FERDERER v. NORTH DAKOTA DEPARTMENT OF HEALTH AND HUMAN SERVICES (2026)

[¶1] Matthew Ferderer appeals from a district court's order affirming the decision of the North Dakota Department of Health and Human Services denying Ferderer's application to participate in the Family Paid Caregiver Program. We conclude the Department improperly relied upon eligibility criteria that should have been formally promulgated as an administrative rule. We reverse and remand to the district court with directions that it remand the matter to the Department for further action consistent with this opinion.

I

[¶2] The legislature enacted the Family Paid Caregiver Service Pilot Project through 2023 Senate Bill 2276. 2023 N.D. Sess. Laws ch. 418. The Department manages and operates the Project. N.D.C.C. § 50-24.1-47(1). The Project provides state-funded payments to legally responsible individuals who provide “extraordinary care to an eligible individual who is a participant in the Medicaid 1915(c) waivers, excluding the home and community-based services aged and disabled waiver.” N.D.C.C. § 50-24.1-47(1). Section 50-24.1-47(3) requires the Department “utilize an assessment of an eligible individual to determine the level of care authorized and to determine the best interests of the individual in need of care.”

[¶3] The legislature authorized the Department to adopt rules, establish eligibility requirements, and manage the Project. N.D.C.C. § 50-24.1-47(3). The Department adopted N.D. Admin. Code ch. 75-02-13, the Family Paid Caregiver Program. Under N.D. Admin. Code § 75-02-13-02(1), “[a]n applicant or legally responsible individual may apply to the department to participate in the family paid caregiver program.” “ ‘Legally responsible individual’ means an individual who has a duty under law to care for the applicant or eligible participant, including a biological or adoptive parent, nonentity custodian, guardian, or a spouse.” N.D. Admin. Code § 75-02-13-01(6). An applicant is eligible to participate in the Program if the following conditions are met:

a. The applicant is enrolled in a Medicaid 1915(c) waiver;

b. The applicant's support needs are not otherwise compensated for through other services available through a Medicaid 1915(c) waiver or Medicaid state plan;

c. The applicant's assessed needs meet extraordinary care; and

d. The requirements of Section 75-02-13-03 are met.

N.D. Admin. Code § 75-02-13-02(5). “Extraordinary care” is defined as:

[C]are exceeding the range of activities that a legally responsible individual would ordinarily perform in the household on behalf of the applicant or eligible participant without extraordinary medical or behavioral needs and is necessary to assure the health and welfare and to avoid institutionalization of the applicant or eligible participant in need of care.

N.D. Admin. Code § 75-02-13-01(4).

[¶4] Under N.D. Admin. Code § 75-02-13-03(1) and (2), an applicant or legally responsible individual applies to participate in the Program by submitting a completed application to the Department. Upon receiving the application, the Department requests “the applicant or legally responsible individual complete the department-approved assessment to determine if the applicant meets the extraordinary care requirement.” N.D. Admin. Code § 75-02-13-03(3). An internal committee of four individuals developed the assessment, titled the “Extraordinary Care Assessment,” and a scoring rubric. Section 75-02-13-03(8) provides the Department must deny an application “if the applicant does not meet the eligibility requirements pursuant to section 75-02-13-02.”

[¶5] The Department's family services administrator testified regarding the assessment at the administrative hearing. She testified the assessment is completed by the applicant or the legally responsible individual and that “additional information is not considered.” The assessment contains 44 questions separated into eight sections: 1) Motor Skills, 2) Personal Living Skills, 3) Community Living Skills, 4) Social/Communication Skills, 5) Medication, 6) Medical, 7) Specialized Physical and Therapeutic Needs, and 8) Maladaptive Issues. Each question has multiple columns that can be marked to indicate the level of assistance needed to perform the skill or activity. The columns, not the question, are weighted for the score. Each question also lists a “Not Applicable Age Range.” A question that is not applicable to the applicant's age is not included in the total possible points. To be eligible for the Program, the applicant's score on the assessment must be equal to fifty percent or more of the maximum possible points available to the applicant. The administrator explained that, after the assessment is completed, she calculates the applicant's score by comparing the score with the predetermined eligibility criteria. If the applicant's score is less than the predetermined eligibility criteria, the Department issues a written notice of denial.

[¶6] The administrator gave an example of a three-year-old applicant. Based on the number of applicable questions, a three-year-old could score up to 65 points. Thus, to be eligible to participate in the Program, a three-year-old applicant must score at least 33 points.

[¶7] Ferderer's child, E.F., has complex chronic medical needs requiring a feeding tube, ongoing therapies, and full caregiver assistance for mobility, communication, and daily living activities. In April 2024, Ferderer applied for the Program based on the care provided to E.F., who was three years old at the time. In May 2024, the Department denied the application because E.F. received a score of 17 points on the assessment, below the predetermined eligibility threshold of 33. Of the 44 assessment questions, 22 applied to E.F. based on her age.

[¶8] Ferderer timely appealed the Department's denial of his application. The designated administrative law judge (ALJ) held an administrative hearing on September 11, 2024. At the hearing, both of E.F.’s parents testified, the ALJ received multiple exhibits, and the Department's family services administrator testified. The sole issue presented in the administrative hearing was whether E.F. requires extraordinary care as defined by N.D. Admin. Code § 75-02-13-01(4).

[¶9] On September 23, 2024, the ALJ issued recommended findings concluding the denial of Ferderer's application was proper. The ALJ explained, “The Department's determination that [E.F.’s] assessed needs do not meet extraordinary care is solely based on the score calculated from the assessment completed by [Ferderer], as required by the North Dakota Legislature.” The ALJ further explained an applicant's underlying diagnosis or conditions “are only relevant to the applicant's enrollment in a Medicaid 1915(c) waiver as a condition of eligibility and are not considered in determining whether an applicant requires extraordinary care.” The ALJ concluded, “Because [E.F.’s] score of 17 was not at least half of the possible points for her age group, the Department properly denied the application.”

[¶10] The Department adopted the ALJ's recommended findings in a final order. Ferderer requested a rehearing, which the Department denied.

[¶11] Ferderer appealed to the district court under N.D.C.C. ch. 28-32. The district court affirmed the Department's decision. Ferderer timely appealed to this Court.

II

[¶12] “Courts exercise limited review in appeals from administrative agency decisions. On appeal from the district court, we review the administrative agency's decision in the same manner that the district court reviewed the agency's decision. N.D.C.C. § 28-32-49.” Zent v. N.D. Dep't of Health & Hum. Servs., 2025 ND 50, ¶ 16, 18 N.W.3d 621 (quoting Jahner v. N.D. Dep't of Health & Hum. Servs., 2023 ND 71, ¶ 6, 989 N.W.2d 466). This Court must affirm the Department's decision unless it determines a statutory ground for reversal is present. N.D.C.C. § 28-32-46; N.D.C.C. § 28-32-49 (“The judgment of the district court in an appeal from an order ․ of an administrative agency or the commission may be reviewed in the supreme court on appeal in the same manner as provided in section 28-32-46[.]”). Ferderer argues the Department's decision should be reversed under N.D.C.C. § 28-32-46(1), (2), (6), and (7):

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

․

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

․

N.D.C.C. § 28-32-46.

[¶13] “In reviewing the agency's findings of fact, this Court does not make independent findings or substitute our judgment for the agency's judgment. Rather, we decide whether a reasoning mind reasonably could have determined the findings were proven by the weight of the evidence from the entire record.” Zent, 2025 ND 50, ¶ 17 (quoting Jahner, 2023 ND 71, ¶ 7, 989 N.W.2d 466). “The application and interpretation of a statute is a question of law. Questions of law are fully reviewable in an administrative appeal.” Id. (quoting Jahner, ¶ 7).

III

[¶14] Ferderer's brief identifies four issues. The Department argues Ferderer only preserved the three issues he briefed to the district court.

[¶15] “When a party fails to properly raise an issue or argument before the district court, it may not do so for the first time on appeal.” Allery v. Whitebull, 2022 ND 140, ¶ 10, 977 N.W.2d 726; see also Grove v. Dep't of Transp., 2020 ND 146, ¶ 12, 945 N.W.2d 257 (stating issue not raised at the district court “was precluded from review”). Ferderer only preserved for appeal the three issues he raised at the district court.

IV

[¶16] Ferderer argues the Department's online assessment and its scoring rubric are binding eligibility criteria that were required to be promulgated as administrative rules under the Administrative Agencies Practice Act (AAPA), N.D.C.C. ch. 28-32. The Department asserts Ferderer's challenge to the Department's rulemaking action is untimely and that the “substantive requirements of the Assessment are already prescribed in N.D.C.C. § 50-24.1-47 and N.D. Administrative Code § 75-02-13-03 and the Assessment itself is a tool used in the performance of an investigation whose disclosure would facilitate disregard of requirements imposed by law.”

A

[¶17] The Department asserts Ferderer's challenge to the Department's rulemaking action is untimely since it has been over ninety days since the rules’ publication date. The Department states the rules were effective April 1, 2024, and included the requirement “the applicant or legally responsible individual complete the department-approved assessment to determine if the applicant meets the extraordinary care requirement.” N.D. Admin. Code § 75-02-13-03(3). Ferderer did not respond to the Department's argument in his reply brief.

[¶18] The Department cites no authority to support its argument. The Department's reference to ninety days indicates it may be relying on N.D.C.C. § 28-32-42(2), which provides: “Any interested person who has participated in the rulemaking process of an administrative agency may appeal the agency's rulemaking action if the appeal is taken within ninety days after the date of publication in the North Dakota Administrative Code of the rule resulting from the agency rulemaking action.” But section 28-32-42(1), not section 28-32-42(2), applies here because Ferderer, a party to an adjudicative proceeding, is appealing the Department's order. See N.D.C.C. §§ 28-32-01(1) (defining “Adjudicative proceeding”); 28-32-01(8) (defining “Order”); 28-32-01(9) (defining “Party”).

[¶19] Ferderer's ability to challenge N.D. Admin. Code ch. 75-02-13 or the assessment is not determined by chapter 75-02-13's effective date. Ferderer's basis to challenge chapter 75-02-13 and the assessment accrued when the Department used them to deny his application, not when chapter 75-02-13 became effective. See Nw. Landowners Ass'n v. State, 2025 ND 147, ¶ 31, 25 N.W.3d 220 (holding plaintiffs’ claims “did not accrue when the laws were enacted” but when the Industrial Commission “acted under the authority of the law”); cf. Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 804, 144 S.Ct. 2440, 219 L.Ed.2d 1139 (2024) (holding a claim brought under the federal Administrative Procedure Act accrues when the plaintiff suffers an injury from final agency action).

[¶20] Section 28-32-42(1), N.D.C.C., provides a “party to any proceeding heard by an administrative agency, except when the order of the administrative agency is declared final by any other statute, may appeal from the order within thirty days after notice of the order has been given as required by section 28-32-39.” The Department mailed to Ferderer its order denying rehearing on November 8, 2024. Ferderer filed his notice of appeal on December 2, 2024. Ferderer's notice of appeal was timely under section 28-32-42(1).

B

[¶21] Ferderer argues the Department was required to promulgate the assessment and scoring rubric as an administrative rule because it used them to determine eligibility to participate in the Program.

1

[¶22] The Department is an administrative agency and is subject to the provisions of the Administrative Agencies Practice Act. N.D.C.C. § 28-32-01(2); Mullins v. N.D. Dep't of Hum. Servs., 454 N.W.2d 732, 734 (N.D. 1990). Administrative agencies have authority to adopt “reasonable rules in conformity with [chapter 28-32] and any statute administered or enforced by the agency.” N.D.C.C. § 28-32-02(1). The Department has specific statutory authority to adopt rules regarding management of the Program. N.D.C.C. § 50-24.1-47(3). “ ‘Rule’ means the whole or a part of an agency or commission statement of general applicability which implements or prescribes law or policy or the organization, procedure, or practice requirements of the agency or commission.” N.D.C.C. § 28-32-01(12). A rule is invalid unless it is adopted in substantial compliance with chapter 28-32. N.D.C.C. § 28-32-13. Properly promulgated administrative rules have the force and effect of law. N.D.C.C. § 28-32-06. An agency can amend a promulgated rule through the rulemaking process. N.D.C.C. § 28-32-02(1).

[¶23] The AAPA requires agencies take multiple steps to promulgate administrative rules. Those steps include providing notice of the rulemaking, providing the opportunity for interested persons to submit oral or written comments, and, in the case of substantive rules, holding a hearing. N.D.C.C. §§ 28-32-10 through 28-32-12. “Every rule proposed by any administrative agency must [also] be submitted to the attorney general for an opinion as to its legality before final adoption[.]” N.D.C.C. § 28-32-14. Under N.D.C.C. § 28-32-15, the agency must file with Legislative Council a copy of each rule, “a copy of each written comment and a written summary of each oral comment on the rule, and the attorney general's opinion on the rule, if any, ․ for publication of the rule in the North Dakota Administrative Code.” See also N.D.C.C. § 28-32-19 (providing Legislative Council shall publish the Administrative Code). The Legislative Management's Administrative Rules Committee may object to all or any portion of a rule. N.D.C.C. § 28-32-17. The Administrative Rules Committee may also find a rule or a portion of a rule void for specified reasons. N.D.C.C. § 28-32-18.

[¶24] The notice of rulemaking provides the public the opportunity to comment on the proposed rule. Legislative Council's publication of the rule in the North Dakota Administrative Code gives the public notice of the rule. The requirement agencies use the rulemaking process to amend rules serves the same purposes and helps ensure agencies consistently implement the law and their policies of general applicability.

2

[¶25] Ferderer's argument relies heavily on our decision in Mullins v. North Dakota Department of Human Services. Conspicuously absent from the Department's brief is any analysis of Mullins. The Department only cites Mullins for the unremarkable proposition that the Department is an administrative agency subject to the provisions of N.D.C.C. ch. 28-32.

[¶26] The “dispositive issue” in Mullins was whether the Department could “determine an applicant's eligibility for case management services” by applying chapters of the Department's manual (internal policies) not adopted in accordance with the AAPA. 454 N.W.2d at 734. We explained the AAPA “prescribes the procedure the Department must follow to adopt a valid rule.” Id. We also explained a rule is invalid unless it is adopted in substantial compliance with the AAPA. Id. We then held the Department's denials of the applications based on the internal policies were ineffective because the Department did not promulgate the policies. Id. at 735. We did so primarily because the policies did not “deal only with internal management of the Department,” but affected applicants’ substantive or procedural rights because the Department's reliance on them resulted “in the inclusion or exclusion of applicants for case management services[.]” Id.

[¶27] Like the internal policies in Mullins, the assessment and scoring rubric determine applicants’ eligibility for the Program. As acknowledged by the Department's family services administrator, the Department does not consider “additional information” beyond the application and assessment. The ALJ found the Department's determination E.F.’s “assessed needs do not meet extraordinary care is solely based on the score calculated from the assessment completed” by Ferderer. Because the assessment and scoring rubric establish the Program's eligibility requirements, they are statements of general applicability implementing the Program and are rules under N.D.C.C. § 28-32-01(12). See Mullins, 454 N.W.2d at 735; see also Morton v. Ruiz, 415 U.S. 199, 231-36, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974) (holding an agency cannot deny benefits based on eligibility limitations contained only in internal guidelines); Emergency Med. Care Facilities, P.C. v. Div. of Tenncare, 671 S.W.3d 507, 514 (Tenn. 2023) (stating an agency statement is “of general applicability” “when it is capable of being applied or is relevant to an entire class or category”); Webb v. D.C. Dep't of Hum. Servs., 618 A.2d 148, 150 (D.C. 1992) (holding agency's termination of petitioner's benefits was unlawful because it was based on an agency policy not promulgated in accordance with the provisions of the District of Columbia Administrative Procedure Act); Palozolo v. Dep't of Soc. Servs., 189 Mich. App. 530, 533-34, 473 N.W.2d 765, 767 (1991) (rejecting agency's reliance on an internal policy to reduce petitioner's AFDC benefits, stating “the policy deprives not only this petitioner but an entire class of people benefits to which they would otherwise be eligible on the basis of an internal policy of the agency without benefit of the protection afforded by the rule-making requirements”); Clark v. Pub. Welfare Div., 27 Or. App. 473, 476-77, 556 P.2d 722, 723 (1976) (holding manual provisions enunciating policy decisions which affect members of the public applying for benefits must be formally adopted as rules).

3

[¶28] The Department argues the “substantive requirements of the Assessment are already prescribed in N.D.C.C. § 50-24.1-47 and N.D. Administrative Code § 75-02-13-03 and the Assessment itself is a tool used in the performance of an investigation whose disclosure would facilitate disregard of requirements imposed by law.” The Department cites N.D.C.C. § 28-32-01(12)(a), (b), and (g) to support its position.

a

[¶29] Section 28-32-01(12)(g), N.D.C.C., exempts as an administrative rule “[a] form whose contents or substantive requirements are prescribed by rule or statute or are instructions for the execution or use of the form.” The Department argues the substantive requirements of the assessment are prescribed in N.D.C.C. § 50-24.1-47 and N.D. Admin. Code § 75-02-13-03.

[¶30] The assessment and scoring rubric are not “forms” under N.D.C.C. § 28-32-01(12)(g). Moreover, neither N.D.C.C. § 50-24.1-47 nor N.D. Admin. Code § 75-02-13-03 prescribe the substantive requirements of the assessment and scoring rubric. Our decisions in Rennich ex rel. Rennich v. North Dakota Department of Human Services, 2008 ND 171, 756 N.W.2d 182, and Brunner v. Ward County Social Services Board, 520 N.W.2d 228 (N.D. 1994), provide guidance on this issue.

[¶31] In Brunner, the Department found Brunner ineligible for Aid to Families with Dependent Children (AFDC) benefits because she received a lump-sum award for unemployment benefits. 520 N.W.2d at 229. Relevant to this case, Brunner argued “the lump-sum rule is not enforceable because it has not been adopted in a state statute, or in a regulation adopted in compliance with the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32.” Id. at 232. Explaining “[t]he lump-sum rule is mandated by federal statute and regulation[,]” we stated “Brunner's argument is not persuasive because the provisions cited by her in the Department's manual provide details about opening and closing AFDC cases and do not create conditions of eligibility. Instead, the conditions of eligibility are set by federal statute and regulation.” Id. at 233.

[¶32] Similarly, in Rennich, Rennich argued “the Department acted unlawfully when it denied his application for the Medicaid waiver program ‘by relying upon eligibility criteria that does not have the force and effect of law.’ ” 2008 ND 171, ¶ 19, 756 N.W.2d 182. Rennich asserted “the Department was required to formally promulgate as administrative rules the [Progress Assessment Review] and any interpretive guidelines or manual provisions dealing with the Medicaid waiver program's eligibility criteria.” Id. We rejected Rennich's argument, explaining resolution of the issue “requires that we consider the ‘Byzantine’ labyrinth of federal law governing the Medicaid program.” Id. ¶ 12. We noted “[t]he Medicaid waiver program is governed by voluminous federal regulations, and the eligibility criteria for individuals claiming eligibility as ‘persons with related conditions’ are amply set out in the federal regulations.” Id. ¶ 24. Applying Brunner, we stated “when the eligibility criteria are set out in federal statutes and regulations, it is unnecessary to adopt a state's implementing guidelines and manual provisions as formal rules.” Id.

[¶33] Neither N.D.C.C. § 50-24.1-47 nor N.D. Admin. Code § 75-02-13-03 set out the Program's eligibility requirements. See Dissent, ¶¶ 2, 3 (agreeing neither section 50-24.1-47 nor section 75-02-13-03 set out the Program's eligibility requirements). Section 50-24.1-47(3) provides the Department “may adopt rules addressing management” of the Program and “establish the eligibility requirements and exclusions” for the Program. It also provides the Department “shall utilize an assessment of an eligible individual to determine the level of care authorized and to determine the best interests of the individual in need of care.” Id. However, section 50-24.1-47(3) does not establish Program eligibility requirements; rather, it leaves it to the Department to “establish the eligibility requirements” for the Program. Id.

[¶34] Section 75-02-13-03, N.D. Admin. Code, also does not establish eligibility requirements for the Program. Rather, it provides steps the Department will take to administer the Program, such as requesting “the applicant or legally responsible individual complete the department-approved assessment to determine if the applicant meets the extraordinary care requirement.” N.D. Admin. Code § 75-02-13-03(3). Section 75-02-13-03 makes no further mention of the assessment and provides no information regarding the eligibility requirements utilized in the assessment.

[¶35] Although not argued by the Department, the dissent asserts N.D. Admin. Code § 75-02-13-02(5) establishes the Program's eligibility requirements. Dissent, ¶¶ 2, 5, 6. But the requirement the “applicant's assessed needs meet extraordinary care” is insufficient to implement the law. Like the unpublished chapters of the Department's manual in Mullins, the assessment and scoring rubric determine eligibility. The broad definitions of “extraordinary care” in N.D.C.C. § 50-24.1-47(2) and N.D. Admin. Code § 75-02-13-01(4) are not the statements of general applicability that determined Ferderer was not eligible to participate in the Program, the assessment and scoring rubric were. If the statutory definition of “extraordinary care” established the eligibility criteria, the legislature would not have directed the Department to “establish the eligibility requirements” and utilize an assessment “to determine the need for extraordinary care.” N.D.C.C. § 50-24.1-47(3).

[¶36] The dissent asserts, “[u]nder the majority's reasoning, any standardized instrument that ‘determines’ eligibility must be separately promulgated as a rule.” Dissent, ¶ 8. The dissent overstates our holding and ignores the plain language of N.D.C.C. § 28-32-01(12)(g). Under our holding and section 28-32-01(12)(g), a form or standardized instrument that determines eligibility for a program does not need to be promulgated as a rule if the form's “contents or substantive requirements are prescribed by rule or statute[.]” Like the Department's guidelines and manual provisions in Rennich, which did not need to be promulgated as formal rules because “the eligibility criteria are set out in federal statutes and regulations,” 2008 ND 171, ¶ 24, 756 N.W.2d 182, a standardized instrument does not need to be promulgated as a formal rule when its “contents or substantive requirements are prescribed by rule or statute[.]” That is not the case here.

[¶37] The Department has not identified any federal or state statutes, regulations, or rules establishing the eligibility requirements for the Program. The assessment and scoring rubric are not exempt rules under N.D.C.C. § 28-32-01(12)(g) because they do not simply incorporate substantive eligibility requirements prescribed by an administrative rule or statute.

b

[¶38] The Department argues the assessment is a tool used in the performance of investigating eligibility. It further asserts the assessment and the scoring rubric are “criteria and guidelines” used by Department staff in the performance of their investigation. Section 28-32-01(12)(a), N.D.C.C., exempts as an administrative rule “[a] rule concerning only the internal management of an agency or the commission which does not directly or substantially affect the substantive or procedural rights or duties of any segment of the public.” Section 28-32-01(12)(b) exempts as an administrative rule “[a] rule that sets forth criteria or guidelines to be used by the staff of an agency ․ in the performance of ․ investigations ․ if the disclosure of the rule would: (1) Enable law violators to avoid detection[.]”

[¶39] The assessment is not exempt as a rule under N.D.C.C. § 28-32-01(12)(a) because it is not used by the Department for internal management. Rather, it is used to determine applicants’ eligibility and directly affects applicants’ substantive or procedural rights. It is not exempt as a rule under N.D.C.C. § 28-32-01(12)(b) because the assessment is not a guideline used by Department staff in investigating applicants’ eligibility to participate in the Program. Rather, the assessment determines applicants’ eligibility. The Department does not do any investigation; it does not consider “additional information” beyond the application and assessment. As stated by the ALJ, the Department's determination regarding Ferderer's eligibility was based “solely” on the score calculated from the assessment.

[¶40] In Huber v. Jahner, 460 N.W.2d 717 (N.D. Ct. App. 1990), the appellee argued that child support guidelines not promulgated in accordance with the AAPA were binding on the district court. Id. at 719. The Court of Appeals disagreed. Id. It explained the guidelines were “not intended to merely ‘advise or guide’ the agency or the public, and they are not guidelines ‘concerning activities of the agency.’ ” Rather, the court explained, “[t]hey are a statutorily authorized schedule for court awarded child support[.]” Id. at 720. “As such, the guidelines constitute ‘an agency statement of general applicability that implements ․ law.’ ” Id. The court concluded “the guidelines constitute a substantive rule which must be promulgated in accordance with Chapter 28-32, N.D.C.C., to have validity.” Id.; see also Illies v. Illies, 462 N.W.2d 878, 883 (N.D. 1990) (agreeing with Huber “that the child support guidelines, established by the Department of Human Services under N.D.C.C. 14-09-09.7, are invalid because the Department of Human Services failed to promulgate the guidelines in compliance with Chapter 28-32, N.D.C.C.”).

[¶41] Like the child support guidelines in Huber, the assessment and scoring rubric are substantive rules—the assessment and scoring rubric are statements of general applicability implementing the Program by determining applicants’ eligibility to participate in the Program; the assessment and scoring rubric do not concern “only the internal management” of the Department and are not exempt as a “rule” under N.D.C.C. § 28-32-01(12)(a). Compare Mullins, 454 N.W.2d at 735 (internal policies that result in inclusion or exclusion of applicants do not only deal with internal management of the Department and must be adopted in accordance with the AAPA), with Rennich, 2008 ND 171, ¶ 24, 756 N.W.2d 182 (“explanatory guidelines” to aid Department personnel when applying federally-mandated eligibility criteria are not rules); Brunner, 520 N.W.2d at 233 (manual providing details about opening and closing AFDC cases do not create conditions of eligibility and are not rules).

[¶42] Contrary to the dissent's assertion, the assessment does not collect answers to predetermined questions about statutory requirements. Dissent, ¶ 9. The broad definitions of “extraordinary care” do not establish the eligibility requirements. The term “extraordinary care” provides legislative guidance upon which the Department is to “establish the eligibility requirements and exclusions” for the Program; it does not establish them. N.D.C.C. § 50-24.1-47(3); see also 1 Jacob A. Stein, Glenn A. Mitchell & Basil J. Mezines, Administrative Law § 1.02[2] (2025) (explaining “rulemaking powers provide the means by which regulatory agencies formulate and interpret policies applicable to persons subject to the agency's regulation”). The assessment and scoring rubric are the Department's “statement of general applicability” implementing the Program, not the term “extraordinary care.” 2 Jacob A. Stein, Glenn A. Mitchell & Basil J. Mezines, Administrative Law § 8.02[4][a] (2024) (“Rules of general applicability are agency directives or policies which relate to the public as a whole, including the affected party.”).

[¶43] The assessment does not advise or guide Department staff in investigating eligibility to participate in the Program; there is no “investigation.” Rather, the assessment dictates applicants’ eligibility. The assessment and scoring rubric are not exempt as rules under N.D.C.C. § 28-32-01(12)(a) or (b).

4

[¶44] The dissent and majority disagree regarding the “level of generality” required to establish eligibility criteria. Dissent, ¶ 13. Apparently, the dissent concludes the broad, general definition of “extraordinary care” provides the public adequate notice of the Program eligibility criteria and the Department acceptable standards to determine eligibility to participate in the Program. We disagree. The definition of “extraordinary care” is insufficient, by itself, for the Department to determine eligibility to participate in the Program.

[¶45] The dissent emphasizes the Department is administering a pilot program, Dissent, ¶¶ 10, 12, 13, 14, suggesting eligibility requirements for pilot programs are flexible and subject to modification by an agency, id. ¶ 13 (“The eligibility criteria are adopted at the appropriate level of generality for a pilot program[.]”), ¶ 14 (stating “a pilot project is experimental by nature” and the Department can “develop and refine its methods”). But pilot programs are not exempt from the AAPA, and program eligibility requirements should be constant, not unilaterally modified by agencies at will. Importantly, although it could have, the legislature did not exempt the Department from complying with the AAPA when it enacted 2023 Senate Bill 2276. Rather, it required the Department manage the Program “in accordance with the adopted rules[.]” N.D.C.C. § 50-24.1-47(3).

[¶46] We agree “an administrative agency is not required to promulgate detailed rules interpreting every statutory provision that may be relevant to its actions, or covering every conceivable situation which might come before it.” Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 133 (N.D. 1987). Dissent, ¶ 10. However, an agency must promulgate the criteria it relies on in determining “the inclusion or exclusion of applicants” from a program or benefit. Mullins, 454 N.W.2d at 735. The Department failed to do so.

[¶47] Importantly, because the Department established them internally, the public did not have the opportunity to comment on the eligibility criteria used in the assessment and the scoring rubric. See N.D.C.C. §§ 28-32-10 through 28-32-12. The public also cannot go to the Administrative Code to learn the requirements to be eligible for the Program. See N.D.C.C. §§ 28-32-15, 28-32-19. Moreover, because the eligibility criteria used in the assessment and scoring rubric are not promulgated, the Department can change the assessment and scoring rubric when and how it wants, potentially subjecting Program applicants to different and arbitrary requirements. See N.D.C.C. § 28-32-02(1). Agency statements of general applicability, such as eligibility requirements, are required to be promulgated in part to avoid that possibility. See Morton, 415 U.S. at 231, 94 S.Ct. 1055 (explaining administrative policies affecting individual rights and obligations are promulgated to make the standards known and “to avoid both the reality and the appearance of arbitrary denial of benefits to potential beneficiaries”).

5

[¶48] The Department's statutory duty to “manage and operate” the Program includes establishing the Program's eligibility requirements. N.D.C.C. § 50-24.1-47(1), (3). The eligibility requirements must be established by administrative rule because eligibility requirements are statements of general applicability implementing the Program. N.D.C.C. § 28-32-01(12). This is not to say the Department must promulgate the actual assessment and scoring rubric; however, it must adopt the “contents or substantive requirements” of the eligibility criteria evaluated in the assessment and applied in the scoring rubric in accordance with the AAPA. Because the Department did not substantially comply with the requirements of the AAPA when it determined the Program's eligibility requirements, the assessment and scoring rubric are ineffective and cannot be used by the Department to deny Ferderer's application. See Mullins, 454 N.W.2d at 735; Johnson v. N.D. Workers Comp. Bureau, 428 N.W.2d 514, 516-19 (N.D. 1988) (holding the North Dakota Workers Compensation Bureau's reliance on a directive to travel expense reimbursement in conjunction with medical care and treatment is a “ ‘substantive’ rule” and “is ineffective” because the Bureau “failed to comply with the rulemaking procedure set forth in the North Dakota Administrative Agencies Practice Act”); Little v. Spaeth, 394 N.W.2d 700, 703-04 (N.D. 1986) (concluding personnel policies “were invalid” and “not binding” upon the Office of the Attorney General because the Central Personnel Division did not comply with N.D.C.C. ch. 28-32).

V

[¶49] We have considered Ferderer's remaining arguments and conclude they are either unnecessary to our decision or are without merit. We conclude the Department improperly relied upon eligibility criteria that should have been formally promulgated as an administrative rule. We reverse the district court's order affirming the Department's decision denying Ferderer's application to participate in the Family Paid Caregiver Program. We remand to the district court with directions that it remand the matter to the Department for further action consistent with this opinion.

[¶51] The legislature told the Department to “utilize an assessment.” The Department did so. The majority reverses, holding that the assessment itself needed to be promulgated as a rule. Because I conclude the eligibility criteria are sufficiently set out in duly promulgated rules, I would affirm.

I

[¶52] The majority opinion states at ¶ 33 that “[n]either N.D.C.C. § 50-24.1-47 nor N.D. Administrative Code § 75-02-13-03 set out the Program's eligibility requirements.” That is correct. The eligibility requirements are in N.D. Admin. Code § 75-02-13-02(5). To be eligible, an applicant must: (1) be enrolled in a Medicaid 1915(c) waiver; (2) have support needs not otherwise compensated; (3) have assessed needs that meet extraordinary care; and (4) meet the requirements of § 75-02-13-03. N.D. Admin. Code § 75-02-13-02(5).

[¶53] The majority opinion then quotes § 50-24.1-47(3)—the delegation provision—and concludes that the statute “does not establish Program eligibility requirements.” That is true, but the statute was not drafted to establish them directly: it delegates that task, and the Department performed it by promulgating § 75-02-13-02(5). The majority dismisses § 75-02-13-02(5) as “insufficient to implement the law.” We disagree on whether they provide the level of specificity required by the authorizing statute.

[¶54] “Extraordinary care” is defined in two places: the statute (N.D.C.C. § 50-24.1-47(2)) and the administrative code (N.D. Admin. Code § 75-02-13-01(4)). The assessment implements that standard by asking questions relevant to determining extraordinary care under N.D.C.C. § 50-24.1-47(2). The assessment is the Department's method of measuring compliance with promulgated eligibility criteria, not the criteria themselves.

II

[¶55] The majority's Mullins analogy is inapt. In Mullins, no statute or rule established any eligibility criteria—the unpromulgated manual chapters were the only source of eligibility standards. Mullins v. N.D. Dep't of Hum. Servs., 454 N.W.2d 732, 734-35 (N.D. 1990). Here, the Department promulgated eligibility criteria through the required rulemaking process. N.D. Admin. Code §§ 75-02-13-02(5), -01(4). The majority's objection is not that the Department failed to promulgate eligibility criteria but that the promulgated criteria are not specific enough. That is a different question than Mullins presented.

[¶56] Here, the structure is different. The statute defines extraordinary care and directs the Department to utilize an assessment. N.D.C.C. § 50-24.1-47(2), (3). The promulgated rules establish four eligibility conditions (§ 75-02-13-02(5)), further define “extraordinary care” (§ 75-02-13-01(4)), and direct the Department to use the “department-approved assessment” (§ 75-02-13-03(3)). The assessment applies those criteria—it sets forth uniform questions for each applicant about the requirements set out in the statute and rule.

[¶57] This is closer to Rennich ex rel. Rennich v. North Dakota Department of Human Services, 2008 ND 171, 756 N.W.2d 182, and Brunner v. Ward County Social Services Board, 520 N.W.2d 228 (N.D. 1994), than to Mullins. In both those cases, the eligibility criteria were established by statute or regulation, and the instruments implementing them did not require separate promulgation. Rennich, ¶ 24; Brunner, at 233. Whether an agency acts through a human applying judgment under a broadly defined set of criteria or uses a standardized instrument to apply its eligibility criteria more consistently by different staff members is of little consequence. The agency's method of applying the criteria in rule or statute does not transform the instrument into the criteria.

III

[¶58] Under the majority's reasoning, any standardized instrument that “determines” eligibility must be separately promulgated as a rule. This may reach intake questionnaires for social services programs, standardized screening tools required by federal and state programs, scoring rubrics for grant applications, and any form that produces a pass/fail result based on promulgated criteria. The majority's holding appears to extend broadly beyond the facts here.

[¶59] The legislature anticipated problems like this one. Section 28-32-01(12)(g), N.D.C.C., exempts forms “whose contents or substantive requirements are prescribed by rule or statute.” The majority concludes at ¶ 30 that the assessment is not a “form” under this exemption. But the assessment is a form—it is a document completed by the applicant, collecting answers to predetermined questions about the statutory requirements. Its substantive requirements (what it must assess) are prescribed by rule (§§ 75-02-13-01(4), -02(5), -03(3)), implementing the statutory definition of extraordinary care (§ 50-24.1-47(2)). The majority characterizes the definition of “extraordinary care” as mere legislative guidance rather than eligibility criteria. But that definition—care exceeding the range a responsible individual would ordinarily perform and necessary to assure health and welfare and avoid institutionalization—is not an open-ended delegation. It identifies what the Department must evaluate. The assessment asks questions about exactly those subjects.

[¶60] This case also implicates the principle articulated in Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 133 (N.D. 1987): “an administrative agency is not required to promulgate detailed rules interpreting every statutory provision that may be relevant to its actions, or covering every conceivable situation which might come before it.” The Department promulgated criteria and then built an instrument to apply them. In my view, that is administration of this pilot program, not unauthorized rulemaking.

IV

[¶61] The majority's strongest ground is the 50% scoring threshold: no statute or rule specifies it. It was developed internally by a committee. This is the closest thing to the Mullins problem—an eligibility cutoff that exists only in unpublished agency documents.

[¶62] But the answer is not that the assessment instrument must be promulgated. The 50% threshold is a quantitative implementation of § 75-02-13-02(5)(c) (“assessed needs meet extraordinary care”). If the threshold itself is the problem, the remedy should be limited to that threshold, not the entire instrument. Here, the Department's administrator testified about it at the hearing, the ALJ applied it, and the Department adopted those findings. The threshold was applied openly and consistently to all applicants. This is administration of a pilot program within statutory standards, not unauthorized rulemaking.

V

[¶63] The majority acknowledges the Department need not “promulgate the actual assessment” but “must adopt the eligibility criteria evaluated in the assessment.” This distinction is at the wrong level of generality. The eligibility criteria are adopted at the appropriate level of generality for a pilot program—they are in § 75-02-13-02(5) and § 75-02-13-01(4). What the assessment does is provide more detailed, uniform questions to evaluate those criteria. The 44 questions ask about motor skills, personal living skills, community living skills, social and communication skills, medication, medical needs, specialized physical and therapeutic needs, and maladaptive issues—corresponding to the statutory requirements of care that exceeds the range a responsible individual would ordinarily perform in the household and is necessary to assure health and welfare and avoid institutionalization.

[¶64] The majority's holding requires a much greater level of specificity for “eligibility criteria” than what appears in the promulgated rules. The majority effectively requires the Department to promulgate rules with equivalent specificity to the assessment's questions and weights—precisely what the majority says is unnecessary. The legislature established this as a pilot project and directed the Department to “establish the eligibility requirements.” N.D.C.C. § 50-24.1-47(3). That language is a broad delegation, and intentionally so—a pilot project is experimental by nature, and the legislature left the Department room to develop and refine its methods within the statutory framework. The majority and I agree the Department must promulgate eligibility criteria. We disagree about how specific those criteria must be. No party challenges the breadth of the delegation, and we are not asked to decide that question.

VI

[¶65] I would affirm. The Department acted within its statutory authority. The eligibility criteria are established by statute and rule. The assessment implements those criteria as the statute directs. No violation of the Administrative Agencies Practice Act occurred.

Bahr, Justice.

[¶50] Lisa Fair McEvers, C.J. Douglas A. Bahr Mark A. Friese