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 VI pertaining to state matching fund grants to counties for crisis intervention, jail diversion, involuntary precommitment, short-term inpatient treatment costs, and contracts for crisis beds and emergency and court-ordered detention beds for persons with mental illness

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On November 23, 2009, at 1:30 p.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 November 16, 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 GRANTS TO COUNTIES, GOALS AND OUTCOMES (1) A county or group of counties may apply to the department for a grant under this subchapter.

(2) In developing grant applications, counties should consider the following goals:

(a) to reduce reliance on Montana State Hospital (MSH) for emergency and court ordered detention and evaluation;

(b) to support the treatment of mental illness closer to home by increasing local treatment capacity and creating better treatment outcomes;

(c) to increase the number of intervention and jail diversion options that may provide judges, county attorneys, and law enforcement with alternatives to incarceration; and

(d) to establish and support collaboration among community stakeholders to address community needs.

(3) The department expects grant applications to address the following outcomes:

(a) disruption of the consumer's life will be minimized and the effectiveness of treatment will be maximized, resulting in better treatment outcomes;

(b) financial and other resources will be retained in the community for jail diversion and crisis intervention; and

AUTH: 53-21-1203, MCA

IMP: 53-21-1203, MCA

RULE II GRANTS TO COUNTIES, 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 53-21-1203, MCA, may submit a grant application for matching fund grants awarded under this subchapter.

(2) A county or group of counties preferring to have a chief operating officer or other person submit a grant application may issue a document authorizing the chief operating officer or other person to act on their behalf. The authorization document must be included with the grant application.

AUTH: 53-21-1203, MCA

IMP: 53-21-1203, MCA

RULE III GRANTS TO COUNTIES, DETERMINING GRANT AMOUNTS

(1) The department will base matching fund grants awarded under this subchapter on the criteria specified in 53-21-1203, MCA.

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

(3) The department will evaluate each county or multicounty grant application submitted pursuant to [RULE V] and award matching fund grants based on the likelihood, as determined by the department, that the plan would promote appropriate utilization of the Montana State Hospital (MSH) for emergency and court-ordered detention and evaluation and would ultimately result in cost savings to the state if implemented.

(4) The department will match county and other local entity funds or in-kind contributions using a sliding scale for state grants as provided in 53-21-1203, MCA.

(a) The sliding scale is determined by calculating the previous year's admissions as reported by MSH per 1,000 county residents.

(b) The department may grant up to 70% of the local investment to counties below the statewide average admission rate.

(c) The department may match the local investment of cash and in-kind contributions to any county whose MSH admissions are at or above the statewide average admission rate on a sliding scale of 50% to 65% in equal 5% increments. The department's match will not be less than 50% of the local investment.

(5) The county population will be the figure published in Table 1: Annual Estimates of the Population for Counties of Montana: April 1, 2000 to July 1, 2007 (CO-EST2007-01-30). Source: Population Division, U.S. Census Bureau that is adopted and incorporated by reference. Copies of the table may be obtained from the Department of Public Health and Human Services, Addictive and Mental Disorders Division, P.O. Box 202905, Helena, MT 59620.

(6) The department will recalculate the sliding scale match rate annually using the formula described in 53-21-1203, MCA, based on the prior year's admissions to MSH per 1,000 residents.

AUTH: 53-21-1203, MCA

IMP: 53-21-1203, MCA

RULE IV GRANTS TO COUNTIES, PRO RATA DISTRIBUTION (1) If the amount requested for matching fund grants exceeds the funding available in the legislative appropriation, the department may allocate funding on a pro rata basis according to the estimate of county population adopted in [RULE III].

(2) The department will allocate funding by dividing available funding by the sum total population of all counties submitting a letter of intent and multiplying the resulting quotient by the individual county population, subject to the matching fund requirements in [RULE III].

AUTH: 53-21-1203, MCA

IMP: 53-21-1203, MCA

RULE V GRANTS TO COUNTIES, STRATEGIC PLAN REQUIREMENTS

(1) Letters of intent (LOI) to participate in the state fund matching grants will be accepted until two weeks after publication of the final adopted version of this rule and grant applications will be accepted until March 1, 2010 for fiscal year 2010 with the grant term concluding at the end of the fiscal year.

(2) For subsequent fiscal years, grant application deadlines will be determined by the department and the department will notify counties of the application deadline no later than March 31.

(3) Only counties that submit a timely LOI are eligible for matching grant funds.

(4) Grants will be awarded no later than 60 days after receipt of a completed grant applications and contract for services.

(5) Successful grant applicants will be those submitting a grant application with at least the following elements:

(a) a county or multi-county jail diversion and crisis intervention strategic plan including a plan for community-based or regional emergency or court-ordered detention and examination services as well as short term inpatient treatment;

(b) a detailed proposal for how the county or counties 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 including a plan for the collection and reporting of data and information;

(c) a detailed budget that identifies cash and in-kind local contribution amounts designated for match, anticipated expenses through June 30 of the funding fiscal year and start up or one time only costs. Multi-county grant applications must identify the county that will act as the fiduciary agent for distribution of the grant funds;

(d) a statement from the grant applicant agreeing to report key data elements according to the department's specifications; and

(e) counties that include tribal lands must demonstrate coordination efforts with tribal representatives both on and off reservations.

(6) Each county or group of counties will submit an annual report to the department within 30 days of the end of each funding year describing implementation of the strategic plan provided for in this rule, including key data elements as defined by the department, for the funded grant period.

AUTH: 53-21-1203, MCA

IMP: 53-21-1203, MCA

RULE VI JAIL DIVERSION AND CRISIS INTERVENTION, CONTRACTS FOR PSYCHIATRIC TREATMENT BEDS (1) The department may contract with a mental health facility for psychiatric treatment beds as provided for in 53-21-1204, MCA, to the extent of available funding.

(2) Contracts will be developed in each service area as defined in 53-21-1001, MCA.

(3) Eligible providers include:

(a) licensed mental health centers who operate a secured crisis stabilization facility (SCSF) as defined in ARM 37.106.2027; and

(b) hospitals, including critical access hospitals.

(4) Reimbursement to an eligible mental health facility under this rule is for vacant contracted psychiatric treatment beds. A contractor must prioritize placement in contracted beds for persons admitted for the purposes specified in 53-21-1204, MCA.

AUTH: 53-21-1204, MCA

IMP: 53-21-1204, MCA

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. These rules are necessary to implement House Bill 130 (HB 130), codified at 53-21-1203, MCA. The purpose of the program is to provide state matching fund grants to counties for local 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. Therefore, the department intends to adopt the rules retroactively to August 1, 2009.

The department is also proposing the adoption of new Rule VI pertaining to state contracts with eligible providers for crisis beds and emergency and court-ordered detention beds for the mentally ill. This rule is necessary to implement HB 131, codified at 53-21-1204, MCA. The purpose of such contracts is to assure the availability of treatment facilities for the emergency detention of persons with mental illness under 53-21-129, MCA, court-ordered detentions under 53-21-124, MCA, and inpatient crisis intervention services prior to the filing of an involuntary commitment petition.

Crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment costs

Proposed new Rules I, II, III, IV, and V are intended to provide county officials and members of the public with the specific information necessary to review and comment on the proposed implementation of state matching fund grants under 53-21-1203, MCA for state fiscal years (SFY) 2010 and 2011. At the time of publication of this proposal, the department had received letters of intent from 37 counties to participate in the matching fund grant program for SFY 2010.

Although the statute specifies the terms and considerations for distribution, the department encountered several matters requiring interpretation of the statute. Therefore, it was necessary to propose these rules.

A summary of each proposed rule is set forth below with the department's rationale:

Rule I

This proposed new rule contains the goals and outcomes counties or groups of counties should consider when developing applications for state matching fund grants for crisis intervention, jail diversion, involuntary precommitment, and short-term inpatient treatment for individuals with mental illnesses. The department drew many of the proposed goals and outcomes from the preamble of HB 130. Since the preamble was not codified, the department has attempted to summarize the intent of the Legislature without repeating statutory language. The department suggests that the purpose and objectives of the grants should be stated in these rules to provide easier access for department staff and county officials as well as to members of the public. Numbering of the goals and outcomes was done to conform to current rule formatting standards and should not be interpreted as an indication of rank or priority.

The department considered and rejected the alternative of not stating goals and objectives to be pursued in preparing and evaluating grant proposals. The department believes this proposed rule will be helpful to county officials and department staff by summarizing the standards that will be used to evaluate whether a grant proposal conforms to the intent of the Legislature.

Rule II

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

The department considered and rejected the alternative of accepting proposals from a county's chief operating officer. The department believes the resource commitments necessary to implement strategic plans under the grants are significant enough that the county commission should participate in the grant proposal. The proposed rule allows for designation of an individual to act on behalf of the Board of County Commissioners if desired.

Rule III

This proposed new rule contains some additional criteria that could be considered in awarding grants in future state fiscal years. It states the policy that grants will be limited to the amounts appropriated for that purpose. This would make it clear that the department's liability under these rules is limited.

For purposes of these rules, the department proposes adoption and incorporation by reference of the most recent U.S. Census Bureau population estimates, July 1, 2007. Montana State Hospital admissions data would be drawn from reports already published by the state hospital.

The department considered using population estimates published by the Montana Department of Labor and Industry, but chose to use estimates published by the U.S. Census Bureau because they are the figures used by the Montana Association of Counties for planning purposes.

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.

The department considered and rejected the alternative of not allowing in-kind contributions or donations by for-profit and nonprofit organizations. The department believes the statutory provision that counties collaborate with local organizations indicates that such contributions should be allowed.

The department proposes to use admissions data from reports already published by Montana State Hospital to compute match rates. The department considered and rejected other measures of state hospital utilization in an attempt to use only those factors under the control of counties. However, the resulting match rates did not differ significantly from those computed using admissions data. The department believes admission data best reflects the purpose of the grants and the intent of the Legislature.

A sample matrix demonstrating the proposed match rate calculations is posted on the department's web page, www.dphhs.mt.gov/amdd/services. Interested persons can obtain a copy of the matrix by writing the department's Addictive and Mental Disease Division at P.O. Box 202905, Helena, MT 59620. The matrix represents a working copy of the match rates and does not necessarily reflect the final match rates for SFY 2010.

Rule IV

The department is proposing new Rule IV to address overwhelming county interest in the grants. The cost of county proposals far exceeds the amount appropriated for such purposes. A total of approximately $1,091,495 is available for such grants in SFY 2010. The 37 participating counties indicated an intent to implement plans that would cost a projected total of $3,249,894 in SFY 2010.

The department is proposing a distribution of available funds on the basis of population, so that all eligible counties could, subject to matching requirements, receive a share.

The department considered and rejected distribution options including the award of grants to counties submitting the earliest or, in the department's judgment, the most meritorious proposals. However, the department proposes to reserve the right to award grants based on its evaluation of merit in SFY 2011. The department also rejected the option of awarding each county a fraction of the grant request based on the total amount requested. This would have encouraged counties to propose the most costly plans possible.

The department proposes to distribute grants based on population. Total funding divided by the total population of all counties submitting proposals equals approximately $1.50 per person. Grants to each county would be available for up to $1.50 times the county population.

The department believes this is the fairest and most reasonable method of distribution because it would promote the delivery of mental health services to the greatest number of people possible with available resources. The department believes per capita distribution like the one proposed would be the most effective way to maintain appropriate admissions at Montana State Hospital and would conform to the intent of the Legislature.

A matrix demonstrating the proposed distribution methodology is posted on the department's web page, www.dphhs.mt.gov/amdd/services. Interested persons can obtain a copy of the matrix by writing the department's Addictive and Mental Disease Division at P.O. Box 202905, Helena, MT 59620. The matrix represents a working copy of the distribution and does not necessarily reflect the final matching fund balances for SFY 2010.

Rule V

This proposed new rule contains the proposed considerations counties should address when developing a grant proposal under these rules. These considerations are the standards the department proposes to use when evaluating a grant application. The information pertaining to the considerations will be necessary to allow the department to determine if a proposal meets the statutory requirements. Since the department deems the considerations necessary to evaluate a grant request, the department did not consider other options. The department believes the proposed considerations are reasonable and conform to legislative intent.

Contracting for mental health treatment beds

The department is proposing new Rule VI containing details necessary for the department to contract with a mental health facility or other eligible provider for treatment beds as provided in 53-21-1204, MCA, including eligibility requirements for providers. The rule also specifies that persons admitted to a secure mental health facility will be placed in a contracted bed as a priority over other secure beds in the facility. The department believes this is the unstated assumption of the Legislature in enacting the statute and appropriating funds.

The department believes the proposed details are necessary to implement 53-21-1204, MCA. It did not consider options that were not specified in the statute.

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 Effects

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 amount of state funds appropriated in House Bill 2 (HB2) for those purposes for SFY 2010 is $1,240,866 and for SFY 2011 is $1,239,454, including $1,091,495 to implement HB 130 in SFY 2010. The amount allocated to implementation of HB 131 is $149,371 for SFY 2010.

5. The department intends to apply the final rules retroactively to August 1, 2009. No detrimental effects will occur if the rules are applied retroactively.

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., November 27, 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, and by telephone and e-mail September 16, 2009.

/s/ John Koch /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State October 19, 2009.