BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rule I, the amendment of ARM 37.40.801, 37.40.805, 37.40.806, 37.40.808, 37.40.815, 37.40.816, 37.40.825, and 37.40.830, and the repeal of 37.40.807 pertaining to Medicaid hospice fee reimbursement and care program

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

 

TO: All Concerned Persons

 

            1.  On July 18, 2022, at 1:00 p.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed adoption, amendment, and repeal of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways:

            (a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/81391828814?pwd=ZFh0WStTaDl0RFNLcEZFSHA1emFldz09, Meeting ID:  813 9182 8814; Password: 412899 or

            (b) Dial by Telephone: +1 646 558 8656; Meeting ID: 813 9182 8814; Password: 412899. Find your local number: https://mt-gov.zoom.us/u/kbFBLGdhKz.

 

2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on July 5, 2022, to advise us of the nature of the accommodation that you need. Please contact Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].

 

3. The rule as proposed to be adopted provides as follows:

 

NEW RULE I ADOPTION AND INCORPORATION BY REFERENCE

(1) For purposes of this subchapter, the department adopts and incorporates by reference the following sections of the Code of Federal Regulations (CFR) that are in effect as of October 1, 2021:

(a)  42 CFR 418.3, which sets forth definitions of terms.

(b)  42 CFR 418.20 through 418.30, which set forth Medicare hospice care eligibility, election, and duration of benefits.

(c)  42 CFR 418.52 through 418.116, which set forth Medicare conditions of participation for hospice programs.

(d)  42 CFR 418.200 through 418.205, which set forth Medicare coverage of hospice services.

(e)  42 CFR 418.301 through 418.312, which set forth Medicare hospice care payment procedures.

(2)  Copies of these sections of the CFR may be obtained from the Department of Public Health and Human Services, Senior & Long Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210 or by visiting https://www.ecfr.gov/.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

37.40.801 HOSPICE, DEFINITIONS (1) remains the same.

(2) Except for the definition of "physician," the definitions of terms defined under department adopts and incorporates by reference 42 CFR 418.3 apply for purposes of this subchapter., as amended through August 22, 2014, which sets forth definitions of terms related to services covered as hospice care. Copies of 42 CFR 418.3, as amended through August 22, 2014, are available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

(3) remains the same.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.805 HOSPICE, CONDITIONS OF PARTICIPATION (1) The hospice must be licensed under state law and must meet Medicare's conditions of participation for hospice programs and have a valid provider agreement with Medicare as conditions of enrollment in Medicaid. Medicare conditions of participation for hospice programs are set forth under 42 CFR 418.52 through 418.116.

(2) The department adopts and incorporates by reference the following sections of 42 CFR as amended June 5, 2008:

(a) 418.52 through 418.74;

(b) 418.78;

(c) 418.102 through 418.106; and

(d) 418.110 through 418.116.

(3) The department adopts and incorporates by reference the following sections of 42 CFR as amended August 6, 2009:

(a) 418.76;

(b) 418.100; and

(c) 418.108.

(4) These CFRs set forth Medicare's conditions of participation for hospice providers. A copy of the sections of CFR listed in (2) and (3) may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59320-2951.

(5)(2) The above requirements are in addition to those contained in ARM 37.82.102 and, 37.85.401, 37.85.402, 37.85.406, 37.85.407, 37.85.410, and 37.85.414.

(6)(3) The hospice must submit a physician listing with their provider application and update changes in the listing of the physicians which who are hospice employees, including physician volunteers.

(7)(4) The designated hospice must notify the department when the designated attending physician of a recipient beneficiary in their care is not a hospice employee.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.806 HOSPICE, COVERED SERVICES (1) To be covered, hospice services must meet the following requirements:

(a) remains the same.

(b) the individual beneficiary must elect hospice care in accordance with ARM 37.40.815;

(c) remains the same.

(d) a certification that the individual beneficiary is terminally ill must be completed as set forth in ARM 37.40.808.

(2) For covered hospice services, Medicaid will generally pay for the services covered by Medicare. Medicare coverage of hospice services is described under 42 CFR 418.200 through 418.205.

(a) Physicians' services is a covered hospice service and must be performed by a doctor of medicine or osteopathy.

(b) remains the same.

(3) The department adopts and incorporates by reference the following section of 42 CFR as amended August 4, 2011:

(a) 418.202 except for those provisions which apply to physicians services.

(4) The department adopts and incorporates by reference the following sections of 42 CFR as amended August 6, 2009:

(a) 418.200; and

(b) 418.204.

(5) The department adopts and incorporates by reference the following section of 42 CFR as amended November 5, 2004:

(a) 418.205.

(6) The incorporated material sets forth requirements for Medicare coverage of hospice services. A copy of the sections of CFR listed in (3), (4), and (5) may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59320-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.808 HOSPICE, CERTIFICATION OF TERMINAL ILLNESS (1) In order to be eligible to elect hospice care under Medicaid, an individual a beneficiary must be certified as being terminally ill in accordance with Medicare certification requirements under 42 CFR 418.22.

(2) The department adopts and incorporates by reference 42 CFR 418.22, as amended August 4, 2011, which sets forth Medicare conditions for certification of terminal illness to qualify an individual to be eligible to elect hospice care. Copies of 42 CFR 418.22 are available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

            37.40.815 HOSPICE, ELECTION AND WAIVER OF OTHER BENEFITS

            (1) An individual A beneficiary eligible for hospice care or his their representative must file an election statement with a particular hospice in order to receive that such care. The department will follow Medicare regulations and guidelines in administering this provision, including 42 CFR 418.20 through 418.30.

            (2) The department adopts and incorporates by reference the following sections of 42 CFR as amended November 22, 2005:

            (a) 418.21 which sets forth the duration of hospice care coverage and election periods; and

            (b) 418.25 which sets forth the requirements for admission to hospice.

            (3) The department adopts and incorporates by reference the following section of 42 CFR as amended June 5, 2008:

            (a) 418.20 which sets forth eligibility requirements.

            (4) The department adopts and incorporates by reference the following sections of 42 CFR as amended August 6, 2019:

            (a) 418.24(a) through 418.24(f) which sets forth the requirements for individual election of hospice care; and

            (b) 418.26 which sets forth the requirements for discharge from hospice care.

            (5) A copy of the sections of CFR listed in (2) through (4) may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

            (6)(2) An individual A beneficiary waives all rights to Medicaid payments for the duration of the election of hospice care for the following services:

            (a) Hospice care provided by a hospice other than the hospice designated by the individual beneficiary (unless provided under arrangements made by the designated hospice).

            (b) through (b)(ii) remain the same.

            (iii) services provided by the individual's beneficiary's attending physician if that physician is not an employee of the designated hospice or receiving compensation from the hospice for those services.

            (7)(3) The hospice chosen by the eligible individual beneficiary, or their representative, must file the original Notice of Election (NOE) or a copy, with the department within five calendar days of the start of Medicaid Hospice Services. NOEs must be sent to the Senior & Long Term Care Division, 111 N. Sanders 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210. The department may waive the consequences of failure to submit a timely-filed timely filed NOE. A hospice must fully document and furnish any requested documentation to the department for a determination of exception.

            (8)(4) When the hospice election is ended due to discharge, the hospice must file a Notice of Termination of Election with the department within five calendar days after the effective date of the discharge, unless it has already filed a final claim for that beneficiary. Notice of Terminations must be sent to the Senior & Long Term Care Division, 111 N. Sanders 1100 N. Last Chance Gulch, P.O. Box 4210, Helena MT 59604-4210.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

            37.40.816 HOSPICE, REVOCATION OF ELECTION (1) An individual A beneficiary or their representative may revoke the individual beneficiary's election of hospice care at any time during an election period. The department will follow Medicare regulations and guidelines in administering this provision, including 42 CFR 418.28.

            (2) The department adopts and incorporates by reference 42 CFR 418.28, as amended August 6, 2019, which sets forth the Medicare requirements for revoking the election of hospice care. Copies of 42 CFR 418.28 are available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

            (3)(2) When the hospice election is ended due to revocation, the hospice must file a Notice of Revocation of Election with the department within five calendar days after the effective date of the revocation, unless it has already filed a final claim for that beneficiary. A Notice of Revocation must be sent to the Senior & Long Term Care Division, 111 N. Sanders 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

            37.40.825 HOSPICE, CHANGE OF HOSPICE (1)  An individual A beneficiary or their representative may change once in each election period the designation of the particular hospice from which hospice care will be received.  The department will follow Medicare regulations and guidelines in administering this provision, including 42 CFR 418.30.

            (2)  The department adopts and incorporates by reference 42 CFR 418.30, as amended June 5, 2008, which sets forth the Medicare requirements that must be met when another hospice is chosen in an election period. Copies of 42 CFR 418.30 are available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.830 HOSPICE, REIMBURSEMENT (1) Medicaid payment for covered hospice care will be made in accordance with the specific categories of covered hospice care and the payment amounts and procedures established by Medicare under 42 CFR 418.301 through 418.312. The specific categories of covered hospice care include:

(a) through (e) remain the same.

(2) Hospice Routine Home Care (RHC) level of care days will be paid at one of two RHC rates. RHC per-diem payment rates for the RHC level of care will be paid depending on the timing of the day within the patient's episode of care. Days 1 through 60 will be paid at the RHC "High" rate while all other days "61 plus" will be paid at the RHC "Low" rate.

(3) The department adopts and incorporates by reference 42 CFR 418.302, as amended August 6, 2015 and effective October 1, 2015 and 42 CFR 418.306, as amended August 6, 2015 and effective October 1, 2015, which sets forth the Medicare payment procedures. Copies of 42 CFR 418.302 and 42 CFR 418.306 are available at the federal web site: http://cms.hhs.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html.

(4)(3) The board and room room and board rate to be paid a hospice for a Medicaid recipient beneficiary who resides in a nursing facility will be the Medicaid rate established by the department in ARM 37.40.307 for the individual facility minus the amount the recipient beneficiary pays toward his their own cost of care. Payment for board and room room and board will be made to the hospice and, in turn, the hospice will reimburse the nursing facility. General inpatient care or hospice respite care in a nursing facility will not be reimbursed directly by the Medicaid program when a Medicaid recipient elects the hospice benefit payment. Under such circumstances payment will be made to the hospice in accordance with this rule.

(a) remains the same.

(5)(4) The following services performed by hospice physicians are included in the rates described in (1)(a) through (3)(1)(d):

(a) and (b) remain the same.

            (6)(5) For services not described in (5)(4), Medicaid will pay the hospice for those physician services furnished by hospice employees or under arrangements with the hospice in accordance with ARM 37.86.101, 37.86.104, and 37.86.105. Reimbursement for these physician services is included in the amount subject to the hospice limit described in (7)(6). Services furnished voluntarily by physicians are not reimbursable.

(7) and (8) remain the same but are renumbered (6) and (7).

(9) The department adopts and incorporates by reference 42 CFR 418.309, as amended August 6, 2018, which sets forth Medicare's methodology for calculating the hospice cap amount. Copies of 42 CFR 418.309 are available at the federal web site: http://cms.hhs.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html.

(10) and (11) remain the same but are renumbered (8) and (9).

           (12)(10) The department adopts and incorporates by reference the Hospice Rates FFY22 fee schedule, hospice fee schedules are effective October 1, 2020 2021. Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov and may be obtained from the Department of Public Health and Human Services, Senior & Long Term Care Division, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59602-2951 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

5. The department proposes to repeal the following rule:

 

37.40.807 HOSPICE CONDITION OF PARTICIPATION: INTERDISCIPLINARY GROUP, CARE PLANNING, AND COORDINATION OF SERVICES

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

            6. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to adopt New Rule I, amend ARM 37.40.801, 37.40.805, 37.40.806, 37.40.808, 37.40.815, 37.40.816, 37.40.825, and 37.40.830, and repeal ARM 37.40.807 pertaining to the Medicaid hospice care program.

 

NEW RULE I

Currently, nine different hospice rules adopt and incorporate by reference various sections of the Code of Federal Regulations (CFR). New Rule I is being proposed to consolidate these adopted CFR references into a single rule in order to increase clarity and readability of the rules for stakeholders. As part of consolidating the CFR references into a single rule, the department is also proposing to update the CFR references to refer to the most current version of each CFR. Updating these references is necessary to ensure the hospice program rules adopt by reference the current federal regulations applicable to the program.

 

ARM 37.40.801, 37.40.805, 37.40.806, 37.40.808, 37.40.815, 37.40.816, 37.40.825, and 37.40.830

The department is proposing to amend each of these rules to align with the proposed adoption of New Rule I. Specifically, the department is proposing to remove language from each rule that adopts and incorporates by reference CFR sections that are now referenced in New Rule I.

 

The department is also proposing to amend ARM 37.40.830 to update the Medicaid hospice reimbursement fee schedule to reference the most current fee schedule in accordance with changes in federal hospice reimbursement rates set by the Centers for Medicare & Medicaid Services (CMS) in the Federal Register, effective October 1, 2021. This proposed rule amendment is necessary to pay Medicaid providers according to the current Medicare fee schedule, effective October 1, 2021.  In order to pay Medicaid hospice providers according to the Medicare fee schedule and rate methodology, the rule must be updated to reference the most current Medicare hospice fee schedule.

 

Failure to update these rules will result in hospice reimbursement rates no longer staying current with federal changes and providers not having clarity on which federal regulations are applicable to Medicaid hospice services and reimbursement.

 

ARM 37.40.807

This current rule adopts and incorporates by reference 42 CFR 418.56 regarding hospice interdisciplinary groups, care planning, and coordination of services. Because the department proposes to consolidate all of the adoptions and incorporations by reference into one rule, the department is proposing to repeal this rule because it is duplicative of New Rule I.

 

Fiscal Impact

 

The proposed amendment to ARM 37.40.830 will have a fiscal impact on the hospice program. There are 27 Montana Medicaid hospice providers. In State Fiscal Year (SFY) 2020, approximately 473 Medicaid beneficiaries received the hospice benefit. 

 

Much of the Medicaid hospice program's budget provides reimbursement for hospice services provided in nursing facilities in the form of room and board for inpatient nursing facility hospice.

 

The proposed fee schedule implements an approximate, aggregate reimbursement rate increase of 2%, as computed and published by CMS, which will apply to providers in all 56 counties. The proposed rate increase is estimated to have a fiscal impact of $72,899 in combined state and federal funds as compared to FY 2021.

 

Montana hospice rates are affected by a wage index applied geographically by county.  The 2022 wage index has increased for Carbon and Yellowstone Counties by approximately 2.7% percent.  Effective October 1, 2021, Stillwater County is now calculated using an urban index of 0.9536 which is an increase from the SFY 2021 urban index rate of 0.8569.  Cascade County decreased by 0.32% percent and the Missoula County wage index decreased by approximately 0.64%.  The remainder of the Montana counties are subject to the rural index rate which increased by approximately 4.98%.

 

Additionally, two hospice providers will see a hospice reimbursement rate decrease of 2% for failure to comply with federal quality data submission requirements during the prior fiscal year. A copy of the proposed hospice fee schedule can be found at https://medicaidprovider.mt.gov/proposedfs.

 

The increase in hospice rates will be retroactive to October 1, 2021.  Any decreases in hospice rates will not be applied retroactively and would be effective upon adoption of the proposed rule amendments.

 

            7. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kassie Thompson, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., July 22, 2022.

 

8. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 7 above or may be made by completing a request form at any rules hearing held by the department.

 

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption, amendment, and repeal of the above-referenced rules will not significantly and directly impact small businesses.

 

12. Section 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement. The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.

 

The department has determined that the proposed program changes presented in this notice are not appropriate for performance-based measurement and therefore are not subject to the performance-based measures requirement of 53-6-196, MCA.

 

 

/s/ Robert Lishman                                      /s/ Adam Meier                                

Robert Lishman                                           Adam Meier, Director

Rule Reviewer                                             Public Health and Human Services

 

 

Certified to the Secretary of State June 14, 2022.