75-02-01.2-18 Incapacity of a parent.

1. A child, if otherwise eligible for temporary assistance for needy families, is deprived of parental support or care when the child's parent has a physical or mental condition, supported by 16 current competent medical testimony, of such a debilitating nature as to reduce substantially or eliminate the parent's capacity either to earn a livelihood or to discharge the parent's responsibilities as a homemaker and provider of child care for a period of thirty days or more. In making a determination of incapacity to earn a livelihood, the department shall take into account the limited employment opportunities of individuals with disabilities. 2. The incapacity must substantially reduce or eliminate employment in the parent's usual occupation. If the incapacity does not allow the parent to be able to return to the parent's usual occupation, once medically capable, the parent will be expected to adapt to another occupation. It does not matter whether a parent was employed or fulfilled the role of homemaker prior to the onset of the asserted incapacity. Incapacity is established either when the individual is unable to earn a livelihood or to act as a homemaker. A parent may also establish incapacity by demonstrating that the parent has reached age sixty-five. 3. A determination that a parent is disabled or blind, made by the social security administration, constitutes adequate substantiation of incapacity for purposes of this section. 4. A parent continues to be incapacitated, for purposes of this section, if the incapacity is not reasonably subject to remediation, or if the parent makes reasonable progress toward remediation of the incapacity. For purposes of this section, reasonable progress toward remediation of the incapacity means cooperation with medical practitioners who prescribe a course of treatment intended to remediate or limit the effect of the incapacity, including physical therapy, counseling, use of prosthesis, drug therapy and weight loss, cooperation with vocational practitioners, cooperation with vocational and functional capacity evaluations, and reasonable progress in a course of training or education intended to qualify the parent to perform an occupation which, with that training or education, the parent would have the capacity to perform. 5. A parent who engages in activities inconsistent with the claimed incapacity may be determined to not be incapacitated. 6. The department may require a parent to demonstrate reasonable progress toward remediation of the incapacity, and may set reasonable deadlines for the demonstrations. History: Effective December 9, 1996; amended effective July 1, 1997; January 1, 2003; January 1, 2014; April 1, 2024. General Authority: NDCC 50-09-02, 50-09-25 Law Implemented: NDCC 50-09-02