Monday, December 14, 2020 - 11:00am

BISMARCK, N.D. – The State of North Dakota and the U.S. Department of Justice (USDOJ) have reached a settlement agreement that outlines actions the state will take to expand home and community-based care services and enable individuals with physical disabilities to live in the least restrictive setting possible, Gov. Doug Burgum announced today.

“This settlement agreement expands the options available for home and community-based care and raises awareness to help adults with physical disabilities make informed decisions about their care needs,” Burgum said. “By building on the progress we made with the 2019 Legislature, we can achieve the goal of giving adults with disabilities the choice of receiving personalized care while continuing to enjoy the benefits of community living in the least restrictive setting.”

“The COVID-19 pandemic has highlighted the risk of transmission in congregate settings, making our state’s continuing expansion of home and community-based services all the more urgent to accommodate those who want to receive services at home,” Burgum added.

The settlement agreement meets the requirements of the 1999 Supreme Court decision in Olmstead v. L.C., which requires states to eliminate unnecessary segregation of persons with disabilities and to ensure that persons with disabilities receive services in the most integrated setting appropriate to their needs. It also reflects that home and community-based services are the preferred form of care for disabled adults and the most cost-efficient form of services.

“This landmark agreement helps ensure that North Dakotans with disabilities, including seniors, will have meaningful choice for where to live, including in their own home,” said United States Attorney Drew Wrigley. “That is one of the sacred promises enshrined in the Americans with Disabilities Act, and I commend Governor Burgum and his team for joining my office and the Department of Justice in securing this historic agreement.”

The Governor’s Office, North Dakota Department of Human Services (DHS) and North Dakota Attorney General’s Office participated in the negotiations with the USDOJ, which began its investigation into the state in November 2015 for potential violations of Title II of the Americans with Disabilities Act. The investigation was discussed in public hearings during the 2017-2019 interim and the 2019 legislative session.

“With this agreement, the Department of Human Services will continue to expand community supports and enable individuals with disabilities to choose housing and care options that are right for them,” DHS Executive Director Chris Jones said. “We aren’t doing this because we have to – we’re doing it because it’s the right thing to do.” Community supports are state-administered, long-term services and supports such as durable medical equipment, home modifications, nursing visits, transportation to medical appointments, personal care services and supervision services.

In spring 2019, the 66th Legislative Assembly approved and Burgum signed the DHS budget bill that increased funding for home and community-based services by $7.7 million for the 2019-21 biennium, and called for an interim study of revised payment methodology for long-term care providers. The governor’s 2021-2023 Executive Budget proposal builds upon that progress with increased funding to focus on home and community-based services across the state. 

Under the settlement agreement, DHS case managers will work with adults with physical disabilities to develop individual “person-centered” plans that identify all services and supports necessary to meet the individual’s needs in the most integrated and least restrictive setting. These plans will also identify service barriers and risks, and solutions to barriers, including the use of transition services for individuals who choose to transition to home and community-based services.

The agreement applies to two “target populations”:

  • The first target population includes adults with disabilities a) who are currently living in an integrated community setting but are at risk of becoming eligible for Medicaid-funded nursing facility services and care or b) who need additional community-based services to continue living in an integrated community setting.
  • The second target population includes a) adults with disabilities who reside in a nursing facility and receive Medicaid-funded nursing services or b) adults residing in a nursing facility at risk of becoming eligible for Medicaid.

Within nine months of the agreement’s effective date and annually thereafter, the state must conduct individual or group meetings in all nursing facilities to inform residents about community-based services and the agreement’s requirements.

Within 18 months, the state must make information about case management, community-based services, person-centered planning and transition services available to all target population members who are referred for placement in a nursing facility or screened for a continued stay in a nursing facility.

The state must also continue to expand community services statewide, including residential habilitation and companionship services. The state will develop a plan for housing supports and permanent supported housing options for those individuals who identify lack of housing as a barrier to receiving community-based services such as home health aide visits.

“North Dakota’s skilled nursing facilities, which serve thousands of residents, will experience changes but also opportunities under this agreement,” Jones said. “Care providers and case managers will have additional opportunities to connect people to services that are delivered closer to home, and communities will benefit by having the increased opportunity for people of all abilities to stay connected to community life.”

Under the agreement, the state will work with a designated subject matter expert to meet certain benchmarks during the eight-year term of the settlement agreement. The state can request that parts or all of the agreement end early if requirements are met.