N.D. Admin. Code Title 65.5 — Committee on Protection and Advocacy

Article 65.5-01 Committee on Protection and Advocacy

Chapter 65.5-01-01 Organization of Committee

N.D. Admin. Code 65.5-01-01 Organization of Committee

ARTICLE 65.5-01

COMMITTEE ON PROTECTION AND ADVOCACY

Chapter 65.5-01-01Organization of Committee 65.5-01-02Definitions 65.5-01-03Access to Records 65.5-01-04Authority of the Project 65.5-01-05Grievance Procedure 65.5-01-06Public Inquiry

CHAPTER 65.5-01-01

ORGANIZATION OF COMMITTEE

Section 65.5-01-01-01Organization and Functions of the Committee on Protection and Advocacy 65.5-01-01-01. Organization and functions of the committee on protection and advocacy.

1.Membership. The protection and advocacy project is governed by a committee which is made up only of those members appointed as provided by statute. Any vacancies on the committee must be filled as provided by statute.

2.Administrative status. The committee and project is an administrative unit of the executive branch of state government and is subject to the Administrative Agencies Practice Act, North Dakota Century Code chapter 28-32.

3.Committee officers. The committee shall elect annually from its membership a chair and a vice chair. The duties of these officers are those ordinarily attached to a presiding officer and a vice presiding officer respectively. Any dispute over the duties or powers of one of these officers shall be decided by vote of the committee.

4.Quorum. A majority of committee membership is required to constitute a quorum for the transaction of business. A majority vote of committee members participating in any meeting is required for committee action.

5.Meetings. The committee must meet at least four times each year. A meeting may be an in-person meeting or some members may attend electronically so long as each member attending electronically is able to participate in discussions and vote. If a member attends a meeting electronically but is unable to participate in discussions or voting, that member may not be counted in determining the presence of a quorum.

6.Conflicts of interests. A committee member may not be a service provider and may not have a fundamental conflict of interests with the lawful purposes of the committee. Each member shall complete and update annually a disclosure statement revealing any potential conflicts of interest.

If a conflict of interest arises in a specific matter, the affected member must abstain from deliberations and voting on the matter that gives rise to the conflict. The committee may disqualify any member from participating and voting on a matter that gives rise to a perceived conflict of interest.

Employees of the protection and advocacy project are not eligible for membership on the committee.

7.Misuse of position. A committee member shall not promote the interests of an employer, business, or other organization while acting under color of approval by the committee or the project. A committee member may not improperly use committee affiliation for personal, commercial, or financial purposes.

8.Executive director. The committee shall employ an executive director who shall perform the duties specified by statute and additional duties as assigned by the committee. Rules of the committee and project shall be promulgated by the executive director with the advice and consent of the committee.

History: Effective December 1, 1990; amended effective January 1, 1992; June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03, 28-32-02

Law Implemented: NDCC 25-01.3-02, 25-01.3-03, 28-32-01

Chapter 65.5-01-02 Definitions

N.D. Admin. Code 65.5-01-02 Definitions

CHAPTER 65.5-01-02

DEFINITIONS

Section 65.5-01-02-01Definitions 65.5-01-02-01. Definitions.

All definitions in North Dakota Century Code section 25-01.3-01 apply in this article except those defined in this section or unless the context requires a different meaning. As used in this article, unless the context otherwise requires:

1."Access to records" means the right to inspect records pertaining to an individual or group of individuals, including the right to make copies of those records.

2."Committee" is the committee on protection and advocacy as set forth in North Dakota Century Code section 25-01.3-02.

3."Consent" means voluntary permission, given by an individual who has been provided full disclosure of relevant facts and who has the ability to understand those facts. Permission from an adult is presumptively a valid consent, unless there is clear indication of the absence of full disclosure, voluntariness, or requisite mental ability.

4."Family member" includes only the following relatives who have maintained significant contacts with the individual involved: spouse, adult children, parents, adult stepchildren, stepparents, adult siblings, grandparents, and adult grandchildren.

5."Grievance" is a written document that initiates an administrative review as described in

chapter 65.5-01-05. A properly written grievance includes:

a.The name of the individual who is presenting the grievance;

b.The individual's status as applicant for services, a recipient of services, or a former recipient of services from the project; a parent of a minor applicant for, recipient of, or former recipient of services from the project; an individual's guardian acting on behalf of the individual, who is an applicant for, recipient of, or former recipient of services from the project;

c.The place where the incident occurred;

d.The date of the action or inaction that is the subject of the grievance;

e.The names of the project employees involved; and

f.A brief summary of the relevant facts.

6."Guardian" has the meaning assigned to that term in North Dakota Century Code section 30.1-01-06.

7."Individual" means a human being, including one who is deceased or whose whereabouts is unknown.

8."Inquiry" is a written document that initiates a public inquiry as described in chapter 65.5-01-06. A properly written inquiry includes:

a.The name of the individual who is initiating the public inquiry;

b.The status of the individual as a family member of an individual with a disability, service provider, or member of the general public;

c.An identification of the inquiry as concerned with a specific incident or with a general policy, procedure, or operations of the project;

d.If the inquiry concerns a specific incident:

(1)The date of the incident;

(2)The place where the incident occurred;

(3)The name of any service provider involved;

(4)The name of any individuals with disabilities who were primarily involved in the incident;

(5)The names of any project employees involved; and (6)A brief summary of the relevant facts; and

e.If the inquiry concerns a general policy, procedure, or operations of the project:

(1)Identification of the general policy, procedure, or operations of the project that are the subject of the inquiry;

(2)If possible, an example or examples of undesirable effects of the current general policy, procedure, or operations of the project that are the subject of the inquiry; and (3)Any proposed change in the general policy, procedure, or operations of the project that are the subject of the inquiry.

9."Monitoring" means the review of habilitation, treatment, program, or educational plans, facilities, programs, and all other services and care provided to persons with disabilities, including implementation of these plans, services, and care.

10."Plan" means the product of a team, acting under law, to guide interaction with an individual or the range of services to be provided to an individual. This includes all plans whether designated as an essential lifestyle plan, individual education plan, individual habilitation plan, individual justice plan, individual program plan, individual service plan, individual treatment plan, individualized written rehabilitation program, or otherwise.

11."Project" is the protection and advocacy project, as set forth in North Dakota Century Code

section 25-01.3-06.

12."Project's decision" is issued by the executive director after an administrative review conducted pursuant to chapter 65.5-01-05. This decision must include the reasons that support the decision and any action the project will take to implement the decision. This decision must not disclose any confidential information that the individual does not have the right to access. The decision must inform the individual that the project's decision may be appealed to the committee.

13."Records" means all records of every kind and nature.

14."Service provider" is an individual or entity that directly provides treatment or services to address needs related to a disability. Examples include services that address economic, educational, emotional, employment, housing, medical, mental health, personal, physical, psychological, psychiatric, or social needs. "Service provider" includes employees and board members of a service provider. Advocacy and self-advocacy training and support are not considered services for purposes of this definition.

History: Effective December 1, 1990; amended effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03, 25-01.3-07, 28-32-02

Law Implemented: NDCC 25-01.2-03, 25-01.3-07, 30.1-01-06

Chapter 65.5-01-03 Access to Records

N.D. Admin. Code 65.5-01-03 Access to Records

CHAPTER 65.5-01-03

ACCESS TO RECORDS

Section 65.5-01-03-01Access to Records - Representation - Investigation of Reports of Abuse, Neglect, or Exploitation and Complaints 65.5-01-03-01. Access to records - Representation - Investigation of reports of abuse, neglect, or exploitation and complaints.

1.The project will have access to records of an individual for representation of that individual and for investigation of complaints or reports of abuse, neglect, or exploitation. When those records are subject to confidentiality requirements imposed by statute, administrative

regulation, or court order, the project will have access to those records consistent with that statute, administrative regulation, or court order, if:

a.For an adult, access is consented to by the individual or the individual's guardian.

b.For a minor, access is consented to by the minor's parent or guardian.

c.The individual is unable to provide consent by reason of mental or physical condition, does not have a guardian or other legal representative, and either:

(1)The project has received a report or complaint; or (2)There is probable cause to believe:

(a)The individual has been subjected to abuse, neglect, or exploitation; or (b)There is a lack of compliance with federal or state laws or rules that affect the individual's habilitation or treatment plans, program plans, educational plans, or other services and care.

d.An individual's guardian has refused to consent, the project has probable cause to believe the guardian is not acting in the best interest of the individual, and either:

(1)The project has received a report or complaint; or (2)There is probable cause to believe:

(a)The individual has been subjected to abuse, neglect, or exploitation; or (b)There is a lack of compliance with federal or state laws or rules that affect the individual's habilitation or treatment plans, program plans, educational plans, or other services and care.

2.The project will have access to a facility's records in order to represent an individual or to investigate complaints or reports of abuse, neglect, or exploitation. The project will maintain the confidentiality of all records that have been designated confidential by another law, to the extent this is possible without compromising the primary responsibilities assigned to the project by law.

History: Effective December 1, 1990; amended effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-07, 28-32-02

Law Implemented: NDCC 25-01.3-07

Chapter 65.5-01-04 Authority of the Project

N.D. Admin. Code 65.5-01-04 Authority of the Project

CHAPTER 65.5-01-04

AUTHORITY OF THE PROJECT

Section 65.5-01-04-01Authority of the Project - Representation 65.5-01-04-02Authority of the Project - Investigation 65.5-01-04-01. Authority of the project - Representation.

1.Representation for specific individuals may be provided by the project consistent with North Dakota Century Code section 25-01.3-11 if:

a.For an adult, services are consented to by the individual or the individual's guardian.

b.For a minor, services are consented to by the minor's parent or guardian.

c.The individual is unable to provide consent by reason of mental or physical condition, does not have a guardian or other legal representative, and either:

(1)The project has received a report or complaint; or (2)There is probable cause to believe:

(a)The individual has been subjected to abuse, neglect, or exploitation; or (b)There is a lack of compliance with federal or state laws or rules that affect the individual's habilitation or treatment plans, program plans, educational plans, or other services and care.

d.An individual's guardian has refused to consent, the project has probable cause to believe the guardian is not acting in the best interest of the individual, and either:

(1)The project has received a report or complaint; or (2)There is probable cause to believe:

(a)The individual has been subjected to abuse, neglect, or exploitation; or (b)There is a lack of compliance with federal or state laws or rules that affect the individual's habilitation or treatment plans, program plans, educational plans, or other services and care.

2.The project shall attempt to obtain a signed authorization from each individual to whom representation is offered. A copy of signed authorization, if received, must be provided to the individual and the individual's guardian.

3.This section does not limit the ability of the project to represent individuals under 29 U.S.C. 794e, 42 U.S.C. 6042, 42 U.S.C. 10805, or North Dakota Century Code section 25-01.3-06.

History: Effective December 1, 1990; amended effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03, 25-01.3-06, 28-32-02

Law Implemented: NDCC 25-01.3-06, 25-01.3-11 65.5-01-04-02. Authority of the project - Investigation.

The project may investigate incidents of possible abuse, neglect, or exploitation reported to the project or which the project has probable cause to believe have occurred, pursuant to North Dakota Century Code chapter 25-01.3. If the project determines that an individual is unable to protect himself or herself from abuse, neglect, or exploitation, the project may take such action as is necessary to provide for protection of the individual through essential services, subject to the limitations of North Dakota Century Code section 25-01.3-11.

History: Effective December 1, 1990; amended effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03, 25-01.3-06, 28-32-02

Law Implemented: NDCC 25-01.3-06, 25-01.3-11

Chapter 65.5-01-05 Grievance Procedure

N.D. Admin. Code 65.5-01-05 Grievance Procedure

CHAPTER 65.5-01-05

GRIEVANCE PROCEDURE

Section 65.5-01-05-01Informal Process 65.5-01-05-02Procedures 65.5-01-05-01. Informal process.

Disputes covered by this rule will be determined by administrative review which is an informal process.

History: Effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03

Law Implemented: NDCC 25-01.3-03, 25-01.3-06(9), 25-01.3-10, 28-32-05.1, 28-32-09 65.5-01-05-02. Procedures.

1.An individual has the right to administrative review of the actions or inaction of a project employee. This right is available only to an individual who is:

a.An applicant for services from the project;

b.A recipient or former recipient of services from the project;

c.A parent of a minor applicant for, recipient of, or former recipient of services from the project; or

d.An individual's guardian acting on behalf of the individual, who is an applicant for, recipient of, or former recipient of services from the project.

2.The administrative review that is available under this rule applies only to:

a.The denial of services to the individual by the project;

b.The amount, quality, or kind of services provided to the individual by the project; and

c.The legality of activities or policies of the project.

3.Administrative review by the project is an informal process with the following features:

a.Every reasonable accommodation will be provided if requested in advance by the individual to facilitate full participation despite any disability or alleged disability.

b.The process is initiated by a written grievance mailed or delivered to the executive director of the project. If the individual needs help to write the grievance, the project will assist the individual to get someone to help write the grievance.

c.The individual will be allowed to review and copy relevant documents that were relied upon by the project to make the decision that underlies the grievance. If the supplier of a document has prohibited the project from giving the document to the individual, the individual will be advised of the existence of the document but will have to obtain a copy from the source. If a document contains confidential information about another individual, the project will conceal that information and provide only a sanitized version of the document. If the document cannot be sanitized, the document will not be provided to the individual.

d.The executive director may designate a project employee to investigate the grievance.

The executive director may not designate this duty to the employee whose action or inaction is the subject of the grievance.

e.The individual has the right to have a personal interview included as part of the investigation of the grievance.

f.If a project employee has been designated by the executive director to investigate the grievance, that employee may recommend a decision to the executive director. The executive director will make the project's decision in each case.

4.The individual may appeal the project's decision to the committee.

a.The committee's review of the decision is limited to a determination of whether it was made in accordance with the project's policies and priorities.

b.The review will be considered at the next regularly scheduled committee meeting if it occurs at least ten days after receipt of the written appeal.

c.If the committee determines the decision is consistent with the project's policies and priorities, the committee must affirm the decision. If the committee determines the decision is not consistent with the project's policies and priorities, it must direct the executive director to reconsider the decision and revise it to conform to the project's policies and priorities.

d.The committee must protect confidentiality to the maximum extent permitted by law, considering a protected individual's right to waive that protection. When committee review of a decision might jeopardize confidentiality, that review must be conducted in a closed meeting that may be attended by only those people who are authorized under law to have access to all the confidential material that may be disclosed during that review.

5.The following time guidelines apply:

a.The administrative review must be initiated with a written grievance within fifteen days of the action or inaction that is the subject of the grievance.

b.The project must acknowledge receipt of the written grievance within seven days of receipt.

c.The investigation of the grievance must be completed within fifteen days of acknowledging receipt of the grievance unless there are reasonable delays in setting up a personal interview with the individual. If scheduling the personal interview causes reasonable delay, the investigation must be completed within ten days after the interview.

d.The executive director must issue a decision within fifteen days of completing of the investigation. The decision will be immediately mailed to the individual by certified mail.

e.The individual must file an appeal from the project's decision by sending or delivering a written notice of appeal to the committee within fifteen days of receipt of the decision.

f.The committee must issue its determination of an appeal within fifteen days of the meeting at which it is considered. The committee's determination will be immediately mailed to the individual by certified mail.

g.Any revised decision of the executive director must be issued within fifteen days of receipt of the committee's determination that it must be reconsidered. The committee will review any revised decision by the committee on protection and advocacy within fifteen days of its issuance. Any revised decision will be mailed to the individual by certified mail from the committee no later than fifteen days after its review.

History: Effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03

Law Implemented: NDCC 25-01.3-03, 25-01.3-06(9), 25-01.3-10, 28-32-05.1, 28-32-09

Chapter 65.5-01-06 Public Inquiry

N.D. Admin. Code 65.5-01-06 Public Inquiry

CHAPTER 65.5-01-06

PUBLIC INQUIRY

Section 65.5-01-06-01Purpose 65.5-01-06-02Procedures 65.5-01-06-01. Purpose.

The public inquiry process is available to facilitate communication among the project and members of the public when more informal means of communication are not appropriate. Any issue that is not eligible for treatment within the administrative review process is eligible for handling under the public inquiry process. This includes issues presented by people who are not eligible to utilize the administrative review process, for example, service providers and the general public.

History: Effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03

Law Implemented: NDCC 25-01.3-02 65.5-01-06-02. Procedures.

1.Any issue related to policy, procedure, or operations of the project may be presented for consideration through the public inquiry process.

2.The public inquiry process is initiated by sending or delivering a written inquiry to the project's executive director. If the inquiry relates to a specific incident, it must be sent or delivered to the executive director within fifteen days of that incident. An inquiry may be submitted at any time for general consideration of policies, procedures, or operations of the project.

3.Upon receipt of a written inquiry, the project will acknowledge receipt within ten days.

4.The project will invite input to its consideration of a public inquiry as follows:

a.If the inquiry involves a specific incident and a specific service provider:

(1)The inquirer will be invited to provide additional information directly to the executive director who may designate a project employee to receive that information and to develop any factual inquiry.

(2)Based upon that inquiry, the executive director will decide upon any appropriate action to be undertaken by the project. Notice of any action will be provided to the inquirer, subject to the project's obligations to protect confidentiality.

(3)The inquirer may ask the committee to review the executive director's decision. The committee has complete discretion in determining whether to review that decision. If the committee exercises its discretion to review that decision, the committee's review will be limited to determining whether the decision is consistent with policies and procedures of the project. If the committee determines the decision is consistent with the project's policies and procedures, the committee must affirm the decision. If the committee determines the decision is not consistent with the project's policies and procedures, it must direct the executive director to reconsider the decision and revise it to conform to the project's policies and priorities.

b.If the inquiry involves a general policy, procedure, or operation of the project and does not involve a specific incident or specific service provider:

(1)The project may invite additional information or advice from appropriate people among the general public. This may include written input or meetings at which input may be offered.

(2)Based upon the input received, the executive director will decide upon any appropriate action to be undertaken by the project. Notice of any action will be provided to the inquirer, subject to the project's obligations to protect confidentiality.

Notice may be provided to the general public, depending upon the nature of the policy, procedure, or operation that has been considered.

(3)Anyone may ask the committee to review the executive director's decision. The committee has complete discretion in determining whether to review that decision. If the committee exercises its discretion to review that decision, the committee's review will focus on determining the best policies, procedures, and operations to govern the project. The committee has complete discretion in shaping its response to this review.

c.The committee must protect confidentiality to the maximum extent permitted by law, considering a protected individual's right to waive that protection. When committee review of a public inquiry might jeopardize confidentiality, that review must be conducted in a closed meeting that may be attended by only those people who are authorized under law to have access to all the confidential material that may be disclosed during that review.

History: Effective June 1, 1998.

General Authority: NDCC 25-01.3-02, 25-01.3-03

Law Implemented: NDCC 25-01.3-02