23-16-01.1. Moratorium on expansion of long-term care bed capacity
1. Notwithstanding sections 23-16-06 and 23-16-10, except when a facility reverts basic
care beds to nursing facility beds or relicenses nursing facility beds delicensed after
July 31, 2011, nursing facility beds may not be added to the state's licensed bed
capacity during the period between August 1, 2025, and July 31, 2029. A nursing
facility may not delicense nursing facility bed capacity, relicense nursing facility bed
capacity, convert licensed nursing bed capacity to basic care bed capacity, revert
licensed basic care bed capacity back to nursing facility bed capacity, or otherwise
reconfigure licensed nursing facility bed capacity more than two times in a
twelve-month period.
2. Transfer of licensed nursing facility bed capacity from a nursing facility to another
entity is permitted. The nursing facility may transfer the bed capacity either as nursing
facility bed capacity or basic care bed capacity. Transferred bed capacity must become
licensed by an entity within seventy-two months of transfer. Bed capacity transferred
as basic care bed capacity may not be reverted to nursing facility bed capacity at any
time. A receiving entity may transfer the received bed capacity to another entity within
the seventy-two-month period originally established at the time the nursing facility first
transferred the licensed nursing facility bed capacity. The subsequent receiving entity
must license the received bed capacity within the seventy-two-month period originally
established at the time of the first transfer.
3. A nursing facility may convert licensed nursing facility bed capacity to basic care. If the
converted beds remain in the same facility and are not transferred, the beds may
revert to nursing facility status after one year of licensure as basic care beds.
4. Nursing facility beds that are converted to basic care may be transferred as basic care
beds. However, upon the transfer, the basic care beds may not be relicensed as
nursing facility beds.
5. If a federally recognized tribal nation acquires nursing facility beds, the tribal facility
must meet state licensing requirements for those beds within seventy-two months of
acquisition. A tribal facility may seek to participate in the medical assistance programs.
Medical assistance payments may only be made to a Medicaid certified tribal facility
that agrees to participate and adhere to all federal and state requirements of the
medical assistance program, including participation, screening, ratesetting, and
licensing requirements.
6. A nursing facility, upon prior written notice to the department of health and human
services, may delicense a maximum of thirty percent of its licensed nursing facility bed
capacity and have the delicensed nursing facility held for a period of forty-eight
months. The total delicensed nursing facility bed capacity that may be held for a
nursing facility at no time may be greater than fifty percent of the number of currently
licensed beds in the nursing facility. Delicensed nursing facility bed capacity in excess
of fifty percent of the nursing facility's licensed capacity may not be held and is not
eligible for the provisions of subsection 7. Delicensed bed capacity not sold or
relicensed at the conclusion of the forty-eight-month holding period ceases to exist.
7. During the forty-eight-month holding period established at the time of delicensure,
delicensed nursing facility bed capacity that is being held for the nursing facility may
be:
a. Relicensed by the nursing facility. Relicensing of nursing facility bed capacity may
not occur for six months from the time of delicensure.
b. Transferred to another entity as nursing facility bed capacity or basic care bed
capacity. The receiving entity must license the transferred bed capacity as the
type of bed capacity transferred within a seventy-two-month period established at
the time of transfer. Bed capacity transferred as basic care bed capacity may not
be reverted to nursing facility bed capacity at any time. A receiving entity may
transfer the received bed capacity to another entity within the seventy-two-month
period established at the time of transfer. The subsequent receiving entity must
license the received bed capacity within the seventy-two-month period
established at the time of transfer.
c. Licensed as basic care beds by the same facility. If the licensed basic care beds
remain in the same facility and are not transferred, the beds may be reverted to
licensed nursing facility bed capacity after twelve months.
8. Notwithstanding any other provision of this section, a nursing facility bed transferred
before July 1, 2019, must be relicensed by the receiving entity within a
seventy-two-month period established at the time of transfer.
9. Notwithstanding any other provision of this section, a nursing facility bed in the
layaway program before July 1, 2019, may remain in the program for forty-eight
months from the time the bed was first laid away.
