Legal Reference/Authority 525-05-10

(Revised 2/5/16 ML #3465)

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Legal Reference/Authority

The legal references and authority for the HCBS programs (funding sources and services) administered by the HCBS Program Administration are as follows:

1. Home and community Based Services (Programs)

1. Medicaid Waivers

The legal authority for the Medicaid Waiver is Section 1915(c) of the Social Security Act.

The Medicaid Waiver is governed by the rules and regulations set forth in 42 CFR, Parts 431, 435, 440, and 441 as amended. For the Medicaid Waiver, see North Dakota Administrative Code (N.D.A.C.) 75-03-23. For legal authority regarding Adult Family Foster Care (service), see N.D.A.C. 75-03-21.

Waiver services cannot be provided in the following settings:

• A nursing facility; (Institutional Respite care is excluded from this requirement)
• An institution for mental diseases;
• An intermediate care facility for individuals with intellectual disabilities; or
• A hospital.

Section 50-24.1-04 of the North Dakota Century Codes designates the North Dakota Department of Human Services as the single state agency responsible for administering the state’s Medicaid Program. The Medical Services Division is primarily responsible for the waiver program that is administered by the Medical Services Division.

Federal regulations prohibit payment to the following:

• Spouse of the client.
• Parent(s) of the client who is a minor.  (The client is a minor child.)
• Any person court ordered or having signed a legal document agreeing to provide care to the client;
• Guardians

2. Service Payments for the Elderly and Disabled

The legal authority for the Department to operate the Service Payments for Elderly and Disabled (SPED) Program is found at N.D.C.C. 50-06.2-01(3) and to reimburse qualified service providers for the delivery of specific services provided to eligible persons is defined in N.D.C.C. 50-06.2-03(5), and 50-06.2-06. See also N.D.A.C. 75-03-23. For legal authority regarding Adult Family Foster Care (service), see N.D.A.C. 75-03-21.

Each county shall reimburse the Department for five (5) percent of the amount expended by the SPED Program for services to clients residing in their county. N.D.C.C. 50-06.2-05.1.

3. Expanded Service Payments for the Elderly and Disabled

The legal authority for the Department to operate the Expanded SPED Program is found at N.D.C.C. 50-24.5, Aid to Vulnerable Aged, Blind and Disabled Persons. An eligible beneficiary is defined at N.D.C.C. 50-24.5-01(9) and is the same as for persons eligible for the Basic Care Assistance Program. Authority to reimburse qualified service providers for the delivery of specific services provided to eligible persons is defined in N.D.C.C.50-24.5-02(4). See also N.D.A.C. 75-02-10. For legal authority regarding Adult Family Foster Care (service), see N.D.A.C. 75-03-21.

2. Home and Community Based Services (Services)

1. Adult Family Foster Care

The legal reference/authority for the Adult Family Foster Care Program is N.D.C.C. 50-11, Foster Care Homes for Children and Adults, and N.D.A.C. 75-03-21, Licensing of Family Foster Homes for Adults.