Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the adoption of New Rules I through V pertaining to state matching fund grants to counties for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs for individuals with mental illness

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On October 15, 2009, at 9:30 a.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, at Helena, Montana, to consider the proposed adoption of the above-stated rules.

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 Department of Public Health and Human Services no later than 5:00 p.m. on October 6, 2009, to advise us of the nature of the accommodation that you need. Please contact Rhonda Lesofski, 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 rules as proposed to be adopted provide as follows:

RULE I STATEMENT OF PURPOSE AND OBJECTIVES (1) The purpose of this subchapter is to provide state matching funds to county governments for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs for individuals with mental illnesses.

(2) The objectives of this subchapter include:

(a) the diversion of mentally ill adults from the criminal justice system;

(b) stabilization of rising precommitment costs incurred by counties during involuntary commitment proceedings;

(d) reducing the number of individuals receiving mental health services at Montana State Hospital.

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, Chapter 479, Laws of Montana, 2009

RULE II PARTICIPANTS (1) Only a county as defined in ARM 37.2.902 or a group of counties that have collaborated for the purpose established in [RULE I] may submit a grant request for the matching fund grants awarded under this subchapter.

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, Chapter 479, Laws of Montana, 2009

RULE III DETERMINING MATCHING FUND GRANT AMOUNTS (1) The department will base matching fund grants awarded under this subchapter upon the following considerations:

(a) The total amount of matching fund grants will not exceed available funding appropriated by the Montana Legislature.

(b) The department may evaluate each county or multicounty plan submitted pursuant to [RULE V] and award matching fund grants based on the likelihood, as determined by the department, that the plan would reduce admissions to the state hospital for emergency and court-ordered detention and evaluation and would ultimately result in cost savings to the state if implemented.

(i) the prior year's county use of Montana State Hospital;

(ii) the number of admissions by county compared to the total admissions to Montana State Hospital; and

(iii) the population of each county compared to the statewide population.

(d) Counties with high utilization of Montana State Hospital will receive a lower match rate for the total amount of funds granted.

(e) Participating counties will be required to match the grant amount with county and other local entity funds or in-kind contributions on a dollar-for-dollar minimum basis.

(2) The department will recalculate the match rate annually, based upon the number of admissions to Montana State Hospital for each county during the previous fiscal year.

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, Chapter 479, Laws of Montana, 2009

RULE IV PRO RATA DISTRIBUTION (1) If the amount requested for matching grants exceeds the funding available in the legislative appropriation, the department may allocate funding on a pro rated basis, based on the considerations in [RULE III].

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, Chapter 479, Laws of Montana, 2009

RULE V APPLICATION PROCESS (1) A county or group of counties may apply for state matching funds only:

(a) in the manner prescribed by the department; and

(b) in response to a statewide request for applications issued by the department.

(2) To be considered for state matching funds, the application must include all of the following:

(a) a county or multi-county jail diversion and crisis intervention services strategic plan pursuant to 53-21-138 and 53-21-139, MCA, including:

(i) a plan for community-based or regional emergency treatment;

(ii) a plan for community-based or regional court-ordered detention and examination services; and

(iii) a plan for short-term inpatient treatment.

(b) a detailed plan for how the county and other local entities will collaborate and commit local funds for mental health services for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs:

(i) a county, or group of counties, that includes tribal land must demonstrate collaboration efforts with tribal representatives both on and off reservations.

(c ) a detailed budget and accounting of how the county(s) and other local or regional entities will collaborate and commit funds for the activities identified in the proposal; and

(d) a plan for collecting and reporting data and information on county jail diversion, crisis intervention, and short-term inpatient treatment services.

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, Chapter 479, Laws of Montana, 2009

4. The Department of Public Health and Human Services (the department) is proposing the adoption of new Rules I, II, III, IV, and V pertaining to state matching fund grants to counties for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs for individuals with mental illnesses. These rules are necessary to implement House Bill 130 (HB 130), 2009 Laws of Montana, Chapter 479. This statute provides for state matching fund grants to counties for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs for individuals with mental illnesses. The statute mandated that the department adopt rules by August 1, 2009 to implement the provisions of the bill. Therefore, the department intends to adopt the rules retroactively to August 1, 2009.

The proposed new rules are intended to reflect the requirements of the statute, including a sliding match rate schedule that is calculated based upon the historical county use of Montana State Hospital, the number of commitments by county compared to the total commitments, and the population of each county compared to statewide population. Furthermore, the statute directed the department to create a sliding scale so that counties with high utilization would be "receiving a lower percentage of matching funds".

The proposed new rules are intended to broadly define the process and the manner in which a county or group of counties may apply for a state matching funds granted under the legislation. To be considered, the application must include a county or multi-county jail diversion and crisis intervention services strategic plan, a detailed plan for how the county and other local entities will collaborate and commit local funds, and a plan for the collection and reporting of data and information.

The proposed new rules are required by statute to implement a new statewide matching funds grant program. The statute specifies the terms and considerations of distribution. Therefore, the department did not consider alternative methods of distribution.

A summary of each proposed rule is set forth below:

Rule I

This proposed rule contains the purpose and objectives of the state matching funds grants to counties for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs for individuals with mental illnesses. The department drew the proposed purpose and objectives from the preamble of the statute, that will not be codified. The department determined that the purpose and objectives should be stated in the rules to make them easier for the public to access. It should also make it easier for the counties to prepare a grant application.

Rule II

This rule contains the policy that a county is the only entity that may participate in the state matching fund grants issued under these proposed rules. A cross-reference to an existing department rule defining a county as the Board of County Commissioners is included for clarity.

Rule III

This rule contains the proposed considerations upon which the department would determine the amount of each state matching funds grant under these rules. Most of the criteria are expressly stated in the statute and the remaining criteria are implicit. The department is proposing a minimum dollar-for-dollar county match. The department believes the statute allows funds from "other local entities" such as hospitals and other for profit and nonprofit organizations to be considered part of the match. The department is proposing that in-kind contributions, such as the use of county and other local entity services and facilities be considered in calculating the county's share. This would allow counties with limited funds to participate in the grants when they otherwise could not.

Rule IV

The department is proposing new Rule IV to address the potential for overwhelming county interest in the grants. If a distribution of funds determined under the criteria proposed in new Rule II exceeded the amount appropriated for purposes of these rules, the department would be able to distribute the available funds on a pro rata basis, so that all eligible counties would receive a share.

Rule V

The department is proposing this rule containing the application process. The requirements are all drawn from the statute, but the sequence of events is the department's proposal. The department did not include membership in a statewide insurance pool or implementation of a suicide prevention program as conditions for receiving a state matching funds grant under these proposed rules. Neither an insurance pool nor a suicide prevention program was in existence at the time of this notice. Therefore, the department intends to add those requirements in future rulemaking notices when such resources become available to counties.

Entities Affected

There are 56 counties in the state of Montana that could be affected by the proposed new rules. Under the terms of the statute, no other entities may participate in the state matching funds grant program for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs for individuals with mental illnesses.

Fiscal Effect

The fiscal effect of the proposed new rules will be limited to the funds appropriated by the 2009 Montana Legislature for the purpose of state matching fund grants to counties for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs for individuals with mental illnesses. The total amount of state funds for state fiscal year (SFY) 2010 is $1,240,866 and for SFY 2011 is $1,239,454.

5. The department intends to apply the proposed new rules retroactively to August 1, 2009. In the event the proposed new rules are adopted retroactively there would be no negative effects on counties or individuals.

6. 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: Rhonda Lesofski, 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., October 22, 2009.

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

8. 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 6 above or may be made by completing a request form at any rules hearing held by the department.

9. An electronic copy of this Proposal Notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

10. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was contacted by letter on August 5, 2009, sent postage prepaid via USPS.

/s/ John Koch /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State September 14, 2009.