1. 1. 'Nursing facility level of care' means, for purposes of Medicaid and children's health insurance program, services provided by a facility that meets the standards for nursing facility licensing established by the department, and in addition, meets all requirements for nursing facilities imposed under federal law and regulations governing the Medicaid program and the children's health insurance program.

2. 2. Except as provided in subsection 3 or 4, an individual who applies for care in a nursing facility, or who resides in a nursing facility, may demonstrate that a nursing facility level of care is medically necessary only if any one of the criteria in this subsection is met.

1. a. The individual's nursing facility stay is, or is anticipated to be, temporary for receipt of Medicare part A benefits. A nursing facility stay may be based on this criterion for no more than fourteen days after termination of Medicare part A benefits.

2. b. The individual is in a comatose state.

3. c. The individual requires the use of a ventilator at least six hours per day, seven days a week.

4. d. The individual has respiratory problems that require regular treatment, observation, or monitoring that may only be provided by or under the direction of a registered nurse or, in the case of a facility which has secured a waiver of the requirements of 42 CFR 483.30(b), a licensed practical nurse, and is incapable of self-care.

5. e. The individual requires constant help sixty percent or more of the time with at least two of the activities of daily living of toileting, eating, transferring, and locomotion. For purposes of this subdivision, constant help is required if the individual requires a caregiver's continual presence or help without which the activity would not be completed.

6. f. The individual requires aspiration for maintenance of a clear airway.

7. g. The individual has dementia, physician-diagnosed or supported with corroborative evidence, for at least six months, and as a direct result of that dementia, the individual's condition has deteriorated to the point when a structured, professionally staffed environment is needed to monitor, evaluate, and accommodate the individual's changing needs.

3. 3. If no criteria of subsection 2 is met, an individual who applies for care in a nursing facility or who resides in a nursing facility may demonstrate that a nursing facility level of care is medically necessary if any two of the criteria in this subsection are met.

1. a. The individual requires administration of prescribed:

1. (1) Injectable medication;
2. (2) Intravenous medication or solutions on a daily basis; or
3. (3) Routine oral medications, eye drops, or ointments on a daily basis.- b. The individual has one or more unstable medical conditions requiring specific and individual services on a regular and continuing basis that can only be provided by or under the direction of a registered nurse or, in the case of a facility which has secured a waiver of the requirements of 42 CFR 483.30(b), a licensed practical nurse.
4. c. The individual is determined to have restorative potential and can benefit from restorative nursing or therapy treatments, such as gait training or bowel and bladder training, which are provided at least five days per week.
5. d. The individual requires administration of feedings by nasogastric tube, gastrostomy, jejunostomy, or parenteral route.
6. e. The individual requires care of decubitus ulcers, stasis ulcers, or other widespread skin disorders.
7. f. The individual requires constant help sixty percent or more of the time with any one of the activities of daily living of toileting, eating, transferring, or locomotion. For purposes of this subdivision, constant help is required if the individual requires a caregiver's continual presence or help without which the activity would not be completed.- 4. If no criteria of subsection 2 or 3 is met, an individual who applies to or resides in a nursing facility designated as a facility for nongeriatric individuals with physical disabilities may demonstrate that a nursing facility level of care is medically necessary if the individual is determined to have restorative potential.
8. 1. If no criteria of subsection 2, 3, or 4 is met, an individual who applies for care in a nursing facility may demonstrate that a nursing level of care is medically necessary if:
9. a. The individual has an acquired brain injury, including anoxia, cerebral vascular accident, brain tumor, infection, or traumatic brain injury; and
10. b. As a result of the brain injury, the individual requires direct supervision at least four hours a day, five days a week.
11. 1. a. Payment, by the department, for care furnished in a nursing facility to individuals who were applicants for or recipients of Medicaid or children's health insurance program benefits prior to admission to the nursing facility may be made only for periods after a nursing facility level of care determination is made. If a nursing facility admits an individual who has applied for or is receiving Medicaid or children's health insurance program benefits before a nursing facility level of care determination is made, the nursing facility may not solicit or receive payment, from any source, for services furnished before the level of care determination is made.
12. b. Payment, by the department, for care furnished in a nursing facility to individuals who become applicants for or recipients of Medicaid or children's health insurance program benefits after admission to the nursing facility may be made only after a nursing facility level of care determination is made.
13. c. Payment, by the department, for care furnished in a nursing facility to individuals who are eligible for Medicare benefits related to that care, and who are also eligible for Medicaid

or children's health insurance program, may be made only after a nursing facility level of care determination is made.

7. A nursing facility shall ensure that appropriate medical, social, and psychological services are provided to each resident of the facility who is dependent in whole or in part on the Medicaid program or children's health insurance program. The appropriateness of such services must be based on the need of each resident to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being, and must consider, among other factors, age.

History: Amended effective September 1, 1979; July 1, 1993; November 1, 2001; October 1, 2012; April 1, 2020; January 1, 2024.

Law Implemented: NDCC 50-24.1-04; 42 CFR Part 442