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 Rule I and the amendment of ARM 37.40.405 pertaining to Medicaid reimbursement for swing-bed hospital services

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NOTICE OF PROPOSED ADOPTION AND AMENDMENT

NO PUBLIC HEARING CONTEMPLATED

TO: All Concerned Persons

1. On October 24, 2009, the Department of Public Health and Human Services proposes to adopt and amend 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 16, 2009, to advise us of the nature of the accommodation that you need. Please contact Gwen Knight, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena MT 59604-4210; telephone (406) 444-9503; fax (406) 444-1970; or e-mail [email protected].

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

RULE I DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE REPORTING/ADDITIONAL PAYMENTS INCLUDING LUMP SUM PAYMENTS FOR DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE AND BENEFIT INCREASES (1) Effective for the period January 1, 2010 through December 31, 2010, swing-bed hospitals must report to the department actual hourly wage and benefit rates paid for all direct care and ancillary services workers or the lump sum amounts paid for all direct care and ancillary services workers that will receive the benefit of a direct care and ancillary workers' wage and benefit increase.

(2) The department will use the reported data for the purpose of comparing types and rates of payment for comparable services and for tracking distribution of direct care wage funds to designated workers.

(3) The department will pay Medicaid certified swing-bed hospitals located in Montana, in accordance with this rule, lump sum payments in addition to the reimbursement rate to be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in swing-bed hospitals.

(a) The department will determine lump sum payments commencing January 1, 2010, and again six months from that date as a pro rata share of appropriated funds allocated for increases in direct care and ancillary services workers' wages and benefits or lump sum payments to direct care and ancillary services workers.

(b) To receive the direct care or ancillary services workers' lump sum payment, a swing-bed hospital must submit:

(i) a request to the department stating how the direct care and ancillary services workers' lump sum payment will be spent in the facility in compliance with all statutory requirements; and

(ii) all of the information required on a form developed by the department in order to continue to receive subsequent lump sum payment amounts for the entire rate year.

(i) the number by category of each direct care and ancillary services workers that will receive the benefit of the increased funds, if these funds will be distributed in the form of a wage increase;

(ii) the actual per hour rate of pay before benefits and before the direct care wage increase has been implemented for each worker that will receive the benefit of the increased funds;

(iii) the projected per hour rate of pay with benefits after the direct wage increase has been implemented;

(iv) the number of workers receiving a wage or benefit increase by category of worker, effective date of implementation of the increase in wage and benefit; and

(v) the number of projected hours to be worked in the budget period.

(d) If these funds will be used for the purpose of providing lump sum payments such as bonuses, stipends, or other payment types to direct care and ancillary services workers in swing-bed hospitals, the form will request information including, but not limited to:

(i) the number by category of each direct care and ancillary services worker that will receive the benefit of the increased funds;

(ii) the type and actual amount of lump sum payment to be provided for each worker that will receive the benefit of the lump sum funding;

(iii) the breakdown of the lump sum payment by the amount that represents benefits and the direct payment to workers by category of worker; and

(iv) the effective date of implementation of the lump sum benefit.

(e) A facility that does not submit a qualifying request for use of the funds distributed under (2), that includes all of the information requested by the department, within the time established by the department, or a facility that does not wish to participate in this additional funding amount shall not be entitled to their share of the funds available for wage and benefit increases or lump sum payments for direct care and ancillary services workers.

(4) A facility that receives funds under this rule must maintain appropriate records documenting the expenditure of the funds. This documentation must be maintained and made available to authorized governmental entities and their agents to the same extent as other required records and documentation under applicable Medicaid record requirements, including, but not limited to the provisions of ARM 37.40.345, 37.40.346, and 37.85.414.

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

IMP: 53-2-201, 53-6-101, 53-6-111, MCA

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

37.40.405 SWING-BED HOSPITALS, SPECIAL SERVICE REQUIREMENTS

(1) Before admitting a mMedicaid recipient to a swing-bed, the swing-bed hospital must meet all of the following requirements:

(a) the hospital must obtain a preadmission screening ~~prescreening by a department long term care specialist~~ to determine the level of care required by the patient's medical condition. Medicaid will not reimburse a provider for swing-bed hospital services provided to a mMedicaid recipient admitted to a swing-bed unless the recipient meets the nursing facility level of care requirements specified in ARM 37.40.202 and 37.40.205. The swing-bed hospital must ensure that form DPHHS-SLTC-61, "screening notification", is completed by the department preadmission screening ~~prescreening~~ team to document the level of care determination.

(b) through (5) remain the same.

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

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

5. The Department of Public Health and Human Services (the department) is proposing the adoption of new Rule I and the amendment of ARM 37.40.405 pertaining to Medicaid reimbursement for swing-bed hospital services. The amendments are necessary to implement funding to allow wage increases for swing-bed hospital direct care and ancillary services workers. House Bill 645, enrolled as Chapter 489, Laws of Montana 2009 and intended to implement federal stimulus funding from the American Recovery and Reimbursement Act provides an appropriation for a one-time direct care and ancillary services worker wage increase for employees of swing-bed hospitals. The amendments proposed in this notice would result in a one time lump sum payment which will be in January 2010 to enrolled Medicaid swing-bed hospitals for direct care and ancillary services staff for the 2011 biennium only.

The department is taking this opportunity to incorporate terminology changes and to update the rules where necessary to provide information and to make the rules more understandable where appropriate.

The proposed new rule and amendments are described below.

Rule I

This rule contains the department's proposal for implementing a one time lump sum payment to swing-bed hospitals to be used only for wage and benefit increases for direct care and ancillary services workers. All swing-bed hospitals enrolled as Medicaid providers would be required to report to the department actual hourly wage and benefit rates paid for all direct care and ancillary services workers or the lump sum amounts paid for all direct care and ancillary services workers for the period January 1, 2010 through December 31, 2010. The department will identify the reporting form to be used by providers in order to receive this additional funding for wages. The form will identify which workers will receive these funds and if the funds will be distributed in the form of a stipend, a bonus, or a wage increase.

The department would use the reported data to compare types and rates of payment for comparable services and for tracking distribution of direct care wage funds to designated workers. The department will also use the data to calculate lump sum payments to Medicaid certified swing-bed hospitals located in Montana. Such payments would be in addition to the reimbursement rate and may be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in swing-bed hospitals. Providers should be aware that any funds put into their wage structure under the proposed rule may not be available in future years after the 2011 biennium.

The proposed allocation methodology would be based on the total annual number of Medicaid bed days prorated to each participating swing-bed facility. The lump sum payments would be in addition to the Medicaid swing-bed hospital reimbursement rate. It may be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in swing-bed hospitals.

Since the amount and use of the appropriation is restricted by state and federal statute, the department did not consider alternatives to this proposal.

ARM 37.40.405

The department is proposing amendments to this rule to update the term "prescreening" to the current term "preadmission screening" described in detail at ARM 37.40.201.

Entities affected

There are 45 swing-bed hospitals eligible for Medicaid reimbursement in Montana. All could be affected by the proposed changes.

Fiscal effects

Total funding of approximately $5,729,300 is available to provide for a one-time direct care worker wage increase for certain providers, including swing-bed hospitals. The total available for all swing-bed providers is $158,565.

6. The department proposes that the adoption of New Rule I and the amendment of ARM 37.40.405 will be effective January 1, 2010.

7. Concerned persons may submit their data, views, or arguments concerning the proposed actions in writing to: Gwen Knight, Office of Legal Affairs, Department of Public Health and Human Services, P.O. Box 4210, Helena MT 59604-4210, no later than 5:00 p.m. on October 22, 2009. Comments may also be faxed to (406) 444-1970 or e-mailed to [email protected].

8. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Gwen Knight at the above address no later than 5:00 p.m., October 22, 2009.

9. If the agency receives requests for a public hearing on the proposed actions from either 10% or 25, whichever is less, of the persons directly affected by the proposed actions; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register. Ten percent of those directly affected has been determined to be 4 persons based on 45 providers.

10. 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.

11. 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 this 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.

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

/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.