# Title 75 — Department of Human Services

## Article 75-02 — Economic Assistance

## Chapter 75-02-02.4 — Home and CommunityHome and Community-Based Services Informed Choice Referrals

### § 75-02-02.4-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:
1. "Case manager" means the individual who coordinates and leads the person-centered
planning process, and who provides each target population member with information about
and assistance in accessing home and community-based services.
2. "Community provider" means an individual or entity that provides one or more home and
community-based services, paid in whole or part by the department, to target population
members.
3. "Department" means the North Dakota department of human services.
4. "Home and community-based services" means department-administered long-term services
and supports that target population members are eligible to receive, and which are determined
to be necessary through a person-centered planning process to serve target population
members in the community.
5. "Informed choice" means:
a. The process by which the department ensures target population members have an
opportunity to make an informed decision about where to receive services;
b. A choice made after the department has provided virtual or face-to-face person-centered
planning and information about the benefits of integrated settings; which may include
facilitated visits or other experiences in such settings; and offered opportunities to meet
with other individuals with disabilities who are living, working, and receiving services in
integrated settings, with their families, and with community providers; and
c. Making reasonable efforts to identify and address any concerns or objections raised by
the target population member or another relevant decisionmaker.
6. "Most integrated setting" means a setting, determined through person-centered planning, that
enables individuals with physical disabilities to interact with nondisabled persons to the fullest
extent possible. The most integrated setting for a target population member usually will be a
private residence owned or rented by the individual or their family member and in which the
individual or their family member has property rights.
7. "Nursing facility level of care" means criteria that an individual must meet to be eligible to
receive services provided by a nursing facility, pursuant to section 75-02-02-09.
8. "Person-centered planning" means:

a. A Medicaid-mandated process, which is driven by the individual, that identifies supports
and services that are necessary to meet the individual's needs in the most integrated
setting;
b. The individual directs the process to the maximum extent possible and is provided
sufficient information and support to provide informed choice; and
c. The process is timely and occurs at times and locations convenient to the individual,
reflects the cultural and linguistic considerations of the individual, provides information in
plain language and in a manner that is accessible to individuals within the target
population, and includes strategies for resolving conflict or disagreement that arises in
the planning process.
9. "Physical disability" means an impairment, including age-related impairments, that
substantially limits a major life activity, including one or more major bodily functions, that the
individual meets nursing facility level of care.
10. "Public and private entities" include those organizations enrolled as North Dakota Medicaid
providers who submit nursing facility level of care determinations for target population
members in need of long-term care.
11. "Target population member" means an individual with a physical disability over the age of
twenty-one who is eligible or likely to become eligible to receive Medicaid long-term services
and supports and is likely to require such services for at least ninety days.
History: Effective January 1, 2021.
General Authority: NDCC 50-06-16, 50-06.2-03(6)
Law Implemented: 42 USC 12102; 28 CFR 35, Appendix B; 28 CFR 35.108; 42 CFR 441.725; S.L.
2019, ch. 37, § 44
### § 75-02-02.4-02. Informed choice for target population members.

The department will work with public and private entities in identifying target population members in
order to inform them about home and community-based service options. A public or private entity may
not require target population members and their guardians or legal representatives to consent to the
referral or sign a release of information before a referral is made. However, target population members
and their guardians or legal representatives may refuse to participate in the informed choice process.
The target population is comprised of:
1. Individuals with physical disabilities who are at serious risk of entering nursing facilities to
access Medicaid-funded long-term care composed of individuals with physical disabilities who:
a. Have been referred for a level of care determination screening to access nursing facility
services and are likely to require long-term services and supports;
b. Need services to continue living in the community, have impairments that make them
likely to screen at a nursing facility level of care, and have been determined eligible for
service payments for the elderly and disabled with less than twenty-five thousand dollars
in assets; or
c. Need home and community-based services to continue living in the community and
currently have a case management provider or have contacted the North Dakota aging
and disability resource link; and
2. Individuals with physical disabilities who:

a. Are receiving Medicaid-funded nursing facility services and are likely to require long-term
services and supports; or
b. Are receiving nursing facility services, are likely to become eligible for Medicaid within
ninety days, have submitted a Medicaid application, and seeking approval for a long-term
nursing facility stay.
History: Effective January 1, 2021.
General Authority: NDCC 50-06-16, 50-06.2-03(6)
Law Implemented: S.L. 2019, ch. 37, § 44
### § 75-02-02.4-03. Powers and duties of the department.

The department has the following powers and duties under this chapter:
1. To assign a case manager to complete the informed choice process.
2. To provide information through a person-centered planning process led by the case manager
to target population members and their guardians or legal representatives about home and
community-based service options and the benefits of integrated settings.
3. To ask target population members or their guardians or legal representatives to provide written
or verbal confirmation that they received information through a person-centered planning
process, or that they waive their right to receive such information. The department shall retain
documentation of the consent or waiver.
4. To determine and develop the type of information necessary to provide the target population
members or their guardians or legal representatives with an opportunity to decide whether
they oppose receiving services in the least integrated setting appropriate to meet their needs.
5. To provide information about transition supports that may be available to target population
members already receiving services in a nursing facility who do not oppose receiving services
in the community.
6. To not unnecessarily delay the hospital discharge or nursing facility admission process of
target population members if an appropriate referral has been made by a public or private
entity to the North Dakota aging and disability resource link or through the request for a level
of care determination no later than the day a request for a nursing facility level of care
determination is submitted for approval.
7. To assist target population members in accessing home and community-based services if the
target population member or their guardian or legal representative do not oppose receiving
services in the community and services are appropriate to meet their needs.
8. To not impede any decision made to receive services in a nursing facility for those target
population members or their guardians or legal representatives who determine after receiving
information about home and community-based options to receive or continue to receive
services in a nursing facility.
History: Effective January 1, 2021.
General Authority: NDCC 50-06-16, 50-06.2-03(6)
Law Implemented: S.L. 2019, ch. 37, § 44

### § 75-02-02.4-04. Powers and duties of public and private entities.

Public and private entities enrolled as North Dakota Medicaid providers have the following powers
and duties to assist the department in identifying target population members and informing target
population members about home and community-based service options:
1. To make a referral in a form and manner determined by the department to the North Dakota
aging and disability resource link or through the request for a level of care determination for all
target population members and their guardians or legal representatives who formally request
or are referred for placement in a nursing facility or who are screened for a continued stay in a
nursing facility. Nursing facility level of care screening determinations will not be made for
target population members unless an appropriate referral has been submitted to the aging and
disability resource link or through the request for a level of care determination.
2. To make a referral as soon as the target population member or their guardian or legal
representative formally requests or is referred for placement in a nursing facility but no later
than the day when a nursing facility level of care is submitted for approval.
3. To inform target population members, or their guardians or legal representatives, in a form and
manner determined by the department, that a referral to complete the informed choice
process must be made.
4. To afford case managers full access to target population members who are residing in or
currently admitted to their facility to complete the informed choice process.
5. To not prevent or impede the informed choice process or attempt to influence in any way the
decision of a target population member or their guardian or legal representative to receive
services in the most integrated setting appropriate to meet their needs.
History: Effective January 1, 2021.
General Authority: NDCC 50-06-16, 50-06.2-03(6)
Law Implemented: S.L. 2019, ch. 37, § 44
### § 75-02-02.4-05. Service availability.

The extent to which appropriate services other than informed choice services are available to target
population members are dependent upon legislative appropriations and resources. Eligibility for
informed choice services does not create an entitlement to services other than information about home
and community-based service options if resources are not available.
History: Effective January 1, 2021.
General Authority: NDCC 50-06-16, 50-06.2-03(6)
Law Implemented: S.L. 2019, ch. 37, § 44
### § 75-02-02.4-06. Disclosure.

Public and private entities may disclose target population members individually identifiable health
information to the department or its contractors for referral purposes and the disclosure is a disclosure
for treatment, including the provision, coordination, and management of health care.
History: Effective January 1, 2021.
General Authority: NDCC 50-06-16, 50-06.2-03(6)
Law Implemented: S.L. 2019, ch. 37, § 44
