75-02-02.1-19 - Inmates of public institutions

75-02-02.1-19. Inmates of public institutions

1. An inmate of a public institution is not eligible for medicaid unless the individual is:

a. Over age sixty-five and a patient in an institution for mental diseases;

b. Under age twenty-one, is a patient in an institution for mental diseases, and is receiving inpatient psychiatric services consistent with the requirements of 42 CFR 440.160 and 42 CFR part 441, subpart D, or, with respect to a patient who is eligible for medicaid and is receiving services in the institution when the patient reaches age twenty-one, inpatient psychiatric services under 42 CFR 440.160 may continue until age twenty-two; or

c. Receiving care as an inpatient in one of the following facilities:

(1) A hospital as defined in 42 CFR 440.140;

(2) A nursing facility as defined in 42 CFR 440.140 and 42 U.S.C. 1396 r(a);

(3) A psychiatric residential treatment facility as defined in 42 CFR 440.160; or

(4) An intermediate care facility for the intellectually disabled as defined in 42 CFR 440.140 and 440.150.

2. The period of ineligibility under this section begins the day after the day of entry and ends the day before the day of discharge of the individual from such an institution.

3. An individual on conditional release or convalescent leave from an institution for mental diseases is not considered to be a patient in that institution. However, such 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 until unconditionally released or, if earlier, the last day of the month in which the patient reaches age twenty-two.

4. For purposes of this section:

a. "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. An individual on "definite leave" from the state hospital is an individual on conditional release.

b. "Inmate of a public institution" means a person who has been sentenced, placed, committed, admitted, or otherwise required or allowed to live in the institution, and who has not subsequently been unconditionally released or discharged from the institution. An individual is not considered an inmate if:

(1) The individual is in a public educational or vocational training institution for purposes of securing education or vocational training;

(2) The individual is in a public institution for a temporary period pending other arrangements appropriate to the individual's needs;

(3) The individual has been unconditionally released from the institution; or

(4) The individual is receiving long-term care services in a public institution.

c. "Institution" means an establishment that furnishes (in single or multiple facilities) food, shelter, and some treatment or services to four or more persons unrelated to the proprietor.

d. "Institution for mental diseases" means an institution that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services. Whether an institution is 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, whether or not it is licensed as such. An institution for individuals with intellectual disabilities is not an institution for mental diseases.

e. "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:

(1) A medical institution as defined in 42 CFR 435.1010;

(2) An intermediate care facility as defined in 42 CFR 440.140 and 440.150;

(3) A publicly operated community residence that serves no more than sixteen residents, as defined in 20 CFR 416.231(b)(6)(i); or

(4) A child care institution as defined in 42 CFR 435.1010 with respect to:

(a) Children for whom foster care maintenance payments are made under title IV-E of the Act; and

(b) Children receiving aid to families with dependent children - foster care under title IV-A of the Act.

f. "Unconditionally released" means released, discharged, or otherwise allowed or required to leave the institution under circumstances such that a return to the institution cannot be required by the operator of the institution.

(Amended by Administrative Rules Supplement 2016-361, July 2016, effective July 1, 2016.)

General Authority: NDCC 50-06-16, 50-24.1-04

Law Implemented: NDCC 50-24.1-02, 50-24.1-06; 42 CFR 435.1008; 42 CFR 435.1009

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