Adult Foster Care 525-05-30-15

(Revised 03/01/2024 ML #3829)

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Legal Authority

Code of Federal Regulations 42 CFR 441.301(c)(4)

N.D. Century Code 50-11

N.D. Century Code 50-25.2

N.D. Administrative Code 75-03-21

Purpose

The purpose of Adult Foster Care (AFC) is to offer a choice within a continuum of care to adults who could benefit from living in a family environment, as well as to promote independent functioning to the limit of an individual's ability and provide for a safe and secure environment.

The facility must be a specific physical place that can be rented or occupied under a legally enforceable agreement by the individual receiving services, and the individual has, at minimum, the same responsibilities, and protections from eviction that tenants under the landlord/tenant law of the State, county, city, or other designated entity.

All adult foster care individuals must have a signed Service and Rental Agreement according to North Dakota Administrative Code Chapter 75-03-21-12. A copy of the agreement must be maintained in the individual’s file. Any changes to this agreement must be sent to the HCBS Case Manager and AFC Program Administrator.

Service Eligibility, Criteria for:

The individual receiving Adult Foster Care will meet the following criteria:

1. Must be eligible for the programs of Medicaid Waiver for Home and Community Based Services, SPED, or ExSPED;
2. Be at least eighteen years of age or older;
3. Not be eligible for or receiving foster care for children;
4. Have needs or a disability that makes a family home environment an appropriate care setting;
5. A licensed Adult Foster Care setting is available;
6. Not be related by blood or marriage to the licensed provider;
7. The care required by the individual of Adult Foster Care does not exceed the documented skill in personal care of the available licensed provider; and
8. The care is provided by a licensed Adult Foster Care facility provider.

Service Payment Procedures

1. If public funds are used for payment, the following criteria applies:

1. A rate of no more than the current maximum room and board rate per month shall be paid to the licensed provider by the individual for board and room costs.

• The first source for the board and room cost is from the individual’s income.
• Another potential source of funds could be county general assistance funds.
• SPED funds, Ex-SPED funds, and Medicaid Waiver funds cannot be used for room and board. Room and Board is the responsibility of the individual and is not included in the provider's daily rate.

2. The service payment for Adult Foster Care is a flat daily rate that is set by the Department.
3. Under the SPED program, other funding (i.e. private pay, county funds) may augment the Adult Foster Care Service payment.  

2.  If the funding source is self-pay, the following applies:

1. The service payment is the amount negotiated between the individual or their representative, and the licensed AFC provider.
2. Case Management is not a required service.
3. The AFC provider is required to notify the HCBS licensor of any individual’s receiving AFC in the home, including individual’s that are self-pay.
4. The HCBS licensor is required to notify the AFC Program Administrator of any changes within the licensed home regarding AFC recipients.

Service Tasks

The service tasks/activities within the scope of this service chapter are identified on the Authorization to Provide Services, otherwise known as the Preauth.

To avoid duplication homemaker, chore, emergency response system, residential care, transitional care, attendant care, environmental modification, and non-medical transportation are not allowable service combinations for individuals receiving AFC. Non- medical transportation is a component of AFC and is included in the rate.

Prohibited Activities effective 12/31/2016.

The provision of adult foster care services funder under the waiver, SPED or Ex-SPED must ensure an individual’s right of privacy, dignity, and respect. Coercion, seclusion, or restraint of waiver individuals is expressly prohibited in all adult foster care settings.

1. The Code of Federal Regulations 42 CFR 441.301(c)(4) requires that all home and community-based settings meet certain qualifications. These include:

   1. The setting is integrated in and supports full access to the greater community.

   2. Is selected by the individual from among setting options.

   3. Ensures individual rights of privacy, dignity and respect, and freedom from coercion and restraint.

   4. Optimizes autonomy and independence in making life choices; and

   5. Facilitates choice regarding services and who provides them.

   6. The final rule also includes additional requirements for provider-owned or controlled home and community-based residential settings. These requirements include:

   7. The individual has a lease or other legally enforceable agreement providing similar protections.

   8. The individual has privacy in their unit including lockable doors, choice of roommates and freedom to furnish or decorate the unit.

   9. The individual controls his/her own schedule including access to food at any time.

   10. The individual can have visitors at any time; and

   11. The setting is physically accessible.

2. Any modification to these additional requirements for provider-owned home and community-based residential settings must be supported by a specific assessed need and justified in the person-centered service plan.

3. The HCBS Case Manager will monitor all Medicaid individuals residing in an AFC setting during required quarterly visits.

4. The first quarterly visit after the initial care plan will include a completion of the Home and Community Based Services (HCBS) Individual Adult Foster Care Setting Experience Interview, SFN 636.

   1. Any issue identified in the individual experience interview must be reported to HCBS Settings Administrator.

5. A copy of the SFN 636 must be sent to the HCBS Settings Administrator by emailing the form to the HCBS email.

   1. To assure ongoing compliance with HCBS settings rules, the HCBS Program Administrator will review the survey.

   2. The HCBS Settings Administator and HCBS Case Manager will then work with the licensed provider to remediate any issues or violations related to the HCBS Settings Rule.

6. The HCBS Case Manager will complete an SFN 636 annually thereafter.

Critical Incident Reporting

All critical incidents must be reported according to the Critical Incident Reporting policy (Critical Incident Reporting 525-05-42).

Unauthorized restraints are required to be reported as suspected abuse, neglect, or exploitation per NDCC 50-25.2.

Arranging for Adult Foster Care Service

When arranging for placement, the HCBS Case Manager must consider the following:

1. Care needs of the individual must not be in excess of the capacity of the provider;
2. The physical structure of the facility must allow for the needs of the individual (i.e. individuals who are not independently mobile); and
3. Any physical or mental condition that may deem Adult Foster Care inappropriate.

Service Combinations

Adult Foster Care is an inclusive 24-hour service. Therefore, Respite Care and Extended Personal Care are the only allowable service(s) that can be authorized with the Adult Foster Care Service.

NOTE: There must be more than one QSP identified on the care plan (i.e. there may be two or more licensed providers in the facility) as it is not reasonable to allow one provider to be responsible for 24 hours of care per day. If there is only one licensed AFC provider in the facility, respite must be authorized so that the provider can take necessary breaks away from their caregiving responsibilities.

An individual who is a resident of an Adult Foster Care facility may choose their respite provider and is not required to use a relative of the Adult Foster Care provider for respite. Respite providers must meet the QSP requirements.

When the individual in an Adult Foster Care setting receives overnight care in another adult foster care setting, the care rate is the same as the adult foster care rate and the procedure code used by the respite Adult Foster Care provider will be the Adult Foster Care procedure code.

Individual Out of Facility with Foster Care Provider

A provider may claim payment for care of the individual when the individual vacations with the foster care provider if the individual has continuously lived with the foster family for a substantial period of time, and the individual made an independent choice to vacation with the family. The provider must report the following to the HCBS Case Manager prior to departure:

1. The dates the individual will be vacationing with the foster family;  
2. The telephone number(s) where they can be reached;
3. The names and addresses of individuals they will be visiting, if applicable; and
4. A travel itinerary, if applicable.

The individual must remain in the care of the foster care provider. Care of the individual cannot be transferred to other family, friends, or anyone else during that time.

Providers

Adult Foster Care may NOT be provided by the following individual QSP's or employees of a QSP agency:

• Guardian
• Legally Responsible Person - Legal spouse or parent of a minor child.
• Relative within the definition of Family Home Care under subsection 4 of N.D.C.C. 50-06.2-02.

Provider Employment Outside of the Adult Foster Care Setting

Adult foster care is an inclusive 24-hour service. Therefore, employment outside of the facility is generally not allowable. An adult foster care provider may be employed outside the facility if the license to provide adult foster care was issued to more than one individual and at least one of the licensed individuals remains in the facility to provide the care.

The HCBS Case Manager must be informed of outside employment.

• The HCBS Case Manager notifies the AFC Licenser and Licensing Program Administrator to evaluate whether individual care would be negatively impacted.

If an AFC individual is enrolled in a day-program (documented in the individual’s plan of care) and is out of the facility, outside employment by the AFC provider may be considered during the hours the AFC recipient is away. However, individual care cannot be compromised.

Employing AFC respite care providers or a substitute caregiver to assist in the daily operation of the AFC home is prohibited. Respite caregivers may provide care only in the absence of the provider.