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.

1. 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:
2. (1) The applicant's or recipient's cooperation in establishing paternity or securing medical support is reasonably anticipated to result in:
   1. (a) Physical harm to the child for whom support is to be sought;
   2. (b) Emotional harm to the child for whom support is to be sought;
   3. (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
   4. (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
3. (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.
   1. (a) The child for whom support is sought was conceived as a result of incest or forcible rape;
   2. (b) Legal proceedings for the adoption of the child are pending before a court of competent jurisdiction; or
   3. (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.
4. 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.
5. 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:
6. (1) The present emotional state of the individual subject to emotional harm;
7. (2) The emotional health history of the individual subject to emotional harm;
8. (3) Intensity and probable duration of the emotional impairment;
9. (4) The degree of cooperation to be required; and
10. (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.

Law Implemented: NDCC 50-24.1-01