# Title 75 — Department of Human Services

## Article 75-02 — Economic Assistance

## Chapter 75-02-02.1 — Eligibility for Medicaid

Individuals, and Spousal Impoverishment Prevention

Methodology
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37; 42 USC 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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.

General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37; 42 USC 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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
eligibility.
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37
### § 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 twelve-
month period ends.

History: Effective December 1, 1991; amended effective December 1, 1991; July 1, 2003; May 1,
2006; January 1, 2023.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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
month.
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
month.
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04

Law Implemented: NDCC 50-24.1-37; 42 U.S.C. 1396a(e)
### § 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
assets.
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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;
and
(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
assets.
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
assets.
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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;
and
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.

General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
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
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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
Age Life Estate Remainder 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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
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;
and
(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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37; 42 USC 1396a(e)
### § 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
methodology.
History: Effective January 1, 2014.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-37; 42 USC 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-37; 42 U.S.C. 1396a(e)
### § 75-02-02.1-34.3. Reasonable compatibility of income for individuals subject to a MAGI-based

methodology.
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
eligibility.
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 self-
employment, 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-37; 42 U.S.C. 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02, 50-24.1-37; 42 USC 1396a(e)
### § 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.
History: Effective January 1, 2014.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02, 50-24.1-37; 42 USC 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02, 50-24.1-37; 42 USC 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02, 50-24.1-37; 42 USC 1396a(e)
### § 75-02-02.1-38.3. Disregarded income for certain 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, 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 emergency-
type 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-37; 42 USC 1396a(e)
### § 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.
History: Effective January 1, 2014.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-37; 42 USC 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02, 50-24.1-37; 42 USC 1396a(e)
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.
History: Effective January 1, 2014.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-37; 42 USC 1396a(e)
### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01

### § 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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-01, 50-24.1-37; 42 USC 1396a(e)
### § 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
month.
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
eligibility.
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.
General Authority: NDCC 50-06-16, 50-24.1-04
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.
General Authority: NDCC 50-06-16, 50-24.1-04
Law Implemented: NDCC 50-24.1-02
### § 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
Law Implemented: NDCC 50-24.1-02

### § 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.
