 75-03-21-09 General practices

1.The provider:

a.Shall permit a representative of the department, human service zone, or other individual or organization serving a resident entry into the facility without prior notice;

b.Shall provide information about the residents to the department, human service zone, or other individual or organization serving a resident with reasonable promptness;

c.Shall report illness, hospitalization, or unusual behavior of a resident to the individual or organization serving the resident, or to the resident's representative, whichever is appropriate;

d.Shall assure that information related to the resident is kept confidential, except as may be necessary in the planning or provision of care or medical treatment, as related to an investigation or license review under this chapter, or as authorized by the resident;

e.May not practice, condone, facilitate, or collaborate with any form of illegal discrimination on the basis of race, color, sex, sexual orientation, age, religion, national origin, marital status, political belief, or mental or physical handicap;

f.Shall accept direction, advice, and suggestions concerning the care of residents from the department, human service zone, or other individual or organization serving a resident;

g.Shall assure that residents receiving care are not subjected to abuse, sexual abuse, neglect, or exploitation;

h.Shall undergo a medical examination, psychological evaluation, or drug and alcohol evaluation when requested by the department when there is reason to believe that such an examination or evaluation is reasonably necessary;

i.Shall authorize the release of a report of any examination or evaluation, required under subsection 8, to the department;

j.Shall immediately report changes in the identity or number of individuals living in the facility to the department;

k.Shall immediately report an inability to provide care to the resident to the department;

l.Shall allow a representative of the department to enter the premises, examine the facility and records maintained with respect to the residents, and interview the residents, provider, and caregivers in order to evaluate compliance with this chapter;

m.Shall cooperate with the department or human service zone in inspections, complaint investigations, planning for the care of a resident, application procedures, and other necessary activities, and allow access of the department, human service zone, ombudsman, or other authorized individuals to the facility and its residents;

n.May not retaliate against any resident, who has filed a complaint with the department or human service zone, by taking away rights or privileges, threatening to take away rights or privileges, or by abusing or threatening to abuse a resident in any manner;

o.Shall meet criteria established by the department for employment outside of the facility;

p.Must be free of influence, control, and direction in the operation of the facility by the landlord if the private residence is being rented;

q.May not use a transfer of ownership of a resident's possessions or property as payments;

r.May not purchase property or possessions from a resident without providing documented proof to the department that the item or property was purchased at fair market value;

s.May not accept or solicit personal property or a purchased item with a fair market value of at least twenty-five dollars that the resident, resident's family, or both, choose to give to the licensed provider;

t.May not accept or solicit personal property or a purchased item with a fair market value of twenty-five dollars or less that the resident, resident's family, or both, chose to give to the licensed provider exceeding more than two times in a calendar year;

u.Shall notify the department if the provider holds, or will be accepting, appointment as a power of attorney agent for a resident. The department may revoke the license of a provider who holds, or will be accepting, appointment as a power of attorney agent for a resident if the department considers it to be a conflict of interest or a result of undue influence;

v.Shall notify the resident or the resident's legal representative of their right to manage the resident's finances. The provider shall notify the department in writing if the resident, or the resident's legal representative, requests the provider to act as representative payee;

w.Shall provide the department, upon request, an accounting of the resident's expenses, including receipts, for all deposits and expenditures if the provider is assisting a resident with management of personal funds;

x.Shall provide twenty-four-hour care and supervision of all residents residing in the facility, unless otherwise documented and justified in the person-centered service plan or service and rental agreement; and

y.Use of a respite care provider in a facility or a substitute caregiver is required in the absence of the provider if the resident cannot safely be left alone as documented and justified in the person-centered service plan or service and rental agreement. Resident or the resident's legal representative shall be allowed to choose their provider of respite care.

2.For the purpose of this section, fair market value means:

a.In the case of a liquid asset that is not subject to reasonable dispute concerning its value, such as cash, bank deposits, stocks, and fungible commodities, one hundred percent of apparent fair market value;

b.In the case of real or personal property that is subject to reasonable dispute concerning its value:

(1)If conveyed in an arm's-length transaction to someone not in a confidential relationship with the individual or anyone acting on the individual's behalf, seventy-five percent of estimated fair market value; or (2)If conveyed to someone in a confidential relationship with the individual or anyone acting on the individual's behalf, one hundred percent of estimated fair market value; and

c.In the case of income, one hundred percent of apparent fair market value;

September 1, 2004; October 1, 2012; October 1, 2016; April 1, 2026.

1.An applicant may not be an individual who has, and may not permit an individual, except a resident, to reside in the facility or act as a caregiver in the facility if the individual has been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performance by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or North Dakota Century Code

section 12.1-17-01, simple assault, if a class C felony under subdivision a of subsection 2 of that section; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing peace officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-06.1, sexual exploitation by therapist; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery; or 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult; 12.1-31-07.1, exploitation of eligible adult; sections 14-09-22, abuse of child; 14-09-22.1, neglect of child; subsection 1 of section 26.1-02.1-02.1, fraudulent insurance acts; or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the enumerated North Dakota statutes; or

b.An offense, other than an offense identified in subdivision a, if the department determines that the individual has not been sufficiently rehabilitated.

2.For purposes of subdivision b of subsection 1, the department :

a.May not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment without subsequent charge or conviction has elapsed, unless sufficient evidence is provided of rehabilitation; and

b.Shall treat completion of a period of three years after final discharge or release from any term of probation, parole, or other form of community corrections, or from imprisonment, without subsequent conviction, as prima facie evidence of sufficient rehabilitation.

3.In the case of an offense described in North Dakota Century Code section 12.1-17-01, simple assault, if a felony; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence, if a misdemeanor; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-18-03, unlawful imprisonment; 12.1-20-05, corruption or solicitation of minors, if a misdemeanor; 12.1-20-07, sexual assault, if a misdemeanor; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent convictions.

4.The department has determined that the offenses enumerated in subdivision a of subsection 1 have a direct bearing on an individual's ability to serve the public in any capacity involving the provision of foster care to adults.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; March 1, 1997; April 1, 1999;
• Law Implemented: NDCC 50-11-02, 50-11-03, 50-11-04 75-03-21-09.1. Criminal conviction - Effect on licensure and operation of a facility.
• History: Effective April 1, 1999; amended effective September 1, 2004; January 1, 2009; October 1, 2012; October 1, 2016; July 1, 2020.
• General Authority: NDCC 50-11-03
• Law Implemented: NDCC 50-11

N.D. Admin. Code 75-03-21-10 Substitute caregiver provider qualifications

1.A substitute caregiver provider:

a.Must be eighteen years of age or older;

b.May not be a resident;

c.Must possess qualifications of a provider specified in subsections 1 and 2 of section 75-03-21-08 excluding subdivision b of subsection 1 of section 75-03-21-08; and

d.Successfully shall complete criminal background check requirements specified in North Dakota Century Code sections 50-11-02.4, 50-11-06.8, and 50-11-06.9.

2.The provider is responsible for the care of residents at all times, including if the duties or tasks of furnishing care have been delegated to a substitute caregiver.

3.Substitute caregivers who are providing care to private pay residents may not provide resident care on behalf of a facility for more than two hundred twenty calendar days during the twenty-four-month period immediately following the renewal date of the initial license or for more than one hundred ten days during the twelve-month period immediately following the date of the issuance of the initial license.

4.For purposes of this section, whenever a substitute caregiver provides resident care on behalf of a facility for more than twelve hours during a calendar day, the calendar day must be counted toward the two hundred twenty calendar day or one hundred ten calendar day limit a substitute caregiver may provide resident care on behalf of a facility.

October 1, 2012; October 1, 2016; April 1, 2026.

1.A respite care provider in a facility:

a.Must be eighteen years of age or older;

b.May not be a resident;

c.Must possess qualifications of a provider specified in subsections 1 and 2 of section 75-03-21-08 excluding subdivision b of subsection 1 of section 75-03-21-08; and

d.Successfully shall complete criminal background check requirements specified in North Dakota Century Code sections 50-11-02.4, 50-11-06.8, and 50-11-06.9. If the respite care provider in a facility's enrollment as a qualified service provider lapses for more than thirty days, the criminal background check must be repeated if the individual reapplies for enrollment as a qualified service provider after the lapse.

2.The provider is responsible for the care of residents at all times, including if the duties or tasks of furnishing care have been delegated to a respite care provider in a facility.

3.Residents whose care is being paid by the state, in whole or in part, only may receive paid or informal respite care from a respite care provider in a facility. If respite care services exceed the state funding cap, a facility may use a qualified respite care provider in a facility at the facility's expense up to the permitted days set forth in subsection 5, if the following requirements are met:

a.The additional respite hours must be documented as an informal service on the personcentered service plan;

b.The provider or the respite care provider in a facility may not charge the resident or anyone on behalf of the resident for the additional respite hours;

c.The provider shall keep records of the dates and time used for of all respite care providers in a facility;

d.The provider may not bill the daily rate for days during which the provider is gone more than the hours permitted by subsection 5; and

e.The respite care provider in a facility shall comply with requirements in section 75-03-21-09 and this section.

4.Respite care providers in a facility may not provide resident care on behalf of a facility for more than one hundred ninety-two calendar days during the twenty-four-month period immediately following the renewal date of the initial license or for more than ninety-six days during the twelve-month period immediately following the date of the issuance of the initial license.

5.For purposes of this section, whenever a respite care provider in a facility provides resident care on behalf of a facility for more than twelve hours during a calendar day, the calendar day must be counted toward:

a.The one hundred ninety-two calendar day or ninety-six calendar day limit a respite care provider in a facility may provide resident care on behalf of a facility; or

b.The respite care service funding cap to which a respite care provider in a facility established by the department may provide resident care for each qualifying resident.

6.Employing individuals other than those who meet the definition of respite care provider in a facility to provide services to a resident is prohibited.

A provider:

1.May employ a temporary assistant who meets the standards of a substitute caregiver or a respite care provider in a facility as needed to assist with private pay residents who have physical limitations that require more than one provider to properly assist.

2.May not employ a temporary assistant to assist with public pay residents.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; September 1, 2004; January 1, 2009;
• Law Implemented: NDCC 50-11-03, 50-11-03.6 75-03-21-10.1. Qualifications of a respite care provider in a facility.
• History: Effective April 1, 2026.
• Law Implemented: NDCC 50-11-03, 50-11-03.6 75-03-21-10.2. Adult foster care facility temporary assistants.
• History: Effective April 1, 2026.
• Law Implemented: NDCC 50-11-03, 50-11-03.7

N.D. Admin. Code 75-03-21-11 Meals and nutrition

1.Three meals must be served daily.

2.Residents must be allowed access to food at any time and meal choices must be provided.

Any restrictions on access to or choice of food because of health and safety concerns must be documented and justified in the person-centered service plan or service and rental agreement.

3.There may be no more than fourteen hours between the conclusion of the evening meal and service of breakfast.

4.Each meal must be nutritious and well-balanced in accordance with the recommended dietary allowances of the food and nutrition board of the national research council, national academy of sciences.

5.Adequate amounts of food must be available at all meals.

6.The special dietary needs of the residents must be considered in all menu planning, food selection, and meal preparation.

7.Consideration must be given to residents' cultural, ethnic, and religious backgrounds in food preparation.

8.Meals must be regularly and routinely prepared in the facility where the residents live.

9.Charges imposed for resident meals provided by individuals or businesses other than the provider must be paid by the provider unless the provider made a meal available at the facility.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; September 1, 2004; October 1, 2012;

N.D. Admin. Code 75-03-21-12 Service and rental agreement

The provider shall furnish each prospective resident, or the resident's legal representative, and the department with a signed copy of the provider's service and rental agreement prior to the resident entering the facility. A copy signed by the resident or legal representative and the provider must be kept in the resident's record.

1.The service and rental agreement must include all of the following information:

a.Landlord tenant eviction and appeals process;

b.Resident's rights to unrestricted telephone access, unless otherwise documented and justified in the person-centered service plan or service and rental agreement;

c.Any relevant expectations with which the resident is expected to comply, including restrictions on the use of alcohol or tobacco in the facility;

d.Sample menu plan of meals served;

e.Procedure concerning the use and management of resident funds;

f.Procedure used for billing, collecting, and reimbursing the charge for board, room, and care;

g.Policies concerning the furnishing of nonemergency resident transportation by the provider;

h.Resident's right to furnish and decorate their bedroom;

i.Resident's right to control their own schedules and activities, unless otherwise documented and justified in the person-centered service plan or service and rental agreement;

j.Resident's right to have visitors of their choosing at any time, unless otherwise documented and justified in the person-centered service plan or service and rental agreement;

k.Accurate and complete information regarding the extent and nature of the care to be provided by the provider, including whether or not the client requires twenty-four-hour supervision or the appropriate length of time the resident may be safely left alone; and

l.Resident's right to be free from coercion and restraint.

2.All agreement modifications must be supported by a specific assessed need and documented and justified in the person-centered service plan or service and rental agreement.

3.All agreement modifications made after the date the initial agreement was signed must be in writing and signed by the resident or the resident's legal representative and the provider. The provider shall furnish the resident, or the resident's legal representative, and the department with a signed copy of the modifications. A copy of the modifications must be kept in the resident's records.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; September 1, 2004; October 1, 2012;

N.D. Admin. Code 75-03-21-13 Termination of care

1.The provider shall terminate care of a resident when care is no longer required or when the provider is no longer qualified to provide the care needed by the resident.

2.The provider who anticipates the termination of care to a resident shall provide the resident, or the resident's legal representative, and the department with at least thirty days' written notice of the termination. The provider shall assist with the transfer of the resident to a setting more appropriate to the resident's needs. The provider also shall comply with the provider's service and rental agreement and landlord tenant eviction laws.

3.If an emergency placement outside of the facility is needed or a resident is hospitalized and the resident's condition has changed to the extent that the provider is no longer able to provide the resident's care, consideration will be given to waiving the thirty-day written notice required under subsection 2 provided keeping the resident or returning the resident to the facility would negatively impact the health and well-being of the resident, other residents living in the facility, or the provider.

October 1, 2016; July 1, 2020.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; January 1, 2009; October 1, 2012;

N.D. Admin. Code 75-03-21-14 Action on license application

The department may deny or grant a license. A license may be granted subject to such reasonable limitations, restrictions, or conditions as the department may determine to be necessary and appropriate to assure safety and adequate care for residents for which application has been made.

History

• History: Effective May 1, 1992.

N.D. Admin. Code 75-03-21-15 Bases for license action - Permitting operation after notice of revocation

The department may revoke or deny a license for any of the reasons permitted in law, or any combination of reasons. A revocation or denial based on more than one reason must be affirmed, on appeal, if the evidence supports any reason given for revocation or denial. A provider who receives a notice of revocation, and who makes a timely appeal of that notice, may continue to operate the facility pending a final administrative appeal decision, unless the revocation is based upon reasons which present an imminent danger to the health, welfare, or safety of residents or unless the license expires.

History

• History: Effective May 1, 1992; amended effective October 1, 2012.

N.D. Admin. Code 75-03-21-16 Denial or revocation of license

The denial of an application or the revocation of a license applies to all individuals who applied to be licensed at the facility or who are listed as providers on the license. An application for a license may be denied or a license may be revoked if:

1.Any conditions set forth in North Dakota Century Code section 50-11-02 as prerequisites for issuance of the license do not exist;

2.The application contains false or misleading material information or the applicant intentionally withholds material information;

3.The license was issued upon false, misleading, or intentionally withheld material information;

4.A licensee, caregiver, employee, or an agent of the facility has violated a provision of this

chapter or any of the rules of the department;

5.An applicant, licensee, caregiver, employee, or agent of the facility has been convicted of an offense determined by the department to have a direct bearing upon the individual's ability to serve the public or residents of the facility, or the department determines, following conviction of any other offense, the individual is not sufficiently rehabilitated under North Dakota Century Code section 12.1-33-02.1;

6.The facility, or the premises proposed for the facility, is not being or will not be maintained according to this chapter;

7.The facility, or the premises proposed for the facility, is not in sanitary condition or properly equipped to provide good care for all residents who may be received;

8.The provider or proposed provider is not properly qualified to carry out the duties required;

9.The facility, or the premises proposed for the facility, is not being conducted or is not likely to be conducted for the public good in accordance with sound public policy and with due regard for the health, morality, and well-being of all residents; or

10.The provider or proposed provider is not a reputable and responsible individual.

History

• History: Effective May 1, 1992; amended effective May 1, 1995; September 1, 2004; October 1, 2012.

N.D. Admin. Code 75-03-21-17 Distribution of notice of denial or revocation

A copy of a notice of revocation or a notice of denial of a license application may be provided to any resident, any individual who resides in a place under circumstances which may require that place to be licensed as a facility for care of that individual, to any guardian, conservator, human service zone, or individual making placement of that resident or individual.

History

• History: Effective May 1, 1992; amended effective September 1, 2004; October 1, 2012.

N.D. Admin. Code 75-03-21-18 Reapplication after denial or revocation

A provider or proposed provider whose license has been revoked or whose license application has been denied may not reapply, without the written permission of the department:

1.Until a final, unappealable determination has been made with respect to the denial or revocation; and

2.For two years after the date of an unappealed denial of a license application or an unappealed revocation of a license, or the date of a final, unappealable decision affirming the appealed denial of a license application or appealed revocation of a license, whichever occurs latest.

History

• History: Effective May 1, 1992.

N.D. Admin. Code 75-03-21-19 Provisional license

The department may issue a provisional license to an applicant who has previously held an unrestricted license.

1.Any provisional license issued must be accompanied by a written statement identifying in what respect the applicant or the facility does not comply with North Dakota Century Code chapter 50-11 and rules governing the provision of care, signed by the department or its designee, and, in writing, be acknowledged by the provider.

2.The applicant shall comply with North Dakota Century Code chapter 50-11 and the rules of the department within the period of time the provisional license is in effect.

3.A provisional license must:

a.Prominently state that the facility has failed to comply with all applicable laws and rules of the department;

b.State that the items of noncompliance are set forth in a written statement available upon request made to the licensed provider;

c.Expire on a set date, not to exceed six months from the date of issuance; and

d.Be replaced by an unrestricted license, if the applicant demonstrates compliance satisfactory to the department with all applicable laws and rules within the period of time the provisional license is in effect.

4.A provisional license must be issued only to an applicant who has, in writing, waived:

a.The right of a written statement of changes as to the reasons for the denial of an unrestricted license; and

b.The right to an administrative hearing, in the manner provided in North Dakota Century Code chapter 28-32, concerning the denial of an unrestricted license either at the time of application or during the period of operation under a provisional license.

5.Subject to the exceptions contained in this section, a provisional license is equivalent to an unrestricted license.

History

• History: Effective May 1, 1995; amended effective October 1, 2012; October 1, 2016.

N.D. Admin. Code 75-03-21-20 Time period for correcting deficiencies

The following time periods are established for correction of deficiencies identified in a correction order:

1.For a deficiency requiring a provider or substitute caregiver to provide written documentation of qualifications in providing foster care for adults, a period of up to thirty days must be allowed to correct the deficiency;

2.For a deficiency that requires an inspection for compliance with fire, safety, and sanitation, a period of up to thirty days must be allowed to correct the deficiency;

3.For a deficiency that requires obtaining and providing the results of a drug and alcohol evaluation, psychological evaluation, or a physical examination, a period of up to sixty days must be allowed to correct the deficiency;

4.For deficiencies that require building remodeling, renovation, or change, a period of up to sixty days must be allowed to correct the deficiency;

5.For all other deficiencies, a period of up to thirty days must be allowed to correct the deficiency;

6.All time periods must commence with the date the correction order is received by the provider; and

7.The department may grant extensions for a period of one-half the original allowable time to correct a deficiency upon demonstration by the provider that the need for an extension is created by circumstances beyond the control of the provider and that the provider has diligently pursued the correction of the deficiency.

History

• History: Effective May 1, 1995; amended effective September 1, 2004.

N.D. Admin. Code 75-03-21-21 Penalties

A licensed provider, if issued a notice of noncompliance with a correction order, must be assessed fiscal sanctions.

1.A violation of any of the following sections subjects the licensed provider to a fiscal sanction of twenty-five dollars per day: subsections 1, 3, 4, 5, 8, and 10 of section 75-03-21-04; section 75-03-21-05; subsections 3, 4, 5, and 6 of section 75-03-21-06; subsection 4 of section 75-03-21-09; subsection 1 of section 75-03-21-10; subsections 4 and 5 of section 75-03-21-11; and subsection 1 of section 75-03-21-13.

2.A violation of any of the following sections subjects the licensed provider to a fiscal sanction of fifteen dollars per day: subsections 6 and 9 of section 75-03-21-04; subsections 10, 11, 13, 14, and 17 of section 75-03-21-09; and section 75-03-21-12.

3.A violation of any other provision of this chapter not noted in subsections 1 and 2 subjects the licensed provider to a fiscal sanction of five dollars per day.

History

• History: Effective May 1, 1995; amended effective April 1, 1999; September 1, 2004; October 1, 2012;

N.D. Admin. Code 75-03-21-22 Records

The following records must be kept and maintained for each resident in the facility:

1.The resident's full name and birth date;

2.The name, address, and telephone number of the resident's legal representative when one exists and an emergency contact;

3.Names, addresses, and telephone numbers of individuals who can assume responsibility or consent to health care under North Dakota Century Code section 23-12-13 for the resident if the legal representative cannot be reached immediately in an emergency;

4.The daily care needed and provided to the resident and the name of the individual or individuals who provided the care;

5.A record of any matter required to be reported under subsection 3 of section 75-03-21-09 and of any accident resulting in injury to a resident; and

6.An accounting of any real or personal property the resident or the resident's family gives, sells, or otherwise transfers to the provider or provider's family.

History

• History: Effective May 1, 1995; amended effective September 1, 2004; October 1, 2012.

N.D. Admin. Code 75-03-21-23 Monitoring

The department shall conduct facility visits at time of licensure, licensure renewal, or upon evidence of noncompliance. Monitoring visits at the time of licensure renewal or upon evidence of noncompliance must include home- and community-based setting experience interviews with all residents.

1.Interviews must be completed in the form and manner described by the department; and

2.Interview results must be provided to the department at time of licensure renewal or upon evidence of noncompliance.

History

• History: Effective October 1, 2016.

Chapter 75-03-21.1 Licensing of Agency Foster Homes for Adults

N.D. Admin. Code 75-03-21.1 Licensing of Agency Foster Homes for Adults

CHAPTER 75-03-21.1

LICENSING OF AGENCY FOSTER HOMES FOR ADULTS

Section 75-03-21.1-01Definitions 75-03-21.1-02Application 75-03-21.1-03License 75-03-21.1-04Single or Multiple License 75-03-21.1-05Notification of License 75-03-21.1-06Types of Licenses 75-03-21.1-07Provisional License 75-03-21.1-08Display of License 75-03-21.1-09Purchase of Service or Recognition of Unlicensed Entities 75-03-21.1-10Unlicensed Entities - Notification 75-03-21.1-11Standards of the Department 75-03-21.1-12Identification of Basic Services Subject to Licensure 75-03-21.1-13Facility 75-03-21.1-14Facility Design 75-03-21.1-15Facility Location 75-03-21.1-16Facility Bedrooms 75-03-21.1-17Facility Kitchens 75-03-21.1-18Facility Bathrooms 75-03-21.1-19Facility Laundry 75-03-21.1-20Facility Use of Space 75-03-21.1-21Facility Water Supply 75-03-21.1-22Facility Sewage Disposal 75-03-21.1-23Emergency Plans 75-03-21.1-24Insurance and Bond Requirements 75-03-21.1-25Variance 75-03-21.1-26Applicant's Buildings 75-03-21.1-27Safety Codes 75-03-21.1-28Safety - Inspections 75-03-21.1-29Direct Service Provider Employee Qualifications 75-03-21.1-30Verifications and Demonstration of Competence 75-03-21.1-31General Practices 75-03-21.1-32Recording and Reporting Critical Incidents 75-03-21.1-33Entry and Inspection 75-03-21.1-34Access to Records 75-03-21.1-35Denial of Access to Facilities and Records 75-03-21.1-36Criminal Conviction - Effect on Licensure and Operation of a Facility 75-03-21.1-37Disclosure of a Criminal Record 75-03-21.1-38Meals and Nutrition 75-03-21.1-39Lease or Rental Agreement 75-03-21.1-40Applicant Guarantees and Assurances 75-03-21.1-41Termination of Care 75-03-21.1-42Permitting Operation After Notice of Revocation 75-03-21.1-43Distribution of Notice of Denial or Revocation 75-03-21.1-44Reapplication After Denial or Revocation 75-03-21.1-45Time Period for Correcting Deficiencies 75-03-21.1-46Penalties 75-03-21.1-47Records 75-03-21.1-48Documentation and Data Reporting Requirements 75-03-21.1-49Monitoring 75-03-21.1-50Developmental Disability Licensure 75-03-21.1-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1."Abuse" means any willful act or omission by an individual which results in physical injury, mental anguish, unreasonable confinement, sexual abuse, or exploitation to or of a resident.

2."Agency" means an organization which operates the facility.

3."Agency foster home for adults" means a residential home in which foster care for adults is regularly provided exclusively to Medicaid waiver recipients by professional staff trained to provide services to older adults or adults with a disability, to four or fewer adults who are not related by blood or marriage to the owner or lessee, for hire or compensation.

4."Applicant" means the agency completing and submitting to the department an application to be licensed to provide agency foster care for adults.

5."Care" means the provision of residential habilitation or community support services, as defined by chapter 75-03-23, in an agency foster care for adults.

6."Department" means the North Dakota department of human services.

7."Facility" means a licensed agency foster care home for adults providing residential habilitation or community support services.

8."Financial exploitation" means use or receipt of services provided by the vulnerable adult without just compensation, the taking, acceptance, misappropriation, or misuse of property or resources of a vulnerable adult by means of undue influence, breach of a fiduciary relationship, deception, harassment, criminal coercion, theft, or other unlawful or improper means.

9."Home and community-based setting experience interview" means an instrument used to record information about a resident's experiences in the facility.

10."License" means a document issued by the department authorizing an applicant to operate a facility.

11."Mental anguish" means psychological or emotional damage that requires medical treatment or medical care or is characterized by behavioral changes or physical symptoms.

12."Monitoring" means overseeing the care provided to a resident by a provider and verifying compliance with laws, rules, and standards pertaining to care and the resident's rights related to the facility.

13."Neglect" means the failure of the provider to provide the goods or services necessary to avoid subjecting a resident to physical harm, mental anguish, or mental illness.

14."Person-centered service plan" means a plan that describes the Medicaid waiver recipient resident's assessed needs, outcomes, and goals and how the services and natural supports provided will assist the resident in achieving their outcomes and live safely and successfully in the community.

15."Provider" means an agency enrolled to operate the facility whose employees have documented qualifications in providing care and is enrolled as a qualified service provider agency.

16."Qualified service provider agency" means an organization that has met all standards and requirements for that status established under chapter 75-03-23.

17."Resident" means any adult who is receiving care in a facility for compensation up to twentyfour hours per day.

18."Sexual abuse" means conduct directed against a resident which constitutes any of those sex offenses defined in North Dakota Century Code sections 12.1-20-02, 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, 12.1-20-06.1, 12.1-20-07, 12.1-20-11, 12.1-20-12.1, and 12.1-20-12.2, and North Dakota Century Code chapter 12.1-41. 75-03-21.1-02. Application.

1.An agency's application for a license to operate a facility must be made to the department.

2.An application must be made in the form and manner prescribed by the department.

3.An application for a license must be filed immediately upon change of agency or facility's location.

4.An application is not complete until all required information and verifications are submitted to the department including:

a.Fire inspections by the state fire marshal or local fire inspector, if required under subsection 1 of section 75-03-21.1-26;

b.Sanitation and safety inspection reports, when requested by the department;

c.Completed application form;

d.Licensing study report assessing the applicant's compliance with this chapter and North Dakota Century Code chapter 50-11;

e.Evidence that all agency employees are properly qualified to provide care as provided in

section 75-03-21.1-29;

f.A successfully completed criminal background check as specified in North Dakota Century Code section 50-11-02.4;

g.Description of the type of documentation to be used to account for service time and tasks performed for each resident;

h.An evacuation disaster plan; and

i.A sample menu plan compliant with dietary guidelines outlined in subsection 4 of section 75-03-21.1-38. 75-03-21.1-03. License.

1.Issuance of a license to operate a facility indicates an agency's compliance with the required standards, rules, and laws at the time of issuance.

2.A license is nontransferable.

3.A license is valid only for the agency named and the facilities' premises described on the license.

4.A license is valid only for the maximum number of residents for which the agency is licensed.

5.A license is only valid for those services or facilities identified on the license.

6.An initial license is valid for no longer than twelve months from the date of issuance.

7.A license that is issued after the initial licensing period has expired is valid for no longer than twenty-four months from the date of issuance or the date of expiration of the agency's status as a qualified service provider, whichever occurs first.

8.If the agency adult foster care, not subject to the jurisdiction of the state of North Dakota for licensing purposes, is located on a recognized Indian reservation in North Dakota, an affidavit from an agent of the tribal agency or an appropriate tribal officer may be accepted in lieu of a licensing procedure if the affidavit represents the following:

a.That an investigation of the agency and facility was completed by the tribe's agency or tribal council.

b.That the prospective agency and facility is in compliance with the standards required by North Dakota Century Code section 50-11-02 and this chapter.

9.If the agency adult foster care, not subject to the jurisdiction of the state of North Dakota for licensing purposes, is located on a recognized military base in North Dakota, an affidavit from an agent of the base agency or other appropriate military officer may be accepted in lieu of a licensing procedure if the affidavit represents the following:

a.That an investigation of the agency and facility was completed by the military base's agency.

b.That the prospective agency and facility is in compliance with the standards required by North Dakota Century Code section 50-11-02 and this chapter. 75-03-21.1-04. Single or multiple license.

A single license may be issued authorizing the provision of both residential habilitation and community support services by one applicant or single licenses may be issued authorizing the provision of each discrete service, at the discretion of the department. A license denial or revocation may affect all or some of the services and facilities operated by an agency, as determined by the department. 75-03-21.1-05. Notification of license.

1.The department, within sixty days from the date of the receipt of an application for a license, or upon finding an agency in noncompliance with the rules of the department, shall notify the applicant or agency's principal officer of the department's intent to grant, deny, or revoke a license.

2.The department shall notify the applicant or agency in writing. Service of the notification is made upon deposit with the United States postal service. The department shall issue a notice of denial or revocation in accordance with North Dakota Century Code section 50-11-08.

3.The applicant or agency may appeal the denial or revocation of a license by written request for an administrative hearing, mailed or delivered to the department within twenty days after service of the denial or revocation. The hearing must be governed by the provisions of chapter 75-01-03.

4.The agency may continue to provide services until the final appeal decision is rendered. If residents have been removed from the facility or service because of a health, welfare, or safety issue, the residents shall remain out of the facility or service while the appeal is pending.

5.The agency, upon final revocation notification, immediately shall return the license to the department. 75-03-21.1-06. Types of licenses.

1.A license issued pursuant to this chapter must be denominated "unrestricted license" or "provisional license".

2.An "unrestricted license" may be issued to an applicant who complies with the rules and regulations of the department and North Dakota Century Code chapter 50-11, and who is accredited by the council on quality and leadership for services for individuals with disabilities in accordance with 2015 third edition of the Basic Assurances tool, including all factors and indicators.

3.A "provisional license" may be issued subject to the provisions of section 75-03-21.1-07. 75-03-21.1-07. Provisional license.

1.An applicant may submit an application, on a form provided, for a provisional license, permitting the provision of a new provider agency.

a.A provisional license may be issued to an applicant who complies with the rules and regulations of the department and North Dakota Century Code chapter 50-11 and who has the initial level of accreditation by the council on quality and leadership for services for individuals with disabilities in accordance with 2015 third edition of the Basic Assurances tool, including all factors and indicators.

b.A provisional license issued under this subsection may be renewed for an additional six months only upon the department's determination the agency has made significant progress toward full accreditation by the council of quality and leadership for services for individuals with disabilities in accordance with 2015 third edition of the Basic Assurances tool, including all factors and indicators, as determined by the department.

c.The department shall terminate a provisional license and issue an unrestricted license to the agency upon full accreditation by the council of quality and leadership for services for individuals with disabilities in accordance with 2015 third edition of the Basic Assurances tool, including all factors and indicators, as determined by the department.

d.The department shall issue a notice of denial or revocation of a provisional license in accordance with North Dakota Century Code section 50-11-08.

e.Notice of a denial or revocation of a provisional license may be appealed in the same manner as a notice of denial or revocation of a license.

2.A provisional license may be issued to an agency with an acceptable plan of correction notwithstanding a finding of noncompliance with the rules and regulations of the department and North Dakota Century code chapter 50-11.

a.A provisional license may not be issued to an agency whose practices or facilities pose a clear and present danger to resident health and safety, including fire safety requirements as evidenced in writing by the state fire marshal, negligent or intentional misrepresentations to the department regarding any aspect of the agency's operations, or any violation that places a resident's life in danger.

b.A provisional license may be issued for any or all services provided, or facilities operated by an agency, as determined by the department.

c.Upon a finding that the agency is not in compliance, the department shall notify the agency, in writing, of its intent to issue a provisional license. The notice must provide the reasons for the action, the specific statute or rule violated, the specific services that are affected by the provisional license, specify the time allowed for correction, and describe the corrective actions required of the agency.

d.The agency shall, within ten days of the receipt of notice under subdivision c, submit to the department, on a form provided, a plan of correction. The plan of correction must include the elements of noncompliance, a description of the corrective action to be undertaken, and a date of compliance. The department may accept, modify, or reject the agency's plan of correction and shall notify the agency of the department's decision within thirty days. If the plan of correction is rejected, the department shall notify the agency that the license is being revoked in accordance with North Dakota Century Code

section 50-11-08. The department may conduct periodic inspections of the facilities and operations of the agency to evaluate the implementation of a plan of correction.

e.The department shall terminate a provisional license and issue an unrestricted license to the agency upon successful completion of an accepted plan of correction, as determined by the department.

f.A provisional license issued under this subsection may be issued for any period not exceeding one year. A provisional license may be renewed for an additional six months only upon the department's determination the agency has made significant progress toward meeting the rules and regulations of the department and North Dakota Century Code chapter 50-11, as identified in the plan of correction or the agency has shown good cause for failure to implement the plan of correction. A provisional license is nontransferable and valid only for the facilities or services identified thereon. 75-03-21.1-08. Display of license.

The agency shall place the license in an area accessible to the public and where it may be readily seen. Licenses need not be placed on display in residences or residential areas of a facility but must be available to the public or the department upon request. 75-03-21.1-09. Purchase of service or recognition of unlicensed entities.

The department may not recognize or approve the activities of unlicensed entities in securing public funds from the United States, North Dakota, or any of its political subdivisions. The department may not purchase any service from such unlicensed entities. 75-03-21.1-10. Unlicensed entities - Notification.

Upon a determination that activities subject to licensure are occurring or have occurred, the department shall notify the person that the activities are subject to licensure. The notice must include a citation of the applicable provisions of these rules, an application for a license, a date by which the application must be submitted, and, if applicable, a request for the persons to explain that the activities identified in the notification are not subject to licensure. A person who receives notification shall submit a completed application to the department within thirty days of notice. 75-03-21.1-11. Standards of the department.

The department herein adopts and makes a part of these rules for all agencies the 2015 third edition of the Basic Assurances tool, including all factors and indicators standards used for accreditation by the council on quality and leadership. If an agency fails to meet an accreditation standard, the department may analyze the agency's failure using the appropriate current standards of the council on quality and leadership, this chapter, and North Dakota Century Code chapter 50-11. 75-03-21.1-12. Identification of basic services subject to licensure.

Services provided to eligible residents must be identified and licensed by the following titles for older adults and individuals with physical disabilities:

1.Residential habilitation services; or

2.Community support services. 75-03-21.1-13. Facility.

1.The facility must be:

a.Free of warped or damaged floors, loose or unsecured floor coverings, loose tiles, broken or damaged windows, loose or broken handrails, broken light bulbs, and other hazards that would affect the safety of a resident;

b.Maintained by a central heating and cooling system at a temperature of at least sixtyeight degrees Fahrenheit [20 degrees Celsius];

c.Maintained so as to prevent crawling and flying pests from entering the facility through windows;

d.Equipped with handrails in all stairways;

e.Equipped with nonporous surfaces for shower enclosures;

f.Equipped with safety mats or slip-preventing materials on the bottom of tubs and floors of showers; and

g.Physically accessible for the resident.

2.The facility must have a telecommunication device on the main floor available for use by residents.

3.Use of video surveillance equipment by the provider in the resident's bedroom and bathroom is prohibited.

4.Mobile home units used as a facility must:

a.Have been constructed after 1976;

b.Have been designed for use as a dwelling that is placed on a permanent foundation, rather than as a travel trailer;

c.Meet the flame spread rate requirements; and

d.Have a manufacturer's label permanently affixed stating the mobile home meets the requirements of the department of housing and urban development or the American national standards institute. 75-03-21.1-14. Facility design.

1.Facilities must be small enough and of a modest design, minimizing the length of hallways, the number of exterior corners, and the complexity of construction, to ensure the development of meaningful interpersonal relationships and the provision of proper programming, services, and direct care.

2.Facilities must simulate the most homelike atmosphere possible in order to encourage a personalized environment.

3.Facilities shall provide, at a minimum, enough living space, based on the needs of both males and females, with provisions for privacy and appropriate access to quiet areas where a resident can be alone.

4.Facilities shall provide arrangement of space to permit residents to participate in different kinds of activities, both in groups and individually. Space must be arranged to minimize noise and permit communication at normal conversational levels.

5.Facilities must be accessible to nonambulatory residents, visitors, and employees. 75-03-21.1-15. Facility location.

1.Facilities must be located at least three hundred feet [91.44 meters] from hazardous areas, including bulk fuel or chemical storage, anhydrous ammonia facilities, or other fire hazards or sources of noxious or odoriferous emissions.

2.Facilities may not be located in areas subject to adverse environmental conditions, including mudslides, harmful air pollution, smoke or dust, sewage hazards, rodent or vermin infestations, excessive noise, vibrations, or vehicular traffic.

3.Facilities may not be located in an area within the one-hundred-year base flood elevations unless:

a.The facility is covered by flood insurance as required by 42 U.S.C. 4101; or

b.The finished lowest floor elevation is above the one-hundred-year base flood elevation and the facility is free from significant adverse effects of the velocity of moving water or by wave impact during the one-hundred-year flood.

4.Facilities must be located in residential neighborhoods reasonably accessible to shops, commercial facilities, and other community facilities; and must be located not less than six hundred feet [182.88 meters] from existing group homes or day service facilities licensed by the department to serve individuals with developmental disabilities, schools for the disabled, agency foster care home for adults, long-term care facilities, or other institutional facilities.

Upon written application, and good cause shown, the department may grant a variance from the provisions of this subsection upon terms the department may prescribe. 75-03-21.1-16. Facility bedrooms.

1.Bedrooms must accommodate no more than two residents.

2.Bedrooms must provide at least one hundred square feet [7.43 square meters] per resident in a single occupancy bedroom, and at least eighty square feet [5.57 square meters] per resident in a double occupancy bedroom, both exclusive of closet and bathroom space.

3.Bedrooms must be located on outside walls and separated from other rooms and spaces by walls extending from floor to ceiling and be at or above grade level.

4.Bedrooms must not have doors with vision panels.

5.Each resident must have the opportunity to furnish and decorate their bedrooms as they choose, such as a chest of drawers, table, or desk.

6.Bedrooms must provide storage space for clothing in the bedroom, which is accessible to all, including nonambulatory individuals.

7.Bedrooms for all residents must be constructed as a bedroom with walls or partitions of standard construction which extend from floor to ceiling and which provide privacy for the resident.

8.Bedroom ceilings must be at least six feet and eight inches [203.20 centimeters] above the finished floor surface at the ceiling's lowest point.

9.No more than one resident may be assigned to a bedroom unless requested by both residents. No more than two residents may reside in one bedroom.

10.Bedroom and bathroom doors must be lockable by the resident for privacy, with only the resident and appropriate employee having keys to the bedroom doors. Any restrictions on having a lockable bedroom or bathroom door must be documented and justified in the personcentered service plan.

11.Bedrooms occupied by residents may not be located in a level of the facility below grade level unless there are two means of egress, one of which leads to the outside of the facility.

12.At least one full bathroom must be available on the same floor as any bedroom occupied by a resident. 75-03-21.1-17. Facility kitchens.

1.Kitchens must provide sufficient space to permit participation by both employees and residents in the preparation of food.

2.Kitchens must provide appropriate space and equipment, including a two-compartment sink, to adequately serve the food preparation and storage requirements of the facility.

3.Kitchens must have hot water supplied to sinks in the range of one hundred ten to one hundred forty degrees Fahrenheit [47.22 to 60 degrees Celsius], as controlled by a tempering valve, located to preclude resident access.

4.Kitchens must be maintained in such a way that they provide for safe food handling and food storage, and meet acceptable standards to assure a healthy environment. 75-03-21.1-18. Facility bathrooms.

1.Bathrooms must be located in places that facilitate maximum self-help by residents.

2.Bathrooms must provide showers or bathtubs, toilets, and lavatories approximating normal patterns found in homes, unless specifically contraindicated by program needs.

3.Bathrooms must serve only up to four residents each.

4.At least one bathroom per facility must be accessible and usable by nonambulatory residents, visitors, and employees.

5.Bathrooms must have hot water supplied to lavatories and bathing facilities in the range of one hundred ten to one hundred forty degrees Fahrenheit [47.22 to 60 degrees Celsius], as controlled by a tempering valve, located to preclude resident access. 75-03-21.1-19. Facility laundry.

Laundry space must provide a washer and dryer, storage for laundry supplies, accommodations for ironing, and counterspace for folding clothing and linen. 75-03-21.1-20. Facility use of space.

1.Facilities shall provide access to all areas of the facility, with due regard for privacy, personal possessions, and service provision, with limitations of personal areas of employees.

2.Facilities shall provide for a resident to personalize the resident's portion of the living unit and mount pictures on the walls. 75-03-21.1-21. Facility water supply.

1.Facilities must be located in areas where public or private water supplies approved by the department of environmental quality are available. Approved public water supplies must be used where available.

2.When a private water supply is used, water samples must be submitted to a certified laboratory approved by the department of environmental quality at the earliest possible date prior to occupancy, and every six months thereafter to determine chemical and bacteriological acceptability.

3.Drinking water must be obtained from an approved community water system or from a source tested by a certified laboratory and approved by the department of environmental quality. A copy of the test report must be submitted to the department. The water and wastewater plumbing systems must comply with article 62-03.1, plumbing installation standards. 75-03-21.1-22. Facility sewage disposal.

1.Facilities must be located in areas where public or private sewage disposal systems approved by the department of environmental quality are available. Approved public sewage disposal systems must be used, where available.

2.Plans and specifications for proposed private sewage disposal systems or alteration to such systems must be approved by the department of environmental quality prior to the construction, maintenance, and operation of such systems.

3.Septic tanks or other nonmunicipal sewage disposal systems must comply with chapter 62-03.1-03, private sewage disposal systems. 75-03-21.1-23. Emergency plans.

An agency shall have written plans and procedures, that are clearly communicated to and periodically reviewed with employees and residents for meeting emergencies, including fire, serious illness, severe weather, and missing residents. Applicable requirements of state law and regulations by the state fire marshal and applicable licensing authorities must be met. 75-03-21.1-24. Insurance and bond requirements.

An agency shall secure and maintain adequate insurance and bonds appropriate for the size of the programs including:

1.A blanket fidelity bond equal to not less than ten percent of the total operating costs of the program;

2.Property insurance covering all risks at replacement costs and costs of extra expense for loss of use;

3.Liability insurance covering bodily injury, property damage, personal injury, professional liability, and umbrella liability as applicable; and

4.Automobile or vehicle insurance covering property damage, comprehensive, collision, uninsured motorist, bodily injury, and no-fault on all vehicles operated by the agency or the agency's employees in which residents may be a passenger. 75-03-21.1-25. Variance.

Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance to an agency from subsection 1 of section 75-03-21.1-14 and subsections 2 and 3 of section 75-03-21.1-16, except no variance may permit or authorize a danger to the health or safety of a resident. 75-03-21.1-26. Applicant's buildings.

Applicants occupying buildings, whether owned or leased, shall provide the department with the following:

1.The written report of an authorized fire inspector, following an initial or subsequent annual inspection of a building, which states:

a.Rated occupancy and approval of the building for occupancy; or

b.Existing hazards and recommendations for correction which, if followed, would result in approval of the building for occupancy;

2.A written statement prepared by the appropriate county or municipal official having jurisdiction that the premises are in compliance with local zoning laws and ordinances; and

3.For existing buildings, floor plans drawn to scale showing the use of each room or area and a site plan showing the source of utilities and waste disposal; or

4.Plans and specifications of buildings and site plans for facilities proposed for use but not yet constructed, showing the proposed use of each room or area and the source of utilities and waste disposal. 75-03-21.1-27. Safety codes.

1.Applicants shall meet the applicable life safety standards established by the local governing municipality's ordinances. If the local governing municipality has no ordinances establishing life safety standards, the residential service facilities shall meet, as determined by the department, the one-family and two-family dwellings chapter of the Life Safety Code of the national fire protection association, 2000 edition.

2.Upon written application, and good cause shown to the satisfaction of the department, the department may grant a variance from any specific requirement of the Life Safety Code, upon terms the department may prescribe, except no variance may permit or authorize a danger to the health or safety of the residents of the facility or violate the provisions of North Dakota Century Code chapter 50-11. 75-03-21.1-28. Safety - Inspections.

1.Pets not confined in enclosures may not present a danger to a resident, visitors, or employees based upon the size, temperament, or obedience of the pet. Proof of pet vaccination is required and shall be submitted to the department.

2.The facility must be located where a community or rural fire department is available.

3.Interior doors with a locking mechanism must be provided with a means to unlock the door from either side.

4.The heating and electrical system must be inspected for operability and safety at the time of the initial license application and upon relicensing.

5.Food preparation areas, equipment, and food storage areas must be clean, free of offensive odors, and in sound working condition.

6.The department requires that the facility be inspected by a local fire inspector or the state fire marshal at the time of initial license application and periodically thereafter if the department suspects that the facility is not fire safe or when structural changes are made to the facility.

7.Deficiencies noted during an inspection must be corrected within sixty days after the issuance of the inspection report.

8.Any fees for the inspections required by the department or costs associated with correcting deficiencies noted during an inspection must be the responsibility of the applicant or agency. 75-03-21.1-29. Direct service provider employee qualifications.

1.The direct service provider employee must:

a.Be eighteen years of age or older;

b.Possess the physical health necessary to provide care;

c.Be literate and capable of understanding instructions and communicating in the English language;

d.Be in good physical health, emotionally, and functionally stable, and not abusing drugs or alcohol;

e.Successfully complete criminal background check requirements as specified in North Dakota Century Code sections 50-11-02.4 and 50-11-06.8; and

f.Complete department-approved training on the administration of routine medications, traumatic brain injury, and dementia.

2.In addition to the requirements of subsection 1, the direct service provider employee shall:

a.Provide evidence of competence in the generally accepted:

(1)Procedure for infection control and proper handwashing methods;

(2)Procedure for handling and disposing of body fluids;

(3)Procedure for tub, shower, and bed bathing techniques;

(4)Procedure for hair care techniques, bed and sink shampoo, and shaving;

(5)Procedure for oral hygiene techniques of brushing teeth and cleaning dentures;

(6)Procedure for caring for an incontinent resident;

(7)Procedure for feeding or assisting a resident with eating;

(8)Procedure for basic meal planning and preparation;

(9)Procedure for assisting a resident with the self-administration of medications;

(10)Procedures and techniques, which include dusting, vacuuming, sweeping, floor care, garbage removal, changing linens, and other similar tasks, for maintaining a kitchen, bathroom, and other rooms used by residents in a clean and safe condition;

(11)Procedures in laundry techniques, which include mending, washing, drying, folding, putting away, ironing, and related work;

(12)Procedure for assisting a resident with bill paying and balancing a check book;

(13)Procedure for dressing and undressing a resident;

(14)Procedure for assisting with toileting;

(15)Procedure for routine eye care;

(16)Procedure for proper care of fingernails;

(17)Procedure for caring for skin;

(18)Procedure for turning and positioning a resident in bed;

(19)Procedure for transfer using a belt, standard sit, bed to wheelchair;

(20)Procedure for assisting a resident with ambulation; and (21)Procedure for making beds; or

b.Meet developmental disability competency standards for facilities in which the responsible direct service provider employee is employed by a licensed provider in accordance with chapter 75-04-01 and North Dakota Century Code chapter 25-16, and services are provided according to chapter 75-04-01.

3.Direct service provider employees shall undergo a medical examination, psychological evaluation, or substance abuse evaluation when requested by the department or human service zone when there is reason to believe that such an examination or evaluation is reasonably necessary. 75-03-21.1-30. Verifications and demonstration of competence.

1.A physician, registered nurse, occupational therapist, physical therapist, or other individual with a professional degree in specialized areas of care shall verify in writing, on forms furnished by the department, that a direct service provider employee is competent to perform each procedure specified in subsection 2 of section 75-03-21.1-29. Verification that a direct service provider employee is competent to perform a procedure is evidence of competence with respect to that procedure.

2.Competence may be demonstrated in the following ways:

a.A demonstration of the procedure being performed;

b.A detailed verbal explanation of the procedure; or

c.A detailed written explanation of the procedure. 75-03-21.1-31. General practices.

The provider:

1.Shall permit a representative of the department, human service zone, or other individual or organization serving a resident entry into the facility without prior notice;

2.Shall provide information about the residents to the department, human service zone, or other individual or organization serving a resident with reasonable promptness;

3.Shall report illness, hospitalization, or unusual behavior of a resident to the individual or organization serving the resident, and to the resident's legal representative, whichever is appropriate;

4.Shall assure information related to the resident is kept confidential, except as may be necessary in the planning or provision of care or medical treatment, as related to an investigation or license review under this chapter, required or permitted by law, or as authorized by the resident;

5.May not practice, condone, facilitate, or collaborate with any form of illegal discrimination on the basis of race, color, sex, age, religion, national origin, marital status, political belief, or mental or physical disability;

6.Shall accept direction, advice, and suggestions concerning the care of residents from the department, human service zone, or other individual or organization serving a resident;

7.Shall assure residents receiving care are not subjected to abuse, sexual abuse, neglect, or financial exploitation by the provider, employees, or volunteers;

8.Shall coordinate and facilitate the release of a report of any examination or evaluation, required under subsection 3 of section 75-03-21.1-29, to the department or human service zone;

9.Immediately shall report changes in the identity or number of individuals living in the facility to the department;

10.Immediately shall report an inability to provide care to the resident to the department;

11.Shall allow a representative of the department, or human service zone, to enter the premises, examine the facility, and interview the residents, provider, and employees in order to evaluate compliance with this chapter and North Dakota Century Code chapter 50-11;

12.Shall cooperate with the department or human service zone in inspections, complaint investigations, planning for the care of a resident, application procedures, and other necessary activities, and allow access of the department, human service zone, ombudsman, or other authorized individuals to the facility and its residents;

13.May not retaliate against any resident who has filed a complaint with the department or human service zone by taking away rights or privileges; threatening to take away rights or privileges; or by abusing or threatening to abuse a resident in any manner;

14.May not use a transfer of ownership of a resident's possessions or property as payments;

15.May not purchase property or possessions from a resident without providing documented proof to the department that the item or property was purchased at fair market value;

16.May not accept or solicit personal property or a purchased item with a fair market value of at least twenty-five dollars that the resident, resident's family, or both, choose to give to the provider or employees;

17.May not accept or solicit personal property or a purchased item with a fair market value of twenty-five dollars or less that the resident, resident's family, or both, chose to give to the licensed provider or employees exceeding more than two times in a calendar year;

18.For the purpose of this section, fair market value means:

a.In the case of a liquid asset that is not subject to reasonable dispute concerning its value, such as cash, bank deposits, stocks, and fungible commodities, one hundred percent of apparent fair market value;

b.In the case of real or personal property that is subject to reasonable dispute concerning its value:

(1)If conveyed in an arm's-length transaction to someone not in a confidential relationship with the resident or anyone acting on the resident's behalf, seventy-five percent of estimated fair market value; or (2)If conveyed to someone in a confidential relationship with the resident or anyone acting on the resident's behalf, one hundred percent of estimated fair market value; and

c.In the case of income, one hundred percent of apparent fair market value;

19.Shall notify the department if the provider holds, or will be accepting, appointment as a power of attorney agent for a resident. The department may revoke the license of a provider who holds, or will be accepting, appointment as a power of attorney agent for a resident if the department considers it to be a conflict of interest or a result of undue influence;

20.Shall notify the resident or the resident's legal representative of their right to manage the resident's finances. The provider shall notify the department in writing if the resident, or the resident's legal representative, requests the provider to act as representative payee;

21.Shall provide the department, upon request, an accounting of the resident's expenses, including receipts, for all deposits and expenditures if the provider is assisting a resident with management of personal funds; and

22.Shall provide twenty-four-hour care and supervision of all residents residing in the facility, unless otherwise documented and justified in the person-centered service plan or service. 75-03-21.1-32. Recording and reporting critical incidents.

An agency shall implement policies and procedures to assure that critical incidents including alleged abuse, neglect, and exploitation and use of restraint are immediately reported as required by the department. 75-03-21.1-33. Entry and inspection.

1.The applicant shall affirm the right of the department or human service zone to enter any of the applicant's buildings or facilities and access to its records to determine the extent to which the applicant is in compliance with the rules of the department, to facilitate verification of the information submitted with an application for licensure, and to investigate complaints.

2.The agency shall authorize the department or human service zone, entry to its facilities and access to its records if the agency declares bankruptcy, transfers ownership, ceases operations, evicts residents of its facilities, or the contract with the department is terminated by either of the parties. The department's entry is for the purpose of facilitating the orderly transfer of residents to an alternative service or the maintenance of appropriate service until an orderly transfer can be made. 75-03-21.1-34. Access to records.

The applicant shall affirm the right of duly authorized representatives of the department to inspect the records of the applicant, to facilitate verification of the information submitted with an application for licensure, and to determine the extent to which the applicant is in compliance with the rules of the department and North Dakota Century Code chapter 50-11. 75-03-21.1-35. Denial of access to facilities and records.

Any applicant or agency that denies the department or human service zone access to a facility or its records, must have its license revoked or its application denied. 75-03-21.1-36. Criminal conviction - Effect on licensure and operation of a facility.

1.An individual employed by, or providing care in, a facility and any adult living in the facility, but not being provided care in the facility, may not have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or North Dakota Century Code

section 12.1-17-01, simple assault, if a class C felony under subdivision a of subsection 2 of that section; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing peace officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-06.1, sexual exploitation by therapist; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery; or 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult; 12.1-31-07.1, exploitation of an eligible adult; 14-09-22, abuse of a child; 14-09-22.1, neglect of a child; subsection 1 of section 26.1-02.1-02.1, fraudulent insurance acts; or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the enumerated North Dakota statutes; or

b.An offense, other than a direct-bearing offense identified in subsection 1, if the department determines the individual has not been sufficiently rehabilitated.

(1)The department may not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment without subsequent charge or conviction has elapsed, unless sufficient evidence is provided of rehabilitation.

(2)An individual's completion of a period of three years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

2.In the case of an offense described in North Dakota Century Code section 12.1-17-01, simple assault, if a felony; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence, if a misdemeanor; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-18-03, unlawful imprisonment; 12.1-20-05, corruption or solicitation of minors, if a misdemeanor; 12.1-20-07, sexual assault, if a misdemeanor; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent convictions.

3.The department has determined the offenses enumerated in subdivision a of subsection 1 have a direct bearing on the individual's ability to be employed by, providing care in, a facility, or be an adult living in the facility, but not being provided care in the facility.

4.A provider shall submit an application and payment for a fingerprint-based criminal history record check at the time of application and on any individual employed by, or providing care in, the facility and any adult living in the facility, but not being provided care in the facility. The department may excuse a person from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If a person is excused from providing fingerprints, the department may conduct a nationwide name-based criminal

history record investigation in any state in which the person lived during the eleven years preceding the signed authorization for the background check. 75-03-21.1-37. Disclosure of a criminal record.

1.Each member of the governing body of the applicant or agency, the chief executive officer, and any employees, volunteers, or agents who receive and disburse funds on behalf of the governing body, shall disclose to the department if they have been found guilty of, pled guilty to, or pled no contest to a criminal offense.

2.The applicant or agency shall disclose to the department the names, type of offenses, dates of having been found guilty of, pled guilty to, or pled no contest to a criminal offense, and position and duties within the applicant's or agency's organization of employees and volunteers with a criminal record. 75-03-21.1-38. Meals and nutrition.

1.Three meals must be served daily.

2.Residents must be allowed access to food at any time and meal choices must be provided.

Any restrictions on access to or choice of food because of health and safety concerns must be documented and justified in the person-centered service plan or service and rental agreement.

3.There may be no more than fourteen hours between the conclusion of the evening meal and service of breakfast.

4.Each meal must be nutritious and well-balanced in accordance with the recommended dietary allowances of the food and nutrition board of the national research council, national academy of sciences.

5.Adequate amounts of food must be available at all meals.

6.The special dietary needs of the residents must be considered in all menu planning, food selection, and meal preparation.

7.Consideration must be given to residents' cultural, ethnic, and religious backgrounds in food preparation.

8.Meals must be regularly and routinely prepared in the facility where the residents live.

9.Charges imposed for resident meals provided by individuals or businesses other than the provider must be paid by the provider unless the provider made a meal available at the facility. 75-03-21.1-39. Lease or rental agreement.

The provider shall furnish each prospective resident, or the resident's legal representative, and the department with a signed copy of the provider's lease or rental agreement prior to the resident entering the facility. A copy signed by the resident or legal representative and the provider must be kept in the resident's record.

1.The lease or rental agreement must include all of the following information:

a.Landlord tenant eviction and appeals process;

b.Any relevant expectations with which the resident is expected to comply, including restrictions on the use of alcohol or tobacco in the facility; and

c.Procedure used for billing, collecting, and reimbursing the charge for board, room, and care.

2.All modifications made after the date the initial lease or rental agreement was signed must be in writing and signed by the resident or the resident's legal representative and the provider.

The provider shall furnish the resident, or the resident's legal representative, and the department with a signed copy of the modifications. A copy of the modifications must be kept in the resident's records. 75-03-21.1-40. Applicant guarantees and assurances.

1.Applicants shall submit, in a manner prescribed by the department, evidence that policies and procedures approved by the governing body are written and implemented in a manner that:

a.Guarantees each resident a person-centered service plan;

b.Guarantees the resident the right to receive authorized services and supports included in his or her person-centered service plan in a timely manner and the opportunity to fully participate in the benefits of community living, vote, worship, interact socially, freely communicate and receive guests, own and use personal property, and unrestricted access to legal counsel;

c.Guarantees such restrictions as may be imposed upon a resident relate solely to capability and are imposed pursuant to the provisions of a person-centered service plan;

d.Guarantees the confidentiality of all resident records;

e.Guarantees the applicable legal documents establishing guardianship and of durable power of attorney are kept in the resident record and provided to the case manager;

f.Guarantees the resident the right to choose and refuse services, who provides the services, the right of the resident and the resident's representatives to be informed of the possible consequences of the refusal, alternative services available, and specifically, the extent to which such refusal may harm the resident or others;

g.Assures the resident safe and sanitary living and working arrangements and provides for emergencies or disasters and first-aid training for staff;

h.Assures adaptive equipment, where appropriate for personal hygiene, self-care, mobility, or communication, is provided in the service for use by residents with disabilities consistent with the person-centered service plan;

i.Assures all employees demonstrate basic professional competencies as required by their job descriptions and complies with all required trainings, credentialing, and professional development activities;

j.Assures annual evaluations that measure program outcomes against previously stated goals and objectives are conducted;

k.Assures all vehicles transporting residents are subject to routine inspection and maintenance, licensed by the department of transportation, equipped with a first-aid kit and a fire extinguisher, carry no more individuals than the manufacturer's recommended maximum capacity, handicapped accessible, where appropriate, and are driven by individuals who hold a valid state driver's license;

l.Guarantees a grievance procedure, reviewed and approved by the department, affords the resident or the resident's authorized representative or advocate, the right to a hearing of any complaint; and guarantees that records of such hearings are maintained and must note therein the complaint, the names of the individuals complaining, and the resolution of the grievance;

m.Assures policies and procedures regarding admission to the agency's services and termination of services are in conformance with the rules of the department;

n.Assures all documentation, data reporting requirements, rules, regulations, and policies are conducted as required by the department;

o.Assures all applicable municipal, federal, and state laws and regulations are being abided by;

p.Assures the residents right to use medical marijuana if the resident is a qualified patient who has the required documentation necessary to legally obtain medical marijuana. The facility is not required to administer or store medical marijuana and can limit where a resident uses medical marijuana to a certain part of the facility; and

q.Assures the facility complies with all requirements of title 28, Code of Federal Regulations, part 35, app. B.

2.Accredited applicants shall submit evidence, satisfactory to the department, of accreditation.

3.The department shall determine the degree to which the unaccredited applicant's policies and procedures are in compliance with the standards. 75-03-21.1-41. Termination of care.

1.The provider shall terminate care of a resident when care is no longer required or when the provider is no longer qualified to provide the care needed by the resident.

2.The provider who anticipates the termination of care to a resident shall provide the resident, or the resident's legal representative, and the department with at least thirty-days written notice of the termination. The provider shall assist with the transfer of the resident to a setting more appropriate to the resident's needs. The provider also shall comply with the provider's lease or rental agreement and landlord-tenant eviction laws.

3.If an emergency placement outside of the facility is needed or a resident is hospitalized and the resident's condition has changed to the extent that the provider is no longer able to provide the resident's care, consideration will be given to waiving the thirty-day written notice required under subsection 2 provided keeping the resident or returning the resident to the facility would negatively impact the health and well-being of the resident, or other residents living in the facility. The department must be contacted by the provider prior to receiving

authority to waive the thirty-day requirement. 75-03-21.1-42. Permitting operation after notice of revocation.

The department may revoke or deny a license for any of the reasons permitted by law, or any combination of reasons. A revocation or denial based on one or more reasons must be affirmed, on appeal, if the evidence supports any reason given for revocation or denial. An agency that receives a notice of revocation, and that makes a timely appeal of that notice, may continue to operate the facility pending a final administrative appeal decision, unless the license expires. If the revocation is based on reasons which present an imminent danger to the health, welfare, or safety of residents, an agency may not provide care to a resident pending a final administrative appeal decision. 75-03-21.1-43. Distribution of notice of denial or revocation.

A copy of a notice of revocation or a notice of denial of a license application may be provided to any resident, any individual who resides in a place under circumstances which may require that place to be licensed as a facility for care of that individual, to any legal representative, agency, or individual making placement of that resident or individual. 75-03-21.1-44. Reapplication after denial or revocation.

An agency or applicant whose license has been revoked or whose license application has been denied may not reapply, without the written permission of the department, until a final determination has been made with respect to the denial or revocation. 75-03-21.1-45. Time period for correcting deficiencies.

The following time periods are established for correction of deficiencies identified in a correction order:

1.For a deficiency that requires an agency to provide written documentation of qualifications in providing foster care for adults, a period of up to thirty days must be allowed to correct the deficiency;

2.For a deficiency that requires an inspection for compliance with fire, safety, and sanitation, a period of up to thirty days must be allowed to correct the deficiency;

3.For a deficiency that requires obtaining and providing the results of a substance use evaluation, psychological evaluation, or a physical examination, a period of up to sixty days must be allowed to correct the deficiency;

4.For deficiencies that require building remodeling, renovation, or change, a period of up to sixty days must be allowed to correct the deficiency;

5.For all other deficiencies, a period of up to thirty days must be allowed to correct the deficiency;

6.All time periods must commence with the date the correction order is received by the agency; and

7.The department may grant extensions for a period of one-half the original allowable time to correct a deficiency upon demonstration by the agency that the need for an extension is created by circumstances beyond the control of the agency and that the agency has diligently pursued the correction of the deficiency. 75-03-21.1-46. Penalties.

An agency, if issued a notice of noncompliance with a correction order, must be assessed fiscal sanctions.

1.A violation of any of the following sections subjects the licensed provider to a fiscal sanction of twenty-five dollars per day--subsections 1 or 2 of section 75-03-21.1-13; subsections 2, 8, or 11 of section 75-03-21.1-16; subsections 3 or 4 of section 75-03-21.1-17; subsection 3 of

section 75-03-21.1-21; sections 75-03-21.1-22 or 75-03-21.1-27; subsections 3, 4, or 5 of

section 75-03-21.1-28; subsection 1 of section 75-03-21.1-29; subsection 4 of section 75-03-21.1-31; subsections 4 or 5 of section 75-03-21.1-38; or subsection 1 of section 75-03-21.1-41.

2.A violation of any of the following sections subjects the licensed provider to a fiscal sanction of fifteen dollars per day--subsections 1, 9, or 12 of section 75-03-21.1-16; subsections 6, 9, 10, 11, 12, 13, or 14 of section 75-03-21.1-31; or section 75-03-21.1-39.

3.A violation of any other provision of this chapter not noted in subsections 1 and 2 subjects the licensed provider to a fiscal sanction of five dollars per day. 75-03-21.1-47. Records.

The following records must be kept and maintained for each resident in the facility:

1.The resident's full name and birth date;

2.The name, address, and telephone number of the resident's legal representative when one exists and an emergency contact;

3.Names, addresses, and telephone numbers of individuals who can assume responsibility or consent to health care under North Dakota Century Code section 23-12-13 for the resident if the legal representative cannot be reached immediately in an emergency;

4.Applicable legal documents establishing guardianship, durable power of attorney, or health care directive for the resident;

5.An agency shall submit and retain all requisite documentation to demonstrate the right to receive payment for all services and supports and comply with all federal and state laws, regulations, and policies necessary to disclose the nature and extent of services provided and all information to support claims submitted by, or on behalf of, the agency;

6.A record of any matter required to be reported under section 75-03-21.1-32 and of any accident resulting in injury to a resident; and

7.An accounting of any real or personal property the resident or the resident's family gives, sells, or otherwise transfers to the provider. 75-03-21.1-48. Documentation and data reporting requirements.

1.An agency shall maintain program records, fiscal records, and supporting documentation, including:

a.Authorization from the department for each resident for whom service is billed;

b.Attendance sheets and other records documenting the days and times the residents received the billed services from the agency; and

c.Records of all bills submitted to the department for payment.

2.An agency shall report the results of designated quality and performance indicators, as requested by the department.

3.An agency shall retain a copy of the records required for forty-two months from the last date of the service unless an audit in process requires a longer retention.

4.The department maintains the right to withhold a payment for services or suspend or terminate Medicaid enrollment if the agency has failed to abide by terms of the Medicaid contract, federal and state laws, regulations, and policies regarding documentation or data reporting. 75-03-21.1-49. Monitoring.

The department shall conduct facility visits at the time of licensure, licensure renewal, or upon evidence of noncompliance. Monitoring visits at the time of licensure renewal or upon evidence of noncompliance must include home and community-based setting experience interviews with all residents. 75-03-21.1-50. Developmental disability licensure.

Agencies and facilities licensed according to chapter 75-04-01 and North Dakota Century Code

chapter 25-16 that provide residential habilitation services satisfy the requirements of section 75-03-21.1-11; sections 75-03-21.1-13 through 75-03-21.1-24; and sections 75-03-21.1-26, 75-03-21.1-27, 75-03-21.1-29, and 75-03-21.1-30.

Chapter 75-03-22 Transitional Living [Repealed]

N.D. Admin. Code 75-03-22 Transitional Living [Repealed]

CHAPTER 75-03-22

TRANSITIONAL LIVING [Repealed effective November 19, 2003]

Chapter 75-03-23 Provision of Home and Community-Based Services under the Service Payments for Elderly and Disabled Program and the Medicaid Waiver for the Aged and Disabled Program

N.D. Admin. Code 75-03-23-01 Definitions

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 50-06.2. In addition, as used in this chapter:

1."Activities of daily living" means the daily self-care personal activities that include bathing, dressing or undressing, eating or feeding, toileting, continence, transferring in and out of bed or chair or on and off the toilet, and mobility inside the home.

2."Adaptive assessment" means an evaluation to identify adaptive devices, equipment, or modifications that enhance the independence and functional capabilities of an individual who may otherwise be unable to remain in the individual's home.

3."Aged" means sixty-five years of age or older.

4."Congenital disability" means a disability that exists at birth or shortly thereafter, and is not attributable to a diagnosis of either mental retardation or a closely related condition of mental retardation.

5."Department" means the North Dakota department of health and human services.

6."Designee" means a person that enrolls as a qualified service provider to provide case management services for the Medicaid waiver program.

7."Disability due to trauma" means a disability that results from an injury or assault to the body by an external force.

8."Disability that is acquired" means a disability that results from an assault that occurs internally within the body.

9."Disabled" means under age sixty-five with a congenital disability, a disability due to trauma, or a disability that is acquired.

10."Eligible individual" means an individual who meets the eligibility requirements and is receiving services reimbursed under North Dakota Century Code chapter 50-06.2 or this chapter.

11."Functional assessment" means an instrument used to record basic demographic and medical information about an individual, including age, date of birth, spoken language, marital status, individuals residing with, emergency contacts, medical resources, health care coverage, and source and reason for referral; and to secure measurable information regarding:

a.Physical health;

b.Cognitive and emotional functioning;

c.Activities of daily living;

d.Instrumental activities of daily living;

e.Informal supports;

f.Need for twenty-four-hour supervision;

g.Social participation;

h.Physical environment;

i.Financial resources;

j.Adaptive equipment;

k.Environmental modification; and

l.Other information about the individual's condition not recorded elsewhere.

12."Functional impairment" means the inability to perform, either by oneself or with adaptive aids or with human help, specific activities of daily living or instrumental activities of daily living.

13."Home and community-based services" means the array of services under the SPED program and Medicaid waiver defined in the comprehensive human service plan and the other services the department determines to be essential and appropriate to sustain individuals in their homes and in their communities, and to delay or prevent institutional care.

14."Institution" means a hospital, swing bed facility, nursing facility, or other provider-operated living arrangement receiving prior approval from the department.

15."Instrumental activities of daily living" means activities requiring cognitive ability or physical ability, or both. Instrumental activities of daily living include preparing meals, shopping, managing money, housework, laundry, taking medicine, transportation, using the telephone, and mobility outside the home.

16."Medicaid waiver program" means the federal Medicaid waiver for the aged and disabled program, as defined in subpart G of 42 CFR 441, under which the department is authorized to provide specific home and community-based services to individuals sixty-five years and older, and individuals who are disabled who are at risk of being institutionalized.

17."Natural supports" means an informal, unpaid caregiver that provides care to an applicant or eligible individual.

18."Pattern of absenteeism" means an agency or individual provider who has been absent three or more times without notifying the eligible individual or their legal decisionmaker or rescheduling the appointment.

19."Sanction" means an action taken by the department against a qualified service provider for noncompliance with a federal or state law, rule, or policy, or with the provisions of the Medicaid provider agreement.

20."Service fee" means the amount a SPED-eligible individual is required to pay toward the cost of the eligible individual's SPED services.

21."Service payment" means the payment issued by the department to a qualified service provider for the provision of authorized home and community-based services to eligible individuals sixty-five years and older, and individuals who are disabled.

22."SPED program" means the service payments for elderly and disabled program, a state program which authorizes the department to reimburse qualified service providers for the provision of covered home and community-based services to eligible individuals sixty-five years and older, and individuals who are disabled.

23."SPED program pool" means the list maintained by the department which contains the names of eligible individuals for whom SPED program funding is available when the eligible individuals' names are transferred from the SPED program pool to SPED program active status.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; October 1, 2014; January 1, 2018; January 1, 2020; July 1, 2020; January 1, 2022; January 1, 2024.

N.D. Admin. Code 75-03-23-02 Eligibility criteria

1.An applicant must be entered in the SPED program pool before service payments may be authorized. The department shall allow entry into the SPED program pool to occur:

a.When the department's designee submits a form in the manner prescribed by the department; or

b.When the applicant meets the special circumstances provided in subsection 4, 5, or 6 of

section 75-03-23-03.

2.An applicant's resources may not exceed fifty thousand dollars for the applicant to be eligible for services under the SPED program. For purposes of this section, resources are cash or similar assets, except recovery rebates authorized by section 2201 of the federal Coronavirus Aid, Relief, and Economic Security Act of 2020 [Pub. L. 116-136], that can be readily converted to cash and include residences owned by the applicant other than the applicant's primary residence.

3.An applicant eighteen years of age or older is eligible for the SPED program pool if:

a.The applicant has a functional impairment as specified by the department in policies and procedures to indicate applicant eligibility;

b.The applicant's functional impairment has lasted, or can be expected to last, three months or longer;

c.The applicant's functional impairment is not the result of a mental illness or a condition of mental retardation, or a closely related condition;

d.The applicant is living in North Dakota in a housing arrangement commonly considered a private residence and not in an institution;

e.The applicant is not eligible for services under the Medicaid waiver program or the Medicaid state plan option of personal care services unless the applicant's estimated monthly benefits under this chapter, excluding the cost of case management, are between the current medically needy income level for a household of one plus the disregard established in North Dakota Century Code section 50-24.1-02.3, and the lowest level of the fee schedule for services under North Dakota Century Code chapter 50-06.2, or unless the individual is receiving a service that is not available under Medicaid or the Medicaid waiver;

f.The applicant would receive one or more of the covered services under department policies and procedures for the specific service;

g.The applicant agrees to the plan of care developed for the provision of home and community-based services;

h.The applicant is not responsible for one hundred percent of the cost of the covered service provided, under the SPED program sliding fee scales based on family size and income; and

i.The applicant has not made a disqualifying transfer of assets.

4.An applicant under eighteen years of age is eligible for the SPED program pool if the applicant is determined to need nursing facility level of care as provided for in section 75-02-02-09 and the applicant's care need is not the result of a mental illness or the condition of mental retardation, or a closely related condition.

5.An applicant under eighteen years of age:

a.Must meet the eligibility requirements of subsections 3 and 4.

b.Is not eligible to receive personal care services under this chapter.

c.Is not eligible for service payments unless:

(1)Care provided to the applicant by the applicant's parent or the applicant's spouse is provided under family home care.

(2)The applicant is unable to regularly attend school or is severely limited in the amount of time the applicant is able to attend school.

6.An applicant must be capable of directing self-care or must have a legally responsible party to act on the applicant's behalf.

7.An applicant is not eligible for service payments if the care provided is court-ordered.

8.An applicant is eligible to receive covered services reimbursed under North Dakota Century Code chapter 50-06.2 or this chapter even if the applicant has natural supports.

January 1, 2018; May 19, 2020; January 1, 2022.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; October 1, 2014; April 1, 2016;
• Law Implemented: NDCC 50-06.2-01(3), 50-06.2-03(5), 50-06.2-04(3)

N.D. Admin. Code 75-03-23-03 Eligibility determination - Authorization of services

1.An individual transferred to SPED program active status from the SPED program pool shall continue to meet the eligibility criteria of section 75-03-23-02 in order to remain eligible for services funded under the SPED program.

2.The department is responsible for:

a.Verifying that the individual transferred to active status continues to meet the eligibility criteria for placement into the SPED program pool;

b.Developing a care plan;

c.Authorizing covered services in accordance with department policies and procedures;

d.Verifying the financial eligibility criteria in relation to income, assets, and deductions; and

e.Assuring that other potential federal and third-party funding sources for similar services are sought first.

3.A recipient of services under the Medicaid waiver program, who becomes ineligible for the Medicaid waiver program because evaluation shows that the recipient no longer requires a nursing facility level of care, does not have to go through the SPED program pool to receive services through the SPED program provided the individual meets all eligibility criteria in

section 75-03-23-02.

4.A recipient of services under the Medicaid personal care service option, who becomes ineligible for services under the Medicaid personal care service option, does not have to go through the SPED program pool to receive services through the SPED program provided the individual meets all eligibility criteria in section 75-03-23-02.

5.A recipient of services under the expanded service payments for elderly and disabled program, who becomes ineligible for services under the expanded service payments for elderly and disabled program, does not have to go through the SPED program pool to receive services through the SPED program provided the individual meets all eligibility criteria in

section 75-03-23-02.

6.An individual who is discharged from an inpatient hospital stay, skilled nursing facility, swing-bed facility, long-term care facility, or basic care facility or who has been off of the SPED program for fewer than ninety days, does not have to go through the SPED program pool to receive services through the SPED program provided the individual meets all eligibility criteria in section 75-03-23-02.

January 1, 2024.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; July 1, 2020; January 1, 2022;

N.D. Admin. Code 75-03-23-04 Eligibility criteria for Medicaid waiver program

An applicant is eligible to receive services funded by the Medicaid waiver program if:

1.The applicant is sixty-five years and older; or

2.The applicant is under age sixty-five with a congenital disability, a disability due to trauma, or a disability that is acquired and:

a.The disability must not be the result of mental illness as the primary diagnosis or the result of mental retardation, or a closely related condition; and

b.The disability must meet the social security administration's definition of disability or the individual must be determined physically disabled by the state review team under section 75-02-02.1-14.

3.The applicant is receiving Medicaid;

4.The applicant is evaluated to be in need of a nursing facility level of care;

5.The applicant's needs may be met by one or more of the covered services, as determined by an assessment conducted in accordance with department policies and procedures;

6.The applicant's service provider is not the applicant's spouse, except when allowed by an approved waiver, or, if the applicant is less than eighteen years old, the applicant's service provider is not the applicant's parent, stepparent, or a person legally responsible for the care of the individual unless allowed by an approved waiver;

7.The applicant agrees to accept services provided under the Medicaid waiver program instead of nursing home care; and

8.The applicant agrees to the plan of care developed for the provision of home and community-based services.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; January 1, 2024.
• Law Implemented: NDCC 50-06.2-01(3), 50-06.2-03(5), 50-06.2-03(6)

N.D. Admin. Code 75-03-23-05 Services covered under the SPED program - Programmatic criteria

The department may not include room and board costs in the SPED service payment. The following categories of services are covered under the SPED program and may be provided to an eligible individual:

1.The department may provide adult day care services to an eligible individual:

a.Who requires assistance in activities of daily living or instrumental activities of daily living;

b.Who is able to participate in group activities; and

c.Who, if the eligible individual does not live alone, has a primary caregiver who will benefit from the temporary relief of care giving.

2.The department may provide adult foster care using a licensed adult foster care provider to an eligible individual eighteen years of age or older:

a.Who resides in a licensed adult foster care home;

b.Who requires care or supervision;

c.Who would benefit from a family or shared living environment; and

d.Whose required care does not exceed the capability of the foster care provider.

3.The department may provide chore services to an eligible individual for one-time, intermittent, or occasional activities which would enable the eligible individual to remain in the home.

Activities such as heavy housework and periodic cleaning, professional extermination, snow removal, and emergency response systems may be provided. Eligible individuals receiving emergency response services must be cognitively and physically capable of activating the emergency response system. The activity must be the responsibility of the eligible individual and not the responsibility of the landlord.

4.The department may provide environmental modification to an eligible individual:

a.Who owns or rents the home to be modified. If the home is rented the property owner shall approve the modification consistent with the property owner's obligations pursuant to section 804(f)(3)(A) of the Fair Housing Act [42 U.S.C. 3604(f)(3)(A)] before the installation of the environmental modification; and

b.When the modification will enable the eligible individual to complete the eligible individual's own personal care or to receive care and allow the eligible individual to safely stay in the home. 5.a.The department may provide extended personal care services to an eligible individual who:

(1)Requires skilled or nursing care that requires training by a nurse licensed under North Dakota Century Code chapter 43-12.1; and (2)Has a cognitive or physical impairment that prevents the eligible individual from completing the required activity.

b.Extended personal care services do not include assistance with activities of daily living or instrumental activities of daily living.

6.The department may provide family home care services to an eligible individual who:

a.Lives in the same residence as the care provider on a twenty-four-hour basis;

b.Agrees to the provision of services by the care provider; and

c.Is the spouse of the care provider or the current or former spouse of one of the following relatives of the eligible individual: parent, grandparent, adult child, adult sibling, adult grandchild, adult niece, or adult nephew.

7.The department may provide home and community-based services case management services to an eligible individual who needs a functional assessment and the coordination of cost-effective delivery issues. A social worker licensed under North Dakota Century Code

chapter 43-41 or a registered nurse licensed under North Dakota Century Code chapter 43-12.1 may provide the case management services.

8.The department may provide home-delivered meals to an eligible individual who lives alone and is unable to prepare an adequate meal for themselves, or who lives with an individual who is unable or not available to prepare an adequate meal for the eligible individual.

9.The department may provide homemaker services to an eligible individual who needs assistance with environmental maintenance activities including light housekeeping, laundry, meal planning and preparation, and shopping on an intermittent or occasional basis. The department may pay a provider for laundry, shopping, meal preparation, money management, or communication, if the activity benefits the eligible individual. The department may pay a provider for housekeeping activities involving the eligible individual's personal private space and if the eligible individual is living with an adult, the eligible individual's share of common living space. The homemaker services funding cap applies to a household and may not be exceeded regardless of the number of eligible individuals residing in that household.

10.The department may provide nonmedical transportation services to eligible individuals who are unable to provide their own transportation and need transportation to access essential community services such as grocery stores or pharmacies. "Nonmedical transportation services" are transportation services not related to the receipt of medical care.

11.The department may provide personal care services to an eligible individual who needs help or supervision with personal care activities if:

a.The eligible individual is at least eighteen years of age; and

b.The services are provided in the eligible individual's home or in a provider's home if the provider meets the definition of a relative as defined in subdivision c of subsection 6 of

section 75-03-23-05. 12.a.The department may provide respite care services to an eligible individual in the eligible individual's home, in the provider's home, in a nursing home, in a swing-bed facility, in a basic care facility, or in a hospital, if:

(1)The eligible individual has a full-time primary caregiver;

(2)The eligible individual needs a qualified caregiver or it would be inappropriate to use an unqualified caregiver in the absence of the primary caregiver;

(3)The primary caregiver's need for the relief is intermittent or occasional; and (4)The primary caregiver's need for relief is not due to the primary caregiver's employment or attendance at school as a part-time or full-time student.

b.An eligible individual who is a resident of an adult foster care may choose a respite provider and is not required to use a relative of the adult foster care provider as the eligible individual's respite provider.

13.The department may provide companionship services up to ten hours per month to eligible individuals who live alone and could benefit from services to help reduce social isolation.

14.The department may provide other services as the department determines appropriate.

January 1, 2020; January 1, 2022; January 1, 2024; January 1, 2025.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; October 1, 2014; April 1, 2016;

N.D. Admin. Code 75-03-23-06 Services covered under the Medicaid waiver program - Programmatic criteria

The department may not include room and board costs in the Medicaid waiver service payment.

The following services are covered under the Medicaid waiver program and may be provided to an eligible individual:

1.The department may provide adult day care services to an eligible individual:

a.Who requires assistance in activities of daily living or instrumental activities of daily living;

b.Who is able to participate in group activities; and

c.If the eligible individual does not live alone, whose primary caregiver will benefit from the temporary relief of care giving.

2.The department may provide adult foster care, using a licensed adult foster care provider, to an eligible individual who resides in a licensed adult foster care home who:

a.Is eighteen years of age or older;

b.Requires care or supervision;

c.Would benefit from a family or shared living environment; and

d.Requires care that does not exceed the capability of the foster care provider.

3.The department may provide residential care to an eligible individual who:

a.Has chronic moderate to severe memory loss; or

b.Has a significant emotional, behavioral, or cognitive impairment.

4.The department may provide chore services to an eligible individual for one-time, intermittent, or occasional activities that would enable the eligible individual to remain in the home, such as heavy housework and periodic cleaning, professional extermination, and snow removal. The activity must be the responsibility of the eligible individual and not the responsibility of the landlord.

5.The department may provide an emergency response system to an eligible individual who lives alone or with an adult who is incapacitated, or who lives with an individual whose routine absences from the home present a safety risk for the eligible individual, and the eligible individual is cognitively and physically capable of activating the emergency response system.

6.The department may provide environmental modification to an eligible individual, if the eligible individual owns or rents the home to be modified and if the modification will enable the eligible individual to complete the eligible individual's own personal care or to receive care and will allow the eligible individual to safely stay in the home for a period of time that is long enough to offset the cost of the modification. If the home is rented the property owner shall approve the modification consistent with the property owner's obligations pursuant to section 804(f)(3)

(A) of the Fair Housing Act [42 U.S.C. 3604(f)(3)(A)] before the installation of the environmental modification. 7.a.The department may provide family personal care to an eligible individual who:

(1)Lives in the same residence as the care provider on a twenty-four-hour basis;

(2)Agrees to the provision of services by the care provider; and (3)Is the legal spouse of the care provider or is a relative identified within the definition of "family home care" under subsection 4 of North Dakota Century Code section 50-06.2-02.

b.The department may not provide a family personal care payment for assistance with the:

(1)Activities of communication, community integration, laundry, meal preparation, money management, shopping, social appropriateness, or transportation unless the activity benefits the eligible individual; or (2)Activity of housework unless the activity is for the eligible individual's personal space or if the eligible individual is living with an adult, the eligible individual's share of common living space.

8.The department may provide home and community-based services case management services to an eligible individual who needs a comprehensive assessment or care coordination to ensure cost-effective delivery of services. A social worker licensed under North Dakota Century Code chapter 43-41, a registered nurse licensed under North Dakota Century Code

chapter 43-12.1, or another approved provider with substantially similar credentials as defined in the Medicaid waiver program may provide case management services under this subsection.

9.The department may provide home-delivered meals to an eligible individual who lives alone and is unable to prepare an adequate meal for themselves or who lives with an individual who is unable or not available to prepare an adequate meal.

10.The department may provide homemaker services to an eligible individual who needs assistance with environmental maintenance activities, including light housekeeping, laundry, meal planning and preparation, and shopping on an intermittent or occasional basis. The department may pay a provider for laundry, shopping, meal preparation, money management, or communication, if the activity benefits the eligible individual. The department may pay a provider for housekeeping activities involving the eligible individual's personal private space and if the eligible individual is living with an adult, the eligible individual's share of common living space. The homemaker service funding cap applies to a household and may not be exceeded regardless of the number of eligible individuals residing in that household. 11.a.The department may provide extended personal care services to an eligible individual who:

(1)Requires skilled or nursing care that requires training by a nurse licensed under North Dakota Century Code chapter 43-12.1; and (2)Has a cognitive or physical impairment that prevents the eligible individual from completing the required activity.

b.Extended personal care services do not include assistance with activities of daily living and instrumental activities of daily living.

12.The department may provide nonmedical transportation services to an eligible individual who is unable to provide their own transportation and who needs transportation to access essential community services such as grocery stores or pharmacies. "Nonmedical transportation services" are transportation services not related to the receipt of medical care.

13.The department may provide up to twenty-four hours per day of supervision to an eligible individual who has a cognitive or physical impairment that results in the eligible individual needing monitoring to assure the eligible individual's continued health and safety. The department may not approve supervision services to be provided by a provider who lives in the same home as the eligible individual. 14.a.The department may provide respite care services to an eligible individual in the eligible individual's home, in the provider's home, in a nursing home, in a swing-bed facility, in a basic care facility, or in a hospital, if:

(1)The eligible individual has a full-time primary caregiver;

(2)The eligible individual needs a qualified caregiver or it would be inappropriate to use an unqualified caregiver in the absence of the primary caregiver;

(3)The primary caregiver's need for the relief is intermittent or occasional; and (4)The primary caregiver's need for relief is not due to the primary caregiver's employment or attendance at school as a part-time or full-time student.

b.An eligible individual who is a resident of an adult foster care home may choose a respite provider and is not required to use a relative of the adult foster care provider as the eligible individual's respite provider.

15.The department may provide specialized equipment and supplies to an eligible individual, if:

a.The eligible individual's need for the items is based on an adaptive assessment;

b.The items directly benefit the eligible individual's ability to perform personal care or household activities;

c.The items will reduce the intensity or frequency of human assistance required to meet the eligible individual care needs;

d.The items are necessary to prevent the eligible individual's institutionalization;

e.The items are not available under the Medicaid state plan; and

f.The eligible individual is motivated to use the item.

16.The department may provide supported employment to an eligible individual who is unlikely to obtain competitive employment at or above the minimum wage; who, because of the eligible individual's disabilities, needs intensive ongoing support to perform in a work setting; and who has successfully completed the supported employment program available through the North Dakota vocational rehabilitation program.

17.The department may provide transitional living services to an eligible individual who needs supervision, training, or assistance with self-care, communication skills, socialization, sensory and motor development, reduction or elimination of maladaptive behavior, community living, and mobility. The department may provide these services until the eligible individual's independent living skills development has been met or until an interdisciplinary team determines the service is no longer appropriate for the eligible individual.

18.The department may provide community transition services to an eligible individual who is transitioning from an institution or another provider-operated living arrangement to a living arrangement in a private residence where the eligible individual is directly responsible for their own living expenses and needs nonrecurring set-up expenses. Community transition services include one-time transition costs and transition coordination.

a.Allowable expenses are those necessary to enable an eligible individual to establish a basic household that do not constitute room and board and may include:

(1)Security deposits that are required to obtain a lease on a private residence;

(2)Essential household furnishings required to occupy and use a private residence, including furniture, window coverings, food preparation items, and bed and bath linens;

(3)Setup fees or deposits for utility or service access, including telephone, electricity, heating, and water;

(4)Services necessary for the eligible individual's health and safety, such as pest eradication and one-time cleaning prior to occupancy;

(5)Moving expenses;

(6)Necessary home accessibility adaptations; and (7)Activities to assess need and to arrange for and procure need resources.

b.Community transition services do not include monthly rental or mortgage expenses, escrow, specials, insurance, food, regular utility or service access charges, household appliances, or items that are intended for purely diversional or recreational purposes.

c.Community transition services are furnished only to the extent that they are reasonable and necessary as determining through the service plan development process, clearly identified in the service plan and the eligible individual is unable to meet such expense, or when the services cannot be obtained from other sources.

19.The department may provide other services as permitted by an approved waiver.

20.The department may provide residential habilitation up to twenty-four hours per day to an eligible individual who needs formalized training and supports and requires some level of ongoing daily support. This service is designed to assist with and develop self-help, socialization, and adaptive skills that improve the eligible individual's ability to independently reside and participate in an integrated community. Residential habilitation may be provided in an agency foster home for adults facility or in a private residence owned or leased by an eligible individual or their family member.

21.The department may provide community support services up to twenty-four hours per day to an eligible individual who requires some level of ongoing daily support. This service is designed to assist with self-care tasks and socialization that improves the eligible individual's ability to independently reside and participate in an integrated community. Community support services may be provided in an agency foster home for adults facility or in a private residence owned or leased by an eligible individual or their family member.

22.The department may provide companionship services up to ten hours per month to eligible individuals who live alone and could benefit from services to help reduce social isolation.

23.The department may provide personal care services to an eligible individual who needs supervision and help with personal care services, subject to the following limitations:

a.Eligible individuals for family personal care services are not eligible to receive personal care services under the Medicaid waiver program from a provider who lives in the same home as the eligible individual;

b.The department may not pay for personal care services under the Medicaid waiver program to a provider who lives in the same home as the eligible individual if the provider meets the definition of family member in North Dakota Century Code section 50-06.2-02; and

c.Live-in personal care service is capped at ten hours per day.

January 1, 2018; January 1, 2020; January 1, 2022; January 1, 2024; January 1, 2025; January 1, 2026.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; October 1, 2014; April 1, 2016;

N.D. Admin. Code 75-03-23-07 Qualified service provider standards and agreements

1.An individual or agency seeking designation as a qualified service provider shall complete and submit the applicable forms supplied by the department in the form and manner prescribed.

The qualified service provider, including any employees of an agency designated as a qualified service provider, shall meet all licensure, certification, or competency requirements applicable under state or federal law and departmental standards necessary to provide care to eligible individuals whose care is paid by public funds. An application is not complete until the individual or agency submits all required information and required provider verifications to the department.

2.A provider or an individual seeking designation as a qualified service provider:

a.Must have the basic ability to read, write, and verbally communicate;

b.Must not be an individual who has been found guilty of, pled guilty to, or pled no contest to:

(1)An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or North Dakota Century Code section 12.1-17-01, simple assault, if a class C felony under subdivision a of subsection 2 of that section; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing peace officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-06.1, sexual exploitation by therapist; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery; or 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering a vulnerable adult; 12.1-31-07.1, exploitation of a vulnerable adult; 14-09-22, abuse of a child; 14-09-22.1, neglect of a child; subsection 1 of section 26.1-02.1-02.1, fraudulent insurance acts; or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the enumerated North Dakota statutes; or (2)An offense, other than a direct-bearing offense identified in paragraph 1 of subdivision b of subsection 2, if the department determines that the individual has not been sufficiently rehabilitated.

(a)The department may not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment has elapsed, unless sufficient evidence is provided of rehabilitation.

(b)An individual's completion of a period of three years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation;

c.In the case of an offense described in North Dakota Century Code section 12.1-17-01, simple assault, if a felony; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence, if a misdemeanor; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-18-03, unlawful imprisonment; 12.1-20-05, corruption or solicitation of minors, if a misdemeanor; 12.1-20-07, sexual assault, if a misdemeanor; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment;

d.Shall maintain confidentiality;

e.Shall, using applicable forms and providing documentation as required by the department:

(1)Revalidate qualified service provider enrollment except as provided in paragraph 3, within the time period as required by the Medicaid state plan option for personal care services or Medicaid waiver program, whichever occurs first; and (2)Provide evidence of competency, except as provided in paragraph 3, at least every sixty months for an agency enrolled as a qualified service provider or at least every thirty months for an individual enrolled as a qualified service provider, and within the time period as required by the Medicaid state plan option for personal care services or Medicaid waiver program, whichever occurs first; or (3)Revalidate qualified service provider enrollment only every sixty months for an individual enrolled as a qualified service provider providing family home care services under the SPED program and expanded service payments for elderly and disabled;

f.Must be physically capable of performing the service for which they were contracted with or hired as an independent contractor; and

g.Must be at least eighteen years of age.

h.A representative of an enrolled qualified service provider agency or an individual qualified service provider shall complete a department-approved qualified service provider orientation prior to initial enrollment.

3.If the physical, cognitive, social, or emotional health capabilities of an applicant or provider appear to be questionable, the department may require the applicant or provider to present evidence of the applicant's or provider's ability to provide the required care based on a formal evaluation. The department is not responsible for costs of any required evaluation.

4.The offenses enumerated in paragraph 1 of subdivision b of subsection 2 have a direct bearing on an individual's ability to be enrolled as a qualified service provider.

a.An individual enrolled as a qualified service provider prior to January 1, 2009, who has been found guilty of, pled guilty to, or pled no contest to, an offense considered to have a direct bearing on the individual's ability to provide care may be considered rehabilitated and may continue to provide services if the individual has had no other offenses and provides sufficient evidence of rehabilitation to the department.

b.The department may not approve, deny, or renew an application for an individual or employee of an agency who is applying to enroll or re-enroll as a qualified service provider and who has been charged with an offense considered to have a direct bearing on the individual's ability to provide care or an offense in which the alleged victim was under the applicant's care, until final disposition of the criminal case against the individual.

5.Evidence of competency for adult foster care providers serving eligible individuals eligible for the developmental disability waiver must be provided in accordance with subdivision b of subsection 2 of section 75-03-21-08.

6.A provider of services for adult day care, adult foster care, community support services, extended personal care, family personal care, nurse assessment, personal care, residential care, respite care, residential habilitation, supervision, and transitional living care shall provide evidence of competency in generally accepted procedures for:

a.Infection control and proper handwashing methods;

b.Handling and disposing of body fluids;

c.Tub, shower, and bed bathing techniques;

d.Hair care techniques, sink shampoo, and shaving;

e.Oral hygiene techniques of brushing teeth and cleaning dentures;

f.Caring for an eligible individual who is incontinent;

g.Feeding or assisting an eligible individual with eating;

h.Basic meal planning and preparation;

i.Assisting an eligible individual with the self-administration of medications;

j.Maintaining a kitchen, bathroom, and other rooms used by an eligible individual in a clean and safe condition, including dusting, vacuuming, floor care, garbage removal, changing linens, and other similar tasks;

k.Laundry techniques, including mending, washing, drying, folding, putting away, ironing, and related work;

l.Assisting an eligible individual with bill paying and balancing a check book;

m.Dressing and undressing an eligible individual;

n.Assisting with toileting;

o.Routine eye care;

p.Proper care of fingernails;

q.Caring for skin;

r.Turning and positioning an eligible individual in bed;

s.Transfer using a belt, standard sit, or bed to wheelchair;

t.Assisting an eligible individual with ambulation; and

u.Making wrinkle-free beds.

7.An applicant for qualified service provider status for adult foster care, extended personal care, family personal care, nurse assessment, personal care, residential care, supervision, transitional living care, respite care, or adult day care shall secure written verification that the applicant is competent to perform procedures specified in subsection 5 from a physician, chiropractor, registered nurse, licensed practical nurse, occupational therapist, physical therapist, or an individual with a professional degree in specialized areas of health care.

Written verification of competency is not required if the individual holds one of the following licenses or certifications in good standing: physician, physician assistant, chiropractor, registered nurse, licensed practical nurse, registered physical therapist, registered occupational therapist, or certified nurse assistant. A certificate or another form of acknowledgment of completion of a program with a curriculum that includes the competencies in subsection 5 may be considered evidence of competence.

8.The department may approve global and eligible individual-specific endorsements to provide particular procedures for a provider based on written verification of competence to perform the procedure from a physician, chiropractor, registered nurse, occupational therapist, physical therapist, or other individual with a professional degree in a specialized area of health care or approved within the scope of the individual's health care license or certification.

9.Competence may be demonstrated in the following ways:

a.A demonstration of the procedure being performed;

b.A detailed verbal explanation of the procedure; or

c.A detailed written explanation of the procedure.

10.The department shall notify the individual or the agency of its decision on designation as a qualified service provider.

11.The department shall maintain a list of qualified service providers. Once the eligible individual's need for services has been determined, the eligible individual selects a provider from the list and the department's designee issues an authorization to provide services to the selected qualified service provider.

12.The department may issue a service payment to a qualified service provider that bills the department after the delivery of authorized services.

13.Agency providers who employ nonfamily members shall have a department-approved quality improvement program that includes a process to identify, address, and mitigate harm to the eligible individuals they serve.

14.Agency providers who have accepted an authorization to provide twenty-four-hour supports to an eligible individual shall give a thirty-day written notice before they can involuntarily discharge the eligible individual from their care, unless otherwise approved by the department.

April 1, 2016; January 1, 2018; January 1, 2020; January 1, 2022; October 1, 2022; January 1, 2024;

January 1, 2025.

History

• History: Effective June 1, 1995; amended effective March 1, 1997; January 1, 2009; October 1, 2014;

N.D. Admin. Code 75-03-23-08 Denial of application to become a qualified service provider

The department may deny an application to become a qualified service provider if:

1.The applicant voluntarily withdraws the application;

2.The applicant is not in compliance with applicable state laws, state regulations, or program issuances governing providers;

3.The applicant, if previously enrolled as a qualified service provider, was not in compliance with the terms set forth in the application or provider agreement;

4.The applicant, if previously enrolled as a qualified service provider, was not in compliance with the provider certification terms on the claims submitted for payment;

5.The applicant, if previously enrolled as a qualified service provider, had assigned or otherwise transferred the right to payment of a program claim, except as provided in 42 U.S.C. 1396a(a)

(32);

6.The applicant, if previously enrolled as a qualified service provider, had demonstrated a pattern of submitting inaccurate billings or cost reports;

7.The applicant, if previously enrolled as a qualified service provider, had demonstrated a pattern of submitting billings for services not covered under department programs;

8.The applicant has been debarred or the applicant's license or certificate to practice in the applicant's profession or to conduct business has been suspended or terminated;

9.The applicant has delivered goods, supplies, or services that are of an inferior quality or are harmful to individuals;

10.The applicant has been convicted of an offense determined by the department to have a direct bearing upon the applicant's ability to be enrolled as a qualified service provider, or the department determines, following conviction of any other offense, the applicant is not sufficiently rehabilitated;

11.The applicant, if previously enrolled as a qualified service provider, owes the department money for payments incorrectly made to the provider;

12.The qualified service provider is currently excluded from participation in Medicare, Medicaid, or any other federal health care program;

13.The applicant has not provided sufficient evidence to the department, after obtaining a formal evaluation under subsection 3 of section 75-03-23-07, that the applicant is physically, cognitively, socially, or emotionally capable of providing the care;

14.The applicant previously has been terminated for inactivity and does not have a prospective public pay-eligible individual;

15.The applicant previously has been terminated for inactivity and has not provided valid reason for the inactivity; or

16.For other good cause.

January 1, 2020; January 1, 2022; October 1, 2022; January 1, 2024. 75-03-23-08.1. Sanctions and termination of qualified service providers.

1.The department may impose sanctions against a qualified service provider for any of the reasons listed under section 75-02-05-05 or subdivisions b though g of subsection 4. Prior to imposing sanctions, the department may require provider education or a business integrity agreement.

2.The department may consider the following in determining the sanction to be imposed:

a.Seriousness of the qualified service provider's offense.

b.Extent of the qualified service provider's violations.

c.Qualified service provider's history of prior violations.

d.Prior imposition of sanctions against the qualified service provider.

e.Prior provision of information and training to the qualified service provider.

f.Qualified service provider's agreement to make restitution to the department.

g.Actions taken or recommended by peer groups or licensing boards.

h.Access to care for eligible individuals.

i.Qualified service provider's self-disclosure or self-audit discoveries.

j.Qualified service provider's willingness to enter a business integrity agreement.

3.The department may impose any of the sanctions listed in subsections 8 or 9 of section 75-02-05-07.

4.The department may terminate a qualified service provider if:

a.The qualified service provider voluntarily withdraws from participation as a qualified service provider.

b.The qualified service provider is not in compliance with applicable state laws, state regulations, or program issuances governing providers.

c.The qualified service provider is not in compliance with the terms set forth in the application or provider agreement.

d.The qualified service provider is not in compliance with the provider certification terms on the claims submitted for payment.

e.The qualified service provider has assigned or otherwise transferred the right to payment of a program claim, except as provided in 42 U.S.C. 1396a(a)(32).

f.The qualified service provider has demonstrated a pattern of submitting inaccurate billings or cost reports.

g.The qualified service provider has demonstrated a pattern of submitting billings for services not covered under department programs.

h.The qualified service provider has been debarred or the provider's license or certificate to practice in the provider's profession or to conduct business has been suspended or terminated.

i.The qualified service provider has delivered goods, supplies, or services that are of an inferior quality or are harmful to individuals.

j.The qualified service provider has been convicted of an offense determined by the department to have a direct bearing upon the provider's ability to be enrolled as a qualified service provider, or the department determines, following conviction of any other offense, the provider is not sufficiently rehabilitated.

k.The qualified service provider is currently excluded from participation in Medicare, Medicaid, or any other federal health care program.

l.The qualified service provider has not provided sufficient evidence to the department, after obtaining a formal evaluation under subsection 3 of section 75-03-23-07 that the provider is physically, cognitively, socially, or emotionally capable of providing the care.

m.The qualified service provider refuses to repay or make arrangements for the repayment of identified overpayments or otherwise erroneous payments.

n.There has been no billing activity within the twelve months since the qualified service provider's enrollment or most recent re-enrollment date.

o.The qualified service provider has demonstrated a pattern of absenteeism by failing to provide care they have been authorized and agreed to provide per subsection 11 of

section 75-03-23-07 to an eligible individual.

p.For other good cause.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; October 1, 2014; April 1, 2016;
• History: Effective January 1, 2020; amended effective January 1, 2022; October 1, 2022; January 1, 2024.

N.D. Admin. Code 75-03-23-09 Payment under the SPED program and the Medicaid waiver program

1.The department shall establish provider rates for home and community-based service in accordance with a procedure that factors in:

a.Whether a provider is an individual or an agency; and

b.The range of rates submitted by various providers.

2.The rate for a specific qualified service provider is established at the time the provider agreement is signed.

3.The department shall grant a request for a rate decrease when the department receives a written request for the decrease from the qualified service provider.

4.The department shall grant in full or in part, or shall deny, a request for a rate increase when the department receives a written request for the rate increase from the qualified service provider.

5.The department shall determine the maximum amount allowable per eligible individual each month for a specific service.

6.The department shall establish the aggregate maximum amount allowable per eligible individual each month for all services. The aggregate maximum amount per eligible individual depends on whether the eligible individual is receiving services under the SPED program, under the Medicaid waiver program, or under both programs.

7.The department or designee may grant approval to exceed the monthly service program maximum for a specific eligible individual who is only receiving SPED funds and no Medicaid funds if the eligible individual has a special or unique circumstance; the SPED-eligible individual is not eligible for Medicaid; and the need for additional service program funds will not initially exceed three months. Under emergency conditions, the department may grant a one-time extension not to exceed an additional three months.

8.The department may grant approval to exceed the monthly service program maximum for a specific eligible individual who is receiving SPED funds and Medicaid funds or only Medicaid funds if the eligible individual has a special or unique circumstance; and the need for additional service program funds does not exceed three months. Under emergency conditions, the department may grant a one-time extension not to exceed an additional three months.

9.The department's designee shall notify the eligible individual of the department's determination regarding the request to exceed the monthly service program maximum. If the department denies the request to exceed the monthly aggregate maximum, the department's designee shall inform the eligible individual in writing of the reason for the denial, the eligible individual's right to appeal, and the appeal process, as provided in chapter 75-01-03.

10.The department will grant approval to exceed the monthly program maximum or service maximum for eligible individuals receiving SPED funds or Medicaid funds, or both, whose service units exceed the program caps as a result of the qualified service provider rate increase. This extension is limited to eligible individuals who were receiving services prior to July 1, 2007.

11.Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance to the three months extension and one-time extension limitation in subsections 7 and 8 upon such terms as the department may prescribe, except no variance may permit or authorize a danger to the health or safety of a client and no variance may be granted except at the discretion of the department. A refusal to grant a variance is not subject to appeal.

History

• History: Effective June 1, 1995; amended effective September 27, 2007; January 1, 2009; October 1, 2022; January 1, 2024.

N.D. Admin. Code 75-03-23-10 Department to recover funds upon establishment of noncompliance

A qualified service provider shall not submit a claim for payment or receive service payments for services that have not been delivered in accord with department policies and procedures. The department shall recover all payments received by a qualified service provider who fails to deliver the services in accord with the provider agreement or department policy and procedure.

History

• History: Effective June 1, 1995.
• Law Implemented: NDCC 50-06.2-03(5), 50-06.2-03(6)

N.D. Admin. Code 75-03-23-11 Denial, reduction, and termination of services - Appeal

1.The department or its designee shall inform an individual who is determined to be ineligible for covered services or who becomes ineligible while receiving services in writing of the denial, termination, or reduction, the reasons for the denial, termination, or reduction, the right to appeal, and the appeal process as provided in chapter 75-01-03.

2.An eligible individual must receive ten calendar days' written notice before termination of services occurs. The ten-day notice is not required if:

a.The eligible individual enters a basic care facility or a nursing facility;

b.The termination is due to changes in federal or state law;

c.The eligible individual requests termination of services; or

d.The eligible individual moves from the service area.

3.An applicant denied services or an eligible individual terminated from services should be given an appropriate referral to other public or private service providers and should be assisted in finding other resources.

4.The department shall deny or terminate SPED program and Medicaid waiver program services when service to the eligible individual presents an immediate threat to the health or safety of the eligible individual, the provider of services, or others or when services that are available are not adequate to prevent a threat to the health or safety of the eligible individual, the provider of services, or others. Examples of health and safety threats include physical abuse of the provider by the eligible individual, eligible individual self-neglect, an unsafe living environment for the eligible individual, or contraindicated practices, like smoking while using oxygen.

History

• History: Effective June 1, 1995; amended effective January 1, 2009; July 1, 2020; January 1, 2024.
• Law Implemented: NDCC 50-06.2-03(5), 50-06.2-03(6), 50-06.2-04(1), 50-06.2-04(3)

N.D. Admin. Code 75-03-23-12 Provider - Request for review

A qualified service provider may request a review of denial of payment in accordance with North Dakota Century Code section 50-24.1-24.

History

• History: Effective January 1, 2009; amended effective January 1, 2020.
• General Authority: NDCC 50-06.2-03, 50-24.1-24
• Law Implemented: NDCC 50-06.2-03, 50-24.1-24

N.D. Admin. Code 75-03-23-13 Provider - Appeals

An applicant or provider may appeal a decision to deny or revoke a qualified service provider enrollment by filing a written appeal with the department within ten days of receipt of written notice of the denial or revocation. Upon receipt of a timely appeal, an administrative hearing may be conducted in the manner provided in chapter 75-01-03. A provider or applicant who receives notice of termination or denial of the individual's qualified service provider status and requests a timely review of that decision is not eligible to provide services until a final decision has been made by the department that reverses the decision to terminate or deny qualified service provider status.

History

• History: Effective January 1, 2009.

N.D. Admin. Code 75-03-23-14 Disqualifying transfers

1.An individual is not eligible for SPED benefits under this chapter if the department determines that the individual or the spouse of the individual has made any assignment or transfer of any asset for the purpose of making the individual eligible for benefits before or after making application for SPED services except as provided in subsection 2.

2.An individual is not ineligible for SPED benefits under this chapter by reason of subsection 1 to the extent that:

a.The value of the transferred assets when added to the value of the individual's other assets would not otherwise make the individual ineligible for SPED or does not decrease the individual's service fee.

b.The asset transferred was a home, and title to the home was transferred to:

(1)The individual's spouse; or (2)The individual's son or daughter who is under the age of twenty-one or who is blind or disabled.

c.The assets:

(1)Were transferred to the individual's spouse or to another person for the sole benefit of the individual's spouse; or (2)Were transferred from the individual's spouse to another person for the sole benefit of the individual's spouse.

d.The individual makes a satisfactory showing that:

(1)The individual intended to dispose of the assets at fair market value or for other valuable consideration, and the individual had an objectively reasonable belief that fair market value or its equivalent was received;

(2)The assets were transferred exclusively for a purpose other than to qualify for SPED benefits under this chapter; or (3)All assets transferred for less than fair market value have been returned to the individual.

e.If a disqualifying transfer occurred five years prior to the date an individual initially applies for SPED services, the department will presume that the transfer was not for the purpose of obtaining SPED benefits.

3.There is a presumption that a transfer was made for purposes of making an individual eligible for SPED services under this chapter:

a.If an inquiry about SPED benefits or benefits under this chapter was made, by or on behalf of the individual to any other individual, before the date of transfer;

b.If the individual or the individual's spouse was an applicant for or an eligible individual of SPED benefits under this chapter before the date of transfer;

c.If a transfer is made by or on behalf of the individual's spouse, if the value of the transferred asset, when added to the value of the individual's other assets, would exceed SPED asset limits; or

d.If the transfer was made, on behalf of the individual or the individual's spouse, by a guardian, conservator, or attorney-in-fact, to the guardian, conservator, or attorney-in-fact or to any spouse, child, grandchild, brother, sister, niece, nephew, parent, or grandparent, by birth, adoption, or marriage, of the guardian, conservator, or attorney-in-fact.

4.An applicant or eligible individual who claims that assets were transferred exclusively for a

purpose other than to qualify for SPED benefits under this chapter must show a desire to receive SPED benefits under this chapter played no part in the decision to make the transfer and must rebut any presumption arising under subsection 3.

5.If the transferee of any assets is the child, grandchild, brother, sister, niece, nephew, parent, grandparent, stepparent, stepchild, son-in-law, daughter-in-law, or grandchild-in-law of the individual or the individual's spouse, services or assistance furnished by the transferee to the individual or the individual's spouse may not be treated as consideration for the transferred asset unless the transfer is made pursuant to a valid written contract entered into prior to rendering the services.

6.A transfer is complete when the individual, or the individual's spouse, making the transfer has no lawful means of undoing the transfer or requiring a restoration of ownership.

7.For purposes of this section, fair market value is received:

a.When one hundred percent of apparent fair market value is received for an asset whose value is not subject to reasonable dispute, such as cash, bank deposits, stocks, and fungible commodities;

b.When seventy-five percent of estimated fair market value is received for an asset whose value may be subject to reasonable dispute; and

c.When one hundred percent of fair market value is received for an asset considered to be income to the individual or individual's spouse.

8.If an applicant or eligible individual is denied Medicaid based on a disqualifying transfer of assets, the SPED applicant or eligible individual is also ineligible for SPED-funded services.

History

• History: Effective January 1, 2009; amended effective January 1, 2024.
• General Authority: NDCC 50-06.2-07
• Law Implemented: NDCC 50-06.2-07

N.D. Admin. Code 75-03-23-15 Application - Applicant required to provide proof of eligibility

1.An individual wishing to apply for benefits under this chapter must have the opportunity to do so, without delay.

2.An application is a request made to the department or its designee by an individual seeking services under this chapter, or by an individual properly seeking services on behalf of another individual. "An individual properly seeking services" means an individual of sufficient maturity and understanding to act responsibly on behalf of the individual for whom services are sought.

3.An application must include a functional assessment.

4.The individual seeking services under this chapter, or an individual properly seeking services on behalf of that individual, shall sign the application.

5.The department or its designee shall provide information concerning eligibility requirements, available services, and the rights and responsibilities of individuals seeking services under this

chapter and of eligible individuals to all who require it.

6.The date of application is the date the department or its designee receives the properly signed application.

7.The individual seeking services under this chapter shall provide information sufficient to establish eligibility for benefits, including a social security number and proof of age, identity, residence, blindness, disability, functional limitation, financial eligibility, and other information required under this chapter.

History

• History: Effective October 1, 2014; amended effective July 1, 2020; January 1, 2024.

N.D. Admin. Code 75-03-23-16 Reapplication after denial or termination

A provider or applicant whose qualified service provider status has been terminated or denied may not reapply if:

1.The provider's or applicant's status as a qualified service provider has been denied or revoked within the twelve months prior to the date of the current application; except that in the case of an individual who has been denied or terminated under subparagraph a of paragraph 2 of subdivision b of subsection 2 of section 75-03-23-07, the individual may reapply after completion of the term of probation; or

2.The provider's or applicant's status as a qualified service provider has been denied or revoked three or more times and the most recent revocation or denial occurred within the three years immediately preceding the application date.

History

• History: Effective October 1, 2014; amended effective January 1, 2020.

N.D. Admin. Code 75-03-23-17 Functional assessment

1.An initial functional assessment, using the form required by the department, must be completed as a part of the application for benefits under this chapter. A functional assessment must be completed at least semiannually in conjunction with the eligibility redetermination.

2.The functional assessment must include an interview with the individual in the home where the individual resides.

History

• History: Effective October 1, 2014.

Chapter 75-03-23.1 Target Population Member Rental Assistance Program

N.D. Admin. Code 75-03-23.1 Target Population Member Rental Assistance Program

CHAPTER 75-03-23.1

TARGET POPULATION MEMBER RENTAL ASSISTANCE PROGRAM

Section 75-03-23.1-01Definitions 75-03-23.1-02Eligibility Criteria for Target Population Member Rental Assistance Program 75-03-23.1-03Services Covered Under Target Population Rental Assistance Program 75-03-23.1-04Denial, Reduction, and Termination - Appeal 75-03-23.1-01. Definitions.

1."Community residence" means a private family home rented or owned by an individual or the individual's family, including an apartment, mobile home, licensed foster home for adults as defined in North Dakota Century Code section 50-11-00.1, or agency foster home for adults as defined in North Dakota Century Code section 50-11-00.1.

2."Federal rental assistance" means rental subsidies provided through the United States department of housing and urban development housing and homeless assistance programs, as well as the United States department of agriculture's rural rental assistance section 521 program [42 U.S.C. 1490a].

3."Target population member rental assistance" means a program intended to temporarily support individuals receiving home and community-based services who would otherwise be served in a skilled nursing facility and are on a waiting list to obtain federal rental assistance. 75-03-23.1-02. Eligibility criteria for target population member rental assistance program.

To be eligible for target population member rental assistance, the applicant shall:

1.Be twenty-one years or older;

2.Have twenty-five thousand dollars or less in assets;

3.Be receiving Medicaid, have applied for Medicaid, or be receiving service payments for the elderly and disabled;

4.Currently reside in or be moving to a community residence;

5.Meet skilled nursing facility level of care for a minimum of ninety days;

6.Be eligible for the money follows the person or the community transition and diversion program;

7.Be eligible to apply for a public housing authority housing voucher or have an approved project-based unit application;

8.Complete an application in the form and manner prescribed by the department;

9.Meet federal rental assistance eligibility guidelines;

10.Follow the rules and regulations of the public housing authority;

11.Pay the applicant's portion of the rent on time; and

12.Agree to maintain ongoing communication with the housing facilitator. 75-03-23.1-03. Services covered under target population rental assistance program.

1.The department may provide target population member rental assistance to an eligible individual to cover the rental funding gap for an eligible individual until a federal rental subsidy is obtained for the individual.

2.The department shall review the amount of the target population member rental assistance payment at least annually and the department may adjust the amount of the target population member rental assistance payment due to inflation or a monthly rental increase.

3.The department may provide housing facilitation services to eligible individuals with identified housing-related needs. Housing facilitation services provided by the department may include:

a.Approved modifications to the eligible individual's current residence to improve accessibility or safety; and

b.Assistance with locating a new, affordable, and accessible residence within the community. 75-03-23.1-04. Denial, reduction, and termination - Appeal.

1.The department shall inform an individual who is determined to be ineligible for the target population member rental assistance program or who becomes ineligible while receiving assistance or services from the target population member rental assistance program in writing of the denial, termination, or reduction, the reasons for the denial, termination, or reduction, the right to appeal, and the appeal process as provided in chapter 75-01-03.

2.An eligible individual must receive ten calendar days' written notice before termination occurs.

The ten-day notice is not required if:

a.The eligible individual enters a basic care facility or a nursing facility for longer than six months;

b.The termination is due to changes in federal or state law;

c.The eligible individual requests the termination;

d.The eligible individual moves out of North Dakota; or

e.The eligible individual is deceased.

3.An applicant denied or an eligible individual terminated may be given an appropriate referral to other public or private service providers and should be assisted in finding other resources.

4.The department shall deny or terminate target population member rental assistance or service if the assistance or service to the eligible individual presents an immediate threat to the health or safety of the eligible individual, the provider of assistance or services, or others or if assistance or services that are available are not adequate to prevent a threat to the health or safety of the eligible individual, the provider of assistance or services, or others. Examples of health and safety threats include physical abuse of the provider by the eligible individual, eligible individual self-neglect, an unsafe living environment for the eligible individual, or contraindicated practices, like smoking while using oxygen.

5.Errors made by public officials and delays caused by the actions of public officials do not create eligibility and may not form the basis for the award of any benefit to an adversely affected applicant or eligible individual who would not otherwise be eligible to receive that benefit.

Chapter 75-03-23.2 Community Transition and Diversion Program

N.D. Admin. Code 75-03-23.2 Community Transition and Diversion Program

CHAPTER 75-03-23.2

COMMUNITY TRANSITION AND DIVERSION PROGRAM

Section 75-03-23.2-01Definitions 75-03-23.2-02Community Transition Eligibility Criteria 75-03-23.2-03Diversion Eligibility Criteria 75-03-23.2-04Services Covered Under Community Transition and Diversion Program - Programmatic Criteria 75-03-23.2-05Allowable Expenses for Community Transition and Diversion Program 75-03-23.2-06Denial, Reduction, and Termination - Appeal 75-03-23.2-01. Definitions.

1."Community residence" means a private family home rented or owned by an individual or the individuals family, including an apartment, mobile home, foster home for adults as defined in North Dakota Century Code section 50-11-00.1, or agency foster home for adults as defined in North Dakota Century Code section 50-11-00.1.

2."Community transition" means a set of activities that assist an eligible individual to move out of an institutional or other provider-operated residential facility setting and receive care in a community residence.

3."Diversion" means a set of activities that occur before an eligible individual is admitted to an institutional setting or other provider-operated residential facility setting, which seek to provide an appropriate alternative to a nursing facility and meet the individual's needs in the most integrated setting.

4."Most integrated setting" means a setting that enables individuals with disabilities to interact with nondisabled individuals to the fullest extent possible. The most integrated setting is usually a private residence owned or rented by the individual or the individual's family member in which the individual or their family member has property rights.

5."Provider-operated residential facilities" means a skilled nursing facility, swing bed, basic care facility, assisted living facility, medical rehabilitation facility, medical hospital, group home setting for individuals with a developmental disability such as an intermediate care facility or developmental disabilities waiver-funded group setting.

6."Significant disability" means an individual with a physical or mental impairment that substantially limits one or more major life activities with a record of such impairment or who is regarded as having such an impairment. 75-03-23.2-02. Community transition eligibility criteria.

1.To be considered eligible for community transition, an applicant of any age must:

a.Be receiving Medicaid and have a significant disability;

b.Be receiving Medicaid expansion, have a significant disability, and have a verifiable monthly income at or below one hundred thirty-eight percent of the current monthly poverty level; or

c.Be receiving currently or have been determined eligible by the department for one of the following services, waivers, or programs:

(1)Developmental disabilities program management;

(2)Developmental disabilities waiver;

(3)North Dakota Medicaid state plan personal care;

(4)Services payments for the elderly and disabled program;

(5)Expanded service payments for the elderly and disabled program;

(6)Medicaid waiver for home and community-based services;

(7)Children's hospice waiver;

(8)Autism spectrum disorder waiver; or (9)Medically fragile children's waiver.

2.To be considered eligible, an applicant must be living in a provider-operated residential facility and be requesting a transition to an eligible community residence.

3.An applicant shall submit an application in the form and manner prescribed by the department.

4.An applicant with presumptive eligibility or a pending Medicaid application is not eligible for community transition.

5.An applicant is not eligible if:

a.The applicant qualifies for the money follows the person grant or another federal transition service.

b.A referral for the community transition program occurs after a transition to the community occurs.

c.The applicant previously has been enrolled in the community transition and diversion program within the past twelve months.

6.An individual is not eligible to reapply if the individual has been denied participation in the community transition program within the past twelve months, unless the individual has had a significant change in condition or living arrangement. 75-03-23.2-03. Diversion eligibility criteria.

1.To be considered eligible for the diversion program, an applicant, of any age must:

a.Be receiving Medicaid and have a significant disability;

b.Be receiving Medicaid expansion, have a significant disability, and have a verifiable monthly income at or below one hundred thirty-eight percent of the current monthly poverty level; or

c.Be receiving or have been determined eligible by the department for any of the following services, waivers, or programs:

(1)Developmental disabilities program management;

(2)Developmental disabilities waiver;

(3)North Dakota Medicaid state plan personal care;

(4)Services payments for the elderly and disabled program;

(5)Expanded service payments for the elderly and disabled program;

(6)Medicaid waiver for home and community-based services;

(7)Children's hospice waiver;

(8)Autism spectrum disorder waiver; or (9)Medically fragile children's waiver.

2.To be considered eligible, an applicant must:

a.Live in a community residence and be in direct threat of being placed into a provideroperated residential facility;

b.If receiving developmental disability program management, be transitioning from a shared family home or other community residence into an independent or shared living situation with chosen roommates with support services provided under the developmental disabilities waiver and be considered at risk of admission to a provideroperated residential facility; or

c.Be unable to remain in the individual's current community residence due to:

(1)A significant change in physical health or the onset or worsening of a physical disability that requires relocation to an accessible housing unit; or (2)An individual's current living environment having been deemed uninhabitable or unsafe by a local housing authority or inspector, and continued residence at that community residence would pose a danger to the individual's health or safety.

3.An applicant shall submit an application in the form and manner prescribed by the department.

4.An applicant with presumptive eligibility or a pending Medicaid application is not eligible for the diversion program.

5.An individual is not eligible to reapply if the individual having been denied participation in the diversion program within the past twelve months, unless the individual has had a significant change in condition or living arrangement. 75-03-23.2-04. Services covered under community transition and diversion program - Programmatic criteria.

1.The department may provide community transition and diversion services necessary for:

a.A successful transition from a provider-operated residential facility, foster home for adults as defined in North Dakota Century Code section 50-11-00.1, agency foster home for adults as defined in North Dakota Century Code section 50-11-00.1, or adult residential care facility to the eligible individual's most integrated setting;

b.Prevention of a placement in a provider-operated residential facility; and

c.Ongoing monitoring to promote health, safety, and welfare.

2.The department may provide the following services to eligible individuals with identified housing related needs:

a.Modifications to the individual's current residence to improve accessibility or safety; and

b.Assistance with locating and applying for a new, affordable, and accessible community residence. 75-03-23.2-05. Allowable expenses for community transition and diversion program.

1.As part of the community transition and diversion program, the department may provide the following one-time products and services necessary for community transition or diversion:

a.Health and safety-related technology or expenses;

b.Security deposits required to obtain a lease on a community residence, including the cost of first month's rent;

c.Setup fees or deposits for telephone, electricity, heating, internet, and water service;

d.Rental application-related costs and fees;

e.Necessary home accessibility adaptations and environmental or medically required adaptions;

f.Adaptive equipment;

g.Essential household furniture, linens, window coverings, food preparation items, cleaning supplies, and small kitchen appliances;

h.Assistive technology devices;

i.One-time vehicle modifications for a vehicle owned and used by the individual;

j.Personal care items;

k.Packing and moving expenses;

l. Assistance with relocation from one community residence to another;

m.If required for the individual's health and safety, pest eradication, allergen control, or onetime cleaning prior to occupancy or relocation; and

n.One-time payments for assessments or services necessary to support community transition, such as a nursing assessment or assistive technology assessment.

2.An item or service that is not listed in this section is excluded from the community transition and diversion program. 75-03-23.2-06. Denial, reduction, and termination - Appeal.

1.The department shall inform an individual who is determined to be ineligible for the community transition and diversion program or who becomes ineligible while participating in the community transition and division program in writing of the denial, termination, or reduction, the reasons for the denial, termination, or reduction, the right to appeal, and the appeal process as provided in chapter 75-01-03.

2.An eligible individual must receive ten calendar days' written notice before termination from services occurs. The ten-day notice is not required if:

a.The eligible individual enters a basic care facility or a nursing facility;

b.The termination is due to changes in federal or state law;

c.The eligible individual requests termination of services;

d.The eligible individual moves out of North Dakota;

e.The eligible individual becomes eligible for the money follows the person program; or

f.The eligible individual is deceased.

3.An applicant denied services or an eligible individual terminated from services should be given an appropriate referral to other public or private service providers and should be assisted in finding other resources.

4.The department shall deny or terminate community transition and diversion program services if service to the eligible individual presents an immediate threat to the health or safety of the eligible individual, the provider of services, or others or when services that are available are not adequate to prevent a threat to the health or safety of the eligible individual, the provider of services, or others. Examples of health and safety threats include physical abuse of the provider by the eligible individual, eligible individual self-neglect, an unsafe living environment for the eligible individual, or contraindicated practices, like smoking while using oxygen.

5.Errors made by public officials and delays caused by the actions of public officials do not create eligibility and may not form the basis for the award of any benefit to an adversely affected applicant or eligible individual who would not otherwise be eligible to receive that benefit.

Chapter 75-03-24 Expanded Service Payments for Elderly and Disabled

N.D. Admin. Code 75-03-24-01 Definitions

For purposes of this chapter, unless the context requires otherwise:

1."Activities of daily living" means bathing, dressing, toileting, transferring, eating, bed mobility, medication management, and personal hygiene.

2."Blind" has the same meaning as the term has when used by the social security administration in the supplemental security income program under title XVI of the Social Security Act [42 U.S.C. 1381 et seq.].

3."Department" means the department of health and human services.

4."Disabled" has the same meaning as the term has when used by the social security administration in the supplemental security income program under title XVI of the Social Security Act [42 U.S.C. 1381 et seq.].

5."Ex-SPED program pool" means the list maintained by the department which contains the names of eligible individuals for whom ex-SPED program funding is available when the eligible individuals' names are transferred from the ex-SPED program pool to ex-SPED program active status.

6."Institution" means an establishment that makes available some treatment or services beyond food or shelter to four or more individuals who are not related to the proprietor.

7."Instrumental activities of daily living" means activities to support independent living, including housekeeping, shopping, laundry, transportation, and meal preparation.

History

• History: Effective April 1, 2012; amended effective July 1, 2020; January 1, 2024.

N.D. Admin. Code 75-03-24-02 Eligibility criteria

An individual may receive necessary benefits under this chapter if the individual:

1.Is a resident of this state;

2.Is:

a.Sixty-five years of age or older; or

b.Eighteen years of age or older and disabled or blind;

3.Has applied for and been found eligible for Medicaid benefits;

4.Has countable income which does not exceed an amount equal to the cash benefit under title XVI of the Social Security Act [42 U.S.C. 1381, et seq.]; and

5.Based on a functional assessment made in accordance with this chapter, is not severely impaired in any of the activities of daily living of toileting, transferring to or from a bed or chair, or eating; and

a.Has health, welfare, or safety needs, including a need for supervision or a structured environment; or

b.Is impaired in three of the following four instrumental activities of daily living:

(1)Preparing meals;

(2)Doing housework;

(3)Taking medicine; and (4)Doing laundry.

N.D. Admin. Code 75-03-24-03 Eligibility determination - Authorization of services

1.The department is responsible for:

a.Verifying that the individual transferred to active status continues to meet the eligibility criteria for placement into the ex-SPED program pool;

b.Developing a care plan;

c.Authorizing covered services in accordance with department policies and procedures; and

d.Assuring that other potential federal and third-party funding sources for similar services are sought first.

2.An individual who is discharged from an inpatient hospital stay, skilled nursing facility, swing-bed facility, long-term care facility, or basic care facility or who has been off the ex-SPED program for fewer than ninety days, does not have to go through the ex-SPED program pool to receive services through the ex-SPED program provided the individual meets all eligibility criteria in section 75-03-24-02.

3.An applicant is eligible to receive covered services reimbursed under North Dakota Century Code chapter 50-06.2 or this chapter even if the applicant has natural supports.

History

• History: Effective April 1, 2012; amended effective July 1, 2020; January 1, 2022; January 1, 2024.

N.D. Admin. Code 75-03-24-04 Application

1.All individuals wishing to make application for benefits under this chapter must have the opportunity to do so, without delay.

2.An application is a request made by an individual desiring benefits under this chapter, or by a proper individual seeking such benefits on behalf of another individual, to the department. A proper individual means any individual of sufficient maturity and understanding to act responsibly on behalf of the applicant.

3.An application consists of an application for services, which includes a functional assessment.

4.Application forms must be signed by the applicant, an authorized representative, or, if the applicant is incompetent or incapacitated, someone acting responsibly for the applicant.

5.Information concerning eligibility requirements, available services, and the rights and responsibilities of applicants and eligible individuals must be furnished to all who require it.

6.The date of application is the date an application, signed by an appropriate individual, is received by the department.

History

• History: Effective April 1, 2012; amended effective July 1, 2020; January 1, 2024.

N.D. Admin. Code 75-03-24-05 Applicant's or guardian's duty to establish eligibility

The applicant or guardian of the applicant shall provide information sufficient to establish eligibility for benefits, including a social security number and proof of age, identity, residence, blindness, disability, functional limitation, financial eligibility, and such other information as may be required by this

chapter.

N.D. Admin. Code 75-03-24-06 Functional assessment

1.For purposes of this section, "functional assessment" means an instrument used to record basic demographic and medical information about an individual, including age, date of birth, spoken language, marital status, individuals residing with, emergency contacts, medical resources, health care coverage, and source and reason for referral; and to secure measurable information regarding:

a.Physical health;

b.Cognitive and emotional functioning;

c.Activities of daily living;

d.Instrumental activities of daily living;

e.Informal supports;

f.Need for twenty-four-hour supervision;

g.Social participation;

h.Physical environment;

i.Financial resources;

j.Adaptive equipment or environmental modification, or both; and

k.Other information about the individual's condition not recorded elsewhere.

2.An initial functional assessment, using an appropriate form determined by the department, must be completed as a part of the application for benefits under this chapter. Eligibility redetermination must be completed at least biannually.

3.A functional assessment must include an interview with the individual in the home where the individual resides.

N.D. Admin. Code 75-03-24-07 Services covered under the ex-SPED program - Programmatic criteria

Room and board costs may not be paid in the ex-SPED service payment. The following categories of services are covered under the ex-SPED program and may be provided to an eligible individual:

1.The department may provide adult day care services to an eligible individual:

a.Who requires assistance in activities of daily living or instrumental activities of daily living;

b.Who is able to participate in group activities; and

c.Who, if the eligible individual does not live alone, has a primary caregiver who will benefit from the temporary relief of caregiving.

2.The department may provide adult family foster care, using a licensed adult family foster care provider, to an eligible individual eighteen years of age or older:

a.Who resides in a licensed adult family foster care home;

b.Who requires care or supervision;

c.Who would benefit from a family environment; and

d.Whose required care does not exceed the capability of the foster care provider.

3.The department may provide chore services to an eligible individual for one-time, intermittent, or occasional activities which would enable the eligible individual to remain in the home.

Activities such as heavy housework and periodic cleaning, professional extermination, snow removal, and emergency response systems may be provided. Eligible individuals receiving emergency response services must be cognitively and physically capable of activating the emergency response system. The activity must be the responsibility of the eligible individual and not the responsibility of the landlord.

4.The department may provide environmental modification to an eligible individual:

a.Who owns or rents the home to be modified. If the home is rented the property owner shall approve the modification consistent with the property owner's obligations pursuant to section 804(f)(3)(A) of the Fair Housing Act [42 U.S.C. 3604(f)(3)(A)] before the installation of the environmental modification; and

b.When the modification will enable the eligible individual to complete the eligible individual's own personal care or to receive care and allow the eligible individual to safely stay in the home.

5.The department may provide family home care services to an eligible individual:

a.Who lives in the same residence as the care provider on a twenty-four-hour basis;

b.Who agrees to the provision of services by the care provider; and

c.Whose care provider is a relative identified within the definition of "family home care" under subsection 2 of North Dakota Century Code section 50-06.2-02 and is enrolled as a qualified service provider.

6.The department may provide home-delivered meals to an eligible individual who lives alone and is unable to prepare an adequate meal for themselves, or who lives with an individual who is unable or not available to prepare an adequate meal for the eligible individual.

7.The department may provide homemaker services to an eligible individual who needs assistance with environmental maintenance activities including light housekeeping, laundry, meal planning and preparation, and shopping on an intermittent or occasional basis. The department may pay a provider for laundry, shopping, meal preparation, money management, or communication, if the activity benefits the eligible individual. The department may pay a provider for housekeeping activities involving the eligible individual's personal private space and if the eligible individual is living with an adult, the eligible individual's share of common living space. The homemaker service cap funding applies to a household and may not be exceeded regardless of the number of eligible individuals residing in that household.

8.Nonmedical transportation services may be provided to eligible individuals who are unable to provide their own transportation and need transportation to access essential community services such as grocery stores or pharmacies. "Nonmedical transportation services" are transportation services not related to the receipt of medical care.

9.The department may provide respite care services to an eligible individual in the eligible individual's home, in the provider's home, in a nursing home, in a swing-bed facility, in a basic care facility, or in a hospital, if:

a.The eligible individual has a full-time primary caregiver;

b.The eligible individual needs a qualified caregiver or it would be inappropriate to use an unqualified caregiver in the absence of the primary caregiver;

c.The primary caregiver's need for the relief is intermittent or occasional; and

d.The primary caregiver's need for relief is not due to the primary caregiver's employment or attendance at school as a part-time or full-time student.

10.The department may provide companionship services up to ten hours per month to eligible individuals who live alone and could benefit from services to help reduce social isolation.

11.The department may provide other services as the department determines appropriate.

History

• History: Effective April 1, 2012; amended effective October 1, 2014; January 1, 2022; January 1, 2024.

N.D. Admin. Code 75-03-24-08 Residency

For purposes of this chapter:

1.An individual is a resident of this state if the individual is not living in an out-of-state institution and is living in this state:

a.With intent to remain in this state permanently or for an indefinite period; or

b.Without intent if the individual is incapable of stating intent.

2.An individual who is a resident of this state is a resident of the human service zone in which the individual is a resident for purposes of receipt of benefits under North Dakota Century Code chapter 50-01.

History

• History: Effective April 1, 2012; amended effective July 1, 2020.

N.D. Admin. Code 75-03-24-09 Denial, reduction, and termination of services - Appeal

1.The department shall inform an individual who is determined to be ineligible for covered services or who becomes ineligible while receiving services in writing of the denial, termination, or reduction, the reasons for the denial, termination, or reduction, the right to appeal, and the appeal process as provided in chapter 75-01-03.

2.An eligible individual must receive ten calendar days' written notice before termination of services occurs. The ten-day notice is not required if:

a.The eligible individual enters a basic care facility or a nursing facility;

b.The termination is due to changes in federal or state law;

c.The eligible individual requests termination of services;

d.The eligible individual moves from the service area; or

e.The eligible individual is deceased.

3.An applicant denied services or an eligible individual terminated from services should be given an appropriate referral to other public or private service providers and should be assisted in finding other resources.

4.The department shall deny or terminate ex-SPED program services when service to the eligible individual presents an immediate threat to the health or safety of the eligible individual, the provider of services, or others or when services that are available are not adequate to prevent a threat to the health or safety of the eligible individual, the provider of services, or others. Examples of health and safety threats include physical abuse of the provider by the eligible individual, eligible individual self-neglect, an unsafe living environment for the eligible individual, or contraindicated practices, like smoking while using oxygen.

5.Errors made by public officials and delays caused by the actions of public officials do not create eligibility and may not form the basis for the award of any benefit to an adversely affected applicant or eligible individual who would not otherwise be eligible to receive that benefit.

History

• History: Effective April 1, 2012; amended effective July 1, 2020; January 1, 2024.

N.D. Admin. Code 75-03-24-10 Payment under the ex-SPED program

1.Payment for ex-SPED services may only be made to an enrolled qualified service provider who meets the standards described in chapter 75-03-23.

2.The department shall establish provider rates for home and community-based services in accordance with a procedure that factors in:

a.Whether a provider is an individual or an agency; and

b.The range of rates submitted by various providers.

3.The rate for a specific qualified service provider is established at the time the provider agreement is signed.

4.The department shall grant a request for a rate decrease when the department receives a written request for the decrease from the qualified service provider.

5.The department shall grant in full or in part, or shall deny, a request for a rate increase, when the department receives a written request for the rate increase from the qualified service provider.

6.The department shall determine the maximum amount allowable per eligible individual each month for a specific service.

7.The department shall establish the aggregate maximum amount allowable per eligible individual each month for all services.

8.The department may grant approval to exceed the monthly service program maximum for a specific eligible individual who is only receiving ex-SPED funds if:

a.The eligible individual has a special or unique circumstance; and

b.The need for additional service program funds will not initially exceed three months.

Under emergency conditions, the department may grant a one-time extension not to exceed an additional three months.

9.The department shall notify the eligible individual of the department's determination regarding the request to exceed the monthly service program maximum. If the department denies the request to exceed the monthly aggregate maximum, the department shall inform the eligible individual in writing of the reason for the denial, the eligible individual's right to appeal, and the appeal process, as provided in chapter 75-01-03.

10.The department will grant approval to exceed the monthly program maximum or service maximum for eligible individuals receiving ex-SPED funds whose service units exceed the program caps as a result of the qualified service provider rate increase. This extension is limited to eligible individuals who were receiving services prior to July 1, 2007.

History

• History: Effective April 1, 2012; amended effective July 1, 2020; January 1, 2024.

N.D. Admin. Code 75-03-24-11 Department to recover funds upon establishment of noncompliance

A qualified service provider shall not submit a claim for payment or receive service payments for services that have not been delivered in accord with department policies and procedures. The department shall recover all payments received by a qualified service provider who fails to deliver services in accord with the provider agreement or department policy and procedure.

N.D. Admin. Code 75-03-24-12 Administration

The department must be responsible for the administration of the program with respect to that applicant or eligible individual.

History

• History: Effective April 1, 2012; amended effective July 1, 2020; January 1, 2024.

Chapter 75-03-25 Ombudsman Program

N.D. Admin. Code 75-03-25-01 Definitions

As used in this chapter:

1."Administrative action" means an act, decision, or a failure to act or to make a decision by an owner, employee, or agent of a long-term care facility or by a public agency that affects the provision of services to a resident.

2."Basic care facility" means any residence, not licensed under North Dakota Century Code

chapter 23-16 by the state department of health, that provides room and board to five or more individuals who are not related by blood or marriage to the owner or manager of the residence and who, because of impaired capacity for independent living, require health, social, or personal care services, but do not require regular twenty-four-hour medical or nursing services.

3."Complaint" means a written or verbal statement of alleged violation of a statute, rule,

regulation, or policy, or other alleged wrongful act or omission related to health, safety, welfare, personal, or civil rights of a long-term care resident.

4."Department" means the department of human services.

5."Immediate family" means a member of the household or a relative with whom there is a close personal or significant financial relationship.

6."Legal representative" means the long-term care resident's legal counsel, an individual who possesses the resident's unlimited power of attorney or power of attorney that specifically includes the authority to release confidential information, a guardian with unlimited power, or a guardian or conservator whose grant of authority specifically includes the authority to release confidential information.

7."Long-term care facility" means a facility defined in North Dakota Century Code chapter 50-10.1, as any skilled nursing facility, intermediate care facility, basic care facility, nursing home as defined in subsection 3 of North Dakota Century Code section 43-34-01, boardinghouse, or swing bed hospital approved to furnish long-term care services; provided, that a facility, as defined by subsection 2 of North Dakota Century Code section 25-01.2-01, providing services to developmentally disabled persons is not a long-term care facility.

8."Medical record" means a record maintained by a long-term care facility relating to the medical and physical condition, care, and treatment of a particular long-term care resident. The medical record includes social and other information as required by the facility and the resident.

9."Reasonable access" means the ombudsman's right to access a long-term care facility, a long-term care resident, or a long-term care resident's records, based on the ombudsman's need to know information in the provision of services.

10."Resident" means an individual residing in and receiving personal care from a long-term care facility.

11."Volunteer ombudsman" means an individual appointed by the department as an ombudsman on the community level as opposed to the local or state level.

N.D. Admin. Code 75-03-25-02 Appointment of the state long-term care ombudsman

Repealed effective April 1, 2016.

N.D. Admin. Code 75-03-25-03 Duties of the state long-term care ombudsman

The state long-term care ombudsman shall:

1.Identify, investigate, and resolve complaints made by, or on behalf of, long-term care residents;

2.Investigate and resolve complaints involving long-term care service providers, representatives of providers, public agencies, or health and social service agencies or complaints that pertain to administrative action, inaction, or decisions that may adversely affect the health, safety, welfare, or rights of a long-term care resident, including the appointment and functions of guardians and representative payees;

3.Provide assistance to a long-term care resident in protecting the resident's health, safety, welfare, or rights;

4.Provide a long-term care resident with information and procedures to protect the long-term care resident's rights and to obtain health, safety, welfare, or rights services from long-term care service providers, public agencies, or health and social service agencies;

5.Develop and monitor the effectiveness of complaint registration and complaint resolution mechanisms that provide a long-term care resident regular and timely access to ombudsman services;

6.Represent the interests of a long-term care resident before governmental agencies;

7.Seek administrative and legal remedies to protect the health, safety, welfare, or rights of a long-term care resident;

8.Research, evaluate, comment on, and monitor the development and implementation of federal, state, and local laws, administrative rules, regulations, and other federal, state, and local policies and actions, pertaining to the health, safety, welfare, and rights of a long-term care resident;

9.Recommend changes and facilitate public comments on laws, rules, regulations, policies, actions, and decisions pertaining to the health, safety, welfare, and rights of a long-term care resident;

10.Provide training for the local and volunteer ombudsman and encourage the development of citizen organizations to take part in the ombudsman program;

11.Provide technical assistance for the development of a long-term care resident councils and family councils for the protection of each long-term care resident's well-being and rights; and

12.Perform other operations and projects required by federal and state aging services.

N.D. Admin. Code 75-03-25-04 Appointment of the regional long-term care ombudsman

Repealed effective April 1, 2016.

N.D. Admin. Code 75-03-25-05 Duties of the local ombudsman

The local ombudsman shall:

1.Investigate and resolve complaints involving long-term care service providers, or representatives of providers, public agencies, or health and social service agencies and pertaining to administrative action, inaction, or decisions that may adversely affect the health, safety, welfare, or rights of a long-term care resident;

2.Ensure that a long-term care resident in the local ombudsman's service area has regular, reliable, and timely access to the local and volunteer ombudsman;

3.Ensure that complaints and requests for assistance receive timely responses;

4.Represent the interests of a long-term care resident before governmental agencies and pursue administrative and legal remedies, to protect the health, safety, welfare, and rights of a long-term care resident;

5.Review and make necessary comments on existing and proposed statutes, rules, regulations, and other governmental policies and administrative actions pertaining to the health, safety, welfare, and rights of a long-term care resident;

6.Facilitate the opportunity for the public to comment on federal and state statutes, rules, regulations, policies, and administrative actions pertaining to the health, safety, welfare, and rights of a long-term care resident.

7.Advocate for and support the development of long-term care resident councils and long-term care family councils;

8.Recruit and train the volunteer ombudsman, maintain documentation, and investigate any complaints about the volunteer ombudsman, in the form and manner required by the department;

9.Conduct an annual evaluation of each volunteer ombudsman in the form and manner required by the department; and

10.Perform other operations and projects required by the state long-term care ombudsman.

N.D. Admin. Code 75-03-25-06 Certification of the volunteer ombudsman - Qualifications

The state long-term care ombudsman may certify a volunteer ombudsman. A volunteer ombudsman must be at least eighteen years of age. The volunteer ombudsman is not paid and is not an employee of the department. Each certified volunteer ombudsman must:

1.Have references and experiences that demonstrate the capability to fulfill comparable duties as those listed in section 75-03-25-07;

2.Be free of conflicts of interest;

3.Possess any other qualifications that the state long-term care ombudsman determines necessary to fulfill the duties of the position;

4.Have completed initial and ongoing training;

5.Have agreed to abide by the confidentiality statement, the conflict of interest statement, and the position description;

6.Be able to communicate with long-term care residents and facility staff;

7.Be able to communicate with residents who may be physically or mentally impaired; and

8.Understand and have the ability to advocate on behalf of residents.

N.D. Admin. Code 75-03-25-07 Duties of the volunteer ombudsman

The volunteer ombudsman shall:

1.Provide ombudsman services to protect the health, safety, welfare, and rights of a long-term care resident;

2.Be present at the ombudsman's assigned facility on a regular basis;

3.Maintain confidentiality in all ombudsman activities;

4.Receive and report concerns, issues, and complaints to the local ombudsman; and

5.Assist the local ombudsman with assessment, complaint resolution, and follow-up activities.

N.D. Admin. Code 75-03-25-08 Restrictions on services offered by volunteer ombudsman

While in the role of the volunteer ombudsman in an assigned long-term care facility, the local ombudsman may not:

1.Provide direct personal care to a long-term care resident;

2.Provide transportation for a long-term care resident; or

3.Conduct personal business for a long-term care resident.

N.D. Admin. Code 75-03-25-09 Reasonable access to long-term care facility, residents, and records

The division of aging services of the department shall ensure that the state, local, and volunteer ombudsmen have reasonable access to:

1.A long-term care facility and a long-term care resident;

2.Review a long-term care resident's social and medical records, as provided under subsection 2 of North Dakota Century Code section 50-10.1-04;

3.Review a long-term care resident's medical record if a court orders disclosure;

4.Open administrative records, policies, and documents of a long-term care facility; and

5.State licensure and certification records regarding long-term care facilities.

N.D. Admin. Code 75-03-25-10 Conflict of interest

1.An ombudsman may not serve as guardian or conservator or in any other decisionmaking capacity for a long-term care resident who is in a facility served by the ombudsman.

2.An ombudsman or any member of the ombudsman's immediate family may not be a board member, have an ownership, operational, or investment interest in an existing or proposed long-term care facility, or be employed by, or participate in the management of, a long-term care facility.

3.An ombudsman may not have direct involvement in the licensure or certification of any long-term care facility.

4.An ombudsman may not receive or have the right to receive, directly or indirectly, any remuneration, in cash or in kind, under a compensation arrangement with an owner or operator of a long-term care facility.

5.An ombudsman may not accept gifts or gratuities of significant value from a long-term care facility or its management, a resident of or a legal representative of a resident of a long-term care facility to which the ombudsman is assigned.

6.The state long-term care ombudsman and any local ombudsman may not accept any money or other consideration from anyone other than the department for the performance of an act in the regular course the ombudsman's duties; a volunteer ombudsman, as an unpaid position, may not accept money or other consideration from anyone for the performance of an act in the regular course of the volunteer's work as an ombudsman.

7.An ombudsman should not serve residents of a facility in which an immediate family member resides.

N.D. Admin. Code 75-03-25-11 Dismissal of an ombudsman

Any ombudsman may be dismissed if the ombudsman:

1.Fails to perform ombudsman services in a manner consistent with the program's policies and procedures;

2.Fails to maintain confidentiality;

3.Fails to report abuse, neglect, or exploitation of a long-term care resident if a report is requested by the resident or legal representative, or is required by law; or

4.Communicates a known false statement.

N.D. Admin. Code 75-03-25-12 Legal counsel

Legal counsel shall be provided to any ombudsman against whom suit or other legal action is brought or threatened to be brought in connection with the performance of official ombudsman duties.

N.D. Admin. Code 75-03-25-13 Retaliation prohibited

A long-term care facility, and its agents, may not take or threaten retaliatory action against a long-term care resident, an employee, or any other individual because of the filing of a complaint by or on behalf of the long-term care resident, or because of the provision of information to a long-term care ombudsman constituting or relating to a complaint. Examples of retaliatory actions include:

1.The discharge from or termination of employment;

2.The demotion, negative work performance evaluation, reduction of hours worked, reduction of benefits or work privileges, or reduction in remuneration for services of the employee; or

3.The restriction or prohibition of access by the employee to any place of employment or to individuals affiliated with the place of employment.

History

• Law Implemented: NDCC 50-10.1-03(8), 50-10.1-05

N.D. Admin. Code 75-03-25-14 Resident's right to notice

The long-term care facility shall post, in a conspicuous place in each long-term care facility, information about the ombudsman program, how to file a complaint concerning administrative actions which affect any long-term care resident, and the address where a complaint may be filed. The long-term care facility shall provide copies of the posted information to each long-term care resident, the long-term care resident's spouse, and any legal representative of a long-term care resident at the time the long-term care resident is admitted to the long-term care facility.

History

• Law Implemented: NDCC 50-10.1-03(8), 50-10.1-05

N.D. Admin. Code 75-03-25-15 Statewide uniform reporting system

1.The department shall establish a statewide uniform reporting system to collect and analyze information on complaints and conditions in long-term care facilities.

2.The department shall conduct the following actions through the statewide uniform reporting system:

a.Maintain and publicize the availability of a statewide toll-free telephone number for the reporting of complaints regarding long-term care issues;

b.Coordinate the receipt, investigation, referral, and resolution of complaints;

c.Maintain statistical information;

d.Compile and mail a statistical report to other agencies as required;

e.Gather and disseminate information regarding issues facing long-term care facilities;

f.Assist in the development of administrative and legislative proposals for improving the quality of life and care of a long-term care resident of a long-term care facility; and

g.File an annual report that includes a summary of cases, information and referral requests, and long-term care issues.

3.No information maintained in the statewide uniform reporting system shall be disclosed for the

purpose of rating or comparing services provided by individual long-term care facilities.

History

• Law Implemented: NDCC 50-10.1-03(8), 50-10.1-06

Chapter 75-03-26 Aging Services Community Programs under the Older Americans Act [Repealed]

N.D. Admin. Code 75-03-26 Aging Services Community Programs under the Older Americans Act [Repealed]

CHAPTER 75-03-26

AGING SERVICES COMMUNITY PROGRAMS UNDER THE OLDER AMERICANS ACT [Repealed effective September 27, 2005]

Repealed under North Dakota Century Code section 28-32-18.1 on the grounds that the chapter is obsolete.

Chapter 75-03-27 [Reserved]

N.D. Admin. Code 75-03-27 [Reserved]

CHAPTER 75-03-27 [Reserved]

Chapter 75-03-28 [Reserved]

N.D. Admin. Code 75-03-28 [Reserved]

CHAPTER 75-03-28 [Reserved]

Chapter 75-03-29 [Reserved]

N.D. Admin. Code 75-03-29 [Reserved]

CHAPTER 75-03-29 [Reserved]

Chapter 75-03-30 [Reserved]

N.D. Admin. Code 75-03-30 [Reserved]

CHAPTER 75-03-30 [Reserved]

Chapter 75-03-31 [Reserved]

N.D. Admin. Code 75-03-31 [Reserved]

CHAPTER 75-03-31 [Reserved]

Chapter 75-03-32 Mill Levy [Repealed]

N.D. Admin. Code 75-03-32 Mill Levy [Repealed]

CHAPTER 75-03-32

MILL LEVY [Repealed effective October 1, 2005]

Determined repealed by the office of the Legislative Council under North Dakota Century Code Section 28-32-06 because the authority for adoption of the rules is transferred to another agency by S.L. 2005, ch. 578.

Chapter 75-03-33 Intergovernmental Transfer Program

N.D. Admin. Code 75-03-33-01 Definitions

1."Advisory committee" means a committee established by the department to review loan applications.

2."Alternative to nursing facility care" means services described in the department's home and community-based service waiver for aged and disabled individuals eligible for medical assistance.

3."Assisted living facility" has the meaning provided in North Dakota Century Code section 50-24.5-01.

4."Basic care facility" has the meaning provided in North Dakota Century Code section 23-09.3-01.

5."Department" means the North Dakota department of human services.

6."Entity" means a corporation, unincorporated association, business, trust, estate, partnership, state, or two or more individuals having a joint or common economic interest.

7."Individual eligible for assistance" means an individual who meets the qualifying criteria for participation in programs funded by the department, including the medical assistance program, Medicaid waiver for the aged and disabled, service payments for the elderly and disabled, expanded service payments for the elderly and disabled, and the basic care assistance program.

8."Medical assistance" means a program established under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] and North Dakota Century Code chapter 50-24.1.

9."Nursing facility" has the same meaning as provided in North Dakota Century Code section 50-24.4-01 for the term "nursing home".

10."Project" means a plan or proposal to renovate a nursing facility, basic care facility, or assisted living facility.

11."Qualified service provider" means a human service zone or independent contractor who has met standards for services and operations established by the department.

12."Reasonable cost" means the cost that must be incurred by an efficiently and economically operated facility to provide services in conformity with applicable state and federal laws, regulations, and quality and safety standards. Reasonable cost takes into account that the entity seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or services.

13."Related organization" means a close relative or individual or an organization which an entity is, to a significant extent, associated with, affiliated with, able to control, or controlled by, and which furnishes services, facilities, or supplies to the entity. Control exists when an individual or an organization has the power, directly or indirectly, to significantly influence or direct the policies of an organization or entity.

14."Renovate" means to restore to an earlier condition as by repairing or remodeling.

15."Unit" means a residential living space for one or more individuals within an assisted living facility.

History

• Law Implemented: NDCC 50-30-01

N.D. Admin. Code 75-03-33-02 General

Repealed effective July 1, 2001.

N.D. Admin. Code 75-03-33-03 Application approval process

1.At least annually, the department shall request applications from nursing facilities, basic care facilities, and assisted living facilities for loans for renovation projects. The department shall establish a calendar for receiving and evaluating proposals. Applicants shall submit documents outlined in the request for applications by the dates indicated by the calendar.

2.For each stage of the application process, the advisory committee shall review the documents submitted by the applicants and make a recommendation to the department regarding the proposed projects.

3.The Bank of North Dakota shall review all loan applications prior to final approval by the department. The Bank of North Dakota may request any financial information it deems necessary for its review of a loan application.

History

• Law Implemented: NDCC 50-30-04, 50-30-05

N.D. Admin. Code 75-03-33-04 Eligible applicants

The department may approve loans to the following entities renovating an existing nursing facility, basic care facility, or assisted living facility:

1.A nursing facility located in North Dakota which is enrolled, as of the date of the application, as a provider under the medical assistance program;

2.An entity enrolled, as of the date of the application, as a basic care provider in North Dakota; or

3.An entity registered, as of the date of application, as an assisted living facility in North Dakota.

N.D. Admin. Code 75-03-33-05 Loans

1.Subject to limitations in this chapter, the department may approve loans for costs related to the renovation of a nursing facility, basic care facility, or assisted living facility.

2.The interest rate for loans distributed from the long-term care facility loan fund is two percent of the outstanding principal balance of the loan.

3.The department shall approve loans to the extent funds are available based on the criteria set forth in this chapter. The department's denial of an application for a loan does not preclude an entity from making future applications.

4.Effective July 1, 2001, projects converting nursing facility bed capacity to basic care bed capacity shall be given preference for a loan.

5.The department shall not approve loans to renovate an assisted living facility unless the facility can demonstrate that accommodations or housing costs are affordable to individuals eligible for assistance.

6.Loan funds may not be awarded for costs that are payable through other state, local, or federal programs.

7.Loan funds may not be awarded to refinance debt.

8.Loan funds may not be awarded for new construction whether attached or detached from an existing building.

N.D. Admin. Code 75-03-33-06 Limits

1.To be eligible for a loan to renovate a nursing facility, basic care facility, or assisted living facility, an entity shall provide at least ten percent of the total cost of renovation. Loan funds available for renovation are limited to the lesser of one million dollars or ninety percent of the actual cost of renovation.

2.Grant funds are payable upon receipt of a claim or submission of a cost report identifying expenses incurred. An entity shall request grant funds within six months after incurring the cost, except when requesting grant funds for operating losses. Grant funds awarded for operating losses are payable on a quarterly or yearly basis upon submission of a cost report.

If reimbursement is requested on a quarterly basis, the amount reimbursed for the first three quarters may not exceed ninety percent of the total amount of the grant awarded for the first-year operating loss. A final cost report must be filed no later than eighteen months following the start of operation for final reimbursement. Grant funds reimbursed in excess of the allowable first-year operating loss must be refunded to the department within thirty days of notification by the department to the entity. In addition to other remedies provided by law, the department may deduct the amount of any refund due from an entity from any money owed by the department to the entity or the entity's successor in interest.

3.The department may not pay grant funds or approve loans for costs incurred by an entity for services or items furnished by a related organization that exceed the lower of:

a.The cost to the related organization;

b.The amount charged the entity by the related organization; or

c.The price of comparable services, facilities, or supplies purchased elsewhere primarily in the local market.

N.D. Admin. Code 75-03-33-07 Participation requirements

1.The department may not disburse grant funds if the entity discontinues services on or before the date the entity submits a claim requesting payment.

2.The entity shall expend grant or loan funds for costs that are directly attributable to the project, in accordance with the application approved by the department.

3.The entity shall separately identify related party costs included in any amounts requested from the department.

4.The entity may not give preferential treatment to individuals who are not eligible for assistance over individuals eligible for assistance when determining admission or to whom services will be provided.

5.An entity accepting loan or grant funds to develop a particular service must enroll or have a provider agreement with the department to provide those services.

6.The entity shall make available a minimum of thirty percent of licensed capacity or units constructed, renovated, or converted, to individuals eligible for assistance, except when the entity can demonstrate that the minimum occupancy cannot be met because of a lack of individuals eligible for assistance requiring accommodations.

7.The entity shall comply with all applicable rules, regulations, policies, or procedures established by the department pertaining to the department's assistance programs from which the entity is receiving payment.

8.The entity shall comply with all local, state, and national laws and regulations pertaining to construction.

9.The entity shall be responsible for all incidental costs related to project completion.

10.The entity shall refund to the North Dakota health care trust fund any grant awarded for construction, renovation, or conversion if the entity or its successor in interest ceases to operate a basic care facility, assisted living facility, or facility providing other alternatives to nursing facility care or does not meet the minimum occupancy requirements during the ten-year period following the date grant funds were awarded. The amount of the grant to be refunded shall be reduced by ten percent per year for each year the entity operated a basic care facility, assisted living facility, or provided other alternatives to nursing facility care.

11.All loans become immediately due and payable if the entity or its successor in interest ceases to operate a nursing facility, basic care facility, assisted living facility, orprovide other alternatives to nursing facility care or does not meet the minimum occupancy requirements during the ten-year period following the date the loan was awarded.

12.In addition to other remedies provided by law, the department may deduct the amount of any refund due from an entity from any money owed by the department to the entity or the entity's successor in interest.

History

• Law Implemented: NDCC 50-30-03, 50-30-04

N.D. Admin. Code 75-03-33-08 Startup costs

Grant awards for startup costs are limited to approved applications submitted prior to July 1, 2001.

1.Startup costs are those costs incurred by an entity prior to providing services and while developing the ability to provide services. Startup costs generally include the costs of obtaining staff, training and education, and other operating costs incurred while developing the ability to provide services. Startup costs must be reasonable, necessary, and related to assisted living, basic care, or other alternative to nursing facility care.

2.An entity awarded a grant for startup costs must request payment of grant funds no later than six months following the date the entity begins providing services.

N.D. Admin. Code 75-03-33-09 Operating loss

Grant awards for operating losses are limited to approved applications submitted prior to July 1, 2001.

1.First-year operating losses are operating losses incurred by an entity after July 1, 1999, for the first twelve months of operation following the date an entity begins providing basic care services, assisted living services, or other alternative to nursing facility care. Grants for operating losses shall not exceed the difference between expenses and revenues related to providing the services.

2.Operating expenses shall include only necessary, reasonable, and actual expenses related to the project and incurred while providing services.

3.Operating expenses shall not include costs that are not appropriate, necessary, or proper for the development or operation of the project. These costs include personal expenses of the owners or employees, good will, donations, startup costs, political contributions, fines or penalties, bad debt, fundraising costs, loss contingencies, or extraordinary losses.

4.Principal and interest rather than depreciation and interest shall be used when determining the operating loss.

5.Operating revenue shall include all revenue received for providing services, but does not include donation income.

6.An entity awarded a grant for operating losses may request payment of grant funds on a quarterly or yearly basis by submitting a cost report on forms prescribed by the department.

The entity shall submit a final cost report no later than eighteen months following the start of operation.

N.D. Admin. Code 75-03-33-10 Records and reporting

1.An entity that receives loan funds shall annually submit to the department cost reports, on forms prescribed by the department, for a period of ten years following the datethe entity closes the loan.

2.When services are provided in a facility sharing services with a licensed nursing facility or basic care facility, the allocation methods set forth in chapter 75-02-06 or 75-02-07 shall apply.

3.The entity shall maintain, for a period of not less than three years following the date of submission of the cost report to the department, accurate financial and statistical records of the period covered by the cost report in sufficient detail to substantiate the cost data reported.

The entity shall make such records available to the department upon demand.

4.The entity shall maintain complete and separate records regarding loan and grant expenditures.

5.The entity shall maintain occupancy or use statistics that separately identify individuals who are not eligible for assistance from individuals eligible for assistance.

6.The entity shall request payment of grant funds on forms prescribed by the department.

History

• Law Implemented: NDCC 50-30-07

N.D. Admin. Code 75-03-33-11 Nursing facility licensed bed capacity reduction incentive payments

The department shall make an incentive payment, to the extent funds are available, to a nursing facility that offers to delicense beds based on criteria set forth in this chapter.

1.The department may pay an incentive:

a.Up to fifteen thousand dollars per licensed nursing facility bed to a nursing facility that reduces all of its licensed bed capacity;

b.Up to twelve thousand dollars per licensed nursing facility bed to a nursing facility that reduces its licensed nursing facility bed capacity by at least eight beds; or

c.Up to eight thousand dollars per licensed nursing facility bed to a nursing facility that reduces its licensed nursing facility capacity by seven or fewer beds.

2.The department shall give priority for payment of incentives to facilities offering to reduce their entire licensed bed capacity. If offers exceed funds available, the department shall make a counteroffer to each facility.

3.If, after payment of incentives under subsection 2, funds are available, the department shall make incentive payments to facilities offering to delicense a portion of their licensed bed capacity. If offers exceed funds available, the department shall give priority to the lowest per bed offer. The department may have facilities resubmit offers if there are two or more offers for the same per bed amount.

4.The department shall request offers on a quarterly basis from nursing facilities to delicense nursing facility bed capacity to the extent funds are available.

5.To be eligible for an incentive payment, a nursing facility's offer to reduce bed capacity must be received by the department by the first day of the quarter for which incentives shall be approved. The effective date of all bed delicensing may not be later than the last day of the quarter following the quarter for which the incentive shall be approved.

6.Incentive payments may only be made for the delicensing of nursing facility bed capacity that is Medicaid-certified.

7.The department shall not pay incentives to nursing facilities for nursing facility beds that were delicensed prior to the first day of the quarter for which incentives shall be approved.

8.Incentive payments may not be paid until after the effective date of the reduction in licensed capacity.

9.An incentive may not be paid for nursing facility licensed bed capacity that is converted to basic care bed capacity.

10.No later than the first day of the second month of a quarter, the department shall inform all facilities that have submitted an offer by the first day of the quarter of the department's approval or disapproval of the offer.

11.The department's denial of an offer does not preclude a nursing facility from making future offers.

History

• History: Effective July 1, 2001.
• Law Implemented: NDCC 50-30-07

Chapter 75-03-34 Licensing of Assisted Living Facilities

N.D. Admin. Code 75-03-34-01 Definitions

1."Assisted living facility" means a building or structure containing a series of at least five living units operated as one entity to provide services for five or more individuals who are not related by blood, marriage, or guardianship to the owner or manager of the entity and which is kept, used, maintained, advertised, or held out to the public as a place that provides or coordinates individualized support services to accommodate the individual's needs and abilities to maintain as much independence as possible. An assisted living facility does not include a facility that is a congregate housing facility, licensed as a basic care facility, or licensed under North Dakota Century Code chapter 23-16 or 25-16 or section 50-11-01.4.

2."Department" means the North Dakota department of human services.

3."Entity" means an individual, institution, organization, limited liability company, or corporation, whether or not organized for profit.

4."Individualized support services" means services provided to individuals who may require assistance with the activities of daily living of bathing, dressing, toileting, transferring, eating, medication management, and personal hygiene.

5."Living unit" means a portion of an assisted living facility that contains a sleeping area, an entry door that can be locked, and a private bath with a toilet, bathtub or shower, and sink and which is occupied as the living quarters of an individual who has entered into a lease agreement with the assisted living facility.

6."Medication management" means providing assistance to an assisted living facility tenant with prescribed medications.

7."Related by blood or marriage to the owner or manager" means an individual who is a spouse or former spouse of the owner or manager or is a parent, stepparent, grandparent, stepgrandparent, child, stepchild, grandchild, stepgrandchild, brother, sister, half-brother, half-sister, stepbrother, or stepsister of the owner or manager or the owner or manager's spouse or former spouse.

History

• History: Effective January 1, 2002; amended effective March 1, 2004; July 1, 2006.
• Law Implemented: NDCC 50-32-01

N.D. Admin. Code 75-03-34-02 Licensing

1.An assisted living facility shall apply to the department for a license in the form and manner prescribed by the department. The department shall notify a licensed assisted living facility of the need to renew its license at least sixty days prior to expiration of that license. The notice must include the form required to renew a license.

2.An application for a license is not complete until the applying assisted living facility submits all required information and verification to the department.

3.The department shall approve or deny an application for a license within thirty days of the department's receipt of complete application materials from an assisted living facility.

4.In order to receive and maintain a license, an assisted living facility shall:

a.Pay a licensing fee of seventy-five dollars to the department annually. The licensing fee shall not be prorated nor is any part refundable;

b.Maintain a written agreement with each tenant that includes the rates for rent and services provided to the tenant, payment terms, refund policies, rate changes, tenancy criteria, and living unit inspections;

c.Provide each tenant with written notice of how a tenant may report a complaint regarding the assisted living facility, which includes the telephone number of the department's senior info-line and the address of the aging services division of the department; and

d.Certify that operation of its facility is in compliance with all applicable federal, state, and local laws and, upon request, make available to the department copies of current certifications, licenses, permits, and other similar documents evidencing compliance with such laws.

5.A license is valid for the calendar year in which it is issued. A license is not subject to sale, assignment, or other transfer, voluntary or involuntary. A license is not valid for any premises or entity other than those for which it was originally issued.

6.An assisted living facility must submit to the department a complete application and materials for license renewal at least thirty days before the expiration of the current license. An assisted living facility is subject to the same requirements and has the same responsibility to furnish information for a renewal of its license as it did during its initial application.

7.An assisted living facility shall display its license in a conspicuous place on its premises.

8.No more than two people may occupy one bedroom of each living unit of an assisted living facility.

History

• History: Effective January 1, 2002; amended effective March 1, 2004; July 1, 2006; October 1, 2022.

N.D. Admin. Code 75-03-34-03 Revocation of license

1.The department may deny or revoke an assisted living facility's license if:

a.The application for a license or renewal of a license or supporting documents contain fraudulent or untrue representations or if the license was otherwise issued based upon bribery or fraudulent or untrue representations;

b.The assisted living facility is in violation of this chapter or is unwilling or unable to conform to the requirements of this chapter;

c.The assisted living facility, or the premises proposed for the assisted living facility, is not or will not be maintained according to this chapter;

d.The assisted living facility is denied any license necessary under federal, state, or local law or such license has been revoked;

e.The assisted living facility refuses to allow the department access to any material or information necessary to determine compliance with licensing requirements; or

f.The assisted living facility demonstrates a pattern of failing to abide by the terms of its contract with tenants.

2.Except when conditions exist that present imminent danger to assisted living facility tenants, the effective date of a revocation of a license shall be thirty days from the date the department provides written notification to the assisted living facility of the department's decision to revoke the license.

3.The revocation notice to the assisted living facility must include the basis of the department's decision, the effective date of the revocation, and information regarding the assisted living facility's right to request reconsideration by the department.

4.The assisted living facility must notify all tenants and third-party payers of the department's revocation of its license within fifteen days from the date of the final revocation notice.

History

• History: Effective January 1, 2002; amended effective March 1, 2004.

N.D. Admin. Code 75-03-34-04 Complaints

1.The department shall receive complaints made by, or on behalf of, assisted living facility tenants. The department shall forward complaints regarding assisted living facilities to the appropriate agency, entity, or program for investigation.

2.The department shall request the agency to which complaints are referred to report its findings and disposition of the complaint to the department.

History

• History: Effective January 1, 2002.

N.D. Admin. Code 75-03-34-05 Enforcement

1.The department shall provide written notice of the need for a license to any individual, institution, organization, limited liability company, or public or private corporation that provides assisted living services or uses the term assisted living in its marketing which does not have a license issued by the department.

2.Sixty days after the written notification of noncompliance with annual licensing, the department may assess a fine of up to fifty dollars per day against any individual, institution, organization, limited liability company, or public or private corporation that provides assisted living services or uses the term assisted living in its marketing without a license issued by the department.

History

• History: Effective January 1, 2002; amended effective March 1, 2004.

Chapter 75-03-35 Provision of Medical Food and Low-Protein Modified Food Products to Individuals with Phenylketonuria and Maple Syrup Urine Disease

N.D. Admin. Code 75-03-35-01 Definitions

For purposes of this chapter:

1."At cost" means the actual cost of the medical food plus vendor shipping and handling charges and postage costs incurred by the department.

2."Department" means the North Dakota department of human services.

3."Government program" includes North Dakota Medicaid, healthy steps, children's health insurance plan, and women, infants, and children nutrition program.

4."Low-protein modified food product" means a food product that is specially formulated to have less than one gram of protein per serving and is intended to be used under the direction of a physician for the dietary treatment of a metabolic disease. The term does not include a food that is naturally low in protein.

5."Maple syrup urine disease" means an inborn error of metabolism, referred to as MSUD.

6."Medicaid" means a program implemented pursuant to North Dakota Century Code chapter 50-24.1 and 42 U.S.C. 1396 et seq. to furnish medical assistance, as defined in 42 U.S.C. 1396(d)(a), to persons determined to be eligible.

7."Medical food" means a food that is intended for the dietary treatment of a disease or condition for which nutritional requirements are established by medical evaluation and is formulated to be consumed or administered under the direction of a physician.

8."Medically necessary" means use of low-protein modified food products for the treatment of phenylketonuria or maple syrup urine disease, which is recommended based on standards of accepted medical practice.

9."Phenylketonuria" means an inborn error of metabolism, referred to as PKU.

10."Qualified health care provider" means a physician who is licensed to practice medicine, a multidisciplinary metabolic clinic team, or a licensed, registered dietitian.

11."Resident" means an individual with phenylketonuria or maple syrup urine disease who lives within the state of North Dakota with the intent to make it a fixed and permanent abode and manifests the genuineness of that intent by establishing an ongoing physical presence within the state with indicia that such presence is something other than merely transitory in nature.

12."Treatment services" means provision of medical food and low-protein modified food products.

History

• Law Implemented: NDCC 25-17-00.1, 25-17-03

N.D. Admin. Code 75-03-35-02 Provision of medical food at no cost

1.The department shall provide medical food at no cost to males under age twenty-two and females under age forty-five who are diagnosed with phenylketonuria or maple syrup urine disease, regardless of income.

2.The department shall provide medical food only to an individual who is a resident of North Dakota.

3.If an individual meets the requirements of this chapter, the department shall provide to the individual an initial supply of medical food. Within thirty days of the initial request to the department for medical food, an individual or the parent or legal guardian of a minor must submit the following information to the department before additional medical food will be provided:

a.The diagnosis of a qualifying condition; the name, address, and telephone number of the individual's physician, metabolic clinic team, or dietitian who has recommended use of the medical food; and written consent of the individual requesting medical food authorizing the physician, metabolic clinic team, or dietitian who has recommended use of the medical food to verify to the department in writing the diagnosis and recommended treatment; or

b.Documentation from a physician that confirms the diagnosis of phenylketonuria or maple

N.D. Admin. Code 75-03-35-03 Sale of medical food at cost

1.The department shall offer for sale at cost medical food to males age twenty-two and over and females age forty-five and over who are diagnosed with phenylketonuria or maple syrup urine disease, regardless of income. The individual requesting medical food at cost must make payment to the department prior to delivery.

2.The department shall sell medical food at cost only to an individual who is a resident of North Dakota.

3.If an individual meets the requirements of this chapter, the department shall sell at cost to the individual an initial supply of medical food. Within thirty days of an initial request, an individual requesting medical food at cost must submit to the department the following before additional orders will be filled:

a.The diagnosis of a qualifying condition; the name, address, and telephone number of the physician, metabolic clinic team, or dietitian who has recommended use of the medical food; and written consent authorizing the physician, metabolic clinic team, or dietitian who has recommended use of the medical food to verify to the department in writing the diagnosis and recommended treatment; or

b.Documentation from a physician that confirms the diagnosis of phenylketonuria or maple

N.D. Admin. Code 75-03-35-04 Provision of low-protein modified food products

1.The department shall provide low-protein modified food products, if medically necessary as determined by a qualified health care provider, to males under age twenty-two and females under age forty-five who are eligible to receive Medicaid benefits and are diagnosed with phenylketonuria or maple syrup urine disease.

2.An individual requesting low-protein modified food products must be eligible for Medicaid benefits at the time of the request and must be a resident of North Dakota.

3.If an individual meets the requirements of this chapter, the department shall provide to the individual an initial supply of low-protein modified food products. Within thirty days of the initial request for low-protein modified food products, an individual or the parents or legal guardian of a minor must submit the following information to the department before additional orders will be filled:

a.The diagnosis of a qualifying condition; the name, address, and telephone number of the physician, metabolic clinic team, or dietitian who has recommended use of the low-protein modified food products, and written consent authorizing the physician, metabolic clinic team, or dietitian who has recommended use of the low-protein modified food products to verify to the department in writing the diagnosis and recommended treatment; or

b.Documentation from a physician that confirms the diagnosis of phenylketonuria or maple

4.The department may seek reimbursement from government programs for the cost of medical food and low-protein modified food products that are provided for individuals covered by those programs. The department shall encourage an individual who qualifies for the women, infants, and children nutrition program to enroll for access to medical food through that program.

N.D. Admin. Code 75-03-35-05 Collaboration with state department of health

The department shall collaborate with the state department of health to implement the medical food program described in this chapter. The department may request information from and provide information to the state department of health regarding individuals with positive screening results for metabolic diseases. The department shall treat such information as confidential as required by law.

Chapter 75-03-36 Licensing of Child-Placing Agencies

N.D. Admin. Code 75-03-36-01 Definitions

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 50-12. In addition, as used in this chapter:

1."Adoption dissolution" means a termination of parental rights of an adoptive parent after finalization of the same adoption.

2."Adoption placement" means the formal date on which a child, who is legally free for adoption, is placed for the purpose of adoption.

3."Adoption placement disruption" means an interruption of an adoption after formal placement and prior to finalization in which the child is returned to foster care or placed with another family.

4."Client" means a child, birth parent, foster care provider, adoptive parent, or adopted individual.

5."Department" means the North Dakota department of health and human services.

6."Foster care provider" means an individual living in a private dwelling who maintains a license, certification, or approval from the department to provide family foster care to children in need of temporary safety services when placed out of the home.

7."Legal risk adoptive placement" means placement of a child with a prospective adoptive family when the child is not legally free for adoption.

8."Life book" means a tool used with children in out-of-home care and children who have been adopted to record memories and life events.

9."Nonemployee" means an individual who is not compensated by the child-placing agency, such as a volunteer or student intern providing specific services under the supervision of an employee.

10."Permanent adoption record" means all paper or electronic records, and identifying and nonidentifying information related to an adopted individual, birth siblings, birth parents, or adoptive parents which pertains to an adoption.

11."Resident child-placing agency" means a child-placing agency that maintains an office within this state.

History

• History: Effective April 1, 2010; amended effective April 1, 2016; July 1, 2020; April 1, 2024.
• General Authority: NDCC 50-06-01.4, 50-11-03, 50-12-05
• Law Implemented: NDCC 50-06-01.4, 50-11-00.1, 50-12-02

N.D. Admin. Code 75-03-36-02 Child-placing agency license

1.Application for a child-placing agency license must be made on an application form provided by the department.

2.At the initial application, the applicant shall submit a written purpose and policy statement for the general operation and management of the child-placing agency. The statement must

a.The purpose of the child-placing agency, the geographic area the agency expects to serve, the ages of children to be placed, and any other specific factors regarding the children to be placed or the homes in which the children will be placed;

b.A written placement policy, including parental agreement forms, and a description of the legal procedures which will be used to obtain the authority to place the child; and

c.A written statement of the fees that will be charged for each service.

3.Upon receipt of the application for license or renewal of license, the department shall conduct a licensing study or a license review to determine if the applicant meets all applicable requirements for licensure.

4.After completion of a licensing study, the department shall issue a license to any applicant that meets all requirements for licensure.

5.The department shall renew the license on the expiration date of the previous year's license if:

a.The licensed child-placing agency makes written application for renewal prior to the expiration date of its current license;

b.The licensed child-placing agency continues to meet all requirements for licensure at the time of the relicensing study; and

c.The licensed child-placing agency submits a copy of its yearly budget of expenditures.

6.If the department determines that an application or accompanying information is incomplete or erroneous, the department shall notify the applicant of the specific deficiencies or errors, and the applicant shall submit the required or corrected information. The department may not issue or renew a license until it receives all required or corrected information.

7.The licensure requirements of this chapter do not apply to human service zones nor does this

chapter apply to child-placing activities undertaken by human service zones.

History

• History: Effective April 1, 2010; amended effective October 1, 2024.
• Law Implemented: NDCC 50-12

N.D. Admin. Code 75-03-36-03 License denial or revocation

1.A child-placing agency license may be denied or revoked under the terms and conditions of North Dakota Century Code chapter 50-12 or by failing to meet the minimum requirements of this chapter.

2.If the department decides to deny or revoke a license, the department shall notify the childplacing agency in writing of its decision and the reasons for denial or revocation, including:

a.The applicant or the licensee is not in compliance with all licensure requirements; or

b.The applicant or the licensee has made a material misrepresentation to the department regarding its operations.

3.If an action to revoke a license is appealed, the licensee may continue the operation of the child-placing agency pending the final administrative determination or until the license expires, whichever occurs first; provided, however, that this subsection does not limit the actions the department may take pursuant to North Dakota Century Code section 50-12-11.

History

• History: Effective April 1, 2010; amended effective April 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-12-10, 50-12-11, 50-12-12

N.D. Admin. Code 75-03-36-04 Suspension or correction

1.The department may require immediate suspension of a child-placing agency license.

a.A child-placing agency may submit a written request for review to the department if its license is suspended. The written request must include a statement of the disputed facts and the name, address, and telephone number of the individual to be contacted regarding the review.

b.The request for review must be received by the department within five working days after the child-placing agency receives written notice of the suspension. The child-placing agency may submit supporting documents or affidavits for the department to consider during its review.

c.The department shall complete its review of the files, records, and other information received from the child-placing agency and issue its decision within thirty days after the department receives the child-placing agency's request for review.

d.The department's decision constitutes the final determination of the suspension. If the department concludes that the child-placing agency made a false or misleading report to the department, the department will issue a notice of revocation of the child-placing agency's license.

2.The department may require immediate correction of a violation of North Dakota Century Code chapter 50-11 or this chapter. The child-placing agency has twenty days to correct any violations. All time periods under this section commence on the third day after the department mails notice of the correction order to the child-placing agency. Upon written request by the child-placing agency and upon showing need for an extension created by circumstances beyond the control of the child-placing agency and documentation that the child-placing agency has diligently pursued correction of the violation, the department may grant extensions of time to correct violations.

3.The department may inform the public of a child-placing agency correction order or suspension status.

History

• Law Implemented: NDCC 50-12-11

N.D. Admin. Code 75-03-36-05 Resident child-placing agency office requirements

A resident child-placing agency shall maintain a physical office within the state, including an in-state mailing address and an in-state telephone number. The resident child-placing agency must ensure that at minimum the child placement coordinator maintains an onsite in-state presence, unless otherwise approved by the department.

History

• Law Implemented: NDCC 50-12-02.1

N.D. Admin. Code 75-03-36-06 Governance

1.Each child-placing agency shall have a governing body responsible for the overall operations, policies, activities, and practice of the child-placing agency. The governing body shall:

a.Define a mission statement.

b.Define services provided by the child-placing agency and clearly state which services are provided directly by the child-placing agency and which services are provided in collaboration with a referral source or other appropriate agencies.

c.Define the volume of clients, including children placed, birth parents, foster care providers, or prospective adoptive parents the child-placing agency serves each year. A child-placing agency shall serve no fewer than twenty-five clients per year and place no fewer than five children per year, unless the child-placing agency was licensed prior to April 1, 2024, and otherwise approved by the department.

d.Approve developed policies for child-placing agency operations in compliance with law, administrative rule, and policy as defined by the department, inclusive of administration, program, personnel policy, and procedure to address nondiscrimination. Personnel policies must include recruitment and retention of employees to operate the child-placing agency and expectations of employees and nonemployees, detail job descriptions for each position, and ensure a process to review policies and procedures with employee participation at least every five years.

e.Guide the child-placing agency's development and provide leadership.

f.Be composed of at least three members; a list of the names and contact information of members of the governing body must be maintained and submitted to the department during each licensing period. Each board member shall annually disclose conflicts of interest. Members of the board may not be family or have conflicts of interest with the child-placing agency administrator or employees with budget or accounting duties.

g.Meet at least every six months.

h.Maintain records of the governing body's meetings.

i.Develop and review policies for board member selection and rotation.

j.Ensure that the child-placing agency is funded, housed, staffed, and equipped in a manner required for the provision of services.

k.Employ a qualified administrator and delegate responsibility to that administrator for the administration of the child-placing agency.

l.Evaluate the performance of the administrator at least annually.

m.Approve the child-placing agency's annual budget of anticipated income and expenditures necessary to provide services described in the child-placing agency's statement of purpose.

n.Provide the most recent fiscal year-end financial records to the department, upon request.

o.Ensure that the child-placing agency prepares an annual budget based on the assessment of child-placing agency program priorities and a realistic appraisal of anticipated funding, including reimbursement for services.

p.Ensure the child-placing agency submits a copy of its budget to the department with a cost breakdown of budget items utilized to determine fees for services.

q.If the child-placing agency increases fees for adoption services, ensure the child-placing agency submits justification of the cost increase to the department before charging an increased rate.

r.Receive an initial orientation from the administrator to inform new board members of the child-placing agency's goals, programs, and methods of operation.

s.Ensure the child-placing agency employs or retains legal representation to represent the child-placing agency in legal matters and to ensure prompt resolution of legal questions for children in the legal custody of the child-placing agency.

2.The child-placing agency shall have sufficient liability insurance to protect itself, employees, and children entrusted to its care from serious financial jeopardy.

History

• Law Implemented: NDCC 50-12-02

N.D. Admin. Code 75-03-36-07 Administrator

1.The governing body of the child-placing agency shall designate an administrator and shall clearly define, in writing, the responsibilities of the administrator.

2.The administrator shall:

a.Plan and coordinate with the governing body approval of new policies and procedures related to personnel, program, and administrative operations and shall maintain the policies and procedures required by this chapter.

b.Ensure that the governing body is kept informed of matters affecting the child-placing agency's finances, operation, and provision of services.

c.Ensure employment of qualified employees.

d.Ensure that the child-placing agency and its services are made known to the community.

e.Maintain a current organizational chart showing the child-placing agency's lines of accountability and authority.

f.Maintain a records retention policy that ensures adoption files are maintained permanently and adoption files which do not result in an adoption, adoption search files, and foster care files are retained according to child-placing agency retention schedule.

3.The child-placing agency, under the administrator's direction, shall maintain a record for each client. The client's record must be kept current from the point of intake to termination of service and must contain information relevant to the provision of services.

4.The child-placing agency administrator shall ensure adequate supervision is provided to all employees and nonemployees working at the child-placing agency.

History

• History: Effective April 1, 2010; amended effective January 1, 2012; April 1, 2024.
• Law Implemented: NDCC 50-12-02

N.D. Admin. Code 75-03-36-08 Financial structure

N.D. Admin. Code 75-03-36-09 Personnel files

1.The child-placing agency shall maintain an individual file for each employee. The file must

a.Inventory detailing first and last date of employment, reason employment ended, training totals per year, and performance evaluation dates.

b.The application for employment, including a record of previous employment.

c.Documentation of information obtained from an employee's references, if applicable.

d.Verification of any required license or qualification necessary for the position assigned to the employee.

e.A job description specifying the employee's role and responsibilities.

f.A statement signed by the employee acknowledging the confidentiality policy.

g.Annual performance evaluations. hOrientation and training records.

i.Evidence of the employee having read and received a copy of the law and child-placing agency procedures requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, initially upon hire and annually thereafter.

j.Results of a fingerprint-based criminal history record check and child abuse and neglect record.

2.The child-placing agency shall maintain an individual file for each nonemployee. The file must

a.Personal identification information.

b.Results of fingerprint-based criminal background checks and child abuse or neglect record.

c.Description of duties.

d.Orientation and training records.

e.Evidence of the nonemployee having read and received a copy of the law and facility procedures requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, initially upon placement and annually thereafter.

f.A statement signed by the nonemployee acknowledging the confidentiality policy.

3.The child-placing agency shall adopt a policy regarding the retention of employee and nonemployee files.

History

• Law Implemented: NDCC 50-11-05, 50-12-03, 50-12-05

N.D. Admin. Code 75-03-36-10 Employee functions and qualifications

1.The child-placing agency shall employ or contract with service providers to perform necessary child-placing agency functions. Required employees and their qualifications include:

a.Administrator. The administrator shall provide for the general management and administration of the child-placing agency in accordance with the licensing requirements and policies of the child-placing agency's governing body. The administrator must have a bachelor's degree in business or public administration, social work, behavioral science, or a human services field and have a minimum of four years of related professional experience.

b.Supervisor. The supervisor shall supervise, evaluate, and monitor the work progress of the placement employee. The supervisor must have a bachelor's degree in a behavioral science field and must be licensed as required by the field of practice and have a minimum of two years of experience or must have a master's degree in a behavioral science field. The supervisor must be licensed as required by the field of practice.

c.Child placement coordinator. The child placement coordinator shall perform intake services; provide case management for children and families; recruit and assess foster and adoptive homes; and plan and coordinate resources for children and families. The child placement coordinator must have a bachelor's degree in a behavioral science field and must be licensed as required by the field of practice.

2.If the child-placing agency has more than five child placement coordinators employed, the child-placing agency shall employ a supervisor and may not contract with a supervisor.

3.The child-placing agency shall establish a caseload standard. The child placement coordinator caseload must ensure the placement coordinator is able to make all the required contacts with the child, biological parent, foster care provider, and adoptive families; adoption search clients; and collateral parties.

History

• History: Effective April 1, 2010; amended effective January 1, 2012; April 1, 2024.
• Law Implemented: NDCC 50-12-03

N.D. Admin. Code 75-03-36-11 Employee professional development

1.The child-placing agency shall ensure that the supervisor and child placement coordinator receive at least ten hours of training per year with evidence of completion in the employee file.

Activities related to orientation and supervision of the employees and routine tasks are not training activities for the purpose of this requirement.

2.Prior to a new employee working independently, the child-placing agency shall provide orientation training to the employee covering all of the following areas, with evidence of completion present in the employee file:

a.Child-placing agency philosophy and program goals;

b.Administrative procedures, policies, and protocols;

c.Personnel policies;

d.Expected employee conduct with coworkers and clients;

e.Protocol for identifying and reporting child abuse and neglect; and

f.Disaster plan.

History

• Law Implemented: NDCC 50-12-03, 50-12-05

N.D. Admin. Code 75-03-36-12 Employee background checks

N.D. Admin. Code 75-03-36-13 Background checks and criminal conviction - Effect on licensure

1.The department requires an initial fingerprint-based criminal background check for each childplacing agency owner, employee, or nonemployee with direct contact with clients. An initial fingerprint-based criminal background check is also required for each prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home. Subsequent fingerprint-based background checks are not required for an employee, nonemployee, prospective adoptive parent, foster care provider, or any adult household member who maintains continuous employment, licensure, or affiliation with the child-placing agency unless the child-placing agency or the department determines a need exists to conduct a subsequent investigation.

2.The department requires a child abuse and neglect index check as part of the initial fingerprint-based criminal background check. An annual child abuse and neglect index check must be completed and placed in the personnel file for each employee and nonemployee or in the client file for each prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home.

3.A prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home may not be licensed, certified, or approved, or a child-placing agency owner, employee, or nonemployee may not be known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter, or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson;12.1-22-01, robbery, if a class A or B felony under section 2 of that section; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of child or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department determines that the individual has not been sufficiently rehabilitated.

(1)The department will not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions has elapsed.

(2)An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

4.The department has determined that the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on the individual's ability to serve the public in a capacity as an adoptive home placement, a foster care provider, and as an owner, employee, or nonemployee of a child-placing agency.

5.In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C felony; or 12.1-31-07.1, exploitation of an eligible adult - penalty, if a class B or C felony or a class A misdemeanor; or

chapter 19-03.1, Uniform Controlled Substance Act, if a class A, B, or C felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine that the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions. The department may not be compelled to make such determination.

6.The department may deny a request for a criminal background check for any individual who provides false or misleading information about the individual's criminal history.

7.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community;

b.Acknowledged by the individual; or

c.Discovered by the child-placing agency, authorized agent, or department as a result of a background check.

8.The department may request a fingerprint-based criminal background check whenever an owner, employee, or nonemployee of the child-placing agency, a prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home is known to have been involved in, charged with, or convicted of an offense.

9.The department shall review fingerprint-based criminal background check results as follows:

a.If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel.

c.An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

d.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

e.The final decision of the review panel may not be appealed.

10.The child-placing agency shall make an offer of employment to an employee or an offer of placement to a nonemployee conditioned upon the individual's consent to complete required background checks. While awaiting the results of the required background check, the childplacing agency may choose to provide training and orientation to an employee. However, until the completed and approved required background check results are placed in the employee file, the employee may have only supervised interaction with clients.

11.The department may excuse an owner, employee, or nonemployee of a child-placing agency, prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an owner, employee, or nonemployee of a child-placing agency, prospective adoptive parent, foster care provider, or any adult household member living in the prospective adoptive parent or foster care provider's home is excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the individual lived during the eleven years preceding the signed authorization for the background check. 12A child-placing agency shall establish written policies and engage in practices that conform to those policies to effectively implement this section, and North Dakota Century Code sections 50-11.3-02 and 50-12-03.2. 13A child-placing agency shall establish written policies specific to how the child-placing agency will proceed if a current employee or nonemployee is known to have been found guilty of, pled guilty to, or pled no contest to an offense.

History

• History: Effective April 1, 2010; amended effective April 1, 2016; July 1, 2020; April 1, 2024; October 1, 2024.
• General Authority: NDCC 50-11-03, 50-11.3-01, 50-12-05
• Law Implemented: NDCC 50-11-06.8, 50-11.3-01, 50-12-03.2

N.D. Admin. Code 75-03-36-14 Nonemployees

1.A child-placing agency that utilizes nonemployees who work directly with children and families on a regular basis shall:

a.Develop and aprovide description of duties and specified responsibilities;

b.Require personal references, if applicable;

c.Designate an employee to supervise and evaluate nonemployees;

d.Develop a plan for orientation and training of nonemployees which includes education on the legal requirements for confidentiality, training in the philosophy of the child-placing agency, and the needs of children and families served by the child-placing agency;

e.Maintain documentation that the nonemployee has read and received a copy of the law and child-placing agency procedures requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, initially and annually thereafter;

f.Require that a nonemployee sign a statement of confidentiality; and

g.Require each nonemployee to successfully complete a fingerprint-based criminal background check and a child abuse and neglect index check prior to allowing the nonemployee to have unsupervised contact with children.

2.Nonemployees may not be used in the place of full-time paid employees.

History

• History: Effective April 1, 2010; amended effective April 1, 2016; April 1, 2024.
• Law Implemented: NDCC 50-11-05, 50-12-03, 50-12-05

N.D. Admin. Code 75-03-36-15 Student field placements

N.D. Admin. Code 75-03-36-16 Child abuse and neglect

1.The child-placing agency shall follow the mandated procedures for reporting child abuse and neglect as outlined in North Dakota Century Code section 50-25.1-03. Upon hire and annually thereafter, all employees and nonemployees shall certify having read the law requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, and having read and received a copy of the child-placing agency's written child abuse and neglect procedures. All employees and nonemployees are required to report suspected child abuse and neglect.

2.The child-placing agency shall develop policy for handling any suspected incidents of child abuse or neglect involving a child-placing agency employee, nonemployee, foster care provider, prospective foster care provider, adult household member, or prospective adoptive parent. These procedures must include:

a.A provision that ensures any individual having knowledge of or reasonable cause to suspect that a child is abused or neglected reports the circumstances to child protection intake;

b.A provision for preventing a recurrence of the alleged incident pending an assessment;

c.Approval from the department indicating the individual is determined rehabilitated if the child-placing agency employee, nonemployee, foster care provider, adult household member, or prospective adoptive parent has been the subject of a confirmed decision in a report of child abuse or neglect or has been convicted of a direct bearing offense.

History

• History: Effective April 1, 2010; amended effective April 1, 2022; April 1, 2024.
• Law Implemented: NDCC 50-12-03, 50-12-05, 50-25.1-03 75-03-36-16.1. Adoptive family child abuse and neglect.

N.D. Admin. Code 75-03-36-17 Incident and sentinel event reporting

The child-placing agency shall have written policy outlining the documentation and reporting of incidents and sentinel events that occur while a child is in a foster care or adoption placement prior to the adoption finalization. The policy must include:

1.A description of an incident involving harassment, violence, discrimination, or an unplanned occurrence that resulted or could have resulted in injury to people or damage to property, specifically involving the general public, child in placement, foster care provider, prospective adoptive parents, or child-placing agency employee or nonemployee.

2.A description of an incident involving law enforcement, including in the case of a runaway, criminal activity, behavior resulting in harm to others, or restraint injury.

3.A description of a sentinel event as an unexpected occurrence involving death, serious injury or psychological injury not related to the natural causes of a client's illness or underlying condition, including any process variation for which a reoccurrence would carry a significant chance of a serious adverse outcome. Sentinel events include serious injury or trauma to a client, attempted suicide by the client, death of a client, or inappropriate sexual contact.

4.A requirement that notification must be made to custodian, parent, or guardian and the department immediately or within one business day.

History

• History: Effective April 1, 2010; amended effective July 1, 2020; April 1, 2024.

N.D. Admin. Code 75-03-36-18 Disaster plan

The child-placing agency shall have a written disaster plan to accommodate emergencies. The disaster plan must specify:

1.Employee roles and responsibilities;

2.Processes to ensure ongoing communication is maintained with children in placement, foster care providers, or prospective adoptive parents and employees;

3.Primary and alternate plans for evacuation to ensure continuity of services, including workspace and ongoing access to relevant child-placing agency files; and

4.Supervision of employees, nonemployees, children in placement, foster care providers, and prospective adoptive parents after evacuation or relocation.

N.D. Admin. Code 75-03-36-19 Confidentiality and retention of files

1.The child-placing agency shall have written procedures for safeguarding the confidentiality of records.

2.Except as otherwise provided in this section and North Dakota Century Code section 14-15-16, child-placing agency records concerning children and families who have received, are receiving, or seek to receive services must be safeguarded and may be made available only:

a.To employees and nonemployees of the child-placing agency, to the extent reasonably necessary for the performance of their duties;

b.To persons authorized by a custodian, parent, or guardian who may lawfully review a child's record;

c.In a judicial proceeding;

d.To officers of the law or board specific to a criminal investigation; and

e.As required by law.

3.The child-placing agency shall ensure that all records are kept in a safe place, protected from damage, theft, and unauthorized access.

4.The child-placing agency shall disclose its records to the department, upon request.

History

• Law Implemented: NDCC 14-15-16, 50-11-05, 50-12-05

N.D. Admin. Code 75-03-36-20 Legal services and responsibilities

N.D. Admin. Code 75-03-36-21 Quality assurance

A child-placing agency shall have a performance and providing quality improvement plan that ensures licensing compliance, advances service delivery, reviews management practices, and measures the achievement of program goals and outcomes. Quality assurance must include:

1.A process for reviewing the case plans for each child to evaluate the continued appropriateness;

2.A process for reviewing select child, foster or adoptive families, and personnel files quarterly to ensure quality of services being provided; and

3.A process for reviewing the child-placing agency's policies, procedures, and practices.

N.D. Admin. Code 75-03-36-22 Child-placing agency closure

The child-placing agency shall have a policy and procedure in the event a child-placing agency closes. Prior to closing, the administrator shall provide at least a sixty-day written notice to the department, including:

1.A detailed plan for closure, specifying:

a.Date of closure; and

b.Plan to notify each custodian, parent or guardian, foster care provider, adoptive family, and employee, no less than forty-five days prior to closure.

2.A detailed plan to supervise and manage all adoptive placements;

3.A detailed plan to accommodate all licensed or approved families and birth families to other agencies regarding closure of cases;

4.A detailed plan of reasonable attempts to notify former clients of the child-placing agency's closure;

5.A detailed plan of any arrangements made with another licensed child-placing agency to retain all permanent adoption records and provide post-finalization services; and

6.Arrangements to transfer any other records which must be retained for a specific time period to the department.

History

• History: Effective April 1, 2010; amended effective January 1, 2012; April 1, 2024.

N.D. Admin. Code 75-03-36-23 Adoption - Referral source

A child-placing agency shall work in conjunction with a referral source, which may include a birth parent or a public agency case manager. A child-placing agency may:

1.Distribute information regarding adoption services provided for a child, the child's birth parent, and prospective adoptive parents;

2.Provide a list of required information needed from a referral source;

3.Request an invite to meetings regarding the child, if applicable; and

4.Obtain necessary authorization for permission to recruit a prospective adoptive family for the child.

N.D. Admin. Code 75-03-36-24 Adoption - Services to birth parents

1.The child-placing agency shall:

a.Inform a birth parent of the birth parent's rights, obligations, and responsibilities under state law, or as specified by court order;

b.Inform a birth parent of the continuum of openness in adoption and the options available to the birth parent and the child for future contact as allowed by state law;

c.Assist the birth parent in making a decision and understanding the finality of relinquishment of parental rights;

d.Assist the birth parent to legally terminate the birth parent's parental rights provided this is the decision of the parent and the parent has the legal authority to relinquish his or her rights or make an adoption plan;

e.Solicit the preference of the birth parent for the religious faith in which their child may be reared;

f.Include the birth parent, and other significant individuals including the child when appropriate, in the development of the case plan;

g.Obtain, if assuming custody of a child for voluntary placement purposes:

(1)Written authority from the parent or parents to place the child; and (2)Written authority from the parent or parents to provide medical services for the child;

h.Make reasonable efforts to involve the birth parents in planning for the adoptive placement of the child. Reasonable efforts as identified by this section means effort with respect to any action made, attempted or taken by the child-placing agency is intended to be timely, documented, and consistent with the best interests of the child; and

i.Offer supportive and referral services to the birth parents.

2.No fee, with the exception of reasonable fees as verified by the court and allowed by state law, may be paid by the prospective adoptive parents to the birth parents. The fees paid by the prospective adoptive parents and the services provided by the child-placing agency to the birth parents may not be provided dependent on their willingness to relinquish their child for adoption.

N.D. Admin. Code 75-03-36-25 Adoption - Services to the child

1.The child-placing agency shall make every effort to place siblings together in an adoptive home. If it is not possible to place siblings together, the child-placing agency shall add written documentation in the child's file identifying the reasons the siblings could not be placed together and the plans formulated to keep the siblings in contact with one another after the adoption.

2.The child-placing agency shall create and provide a life book to the child, and shall give the child an opportunity to explore the child's birth history in preparation for the child's adoptive placement.

3.When appropriate to the child's developmental needs, the child-placing agency shall provide preplacement counseling to the child to assist the child in adjusting to adoption.

4.The child-placing agency shall begin recruitment efforts immediately and on an ongoing basis as directed by the referral for a child without an identified family. Diligent recruitment may include listing the child with local, regional, and national recruitment resources.

N.D. Admin. Code 75-03-36-26 Private adoptions - Selection of adoptive placement

The child-placing agency shall select prospective adoptive parents who have the capacity to assist in the achievement of the permanency goal. For all private adoptions, the child-placing agency shall:

1.Make efforts to involve the birth parents in the selection of the prospective adoptive parents.

2.If appropriate, make a legal risk adoptive placement, prior to the termination of parental rights, into the home of a prospective adoptive parent of that child, provided that:

a.The prospective family home has been fully studied and recommended for adoption placement; and

b.The prospective adoptive parents sign a document acknowledging that they understand the risk of the birth parent reclaiming the child and that the prospective adoptive parents will return the child to the child-placing agency upon the child-placing agency's request.

3.Recruit foster care providers to provide interim care for infants being relinquished to the custody of the child-placing agency prior to the adoptive home placement of the child, if applicable.

4.Collaborate with the department to identify a licensed foster care provider for the child-placing agency to access for interim care for infants. Permission must be limited to a specific child for a specific period of time. The child-placing agency shall provide the same information to the licensed foster care provider as it would provide to the child-placing agency's foster care provider.

History

• History: Effective April 1, 2010; amended effective April 1, 2016; April 1, 2024.
• Law Implemented: NDCC 50-12-08

N.D. Admin. Code 75-03-36-27 Licensed child-placing agencies - Interim family foster homes for infants

N.D. Admin. Code 75-03-36-28 Adoption - Preplacement preparation services

1.A child-placing agency may not place a child into an adoptive home without a full adoption assessment being completed on the prospective adoptive parents, including required fingerprint-based criminal background check and child abuse and neglect index check.

2.The child-placing agency may not place a child into an adoptive home if:

a.There is a prior finding of deprivation related to any child in the prospective adoptive home within the last five years;

b.There has been a dissolution of a previous adoption within the last five years;

c.There has been a disruption of a formal adoptive placement within the last five years, unless further assessment by the child-placing agency in consultation with the department determines such placement to be in the best interest of the child; or

d.The custodial agency reasonably believes the adoption is not in the best interest of the child.

3.Effective October 1, 2024, if the prospective adoptive parents are licensed foster care providers, the child-placing agency shall obtain and consider the foster care assessment as

part of the adoption assessment to determine suitability. An adoptive home is presumed suitable if the foster care provider has:

a.Been continuously licensed, certified, or approved as a family foster home for children;

b.Provided foster care for children for more than one year without a correction order, fiscal sanction, or license revocation proceeding.

4.A child-placing agency shall give the prospective adoptive parents an opportunity to review the records of the child in the child-placing agency's possession, and shall provide the prospective adoptive parents an opportunity to meet with the child's case manager, therapists, foster care providers, and other treatment providers to gain an understanding of the child's needs and the services the child will require upon placement in the prospective adoptive home.

5.A child-placing agency shall help the child, when age appropriate, understand the reasons for placement, prepare the child for the new family, and be available to the child, prospective adoptive parents, and the birth parents, when applicable, for supportive services.

6.A child-placing agency preplacement preparation services must include:

a.A visit with the child at the home of the prospective adoptive parents, if applicable;

b.Sharing the child's life book with the child and the prospective adoptive parents, if applicable;

c.Arrangements for a physical examination unless the child had a physical examination within one year prior to placement. The child-placing agency shall provide the prospective adoptive parents with a copy of the physician's report and the child's immunization record;

d.Arrangements for an eye, dental, and hearing examination for a child three years of age or older unless the child had these examinations within one year prior to placement. The child-placing agency shall provide the prospective adoptive parents with copies of the examination reports; and

e.Sharing of information regarding the child's development and needs between the care providers, if applicable, parents and the prospective adoptive parents.

7.The child-placing agency shall prepare the prospective adoptive parents for an understanding of separation anxiety, grief reaction, and problems related to attachment.

8.The child-placing agency shall notify the referral source of the date of placement.

9.The child-placing agency, if applicable, shall make an adoptive placement in accordance with the interstate compact on the placement of children. 10The child-placing agency, if applicable, shall discuss the need and qualifications for adoption assistance and shall make a referral to the department. The child-placing agency shall provide the department with supporting documentation of the need for adoption assistance when making the referral.

History

• Law Implemented: NDCC 14-15-11, 50-12-08

N.D. Admin. Code 75-03-36-29 Adoption - Placement

1.The child-placing agency shall adopt written policies for the placement of a child legally free for adoption. The policies must detail:

a.Placement contract procedures as specified in North Dakota Century Code section 50-12-06;

b.Collaboration with the custodial case manager or birth parents to review the prospective adoptive parents;

c.Placement into an adoptive home as soon as possible after the child is legally free for adoption;

d.Placement of an Indian child according to the Indian Child Welfare Act and North Dakota Century Code chapter 27-19.1;

e.Placement in the best interests of the child;

f.Placement with identified relatives if it is in the best interests of the child; in the event a relative search is completed by the child-placing agency, diligent search efforts must be documented;

g.Placement of siblings together, and if this is not possible, a plan to keep separated siblings connected after adoption;

h.Placement to meet each child's needs;

i.Prohibition of placement of a child based solely on the race, or national origin of the adoptive parents or the child, unless the Indian Child Welfare Act or North Dakota Century Code chapter 27-19.1 applies;

j.Continuation of services to assist the child and family;

k.Providing relevant child specific documents to the child's adoptive parents; and

l.Adoption-related policies required by the department.

2.The child-placing agency shall give notice to the department of any adoptive placement facilitated by the child-placing agency for adoption. The child-placing agency shall provide notice within seven calendar days of placement.

History

• Law Implemented: NDCC 50-12-06, 50-12-08

N.D. Admin. Code 75-03-36-30 Adoption - Post-placement and post-finalization

1.Post-adoptive placement, until adoption finalization. The child-placing agency shall have policy and procedure detailing:

a.Supportive services offered and available for the child and adoptive family following adoptive placement;

b.Monthly visitation with the adoptive parents and other members of the adoptive family, as applicable;

c.Monthly face-to-face visits with the child primarily in the child's residence; and

d.Assistance provided to the adoptive family in completing the legal adoption of the child.

2.Post-finalization. The child-placing agency shall have policy and procedure detailing:

a.Supportive services offered and available to adoptive parents, birth parents, and the adoptive child or adult, as applicable;

b.Exchange of information between birth and adoptive families consistent with contact agreements; and

c.Information and referral services, including the North Dakota post adopt network.

3.The child-placing agency shall have policy and procedures detailing adoption search services specific to the process, availability, and fees charged.

N.D. Admin. Code 75-03-36-31 Adoption - Services to prospective adoptive parents

1.A child-placing agency serving minority race children shall have a recruitment plan that actively recruits homes of the same race as the adoptive children to preserve the adoptive child's culture.

2.The child-placing agency shall provide information to a prospective adoptive parent about the adoption process, the child-placing agency's policies and practices, legal procedures, and the approximate time the adoption process will take, adoptive standards, children available, the availability of a subsidy if appropriate, and a payment schedule which clarifies provision of services, dates of payment, and an estimate of final costs.

3.The child-placing agency shall provide education to a prospective adoptive parent to ensure they have a well-rounded understanding regarding trauma, the needs of an adoptive child, and the importance of maintaining biological and cultural connections.

4.The child-placing agency shall require the prospective adoptive parent of a foreign-born child to purchase a surety bond, or have five thousand dollars in savings, to provide financial protection for a possible disruption, or unexpected medical costs prior to finalization unless the adoptive parent is provided a copy of the decree of adoption from the foreign court at the time of finalization in the foreign country.

5.The child-placing agency shall document a summary of the information and maintain on file the adoption assessment. An adoption assessment must be completed in the form and manner prescribed by the department which must include onsite visits of the prospective adoptive parent's home to assess physical safety, personal beliefs, motivation and commitment to adopt, relationship status, support systems, financial stability, substance use, mental and behavioral health stability, plans to support the child's long-term needs, cultural and biological family connections, plan for care of the child in the event of death and any supplemental information determined necessary and collected throughout the assessment process.

6.During the course of the assessment, the child-placing agency shall keep the applicant informed of the applicant's status. When an applicant is denied a recommendation for adoption, the child-placing agency shall inform the applicant, in writing, of the reasons the child cannot be placed in the applicant's home. The child-placing agency shall offer services to the applicant as needed.

7.The child-placing agency shall require an adoptive family assessment be updated at least every two years from the date of completion of the original assessment until a child is placed into the home for the purpose of adoption.

8.The child-placing agency shall have regular contact with an approved waiting adoptive family to assess their circumstances and ability to adopt a child for adoptive placement.

9.The child-placing agency shall develop policy and procedure to allow applicants to grieve the services provided by the child-placing agency or to grieve the child-placing agency's decision regarding adoption assessment denial.

History

• Law Implemented: NDCC 50-12-07, 50-12-08

N.D. Admin. Code 75-03-36-32 Adoption - Case plan

1.The child-placing agency shall develop a written case plan for each client. The case plan must include a description of specific services to be provided to meet the needs of the birth parents, the child, and the prospective adoptive parents. The case plan must include goals specifying timelines to achieve permanency for the child.

2.The child-placing agency shall review the case plan annually.

3.The case plan must be signed and dated by the case manager and other relevant parties as determined appropriate.

4.For a child in the custody of a tribe or a human service zone, the case plan must be directed by the custodial agency, the child, if appropriate, and with input from members of the child and family team.

5.For a child in the custody of the child-placing agency, the child-placing agency may direct the case plan.

6.For a child in the custody of a birth or adoptive parent, the legal custodial parent may direct the case plan.

History

• History: Effective April 1, 2010; amended effective July 1, 2020; April 1, 2024.
• Law Implemented: NDCC 50-12-06

N.D. Admin. Code 75-03-36-33 Adoption - Case records

1.The child-placing agency shall maintain a case record on each client served. The child-placing agency shall maintain a master list detailing all case records managed by the child-placing agency. The child-placing agency shall adopt a policy regarding the retention of the permanent adoption record.

2.The child's case records must include the following:

a.The child's full name, date of birth, and other identifying information;

b.The child's referral information;

c.The child's birth record;

d.Application documents, including a photo of the child, if recruitment is needed;

e.Record of the child's placement history with names of caregivers and dates of placement;

f.Child-placing agency assessments and supporting documentation;

g.Medical records with significant family health history for the child and the child's birth parent;

h.Signed statements authorizing necessary medical or surgical treatment for the child;

i.Legal documents;

j.Child-placing agency agreements or contracts;

k.Reports from schools, specialists, and other agencies;

l.A case plan; and

m.All relevant correspondence regarding the child's treatment, visits, and contacts with other persons concerning services provided to the child.

3.The prospective adoptive parent's case record must include the following:

a.Fingerprint-based criminal background check;

b.Child abuse and neglect index check, initially and annually thereafter, if applicable;

c.Medical records, if applicable;

d.Adoption assessment;

e.Other pertinent documentation;

f.Physical examination, if applicable; and

g.In the event prospective adoptive parents are denied a recommendation for adoption or did not have a child placed with them, the child-placing agency shall keep on file a narrative clearly indicating the reason and the manner in which the decision was presented to the family.

4.The birth parent case record must include the following, if applicable:

a.Application documents;

b.Medical and health history; and

c.Family genealogy and social history.

N.D. Admin. Code 75-03-36-34 Adoption - Placement disruption

The child-placing agency shall:

1.Report immediately to the department any adoption placement disruptions;

2.Provide services to assist the child with managing the loss after a placement disruption;

3.Assess the needs of the child when considering replacement options;

4.Provide services to assist the adoptive parents in managing the loss after a placement disruption; and

5.Assess the needs of the adoptive family with whom the child was placed at the time of the disruption prior to considering any future adoptive placement.

N.D. Admin. Code 75-03-36-35 Foster care - Programs and services

1.The child-placing agency shall adopt a written program description, which includes the following:

a.A description of the services provided by the child-placing agency, clearly stating which services are provided directly by the child-placing agency and which services are to be provided in collaboration with a human service zone, the division of juvenile services, tribal entities, community resources such as schools, and other appropriate agencies;

b.A description of how the child-placing agency engages in wraparound philosophies, and how collaboration efforts occur;

c.A description of how the child-placing agency participates in preparing a child in foster care to transition to adulthood, if applicable;

d.Characteristics and eligibility requirements of a child served by the child-placing agency may not exceed the requirements for children working with a human service zone, tribe, division of juvenile services, or the department;

e.A list of information that is required to be submitted with the referral;

f.Foster care providers must be licensed in accordance with North Dakota Century Code

chapter 50-11 and chapter 75-03-14; and

g.Acknowledgment that final decisions regarding a child referred to the child-placing agency rest with the custodian pursuant to the authority and responsibility conferred on the custodian under North Dakota Century Code chapter 27-20.3.

2.The child-placing agency shall have a written admission policy. The written policy must

a.A screening of referrals, including a method of determining the appropriateness of each referral, including the age, gender, and characteristics of a child eligible for placement;

b.Verification that a child referred to the child-placing agency and accepted for services meets the criteria for admission and placement into a family setting;

c.Requirements specific to a child in foster care as defined by the department;

d.A requirement that the child-placing agency accept a child for placement who meets eligibility criteria;

e.A process for assisting the applicant or referral source, or both, in obtaining services from other agencies when the child-placing agency's services are not appropriate to the applicant's or referral source's needs; and

f.A requirement that the child-placing agency discuss with the child and the child's parent, guardian, or custodian, the appropriateness of the child-placing agency's services in meeting the child's needs, including client rights.

3.The child-placing agency shall have a written discharge policy, including the development of a discharge plan. The written policy and plan must include:

a.Names of individuals involved in discharge planning;

b.The date of admission;

c.The date of discharge;

d.Details of the events and circumstances leading to the decision to discharge;

e.The names and address of the individual or agency to whom the child is discharged;

f.A summary of services provided during placement;

g.A summary of goal achievement;

h.A summary of the child's continuing needs;

i.Appointments scheduled;

j.A list of medication prescribed; and

k.A summary of efforts made by the child-placing agency to prepare the child for discharge.

4.A licensed child-placing agency shall work with the department to set the child-placing agency's foster care fee for service rate, inclusive of clothing and personal incidentals.

History

• Law Implemented: NDCC 50-12-05, 50-12-07

N.D. Admin. Code 75-03-36-36 Foster care - Program files

1.The child-placing agency shall maintain a file for each child. This file must include:

a.The child's full name, date of birth, and other identifying information;

b.The name and contact information of a custodian, parent, or guardian, and other pertinent individuals;

c.Signed care agreement or contract establishing the child-placing agency's authority to accept and place the child;

d.An explanation of custody and legal responsibility for consent to any medical or surgical care;

e.An explanation of responsibility for payment for care and services;

f.A current case plan;

g.A copy of the appropriate interstate compact forms, if applicable;

h.Progress reports that are developed by the child-placing agency and provided at least quarterly to the child's custodian, parent, or guardian;

i.Medical records, including annual health tracks screenings, immunization records, and evidence of appropriate medical followthrough; and

j.School records, including individual education plans, if applicable.

2.The child-placing agency shall maintain a current case file on each family foster care provider, including:

a.Current contact information for foster care providers;

b.Initial and renewal licensing documents;

c.Fingerprint-based criminal background checks;

d.Initial and annual child abuse and neglect index checks; eChild-placing agency specific assessments and supporting documentation;

f.Correspondence; and

g.Child-placing agency agreements or contracts.

History

• History: Effective April 1, 2010; amended effective January 1, 2012; April 1, 2024.
• General Authority: NDCC 50-12-05, 50-12-07
• Law Implemented: NDCC 50-12-05, 50-12-07

N.D. Admin. Code 75-03-36-37 Foster care - Case plan

The child-placing agency shall adopt a written policy that ensures the child-placing agency will develop a case plan for each child and family. The policy must detail:

1.The development of a case plan, within thirty days of placement, in conjunction with the child and family team;

2.Documentation of participation in child and family team meetings on a quarterly basis;

3.Documentation of services provided by other agencies working with the child inclusive of behavioral and physical health needs;

4.Documentation of the child's special needs, if applicable;

5.Documentation of reasonable efforts to gather relevant case planning information from the custodian, parents, foster care providers, courts, schools, and other appropriate individuals or agencies;

6.Completion of a strengths and needs assessment of the child, biological family, and foster care provider;

7.Identification of measurable goals, including time frames for completion;

8.Identification of the measures that will be taken or tasks that will be performed to assist the child and family with meeting the goals;

9.Identification of the individual or entity responsible for providing the service or completing the task;

10.A discharge plan, including a projected discharge date with special attention to discharge planning efforts for a child who is aging out of foster care; and

11.Documented evidence of individualized treatment progress in a child's case plan reviewed at least quarterly, or more often if necessary.

History

• History: Effective April 1, 2010; amended effective January 1, 2012; April 1, 2024.
• Law Implemented: NDCC 50-11-03, 50-12-05

N.D. Admin. Code 75-03-36-38 Foster care - Family foster care provider

The child-placing agency shall adopt a written policy that describes how the child-placing agency will:

1.Recruit foster care providers and evaluate the homes' suitability to meet the individual and specialized needs of children in foster care, including identifying providers who support cultural diversity and inclusion;

2.License foster care providers according to North Dakota Century Code chapter 50-11 and North Dakota Administrative Code chapter 75-03-14;

3.Place children in foster care in licensed foster care provider homes;

4.Make available, and ensure foster care providers complete orientation and required training;

5.Provide ongoing supervision to ensure foster care providers have the training necessary to provide quality care; and

6.Ensure foster care providers have the necessary support from the child-placing agency and custodial agency.

History

• Law Implemented: NDCC 50-11-03, 50-11-04, 50-12-05

N.D. Admin. Code 75-03-36-39 Foster care - Placements

The child-placing agency shall create and maintain written policy outlining how the child-placing agency will evaluate placement decisions. The evaluation must consider initial and ongoing assessment of the appropriateness of the placement. The evaluation must include:

1.The identification of the appropriate foster care provider to meet the child's needs;

2.The child's view of the placement;

3.The foster care provider's commitment to the child's best interests;

4.The foster care provider's ability and willingness to accept and support the biological family;

5.Evidence that the placement supports maintaining family and sibling connections, visitation, educational, religious, spiritual, and cultural needs.

History

• Law Implemented: NDCC 50-11-03, 50-12-08

N.D. Admin. Code 75-03-36-40 Service delivery

N.D. Admin. Code 75-03-36-41 Rights of the foster child

N.D. Admin. Code 75-03-36-42 Variance

Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance regarding a specific provision of this chapter upon such terms as the department may prescribe, except no variance may permit or authorize a danger to the health or safety of any child provided care by the child-placing agency and no variance may be granted except at the discretion of the department. A child-placing agency shall submit a written request to the department justifying the variance. A refusal to grant a variance is not subject to appeal.

History

• History: Effective April 1, 2024.
• General Authority: NDCC 50-11-03, 50-12-02, 50-12-05
• Law Implemented: NDCC 50-11-03, 50-12-02, 50-12-05

Chapter 75-03-37 Transition-Aged Youth at Risk

N.D. Admin. Code 75-03-37-01 Definitions

As used in this chapter:

1."Department" means the department of human services.

2."Independent living skills" includes self-advocacy; the sufficiency to economically meet one's daily needs and to have a safe and stable place to live; ability to attain academic, vocational, or educational goals; the ability to develop a sense of connectedness; ability to avoid illegal or high-risk behaviors; and an understanding of how to access physical and mental health services.

3."Individualized assessment" means the process that each service provider uses to determine the needs and appropriate services to transition-aged youth at risk.

4."In-home supports" means supports provided to a youth, the youth's family, or both, in the home environment, including mentoring, individual and family training, and respite care.

5."Single plan of care" means a plan of care that identifies and documents needs, tasks, goals, and the safety plan of the family which is developed by the children and family team based on the family's unique strengths, values, and needs.

6."Transition-aged youth at risk" means children and young adults who are at risk due to deprivation or other activities resulting in youth being involved with the foster care or juvenile justice system, serious mental illness or serious disabilities that do not qualify the youth for developmental disabilities case management, or suicidal tendencies.

7."Vocational rehabilitation" means an employment-focused program that helps eligible individuals with physical or mental impairments improve their employment opportunities by assisting individuals with disabilities to achieve competitive employment and increased independence.

8."Wraparound" means a strength-based philosophy of care that includes a definable process involving the child and family that results in a unique set of community services and supports individualized for that child and family.

N.D. Admin. Code 75-03-37-02 Transition-aged youth-at-risk program - Eligibility - Services

1.The executive director of the department shall designate an individual from within the department to oversee the program for transition-aged youth at risk. Transition-aged youth at risk ages fourteen through twenty-four are eligible for participation in the program.

2.Services to an individual youth must be appropriate to that youth and do not need to include all services of the transition-aged youth-at-risk program. The department shall provide the services. Services available under the transition-aged youth-at-risk program include:

a.An individualized assessment for transition-aged youth at risk;

b.Development of a single plan of care to coordinate services among available service systems, emphasizing existing case management resources;

c.Assistance in developing independent living skills;

d.Services for transitioning students from high school to employment or postsecondary education;

e.In-home support, including mentors, individual and family training, and access to respite care;

f.Development of a statewide independent living skills curriculum for youth and families;

g.Substance abuse assessment and treatment;

h.Psychological and psychiatric evaluation and treatment;

i.Individual, group, and family therapy services;

j.Case aide services; and

k.Crisis residential services.

N.D. Admin. Code 75-03-37-03 Transition-aged youth-at-risk program - Statewide interagency advisory council - Regional subcommittees

1.The statewide interagency advisory council consists of representatives of the various system partners, such as education, juvenile justice, child welfare, tribes, case management, vocational rehabilitation, legislative assembly, parents, and youth. Members are selected based on their knowledge, understanding, and interest in the needs of transition-aged youth.

The advisory council shall advise the department concerning program and policy issues, delivery of services, and methods for reaching potential consumers.

a.Department staff providing oversight for the program will develop and facilitate the advisory council.

b.The statewide interagency advisory council shall meet on a regular basis as determined by the council.

2.The regional subcommittees consist of representatives of the various system partners, such as education, juvenile justice, child welfare, tribes, case management, vocational rehabilitation, parents, and youth. Members are selected based on their knowledge, understanding, and interest in the needs of transition-aged youth. The purpose of the regional subcommittee will be to advise the human service center in the subcommittee's region on program and policy issues, delivery of services, and methods for reaching consumers. A subcommittee will be formed in each of the eight human service center regions.

a.The individual providing oversight for this program shall designate a person from a human service center to develop and facilitate the regional subcommittee within the region of the human service center.

b.The regional subcommittee shall meet on a regular basis as determined by the subcommittee.

Chapter 75-03-38 Autism Spectrum Disorder Voucher Program [Repealed]

N.D. Admin. Code 75-03-38 Autism Spectrum Disorder Voucher Program [Repealed]

CHAPTER 75-03-38

AUTISM SPECTRUM DISORDER VOUCHER PROGRAM [Repealed effective January 1, 2024]

Chapter 75-03-39 Autism Services Waiver

N.D. Admin. Code 75-03-39-01 Definitions

1."Department" means the department of health and human services.

2."Division" means the medical services division of the department.

3."Qualified professional" means a primary care provider or licensed medical care provider qualified to diagnose autism spectrum disorder.

History

• History: Effective July 1, 2014; amended effective April 1, 2018; January 1, 2024.
• General Authority: NDCC 50-06-16, 50-24.1-04
• Law Implemented: NDCC 50-24.1-26

N.D. Admin. Code 75-03-39-02 Eligibility for services under the Medicaid autism spectrum disorder birth through twenty waiver

1.A child is eligible for autism services under the department's Medicaid autism spectrum disorder birth through twenty waiver if the following conditions are met:

a.The age of the child is birth through twenty years of age;

b.The child has an autism spectrum disorder diagnosis from a qualified professional able to determine diagnosis;

c.An autism spectrum disorder waiver slot is available; and

d.The child meets the institutional level of care required by the centers for Medicare and Medicaid services.

2.Annual redetermination for continued waiver services is required to determine if the child meets the institutional level of care required by the centers for Medicare and Medicaid services.

January 1, 2024; April 1, 2026.

History

• History: Effective July 1, 2014; amended effective April 1, 2018; January 1, 2020; January 1, 2022;
• General Authority: NDCC 50-06-16, 50-24.1-04
• Law Implemented: NDCC 50-24.1-26

Chapter 75-03-40 Licensing of Qualified Residential Treatment Program Providers

N.D. Admin. Code 75-03-40-01 Definitions

As used in this chapter:

1."Accredited" means to be accredited and in good standing by an independent, not-for-profit organization approved by the department. Accreditation organizations preapproved include the commission on accreditation of rehabilitation facilities, the joint commission, or the council on accreditation. Any other accrediting bodies must be approved by the federal health and human service office before the department can consider approval.

2."Aftercare" means followup support and services provided to a resident and family after discharge from a facility.

3."Assessment" means the ongoing process of identifying and reviewing a resident and the resident's family's strengths and needs based upon input from the resident, the resident's family, and others, including community members and health professionals.

4."Behavior management" means techniques, measures, interventions, and procedures applied in a systematic fashion to prevent or interrupt a resident's behavior and promotes positive behavioral or functional change fostering resident self-control.

5."Care plan" or "case plan" means the plan developed by the child and family team that incorporates formal and informal services and supports into a comprehensive, integrated plan that, using the identified strengths of the resident and the resident's family, addresses the needs of the resident and the resident's family across life domains to support the resident and the resident's family to remain in or return to the community.

6."Child and family team" means an advisory or recommending group in relation to the resident's case plan. The custodial agency and child and family team, led by the resident and the resident's family, shall work cooperatively through multiagency and multidisciplinary approaches to provide a wider variety of support services to the resident, the resident's family, and foster care provider to carry out the permanency goals for the case plan.

7."Contracted service providers" means an individual or entity under contract or agreement with the facility to provide services and supports to residents.

8."Custodian" means a person, other than a parent or guardian, to whom legal custody of the resident has been given by court order.

9."Employee" means an individual compensated by the facility to work in a part-time, full-time, intermittent, or seasonal capacity for the facility. This definition is not inclusive to contracted service providers who come onsite to conduct trainings, treatment groups, individual therapy, or other program services.

10."Facility" means a qualified residential treatment program.

11."Guardian" means a person who stands in loco parentis to a resident or court appointed pursuant to North Dakota Century Code chapters 30.1-27 or 30.1-28.

12."License" means a facility that is either licensed by the department or approved by the department if the facility is located within a tribal jurisdiction.

13."Mechanical restraint" means any device attached or adjacent to the resident's body that the resident may not easily remove which restricts freedom of movement or normal access to the resident's body.

14."Nonemployee" means an individual who is not compensated by the facility, such as a volunteer or student intern providing a specific service under the supervision of an employee.

15."Normalcy" means a resident's ability to easily engage in healthy and age or developmentally appropriate activities that promote the resident's well-being, such as participation in social, scholastic, and enrichment activities.

16."Nurse" means a nurse licensed in accordance with North Dakota Century Code chapter 43-12.1.

17."Outcomes" means the results to which all performance targets must contribute, describing specific states or conditions that change, and which are influenced by the achievement of performance targets.

18."Overnight hours" means a consecutive eight-hour period of time designated as resident sleep hours defined by the facility.

19."Personnel" means employees hired and nonemployees placed with or present in the facility.

20."Qualified individual" means a trained professional or licensed clinician designated by the department to complete the assessment, which will assist in determining the resident's appropriate level of care.

21."Reasonable and prudent parent standard" means the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a resident while at the same time encouraging the emotional and developmental growth of the resident participating in extracurricular, enrichment, cultural, and social activities.

22."Resident" means an individual under the age of twenty-one admitted to and residing in the facility.

23."Restraint" means a personal restraint that only involves an application of physical force without the use of any device, for the purpose of restraining the free movement of a resident's body.

24."Seclusion" means involuntarily confining a resident alone in a room or area where the resident is prevented from leaving.

25."Trauma informed" is the services or programs to be provided to or on behalf of a resident and the resident's family under an organizational structure and treatment framework that involves understanding, recognizing, and responding to the effects of all types of trauma in accordance with recognized principles of a trauma informed approach and trauma specific interventions to address trauma's consequences and facilitate healing.

26."Trauma informed treatment" means a treatment model designed to address the identified needs, including clinical needs as appropriate, of the resident with serious emotional or behavior disorders or disturbances and is able to implement the treatment identified for the resident by the assessment completed by the qualified individual.

27."Treatment" means the use of interventions that prevent or cure disease, reducing symptoms, and restoring the resident to the highest practical functional level.

28."Treatment plan" means a plan created by the facility which delineates goals, objectives, and therapeutic interventions regarding the appropriate level of care based on the uniqueness of each resident, which considers the perspectives of the resident, the resident's clinical treatment team, family and significant others, which builds on the resident's strengths, and which incorporates a discharge focus.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.
• Law Implemented: NDCC 50-11-00.1, 50-11-03

N.D. Admin. Code 75-03-40-02 Effect of license

1.A facility license shall state the effective date. A license is effective for a maximum period of two years. A facility license is nontransferable and is valid only on the premises and for the number of residents indicated on the license.

2.For a licensed facility that changes its ownership or for a provisionally licensed facility upon issuance of an unrestricted license:

a.The initial period of licensure is one year; and

b.The licensing period thereafter may be renewed for a two-year period if the facility successfully remains in compliance with all licensing rules and requirements.

3.The department may issue a license without inspecting a facility's buildings, grounds, and equipment if the department finds:

a.The facility was inspected and complied with the provisions of this chapter and North Dakota Century Code chapter 50-11 regarding buildings, grounds, and equipment in the preceding year; and

b.The facility is otherwise eligible to receive a license.

History

• Law Implemented: NDCC 50-11-01, 50-11-02

N.D. Admin. Code 75-03-40-03 Application for license

1.Applicants must be accredited and in good standing with one of the department-approved national accreditation bodies.

2.A person may not apply for a license to operate a facility under this chapter until the department has reviewed the need for the additional residential placement resources. To enable the department to make a determination of need for a new qualified residential treatment program facility, the potential applicant shall submit an initial request for application, including the following documentation and information to the department:

a.A detailed plan for the operation of the proposed qualified residential treatment program which includes:

(1)The number, sex, and age range of the residents to be served;

(2)The needs or disabilities of residents to be served;

(3)The employee staffing, including a list of full-time and part-time positions by job titles and description;

(4)A description of the proposed program and treatment goals;

(5)A proposed budget; and (6)The location of the facility and a drawing of the layout of the physical plant.

b.A detailed written description of the methodology and findings that document the reasons why the unserved children under subsection 2 may not be served satisfactorily in a less restrictive setting.

c.Data to support that existing qualified residential treatment program placement resources are not adequate to meet the needs of children who require the type or types of care, are North Dakota residents, and require the treatment services the applicant proposes to provide.

3.Upon receipt of initial request for application, the department shall:

a.Review the potential applicant's information and may ask for additional materials or information necessary for evaluation of need purposes;

b.Respond in writing within ninety days of receipt of all required information from the potential applicant;

c.Send written notice of determination of need. The notice must state the specific reason for the determination. If the department determines there is need for additional qualified residential treatment program beds, the notice must be accompanied by an authorization for the person to apply for a license to operate a new qualified residential treatment program; and

d.Inform the potential applicant of what is required to move forward with the application process.

4.An application for a facility license must be submitted to the department annually in the form and manner prescribed by the department, which shall initiate an annual onsite visit.

5.The applicant shall carry general comprehensive liability insurance.

6.For purposes of time limits for approval or denial, an application is received by the department when all required information and documents have been received by the department. The department shall notify an applicant if an application is incomplete.

7.The department may declare an application withdrawn if an applicant fails to submit all required documentation within sixty days of notification.

History

• Law Implemented: NDCC 50-11-01, 50-11-02, 50-11-03

N.D. Admin. Code 75-03-40-04 Correction orders

1.The following time periods are allowed for correction of violations of North Dakota Century Code chapter 50-11 or this chapter:

a.For a violation that requires an inspection by a state fire marshal or local fire department, five days;

b.For a violation that requires substantial remodeling, construction, or change to a building, sixty days; and

c.For all other violations, twenty days.

2.The department may require immediate correction of a violation that threatens the life or safety of a resident.

3.All time periods under this section commence on the third day after the department mails notice of the correction order to the facility.

4.Upon written request by the facility and upon showing need for an extension created by circumstances beyond the control of the facility and documentation that the facility has diligently pursued correction of the violation, the department may grant extensions of time to correct violations.

5.The department may inform the public of a facility correction order status.

History

• Law Implemented: NDCC 50-11-02, 50-11-04.2

N.D. Admin. Code 75-03-40-05 Fiscal sanctions

1.The department may assess a fiscal sanction of twenty-five dollars per day for each day the facility remains out of compliance with a correction order.

2.The issuance of a fiscal sanction does not preclude the department's pursuit of other actions, including provisional licensure, injunction, and license revocation.

History

• Law Implemented: NDCC 50-11-02, 50-11-04.4, 50-11-04.5

N.D. Admin. Code 75-03-40-06 Provisional license

1.A provisional license must state:

a.The facility has failed to comply with applicable standards and regulations of the department;

b.The areas of noncompliance noted by the department in a written document; and

c.An expiration date not to exceed one year from the date of issuance.

2.The department shall exchange a provisional license for an unrestricted license, upon the facility's demonstration of compliance, satisfactory to the department, with all applicable standards and regulations.

3.A provisional license may be issued only to a facility who has acknowledged, in writing, the factual and legal basis for the violation. If not acknowledged by the facility, the department may revoke a license in accordance with this chapter or North Dakota Century Code chapter 50-11.

4.Any provisional license must be accompanied by a written statement of violation signed by a designee of the department.

5.A facility with a provisional license is not eligible for foster care maintenance payments. The facility shall be eligible to receive foster care maintenance payments for only the period after which the department determines the facility is in full compliance with the applicable licensing standards and regulations.

6.Subject to the exceptions contained in this section, a provisional license entitles the facility to all the rights and privileges afforded a facility operating under an unrestricted license.

History

• Law Implemented: NDCC 50-11-02.2

N.D. Admin. Code 75-03-40-07 Denial or revocation

1.A facility license may be denied or revoked under the terms and conditions of North Dakota Century Code chapter 50-11 or if the applicant or facility has violated any provision of North Dakota Century Code chapter 50-11 or fails to meet the minimum requirements of this chapter.

2.If the department decides to revoke a license, the department shall notify the facility in writing of its decision and the reasons for revocation. Upon receipt of notification arrangements shall be made by the facility in cooperation with each resident's custodian and parent or guardian for alternative placement.

3.A facility whose application for licensure has been revoked or denied may appeal to the department under the provisions of North Dakota Century Code sections 50-11-08 and

N.D. Admin. Code 50-11-09 During an appeal, the facility may not have residents

History

• Law Implemented: NDCC 50-11-02, 50-11-07, 50-11-08, 50-11-09

N.D. Admin. Code 75-03-40-08 Residential bed capacity

1.A facility may not receive a licensing amendment to increase or decrease facility bed capacity without approval of the department.

2.To qualify for an increase or decrease, a facility shall:

a.Submit a written request;

b.Provide a rationale for bed capacity change; and

c.Be in compliance with North Dakota Century Code chapter 50-11 and this chapter.

3.The department shall review the facility's request and may approve or deny the request within fifteen working days after considering the need for the beds and the number of beds available.

If accepted, the facility will receive an amended license.

4.The department has the authority to conduct a needs assessment at any time to determine the maximum number of licensed qualified residential treatment program beds required to meet the treatment needs of North Dakota children statewide. The needs assessment will allow the department to license facility beds accordingly. The department shall notify facility providers with a sixty-day notice of intent to increase or decrease bed capacity.

History

• General Authority: NDCC 50-11-02, 50-11-03, 50-11-09
• Law Implemented: NDCC 25-03.2-03.1, 50-11-02.3

N.D. Admin. Code 75-03-40-09 Facility closure

The facility shall have a policy to ensure proper and efficient procedure in the event a facility would close. Prior to closing, the facility administrator shall provide at least a sixty-day written notice to the department:

1.Detailing a plan for closure, including:

a.Date of closure;

b.Plan to notify each custodian and parent or guardian;

c.Identification of a North Dakota depository to maintain the facility's case, fiscal, employee, and nonemployee records; and

d.Retention of all fiscal records for a period of six years following account settlement.

2.Written notification must be given at least forty-five days prior to closure for each resident in placement to a custodian and parent or guardian. Notification also shall be given to all former residents currently receiving aftercare services.

3.A facility that does not follow the closure standards may be subject to fiscal sanctions.

N.D. Admin. Code 75-03-40-10 Governance

1.Each facility shall have a governing body responsible for the operation, policies, activities, practice, and overall operations of the facility. The governing body shall:

a.Be composed of at least five members. A list of the names and contact information of members of the governing body must be maintained and submitted to the department annually. Each board member annually shall disclose conflicts of interest. Members of the board may not be family or have conflicts of interest with the facility administrator or employees with budget or accounting duties;

b.Meet at least every six months;

c.Maintain records of the governing body's meetings;

d.Develop and review policies for member selection and rotation;

e.Ensure each member understands the facility operation and program goals;

f.Ensure the facility is funded, housed, staffed, and equipped in a manner required for the provision of services;

g.Provide the most recent fiscal year-end financial records to the department for payment purposes, upon request;

h.Ensure the facility has an active strategic plan with a schedule to review annually;

i.Employ a qualified facility administrator and delegate responsibility to that facility administrator for the administration of the facility;

j.Evaluate the performance of the facility administrator at least annually;

k.Adopt a written statement of the purpose and philosophy of the facility; and

l.Adopt written policies for the facility regarding administration, personnel, buildings, grounds, and program services. Personnel policies for the recruitment and retention of employees necessary to operate the facility must indicate expectations of personnel, detail job descriptions for each position, and ensure a process to review policies and procedures with employee participation at least every three years.

2.All statements and policies required by this chapter must be in writing to demonstrate the intent of the standards are integrated into facility practice. The facility policy must be up to date.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-11 Disaster plan

A facility shall have a written disaster plan to accommodate emergencies. The disaster plan must allow the department or custodial agency to identify, locate, and ensure continuity of services to residents who are displaced or adversely affected by a disaster. The disaster plan must address how to accommodate accessibility needs for all residents and personnel. The facility shall ensure the disaster plan specifies:

1.Where personnel and residents would go in an evacuation, including one location in the nearby area and one location out of the area;

2.Contact information inclusive of phone numbers and electronic mail addresses for facility administration;

3.A list of items the facility will take if evacuated, including any demographic and emergency contact information for each resident and medication and medical equipment to meet the needs of residents;

4.The process the facility will use to inform the department and each resident's custodian and parent or guardian if the resident is displaced or adversely affected by a disaster;

5.Employee training on the disaster plan must detail procedures for meeting disaster emergencies. The review of the disaster plan must occur with employees on an annual basis to ensure it is current, accurate, and employees understand their role. The facility shall document the annual review and provide the documentation to the department upon request;

6.Resident training on the disaster plan ensuring awareness of all emergency and evacuation procedures upon admission to the facility. These procedures must be reviewed upon intake into the facility and every quarter. Resident training must include the performance and documentation of fire evacuation drills;

7.The facility has telephones centrally located and readily available for use in each living unit of the facility. Emergency numbers must be written and posted by each telephone;

8.There must be at least two independent exits from every floor. The exits must be located so that residents can exit from each floor in two separate directions, without going through a furnace room, storage room, or other hazardous area; and

9.Flashlights must be available for emergency purposes.

History

• Law Implemented: NDCC 50-11-03

N.D. Admin. Code 75-03-40-12 Quality assessment and performance improvement

A facility shall have a performance and quality improvement plan that advances efficient, effective service delivery, effective management practices, and the achievement of strategic and treatment program goals and outcomes.

1.A facility shall have a written performance and quality improvement plan that operationalizes the organization's performance and quality improvement system and:

a.Defines the organization's approach to quality improvement;

b.Defines employee roles and responsibility for implementing and coordinating the performance and quality improvement plan;

c.Identifies what is being measured;

d.Defines data collection processes and applicable time frames;

e.Outlines processes for reporting findings and monitoring results; and

f.Provides a document or chart that describes the organization's performance and quality improvement plan, including committees and members, as appropriate.

2.A facility performance and quality improvement plan must include guidelines for performance and outcomes which identify measures to build organizational capacity, improve services, and meet licensing, contracting, and reporting requirements, by evaluating the:

a.Impact of services on resident outcomes;

b.Quality of service delivery; and

c.Management and operations performance.

3.A facility shall use a department-approved standardized tool to measure resident outcomes approved by the department and in compliance with national accreditation standards.

4.A facility shall conduct the department-approved postresidential outcomes survey at the conclusion of the six-month required followup aftercare period.

N.D. Admin. Code 75-03-40-13 Personnel files

1.The facility shall maintain an individual file on each employee. The file must include:

a.File inventory detailing first and last date of employment, reason employment ended, training totals per year, and performance evaluation dates;

b.The application for employment including a record of previous employment;

c.A job description specifying the employee's roles and responsibilities;

d.A statement signed by the employee acknowledging the confidentiality policy;

e.Documentation of information obtained from an employee's references if previously employed at another residential facility;

f.Annual performance evaluations;

g.Professional development and training records consisting of the name of presenter, date of presentation, topic of presentation, and length of presentation. The following training must be completed and required training certificates placed in the employee file:

(1)First-aid training;

(2)Cardiopulmonary resuscitation and automated external defibrillator; and (3)Nonviolent crisis intervention;

h.Evidence of the employee having read and received a copy of the law and facility procedures requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, initially upon hire and annually thereafter;

i.Results of fingerprint-based criminal background checks, motor vehicle operator's license record, as applicable, and child abuse or neglect record;

j.Any other evaluation or background check deemed necessary by the facility administrator of the facility;

k.Verification of any required license or qualification for the position or tasks assigned to the employee; and

l.A copy of a valid driver's license, if applicable.

2.The facility shall maintain an individual file on each nonemployee. The file must include:

a.Personal identification information;

b.Results of fingerprint-based criminal background checks, motor vehicle operator's license record, as applicable, and child abuse or neglect record;

c.Description of duties;

d.Orientation and training records consisting of name of presenter, date of presentation, topic of presentation, and length of presentation;

e.Evidence of the nonemployee having read and received a copy of the law and facility procedures requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, initially upon hire and annually thereafter; and

f.A statement signed by the nonemployee acknowledging the confidentiality policy.

3.The facility shall adopt a policy regarding the retention of personnel files.

N.D. Admin. Code 75-03-40-14 Facility administrator

The governing body of the facility shall designate a facility administrator for the facility.

1.The governing body of the facility shall clearly define, in writing, the responsibilities of the facility administrator. If the facility is licensed for ten or more residents, the facility shall employ a full-time onsite facility administrator. A facility may not employ a facility administrator less than half-time.

2.The facility administrator must have a bachelor's degree in business or public administration, social work, behavioral science, or a human services field and have four years of related work experience in administration.

3.The facility administrator shall assure adequate supervision is provided to all personnel working or placed in the facility.

4.The facility administrator shall designate and provide evidence of the designation in the employee's file, at least one employee authorized to apply the reasonable and prudent parent standard. The designated employee shall receive training on how to use and apply the reasonable and prudent parent standard.

N.D. Admin. Code 75-03-40-15 Clinical director

1.The facility shall clearly define, in writing, the responsibilities of the clinical director. The duties of the clinical director must be devoted to the provision of clinical services.

2.The clinical director must have a master's degree in a behavioral science field and must be licensed as required by the field of practice, with three years of work experience in a clinical setting, have experience working with children in need of treatment, and provide evidence of supervisory knowledge and skills.

N.D. Admin. Code 75-03-40-16 Treatment coordinator

1.The facility clearly shall define, in writing, the responsibilities of the treatment coordinator employees, including communicating with the resident's custodian, parent, or guardian throughout the week while placed in the facility, to update the resident's custodian, parent, or guardian on the resident's day and treatment progress. The duties of a treatment coordinator employee must be devoted to the coordination of treatment services and overall case management of treatment planning for residents. A treatment coordinator employee must have achieved the competencies necessary to implement an individualized care plan for each resident.

2.The treatment coordinator employee must have a bachelor's degree in a behavioral science field and must be licensed as required by the field of practice, and two years previous paid or unpaid work experience with children or families or be an individual otherwise qualified.

3.A facility shall have sufficient treatment coordinator employees employed to meet minimum employee-to-resident ratios required by this chapter.

4.A treatment coordinator employee may be responsible for the supervision of other personnel and must be allowed reasonable time to perform supervision tasks.

5.The professional development and training records must document the treatment coordinator employee has had appropriate training to coordinate treatment services and trauma informed care.

N.D. Admin. Code 75-03-40-17 Direct care employees

1.The facility clearly shall define, in writing, the duties and responsibilities of the direct care employees.

2.All direct care employees must:

a.Be at least twenty-one years of age;

b.Have a high school diploma or equivalent; or

c.Have at least one year of experience working with children or families. If a prospective direct care employee does not have one year of experience working with children or families, the facility may choose to hire, but then shall provide shadowing and supervision to the direct care employee for up to one year or until the direct care employee has successfully completed all required training noted in section 75-03-40-29.

3.A direct care employee supervising other direct care employees must have a bachelor's degree in a behavioral science field or one year previous work experience with children or families.

4.A facility always shall have direct care employees working to meet the minimum employee-toresident ratios required by this chapter.

N.D. Admin. Code 75-03-40-18 Nurse

1.The facility clearly shall define, in writing, the duties and responsibilities of the nurse which must be within the scope of North Dakota Century Code chapter 43-12.1.

2.A facility shall provide for an onsite nurse to accommodate the medical needs of residents.

3.The nursing employee may be an employee of the facility or a contracted provider available to provide onsite nursing services to residents.

4.The facility shall provide the nurse with a private office located on the property where the residents reside to allow for engagement during the day to meet residents' medical needs.

N.D. Admin. Code 75-03-40-19 Family engagement specialist

1.The facility clearly shall define, in writing, the responsibilities of family engagement specialists.

The duties of the family engagement specialist must be devoted to the provision of family engagement and aftercare service supports to best meet the needs of the resident and the resident's custodian, parent, or guardian. The family engagement specialist shall maintain ongoing contact with the resident's custodian, parent, or guardian as a liaison to the resident's treatment in the facility and postdischarge aftercare planning. Tasks may include:

a.Offering support to the treatment coordinator and the resident's treatment planning, while placed in the facility;

b.Providing and coordinating aftercare services and supports which may include making referrals and scheduling appointments;

c.Preparing the aftercare plan;

d.Communicating with the aftercare client and custodian, parent, or guardian, in collaboration with the treatment coordinator, at least twice per month or more often as needed;

e.Planning for crisis management and support to the aftercare client and the client's family;

f.Engaging with community providers to ensure continuity of services documented in the aftercare plan.

2.A family engagement specialist must have achieved the competencies necessary to implement family engagement strategies while the resident is in placement and coordinate an aftercare plan for no less than six months postdischarge.

3.The family engagement specialists must have a bachelor's degree or a high school diploma and have at least four years of experience working with children and families and have the competencies required by the facility to engage with children and families.

4.A facility shall have sufficient family engagement specialists to meet the needs of the residents and the resident's parent or guardian during placement and for no less than six months postdischarge.

5.The professional development and training records must document the family engagement specialist has had appropriate training to coordinate treatment services, including family engagement and trauma informed treatment.

N.D. Admin. Code 75-03-40-20 Contracted service providers

A facility may contract for or otherwise arrange professional services not provided by the facility when necessary for implementation of a resident's treatment plan. If a facility does contract for professional service providers to offer treatment onsite, the facility shall:

1.Maintain a list of all contracted service providers offering services onsite;

2.Require each contracted service provider to have the appropriate North Dakota license or certification; and

3.Require each contracted service provider to submit written reports to the facility on the resident's treatment progress.

N.D. Admin. Code 75-03-40-21 Nonemployees

1.A facility that uses nonemployees shall:

a.Develop and provide a copy of a description of duties and specified responsibilities;

b.Designate an employee to supervise and evaluate nonemployees; and

c.Develop a plan for the orientation and training of nonemployees to include the philosophy of the facility and the needs of the residents and the residents' families.

2.Nonemployees may provide services in support of, but not in substitution for, employees.

Nonemployees may not be counted as an employee for purposes of employee-to-resident ratio requirements imposed by this chapter.

3.Nonemployees shall create records of incidents that occur during their presence at the facility to the same extent employees are required to create such records.

4.Nonemployees shall comply with section 75-03-40-23.

N.D. Admin. Code 75-03-40-22 Personnel policies

The facility shall identify to the department all personnel positions, using the titles and duties described in this chapter. For purposes of internal operations, a facility may use any definition or title for its positions. All personnel must be capable of performing assigned duties. The facility shall have clearly written personnel policies for employees and when applicable, nonemployees. The facility shall make the policies available to all personnel. The policies must include:

1.An annual professional training and development plan for all positions;

2.Procedures for reporting suspected child abuse and neglect;

3.Procedures detailing employee supervision and the number of employees one supervisor can supervise. The facility shall require and document annual training for supervisors to maintain and improve competence in the supervisory role and in facility treatment practices;

4.Procedures for employee annual written evaluation;

5.Procedures for personnel disciplinary actions and terminations;

6.Procedures for storing personal belongings which may include car keys, cell phones, and personnel medication while on duty;

7.Procedures for personnel grievances;

8.Each facility shall implement policy and procedure to address:

a.Zero tolerance policies, which must include zero tolerance for sexual abuse and sexual harassment by personnel to others in the facility;

b.Nondiscrimination against all personnel; and

c.Steps taken when personnel violates policy, procedures, or licensing standards that affects the mental or physical well-being of a resident; and

9.A plan for review of the personnel policies and practices with employee participation at least once every three years, or more often as necessary. The facility shall document policy reviews, revisions, and employee participants in writing.

N.D. Admin. Code 75-03-40-23 Confidentiality

1.For purposes of this section, "persons who have a definite interest in the well-being of the residents" include:

a.The resident's custodian, parent, or guardian, except to the extent the parental rights have been terminated or limited by court order;

b.The referring agency that placed a resident in the facility; and

c.An individual or entity identified as a provider of services, as determined by the department, located in the home community of the resident, for the purposes of reunification.

2.Except as otherwise provided in this section, facility records concerning residents who have received, are receiving, or seek to receive facility services must be safeguarded and may be made available only:

a.To personnel of the facility, to the extent reasonably necessary for the performance of their duties;

b.To persons authorized by a custodian, parent, or guardian who may lawfully review a resident's records, to review or receive copies of that resident's records;

c.In a judicial proceeding;

d.As required by law;

e.To officers of the law or other legally constituted boards and agencies; or

f.To persons who have a definite interest in the well-being of the residents concerned, who are in a position to serve their interests, and who need to know the contents of the records to assure their well-being and interests.

3.A facility may not make public or otherwise disclose by electronic, print, or other media for fundraising, publicity, or illustrative purposes, any image or identifying information concerning any current resident or former resident receiving aftercare services or the family of the resident, without first securing the written consent of the custodian and parent or guardian of the resident, or the written consent of an adult who was a former resident of the facility. The facility shall:

a.Ensure the written consent is informative, including full disclosure of how the image or information will be used, including any future use, and specifically must identify the image or information that may be disclosed by reference to dates, locations, and other eventspecific information;

b.Inform the individual signing that the individual is free to either grant or refuse to grant consent;

c.Provide a seven-day waiting period during which the consent may be withdrawn by the signing party; and

d.Ensure the consent is time-limited. The written consent must apply to an event that occurs no later than one year from the date the consent was signed.

4.A facility shall disclose its records to the department as requested.

History

• Law Implemented: NDCC 50-06-15, 50-11-02, 50-11-05

N.D. Admin. Code 75-03-40-24 Child abuse and neglect

1.Upon hire and annually thereafter, all personnel shall certify having read the law requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, and having read and received a copy of the facility's written child abuse and neglect procedures.

2.Each facility shall adopt written policies and procedures requiring personnel to report cases of suspected child abuse or neglect. The procedures must include the following statement: "All personnel will comply with North Dakota Century Code Chapter 50-25.1, child abuse and neglect. Therefore, it is the policy of this facility that if any personnel knows or reasonably suspects the health or welfare of a current resident or former resident receiving aftercare services has been, or appears to have been, harmed as a result of abuse or neglect, that personnel immediately shall report this information to the department. Failure to report this information in the prescribed manner constitutes grounds for dismissal from employment or placement of nonemployee and referral of the personnel to the office of the state's attorney for investigation of possible criminal violation."

3.The facility's policies and procedures must describe:

a.To whom a report is made;

b.When a report must be made;

c.The contents of the report;

d.The responsibility of each individual in the reporting chain;

e.The status and discipline of personnel who fails to report suspected child abuse or neglect; and

f.The status of the personnel while the report is being assessed; if they are the subject of the report.

4.The facility shall cooperate fully with the department throughout the course of any assessment of any allegation of child abuse or neglect made concerning care furnished to a resident. The facility, at a minimum, shall provide the assessors with all documents and records available to the facility and reasonably relevant to the assessment and permit confidential interviews with personnel and residents. Internal facility interviews and investigations are not permitted to occur concurrent with a department assessment or law enforcement investigation.

5.In the case of an indicated determination, the facility shall notify the department licensing administrator, in writing, of the corrective action the facility has taken, or plans to take, to comply with any resulting recommendations from the state child protection team. The facility shall make assurances that revised facility practice will reduce the risk of the incident reoccurring. The facility shall respond within thirty days of receiving written notification of the determination.

6.A facility shall establish written policies specific to how the facility will proceed when a current or former personnel is known to be:

a.Involved in any capacity in a reported incident of institutional child abuse or neglect;

b.Involved in any capacity in a reported incident of suspected child abuse or neglect; or

c.The subject in a child abuse or neglect report that occurred outside of the facility, where the subject has been confirmed to have abused or neglected a child.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.
• Law Implemented: NDCC 50-11-02, 50-25.1-03

N.D. Admin. Code 75-03-40-25 Background checks and criminal conviction - Effect on operation of facility or employment by facility

1.The department requires an initial fingerprint-based criminal background check for all personnel with direct contact with residents. Subsequent fingerprint-based background checks are not required for personnel maintaining continuous employment at the facility, unless the department determines a need exists to conduct a subsequent investigation.

2.The department requires a child abuse and neglect index check as part of the initial fingerprint-based background check. An annual child abuse and neglect index check must be completed and placed in the personnel file.

3.A facility administrator may not be, and a facility may not employ or place, in any capacity that involves or permits contact between personnel and any resident cared for by the facility, an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter; or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery; if a class A or B felony under subsection 2 of that section; 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department determines the individual has not been sufficiently rehabilitated.

(1)The department may not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions has elapsed.

(2)An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction, is prima facie evidence of sufficient rehabilitation.

4.The department has determined the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on the individual's ability to serve the public in a capacity involving the provision of care to children.

5.In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C felony; or 12.1-31-07.1, exploitation of an eligible adult-penalty, if a class B or C felony or a class A misdemeanor; or

chapter 19-03.1, Uniform Controlled Substance Act, if a class A, B, or C felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions. The department may not be compelled to make such determination.

6.The department may discontinue processing a request for a criminal background check for any individual who provides false or misleading information about the individual's criminal

history.

7.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community verified by source documents;

b.Acknowledged by the individual; or

c.Discovered by the facility, authorized agent, or department as a result of a background check.

8.The department may request a fingerprint-based criminal background check if personnel of the facility are known to have been involved in, charged with, or convicted of an offense.

9.Fingerprint-based criminal background check results must be reviewed as follows:

a.If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel.

c.An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

d.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

e.The final decision of the review panel may not be appealed.

10.The facility shall make an offer of employment to an employee conditioned upon the individual's consent to complete required background checks. While awaiting the results of the required background check, the facility may choose to provide training and orientation to an employee. However, until the completed and approved required background check results are placed in the employee file, the employee may only have supervised interaction with residents.

11.The department may excuse personnel from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If personnel are excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the personnel lived during the eleven years preceding the signed authorization for the background check.

12.A facility shall establish written policies and engage in practices that conform to those policies to effectively implement this section, North Dakota Century Code section 50-11-06.8, and subsection 4 of North Dakota Century Code section 50-11-07.

13.A facility shall establish written policies specific to how the facility shall proceed if personnel is known to have been found guilty of, pled guilty to, or pled no contest to an offense.

History

• History: Effective October 1, 2019; amended effective April 1, 2024; October 1, 2024.
• Law Implemented: NDCC 50-11-02, 50-11-06.8

N.D. Admin. Code 75-03-40-26 Background checks

Repealed effective April 1, 2024.

N.D. Admin. Code 75-03-40-27 Personnel health requirements

1.All personnel must be capable of performing assigned tasks.

2.All employees shall undergo an initial health screening, performed by or under the supervision of a physician not more than one year prior to or thirty days after employment to verify good physical health to work in the facility. The professional performing the screening shall sign a report indicating the presence of any health condition that would create a hazard to others in the facility.

3.All personnel shall undergo an initial test or screening for tuberculosis, within thirty days after employment or placement, and test results placed in personnel files within thirty days of employment.

4.Unless effective measures are taken to prevent transmission, each facility shall develop a policy addressing that personnel suffering from a serious communicable disease must be isolated from other personnel and residents who have not been infected.

5.The facility shall develop a policy regarding health requirements for personnel, including how often health screenings and tuberculosis testing will be required by the facility following the initial screening requirements.

6.The facility shall develop a policy requiring all personnel to have the ability to carry out their assigned functions and duties. Personnel whose condition gives reasonable concern for safety of residents may not be in contact with residents in placement.

N.D. Admin. Code 75-03-40-28 Minimum employee requirements

a."Reside" means to sleep and keep personal belongings; and

b."Structure" means a building that is or may be free standing. The existence of a walkway, tunnel, or other connecting device on, above, or below ground is not effective to make one structure from two or more component structures.

2.Each facility shall adopt a policy specific to employee coverage for facility operations, including holidays, weekends, on-call clinical team rotations, daytime and overnight hours.

Policy must address:

a.Designated employees required for the facility on-call clinical team;

b.Number of qualified employees onsite to sufficiently meet the needs of residents and respond to emergency situations;

c.Evaluation of the number of employees necessary to meet the age, developmental level, length of treatment, and the service needs of the resident population;

d.Ability to ensure the safety of all residents and allow adequate space to properly separate residents based on the needs of the facility populations served;

e.Ability to schedule same gender or cross gender supervision if indicated by resident treatment needs; and

f.Employees hired specific to the onsite educational program may not be counted as direct care employees, treatment coordinator employee, family engagement specialist, facility administrator, or a clinical director during any time educational services are provided.

3.Each facility that operates more than one structure in which residents reside shall count the total number of residents admitted to the facility, residing in all structures collectively for purposes of determining the required number of clinical and treatment employees to meet employee-to-resident ratios.

4.Each facility shall comply with the following minimum employee-to-resident ratio requirements:

a.A rotating on-call clinical team must be available twenty-four hours a day, seven days a week to meet the needs of resident emergency and crisis situations. The on-call clinical team must include at a minimum one nurse and one clinical employee;

b.No less than one half-time facility administrator for a facility providing treatment for up to nine residents;

c.No less than one full-time facility administrator for a facility providing treatment for ten or more residents;

d.No less than one full-time clinical director;

e.No less than one full-time nurse;

f.No less than one full-time treatment coordinator employee for each ten residents; and

g.No less than one full-time family engagement specialist for each twenty residents or aftercare clients.

5.During awake hours each facility shall meet the standards of the facility's accrediting body or the ratios set forth in this subsection, if the ratios set forth in this subsection are greater than the employee-to-resident ratios set by the accrediting body.

a.Two employees who are qualified to provide direct care for one to twelve residents; and

b.One additional employee who is qualified to provide direct care for every one through six additional residents thereafter.

6.During overnight hours each facility shall have:

a.Awake employees at all times;

b.Employee-to-resident ratio at a rate not less than:

(1)Two employees who are qualified to provide direct care for one to twenty residents;

(2)One additional employee who is qualified to provide direct care for every one through ten additional residents thereafter; and

c.A policy that includes a requirement that an employee will check on residents during overnight hours at a minimum of every fifteen minutes, and more frequently if the acuity of the resident demands greater supervision. The overnight checks must be:

(1)Documented and available for review; and (2)Conducted in the least invasive manner to not disrupt the residents.

7.The facility shall notify the department, in writing, if the minimum employee-to-resident ratios are not met based on position vacancies. An interim plan to cover the employee duties must be approved by the department.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-29 Employee professional development

1.All employees in contact with residents shall receive at least twenty hours of training per year, with evidence of completion in the employee file.

2.Required trainings to prepare employees to meet the needs of residents served by the facility

a.Certified first aid;

b.Certified cardiopulmonary resuscitation and automated external defibrillator training;

c.Certified nonviolent crisis intervention training;

d.Institutional child abuse and neglect training;

e.Facility trauma informed care training;

f.Child abuse and neglect mandated reporter training;

g.Children's emotional and developmental needs; and

h.Suicide prevention training, including identification of signs and facility response measures.

3.A certified instructor shall provide training for nonviolent crisis intervention, first aid, cardiopulmonary resuscitation, and automated external defibrillator. Until a new employee has completed these required trainings, the facility administrator shall ensure that another employee, current in the required trainings, is scheduled to work on the same shift as the new employee pending training.

4.Prior to a new employee working independently with residents, the facility shall provide orientation training to the employee covering all of the following areas, with evidence of completion present in the employee file:

a.Facility philosophy and program goals;

b.Administrative procedures, policy, and protocols;

c.Personnel policies;

d.Programs and services offered onsite to residents;

e.Residents' emotional and physical needs;

f.Facility daily routine, activities, transportation, treatment group schedules, and meals;

g.Expected employee conduct toward residents;

h.Expected resident conduct while residing onsite;

i.Facility's behavior management, including de-escalation techniques;

j.Overview of trauma and facility trauma informed treatment;

k.Protocol for observing and reporting resident behavior;

l.Resident rights and grievance procedures;

m.Protocol for identifying and reporting of child abuse and neglect;

n.Suicide prevention, including identifying signs and facility response;

o.Disaster plan;

p.Resident search procedures and policies;

q.Confidentiality standards;

r.Procedures for reporting a runaway;

s.Fire safety and evacuation procedures;

t.Protocol for emergency medical procedures;

u.Protocol for facility security measures and access to visitors; and

v.Discuss interest in becoming certified for medication distribution.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-30 Resident file

1.Upon placement, a resident's case record is confidential and must be protected from unauthorized examination unless permitted or required by law or regulation. The facility shall adopt a policy regarding the retention of resident records.

2.The resident record must include on file:

a.A file inventory with dates of admission, discharge, aftercare, referral source, and emergency contact information;

b.The resident's full name, date of birth, and other identifying information;

c.A photo of the resident;

d.The name and contact information of a custodian and parent or guardian at the time of admission, as well as contact information of additional family members approved to engage in visitation and maintain family connections;

e.The date the resident was admitted and the referral source;

f.Signed care agreement or contract, including financial responsibility and expectations of all parties. The placement agreement must indicate a clear division of responsibility and

authority between the facility and the custodian and parent or guardian;

g.Signed written consents, as applicable;

h.A copy of the initial and all ongoing assessment reports completed by the department approved qualified individual or documentation indicating placement approval or denial if the resident is accepted for an emergency placement;

i.A copy of required interstate compact forms, as applicable;

j.If the resident is in public custody, a current court order establishing the placement

authority of a public agency;

k.Treatment progress reports must be provided to the resident, custodian and parent or guardian monthly, or upon request. Any progress reports received at the facility from an outside agency or professional providing services to the resident must be summarized and embedded in the resident's treatment plan;

l.Ongoing documentation and case activity logs detailing progress;

m.Documentation of discharge planning;

n.Visitation records. The facility shall have a formal plan for visitation signed by the custodian and parent or guardian detailing opportunities for the resident to engage in onsite visitation and home visits with family;

o.Education records;

p.All incident reports involving the resident; and

q.Documentation the clinical director, facility administrator, or designated employee has reviewed the resident case record monthly.

3.Resident medical information, including:

a.Consent for medical care. The facility has obtained written, signed informed consent that gives the facility, resident's physician, or health care consultant the following authority to:

(1)Provide or order routine medical services and procedures;

(2)Delegate and supervise administration of medications by authorized employees and for such employees to handle, provide the medication to the resident, and provide monitoring of resident self-administration;

(3)Obtain medical information, as needed, on the resident; and (4)Provide or obtain an order for medical services and procedures when there is a lifethreatening situation, emergency medical procedures, including surgery, when it is not possible to reach the individual or authority authorized immediately to give signed written specific informed consent;

b.Documentation about any special nutritional or dietary needs identified;

c.Documentation of health history;

d.Documentation of any medical treatments received while residing in the facility, including:

(1)Dates and individual administering medical treatment;

(2)Immunizations;

(3)Laboratory tests;

(4)Routine and emergency health care examinations;

(5)Dental examinations and treatment; and (6)Eye examinations and treatment;

e.Medication administration records; and

f.A copy of the treatment plan prepared by the facility.

4.The resident record must include aftercare supports for six months postdischarge. Information to include:

a.Contact information for the custodian and parent or guardian and others determined necessary for aftercare;

b.Date of discharge and six-month aftercare date of completion;

c.Documentation from the family engagement specialist detailing the aftercare or family treatment plan progress;

d.Documentation of ongoing communication with the resident, custodian and parent or guardian, and local providers; and

e.Upon six-month completion of aftercare, the resident file must include:

(1)Summary of the six-month aftercare services provided; and (2)A copy of the department-approved outcomes survey.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.
• Law Implemented: NDCC 50-11-02, 50-11-05

N.D. Admin. Code 75-03-40-31 Programs and services

Facility shall utilize trauma informed treatment and shall adopt a plan for the model which must include a description of services offered to residents and their families. The facility shall clearly state which services are provided directly by the facility and which services must be provided in cooperation with community resources, such as public or private schools, nursing, psychological, psychiatric, clinical services, and other appropriate services.

1.The facility shall have the ability to provide resource information for referral sources; including:

a.Identification of the treatment services provided;

b.Characteristics, including specific diagnoses, of children appropriate for referral and admission to the facility;

c.Trauma informed care model used;

d.The process by which the facility intends to achieve its goals;

e.Treatment orientation of the facility;

f.Information required with the referral;

g.Specialty programs offered by the facility;

h.Performance quality improvement data;

i.Education options available to residents;

j.Exclusions of residents the facility is unable to serve, if applicable; and

k.Other information as needed to assist with determining appropriate level of care for a resident to be placed in the facility.

2.Education. Any primary or secondary education program offered by a facility must be in compliance with standards established by the department of public instruction. The facility shall ensure all residents who receive care in the facility comply with all state school attendance laws.

3.Religious opportunities. The facility shall make a reasonable effort to make opportunities available for residents to attend religious ceremonies within the area in which the facility is located, giving appropriate consideration to any requests by the resident and the resident's family. The facility shall respect the religious beliefs of the resident and the resident's family.

4.Normalcy activities. The facility shall document the resident's normalcy activities and share the information with the resident's custodian and parent or guardian. Each facility shall create a written policy detailing:

a.The employee job description related to carrying out the duties of the reasonable and prudent parent standard;

b.The variety of normalcy activities offered on and offsite to residents; and

c.Procedures identifying supervision, transportation, and offsite activity emergency responses.

5.The facility shall develop policy specific to grievance procedures to allow residents and their families, referral sources, and stakeholders to submit complaints and grievances to the facility regarding programs and services. The facility shall have a policy in place to review and respond to the complaints and grievances. The facility shall maintain an annual record of complaints, grievances, and resolutions.

N.D. Admin. Code 75-03-40-32 Respite

A facility may operate an optional respite care program with approval of the department. Respite care is defined as temporary relief care for a resident with special medical, emotional, or behavioral needs, which requires time-limited supervision and care by a licensed foster care provider. A respite care episode is a specified period of time during which respite care is provided by a licensed provider.

1.Eligibility. Residents eligible for respite care offered by an approved facility include a child in foster care in public custody and a former qualified residential treatment program resident engaged in the six-month aftercare.

2.Admission and discharge. A facility operating a respite care program shall have the written policies and procedures for admissions and discharge for respite care, including eligibility into the respite program, admissions criteria, required belongings, medications needed upon admission, required identification documentation, authorizations needed, written consents for emergency medical care, medications, and discharge planning.

3.Staffing. A facility shall assign an employee to have primary responsibility for the facility's respite care program. Employee-to-resident ratios at a minimum, must meet the ratio as described in this chapter for direct care.

4.Program and services. A facility respite program must be developed which allows for a shortterm refocus of service delivery and supports for a community placement. Respite care placements are exempt from the medical examination requirements due to the short period of stay.

5.Respite care plan. A facility shall develop an abbreviated plan for each resident admitted to the facility for respite care. The abbreviated plan must provide for services to meet social, emotional, medical, and dietary needs. The respite plan must address daily routine, engagement in recreational activities, ongoing education, and discharge planning. The respite plan may include a list of facility-based and community-based services and supports the resident and family is currently receiving or will receive upon discharge.

6.Length of stay. A respite care placement may not extend beyond seven days per episode.

7.Discharge. When a resident is discharged from respite care, the facility shall document in the resident's respite file the dates of the resident's stay, a summary of the resident's stay, the name of the person to whom the resident was discharged, and a list of all personal belongings and medications that went with the resident upon discharge. A final plan must be provided to the custodian and parent or guardian upon discharge.

8.Respite resident file. A facility with a respite care program shall include:

a.The resident's full name, date of birth, and other identifying information;

b.The contact information of the custodian and parent or guardian at the time of admission;

c.The date the resident was admitted and discharged;

d.Signed respite care agreement;

e.Signed written consents, including consent to nonemergency use of psychotropic medication and consent for use of secured unit, if applicable;

f.If the resident is in public custody, a current court order establishing the facility's authority to accept and care for any resident under the custody of a public agency;

g.Copy of the abbreviated plan prepared by the facility; and

h.Medication administration records, if applicable.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-33 Admissions and assessment

1.Admissions policies and procedures. A facility shall have written resident admission policies and procedures that describe the primary treatment offered onsite, range of presenting behaviors the facility shall treat, and procedures for admitting a resident.

2.Admissions and discharge committee. A facility shall have an admissions and discharge committee with written policy specific to employees on the committee and the timeliness the committee has in responding to referrals. The committee shall meet on at least a weekly

basis.

3.Admission determination. The admissions committee shall complete a written, dated, and signed admission determination on a prospective resident which includes a preadmission review and identification of the prospective resident's primary presenting needs. The facility shall provide the admission determination to the referral within seven days of receipt of the completed application. Referral may be completed by:

a.A public agency, if a prospective resident is in foster care and a public agency is granted custody and given full placement authority pursuant to law or court order; or

b.A parent or guardian, if a prospective resident is preapproved by the department as a private placement.

4.Admission conditions. A facility may admit a prospective resident, as determined by the admission determination and the following conditions are met:

a.Qualified individual - Level of care assessment.

(1)Completed assessment. The facility has received documentation from the department-approved qualified individual granting approval for the resident to be admitted to a qualified residential treatment program based on the North Dakota level of care assessment; or (2)Emergency placement. A resident may be admitted to the facility for an emergency placement for a thirty-day level of care assessment period. Emergency placements denied for continued placement may not exceed thirty days from admission. For residents placed in the facility during the thirty-day level of care assessment period, the facility shall allow access to the qualified individual and collaborate in the completion of the required level of care assessment;

b.Juvenile court approval. For children in foster care, custodial case managers must receive confirmation from the juvenile court approving the qualified residential treatment program placement within sixty days of the resident's date of entry into the facility. A facility is not required to have a copy of the confirmation on file;

c.Interstate placements. In accepting a prospective resident from outside the state of North Dakota, the facility shall receive prior written approval under the interstate compact on the placement of children and meet all requirements of section 75-03-40-34;

d.Nondiscrimination against a resident; and

e.All documentation required for the resident record, including medical consent, medical

history, custodian, parent, or guardian contact information, family history, placement care agreement, and financial responsibility.

5.Orientation. Upon admissions, each resident shall receive orientation to facility living. An employee shall:

a.Orient the new resident and the custodian and parent or guardian to the facility program;

b.Help the new resident to adjust to the effects of residential placement; and

c.Provide the new resident and the custodian and parent or guardian copies of the facility rules, including rules on visiting, expected behavior and consequences for rule infractions, resident rights, and grievance and complaint procedures, with explanations of the documents.

6.Initial screenings must be completed immediately or no later than twenty-four hours from admission. A facility shall complete for each resident a:

a.Suicide risk screening;

b.Mental health screening; and

c.Health screening completed by the facility nurse. The health screening may include documenting height, weight, and identification of any distinct markings, such as a resident's birthmark, tattoos, bruises, or cuts.

7.Discharge date. Each admission must have preliminary plans for discharge.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-34 Interstate compact on the placement of children

1.All placements of children made from out of state must follow the interstate compact on the placement of children or the interstate compact for juveniles and be in full compliance with the appropriate interstate compact. It is the responsibility of the facility to ensure, prior to the placement in the facility, all necessary procedures pursuant to the interstate compact on the placement of children or the interstate compact for juveniles have been completed.

2.Before admitting an out-of-state resident, a facility shall make arrangement with the referral to assure a lawful return of the resident to the sending state without regard to the circumstance under which the resident is discharged.

3.Out-of-state referrals must adhere to all requirements of this chapter.

History

• Law Implemented: NDCC 12-66, 14-13

N.D. Admin. Code 75-03-40-35 Treatment plan

1.A treatment coordinator shall develop a written, individualized treatment plan for each resident. Upon admission, the facility shall conduct an initial assessment of the resident's treatment and service needs and develop a treatment plan. An initial abbreviated treatment plan should be developed immediately for each resident while the formal treatment plan is developed by utilizing the needs assessments and other collateral information within fourteen days. The resident's treatment plan must:

a.Indicate review of the level of care assessment completed by the qualified individual, as well as other supporting documentation to assist in the development of a written treatment plan;

b.Be based on a thorough assessment of the situation and circumstances of the resident and the resident's parent or guardian strengths and needs;

c.Support timely achievement of permanency, including reunification, guardianship, or adoption, if in foster care;

d.Specify details, including the resident's:

(1)Strengths and needs;

(2)Parent or guardian's strengths and needs;

(3)Behavioral functioning;

(4)Psychological or emotional adjustment;

(5)Personal and social development;

(6)Medical needs;

(7)Medication management;

(8)Educational and vocational needs;

(9)Independent living and transition skills; and (10)Recreational interests and normalcy activities;

e.Be time-limited, goal-oriented, and individualized to meet the specific needs of the resident as identified from the assessment, including:

(1)Implementation date;

(2)Goals and objectives that specify behaviors to be modified;

(3)Projected achievement dates, with measurable indicators or criteria for monitoring progress and assessing achievement of treatment goals; and (4)The name of the employee or community provider responsible for providing treatment required to the resident and the resident's parent or guardian;

f.Include and document the involvement from the resident, parent or guardian, public custodial agency, courts, schools, informal social network, residential treatment team members, peer support, or any other individuals important to the resident;

g.Document the conditions for discharge and estimated discharge date; and

h.Be reviewed at least every thirty days by the treatment coordinator employee or designated facility clinician. Changes and modifications must be made and documented in writing to ensure appropriateness of the treatment goals.

2.Family treatment. The facility shall plan for how the parent or guardian is integrated into the treatment process, including postdischarge aftercare services, and how sibling connections are maintained throughout placement. This section of the resident's treatment plan must

a.Contact information and outreach services with family members, including siblings. The plan must detail how the resident may maintain contact for any known family and appropriate social supports of the resident;

b.Family-based support during placement;

c.Family-based support for at least six months postdischarge;

d.Document and provide evidence of the resident's and family's involvement during ongoing planning efforts;

e.Document ongoing outreach to and engagement with family members during resident's treatment. The facility shall maintain contact with the resident's custodian and parent or guardian at least weekly. Type of contact may be detailed and includes face-to-face, phone calls, and written communication;

f.Date and signature of the resident, employee, custodian, parent or guardian, and others, as applicable; and

g.Evidence of facility providing the treatment plan to the resident's custodian and parent or guardian.

3.Visitation plan. The facility shall detail in the resident's treatment plan the agreed upon visitation schedule for the resident from the custodian and parent or guardian. The plan shall identify approved visitors and opportunities for the resident to engage in home visits. A resident who engages in home visits shall have an active safety plan provided to the responsible party supervising the resident on a home visit.

4.Resident acknowledgment. The written treatment plan must include an indication of who must provide treatment coordination, and the residents' signature or the signed statement of the treatment coordinator employee that the treatment plan was explained to the resident and the resident refused to sign the treatment plan.

5.Electronic filing. If a facility engages in electronic data entry and case filing, the facility shall develop a policy to manage this process. The policy must include the electronic medical records process, procedures for internal network security, employee access, and management of facility data, backup systems, and how the facility shall engage in electronic file sharing with the resident's custodian and parent or guardian.

N.D. Admin. Code 75-03-40-36 Discharge plan

Each resident must have their discharge plan developed upon admission and reviewed ongoing as

part of the treatment plan.

1.Persons involved in discharge planning should include:

a.Resident;

b.Resident's parent or guardian;

c.Custodian, if applicable;

d.Psychiatrist, if applicable;

e.Therapist, if applicable;

f.Clinical director;

g.Treatment coordinator employee;

h.Facility nurse;

i.Facility educator or community teacher;

j.Direct care employee;

k.Foster care providers, if applicable;

l.Juvenile court, if applicable; and

m.Other individuals important to the resident and family.

2.The discharge plan must address the following:

a.The date of admission;

b.The anticipated date of discharge;

c.Details of the events and circumstances leading to the decision to discharge;

d.The name and address of the individual or agency to whom the resident must be discharged and the rationale for planning a discharge to that individual or agency;

e.A summary of services provided during placement;

f.A summary of goal achievement;

g.A summary of the resident's continuing needs, including health care, educational or vocational training, psychiatric, medical, psychological, social, behavioral, developmental, and chemical dependency treatment needs;

h.Appointments scheduled, including individual therapy, psychiatric services, educational services, and other services or supports as needed;

i.Medication plan, including a seven-day supply of needed medication and a prescription for medication to last through the first outpatient visit with a prescribing provider;

j.A summary of community-based service needs for the resident and resident's family;

k.A summary of efforts made by the facility to prepare the resident and the resident's family for discharge; and

l.The facility's plan for the six months of aftercare services for the resident and the resident's family.

3.The discharge committee shall review and approve each anticipated discharge thirty days prior to the discharge and provide the completed discharge plan to the custodian at least seven days prior to the anticipated discharge. A discharge planning meeting involving the resident, custodian, parent or guardian, facility treatment team, additional family members, community service providers, and foster care provider, if applicable must take place at least seven days before discharge to review and sign the discharge plan to ensure the continuity of services consistent with the resident's treatment needs after discharge.

4.If a discharge is not anticipated at least thirty calendar days ahead of time, the discharge is considered unplanned and the facility shall:

a.Hold a discharge planning meeting involving the resident, custodian, parent or guardian, facility treatment team, additional family members, and any other relevant parties. This meeting must allow relevant parties time to review the discharge plan and aftercare engagement strategies while discussing services needed to best meet the needs of the resident.

b.Create and provide in writing a finalized discharge and aftercare plan to the custodian and parent or guardian at least seven days prior to the resident's discharge.

c.Provide the discharge plan and aftercare plan no greater than seven days postdischarge, if an immediate discharge occurred.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-37 Resident and family engagement

The facility shall create a written policy detailing how the facility embeds foundational concepts of family-driven, resident-guided care into the overall treatment model. The facility's policy shall account for situations in which termination of parental rights has occurred and limitations are set forth in a court order or law. The facility shall document and provide evidence of the resident's and their family's involvement in ongoing treatment planning. Resident and family engagement strategies may include:

1.Ongoing outreach to families during resident's treatment;

2.Engagement of family and resident in treatment;

3.Recognition of resident and family members as co-experts in treatment efforts;

4.Permitting family member onsite visits at any time, encouraging or requiring frequent phone contact, and supporting frequent home visits;

5.Intervention efforts occurring in the home and community whenever possible;

6.Parent involvement, if appropriate, in facility professional development trainings;

7.Resident and family participation in case planning and discharge planning meetings;

8.Resident advocacy and leadership training and opportunities within the facility with access and connections made in the community;

9.Parent advocacy and leadership training opportunities within the facility with access and connections made in the community;

10.Teaching a foundation of negotiation and conflict resolution skills to residents and their families; and

11.Creating and connecting residential intervention with a resident's community through outpatient services and providing a range of supporting services to meet each resident and family where they reside, ranging from traditional office based out-patient to intensive in-home supports, planned and crisis respite care, or skills coaches working in community settings.

N.D. Admin. Code 75-03-40-38 Aftercare

The facility shall establish written policies and procedures regarding how the six-month aftercare requirements must be implemented to best meet the needs of residents and families, including completion of an aftercare plan that identifies how the facility will ensure continuity of services provided to the resident and the resident's parent or guardian, postdischarge.

1.The aftercare plan must be created prior to discharge in collaboration with the resident and the resident's custodian, parent, or guardian and must include:

a.A list of followup appointments scheduled by the facility;

b.A list of resident and family supports;

c.A list of resources and referrals completed by the facility engagement specialist to meet the needs of the resident, which includes documentation that a release of information was signed by the custodian, parent, or guardian for the family engagement specialist to maintain postdischarge communication regarding services;

d.Coordination with and contact information for local service providers;

e.A safety plan created to address treatment needs of the resident upon return to the community;

f.Documented plan for engagement with the resident and the resident's custodian, parent, or guardian, service providers, and other relevant parties; and

g.Documented participation in child and family team meetings if the resident remains in foster care.

2.Aftercare policy applies to all residents accepted into the facility for treatment. If a resident is placed as an emergency placement and not approved for treatment, aftercare services are not required.

3.The aftercare six-month followup period must begin the day following the resident's discharge from the facility. The facility shall implement the aftercare plan developed as part of the discharge planning process. The facility may directly provide aftercare services and supports or coordinate with local service providers.

4.The facility shall conduct a department-approved postresidential outcomes survey at the conclusion of the six-month required aftercare period.

5.Postdischarge aftercare services must be provided by the facility as follows:

a.If a resident discharged from the facility remains in foster care, the facility shall collaborate with the custodial agency to implement the six-month aftercare plan.

b.If a resident is discharged and no longer in foster care, the facility shall coordinate the ongoing six-month aftercare with the resident and resident's parent or guardian.

c.If a resident is successfully discharged, but does require readmission to a facility, the aftercare services will discontinue and a new aftercare period will begin postdischarge from the current facility placement.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024; October 1, 2024.

N.D. Admin. Code 75-03-40-39 Runaway notification

1.A facility shall have written policies and procedures for notification if a resident has left the facility without permission or fails to return to the facility after an approved leave. Facility policy and procedures must detail how the determination is made that a resident is missing and must identify the employee designated to promptly complete notifications.

2.Facility notifications include:

a.Law enforcement officials and custodian and parent or guardian immediately after the facility confirms the whereabouts of the resident are unknown; and

b.The department's interstate compact administrator within forty-eight hours of an out-of-state resident's absence.

3.When the resident is found, the facility shall report the resident's return immediately to the law enforcement officials and the resident's custodian and parent or guardian.

History

• General Authority: NDCC 50-11-01

N.D. Admin. Code 75-03-40-40 Incident and sentinel event reporting

The facility shall have written policy outlining the documentation of incidents and sentinel events that occur while the resident is in placement. Policy must include:

1.Description of an incident as an unplanned occurrence that resulted or could have resulted in injury to people or damage to property, specifically involving the general public, residents, or agency employees.

a.Incidents involving law enforcement, including in the case of a runaway, criminal activity, behavior resulting in harm to others, or restraint injury. An incident also may involve issues, such as outbreak of a serious communicable disease, harassment, violence, and discrimination.

b.Notification must be made to the custodian and parent or guardian immediately or no more than twelve hours.

2.Description of a sentinel event as an unexpected occurrence involving death or serious physical or psychological injury not related to the natural course of a resident's illness or underlying condition, including any process variation for which a reoccurrence would carry a significant chance of a serious adverse outcome.

a.Sentinel events include serious injury or trauma to a resident, attempted suicide by the resident, death of a resident, or inappropriate sexual contact.

b.Notification must be made to the custodian and parent or guardian, and the department immediately or no more than twelve hours.

3.Documentation of an incident or sentinel event must be completed and placed in the resident's record. The report must include:

a.Resident's name, age, and sex;

b.A description of the incident or event;

c.The date, time, and location of the incident or event;

d.The name of each personnel involved;

e.Methods used to address the resident's behavior, including duration of each intervention;

f.Detailed description of the technique or approach engaged with the resident at the time of the incident or event;

g.Results achieved from methods used to address resident behavior; and

h.Injuries received by either the resident or an employee in using physically enforced separation or restraint, how the injuries occurred, and any medical care provided.

4.The facility shall maintain a log of written reports of incidents involving residents.

5.Direct care employees must be given time at the beginning of each shift to be informed of or review incident reports occurring since their last shift.

6.Personnel and residents must be given time to debrief the incident with clinical personnel.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-41 Suicide prevention

A facility shall develop a suicide prevention plan that addresses several key components, including:

1.Personnel training;

2.Intake screening;

3.Ongoing risk assessments;

4.Levels of supervision for resident's;

5.Intervention options;

6.Use of suicide prevention kits with cut down tools;

7.Facility communication, notification, and referral procedures;

8.Reporting and documentation; and

9.Sentinel event debriefing procedures.

N.D. Admin. Code 75-03-40-42 Medical

1.The facility shall adopt a comprehensive written plan of preventive, routine, and emergency medical care for residents, including first aid, dental, optical care, and administration of prescription and nonprescription medicine. If a resident is due for a medical examination, the facility shall arrange for a physical examination within seven days of admission and for a dental or optical examination, if needed, within ninety days of admission. The facility shall arrange and provide for necessary remedial and corrective measures for every resident as soon as possible after an examination indicates a need.

2.The facility shall have policies governing the use of psychotropic medications.

3.The facility shall have a plan to separate an ill resident from other residents only if necessary, because of the severity of the illness and it is contagious or infectious.

4.The facility shall have a policy to prevent transmission of infection from all blood or other body fluid exposures, and all personnel shall be aware of and follow policy related to universal precautions.

5.The facility shall have a first aid kit on each level of the building housing residents, in buildings where resident activities take place, and in every vehicle used to transport residents. The first aid kit must be placed where it is inaccessible to residents, but accessible to personnel. A first aid kit must be inventoried and resupplied after each use.

6.The facility shall have a suicide prevention kit on each level of the building housing residents; including a cut down tool. The kit must be placed where it is inaccessible to residents, but accessible and readily available to personnel. A kit must be inventoried and resupplied after each use.

N.D. Admin. Code 75-03-40-43 Medication management

a."General supervision" means regular coordination, direction, and inspection of the exercise of delegation of medication administration by a physician or nurse of an employee not licensed to administer medications.

b."Medication administration" means proper administration of medication to a resident by an employee designated and trained for the administration of medications.

c."Monitoring of resident self-administration" means distributing the medication to the resident by a designated and trained employee according to physician and medication label instructions and observing and ensuring the proper ingestion, injection, application, or inhalation of the medication by the resident.

2.The facility shall adopt comprehensive written policies and procedures for medication administration and monitoring of resident self-administration. Each employee responsible for administering medication or monitoring of resident self-administration shall receive a copy of the facility policies and procedures for medication administration and monitoring of resident self-administration and shall be knowledgeable of them. The policies and procedures must

a.Medications administration:

(1)Having written informed consent on file;

(2)Having information in each resident's health record about any health allergies or health-related restrictions;

(3)Having on file written authorization from a physician or nurse for each employee permitted to administer medications or to monitoring of resident self-administration;

(4)Instructions for employees concerning administration of medications and monitoring of resident self-administration of medications, secure storage of medications, and recording medication administration information in the resident's health record;

(5)Immediate notification to the facility nurse of all medication errors;

(6)Immediate notification of a physician in the event of a resident's adverse drug reaction; and (7)Medications distributed onsite may only occur when an employee authorized by the facility is present;

b.For prescription medications, all of the following apply:

(1)Require the medication be administered by employees certified to distribute medication to a resident only when:

(a)The resident's attending physician or medical consultant provides employees with clear written instructions for administering the medication and authorizes the facility to administer the medication;

(b)The administration takes place under the general supervision of a physician or nurse. Employees certified to distribute medication are supervised by the facility nurse; and (c)The label on the medication container gives clear instruction for administration of the medication and, if not clear, the facility shall contact the physician or pharmacy for clarification before administration of the medication; and (2)Allowing a medication to be self-administered onsite by a resident only while the resident is under direct supervision of an employee and if self-administration is authorized in writing from the prescribing physician or facility medical consultant;

c.Information to employees, a resident, and the custodian and parent or guardian about any medication prescribed for the resident and when a physician orders any changes to the resident's medication. Information must include expected benefits and potential adverse side effects that may affect the resident's overall treatment. Employees also shall be informed on procedures of what to do if the resident refuses medication;

d.Instructions for employees on what to look for in monitoring physical or mental changes to a resident that may occur from a medication, what to do if physical or mental changes are observed, and documentation needed in the resident's health record;

e.Arrangement for a second medical consultation when a resident or the custodian and parent or guardian has concerns about any medication received by the resident or the resident's medication plan;

f.The resident's physician or facility medical consultant review a resident's prescription when there are noted adverse effects from the medication. Documentation showing the date of review and reviewer's name must appear in the resident's health record;

g.The use of any nonprescription medication is based on an assessment by a physician or nurse and is approved by either a physician or nurse;

h.Arrangement for administration of prescribed medications to a resident when the resident is away from the facility. A resident may not be given access to medications if there is reason to believe the resident may harm themself through abuse or overdose;

i.Medications storage. A facility shall comply with all the following requirements for storage of medications:

(1)Medications must be kept in locked cabinets or containers and under proper conditions of sanitation, temperature, light, moisture, and ventilation to prevent deterioration;

(2)A facility immediately shall dispose properly of all outdated prescriptions, over-thecounter medication, and all prescription medication no longer in use; and (3)The facility shall maintain a log of the medication properly disposed, which employee disposed of it, and what and how much was disposed;

j.Medication administration record. A facility shall have in each resident's health record a written medications administration record which lists each prescribed and over-thecounter medication the resident receives. The record must contain the following information:

(1)For an over-the-counter medication, the resident's name, type of medicine, reason for use, times and day of administration, and employee authorizing its use; and (2)For a prescription medication, all of the following apply:

(a)The name of the resident;

(b)The generic or commercial name of the medication;

(c)The date the medication was prescribed;

(d)The name and telephone number of the prescriber to call in case of a medical emergency;

(e)The reason the medication was prescribed;

(f)The dosage;

(g)The time or times of day for administering the medication;

(h)Documentation of all medication administered with the date and time of administration or, if not administered, with the date and time of resident refusal to take it;

(i)The method of administration, such as orally or by injection;

(j)The name of the employee who administered or monitored resident selfadministration of the medication;

(k)Any adverse effects observed; and (l)Any medication administration errors and corrective or other action taken; and

k.Psychotropic medications. In this subdivision, "psychotropic medication" means any drug that affects the mind and is used to manage behavior or psychiatric symptoms.

(1)Nonemergency procedures. A facility serving a resident for whom psychotropic medications are prescribed shall ensure all of the following requirements are met:

(a)Arrangements have been made for a physician or medical consultant to complete a medical screening of the resident for the type of psychotropic medication to be prescribed;

(b)The resident, if fourteen years of age or older, and the custodian have signed written consent forms agreeing to the use of the psychotropic medication. The facility shall pursue consent from a parent or guardian with the final consent made by the custodian; and (c)The facility has obtained from the prescribing physician or medical consultant a written report within the first forty-five days after the resident has first received a psychotropic medication and at least every sixty days thereafter. The report must state in detail all of the following: [1]Reasons for the initial use of the medication; [2]Reasons for continuing, discontinuing, or changing the medication; [3]Any recommended change in treatment goals or program; and [4]The method and procedures for administering or monitoring of resident self-administration of a psychotropic medication must have been approved by the prescribing physician or medical consultant.

(2)Emergency procedures. For emergency administration of a psychotropic medication to a resident, a facility shall:

(a)Have authorization from a physician;

(b)Notify the custodian and parent or guardian as soon as possible following emergency administration. The facility shall document the dates, times, and individuals notified in the resident's record; and (c)Document the physician's reasons for ordering the emergency administration of psychotropic medication.

(3)Revocation of consent or refusal. A resident or custodian may at any time revoke consent for nonemergency use of psychotropic medications. The facility shall consider the consent or refusal of the resident's parent or guardian. When a consent is revoked, the facility shall do all of the following:

(a)Document the reasons for refusal;

(b)Employee who personally witnessed the refusal shall sign a written statement indicating the event and place it in the file;

(c)Notify the resident's physician or medical consultant; and (d)Notify the custodian and parent or guardian. Notification must be provided immediately if the resident's refusal threatens the resident's well-being and safety.

N.D. Admin. Code 75-03-40-44 Behavior management intervention

1.A facility shall create a trauma informed culture that promotes respect, healing, and positive behaviors and which minimizes the use of restrictive behavior management interventions to the extent possible.

2.The facility shall provide the resident, custodian, and parents or guardians a list of facility expectations and behavior management intervention guidelines.

3.A facility shall adopt and implement written policies and procedures for behavior management consistent with the following:

a.Compliance with the standards of the facility's accrediting body.

b.Behavior management interventions must be constructive or educational in nature.

c.Only employees of the facility may prescribe, administer, or supervise the behavior management interventions of the resident.

d.A resident may not be subject to:

(1)Physical abuse;

(2)Excessive physical exercise or other activities causing physical discomfort;

(3)Unduly strenuous physical work;

(4)Verbal abuse, ridicule, or humiliation;

(5)Penalizing a group for an identified group member's misbehavior;

(6)Any aversive measure that is painful, discomforting, dangerous, or potentially injurious; or (7)Denial of any of the following items:

(a)Shelter;

(b)Emotional support;

(c)Sleep;

(d)A place to sleep with a pillow and bedding;

(e)Meals or menu items;

(f)Clean clothes;

(g)Personal or telephone visits with the resident's custodian, parent or guardian, or advocate;

(h)Time necessary for personal hygiene;

(i)Minimum exercise;

(j)Mail;

(k)Access to toilet and water facilities, as needed;

(l)Attendance at a religious service or religious counseling;

(m)Clean and sanitary living conditions;

(n)Medication;

(o)Program services or treatment; or (p)Entry to the facility.

4.For the purposes of this section, "time-out" means a behavior management intervention technique that is part of an approved program that involves the voluntary option of a resident to move to an unlocked designated area for a period of time to regain self-control.

5.Application of time-out by a facility must be as follows:

a.A resident in time-out must never be physically prevented from leaving the time-out area.

b.Time-out may take place away from the area of activity or from other residents, such as in the resident's room, or in the area of activity or other residents.

c.An employee continuously shall observe the resident while the resident is in time-out and provide calming assistance as prescribed in the resident's treatment plan.

N.D. Admin. Code 75-03-40-45 Emergency safety interventions

The facility shall provide and administer emergency safety interventions as follows:

a."Drug used as a restraint" means any drug that:

(1)Is administered to manage a resident's behavior in a way that reduces the safety risk to the resident or others;

(2)Has the temporary effect of restricting the resident's freedom of movement; and (3)Is not a standard treatment for the resident's medical or psychiatric condition.

b."Emergency safety intervention" means the use of restraint as an immediate response to an emergency safety situation involving unanticipated resident behavior that places the resident or others at threat of serious violence or serious injury if no intervention occurs.

c."Emergency safety situation" means a situation where immediate risk of harm is present due to unanticipated resident behavior that places the resident or others at threat of serious violence or serious injury if no intervention occurs and that calls for an emergency safety intervention as defined in this section.

d."Personal restraint" means the application of physical force without the use of any device, for the purposes of restraining the free movement of a resident's body. The term personal restraint does not include briefly holding without undue force a resident to calm or comfort him or her, or holding a resident's hand to safely escort a resident from one area to another, or a physical escort which means a temporary touching or holding of the hand, wrist, arm, shoulder, or back for the purpose of inducing a resident who is acting out to walk to a safe location.

e."Tier 2 mental health professional" has the same meaning as the term defined in subsection 9 of North Dakota Century Code section 25-01-01.

2.Education and training related to emergency safety interventions:

a.Individuals who are qualified by education, training, and experience shall provide employee education and training.

b.Employees must be trained and demonstrate competency before participating in an emergency safety intervention.

c.The facility shall document in the employee personnel records that the training and demonstration of competency were successfully completed.

d.All training programs and materials used by the facility must be available for review by the accreditation body and the state agency.

e.The facility shall require employees to have ongoing education, training, and demonstrated knowledge and competency of all of the following, no less than semiannually:

(1)Techniques to identify employee and resident behaviors, events, and environmental factors that may trigger emergency safety situations;

(2)The use of nonphysical intervention skills, such as de-escalation, mediation conflict resolution, active listening, and verbal and observational methods, to prevent emergency safety situations;

(3)The safe use of restraint, including the ability to recognize and respond to signs of physical distress in residents who are restrained; and (4)Training exercises in which employees successfully demonstrate in practice the techniques they have learned for managing emergency safety situations.

3.Emergency safety intervention:

a.Facilities shall have a policy for the safe use of emergency safety interventions;

b.Restraint may be used only when a resident poses an immediate threat of serious violence or serious injury to self or others and must be discontinued when the immediate threat is gone;

c.Employees shall document all interventions attempted to de-escalate a resident before the use of a restraint;

d.When restraint is deemed appropriate, personal restraint is allowed;

e.Mechanical restraints, prone restraints, and drugs or chemicals used as a restraint are prohibited;

f.The use of seclusion by the facility is prohibited;

g.Employee training requirements must include procedures:

(1)For when restraint may and may not be used;

(2)That safeguard the rights and dignity of the resident;

(3)For obtaining informed consent, including the right of the custodian and parent or guardian of the resident to be notified of any use of restraint or any change in policy or procedure regarding use;

(4)Regarding documentation requirements of each restraint episode and the use of such data in quality improvement activities; and (5)Regarding the debriefing of the resident and employees immediately after incidents of restraint; and

f.Quality management activities must examine the following:

(1)Available data on the use of these practices and their outcomes, including the frequency of the use of restraint, settings, authorized employees, and programs;

(2)The accuracy and consistency with which restraint data is collected, as well as the extent to which restraint data is being used to plan behavioral interventions and employee training;

(3)Whether policies and procedures for using these practices are being implemented with fidelity;

(4)Whether procedures continue to protect residents; and (5)Whether existing policies for restraint remain properly aligned with applicable state and federal laws.

4.Personal restraint:

a.Personal restraint is the only form of restraint allowed.

b.If an emergency safety situation occurs and a personal restraint is determined necessary, the following actions are prohibited:

(1)Any maneuver or techniques that do not give adequate attention and care to protection of the resident's head;

(2)Any maneuver that places pressure or weight on the resident's chest, lungs, sternum, diaphragm, back, or abdomen causing chest compression;

(3)Any maneuver that places pressure, weight, or leverage on the neck or throat, on any artery, or on the back of the resident's head or neck, or that otherwise obstructs or restricts the circulation of blood or obstructs an airway, such as straddling or sitting on the resident's torso;

(4)Any type of choke hold;

(5)Any technique that uses pain inducement to obtain compliance or control, including punching, hitting, hyperextension of joints, or extended use of pressure points for pain compliance; and (6)Any technique that involves pushing on or into a resident's mouth, nose, or eyes, or covering the resident's face or body with anything, including soft objects, such as pillows, washcloths, blankets, and bedding.

5.Authorization for the use of restraint:

a.Authorization for restraint must be given by a tier 2 mental health professional and the tier 2 mental health professional must be trained in the use of the facility emergency safety interventions.

b.The authorization must indicate the least restrictive emergency safety intervention that is most likely to be effective in resolving the emergency safety situation based on consultation with the clinical director.

c.If the authorization for restraint is verbal, the verbal authorization must be received by a clinical team member, while the emergency safety intervention is being initiated by an employee or immediately after the emergency safety situation ends. The tier 2 mental health professional must verify the verbal authorization in a signed written form in the resident's record and be available to the resident's treatment team for consultation, in person or through electronic means, throughout the period of the emergency safety intervention.

d.Each authorization for restraint:

(1)Must be limited to no longer than the duration of the emergency safety situation;

(2)May not exceed the amount of time necessary to begin verbal de-escalation techniques with the resident; and (3)Must be signed by the tier 2 mental health professional no later than twelve hours from initiation of a verbal authorization.

e.Within one hour of the initiation of a restraint, a face-to-face assessment of the physical and psychological well-being of the resident must be completed, documenting:

(1)The resident's physical and psychological status;

(2)The resident's behavior;

(3)The appropriateness of the intervention measures; and (4)Any complications resulting from the intervention.

f.Each authorization for restraint must include:

(1)The name of the tier 2 mental health professional;

(2)The date and time the authorization was obtained; and (3)The emergency safety intervention authorized, including the length of time authorized.

g.An employee shall document the intervention in the resident's record. That documentation must be completed by the end of the shift in which the intervention occurs. If the intervention does not end during the shift in which it began, documentation must be completed during the shift in which it ends. Documentation must include all of the following:

(1)Each authorization for restraint as required in subdivision f;

(2)The time the emergency safety intervention began and ended;

(3)The time and results of the one-hour assessment required in subdivision e;

(4)The detailed emergency safety situation that required the restraint; and (5)The name of each employee involved in the restraint intervention.

h.The facility must maintain a record of each emergency safety situation, the interventions used, and their outcomes.

i.If a tier 2 mental health professional authorizes the use of restraint, that individual shall:

(1)Consult with the resident's prescribing physician as soon as possible and inform the resident's physician of the emergency safety situation that required the restraint;

(2)Document in the resident's record the date and time the resident's prescribing physician was consulted.

6.Monitoring of the resident in and immediately after restraint:

a.An on-call clinical team member trained in the use of emergency safety interventions shall be physically present, continually assessing and monitoring the physical and psychological well-being of the resident and the safe use of restraint throughout the duration of the emergency safety intervention.

b.If the emergency safety situation continues beyond the time limit of the authorization for the use of restraint, a nurse or other on-call clinical team member, immediately shall contact the tier 2 mental health professional, to receive further instructions.

c.Upon completion of the emergency safety intervention, the resident's well-being must be evaluated immediately after the restraint has ended.

7.Notification of custodian and parent or guardian:

a.The facility shall notify the custodian and parent or guardian of the resident who has been restrained as soon as possible after the initiation of each emergency safety intervention.

b.The facility shall document in the resident's record that the custodian and parent or guardian has been notified of the emergency safety intervention, including the date and time of notification and the name of the employee providing the notification.

8.Postintervention debriefings:

a.Within twenty-four hours after the use of restraint, employees involved in an emergency safety intervention and the resident shall have a face-to-face discussion. This discussion must include all employees involved in the intervention except when the presence of a particular employee may jeopardize the well-being of the resident. Other employees and the custodian and parent or guardian may participate in the discussion when it is deemed appropriate by the facility. The facility shall conduct such discussion in a language understood by the custodian and parent or guardian. The discussion must provide all parties the opportunity to discuss the circumstances resulting in the use of restraint and strategies to be used by the facility, the resident, or others who could prevent the future use of restraint.

b.Within twenty-four hours after the use of restraint, all employees involved in the emergency safety intervention, and appropriate supervisory and administrative leadership, shall conduct a debriefing session that includes, at a minimum, a review and discussion of:

(1)The emergency safety situation that required the emergency safety intervention, including a discussion of the precipitating factors that led up to the emergency safety intervention;

(2)Alternative techniques that might have prevented the use of the restraint;

(3)The procedures, if any, employees are to implement to prevent any recurrence of the use of restraint; and (4)The outcome of the emergency safety intervention, including any injuries that may have resulted from the use of restraint.

c.An employee shall document in the resident's record that both debriefing sessions took place and shall include in that documentation the names of employees who were present for the debriefing, names of employees excused from the debriefing, and any changes to the resident's treatment plan that resulted from the debriefings.

History

• History: Effective October 1, 2019; amended effective October 1, 2021; April 1, 2024.

N.D. Admin. Code 75-03-40-46 Use of special care unit

Repealed effective October 1, 2021.

N.D. Admin. Code 75-03-40-47 Buildings, grounds, and equipment

1.A facility shall comply with all state, county, and local building and zoning codes and ordinances as well as all applicable state, county, and local safety, sanitation laws, codes, and ordinances.

2.A facility must be inspected annually by the local fire department or the state fire marshal's office. A facility shall correct any deficiencies found during these inspections. The facility shall keep a written report of the annual inspection and provide a copy to the department, including evidence of correction of noted deficiencies. All chimneys, flues, and vent attachments to combustion-type devices must be structurally sound, appropriate to the unit or units attached to them, and cleaned and maintained as necessary to provide safe operation. The heating system of each facility, including chimneys and flues, must be inspected at least once each year by a qualified individual.

3.A facility shall have a 2A 10BC fire extinguisher certified by Underwriters' Laboratories, maintained in accordance with the manufacturer's instructions, and located in areas defined in the fire code. All required fire extinguishers must be checked once a year and serviced as needed. Each fire extinguisher must have a tag or label securely attached indicating the month and year the maintenance check was performed last completed.

4.The facility shall have smoke detectors installed and maintained in accordance with the manufacturer's instructions and located in areas defined in the fire code.

5.If applicable, the facility shall have carbon monoxide detectors installed and maintained in accordance with the manufacturer's instructions and located in areas defined in the fire code.

6.The facility may install automatic sprinklers in bedrooms, hallways, and areas required by fire code. If an automatic sprinkler system is installed, it must be inspected annually and a copy of the inspection must be provided to the department.

7.The facility must be equipped with furnishings suitable to the needs of the residents.

Recreational space and equipment must be safe, functional, and available for all residents.

8.The facility shall have one centrally located living room for the informal use of residents.

9.The facility shall have a dining room area large enough to accommodate the number of residents served.

10.A facility shall provide space and privacy for individual interviewing and counseling sessions.

This space must be separate and apart from rooms used for ongoing program activities.

11.A facility shall have bedroom accommodations for the residents as follows:

a.The facility shall have at least one bedroom for each three residents;

b.The facility may not permit nonambulatory residents to sleep above or below the ground floor;

c.There may be no more than one resident per bed, and triple bunks are prohibited;

d.All bedrooms must have at least one window that can open to the outside. A facility may implement further restrictions such as a safety lock to the window, if it is determined to be a benefit for resident safety. If a lock is placed on a bedroom window, the facility must have an automatic sprinkler system and fire alarm system installed and notify the department in writing this additional safety measure has been implemented. Notification to the department must include policy surrounding the need and duration;

e.A sleeping room may not be in an unfinished attic, hallway, or other room not normally used for sleeping purposes;

f.A basement that has over half its outside walls below grade and no door opening directly to the outside may not be used for bedrooms, unless the bedroom space has egress windows;

g.Furnishings must be safe, attractive, easy to maintain, and selected for suitability to the age and development of the residents; and

h.A facility shall have sufficient individual storage areas to accommodate resident's clothing and other personal belongings.

12.A facility shall have one complete bathroom to include a toilet, washbasin, and a tub or shower for each six residents and:

a.All bathroom facilities must be indoors, equipped with hot and cold running water, and kept clean;

b.When bathroom units contain more than one toilet, tub, or shower, each must be in a separate compartment; and

c.The facility shall provide bathrooms with nonslip surfaces in showers or tubs.

13.Facilities shall ensure kitchen equipment and area meet the standards prescribed by the department for food and beverage establishments. Compliance with these standards must be documented annually and inspection documentation must be provided to the department. A facility shall ensure:

a.Food storage space is clean, and containers are covered and stored off the floor;

b.Dishes, cups, and drinking glasses used by the residents are free of chips, cracks, and other defects, and are sanitized after every use by a washing process, sanitization solution, and air-drying or commercial dishwasher; and

c.Kitchen floors are reasonably impervious to water, slip-resistant, and maintained in a clean and dry condition.

14.Laundry facilities must be located in an area separate from areas occupied by residents.

Space for sorting, drying, and ironing must be made available to residents who are capable of handling personal laundry.

15.The water supply of a facility must be from an approved municipal system where available.

Where a municipal system is not available, a water sample must pass the approved drinking water standard bacteriological water analysis testing. The facility shall obtain results from an environmental protection agency approved laboratory for testing through licensing with the department of environmental quality.

16.Alcohol, tobacco, and vaping is prohibited in the facility.

17.All toxic cleaning supplies, aerosols, chemical, agricultural and ground maintenance chemicals, pesticides, and other poisons must be stored in a locked cabinet.

18.All shampoos, body wash, hand sanitizers, and perfumes, must be distributed in a limited quantity based on the individual needs of the resident. These items must be stored in a locked cabinet when not distributed to residents.

19.Firearms are prohibited in program or living areas of a facility premises. Firearms kept at any other location on the facility premises must be stored in a locked and secure area.

20.A facility shall have a quiet area to be used for studying and furnished for that purpose.

21.All rooms in a facility must have adequate lights, heat, and ventilation. All bathrooms must have proper ventilation.

22.Buildings and grounds of a facility must be maintained in a clean, comfortable, sanitary, and safe condition.

a.The facility may not be located within three hundred feet [91.44 meters] of an aboveground storage tank containing flammable liquids used in connection with a bulk storage or other similar hazards;

b.The grounds must be attractive, well-kept, and spacious enough to accommodate recreational areas that take into consideration the age and interest levels of residents;

c.Rooms, exterior walls, exterior doors, skylights, and windows must be weathertight and watertight;

d.Stairways, porches, and elevated walks and ramps must have structurally sound and safe handrails;

e.Buildings must be free of unabated asbestos; and

f.Lead paint may not be used within a building or on the exterior, grounds, or recreational equipment.

23.Any nonhousing buildings located on the facility property must be locked when not in use by personnel or residents. Residents must be supervised by an employee when entering a nonhousing building.

24.All pet inoculations must comply with the local and state requirements.

N.D. Admin. Code 75-03-40-48 Food and nutrition

1.The facility shall appoint an employee to be responsible for complying with requirements for healthy and safe food and nutrition practices.

2.All food service personnel shall have in-service training annually. Training topics must relate to proper food handling procedures, maintenance of sanitary conditions, and food service arrangements. Documentation of annual training must be kept in the employee's file.

3.Food must be in wholesome condition, free from spoilage or contamination and must be safe for human consumption.

4.The facility shall ensure the nutritional requirements of the residents are met. The facility shall serve nutritionally balanced meals each day. Medically required special diets must be prepared for residents as needed.

5.Except for garden produce, all homegrown food, poultry, meat, eggs, and milk must be from an approved source as determined by the state or local health authorities. The facility shall document the approval of state or local health authorities.

6.Frozen homegrown food products may be served if maintained in compliance with standards prescribed by the department for food and beverage establishments.

7.The facility shall provide refrigeration for perishable food and shall maintain perishable food in accordance with standards prescribed by the state department of health for food and beverage establishments.

8.Personnel and residents helping to prepare food shall wash their hands before handling food, and as often as necessary to keep them clean, and shall use effective hair restraints to prevent contamination of food and food contact surfaces.

N.D. Admin. Code 75-03-40-49 Resident accommodations

1.The facility shall arrange for residents to have a personal supply of clean, well-fitting clothing and shoes for both indoor and outdoor wear and appropriate for the season.

2.The facility shall make room assignments to best meet the needs and vulnerabilities of residents. The facility shall assess room assignments on an ongoing basis to minimize potential risk to residents.

3.The facility shall provide residents personal hygiene and toiletries, including washcloths and towels which must be changed when soiled, and no less often than weekly.

4.The facility shall provide residents a bed with a clean mattress and bedding. The facility shall provide additional blankets to each resident as temperatures make necessary. Sheets and bedding must be changed when soiled, and no less often than weekly.

5.A facility that assigns jobs and household responsibilities for residents shall do so in a manner that does not conflict with the education and treatment schedule or physical health of the residents or preclude the opportunity for socialization activities.

6.Participation in recreational and social activities must be on the basis of the individualized needs and treatment goals of each resident.

7.The facility shall advise all residents and the resident's custodian and parent or guardian, in writing, of the day-to-day rules of the facility. The facility shall adopt day-to-day rules that create the least restrictive environment, consistent with the treatment needs of residents. The rules must include:

a.A general description of acceptable and unacceptable conduct;

b.A resident's individual freedoms when involved in recreational or school activities away from the facility; and

c.Consequences for a resident who violates a facility rule.

8.The facility shall advise residents and the resident's custodian and parent or guardian, in writing, of the process used by employees to complete a search of residents or their belongings when returning to the facility from offsite outings, events, school, or home visits.

The facility shall inform residents of the reason searches may be conducted, the protocol for conducting searches, and any disciplinary action a facility may take if contraband items are identified during a search.

9.A facility shall ensure privacy is made available when a custodian, parent, guardian, or family member arrives onsite to visit a resident. The facility shall record any reason for restricting communications or visits between a resident and the resident's custodian, parent, guardian or family members in the resident's file.

N.D. Admin. Code 75-03-40-50 Transportation

This section applies to the transportation of residents in a facility-owned or leased vehicle, driven by personnel. A facility shall develop a comprehensive transportation policy addressing the following:

1.Driver information. A facility shall maintain a list of approved persoennel drivers. The list must indicate the name of each driver, type of license held, and the date of expiration of the license.

The list must be on file at the facility.

2.Driver qualifications. All drivers shall hold a current valid operator's license for the type of vehicle being driven, be at least twenty-one years of age, and have at least one year of experience as a licensed driver. The facility shall complete an initial check of the driver's driving record for any driving safety violations upon hire and annually thereafter.

3.Vehicle capacity and supervision.

a.A facility shall meet employee-to-resident ratios; and

b.A facility shall determine if additional supervision is required to minimize risk while transporting, based on the resident's needs.

4.Vehicle operation. Any vehicle used by a facility for the transportation of residents must:

a.Be maintained and inspected on a monthly basis, with records of inspections maintained at the facility;

b.Be registered and licensed in accordance with North Dakota law and carry vehicle liability insurance;

c.Have a first aid kit stored inside the vehicle;

d.Have a log to track date and time of the transport, who was driving, and the residents in the vehicle. The log book also must list emergency contact information for community first responders and facility administration to notify in case of an accident;

e.Have operating seat belts for the use of all occupants on each transport;

f.Prohibit smoking, tobacco use, and vaping; and

g.Prohibit the use of a cell phone while operating the vehicle.

5.Accident report. A facility shall implement a policy for personnel to follow when operating a facility vehicle impacted by a motor vehicle accident. In addition, the facility shall keep on file a copy of the official police report of any accident involving a facility vehicle transporting residents.

N.D. Admin. Code 75-03-40-51 Water safety

1.For purposes of this section, "aquatic activity" means an activity in or on a body of water, either natural or manmade, including rivers, lakes, streams, swimming pools, or water slides.

Water activities are prohibited in waters the facility knows contain health-threatening pollutants.

2.The facility shall determine the swimming ability of each resident prior to engaging in an aquatic activity. The facility may not permit any resident to participate in an aquatic activity requiring higher skills than the resident's swimming classification, except during formal instruction.

3.The facility may not permit residents to engage in an aquatic activity without adult supervision at all times and without regard to sufficient weather and resident abilities.

4.The facility shall adopt and enforce a method to account for each resident's whereabouts during aquatic activities, such as a buddy system.

5.The facility shall require all activity participants wear personal flotation devices during all boating activities, including water skiing, canoeing, tubing, and rafting.

6.Prior to any travel in any watercraft, the facility shall provide safety instructions.

7.The requirements of this section apply to activities wherever the activities take place. If the location where aquatic activity takes place does not have lifesaving equipment available, the facility is required to provide facility-owned lifesaving equipment. The facility shall provide and maintain lifesaving equipment in good repair and shall maintain documentation of equipment maintenance. All lifesaving equipment utilized by the facility must be listed in policy and immediately accessible in case of an emergency.

N.D. Admin. Code 75-03-40-52 Variance

Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance regarding a specific provision of this chapter upon such terms as the department may prescribe, except no variance may permit or authorize a danger to the health or safety of any resident cared for by the facility and no variance may be granted except at the discretion of the department. A facility shall submit a written request to the department justifying the variance. A refusal to grant a variance is not subject to appeal.

Chapter 75-03-41 Supervised Independent Living

N.D. Admin. Code 75-03-41-01 Definitions

As used in this chapter:

1."Agency" means the public or private entity licensed by the department to provide supervised independent living programming to eligible clients.

2."Client" means an eligible individual between the ages of eighteen and twenty-one years and in foster care or eligible to return to foster care.

3."Continued foster care services" is a voluntary foster care program to allow a child in foster care to remain in or return to foster care between the ages of eighteen and twenty-one while in the placement and care of a public agency, but not in public custody.

4."Employee" means an individual compensated by the agency to work in a part-time, full-time, intermittent, or seasonal capacity for the agency. This definition is not inclusive to contracted service providers who come onsite to conduct trainings, treatment groups, individual therapy, or other program services.

5."Licensee" means an agency either licensed by the department or approved by the department if the agency is located within a tribal jurisdiction.

6."Nonemployee" means an individual who is not compensated by the agency, such as a volunteer or student intern providing a specific service under the supervision of an employee.

7."Placement and care agency" means a public agency granted legal placement and care

authority.

8."Supervised independent living program" means a program offered by an agency providing services and supports to eligible clients transitioning to independence.

9."Supervised independent living setting" means a specific setting certified in accordance with the standards set forth by the agency to operate a supervised independent living program.

History

• Law Implemented: NDCC 50-06-05.1, 50-11-00.1

N.D. Admin. Code 75-03-41-02 Application - Effect of license

1.An application may not be approved for a supervised independent living program license until the department has reviewed the need for additional supervised independent living programs.

To enable the department to determine the need for a new supervised independent living program, the applicant shall submit an initial application, including the following documentation and information to the department:

a.The number, gender, and age range of the residents to be served;

b.The employee staffing, including a list of full-time and part-time positions by job titles and descriptions;

c.A description of the proposed program;

d.A proposed budget; and

e.The geographic location of the supervised independent living program.

2.Upon receipt of initial application, the department shall:

a.Review the detailed plan for the operation proposed by the applicant;

b.Ask for additional materials or information necessary for evaluation of need;

c.Respond in writing within thirty days of receipt of all required information from the applicant; and

d.Send written notice of determination of need. The notice must state the specific reason for the determination. If the department determines there is no need for additional supervised independent living programs, the department may deny the initial application.

If the department determines there is need for additional supervised independent living programs, the notice must be accompanied by an authorization for the applicant to move forward with the application process for a license to operate a supervised independent living program.

3.If an applicant receives authorization to apply for a license to operate a supervised independent living program, an application must be submitted in the form and manner prescribed by the department, which will initiate a document-based review or onsite visit at least every two years.

4.After completion of a licensing study, the department shall issue a license to an applicant that meets all requirements for licensure to provide a supervised independent living program.

5.Each agency shall carry general comprehensive liability insurance.

6.The department shall renew the license on the expiration date of the previous license if:

a.The agency makes written application for renewal prior to the expiration date of its current license; and

b.The agency continues to meet all requirements for licensure at the time of the licensing study or license review.

7.If the department determines an application, renewal of license, or accompanying information is incomplete or erroneous, the department shall notify the applicant of the specific deficiencies or errors, and the applicant shall submit the required or corrected information. The department may not issue or renew a license until it receives all required or corrected information.

8.A supervised independent living program license is in force and effect for the period stated thereon, not to exceed two years, is nontransferable, and is valid only to the agency providing the program oversight for the number of clients indicated on the license.

History

• History: Effective October 1, 2019; amended effective April 1, 2024; October 1, 2024.

N.D. Admin. Code 75-03-41-03 Denial or revocation

1.After written notice to the applicant or licensee, the department may deny, suspend, or revoke a supervised independent living program application or license upon finding the applicant or agency:

a.Is not in compliance with all licensure requirements; or

b.Has made a material misrepresentation to the department regarding its operations.

2.An applicant or agency whose application or license has been denied or revoked, may appeal to the department under the provisions of North Dakota Century Code sections 50-11-08 and

N.D. Admin. Code 50-11-09 The agency may continue the operation of the program pending the final administrative determination or until the license expires, whichever occurs first; provided, this subsection does not limit the actions the department may take pursuant to North Dakota Century Code chapter 50-11

History

• Law Implemented: NDCC 50-06-05.1, 50-11-07, 50-11-08, 50-11-09

N.D. Admin. Code 75-03-41-04 Correction orders

1.The department may require immediate correction of a violation that threatens the life or safety of a client in the licensed supervised independent living program.

2.All time periods under this section commence on the third day after the department mails notice of the correction order to the agency.

3.Upon written request by the agency and upon showing need for an extension created by circumstances beyond the control of the agency and that the agency has diligently pursued correction of the violation, the department may grant extensions of time to correct violations.

4.The department may inform the public of an agency correction order status.

History

• Law Implemented: NDCC 50-06-05.1, 50-11-04.2

N.D. Admin. Code 75-03-41-05 Agency program closure

The agency shall have a policy to ensure proper and efficient procedure in the event a supervised independent living program closes. Prior to closing, the agency program administrator shall provide at least a sixty-day written notice to the department:

1.Detailing a plan for closure, including:

a.Date of closure;

b.Plan to notify clients and placement and care agency, when applicable;

c.Identification of a North Dakota depository to maintain the agency case, fiscal, and employee and nonemployee records; and

d.Retention of all fiscal records for a period of seven years following account settlement.

2.Written notification must be given to each client and placement and care agency at least forty-five days prior to program closure.

N.D. Admin. Code 75-03-41-06 Governance and administration

1.The agency shall have a governing body that is responsible for the policies, activities, practice, and overall operations of the agency. The governing body shall:

a.Be composed of at least five members. A list of the names and contact information of members of the governing body must be maintained and submitted to the department annually. Each board member shall annually disclose conflicts of interest. Members of the board may not be family or have conflicts of interest with agency administration or employees with budget or accounting duties;

b.Meet at least every six months;

c.Maintain records of the governing body's meetings;

d.Develop and review policies for member selection and rotation;

e.Ensure each board member understands the agency operation and program goals;

f.Ensure the agency is funded, housed, staffed, and equipped in a manner required for the provision of services;

g.Approve the agency's annual budget of anticipated income and expenditures necessary to provide services described in the program's statement of purpose;

h.Provide financial statements and audits to the department for reimbursement purposes, upon request;

i.Ensure the agency has an active strategic plan with a schedule to review annually;

j.Adopt a written statement of the purpose and philosophy of the agency;

k.Adopt written policies for the agency regarding administration, personnel, and program services. Personnel policies for the recruitment and retention of employees necessary to operate the agency must indicate expectations of employees and nonemployees, detail job descriptions for each position, and ensure a process to review policies and procedures with employee participation at least every five years; and

l.Ensure developed policies for agency operations are in compliance with law, administrative rules, and policy as defined by the department.

2.All statements and policies required by this chapter must be in writing to demonstrate the intent of the standards are integrated into agency practice. The agency policy must be up to date.

N.D. Admin. Code 75-03-41-07 Financial structure

1.For purposes of initial licensure, the applicant shall demonstrate the applicant has sufficient income to operate the applicant's program of services and, upon relicensure, the agency shall demonstrate ongoing financial stability.

2.The agency shall prepare an annual budget based on the assessment of agency program priorities and appraisal of anticipated funding, including reimbursement for services. The agency shall submit a copy of its budget to the department with a cost breakdown of budget items utilized to determine fees for services.

3.The agency shall maintain liability insurance as protection for its governing body, employees, nonemployees, clients, funds, and property. The agency shall review the liability insurance annually to assure adequate agency coverage.

4.The supervised independent living program ratesetting must be negotiated with the department for clients who meet the continued foster care services criteria. Ratesetting may include the review of program costs and client outcomes.

N.D. Admin. Code 75-03-41-08 Disaster plan

The agency shall have a written disaster plan to accommodate emergencies. The disaster plan must allow the department and placement and care agency to identify, locate, and ensure continuity of services to clients who are displaced or adversely affected by a disaster. The agency shall ensure the disaster plan specifies:

1.Agency responsibilities and contact information;

2.Primary and alternate plans for evacuation specific to the setting, including transportation, relocation, and evacuation of injured individuals;

3.Supervision and followup with clients after evacuation or relocation;

4.Where clients and if applicable, employees or nonemployees, would go in an evacuation, including one location in the nearby area and one location out of the area;

5.The process the agency must use to inform the clients, department, and placement and care agencies of clients who are displaced or adversely affected by a disaster;

6.Employee training on the disaster plan that details the procedures for meeting disaster emergencies. The review of the disaster plan must occur with employees on an annual basis to ensure it is current, accurate, and employees understand their role; and

7.Client training on the disaster plan ensuring awareness of all emergency and evacuation procedures upon acceptance to the program and approved supervised independent living setting. These procedures must be reviewed at time of placement and every six months thereafter.

N.D. Admin. Code 75-03-41-09 Confidentiality

1.Except as otherwise provided in this section, agency records concerning clients that have received, are receiving, or seek to receive supervised independent living programming must be safeguarded. The agency shall ensure the safety of client records against loss, theft, defacement, tampering, or use by unauthorized persons. Any documents containing identifying information regarding the client must be locked when unattended by an employee or nonemployee.

2.The agency may not make public or otherwise disclose by electronic, print, or other media for fundraising, publicity, or illustrative purposes, any image or identifying information concerning any client or member of the client's family without first securing the written consent of the appropriate parties.

3.Client consent is not required to release confidential information if situations where the safety of the client or other individuals are at risk, child abuse or neglect is suspected.

4.The agency shall have policy in place to ensure all clients served have a responsibility for keeping confidentiality of other clients in the program. This includes not confirming or denying another client's participation in the program to outside persons or agencies via telephone, face-to-face, social media, electronic communications, or written requests.

5.The agency shall have written policies regarding retention of client records and supervised independent living program personnel files.

6.The agency shall disclose its records to the department as requested.

History

• Law Implemented: NDCC 50-06-05.1, 50-11-05

N.D. Admin. Code 75-03-41-10 Quality assurance

A supervised independent living program shall have a performance and quality assurance plan that advances efficient, effective service delivery, management practices, and the achievement of goals and outcomes.

1.An agency quality assurance plan must include agency performance and client outcomes which identify measures of the following client outcomes:

a.Employment;

b.Education;

c.Permanent connections;

d.Health insurance coverage;

e.Reduction of illegal or high-risk behaviors;

f.Reduction of unplanned parenting; and

g.Reduction of homelessness.

2.The agency shall conduct an outcomes survey for each client upon entry and exit from the supervised independent living program.

N.D. Admin. Code 75-03-41-11 Employee qualifications

1.The agency shall employ supervised independent living program employees with sufficient qualifications to enable the supervised independent living program employees to perform the agency's fiscal, clerical, and maintenance functions associated with operating the program.

2.The supervised independent living program shall comply with the following minimum employee-to-client ratio requirements:

a.No fewer than one part-time program administrator for a supervised independent living program serving less than thirty clients or a full-time program administrator for a program serving thirty or more clients; and

b.No fewer than one supervised independent living program transition coordinator for each fifteen clients.

N.D. Admin. Code 75-03-41-12 Program administrator

The agency shall designate a program administrator to oversee the agency's supervised independent living program.

1.The agency clearly shall define, in writing, the responsibilities of the program administrator. At a minimum, the program administrator's responsibilities shall include:

a.Planning and coordinating the development of policies and procedures governing the supervised independent living program;

b.Ensuring the governing body is kept informed of matters affecting the supervised independent living program's finances, operation, and provision of services;

c.Ensuring employment of qualified staff and the administration of the supervised independent living program's employee and nonemployee policies;

d.Ensuring the supervised independent living program and its services are made known to the community;

e.Maintaining the policies and procedures required by this chapter in written form;

f.Maintaining a current organizational chart representing program authority; and

g.Supervising, evaluating, and monitoring the work progress of the program employees and nonemployees.

2.The program administrator must have a bachelor's degree in business, public administration, or a behavioral science field and have four years of related work experience.

N.D. Admin. Code 75-03-41-13 Transition coordinator

1.The agency clearly shall define, in writing, the responsibilities of the supervised independent living program transition coordinator. At a minimum, responsibilities must include:

a.Performance of intake services;

b.Provide client case management and coordination of services;

c.Referral of resources to assist clients;

d.Overall management of the client's transition plan;

e.Documentation of ongoing communications and case activity for each client;

f.Competencies necessary to implement an individualized transition care plan for each client; and

g.Competencies to provide group services, if applicable to the program.

2.The transition coordinator must have a bachelor's degree in a behavioral science field and be licensed as required by the field of practice, and have two years previous paid or unpaid work experience with children or families, unless otherwise approved by the department.

3.The agency shall have sufficient transition coordinators employed to meet minimum employee-to-client ratios required by this chapter.

N.D. Admin. Code 75-03-41-14 Nonemployees

An agency that utilizes nonemployees who regularly work directly with clients shall:

1.Require nonemployees be at least two years older than the client;

2.Require each nonemployee to successfully complete a fingerprint-based criminal background check and a child abuse and neglect index check; and

3.Detail policy and procedure specific to nonemployees, including:

a.Description of duties and specify responsibilities for nonemployee positions;

b.Checking personal references before placement as a nonemployee;

c.Designating an employee to supervise and evaluate nonemployees;

d.An orientation plan that includes education on the legal requirements for confidentiality, training in the philosophy of the agency, and the needs of clients served by the supervised independent living program; and

e.A plan for required trainings.

N.D. Admin. Code 75-03-41-15 Professional development

1.The agency shall ensure employees receive training, as applicable to their position, and in current program and service delivery specific to transition to adulthood. All employees in contact with clients must receive at least fifteen hours of training per year with evidence of completion in the employee personnel file.

2.Prior to a new employee working independently with clients, the agency shall provide orientation training to the employee covering the following areas, with evidence of completion present in the employee personnel file:

a.Overall agency philosophy and program goals;

b.Review of administrative procedures, policy, and protocols;

c.Review of personnel policies;

d.Review of programs and services, policy, and protocols;

e.Nature of clients' emotional and physical needs;

f.Expected employee conduct toward clients and expected client conduct;

g.Overview of trauma and trauma informed transition into adulthood;

h.Review protocol for incident reporting;

i.Review client rights and grievance procedures;

j.Identification and reporting of child abuse and neglect;

k.Review suicide prevention, including signs and agency response measures;

l.Review disaster planning;

m.Review confidentiality standards;

n.Review procedures for reporting a runaway or missing individual;

o.Emergency medical procedures;

p.Review procedures for client searches, if applicable for the setting; and

q.Review child abuse and neglect mandated reporter policy and offer training.

N.D. Admin. Code 75-03-41-16 Personnel files

1.The agency shall maintain an individual personnel file on each employee. The employee personnel file must include:

a.File inventory detailing first and last date of employment, reason employment ended, training totals per year, and performance evaluation dates due;

b.Application for employment including a record of previous employment;

c.Copy of the initial fingerprint-based criminal background check;

d.Copy of annual child abuse and neglect index findings;

e.Copy of motor vehicle operator's license record, if applicable to duties;

f.Copy of other evaluation or background checks deemed necessary by the program administrator;

g.Verification of any required license or qualification for the position or tasks assigned to the employee;

h.Evidence of the employee having read and received a copy of the law and agency procedures requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, initially upon hire and annually thereafter;

i.Job description specifying the employee roles and responsibilities;

j.Annual performance evaluations; and

k.Professional development training records consisting of name of presenter, date of presentation, topic of presentation, and length of presentation.

2.The agency shall maintain an individual personnel file on each nonemployee. The nonemployee personnel file must include:

a.Personal identification information;

b.Copy of the initial fingerprint-based criminal background check;

c.Copy of annual child abuse and neglect index findings;

d.Copy of motor vehicle operator's license record, if applicable to duties;

e.Copy of other evaluation or background checks deemed necessary by the program administrator;

f.Description of nonemployee duties;

g.Evidence of the nonemployee having read and received a copy of the law and agency procedures requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, initially upon hire and annually thereafter; and

h.Professional development training records consisting of name of presenter, date of presentation, topic of presentation, and length of presentation.

3.The agency shall adopt a policy regarding the retention of employee and nonemployee personnel files.

N.D. Admin. Code 75-03-41-17 Background checks effect on operation of agency or employment

Repealed effective April 1, 2024.

N.D. Admin. Code 75-03-41-18 Background checks and criminal conviction - Effect on operation of agency or employment by agency

1.The department requires an initial fingerprint-based criminal background check for each employee or nonemployee with direct contact with clients. Subsequent fingerprint-based background checks are not required for an employee who maintains continuous employment at the supervised independent living program unless the program or the department determines a need exists to conduct a subsequent investigation. Subsequent fingerprintbased background checks for nonemployees are not required unless the program or department determines a need exists to conduct a subsequent investigation.

2.The department requires a child abuse and neglect index check as part of the initial fingerprint-based background check. An annual child abuse and neglect index check must be completed and placed in the personnel file.

3.An agency may not employ an employee or place a nonemployee, in any capacity that involves or permits contact between an employee or nonemployee and any client provided supervised independent living programming by the agency, an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or 19-03.1, Uniform Controlled Substance Act, if class A, B, or C felony under that chapter; or in North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery; if a class A or B felony under section 2 of that section or 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering an eligible adult - penalty; 12.1-31-07.1, exploitation of an eligible adult - penalty; 14-09-22, abuse of child; or 14-09-22.1, neglect of child;

b.An offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the offenses identified in subdivision a; or

c.An offense, other than an offense identified in subdivision a or b, if the department determines that the individual has not been sufficiently rehabilitated.

(1)The department will not consider a claim the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions has elapsed.

(2)An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction, is prima facie evidence of sufficient rehabilitation.

4.The department has determined the offenses enumerated in subdivisions a and b of subsection 3 have a direct bearing on the individual's ability to serve the public in a capacity involving the provision of supervised independent living programs and services.

5.In the case of offenses described in North Dakota Century Code section 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07, harassment; or 12.1-17-07.1, stalking; 12.1-22-01, robbery, if a class C felony; or 12.1-31-07.1, exploitation of an eligible adult - penalty, if a class B or C felony or a class A misdemeanor; or chapter 19-03.1, Uniform Controlled Substance Act, if a class A, B, or C, felony; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment for all other criminal convictions. The department may not be compelled to make such determination.

6.The department may discontinue processing a request for a criminal background check for any individual who provides false or misleading information about the individual''s criminal

history.

7.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community verified by source documents;

b.Acknowledged by the individual; or

c.Discovered by the agency or department as a result of a background check.

8.The department may request a fingerprint-based criminal background check whenever an employee or nonemployee of the agency is known to have been involved in, charged with, or convicted of an offense.

9.The department may review fingerprint-based criminal background check results as follows:

a.If an individual disputes the accuracy or completeness of the information contained in the fingerprint-based criminal background check required under this chapter, the individual may request a review of the results by submitting a written request for review to the department within thirty calendar days of the date of the results. The individual's request for review must include a statement of each disputed item and the reason for the dispute.

b.The department shall assign the individual's request for review to a department review panel.

c.An individual who has requested a review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

d.The department shall notify the individual of the department's final decision in writing within sixty calendar days of receipt of the individual's request for review.

e.The final decision of the review panel may not be appealed.

10.The supervised independent living program shall make an offer of employment to an employee conditioned upon the individual's consent to complete a required background check.

While awaiting the results of the required background check, the supervised independent living program may choose to provide training and orientation to an employee. However, until the completed and approved required background check results are placed in the employee file, the employee is limited to supervised interaction with clients.

11.The department may excuse an employee or nonemployee from providing fingerprints if usable prints have not been obtained after two sets of prints have been submitted and rejected. If an employee or nonemployee is excused from providing fingerprints, the department may conduct a nationwide name-based criminal history record investigation in any state in which the employee or nonemployee lived during the eleven years preceding the signed authorization for the background check.

12.An agency shall establish written policies and engage in practices that conform to those policies, to effectively implement this section, North Dakota Century Code section 50-11-06.8, and subsection 4 of North Dakota Century Code section 50-11-07. 13An agency shall establish written policies specific to how the agency shall proceed if a current employee or nonemployee is known to have been found guilty of, pled guilty to, or pled no contest to an offense.

History

• History: Effective October 1, 2019; amended effective April 1, 2024; October 1, 2024.
• Law Implemented: NDCC 50-06-05.1, 50-11-06.8

N.D. Admin. Code 75-03-41-19 Child abuse and neglect reporting

1.Upon hire and annually thereafter, all agency employees and nonemployees shall certify having read the law requiring the reporting of suspected child abuse and neglect, North Dakota Century Code chapter 50-25.1, and having read and received a copy of the agency's written child abuse and neglect procedures.

2.Each agency offering supervised independent living programming to clients with the client's own children, shall adopt written policies and procedures requiring employees and nonemployees to report cases of suspected child abuse or neglect. The procedures must include the following statement: "All agency employees and nonemployees shall comply with North Dakota Century Code Chapter 50-25.1, child abuse and neglect. Therefore, it is the policy of this agency that if any employee or nonemployee who knows or reasonably suspects that a child of a client whose health or welfare has been, or appears to have been, harmed as a result of abuse or neglect, that employee or nonemployee shall immediately report this information to the department. Failure to report this information in the prescribed manner constitutes grounds for dismissal from employment or placement of nonemployee and referral of the employee or nonemployee to the office of the state's attorney for investigation of possible criminal violation."

3.The agency's policies and procedures must describe:

a.To whom a report is made;

b.When a report must be made;

c.The contents of the report;

d.The responsibility of each individual in the reporting chain;

e.The status and discipline of an employee or nonemployee who fails to report suspected child abuse or neglect; and

f.The status of the employee or nonemployee while the report is being assessed; if they are the subject of the report.

4.An agency shall establish written policies specific to how the agency shall proceed when a current employee or nonemployee is known to be:

a.Involved in any capacity in a reported incident of institutional child abuse or neglect; or

b.The subject of a confirmed decision in a child abuse or neglect report that occurred outside of the agency.

History

• History: Effective October 1, 2019; amended effective April 1, 2022.

N.D. Admin. Code 75-03-41-20 Supervised independent living setting

1.An agency licensed to provide supervised independent living programming may engage in service delivery based on different housing options, referenced as a supervised independent living setting. The agency is not required to offer each setting and shall specify during application and in policy which setting the agency shall provide. The agency shall have defined criteria and policy specific to clients eligible for each setting. The agency may own, lease, or contract with another person to provide a setting. Setting may include:

a.Individual apartment: an individual suite or shared apartment unit located within a building housing one or multiple indiciduals, each with adequate bedroom and bathroom space, living space, and kitchen facilities. This setting may include onsite program management.

b.Shared housing: a single-family residence serving clients living cooperatively as an unrelated family in a house each with a private bedroom. If a client has a child of their own, the shared housing accommodations must meet the needs of all individuals residing in the home. This setting may include onsite program management.

c.College dorm room: a room in a building provided by a college or university containing several private or semiprivate bedrooms for housing a number of individuals in a setting whose inhabitants are in school. This includes dorms on- or off-campus and may include onsite program management.

2.A supervised independent living setting is not required to be licensed in addition to the agency license to provide supervised independent living programming.

3.A supervised independent living setting must be in compliance with all applicable provisions of state and local laws, ordinances, rules, and regulations concerning health, safety, and nondiscrimination for housing. A supervised independent living setting must be:

a.Be located in a safe area accessible to necessary services and adequate transportation;

b.Provide proper accommodations for the client; and

c.Be maintained in clean and sanitary condition providing reasonable comfort and wellbeing of the client.

4.Only clients accepted into the supervised independent living program may reside in a supervised independent living program setting, unless otherwise approved by the placement and care agency.

5.Supervised independent living programs provided to pregnant or parenting clients and client's children shall also meet the following criteria:

a.The setting shall provide safe and adequate sleeping arrangements for the children;

b.The client's transition plan must include appropriate parent education, including certified first aid, certified cardiopulmonary resuscitation, and child care; and

c.The program policy for pregnant or parenting clients must be followed.

N.D. Admin. Code 75-03-41-21 Client eligibility

The supervised independent living program may be made available for a variety of clients in need of transition services. The agency shall detail in policy, clients eligible for program acceptance and the expectations of a client's ability to live independently with minimal supervision. Clients eligible for acceptance into the program include:

1.Clients currently under the custody of a public agency; or

2.Clients currently in the placement and care of a public agency, actively participating in continued foster care services; and

3.Clients in need of supervised independent living programming.

N.D. Admin. Code 75-03-41-22 Program acceptance

Agencies licensed to provide supervised independent living programming shall define in writing policy and procedures specific to acceptance of a client into the program. The agency shall have written policies that describe the program and services offered, range of client characteristics the agency shall accept, and procedures for placement into a supervised independent living setting. The supervised independent living program policy must indicate the agency shall provide services to a client referred to the program without discrimination.

1.Application. The agency shall have written policy regarding the application required, including prospective client information, placement settings options, and financial agreements with the applicant or referral source.

2.Program acceptance committee. The agency shall have policy detailing employees on the committee, how often the committee meets, and the timeliness the committee has in responding to referrals. Before a prospective client is accepted for supervised independent living programming, the committee shall evaluate the needs of the prospective client using information and procedures described in policy and determine whether the agency can meet the identified needs of the prospective client.

3.Acceptance determination. The program acceptance committee shall complete a written, dated, and signed determination on a prospective client which includes review and identification of the prospective client's primary presenting needs. The committee shall:

a.Provide a written statement recommending reasons for or against program acceptance based on the ability of the agency to meet the prospective client's needs.

b.Provide the determination and decision within fourteen working days of receipt of the completed application; and

c.If denied, ensure a process for assisting the applicant or referral source in obtaining services from other agencies when the supervised independent living program is not appropriate to the applicant's needs.

4.Orientation. Each client shall receive orientation upon acceptance into the supervised independent living program. An agency employee shall:

a.Orient the new client and client's placement and care agency worker, if applicable, to the program;

b.Help the client adjust to the setting; and

c.Provide the client and placement and care agency, if applicable, copies of the supervised independent living setting rules, including rules on visiting, expected behavior and consequences for rule infractions, client rights and grievance and complaint procedures, with explanations of the documents.

N.D. Admin. Code 75-03-41-23 Program and services

1.The agency shall adopt written program policy that must include:

a.A description of the agency's plan for the provision of services required in this chapter, as well as assessment and evaluation procedures to be used in program planning and service delivery;

b.A description of the services provided by the agency, clearly stating which services are provided directly by the agency and which services are to be provided in collaboration with the placement and care agency, if the client is in public custody, or other agencies and informal supports determined appropriate for the transition plan;

c.The purpose or mission of the agency;

d.Characteristics and eligibility requirements of individuals appropriate for referral to the agency;

e.A list of information that is required to be submitted with the referral;

f.A description of how the agency engages in the child and family team meeting structure facilitated by the placement and care agency for a client in foster care;

g.A description of how the agency provides services for a client to accommodate needs, either directly or through cooperative arrangements with other agencies and informal supports;

h.A description of how the agency participates in preparing clients to develop the skills required to transition into adulthood, achieve outcomes, and live independently;

i.A description of how the agency demonstrates that the program is guided by the best interests of the clients in all matters relating to services; and

j.A description of how family or other adult connections shall be maintained.

2.Supervised independent living programs include the following service components to provide clients with opportunities to achieve positive outcomes and make successful transitions to selfsufficiency, which may include:

a.Academic support;

b.Budget financial management;

c.Career preparation;

d.Educational financial assistance;

e.Employment programs or vocational training;

f.Family support and healthy relationships;

g.Health education and risk prevention;

h.Housing education and home management;

i.Needs assessment;

j.Mentoring;

k.Other financial assistance;

l.Postsecondary educational support;

m.Access to community resources and community linkages;

n.Recreational and leisure skills; and

o.Preparation for transition to independence.

3.The agency shall detail in writing the expectations of how often the clients are seen. Face-toface contact with clients is required at least monthly and additional frequency is decided based on the individualized needs of the client and setting. Policy may include if the agency engages in unannounced visits.

4.The agency shall collaborate with the placement and care agency, if the client is in foster care, to request documentation for the client record and to coordinate service delivery and planning.

5.The agency shall address expectations of each supervised independent living setting.

Expectations may include:

a.House rules of the specified setting;

b.Curfew;

c.Personal belongings;

d.Medication management;

e.Clothing;

f.Allowance;

g.Groceries;

h.Grievance procedures;

i.Transportation;

j.Utilities;

k.Guidelines for guests and visitation;

l.Client rights;

m.Disaster planning;

n.Abstain from underage consumption of alcohol;

o.Abstain from illegal use of drugs;

p.Abstain from illegal or criminal behavior;

q.Abstain from violence and threats of violence; and

r.Emergency and crisis protocols.

N.D. Admin. Code 75-03-41-24 Transition plan

The agency shall adopt a written policy that ensures the agency shall develop a written transition plan for each client, to aid in the client's personal transition to adulthood and independence.

1.The client's transition plan must be:

a.Developed within thirty days of acceptance to the program;

b.Developed and reviewed with appropriate participation and informed consent of the client and placement and care agency, if applicable; and

c.Developed in collaboration with the client and the transition coordinator and if applicable, the child and family team meeting participants on a quarterly basis.

2.The client's transition plan must include documentation of:

a.Collaboration and communication with other agencies that are working with the client to ensure coordination of services and to carry out the client's transition plan;

b.Services provided by the supervised independent living program and other agencies or informal supports;

c.Completion of a needs assessment of the client;

d.Completion of the outcomes survey;

e.Identified measurable goals and client outcomes, including time frames for completion;

f.Identified tasks to assist the client in meeting set goals; and

g.The individual or entity responsible for providing the service or completing the task.

N.D. Admin. Code 75-03-41-25 Client rights

Repealed effective April 1, 2024.

N.D. Admin. Code 75-03-41-26 Client file

Upon acceptance to the supervised independent living program, a client's case file is confidential and must be protected from unauthorized examination unless permitted or required by law or

regulation. The agency shall adopt a policy regarding the retention of client files.

1.The client file must include:

a.A file inventory with dates of acceptance into the program, referral agency, and emergency contact information;

b.The client's full name, date of birth, and other identifying information;

c.A photo of the client;

d.Signed care program acceptance agreement, including financial responsibility and expectations of all parties. The agreement must indicate a clear division of responsibility between the agency, client, and the placement and care agency, if applicable;

e.A current court order establishing the authority granted to the placement and care agency;

f.A copy of the continued foster care agreement signed by all parties;

g.A copy of the outcomes survey;

h.A copy of the transition plan prepared by the agency and client;

i.Transition plan progress reports, no less than quarterly;

j.Ongoing documentation and case activity logs of face-to-face contact, electronic mails, and texts with clients;

k.All incident or sentinel event reports involving the client; and I.A copy of client rights.

2.The agency shall designate an employee to review each client file at least quarterly.

Documentation of the file review must be included in the client file.

3.An agency shall disclose its records to the department as requested.

History

• Law Implemented: NDCC 50-06-05.1, 50-11-05

N.D. Admin. Code 75-03-41-27 Incident and sentinel event reporting

A client served by the agency also in foster care shall have all incident and sentinel events reported to the placement and care agency. The agency shall report sentinel events to the department.

1.The agency shall have written policy outlining the critical incident and sentinel event reporting for all clients.

a.An incident is an unplanned occurrence that resulted or could have resulted in injury to people or damage to property, specifically involving the general public, clients in supervised independent living setting, or agency employees and nonemployees. An incident also can involve issues such as harassment, violence, and discrimination.

b.A sentinel event is an unexpected occurrence involving death or serious physical or psychological injury that is not related to the natural course of a client's illness or underlying condition, including any process variation for which a recurrence would carry a significant chance of a serious adverse outcome including inappropriate sexual contact.

2.The agency immediately shall notify the client's placement and care agency when any of the following occurs involving a client in foster care:

a.An incident that requires the services of law enforcement, including:

(1)Case of a runaway or missing individual; or (2)Criminal activity by the client placed in a supervised independent living setting; or

b.A sentinel event, including:

(1)Death of a client in foster care;

(2)Serious injury or trauma of a client in foster care, requiring medical attention;

(3)Any attempt at suicide by a client in foster care; and (4)Any behavior involving a client in foster care, that results in a serious threatening situation of harm to others.

N.D. Admin. Code 75-03-41-28 Variance

Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance regarding a specific provision of this chapter upon such terms as the department may prescribe, except no variance may permit or authorize a danger to the health or safety of any client accepted in the supervised independent living program and no variance may be granted except at the discretion of the department. An agency shall submit a written request to the department justifying the variance. A refusal to grant a variance is not subject to appeal.

Chapter 75-03-42 Authorized Electronic Recording

N.D. Admin. Code 75-03-42-01 Definitions

The terms used in this chapter have the same meanings as in North Dakota Century Code section 50-10.2-01. In addition, as used in this chapter, unless the context or subject matter otherwise requires, "roommate" means a resident occupying the same room as the resident requesting to install and use an authorized electronic recording device.

N.D. Admin. Code 75-03-42-02 Determination of capacity to consent

1.A resident is presumed to have the capacity to consent to authorized electronic recording if the resident understands and appreciates the nature and consequences of the decision to consent to authorized electronic recording, including the benefits and risks of the decision. If a resident has capacity to consent, only the resident may consent to authorized electronic recording in the resident's room.

2.A resident's lack of capacity to consent to authorized electronic recording must be documented in writing by the resident's attending physician or by a court order pursuant to North Dakota Century Code chapter 30.1-28. If the resident is not under a guardianship, the attending physician also shall document in writing if the resident regains the capacity to consent to authorized electronic recording.

3.If a resident is determined to lack capacity to consent to authorized electronic recording, the resident representative may consent to authorized electronic recording and complete the required forms.

4.The resident representative shall make the decision of whether to consent to authorized electronic recording in the resident's room in accordance with the resident's wishes, values, preferences, and directions.

5.If a facility has reason to believe a resident representative is making decisions or taking actions that are not in the best interests of a resident regarding the use of authorized electronic recording, the facility shall report this concern in the manner required to the department or the department's designee.

N.D. Admin. Code 75-03-42-03 Documentation

1.The forms and information relating to authorized electronic recording must be provided by the facility upon request in a language, form, and manner residents, resident representatives, and visitors can access and understand.

2.At the request of the resident or the resident representative, the facility shall provide a copy of the facility's standards and regulations regarding the installation, use, maintenance, disabling, and removal of the authorized electronic recording device to the resident or resident representative.

3.Before the use of authorized electronic recording or the installation of an authorized electronic recording device, the resident or resident representative shall submit the following documentation to the facility:

a.A written notice to the facility of the intent to place and use an authorized electronic recording device, including an installation plan that complies with the facility's standards and regulations.

b.A written consent form for placement and use of an authorized electronic recording device signed by the existing or proposed roommate or roommate's resident representative. The form must:

(1)Allow the roommate or roommate's resident representative to specify any conditions or restrictions the roommate or roommate's resident representative may elect to place on the device's time of operation, direction, and focus, including verifying the viewing area captured by the camera, prohibiting audio, and turning off the authorized electronic recording device during certain times when total privacy is wanted.

(2)State the roommate or roommate's resident representative has the right to withdraw consent at any time in writing and have the device disabled in compliance with the facility's standards and regulations after receipt of the written withdrawal.

c.An authorization signed by the existing or proposed roommate or roommate's resident representative for the disclosure of protected health information in compliance with title 45, Code of Federal Regulation, parts 160 and 164.

4.The facility shall maintain a copy of the applicable consent and authorization forms submitted pursuant to this section.

N.D. Admin. Code 75-03-42-04 Signs

A facility clearly and conspicuously shall post a sign where authorized electronic recording is being conducted to alert and inform other residents, staff, and visitors to the facility. The sign must be provided in a language, form, and manner residents, staff, and visitors can access and understand.

N.D. Admin. Code 75-03-42-05 Use of internet and responsibilities

1.The resident or resident representative shall select the type of recording device that will be used in the resident's room, accounting for any restrictions imposed by the roommate or roommate's resident representative. If the resident or resident representative chooses to install a recording device that uses internet technology, the recording device must have at least one hundred twenty-eight-bit encryption and enable a secure socket layer.

2.The resident or resident representative is responsible to contract with an internet provider if needed to operate the authorized electronic recording device and shall comply with facility's standards and regulations. The facility is not required to allow internet access through facility or corporate networks that maintain confidential patient, medical, financial, or personnel records.

Chapter 75-03-43 Certified Peer Support Specialists

N.D. Admin. Code 75-03-43-01 Definitions

For the purposes of this chapter:

1."Certified peer support specialist I" means a peer support specialist who has been approved by the division as certified in North Dakota as a certified peer support specialist I.

2."Certified peer support specialist II" means a peer support specialist who has been approved by the division as certified in North Dakota as a certified peer support specialist II.

3."Department" means the North Dakota department of human services.

4."Division" means the behavioral health division.

5."Peer support specialist" means an individual who uses the individual's lived experience and skills learned through formal training to deliver services to promote mind-body recovery and resiliency.

6."Recovery" means a process of change through which individuals improve the individual's health and wellness, live self-directed lives, and strive to reach the individual's potential.

N.D. Admin. Code 75-03-43-02 Eligibility

1.An applicant shall meet the following criteria to be eligible to become a certified peer support specialist I:

a.Self-identify as an individual who has personal lived experience and is willing to publicly identify as an individual in recovery from a mental health disorder, substance use disorder, brain injury, or any combination thereof; or a family member who has personal lived experience with an individual with a mental health disorder, substance use disorder, brain injury, or any combination thereof;

b.At least eighteen years of age;

c.Currently resides or is employed within the state;

d.Have a high school diploma, general equivalency diploma, or can demonstrate the ability to read and write at a level proficient for training, documentation, and the type of work peer support will require; and

e.Successfully complete a division-approved peer support training program.

2.An applicant shall meet the following criteria to be eligible to become a certified peer support specialist II:

a.Self-identify as an individual who has personal lived experience and is willing to publicly identify as an individual in recovery from a mental health disorder, substance use disorder, traumatic brain injury, or any combination thereof; or a family member who has personal lived experience with an individual with a mental health disorder, substance use disorder, traumatic brain injury, or any combination thereof;

b.At least eighteen years of age;

c.Currently resides or is employed within the state;

d.Have a high school diploma or general equivalency diploma or can demonstrate the ability to read and write at a level proficient for training, documentation, and the type of work peer support will require;

e.Successfully complete a division approved peer support training program; and

f.Applicant has at least one thousand five hundred direct service hours as a peer support specialist.

N.D. Admin. Code 75-03-43-03 Application for certification of certified peer support specialist I

1.An applicant shall submit a signed application for certification and all required information and documentation for certification in the form and manner prescribed by the division, along with:

a.Proof of successful completion of division-approved peer support training;

b.Three letters of recommendation:

(1)One personal recommendation;

(2)One professional recommendation; and (3)One recommendation that demonstrates the applicant's commitment to the applicant's or family member's recovery process;

c.A personal statement that must detail how the applicant will use the individual's lived experience to benefit others through a peer relationship; and (1)The applicant's commitment to the recovery process, including information establishing a continued recovery for a year or longer; or (2)The applicant's commitment to the individual's family member's recovery process, including information establishing a period of recovery support for a year or longer;

d.A signed North Dakota certified peer support specialist code of ethics;

e.A nonrefundable application fee of fifty dollars; and

f.The requirements of section 75-03-43-02.

2.The division shall consider an application for certification complete when it has received all information and documentation required under this section and section 75-03-43-02. The division shall notify an applicant if an application for certification is incomplete. The division may declare an application for certification withdrawn if an applicant fails to submit all required information and documentation within thirty days of the division's notification to the applicant that the application for certification is incomplete.

3.Upon receipt of a completed application for certification, the division shall review and determine an approval or denial of certification based on whether the applicant has submitted information to satisfy the eligibility and application for certification requirements under this

section and section 75-03-43-02.

4.An applicant may appeal a decision to deny an application for certification by completing a written appeal with the department within thirty days of the decision. Upon receipt of a timely appeal, an administrative hearing must be governed by the provisions of chapter 75-01-03.

5.Applications for certification and all accompanying materials are subject to the open records aw Implemented: NDCC 50-06-41.1

N.D. Admin. Code 75-03-43-04 Application for certification of certified peer support specialist II

1.An applicant shall submit a signed application for certification and all required information and documentation for certification in the form and manner prescribed by the division, along with:

a.Proof of successful completion of division-approved peer support supervision training;

b.Two letters of recommendation:

(1)One personal recommendation; and (2)One professional recommendation;

c.A personal statement that must detail how the applicant will provide direction, develop competence, skills, and ethical expertise in a collaborative manner with certified peer support specialists I;

d.A nonrefundable application fee of fifty dollars; and

e.The requirements of section 75-03-43-02.

2.The division shall consider an application for certification complete when it has received all information and documentation required under this section and section 75-03-43-02. The division shall notify an applicant if an application for certification is incomplete. The division may declare an application for certification withdrawn if an applicant fails to submit all required information and documentation within thirty days of the division's notification to the applicant that the application for certification is incomplete.

3.Upon receipt of a completed application for certification, the division will review and determine an approval or denial of certification based on whether the applicant has submitted information to satisfy the eligibility and application for certification requirements under this section and

section 75-03-43-02.

4.An applicant may appeal a decision to deny an application for certification by completing a written appeal with the department within thirty days of the decision. Upon receipt of a timely appeal, an administrative hearing must be governed by the provisions of chapter 75-01-03.

5.Applications for certification and all accompanying materials are subject to the open records

N.D. Admin. Code 75-03-43-05 Certification

1.Certifications are effective when approved by the division and the certificate has been issued to the certified peer support specialist I or II.

2.Certificates are effective for a period of two years.

3.Certificates expire at midnight of the expiration date provided on the certification.

4.A certified peer support specialist I or II shall inform the division of any changes in personal information within sixty days.

N.D. Admin. Code 75-03-43-06 Recertification

1.To renew a certification, a certified peer support specialist I shall submit an application for recertification, along with all required supporting information and documentation in the form and manner prescribed by the division. Application for recertification will be accepted within ninety days of expiration of current certificate. Information required for recertification includes:

a.A personal statement that must include the applicant's experience as a certified peer support specialist I, and how the applicant will continue to use the individual's lived experience to benefit through a peer relationship. The statement must:

(1)Demonstrate the applicant's commitment to the recovery process, including information establishing a period of continued recovery for a year or longer; or (2)Demonstrate the applicant's commitment to an individual family member's recovery process;

b.A signed North Dakota certified peer support specialist code of ethics;

c.Evidence of compliance with section 75-03-43-02; and

d.A nonrefundable application fee of fifty dollars.

2.To renew a certification, a certified peer support specialist II shall submit an application for recertification, along with all required supporting information and documentation in the form and manner prescribed by the division. Application for recertification will be accepted within ninety days of expiration of current certificate. Information required for recertification includes:

a.A personal statement that must detail the applicant's experience as a peer support specialist II and how the applicant will continue to provide direction, develop competence, skills, and ethical expertise in a collaborative manner with certified peer support specialists I;

b.A signed North Dakota certified peer support specialist code of ethics;

c.Evidence of compliance with section 75-03-43-02; and

d.A nonrefundable application fee of fifty dollars.

3.If a certified peer support specialist I or II does not submit an application for recertification, the individual shall not be eligible to practice as a certified peer support specialist I or II after the individual's certification has expired. The division may extend the renewal deadline for an applicant who has proof of a hardship as recognized by the division. The decision to deny a request for extension is not an appealable decision.

4.The division shall consider an application for recertification complete when it has received all information and documentation required under this section and section 75-03-43-02. The division shall notify a certified peer support specialist I or II if an application for recertification is incomplete. The division may declare an application for recertification withdrawn if a certified peer support specialist I or II fails to submit all required information and documentation within thirty days of the division's notification to the certified peer support specialist I or II that the application for recertification is incomplete.

5.Upon receipt of a completed application for recertification, the division shall review and determine an approval or denial of recertification based on whether the certified peer support specialist I or II has submitted information to satisfy the eligibility and application for recertification requirements under this section and section 75-03-43-02.

6.A certified peer support specialist I or II may appeal a decision to deny an application for recertification by completing a written appeal with the department within thirty days of the decision. Upon receipt of a timely appeal, an administrative hearing must be governed by the provisions of chapter 75-01-03.

7.Applications for recertification and all accompanying materials are subject to the open records

8.If a certified peer support specialist I or II certification lapses, the applicant shall apply for certification under the provisions of section 75-03-43-03.

N.D. Admin. Code 75-03-43-07 Continuing education

1.Twenty hours of continuing education are required for a two-year certification period. At least two hours of continuing education must be on the topic of peer support specialist ethics. No more than four hours of continuing education can be completed by self-study or distance learning methods unless an exception is granted by the division. If a certified peer support specialist I or II is certified in July or later of a calendar year, the two-year continuing education reporting cycle beings the following year. The division may require evidence that an applicant for recertification has completed continuing education requirements.

2.A certified peer support specialist II shall complete all continuing education requirements as outlined in subsection 1 along with four additional hours of training specific to supervision of peer support specialists.

N.D. Admin. Code 75-03-43-08 Revocation and complaints

1.The division may revoke the certification of a peer support specialist based on a determination that it is necessary to protect the welfare, health, and safety of the residents of the state.

2.Formal complaints against a certified peer support specialist may be made to the division.

There is no provision for anonymous complaints.

3.A peer support specialist may reapply for certification, pursuant to section 75-03-43-06, no sooner than one hundred eighty days after determination of revocation.

4.A peer support specialist may appeal a decision to revoke a certification by completing a written appeal with the department within thirty days of the decision. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

N.D. Admin. Code 75-03-43-09 Reciprocity

A certified peer support specialist from another state may obtain certification in this state if the department has entered into a reciprocity agreement with the state that issued the individual's certificate.

Chapter 75-03-44 Certified Community Behavioral Health Clinic Certification

N.D. Admin. Code 75-03-44-01 Definitions

1."Applicant" means an entity applying for certification or renewal as a certified community behavioral health clinic.

2."Application" means a department form submitted by an applicant for certified community behavioral health clinic certification and renewal.

3."Behavioral health services" means mental health and substance use disorder services.

4."Certified clinic" means an entity that has received the certification as a certified community behavioral health clinic from the department.

5."Certified community behavioral health clinic" means a private or public behavioral health clinic or a state-operated behavioral health clinic designated by the department to deliver a comprehensive range of behavioral health services in accordance with the certification criteria set forth by this chapter.

6."Community needs assessment" means a systematic approach to identifying community needs and determining program capacity to address the needs of the population being served.

7."Corrective action plan" means a written strategy developed by a certified clinic in response to the department identifying an area of noncompliance with standards set forth in this chapter.

8."Department" means the North Dakota department of health and human services.

9."Designated collaborating organization" means an entity that is not under the direct supervision of the certified clinic but is engaged in a formal relationship with the certified clinic to deliver one or more of the required services or an element of a required service.

10."Individual" means an individual receiving services from a certified clinic.

N.D. Admin. Code 75-03-44-02 Eligibility

An applicant shall meet the following criteria to be eligible for a certified community behavioral health clinic certification:

1.Be accredited by a nationally recognized accreditation body with standards specific to delivery of behavioral health care services for mental illness and substance use disorders or have a pending application submitted at the time of application for a certified community behavioral health clinic certification;

2.Have a minimum of three years of demonstrated experience providing evidence-based practices for individuals experiencing serious and persistent mental illness, serious mental illness, serious emotional disturbance, or complex or severe substance use disorders and a track record of providing person-centered, recovery-oriented, and trauma-informed care;

3.Be a qualified Medicaid provider;

4.Have received department approval on the intent to pursue certification pursuant to section 75-03-44-03; and

5.Meet at least one of the following criteria:

a.Be a nonprofit organization, exempt from taxation as provided under section 501(c)(3) of the Internal Revenue Code [26 U.S.C. 501(c)(3)];

b.Be part of a state or local government behavioral health authority;

c.Be operated under the authority of the Indian health service, an Indian tribe, or tribal organization pursuant to a contract, grant, cooperative agreement, or compact with the Indian health service pursuant to the Indian Self-Determination Act [25 U.S.C.A. 5301 et seq.]; or

d.Be an urban Indian organization pursuant to a grant or contract with the Indian health service under title V of the Indian Health Care Improvement Act [25 U.S.C. 1651 et seq.].

N.D. Admin. Code 75-03-44-03 Intent to pursue certification

1.Prior to submitting an application for a certified community behavioral health clinic, an applicant shall submit to the department an intent to pursue certification in the form and manner prescribed by the department.

2.An applicant's intent to pursue certification must be approved by the department for the applicant to be eligible for a certified community behavioral health clinic certification.

3.The department may deny an intent to pursue certification in accordance with North Dakota Century Code section 50-06-41.4.

4.The applicant may resubmit to the department an intent to pursue certification no sooner than six months after notification of the denied intent to pursue certification.

5.The department shall notify an applicant if an intent to pursue certification is incomplete, denied, or approved.

6.The department may declare an intent to pursue certification withdrawn if an applicant fails to submit all required documentation within thirty days of notification of incompleteness.

7.An applicant may appeal an intent to pursue certification by completing a written appeal with the department within thirty days of the decision. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

N.D. Admin. Code 75-03-44-04 Application for certification - Applicant submission

1.An applicant shall submit to the department an application and all required information and documentation for a certified community behavioral health clinic certification in the form and manner prescribed by the department.

2.The department shall consider an application complete if the department has received all required information and documents.

3.The department shall notify an applicant if an application is incomplete.

4.The department may declare an application withdrawn if an applicant fails to submit all required documentation within thirty days of notification of incompleteness.

N.D. Admin. Code 75-03-44-05 Application for certification - Department review

1.The department shall conduct a review of the submitted application.

2.The department may conduct an onsite visit as part of the application for a certified community behavioral health clinic certification.

3.If the department determines the application does not meet criteria for a certified community behavioral health clinic certification, the department shall notify the applicant.

4.If an applicant does not meet criteria for a certified community behavioral health clinic certification, an applicant may resubmit the areas of the application that did not meet criteria for a certified community behavioral health clinic certification in a manner and form prescribed by the department.

5.If an applicant has resubmitted the areas of the application that did not meet criteria for a certified community behavioral health clinic certification three times or if ninety days have passed from the original submission date and the application still does not meet criteria for a certified community behavioral health clinic certification, the department shall deny the application for a certified community behavioral health clinic certification. The applicant may resubmit to the department an intent to pursue certification in accordance with section 75-03-44-04 no sooner than six months after notification of the denied application for a certified community behavioral health clinic certification.

6.An applicant may appeal a denied application for a certified community behavioral health clinic certification by completing a written appeal with the department within thirty days of the decision. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

7.The department shall notify an applicant if the application submission for a certified community behavioral health certification is approved and shall provide an initial certified community behavioral health clinic certification to the applicant.

N.D. Admin. Code 75-03-44-06 Initial certification

1.Upon approval of an applicant's first approved application, the department shall issue an initial certified community behavioral health clinic certification.

2.An initial certified community behavioral health clinic certification is in effect for the period specified in the certified community behavioral health clinic certificate and may not exceed one year from the date of issuance.

3.The department may extend an initial certified community behavioral health clinic certification in order to complete its review processes for a certified community behavioral health clinic certification.

N.D. Admin. Code 75-03-44-07 Initial certification - Department review

1.The department shall conduct a certified community behavioral health clinic certification review within the initial certified community behavioral health clinic certification period. The department's review may include requests for documentation and an onsite visit.

2.If the applicant is not in compliance with all applicable requirements in accordance with this

chapter, the department shall issue a report and require a corrective action plan.

3.If the applicant meets all applicable requirements in accordance with this chapter, the department shall issue a certified community behavioral health clinic certification.

N.D. Admin. Code 75-03-44-08 Certification

1.A certified community behavioral health clinic certification is effective when approved by the department and the certified community behavioral health clinic certificate has been issued to the applicant.

2.A certified community behavioral health clinic certificate is effective for a period of three years.

3.A certified community behavioral health clinic certificate expires at midnight of the expiration date provided on the certified community behavioral health clinic certification.

4.A certified community behavioral health clinic certification may not be transferred.

5.The certified clinic shall notify the department within seven business days of any significant change in policy or practice that would impact a certified clinic's ability to comply with this

6.The department may extend a certified community behavioral health clinic certification to complete its review processes for renewal.

N.D. Admin. Code 75-03-44-09 Certificate review, report, and renewal procedures

1.The department shall conduct scheduled or unscheduled certified community behavioral health clinic certification reviews, which may include site visits, to ensure compliance with this

2.Within thirty days of a review of certified community behavioral health clinic certification, the department shall send a certified community behavioral health clinic certification report to the certified clinic that was reviewed.

3.A certified community behavioral health clinic certification report must contain a description of the certified clinic, services reviewed, and a description of findings.

4.To renew a certified community behavioral health clinic certification:

a.A certified clinic shall submit an application for renewal, along with all required supporting information and documentation, in the form and manner prescribed by the department, within one hundred eighty days of certificate expiration; and

b.The department shall complete a certificate review.

5.The applicant may resubmit to the department an intent to pursue certification in accordance with section 75-03-44-04 no sooner than six months after notification of the certification lapse.

N.D. Admin. Code 75-03-44-10 Corrective action plan

1.The department shall issue a report requiring the certified clinic to develop a corrective action plan if at any time during the certified community behavioral health clinic certification period, including the renewal process and initial certification, the certified clinic is found to be out of compliance with this chapter.

2.The certified clinic has thirty days to develop and submit a corrective action plan to the department, unless otherwise specified by the department, upon notification by the department of being out of compliance with this chapter.

3.The department has ten days to review a certified clinic's completed and submitted corrective action plan. The department shall notify the certified clinic as to whether the corrective action plan is approved or not approved. If the corrective action plan is:

a.Not approved:

(1)The certified clinic shall resubmit the updated corrective action plan within ten days of notification that its previous corrective action plan submission was not approved.

(2)The department may revoke a certified clinic's certified community behavioral health clinic certification if the certified clinic has submitted the corrective action plan three times without receiving approval, or ninety days have passed from the initial corrective action plan submittal and the corrective action plan is not approved.

b.Approved:

(1)The certified clinic shall implement the approved corrective action plan.

(2)Within ninety days of the corrective action plan approval, the department shall review the certified clinic's implementation of the corrective action plan.

(3)Following the review, the department shall notify the certified clinic whether the corrective action plan implementation is approved.

N.D. Admin. Code 75-03-44-11 Certification revocation

1.The department may revoke the certified community behavioral health clinic certification for the following reasons:

a.The certified clinic fails to provide the department with requested documentation demonstrating compliance with this chapter;

b.The certified clinic fails to correct identified deficiencies in meeting the requirements of this chapter;

c.The certified clinic fails to maintain required licensures and certifications, as applicable;

d.The certified clinic fails to comply with ratesetting, including rebasing requirements; or

e.The certified clinic provides false or misleading information or data.

2.The department shall provide a certified clinic with thirty days' written notice of the intent to revoke a certified community behavioral health clinic certification.

3.A revoked certified clinic may resubmit to the department an intent to pursue certification in accordance with section 75-03-44-04 no sooner than six months after the revocation is finalized.

4.A revoked certified clinic may appeal a decision to revoke a certified community behavioral health clinic certification by completing a written appeal with the department within thirty days of the decision. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

N.D. Admin. Code 75-03-44-12 Staffing

1.The certified clinic shall complete and document a community needs assessment in the manner prescribed by the department and shall complete and document a staffing plan that is responsive to the community needs assessment no less frequently than once every three years.

2.The certified clinic director shall maintain a fully staffed management team as appropriate for the size and needs of the clinic, as determined by the current community needs assessment and staffing plan. The management team must include, at a minimum, a director, clinical director, and a psychiatrist as medical director, except as provided under subsection 3. The medical director does not need to be a full-time staff member of the certified clinic.

3.If a certified clinic is unable, after reasonable efforts, to employ or contract with a psychiatrist as medical director, a certified clinic may employ as the medical director a medically trained behavioral health care professional who can prescribe and manage medications independently and who has the appropriate education, licensure, and experience in psychopharmacology.

4.If a certified clinic is unable to hire a psychiatrist and hires another prescriber instead, a certified clinic shall obtain psychiatric consultation regarding behavioral health clinical service delivery, quality of the medical component of care, and integration and coordination of behavioral health and primary care.

5.The certified clinic shall ensure that clinical and nonclinical staff are appropriate in size and composition:

a.For the population receiving services, as determined by the community needs assessment;

b.To provide the types of services required by this chapter and as informed by the community needs assessment;

c.To address the needs of individuals at the certified community behavioral health clinic, as reflected in the individuals' treatment plans, and as required by this chapter; and

d.By supplementing its core staff as necessary to meet needs identified in the community needs assessment and staffing plan.

6.The certified clinic shall maintain a core workforce informed by the community needs assessment and staffing plan, which is comprised of staff and contracted staff, including:

a.A medically trained behavioral health care provider, either staff or contracted staff, who can prescribe and manage medications independently, including buprenorphine and other food and drug administration-approved medications used to treat opioid, alcohol, and tobacco use disorders;

b.A licensed psychologist or psychologist resident under supervision;

c.A licensed addiction treatment provider;

d.An independently licensed mental health clinician. If a certified clinic is unable, after reasonable efforts, to employ an independently licensed mental health clinician, a certified clinic may employ a master's-level licensed mental health clinician under a supervision plan;

e.A nurse;

f.A peer support specialist;

g.A quality improvement specialist;

h.A care coordinator; and

i.Staff or contracted staff with expertise in addressing trauma and promoting the recovery of children with serious emotional disturbance and adults with serious mental illness.

7.The certified clinic is not precluded by this chapter from utilizing staff working toward professional licensure if staff is working under appropriate supervision within the scope of applicable state laws and regulations.

8.A nonstate operated certified clinic shall maintain liability and malpractice insurance for the staffing and scope of services provided.

N.D. Admin. Code 75-03-44-13 Licensure and credentialing of providers

1.All certified clinic staff, including any designated collaborating organization provider staff and contracted staff that furnish services under arrangement with a certified clinic, shall have and maintain all necessary state-required licenses, certifications, or other credentialing and act only within scope of the staff's respective state licenses, certifications, or other credentialing and in accordance with all applicable state laws and regulations. This includes any applicable state Medicaid billing regulations, policies, or provider agreements.

2.If certified clinic staff, including any designated collaborating organization provider staff and contracted staff that furnish services under arrangement with a certified clinic, are working toward professional licensure, appropriate supervision must be provided in accordance with applicable state laws and regulations.

N.D. Admin. Code 75-03-44-14 Training

1.The certified clinic shall have a training plan for all employed and contracted staff who have direct contact with an individual, the individual's legal representatives, or the individual's families, which incorporates the needs identified in the community needs assessment. The certified clinic shall provide training at orientation and annually thereafter on:

a.Evidence-based practices;

b.Cultural responsiveness;

c.Person-centered, family-centered, and recovery-oriented planning and services;

d.Trauma-informed care;

e.The certified clinic's policy and procedures for continuity of operations and disasters;

f.The certified clinic's policy and procedures for integration and coordination with primary care;

g.Care for co-occurring mental health and substance use disorders;

h.Risk assessment;

i.Suicide prevention and response;

j.Overdose prevention and response;

k.The roles of parent and legal representative, and peer team members;

l.Confidentiality, privacy, Health Insurance Portability and Accountability Act of 1996 [Pub. L. No. 104-191, 110 Stat. 1936], title 42, Code of Federal Regulations, part 2;

m.Military culture;

n.Care for adults with serious mental illness and children with emotional disturbance;

o.Abuse, neglect, and exploitation; and

p.Client rights.

2.The certified clinic may provide the trainings through an online forum.

3.The certified clinic shall regularly assess the skills and competence of each staff, including contracted staff furnishing services and, as necessary, provide training and education programs.

4.The certified clinic shall have written policies and procedures describing its method of assessing competency and shall maintain a written accounting of the training provided for the duration of employment of each staff, including contracted staff, who have direct contact with individuals.

5.The certified clinic shall document the training and demonstration of competency for staff, including contracted staff, are successfully completed.

6.The certified clinic shall ensure people providing staff training are qualified as evidenced by their education, training, and experience.

N.D. Admin. Code 75-03-44-15 Linguistic competence

1.The certified clinic shall take reasonable steps to provide meaningful access to services, such as language assistance, for individuals with limited English proficiency and language-based disabilities.

2.The certified clinic shall use an interpretation and translation service that is readily available and appropriate for the size and needs of the limited English proficiency population receiving services by the certified clinic. If the certified clinic uses an interpreter and translation service, the interpreter and translation service provider must be trained to function in a medical or behavioral health setting.

3.The certified clinic shall ensure that auxiliary aids and services are readily available, Americans with Disabilities Act compliant, and responsive to the needs of individuals with physical, cognitive, or developmental disabilities receiving services from the certified clinic.

4.The certified clinic shall ensure documents or information necessary for an individual to access certified community behavioral health clinic services are available online and in paper format. The documents or information must be in languages commonly spoken within the community served, taking account of literacy levels and the need for alternative formats based on community needs assessment findings. The certified clinic shall provide the documents or information in a timely manner at intake and throughout the time an individual is served by the certified clinic.

5.The certified clinic shall have policies with explicit provisions ensuring all staff, contracted staff, translators, and interpreters understand and adhere to confidentiality and privacy requirements applicable to the certified clinic, including the requirements of the Health Insurance Portability and Accountability Act of 1996 [Pub. L. No. 104-191, 110 Stat. 1936], title 42, Code of Federal Regulations, part 2, and other federal and state laws and regulations.

N.D. Admin. Code 75-03-44-16 Availability and accessibility of services

1.The certified clinic shall provide a safe, functional, clean, sanitary, and welcoming environment for individuals, staff, and contracted staff, if applicable, conducive to the provision of services identified in sections 75-03-44-25 through 75-03-44-36. The certified clinic shall operate nicotine-free campuses.

2.As informed by the community needs assessment, the certified clinic shall ensure services are provided during times that facilitate accessibility and meet the needs of the population served by the certified clinic, including some evening and weekend hours.

3.As informed by the community needs assessment, the certified clinic shall provide services at locations that ensure accessibility and meet the needs of the population to be served, such as settings in the community, including rural areas and reservations, and, as appropriate and feasible, in the homes of individuals.

4.The certified clinic shall provide transportation or transportation vouchers for individuals to the extent possible with relevant funding or programs in order to facilitate access to services in alignment with the person-centered and family-centered treatment plan.

5.To the extent possible, the certified clinic shall use telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies in alignment with the preferences of the individual to support access to all required services.

6.As informed by the community needs assessment, the certified clinic shall conduct outreach, engagement, and retention activities to support inclusion and access for individuals and populations.

7.Services provided by a certified clinic are subject to all state standards for the provision of both voluntary and court-ordered behavioral health services.

8.The certified clinic shall have a continuity of operations and disaster plan to ensure the certified clinic is able to effectively notify staff, individuals, and health care and community partners if a disaster or emergency occurs or if services are disrupted. The certified clinic, to the extent feasible, shall identify alternative locations and methods to sustain service delivery and access to behavioral health medications during a disaster, emergency, or disruption of services. The certified clinic's plan must also address health information technology systems security, ransomware protection, and backup and access to the information technology systems, including health records, in case of disaster, emergency, or disruption of service.

N.D. Admin. Code 75-03-44-17 Timely access to services and initial and comprehensive evaluation

1.All individuals new to receiving services, whether requesting or being referred for behavioral health services at the certified clinic, shall, at the time of first contact, receive a preliminary triage, including assessment of risk, from the certified clinic to determine acuity of needs.

2.If the preliminary triage identifies a crisis need in accordance with section 75-03-44-27, the certified clinic immediately shall take appropriate action, including plans to reduce or remove risk of harm and to facilitate any necessary subsequent outpatient followup.

3.If the preliminary triage identifies an urgent need, the certified clinic shall provide clinical services, including completing an initial evaluation, within one business day of the time the request is made. The clinical services may be provided at a later time if that is the preference of the individual receiving services.

4.If the preliminary triage identifies routine needs, the certified clinic shall provide clinical services and complete the initial evaluation within ten business days, or a later time if that is the preference of the individual if the preliminary triage identifies routine needs.

5.The certified clinic may conduct the initial evaluation through use of technologies for telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies for those individuals presenting with a crisis or urgent needs. If the certified clinic conducts the initial evaluation through use of technologies for telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies and the crisis or urgent need is resolved, the individual must be seen in-person at the next encounter with the certified clinic and the certified clinic shall review the initial evaluation.

6.The certified clinic shall follow the preliminary triage by conducting:

a.An initial evaluation in accordance with subsection 3 of section 75-03-44-28; and

b.A comprehensive evaluation in accordance with subsection 4 of section 75-03-44-28.

7.Unless subject to more stringent state, federal, or applicable accreditation standards, all new individuals shall receive a comprehensive evaluation. The certified clinic shall complete the comprehensive evaluation within sixty days of the first request for services. This requirement does not preclude the provision of treatment during the sixty-day period.

8.The certified clinic shall consider any known past initial and comprehensive evaluations, past treatments, and history of the individual during an initial and a comprehensive evaluation.

9.The certified clinic shall review and update the comprehensive person-centered and familycentered treatment plan in compliance with the standards for accreditation of an accrediting body or licensing standards, whichever is more stringent, in agreement with and endorsed by the individual. The certified clinic shall update the treatment plan if changes occur with the status of the individual, based on responses to treatment or if there are changes in treatment goals.

10.The certified clinic shall provide individuals who are already receiving services from the certified clinic and who are seeking routine outpatient clinical services an appointment within ten business days of the request for an appointment, unless the applicable state and federal regulations or accreditation standards are more stringent.

11.If an individual already receiving services presents with a crisis need, the certified clinic immediately shall take appropriate action based on the needs of the individual, including immediate crisis response if necessary.

12.If an individual already receiving services presents with an urgent, noncrisis need, the certified clinic shall attempt to provide clinical services within one business day of the time the request is made, or at a later time if that is the preference of the individual.

N.D. Admin. Code 75-03-44-18 Access to crisis management services

1.In accordance with section 75-03-44-27, the certified clinic shall provide crisis management services that are available and accessible twenty-four hours a day, seven days a week.

2.The certified clinic shall maintain policies and procedures, including a description of methods for providing a continuum of crisis prevention, response, and postvention services, which must be made available to the public.

3.The certified clinic shall educate individuals at the time of the initial evaluation meeting about crisis planning, health care directives, and how to access crisis services, including the 988 suicide and crisis lifeline, and overdose prevention, if risk is indicated.

4.In accordance with sections 75-03-44-23 through 75-03-44-26, the certified clinic shall maintain a working relationship with local hospital emergency departments. The certified clinic shall establish protocols for certified clinic staff to address the needs of individuals in behavioral health crisis who come to local hospital emergency departments.

5.The certified clinic shall establish protocols, including those for the involvement of law enforcement, to reduce delays for initiating services during and following a behavioral health crisis. The protocols must be designed to maximize the delivery of recovery-oriented treatment and services. The protocols established by the certified clinic must attempt to minimize contact with law enforcement and the criminal justice system and must promote safety and comply with applicable state and local laws and regulations.

6.Following a crisis, in collaboration with the individual, the certified clinic shall create, maintain, and follow a crisis plan to prevent and de-escalate future crisis situations.

N.D. Admin. Code 75-03-44-19 No refusal of services

1.The certified clinic shall ensure:

a.An individual seeking services is not denied behavioral health care services, including crisis management services, because of an individual's inability to pay for such services, pursuant to the Protecting Access to Medicare Act of 2014 [Pub. L. No. 113-93]; and

b.Any fees or payments required by the certified clinic for such services must be reduced or waived to enable the certified clinic to fulfill the assurance described in subdivision a.

2.The certified clinic shall publish a sliding fee discount schedule that includes all services the certified clinic offers pursuant to the criteria in subsection 1. The certified clinic shall include the sliding fee discount schedules on the certified clinic's website, post a copy in the certified clinic's waiting room, and otherwise make the information readily accessible to adult individuals and legal representatives, if applicable, and the adult individual's family or other supports if the adult individual so wishes or if the individual is a child, the family or legal representation if permitted by federal laws and regulations. The certified clinic shall communicate the sliding fee discount schedule in languages and formats appropriate for individuals seeking services.

3.The certified clinic's fee schedules, if relevant, must conform to federal and state laws and regulations. Absent applicable state or federal requirements, the schedule must be based on locally prevailing rates or charges and must include reasonable costs of operation.

4.The certified clinic shall have written policies and procedures describing eligibility for and implementation of the sliding fee discount schedule. The certified clinic shall apply these policies equally to all individuals seeking services.

N.D. Admin. Code 75-03-44-20 Provision of services regardless of residence

1.The certified clinic shall ensure that no individual seeking services is denied behavioral health care services, including crisis management services, because of place of residence, homelessness, or lack of a permanent address.

2.The certified clinic shall have protocols addressing the needs of individuals who do not live close to the certified clinic or within the certified clinic service area. The certified clinic is responsible for providing, at a minimum, crisis response, preliminary triage, and stabilization services in the certified clinic service area regardless of place of residence. The certified clinic's required protocols shall address management of the individual's ongoing treatment needs beyond crisis response, preliminary triage, and stabilization services.

3.The certified clinic shall demonstrate effort to use technologies for telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies:

a.In alignment with the preferences of the individual;

b.To the extent practical for individuals who live within the certified clinic's service area but live a long distance from the certified clinic; and

c.For situations in which timely in-person crisis response is not possible.

4.A certified clinic is not required to provide continuous services to individuals who live outside of the certified clinic's service area.

N.D. Admin. Code 75-03-44-21 Care coordination

1.The certified clinic shall coordinate care across the spectrum of health care services based on a person-centered and family-centered treatment plan that aligns with the requirements of

section 2402(a) of the Patient Protection and Affordable Care Act of 2010 [Pub. L.

No. 111-148], as amended by the Health Care and Education Reconciliation Act of 2010 [Pub. L. No. 111-152] and with state laws and regulations and is consistent with best practices.

The coordination of care must include access to high-quality acute and chronic physical health and behavioral health care, social services, housing, educational systems, and employment opportunities as necessary to facilitate wellness and recovery of the individual. The certified clinic shall coordinate with other systems to meet the needs of the individuals they serve, including criminal and juvenile justice and child welfare.

2.The certified clinic shall maintain the necessary documentation to satisfy the requirements of the Health Insurance Portability and Accountability Act of 1996 [Pub. L. No. 104-191, 110 Stat. 1936], title 42, Code of Federal Regulations, part 2 and other federal and state laws and

3.To promote coordination of care, the certified clinic shall obtain necessary consents for sharing information with community partners and other systems if information is not able to be shared under the Health Insurance Portability and Accountability Act of 1996 [Pub. L. No. 104- 191, 110 Stat. 1936], title 42, Code of Federal Regulations, part 2, and other federal and state laws and regulations. If the certified clinic is unable, after reasonable attempts, to obtain the necessary consent for any care coordination activity specified in sections 75-03-44-23 through 75-03-44-26, such attempts must be documented and revisited periodically.

4.Consistent with requirements of privacy, confidentiality, and the preferences and needs of individuals, the certified clinic shall assist individuals and the families or legal representatives of the children referred to external providers or resources in obtaining an appointment and tracking participation in services to ensure coordination and receipt of supports.

5.The certified clinic shall coordinate care in keeping with the preferences of the individual and the individual's care needs. To the extent possible, the certified clinic shall provide care coordination, as appropriate, in collaboration with the legal representative of the adult individual, if applicable, and the adult individual's family or other supports to the extent the adult individual so wishes, or if the individual is a child, in collaboration with the family or legal representative if permitted by federal laws and regulations.

6.To identify the preferences of the individual in the event of a behavioral health crisis, the certified clinic shall develop a crisis plan with each individual. At minimum, the certified clinic shall counsel individuals about the use of the 988 suicide and crisis lifeline, mobile crisis, and stabilization services should a behavioral health crisis arise when providers are not in their office.

7.The certified clinic shall make and document reasonable attempts to determine any medications prescribed by other providers. If state laws and regulations allow, the certified clinic shall consult the state prescription drug monitoring program before prescribing medications. Upon appropriate consent to release of information or as otherwise authorized by federal and state laws and regulations, the certified clinic shall provide a list of medications prescribed by the certified clinic to other providers not affiliated with the certified clinic as necessary for safe and quality care.

8.A certified clinic may not limit the freedom of choice of an individual receiving care coordination services from choosing the individual's appropriate provider within the certified clinic, with its designated collaborating organizations or with any other provider, unless limited by federal or state laws or regulations.

9.The certified clinic shall assist individuals and families or the legal representatives to access benefits, including Medicaid, and enroll in programs or supports that may benefit the individuals and their families or legal representatives.

10.The certified clinic shall work with its designated collaborating organizations to ensure all steps are taken, including obtaining consent to release of information from the individual to comply with privacy and confidentiality requirements, including the Health Insurance Portability and Accountability Act of 1996 [Pub. L. No. 104-191, 110 Stat. 1936], title 42, Code of Federal Regulations, part 2 and other federal and state laws and regulations.

N.D. Admin. Code 75-03-44-22 Health information systems

1.The certified clinic shall establish or maintain a secure health information technology system, including the storage, access, and use of electronic health records.

2.The certified clinic shall use its secure health information technology system and related technology tools to conduct activities such as population health management, quality improvement, quality measurement and reporting, outreach, and research.

3.The certified clinic shall use technology certified in accordance with 45 CFR 170 for the following required core set of certified health information technology capabilities that align with key clinical practice and care delivery requirements for certified clinics:

a.Capture health information, as feasible, including demographic information such as age, sex, and disability status;

b.Support care coordination by sending and receiving summary of care records;

c.Provide an individual timely electronic access to view, download, or transmit the individual's health information or access to the individual's health information via an application programming interface using a personal health application of the individual's choice;

d.Provide evidence-based clinical decision support; and

e.Conduct electronic prescribing.

History

• Law Implemented: NDCC 50-06-05.2, 50-06-41.4; 45 CFR 170

N.D. Admin. Code 75-03-44-23 Care coordination partnerships

1.The certified clinic shall have a partnership establishing care coordination expectations with federally qualified health centers located in the certified clinic service area to provide health care services, if the services are not provided directly through the certified clinic. For individuals who are served by other primary care providers, including federally qualified health center look-alikes and community health centers, the certified clinic shall establish protocols to ensure adequate care coordination.

2.The certified clinic shall establish partnerships for care coordination expectations with programs, including tribal programs, if any exist within the certified clinical service area, that can provide inpatient behavioral health treatment, opioid treatment program services, medical withdrawal management, ambulatory medical withdrawal management for substance use disorders, and residential substance use disorder treatment.

3.The certified clinic shall track when individuals are admitted to facilities providing the services listed in subsection 2, and when individuals are discharged, unless there is a formal transfer of care to a noncertified clinic entity.

4.The certified clinic shall establish protocols and procedures for transitioning individuals from emergency departments, inpatient behavioral health programs, medically monitored withdrawal management services, and residential or inpatient facilities that serve children to a safe community setting. The certified clinic's established protocols and procedures must include the transfer of health records of services received, a plan to follow up actively after discharge, and, as appropriate, a plan for suicide prevention and safety, overdose prevention, and provision for peer services.

5.The certified clinic shall establish partnerships with a variety of community or regional services, supports, and providers. The certified clinic's partnerships shall support joint planning for care and services, provide opportunities to identify individuals in need of services, enable the certified clinic to provide services in community settings, enable the certified clinic to provide support and consultation with a community partner, and support certified clinic outreach and engagement efforts.

6.A certified clinic shall develop partnerships with the following community or regional services, supports, and providers that provide services within the certified clinic's service area:

a.Schools;

b.Child welfare agencies;

c.Criminal and juvenile justice agencies and facilities, including jails and other specialty courts;

d.Treatment facilities, mental health facilities, facilities serving veterans, and facilities serving individuals with brain injury;

e.Indian health service youth regional treatment centers;

f.State licensed and nationally accredited child-placing agencies for therapeutic foster care service; and g.988 suicide and crisis lifeline call center.

7.The certified clinic shall establish a partnership with the nearest department of veterans' affairs medical center, independent clinic, drop-in center, or other facility of the department of veterans' affairs. If multiple department of veterans' affairs facilities of different types are located in the certified clinic's service area, the certified clinic shall work to establish care coordination agreements with facilities of each type.

8.The certified clinic's care coordination partnerships shall establish expectations with inpatient acute-care hospitals in the certified clinic's service area and with the inpatient acute-care hospital's associated facilities, including emergency departments, hospital outpatient clinics, urgent care centers, and residential crisis settings. The certified clinic's care coordination partnerships' expectations must include procedures and services to help individuals successfully transition from emergency department or hospital to the certified clinic and community care to ensure continuity of services and minimize the time between discharge and followup. The certified clinic shall work with the discharging facility ahead of discharge to assure a seamless transition. The certified clinic's partnerships shall support tracking if individuals are admitted to facilities providing the services in this subsection, and if the individuals are discharged. The certified clinic's partnerships shall support the transfer of health records of services received and provide for active followup after discharge.

9.The certified clinic shall make and document reasonable attempts to contact all individuals who are discharged from the facilities providing services in subsection 8 within twenty-four hours of discharge. For all individuals being discharged from facilities providing services in subsection 8 who are at risk for suicide or overdose, the care coordination agreement between facilities providing services in subsection 8 and the certified clinic must include a requirement to coordinate consent and followup services with the individual within twenty-four hours of discharge and must continue until the individual is connected to services, assessed to be no longer at risk, or refuses care.

10.The certified clinic shall attempt to enter a formal, signed care coordination agreement detailing the roles of each party. At a minimum, the certified clinic shall develop written protocols for supporting coordinated care undertaken by the certified clinic and efforts to deepen the partnerships required by this section over time so jointly developed protocols or formal agreements may be developed.

N.D. Admin. Code 75-03-44-24 Care treatment team, treatment planning, and care coordination activities

1.The certified clinic treatment team must include the adult individual and legal representative, if applicable, and the adult individual's family or other supports if the adult individual so wishes or if the individual is a child, the family or legal representative if permitted by federal laws or

2.The certified clinic's treatment planning and care coordination activities must be person centered and family centered and must align with the requirements of section 2402(a) of the Patient Protection and Affordable Care Act of 2010 [Pub. L. 111-148], as amended by the Health Care and Education Reconciliation Act of 2010 [Pub. L. No. 111-152].

3.The certified clinic's treatment planning and care coordination activities are subject to the Health Insurance Portability and Accountability Act of 1996 [Pub. L. No. 104-191, 110 Stat. 1936], title 42, Code of Federal Regulations, part 2 and other federal and state laws and

4.The certified clinic shall designate team members within an interdisciplinary treatment team framework who are responsible, with the adult individual and legal representative, if applicable, and the adult individual's family or other supports if the adult individual so wishes or if the individual is a child, the family or legal representative if permitted by federal laws and regulations, for directing, coordinating, and managing care and services.

5.The designated certified clinic team members must be composed of staff who work together to coordinate the medical, psychiatric, psychosocial, emotional, therapeutic, and recovery support needs of the individuals, including, as appropriate and desired by the individuals, traditional approaches to care for individuals who are American Indian or Alaska native or from other groups.

6.The certified clinic shall coordinate care and services provided by designated collaborating organizations in accordance with the individual's current treatment plan.

N.D. Admin. Code 75-03-44-25 General service provisions

1.Whether delivered directly or through a designated collaborating organization agreement, the certified clinic is responsible for ensuring access to all care specified in the Protecting Access to Medicare Act of 2014 [Pub. L. No. 113-93], including, as more explicitly provided in sections 75-03-44-27 through 75-03-44-36 the following required services:

a.Crisis services;

b.Screening, assessment, and diagnosis;

c.Person-centered and family-centered treatment planning;

d.Outpatient behavioral health services;

e.Outpatient primary care screening and monitoring;

f.Targeted case management;

g.Psychiatric rehabilitation;

h.Peer, parent, or legal representative supports; and

i.Intensive community-based outpatient behavioral health care for members of the United States armed forces and veterans.

2.The certified clinic shall deliver directly the majority of encounters across the required services, excluding crisis services, rather than through a designated collaborating organization.

3.The certified clinic shall ensure all certified community behavioral health clinic services, if not available directly through the certified clinic, are provided through a designated collaborating organization, consistent with the freedom of choice of the individual to choose appropriate providers within the certified clinic and its designated collaborating organizations, unless limited by federal or state laws or regulations. This subsection does not preclude the certified clinic's use of referrals outside the certified clinic or designated collaborating organization if a needed specialty service is unavailable through the certified clinic or designated collaborating organizations.

4.Regarding certified clinic and designated collaborating organization services, individuals must be informed of and have access to the certified clinic's existing grievance procedures, which must satisfy the minimum requirements of Medicaid and other grievance requirements such as those mandated by relevant accrediting entities or state laws and regulations.

5.Designated collaborating organization-provided services for individuals must meet the same quality standards as those provided by the certified clinic. The entities with which the certified clinic coordinates care and all designated collaborating organizations, taken in conjunction with the certified clinic itself, shall satisfy the mandatory aspects of this chapter.

N.D. Admin. Code 75-03-44-26 Requirement of person-centered and family-centered care

1.The certified clinic shall ensure all certified community behavioral health clinic services, including those supplied by its designated collaborating organizations, are provided in a manner aligned with the requirements of section 2402(a) of the federal Patient Protection and Affordable Care Act of 2010 [Pub L. No. 111-148], as amended by the Health Care and Education Reconciliation Act of 2010 [Pub. L. No. 111-152]. These requirements reflect: person-centered and family-centered, recovery-oriented care; being respectful of the needs, preferences, and values of the individuals; and ensuring both involvement of the individual and self-direction of services received. The certified clinic shall ensure services for children are family centered, child guided, and developmentally appropriate.

2.The certified clinic and designated collaborating organizations shall deliver person-centered and family-centered care that is responsive to the development of the individual and includes care that recognizes the particular needs of the individual.

N.D. Admin. Code 75-03-44-27 Crisis behavioral health services

1.The certified clinic shall directly, or by a designated collaborating organization, provide robust and timely crisis behavioral health services. The available crisis behavioral health services must include:

a.Crisis intervention services through coordination with the 988 suicide and crisis lifeline telephone, text, and chat crisis intervention call center;

b.Community-based behavioral health crisis intervention services using mobile crisis teams available twenty-four hours per day, seven days per week, to individuals and their families or legal representatives anywhere within the certified clinic's service area, including at home, work, or anywhere else the crisis is experienced. Mobile crisis teams are expected to arrive in-person within thirty minutes plus travel time from the time they are dispatched, with response time not to exceed three hours. Telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies may be used to connect individuals in crisis to appropriate providers during the interim travel time. These technologies also may be used to provide crisis care to individuals if remote travel distances make the three-hour response time unachievable, but the ability to provide an in-person response must be available if necessary to ensure safety; and

c.Crisis receiving and stabilization services including, at minimum, walk-in behavioral health services for voluntary individuals. Walk-in behavioral health services must identify the individual's immediate needs, de-escalate the crisis, and connect the individual to a safe and least restrictive setting for ongoing care. The certified clinic shall establish walkin hours based on the community needs assessment, including evening hours, which are publicly posted. The certified clinic is not required by this section to manage the highest acuity individuals in this setting.

2.The certified clinic's crisis behavioral health care services must include suicide prevention and intervention.

3.The certified clinic or its designated collaborating organization shall offer services capable of addressing crises related to substance use, including the risk of drug and alcohol-related overdose, and shall offer support following a nonfatal overdose after the individual is medically stable. The certified clinic's overdose prevention activities must include access to naloxone for overdose reversal to individuals who are at risk of opioid overdose and, as appropriate, to their family members or legal representatives.

4.The certified clinic or its designated collaborating organization shall offer developmentally appropriate responses, sensitive de-escalation supports, and connections to ongoing care, when needed.

5.The certified clinic shall have an established protocol specifying the role of law enforcement during the provision of crisis services.

N.D. Admin. Code 75-03-44-28 Screening, assessment, and diagnosis

1.The certified clinic shall directly provide screenings, assessments, and diagnoses, including risk assessments for behavioral health conditions, to individuals. If specialized services outside the expertise of the certified clinic are required for purposes of screening, assessment, or diagnosis of an individual, the certified clinic shall refer the individual to an appropriate provider. The certified clinic, if necessary and appropriate, may provide the screening, assessment, and diagnosis through telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies.

2.The certified clinic shall conduct the screening, assessment, and diagnosis in a time frame responsive to the needs and preferences of the individual and shall ensure the screening, assessment, and diagnosis are of sufficient scope to assess the need for all services required to be provided by the certified clinic.

3.The initial evaluation, as required in section 75-03-44-17, provided by the certified clinic, must include at a minimum:

a.Preliminary diagnoses;

b.The source of referral;

c.The reason for seeking care, as stated by the adult individual and legal representative, if applicable, and the adult individual's family or other supports if the adult individual so wishes or if the individual is a child, the family or legal representatives;

d.Identification of the immediate clinical care needs related to the diagnosis for mental and substance use disorders of the individual;

e.A list of all known current prescriptions and over-the-counter medications, herbal remedies, and dietary supplements used by the individual and the indication for any medications;

f.A summary of known previous mental health and substance use disorder treatments with a focus on which treatments were beneficial and which were not;

g.The use of alcohol or drugs;

h.An assessment of whether the individual is a risk to self or to others, including suicide risk factors;

i.An assessment of whether the individual has other concerns for the individual's safety, such as intimate partner violence;

j.Assessment of need for medical care, with a referral and followup as required;

k.A determination of whether the individual presently is, or ever has been, a member of the United States armed forces; and

l.For a child, whether the child has criminal and juvenile justice or child welfare system involvement.

4.A certified clinic shall provide a comprehensive evaluation for all individuals. Subject to applicable federal and state laws and regulations and accreditation standards, certified clinic's clinicians shall use their clinical judgment with respect to the depth of questioning within the comprehensive evaluation so the comprehensive evaluation actively engages the individual around the individual's presenting concern. The certified clinic's comprehensive evaluation must gather the amount of information commensurate with the complexity of the individual's specific needs and prioritize preferences of the individual with respect to the depth of the comprehensive evaluation and the individual's treatment goals. The comprehensive evaluation must include:

a.The individual's reasons for seeking services at the certified clinic, including information regarding onset of symptoms, severity of symptoms, and circumstances leading to the presentation to the certified clinic of the individual;

b.An overview of the individual's relevant social supports, social determinants of health, health-related social needs such as housing, vocational, and educational status, family or legal representative and social supports legal issues, and insurance status;

c.A description of the individual's cultural and environmental factors that may affect the treatment plan of the individual, including the need for linguistic services or supports for individuals with limited English proficiency;

d.The individual's pregnancy and parenting status;

e.The individual's behavioral health history, including trauma history and previous therapeutic interventions and hospitalizations with a focus on what was beneficial and what was not beneficial in past treatments;

f.The individual's relevant medical history and major health conditions that impact the individual's current psychological status;

g.A medication list including prescriptions, over-the counter medications, herbal remedies, dietary supplements, and other treatments or medications of the individual. A certified clinic's medication list must include treatments or medications identified in a prescription drug monitoring program that may affect the individual's clinical presentation and pharmacotherapy, as well as information on allergies including medication allergies;

h.An examination of the individual which includes current mental status, mental health, and substance use disorders;

i.Basic cognitive screening of the individual for cognitive impairment;

j.Assessment of imminent risk to the individual, including suicide risk, withdrawal and overdose risk, danger to self or others, urgent or critical medical conditions, and other immediate risks, including threats from another person;

k.The strengths, goals, preferences, and other factors to be considered in treatment and recovery planning of the individual;

l.Assessment of the need for other services required by this chapter;

m.Assessment of any relevant social or human service needs of the individual, with necessary referrals made to social or human services. For children receiving services, assessment of criminal and juvenile justice and child welfare system involvement and referral to child welfare agencies as appropriate;

n.An assessment of need for a physical examination or further evaluation by appropriate health care professionals, including the primary care provider, with appropriate referral and followup, of the individual; and

o.The preferences of the individual regarding the use of technologies such as telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies.

5.A certified clinic shall include data and quality metrics in screening, assessment, and evaluations as identified in sections 75-03-44-37 and 75-03-44-38, and as clinically indicated.

6.The certified clinic shall use standardized, validated, and developmentally appropriate screening and assessment tools appropriate for the individual and, if warranted, brief motivational interviewing techniques to facilitate engagement. If the certified clinic's screening identifies unsafe substance use, including problematic alcohol or other substance use, the certified clinic shall conduct a brief intervention and shall provide a full assessment and treatment for the individual, if appropriate within the level of care of the certified clinic. If the full assessment and treatment for the individual is not appropriate within the level of care provided by the certified clinic, the certified clinic shall refer the individual to a more appropriate level of care. If the certified clinic's screening identifies more immediate threats to the safety of the individual, the certified clinic shall take appropriate action as described in subsection 1 of section 75-03-44-17.

N.D. Admin. Code 75-03-44-29 Person-centered and family-centered treatment planning

1.The certified clinic directly shall provide person-centered and family-centered treatment planning, including risk assessment and crisis planning.

2.The certified clinic shall develop an individualized treatment plan based on information obtained through the comprehensive evaluation and the individual's goals and preferences.

The individualized treatment plan must:

a.Address the individual's prevention, medical, and behavioral health needs;

b.Be comprehensive, addressing all services required, including recovery supports, with provision for monitoring of progress toward goals;

c.Be developed in collaboration with and be endorsed by the adult individual and legal representative, if applicable, and the adult individual's family or other supports to the extent the adult individual so wishes or if the individual is a child, the family or legal representative if permitted by federal laws and regulations;

d.Be coordinated with staff or programs necessary to carry out the plan;

e.Support care in the least restrictive setting possible; and

f.Include needs, strengths, abilities, preferences, and goals, expressed in a manner capturing the words or ideas of the adult individual and legal representative, if applicable, and the adult individual's family or other supports or if the individual is a child, the family or legal representative.

3.The certified clinic shall use the initial evaluation, comprehensive evaluation, and ongoing screening and assessment of the individual to inform the treatment plan and services provided.

4.The certified clinic's treatment planning must include needs, strengths, abilities, preferences, and goals, expressed in a manner capturing the words or ideas of the individual and legal representative, if applicable, and the adult individual's family or other supports or if the individual is a child, the family or legal representative.

5.The certified clinic's treatment plan must be built upon a shared decisionmaking approach and must be comprehensive, addressing all services required, including recovery supports, with provision for monitoring of progress toward goals.

6.The certified clinic shall, where appropriate, seek consultation during treatment planning.

7.The certified clinic shall document any health care directives related to treatment and crisis planning in the individual's health record. If the individual does not wish to share the individual's preferences with the certified clinic, the certified clinic shall document the individual's decision in the individual's health record.

N.D. Admin. Code 75-03-44-30 Outpatient behavioral health services

1.The certified clinic directly, or through a designated collaborating organization, shall provide outpatient behavioral health care.

2.The certified clinic directly, or through a designated collaborating organization, shall provide evidence-based services using best practices for treating mental health and substance use disorders across the lifespan of an individual utilizing tailored approaches.

3.The certified clinic shall provide the following outpatient services:

a.Mental health counseling for individuals and their families;

b.Psychopharmacological treatment, psychiatric evaluation, and medication management for individuals;

c.Psychological and psychometric evaluations;

d.Substance use disorder treatment at an intensive outpatient level of care and less intensive levels of care as described by article 75-03 for adults;

e.Substance use disorder treatment at an outpatient level of care as described by article 75-03 for adolescents; and

f.Treatment of tobacco use disorders.

4.If specialized or more intensive services outside the expertise of the certified clinic or designated collaborating organization are required for purposes of outpatient mental and substance use disorder treatment, the certified clinic shall make those services available through referral or other formal arrangement with other providers or, where necessary and appropriate, through use of telehealth, telemedicine, videoconferencing, remote patient monitoring, asynchronous interventions, or other technologies, in alignment with federal and state laws and regulations.

5.The certified clinic shall provide, or make available through a formal arrangement, traditional practices and treatment as appropriate for the individuals served in the certified clinic area. If specialist service providers are not available to provide direct care to a particular individual, or specialist care is not practically available, the certified clinic staff may consult with specialized services providers for highly specialized treatment needs.

N.D. Admin. Code 75-03-44-31 Evidence-based services

1.The certified clinic shall provide the following evidence-based practices:

a.Motivational interviewing;

b.Cognitive behavioral therapy;

c.Trauma-focused cognitive behavioral therapy;

d.Long-acting injectable medications and other effective but underutilized medications to treat both mental and substance use disorders; and

e.Food and drug administration-approved medications for mental and substance use disorders including opioid use disorder and nicotine replacement therapies.

2.A certified clinic shall provide, directly or through a designated collaborating organization or formal partner, evidence-based services appropriate for the phase of life and development of the individual, specifically considering what is appropriate for children of various ages and older adults, as distinct groups for whom life stage and functioning may affect treatment. The certified clinic's treatments must be delivered by staff with specific training in treating the segment of the population being served, as follows:

a.If treating children, the certified clinics shall provide evidence-based services that are developmentally appropriate, child guided, and family driven.

b.If treating older adults, the certified clinic shall consider the desires and functioning of the individual and provide the appropriate evidence-based treatments.

c.If treating individuals with developmental, brain injury, or other cognitive disabilities, the certified clinic shall consider the level of functioning and provide the appropriate evidence-based treatments.

3.Supports for children must comprehensively address family, legal representative, school, medical, mental health, substance use, psychosocial, and environmental issues.

N.D. Admin. Code 75-03-44-32 Outpatient clinic primary care screening and monitoring

1.The certified clinic is responsible for outpatient primary care screening and monitoring of key health indicators and health risk. Whether directly provided by the certified clinic or through a designated collaborating organization, the certified clinic shall ensure these services are received.

2.The medical director shall establish protocols that give consideration to screening recommendations with scores of A and B, in accordance with United States preventive services task force recommendations for HIV and viral hepatitis.

3.The medical director shall identify and establish parameters for primary care referrals in accordance with sections 75-03-44-37 and 75-03-44-38.

4.The medical director shall develop organizational protocols to ensure screening is conducted for individuals who are at risk for common physical health conditions experienced by populations across the lifespan. Protocols must include:

a.Identifying individuals with chronic diseases;

b.Ensuring individuals are asked about physical health symptoms; and

c.Establishing systems for collection and analysis of laboratory samples.

5.The certified clinic shall have the ability to collect biologic samples directly, through a designated collaborating organization, or through protocols with an independent clinical laboratory organization. A certified clinic may conduct laboratory analyses directly, through a designated collaborating organization, or through another arrangement with an organization separate from the certified clinic.

6.If the individual's primary care provider conducts the necessary screening and monitoring, the certified clinic is not required to do so if it has a record of the screening and monitoring and the results of any tests that address the health conditions included in the certified clinics screening and monitoring protocols developed under section 75-03.1-44-32.

7.The certified clinic shall provide ongoing primary care monitoring of health conditions as clinically indicated for the individual. Monitoring of health conditions includes the following:

a.Ensuring individuals have access to primary care services;

b.Ensuring ongoing periodic laboratory testing and physical measurement of health status indicators and changes in the status of chronic health conditions;

c.Coordinating care with primary care and specialty health providers, including tracking attendance at needed physical health care appointments; and

d.Promoting a healthy behavior lifestyle.

N.D. Admin. Code 75-03-44-33 Targeted case management services

1.The certified clinic is responsible for providing directly, or through a designated collaborating organization, targeted case management services that must assist individuals in sustaining recovery and gaining access to needed medical, social, legal, educational, housing, vocational, and other services and supports.

2.Certified clinic's targeted case management must provide an intensive level of support that goes beyond the care coordination that is a basic expectation for all individuals. The targeted case management must:

a.Include supports for individuals deemed at high risk of suicide or overdose, particularly during times of transition such as from a residential treatment, hospital emergency department, or behavioral health hospitalization;

b.Be used and accessible during other critical periods, such as episodes of homelessness or transitions to the community from jails or prisons; and

c.Be used for individuals with complex or serious mental health, including those at risk for out-of-home placement or substance use conditions, and for individuals who have a short-term need for support in a critical period, such as an acute episode or care transition.

N.D. Admin. Code 75-03-44-34 Psychiatric rehabilitation services

1.The certified clinic is responsible for providing directly, or through a designated collaborating organization, evidence-based psychiatric rehabilitation services for behavioral health disorders.

2.Psychiatric rehabilitative services must include services and supports that:

a.Help individuals develop skills and functioning to facilitate community living;

b.Support positive social, emotional, and educational development;

c.Facilitate inclusion and integration; and

d.Support pursuit of their goals in the community.

3.Psychiatric rehabilitation services must support individuals to:

a.Participate in supported education and other educational services;

b.Achieve social inclusion and community connectedness;

c.Participate in medication education, self-management, and individual and family or legal representative psychoeducation; and

d.Find and maintain safe and stable housing.

4.Psychiatric rehabilitation services must include supported employment programs designed to provide individuals with ongoing support to obtain and maintain competitive, integrated employment.

N.D. Admin. Code 75-03-44-35 Peer supports, peer counseling, and family and caregiver supports

1.The certified clinic is responsible for providing directly, or through a designated collaborating organization, peer supports, including peer support specialist and parent and caregiver peer supports.

2.The certified clinic shall provide peer support and parent and caregiver peer support services by professionals certified in North Dakota in accordance with chapter 75-03-43.

3.The certified clinic's peer services must include:

a.Peer-run wellness and recovery centers; and

b.Peer recovery services.

N.D. Admin. Code 75-03-44-36 Intensive, community-based mental health care for members of the armed forces and veterans

1.The certified clinic is responsible for providing directly, or through a designated collaborating organization, intensive and community-based behavioral health care for certain members of the United States armed forces and veterans, particularly armed forces members located fifty miles or more from a military treatment facility and veterans living forty miles or more from a veterans administration hospital, or as otherwise required by federal laws and regulations.

2.The certified clinic shall ask all individuals seeking services whether they have ever served in the United States military.

3.The certified clinic shall offer assistance to individuals affirming current military service in the following manner:

a.Active duty service members shall use their servicing military treatment facility. The certified clinic and its designated collaborating organization shall contact the active duty service member's military treatment facility's primary care managers regarding referrals outside the military treatment facility;

b.An active duty service member and activated reserve component members who reside more than fifty miles from a veterans administration hospital or military clinic enrolled in TRICARE prime remote shall use the network primary care manager or select any other TRICARE authorized provider as the primary care manager. The primary care manager shall refer an active duty service member or activated reserve component member to specialists for care the primary care manager cannot provide and the primary care manager shall work with the regional managed care support contractor for referrals and authorizations; and

c.Members of the selected reserves, not on active duty orders, are eligible for TRICARE reserve select. The certified clinic and its designated collaborating organization shall direct members of the select reserves, not on active duty orders, to schedule an appointment with any TRICARE authorized provider, network or non-network.

4.The certified clinic and its designated collaborating organization shall offer assistance to individuals affirming former military service to enroll in veterans health administration services for the delivery of health and behavioral health services. Veterans who decline or are ineligible for veterans health administration services must be served by the certified clinic or its designated collaborating organization, consistent with minimum clinical mental health requirements promulgated by the veterans health administration directive 1160.01, Uniform Mental Health Services in VHA Medical Points of Service, dated April 27, 2023.

5.The certified clinic and its designated collaborating organization shall ensure there is integration or coordination between care for substance use disorders and other mental health conditions for veterans who experience both and integration or coordination between care for behavioral health conditions and other components of health care for all veterans.

6.The certified clinic shall assign a principal behavioral health provider to every veteran seen for behavioral health services. If a veteran is seeing more than one behavioral health provider and is involved in more than one program, the certified clinic shall make clear the identity of the principal behavioral health provider to the veteran and identify the principal behavioral health provider in the veteran's health record. The certified clinic shall identify the principal behavioral health provider on a tracking database for veterans who need case management.

The principal behavioral health provider shall:

a.Maintain regular contact with the veteran as clinically indicated if ongoing care is required;

b.Review and reconcile each veteran's psychiatric medication on a regular basis with a psychiatrist or other independent prescriber as permitted by the requirements of veterans health administration directive 1160.01, Uniform Mental Health Services in VHA Medical Points of Service, dated April 27, 2023;

c.Coordinate and develop the veteran's treatment plan. The veteran's treatment plan must incorporate input from the veteran and legal representative, if applicable, and when appropriate, the veteran's family with the veteran's and legal representative's, if applicable, consent;

d.Document and monitor the implementation of the treatment plan, including tracking progress in the care delivered, the outcomes achieved, and the goals attained;

e.Revise the treatment plan when necessary;

f.With the veteran and legal representative, if applicable, and the veteran's family with the veteran's and legal representative's, if applicable, consent communicate about the treatment plan and address any of the veteran’s problems or concerns about their care.

For veterans who are at high risk of losing decisionmaking capacity, such as those with a diagnosis of schizophrenia or schizoaffective disorder, communications must include discussions regarding future behavioral health care treatment; and

g.Ensure the treatment plan reflects the veteran's goals and preferences for care and that the veteran verbally consents to the treatment plan in accordance with veterans health administration directive 1004.01(3), Informed Consent for Clinical Treatments and Procedures, dated December 12, 2023.

7.If the principal behavioral health provider suspects the veteran lacks the capacity to make a decision about the mental health treatment plan, the principal behavioral health provider shall ensure the veteran's decisionmaking capacity is formally assessed and documented. For veterans who are determined to lack capacity, the principal behavioral health provider shall identify the authorized surrogate and document the authorized surrogate's verbal consent to the treatment plan. The use of supported decisionmaking may also be considered.

8.To satisfy the federal requirements that care for veterans adheres to requirements promulgated by the veteran health administration, the certified clinic, and its designated collaborating organization shall provide behavioral health services that are recovery-oriented.

9.The certified clinic, and its designated collaborating organization shall provide culturally responsive behavioral health care. Any staff of the certified clinic staff and its designated collaborating organization who are not a veteran shall undergo training about military and veterans' culture to be able to understand the experiences and contributions of those who have served their country.

10.The certified clinic shall ensure there is a behavioral health treatment plan for all veterans receiving behavioral health services. The treatment plan must:

a.Include the veteran's diagnosis and document consideration of each type of evidencebased intervention for each diagnosis;

b.Include approaches to monitoring the therapeutic benefits and adverse effects of care, milestones for reevaluation of interventions, and the plan itself;

c.Include, as appropriate, the interventions intended to reduce and manage symptoms, improve functioning, and prevent relapses or recurrences of episodes of illness;

d.Be recovery oriented, attentive to the veteran's values and preferences, and evidence based regarding what constitutes effective and safe treatments; and

e.Be developed with input from the veteran and legal representative, if applicable, and the veteran's family with the veteran's and legal representative's, if applicable, consent. The veteran's verbal consent to the treatment plan is required in accordance with veterans health administration directive 1004.01(3), Informed Consent for Clinical Treatments and Procedures, dated December 12, 2023.

N.D. Admin. Code 75-03-44-37 Data collection, reporting, and tracking

1.The certified clinic shall collect, report, and track encounter, outcome, and quality data, including data regarding:

a.Characteristics of individuals;

b.Staffing;

c.Access to services;

d.Use of services;

e.Screening, prevention, and treatment;

f.Care coordination;

g.Other processes of care;

h.Costs; and

i.Outcomes of individuals.

2.If feasible, the certified clinic shall capture the information about individuals and care delivery electronically using widely available standards.

3.The certified clinic shall collect and report annually the required clinic-collected quality measures in the form and manner prescribed by the department.

N.D. Admin. Code 75-03-44-38 Continuous quality improvement plan

1.In order to maintain a continuous focus on quality improvement, the certified clinic shall develop, implement, and maintain an effective, certified clinicwide continuous quality improvement plan for the services provided. The continuous quality improvement plan must focus on indicators related to improved behavioral and physical health outcomes and take action to demonstrate improvement in certified clinic performance.

2.The certified clinic shall establish a critical review process to review continuous quality improvement outcomes and implement changes to staffing, services, and availability that must improve the quality and timeliness of services.

3.The certified clinic shall involve the medical director in the aspects of the continuous quality improvement plan which apply to the quality of the medical components of care, including coordination and integration with primary care.

4.The certified clinic's continuous quality improvement plan must address how the certified clinic shall review known significant events including, at a minimum:

a.Deaths by suicide or suicide attempts of individuals;

b.Fatal and nonfatal overdoses;

c.All-cause mortality among individuals;

d.Thirty-day hospital readmissions for behavioral health reasons; and

e.Such other events the state or applicable accreditation bodies may deem appropriate for examination and remediation as part of a continuous quality improvement plan.

5.The continuous quality improvement plan must be data driven and the certified clinic shall use quantitative and qualitative data in its continuous quality improvement activities. The certified clinic's continuous quality improvement plan must be in the form and manner prescribed by the department.

N.D. Admin. Code 75-03-44-39 General requirements of organizational authority and finances

1.If the certified clinic is not operated under the authority of the Indian health service, an Indian tribe, or tribal or urban Indian organization, the certified clinic shall reach out to such entities within the certified clinic's service area and offer to enter into arrangements with those entities to assist in the provision of services to tribal members and to inform the provision of services to tribal members. If the certified clinic and such entities jointly provide services, the certified clinic and those entities shall satisfy the requirements of this subsection. At a minimum, the certified clinic shall develop written protocols for supporting coordinated care undertaken by the certified clinic and efforts to deepen the partnership over time so jointly developed protocols or formal agreements can be developed.

2.The certified clinic shall have an independent financial audit performed annually for the duration the certified clinic is designated as a certified clinic in accordance with federal audit requirements and, if indicated, shall submit a corrective action plan addressing all findings, questioned costs, reportable conditions, and material weaknesses cited in the audit report.

N.D. Admin. Code 75-03-44-40 Governance

1.Governance of the certified clinic must be informed by representatives of the individuals being served by the certified clinic in terms of demographic factors such as geographic area, sex, disability, and age, and in terms of health and behavioral health needs. Members of the governing or advisory boards must be selected for their expertise in health services, community affairs, local government, finance and accounting, legal affairs, trade unions, faith communities, commercial and industrial concerns, or social service agencies within the communities served or in accordance with North Dakota Century Code section 50-06-05.3.

2.The certified clinic shall incorporate meaningful participation from individuals of various ages with lived experience of mental or substance use disorders, their legal representatives, and their families. Meaningful participation means involving a substantial number of individuals with lived experience, their legal representatives, and their family members in developing initiatives, identifying community needs, goals, and objectives, and providing input on service development and continuous quality improvement processes.

3.The certified clinic shall reflect meaningful participation by meeting one of the two following requirements:

a.At least fifty-one percent of the governing board must be comprised of individuals with lived experience of mental or substance use disorders, their legal representatives, and their families; or

b.Other means must be established to demonstrate meaningful participation in board governance involving individuals with lived experience, their legal representatives, and their families as an alternative arrangement. Individuals with lived experience of mental or substance use disorders, their legal representatives, and their family members must have representation in governance assures input into identifying community needs and goals and objectives of the certified community behavioral health clinic service development, quality improvement, and the activities of the certified clinic. The governing board shall establish protocols for incorporating input from individuals with lived experience, their legal representatives, and their family members, including:

(1)Board meeting summaries must be shared with participants in the alternate arrangement and recommendations from the alternate arrangement must be entered into the formal board record.

(2)A member or members of this established alternate arrangement must be invited to board meetings.

(3)Representatives of the alternate arrangement must have the opportunity to regularly address the board directly, directly share recommendations with the board, and have their comments and recommendations recorded in the board minutes.

(4)The certified clinic shall provide staff support for posting an annual summary of the recommendations from this alternate arrangement on the certified clinic's website.

(5)The certified clinic shall provide staff support to the individuals involved in any alternate approach in a manner that is equivalent to the support given to the governing board.

4.If the certified clinic is comprised of a governmental or tribal organization, subsidiary, or part of a larger corporate organization that cannot meet these requirements for board membership, the certified clinic shall specify the reasons why it cannot meet these requirements. The certified clinic shall maintain or develop an advisory structure and describe other methods for individuals with lived experience, their legal representatives, and their families to provide meaningful participation.

5.No more than fifty percent of the governing board members in this subsection may derive more than ten percent of their annual income from the health care industry.

N.D. Admin. Code 75-03-44-41 Accreditation

1.The certified clinic shall maintain enrollment as a Medicaid provider and adhere to applicable state certification, licensing, and national accreditation requirements.

2.The certified clinic is required to participate in the North Dakota mental health directory and the substance abuse and mental health services administration's behavioral health treatment locator.

N.D. Admin. Code 75-03-44-42 Designated collaborating organization agreement

1.The formal relationship between a certified clinic and a designated collaborating organization must create a platform for seamlessly integrated services delivered across providers under the umbrella of a certified clinic.

2.A designated collaborating organization agreement must include provisions that assure that the required certified clinic services that a designated collaborating organization provides under the certified clinic umbrella are delivered in a manner that meets the standards of this

Article 75-04 Developmental Disabilities

Chapter 75-04-01 Licensing of Programs and Services for Individuals with Intellectual Disabilities - Developmental Disabilities

N.D. Admin. Code 75-04-01-01 Definitions

In this chapter, unless the context or subject matter requires otherwise:

1."Accreditation" means accredited by a department-approved national organization of a licensee's compliance with a set of specified standards.

2."Applicant" means an entity that has requested licensure from the North Dakota department of health and human services pursuant to North Dakota Century Code chapter 25-16 and this

chapter.

3."Application" means a request in the form and manner prescribed by the department signed by the applicant or principal officer on behalf of the applicant.

4."Authorized representative" means a person who has legal authority, either designated or granted, to make decisions on behalf of the eligible individual.

5."Day habilitation" means a day program of scheduled activities, formalized training, and staff supports to promote skill development for the acquisition, retention, or improvement in self-help, socialization, and adaptive skills. Activities should focus on improving a an eligible individual's sensory, motor, cognitive, communication, and social interaction skills.

6."Department" means the North Dakota department of health and human services.

7."Developmental disability" means a severe, chronic disability of an individual which:

a.Is attributable to a mental or physical impairment or combination of mental and physical impairments, including Down syndrome and fetal alcohol spectrum disorders, including fetal alcohol syndrome, partial fetal alcohol syndrome, and alcohol-related neurodevelopmental disorder;

b.Is manifested before the individual attains age twenty-two;

c.Is likely to continue indefinitely;

d.Results in substantial functional limitations in three or more of the following areas of major life activity:

(1)Self-care;

(2)Receptive and expressive language;

(3)Learning;

(4)Mobility;

(5)Self-direction;

(6)Capacity for independent living; and (7)Economic sufficiency; and

e.Reflects the individual's needs for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated.

8."Developmental disability services" means those services required to be provided by an entity in order to obtain and maintain a license.

9."Eligible individual" means an individual found eligible as determined through the application of chapter 75-04-06 for services coordinated through intellectual disabilities - developmental disabilities program management, on whose behalf services are provided or purchased.

10."Employment support" means ongoing supports to assist eligible individuals in obtaining and maintaining paid employment at or above minimum wage in an integrated setting. Services are designed for eligible individuals who need intensive ongoing support to perform in a work setting. Service includes on-the-job or off-the-job employment-related support for eligible individuals needing intervention to assist them in maintaining employment, including job development. Employment support includes individual employment support and small group employment support.

11."Family member" means relatives of a an eligible individual to the second degree of kinship.

12."Family support services" means a family-centered support service contracted based on the eligible individual's or primary caregiver's need for support in meeting the health, developmental, and safety needs to remain in an appropriate home environment. Family support services includes parenting support, respite, extended home health care, in-home supports, and family care option.

13."Governing body" means the individual or individuals designated in the articles of incorporation of a corporation, bylaws, or constitution of a legal entity as being authorized to act on behalf of the entity.

14."Group home" means any community residential service facility, licensed by the department pursuant to North Dakota Century Code chapter 25-16 and this chapter, housing more than three individuals with developmental disabilities. "Group home" does not include a community complex with self-contained rental units.

15."Infant development" means a systematic application of an individualized family service plan designed to alleviate or mediate developmental delay of the eligible individual from birth through age two.

16."Intellectual disability" means a diagnosis of the condition of intellectual disability, based on an individually administered standardized intelligence test and standardized measure of adaptive behavior as accepted by the American psychiatric association, and made by an appropriately licensed professional.

17."Intermediate care facility for individuals with intellectual disabilities" means a residential health facility operated pursuant to title 42, Code of Federal Regulations, parts 442 and 483, et seq.

18."License" means authorization by the department to provide a service to eligible individuals, pursuant to North Dakota Century Code chapter 25-16 and this chapter.

19."Licensee" means that entity which has received authorization by the department, pursuant to North Dakota Century Code chapter 25-16 and this chapter and who has executed a Medicaid agreement with the department, to provide a service or services to eligible individuals.

20."Prevocational services" means formalized training, experiences, and staff supports designed to prepare eligible individuals for paid employment in integrated community settings. Services are structured to develop general abilities and skills that support employability in a work setting. Services are not directed at teaching job-specific skills, but at specific habilitative goals outlined in the eligible individual's person-centered service plan.

21."Primary caregiver" means a responsible person providing continuous care and supervision to an eligible individual that prevents institutionalization in meeting the needs of the eligible individual and who is not employed by or working under contract of a licensee pursuant to this

chapter.

22."Principal officer" means the presiding member of a governing body, a chairperson, or president of a board of directors.

23."Program management" means a process of interconnected steps which will assist an eligible individual in gaining access to needed services, including medical, social, educational, and other services, regardless of the funding source for the services to which access is gained.

24."Resident" means an individual receiving services provided through any licensed residential facility or service.

25."Residential services" means formalized training and supports provided to eligible individuals to assist with and develop self-help, socialization, and adaptive skills that improve the eligible individual's ability to independently reside and participate in an integrated community.

Residential services include residential rehabilitation and independent habilitation.

26."Standards" means requirements which result in accreditation and, if applicable, certification as an intermediate care facility for individuals with intellectual disabilities.

July 1, 2001; July 1, 2012; April 1, 2018; April 1, 2020; January 1, 2025.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; April 1, 2000;
• Law Implemented: NDCC 25-01.2-18, 25-16-06

N.D. Admin. Code 75-04-01-02 License required and renewal

1.No individual, association of individuals, partnership, limited liability company, or corporation shall offer or provide a service or own, manage, or operate a facility offering or providing a service to more than two individuals with developmental disabilities without first having obtained a license from the department unless the facility is:

a.Exempted by North Dakota Century Code section 15.1-34-02; or

b.Operated by a nonprofit corporation that receives no payments from the state or any political subdivision and provides only day supports for six or fewer individuals with developmental disabilities. "Payment" does not include donations of goods and services or discounts on goods and services.

2.Licensure does not create an obligation for the state to purchase services from the licensee.

3.At the discretion of the department, the department may issue a single license for a discrete service or issue multiple licenses by service location.

4.A license is nontransferable, expires not more than one year from the effective date of the license, and is valid for the services or locations identified therein.

5.A license issued by the department must include the legal name of the licensee, the address or location where services are provided, the occupancy or service limitations, the unique services authorized, the region and counties where services are provided, and the expiration date of the license.

6.A licensee shall submit to the department an application for a license no later than sixty days prior to the expiration date of a valid license. If the licensee is not able to provide the application within this time frame, a request to waive the sixty days submission timeline must be submitted to the department prior to the license expiration date. If the licensee continues to meet all standards established by North Dakota Century Code chapters 25-01.2 and 25-16 and the rules of the department, the department shall issue a license renewal.

7.The licensee shall place the license in an area accessible to the public where it may be readily seen, except in residences or residential areas of a facility where a license must be available to the public or the department upon request.

8.Licensees shall sign a Medicaid provider agreement and required addendums with the department to provide services to eligible individuals.

9.A licensee who voluntarily terminates a license shall submit a new application to reapply for licensure.

July 1, 2012; April 1, 2018; January 1, 2025.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; July 1, 2001;
• Law Implemented: NDCC 25-01.2-18, 25-16-02, 25-16-03

N.D. Admin. Code 75-04-01-03 Application

1.An applicant shall submit an application for a license to provide services or operate a facility to the department in the form and manner prescribed by the department.

2.An application is not complete until all required information and verifications are submitted to the department. The department may declare an application withdrawn if an applicant fails to submit all required information and verifications within thirty days of the department's notification to the applicant the application is incomplete.

3.Within sixty days from the date of the receipt of the completed application, the department shall notify the applicant of the department's intent to grant or deny a license.

A license issued pursuant to North Dakota Century Code chapter 25-16 and this chapter must be identified as a provisional, unrestricted, or restricted license.

1.A "provisional license" may be issued to an applicant who complies with the rules of the department, North Dakota Century Code chapters 25-01.2 and 25-16, and who has engaged in obtaining accreditation. The licensee shall obtain accreditation by the expiration of the provisional license. A provisional license may be extended for an additional six months only upon the department's determination the licensee has made significant progress toward obtaining accreditation.

2.An "unrestricted license" may be issued to an applicant who complies with the rules of the department and North Dakota Century Code chapters 25-01.2 and 25-16, and who is accredited.

3.A "restricted license" may be issued to a licensee upon a finding of noncompliance with the rules of the department and North Dakota Century Code chapters 25-01.2 and 25-16.

a.The department may not issue a restricted license to a licensee whose practices or facilities pose a clear and present danger to the health and safety of eligible individuals.

b.The department may issue a restricted license for any or all services provided, or facilities operated by the licensee.

c.Upon a finding that the licensee is not in compliance, the department shall notify the licensee, in writing, of its intent to issue a restricted license. The notice must provide the reasons for the action, the specific services that are affected by the restricted license, and describe the corrective actions required of the licensee.

d.The licensee shall, within ten days of the receipt of notice under subdivision c, submit to the department, on a form provided, a plan of correction. The plan of correction must include the elements of noncompliance, a description of the corrective action to be undertaken, and a date certain of compliance. The department may accept, modify, or reject the licensee's plan of correction and shall notify the licensees of its decision within thirty days. If the plan of correction is not submitted or it is rejected, the department shall notify the licensee the license has been revoked. The department may conduct periodic inspection of the facilities and operations of the licensee to evaluate the implementation of the plan of correction.

e.The department shall terminate a restricted license and issue an unrestricted license to the licensee upon successful completion of an accepted plan of correction.

f.A restricted license may be extended for an additional six months only upon the department's determination the licensee has made significant progress toward meeting the standards identified in the plan of correction or the licensee has shown good cause for failure to implement the plan of correction.

History

• History: Effective April 1, 1982; amended effective January 1, 2025. 75-04-01-03.1. Types of licenses.
• History: Effective January 1, 2025.
• Law Implemented: NDCC 25-01.2-18, 25-16-02, 25-16-03

N.D. Admin. Code 75-04-01-04 License denial or revocation

The department may deny a license to an applicant or licensee or revoke an existing license upon a finding of noncompliance with North Dakota Century Code chapter 25-01.2 or 25-16 or the rules of the department.

1.If the department denies a license, the applicant or licensee may not reapply for a license for a period of six months from the date of denial. After the six-month period has elapsed, the applicant or licensee may submit a new application to the department.

2.If the department revokes a license, the licensee may not reapply for a license for a period of one year from the date of the revocation. After the one-year period has elapsed, the licensee may submit a new application to the department.

3.A license denial or revocation may affect all or some of the services and facilities operated by a licensee.

4.Notification is made upon mailing or upon electronic transmission. The notice must identify any law, rule, or standard alleged to have been violated, the factual basis for the allegation, the specific service or facility responsible for the violation, the date after which the denial or revocation is final, and the procedure for appealing the action.

5.If an action to revoke a license is appealed, the licensee may continue to provide services until the final appeal decision is rendered unless continued operations would jeopardize the health and safety of eligible individuals.

6.The licensee, upon final revocation notification, shall destroy the license.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; April 1, 2018; January 1, 2025.
• Law Implemented: NDCC 25-01.2-18, 25-16-03, 25-16-08

N.D. Admin. Code 75-04-01-05 Notification of license

N.D. Admin. Code 75-04-01-06 Disclosure of criminal record

1.Each member of the governing body of the applicant, the chief executive officer, and any employees, volunteers, or agents who receive and disburse funds on behalf of the governing body, or who provide any direct service to eligible individuals, shall disclose to the department if they have been found guilty of, pled guilty to, or pled no contest to a criminal offense or been placed on the Medicaid exclusion list.

2.The applicant or licensee shall conduct federal and state criminal background checks on all individuals employed who work with eligible individuals, including volunteers. If the applicant or licensee is contracting or subcontracting with other entities, there must be an agreement ensuring federal and state criminal background checks have been completed on all individuals employed who work with eligible individuals, including volunteers.

3.The applicant or licensee shall disclose to the department the names, type of offenses, dates of having been found guilty of, pled guilty to, or pled no contest to a criminal offense, and position and duties within the applicant's organization of employees and volunteers with a criminal record.

4.Disclosure may not disqualify the applicant from licensure or an individual from employment or volunteering, unless the applicant or individual has been found guilty of, pled guilty to, or pled no contest to, a crime having direct bearing on the capacity of the applicant, employee, or volunteer to provide a service under the provision of this chapter or the convicted applicant, employee, or volunteer is not sufficiently rehabilitated.

5.The department shall determine the effect of an applicant, employee, or volunteer having been found guilty of, pled guilty to, or pled no contest to, a criminal offense.

April 1, 2018; January 1, 2025.

1.A licensee may not employ in any capacity that involves or permits contact between the employee or volunteer and any individual cared for by the licensee, an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapters 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code sections 12.1-17-01, simple assault, if a class C felony under subdivision a of subsection 2 of that section; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-06.1, sexual exploitation by therapist; 12.1-20-07, sexual assault; 12.1-20-12.3, sexual extortion; 12.1-21-01, arson; 12.1-22-01, robbery; or 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 12.1-31-07, endangering a vulnerable adult; 12.1-31-07.1, exploitation of a vulnerable adult; 14-09-22, abuse of child; 14-09-22.1, neglect of child; subsection 1 of section 26.1-02.1-02.1, fraudulent insurance acts; or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the enumerated North Dakota statutes; or

b.An offense, other than an offense identified in subdivision a, if the department determines that the individual has not been sufficiently rehabilitated.

2.For purposes of subdivision b of subsection 1, an offender's completion of a period of three years after final discharge or release from any term of probation, parole, or other form of community correction, or imprisonment, without subsequent charge or conviction, is prima facie evidence of sufficient rehabilitation.

3.The department has determined that the offenses enumerated in subdivision a of subsection 1 have a direct bearing on the individual's ability to serve the public in a capacity involving the provision of services to eligible individuals.

4.In the case of an offense described in North Dakota Century Code sections 12.1-17-01, simple assault, if a felony; 12.1-17-01.1, assault; 12.1-17-01.2, domestic violence, if a misdemeanor; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-18-03, unlawful imprisonment; 12.1-20-05, correction or solicitation of minors, if a misdemeanor; 12.1-20-07, sexual assault, if a misdemeanor; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment.

5.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community;

b.Acknowledged by the individual;

c.Reported to the licensee as the result of an employee background check; or

d.Discovered by the department or licensee.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; April 1, 2000;
• Law Implemented: NDCC 25-16-03.1 75-04-01-06.1. Criminal conviction - Effect on operation of licensee or employment by licensee.
• History: Effective July 1, 2001; amended effective April 1, 2018; January 1, 2025.
• Law Implemented: NDCC 25-16-03, 25-16-03.1

N.D. Admin. Code 75-04-01-07 Content of license

N.D. Admin. Code 75-04-01-08 Types of licenses

N.D. Admin. Code 75-04-01-09 Restricted license

N.D. Admin. Code 75-04-01-10 Provisional license

N.D. Admin. Code 75-04-01-11 License renewal

N.D. Admin. Code 75-04-01-12 Display of license. 75-04-01-12.1. Provider agreement

N.D. Admin. Code 75-04-01-13 Purchase of service or recognition of unlicensed entities

The department may not recognize or approve the activities of unlicensed entities in securing public funds from the United States, North Dakota, or any of its political subdivisions. The department may not purchase any service from such entities.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; April 1, 2018.
• Law Implemented: NDCC 25-18-03

N.D. Admin. Code 75-04-01-14 Unlicensed entities - Notification

Upon a determination that activities subject to licensure are occurring or have occurred, the department shall notify the parties that the activities are subject to licensure. The notice must include a citation of the applicable provisions of these rules, an application for a license, a date by which the application must be submitted, and, if applicable, a request for the parties to explain that the activities identified in the notification are not subject to licensure. The parties must receive notification within seven days and the entity is required to submit a complete application to the department within thirty days of notice.

History

• History: Effective April 1, 1982; amended effective December 1, 1995; April 1, 2018.
• Law Implemented: NDCC 25-16-02

N.D. Admin. Code 75-04-01-15 Standards of the department

The department herein adopts and makes a part of this chapter for all licensees the current standards used for accreditation, additionally, for intermediate care facilities for individuals with intellectual disabilities, standards for certification under title 42, Code of Federal Regulations, parts 442 and 483 et seq. If a licensee fails to meet an accreditation standard, the department may analyze the licensee's failure using the appropriate current standards. Infant development licensees who have attained accreditation status are not required to maintain accreditation status.

May 1, 2006; July 1, 2012; April 1, 2018; January 1, 2025.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; April 1, 2000;
• Law Implemented: NDCC 25-01.2-02, 25-01.2-18, 25-16-06

N.D. Admin. Code 75-04-01-16 Imposition of the standards

The licensee, at the request of the department, shall submit copies of reports generated by the accreditation process.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; January 1, 2025.
• Law Implemented: NDCC 25-01.2-02, 25-01.2-18, 25-16-06

N.D. Admin. Code 75-04-01-17 Identification of developmental disability services subject to licensure

1.Developmental disability services provided to eligible individuals must be identified and licensed by the following titles:

a.Residential services:

(1)Residential habilitation; or (2)Independent habilitation;

b.Day habilitation;

c.Intermediate care facility for individuals with intellectual disabilities;

d.Employment supports:

(1)Individual employment supports; or (2)Small group employment supports;

e.Prevocational services;

f.Family support services:

(1)Parenting supports;

(2)In-home supports;

(3)Respite;

(4)Extended home health care; or (5)Family care option; or

g.Infant development services.

2.For services that allow a virtual service delivery option, the licensee shall identify that option on the license application.

July 1, 2001; July 1, 2012; April 1, 2018; April 1, 2020; January 1, 2025.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; July 1, 1996;

N.D. Admin. Code 75-04-01-18 Identification of ancillary services subject to registration

Repealed effective June 1, 1986.

N.D. Admin. Code 75-04-01-19 Licensure of intermediate care facilities for the developmentally disabled

Repealed effective June 1, 1986.

N.D. Admin. Code 75-04-01-20 Applicant guarantees and assurances

1.Applicants shall submit, in a manner prescribed by the department, evidence that policies and procedures approved by the governing body are written and implemented in a manner which:

a.Guarantees each eligible individual a person-centered service plan pursuant to the provisions of North Dakota Century Code section 25-01.2-14;

b.Guarantees each eligible individual, authorized representative, or advocate receives written notice of the eligible individual's rights in the manner provided by North Dakota Century Code section 25-01.2-16;

c.Guarantees each eligible individual has a right to appropriate treatment, services, and habilitation and these are provided in the least restrictive appropriate setting pursuant to North Dakota Century Code section 25-01.2-02;

d.Guarantees the eligible individual the right to receive authorized services and supports included in his or her person-centered service plan in a timely manner and the opportunity to fully participate in the benefits of community living, vote, worship, socialize, freely communicate, have visitors, own and use personal property, and unrestricted access to legal counsel, and guarantees that all rules regarding such conduct are posted or made available pursuant to North Dakota Century Code sections 25-01.2-03, 25-01.2-04, and 25-01.2-05;

e.Guarantees any restrictions implemented are based upon an eligible individual's assessed need and are imposed pursuant to the provisions of due process and a personcentered service plan;

f.Guarantees the confidentiality of all eligible individual records;

g.Guarantees the eligible individual receives adequate remuneration for compensable labor, that subminimum wages are paid only pursuant to title 29, Code of Federal Regulations, part 525, et seq., that the eligible individual has the right to seek meaningful employment in integrated settings, that restrictions upon eligible individual access to money are subject to the provisions of a person-centered service plan, that assets managed by the applicant on behalf of the eligible individual inure solely to the benefit of that eligible individual, that each eligible individual is assessed on the individual's ability to manage the individual's finances, and that, in the event the applicant or licensee is a representative payee of an eligible individual, the informed consent of the eligible individual is obtained and documented;

h.Guarantees the eligible individual timely access to preferred and qualified medical and dental services, adequate protection from infectious and communicable diseases, and receives safe and effective administration of medications, as well as prevention of drug use as a substitute for programming;

i.Guarantees the eligible individual freedom from corporal punishment, imposition of isolation, seclusion, chemical, physical, or mechanical restraint, except as prescribed by North Dakota Century Code section 25-01.2-10 or this chapter, and guarantees the eligible individual freedom from psychosurgery, sterilization, medical behavioral research, pharmacological research, and electroconvulsive therapy, except as prescribed by North Dakota Century Code sections 25-01.2-09 and 25-01.2-11;

j.Guarantees, where applicable, a nutritious diet, approved by a qualified dietitian, will be provided in sufficient quantities to meet the eligible individual's dietary needs and preferences;

k.Guarantees the eligible individual the right to choose and refuse services, who provides the services, the right of the eligible individual and the eligible individual's representatives to be informed of the possible consequences of the refusal, alternative services available, and specifically, the extent to which such refusal may impact the eligible individual or others;

l.Assures the eligible individual safe and sanitary living and working arrangements and provides for emergencies or disasters and first-aid training for staff;

m.Assures the existence and operation of both behavior management and human rights committees;

n.Assures the residential provider agency will coordinate with services outside the residential setting in which an eligible individual lives;

o.Assures adaptive equipment, where appropriate for mobility, activities of daily living, or communication is provided consistent with the person-centered service plan;

p.Assures all staff demonstrate basic professional competencies as required by their job descriptions and complies with all required trainings, credentialing, and professional development activities;

q.Assures at least annually, outcomes are evaluated to determine whether an eligible individual is achieving the individual's goals and objectives;

r.Assures all vehicles providing transportation to eligible individuals are routinely inspected and maintained, licensed by the department of transportation, transport no more individuals than the manufacturer's recommended maximum capacity, handicapped accessible, where appropriate, and are driven by individuals who hold a valid state driver's license. Additionally, all vehicles owned by the licensee must be equipped with a first-aid kit and a fire extinguisher;

s.Assures an annual inspection is conducted to ensure environments are sanitary and hazard free;

t.Guarantees incidents of alleged abuse, neglect, and exploitation are thoroughly investigated and reported to the governing body, chief executive officer, authorized representative, or advocate, the protection and advocacy project, and the department with written records of these proceedings being retained for three years; guarantees that all incidents of restraint utilized to control or modify an eligible individual's behavior are recorded and reported to the governing body; guarantees any incident resulting in injury to the eligible individual or staff that requires medical attention or hospitalization must be recorded and reported to the governing body immediately, and as soon thereafter as possible to the authorized representative or advocate; and guarantees incidents resulting in injury to the eligible individual or staff that requires extended hospitalization, endangers life, or results in permanent disability must also be reported to the department immediately; and guarantees corrective action plans are implemented;

u.Guarantees a grievance procedure, reviewed and approved by the department, affords the eligible individual or the authorized representative or advocate the right to have any grievance addressed; and guarantees that grievance records are maintained and must note the nature of the grievance, individuals submitting the grievance, and the resolution of the grievance;

v.Assures policies and procedures are established and maintained for the management and maintenance of property and equipment purchased or depreciated with state funds.

The applicant shall make the records, and items identified in them, available for inspection by the department, or designee, upon request to facilitate a determination of the adequacy with which the applicant is managing property and equipment;

w.Assures policies and procedures regarding admission to their services and termination of services are in conformance with the rules of the department;

x.Assures all documentation, data reporting requirements, rules, regulations, and policies are conducted as required by the department; and

y.Assures all applicable federal and state laws and regulations are being abided by.

2.Licensees shall submit evidence, satisfactory to the department, of accreditation.

3.The department shall determine the degree to which the unaccredited applicant's policies and procedures are in compliance with the standards.

January 1, 2025.

Licensees paying subminimum wages for work performed shall submit to the department a true, correct, and current copy of a certificate from the United States department of labor authorizing the payment of subminimum wages.

1.Licensees shall implement policies and procedures to assure incidents of alleged abuse, neglect, exploitation, and restraints:

a.Are reported to the governing body, chief executive officer or designee of the licensee, authorized representative, advocate, and the protection and advocacy project;

b.Are thoroughly investigated, the findings reported to the governing body, chief executive officer or designee of the licensee, authorized representative, advocate, and the protection and advocacy project and that the report and the action taken are recorded in writing and retained for three years; and

c.Are immediately reported to the department.

2.Incidents resulting in injury to the staff or an eligible individual, requiring medical attention, hospitalization, endangering life, or result in a permanent disability must be recorded and reported to the governing body, chief executive officer or designee of the licensee, and to the department immediately, and as soon thereafter as possible to the authorized representative or advocate.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; April 1, 2018;
• Law Implemented: NDCC 25-01.2-02, 25-01.2-03, 25-01.2-04, 25-01.2-05, 25-01.2-06, 25-01.2-07, 25-01.2-09, 25-01.2-10, 25-01.2-11, 25-01.2-14, 25-01.2-16, 25-01.2-18, 25-16-06 75-04-01-20.1. Wages of eligible individuals.
• History: Effective December 1, 1995; amended effective January 1, 2025.
• Law Implemented: NDCC 25-01.2-06, 25-01.2-18, 25-16-06 75-04-01-20.2. Recording and reporting abuse, neglect, exploitation, and use of restraint.
• History: Effective December 1, 1995; amended effective April 1, 2018; January 1, 2025.
• Law Implemented: NDCC 25-01.2-18, 25-16-06, 50-25.1-02

N.D. Admin. Code 75-04-01-21 Legal status of applicant

The applicant shall submit, in a form or manner prescribed by the department, the following items:

1.A correct and current statement of their articles of incorporation, bylaws, license issued by a local unit of government, partnership agreement, or any other evidence of legal registration of the entity;

2.A correct and current statement of tax exempt or taxable status under the laws of North Dakota or the United States;

3.A current list of partners or members of the governing body and any advisory board with their contact information, principal occupation, term of office, and status as an eligible individual or authorized representative and any changes in this list since last submission for all nonprofit applicants and licensees;

4.A statement disclosing the owner of record of any buildings, facilities, or equipment used by the applicant, the relationship of the owner to the applicant, and the cost, if any, of such use to the applicant and the identity of the entity responsible for the maintenance and upkeep of the property;

5.A statement disclosing any financial benefit which may accrue to the applicant or to be diverted to personal use, including director's fees or expenses, dividends, return on investment, rent or lease proceeds, salaries, pensions or annuities, or any other payments or gratuities; and

6.The amount of any payments made to any member or members of the governing body of the applicant, or board or body of a related organization, exclusive of reimbursement for actual and reasonable personal expenses.

January 1, 2025.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; April 1, 2018;

N.D. Admin. Code 75-04-01-22 Applicant's buildings

Applicants or licensees occupying buildings, whether owned or leased, shall provide the department with a license or registration certificate properly issued pursuant to North Dakota Century Code chapter 15.1-34 or 50-11 or with:

1.The written report of an authorized fire inspector, following an initial or subsequent annual inspection of a building pursuant to section 75-04-01-23, which states:

a.Rated occupancy and approval of the building for occupancy; or

b.Existing hazards and recommendations for correction which, if followed, would result in approval of the building for occupancy;

2.A written statement prepared by the appropriate county or municipal official having jurisdiction that the premises are in compliance with local zoning laws and ordinances; and

3.For existing buildings, floor plans drawn to scale showing the use of each room or area and a site plan showing the source of utilities and waste disposal; or

4.Plans and specifications of buildings and site plans for facilities, proposed for use, but not yet constructed, showing the proposed use of each room or area and the source of utilities and waste disposal.

January 1, 2022; January 1, 2025.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; December 1, 1995; April 1, 2018;

N.D. Admin. Code 75-04-01-23 Safety codes

1.Applicant's or licensee's intermediate care facilities for individuals with intellectual disabilities shall meet the provisions of either the health care occupancies chapters or the residential board and care occupancies chapter of the Life Safety Code of the national fire protection association, 2012 edition.

2.Applicant's or licensee's group home facilities which are not intermediate care facilities for individuals with intellectual disabilities shall meet the applicable life safety standards established by the local governing municipality's ordinances. If the local governing municipality has no ordinances establishing life safety standards, the group home facilities shall meet the one-family and two-family dwellings chapter of the Life Safety Code of the national fire protection association, 2012 edition.

3.Upon written application, and good cause shown to the satisfaction of the department, the department may grant a variance from any specific requirement of the Life Safety Code, upon terms the department may prescribe, except no variance may permit or authorize a danger to the health or safety of the residents of the facility.

4.Applicant's or licensee's facilities housing individuals with multiple physical disabilities or impairments of mobility shall conform to American National Standards Institute Standard No. A117.1 (1980), or, if remodeled or newly constructed after July 1, 1995, with appropriate standards as required by the Americans with Disabilities Act of 1990, Public Law 101-336.

5.Applicant's or licensee's buildings used to provide day services must conform to the appropriate occupancy chapters of the Life Safety Code of the national fire protection association, 2012 edition, and must meet applicable accessibility standards as required by the Americans with Disabilities Act of 1990, Public Law 101-336. The selection of an appropriate Life Safety Code chapter shall be determined considering:

a.Primary activities in the facility;

b.The ability of eligible individuals occupying the facility to take action for self-preservation in an emergency; and

c.Assistance available to eligible individuals occupying the facility for evacuation in an emergency.

6.All licensed day service facilities must be surveyed for Life Safety Code compliance at least annually. The department must be notified and a resurvey may be required if any of the following conditions are present between annual inspections:

a.Occupancy increases of ten percent or more;

b.Primary usage of the facility changes;

c.Hazardous materials or processes are introduced into the facility;

d.Building alterations or modifications take place;

e.Eligible individuals requiring substantial assistance to evacuate in an emergency are enrolled;

f.There are public or eligible individual concerns about safety conditions; or

g.Other changes occur in physical facilities, activities, materials and contents, or numbers and capabilities of eligible individuals enrolled which may affect safety in an emergency.

April 1, 2000; May 1, 2004; July 1, 2012; April 1, 2020; January 1, 2025.

History

• History: Effective April 1, 1982; amended effective June 1, 1986; August 1, 1987; December 1, 1995;

N.D. Admin. Code 75-04-01-24 Entry, access to records, and inspection

1.The applicant or licensee shall affirm the right of the department, or designee, to enter any of the buildings or facilities and access to its records to determine compliance with the rules of the department, to facilitate verification of the information submitted with an application for licensure, and to investigate complaints.

2.The licensee shall authorize the department, or designee, entry to its facilities and access to its records in the event the licensee declares bankruptcy, transfers ownership, ceases operations, evicts residents of its facilities, or the contract with the department is terminated by either of the parties. The department's entry is for the purpose of facilitating the orderly transfer of eligible individuals to an alternative service or the maintenance of appropriate service until an orderly transfer can be made.

History

• History: Effective April 1, 1982; amended effective December 1, 1995; April 1, 2018; January 1, 2025.

N.D. Admin. Code 75-04-01-25 Access to records

N.D. Admin. Code 75-04-01-26 Denial of access to facilities and records

Any applicant or licensee which denies the department, or designee, access to a facility or its records, may have its license revoked or its application denied.

History

• History: Effective April 1, 1982; amended effective December 1, 1995; April 1, 2018; January 1, 2025.

N.D. Admin. Code 75-04-01-27 Group home design

1.Group home facilities shall be small enough and of a modest design, minimizing the length of hallways, the number of exterior corners, and the complexity of construction, to ensure the development of meaningful interpersonal relationships and the provision of proper programming, services, and direct care. New or remodeled homes completed after July 1, 1985, are limited to occupancy by no more than eight individuals with developmental disabilities.

2.Group home facilities shall simulate the most homelike atmosphere possible in order to encourage a personalized environment.

3.Group home facilities shall provide, at a minimum, enough living space, based on the needs of both males and females, with provisions for privacy and appropriate access to quiet areas where an individual can be alone.

4.Group home facilities shall provide arrangement of space for all eligible individuals to participate in various activities, both in groups and singly. Space must be arranged to minimize noise for communication at normal conversational levels.

5.Group home facilities shall be accessible to nonambulatory eligible individuals, visitors, and employees.

History

• History: Effective June 1, 1986; amended effective December 1, 1995; January 1, 2025.

N.D. Admin. Code 75-04-01-28 Group home location

1.Group home facilities must be located at least three hundred feet [91.44 meters] from hazardous areas, including bulk fuel or chemical storage, anhydrous ammonia facilities, or other fire hazards or sources of noxious or odoriferous emissions.

2.Group home facilities may not be located in areas subject to adverse environmental conditions, including mud slides, harmful air pollution, smoke or dust, sewage hazards, rodent or vermin infestations, excessive noise, vibrations, or vehicular traffic.

3.Group home facilities may not be located in an area within the one-hundred-year base flood elevations unless:

a.The facility is covered by flood insurance as required by 42 U.S.C. 4101; or

b.The finished lowest floor elevation is above the one-hundred-year base flood elevation and the facility is free from significant adverse effects of the velocity of moving water or by wave impact during the one-hundred-year flood.

4.Group home facilities must be located in residential neighborhoods reasonably accessible to shops, commercial facilities, and other community facilities; and shall be located not less than six hundred feet [182.88 meters] from existing group homes or day service facilities licensed by the department, schools for individuals with disabilities, long-term care facilities, or other institutional facilities. Upon written application, and good cause shown, the department may grant a variance from the provisions of this subsection upon terms the department may prescribe.

History

• History: Effective June 1, 1986; amended effective December 1, 1995; January 1, 2025.

N.D. Admin. Code 75-04-01-29 Group home bedrooms

1.Bedrooms in group home facilities must accommodate no more than two individuals.

2.Bedrooms in group home facilities must provide at least eighty square feet [7.43 square meters] per individual in a single occupancy bedroom, and at least sixty square feet [5.57 square meters] per individual in a double occupancy bedroom, both exclusive of closet and bathroom space. Bedrooms in newly constructed homes or existing homes converted to group home facilities completed after July 1, 1985, must provide at least one hundred square feet [9.29 square meters] per individual in a single occupancy bedroom, and at least eighty square feet [7.43 square meters] per individual in a double occupancy bedroom, both exclusive of closet and bathroom space.

3.Bedrooms in group home facilities must be located on outside walls and separated from other rooms and spaces by walls extending from floor to ceiling and be at or above grade level.

4.Bedrooms in group home facilities must not have doors with vision panels and must be capable of being locked from the inside of the bedroom, except when justified by a specific assessed need and documented in the person-centered service plan.

5.Each eligible individual must have the opportunity to furnish and decorate their bedrooms as they choose, including a chest of drawers, table, or desk.

6.Bedrooms in group home facilities must provide storage space for clothing in the bedroom which is accessible to all, including nonambulatory individuals.

History

• History: Effective June 1, 1986; amended effective December 1, 1995; April 1, 2018; January 1, 2025.

N.D. Admin. Code 75-04-01-30 Group home kitchens

A kitchen in a group home facility must:

1.Provide sufficient space for participation by both staff and eligible individuals in the preparation of food.

2.Provide appropriate space and equipment, including a two-compartment sink, to adequately serve the food preparation and storage requirements of the facility.

3.Have hot water supplied to sinks in the range of one hundred ten to one hundred forty degrees Fahrenheit [47.22 to 60 degrees Celsius], as controlled by a tempering valve, located to preclude eligible individual access.

History

• History: Effective June 1, 1986; amended effective December 1, 1995; January 1, 2025.

N.D. Admin. Code 75-04-01-31 Group home bathrooms

1.A bathroom in a group home facility must:

a.Be located in places that facilitate maximum self-care by eligible individuals.

b.Provide showers, bathtubs, toilets, and lavatories approximating normal patterns found in homes, unless specifically contraindicated by program needs.

c.Support only up to four individuals each.

d.Have hot water supplied to lavatories and bathing facilities in the range of one hundred ten to one hundred forty degrees Fahrenheit [47.22 to 60 degrees Celsius], as controlled by a tempering valve, located to preclude eligible individual access.

2.At least one bathroom per group home facility must be accessible and usable by nonambulatory eligible individuals, visitors, and employees.

History

• History: Effective June 1, 1986; amended effective December 1, 1995; January 1, 2025.

N.D. Admin. Code 75-04-01-32 Group home laundry

1.Laundry space within group home facilities must provide a washer and dryer, storage for laundry supplies, accommodations for ironing, and counterspace for folding clothing and linen.

2.Hot water supplied to clothes washers must be in the range of one hundred thirty-five to one hundred forty degrees Fahrenheit [57.22 to 60 degrees Celsius].

N.D. Admin. Code 75-04-01-33 Group home use of space

1.Group home facilities shall provide free use of space within the living unit, with due regard for privacy, personal possessions, and programs; with limitations of personal areas of supervisory staff.

2.Group home facilities shall provide for an individual to personalize the individual's portion of the living unit and mount pictures on the walls.

N.D. Admin. Code 75-04-01-34 Group home staff accommodations

Repealed effective December 1, 1995.

N.D. Admin. Code 75-04-01-35 Water supply

1.Group home facilities for individuals with developmental disabilities shall be located in areas where public or private water supplies approved by the department of environmental quality are available. Approved public water supplies must be used where available.

2.When a private water supply is used, water samples must be submitted at the earliest possible date prior to occupancy and every six months thereafter to determine chemical and bacteriological acceptability.

N.D. Admin. Code 75-04-01-36 Sewage disposal

1.Group home facilities for individuals with developmental disabilities shall be located in areas where public or private sewage disposal systems approved by the department of environmental quality are available. Approved public sewage disposal systems must be used, where available.

2.Plans and specifications for proposed private sewage disposal system or alteration to such systems must be approved by the department of environmental quality prior to the construction, maintenance, and operation of such systems.

N.D. Admin. Code 75-04-01-37 Emergency plans

There must be written plans and procedures, that are clearly communicated to and periodically reviewed with staff and eligible individuals for meeting emergencies, including fire, serious illness, severe weather, and missing individuals. Applicable requirements of state law and regulations by the state fire marshal and applicable licensing authorities must be met.

History

• History: Effective June 1, 1986; amended effective December 1, 1995; January 1, 2025.

N.D. Admin. Code 75-04-01-38 Insurance and bond requirements

1.Licensees shall secure and maintain insurance and bonds appropriate for the size of the programs, including:

a.A blanket fidelity bond equal to not less than ten percent of the total operating costs of the program;

b.Property insurance covering all risks at replacement costs and costs of extra expense for loss of use;

c.Liability insurance covering bodily injury, property damage, personal injury, teacher liability, professional liability, and umbrella liability as applicable; and

d.Automobile or vehicle insurance covering property damage, comprehensive, collision, uninsured motorist, bodily injury, and no fault.

2.The department shall determine the adequacy of the insurance coverages maintained by the applicant.

N.D. Admin. Code 75-04-01-39 Variance

Upon written application and good cause shown to the satisfaction of the department, the department may grant a variance, to an institutional intermediate care facility for individuals with intellectual disabilities, or group homes, from subsection 1 of section 75-04-01-27, subsections 1, 2, and 3 of section 75-04-01-29, and subsection 3 of section 75-04-01-31, except no variance may permit or authorize a danger to the health or safety of an individual served by the facility.

History

• History: Effective July 1, 1996; amended effective July 1, 2012; April 1, 2018.

N.D. Admin. Code 75-04-01-40 Documentation and data reporting requirements

1.A licensee shall submit and retain all requisite documentation to demonstrate the right to receive payment for all services and supports and comply with all federal and state laws, regulations, and policies necessary to disclose the nature and extent of services provided and all information to support claims submitted by, or on behalf of, the licensee.

2.The department may require a licensee to submit a statement of policies and procedures, and evidence of the implementation of the statement, in order to facilitate a determination the licensee is in compliance with the rules of the department and with North Dakota Century Code chapters 25-01.2 and 25-16.

3.A licensee shall maintain program records, fiscal records, and supporting documentation, including:

a.Authorization from the department for each eligible individual for whom service is billed;

b.Attendance sheets and other records documenting the days and times the eligible individuals received the billed services from the licensee; and

c.Records of all bills submitted to the department for payment.

4.A licensee shall report the results of designated quality and performance indicators, as requested by the department.

5.A licensee shall retain a copy of the records required for six years from the date of the bill unless an audit in process requires a longer retention.

6.The department maintains the right to withhold a payment for services or suspend or terminate Medicaid enrollment if the licensee has failed to abide by terms of the Medicaid contract, federal and state laws, regulations, and policies regarding documentation or data reporting.

History

• History: Effective April 1, 2018; amended effective January 1, 2025.

N.D. Admin. Code 75-04-01-41 Appeals

An applicant or licensee principal officer may appeal a decision to deny or revoke a license by filing a written appeal with the department. The appeal must be postmarked or received by the department within ten calendar days of the applicant's or licensee's receipt of written notice of the decision to deny or revoke the license. Upon receipt of a timely appeal, an administrative hearing may be conducted in the manner prescribed by chapter 75-01-03.

History

• History: Effective January 1, 2025.

Chapter 75-04-02 Purchase of Service for Developmentally Disabled Persons [Repealed]

N.D. Admin. Code 75-04-02 Purchase of Service for Developmentally Disabled Persons [Repealed]

CHAPTER 75-04-02

PURCHASE OF SERVICE FOR DEVELOPMENTALLY DISABLED PERSONS [Repealed effective April 1, 2018]

Chapter 75-04-03 Developmental Disabilities Loan Program [Repealed]

N.D. Admin. Code 75-04-03 Developmental Disabilities Loan Program [Repealed]

CHAPTER 75-04-03

DEVELOPMENTAL DISABILITIES LOAN PROGRAM [Repealed effective April 1, 2018]

Chapter 75-04-04 Family Subsidy Program [Repealed]

N.D. Admin. Code 75-04-04 Family Subsidy Program [Repealed]

CHAPTER 75-04-04

FAMILY SUBSIDY PROGRAM [Repealed effective April 1, 2018]

Chapter 75-04-05 Payment for Provider Agencies of Services to Individuals with Intellectual Disabilities - Developmental Disabilities

N.D. Admin. Code 75-04-05-01 Definitions

In this chapter, unless the context or subject matter requires otherwise:

1."Accrual basis" means the recording of revenue in the period when it is earned, regardless of when it is collected, and the recording of costs in the period when incurred, regardless of when they are paid.

2."Administrative costs" means those costs that are necessary to operate the business but are not client related.

3."Allowable cost" means the program's actual and reasonable cost after appropriate adjustments for nonallowable costs, income, offsets, and limitations.

4."Assessment score" means the client's score from the standard assessment tool administered by the department or its designee.

5."Bad debts" means those amounts considered to be uncollectible from accounts and notes receivable which were created or acquired in providing covered services that are eligible for payment through Medicaid federal financial participation.

6."Basic services" means all of the services that provider agencies deliver to clients, including nondevelopmental disabilities services.

7."Board" means all food and dietary supply costs.

8."Capital asset" means a facility's buildings, land improvements, fixed equipment, movable equipment, leasehold improvements, and all additions to or replacements of those assets used for client care.

9."Client" means an individual found eligible as determined through the application of chapter 75-04-06 for services coordinated through developmental disabilities program management on whose behalf services are provided or purchased.

10."Client-authorized representative" means a person who has legal authority, either designated or granted, to make decisions on behalf of the client.

11."Client representative" means a client-authorized representative or relative who has maintained significant contacts with the client.

12."Community contribution" means a contribution to a civic organization or sponsorship of community activities. Community contribution does not include a donation to a charity.

13."Cost center" means a division, department, or subdivision thereof, group of services or employees or both, or any unit or type of activity into which functions of a provider agency are divided for purposes of cost assignment and allocations.

14."Day habilitation" means a day program of scheduled activities, formalized training, and staff supports to promote skill development for the acquisition, retention, or improvement in selfhelp, socialization, and adaptive skills. Activities must focus on improving a client's sensory motor, cognitive, communication, and social interaction skills.

15."Department" means the North Dakota department of human services.

16."Depreciation" means an allocation of the cost of an asset over its estimated useful life.

17."Depreciable asset" means a capital asset or other asset for which the cost must be capitalized for statement of costs purposes.

18."Depreciation guidelines" means the American hospital association's guidelines as published by American hospital publishing, inc., in the most recently published "Estimated Useful Lives of Depreciable Hospital Assets".

19."Direct care staff" means employees who are actively providing support to clients receiving a service from a provider agency.

20."Direct care wage" means the wage level that is used as the basis of the payment system.

21."Direct program support costs" means costs that are specific to the service provision of a client, including medical and program supplies.

22."Documentation" means the furnishing of written or electronic records, including original invoices, contracts, timecards, and workpapers prepared to complete reports or for filing with the department.

23."Employment-related expenses" means employee benefits, including federal Insurance Contributions Act, unemployment insurance, medical insurance, workers' compensation, retirement, disability, long-term care insurance, dental, vision, life, accrued paid time off, and unrecovered medical costs furnished at the provider agency's cost.

24."Employment support" means ongoing supports to assist clients in obtaining and maintaining paid employment in an integrated setting. Services are designed for clients who need intensive ongoing support to perform in a work setting. Service includes on-the-job or off-the-job employment-related support for clients needing intervention to assist them in maintaining employment, including job development. Employment support includes individual employment support and small group employment support.

25."Facility-based" means a facility for individuals with developmental disabilities licensed by the department to provide day services. This definition is not to be construed to include areas of the building determined by the department to exist primarily for nontraining.

26."Fair market value" means value at which an asset could be sold in the open market in an arm's-length transaction between unrelated parties.

27."Fixed equipment" means equipment used for client care affixed to a building, not easily movable, and identified as such in the depreciation guidelines.

28."Generally accepted accounting principles" means the accounting principles approved by the American institute of certified public accountants.

29."Group home" means any community residential service facility, licensed by the department pursuant to North Dakota Century Code chapter 25-16, housing more than three individuals with developmental disabilities. "Group home" does not include a community complex with self-contained rental units.

30."Historical cost" means those costs incurred and recorded on the facility's accounting records as a result of an arm's-length transaction between unrelated parties.

31."Hospital leave day" means any day that a client is not in the facility, but is in an acute care setting as an inpatient and is expected to return to the facility. A hospital leave day is only available to clients residing in an intermediate care facility for individuals with intellectual disabilities.

32."In-house day" means a day that a client was actually receiving services in the intermediate care facility for individuals with intellectual disabilities setting and was not on therapeutic leave, in the hospital, or absent.

33."Indirect program support costs" means costs that are neither direct care nor administrative, such as program development, supervision and quality assurance, and are not separately billable.

34."In-home supports" means supports for a client residing with their primary caregiver and their family to prevent or delay unwanted out-of-home placement. Services may assist the client in activities of daily living, and help with maintaining health and safety.

35."Interest" means the cost incurred with the use of borrowed funds.

36."Intermediate care facility for individuals with intellectual disabilities" means a residential health facility operated pursuant to title 42, Code of Federal Regulations, parts 442 and 483, et seq.

37."Land improvements" means any improvement to the land surrounding the facility used for client care and identified as such in the depreciation guidelines.

38."Life-changing event" means a change in a client's life that will affect his or her support needs for six months or more, including a significant medical event, a crisis situation, a change in living arrangement, aging caregiver, significant medical or behavioral health event in the life of a caregiver, significant change in family functioning, or trauma.

39."Medical assistance program" means the program that pays the cost of medical care and other services to eligible clients pursuant to North Dakota Century Code chapter 50-24.1.

40."Movable equipment" means movable care and support services equipment generally used in a facility, including equipment identified as major movable equipment in the depreciation guidelines.

41."Net investment in fixed assets" means the cost, less accumulated depreciation and the balance of notes and mortgages payable.

42."Other asset" means any asset that has a life of more than one year and has a cost of five thousand dollars or greater.

43."Parenting supports" means assisting clients who are or will be parents in parenting skills training that is individualized to assist with focusing on the health, welfare, and developmental needs of their child.

44."Person-centered service plan" means an individual plan that identifies service needs of the eligible client, the services to be provided, and is developed by the client or client-authorized representative, or both, client select team, and developmental disabilities program manager considering all relevant input.

45."Personal assistance retainer" means a payment used in residential habilitation to allow continued reimbursement during a client's temporary absence from the setting. The personal assistance retainer allows for payment while a client is hospitalized or otherwise away from the setting to ensure stability and continuity of staffing.

46."Prevocational services" means formalized training, experiences, and staff supports designed to prepare clients for paid employment in integrated community settings. Services are structured to develop general abilities and skills that support employability in a work setting.

Services are not directed at teaching job-specific skills, but at specific habilitative goals outlined in the client's person-centered service plan.

47."Program support" means the direct and indirect program support costs that support providing services to a client.

48."Program support staff" means employees whose duties are associated with client care but who are not actively providing direct support services to clients receiving a service from a provider agency.

49."Property costs" means the cost category for allowable costs to operate the owned or leased property.

50."Provider agency" means the organization or individual who has executed a Medicaid agreement with the department to provide services to individuals with developmental disabilities.

51."Reasonable cost" means the cost that must be incurred by an efficiently and economically operated facility to provide services in conformity with applicable state and federal laws, regulations, and quality and safety standards.

52."Related organization" means an organization which a provider agency is, to a significant extent, associated with, affiliated with, able to control, or controlled by, and which furnishes services, facilities, or supplies to the provider agency. Control exists when an individual or an organization has the power, directly or indirectly, significantly to influence or direct the action or policies of an organization or institution.

53."Relief staff" means the replacement of direct care staff when the regular direct care staff are on leave and there is a cost component in the direct care hourly rate that covers the cost of relief staff.

54."Residential services" means formalized training and supports provided to clients to assist with and develop self-help, socialization, and adaptive skills that improve the client's ability to independently reside and participate in an integrated community. Residential services include residential habilitation and independent habilitation.

55."Room" means the cost associated with the provision of shelter, housekeeping staff or purchased housekeeping services and the maintenance thereof, including depreciation and interest or lease payments of a vehicle used for transportation of clients.

56."Service" means the provision of living arrangements and programs of daily activities subject to licensure by the department.

57."Staff training" means an organized program to improve staff performance.

58."Statement of costs" means the department-approved form for reporting costs, statistical data, and other relevant information of the provider agency.

59."Statement of costs year" means the fiscal year from July first through June thirtieth.

60."Therapeutic leave day" means any day that a client is not in the intermediate care facility for individuals with intellectual disabilities, nursing facility, swing-bed facility, transitional care unit, subacute unit, another intermediate care facility for individuals with intellectual disabilities, a basic care facility, or an acute care setting, or if not in an institutional setting, is not receiving home- and community-based waiver services and is expected to return to the facility. A therapeutic leave day is only available to clients residing in an intermediate care facility for the intellectually disabled.

61."Top management personnel" means owners; board members; corporate officers; general, regional, and district managers; administrators; and any other person performing functions ordinarily performed by such personnel.

62."Units of service" for billing purposes means: a.(1)In residential habilitation and intermediate care facility for individuals with intellectual disabilities, one client served for one twenty-four-hour day; or (2)In day habilitation, prevocational services, employment supports, parenting supports, in-home supports, and independent habilitation settings, one client served for fifteen minutes.

b.The day of admission and the day of death, but not the day of discharge, are treated as a day served for residential habilitation and intermediate care facility for individuals with intellectual disabilities. 63"Vacancy factor" means a cost component of the residential habilitation and intermediate care facility for individuals with intellectual disabilities rate intended to cover costs when a client is no longer in the setting, with no intent to return.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 2001; May 1, 2006; July 1, 2010; January 1, 2013; April 1, 2018; April 1, 2020; January 1, 2021.

N.D. Admin. Code 75-04-05-02 Eligibility for payment

Provider agencies of service are eligible for payment for the costs of rendered services contingent upon the following:

1.The provider agency, other than a state-owned or state-operated provider agency, is required to hold a current valid license, issued pursuant to the provisions of chapter 75-04-01 authorizing the delivery of the service.

2.The provider agency's clients have on file with the department a current person-centered service plan.

3.The provider agency has a current valid provider agency agreement with the department authorizing the payment.

4.The provider agency adopts and uses a system of accounting prescribed by the department.

5.The provider agency participates in the program audit and utilization review process established by the department.

6.The provider agency is in compliance with all documentation requirements in chapter 75-04-01.

7.Provider agency, as a condition of eligibility for payment for services provided to individuals with developmental disabilities, shall accept, as payment in full, sums paid in accordance with the established rate of payment.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 2001; April 1, 2018.

N.D. Admin. Code 75-04-05-03 Startup costs

N.D. Admin. Code 75-04-05-04 Application for advancement of startup costs

N.D. Admin. Code 75-04-05-05 Allowable startup costs

N.D. Admin. Code 75-04-05-06 Reimbursement requirements - Startup costs

N.D. Admin. Code 75-04-05-07 Grants-in-aid

N.D. Admin. Code 75-04-05-08 Financial reporting requirements

1.Records.

a.The provider agency shall maintain on the premises the required census records and financial information sufficient to provide for a proper state and federal audit or review.

Data must be available for any cost on the statement of costs as of the audit date to fully support the statement item.

b.If several programs are associated with a group and their accounting and reports are centrally prepared, additional fiscal information must be submitted for costs, undocumented at the reporting facility, with the statement of costs or provided prior to the audit or review of the facility. Accounting or financial information regarding related organizations must be readily available to substantiate cost.

c.Each provider agency shall maintain, for a period of not less than six years following the date of submission of the statement of costs to the department, financial and statistical records of the period covered by such statement of costs which are accurate and in sufficient detail to substantiate the cost data reported. If an audit has begun, but has not been finally resolved, the financial and statutory records relating to the audit must be retained until final resolution. Each provider agency shall make such records available upon reasonable demand to representatives of the department or to the secretary of health and human services or representatives thereof.

2.Census records.

a.Adequate census records for all clients, regardless of payer source, must be prepared and maintained on a daily basis by the provider agency to allow for proper audit of the census data. The daily census records must include:

(1)Identification of the client;

(2)Entries for all days that services are offered, including the duration of service, and not just by exception; and (3)Identification of type of day, i.e., hospital, personal assistance retainer, or in-house day.

b.A maximum of fifteen days per occurrence may be allowed for payment by the medical assistance program for hospital leave day in an intermediate care facility for individuals with intellectual disabilities. Hospital leave days in excess of fifteen consecutive days are not billable to the medical assistance program.

c.A maximum of thirty therapeutic leave days per client per calendar year may be allowed for payment by the medical assistance program in an intermediate care facility for individuals with intellectual disabilities. Therapeutic leave days in excess of thirty per calendar year are not billable to the medical assistance program.

d.A maximum of thirty personal assistance retainer days per client per calendar year may be allowed for payment by the medical assistance program in residential habilitation.

Personal assistance retainer days in excess of thirty per calendar year are not billable to the medical assistance program.

3.Accounting and reporting requirements.

a.The accounting system must be double entry.

b.The basis of accounting for reporting purposes must be accrual in accordance with generally accepted accounting principles. Ratesetting procedures will prevail if conflicts occur between ratesetting procedures and generally accepted accounting principles.

c.To properly facilitate auditing, the accounting system must be maintained in a manner that will allow cost accounts to be grouped by cost center and readily traceable to the statement of costs.

d.A provider agency who offers intermediate care facility for individuals with intellectual disability services may have an independent certified public accountant or the department complete an audit of the provider agency during the statement of costs year of each year to ensure the provider agency is in compliance with applicable state and federal regulations.

e.For each provider agency that chose to have an independent certified public accountant complete a department compliance audit report in compliance with state and federal regulations, shall provide to the department no later than October first of each year:

(1)A statement of costs for the statement of cost year on forms prescribed by the department.

(2)A copy of an audited report of the provider agency's financial records from an independent certified public accountant. The audit must be conducted in accordance with generally accepted auditing standards. The information must be reconciled to each provider agency's statement of costs and must include:

(a)A statement of assets and liabilities;

(b)An operations statement;

(c)A statement disclosing contract income and client wages;

(d)A statement of client fees or payments and their distribution, including private pay individuals;

(e)A statement of the assets and liabilities of any related organizations;

(f)A statement of ownership for the provider agency, including the name, address, and proportion of ownership of each owner; [1]If a privately held or closely held corporation or partnership has an ownership interest in the provider agency, the provider agency shall report the name, address, and proportion of ownership of all owners of the corporation or partnership who have an ownership interest of five percent or more, except that any owner whose compensation or portion of compensation is claimed in the provider agency's statement of costs must be identified regardless of the proportion of ownership interest; or [2]If a publicly held corporation has an ownership interest of fifteen percent or more in the provider agency, the provider agency shall report the name, address, and proportion of ownership of all owners of the publicly held corporation who have an ownership interest of fifteen percent or more;

(g)Copies of leases, purchase agreements, appraisals, financing arrangements, and other documents related to the lease or purchase of the provider agency's facilities or a certification the content of the document remains unchanged since the most recent statement given pursuant to this subsection;

(h)Supplemental information reconciling the costs on the financial statements with costs on the statement of costs; and (i)Independent audit report must comply with this chapter and follow: [1]Medicare and Medicaid guidance and provider payment manual; [2]Government auditing standards; [3]North Dakota Century Code chapters 25-01.2 and 25-04; [4]Titles 2, 42, and 45, Code of Federal Regulations, American institution of certified public accountants, financial accounting standards board, and government accounting standards board rules and regulations; and [5]All other applicable state and federal regulations.

(3)The following information upon request by the department:

(a)Copies of leases, purchase agreements, and other documents related to the acquisition of equipment, goods, and services claimed as allowable costs;

(b)Audited financial statements for any home or corporate office organization, excluding individual developmental disabilities provider agencies of a chain organization owned in whole or in part by an individual or entity that has an reconciles costs on the financial statements to costs for the report year; and (c)Audited financial statements for every organization the facility conducts business and is owned in whole or in part by an individual or entity that has an reconciles costs on the financial statements to costs for the report year.

f.For each provider agency that chose not to have an independent certified public accountant complete a department compliance audit report in compliance with state and federal regulations, shall provide to the department no later than October first of each year:

(1)A statement of costs for the statement of cost year on forms prescribed by the department;

(2)Except for state-owned facilities and provider agencies that do not have an independent audit completed annually, a copy of an audited report of the provider agency's financial records from an independent certified public accountant. The audit must be conducted in accordance with generally accepted auditing standards.

The information must be reconciled to each provider agency's statement of costs;

(3)A statement of assets and liabilities;

(4)An operations statement;

(5)A statement disclosing contract income and client wages;

(6)A statement of client fees or payments and their distribution, including private pay individuals;

(7)A statement of the assets and liabilities of any related organizations;

(8)A statement of ownership for the provider agency, including the name, address, and proportion of ownership of each owner;

(a)If a privately held or closely held corporation or partnership has an ownership interest in the provider agency, the provider agency shall report the name, address, and proportion of ownership of all owners of the corporation or partnership who have an ownership interest of five percent or more, except that any owner whose compensation or portion of compensation is claimed in the provider agency's statement of costs must be identified regardless of the proportion of ownership interest; or (b)If a publicly held corporation has an ownership interest of fifteen percent or more in the provider agency, the provider agency shall report the name, address, and proportion of ownership of all owners of the publicly held corporation who have an ownership interest of fifteen percent or more;

(9)Copies of leases, purchase agreements, appraisals, financing arrangements, and other documents related to the lease or purchase of the provider agency's facilities or a certification the content of the document remains unchanged since the most recent statement given pursuant to this subsection;

(10)Supplemental information reconciling the costs on the financial statements with costs on the statement of costs; and (11)The following information upon request by the department:

(a)Copies of leases, purchase agreements, and other documents related to the acquisition of equipment, goods, and services claimed as allowable costs;

(b)Audited financial statements for any home or corporate office organization, excluding individual developmental disabilities provider agencies of a chain organization owned in whole or in part by an individual or entity that has an reconciles costs on the financial statements to costs for the report year; and (c)Audited financial statements for every organization the facility conducts business and is owned in whole or in part by an individual or entity that has an reconciles costs on the financial statements to costs for the report year.

g.A statement of costs must contain the actual costs, adjustments for nonallowable costs, and units of service. The mailing of a statement of costs by registered mail, return receipt requested, ensures documentation of the filing date.

h.Adjustments made by the audit unit, to determine allowable cost, though not meeting the criteria of fraud or abuse on their initial identification, may, if repeated on future cost filings, be considered as possible fraud or abuse.

i.The provider agency shall make all adjustments, allocations, and projections necessary to arrive at allowable costs. The department may reject any statement of costs when the information filed is incomplete or inaccurate. If a statement of costs is rejected, the department may reduce the current payment rate to ninety-five percent of its most recently established rate until the information is completely and accurately filed.

4.Auditing. In order to properly validate the accuracy and reasonableness of cost information reported by the provider agency, the department shall provide for audits as necessary.

a.A provider agency shall submit its statement of costs by October first of the statement of cost year.

b.A provider agency may request, and the department may grant, one thirty-day extension of the due date of the statement of costs for good cause.

(1)If a provider agency fails to file the required statement of costs on or before the due date, the department may reduce the current payment rate to ninety-five percent of its most recently established rate.

(2)Reinstatement of the rate must occur on the first of the month beginning after receipt of the required information, but is not retroactive.

c.The preliminary audit report shall be submitted to the provider agency no later than six months after the department receives the provider agency's statement of costs. The provider agency must be notified by facsimile transmission or electronic mail.

d.The provider agency may submit information, within thirty days after notification, to explain why the provider agency believes the desk adjustment is incorrect. The department shall review the information and make appropriate adjustments.

e.The final audit report shall be submitted to the provider agency within sixty days of the department's receipt of the provider agency's response.

f.Provider agency shall submit requests for information and responses to the department in writing. In computing any period of time prescribed or allowed in this subsection, the day of the act, event, or default from which the designated period of time begins to run may not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. In determining whether the deadlines described in subdivision c, d, or e have been met, the department may not count any day that sufficient information has not been timely provided by a provider agency when the provider agency has shown good cause for its inability to provide the required information within the time periods prescribed in any one of those subdivisions.

5.Penalties for false reports.

a.A false report is when a provider agency knowingly supplies inaccurate or false information in a required statement of costs and supporting documentation that results in inaccurate costs.

b.If a false report is received, the department may:

(1)Place the provider agency's license on restricted status as defined in chapter 75-04-01;

(2)Terminate the department's agreement with the provider agency;

(3)Refer to law enforcement for investigation and prosecution under applicable state or federal law; or (4)Use any combination of the foregoing actions.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; August 1, 1997; July 1, 2001; May 1, 2006; April 1, 2018; April 1, 2020.

N.D. Admin. Code 75-04-05-09 Rate payments

1.The direct care hourly rate and components for each service are issued in a rate matrix established by the department. The components are:

a.The direct care hourly rate for intermediate care facilities for individuals with developmental disabilities must include direct care wage, employment-related costs, relief staff, administrative cost, vacancy factor, and program support, including room and board. Building depreciation and related interest costs must be calculated either by an established percentage, or if a facility is acquired or built after January 1, 2010, the provider agency may choose the actual building depreciation and related interest costs relating to the facility for the life of the building to be added to the rate. For facilities acquired after January 1, 2010, subdivision c of subsection 3 of section 75-04-05-15 must be followed in determining remaining useful life. After the depreciable life is complete the established percentage for building depreciation and related interest costs must be utilized.

b.The direct care hourly rate for residential habilitation must include direct care wage, employment-related expenses, relief staff, program support, administrative costs, and a vacancy factor.

c.The direct care hourly rate for independent habilitation, day habilitation, prevocational services, individual employment supports, and small group employment supports must include direct care wage, employment-related expenses, relief staff, program support, and administrative costs.

2.For residential habilitation, intermediate care facility for individuals with intellectual disabilities, independent habilitation, day habilitation, prevocational services, and employment supports, the maximum authorized assessment score hours for a client must be calculated by multiplying the rate from the rate matrix times the hours identified by the multiplier based on the client's assessment score from the standard assessment tool, except for residential supports provided in an intermediate care facility for individuals with intellectual disabilities, for which the established rate shall be the sum of all services identified for the client. A provider may request and the department may grant an outlier request for clients who have needs exceeding the client's assessment score.

3.Self-directed services or provider agency directed in-home supports do not require prior authorization based on the assessment score. Hours must be estimated by the program manager based on the person-centered services planning process with input from the client and the client-authorized representative, if applicable. These services are subject to the maximum annual hours as prescribed by the department.

4.Base staffing rate:

a.A provider agency may receive a base staffing rate when opening a new licensed group home or intermediate care facility for individuals with intellectual disabilities, including prior to title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] certification and survey requirements.

b.A base staffing rate must be calculated based on minimum required staffing levels identified by the department.

c.A base staffing rate is effective for an intermediate care facility for individuals with intellectual disabilities on the date it is licensed by the department.

d.A provider agency shall receive a base staffing rate until the setting is fully occupied, or for three months, whichever comes first.

5.Room and board charges to clients may not exceed the maximum supplemental security income payment less the allowable personal monthly needs allowance as defined in subdivision b of subsection 2 of section 75-02-02.1-40, plus the average dollar value of supplemental nutrition assistance program to the eligible clientele in the facility.

6.In group homes where rental assistance is available to individual clients or the facility, the rate for room costs chargeable to individual clients are established by the governmental unit providing the subsidy.

7.In group homes where energy assistance program benefits are available to individual clients or the facility, room and board rates are reduced to reflect the average annual dollar value of such benefits.

8.Income from client production must be applied to client wages and the cost of production. The department will not participate in the gains or losses associated with client production conducted pursuant to the applicable provision of title 29, Code of Federal Regulations,

part 525.

9.A provider agency may not solicit or receive a payment from a client or any other individual to supplement the established rate of payment.

10.The rate of payment established must be no greater than the rate charged to a private payor for the same or similar service.

11.Limitations:

a.The department shall accumulate and analyze statistics on costs incurred by provider agencies. Statistics may be used to establish reasonable ceiling limitations for needed services. Limitations may be established on the basis of cost of comparable facilities and services, or audited costs, and may be applied as ceilings on the overall costs, on the costs of providing services, or on the costs of specific areas of operations. The department may implement ceilings at any time, based upon the statistics available, or as required by guidelines, regulations, rules, or statutes.

b.The department shall review, on an ongoing basis, aggregate payments to intermediate care facilities for the intellectually disabled to determine that payments do not exceed an amount that can reasonably be estimated would have been paid for those services under Medicare payment principles. If aggregate payments to facilities exceed estimated payments under Medicare, the department may make adjustments to rates to establish the upper limitations so that aggregate payments do not exceed an amount that can be estimated would have been paid under Medicare payment principles.

c.Provider agencies may not be reimbursed for services, rendered to a client, which exceed the rated occupancy of any facility as established by a fire prevention authority.

d.Provider agencies of residential habilitation and intermediate care facilities for individuals with intellectual disabilities shall offer services to each client three hundred sixty-five days per year, except for leap years in which three hundred sixty-six days must be offered.

Provider agencies may not be reimbursed for those days in which services are not offered to a client.

e.Provider agencies of day services shall offer services to each client eight hours per day two hundred sixty days per year, except leap years in which two hundred sixty-one days must be offered, less any state-recognized holidays, unless a holiday exception is approved by the department. Provider agencies may not be reimbursed for hours of service in which the client is not in attendance.

f.Provider agencies of day services to clients of intermediate care facilities for individuals with intellectual disabilities shall bill the intermediate care facility for individuals with intellectual disabilities the day habilitation rate established for the client.

12.Adjustments and review procedures are as follows:

a.Adjustments may be made to correct errors. Statement of costs must be reviewed taking into consideration prior years' adjustments. The provider agency must be notified by facsimile transmission or electronic mail of any adjustments based on the desk review. A provider agency may submit information, within thirty days after notification, to explain why the desk adjustment is incorrect. The department shall review the information and make appropriate adjustments.

b.A provider agency may submit a request for reconsideration of the final statement of costs review in writing to the developmental disabilities division within fifteen days of the date of the final statement of costs review notification. A request for reconsideration must provide new evidence indicating why a new determination should be made or explain how the department has incorrectly interpreted the law. The department shall respond to a properly submitted request for reconsideration within ninety days of receipt of the request. The department may revise the final statement of costs review on its own motion.

c.A provider agency may appeal the decision within thirty days after the department mails the written notice of the decision on a request for reconsideration of the final review of the statement of costs.

1.An assessment must be completed within ninety days or at the time there are sufficient qualified responders, for a client who has been determined eligible to receive developmental disabilities services and is receiving a service that requires an assessment score to determine payment. The assessment effective date is the first date the client began receiving a service.

2.A reassessment must be completed every thirty-six months for a client aged sixteen or older or every twelve months for a client under age sixteen, or more frequently if a life-changing event occurs.

a.A reassessment based on a life-changing event may be requested by a client, a client-authorized representative, or an employee of a provider agency. Requests for reassessment must be made in writing to the appropriate department regional office.

b.The assessment effective date is reset upon completion of a reassessment as a result of a life-changing event.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 1995; April 1, 1996; August 1, 1997; July 1, 2001; May 1, 2006; July 1, 2012; January 1, 2013; April 1, 2018; April 1, 2020; January 1, 2024; January 1, 2026. 75-04-05-09.1. Assessments.
• History: Effective April 1, 2018.

N.D. Admin. Code 75-04-05-10 Cost centers

The cost centers where direct and indirect costs are allocated on a provider agency's statement of costs may include:

1.Administration.

2.Indirect program support costs.

3.Provider agency shall disclose to the department direct care costs for staff that provide direct care and nursing services separately for the annual statement of costs. Costs shall only include:

a.Direct care staff salaries and fringe benefits; and

b.Contracted costs for services purchased to actively provide support to clients receiving a service from a provider agency.

4.Direct program support costs.

5.Room.

6.Board.

7.Other costs and production.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 1995; April 1, 1996; July 1, 2001; July 1, 2010; July 1, 2012; April 1, 2018.

N.D. Admin. Code 75-04-05-11 Statement of costs allocations

The statement of costs provides for the identification of the allowable expenditures and basic services subject to payment by the department. When costs are incurred solely for a basic service, the costs must be assigned directly to that basic service. When costs are incurred jointly for two or more basic services, and not able to be directly assigned, the costs must be allocated as follows:

1.Personnel. The total cost of all staff identified in payroll records must be listed by position title and distributed to basic services. Time studies may be performed for one week at least quarterly for allocation. When no time studies exist, the applicable units must be used for allocation. When there is no definition of a unit of service, the department must use the unit of service for billing purposes.

2.Fringe benefits. The cost of fringe benefits must be allocated to basic services based on the ratio of the basic service personnel costs to total personnel costs. Personnel costs on which no fringe benefits are paid are excluded.

3.Equipment. The total cost of all equipment, whether rented, leased, purchased, or depreciated, must be distributed to basic services based on usage or applicable units.

4.Real property cost. The total of all property costs, whether rented, leased, purchased, or depreciated, must be allocated based on direct square footage. When multiple usage of direct use area occurs, the allocation is first done by square footage and then by applicable units.

5.Travel. The total of all unassigned travel costs must be included in administrative costs.

6.Supplies. The total of all unassigned supply costs must be included with administrative costs.

7.Food services. The total of all food costs must be allocated based on meals served. When the number of meals served has not been identified, applicable units must be used.

8.Insurance and bonds. The total of all such costs, except insurance costs representing real property costs or vehicle insurance costs applicable to vehicles used for one or more basic services, must be included as administrative costs.

9.Indirect program support costs. Total indirect program support costs, not including personnel and fringe benefits, must be allocated to basic service categories, exclusive of production, room, and board, based on actual units of service. When determining the day habilitative ratio of indirect program support costs, total day habilitation units are divided by thirty-two and rounded to the nearest whole number.

10.Administrative costs. Total administrative costs must be allocated to all service categories, exclusive of residential habilitation room, board, and production, based upon the ratio of the basic service cost to total cost excluding administrative and production costs. The percentage calculated for habilitation services must be based on total costs, including room and board, with the allocation made only to direct care costs, direct program support costs, and indirect program support costs.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 2001; May 1, 2006; April 1, 2018; April 1, 2020.

N.D. Admin. Code 75-04-05-12 Adjustment to cost and cost limitation

1.Provider agencies under contract with the department to provide services to individuals with developmental disabilities who provide intermediate care facilities for individuals with intellectual disabilities shall submit a statement of costs to the department by October first of each year.

2.Provider agencies shall disclose all costs and all revenues.

3.Provider agencies shall identify income to offset costs when applicable in order that state financial participation not supplant or duplicate other funding sources. Income must be offset up to the total of appropriate allowable costs. If actual costs are not identifiable, income must be offset up to the total of costs described in this section. If costs relating to income are reported in more than one cost category, the income must be offset in the ratio of the costs in each cost category. These sources, and the cost to be offset, must include the following:

a.Fees, the cost of the service or time for which the fee was imposed excluding those fees based on cost as established by the department.

b.Insurance recoveries income, costs reported in the current year to the extent of costs allowed in the prior or current year for that loss.

c.Rental income, cost of space in facilities or for equipment included in the rate of payment.

d.Telephone and internet income from clients, staff, or guests, cost of the service.

e.Rental assistance or subsidy when not reported as third-party income, total costs.

f.Interest or investment income, interest expense.

g.Medical payments, cost of medical services included in the rate of payment as appropriate.

h.Respite care income when received for a reserved bed, room, board, and staff costs.

i.Other income to the provider agency from local, state, or federal units of government may be determined by the department to be an offset to cost.

4.Payments to a provider agency by its vendor are considered as discounts, refunds, or rebates in determining allowable costs under the program even though these payments may be treated as "contributions" or "unrestricted grants" by the provider agency and the vendor.

However, such payments may represent a true donation or grant, and as such may not be offset against costs. Examples include when:

a.Payments are made by a vendor in response to building or other fundraising campaigns in which communitywide contributions are solicited.

b.Payments are in addition to discounts, refunds, or rebates, which have been customarily allowed under arrangements between the provider agency and the vendor.

c.The volume or value of purchases is so nominal that no relationship to the contribution can be inferred.

d.The contributor is not engaged in business with the provider agency or a facility related to the provider agency.

5.If an owner or other official of a provider agency directly receives from a vendor monetary payments or goods or services for the owner's or official's own personal use as a result of the provider agency's purchases from the vendor, the value of such payments, goods, or services constitutes a type of refund or rebate and must be applied as a reduction of the provider agency's costs for goods or services purchased from the vendor.

6.If the purchasing function for a provider agency is performed by a central unit or organization, all discounts, allowances, refunds, and rebates must be credited to the costs of the provider agency in accordance with the instructions above. These may not be treated as income of the central purchasing function or used to reduce the administrative costs of that function. Such administrative costs are, however, properly allocable to the facilities serviced by the central purchasing function.

7.Purchase discounts, allowances, refunds, and rebates are reductions of the cost of whatever was purchased. They must be used to reduce the specific costs to which they apply. If possible, they must accrue to the period to which they apply. If not, they will reduce costs in the period in which they are received. The reduction to cost for supplies or services must be used to reduce the total cost of the goods or services for all clients without regard to whether the goods or supplies are designated for all clients or a specific group.

a."Purchase discounts" include cash discounts, trade, and quantity discounts. "Cash discount" is for prepaying or paying within a certain time of receipt of invoice. "Trade discount" is a reduction of cost granted certain customers. "Quantity discounts" are reductions of price because of the size of the order.

b.Allowances are reductions granted or accepted by the creditor for damage, delay, shortage, imperfection, or other cause, excluding discounts and refunds.

c.Refunds are amounts paid back by the vendor generally in recognition of damaged shipments, overpayments, or return purchases.

d.Rebates represent refunds of a part of the cost of goods or services. Rebates differ from quantity discounts in that they are based on the dollar value of purchases, not the quantity of purchases.

e."Other cost-related income" includes amounts generated through the sale of a previously expensed item, e.g., supplies or equipment.

History

• History: Effective July 1, 1984; amended effective June 1, 1995; July 1, 2001; May 1, 2006; April 1, 2018.

N.D. Admin. Code 75-04-05-13 Nonallowable costs

Nonallowable costs include:

1.Advertising designed to encourage potential clients to select a particular provider agency.

2.Amortization of noncompetitive agreements.

3.Bad debt expense.

4.Barber and beautician services.

5.Basic research.

6.Fees paid to a member of a board of directors for meetings attended to the extent that the fees exceed the compensation paid per day to a member of the legislative council pursuant to North Dakota Century Code section 54-35-10.

7.Concession and vending machine costs.

8.Contributions or charitable donations.

9.Corporate costs, such as organization costs, reorganization costs, and other costs not related to client services.

10.Costs for which payment is available from another primary third-party payor or for which the department determines that payment may lawfully be demanded from any source.

11.Costs of functions performed by clients in a residential setting which are typical of functions of any individual living in the individual's own home, such as keeping the home sanitary, performing ordinary chores, lawnmowing, laundry, cooking, and dishwashing. These activities shall be an integral element of an individual program plan consistent with the client's level of function.

12.Costs of donations or memberships in sports, health, fraternal, or social clubs or organizations, such as Elks, YMCA, or country clubs.

13.Costs, including legal fees, accounting and administrative costs, travel costs, and the costs of feasibility studies, attributed to the negotiation or settlement of the sale or purchase of any capital assets, whether by sale or merger, when the cost of the asset has been previously reported and included in the rate paid to the vendor.

14.Costs incurred by the provider agency's subcontractors, or by the lessor of property which the provider agency leases, and which becomes an element in the subcontractor's or lessor's charge to the provider agency, if such costs would not have been allowable under this section had they been incurred by a provider agency directly furnishing the subcontracted services, or owning the leased property.

15.Depreciation on assets acquired with federal or state grants.

16.Education costs incurred for the provision of services to clients who are, could be, or could have been, included in a student census. Education costs do not include costs incurred for a client, defined as a "student with disabilities" by North Dakota Century Code chapter 15.1-32, who is enrolled in a school district pursuant to an interdepartmental plan of transition.

17.Employee benefits not offered to all full-time employees.

18.Entertainment costs, including activities.

19.Equipment costs for any equipment, whether owned or leased, not exclusively used by the facility except to the extent that the facility demonstrates to the satisfaction of the department that any particular use of the equipment was related to client services.

20.Expense or liabilities established through or under threat of litigation against the state of North Dakota or any of its agencies; provided, that reasonable insurance expense may not be limited by this subsection.

21.Community contributions, employer sponsorship of sports teams, and dues to civic and business organizations, such as Lions, chamber of commerce, Kiwanis, in excess of one thousand five hundred dollars per statement of costs period.

22.Fundraising costs, including salaries, advertising, promotional, or publicity costs incurred for such a purpose.

23.Funeral and cemetery costs.

24.Goodwill.

25.Home office costs when unallowable if incurred by facilities in a chain organization.

26.Travel not directly related to industry conferences, state or federally sponsored activities, or client services.

27.Interest cost related to money borrowed for funding depreciation.

28.Items or services, such as telephone, television, and radio, located in a client's room and furnished primarily for the convenience of the clients.

29.Top management personnel insurance.

30.Laboratory salaries and supplies.

31.The cost of education unless:

a.The education was provided by an accredited academic or technical educational facility;

b.The costs were for materials, books, or tuition;

c.The employee was enrolled in a course of study intended to prepare the employee for a position at the facility and is in a position; and

d.The facility claims the cost of the education at a rate that does not exceed one dollar and twenty-five cents per hour of work performed by the employee in the position for which the employee received education at the provider agency's cost provided the amount claimed per employee may not exceed two thousand five hundred dollars per year or an aggregate of ten thousand dollars per employee and in any event may not exceed the cost to the facility of the employee's education.

32.Meals and food service in day service programs.

33.Membership fees or dues for professional organizations exceeding six thousand dollars in any statement of costs year.

34.Materials and monetary reinforces for clients.

35.Miscellaneous costs not related to client services. 36.a.Except as provided in subdivisions b, c, and d, payments to a member of the governing board of the provider agency, a member of the governing board of a related organization, or a family member of a member of those governing boards, including a spouse and an individual in the following relationship to a member or to a spouse of a member: parent, stepparent, child, stepchild, grandparent, step-grandparent, grandchild, step-grandchild, brother, sister, half-brother, half-sister, stepbrother, and stepsister.

b.Payments made to a member of the governing board of the provider agency to reimburse that member for allowable costs incurred by that member in the conduct of the provider agency's business may be allowed.

c.Payments for a service or product unavailable from another source at a lower cost may be allowed.

d.Wages allowed are limited to those wages paid to a family member of a member of the board and the amount must be consistent with wages paid to anyone else who would hold the same or similar position and the position is such that if the family member were not to hold the position agency, the provider would hire someone else to do the job.

37.Penalties, fines, and related interest and bank charges other than regular service charges.

38.Personal purchases.

39.Pharmacy salaries.

40.Physician and dentist salaries. 41.a.For facility-based day habilitation programs, production costs, such as client salaries and benefits, supplies, and materials representing unfinished or finished goods or products that are assembled, altered, or modified.

b.For non-facility-based day habilitation programs, production costs, such as client salaries and benefits, supplies, and materials representing unfinished or finished goods or products that are assembled, altered, or modified, square footage, and equipment.

c.For employment supports, in addition to subdivisions a and b, costs of employing clients, including preproduction and postproduction costs for supplies, materials, property, and equipment, and property costs other than an office, office supplies, and equipment for the supervisor, job coach, and support staff.

d.Total production-related legal fees in excess of five thousand dollars in any fiscal period.

42.Religious salaries, space, and supplies.

43.Room and board costs in residential services other than an intermediate care facility for individuals with intellectual disabilities.

44.Salary costs of employees determined by the department to be inadequately trained to assume assigned responsibilities, but when an election has been made to not participate in appropriate training approved by the department.

45.Salary costs of employees who fail to meet the functional competency standards established or approved by the department.

46.Travel of clients visiting relatives or acquaintances in or out of state.

47.Mileage reimbursement in excess of the standard mileage rate established by the state of North Dakota and meal reimbursement in excess of rates established by the general services administration for the destination city.

48.Undocumented expenditures.

49.Value of donated goods or services.

50.Vehicle and aircraft costs not directly related to provider agency business or client services.

51.X-ray salaries and supplies.

52.Alcohol and tobacco products.

53.Political contributions.

54.Salaries or costs of a lobbyist.

June 1, 1995; July 1, 1995; April 1, 1996; August 1, 1997; July 1, 2001; May 1, 2006; July 1, 2012;

April 1, 2018. 75-04-05-13.1. Allowable bad debt expense.

1.Bad debts for charges incurred in or after July 1, 2005, and fees paid for the collections of those bad debts are allowable only as provided in this section.

2.A bad debt expense must result from nonpayment of the payment rate for an individual who is no longer receiving services from the provider claiming the bad debt expense.

3.The provider must provide documentation to the department which verifies that the provider made reasonable collection efforts, the debt could not be collected, and there is no likelihood of future recovery. Reasonable collection efforts include maintaining written documentation that, in making those collection efforts, the provider received the assistance of an attorney licensed to practice law.

4.In no circumstance may the allowable expense for the collection fee exceed the amount of the bad debt.

5.A bad debt expense shall not be allowed when it resulted from the provider's failure to comply with any applicable laws or regulations.

6.Before any bad debt expense may be allowed, the provider must have a written policy that limits the potential for bad debts and the provider must provide written documentation that shows it has taken action to limit bad debts for individuals who refuse to or cannot make payments.

7.Allowable bad debt expense may not exceed debt associated with one hundred twenty days of services provided for any one individual.

8.Payments on outstanding accounts receivable shall be applied to the oldest invoices for covered services first, and then all subsequent charges until the balance is paid in full.

9.Allowable finance charges on bad debts described in this section are allowable only if the finance charges have been offset as interest income.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; January 1, 1989; August 1, 1992;
• History: Effective May 1, 2006.
• Law Implemented: NDCC 25-16-10, 50-24.1-01

N.D. Admin. Code 75-04-05-14 Profit-motivated entities - Return on investment

Repealed effective April 1, 2018.

N.D. Admin. Code 75-04-05-15 Depreciation

1.The principles of payment for provider agency costs require that payment for services include depreciation on depreciable assets that are used to provide allowable services to clients. This includes assets that may have been fully or partially depreciated on the books of the provider agency, but are in use at the time the provider agency enters the program. The useful lives of these assets are considered not to have ended and depreciation calculated on the revised extended useful life is allowable. Likewise, a depreciation allowance is permitted on assets that are used in a normal standby or emergency capacity. Depreciation is recognized as an allocation of the cost of an asset over its estimated useful life. If any depreciated personal property asset is sold or disposed of for an amount different than its undepreciated value, the difference represents an incorrect allocation of the cost of the asset to the facility and must be included as a gain or loss on the statement of costs. The facility shall use the sale price in computing the gain or loss on the disposition of assets.

2.Special assessments in excess of one thousand dollars paid in a lump sum must be capitalized and depreciated. Special assessments not paid in a lump sum may be expensed as billed by the taxing authority.

3.Depreciation methods:

a.A provider agency shall use the straight-line method of depreciation. All accelerated methods of depreciation, including depreciation options made available for income tax purposes, such as those offered under the asset depreciation range system, may not be used. A provider agency shall apply the method and procedure for computing depreciation on a basis consistent from year to year and shall maintain detailed schedules of individual assets. If the books of account reflect depreciation different than that submitted on the statement of costs, a provider agency shall prepare a reconciliation.

b.For all assets obtained prior to August 1, 1997, a provider agency shall compute depreciation using a useful life of ten years for all items except vehicles, which must be depreciated over four years, and buildings, which must be depreciated over twenty-five years or more. For assets other than vehicles and buildings obtained after August 1, 1997, a provider agency may use the depreciation guidelines, to determine the useful life or the composite useful life of ten years. For all assets, other than vehicles and buildings, obtained prior to April 1, 2018, a provider agency's prior depreciation schedule must be used. A provider agency shall use a useful life of ten years for all equipment not identified in the depreciation guidelines.

c.A provider agency acquiring assets as an ongoing operation shall use as a basis for determining depreciation:

(1)The estimated remaining life, as determined by a qualified appraiser, for land improvements, buildings, and fixed equipment; and (2)(a)A composite remaining useful life for movable equipment, determined from the seller's records; or (b)The remaining useful life for movable equipment, determined from the seller's records.

4.Acquisitions are treated as follows:

a.If a depreciable asset has, at the time of its acquisition, a historical cost of at least five thousand dollars, its cost must be capitalized and depreciated in accordance with subdivision b of subsection 3. A provider agency shall capitalize as part of the cost of the asset, costs incurred during the construction of an asset, such as architectural, consulting and legal fees, and interest.

b.A provider agency shall capitalize major repair and maintenance costs on equipment or buildings if they exceed five thousand dollars per project and will be depreciated in accordance with subdivision b of subsection 3.

5.A provider agency shall maintain records that provide accountability for the capital assets and other assets and also provide adequate means by which depreciation can be computed and established as an allowable client-related cost.

6.The basis for depreciation is the lower of the purchase price or fair market value at the time of purchase.

If the provider agency's cash payment for a purchase is reduced by a trade-in, fair market value will consist of the sum of the book value of the trade-in plus the cash paid.

7.For depreciation and payment purposes, a provider agency may record and depreciate donated depreciable assets based on the asset's fair market value. If the provider agency's records do not contain the fair market value of the donated asset, as of the date of the donation, an appraisal must be made. An appraisal made by a recognized appraisal expert will be accepted for depreciation.

8.Provision for increased costs due to the sale of a facility may not be made.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; August 1, 1997; July 1, 2001; May 1, 2004; May 1, 2006; January 1, 2013; April 1, 2018.

N.D. Admin. Code 75-04-05-16 Interest expense

1.In general:

a.To be allowable under the program, interest must be:

(1)Supported by evidence of an agreement that funds were borrowed and that payment of interest and repayment of the funds are required;

(2)Identifiable in the provider agency's accounting records;

(3)Related to the reporting period in which the costs are incurred;

(4)Necessary and proper for the operation, maintenance, or acquisition of the provider agency's facilities used therein;

(5)Unrelated to funds borrowed to purchase assets in excess of cost or fair market value; and (6)When borrowed for the purpose of making capital expenditures for assets that were owned by any other facility or service provider agency on or after July 18, 1984, limited to that amount of interest cost which such facility or service provider agency may have reported, had the asset undergone neither refinancing nor a change of ownership.

b.In cases when it was necessary to issue bonds for financing, any bond premium or discount must be accounted for and written off over the life of the bond issue.

2.Interest paid by the provider agency to partners, stockholders, or related organizations of the provider agency is not allowable as a cost.

3.A provider agency may combine or "pool" various funds in order to maximize the return on investment. If funds are pooled, proper records must be maintained to preserve the identity of each fund in order to permit the earned income to be related to its source. Income earned on gifts and grants does not reduce allowable interest expense.

4.Funded depreciation requirements are as follows:

a.Funding of depreciation is the practice of setting aside cash or other liquid assets to be used for replacement of the assets depreciated or for other capital purposes. This provision is recommended as a means of conserving funds for the replacement of depreciable assets. It is expected that the funds will be invested to earn revenues. The revenues generated by this investment will not be considered as a reduction of allowable interest expense provided such revenues remain in the fund.

b.The deposits are, in effect, made from the cash generated by the noncash expense depreciation and do not include interest income. Deposits to the funded depreciation account are generally in an amount equal to the depreciation expense charged to costs each year. In order to qualify for all provisions of funding depreciation, the minimum deposits to the account must be fifty percent of the depreciation expensed that year.

Deposits in excess of accumulated depreciation are allowable; however, the interest income generated by the "extra" deposits will be considered as a reduction of allowable interest expense.

c.Monthly or annual deposits representing depreciation must be in the funded depreciation account for six months or more to be considered as valid funding transactions. Deposits of less than six months are not eligible for the benefits of a funded depreciation account.

However, if deposits invested before the six-month period remain in the account after the six-month period, the investment income for the entire period will not reduce the allowable interest expensed in that period. Total funded depreciation in excess of accumulated depreciation on client-related assets will be considered as ordinary investments and the income therefrom will be used to offset interest expense.

d.Withdrawals for the acquisition of capital assets, the payment of mortgage principal on these assets and for other capital expenditures are on a first-in, first-out basis.

e.The provider agency may not use the funds in the funded depreciation account for purposes other than the improvement, replacement, or expansion of facilities or equipment replacement or acquisition related to client services.

f.Existing funded depreciation accounts must be used for all capital outlays in excess of five thousand dollars except with regard to those assets purchased exclusively with donated funds or from the operating fund, provided no amount was borrowed to complete the purchase. Should funds be borrowed, or other provisions not be met, the entire interest for the funded depreciation income account will be offset up to the entire interest expense paid by the facility for the year in question.

January 1, 2013; April 1, 2018.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 2001;

N.D. Admin. Code 75-04-05-17 Related organization

1.Costs applicable to services, facilities, and supplies furnished to a provider agency by a related organization shall not exceed the lower of the cost to the related organization or the reasonable costs of services, facilities, or supplies purchased elsewhere. Provider agencies shall identify such related organizations and costs in the statement of costs. An appropriate statement of cost and allocations must be submitted with the statement of costs. For statement of costs purposes, management fees are considered administrative costs.

2.A chain organization consists of a group of two or more service provider agencies which are owned, leased, or through any other device, controlled by one business entity.

3.Home offices of chain organizations vary greatly in size, number of locations, staff, mode of operations, and services furnished to their member facilities. Although the home office of a chain is normally not a provider agency in itself, it may furnish to the individual provider agency, central administration or other services such as centralized accounting, purchasing, personnel, or management services. Only the home office's actual cost of providing such services is includable in the provider agency's allowable costs under the program. Any services provided by the home office which are included in cost as payments to an outside provider agency will be considered a duplication of costs and not be allowed.

4.If the home office makes a loan to or borrows money from one of the components of a chain organization, the interest paid is not an allowable cost and interest income is not used to offset interest expense.

5.Payments, to related organizations, by the provider agency are limited to the actual and reasonable cost of the service received or the product purchased.

6.Provider agency shall document financial transactions between the provider agency and the related organization. The terms of such transactions must be similar as those obtained by a prudent buyer negotiating at arm's length with a willing and knowledgeable seller.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; April 1, 2018.

N.D. Admin. Code 75-04-05-18 Rental expense paid to a related organization

1.A provider agency may lease a facility from a related organization within the meaning of the principles of payment. In such a case, the rent paid to the lessor by the provider agency is not allowable as a cost. Provider agency's rent payments shall not exceed the actual cost of mortgage payments of principal and interest. The cost of ownership of the facility would, however, be an allowable cost to the provider agency. Generally, these would be costs such as depreciation, interest on the mortgage, real estate taxes, and other property expenses attributable to the leased facility. The effect is to treat the facility as though it were owned by the provider agency. Therefore, the owner's equity in the leased assets is includable in the equity capital of the provider agency.

2.In order to be considered an allowable cost, the home office cost must be directly related to those services performed for individual provider agencies and relate to client services.

Documentation as to the time spent, the services provided, the hourly valuation of services, and the allocation method used must be available to substantiate the reasonableness of the cost.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; April1 , 2018.

N.D. Admin. Code 75-04-05-19 Taxes

1.General. Taxes assessed against the provider agency, in accordance with the levying enactments of the several states and lower levels of government and for which the provider is liable for payment, are allowable costs. Tax costs may not include fines, penalties, or those taxes listed in subsection 2.

2.Taxes not allowable as costs. The following taxes are not allowable as costs:

a.Federal income and excess profit taxes, including any interest or penalties paid thereon.

b.State or local income and excess profit taxes.

c.Taxes in connection with financing, refinancing, or refunding operation, such as taxes in the issuance of bonds, property transfers, issuance or transfers of stocks, etc. Generally, these costs are either amortized over the life of the securities or depreciated over the life of the asset. They are not, however, recognized as tax expense.

d.Taxes from which exemptions are available to the provider agency.

e.Taxes on property which is not used in the provision of covered services.

f.Taxes, including sales taxes levied against residents and collected and remitted by the provider agency.

g.Self-employment (FICA) taxes applicable to persons, including individual proprietors, partners, or members of a joint venture.

History

• History: Effective July 1, 1984; amended effective July 1, 2001; May 1, 2006; April 1, 2018.

N.D. Admin. Code 75-04-05-20 Personal incidental funds

1.Each client is allowed to retain a specific monthly amount of income for personal needs. This monthly allowance is not to be applied toward the client's cost of care.

2.Provider agencies managing client funds must maintain a current client account record in a form and manner prescribed by the department. Copies of the client account record must be provided to the client without charge.

3.The department may conduct audits of client account records in conjunction with regular field audits.

4.Adult client funds may be disbursed with the client's permission in the absence of a client-authorized representative or declaration of incompetency.

5.The department uses the amount of a client's income to determine:

a.Eligibility for medical assistance benefits.

b.Amount of income and other resources which must be applied toward the client's care.

c.Amount of income and other resources which can be retained by the client.

6.Personal incidental items, supplies, or services furnished as needed or at the request of the client may be paid for by the client from the client's personal incidental allowance or by outside sources, such as relatives and friends.

7.Charges by the program for items or services furnished clients will be allowed as a charge against the client or outside sources, only if separate charges are also recorded by the facility for all clients receiving these items or services directly from the program. All such charges must be for direct, identifiable services or supplies furnished individual clients. A periodic "flat" charge for routine items, such as beverages, incidentals, etc., will not be allowed. Charges may be made only after services are performed or items are delivered, and charges are not to exceed charges to all classes of clients for similar services.

8.A client's private property must be clearly marked by name. The facility must keep a record of private property. If items are lost, the circumstances of disappearance must be documented in the facility's records.

9.If client funds are deposited in a bank, they must be deposited in an account separate and apart from any other bank accounts of the facility. Any interest earned on this account will be credited to the applicable client's accounts.

10.A client's funds on deposit with the facility must be available to a client on the client's request.

No funds may be withdrawn from accounts of a client capable of managing the client's own funds without the client's permission.

11.Should a disagreement exist as to whether a client is capable of managing the client's own funds, a joint determination will be made by the person-centered service plan team and client-authorized representative in settling this dispute. The decision must be documented in the provider agency's records and the client's person-centered service plan.

12.On discharge, the facility must provide the client with a final accounting of personal funds and remit any balance on deposit with the facility.

13.Upon death, the balance of a client's personal incidental funds along with the name and case number, must be maintained in an interest-bearing account for disposition by the client's estate. Personal property, such as television sets, radios, wheelchairs, and other property of more than nominal value, must be maintained for disposition by the client's estate.

14.Upon sale or other transfer of ownership interest of a facility, both transferor and transferee must transfer the client's personal incidental funds, moneys, and records in an orderly manner.

15.Failure to properly record the receipt and disposition of personal incidental funds may constitute grounds for suspension of provider agency payments.

16.Client personal incidental funds must not be expended by the provider agency for the purchases of meals served in licensed day habilitation, employment support, and prevocational services nor may the purchase of such meals be a condition for admission to such programs.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 2001; July 1, 2012; April 1, 2018.

N.D. Admin. Code 75-04-05-21 Transfer, discharge, and expulsion of clients

1.Movement of clients between levels of service by a provider agency or between provider agencies must be pursuant to a determination by the person-centered service plan team.

Payment for the cost of a new service is contingent upon the timely submission to the department of a person-centered service plan.

2.Movement of clients are subject to the policies and procedures of the North Dakota program management system and the approval of the department.

3.Any emergency movement may be initiated by the provider agency only with immediate notification of the department, client, and client-authorized representative. The movement is subject to subsequent review by the department which will determine if:

a.An emergency existed;

b.The rights of the client were protected and preserved;

c.Documentation exists in support of the provider agency's action;

d.A prognosis of the client's potential for returning has been made; and

e.Services required to maintain the client in a habilitative setting are least restrictive and have been provided prior to movement.

4.The department will determine whether a payment should be stopped as a consequence of the vacancy caused by movement of a client.

5.Upon a finding, by the department, that movement of a client constituted a violation of any right secured to the client by North Dakota Century Code chapter 25-01.2, the department may withhold payment for services provided during the period of time that the violation existed.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; April 1, 2018.

N.D. Admin. Code 75-04-05-22 Staff-to-client ratios

The overall direct contact staff-to-client ratios shall form the basis for the determination of the rate of payment for provider agencies of service to individuals with intellectual or developmental disabilities.

Additional staff may be necessary to meet the needs of the clients and may be added subject to the approval of the department.

Intermediate care facilities for individuals with intellectual disabilities are subject to the direct contact staffing requirements of title 42, Code of Federal Regulations, part 483, section 430.

History

• History: Effective July 1, 1984; amended effective June 1, 1985; June 1, 1995; July 1, 2001; July 1, 2010; April 1, 2018.

N.D. Admin. Code 75-04-05-23 Staff hours

Repealed effective April 1, 2018.

N.D. Admin. Code 75-04-05-24 Application

This chapter will be applied to provider agencies for services to individuals with developmental disabilities, except distinct parts of state institutions for individuals with developmental disabilities which are certified as intermediate care facilities for individuals with intellectual disabilities, starting the first day of a facility's first statement of costs year which begins on or after July 1, 1985, or provide homeand community-based developmental disabilities traditional waiver services, starting the first day of a facility's first statement of costs year which begins on or after April 1, 2018; provided, however, that neither this section, nor the effective date, shall preclude the application and implementation of some or all of the provisions of this chapter through contract or through official statements of department policy.

Specific sections of this chapter will be applied to services provided in distinct parts of state institutions for individuals with developmental disabilities which are certified as intermediate care facilities for individuals with intellectual disabilities. The sections of this chapter that apply are section 75-04-05-01; subsections 1, 4, and 5 of section 75-04-05-02; section 75-04-05-08; subsections 8 through 12 of

section 75-04-05-09; sections 75-04-05-10, 75-04-05-11, and 75-04-05-12; subsections 1 through 10, 12 through 19, 21 through 29, 32, 34 through 37, 40, 42 through 45, 47 through 49, and 51 through 53 of section 75-04-05-13; sections 75-04-05-13.1, 75-04-05-15, 75-04-05-16, 75-04-05-17, 75-04-05-18, 75-04-05-19, 75-04-05-20, 75-04-05-21, 75-04-05-22, 75-04-05-23, and 75-04-05-24.

History

• History: Effective July 1, 1984; amended effective July 1, 1984; June 1, 1985; June 1, 1995; August 1, 1997; July 1, 2001; May 1, 2006; July 1, 2012; January 1, 2013; April 1, 2018.
• Law Implemented: NDCC 25-18-03, 50-24.1-01; 34 CFR 363

N.D. Admin. Code 75-04-05-25 Indemnification

Provider agencies may be required to indemnify and reimburse the department for any federal funds, the expenditure of which is disallowed as a consequence of the provider agency's failure to establish and maintain adequate records or the provider agency's failure to otherwise comply with written standards, rules and regulations, or statutes.

History

• History: Effective April 1, 2018.

Chapter 75-04-06 Eligibility for Intellectual Disabilities - Developmental Disabilities Program Management Services

N.D. Admin. Code 75-04-06-01 Principles of eligibility

1.The process of determining an individual's eligibility to receive intellectual disabilities developmental disabilities program management services involves the recognition of several criteria and an understanding of expected outcomes as each criterion is applied. Professional judgment is applied to determine the applicability of the provision of intellectual disabilities developmental disability program management services.

2.The following criteria must be used as the frame of reference for a team of at least three professionals, led by the developmental disabilities program administrator or the administrator's designee, for the determination of an individual's eligibility for intellectual disabilities - developmental disabilities program management services.

January 1, 2025.

History

• History: Effective July 1, 1991; amended effective January 1, 1997; July 1, 2012; April 1, 2018;

N.D. Admin. Code 75-04-06-02 Criteria for service eligibility - Class member

Repealed effective January 1, 1997. 75-04-06-02.1. Criteria for service eligibility - Children age three and above.

1.An individual is eligible for intellectual disabilities - developmental disabilities program management services if the individual has a diagnosis of intellectual disability which is severe enough to constitute a developmental disability.

a.A diagnosis of the condition of intellectual disability must be made by an appropriately licensed professional using diagnostic criteria accepted by the American psychiatric association.

b.Determination of whether the manifestation of the condition is severe enough to constitute a developmental disability must be done in accordance with the definition of developmental disability in North Dakota Century Code section 25-01.2-01.

2.An individual is eligible for intellectual disabilities - developmental disabilities program management services if the individual has a condition of intellectual disability, diagnosed by an appropriately licensed professional using diagnostic criteria accepted by the American psychiatric association, which is not severe enough to constitute a developmental disability, and the individual must be able to benefit from treatment and services purchased through the developmental disability division on behalf of an individual who meets the criteria of subsection 1.

3.An individual is eligible for intellectual disabilities - developmental disabilities program management services if the individual has a condition, other than mental illness, severe enough to constitute a developmental disability, which results in impairment of general intellectual functioning or adaptive behavior similar to that of an individual with the condition of intellectual disability, and the individual must be able to benefit from services and intervention techniques which are so closely related to those applied to an individual with the condition of intellectual disability that provision is appropriate. Determination of eligibility for individuals described in this subsection requires the application of professional judgment in a two-step process:

a.The team must first determine whether the condition is severe enough to constitute a developmental disability. North Dakota Century Code section 25-01.2-01 must be applied in order to determine if a developmental disability is present. The presence of a developmental disability does not establish eligibility for services through the intellectual disabilities - developmental disabilities program management services system, but does require the team to consider all assessment data and apply professional judgment in the second step.

b.The team must then determine whether services can be provided to an individual determined to have a condition, other than mental illness, severe enough to constitute a developmental disability. The team must have a thorough knowledge of the condition and service needs of the applicant, as well as a thorough knowledge of services that would be appropriate through the developmental disabilities system. When considering if intellectual disabilities - developmental disabilities program management is appropriate, the team must consider factors, including:

(1)Whether the individual would meet criteria appropriately used to determine the need for services in an intermediate care facility for individuals with intellectual disabilities.

(2)Whether appropriate services are available in the existing developmental disabilities service delivery system.

(3)Whether a service, which uses intervention techniques designed to apply to an individual with intellectual disabilities, delivered by staff trained specifically in the field of intellectual disabilities, would benefit the individual.

(4)Whether a service, designed for an individual with the condition of intellectual disability, could be furnished to the individual without any significant detriment to the individual or others receiving the service.

c.If the team concludes, through the application of professional judgment, that an individual's needs can be met through specific services purchased by the department for individuals who meet the criteria of subsection 1, an intellectual disabilities developmental disabilities program manager may be assigned. Services may be provided, subject to the limits of legislative appropriation. New services need not be developed on behalf of the individual.

History

• History: Effective January 1, 1997; amended effective July 1, 2012; April 1, 2018.

N.D. Admin. Code 75-04-06-03 Criteria for service eligibility - Applicants who are not members of the plaintiff class

Repealed effective January 1, 1997.

N.D. Admin. Code 75-04-06-04 Criteria for service eligibility - Children birth through age two

1.Service eligibility for children from birth through age two is based on distinct and separate criteria designed to enable preventive services to be delivered. Young children may have conditions which could result in substantial functional limitations if early and appropriate intervention is not provided. The collective professional judgment of the team must be exercised to determine whether the child has a high-risk condition or has a developmental delay, and if the child may need early intervention services. If a child, from birth through age two, has a high-risk condition or has a developmental delay, the child may be included on the caseload of an intellectual disabilities - developmental disabilities program manager and considered for those services designed to meet specific needs. Eligibility for continued service inclusion through intellectual disabilities - developmental disabilities program management must be redetermined by age three using criteria specified in section 75-04-06-02.1.

2.For purposes of this section:

a."Developmental delay" means a condition of a child, from birth through age two:

(1)Who is performing twenty-five percent below age norms in two or more of the following areas:

(a)Cognitive development;

(b)Gross motor development;

(c)Fine motor development;

(d)Sensory processing (hearing, vision, haptic);

(e)Communication development (expressive or receptive);

(f)Social or emotional development; or (g)Adaptive development; or (2)Who is performing at fifty percent below age norms in one or more of the following areas:

(a)Cognitive development;

(b)Physical development, including vision and hearing;

(c)Communication development (expressive and receptive);

(d)Social or emotional development; or (e)Adaptive development.

b."High-risk condition" means a condition of a child, from birth through age two:

(1)Who, based on a diagnosed physical or mental condition, has a high probability of becoming developmentally delayed; or (2)Who, based on informed clinical opinion which is documented by qualitative and quantitative evaluation information, has a high probability of developing a developmental delay.

History

• History: Effective July 1, 1991; amended effective July 1, 1993; January 1,1997; July 1, 2012; April 1, 2018.

N.D. Admin. Code 75-04-06-05 Service availability

The extent to which appropriate services other than program management services are available to an eligible individual is dependent upon legislative appropriations and resources. Eligibility for program management services does not create an entitlement to services other than program management services if resources are not available.

History

• History: Effective August 1, 1997; amended effective April 1, 2018; January 1, 2025.
• Law Implemented: NDCC 25-01.2-02

N.D. Admin. Code 75-04-06-06 Developmental disabilities program management eligibility for three-year-old and four-year-old children

Repealed effective July 1, 2014.

N.D. Admin. Code 75-04-06-07 Denial, reduction, and termination of services by the department - Appeal

1.An eligible individual or authorized representative may appeal a denial, reduction, or termination of services under this chapter. An appeal under this section must be made within thirty days of the date of the notice of the denial, reduction, or termination. An eligible individual or authorized representative shall submit the request for an appeal and hearing under North Dakota Century Code chapter 28-32 and chapter 75-01-03 to the appeals supervisor for the department.

2.An eligible individual or authorized representative may request an informal review within ten days of the date of the notice. A request for an informal review does not change the time within which the request for an appeal hearing must be filed.

History

• History: Effective April 1, 2018; amended effective January 1, 2025.
• General Authority: NDCC 25-01.2-18
• Law Implemented: NDCC 25-01.2-02, 25-01.2-18

N.D. Admin. Code 75-04-06-08 Developmental disabilities program management caseload and responsibilities

1.The average caseload of the developmental disabilities program managers must be no more than sixty eligible individuals per program manager.

2.The developmental disabilities program manager shall complete the following:

a.Review individual rights with eligible individuals and applicants.

b.Conduct service coordination and monitoring for eligible individuals.

c.Authorize appropriate services for eligible individuals.

History

• History: Effective April 1, 2020; amended effective January 1, 2025.
• General Authority: NDCC 25-01.2-18
• Law Implemented: NDCC 25-01.2-02, 25-01.2-18

Chapter 75-04-07 Individualized Supported Living Arrangements for Persons with Intellectual Disabilities ‑ Developmental Disabilities [Repealed]

N.D. Admin. Code 75-04-07 Individualized Supported Living Arrangements for Persons with Intellectual Disabilities ‑ Developmental Disabilities [Repealed]

CHAPTER 75-04-07

INDIVIDUALIZED SUPPORTED LIVING ARRANGEMENTS FOR PERSONS WITH

INTELLECTUAL DISABILITIES - DEVELOPMENTAL DISABILITIES [Repealed effective April 1, 2018]

Article 75-05 Human Service Center Licensure Standards

Chapter 75-05-00.1 Human Service Center Licensure

N.D. Admin. Code 75-05-00.1 Human Service Center Licensure

ARTICLE 75-05

HUMAN SERVICE CENTER LICENSURE STANDARDS

Chapter 75-05-00.1Human Service Center Licensure 75-05-01Administration and Center Management 75-05-02Physical Plant Management [Repealed] 75-05-03Clinical Services 75-05-04Client Management 75-05-05Specialized Services [Repealed] 75-05-06Human Service Center Essential Client Services and Eligibility [Repealed]

CHAPTER 75-05-00.1

HUMAN SERVICE CENTER LICENSURE

Section 75-05-00.1-01Definitions 75-05-00.1-02License Required 75-05-00.1-03Department to Conduct Human Service Center Licensure Reviews 75-05-00.1-04Designation of Chairperson of Licensure Team 75-05-00.1-05Licensure Team 75-05-00.1-06Programs and Services Reviewed 75-05-00.1-07Licensure Team Reporting Procedures 75-05-00.1-08Issuance of Licensure Team Report to the Human Service Center 75-05-00.1-09Action on Conditions 75-05-00.1-10Provisional or Restricted License 75-05-00.1-11Licensure Team Review Followup 75-05-00.1-12Licensure 75-05-00.1-13Licensure Report Maintenance 75-05-00.1-01. Definitions.

As used in this article:

1."Condition" means that the human service center does not meet a standard contained in this

article.

2."Department" means the department of human services.

3."Recommendation" means a suggestion offered by the licensure team to strengthen and enhance the programs and services offered by the center. Recommendations do not have to be satisfied by the human service centers to complete licensure.

4."Standard" means a requirement for licensure that may not be waived by the department. 75-05-00.1-02. License required.

A human service center may not operate without first having obtained a license issued by the department under North Dakota Century Code section 50-06-05.2. 75-05-00.1-03. Department to conduct human service center licensure reviews.

The department shall conduct a review of departmental licensure standards, procedures, and rules prior to the departmental biennial licensure review of the human service center.

History: Effective February 1, 1996; amended effective January 1, 2009. 75-05-00.1-04. Designation of chairperson of licensure team.

The executive director of the department shall designate an individual from within the department to serve as chairperson of the licensure team that evaluates the regional human service centers. 75-05-00.1-05. Licensure team.

The chairperson designated under section 75-05-00.1-04 shall develop a licensure team to conduct onsite reviews at each regional human service center. The licensure team must be composed, at a minimum, of the following individuals:

1.A psychologist or a psychiatrist;

2.A psychiatric nurse, clinical nurse specialist, nurse practitioner, or registered nurse;

3.Two representatives from the behavioral health division, one representing mental health services and one representing substance use disorder services; and

4.A regional human service center consumer or a member of the consumer's family.

History: Effective February 1, 1996; amended effective January 1, 2009; July 1, 2020. 75-05-00.1-06. Programs and services reviewed.

The licensure team shall review the following major programs and services:

1.Clinical services;

2.Client management; and

3.Administration and center management.

History: Effective February 1, 1996; amended effective January 1, 2009; July 1, 2020. 75-05-00.1-07. Licensure team reporting procedures.

At the conclusion of the review, each team member shall write a report on the programs and services reviewed. Each report must contain:

1.A description of programs and services reviewed;

2.Strengths;

3.Concerns;

4.Conditions; and

5.Recommendations.

History: Effective February 1, 1996; amended effective January 1, 2009; July 1, 2020. 75-05-00.1-08. Issuance of licensure team report to the human service center.

Within thirty days after the site visit to the human service center, the licensure team report of the review must be sent to the regional director. 75-05-00.1-09. Action on conditions.

1.A human service center receiving a condition shall submit to the licensure team a corrective action plan within thirty days from receipt identifying how the program will become compliant with the standards contained in this article; and

2.The human service center shall have sixty days after the corrective action plan is submitted to implement the actions to become compliant with the standards contained in this article.

History: Effective February 1, 1996; amended effective July 1, 2020. 75-05-00.1-10. Provisional or restricted license.

If the human service center, for reasons beyond its control, is unable to satisfy the cited condition, or if the nature of the condition warrants, a provisional or restricted license may be issued. A provisional license allows the human service center to operate while the center makes changes to its operation to satisfy human service center licensing standards. The provisional license may be in effect for a maximum of twelve months. A restricted license allows the human service center to operate for certain functions, but prohibits the center from operating for other functions when those functions do not meet human service center licensing standards and a provisional license would not give the center sufficient opportunity to meet those standards. A restricted license is issued for the same period of time as a nonrestricted license for the functions for which the human service center will be operating. A restricted license is in effect for the period specified in the license not to exceed twenty-four months. Prior to removing a restriction on a license and issuing an unrestricted license, the department may conduct an onsite review to determine that the licensee is in full compliance with the standards contained in this

article.

History: Effective February 1, 1996; amended effective January 1, 2009; July 1, 2020. 75-05-00.1-11. Licensure team review followup.

The licensure team shall request documentation or conduct an onsite review, or both, to ensure the program has implemented their corrective action plan.

History: Effective February 1, 1996; amended effective January 1, 2009; July 1, 2020. 75-05-00.1-12. Licensure.

The department shall issue a license when a human service center has met all of the licensure standards outlined in this article. 75-05-00.1-13. Licensure report maintenance.

All reports of the licensure reviews must be retained on file in the department's central office.

Individual site followup reviews must also be retained.

Chapter 75-05-01 Administration and Center Management

N.D. Admin. Code 75-05-01-01 Definitions

As used in this article:

1."Acute treatment services" means a group of core services designed to address the needs of vulnerable children, adolescents, adults, elderly, and families who have problems.

2."Addiction evaluation" means an assessment to determine the nature or extent of substance use or addictive disorders.

3."Admission process" means an initial face-to-face contact with the consumer intended to define and evaluate the presenting problem and make disposition for appropriate services.

4."Adult diagnosed with a serious mental illness" means an adult that meets the definition of "chronically mentally ill" as defined in North Dakota Century Code section 57-38-01.

5."Aftercare services" means activities provided for an individual who is in an inpatient facility or an intensive outpatient program and ready for discharge. These services assist an individual in gaining access to needed social, psychiatric, psychological, medical, vocational, housing, and other services in the community.

6."Case management" means services which will provide or assist an individual in gaining access to needed social, psychiatric, psychological, medical, vocational, housing, and other services in the community.

7."Client" or "consumer" means an individual who receives services from the human service center and for whom a client or consumer record is maintained.

8."Client record" or "consumer record" means a compilation of those events and processes that describe and document the evaluation, care, treatment, and service of the client or consumer.

9."Clinical services" means a variety of services, including acute treatment services, emergency services, extended care services, medications, community consultation and education, psychological services, and regional intervention services to meet the care and treatment needs of consumers.

10."Community home counselor" means an individual who provides care, supervision, and training for an individual with serious mental illness or serious emotional disturbance in a community residential care facility and assists a resident in reorientation to the community.

11."Community living supervisor" means a professional who is responsible for the planning and implementation of training and treatment in a community residential care facility for an individual with serious mental illness.

12."Community residential service" means a variety of residential options which may include transitional living, supported living, crisis residential, in-home residential services, and other residential services necessary to assist an individual in becoming successful and satisfied in the individual's living environment.

13."Core services" means a minimum set of services that all human service centers provide.

14."Crisis residential services" means temporary housing to provide crisis intervention, treatment, and other supportive services necessary for an individual to remain in the community.

15."Department" means the department of human services.

16."Diagnosis" means the process of identifying specific mental or physical disorders based on standard diagnostic criteria.

17."Emergency services" means a service that is available at all times to handle crisis situations.

18."Evidence-based practice" is defined as an intervention that has been demonstrated, by scientific methods and peer review, to be an effective treatment strategy for the individual, family, or group being served.

19."Extended care services" means services provided to an individual with serious mental illness to maintain or promote social, emotional, and physical well-being through opportunities for socialization, work participation, education, and other self-enhancement activities. Extended care services include community residential services, work skills development, community supportive care services, case management and aftercare services, and recovery centers.

20."Family therapy" means a form of treatment in which the family is treated as a whole.

21."Group counseling" or "group therapy" means a form of treatment in which a group of consumers, with similar problems, meet with a counselor or therapist to discuss difficulties, provide support for each other, gain insight into problems, and develop better methods of problem solving.

22."Human service center" means a facility established in accordance with North Dakota Century Code section 50-06-05.3.

23."Human service council" means a group appointed in accordance with North Dakota Century Code section 50-06-05.3.

24."Individual counseling" or "individual therapy" means a form of treatment in which a counselor or therapist works with a consumer on a one-to-one basis.

25."Individual plan" means a document which describes an individual plan of treatment or service for each consumer, including a description of the consumer's problems and goals for treatment and the individuals responsible for initiating and implementing the plan.

26."Mental status" means an evaluation of an individual's appearance, posture, mood, affect, attitude toward assessment, orientation, speech, recent and remote memory, abstract reasoning, insight, judgments, preoccupations, hallucinations, delusions, and suicidal or homicidal ideation.

27."Multidisciplinary team" means at least three staff members representing two different disciplines. At least one of the three must be a psychiatrist or psychologist. As determined appropriate by the human service center, a clinical nurse specialist may substitute for a psychiatrist if neither a psychiatrist nor a psychologist can be in attendance. The exception must be noted on the multidisciplinary case conference note prepared at the time of staffing.

28."Outreach" means the provision of services, including direct services, and information and referral, to areas outside of the main office of a regional human service center.

29."Program" means an organized system of services designed to meet the service needs of consumers.

30."Progress notes" means the documentation in the consumer's record which describes the consumer's progress or lack of progress as it relates to the approved treatment plan.

31."Psychiatric evaluation" means a psychiatric diagnostic interview examination, including a

history, mental status, and a disposition, and may include communication with family members or other sources.

32."Psychiatrist" means a physician, with three years of approved residency training in psychiatry, who is American board of psychiatry and neurology eligible, and who is licensed to practice medicine in the state of North Dakota.

33."Psychological evaluation" means the assessment or evaluation of a consumer by or under the supervision of a licensed psychologist.

34."Psychologist" means a professional who holds a doctor's degree in psychology and who is licensed by the state of North Dakota or who qualifies as a psychologist under North Dakota Century Code section 43-32-30.

35."Qualitative and quantitative indicator" means an expected standard of care or outcome that can be measured.

36."Recovery center" means a facility whose staff provides socialization, social skill building, information and referral, and community awareness for the purpose of enhancing the ability of an individual diagnosed with serious mental illness to live in the community.

37."Regional director" means the human service professional who is appointed by the executive director of the department to be responsible for the overall management and administration of the human service center.

38."Regional intervention service" means a service unit within a human service center which provides crisis intervention and support services in a community as an alternative to state hospital admission.

39."Semi-independent living arrangement" means an arrangement that, through the use of intensive, in-home support services, gives a consumer the ability to reside in the consumer's own home.

40."Seriously mentally ill (SMI) group care" means the provision of meals and lodging-related services to an individual in a twenty-four-hour per day community-based living environment established for an individual who does not need the protection offered in an institutional setting, but is not yet ready for independent living.

41."Utilization review" means a program designed to ensure optimal use of center resources to determine if professionally recognized standards are being practiced for service utilization.

January 1, 2009; July 1, 2020.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-01-02 Administration

N.D. Admin. Code 75-05-01-03 Human service council

1.The human service center shall have a human service council appointed in accordance with North Dakota Century Code section 50-06-05.3.

2.The regional director shall maintain an accurate list of all human service council members, together with council members' addresses and telephone numbers.

3.The human service council shall meet at least quarterly.

4.The human service council shall develop bylaws to govern its activities.

5.The human service council shall keep minutes of all meetings and, when the minutes have been approved, a copy must be sent to the executive director of the department.

History

• History: Effective November 1, 1987; amended effective February 1, 1996.

N.D. Admin. Code 75-05-01-04 Fiscal management

N.D. Admin. Code 75-05-01-05 Personnel policies and procedures

Repealed effective December 1, 1991.

N.D. Admin. Code 75-05-01-06 Staff orientation and inservice training

N.D. Admin. Code 75-05-01-07 Quality assurance

Repealed effective February 1, 1996.

N.D. Admin. Code 75-05-01-08 Utilization review

1.The human service centers shall comply with the requirements of the department's data collection system.

2.The human service center shall implement a utilization review program to assess quality client care, which reviews appropriateness of admissions, services provided, duration of service, underutilization and overutilization of personnel and financial resources, and outcome or followup studies.

3.The regional director shall designate committees or individuals to provide a client record review program of individual treatment and services provided as outlined in chapter 75-05-04.

The client record review program must include both qualitative and quantitative indicators as defined by departmental policy.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996.

N.D. Admin. Code 75-05-01-09 Emergency management

1.The regional director shall adopt and maintain a written emergency management plan which provides crisis counseling for disaster emergencies in counties within the center's catchment area. The emergency management plan must be available on the premises. Clients must be instructed in the plan's implementation unless the instruction would be injurious to the client's well-being. The emergency management plan must be coordinated with the local office of emergency management.

2.The regional director shall adopt and maintain a written emergency management plan within the human service center and other facilities operated by the center.

3.Evacuation drills at the human service center must be conducted and documented annually.

Evacuation drills at the residential facilities operated by the center must be conducted and documented at least every six months.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996.

N.D. Admin. Code 75-05-01-10 Consumers' rights

1.Individuals responsible for admissions shall provide all human service center consumers, and the consumers' families or guardians, as appropriate, with a written statement regarding the exercise and protection of the consumers' civil rights. The statement must include the assurance of civil rights for all consumers of the human service center regardless of the consumers' race, color, religion, national origin, sex, age, political beliefs, or disability in accordance with title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act, the Americans with Disabilities Act of 1990, and the North Dakota Human Rights Act (North Dakota Century Code chapter 14-02.4).

2.The consumers, and families, custodians, or guardians, as appropriate, must receive written information concerning their rights under each program within the human service center from which the consumer is receiving services.

3.Each consumer, and family or guardian, as appropriate, will receive written information describing:

a.The conditions under which a decision, action, or inaction may be appealed;

b.The method of filing the appeal;

c.The various steps in the appeal; and

d.The assistance which can be furnished in the preparation and submission of the appeal.

4.The human service center shall provide assistance in obtaining protective or advocacy services, if necessary.

5.Consumers' rights may not be limited, unless the limitation is essential to protect the consumers' safety, the safety of others, or is determined to be of therapeutic value. The restriction must follow the limitations and restrictions of the patient's rights according to North Dakota Century Code section 25-03.1-41.

6.This article may not be construed as creating, for the benefit of a consumer, or a consumer's family or guardian, any civil right or other right.

January 1, 2009.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-01-11 Risk, safety, and security management

Chapter 75-05-02 Physical Plant Management [Repealed]

N.D. Admin. Code 75-05-02 Physical Plant Management [Repealed]

CHAPTER 75-05-02

PHYSICAL PLANT MANAGEMENT [Repealed effective January 1, 2009]

Chapter 75-05-03 Clinical Services

N.D. Admin. Code 75-05-03-01 Outpatient services

Outpatient services. An outpatient service is an organized, nonresidential service or an office practice which provides professionally directed aftercare, individual, group, and other services to consumers.

1.Each human service center shall offer a range of outpatient services to consumers based on consumers' needs regarding emotional, social, and behavioral problems. These outpatient services include services provided or arranged for:

a.Individual counseling;

b.Group counseling;

c.Family counseling;

d.Psychological and psychometric evaluations of testing; and

e.Psychiatric assessments.

2.Each human service center shall define and provide general outpatient services to vulnerable children, adolescents, adults, elderly, and families who are experiencing psychosocial, psychiatric, or substance use issues, including any combination of those issues.

3.Each human service center shall develop written program descriptions of each program provided by the center.

4.Outpatient services must be available to consumers during the day and on designated evenings or weekends.

5.All significant consumer contacts and treatment provided must be documented in the consumer's record.

6.With the consumer's permission, acute treatment outpatient services must be coordinated with other private and public agencies.

January 1, 2009; July 1, 2020.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-03-02 Emergency services

An "emergency service" is a service that is available at all times to handle crisis situations.

1.The human service center shall maintain or contract for a twenty-four-hour emergency service.

Telephone or face-to-face contact must be part of the service. All contacts must be documented.

2.Emergency service personnel must be trained to handle crisis situations. Training must include suicide intervention; violent behavior of consumers; and crisis telephone calls. The human service center shall document training in each employee's personnel file.

3.Face-to-face crisis counseling must be provided in an environment conducive to treatment and control of the consumer in the event of suicidal or violent behavior.

4.A complete list of community resources must be available to emergency service personnel and updated by the human service center on an annual basis.

5.An individual receiving emergency services must be given information concerning available resources and treatment services.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-03-03 Extended care services

1.Community residential services.

a.The regional director shall designate a community living supervisor to supervise the community residential services.

b.The human service center shall provide or contract for at least two of the following services:

(1)SMI group care.

(a)SMI group care facilities must: [1]House no more than sixteen consumers; [2]Have the ability to house both male and female consumers while accommodating privacy for individuals; [3]Provide at least one full bathroom, consisting of at least a sink, toilet, and shower, for every four consumers; [4]Have bedrooms which are outside rooms with a window that is in good working order and may operate as a secondary exit from the room, accommodate one or two consumers, provide each consumer with a bed appropriate for the consumer's size and weight, with a clean and comfortable mattress, bedding appropriate for weather and climate, and provide other appropriate bedroom furniture; [5]Comply with the provisions of the chapter governing lodging or rooming houses as outlined in the most recent edition of the national fire protection association's life safety code; and [6]Have an annual fire and safety inspection by the state or local fire marshal's office or other accepted local authority.

(b)The staff of the SMI group care facility shall: [1]Assure that the consumer's individual plan includes input from the community home counselors and the residential treatment team. [2]Maintain an inventory of the consumer's personal belongings when the consumer enters the SMI group care facility.

(c)A brochure of consumers' rights according to section 75-05-01-10 must be given to all new residents of the SMI group care facility upon admission and explained in terms the resident can understand.

(2)Semi-independent living arrangement. A semi-independent living arrangement is one which, through the use of intensive, in-home support services, gives a consumer the ability to reside in the consumer's own home.

(a)The human service center shall develop policies and procedures which facilitate conformance with all local building and fire safety codes to encourage that safe and sanitary conditions are maintained.

(b)Human service center staff shall develop policies and procedures to ensure that semi-independent living services are being provided in the consumer's residence.

(c)An evaluation of the consumer's progress in semi-independent living services must be documented in the consumer's record on at least a monthly basis or in response to a significant event that has an impact on life domains.

(3)Crisis residential services.

(a)Human service center staff shall develop policies and procedures to assure that safe and effective crisis residential services are provided.

(b)Human service center staff shall document the consumer's progress, or lack thereof, on a daily basis.

2.Work skills development.

a.The human service center shall either provide or contract for:

(1)Methods to assess the abilities of adults diagnosed with serious mental illness as related to employment;

(2)Prevocational skills development and training;

(3)Job exploration; and (4)Followup.

b.The human service center shall document the consumer's progress in work skills development at least monthly.

3.Case management and aftercare services for an adult diagnosed with serious mental illness.

a.Case management services must be available to adults diagnosed with serious mental illness and a functional impairment.

b.Case management for an adult diagnosed with serious mental illness must be identified on the consumer's individual plan and must be documented in the progress notes.

c.Aftercare services must be available to all adults diagnosed with serious mental illness in a treatment or correctional facility who are returning to the community after discharge.

The regional director shall designate one or more staff members to provide aftercare services. Services must include the following activities, pursuant to appropriately signed releases and adherence to applicable privacy provisions:

(1)Regular visits or communication by aftercare staff with the treatment facility to monitor progress of those consumers who are admitted to the facility from the human service center's service area.

(2)Regular visits or communication by aftercare staff with the correctional facility when contacted by the facility regarding a consumer's pending release to monitor progress of those consumers who are admitted to the facility from the human service center's service area.

(3)Attendance by aftercare staff at meetings established for the purpose of improving communication and coordination between the treatment or correctional facility and the regional human service center.

(4)Provision of knowledge and communicating by aftercare staff to other regional human service center staff regarding treatment or correctional facility admission and discharge procedures.

d.The human service center, through case management services, shall ensure that extended services are provided for an adult diagnosed with serious mental illness who has completed the training and stabilization components of the supported employment program and continues to require ongoing support services to maintain competitive employment.

e.If individual plans dictate, case management services must provide or arrange for daily living skills training in the community.

4.Recovery centers.

a.The human service center shall provide or contract for the operation of a recovery center.

b.The recovery center shall provide services that support adults diagnosed with serious mental illness in their recovery by providing opportunities for learning appropriate socialization and leisure or recreational skills through social and recreational milieu, information and referral, and community awareness activities.

c.The recovery center must be open a minimum of forty hours per week. The hours of operation for the recovery center must be determined with member participation during a regularly held and announced membership meeting. Documentation of the meeting, including a compilation of consumer comments and votes, must be maintained by the recovery center and be open for review.

d.The recovery center shall employ a full-time director and part-time staff sufficient to provide services.

e.The recovery center must have a mechanism for member participation in policy formation. The recovery center shall maintain documentation of this participation and the documentation must be open for review.

f.The recovery center shall develop a calendar of events seven to ten days in advance which must be made available to the membership and the regional human service center.

g.The regional director shall appoint a human service center staff member as a liaison between the human service center and the recovery center.

March 1, 1997; August 1, 1997; January 1, 2009; July 1, 2020.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-03-04 Medications

1.The human service center must have written policies and procedures designed to ensure that all medications, including those medications administered or supervised by contracted providers, are administered safely and properly in accordance with state laws.

2.Medication orders must be written only by a physician or other professional licensed by law and permitted by license to write medication orders and who is in direct care and treatment of consumers.

3.All medications, including those prescribed by a prescribing professional employed by the human service center, prescribed by non-human service center prescribing professionals, or those taken over the counter must be recorded in the consumer's record at admission and reviewed at each psychiatric appointment, and any changes must be documented in the record.

4.When medications are prescribed by a prescribing professional and administered by human service center staff who are certified or licensed to administer medications, the prescribing professional's orders must be signed and a record of the administration of the medications must be kept.

5.There must be a system of checking to detect unhealthy side effects or toxic reactions of medications administered to a consumer.

6.Medication storage areas must be well-lighted, safely secured, and maintained in accordance with the security requirements of federal, state, and local laws. Only those individuals certified or licensed to administer medications may have access to medication storage areas.

7.The human service center staff shall inform each consumer who receives medications prescribed at a human service center or shall inform a consumer's family, custodian, or guardian, as appropriate, of the benefits, risks, side effects, and consequences of medication noncompliance. At a minimum, the prescribing professional prescribing the medication shall record that this information was provided. A consumer's signed informed consent statement is acceptable in addition to the record, but not in lieu of the record. The record must include:

a.An entry documenting that a discussion regarding medications prescribed has occurred.

b.Documentation that a specific discussion of tardive dyskinesia has occurred, if that is a potential side effect of any prescribed antipsychotic medication.

8.An assessment instrument used to detect signs of tardive dyskinesia must be administered every six months or sooner if medically indicated to all consumers on antipsychotic medications for which tardive dyskinesia is a potential side effect. Documentation of the results must be entered into the consumer record. Each human service center must have a mechanism for tracking when the assessment is due for each consumer.

9.Each human service center must have written policies and procedures for any supported medication program performed at the center or performed under a contract for services. A supported medication program includes filling pill boxes, supervising medication, or other self-administered medication programs. Documentation in the consumer's record will show education and training provided to a consumer to move or to attempt to move the patient toward medication independence.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-03-05 Psychiatric services

1.The regional director shall employ or contract with a psychiatrist to be the medical director.

The medical director shall provide consultation, treatment, and psychiatric evaluations for consumers at the human service center and shall provide input in program planning and development of services.

2.Psychiatric services must be available at a minimum of one hundred sixty hours per month.

This includes psychiatrist, clinical nurse specialist, and nurse practitioner time combined.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-03-06 Community consultation and education

The human service center shall:

1.Provide information to the general public and local agencies regarding center services.

2.Inform consumers and agencies about center services and how to access those services.

3.Respond to requests for educational presentations and inservice training for public and private agencies, as staff time allows, or refer the requests to other community resources.

4.Provide technical assistance to communities in assessing mental health needs and service options.

5.Document the number of hours, consumers, and type of activity spent on community consultation and education.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-03-07 Psychological services

1.The regional director shall employ or contract with one or more psychologists who meet the requirements of North Dakota Century Code chapter 43-32.

2.Psychological services include psychological evaluations, psychometric testing, psychological consultations, and psychotherapy services.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-03-08 Regional intervention service

1.The regional director shall designate staff to coordinate, administer, and supervise the regional intervention service.

2.The regional intervention service must refer consumers to appropriate community-based treatment in lieu of state hospital admission, when available.

History

• History: Effective December 1, 1991; amended effective February 1, 1996; January 1, 2009.

N.D. Admin. Code 75-05-03-09 Substance use and other addictive disorders

The human service center must have an addiction program which meets the requirements of articles 75-05 and 75-09.1.

History

• History: Effective January 1, 2009; amended effective July 1, 2020.
• General Authority: NDCC 50-31
• Law Implemented: NDCC 50-31

Chapter 75-05-04 Client Management

N.D. Admin. Code 75-05-04-01 Admission process

1.The regional director shall designate admission personnel who are responsible for the initial contact with the individual and, as determined appropriate, the individual's family to define and evaluate the presenting problems and make disposition for necessary services.

2.If, in the judgment of the admission personnel, the contact which has been made is of an emergency nature, the admission personnel shall comply with emergency service procedures.

3.If, in the judgment of the admission personnel, the contact which has been made is not of an emergency nature, the admission personnel shall determine if the human service center can provide the treatment or services that the individual and the individual's family require. Upon determination that required services are available, the admission personnel shall assure that an appointment is scheduled.

4.A signed application for services must be completed at the time of admission.

5.The initial admission process must involve a face-to-face interview with the consumer and include the following:

a.A statement of the presenting problems;

b.An assessment of the consumer's current emotional, cognitive, and behavioral functioning;

c.The consumer's history, including family background, social history, psychiatric history, medical history (including a list of the consumer's current medications, both prescribed and over the counter, and allergies), developmental history, educational history, and employment history; and

d.A signed release of information form from the consumer and the consumer's parent or guardian, when deemed necessary.

6.If the consumer is being referred for community residential services, the consumer, if possible, should visit the residential facility.

7.The human service center must have a mechanism to review service needs and formulate recommendations for consumers when the initial unit to which the consumer was referred cannot provide services. If the human service center or the unit to which the consumer has been referred cannot provide services, the professional staff member shall document, in the consumer record, the reasons the consumer is not provided services. The consumer, or parent or guardian, must be informed of the results of the review and the results must be documented in the consumer record.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-04-02 Admission

Repealed effective December 1, 1991.

N.D. Admin. Code 75-05-04-03 Individual plans

1.Each consumer who has been admitted for service to the human service center shall have an individual plan based on the admission data and needs of the consumer.

2.Overall development and implementation of the individual plan are the responsibility of the professional staff member assigned the consumer.

3.The individual plan must contain the consumer's name, problems, service strategies to resolve problems, goals, measurable objectives, names of staff members responsible for service strategies, and the signature of the case manager.

4.The professional staff member assigned to the consumer shall develop and review the individual plan with the consumer, shall document in the consumer's record the consumer's input in the development and review indicating the extent of the involvement in developing the individual plan, and shall have the consumer sign the treatment plan. If the consumer refuses or is unable to sign the treatment plan, this must be documented in the consumer's record.

5.Except in the case of emergency services, within twenty working days from the date of admission, which is the time when the consumer and the staff member first meet to begin the admission process, the multidisciplinary team shall hold a case staffing to confirm or to revise the diagnosis and treatment plan, or to reassign the consumer to an appropriate member of the professional staff.

January 1, 2009; July 1, 2020.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-04-04 Progress notes

1.Progress notes related to the consumer's treatment plan goals and objectives must describe the consumer's progress in treatment chronologically and must document the consumer's response to services related to the treatment.

2.Progress notes must address the following:

a.Activities and services provided as they relate to the goals and objective of the treatment plan, including ongoing reference to the treatment plan;

b.Documentation of the progress or lack of progress made in treatment as it relates to the treatment plan;

c.Documentation of the implementation of the individualized treatment plan, including consumer activities and services and all treatment rendered;

d.Documentation of the consumer's response to treatment services, changes in behavior and mood, and outcome of treatment or services; and

e.Plans for continuing therapy, for transfer, or for discharge, whichever is appropriate.

3.Progress notes must be documented according to the following time frames:

a.Individual and family therapy must be documented after each visit or transaction, including missed appointments; and

b.Group therapy must be documented at least weekly.

4.Progress notes must include service date, signature of staff member and any professional credentials of the staff member, and the signature date.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-04-05 Individual plan review

For clinical services, the consumer, case manager, and case manager's supervisor shall review individual plans at least every six months, except when consumer circumstances necessitate a change to the treatment plan.

March 1, 1997; January 1, 2009; July 1, 2020.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-04-06 Completion of treatment or service

1.The case manager shall enter a treatment or service completion summary in the consumer's record when consumers have not received treatment within six months after documented attempts to contact the consumer have been made, when termination is mutually agreed upon by the consumer and the case manager, or when it has been determined by a multidisciplinary team that a consumer no longer needs treatment or that treatment is inappropriate.

2.The treatment or service completion summary must include at a minimum:

a.Presenting problem at intake;

b.Medication summary when applicable;

c.Treatment provided and treatment outcome and results;

d.Discharge plan; and

e.Signature of staff member, professional credentials, if any, and date of summary.

3.When the service completion summary has been finalized, the closure must be entered on the data collection system.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

N.D. Admin. Code 75-05-04-07 Consumer referrals

1.When a consumer needs treatment or service which the human service center does not provide, staff shall assist the consumer in obtaining the services, if available.

2.The staff shall provide pertinent information to the referral agency. Before any referral is made, a release of information must be signed by the consumer, or the consumer's parent or guardian, or a determination must be made that the signed release of information form is not necessary for the referral.

History

• History: Effective November 1, 1987; amended effective January 1, 2009.

N.D. Admin. Code 75-05-04-08 Records maintenance

1.The regional director shall designate a staff member who is responsible for the safekeeping of each consumer's record.

2.All data and information in the consumer's record is confidential.

a.Records must be maintained in accordance with federal and state confidentiality requirements.

b.Upon written request, the consumer's record is available to the consumer, or to any individual designated by the consumer, for review unless a legally sufficient basis for denying the consumer access to the record has been established. In those cases, the request and the reason for the denial must be documented in the consumer's record. The human service center shall establish policies which encourage consumers to seek professional assistance while undertaking a review of records, and which prevent the alteration of any record during a review.

3.The human service center shall comply with department policies and procedures concerning records management.

History

• History: Effective November 1, 1987; amended effective December 1, 1991; February 1, 1996;

Chapter 75-05-05 Specialized Services [Repealed]

N.D. Admin. Code 75-05-05 Specialized Services [Repealed]

CHAPTER 75-05-05

SPECIALIZED SERVICES [Repealed effective July 1, 2020]

Chapter 75-05-06 Human Service Center Essential Client Services and Eligibility [Repealed]

N.D. Admin. Code 75-05-06 Human Service Center Essential Client Services and Eligibility [Repealed]

CHAPTER 75-05-06

HUMAN SERVICE CENTER ESSENTIAL CLIENT SERVICES AND ELIGIBILITY [Repealed effective January 1, 2009]

Article 75-06 Voluntary Admission to Public Treatment Facilities

Chapter 75-06-01 Voluntary Admission to State Hospital [Repealed]

N.D. Admin. Code 75-06-01 Voluntary Admission to State Hospital [Repealed]

ARTICLE 75-06

VOLUNTARY ADMISSION TO PUBLIC TREATMENT FACILITIES

Chapter 75-06-01Voluntary Admission to State Hospital [Repealed] 75-06-02Voluntary Admission to Other Public Treatment Facilities [Repealed]

CHAPTER 75-06-01

VOLUNTARY ADMISSION TO STATE HOSPITAL [Repealed pursuant to North Dakota Century Code Section 28-32-18.1, effective July 17, 2002]

Chapter 75-06-02 Voluntary Admission to Other Public Treatment Facilities [Repealed]

N.D. Admin. Code 75-06-02 Voluntary Admission to Other Public Treatment Facilities [Repealed]

CHAPTER 75-06-02

VOLUNTARY ADMISSION TO OTHER PUBLIC TREATMENT FACILITIES [Repealed pursuant to North Dakota Century Code Section 28-32-18.1, effective March 27, 2002]

Article 75-08 Vocational Rehabilitation

Chapter 75-08-01 Vocational Rehabilitation

N.D. Admin. Code 75-08-01-01 Definitions

In this chapter:

1."Appeal" means a request for an impartial due process hearing or an impartial due process hearing to resolve the issue under dispute.

2."Assistive technology device", also referred to as "rehabilitation technology device", means any item, piece of equipment, or product system, whether acquired commercially off the shelf, modified, or customized, used to increase, maintain, or improve the functional capabilities of an individual with disabilities.

3."Assistive technology service", also referred to as "rehabilitation technology service", means a service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device.

4."Client assistance program" means the program that informs and advises an individual of all available benefits under the Rehabilitation Act, as amended, and, if requested, may assist and advocate for the individual in matters related to the division's decisions and services. Client assistance program services include assistance and advocacy in pursuing mediation, administrative, legal, or other appropriate remedies for the protection of the rights of an individual.

5."Department" means the North Dakota department of human services.

6."Division" means the vocational rehabilitation division of the department.

7."Employment outcome" means, in a manner consistent with this chapter:

a.Entering, advancing in, or retaining full-time or, if appropriate, part-time competitive employment in the integrated labor market;

b.Supported employment; or

c.Satisfying any other type of employment in an integrated setting that is consistent with the individual's strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice, including self-employment, telecommuting, and business ownership.

8."Existing data" means information from any source that currently exists that describes the current functioning of the individual and may be available to the division for an eligibility determination. The school records of an individual are considered to be existing data; however, the division may request additional information if there is an indication of changes in functioning or if there is conflicting information.

9."Extended employment" means work in a nonintegrated or sheltered setting for a public or private nonprofit agency or organization that provides compensation in accordance with

section 14(c) of the Fair Labor Standards Act.

10."Extreme medical risk" means a risk of increasing functional impairment or risk of death if medical services, including mental health services, are not provided expeditiously.

11."Individual with a disability" means any individual who has a physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment or from advancing in employment and who can benefit in terms of an employment outcome from vocational rehabilitation services provided pursuant to this chapter.

12."Individual with a most significant disability" means an individual:

a.Who meets the criteria for a significant disability, and is seriously limited in two or more functional capacities, including mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills in terms of an employment outcome;

b.Who requires multiple core services over an extended period of time of six months or more.

13."Individual with a significant disability" means:

a.An individual who is receiving social security disability insurance or supplemental security income; or

b.An individual:

(1)Who has severe physical or mental impairments that seriously limit the individual's functional capacity, including mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills in terms of an employment outcome;

(2)Whose vocational rehabilitation can be expected to require multiple vocational rehabilitation services over an extended period of time of six months or more; and (3)Who has one or more physical or mental disabilities resulting from amputation, arthritis, blindness, burn injury, cancer, cerebral palsy, cystic fibrosis, deafness, head injury, heart disease, hemiplegia, hemophilia, respiratory or pulmonary dysfunction, intellectual disability, mental illness, multiple sclerosis, muscular dystrophy, musculoskeletal disorders, neurological disorders (including stroke and epilepsy), paraplegia, quadriplegia and other spinal cord conditions, sickle cell anemia, specific learning disability, end-stage renal disease, or another disability or combination of disabilities determined on the basis of an assessment for determining eligibility and vocational rehabilitation needs to cause comparable substantial functional limitations.

14."Informed choice" means a choice based on disclosure of facts and alternatives to allow a person to make decisions based on relevant information, options, and consequences.

15."Mediation" means using an independent third party to assist vocational rehabilitation applicants and clients in settling differences or disputes prior to formal action regarding vocational rehabilitation decisions or services.

16."Personal assistance services" means a range of services provided by one or more persons designed to assist an individual with a disability to perform daily living activities on or off the job that the individual would typically perform without assistance if the individual did not have a disability. The services must be necessary in order to achieve an employment outcome and may be provided only while the individual is receiving other vocational rehabilitation services.

Personal assistance services may include training in managing, supervising, and directing personal assistance services.

17."Postsecondary training" means training offered by institutions that qualify for federal financial student aid and is provided only when necessary to achieve a vocational goal consistent with an individual's capabilities and abilities.

18."Pre-employment transition services" means services for all students with disabilities in need of such services, without regard to the type of disability, and which must be made available to students with disabilities, regardless of whether the student has applied or been determined eligible for vocational rehabilitation services.

19."Qualified rehabilitation professional" means a vocational rehabilitation counselor who has obtained a baccalaureate degree in a field of study reasonably related to vocational rehabilitation and has indicated a level of competency and skill demonstrating basic preparation in a field of study that reasonably prepares the individual to work with consumers and employers.

20."Student with a disability" means an individual with a disability in a secondary, postsecondary, or other recognized education program who:

a.Is not younger than the earliest age for the provision of transition services under the Individuals with Disabilities Education Act [20 U.S.C. 1414(d)(1)(A)(i)(VIII)] and is not older than twenty-one years of age;

b.Is a student who is an individual with a disability, for purposes of section 504 of the Rehabilitation Act of 1973, as amended [29 U.S.C. 794]; or

c.Is a student who is eligible for and receiving special education services under part B of the Individuals with Disabilities Education Act [20 U.S.C.1411 et seq.].

21."Substantial impediment to employment" means that a physical or mental impairment in light of attendant medical, psychological, vocational, educational, communication, and other related factors hinders an individual from preparing for, entering into, engaging in, advancing in, or retaining employment, consistent with the individual's abilities and capabilities.

22."Suitable" means consistent with the unique strengths, resources, priorities, concerns, abilities, and capabilities of the individual.

23."Supported employment" means competitive integrated employment, in which an individual with a most significant disability, including a youth with a most significant disability, is working toward employment that is consistent with their individualized plan for employment. The following terms are defined concerning supported employment:

a."Competitive employment" means work that, at the time of transition to extended services, is performed on a full-time or part-time basis, as determined in the individualized plan for employment, and for which an individual is compensated at or above the federal minimum wage.

b."Extended services" means ongoing support services that are:

(1)Needed to support and maintain an individual with a most significant disability in supported employment;

(2)Organized or made available, singly or in combination, in such a way as to assist an eligible individual in maintaining employment;

(3)Based on the needs of an eligible individual, as specified in an individualized plan for employment;

(4)Provided by a state agency, private nonprofit organization, employer, or any other appropriate resource after an individual has been determined stable in employment and has made the transition from support from the division; and (5)Provided to a youth with a most significant disability, who will not immediately be able to access extended services from an alternative source. The division shall provide extended services for a period not to exceed four years, or at such time that a youth reaches age twenty-five and no longer meets the definition of a youth with a disability, whichever occurs first. The division may not provide extended services to an individual with a most significant disability who is not a youth with a most significant disability.

c."Integrated setting" means a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals other than nondisabled individuals who are providing services to those applicants or eligible individuals.

d."Ongoing support services" is as defined in 34 C.F.R. 361.5.

e."Time-limited services" means support services provided by the division for a period not to exceed twenty-four months, unless a longer period to achieve job stabilization has been established in the individualized plan for employment, before the individual transitions to extended services.

24."Trial work experiences" means an exploration of an individual's abilities, capabilities, and capacity to perform realistic work in the most integrated setting possible in which appropriate support and training are provided.

25."Vocational goal" means an employment outcome.

26."Youth with a disability" means an individual with a disability who:

a.Is at least fourteen years of age; and

b.Is not older than twenty-four years of age.

27."Youth with a most significant disability" means an individual with a disability who:

a.Is at least fourteen years of age;

b.Is not older than twenty-four years of age;

c.Meets the criteria for a most significant disability, and is seriously limited in two or more functional capacities, including mobility, communication, self-care, self-direction, interpersonal skills, work tolerance, or work skills in terms of an employment outcome;

d.Requires multiple core services over an extended period of time of six months or more.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019; January 1, 2023.
• General Authority: NDCC 50-06-16
• Law Implemented: NDCC 50-06.1

N.D. Admin. Code 75-08-01-02 General requirements of the vocational rehabilitation program

1.The vocational rehabilitation program assists an eligible individual with physical or mental disabilities to prepare for and achieve an employment outcome. The vocational rehabilitation process is based upon an individualized plan for employment oriented to the achievement of a suitable vocational goal. An individual with disabilities must require the service provided to minimize and accommodate the impediment to employment. Services must be reasonable and provided as cost effectively as possible.

2.The division presumes that an individual will benefit in terms of an employment outcome from vocational rehabilitation services, unless the counselor can document, on the basis of clear and convincing evidence and only after trial work experiences, that the individual is incapable of benefiting from vocational rehabilitation services in terms of an employment outcome.

3.Auxiliary aids and services will be provided at no cost to applicants or clients when they are necessary to access the vocational rehabilitation program. The purpose of auxiliary aids and services is to provide effective communications for participants in determining eligibility, assessments, and plan development.

4.Unless otherwise specified in this chapter, eligibility to participate in the vocational rehabilitation program is governed by federal vocational rehabilitation statutes and the federal procedures embodied in the rehabilitation services administration notices and policy memos.

The program must conform to lawfully issued regulations and policies of the rehabilitation services administration and the division. Terms used in this chapter have the same meaning as the terms used in the regulations and policies of the rehabilitation services administration and the division, unless this chapter specifically provides otherwise.

5.The division must provide services without regard to sex, race, creed, age, color, national origin, political affiliation, or type of disability.

6.There is no residency requirement, durational or other, that may exclude an otherwise eligible individual present in the state from eligibility. For individuals who are not United States citizens, the division must verify that the individual has the necessary documentation to allow them to work.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-03 Variance

Upon written application and good cause shown to the satisfaction of the division, the division may grant a variance from the provisions of this chapter upon terms prescribed by the division.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-04 Establishment and maintenance of records

The division shall establish and maintain a record of service for each individual applying for or receiving vocational rehabilitation services. The record must include data necessary to comply with state vocational rehabilitation and federal rehabilitation services administration requirements.

N.D. Admin. Code 75-08-01-05 Expenditure authorization

Case service expenditures require written authorization prior to the initiation of services. Oral authorizations are permitted in emergency situations, but must be confirmed promptly in writing.

N.D. Admin. Code 75-08-01-06 Referrals to other services

When appropriate, counselors shall provide the referral necessary to support an individual with disabilities in securing necessary services from other agencies and organizations.

History

• History: Effective October 1, 1995.

N.D. Admin. Code 75-08-01-07 Notification of appeals and mediation procedures

Repealed effective January 1, 2019.

N.D. Admin. Code 75-08-01-08 Confidentiality

All information acquired by the division about an individual applying for or receiving services must remain the property of the division and must only be used and released for purposes directly connected with the administration of the vocational rehabilitation program. Information obtained from another agency or organization may be released only by or under the conditions established by the other agency or organization. The division's use and release of personal information must conform with applicable state and federal regulations.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-09 Informed written consent

Informed written consent must:

1.Be in language that the individual or the individual's authorized representative understands;

2.Be signed and dated by the individual or the individual's authorized representative;

3.Include an expiration date;

4.Be specific in designating the department or person authorized to disclose information;

5.Be specific as to the nature of the information that may be released;

6.Be specific in designating the parties to whom the information may be released; and

7.Be specific as to the purpose or purposes for which the released information may be used.

N.D. Admin. Code 75-08-01-10 Release of information within the department

Intradepartmental exchange of information may occur without informed written consent when the individual is served by other divisions if the information is directly related to the purpose of the vocational rehabilitation program.

N.D. Admin. Code 75-08-01-11 Release of information to the individual and others

1.Upon informed written consent by the individual with disabilities or the individual's authorized representative, all information in the record of service must be made available to the individual with disabilities or the individual's authorized representative in a timely manner, except:

a.Medical, psychological, or other information the division believes may be harmful to the individual and that may not be released directly to the individual, and must be provided through the individual's authorized representative, physician, or licensed psychologist;

b.Information obtained from outside the division that may be released only under the conditions established by the outside agency, organization, or provider.

2.Upon informed written consent of the individual with disabilities or the individual's authorized representative, the division may release information that may be released under subsection 1 to the individual with disabilities to another agency or organization.

3.The division may release personal information, with or without consent of the individual:

a.If required by state or federal law;

b.In response to investigations connected with law enforcement, fraud, or abuse (except where expressly prohibited by federal or state laws or regulations); or

c.In response to judicial order.

4.The division may release personal information, without informed written consent of the individual, in order to protect the individual or others when the information poses a threat to the individual's safety or the safety of others, except for human immunodeficiency virus test results that may not be released without informed written consent of the individual.

5.The division and social security disability determination services may exchange information, without the informed written consent of the individual.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-12 Release of information for program audit, evaluation, or research

At the discretion of the division director, personal information may be released to an organization, agency, or individual engaged in program audit, program evaluation, or program research only for purposes directly connected with the administration of the vocational rehabilitation program or for purposes that would significantly improve the quality of life for an individual with disabilities, and only if the organization, agency, or individual assures that:

1.The information is used strictly for the purposes for which it is being provided;

2.The information is released only to an individual officially connected with the audit, evaluation, or research;

3.The information is not released to the individual involved;

4.The information is managed in a manner to safeguard confidentiality; and

5.The final product does not reveal any personal identifying information without the informed written consent of the individual involved or the individual's representative.

N.D. Admin. Code 75-08-01-13 Subpoenas

An employee of the division may testify in court or in an administrative hearing, but may not release information or records, without the consent of the individual with disabilities, unless ordered to do so by a judge or hearing officer.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-14 Administrative review procedures - Appeals

Repealed effective January 1, 2019.

N.D. Admin. Code 75-08-01-15 Application for services

All individuals desiring vocational rehabilitation services must apply for services. An individual is considered to have applied for services when the division receives a signed, written request for those services from the individual or the individual's authorized representative.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.
• Law Implemented: NDCC 50-06.1-04; 29 USC 722

N.D. Admin. Code 75-08-01-16 Period of time to determine eligibility

The division shall determine eligibility for services within a reasonable period of time not to exceed sixty days after the receipt of the application for services, unless:

1.The individual is notified that exceptional and unforeseen circumstances beyond the control of the counselor preclude the counselor from completing the determination within the prescribed time frame, and the individual agrees to a specific extension of time; or

2.The division conducts trial work experiences to explore the individual's abilities, capabilities, and capacity to work in various situations.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-17 Presumption of eligibility and significant disability

1.An individual who has a disability or is blind as determined under title II or title XVI of the Social Security Act [42 U.S.C. 301, et seq.] and who receives social security disability insurance benefits or supplemental security income benefits is presumed to be eligible for vocational rehabilitation services if the individual intends to achieve an employment outcome.

2.An individual who receives supplemental security income benefits or social security disability insurance benefits is presumed to have a significant disability.

3.The presumption of eligibility described in this section shall be overcome if the division can demonstrate by clear and convincing evidence that the individual cannot benefit from vocational rehabilitation services in terms of an employment outcome because of the severity of the individual's disability. The demonstration that the individual cannot benefit from vocational rehabilitation services may be determined only after conducting trial work experiences as described in section 75-08-01-20.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-18 Eligibility criteria and documentation

1.The division must base eligibility determinations on existing data as the primary source of information to the maximum extent possible and appropriate. The individual requesting services, the family of the individual, or other sources may provide the information. An individual is eligible for vocational rehabilitation if:

a.The individual has a mental or physical impairment;

b.The impairment constitutes or results in a substantial impediment to employment as determined by a qualified rehabilitation professional;

c.The individual can benefit from vocational rehabilitation services in terms of an employment outcome. An individual is presumed to be able to benefit from vocational rehabilitation services in terms of an employment outcome unless the division can demonstrate by clear and convincing evidence that the individual cannot benefit due to the severity of the disability. This demonstration that the individual cannot benefit can be determined only after conducting trial work experiences as described in section 75-08-01-20; and

d.The individual requires vocational rehabilitation services to prepare for, secure, retain, advance in, or regain employment.

2.In all cases in which the division determines an individual eligible for services, the record of service must include documentation of eligibility, dated and signed by a qualified rehabilitation professional, which demonstrates that the individual:

a.Has a physical or mental impairment that constitutes or results in a substantial impediment to employment; and

b.Requires vocational rehabilitation services to prepare for, enter, retain, advance in, or regain employment.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-19 Eligibility criteria for supported employment

An individual is eligible for supported employment services if:

1.The individual is eligible for vocational rehabilitation services;

2.The individual is determined to have a most significant disability; and

3.A comprehensive assessment of rehabilitation needs, including an evaluation of rehabilitation, career, and job needs identifies supported employment as the appropriate employment outcome for the individual.

N.D. Admin. Code 75-08-01-20 Trial work experiences and extended evaluation

1.Before an individual can be determined ineligible due to the severity of a disability, the individual must receive trial work experiences and there must be a written trial workplan. The trial work must:

a.Be sufficiently varied and over a sufficient period of time to determine eligibility or ineligibility;

b.Show by clear and convincing evidence that the individual cannot benefit due to the severity of the disability; and

c.Include support services such as assistive technology or personal assistance, which must be provided by the division.

2.Trial work experiences shall explore the individual's abilities, capabilities, and capacity to perform in work situations, including experiences in which appropriate supports and training are provided.

3.The division must provide assessments periodically during the trial work experiences regarding the individual's abilities, capabilities, and capacity to perform the work.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-21 Ineligibility determination

1.The division may make a determination that an individual is ineligible for vocational rehabilitation services only after providing an opportunity for full consultation with the individual or the individual's representative, as appropriate.

2.When the division determines that an individual is ineligible to receive vocational rehabilitation services, the individual or the individual's representative shall be informed of the ineligibility determination in writing, supplemented as necessary by other appropriate modes of communication consistent with the informed choice of the individual, of the ineligibility determination, including:

a.The reasons for the determination; and

b.A written description of the means by which the individual may express and seek a remedy for any dissatisfaction with the determination. This includes the procedures for appeal as provided in section 75-08-01-37, mediation, and the client assistance program.

3.When an ineligibility determination is based on a finding that the individual is incapable of benefiting in terms of an employment outcome due to the severity of the disability, that determination shall be reviewed by the division:

a.Within twelve months and twenty-four months of the date of the determination of ineligibility; and

b.After that date only if such a review is requested by the individual or the individual's representative, as appropriate.

4.Ineligibility decisions concerning the severity of a disability must be based on clear and convincing evidence and require trial work experiences as described in section 75-08-01-20 prior to closure.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-22 Assessment for determining eligibility and vocational rehabilitation needs

1.An assessment for determining eligibility and vocational rehabilitation needs means, as appropriate in each case, a review of existing data to determine:

a.Whether an individual is eligible for vocational rehabilitation services;

b.The priority for an order of selection as described in section 75-08-01-23;

c.The necessity of appropriate assessment activities to obtain necessary additional data to make such determination and assignment;

d.Referral, for the provision of assistive technology services to the individual, to assess and develop the capacities of the individual to perform in a work environment; and

e.An exploration of the individual's abilities, capabilities, and capacity to perform in realistic, integrated work situations, which shall be assessed periodically during trial work experiences, including experiences in which the individual is provided appropriate supports and training.

2.To the extent additional data is necessary for the division to make a determination of employment outcomes and the nature and scope of vocational rehabilitation services to be included in the individualized plan for employment, a comprehensive assessment may be done by the division. The purpose is to determine the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the eligible individual, including the need for supported employment. A comprehensive assessment includes, to the maximum extent possible and appropriate and in accordance with confidentiality requirements, the following:

a.Information that is necessary to identify the rehabilitation needs of the individual and to develop the individualized plan for employment of the eligible individual;

b.Existing information obtained for the purposes of determining the eligibility of the individual and assigning priority for an order of selection described in section 75-08-01-23;

c.Any information as can be provided by the individual and, when appropriate, by the family of the individual;

d.As necessary, an assessment of the personality, interests, interpersonal skills, intelligence, and related functional capacities, educational achievements, work experiences, vocational aptitudes, personal and social adjustments, and employment opportunities of the individual, and the medical, psychiatric, psychological, and other pertinent vocational, educational, cultural, social, recreational, and environmental factors, that affect the employment and rehabilitation needs of the individual; and

e.As necessary, an appraisal of the individual's patterns of work behavior and services needed for the individual to acquire occupational skills, and to develop work attitudes, work habits, work tolerance, and social and behavior patterns necessary for successful job performance, including the utilization of work in real job situations to assess and develop the capacities of the individual to perform adequately in a work environment.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-23 Order of selection

1.The division must provide to an individual applying for services, including an individual receiving trial work experiences, all services necessary to determine eligibility for vocational rehabilitation services and an order of selection priority classification. The division must provide these services on a timely basis in accordance with federal law.

2.When the division notifies an individual of eligibility, the division must also notify the individual of the individual's priority category and right to request mediation, appeal the assigned category, and to utilize the client assistance program.

3.If the division cannot provide services to all eligible individuals who apply due to a lack of resources, an order of selection procedure must be implemented.

a.An individual receiving services under an individualized plan for employment must continue to receive all required services. An individual requiring or receiving postemployment services must be considered to be under an individualized plan for employment. An individual described in paragraphs 1 through 4 must be assigned a priority in the order in which the paragraphs are listed.

(1)Category 1a: An individual with a most significant disability that seriously limits four or more functional capacities.

(2)Category 1b: An individual with a most significant disability that seriously limits two or three functional capacities.

(3)Category 2: An individual with a significant disability that seriously limits one or more functional capacities.

(4)Category 3: Other individuals with disabilities.

b.An eligible individual who is not in a priority category that is being served will have access to services provided through information and referral.

History

• History: Effective October 1, 1995; amended effective March 1, 1997; November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-24 Individualized plan for employment

An individualized plan for employment is developed for all individuals who are determined eligible for vocational rehabilitation.

1.Prior to developing the individualized plan for employment, the division must give the individual a written copy of the options for developing the plan.

2.The individualized plan for employment may be developed by the individual alone or by the individual with assistance from the division or other parties.

3.The individualized plan must be agreed to and signed by the individual or the individual's authorized representative and approved and signed by a qualified rehabilitation professional employed by the division.

4.The individualized plan for employment for eligible individuals must be developed and approved within ninety days from the date of determination of their eligibility for service.

5.The individualized plan for employment is designed to assist the individual's achievement of the vocational goal, consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual. The record of service must support the selection of the vocational goal.

6.Counselors shall provide a copy of the individualized plan for employment, and any amendments, to the individual.

7.With the exception of assessment services, the division may provide goods and services only in accord with the individualized plan for employment.

8.The individualized plan for employment is not a legal contract.

9.The division must review the individualized plan for employment at least annually in the same manner as it was originally developed and described in subsection 3.

10.The division must include in the individualized plan for employment:

a.A specific employment outcome in an integrated setting, which must be consistent with the unique strengths, resources, priorities, concerns, abilities, capabilities, interests, and informed choice of the individual; and

b.The specific services to be provided and the projected dates for initiation and anticipated duration of each service, including:

(1)If appropriate, a statement of the specific assistive technology services;

(2)If appropriate, a statement of the specific on-the-job and related personal assistance services, and, the individual's appropriate and desired training in managing, supervising, and directing personal assistance services;

(3)An assessment of the need for postemployment services and, if appropriate, extended services;

(4)The terms and conditions under which goods and services are to be provided in the most integrated settings;

(5)The terms and conditions for the provision of services, including the individual's:

(a)Responsibilities and the division's responsibilities;

(b)Participation in the cost of services; and (c)Access to comparable services and benefits under any other program;

(6)An assurance that the individual with disabilities was informed of:

(a)The availability of services through the client assistance program;

(b)The individual's rights, means of expression, and remedies for any dissatisfaction, including the individual's right to request mediation; and (c)The opportunity for review of a determination by the division regarding terms of the individualized plan for employment, as set forth in section 75-08-01-37;

(7)Information identifying services and benefits from other programs to enhance the capacity of the individual to achieve the individual's vocational goal;

(8)A reassessment of the need for postemployment services, or extended services prior to the point of successful closure; and (9)If appropriate, any plans for the provision of postemployment services and the basis on which the plans are developed.

11.For an individual with a most significant disability for whom supported employment services are appropriate, in addition to the requirements in subsection 10, the following must be addressed:

a.A description of time-limited services that the division provides, not to exceed twenty-four months in duration, unless the individualized plan for employment documents a longer period to achieve job stabilization; and

b.A description of the extended services necessary and identification of the state, federal, or private programs, which may include natural supports, that provide the extended support, or, to the extent that is not possible at the time the individualized plan for employment is written, a statement describing the basis for concluding that there is a reasonable expectation that those sources will become available.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-25 Comparable services and benefits

1.Before providing any vocational rehabilitation service, except those listed in subsection 5, to an eligible individual or to members of the individual's family, the division must determine whether comparable services and benefits exist under any other program and whether the services and benefits are available to the individual.

2.If comparable services and benefits do exist and are available to the individual at the time needed to achieve the provisions of the individualized plan for employment, they must be used to meet, in whole or in part, the cost of vocational rehabilitation services.

3.If comparable services and benefits do exist but are not available to the individual at the time they are needed, the division shall provide the services until comparable services and benefits become available.

4.The use of comparable services and benefits does not apply if such a determination would interrupt or delay:

a.The progress of an individual toward achieving the employment outcome identified in the individualized plan for employment;

b.An immediate job placement; or

c.The provision of vocational rehabilitation services to an individual with disabilities who is at extreme medical risk.

5.The following categories of service do not require that comparable services and benefits be used:

a.Assessment for determining eligibility and rehabilitation needs;

b.Counseling and guidance, including information and support services to assist in exercising informed choice;

c.Information and referral;

d.Job-related services, including job search, job placement, job retention services, followup, and follow-along services;

e.Rehabilitation technology, including telecommunications, sensory, and other rehabilitative technological aids and devices; and

f.Postemployment services that would be included under subdivisions a through e.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-26 Determination of financial participation

1.In all cases, the division shall encourage an individual with disabilities and the individual's family to financially contribute as much as possible to the cost of vocational rehabilitation goods and services provided as part of an individualized plan for employment. When available, comparable services and benefits must be used, as described in section 75-08-01-25, and the division must apply a financial participation threshold to specified vocational rehabilitation services. The individual's refusal to provide financial information will constitute the individual's not meeting the financial participation threshold. In that event, the individual may be unable to access the services without participating in the cost of such service.

a.If an individual is single, under the age of eighteen years, and unemancipated, the individual's income, and the income of the individual's parents, must be considered.

b.If an individual is single, under the age of eighteen years, and living with a guardian, the division shall determine financial participation based on the individual's income.

c.If an individual is single, eighteen years of age or over, but is living with a parent, the division shall determine financial participation based on the individual's income only.

d.If an individual is married, regardless of age, the division shall determine financial participation based on the income of the individual and the individual's spouse.

2.Calculation of financial participation is based on a fee schedule established and administered by the division and must be used to determine client participation. Copies of the fee schedule, which may be updated from time to time, are available from the division upon request. When determining client participation, the division must take into consideration disability-related expenses incurred by or for the individual. A vocational rehabilitation administrator may adjust or waive the client financial participation to ensure the level of an individual's participation in the cost of services is not so high as to effectively deny the individual a necessary service.

3.The division must re-evaluate financial participation annually or whenever financial or other circumstances regarding the individual significantly change, whichever occurs first. Significant change includes marriage or divorce, other changes in dependent status, radical change in income, or to the individualized plan for employment.

4.Regional vocational rehabilitation administrators may adjust or waive client financial participation. Documentation must be maintained indicating the conditions under which a waiver or adjustment is made and a copy placed in the client's file.

5.The division may not require the financial participation of any individual who receives social security disability insurance benefits or supplemental security income benefits as determined under title II or title XVI of the Social Security Act [42 U.S.C. 301, et seq.].

6.If the individual or the individual's authorized representative disagrees with the outcome of the determination of financial participation, the individual has the right to have the determination reviewed in accordance with section 75-08-01-37.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-27 Services exempt from participation by an individual in the cost of vocational rehabilitation services

The division shall provide the following services without regard to the financial resources available to the individual:

1.Information and referral;

2.Assessments to determine eligibility and priority for services except for nonassessment services provided during trial work experiences;

3.Assessments to determine vocational rehabilitation needs;

4.Counseling and guidance;

5.Interpreter services;

6.Vocational training, except at institutions of higher education. For example, on-the-job training, personal adjustment training, and supported employment training;

7.Orientation and mobility services;

8.Reader and notetaker services;

9.Placement services;

10.Assistive technology services, excluding assistive technology devices; and

11.Personal assistance services.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-28 Services subject to participation by an individual in the cost of vocational rehabilitation services

The division shall apply a financial participation schedule as a consideration for eligibility for the following vocational rehabilitation services:

1.Physical and mental restoration;

2.Maintenance, unless required for assessment purposes;

3.Transportation, unless required for assessment purposes;

4.Assistive technology aids and devices;

5.Occupational licenses;

6.Tools, equipment, and initial stock, including livestock, supplies, and necessary shelters;

7.Services to members of an individual's family, which are necessary for the rehabilitation of the individual with a disability;

8.Telecommunications, sensory, and other technological aids and devices for purposes other than evaluation;

9.Postemployment services necessary to assist individuals in maintaining suitable employment, excluding services normally provided without regard to financial participation;

10.Home modifications, including adaptive devices and minor structural changes necessary for the individual to function independently in order to achieve a vocational goal;

11.Other goods and services for which the individual may reasonably expect to receive benefits in terms of the individual's employability; and

12.Higher education as described in section 75-08-01-30.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-29 Vocational rehabilitation services necessary to enable the individual to achieve an employment outcome

Consistent with the individualized plan for employment, the division may provide, as appropriate to the vocational rehabilitation needs of each eligible individual, goods or services necessary to enable the individual to achieve an employment outcome. Services include:

1.An assessment for determining eligibility and vocational rehabilitation needs;

2.Counseling, guidance, and work-related placement services for an individual with disabilities, including job search assistance, placement assistance, job retention services, personal assistance services, and followup;

3.Physical and mental restoration services necessary to correct or modify the physical or mental condition of an individual who is stable or slowly progressive. In the purchase of medical goods or services, the division shall comply with the prevailing medical assistance fee schedule, except for certain diagnostic services that Medicaid excludes;

4.Home modifications that may include those adaptive devices and minor structural changes necessary for the individual with disabilities to function independently in order to achieve a vocational goal. Funds for home modifications may not be applied to the purchase or construction of a new residence;

5.Vocational and other training services, including:

a.Personal and vocational adjustment training;

b.Correspondence courses; and

c.Services to the individual's family that are necessary to the personal and vocational adjustment or rehabilitation of the individual;

6.Except in institutions of higher education, where comparable benefits, including services for students with disabilities must be used, the division may provide:

a.Interpreter services and note-taking services for an individual who is deaf, including tactile interpreting for an individual who is deaf and blind;

b.Reader services, rehabilitation teaching services, note-taking services, and orientation and mobility services; and

c.Telecommunications, sensory, and other technological aids and devices;

7.Recruitment and training services to provide new employment opportunities in the fields of rehabilitation, health, welfare, public safety, law enforcement, and other appropriate public service employment;

8.Occupational licenses, tools, equipment, initial stocks, and supplies necessary in order to enter an occupation, except that the division shall not purchase land or buildings for an individual with disabilities;

9.Time-limited, ongoing support services for an individual receiving supported employment services, including:

a.Diagnostic services necessary to determine the individual's rehabilitation needs for supported employment that are supplemental to the assessment for eligibility used to determine vocational rehabilitation eligibility, and are provided only after vocational rehabilitation eligibility has been determined. The purpose of supplemental evaluations is to help develop, finalize, or reassess a supported employment plan of services;

b.Job development and placement services; and

c.Other time-limited services necessary to support the individual in employment. The maximum time period for time-limited services is twenty-four months, unless the individualized plan for employment indicates that more than twenty-four months of services are necessary in order for the individual to achieve job stability prior to transition to extended services. Time-limited services include:

(1)Intensive on-the-job skills training and other training and support services necessary to achieve and maintain job stability;

(2)Followup services with employers, supported employees, parents and guardians, and others for the purpose of supporting and stabilizing the job placement;

(3)Discrete postemployment services, following transition to extended services, which are not available from the extended service provider and which are needed to maintain job placement; and (4)Other needed services listed in this subsection;

10.Postemployment services for an individual with disabilities who is employed but requires one or more services to assist with maintaining or advancing in suitable employment. An individual requiring multiple services over an extended period of time and a comprehensive or complex rehabilitation plan is not eligible for postemployment services, but may be encouraged to reapply. Postemployment services may:

a.Include counseling and guidance services to assist an individual to advance in employment; and

b.Require an amendment to the individualized plan for employment;

11.Assistive technology services to meet the needs and address the barriers confronted by an individual with disabilities in the areas of education, rehabilitation, employment, and transportation. The division shall provide assistive technology services at any time in the rehabilitation process, including the assessment for determining eligibility and vocational rehabilitation needs, trial work experiences, services provided under an individualized plan for employment, annual reviews of ineligibility decisions, annual reviews of extended employment in rehabilitation facilities, and postemployment services;

12.Transition services that promote or facilitate the accomplishment of long-term rehabilitation goals and objectives;

13.Other supportive services, including:

a.Maintenance for additional costs incurred while participating in rehabilitation;

b.Transportation, including travel and related expenses in connection with transporting an individual and an individual's attendants for the purpose of supporting and deriving the full benefit of other vocational rehabilitation services, with the following restrictions:

(1)Reimbursement cannot exceed the state rate level;

(2)Transportation may include relocation, moving expenses, and vehicle modifications only when the individual is otherwise precluded from achieving a vocational goal;

(3)Reimbursement must be provided at the prevailing rate for the service; and (4)The division shall not contribute to the purchase of a vehicle; and

c.On-the-job or other related personal assistance services provided while an individual with disabilities is receiving vocational rehabilitation services; and

14.Other vocational rehabilitation goods and services that an individual with disabilities is reasonably expected to benefit from in terms of an employment outcome.

History

• History: Effective October 1, 1995; amended effective November 1, 2002; January 1, 2019.

N.D. Admin. Code 75-08-01-30 Postsecondary training

If an individual receives postsecondary training, the following conditions apply:

1.The division may not provide postsecondary training unless maximum efforts have been made to secure grant assistance in whole, or in part, from other sources;

2.The division's participation shall not be calculated until the institution's financial aid office needs analysis has been received. The financial needs analysis award letter must identify all available aid;

3.An individual must accept all offered grant assistance;

4.An individual may choose to participate in the cost of attendance through the use of college work study and student loans;

5.The division may not participate in payment for postsecondary training if the individual is in default status, or is ineligible for financial aid due to a drug conviction or drug convictions as determined by free application for federal student aid (FAFSA) regulations;

6.Comparable benefits must be used for the following services:

a.Interpreter services and note-taking services for an individual who is deaf, including tactile interpreting for an individual who is deaf and blind;

b.Reader services, rehabilitation teaching services, note-taking services, and orientation and mobility services; and

c.Telecommunications, sensory, and other technological aids and devices;

7.If the individual attends an in-state public institution, vocational rehabilitation funding for tuition, room and board, books, supplies, transportation, and incidentals for a full-time student will be based on the following:

a.The estimated financial need as stated on the award letter from the financial aid office;

b.The unmet need as calculated by the division;

c.The results of the budget assessment conducted by the division; and

d.Total aid from all sources may not exceed the school's budget as determined by the financial aid office;

8.If the individual chooses to attend a private in-state or an out-of-state institution when the coursework is available in state, the division will not fund more than it would at an in-state public institution;

9.If, because of the individual's vocational impediment or vocational goal, the only available postsecondary training is at an in-state private or out-of-state institution, the division may fund more than it would at an in-state public institution;

10.Funding for tuition and books for a part-time student may not exceed the financial aid office estimated financial need. For an individual not taking sufficient credit hours to apply for financial aid, the limit is the North Dakota university system rate per credit hour;

11.An individual shall maintain a grade point average that meets the school's requirement for graduation and shall otherwise demonstrate progress toward meeting the goal of the individualized plan for employment. If the individual is placed on academic probation, continued funding is dependent on the approval of the regional vocational rehabilitation administrator;

12.Participation in the cost of graduate study is determined on a case-by-case basis if a suitable vocational goal is otherwise unachievable; and

13.Expenditure policies in subsections 1 through 9 do not apply to vocational technical training programs not participating in a federal financial aid program. If comparable training is available through a program that does participate in a federal financial aid program, vocational rehabilitation costs shall not exceed the costs for attendance in that program.

N.D. Admin. Code 75-08-01-31 On-the-job training

When the division provides on-the-job training, there must be a written agreement among the individual, counselor, and employer. The agreement must state the areas of training, the hourly wage which must comply with state and federal wage and hour laws, responsibility for workers' compensation coverage, expected results of the training, and any other conditions of employment.

N.D. Admin. Code 75-08-01-32 Closure due to ineligibility

1.The division shall close the individual's case as ineligible if the individual has no disability, no substantial impediment to employment, or does not require services to achieve an employment outcome. Closure for ineligibility under these circumstances requires:

a.The opportunity for the individual or the individual's representative to participate in the closure decision;

b.Written notification of the closure decision and reasons for the decision;

c.Written notification of mediation, appeal rights, and informal review, including the name and address of the division's chief of field services with whom an appeal may be filed, and written notification of the availability of and how to contact the client assistance program;

d.An individualized plan for employment amendment if appropriate;

e.Documentation of ineligibility in the record of service that identifies the reasons for closure, dated and signed by a qualified rehabilitation professional employed by the division; and

f.Referral to other agencies and community rehabilitation programs as appropriate.

2.The division shall close the individual's case, if there is clear and convincing evidence, after trial work experiences or after a period of service provision under an individualized plan of employment that the individual with disabilities is incapable of benefiting from vocational rehabilitation services in terms of achieving an employment outcome due to the severity of the individual's disabilities. The division shall provide the following when it closes a case due to ineligibility under these circumstances:

a.The opportunity for the individual or the individual's representative to participate in the closure decision;

b.Written notification of the closure decision and reasons for the decision;

c.Written notification of informal review, mediation, and appeal rights, including the address of the division's chief of field services with whom an appeal may be filed, and written notification of the availability of, and how to contact, the client assistance program;

d.An individualized plan for employment amendment if appropriate;

e.Review of the ineligibility determination within twelve months. A review is not required in situations in which the individual refuses it, the individual is no longer present in the state, the individual's whereabouts are unknown, or the individual's medical condition is rapidly progressive or terminal;

f.Documentation of ineligibility in the record of service that identifies the reasons for closure, dated and signed by a qualified rehabilitation professional employed by the division; and

g.Referral to other agencies and community rehabilitation programs as appropriate.

N.D. Admin. Code 75-08-01-33 Closure for reasons other than ineligibility

The division shall close a case when an individual is unavailable during an extended period of time for an assessment to determine eligibility and vocational rehabilitation needs or when an individual is unavailable for an extended period to participate in planned vocational rehabilitation services. The division shall make good-faith efforts to contact the individual and to encourage the individual's participation. Closure under these circumstances requires:

1.Documentation of the rationale for closure in the record of service;

2.Written notification of the closure decision;

3.Written notification of mediation, appeal rights, and informal review, including the name and address of the division's chief of field services with whom an appeal may be filed, and written notification of the availability of and how to contact the client assistance program; and

4.An individualized plan for employment amendment if appropriate.

N.D. Admin. Code 75-08-01-34 Closure for an individual determined to be rehabilitated

1.An individual is determined to be rehabilitated if the individual has maintained suitable employment for at least ninety calendar days. The individual's record of service must contain documentation that the division has:

a.Determined that the individual is eligible;

b.Provided an assessment for eligibility and determination of vocational rehabilitation needs;

c.Provided counseling and guidance;

d.Provided appropriate and substantial vocational rehabilitation services in accordance with the individualized plan for employment;

e.Determined that the individual has maintained suitable employment for at least ninety calendar days and that the individual and counselor view the employment and the individual's performance in that employment as satisfactory;

f.Determined that the employment is in an integrated setting;

g.Provided an opportunity for the individual's involvement in the closure decision;

h.Reassessed the need for and informed the individual of the purpose and availability of postemployment services, when necessary; and

i.Provided written notification of mediation, appeal rights, and informal review, including the name and address of the division's chief of field services with whom an appeal may be filed, and written notification of the availability of and how to contact the client assistance program.

2.An individual in supported employment is determined rehabilitated when:

a.The individual has substantially met the goals and objectives of the individual's individualized plan for employment;

b.Extended services are immediately available to preclude any interruption in the provision of the ongoing support needed to maintain employment;

c.The individual has maintained employment for at least ninety days after the transition to extended services; and

d.The employment is in an integrated setting.

N.D. Admin. Code 75-08-01-35 Annual review of individuals compensated below federal minimum wage. lf an individual achieves an employment outcome in which the individual is compensated in accordance with section 14(c) of the Fair Labor Standards Act [29 U.S.C. 214(c)] or the division closes the record of services of an individual in extended employment on the basis the individual is unable to achieve an employment outcome due to severity of the individual's disabilities, the division shall document the results of semiannual and annual reviews of the individual's progress and interest to obtain employment at or above the federal minimum wage

N.D. Admin. Code 75-08-01-36 Pre-employment transition services

The division shall provide or make available the following pre-employment transition services:

1.Job exploration counseling;

2.Work-based learning experiences, which may include in-school or after school opportunities, or experience outside the traditional school setting, which is provided in an integrated environment in the community to the maximum extent possible;

3.Counseling on opportunities for enrollment in comprehensive transition or postsecondary educational programs at institutions of higher education;

4.Workplace readiness training to develop social skills and independent living; and

5.Instruction in self-advocacy, which may include peer mentoring.

History

• History: Effective January 1, 2019.

N.D. Admin. Code 75-08-01-37 Vocational rehabilitation determinations - Administrative review procedures - Appeals

1.As used in this section:

a."Claimant" means an applicant or eligible individual who is dissatisfied with any determination made by the division that effects the provisions of vocational rehabilitation services and who has made a timely request for review of the determination.

b."Party" or "parties" refers to the division and to a claimant.

c."Request for review" means a request for informal review, mediation, or an appeal under this section.

2.The division shall inform each individual applying for or receiving vocational rehabilitation services of the availability of mediation services, the name and address of the division's chief of field services, the manner in which a mediator may be selected, and the availability of the client assistance program to assist the individual during mediation sessions. The division shall provide the right to mediation notice at the time the:

a.Individual applies for vocational rehabilitation services;

b.Individual is assigned to a category set forth in section 75-08-01-23;

c.Individualized plan for employment is developed; and

d.Whenever the vocational rehabilitation services for an individual are reduced, suspended, or terminated.

3.The division shall inform each individual applying for or receiving vocational rehabilitation services of the appeals procedure, the name and address of the division's chief of field services, the manner in which an impartial hearing officer may be selected, and the availability of the client assistance program. The division shall provide the right to appeal notice at the time the:

a.Individual applies for vocational rehabilitation services;

b.Individual is assigned to a category set forth in section 75-08-01-23;

c.Individualized plan for employment is developed; and

d.Whenever the vocational rehabilitation services for an individual are reduced, suspended, or terminated.

4.The division shall make reasonable accommodation of the individual's disability in the conduct of the process that is undertaken to review the determination with which the claimant is dissatisfied.

5.Nothing in this chapter may be construed to forbid any informal, mutually consensual meetings or discussions between the individual and the division.

6.A claimant who is dissatisfied with any determination made by the division that affects the provision of vocational rehabilitation services may request a timely review of that decision to the division, by requesting an informal review, mediation or appeal hearing. A request for review is timely if the filing date of the request is no more than thirty days after notice of the determination with which the claimant is dissatisfied. If appropriate, any request for review may be made through claimant's authorized representative.

7.A claimant's appeal may not result in suspension, reduction, or termination of vocational rehabilitation services pending resolution of claimant's appeal unless:

a.The claimant or, in appropriate cases, the claimant's authorized representative, requests a suspension, reduction, or termination of services; or

b.There is evidence fraud has occurred or the vocational rehabilitation services were obtained through misrepresentation, collusion, or criminal conduct by claimant or claimant's authorized representative.

8.A claimant may request an informal review to resolve the decision under dispute without mediation or an appeal hearing. A claimant's request for informal review does not prohibit claimant of the right to an appeal hearing or mediation.

a.A claimant may not be required to go through an informal review prior to, or instead of, an appeal hearing.

b.A written request for an informal review must be made by claimant to division within thirty days of the determination with which claimant is dissatisfied.

c.The informal review must be conducted by either the division's chief of field services, or a division employee appointed by the chief of field services, who has had no prior involvement in the case.

d.An informal review must be conducted within fifteen days of the initial request unless both parties agree additional time is necessary. Informal review may not delay an appeal hearing if one has been requested. The appeal hearing must be conducted within sixty days of the claimant's request for review of a determination made by division with which claimant is dissatisfied, unless the division and the claimant agree to a specific extension of time.

e.The informal review process, if completed, must result in a decision by the division regarding the division's determination under dispute. The division shall notify claimant by writing of the decision within ten days of the informal review, unless circumstances require additional time.

f.If the informal review does not resolve the issue, the claimant, or authorized representative, may request an appeal hearing or mediation. The claimant shall notify division within fifteen days of the informal review decision that the claimant wishes to proceed with mediation or an appeal hearing.

9.The claimant may request mediation by a qualified and impartial mediator as a means to resolve a dispute with a decision by the division. Both parties must agree to the request. The claimant may bring an authorized representative to assist during the mediation process. A claimant's request for mediation does not prohibit claimant of the right to an appeal hearing.

a.The request for mediation must be submitted, in writing, to the division within thirty days of the disputed decision, or within fifteen days of issuance of the informal review decision. The request shall identify the decision being disputed, why it is being disputed, and what solution is requested.

b.A qualified and impartial mediator arranged by the division, pursuant to written division policy, must be provided at no cost to the claimant. Mediation sessions must be held in a location and manner convenient to the claimant and the division.

c.The claimant or, if appropriate, the claimant's authorized representative, must be given the opportunity to submit evidence and other information that supports the claimant's position.

d.Mediation may not delay the claimant's right to pursue an appeal hearing unless both parties agree additional time is necessary. The appeal hearing must be conducted within sixty days of the claimant's request for review of a determination made by division with which claimant is dissatisfied, unless the division and the claimant agree to a specific extension of time.

e.If an agreement is reached pursuant to mediation, the consensus reached by both parties must be documented in writing by the mediator and provided to both parties.

Each party shall sign the agreement, which indicates agreement with its terms and a commitment to fulfill each party's respective responsibilities. If agreement on all issues is reached, the parties shall withdraw any pending informal review or appeal hearing request.

f.At any point in the mediation process, either party may elect to terminate mediation.

g.If mediation is not successful, the claimant may request an appeal hearing regarding the decision under dispute.

h.Discussions that occur during the mediation process are confidential and may not be used as evidence in any subsequent proceedings.

i.Costs of mediation must be paid by the division. The division is not required to pay for legal or other representation for claimant.

10.A claimant may request an appeal hearing to resolve the decision under dispute without having requested or engaging in mediation or an informal review.

a.Written request for an appeal hearing must be made to division within thirty days of the determination with which the claimant is dissatisfied.

b.A hearing by an impartial hearing officer selected by the division must be conducted within sixty days of the claimant's request for review of a determination made by the division with which claimant is dissatisfied, unless resolution is achieved before that time, or the parties agree to an extension.

c.The claimant or, if appropriate, the claimant's authorized representative, must be given the opportunity to present witnesses during the hearing and to examine all witnesses and other relevant sources of information and evidence.

d.The impartial hearing officer shall:

(1)Make a decision based on federal vocational rehabilitation regulations and state regulations and policies consistent with federal requirements; and (2)Provide to the claimant or, if appropriate, the claimant's authorized representative, and to the division a full written report of the findings and grounds for the decision within thirty days of the completion of the hearing.

e.The hearing officer's decision is final.

History

• History: Effective January 1, 2019; amended effective January 1, 2023.
• Law Implemented: NDCC 50-06.1-02, 50-06.1-04, 50-06.1-10

Article 75-09.1 Substance Abuse Treatment Programs

Chapter 75-09.1-01 General Standards for Substance Abuse Treatment Programs

N.D. Admin. Code 75-09.1-01 General Standards for Substance Abuse Treatment Programs

ARTICLE 75-09.1

SUBSTANCE ABUSE TREATMENT PROGRAMS

Chapter 75-09.1-01General Standards for Substance Abuse Treatment Programs 75-09.1-02Clinically Managed Low-Intensity Residential Care - Adult ASAM Level III.1 75-09.1-02.1Clinically Managed Low-Intensity Residential Care - Adolescent ASAM Level lll.1 75-09.1-03Clinically Managed High-Intensity Residential Care - Adult ASAM Level lll.5 75-09.1-03.1Clinically Managed Medium-Intensity Residential Care - Adolescent ASAM Level lll.5 75-09.1-04Medically Monitored Intensive Inpatient Treatment - Adult ASAM Level lll.7 75-09.1-04.1Medically Monitored High-Intensity Inpatient Treatment - Adolescent ASAM Level lll.7 75-09.1-05Partial Hospitalization - Day Treatment - Adult ASAM Level ll.5 75-09.1-05.1Partial Hospitalization - Day Treatment - Adolescent ASAM Level ll.5 75-09.1-06Intensive Outpatient Treatment - Adult ASAM Level II.1 75-09.1-06.1Intensive Outpatient Treatment - Adolescent ASAM Level ll.1 75-09.1-07Outpatient Services - Adult ASAM Level l 75-09.1-07.1Outpatient Services - Adolescent ASAM Level l 75-09.1-08Social Detoxification ASAM Level lll.2-D 75-09.1-09DUI Seminar ASAM Level 0.5 75-09.1-10Licensing and Treatment Standards for Opioid Treatment Programs 75-09.1-11Substance Use Disorder Treatment Voucher System 75-09.1-12Licensing Standards for Medication Units

CHAPTER 75-09.1-01

GENERAL STANDARDS FOR SUBSTANCE ABUSE TREATMENT PROGRAMS

Section 75-09.1-01-01Definitions 75-09.1-01-02Application for License and Notice of Address Change 75-09.1-01-03Provisional and Unrestricted License 75-09.1-01-04License Report Procedures 75-09.1-01-05Program Authority and Administration 75-09.1-01-06Information Management 75-09.1-01-07Personnel Administration 75-09.1-01-08Fiscal Management 75-09.1-01-09Physical Facilities 75-09.1-01-10Health and Safety Program 75-09.1-01-11Infection Control 75-09.1-01-12Transportation 75-09.1-01-13Intake and Orientation 75-09.1-01-14Assessment 75-09.1-01-15Individual Treatment Plan 75-09.1-01-16Differences in Dimensional Criteria for Adolescents and Adults 75-09.1-01-17Criteria for Programs That Treat Adolescents and Adults 75-09.1-01-18Admission Criteria 75-09.1-01-19Continued Stay Criteria 75-09.1-01-20Discharge and Transfer Criteria 75-09.1-01-21Referral Criteria 75-09.1-01-22Client Records 75-09.1-01-23Client Rights 75-09.1-01-24Quality Assurance 75-09.1-01-25Accreditation as a Basis for Licensing 75-09.1-01-26Sanctions 75-09.1-01-27Appeals 75-09.1-01-01. Definitions.

As used in chapters 75-09.1-01, 75-09.1-02, 75-09.1-02.1, 75-09.1-03, 75-09.1-03.1, 75-09.1-04, 75-09.1-04.1, 75-09.1-05, 75-09.1-05.1, 75-09.1-06, 75-09.1-06.1, 75-09.1-07, 75-09.1-07.1, and 75-09.1-08:

1."ASAM patient placement criteria" means the third edition, revised, of the patient placement criteria of the American society of addiction medicine.

2."Department" means the North Dakota department of human services.

3."DSM" means the fifth edition, of the diagnostic and statistical manual of mental disorders published by the American psychiatric association.

4."DUI" means an offense of driving or being in actual control of a motor vehicle while under the influence of alcohol or controlled substances, or both.

5."Program" means a person, partnership, association, corporation, or limited liability company that establishes, conducts, or maintains a substance abuse treatment program for the care of persons addicted to alcohol or other drugs. "Program" does not include a DUI seminar which is governed by chapter 75-09.1-09.

6."Recommendation" means a violation of the rule has occurred, however, on a very limited

basis. A recommendation can also be given when there is general compliance with a rule but the procedures can be strengthened.

7."Type I condition" means a violation of the requirements of any applicable law or regulation has occurred in at least twenty-five percent of the cases reviewed.

8."Type II condition" means habitual noncompliance with the requirements of any law or

regulation including a type l condition that is still found to be occurring during subsequent visits, any illegal act, or any act that threatens the health or safety of the clients.

History: Effective October 26, 2004; amended effective April 1, 2018. 75-09.1-01-02. Application for license and notice of address change.

1.A program must submit to the department an application for a license in the form and manner prescribed by the department.

2.The department will consider an application complete when it has received all required information and documents.

3.The department may declare an application withdrawn if an applicant fails to submit all required documentation within sixty days of notification of incompleteness.

4.A new application for a license must be submitted to the department by a program upon change of ownership or level of care.

5.A program must notify the department of a change of address. 75-09.1-01-03. Provisional and unrestricted license.

1.Provisional license.

a.Upon approval of an application, the department may issue a provisional license for the operation of a program.

b.A provisional license is in effect for the period specified in the license not to exceed one year from the date of issuance.

c.Prior to changing a provisional license to an unrestricted license, the department shall conduct an onsite review to determine that the program is in compliance with the standards contained in this article.

2.Restricted license.

a.A restricted license is in effect for the period specified in the license not to exceed ninety days.

b.Prior to removing a restriction on a license and issuing an unrestricted license, the department shall conduct an onsite review to determine that the program is in compliance with the standards contained in this article.

3.An unrestricted license is in effect for the period specified in the license not to exceed two years.

4.A license may not be transferred and is valid only for those programs indicated on the license.

5.The department shall conduct continued license reviews for programs with unrestricted licenses on at least a biennial basis to determine continued compliance with the standards contained in this article.

6.The department may conduct scheduled or unscheduled visits at times other than routine license reviews.

7.The program must display its current license in a place that is conspicuous to the public. 75-09.1-01-04. License report procedures.

1.Within thirty days of an onsite review of a program, the department must send a license report to the program that was reviewed.

2.A license report must contain a description of the programs and services reviewed, strengths, concerns, recommendations, and a description of any existing type l or type ll conditions.

3.A license report shall be retained by the department while the program that is the subject of the report is licensed and for at least seven years from the time the program is no longer licensed. 75-09.1-01-05. Program authority and administration.

1.A program shall identify to the department an individual or entity that is responsible for the conduct of the program.

2.A program shall implement a written policy governing the operation of services including admission procedures, discharge procedures, client grievance procedures, scope of service, treatment plans, staffing patterns, outside referrals, and continued or followup treatment.

3.The program shall conform to applicable legal requirements and regulations of all governmental and legally authorized agencies under whose authority it operates, to include accessibility, affirmative action, equal employment opportunity, health and safety, and licensure.

4.A program shall be responsible for providing qualified personnel, facilities, and equipment needed to carry out the goals and objectives and meet the needs of the clients. 75-09.1-01-06. Information management.

1.A program must collect data as prescribed by the department, including information necessary for federal and state grant statistical requirements and fiscal information such as fee structure.

2.A program must apply appropriate safeguards to protect client records regardless of whether the records are electronically or manually maintained. These safeguards must include:

a.Limiting record access to authorized individuals;

b.Suitably maintaining a record indexing and filing system to preserve confidentiality;

c.Knowing the essential record location at all times;

d.Securing and reasonably protecting records against loss, damage, and inappropriate access; and

e.Protecting electronic records by routine backup.

3.A program must maintain a policy so that files are not needlessly retained or prematurely discarded. The retention of records of clients and administrative records must be guided by professional and state research, administrative, and legal requirements. 75-09.1-01-07. Personnel administration.

1.A program shall employ sufficient and qualified staff members to meet the needs of the clients.

2.A program shall have a written policy regarding how it verifies the background, qualifications, and credentials of staff members, volunteers, and consultants, and how it acts upon the results of the information received.

3.A program shall document the nature and extent of the involvement of any individual who provides consultation or volunteer service to the program.

4.A program shall maintain a personnel file for each employee that contains:

a.A written job description;

b.The qualifications, supervisor, employees supervised, and the duties of each employee; and

c.Performance evaluations dated and regularly conducted at least annually for continuing appropriateness.

5.A program shall implement a written employment policy related to nondiscrimination with regard to employment, pay, place of work, or promotion because of age, creed, disability, gender, national origin, or race. 75-09.1-01-08. Fiscal management.

1.When fees for services are charged, a program shall have an established schedule of fees that is available in printed form and is applied equitably to all clients.

2.A program shall implement a policy that prohibits fee splitting with other programs, agencies, entities, or individuals as consideration for referral of the client to be served.

3.If a program is responsible for funds or personal possessions that belong to a client, the program shall implement a procedure for identification and accountability for those funds. 75-09.1-01-09. Physical facilities.

1.All locations owned, rented, leased, or occupied by a program must meet standards of the state fire marshal or an equivalent code or provide a letter from the inspecting authority stating that an inspection was not done and the reason why.

2.A program shall provide suitable locations within the physical plant for such activities as interviews, treatment services, dictation, staff conferences, and psychometric testing to provide for confidentiality of client information.

3.A program shall provide adequate toilet and lavatory facilities. 75-09.1-01-10. Health and safety program.

1.A program shall maintain health and safety policies and procedures.

2.A program shall implement a written emergency plan that addresses provisions for dealing with bomb threats, fires, medical emergencies, natural disasters, and power failures.

3.A program shall make readily available first-aid facilities, equipment, and supplies. A program shall have:

a.At least one staff member certified in basic first aid and in basic cardiac life support. At least one employee certified in cardiopulmonary resuscitation must be present at the program during all hours of program operations. The number of other certified individuals present must be based on the needs of the clients and the type of services provided; and

b.A program must implement a written plan to assist a client in receiving additional care beyond first aid when it is needed. An outline of the plan must be posted where first-aid supplies are kept and at other appropriate places in the physical plant.

4.Designated staff members shall be responsible for the safety of clients and personnel under their supervision in the event of emergency or emergency drill.

5.A program shall implement a written plan for reporting all incidents, including serious illnesses, injuries, and alleged cases of abuse or neglect.

6.A program shall implement a written policy that addresses the use of smoking products. The policy must address the needs of the clients, personnel, visitors, and it must comply with local, state, and federal laws.

7.A program shall implement a written policy that is in conformance with applicable legal requirements to govern the safe administration, handling, storage, and disposal of medications. A program must document appropriate training of its employees according to state laws. 75-09.1-01-11. Infection control.

1.A program shall implement a written infection control policy that complies with all applicable laws and regulations. The program must review this written policy at least annually and at any other times as necessary. The policy must provide screening or referral procedures and must include a documented verbal assessment of high-risk behaviors for tuberculosis, hepatitis, HIV, and other blood-borne and sexually transmitted diseases.

2.A program shall implement a practical system developed for reporting, evaluating, and maintaining records of infections among clients.

3.A program shall implement a written plan for the instruction of new employees in the importance of infection control and personal hygiene and their responsibility in the infection control program.

4.A program shall take universal precautions in the handling of all bodily fluids and implement written policies for the handling of bodily fluids. 75-09.1-01-12. Transportation.

If a program provides client transportation services, whether by volunteers or by contract, the program shall provide evidence to the department that the program maintains state minimum liability insurance coverage and that any employee who provides transportation has a current and appropriate driver's license. 75-09.1-01-13. Intake and orientation.

1.A program shall implement written criteria for client admission for each of the program's levels of care based on the DSM and the ASAM patient placement criteria and policies for client admission.

2.A program shall implement a written policy for orientation of the client and the family.

3.A program shall explain the rights and responsibilities of persons served and grievance and appeal procedures. A program shall post in a place that is conspicuous to the public these rights and responsibilities.

4.A program shall implement a written policy regarding provision of services for clients who do not have the ability to pay. 75-09.1-01-14. Assessment.

1.When conducting an assessment, a program shall administer instruments or conduct clinical interviews or both sufficient to gather enough information to substantiate or rule out a client's diagnosis.

2.An assessment must include adequate assessment in at least each of the following areas: withdrawal potential; medical conditions and complications; psychiatric, including emotional, behavioral, and cognitive functioning and the presence of co-occurring mental health problems; employment; alcohol, tobacco, and other drug use; legal; family and social; readiness to change; relapse, continued use, and continued problem potential; and recovery environment.

3.When clinically appropriate, previous diagnostic, medical, treatment, and training reports that impact the development of an individual must be:

a.Requested from appropriate current or previous providers and referral sources with signed, informed consent to release of information forms in compliance with applicable laws and regulations; and

b.Integrated into the assessment process.

4.A program shall provide requested information within a reasonable time period when the request is accompanied by an appropriate consent to release of information.

5.A program's report from the assessment process must clearly describe the diagnostic impressions based on a five-axis assessment of the DSM and recommendations for treatment based on the ASAM patient placement criteria.

6.Based on the information gathered in the assessment, a program's report should identify and prioritize problems by severity, which should then be addressed in the individual treatment plan with the involvement of the client.

7.A program shall keep progress notes that reflect the client's progress or lack of progress in measurable and behavioral language associated with treatment plan objectives. 75-09.1-01-15. Individual treatment plan.

1.A program shall implement policies that ensure the services provided to each client are coordinated and integrated and address goals that reflect the client's informed choice.

2.A program shall develop, with each client's participation, a comprehensive, coordinated, individualized plan based on referral and assessment information about the client's strengths, abilities, needs, functional deficits, and preferences.

3.A program shall develop and document an individual treatment plan that is as comprehensive as possible given the time in treatment and the client's condition. The individual treatment plan shall be developed according to the following schedule:

a.By the end of the first day for a client in a social detoxification program;

b.By the end of the third session for a client receiving outpatient services or intensive outpatient treatment; and

c.By the end of the fifth working day for a client receiving day treatment, inpatient, or low-intensity and high-intensity residential treatment.

4.A program shall implement a written policy that specifies instances in which signed, informed consent for services must be obtained and retained. The policy must be guided by professional and legal requirements.

5.A program must regularly analyze with the active involvement of the client the client's progress toward the accomplishment of goals and modify goals and services as a result of any occurrence that is likely to impact the client's treatment progress. A program must perform such an analysis no less often than:

a.Once every two months or every eight sessions, whichever comes first, for a client receiving outpatient services;

b.Once a month for a client receiving low-intensity residential treatment;

c.Once every two weeks for a client receiving intensive outpatient treatment;

d.Once each week for a client receiving high-intensity residential, inpatient, or partial hospitalization or day treatment; and

e.Once during the first six months and annually thereafter for a client receiving chronic care and maintenance services.

6.Counseling or assessment regarding an individual's use or abuse of alcohol or a controlled substance must be provided by a licensed addiction counselor as required by North Dakota Century Code chapter 43-45. The provision of case management and educational services do not need to be performed by a licensed addiction counselor. A licensed addiction counselor must be present in all team meetings at which level of care and treatment planning decisions are made regarding a client receiving or referred for substance abuse treatment services.

7.Services essential to the attainment of a client's goals and objectives must be provided or it must be documented that attempts were made to provide such services either through staff members or through formal affiliation or consultation arrangements with or referral to appropriate agencies or individuals. 75-09.1-01-16. Differences in dimensional criteria for adolescents and adults.

1.If a program plans to admit an individual age seventeen or younger, the program shall implement a written policy regarding how to determine when it is appropriate to place an adolescent in an adult program. The policy must address the safety and supervision of clients in that program. The decision to determine whether a person seventeen years of age or younger is appropriately served in an adult rather than an adolescent program must be based on clinical judgment and other factors such as:

a.History of sexual acting out;

b.History of violence;

c.History of running away;

d.Living status such as whether the adolescent is living independently or with parents;

e.School status;

f.Employment status;

g.Marital status;

h.Ability to act responsibly;

i.Level of emotional maturity;

j.Level of cognitive development;

k.Level of parental or family support; and

l.Current mix of population in the adult milieu.

2.A program shall document in the client record the clinical justification for its decision to treat an individual age seventeen years or younger in an adult program.

3.A program shall maintain a list of all potential adolescent admissions with documentation of those admitted to the program and those denied admission to the adult program due to failure to meet the requirements of this section.

4.The department may issue the designation of "adolescent-adult combined program" to the license of any program that intends to serve, in an adult program, adolescents who screen according to the requirements of this section. In order to receive such a designation, the program must be in compliance with the other requirements of this article. The designation may be added to any type of license described in this article with the exception of medically monitored inpatient licenses.

History: Effective October 26, 2004; amended effective July 19, 2005. 75-09.1-01-17. Criteria for programs that treat adolescents and adults.

1.A program shall secure a criminal history record investigation for any employee who works with adolescents.

a.A program shall secure from any employee who may have any contact with an adolescent treated by the program identifying information that is appropriate to accomplish a criminal history record investigation.

b.A program providing services to adolescents that held a license in good standing before the effective date of this section shall complete a criminal history record investigation check for all existing employees within thirty days of the effective date of this section.

c.A program may not allow an employee to begin work until the criminal history record investigation is complete and it shows fitness to work with adolescents. A program may not employ, in any capacity that involves or permits contact between the employee and any adolescent treated by the program, an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:

(1)An offense described in North Dakota Century Code chapter 12.1-16, homicide; 12.1-17, assaults - threats - coercion - harassment; or 12.1-18, kidnapping; North Dakota Century Code section 12.1-20-03, gross sexual imposition; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer; 12.1-20-06, sexual abuse of wards; 12.1-20-06.1, sexual exploitation by therapist; 12.1-20-07, sexual assault; 12.1-22-01, robbery; or 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; North Dakota Century Code chapter 12.1-27.2, sexual performances by children; or North Dakota Century Code section 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; or 12.1-31-05, child procurement; or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the enumerated North Dakota statutes; or (2)An offense, other than an offense identified in paragraph 1, if the department determines that the individual has not been sufficiently rehabilitated or the offense has a direct bearing on the program's ability to safely serve adolescents treated there. The department will not consider a claim that the individual has been sufficiently rehabilitated until any term of probation, parole, or other form of community corrections or imprisonment, without subsequent charge or conviction, has elapsed. An offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction, is prima facie evidence of sufficient rehabilitation.

2.A program providing services to adolescents must employ staff that is knowledgeable about adolescent development or have experience in working with and engaging adolescents.

3.A program shall provide treatment to meet the level of cognitive development and other needs of an adolescent and must address the adolescent experience, including cognitive, emotional, physical, social, and moral development, in addition to involvement with alcohol and other drugs.

4.A program shall make every reasonable attempt to engage an adolescent's family members or guardian in the adolescent's assessment, treatment, and continuing care.

5.A program shall assure that all interactions between adults and adolescents are supervised where adults receive treatment at a program that also provides an adolescent-specific program. 75-09.1-01-18. Admission criteria.

A program shall not admit a client into a substance abuse treatment program unless the client:

1.Meets diagnostic criteria for a substance use disorder as described in the DSM; and

2.Meets specifications in each of the ASAM dimensions required for the recommended level of care. 75-09.1-01-19. Continued stay criteria.

For a client to remain in the current level of care placement, a program must document that the client:

1.Is making progress but has not yet achieved the goals articulated in the individualized treatment plan and continued treatment at the present level of care is necessary to permit the client to continue to work toward treatment goals.

2.Is not yet making progress but has the capacity to resolve problems and is actively working toward the goals articulated in the individual treatment plan.

3.New problems have been identified that are appropriately treated at the present level of care that is the least intensive in which these problems can be addressed effectively. 75-09.1-01-20. Discharge and transfer criteria.

Before a program may transfer or discharge a client, the client must have:

1.Achieved the goals articulated in the client's individualized treatment plan and resolved the problems that justified admission to the present level of care with progress evaluated and a determination has been made that the client is ready for a less intensive level of care or independent living.

2.Been unable to resolve the problems that justified admission to the present level of care despite amendments to the treatment plan and no further progress is likely indicating the need for another level of care or type of service.

3.Demonstrated a lack of capacity to resolve problems indicating the need for another level of care or type of service.

4.Experienced an intensification of problems or has developed new problems and can be treated effectively only at a more intensive level of care. 75-09.1-01-21. Referral criteria.

1.A program shall implement a written policy for referral and recommendations for services not available through the program. All referrals and recommendations must be made part of the treatment or discharge plan.

2.A program must implement a written policy that verifies appropriate referral during and after treatment.

3.A program must secure the written consent of the client or a client's legal representative before releasing any confidential information about that client and the release of information must conform to the following:

a.Any information released must be limited to that necessary for the individual or agency requesting the information or for the provider to whom the client is referred to address the

purpose of the referral;

b.A program must stamp or write on the records that are being released that any further disclosure of information is prohibited unless it is authorized by the client or the client's legal representative;

c.A program's consent to release of information form must conform to applicable laws and regulations and must identify:

(1)The information to be released;

(2)The form in which the information is to be released such as written, verbal, audio, video, or electronic;

(3)To whom the information is to be released;

(4)The purpose of the information to be released;

(5)The name of the client and the client's date of birth;

(6)The date on which the consent to release of information is signed;

(7)The length of time, event, or condition for which the consent to release of information is authorized or the event or condition upon which the consent may be withdrawn; and (8)The signature of the client or legal representative; and

d.A program shall give to the client or client's legal representative a copy of the signed consent to release of information. 75-09.1-01-22. Client records.

1.A program shall prepare and maintain a single record for each client admitted to the program so as to communicate the appropriate case information. This information must be in a form that is clear, concise, complete, legible, and current.

2.A program shall implement a written policy addressing the process by which a client may gain access to the client's own record.

3.If duplicates of information or reports from the single record of a client exist or if working materials are maintained, such material must:

a.Not be a substitute for the single record;

b.Be secondary to the recording of information with the single record of the client receiving first priority; and

c.Record information of value to the specific service, such as daily attendance, raw scores of tests, and similar data.

4.A program must apply appropriate safeguards to protect active and closed confidential written, electronic, and audiovisual records and to minimize the possibility of loss or destruction in the following manner:

a.The information in active and closed records must be organized in a systematic fashion.

Manual systems must provide for affixing active records to record jackets;

b.The location of the records of clients and the nature of the information contained therein must be controlled from a central location;

c.A program employee must be responsible for the control of records of clients and for the implementation of the policies pertaining to records of clients;

d.Access to records of clients and electronically generated documents must be limited to the members of the professional staff who are providing or supervising direct services to the client and such other individuals as may be administratively authorized;

e.The program must maintain an indexing and filing system for all manual and electronic records of clients;

f.The program must secure records and take reasonable steps to protect the records against fire, water damage, and other hazards;

g.The program must follow routine procedure for backup of data files for electronic systems; and

h.The program must implement a policy that defines file access control procedures.

5.Client records must include:

a.Identification data;

b.The name and address of the legal representative, conservator, guardian, and representative payee of the client;

c.Pertinent history, a diagnostic assessment on all five axes of the DSM, a six-dimension assessment of the current version of the ASAM patient placement criteria, disability, presenting need, functional limitation, client strengths, and desired outcomes and expectations;

d.Prescribed medications;

e.Relevant medical information;

f.Reports of assessment and individual treatment planning;

g.Signed and dated progress notes describing in measurable and behavioral terms the client's progress toward the attainment of the client's treatment plan objectives;

h.Reports from referring sources;

i.Reports of service referrals;

j.Reports from outside consultants;

k.Designation of the case manager, licensed addiction counselor, and other staff for the client;

l.Evidence of the direct involvement of the client in the decisionmaking process related to the client's program;

m.Reports of team conferences;

n.Reports of family conferences;

o.The individual plan of the client, including the overall plan and the plans for specific services and signature of the client or other documentation of the client's involvement in the plan;

p.References to audiovisual records;

q.Correspondence pertinent to the client;

r.Signed and dated release forms;

s.Transfer summary describing in measurable and behavioral terms a client's move from one level of care to another;

t.Discharge summary describing in measurable and behavioral terms the client's progress and attainment of treatment plan goals and criteria for discharge. When the client is transferred, the discharge summary must include a discharge plan which identifies the treatment goals not yet achieved as well as any problems that have been deferred for treatment by a subsequent provider; and

u.If admission, ongoing care, or discharge criteria as described by the department have not been met, the provider must document the grounds for placement, ongoing care, or discharge decisions.

6.A program shall implement a written policy that specifies time frames for entries into the records of a client, such as clinical information, critical incidents or interactions, progress notes, and discharge summaries. A program must enter progress notes into client records according to the following schedule:

a.Shift entries for inpatient clients;

b.Daily entries for clients in day treatment;

c.Weekly entries for intensive outpatient clients;

d.Weekly entries for clients in outpatient services seen once or more a week but monthly for those clients seen less than once a week;

e.Weekly entries for clients in clinically managed high-intensity residential care; and

f.Monthly for clients in clinically managed low-intensity residential care. 75-09.1-01-23. Client rights.

1.A program must assure the right of each client to:

a.Be treated with respect and dignity;

b.Be treated without discrimination based on physical or mental disability;

c.Be treated without regard to race, creed, national origin, sex, or sexual preference;

d.Have all information handled confidentially in accord with applicable laws, regulations, and standards;

e.Receive notice of federal confidentiality requirements;

f.Not be subject to physical, emotional, or sexual abuse or harassment by employees or another client;

g.Have services for male or female clients reflecting the special needs of each gender and to be provided equivalent, clearly defined, and well-supervised sleeping quarters and bath accommodations for male and female clients;

h.Be provided a reasonable opportunity to practice the religion of the client's choice insofar as the practice does not interfere with the rights of other clients or the treatment program;

i.Have the right to be excused from any religious practice;

j.Have access to an established client grievance procedure; and

k.Be informed of client rights in a language the client understands.

2.A program shall protect the fundamental human, civil, constitutional, and statutory rights of each client.

3.A program shall implement a written policy that describes the rights of clients and the means by which these rights are protected and exercised.

4.As appropriate, the client, the client's family, or the client's legal guardian shall be informed of the client's status if authorized by a client who is fourteen years of age or older.

5.A program shall evaluate for appropriateness any restrictions placed on the rights of individual clients. The program shall document in the client's clinical record the clinical rationale for such restrictions.

6.A program shall implement a written policy stating the form and manner in which a client may file a grievance or an appeal of a program decision. The procedure must be written in language that is understandable to the client and must be provided to the client in a timely manner. 75-09.1-01-24. Quality assurance.

1.A program shall implement an established written system that provides for internal, professional review of the quality and appropriateness of the program of services for the client.

2.A program shall implement a written quality assurance plan and designate an employee to coordinate that plan.

3.A program shall implement a written policy that provides that peer review must occur at least quarterly and must involve a representative sampling of clients served. The review must be conducted irrespective of sources of funding for the clients and the documented results of the review must:

a.Produce a documented list of areas needing improvement and actions taken;

b.Be integrated into the individual planning, plan evaluation, and program management activities for the client;

c.Be administratively used, in conjunction with results of consumer satisfaction surveys, in program evaluation activities, and in organizational planning; and

d.Be reviewed at least annually by the program's administration. 75-09.1-01-25. Accreditation as a basis for licensing.

1.The department shall issue a license to a program that has a current accreditation of a nationally recognized body that reviews and certifies providers of drug and alcohol services.

2.When applying for licensure or renewal licensure, a program must submit to the department proof of accreditation or deemed status in the form of the accreditation agency's most recent review and certification. 75-09.1-01-26. Sanctions.

1.The department may immediately revoke a program's license upon a finding of a type II condition.

2.A program must submit to the department a plan of corrective action within thirty days of a licensure visit when a type I or type II condition has been found. A program will be allowed thirty days to submit to the department a plan of corrective action. A program will be allowed sixty days after the plan is submitted to implement the plan and satisfy a type I condition.

3.The department may conduct another onsite review prior to issuing a license after a program has developed a plan of corrective action of any condition.

4.If the program does not satisfy a condition or develop a plan to satisfy the cited condition within the time frames allowed, the department shall impose a ninety-nine-day suspension of the program's license. At the end of the ninety-nine-day suspension, if the cited condition has been corrected, the department may issue a one-year provisional license to the program. If the program has not corrected the condition, the department shall revoke the provider's license immediately.

5.A program which has had its license revoked is prohibited from submitting a new application to the department for consideration for a license for any program during the three hundred sixty-five days following a license revocation for any type I or type II condition. 75-09.1-01-27. Appeals.

An applicant for or a holder of a license may appeal a decision to deny, suspend, or revoke a license by filing a written appeal with the department within thirty days of written notice of such a decision. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

Chapter 75-09.1-02 Clinically Managed Low-Intensity Residential Care - Adult ASAM Level III.1

N.D. Admin. Code 75-09.1-02 Clinically Managed Low-Intensity Residential Care - Adult ASAM Level III.1

CHAPTER 75-09.1-02

CLINICALLY MANAGED LOW-INTENSITY RESIDENTIAL CARE -

ADULT ASAM LEVEL III.1

Section 75-09.1-02-01Definitions 75-09.1-02-02Provider Criteria 75-09.1-02-03Program Criteria 75-09.1-02-04Admission Criteria 75-09.1-02-01. Definitions.

For the purposes of this chapter:

1."Clinically managed low-intensity residential care" means providing an ongoing therapeutic environment for clients requiring some structured support in which treatment is directed toward applying recovery skills, preventing relapse, improving emotional functioning, promoting personal responsibility, and reintegrating the individual into the worlds of work, education, and family life, adaptive skills that may not have been achieved or have been diminished during the client's active addiction. Such programs must offer at least five hours per week of low-intensity treatment the focus of which will be on issues in ASAM dimensions four, five, six, and three, if appropriate mental health services are available onsite or by contractual arrangement. Clinically managed low-intensity residential care is also designed for the client suffering from chronic, long-term alcoholism or drug addiction and affords an extended period of time to establish sound recovery and a solid support system. The residential component of clinically managed low-intensity residential care may be combined with low-intensity outpatient, intensive outpatient, or day treatment.

2."Program" means a clinically managed low-intensity residential care program. 75-09.1-02-02. Provider criteria.

1.A program shall maintain a safe, comfortable, alcohol-free, and drug-free environment.

2.A program shall provide to clients or help clients gain access to full meal service that meets established nutritional guidelines.

3.A program shall implement written referral procedures and agreements with providers of services to enable clients to receive necessary aftercare, other therapeutic services, vocational rehabilitation, educational instruction, literacy training, and attendance at local support groups.

4.A program shall provide staff twenty-four hours per day.

5.A program shall offer a minimum of five hours a week of professionally directed treatment in addition to other treatment services offered to clients such as partial hospitalization or intensive outpatient treatment. Professionally directed treatment must include two support or group sessions a week for clients.

6.A program shall collaborate with care providers to develop an individual treatment plan for each client with time-specific goals and objectives.

7.A program shall maintain a record of the client's progress and activities in the program. 75-09.1-02-03. Program criteria.

1.A program shall provide services designed to improve a client's ability to structure and organize the tasks of daily living and recovery.

2.A program shall provide educational and informational programming to enhance client recovery.

3.A program shall provide activities to promote a client's social skill development.

4.A program shall provide support group meetings available onsite or transportation assistance to offsite support group meetings.

5.A program shall provide transportation assistance to enable clients to use offsite rehabilitation services. 75-09.1-02-04. Admission criteria.

Before a program may admit a client, the client must:

1.Meet diagnostic criteria for a substance dependence disorder of the DSM; and

2.Meet specifications in each of the six ASAM patient placement criteria dimensions.

Specifically, the client must:

a.Have no signs or symptoms of withdrawal or have withdrawal needs that can be safely managed by the program;

b.Not have a physical condition or complication impacting immediate safety and well-being requiring twenty-four-hour medical or nursing interventions and the client is capable of self-administering any prescribed medications;

c.Not have an emotional, behavioral, or cognitive condition or complication impacting immediate safety and well-being, requiring twenty-four-hour medical or nursing interventions unless in a dual diagnosis program;

d.Be at a stage of readiness to change in which the client requires twenty-four-hour structured milieu, acknowledges the existence of a substance use problem, is capable of self-care, and is sufficiently ready to change or is appropriately placed in a level I outpatient services or level II intensive outpatient services and is receiving clinically managed low-intensity residential care concurrently because of the need for engagement and motivational strategies or requires a twenty-four-hour structured milieu to promote treatment progress and recovery because past motivational strategies on an outpatient treatment have failed or the client is unable to make behavior changes without the support of a structured environment; or has a history of compulsive, relapse-prone chronicity or organic-related difficulties as a result of the client's abuse of alcohol or other drugs;

e.Be in imminent danger of relapse with dangerous emotional, behavioral, or cognitive consequences because of limited coping skills to address relapse triggers and cravings; or because the client is unable to consistently address the substance dependence disorder in spite of understanding it and is at risk in a less structured level of care or without staff support to maintain engagement while transitioning to life in the community; or because of other issues such as postponing immediate gratification and these issues are being addressed concurrently in a level II program; and

f.Require a twenty-four-hour supportive setting because the client is at moderately high risk of physical, sexual, or emotional abuse; or is assessed as being unable to achieve or maintain sobriety at a less intensive level of care because substance use in the client's recovery environment is so endemic; or lacks social contacts or has inappropriate social contacts that jeopardize recovery; or is unlikely to recover because of continued exposure to school, work, or living environment and insufficient resources and skills to maintain an adequate level of functioning; or is in danger of victimization by another; and is able to cope for limited periods of time outside of the twenty-four-hour structure to pursue clinical, vocational, educational, and community activities.

Chapter 75-09.1-02.1 Clinically Managed Low-Intensity Residential Care - Adolescent ASAM Level III.1

N.D. Admin. Code 75-09.1-02.1 Clinically Managed Low-Intensity Residential Care - Adolescent ASAM Level III.1

CHAPTER 75-09.1-02.1

CLINICALLY MANAGED LOW-INTENSITY RESIDENTIAL CARE -

ADOLESCENT ASAM LEVEL III.1

Section 75-09.1-02.1-01Definition 75-09.1-02.1-02Provider Criteria 75-09.1-02.1-03Program Criteria 75-09.1-02.1-04Admission Criteria 75-09.1-02.1-01. Definition.

As used in this chapter "clinically managed low-intensity residential care" means a substance abuse treatment program that provides an ongoing therapeutic environment for clients requiring some structured support in which treatment is directed toward applying recovery skills, preventing relapse, improving emotional functioning, promoting personal responsibility, and reintegrating the client into the world of work, education, and family life, adaptive skills that may not have been achieved or have been diminished during the client's active addiction. Such programs must offer at least five hours per week of low-intensity treatment, the focus of which will be on issues in ASAM dimensions four, five, and six, as well as ASAM dimension three if appropriate mental health services are available onsite or by contractual arrangement. Clinically managed low-intensity residential care is also designed for the adolescent requiring extended treatment to sustain and further therapeutic gains made at a more intensive level of care because of the client's functional deficits such as developmental immaturity, greater than average susceptibility to peer influence, or lack of impulse control. This level is also sometimes warranted as a substitute for or supplement to the deficits in the adolescent's recovery environment such as chaotic home situation, drug-using caretakers or siblings, or a lack of daily structured activities such as school. The residential component of clinically managed low-intensity residential care may be combined with low-intensity outpatient, intensive outpatient, or day treatment. 75-09.1-02.1-02. Provider criteria.

1.A clinically managed low-intensity residential care program shall maintain a safe, comfortable, alcohol-free, and drug-free environment.

2.A clinically managed low-intensity residential care program shall provide to clients a full meal service that meets established nutritional guidelines.

3.A clinically managed low-intensity residential care program shall implement written referral procedures and agreements with providers of services to enable clients to receive necessary aftercare, other therapeutic services, vocational rehabilitation and educational instruction such as general educational development preparation and literacy training and attendance at local support groups for clients not having completed high school.

4.A clinically managed low-intensity residential care program shall provide to an adolescent still enrolled in school onsite staff or onsite or offsite contractors for the provision of accredited educational services or short-term educational services linked to home school designed to maintain current learning.

5.A clinically managed low-intensity residential care program shall provide staff twenty-four hours per day.

6.A clinically managed low-intensity residential care program shall offer a minimum of five hours a week of professionally directed treatment in addition to other treatment services a client may receive such as partial hospitalization or intensive outpatient treatment. Professionally directed treatment must include two support or two group sessions a week.

7.A clinically managed low-intensity residential care program shall collaborate with care providers to develop an individual treatment plan for each client with time-specific goals and objectives.

8.A clinically managed low-intensity residential care program shall maintain a record of each client's progress and activities in the program. 75-09.1-02.1-03. Program criteria.

1.A clinically managed low-intensity residential care program shall provide services designed to improve a client's ability to structure and organize the tasks of daily living and recovery.

2.A clinically managed low-intensity residential care program shall provide educational and informational programming to enhance client recovery.

3.A clinically managed low-intensity residential care program shall provide family and caregiver treatment.

4.A clinically managed low-intensity residential care program shall provide activities to promote a client's social skill development.

5.A clinically managed low-intensity residential care program shall provide to clients support group meetings available onsite or transportation assistance to offsite support group meetings.

6.A clinically managed low-intensity residential care program shall provide transportation assistance to clients so that they may use offsite rehabilitation services. 75-09.1-02.1-04. Admission criteria.

Before a clinically managed low-intensity residential care program may admit a client, the client must:

1.Meet diagnostic criteria for a substance-related disorder of the DSM; and

2.Meet specifications in each of the six ASAM dimensions. Specifically, the client;

a.Must not be in need of detoxification from alcohol or drugs nor have any signs or symptoms of withdrawal that cannot be safely managed by the program;

b.Must not have a physical condition or complication impacting immediate safety or well-being requiring twenty-four-hour medical or nursing interventions and be capable of self-administering any prescribed medications but has a biomedical condition that distracts from recovery efforts and requires limited residential supervision to ensure adequate treatment or to provide support to overcome the distraction; or continued substance use would place the adolescent at risk of serious damage to the client's health because of the biomedical condition or an imminently dangerous pattern of high-risk use;

c.Must not have an emotional, behavioral, or cognitive condition or complication that impacts immediate safety or well-being requiring twenty-four-hour medical or nursing interventions unless in a dual diagnosis program but does have problems in the areas of dangerousness or lethality to self or others; interference with addiction recovery efforts; social functioning; ability for self-care; or course of illness;

d.Must be at a stage of readiness to change in which the client requires limited twenty-four-hour supervision to promote or sustain progress through the stages of change and is cooperative and likely to engage in treatment at this level of care;

e.Is in danger of relapse because of a lack of monitoring or is in danger of relapse because supervision between treatment encounters at a less intensive level of care has been a major barrier to abstinence; recovery skills are not yet sufficient to overcome environmental triggers such as peer pressure; or a history of chronic substance use, repeated relapse, or resistance to treatment predicts continued use or relapse without residential containment;

f.Has been living in an environment in which there is a high risk of neglect or initiation or repetition of physical, sexual, or severe emotional abuse; has a family member or other household member with an active substance use disorder; substance use is endemic in the home environment; has a social network that is too chaotic or ineffective to support or sustain treatment goals; or has logistical impediments such as distance from a treatment facility or lack of transportation that precludes participation at a less intensive level of care; and

g.Is able to cope for limited periods of time outside of the residential structure to pursue clinical, vocational, educational, and community activities.

Chapter 75-09.1-03 Clinically Managed High-Intensity Residential Care - Adult ASAM Level III.5

N.D. Admin. Code 75-09.1-03 Clinically Managed High-Intensity Residential Care - Adult ASAM Level III.5

CHAPTER 75-09.1-03

CLINICALLY MANAGED HIGH-INTENSITY RESIDENTIAL CARE -

ADULT ASAM LEVEL III.5

Section 75-09.1-03-01Definitions 75-09.1-03-02Provider Criteria 75-09.1-03-03Program Criteria 75-09.1-03-04Admission Criteria 75-09.1-03-01. Definitions.

As used in this chapter:

1."Clinically managed high-intensity residential services" means a therapeutic community or residential treatment center that offers continuous observation, monitoring, and treatment by allied professional staff designed to treat clients who are not sufficiently stable to benefit from outpatient treatment no matter how intensive and who have significant psychological and social problems. A clinically managed high-intensity residential services program does not treat clients that exhibit acute intoxication or withdrawal problems also known as ASAM dimension one; biomedical conditions and complications also known as ASAM dimension two; or emotional, behavioral or cognitive problems also known as ASAM dimension three unless in a dual diagnosis program also known as ASAM level III.5 which requires the availability of twenty-four-hour medical or nursing interventions.

2."Therapeutic community" means a treatment program characterized by reliance on the treatment community as a therapeutic change agent in which the goals of treatment are abstinence from substance use and antisocial behavior and affecting a global change in a client's lifestyles, attitudes, and values. The defining characteristics of such a client are found in emotional, behavioral, and cognitive conditions also known as ASAM dimension three and in the recovery environment also known as ASAM dimension six. For some clients, treatment must be considered habilitative rather than rehabilitative which addresses a client's educational and vocational deficits as well as socially dysfunctional behavior. 75-09.1-03-02. Provider criteria.

A clinically managed high-intensity residential care program shall include:

1.Onsite, twenty-four hour per day clinical staffing by licensed counselors, other clinicians, and other allied health professionals such as counselor aides;

2.Specialized professional consultation; and

3.A residential program offered no less than seven days per week with the length of stay to be determined by the client's condition and functioning. 75-09.1-03-03. Program criteria.

A clinically managed high-intensity residential care program shall include:

1.Daily clinical services which include a range of cognitive, behavioral, and other therapies in individual or group therapy and psychoeducation as deemed appropriate by an assessment and treatment plan;

2.Motivational enhancement and engagement strategies appropriate to the client's stage of readiness to change;

3.Counseling and clinical interventions to teach a client the skills needed for daily productive activity, prosocial behavior, and reintegration into family or community;

4.Random client drug screening to shape behavior and reinforce treatment gains as appropriate to the client's individual treatment plan;

5.A system for referral of a client for identified treatment needs if the service is not available in the program;

6.Family treatment services as deemed appropriate by an assessment and treatment plan; and

7.Educational, vocational, and informational programming adapted to individual client needs. 75-09.1-03-04. Admission criteria.

Before a clinically managed high-intensity residential care program may admit a client, the client shall:

1.Meet diagnostic criteria for a substance dependence disorder of the DSM; and

2.Meet admission criteria for clinically managed high-intensity residential services also known as ASAM level III.5 in each of the six ASAM dimensions. Specifically, the client must:

a.Not be in need of detoxification from alcohol or drugs or have no signs or symptoms of withdrawal or withdrawal needs can be safely managed by the program;

b.Not have a physical condition or complication impacting immediate safety and well-being or requiring twenty-four-hour medical or nursing interventions and be capable of self-administering any prescribed medications;

c.Not have an emotional, behavioral, or cognitive condition or complication impacting immediate safety and well-being or requiring twenty-four-hour medical or nursing interventions unless the client is in a dual diagnosis program but may require a residential program because of sufficiently severe functional deficits to maintain abstinence or mental stability or both;

d.Have a low readiness to change as evidenced by a lack of awareness of the need for treatment characterized by active or passive resistance to treatment; marked difficulty understanding the relationship between the substance use and life problems; require a structured therapy and a twenty-four-hour programmatic milieu to promote treatment progress and recovery; or require repeated, structured motivational interventions delivered in a twenty-four-hour milieu;

e.Have a higher readiness to change but issues in other dimensions impair the client's ability to translate this into treatment progress and recovery;

f.Have a high relapse, continued use, or continued problem potential as evidenced by the lack of recognition of relapse triggers or the lack of commitment to continuing care or both; the inability to control use of alcohol or other drugs or antisocial behavior with the attendant probability of harm to self or others; symptoms such as drug craving, difficulty postponing immediate gratification and other drug-seeking behaviors; or imminent danger of relapse with dangerous emotional, behavioral, or cognitive consequences because of a crisis situation; and

g.Have a problematic recovery environment that makes recovery goals assessed as unachievable at a less intensive level of care as evidenced by a moderately high risk of physical, sexual, or emotional abuse; substance use so endemic that the client is assessed as unable to achieve or maintain recovery; a social network of regular users of alcohol or other drugs; a social network characterized by significant withdrawal and social isolation; living with an individual who is a regular user, abuser, or dealer of alcohol and other drugs; the inability to cope for even limited periods of time outside of twenty-four-hour care; a living environment characterized by criminal behavior, victimization, and other antisocial norms and values; or the need for staff monitoring before safe transfer of the client to a less intensive setting.

Chapter 75-09.1-03.1 Clinically Managed Medium-Intensity Residential Care - Adolescent ASAM Level III.5

N.D. Admin. Code 75-09.1-03.1 Clinically Managed Medium-Intensity Residential Care - Adolescent ASAM Level III.5

CHAPTER 75-09.1-03.1

CLINICALLY MANAGED MEDIUM-INTENSITY RESIDENTIAL CARE -

ADOLESCENT ASAM LEVEL III.5

Section 75-09.1-03.1-01Definition 75-09.1-03.1-02Provider Criteria 75-09.1-03.1-03Program Criteria 75-09.1-03.1-04Admission Criteria 75-09.1-03.1-01. Definition.

As used in this chapter, "clinically managed medium-intensity residential care" means a substance abuse treatment program that offers continuous observation, monitoring, and treatment by allied professional staff of individuals with significant psychological and social problems who are not sufficiently stable to benefit from outpatient treatment no matter how intensive. Such programs include therapeutic group homes, therapeutic communities, psychosocial model rehabilitation centers, or extended residential rehabilitation programs. A clinically managed medium-intensity residential care program should not treat a client who exhibits acute intoxication or withdrawal problems also known as ASAM dimension one; biomedical conditions and complications also known as ASAM dimension two; or emotional, behavioral, or cognitive problems also known as ASAM dimension three unless in a dual diagnosis program also known as level III.5 that requires the availability of twenty-four-hour medical or nursing interventions. Clinically managed medium-intensity residential care programs must provide relatively extended, subacute treatments that aim to effect fundamental personal change for the adolescent who has significant social and psychological problems and the goals and modalities of treatment focus not only on the adolescent's substance use but also a holistic view that takes into account the client's behavior, emotions, attitudes, values, learning, family, culture, lifestyle, and overall health. A clinically managed medium-intensity residential care program is particularly suitable for treatment of entrenched patterns of maladaptive behavior, extremes of temperament, and development or cognitive abnormalities related to mental health symptoms or disorders. 75-09.1-03.1-02. Provider criteria.

A clinically managed medium-intensity residential care program shall:

1.Offer onsite twenty-four-hour-a-day clinical staffing by licensed counselors, other clinicians, and other allied health professionals such as counselor aides;

2.Make available specialized professional consultation; and

3.Offer the residential program no less than seven days per week with the length of stay to be determined by a client's condition and functioning. 75-09.1-03.1-03. Program criteria.

A clinically managed medium-intensity residential care program shall include:

1.Daily clinical services including a range of cognitive, behavioral, and other therapies in individual or group therapy and psychoeducation as deemed appropriate by an assessment and treatment plan;

2.Motivational enhancement and engagement strategies appropriate to a client's stage of readiness to change;

3.Counseling and clinical interventions to teach a client the skills needed for daily productive activity, prosocial behavior, and reintegration into family and community;

4.Random client drug screening to shape behavior and reinforcement treatment gains as appropriate to a client's individual treatment plan;

5.A system for referral of a client for identified treatment needs if the service is not available in the program;

6.Family and caregiver treatment services as deemed appropriate by an assessment and treatment plan;

7.Educational, vocational, and informational programming adaptive to individual client needs; and

8.Onsite staff provided or contracted onsite or offsite accredited educational services if a client is in school; general educational development preparation if the client does not possess a high school diploma and is no longer in school; or short-term educational services linked to home school designed to maintain current learning. 75-09.1-03.1-04. Admission criteria.

Before a clinically managed medium-intensity residential care program may admit a client, the client must:

1.Meet diagnostic criteria for a substance-related disorder of the DSM; and

2.Meet admission criteria for clinically managed medium-intensity residential services also known as ASAM level III.5 in each of the six ASAM dimensions. Specifically, the client:

a.Is at risk of or is experiencing subacute intoxication or withdrawal with mild to moderate symptoms and needs containment and increased treatment intensity without frequent access to medical or nursing services to support engagement in treatment, ability to tolerate withdrawal, and prevention of immediate continued use;

b.Does not have a physical condition or complication impacting immediate safety and well-being, requiring twenty-four- hour medical or nursing interventions but biomedical conditions distract from recovery efforts and require residential supervision or continued substance use would place a the client at risk for serious damage to physical health because of a co-occurring biomedical condition and the resident is capable of self-administering any prescribed medications;

c.Does not have an emotional, behavioral, or cognitive condition or complication impacting immediate safety or well-being requiring twenty-four-hour medical or nursing interventions unless in a dual diagnosis program but does have problems in the areas of dangerousness or lethality; interference with addiction recovery efforts; social functioning; ability for self-care; or course of illness;

d.Has a low readiness to change as evidenced by a lack of awareness of the need for treatment characterized by active or passive resistance to treatment; marked difficulty understanding the relationship between the substance use and life problems; the client requires a structured therapy and a twenty-four-hour programmatic milieu to promote treatment progress and recovery; or the client requires repeated, structured motivational interventions delivered in a twenty-four-hour milieu;

e.Has a readiness to change but issues in other dimensions impair the ability to translate this into treatment progress and recovery;

f.Has a high relapse, continued use, or continued problem potential as evidenced by the lack of recognition of relapse triggers or the lack of commitment to continuing care; the inability to control use of alcohol or other drugs or antisocial behavior with the attendant probability of harm to self or others; symptoms such as drug craving; difficulty postponing immediate gratification and other drug-seeking behaviors; or imminent danger of relapse with dangerous emotional, behavioral, or cognitive consequences because of a crisis situation; or

g.Has a chaotic home environment that makes recovery goals assessed as unachievable at a less-intensive level of care as evidenced by a moderately high risk of physical, sexual, or emotional abuse; substance use so endemic that the client is assessed as unable to achieve or maintain recovery; a social network of regular users of alcohol or other drugs; living with a family or other household member who is a regular user, abuser, or dealer of alcohol or other drugs; neglect or lack of supervision; the inability to cope, even for limited periods of time, outside of twenty-four-hour care; a living environment characterized by criminal behavior, victimization, and other antisocial norms and values; or the need for staff monitoring before safe transfer to a less-intensive setting.

Chapter 75-09.1-04 Medically Monitored Intensive Inpatient Treatment - Adult ASAM Level III.7

N.D. Admin. Code 75-09.1-04 Medically Monitored Intensive Inpatient Treatment - Adult ASAM Level III.7

CHAPTER 75-09.1-04

MEDICALLY MONITORED INTENSIVE INPATIENT TREATMENT -

ADULT ASAM LEVEL III.7

Section 75-09.1-04-01Definition 75-09.1-04-02Provider Criteria 75-09.1-04-03Program Criteria 75-09.1-04-04Admission Criteria 75-09.1-04-01. Definition.

As used in this chapter, "medically monitored intensive inpatient treatment" means a substance abuse treatment program that provides a planned regimen of twenty-four-hour professionally directed evaluation, observation, medical monitoring, and addiction treatment in an inpatient setting. This program is appropriate for a client whose subacute detoxification, withdrawal, biomedical, and emotional, behavioral, or cognitive problems are so severe that they require inpatient treatment but who does not need the full resources of an acute care general hospital or a medically managed inpatient treatment program. 75-09.1-04-02. Provider criteria.

A medically monitored intensive inpatient treatment program shall:

1.Offer twenty-four-hour skilled nursing care, daily onsite counseling services, and a physician's services twenty-four hours per day seven days per week;

2.Make available specialized professional consultation; and

3.Offer the inpatient treatment program for seven days per week with the length of stay to be determined by a client's condition and functioning. 75-09.1-04-03. Program criteria.

A medically monitored intensive inpatient treatment program shall provide:

1.A combination of individual and group therapy as deemed appropriate by an assessment and treatment plan;

2.Medical and nursing services available onsite to provide ongoing assessment and care of acute detoxification needs, medical, and psychiatric problems;

3.A system for referral of clients for identified treatment needs if the service is not available in the program;

4.Family treatment services as deemed appropriate by an assessment and treatment plan; and

5.Educational and informational programming adapted to individual client needs. 75-09.1-04-04. Admission criteria.

Before a medically monitored intensive inpatient program may admit a client, the client shall:

1.Meet diagnostic criteria for a substance dependence disorder of the DSM; and

2.Meet specifications in at least two of the six ASAM dimensions, at least one of which is in dimension one, two, or three as in the following criteria:

a.The client is experiencing signs and symptoms of acute withdrawal or there is evidence that a severe withdrawal syndrome is imminent or there is a strong likelihood that the client who requires medication will not complete detoxification at another level of care and enter continued treatment or self-help recovery;

b.The client has a physical condition or complication impacting immediate safety or well-being;

c.The client has a psychiatric condition or complication impacting immediate safety or well-being;

d.The client exhibits severe impairment in significant life areas such as legal, family, or work;

e.The client exhibits significant loss of control and relapse symptoms; or

f.The client has had multiple attempts at treatment programs of lower intensity with an inability to stay sober.

Chapter 75-09.1-04.1 Medically Monitored High-Intensity Inpatient Treatment - Adolescent ASAM Level III.7

N.D. Admin. Code 75-09.1-04.1 Medically Monitored High-Intensity Inpatient Treatment - Adolescent ASAM Level III.7

CHAPTER 75-09.1-04.1

MEDICALLY MONITORED HIGH-INTENSITY INPATIENT TREATMENT -

ADOLESCENT ASAM LEVEL III.7

Section 75-09.1-04.1-01Definition 75-09.1-04.1-02Provider Criteria 75-09.1-04.1-03Program Criteria 75-09.1-04.1-04Admission Criteria 75-09.1-04.1-01. Definition.

As used in this chapter, "medically monitored intensive inpatient treatment program" means a substance abuse treatment program that provides a planned regimen of twenty-four-hour professionally directed evaluation, observation, medical monitoring, and addiction treatment in an inpatient setting.

This program is appropriate for clients whose subacute detoxification, withdrawal, biomedical, and emotional, behavioral, or cognitive problems are so severe that they require inpatient treatment but who do not need the full resources of an acute care general hospital or a medically managed inpatient treatment program. 75-09.1-04.1-02. Provider criteria.

A medically monitored intensive inpatient treatment program shall:

1.Offer twenty-four-hour skilled nursing care, daily onsite counseling services, and the services of a physician twenty-four hours per day seven days per week;

2.Make specialized professional consultation available;

3.Offer the inpatient treatment program for seven days per week with the length of stay to be determined by a client's condition and functioning. 75-09.1-04.1-03. Program criteria.

A medically monitored intensive inpatient treatment program shall provide:

1.A combination of individual and group therapy as deemed appropriate by an assessment and treatment plan;

2.Medical and nursing services available onsite to provide ongoing assessment and care of acute detoxification needs, medical, and psychiatric problems;

3.A system for referral of clients for identified treatment needs if such services are not available in the program;

4.Family treatment services as deemed appropriate by an assessment and treatment plan;

5.Educational and informational programming adaptive to individual client needs; and

6.Onsite staff provided or contracted accredited educational services if a client is still in school; general educational development preparation if the client does not possess a high school diploma and is no longer in school; or short-term educational services linked to home school designed to maintain current learning. 75-09.1-04.1-04. Admission criteria.

Before a medically monitored intensive inpatient program may admit a client, the client must:

1.Meet diagnostic criteria for a substance-related disorder of the DSM; and

2.Meet specifications in at least two of the six ASAM dimensions, at least one of which is in dimension one, two, or three as in the following criteria:

a.The client is experiencing or at risk of acute or subacute intoxication or withdrawal with moderate to severe signs and symptoms or there is a strong likelihood that the client who requires medication will not complete detoxification at another level of care and enter continued treatment or self-help recovery;

b.A biomedical complication of addiction or co-occurring medical condition requires active nursing and medical monitoring which does not require the resources of an acute care hospital or continued substance use would place the client at risk for serious damage to physical health because of a co-occurring biomedical condition;

c.The client has problems in one of the following areas requiring twenty-four-hour supervision and a high-intensity therapeutic milieu with access to nursing and medical monitoring and treatment; dangerousness or lethality; interference with addiction recovery efforts; social functioning; ability for self-care; or course of illness;

d.The client exhibits severe impairment in significant life areas such as legal, family, school, or work;

e.The client exhibits significant loss of control and relapse symptoms; or

f.The client has had multiple attempts at treatment programs of lower intensity with an inability to stay sober.

Chapter 75-09.1-05 Partial Hospitalization - Day Treatment - Adult ASAM Level II.5

N.D. Admin. Code 75-09.1-05 Partial Hospitalization - Day Treatment - Adult ASAM Level II.5

CHAPTER 75-09.1-05

PARTIAL HOSPITALIZATION - DAY TREATMENT - ADULT ASAM LEVEL II.5

Section 75-09.1-05-01Definition 75-09.1-05-02Provider Criteria 75-09.1-05-03Program Criteria 75-09.1-05-04Admission Criteria 75-09.1-05-01. Definition.

As used in this chapter, "partial hospitalization" means a substance abuse treatment program that uses multidisciplinary staff and is provided for clients who require a more intensive treatment experience than intensive outpatient treatment but who do not require residential treatment with the exception of ASAM level III.1. This level of care is designed to offer highly structured intensive treatment to those clients whose condition is sufficiently stable so as not to require twenty-four-hour per day monitoring and care, but whose illness has progressed so as to require consistent near-daily treatment intervention. Partial hospitalization may also be referred to as day treatment. 75-09.1-05-02. Provider criteria.

1.A partial hospitalization program shall offer no less than twenty hours of programming per week in a structured program.

2.A partial hospitalization program shall offer the program no less than four days per week with the length of stay to be determined by a client's condition and functioning.

3.A partial hospitalization program shall make clients aware of emergency services that are available twenty-four hours per day seven days per week when the program is not in session. 75-09.1-05-03. Program criteria.

A partial hospitalization program shall offer a client:

1.A combination of individual and group therapy as deemed appropriate by an assessment and treatment plan;

2.Medical and nursing services as deemed appropriate by an assessment and treatment plan;

3.A system for referral for needs identified but not available in the program;

4.Family treatment services as deemed appropriate by an assessment and treatment plan; and

5.Educational and informational programming adaptable to individual client needs. 75-09.1-05-04. Admission criteria.

Before a partial hospitalization program may admit a client, the client must:

1.Meet diagnostic criteria for a substance-related disorder of the DSM;

2.Be at low risk for withdrawal symptoms or have minimal remaining withdrawal symptoms;

3.Be physically stable but may have a medical condition that is severe enough to distract from recovery efforts or would be aggravated by continued use of alcohol or drugs or be psychologically stable enough not to require twenty-four-hour observation and care but may have a psychiatric condition that would be aggravated by continued use of alcohol or drugs; and

4.The client meets at least two of the following:

a.The client requires repeated, structured, clinically directed motivational enhancement strategies not available at a less-intensive level of care;

b.The client has made previous attempts at a treatment program of lower intensity with an inability to remain sober or has been an active participant at a less-intensive level of care but is experiencing an intensification of symptoms of the substance-related disorders and the client's functioning is deteriorating despite modifications of the treatment plan or there is a high likelihood that the client will continue to use or relapse without close outpatient monitoring and structured therapeutic services;

c.The client has minimal support for sustaining beginning recovery in the client's home or customary environment;

d.The client has experienced significant impairment in life areas that require a high level of intensity best accomplished as close to the client's home community as is feasible; or

e.The client has experienced significant life traumas or stresses that require therapeutic interventions as an adjunct to addiction treatment to assure continuing recovery.

Chapter 75-09.1-05.1 Partial Hospitalization - Day Treatment - Adolescent ASAM Level II.5

N.D. Admin. Code 75-09.1-05.1 Partial Hospitalization - Day Treatment - Adolescent ASAM Level II.5

CHAPTER 75-09.1-05.1

PARTIAL HOSPITALIZATION - DAY TREATMENT - ADOLESCENT ASAM LEVEL II.5

Section 75-09.1-05.1-01Definition 75-09.1-05.1-02Provider Criteria 75-09.1-05.1-03Program Criteria 75-09.1-05.1-04Admission Criteria 75-09.1-05.1-01. Definition.

As used in this chapter, "partial hospitalization program" means a substance abuse treatment program that uses multidisciplinary staff and is provided for clients who require a more intensive treatment experience than intensive outpatient treatment but who do not require inpatient care or residential treatment with the exception of clients at ASAM level III.1. This level of care is designed to offer highly structured intensive treatment to a client whose condition is sufficiently stable so as not to require twenty-four hour per day monitoring and care, but whose illness has progressed so as to require consistent near-daily treatment intervention. Partial hospitalization may also be referred to as day treatment. 75-09.1-05.1-02. Provider criteria.

1.A partial hospitalization program shall offer no less than twenty hours of programming per week in a structured program.

2.A partial hospitalization program shall offer the program no less than four days per week with the length of stay to be determined by a client's condition and functioning.

3.A partial hospitalization program shall make clients aware of emergency services that are available twenty-four hours a day seven days a week when the program is not in session. 75-09.1-05.1-03. Program criteria.

A partial hospitalization program shall offer a client:

1.A combination of individual and group therapy as deemed appropriate by an assessment and treatment plan;

2.Medical and nursing services as deemed appropriate by an assessment and treatment plan;

3.A system for referral for needs identified but not available in the program;

4.Family treatment services as deemed appropriate by an assessment and treatment plan;

5.Educational and informational programming adaptable to individual client needs; and

6.Onsite staff provided or contracted accredited educational services for clients still in school or short-term educational services linked to home school designed to maintain current learning. 75-09.1-05.1-04. Admission criteria.

Before a partial hospitalization program may admit a client, the client must:

1.Meet diagnostic criteria for a substance-related disorder of the DSM;

2.Be at low risk for withdrawal symptoms or have minimal remaining withdrawal symptoms;

3.Be physically stable but may have a medical condition that is severe enough to distract from recovery efforts or would be aggravated by continued use of alcohol or drugs or the client is psychologically stable enough not to require a twenty-four-hour observation and care but does have problems in the areas of dangerousness or lethality; interference with addiction recovery efforts; social functioning; ability for self-care or course of illness; and

4.The client meets at least two of the following:

a.The client requires repeated, structured, clinically directed motivational enhancement strategies not available at a less-intensive level of care;

b.The client made previous attempts at a treatment program of lower intensity with an inability to remain sober or has been an active participant at a less-intensive level of care but is experiencing an intensification of symptoms of the substance-related disorders and the client's functioning is deteriorating despite modifications of the treatment plan or there is a high likelihood that the client will continue to use or relapse without close outpatient monitoring and structured therapeutic services;

c.The client minimal support for sustaining beginning recovery in the client's home or customary environment;

d.The client has experienced significant impairment in life areas that require a high level of intensity best accomplished as close to the client's home community as is feasible; or

e.The client has experienced significant life traumas or stresses that require therapeutic interventions as an adjunct to addiction treatment to assure continuing recovery.

General Authority: NDCC 50-05-16, 50-31

Chapter 75-09.1-06 Intensive Outpatient Treatment - Adult ASAM Level II.1

N.D. Admin. Code 75-09.1-06 Intensive Outpatient Treatment - Adult ASAM Level II.1

CHAPTER 75-09.1-06

INTENSIVE OUTPATIENT TREATMENT - ADULT ASAM LEVEL II.1

Section 75-09.1-06-01Definition 75-09.1-06-02Provider Criteria 75-09.1-06-03Program Criteria 75-09.1-06-04Admission Criteria 75-09.1-06-01. Definition.

As used in this chapter, "intensive outpatient treatment" means treatment provided to clients requiring a primary, organized treatment program and who are able to establish abstinence and recovery within the context of the client's usual environment and daily activities. This level of care will normally be offered in the evening hours to facilitate a client's ability to maintain the usual daily activity but may be offered during the day. 75-09.1-06-02. Provider criteria.

1.An intensive outpatient treatment program shall offer no less than eight hours and no more than nineteen hours of programming per week in a structured environment.

2.An intensive outpatient treatment program shall offer the program with the length of stay to be determined by a client's condition and functioning.

3.An intensive outpatient treatment program shall make clients aware of emergency services that are available twenty-four hours per day seven days per week when the program is not in session. 75-09.1-06-03. Program criteria.

An intensive outpatient program shall provide:

1.A combination of individual and group therapy as deemed appropriate by an assessment and treatment plan;

2.Medical and nursing services as deemed appropriate by an assessment and treatment plan;

3.A system for consultation or referral for identified treatment needs if such services are not available in the program and which includes close coordination of such services by the program and an effort by the program to arrange needed medical or psychiatric services by telephone within twenty-four hours of when the need was identified and in-person services within a time frame appropriate to the severity and issue;

4.Family treatment services as deemed appropriate by an assessment and treatment plan; and

5.Educational and informational programming adaptable to individual client needs and developmental status. 75-09.1-06-04. Admission criteria.

Before an intensive outpatient treatment program may admit a client, the client must:

1.Meet diagnostic criteria for a substance-related disorder of the current DSM; and

2.Meet admission criteria for ASAM level II.1 outpatient treatment in all six ASAM dimensions and at least two of the following:

a.The client has few or no symptoms of withdrawal and presents only stable physical or psychiatric conditions;

b.The client expresses willingness even through coercion to attend all scheduled events; or

c.The client has an environment supportive of recovery efforts or is able to be supplied with alternative supportive housing.

Chapter 75-09.1-06.1 Intensive Outpatient Treatment - Adolescent ASAM Level II.1

N.D. Admin. Code 75-09.1-06.1 Intensive Outpatient Treatment - Adolescent ASAM Level II.1

CHAPTER 75-09.1-06.1

INTENSIVE OUTPATIENT TREATMENT - ADOLESCENT ASAM LEVEL II.1

Section 75-09.1-06.1-01Definitions 75-09.1-06.1-02Provider Criteria 75-09.1-06.1-03Program Criteria 75-09.1-06.1-04Admission Criteria 75-09.1-06.1-01. Definitions.

As used in this chapter:

1."After school program" means an intensive outpatient program offered after school hours to facilitate a client's schedule.

2."Intensive outpatient treatment" means treatment provided to adolescent clients requiring a primary, organized treatment program and who are able to establish abstinence and recovery within the context of the client's usual environment and daily activities. This level of care will normally be offered in the evening hours to facilitate a client's ability to maintain the usual daily activity but may be offered during the day. 75-09.1-06.1-02. Provider criteria.

1.An intensive outpatient treatment program shall offer no less than six hours per week in a structured program.

2.An intensive outpatient treatment program shall offer the program with the length of stay to be determined by a client's condition and functioning.

3.An intensive outpatient treatment program shall make clients aware of emergency services that are available twenty-four hours a day seven days a week when the program is not in session. 75-09.1-06.1-03. Program criteria.

An intensive outpatient program shall provide:

1.A combination of individual and group therapy as deemed appropriate by an assessment and treatment plan;

2.Medical and nursing services as deemed appropriate by an assessment and treatment plan;

3.A system for consultation or referral for identified treatment needs if such services are not available in the program and which includes close coordination of such services by the program and an effort by the program to arrange needed medical or psychiatric services by telephone within twenty-four hours of when the need was identified and in-person services within a time frame appropriate to the severity and issue;

4.Family treatment services as deemed appropriate by an assessment and treatment plan;

5.Educational and informational programming adaptable to individual client needs and developmental status; and

6.If treatment hours conflict with school hours, an intensive outpatient program shall arrange onsite homework assistance coordinated with the client's home school. 75-09.1-06.1-04. Admission criteria.

Before an intensive outpatient treatment program may admit a client, the client shall:

1.Meet diagnostic criteria for a substance-related disorder of the current DSM; and

2.Meet admission criteria for ASAM level II.1 outpatient in all six ASAM dimensions and at least two of the following:

a.The client has few or no symptoms of withdrawal and presents only stable physical or psychiatric conditions;

b.The client expresses willingness even through coercion to attend all scheduled events; or

c.The client has an environment supportive of recovery efforts or is supplied with recommendations for alternative supportive housing by the intensive outpatient treatment program.

Chapter 75-09.1-07 Outpatient Services - Adult ASAM Level I

N.D. Admin. Code 75-09.1-07 Outpatient Services - Adult ASAM Level I

CHAPTER 75-09.1-07

OUTPATIENT SERVICES - ADULT ASAM LEVEL I

Section 75-09.1-07-01Definitions 75-09.1-07-02Provider Criteria 75-09.1-07-03Program Criteria 75-09.1-07-04Admission Criteria 75-09.1-07-01. Definitions.

As used in this chapter:

1."Assertive referral" means the identification of appropriate services and actively assisting the client to connect with the service provider and follow through with the plan of service.

2."Chronic" means diagnosed chemical dependency or severe and persistent mental illness as described in the DSM and characterized by long duration and progression of symptoms, frequent recurrence or relapse, and a prognosis that indicates continuous clinical care or support or both to maintain stability and remission or reduction of symptoms.

3."Chronic care and maintenance services" means outpatient services necessary and appropriate to assist a client who is chronically chemically dependent or chronically mentally ill or both to maintain stability and live in the community as independently as possible. Such services include professionally directed case management, psychiatric care, support services, monitored medication administration, professional addiction counseling, mental health counseling, mental health and chemical dependency assessment, social services, supported housing, and other services sufficient to allow a client to live outside an institutional setting.

This service may be provided as a component of services within a residential or transitional living setting or other such facility but would not require formal attachment to that facility.

4."Intentional community treatment and support" means proactively identifying client needs and deficits and seeking to identify and put in place services or resources to address those needs and deficits through assertive referral, active implementation, and continuous monitoring by treatment personnel.

5."Outpatient services" means an organized nonresidential service or an office practice that provides professionally directed aftercare, individual, and other addiction services to clients according to a predetermined regular schedule of fewer than nine contact hours a week. 75-09.1-07-02. Provider criteria.

1.An outpatient services program shall offer no more than eight hours of programming per week.

2.An outpatient services program shall offer the program with the length of stay to be determined by a client's condition and functioning. 75-09.1-07-03. Program criteria.

1.An outpatient services program shall provide skilled treatment services that may include any combination of the following:

a.Individual or group counseling, motivational enhancement, brief intervention, cognitive-behavioral therapy, opioid substitution therapy, family therapy, educational groups, occupational and recreational therapy, or other psychotherapy; or

b.Case coordination, case management, chronic care and maintenance services, intentional community treatment support, or assertive community treatment.

2.An outpatient services program must provide services in an amount, frequency, and intensity appropriate to a client's treatment plan.

3.An outpatient services program must address as the need arises with a client with a mental health problem issues of psychotropic medication, mental health treatment, and their relationship to substance use disorders.

4.An outpatient services program with a dual diagnosis enhanced program shall offer therapies to actively address, monitor, and manage psychotropic medication, mental health treatment, and the interaction with substance-related disorders.

5.Counseling or assessment of a client regarding the client's abuse of alcohol or a controlled substance must be provided by a licensed addiction counselor as provided in North Dakota Century Code chapter 43-45. The provision of case management and educational services do not need to be performed by licensed addiction counselors. A licensed addiction counselor must be present in all team meetings where level of care and treatment planning decisions are made regarding a client receiving or referred for substance abuse services.

6.For chronic care and maintenance services, an outpatient services program shall offer services that are comprehensive and have an indefinite and variable programming or provision schedule determined by the client's stability, level of functioning, and assessed needs for ongoing community support and maintenance services. 75-09.1-07-04. Admission criteria.

For admission to outpatient services, the client shall meet the criteria set forth in subsections one and two and at least one of the remaining criteria:

1.Meet diagnostic criteria for substance-induced disorders of the DSM; and

2.Meet admission criteria for ASAM level I outpatient services in all six ASAM dimensions and meet at least one of the following:

a.Demonstrates the need to take extended time for evaluation or lacks motivation to make a commitment to a more intensive recovery effort and requires motivational enhancement strategies;

b.Has completed a higher intensity level of care but requires continued services until recovery stabilizes;

c.Has evidence of a brief return to usage not resulting in significant physical or emotional deterioration;

d.Requires outpatient counseling of an intensity that will meet the client's needs without placement in a higher level of care;

e.Has not been through a prior treatment and exhibits motivation for recovery and meets ASAM criteria for level I in dimensions one, two, three, five, and six or the client has low severity of problems in ASAM dimensions one, two, three, five, and six;

f.Has a low severity of problems in ASAM dimensions one, two, three, five, and six but is not motivated and requires motivation enhancement strategies best delivered in a level I program; or

g.Has a severe and persistent mental illness that impairs the client's ability to consistently follow through with mental health appointments, take prescribed psychotropic medications, and maintain mental and personal stability in the community but does have the ability to access services such as assertive community treatment and case management or supportive living.

General Authority: NDCC 50-05-16, 50-31

Chapter 75-09.1-07.1 Outpatient Services - Adolescent ASAM Level I

N.D. Admin. Code 75-09.1-07.1 Outpatient Services - Adolescent ASAM Level I

CHAPTER 75-09.1-07.1

OUTPATIENT SERVICES - ADOLESCENT ASAM LEVEL I

Section 75-09.1-07.1-01Definitions 75-09.1-07.1-02Provider Criteria 75-09.1-07.1-03Program Criteria 75-09.1-07.1-04Admission Criteria 75-09.1-07.1-01. Definitions.

As used in this chapter:

1."Assertive community treatment" means an effective, evidence-based, outreach-oriented, service delivery model that provides comprehensive community substance abuse treatment, rehabilitation, and support services to clients in their home, work, school, or community setting.

2."Outpatient services" means an organized nonresidential service or an office practice that provides professionally directed aftercare, individual, and other addiction treatment services to clients according to a predetermined regular schedule of fewer than nine contact hours a week. 75-09.1-07.1-02. Provider criteria.

1.An outpatient services program shall offer no more than five hours of programming per week.

2.An outpatient service program shall offer the program with the length of stay to be determined by a client's condition and functioning. 75-09.1-07.1-03. Program criteria.

An outpatient services program shall provide skilled treatment services that may include any combination of the following:

1.Individual or group counseling or both, motivational enhancement, brief intervention, cognitive-behavioral therapy, opioid substitution therapy, family therapy, educational groups, occupational and recreational therapy, or other psychotherapy;

2.Case coordination, case management, or assertive community treatment;

3.Services that are provided in an amount, frequency, and intensity appropriate to a client's treatment plan;

4.Issues of psychotropic medication and mental health treatment and their relationship to substance use disorders are addressed as the need arises for patients with mental health problems;

5.Dual diagnosis enhanced programs offer therapies to actively address, monitor, and manage psychotropic medication, mental health treatment, and the interaction with substance-related disorders.

6.Counseling or assessment of a client regarding the client's abuse of alcohol or a controlled substance must be provided by a licensed addiction counselor as provided in North Dakota Century Code chapter 43-45. The provision of case management and educational services do not need to be performed by licensed addiction counselors. A licensed addiction counselor must be present in all team meetings where level of care and treatment planning decisions are made regarding a client receiving or referred for substance abuse services. 75-09.1-07.1-04. Admission criteria.

Before an outpatient services program may admit a client, a client must:

1.Meet diagnostic criteria for substance-induced disorders of the DSM; and

2.Meet admission criteria for ASAM level I outpatient services in all six ASAM dimensions and at least one of the following:

a.Demonstrate the need to take extended time for evaluation or lack motivation to make a commitment to a more intensive recovery effort and requires motivational enhancement strategies;

b.Have completed a higher intensity level of care but requires continued services until recovery stabilizes;

c.Have evidence of a brief return to usage not resulting in significant physical or emotional deterioration;

d.Require outpatient counseling of an intensity that will meet the client's needs without placement in a higher level of care;

e.Have not been through a prior treatment and exhibits motivation for recovery and meets ASAM criteria for level I in dimensions one, two, three, five, and six or the client has low severity of problems in ASAM dimensions one, two, three, five, and six;

f.Have a low severity of problems in ASAM dimensions one, two, three, five, and six but is not motivated and requires motivation enhancement strategies best delivered in a level I program; or

g.Have a severe and persistent mental illness that impairs the client's ability to consistently follow through with mental health appointments and psychotropic medications but does have the ability to access services such as assertive community treatment and case management or supportive living.

Chapter 75-09.1-08 Social Detoxification ASAM Level III.2-D

N.D. Admin. Code 75-09.1-08 Social Detoxification ASAM Level III.2-D

CHAPTER 75-09.1-08

SOCIAL DETOXIFICATION ASAM LEVEL III.2-D

Section 75-09.1-08-01Definitions 75-09.1-08-02Program Criteria 75-09.1-08-03Provider Criteria 75-09.1-08-04Admission and Continued Stay Criteria 75-09.1-08-05Referral to Acute Care Criteria 75-09.1-08-06Criteria to Determine That Social Detoxification Is Not Necessary 75-09.1-08-01. Definitions.

1."CIWA-Ar" means the revised clinical institute withdrawal assessment for alcohol scale published in the archives of general psychiatry 48:442-447, May 1991, which is a ten-item scale for clinical quantification of the severity of alcohol withdrawal syndrome.

2."Detoxification" means the process of interrupting the momentum of compulsive use in an individual diagnosed with substance dependence and the condition of recovery from the effects of alcohol or another drug, the treatment required to manage withdrawal symptoms from alcohol or another drug, and the promotion of recovery from its effects.

3."Social detoxification" means detoxification in an organized residential nonmedical setting delivered by appropriately trained staff who provide safe, twenty-four-hour monitoring, observation, and support in a supervised environment for a client to achieve initial recovery from the effects of alcohol or another drug. Social detoxification is characterized by its emphasis on peer and social support and it provides care for clients whose intoxication or withdrawal signs and symptoms are sufficiently severe to require twenty-four-hour structure and support but the full resources of a medically monitored inpatient detoxification are not necessary. 75-09.1-08-02. Program criteria.

A social detoxification program must provide:

1.Hospital affiliation providing twenty-four-hour medical backup;

2.A trained staff member familiar with complications associated with alcohol and other drug use and with community resources awake on all shifts;

3.A quite, positive atmosphere;

4.Use of detoxification time as preparation for referral to another level of care; and

5.Recognition of the chronic nature of the disease of substance dependence and the fact that some clients will require multiple admissions. 75-09.1-08-03. Provider criteria.

A social detoxification provider shall:

1.Maintain a safe, comfortable, positive environment in a residential setting;

2.Have an agreement with local medical providers that ensure readily accessible emergency care when needed;

3.Implement a protocol so that the nature of the medical interventions required are developed and supported by a physician knowledgeable in addiction medicine;

4.Have available specialized clinical consultation and supervision for biomedical, emotional, behavioral, and cognitive problems;

5.Have awake staff twenty-four hours per day to monitor clients' conditions;

6.Have staff trained in admission, monitoring skills, including signs and symptoms of alcohol and other drug intoxication and withdrawal as well as appropriate treatment of those conditions, supportive care, basic cardiopulmonary resuscitation technique, assessment, and referral procedures;

7.Have services including close observation, supportive staff-client interaction, provision for proper fluid and nutritional components, and provision for client space that offers low to moderate sensory stimulation;

8.Implement a clearly defined policy for admission, care, discharge, and transfer of a client to another level of care;

9.Develop a method of documentation of care and train staff in documentation procedures;

10.Develop linkage with providers of other levels of care so the client may begin a therapeutic process as soon as the client is physically and mentally able to do so;

11.Administer a range of cognitive, behavioral, medical, mental health, and other therapies on an individual or group basis designed to meet the client's ability to participate in order to enhance the client's understanding of addiction, the completion of the detoxification process, and referral to an appropriate level of care for continuing treatment;

12.Develop a preliminary individualized treatment plan with the client that includes problem identification in ASAM PPC dimension two through six and development of treatment goals and measurable treatment objectives and activities designed to meet those objectives; and

13.Implement a policy for medication storage, security, and self-administration to assure that the client receives the client's medication and for observation of the medication taking behavior. 75-09.1-08-04. Admission and continued stay criteria.

Before a client may be admitted to a social detoxification program, the client must meet the diagnostic criteria for a substance-induced disorder of the current DSM and current clearance by a physician or a CIWA-Ar score of less than eight and the presence of any of the following:

1.Diffuse mild central nervous system symptoms such as:

a.Cerebral symptoms, including slow responses to questions, difficulty in following complicated instructions, mild impairment of immediate memory, slurred speech, and mild disorientation to time but not to place or client;

b.Coordination symptoms, including mild abnormality in movement or gait, difficulty in finger-to-nose or finger-to-finger testing and rapid movements;

c.Reflex abnormalities, including normal or slightly depressed but symmetrical; or

d.Motor abnormalities, are normal or slightly depressed but symmetrical.

2.Onset of any stated symptoms listed in subsection 1 over a few hours;

3.Intoxication;

4.The absence of other more serious symptoms, including medical or psychiatric histories of significant problems and the absence of suicidal ideations or suicidal ideation of low lethality without plan or means;

5.Presence of any one of the following physical findings:

a.A temperature of ninety-seven degrees to one hundred degrees Fahrenheit [36.1 to 37.6 degrees Celsius] taken orally;

b.Tachycardia up to one hundred twenty beats per minute;

c.Blood pressure of up to one hundred sixty over one hundred twenty at rest;

d.Respiration of twelve to twenty-six breaths per minute;

e.Flushed skin color;

f.Pupils have a sluggish reaction to light; or

g.Other, such as alcohol odor on breath; or

6.Ability to comprehend and function in an ambulatory setting. 75-09.1-08-05. Referral to acute care criteria.

A social detoxification program shall refer a client to an acute care facility or consult with a physician upon an increase in score to greater than a seven CIWA-Ar score scale or when a client has any one or more of the following symptoms:

1.Seizures or a history of seizures;

2.Current persistent vomiting or vomiting of blood;

3.Current ingestion of vomit into lungs;

4.Clouded sensorium such as gross disorientation or hallucination;

5.A temperature higher than one hundred and one degrees Fahrenheit [38.1 degrees Celsius] taken orally;

6.Abnormal respiration such as shortness of breath or a respiration rate greater than twenty-six breaths per minute;

7.Elevated pulse such as a heart rate greater than one hundred twenty beats per minute or arrhythmia;

8.Hypertension such as blood pressure greater than one hundred sixty over one hundred twenty;

9.Sudden chest pain or other sign of coronary distress or severe abdominal pain;

10.Recent head injury or any trauma other than minor;

11.Unconscious and not arousable; or

12.Other signs of significant illness such as jaundice, unstable diabetes, acute liver disease, severe allergic reaction, progressively severe Antabuse reaction, poisoning, progressively worsening tremors, chills, severe agitation, exposure, internal bleeding, shock, uncontrollable violence, suicidal or homicidal ideations. 75-09.1-08-06. Criteria to determine that social detoxification is not necessary.

Social detoxification will not be necessary if:

1.The client exhibits no withdrawal symptoms at a blood alcohol level of 0.0 percent;

2.The client has no medical complications present;

3.The client's nutritional status is moderate to good;

4.The client has a relative, friend, or other support system who can stay with the client for the time necessary to complete detoxification; or

5.The client prefers outpatient detoxification.

Chapter 75-09.1-09 DUI Seminar ASAM Level 0.5

N.D. Admin. Code 75-09.1-09 DUI Seminar ASAM Level 0.5

CHAPTER 75-09.1-09

DUI SEMINAR ASAM LEVEL 0.5

Section 75-09.1-09-01Definitions 75-09.1-09-02Application for Licensure 75-09.1-09-03License Required 75-09.1-09-04Licensure Report Procedures 75-09.1-09-05Seminar Authority and Administration 75-09.1-09-06Information Management 75-09.1-09-07Fiscal Management 75-09.1-09-08Physical Facilities 75-09.1-09-09Health and Safety Program 75-09.1-09-10Infection Control 75-09.1-09-11Referral Criteria 75-09.1-09-12Client Records 75-09.1-09-13Client Rights 75-09.1-09-14Provider Criteria 75-09.1-09-15Seminar Program Criteria 75-09.1-09-16Seminar Care Criteria 75-09.1-09-17Discharge Criteria 75-09.1-09-18Sanctions 75-09.1-09-19Appeals 75-09.1-09-01. Definitions.

As used in this chapter:

1."Department" means the North Dakota department of human services.

2."DUI seminar" means an alcohol and drug risk reduction education program for individuals convicted of driving under the influence or actual physical control.

3."Recommendation" means that a violation of the rule has occurred, however, on a very limited

basis. Recommendation can also be given when there is general compliance with a rule but the procedures can be strengthened.

4."Type I condition" means that a violation of the requirements of any applicable law or

regulation has occurred in at least twenty-five percent of the cases reviewed.

5."Type II condition" means habitual noncompliance with the requirements of any applicable law or regulation, including a type I condition that is still found to be occurring during subsequent visits, any illegal act, or any act that threatens the health and safety of a client. 75-09.1-09-02. Application for licensure.

1.A DUI seminar must submit to the department an application for a license in the form and manner prescribed by the department.

2.The department shall consider an application for a DUI seminar license complete when it has received all required information and documents. The department shall notify an applicant if an application is incomplete.

3.The department may declare an application for a DUI seminar license withdrawn if an applicant fails to submit all required documentation within sixty days of notification of incompleteness.

4.A new application for a DUI seminar license must be filed by a program upon change of ownership or level of care. 75-09.1-09-03. License required.

1.The department may issue a provisional license for the operation of a new DUI seminar upon approval of a new application.

2.A provisional license must expire at a set date not to exceed one year from the date of issuance.

3.Prior to issuing an unrestricted license, the department must conduct an onsite review to determine if a DUI seminar is in compliance with the standards contained in this chapter.

4.An unrestricted license is in effect for the period specified in the license not to exceed two years.

5.A DUI seminar license may not be transferred and is valid only for those programs indicated on the license.

6.The department shall conduct at least biennially a continued license review for any DUI seminar with an unrestricted license. The continued license review will be performed to determine continued compliance with the standards contained in this chapter.

7.The department may conduct scheduled or unscheduled visits of a DUI seminar at times other than a routine licensure review.

8.A DUI seminar must display its license in a place that is conspicuous to the public. 75-09.1-09-04. Licensure report procedures.

1.Within thirty days of an onsite review, the department must send a license report to the DUI seminar reviewed.

2.A license report must contain a description of the programs and services reviewed, strengths, concerns, recommendations, and a description of any type I or type II conditions.

3.The department shall retain all reports of the licensure review while the DUI seminar that is the subject of the report is licensed and for at least seven years from the time the DUI seminar is no longer licensed. 75-09.1-09-05. Seminar authority and administration.

1.A DUI seminar shall identify to the department an individual or entity that is responsible for the conduct of the DUI seminar.

2.A DUI seminar shall be responsible for providing qualified personnel, facilities, and equipment needed to carry out the goals and objectives and to meet the needs of clients.

3.A DUI seminar shall conform to applicable laws and regulations, including accessibility, affirmative action, equal employment opportunity, confidentiality, health and safety, and licensure. 75-09.1-09-06. Information management.

1.A DUI seminar shall collect data as prescribed by the department, including information necessary for federal and state grant statistical requirements and fiscal information such as fee structure.

2.A DUI seminar must apply appropriate safeguards to protect client records regardless of whether the records are electronically or manually maintained. These safeguards must include:

a.Limiting record access to authorized individuals;

b.Suitably maintaining a record indexing and filing system;

c.Knowing the essential record location at all times;

d.Securing and reasonably protecting records in a locked area where they will be reasonably protected against loss, damage, and inappropriate access; and

e.Protecting electronic records by routine backup.

3.A DUI seminar must implement a policy so that files are not needlessly retained or prematurely discarded. The retention of records of clients and administrative records must be guided by professional and state research, administrative, and legal requirements. 75-09.1-09-07. Fiscal management.

1.A DUI seminar shall have an established schedule of fees that is available in printed form and applied equitably to all clients.

2.A DUI seminar shall implement a policy that prohibits fee splitting with other programs, agencies, entities, or individuals as consideration for referral of the client to be served. 75-09.1-09-08. Physical facilities.

1.All locations owned, rented, or leased by a DUI seminar must meet standards of the state fire marshal or an equivalent code or provide a letter from the inspecting authority stating that inspections were not done and why.

2.A DUI seminar shall provide adequate toilet and lavatory facilities. 75-09.1-09-09. Health and safety program.

1.A DUI seminar shall develop a written emergency procedure that includes provisions for dealing with bomb threats, fires, medical emergencies, natural disasters, and power failures.

2.At the beginning of the DUI seminar, the DUI seminar instructor shall point out emergency evacuation exits and routes to seminar participants.

3.A DUI seminar shall have first-aid facilities, equipment, and supplies readily available.

4.A DUI seminar shall implement a written policy that addresses the use of smoking products.

The policy must address the needs of the seminar participants and visitors and comply with local, state, and federal laws. 75-09.1-09-10. Infection control.

A DUI seminar shall take universal precautions in the handling of all bodily fluids and implement a written policy for the handling of bodily fluids.

History: Effective October, 26, 2004. 75-09.1-09-11. Referral criteria.

1.A DUI seminar must secure the written consent of the client or the client's legal representative before releasing any confidential information about that client and the consent to release of information must conform to the following:

a.Any information released must be limited to that necessary for the individual or agency requesting the information or for the provider to whom the client is referred to be able to address the purpose of the referral;

b.A DUI seminar must stamp or write on the records that are being released that any further disclosure or redisclosure of information is prohibited unless it is authorized by the client or the client's legal representative; and

c.Be in accordance with applicable federal and state laws and must include at a minimum:

(1)The content to be released;

(2)The form in which the information is to be released such as written, verbal, audio, video, electronic;

(3)To whom the information is to be released;

(4)For what purpose the information is to be released;

(5)The name of the client and date of birth about whom information is to be released;

(6)The date on which the release is signed;

(7)The length of time, event, or condition for which the release is authorized or the event or condition upon which consent for release will be withdrawn; and (8)The signature of the client or legal representative.

2.A DUI seminar shall give a copy of the signed consent to release of information to the client or client's legal representative. 75-09.1-09-12. Client records.

1.A DUI seminar shall prepare and maintain a single record for each client so as to communicate the appropriate case information. This information must be in a form that is clear, concise, complete, legible, and current.

2.The record of each seminar participant must include:

a.Seminar attendance record;

b.Department approved post-test;

c.A copy of any department of transportation report of addiction treatment form;

d.A copy of any consent to release of information form signed by the client; and

e.Any other correspondence related to the seminar participant.

3.A DUI seminar shall implement a written policy addressing the process by which a client may gain access to the client's own record. 75-09.1-09-13. Client rights.

1.A DUI seminar must assure the right of each client to:

a.Be treated with respect and dignity;

b.Be treated without discrimination based on physical or mental disability;

c.Be treated without regard to race, creed, national origin, sex, or sexual preference;

d.Have all information handled confidentially in accord with state and federal standards of confidentiality; and

e.Not be subject to physical, emotional, or sexual abuse or harassment by the staff or another client.

2.A DUI seminar shall implement a written procedure stating the form and manner in which a client may file a grievance that explains the grievance and appeal procedures in a manner that can be understood by the client. 75-09.1-09-14. Provider criteria.

1.A DUI seminar instructor shall have at least a two-year degree or its equivalent or at least one year of professional work experience in the education, health, human services, or criminal justice field.

2.A DUI seminar instructor shall not engage in the illegal use of drugs nor conduct the DUI seminar while under the influence of alcohol or other mood-altering drugs.

3.A DUI seminar instructor shall be certified by the department to teach the department-approved curriculum. To achieve certification by the department, the instructor candidate shall meet all DUI seminar instructor requirements, shall successfully complete the department-approved DUI seminar instructor training, and shall submit the certification application to the department.

4.A DUI seminar instructor shall be recertified by the department every two years. To maintain certification by the department, a DUI seminar instructor shall teach the DUI seminar at least twice per certification cycle and attend DUI seminar instructor recertification training coordinated by the department.

5.To achieve certification when a DUI seminar instructor has allowed certification to lapse, a DUI seminar instructor shall submit a letter to the department that must:

a.Show evidence that the DUI seminar program's curriculum has incorporated current DUI information and educational changes;

b.Provide an explanation for the DUI seminar instructor's lapse in certification; and

c.Contain a statement that the DUI seminar program has not provided DUI seminar services during the time period that the certification had lapsed. 75-09.1-09-15. Seminar program criteria.

1.A DUI seminar program shall follow the department-approved curriculum's sequence, schedule, format, process, and content.

2.A DUI seminar program shall use only those videos approved by the department for use in the DUI seminar and shall use those videos only at the times when the curriculum schedule permits their use.

3.A DUI seminar program shall provide each seminar participant with a new student booklet.

Books become the property of the client and are not to be reissued.

4.A DUI seminar program shall not continue a class for more than two hours without providing the clients with a break.

5.A DUI seminar program shall not count time for breaks beyond three ten-minute breaks per four-hour period toward the required hours of education to be provided to clients.

6.A DUI seminar program shall maintain a current list of licensed substance abuse programs and information on local recovery support groups.

7.A DUI seminar program shall ask all DUI seminar clients to complete a participant evaluation form at the conclusion of each seminar and will retain copies of the evaluations in accordance with its record retention policy.

8.A DUI seminar program shall not accept into the seminar a client who has completed the department-approved evaluation process more than six months prior to participation in the seminar.

9.A DUI seminar program shall conduct the seminar in classes that must last no more than four hours per session and only one session must be scheduled per calendar day unless an exception is granted by the department. 75-09.1-09-16. Seminar care criteria.

1.In order to fulfill a DUI seminar care criteria, a client shall:

a.Complete all required activities and assignments;

b.Attend all seminar sessions in sequence;

c.Attain a passing mark on the seminar post-test; and

d.Notify the department of transportation regarding the incident.

2.A DUI seminar program shall not admit to a class in progress a client who is more then fifteen minutes late unless extenuating circumstances exist. A client who arrives late to a class will be required to meet with the DUI seminar instructor to make up what the client missed.

3.A client must attend all DUI seminar sessions sequentially and may not be allowed to attend the next session after missing a class. The client must wait until the next session of the class has started and then may start the class again from the point where missed.

4.A DUI seminar program shall prohibit the illegal use of drugs and alcohol at the seminar site and shall implement a written policy for referral of a client for further assessment of alcohol or drug problems if they occur.

5.If a client arrives at a DUI seminar under the influence or during the seminar is under the influence, a DUI program shall:

a.Not admit the client into the class;

b.Discharge the client from the class;

c.Inform the client that the program will notify law enforcement if the client drives upon leaving the program; and

d.Notify the department of transportation regarding the incident. 75-09.1-09-17. Discharge criteria.

A DUI seminar program will discharge a client when:

1.The client has completed the seminar and all seminar requirements;

2.The client does not comply with the program; or

3.The client arrives at the seminar under the influence or is under the influence during the seminar. 75-09.1-09-18. Sanctions.

1.The department may immediately revoke a DUI seminar's license upon a finding of a type II condition.

2.A DUI seminar must submit to the department a plan of corrective action within thirty days of the licensure visit when a type I condition has been found. A type I condition will result in a condition with ninety days allowed to implement the plan and satisfy the cited condition.

3.The department may conduct another onsite review prior to issuing a continued license after a DUI seminar has developed a plan of corrective action for any type I or type II condition.

4.The department shall issue a ninety-day suspension of a DUI seminar's license if the DUI seminar fails to timely satisfy a type I condition or develop a plan to satisfy the cited condition.

5.At the end of a ninety-day suspension of a DUI seminar license, the department may issue a provisional license that expires in no more than one year if the cited type I condition has been corrected.

6.The department shall revoke a DUI seminar license immediately if a DUI seminar fails to timely correct a type I condition.

7.During the three hundred sixty-five days following a license revocation for any type I or type II condition, a DUI seminar that has been the subject of a license revocation is prohibited from submitting a new application to the department for consideration for a new license for any facility or program. 75-09.1-09-19. Appeals.

An applicant for or a holder of a DUI seminar license may appeal a decision to deny, suspend, or revoke a license by filing a written appeal with the department within thirty days of receipt of written notice of such a decision. Upon receipt of a timely appeal, an administrative hearing must be conducted in the manner provided in chapter 75-01-03.

Chapter 75-09.1-10 Licensing and Treatment Standards for Opioid Treatment Programs

N.D. Admin. Code 75-09.1-10 Licensing and Treatment Standards for Opioid Treatment Programs

CHAPTER 75-09.1-10

LICENSING AND TREATMENT STANDARDS FOR OPIOID TREATMENT PROGRAMS

Section 75-09.1-10-01Definitions 75-09.1-10-02Requirements for Opioid Treatment Program License - Application 75-09.1-10-03Denial of Application for Opioid Treatment Program License 75-09.1-10-04Issuing License to Opioid Treatment Program 75-09.1-10-05Suspension and Revocation of License - Appeal 75-09.1-10-06Subsequent Licensing Inspection and Review 75-09.1-10-07Opioid Treatment Program Requirements 75-09.1-10-08Care of Adolescents in Opioid Treatment Program 75-09.1-10-09Treatment 75-09.1-10-10Opioid Treatment Program Administrative Organization and Responsibilities 75-09.1-10-11Facility and Clinical Environment 75-09.1-10-12Risk Management 75-09.1-10-13Opioid Treatment Program Closure 75-09.1-10-14Diversion Control 75-09.1-10-15Medical and Behavioral Standards 75-09.1-10-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1."Accreditation" means the process of review and acceptance by an accreditation body.

2."Accreditation body" means a body that has been approved by the administration under title 42, Code of Federal Regulations, part 8 to accredit opioid treatment programs using opioid agonist treatment medications.

3."Administration" means the substance abuse and mental health services administration of the United States department of health and human services.

4."Certification" means the process by which the administration determines that an opioid treatment program is qualified to provide opioid treatment under federal opioid treatment standards.

5."Certification application" means the application filed by an opioid treatment program for purposes of obtaining certification from the administration, as described in title 42, Code of Federal Regulations, part 8.

6."Center" means the center for substance abuse treatment within the administration which promotes the quality and availability of community-based substance abuse treatment services to which the administration has delegated certain responsibilities for the certification of opioid treatment programs.

7."Critical incident" means an event that could have a negative impact on a patient, a patient's family members, or the opioid treatment program or its staff, including an event that involves the loss of life or function, a serious physical or psychological injury, and a medication error.

8."Detoxification treatment" means the dispensing of an opioid agonist treatment medication in decreasing doses to a patient to alleviate adverse physical or psychological effects incident to withdrawal from the continuous or sustained use of an opioid and to bring the patient to a drug-free state.

9."Department" means the North Dakota department of human services.

10."Division" means the division of mental health and substance abuse services of the department.

11."Division of pharmacologic therapies" means a division of the center, which manages the day-to-day regulatory oversight activities, including supporting the certification and accreditation of opioid treatment programs, necessary to implement title 42, Code of Federal Regulations, part 8, on the use of opioid agonist medications.

12."Federal opioid treatment standards" means the standards in title 42, Code of Federal Regulations, part 8 that are used to determine whether an opioid treatment program is qualified to engage in opioid treatment and that set forth patient admission criteria.

13."Health care professional" means a physician assistant or an advanced practice registered nurse working under the medical director's supervision.

14."Long-term detoxification treatment" means detoxification treatment for longer than thirty days but not in excess of one hundred eighty days.

15."Maintenance treatment" means the dispensing of an opioid agonist treatment medication at stable dosage levels for a period in excess of thirty days in the treatment of an individual for opioid use disorder.

16."Medical and rehabilitative services" means services, such as medical evaluations, counseling, and rehabilitative and other social programs such as vocational and educational guidance, and employment placement, intended to help a patient become and remain a productive member of society.

17."Medical director" means a physician, licensed to practice medicine in the state, who assumes responsibility for administering all medical services performed by the opioid treatment program by whom the medical director is employed, either by performing the services directly or by delegating specific responsibility to authorized opioid treatment program physicians and health care professionals functioning under the medical director's direct supervision.

18."Medication unit" means a facility established as part of, but geographically separate from, an opioid treatment program from which licensed private medical practitioners or pharmacists dispense or administer an opioid agonist treatment medication or collect biological specimen samples for drug testing or analysis.

19."Opioid use disorder" reflects compulsive, prolonged self-administration of opioid substances that are used for no legitimate medical purpose or, if another medical condition is present that requires opioid treatment, that are used in doses greatly in excess of the amount needed for that medical condition.

20."Opioid agonist treatment medication" means any opioid agonist drug that is approved by the United States food and drug administration under section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) for use in the treatment of opioid use disorder.

21."Opioid" means any drug with the natural derivative of opium or synthetic psychoactive substance similar to morphine with capability to create physical dependence.

22."Opioid treatment" means the dispensing of an opioid agonist treatment medication, and the provision of a comprehensive range of medical and rehabilitative services, when clinically necessary, to an individual to alleviate the adverse medical. psychological or physical effects of an opioid use disorder.

23."Opioid treatment program" means a program engaged in opioid treatment, which is:

a.Certified as an opioid treatment program by the center;

b.Registered by the United States department of justice, drug enforcement administration under 21 U.S.C. section 823(g);

c.Accredited by an opioid treatment program accreditation body; and

d.Licensed as an opioid treatment program by the division.

24."Patient" means an individual who undergoes treatment in an opioid treatment program.

25."Program sponsor" means the person named in the application for certification under title 42, Code of Federal Regulations, part 8 as responsible for the operation of the opioid treatment program.

26."Short-term detoxification treatment" means detoxification treatment for a period not in excess of thirty days.

27."Treatment plan" means a plan that outlines for each patient attainable short-term treatment goals that are mutually acceptable to the patient and the opioid treatment program and which specifies the services to be provided and the frequency and schedule for their provision. 75-09.1-10-02. Requirements for opioid treatment program license - Application.

1.An applicant for licensure to operate an opioid treatment program, must hold a current license in good standing, or be eligible and become licensed prior to operating an opioid treatment program, as a substance abuse treatment program under any of the following chapters: 75-09.1-02, 75-09.1-02.1, 75-09.1-03, 75-09.1-03.1, 75-09.1-04, 75-09.1-04.1, 75-09.1-05, 75-09.1-05.1, 75-09.1-06, 75-09.1-06.1, 75-09.1-07, or 75-09.1-07.1. Chapter 75-09.1-01 applies to this chapter with the following exceptions:

a.Section 75-09.1-01-20. Discharge and transfer criteria.

b.Section 75-09.1-01-25. Accreditation as a basis for licensing.

c.Section 75-09.1-01-26. Sanctions.

2.Prior to applying for a license to operate an opioid treatment program in this state, a prospective opioid treatment program provider shall provide documentation proving the need for an opioid treatment program in the specific area of the state being considered, and shall obtain written approval from the division to pursue licensure. The potential provider's documentation must include an assessment of the following criteria:

a.Whether other existing services and facilities of the type proposed are available or accessible to meet the needs of the population proposed to be served.

b.The extent to which the underserved need will be met adequately by the proposed program.

c.The impact of the service on the ability of low-income persons, racial and ethnic minorities, women, persons with disabilities, the elderly, and other underserved groups to obtain needed health care.

3.If the applicant is applying for licensure for the first time in this state, but operates an opioid treatment program in another state, the applicant shall submit a copy of national and state certification and accreditation documentation, and copies of all survey reports written by national and state certification and accreditation organizations for each site where they have operated an opioid treatment program over the past six years.

4.After receiving approval, the prospective opioid treatment program shall obtain:

a.Accreditation by an accreditation body.

b.Certification from the United States department of health and human services substance abuse and mental health services administration. An opioid treatment program that has applied to the administration for provisional certification while the opioid treatment program is working towards accreditation with an accrediting body may apply for licensure under this chapter.

c.Registration from the United States department of justice, drug enforcement administration, office of diversion control.

d.As determined necessary for any physician with the opioid treatment program, a data 2000 waiver for buprenorphine.

5.A potential opioid treatment program shall:

a.Submit documentation to the division showing the potential opioid treatment program provider has completed an assessment of need to determine there is a need for the proposed opioid treatment program as required under subsection 2.

b.Provide documentation ensuring the location for the new opioid treatment program meets county, tribal, or city land use ordinances.

c.Submit a completed community relations plan developed in consultation with the county, city, or tribal authority, or their designees, to minimize the impact of the opioid treatment program on the business and residential neighborhoods in which the program will be located. The plan must include documentation of strategies used to:

(1)Obtain community input regarding the proposed location;

(2)Address any concerns identified by the community; and (3)Develop an ongoing community relations plan to address new concerns expressed by the community as the concerns arise.

d.Submit a copy of the application for registration to the United States department of justice, drug enforcement administration.

e.Submit a copy of the application for certification to the center.

f.Submit a copy of the application for accreditation by an accreditation body.

g.Submit a plan describing reasonable transportation opportunities available to persons in need of treatment in their proposed service area to access the opioid treatment program.

h.Submit any additional information required by the division to assure the state and efficient operation of the facility.

6.An opioid treatment program shall enroll as an approved Medicaid provider in this state within ninety days of licensure under these rules. 75-09.1-10-03. Denial of application for opioid treatment program license.

1.The division shall deny an applicant's license:

a.When it fails to meet the requirements of section 75-09.1-10-02.

b.If the applicant has been denied, or has had revoked, the registration, accreditation, or certification required to be an opioid treatment program as set forth in subsection 22 of

section 75-09.1-10-01.

c.If any of the following occurred and was not resolved at a facility under the control of the applicant:

(1)A license for a substance use disorder treatment service or health care agency was denied, revoked, or suspended in the past;

(2)Found to have discriminated against, demonstrated cruelty, abuse, negligence, or misconduct toward, or indifference to the welfare of, a patient;

(3)Misappropriation of patient property or resources;

(4)Failed to meet financial obligations or contracted service commitments that affected patient care;

(5)Has a history of noncompliance with state or federal regulations in providing substance abuse treatment;

(6)Refused to allow the division access to records, files, books, or portions of the premises relating to operation of the substance abuse treatment program;

(7)Willfully interfered with the preservation of material information or attempted to impede the work of an authorized department representative;

(8)Advertised itself as licensed when a license has not been issued, or a license has been suspended or revoked; or (9)Has not demonstrated the capability to provide the appropriate services to assist patients in meeting goals, including:

(a)Abstinence from opioids and opioid substitutes;

(b)Obtaining mental health treatment;

(c)Improving economic independence; and (d)Reducing adverse consequences associated with illegal use of controlled substances.

d.If an owner or administrator of a facility under the control of the applicant:

(1)Has been convicted of child abuse or has been adjudicated as a perpetrator of child abuse;

(2)Has obtained or attempted to obtain a substance abuse treatment program license or health care provider license by fraudulent means or misrepresentation;

(3)Has been found guilty of, has pled guilty to, or has pled no contest to any of the offenses identified in paragraph 1 of subdivision c of subsection 1 of section 75-09.1-01-17;

(4)Has been found to have discriminated against, demonstrated cruelty, abuse, negligence, or misconduct toward, or indifference to the welfare of, a patient;

(5)Has misappropriated patient property or resources;

(6)Has failed to meet financial obligations or contracted service commitments that affect patient care;

(7)Has knowingly, or with reason to know, made a false statement of fact in the application or materials attached to the application;

(8)Has knowingly, or with reason to know, made a false statement of fact or failed to submit necessary information in any matter under investigation by the division; or (9)Does not meet criminal background check requirements. 75-09.1-10-04. Issuing license to opioid treatment program.

The division shall issue a license after a review of application materials and an onsite visit confirms the applicant has the capacity to operate in compliance with this chapter. The division may issue an initial license for up to one year and subsequent licenses for up to two years. 75-09.1-10-05. Suspension and revocation of license - Appeal. 1.a.The division may suspend or revoke a license for one or more of the following reasons:

(1)The opioid treatment program has violated any of the opioid treatment program licensing rules;

(2)The opioid treatment program has procured any license through fraud or deceit;

(3)The department, or any other state agency, has revoked any other license issued to the opioid treatment program;

(4)Any principal of the opioid treatment program has been found guilty of, has pled guilty to, or has pled no contest to any of the offenses identified in paragraph 1 of subdivision c of subsection 1 of section 75-09.1-01-17;

(5)The opioid treatment program has failed to report any important change in the information about a project as required;

(6)The opioid treatment program has failed to operate in accordance with the representations made in its application;

(7)The opioid treatment program has failed to operate in compliance with any applicable law, rule, or regulation;

(8)The opioid treatment program ceases to provide, or within one hundred eighty days from the date the license takes effect fails to commence to provide, the services it is authorized to provide.

b.The division shall provide the opioid treatment program written notice of which of the following actions is being taken and the basis for that action:

(1)Revocation of the operating license, without which the opioid treatment program may no longer operate;

(2)Suspension of the operating license, during which time, the opioid treatment program may not continue its operations;

(3)Limitation placed on the license temporarily or permanently prohibiting the opioid treatment program from operating certain identified programs or services, reducing the number of beds, restricting the number or types of patients served or imposing any other limitation determined appropriate by the division.

2.If an inspection of the opioid treatment program identifies that an opioid treatment program is not in compliance with any of the licensure requirements set forth by the division, the division shall notify the opioid treatment program in writing of the deficiencies identified.

3.The opioid treatment program shall respond to the notification of deficiencies within the time the division sets forth in the notice. The opioid treatment program shall include in its response a plan for the correction of the identified deficiencies or an explanation for its deviation from licensure requirements.

4.If the opioid treatment program fails to correct deficiencies or fails to provide a sufficient explanation for its failure to take action, the division may suspend or revoke the opioid treatment program's license or may require other corrective measures from the opioid treatment program. The division shall notify the opioid treatment program in writing of the action being taken.

5.If there are reasonable grounds for the division to believe that continued operation of the opioid treatment program presents an immediate danger to the health and welfare of the public or any person receiving services, the division may immediately suspend a license.

6.An opioid treatment program may request a hearing regarding any suspension, revocation, or limitation as provided in section 75-09.1-01-27.

7.If a license is revoked, the division may consider a new application for a license if the conditions upon which the revocations were based have been corrected and evidence of the corrections has been provided. A new license may be issued after the division has inspected the opioid treatment program and has found that the applicant has complied with all requirements for licensure. 75-09.1-10-06. Subsequent licensing inspection and review.

The division shall conduct licensure reviews of each licensed opioid treatment program at least once per year, with or without prior notice. The division shall inspect the opioid treatment program's services for compliance with all licensure requirements to determine the renewal term of the license. At the time of inspection, the opioid treatment program must have:

1.Maintained accreditation through an accreditation body;

2.Maintained certification from the administration;

3.Maintained registration with the United States department of justice, drug enforcement administration;

4.Maintained licensure as a substance abuse treatment program under any of the following chapters: 75-09.1-02, 75-09.1-02.1, 75-09.1-03, 75-09.1-03.1, 75-09.1-04, 75-09.1-04.1, 75-09.1-05, 75-09.1-05.1, 75-09.1-06, 75- 09.1-06.1, 75-09.1-07, and 75-09.1-07.1;

5.Must not have had any of the following occur without being resolved at a facility under the control of the applicant:

a.The facility's license for a substance abuse treatment program or health care agency denied, revoked, or suspended and was not reinstated without restrictions or limitations;

b.A finding that the facility discriminated against, demonstrated cruelty, abuse, negligence, or misconduct toward, or indifference to the welfare of, a patient;

c.Misappropriation of patient property or resources;

d.Failure to meet financial obligations or contracted service commitments which affected patient care;

e.Noncompliance with state or federal regulations in providing substance abuse treatment;

f.Refusal to allow the division access to records, files, books, or portions of the premises relating to operation of the substance abuse treatment program;

g.Willful interference with the preservation of material information or attempt to impede the work of an authorized department representative;

h.The facility advertised itself as licensed when a license has not been issued, or a license has been suspended or revoked; or

i.Failure to demonstrate the capability to provide the appropriate services to assist patients in meeting goals, including:

(1)Abstinence from opioids and opioid substitutes;

(2)Obtaining mental health treatment;

(3)Improving economic independence; and (4)Reducing adverse consequences associated with illegal use of controlled substances.

6.Must not have had an owner or administrator of a facility under the control of the applicant:

a.Be convicted of child abuse or be adjudicated as a perpetrator of child abuse;

b.Has obtained or attempted to obtain a health care provider license or substance abuse treatment program license by fraudulent means or misrepresentation;

c.Found guilty of, plead guilty to, or plead no contest to any of the offenses identified in paragraph 1 of subdivision c of subsection 1 of section 75-09.1-01-17;

d.Found to have discriminated against, demonstrated cruelty, abuse, negligence, or misconduct toward, or indifference to the welfare of, a patient;

e.Misappropriate patient property or resources;

f.Fail to meet financial obligations or contracted service commitments in a way that affected patient care;

g.Knowingly, or with reason to know, made a false statement of fact in the application or materials attached to the application;

h.Knowingly, or with reason to know, made a false statement of fact or fail to submit necessary information in any matter under investigation by the division; or

i.Not meet criminal background check requirements. 75-09.1-10-07. Opioid treatment program requirements.

All licensed opioid treatment programs must comply with the following:

1.Patients must receive appropriate, comprehensive behavioral therapy from a licensed clinical professional, such as a licensed addiction counselor, a licensed independent clinical social worker, a licensed psychologist, or a licensed psychiatrist who is providing intervention beyond pharmacological management.

2.The opioid treatment program may continue medication-assisted treatment as long as the patient derives benefit from the treatment, desires to continue treatment and the physician or health care professional agrees to continue the treatment. A fixed length of time in treatment is not required as indefinite medication-assisted treatment may be clinically indicated. The medical director shall consider other medications during the course of treatment.

3.Federally approved pharmacological treatments for opioid addiction may be dispensed only by a licensed opioid treatment program.

4.The opioid treatment program shall establish comprehensive education and training requirements for physicians and other health care professionals, pharmacists, and licensed alcohol and drug abuse and behavioral health counselors affiliated with the opioid treatment program, which include relevant aspects of behavioral therapy and pharmacological treatment.

5.The opioid treatment program shall establish written rules of conduct for patients, which include a clear description of violations that may result in a patient's discharge from the treatment program. These rules must require a patient to participate in urinalysis as the opioid treatment program may direct. 75-09.1-10-08. Care of adolescents in opioid treatment program.

For a patient younger than eighteen years of age to be eligible for maintenance treatment in the opioid treatment program, the patient is required to have had two documented attempts at short-term detoxification treatment or drug-free treatment within a 12-month period. The program physician or other health care professional shall document in the patient's record that the patient continues to be or is again physiologically dependent on narcotic drugs. A patient under eighteen years of age may not be admitted to a maintenance treatment program unless a parent, legal guardian, or other person authorized by law to consent to treatment for the patient completes and signs consent form, "Form FDA 2635 Consent to Methadone Treatment". 75-09.1-10-09. Treatment.

1.The opioid treatment program shall ensure the clinical assessment of each patient takes into account the patient's history of opioid addiction.

2.At all stages of treatment. psychosocial and medical treatment must be of sufficient intensity and duration to be effective. 75-09.1-10-10. Opioid treatment program administrative organization and responsibilities.

1.Each opioid treatment program shall develop a referral and consultative relationship with a network of agencies and providers capable of providing primary and specialty services for the range of behavioral difficulties, psychiatric comorbid conditions, medical complications, and communicable diseases that may be part of a patient's treatment needs. Any information exchanged across this network must facilitate treatment and protect patient privacy, consistent with the Health Insurance Portability and Accountability Act, and title 42, Code of Federal Regulations, part 2.

2.Each opioid treatment program shall create a written statement of its mission and goals for patient care.

3.An opioid treatment program shall maintain individualized personnel files as a record of employment. These files must contain employment and credentialing data, employment application data, date of employment, updated licensing and credentialing data, detailed job descriptions, performance evaluations, and appropriate training records.

4.An opioid treatment program shall require a criminal history record investigation as set forth under section 75-09.1-01-17 for an employee prior to allowing the employee to work with either adult or adolescent patients.

5.An opioid treatment program shall complete outcomes and data reports as requested by the division.

6.An opioid treatment program shall utilize the prescription drug monitoring program at least monthly for each patient. 75-09.1-10-11. Facility and clinical environment.

1.Each opioid treatment program shall ensure that its facility:

a.Has sufficient space and adequate equipment for the provision of services, including diagnosis, evaluation, and treatment of other medical, psychiatric, and behavioral disorders, if they are to be provided onsite.

b.Is clean and well-maintained.

2.Each opioid treatment program shall ensure protection of patient confidentiality, in accordance with federal and state confidentiality requirements.

3.The program sponsor is the responsible party and assumes responsibility for all of the opioid treatment program's employees, including a practitioner, agent, or other person providing medical, rehabilitative, or counseling services at the opioid treatment program or any of its medication units. The program sponsor need not be a licensed physician but shall employ a licensed physician in the position of medical director. An opioid treatment program shall submit a proposed change in its program sponsor to the division for approval at least sixty days prior to the effective date of the proposed change.

4.The medical director of an opioid treatment program is responsible for monitoring and supervising all medical services provided by the program. Only a licensed physician may serve as the medical director of an opioid treatment program. If there is a change in medical director, the opioid treatment program shall notify the division in writing within thirty days of the change. 75-09.1-10-12. Risk management.

1.Each opioid treatment program shall:

a.Establish procedures to guard against critical incidents.

b.Provide a mechanism to address patient emergencies by establishing an emergency contact system, as appropriate within confidentiality requirements.

c.Ensure that there are staff members on duty who are trained and proficient in cardiopulmonary resuscitation, management of opioid overdose, medical emergencies, and other techniques as appropriate.

d.Establish and regularly update policies and procedures which address safety and security issues for patients and staff, including training for staff to handle physical or verbal threats, acts of violence, inappropriate behavior, and other escalating and potentially dangerous situations, especially those in which security guards or police need to be summoned.

e.Shall provide information to patients on an ongoing basis, on the risks of discontinuing services, and on the potential consequences of using other substances.

f.Establish a policy on creation and use of individualized induction and dosing schedules for each patient.

g.Establish a policy for patients to take home medication for unsupervised use.

2.Each opioid treatment program shall create and maintain a plan for continuity of care for patients, including emergency procedures for obtaining access to medications in case of temporary program closure during service disruptions, such as those that may occur due to a major disaster or a more routine event, such as a snow storm. Each opioid treatment program shall develop and maintain an electronic database consisting of client identification, emergency contact information, patient's current dose, last date medication administered, and number of take-home doses allowed as part of the patient's plan and must include a mechanism for informing each patient of the emergency arrangements. If there is a service disruption, the opioid treatment program shall implement its emergency plan and shall forward its database and plan to the division.

3.Each opioid treatment program shall:

a.Develop procedures for reporting critical incidents to appropriate opioid treatment program staff, to the facility's accrediting body, and to the division within twenty-four hours of the critical incident.

b.Establish procedures to ensure:

(1)Full documentation of each critical incident.

(2)Prompt investigation and review of the situation surrounding each critical incident.

(3)Implementation of timely and appropriate corrective action.

(4)Corrective actions are monitored until their effectiveness is assured.

(5)Medication is dispensed safely if a patient presents with concerning behavioral or medical signs and symptoms.

4.If a patient chooses to discontinue services against medical advice, the opioid treatment program shall explain the risks of discontinuing services and offer information about, and referral to, alternative treatment options. 75-09.1-10-13. Opioid treatment program closures.

If an opioid treatment program closes involuntarily or voluntarily, the opioid treatment program shall:

1.Provide the division with a plan detailing procedures to ensure continuity of care for patients.

The plan must include steps for the orderly transfer of patients, records, and assets to other programs or practitioners to:

a.Assure appropriate referral of patients to avoid disruption in patient care;

b.Preserve the confidentiality of patient records; and

c.Ensure appropriate access to financial records and accounts.

2.The opioid treatment program shall notify the division of the anticipated closure at least ninety days prior to the closure, and identify the rationale for closure and the efforts to establish continuity of care for the patients. An opioid treatment program experiencing difficulties in maintaining its operations shall exercise due diligence to ensure patients have access to reasonable care upon the opioid treatment program's closure. 75-09.1-10-14. Diversion control.

Each opioid treatment program shall develop:

1.A diversion control plan that demonstrates accountability to its patients and to the community.

The diversion control plan should reflect the efficient use of personnel and other resources to achieve the highest quality of patient care, while reducing possibilities for diversion of controlled substances from legitimate treatment to illicit use.

2.Each opioid treatment program shall inform its patients that diversion will be reported to law enforcement and the division and shall indicate how suspicions or evidence of diversion will be handled clinically. Each opioid treatment program shall establish clinical procedures to minimize diversion risk to ensure appropriate treatment, such as:

a.Routine toxicology screens;

b.Pill call backs for counting;

c.Bubble packing of prescriptions; and

d.Making copies of the identification numbers listed on the "strip" packaging to be available for call backs.

3.Each opioid treatment program shall:

a.Provide regular and continuous staff education.

b.Review program policies and procedures at least annually.

c.Adhere to universal or standard infection control precautions promulgated by the centers for disease control and prevention. 75-09.1-10-15. Medical and behavioral health standards. 1.a.A physician or other health care professional for the opioid treatment program must diagnose opioid use disorder for an individual to be admitted for opioid treatment. The physician or other health care professional shall document or cosign the diagnosis, and admit each patient to maintenance treatment or detoxification treatment, as medically necessary. If pharmacological treatment is medically appropriate and prior to prescribing methadone, the physician or other health care professional shall assess whether it is appropriate to treat the patient with buprenorphine.

b.An individual must have a one-year history of addiction to be admitted to a maintenance treatment program. An individual with less than a one-year history of dependence may be admitted to undergo detoxification treatment. The absence of current physiological dependence is not an exclusion criterion; admission is acceptable when clinically justified. An opioid treatment program may accept arrest and medical records, information from significant others and relatives, and other information as documentation of the one-year history of addiction.

c.An opioid treatment program may waive the requirement that the individual have a one-year history of active addiction for an individual with a history of narcotic dependence who does not have current or active use, as a result of being released from a penal institution or having been previously treated.

d.A physician or other health care professional shall assess and review assessment results with each patient before the patient is approved for treatment with an opioid agonist treatment medication. If the physician or other health care professional determines admission of an individual is an emergency, the physician or other health care professional may review a medical examination performed by another qualified health care professional to make the required diagnosis that would allow admission of the individual, provided the physician or other health care professional reviews and countersigns the patient record within seventy-two hours of the patient's admission. The physician or other health care professional would subsequently review the assessment with the patient and discuss the medical services to be provided.

e.An opioid treatment program shall make an intravenous drug injecting individual or a pregnant woman a priority when prioritizing individuals for admission.

2.At a minimum, an opioid treatment program shall provide each patient with the following:

a.A comprehensive physical examination of the patient, including a review of health history, identification of other chronic or acute health conditions, current objective measures of health, pregnancy status of female patients, and laboratory work determined to be medically appropriate by a physician or other health care professional.

b.Based on the individual's history and physical examination, an evaluation of the possibility of infectious disease, liver or pulmonary conditions, cardiac abnormalities, psychiatric problems, dermatologic sequelae of addiction, and possible concurrent surgical and other problems.

3.An opioid treatment program shall:

a.Obtain voluntary, written, program-specific informed consent to treatment from each patient at admission, and written releases of information for all ancillary providers.

b.Inform each patient about all relevant treatment procedures and services and about other policies and regulations throughout the course of the patient's treatment.

c.Obtain, before medicating a patient, voluntary, written, informed consent from the patient to the specific pharmacotherapy ordered by the physician or other health care professional.

d.Inform each patient that:

(1)The goal of medication-assisted treatment is stabilizing of the patient's functioning.

(2)At periodic intervals of the patient's present level of functioning, course of treatment, and future goals, without placing pressure on the patient to withdraw from opioid agonist treatment medication or to remain on maintenance treatment unless the physician or other health care professional determines the proposed action to be medically indicated.

e.Inform each patient, at admission, about specific requirements and program policies regarding the report of suspected child abuse and neglect, danger of harm to self or others or both, abuse or neglect of a vulnerable individual, and other behaviors having negative impact on the patient or others.

f.Adhere to all requirements of federal confidentiality regulations, including the Health Insurance Portability and Accountability Act (Public Law 104-191; 110 Stat. 1936). 4.a.The medical director or other health care professional of an opioid treatment program shall refer a patient for medical or psychiatric treatment when the medical director or other health care professional determines it to be appropriate.

b.An opioid treatment program shall retain a patient in opioid treatment as long as treatment is clinically appropriate, medically necessary, acceptable to the patient, and the patient is considered to be adherent with the established rules of the program. c.(1)When a patient relocates, transfers to another treatment program, or needs temporary care at another program, the original opioid treatment program shall ensure the patient makes as smooth a transition as is feasible, and when possible shall avoid interruptions in treatment that could lead to relapse.

(2)The original opioid treatment program shall forward relevant records to the receiving opioid treatment program, with patient consent in accordance with the privacy standards of title 42, Code of Federal Regulations, part 2.

d.The opioid treatment program shall continue to provide psychosocial treatment for a patient who elects to discontinue pharmacotherapy. The opioid treatment program may continue to offer treatment, or referrals for continued psychosocial supports to patients as needed.

5.An opioid treatment program shall retain all records required by title 42, Code of Federal Regulations, part 8.12 for a minimum of seven years from the last date of service.

a.An opioid treatment program is required under title 42, Code of Federal Regulations, part 8.11(f)(3) to comply with confidentiality requirements set forth under title 42, Code of Federal Regulations, part 2.

b.A physician or other appropriate health care professional with the opioid treatment program shall write each medication order and dosage change on an acceptable order sheet and shall sign the sheet.

(1)Appropriate staff of the opioid treatment program shall make a record of each dosage the opioid treatment program dispenses, prepares, or receives and shall sign each entry to ensure a perpetual and accurate inventory of all medications and prescriptions, including controlled substances in stock at all times.

(2)Appropriate staff of the opioid treatment program shall document clearly the patient's individual medication dose history, the time that each dose is administered or dispensed, and the identification of who administered or dispensed the medication. 6.a.A physician or other health care professional:

(1)Who is with the opioid treatment program must be trained in the use of medication-assisted treatment to determine the individual dose of opioid medication for a patient.

(2)Who is with the opioid treatment program shall provide opioid agonist treatment medication as clinically indicated, and shall assess the patient's ability to tolerate the medication and whether the patient suffers negative effects.

(3)Who is with the opioid treatment program may not prescribe methadone on the first day it is administered to a patient in excess of thirty milligrams unless the physician documents a treatment need to prescribe an initial dose of forty milligrams.

(4)As clinically appropriate, may prescribe the admission of a patient to an opioid treatment program for detoxification treatment. Detoxification treatment is conducted as a voluntary and therapeutic process, agreed on between physician or health care professional and patient using current best practices.

b.An opioid treatment program shall have a procedure for calibrating medication-dispensing instruments, consistent with manufacturers' recommendations, to ensure accurate patient dosing and substance tracking.

c.An opioid treatment program may not adjust medication doses to reinforce positive behavior or to punish negative behavior, unless the patient is noncompliant with programmatic expectations and the taper constitutes the start of a detoxification treatment or a dosage increase needed to address the patient's symptoms.

d.The opioid treatment program should have the capability to obtain serum methadone levels when clinically indicated or urine-based buprenorphine or nor-buprenorphine levels.

7.An opioid treatment program shall take reasonable measures to prevent its patients from enrolling in treatment from more than one opioid treatment program. 8.a.If an opioid treatment program administratively discharges a patient from treatment using an opioid agonist treatment medication, the opioid treatment program shall offer a humane schedule of detoxification treatment, if clinically appropriate, provided doing so does not compromise the safety of staff or patients of the opioid treatment program.

b.An opioid treatment provider may determine during the process of ongoing assessment that a patient is not appropriate for treatment through the opioid treatment program and may be better served by other treatment modalities. Specifically, if a patient continues to use substances, engages in medication diversion, or fails to respond to the treatment plan, the opioid treatment program may find the patient is not appropriate for treatment through its programming and may administratively discharge the patient.

c.An opioid treatment program shall work with a patient to develop a plan of continuing care that includes discharge and recovery planning. An opioid treatment program shall ensure the discharge planning process includes procedures that address the patient's physical and mental health problems following detoxification treatment. The opioid treatment program shall include in the discharge plan, a plan for continuing care following the last dose of medication, including making a referral for continuing outpatient care as needed, and planning for reentry to maintenance treatment if relapse occurs and resumption of care continues to be appropriate.

9.Each opioid treatment program shall:

a.Use drug and alcohol screening and testing as aids in monitoring and evaluating patient's progress in treatment.

b.Ensure that treatment personnel in a medication-assisted treatment program understand the benefits and limitations of toxicological testing procedures.

c.Address results of toxicology testing with patients promptly.

d.Document in the patient record the results of toxicology tests and shall follow therapeutic interventions.

e.Ensure compliance with all federal regulations related to urine toxicology results, title 42, Code of Federal Regulations, part 8.12(f). An opioid treatment program must provide adequate testing of or analysis for drugs of abuse according to best practices.

f.For patients in short-term detoxification treatment, the opioid treatment program shall perform at least one initial drug abuse test.

Chapter 75-09.1-11 Substance Use Disorder Treatment Voucher System

N.D. Admin. Code 75-09.1-11 Substance Use Disorder Treatment Voucher System

CHAPTER 75-09.1-11

SUBSTANCE USE DISORDER TREATMENT VOUCHER SYSTEM

Section 75-09.1-11-01Definitions 75-09.1-11-02Application for Program Participation in the Substance Use Disorder Treatment Voucher System 75-09.1-11-03Program Denials and Revocations 75-09.1-11-04Program Review 75-09.1-11-05Agreement Required 75-09.1-11-06Services Qualifying for and Reimbursed by the Substance Use Disorder Treatment Voucher System 75-09.1-11-07Individual Eligibility for a Substance Use Disorder Treatment Voucher 75-09.1-11-08Approval of an Individual's Application and Voucher 75-09.1-11-09Denial of Substance Use Disorder Treatment Voucher 75-09.1-11-10Appeals of Denials of Eligibility for Substance Use Disorder Treatment Voucher 75-09.1-11-11Exceptions to Eligibility Rules Considered 75-09.1-11-12Process Measures and Outcomes Measures Reports Required 75-09.1-11-13Reimbursement Process 75-09.1-11-14Training and Technical Assistance 75-09.1-11-15Medical Expenses Reimbursement 75-09.1-11-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

1."ASAM criteria" means the current edition of the criteria of the American society of addiction medicine.

2."Certified peer support specialist" means a human being meeting the requirements of certified peer support specialist I or certified peer support specialist II in compliance with chapter 75-03-43.

3."Comprehensive biopsychosocial clinical assessment" means an assessment that integrates information regarding the biological, psychological, and social factors of an individual's life in determining the nature of the individual's substance use disorder and criteria for treatment.

4."Department" means the North Dakota department of health and human services.

5."Individual" means an individual who meets the identified eligibility criteria for services under the substance use disorder treatment voucher system.

6."Institution for mental diseases" means a hospital, nursing facility, or other institution of more than sixteen beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services.

7."Medical expenses" means approved and incurred direct costs of a program associated with the management of a medical condition to an individual whose medical assistance coverage is suspended while the individual is in an institution for mental diseases.

8."Outcomes measures" means the events or conditions that indicate the effectiveness of the substance use disorder treatment services.

9."Process measures" means the steps and actions taken to implement the substance use disorder treatment services.

10."Program" means an individual, partnership, association, corporation, or limited liability company that establishes, conducts, or maintains a substance abuse treatment program license in compliance with chapter 75-09.1-01 or similar license from a bordering state for the care of individuals with a substance use disorder. "Program" does not include a DUI seminar, which is governed by chapter 75-09.1-09 or a substance abuse treatment program operated by a state agency.

11."Voucher" means funding issued by the department to a licensed substance abuse treatment program, excluding state-operated behavioral health clinics and the state hospital, for the

purpose of providing eligible individuals substance use disorder treatment and recovery services.

History: Effective July 1, 2016; amended effective April 1, 2020; July 1, 2022; April 1, 2024; July 1, 2026. 75-09.1-11-02. Application for program participation in the substance use disorder treatment voucher system.

The department shall approve or deny a program's application within twenty working days of receipt of a complete application. The department may declare an application withdrawn if an applicant fails to submit all required documentation within sixty days of the department's notification to the applicant that the application is incomplete. A complete application includes:

1.A signed application in the form and manner prescribed by the department;

2.A signed agreement pursuant to section 75-09.1-11-05;

3.Receipt of the program's policies:

a.Ensuring compliance with this chapter;

b.Ensuring that a screening is completed to determine an individual's need for further assessment of a substance use disorder;

c.Ensuring that a screening is completed to determine financial eligibility consistent with the individual eligibility criteria in subsection 5 of section 75-09.1-11-07;

d.Defining specific ASAM level of care services provided through the substance use disorder treatment voucher system;

e.Ensuring that only appropriately licensed or certified staff are providing the specific level of care service that is being reimbursed through the voucher system;

f.Identifying services based on best practice, including individualized, trauma-informed, recovery-oriented, and person-centered programming for reimbursement through the substance use disorder voucher system;

g.Defining specific procedures to ensure reporting of process measures and outcomes measures consistent with department requirements;

h.Defining and developing specific procedures to ensure timely and accurate billing for services qualifying for reimbursement through the voucher system;

i.Defining procedures allowing the department access to records; and

j.Ensuring the reporting of any change in licensing status to the department; and

4.A completed assessment of need and receipt of approval from the department for an out-ofstate program located within a bordering state.

History: Effective July 1, 2016; amended effective July 1, 2022. 75-09.1-11-03. Program denials and revocations.

1.A program's application to participate in the voucher system may be denied if:

a.The program is:

(1)Not currently licensed under chapter 75-09.1-01;

(2)Not currently licensed as an out-of-state program located within a bordering state; or (3)Currently licensed as an out-of-state program located within a bordering state and has not received an assessment of need approval from the department;

b.The program is currently operating under a restricted license pursuant to subsection 2 of

section 75-09.1-01-03 or a similar license restriction for an out-of-state program located within a bordering state; or

c.The program's policies submitted to the department in accordance with subsection 3 of

section 75-09.1-11-02 fail to ensure compliance with this chapter.

2.A program's participation in the voucher system may be revoked for failure to:

a.Comply with the terms and conditions of the signed agreement between the program and the department;

b.Maintain licensing status in accordance with chapter 75-09.1-01 or similar license for an out-of-state program located within a bordering state;

c.Comply with or enforce the program's policies submitted as required by subsection 3 of

section 75-09.1-11-02;

d.Properly document and submit a request for a substance use disorder treatment voucher as required by section 75-09.1-11-08;

e.Provide a request for services covered by section 75-09.1-11-06;

f.Comply with section 75-09.1-11-13; or

g.Maintain, as an out-of-state program, an assessment of need approval from the department.

3.Payment on a voucher may be denied if:

a.A revocation of the program's participation in the voucher system has occurred prior to the date the service identified on the voucher was provided;

b.The program fails to comply with the terms and conditions of the signed agreement between the program and the department;

c.The out-of-state program fails to maintain an assessment of need approval from the department;

d.The program fails to comply with or enforce the program's policies submitted as required by subsection 3 of section 75-09.1-11-02;

e.The program does not have a valid substance abuse treatment program license on the date the service identified on the voucher was provided;

f.The program fails to properly document and submit a request for substance use disorder treatment voucher in accordance with section 75-09.1-11-08;

g.The program submits a voucher for a service that is not identified as a service provided under section 75-09.1-11-06;

h.The program submits a voucher for a service that the program is not approved to provide; or

i.The program fails to comply with section 75-09.1-11-13.

History: Effective July 1, 2016; amended effective July 1, 2022. 75-09.1-11-04. Program review.

1.A program whose application to participate in or payment through the substance use disorder treatment voucher system or request for reimbursement of medical expenses is denied or revoked may request a review of the decision by filing, within thirty days of the date of the department's notice of denial or revocation, a written notice with the department which includes a statement of each disputed item and the reason for the dispute.

2.A provider may not request review under this section if the denial or revocation is of a result of an exhaustion of appropriated funds for the substance use disorder treatment voucher system or reimbursement of medical expenses, provider no longer being licensed under article 75-09.1, submission of an invalid voucher or request for reimbursement of medical expenses, or the provider's application being considered withdrawn.

3.Within thirty days after requesting a review, a provider shall provide to the department all documents, written statements, exhibits, and other written information that supports the request for review.

4.The department shall assign a provider's request for review to someone other than an individual who was involved in the denial or revocation. A provider who has requested review may contact the department for an informal conference regarding the review any time before the department has issued its final decision.

5.The department shall make and issue its final decision within seventy-five days of receipt of the notice of request for review. The department's final decision must conform to the requirements of North Dakota Century Code section 28-32-39. A provider may appeal the final decision of the department to the district court in the manner provided in North Dakota Century Code section 28-32-42, and the district court shall review the department's final decision in the manner provided in North Dakota Century Code section 28-32-46. The judgment of the district court in an appeal from a request for review may be reviewed in the supreme court on appeal by any party in the same manner as provided in North Dakota Century Code section 28-32-49.

6.Upon receipt of notice that the provider has appealed its final decision to the district court, the department shall make a record of all documents, written statements, exhibits, and other written information submitted by the provider, affiliate, or the department in connection with the request for review and the department's final decision on review, which constitutes the entire record. Within thirty days after an appeal has been taken to district court as provided in this

section, the department shall prepare and file in the office of the clerk of the district court in which the appeal is pending the original or a certified copy of the entire record, and that record must be treated as the record on appeal for purposes of North Dakota Century Code section 28-32-44. 75-09.1-11-05. Agreement required.

The department shall enter an agreement with an eligible program in a form and manner prescribed by the department. 75-09.1-11-06. Services qualifying for and reimbursed by the substance use disorder treatment voucher system.

The department shall issue a voucher, if approved under section 75-09.1-11-08, as intent of payment for a specific qualifying service for each of the following services:

1.Screening. A program may submit a request for payment for screening to determine the need for further assessment of a substance use disorder.

2.Assessment. A program may submit a request for payment for a comprehensive biopsychosocial clinical assessment that complies with section 75-09.1-01-14 when an appropriate screening process has been completed, documented, and supports the need. The program shall inform the individual of the option of a voucher. If the assessment does not result in a recommendation for services consistent with ASAM criteria no further vouchers will be issued.

3.Treatment. A program may submit a request for payment for treatment when there is a biopsychosocial clinical assessment that complies with assessment requirements in article 75-09.1, the assessment has been completed within the last six months, and the department has approved the recommendations. The program shall inform the individual of the option of a voucher.

4.Recovery support services. A program may submit a request for payment for recovery support services when the need for those services is documented in a comprehensive biopsychosocial clinical assessment or an updated treatment plan. A voucher for recovery support services may be issued as payment for recovery support services while the individual is awaiting clinical treatment, during clinical treatment, or during extended treatment. 75-09.1-11-07. Individual eligibility for a substance use disorder treatment voucher.

1.The individual completes a voucher application in the form and manner prescribed by the department;

2.The individual resides in North Dakota;

3.The individual is twelve years of age or older;

4.The individual grants the department access to treatment and payment records consistent with the confidentiality requirements found under title 42, Code of Federal Regulations, part 2 and title 45, Code of Federal Regulations, part 164;

5.The individual does not have resources to cover any care for treatment or meets one of the following conditions:

a.Individual's third-party payment resources will not cover all costs for treatment;

b.Individual has a pending application for medical assistance which presents a barrier to timely access to treatment; or

c.Individual would not qualify for medical assistance and has no alternative third-party payment resources.

6.The individual has an annual income no greater than two hundred percent of federal poverty guidelines.

History: Effective July 1, 2016; amended effective April 1, 2020; July 1, 2022; April 1, 2024. 75-09.1-11-08. Approval of an individual's application and voucher.

1.An individual or a program shall submit the individual's voucher application and proper documentation to the department requesting a substance use disorder treatment voucher for screening, assessment, treatment, or recovery support services. A licensed professional operating within their scope of practice or a certified peer support specialist acting consistent with training and certification who is employed by a program approved to participate in the substance use disorder treatment voucher system may provide services under the voucher system. Documentation submitted by the program must be in the form and manner prescribed by the department and must be in compliance with established requirements for each voucher request.

2.An approved substance use disorder voucher must be activated for ninety days. If the service is not initiated within ninety days the voucher will no longer be valid and a new voucher will must be requested. Vouchers must allow payment at the rate established by the department for the specific ASAM service indicated. A new voucher must be activated for each service identified under section 75-09.1-11-06.

3.Within five working days of receiving a request for a voucher, the department shall notify the program submitting the request and the individual completing the application of the application approval. The department shall notify the individual of the programs that provide the specific service covered by the voucher.

History: Effective July 1, 2016; amended effective July 1, 2022; July 1, 2026. 75-09.1-11-09. Denial of substance use disorder treatment voucher.

1.The department shall notify the program or individual submitting the voucher application and the individual requesting the voucher within five working days of receipt of a request for voucher that the voucher application is denied. The department shall notify the program or individual that submitted the voucher within five working days of a voucher revocation. The department shall deny the individual's voucher application if:

a.The individual is not eligible pursuant to section 75-09.1-11-07; or

b.The program or individual submits a voucher application for a service that is not identified as a service provided under section 75-09.1-11-06.

2.The department shall inform the individual requesting the voucher of the reason for the denial and that the individual may appeal the denial if appealable. 75-09.1-11-10. Appeals of denials of eligibility for substance use disorder treatment voucher.

An individual who has requested a substance use disorder treatment voucher may appeal a decision to deny the voucher. An appeal under this section must be made in writing on a form developed and provided by the department within thirty days of the date of the notice issued under

section 75-09.1-11-09. An individual shall submit the written request for an appeal and hearing under North Dakota Century Code chapter 28-32 to the appeals supervisor for the department. An individual may not appeal a denial resulting from an exhaustion of appropriated funds for the substance use disorder treatment voucher system or an invalid voucher. 75-09.1-11-11. Exceptions to eligibility rules considered.

An individual or a program on behalf of an individual may request an exception to the eligibility criteria. Exceptions will be considered with regard to an individual meeting the eligibility criteria.

Exception requests will be reviewed on a case-by-case basis. The department may deny an exception and may revoke an exception granted under this subsection. The decision to deny or revoke an exception is not an appealable decision. 75-09.1-11-12. Process measures and outcomes measures reports required.

Programs receiving payments for services through the voucher system shall collect and report process measures and outcomes measures data to the department as determined by the department. 75-09.1-11-13. Reimbursement process.

Voucher system payments will be issued for only those services meeting the ASAM criteria for levels of care and for the specific, unbundled services provided using a standardized rate schedule.

The program shall submit requests for voucher system payments to the department and the department shall issue payment after the program submits the reports required in section 75-09.1-11-12. 75-09.1-11-14. Training and technical assistance.

The department shall provide training and technical assistance to all programs that apply to participate in the substance use disorder voucher system. All approved programs shall participate in the following training:

1.The implementation of the substance use disorder voucher system;

2.Determining individual eligibility;

3.The process and documentation required to submit requests for substance use disorder voucher approval;

4.The process and documentation required to submit billing for services that may be paid through the substance use disorder voucher system;

5.The process and documentation required to submit a request for reimbursement of medical expenses that may be paid by the department if the provider is also an institution for mental diseases;

6.Department-approved standards regarding best practices; and

7.Reporting requirements. 75-09.1-11-15. Medical expenses reimbursement.

1.A program that is also an institution for mental diseases may submit a request for reimbursement of medical expenses if:

a.The individual is deemed eligible for the substance use disorder treatment voucher in accordance with subsection 5 of section 75-09.1-11-07;

b.The individual's suspension of medical assistance is due to the individual being in an institution for mental diseases;

c.The program properly documents and submits a request for medical expenses reimbursement in the form and manner prescribed by the department;

d.The program allows the department access to necessary records to determine if the reimbursement of medical expenses is appropriate;

e.The program submits a new request for reimbursement of medical expenses for each request;

f.The approved payment being made by the department is to reimburse the program's actual cost; and

g.The department's approved payment does not exceed the total amount appropriated for medical expenses reimbursement.

2.Payment on a request for reimbursement of medical expenses may be denied if:

a.A revocation of the program's participation in the voucher system has occurred prior to the date the medical expenses were incurred by the program;

b.The program fails to comply with the terms and conditions of the signed agreement between the program and the department;

c.The program fails to comply with or enforce the program's policies submitted as required by subsection 3 of section 75-09.1-11-02;

d.The program does not have a valid substance abuse treatment program license on the date the medical expenses were incurred by the program;

e.The program fails to properly document and submit a request for reimbursement of medical expenses in accordance with this section;

f.The program submits a request for reimbursement of a medical expense that is not an approved expense;

g.Appropriated funds for the reimbursement of medical expenses have been exhausted;

h.The program is not an institution for mental diseases; or

i.The program fails to comply with this section.

3.The department shall issue a payment for reimbursement of medical expenses if the request and payment is in accordance with this section and within the limits of appropriated funds for the reimbursement of medical expenses.

History: Effective July 1, 2026.

Chapter 75-09.1-12 Licensing Standards for Medication Units

N.D. Admin. Code 75-09.1-12 Licensing Standards for Medication Units

CHAPTER 75-09.1-12

LICENSING STANDARDS FOR MEDICATION UNITS

Section 75-09.1-12-01Definitions 75-09.1-12-02Requirements for Medication Unit License - Application 75-09.1-12-03Issuing License to Medication Unit 75-09.1-12-04Denial of Application for Medication Unit 75-09.1-12-05Licensing Review Requirements 75-09.1-12-06Suspension and Revocation of License for Medication Unit - Appeal 75-09.1-12-07Medication Unit Requirements 75-09.1-12-08Health and Safety 75-09.1-12-09Medication Unit Closures 75-09.1-12-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1."Condition" means a violation of the requirements of any applicable law or regulation has occurred.

2."Corrective action plan" means a plan developed by the medication unit and submitted to the division identifying how the medication unit will correct a condition.

3."Department" means the North Dakota department of human services.

4."Division" means the behavioral health division of the department.

5."Home-base opioid treatment program" means the opioid treatment program licensed according to chapter 75-09.1-10 to operate the medication unit.

6."Interim license" means the proposed medication unit has met state requirements to move forward with federal requirements. A medication unit may not perform the duties of a medication unit under an interim license.

7."Medication unit" means a facility established as part of, but geographically separate from, an opioid treatment program from which licensed private medical practitioners or pharmacists dispense or administer an opioid agonist or antagonist treatment medication or collect biological specimen samples for drug testing or analysis. Medication units are not required to be free-standing entities and may be located within other facilities, including a hospital, homeless shelter, correctional program, or public health location.

8."Medication unit license" means a medication unit has met all state and federal requirements to operate the medication unit.

9."Patient" means an individual who undergoes treatment in an opioid treatment program who may receive partial services at the medication unit.

10."Recommendation" means a suggestion offered by the licensure team to strengthen and enhance the medication unit and services offered by the medication unit. 75-09.1-12-02. Requirements for medication unit license - Application.

1.A medication unit application for licensure to operate a medication unit shall hold a current license in good standing as an opioid treatment program under chapter 75-09.1-01.

2.Before applying for a license, the home-based opioid treatment program shall submit an assessment of need for the proposed location of a medication unit and obtain written approval by the division. The assessment of need must include an assessment of the following criteria:

a.A description of other existing services and medication units of the type proposed to meet the needs of the population proposed to be served in that location;

b.Justification for the need of a medication unit in the location;

c.Description of prospective operations for patient care at the medication unit; and

d.Community relations plan developed in consultation with the county, city, or tribal

authority, or designees.

3.Following written approval from the division to pursue licensure, the prospective medication unit shall submit a medication unit application, including required documentation and the application fee of one hundred fifty dollars to the department. Upon approval of the application requirements, the prospective medication unit may receive an interim license.

4.Within ninety days of receiving the interim license, a prospective medication unit shall submit to the division the following items for review:

a.Documentation of the updated certification by the United States department of health and human services substance abuse and mental health services administration, including the application and required materials sent for certification; and

b.Registration from the United States department of justice, drug enforcement administration.

5.To renew a medication unit license, the following must occur:

a.A licensing renewal conducted by the division;

b.Submission of application with required documentation to the division; and

c.Application fee paid to the department.

General Authority: NDCC 50-31-03.1, 50-31-09

Law Implemented: NDCC 50-31-03.1, 50-31-09 75-09.1-12-03. Issuing license to medication unit.

The division shall issue a license following:

1.A review and approval of application materials for up to one year and subsequent licenses for three years;

2.A licensing review with no conditions issued; or

3.A review and approval of implementation of any corrective action plan required as a result of a licensing review or investigation. 75-09.1-12-04. Denial of application for medication unit.

The division shall deny an applicant's license:

1.When the applicant fails to meet the requirements of this chapter; or

2.The home-base opioid treatment program's license is not in good standing or has been suspended or revoked. 75-09.1-12-05. Licensing review requirements.

1.The division shall conduct a licensing review within one year of the initial license and at least every three years thereafter to determine continued compliance with the standards contained in this chapter.

2.The division may conduct scheduled or unscheduled visits at times other than routine licensing reviews.

3.Within thirty days of the licensing review, the division shall send a licensure review report to the medication unit.

4.A licensure review report must contain a description of:

a.The medication unit reviewed;

b.Any conditions issued; and

c.Any recommendations.

5.A medication unit receiving a condition shall submit to the division a corrective action plan within thirty days from receipt identifying how the medication unit will become compliant with the standards contained in this article.

6.The medication unit has sixty days after the corrective action plan is submitted to implement the actions to become compliant with the standards contained in this chapter.

7.The division shall require documentation or conduct an onsite review or both to ensure the medication unit has implemented its corrective action plan. 75-09.1-12-06. Suspension and revocation of license for medication unit - Appeal.

1.The division may suspend or revoke a license for one or more of the following reasons:

a.The home-based opioid treatment program's license has been suspended or revoked;

b.The medication unit has violated any rules of the department; or

c.If the medication unit fails to correct conditions or fails to provide a sufficient explanation for its failure to take action, the division may suspend or revoke the medication unit's license or require other corrective measures from the medication unit.

2.An applicant for or a holder of a license may appeal a decision to deny, suspend, or revoke a license as set forth in section 75-09.1-01-27. 75-09.1-12-07. Medication unit requirements.

All licensed medication units shall:

1.Provide medication dosing and may provide urine screen collection and shall adhere to all state and federal regulations for those services. Any other services provided at the medication unit must have prior approval by the division;

2.Develop and implement a policy on the physical operations of a medication unit in conjunction with services at the home-based opioid treatment program;

3.Develop and implement a policy identifying the criteria a patient must meet to receive services offered at the medication unit;

4.Identify in a patient's treatment plan the services received at a medication unit;

5.Provide orientation to each patient regarding the services offered through the medication unit;

6.Develop treatment plans that reflect the utilization of a medication unit;

7.Develop and implement a process for a patient's continuity of care between services conducted at the medication unit and the home-based opioid treatment program;

8.Ensure all employee requirements required in chapter 75-09.1-10 occur for employees of the medication unit;

9.Ensure the facility is clean and well-maintained; and

10.Provide protection of patient confidentiality, in accordance with federal and state confidentiality requirements. 75-09.1-12-08. Health and safety.

A medication unit shall:

1.Maintain health and safety policies and procedures;

2.Develop and implement a written emergency plan that addresses provisions for dealing with bomb threats, active shooter and other violent actions, fires, medical emergencies, natural disasters, and power failures;

3.Have staff certified in basic first aid and basic cardiac life support, and trained to respond to a suspected overdose;

4.Have overdose reversal medication readily available;

5.Make readily available first-aid equipment and supplies; and

6.Implement a written policy that addresses the use of nicotine products. 75-09.1-12-09. Medication unit closures.

If a medication unit closes involuntarily or voluntarily, the home-based opioid treatment program shall:

1.Provide the division with a plan detailing the procedures to ensure continuity of care for patients; and

2.Notify the division of the anticipated closure at least ninety days prior to the closure and identify the rationale for closure and the efforts to establish continuity of care for patients.

Article 75-09.2 Substance Use Disorder Early Intervention

Chapter 75-09.2-01 Alcohol and Drug Early Intervention Program

N.D. Admin. Code 75-09.2-01 Alcohol and Drug Early Intervention Program

ARTICLE 75-09.2

SUBSTANCE USE DISORDER EARLY INTERVENTION

Chapter 75-09.2-01Alcohol and Drug Early Intervention Program

CHAPTER 75-09.2-01

ALCOHOL AND DRUG EARLY INTERVENTION PROGRAM

Section 75-09.2-01-01Definitions 75-09.2-01-02Applications for Minor in Possession Program Certification 75-09.2-01-03Minor in Possession Program Certification Required 75-09.2-01-04Provider Criteria 75-09.2-01-05Background Check - Investigation 75-09.2-01-06Criminal Conviction - Effect on Provider Status 75-09.2-01-07Program Criteria 75-09.2-01-08Information Management 75-09.2-01-09Suspension 75-09.2-01-10Program Denials and Revocations 75-09.2-01-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

1."Department" means the North Dakota department of human services.

2."Division" means the behavioral health division.

3."Minor in possession program certification" means a certification provided to a provider by the division to provide an evidence-based alcohol and drug early intervention program for individuals who violate North Dakota Century Code section 5-01-08.

4."Provider" means a minor in possession program certified instructor or implementer of an evidence-based alcohol and drug early intervention program.

5."Program" means an evidence-based alcohol and drug early intervention program. 75-09.2-01-02. Application for minor in possession program certification.

1.Applicants shall submit to the division a signed application and all required information and documentation for minor in possession program certification in the form and manner prescribed by the department.

2.The department shall consider an application for minor in possession program certification complete when it has received all of the required information and documents in accordance with section 75-09.2-01-04. The division shall notify an applicant if an application is incomplete.

3.The department may declare an application for minor in possession program certification withdrawn if an applicant fails to submit all required information and documentation within thirty days of the department's notification to the applicant the application is incomplete. 75-09.2-01-03. Minor in possession program certification required.

1.A minor in possession program certification may not be transferred and is valid only for those providers and programs indicated on the minor in possession program certification.

2.A provider shall make available or display its minor in possession program certification in a place that is conspicuous to the public.

3.A provider shall be recertified by the division every three years, resubmitting all information under section 75-09.2-01-04. 75-09.2-01-04. Provider criteria.

1.To receive a minor in possession program certification or minor in possession program recertification, a provider shall submit proof of the following:

a.A bachelor's degree. The requirement of a bachelor's degree may be waived for driving under the influence seminar instructors licensed under chapter 75-09.1-09 prior to December 31, 2017;

b.Successfully pass a background check; and

c.Be certified in a department-approved program;

2.If recertifying, a provider shall submit required information in accordance with section 75-09.2-01-08; and

3.Provider's fees must be reasonable. 75-09.2-01-05. Background check - Investigation.

1.Each applicant and provider shall disclose to the department if they have been found guilty of, pled guilty to, or pled no contest to a criminal offense.

2.The applicant and provider shall disclose to the department the type of offense and dates and location of having been found guilty of, pled guilty to, or pled no contest to a criminal offense.

Such disclosure does not disqualify the applicant or provider, unless having been found guilty of, pled guilty to, or pled no contest to a crime having direct bearing on the capacity of the applicant or provider to provide a service under this chapter or the applicant or provider is not sufficiently rehabilitated.

3.The department may conduct a criminal background check on an applicant or provider.

4.The department shall determine the effect of an applicant or provider having been found guilty of, pled guilty to, or pled no contest to a criminal offense.

5.The department may investigate and inspect the applicant's or provider's activities, programs, qualifications, and proposed standards of care. 75-09.2-01-06. Criminal conviction - Effect on provider status.

1.An applicant or provider may not be an individual who is known to have been found guilty of, pled guilty to, or pled no contest to:

a.An offense described in North Dakota Century Code chapters 12.1-16, homicide; 12.1-18, kidnapping; 12.1-27.2, sexual performances by children; or 12.1-41, Uniform Act on Prevention of and Remedies for Human Trafficking; or in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-01.1, assault; 12.1-17-02, aggravated assault; 12.1-17-03, reckless endangerment; 12.1-17-04, terrorizing; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; 12.1-17-12, assault or homicide while fleeing a police officer; 12.1-20-03, gross sexual imposition; 12.1-20-03.1, continuous sexual abuse of a child; 12.1-20-04, sexual imposition; 12.1-20-05, corruption or solicitation of minors; 12.1-20-05.1, luring minors by computer or other electronic means; 12.1-20-06, sexual abuse of wards; 12.1-20-07, sexual assault; 12.1-21-01, arson; 12.1-22-01, robbery; or 12.1-22-02, burglary, if a class B felony under subdivision b of subsection 2 of that

section; 12.1-29-01, promoting prostitution; 12.1-29-02, facilitating prostitution; 12.1-31-05, child procurement; 14-09-22, abuse of child; or 14-09-22.1, neglect of child; or an offense under the laws of another jurisdiction which requires proof of substantially similar elements as required for conviction under any of the enumerated North Dakota statutes; or

b.An offense, other than an offense identified in subdivision a, if the department determines the individual has not been sufficiently rehabilitated.

2.For purposes of subdivision b of subsection 1, an offender's completion of a period of five years after final discharge or release from any term of probation, parole, or other form of community correction, or imprisonment, without subsequent conviction, is prima facie evidence of sufficient rehabilitation.

3.The department has determined the offenses enumerated in subdivision a of subsection 1 have a direct bearing on the individual's ability to serve the public in a capacity involving the provision of services under this chapter.

4.In the case of a misdemeanor offense described in North Dakota Century Code sections 12.1-17-01, simple assault; 12.1-17-03, reckless endangerment; 12.1-17-06, criminal coercion; 12.1-17-07.1, stalking; or equivalent conduct in another jurisdiction which requires proof of substantially similar elements as required for conviction, the department may determine the individual has been sufficiently rehabilitated if five years have elapsed after final discharge or release from any term of probation, parole, or other form of community corrections or imprisonment, without subsequent conviction.

5.An individual is known to have been found guilty of, pled guilty to, or pled no contest to an offense when it is:

a.Common knowledge in the community;

b.Acknowledged by the individual;

c.Reported to the department as the result of a background check; or

d.Discovered by the department. 75-09.2-01-07. Program criteria.

1.The program provided through the minor in possession program certification must be selected from a list of preapproved evidence-based programs identified by the division.

a.Provider is responsible to become and remain certified or credentialed in selected preapproved evidence-based programs.

b.Provider must meet all requirements for the selected program.

2.A provider may request an exception to the preapproved list. Exceptions will be reviewed by the division on a case-by-case basis. The provider shall submit to the division the program title, sample material, and evidence of effectiveness. The department may deny an exception granted under this subsection. The decision to deny an exception is not an appealable decision. 75-09.2-01-08. Information management.

Providers shall report annually to the division the following information:

1.Confirmation of program certification;

2.Number of individuals served through the program;

3.Number of repeat individuals served by the program; and

4.The number of classes provided. 75-09.2-01-09. Suspension.

The division may suspend a provider's minor in possession program certification at any time after the onset of an investigation. The department shall post all suspensions and revocations for at least one year. 75-09.2-01-10. Program denials and revocations.

1.An applicant's application may be denied if:

a.The applicant fails to comply with section 75-09.2-01-02; or

b.The applicant fails to meet the provider criteria pursuant to section 75-09.2-01-04.

2.A program's minor in possession program certification may be revoked for failure to comply with sections 75-09.2-01-03, 75-09.2-01-04, 75-09.2-01-07, and 75-09.2-01-08.

Chapter 75-07

N.D. Admin. Code 75-07

ARTICLE 75-07

MULTICOUNTY SOCIAL SERVICE DISTRICTS [Repealed effective April 1, 2020]

Chapter 75-09

N.D. Admin. Code 75-09

ARTICLE 75-09

ALCOHOL AND DRUG [Repealed effective October 26, 2004]