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| Montana Administrative Register Notice 37-493 | No. 24 12/24/2009 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF
TO: All Concerned Persons 1. On November 12, 2009, the Department of Public Health and Human Services published MAR Notice No. 37-493 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 2106 of the 2009 Montana Administrative Register, Issue Number 21. 2. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined: 37.87.1217 PSYCHIATRIC RESIDENTIAL TREATMENT FACILITY (PRTF) SERVICES, TREATMENT REQUIREMENTS (1) through (4) remain as proposed. (5) In addition to the requirements in (4) that pertain to discharge planning the following activities are required. The PRTF must: (a) develop a discharge plan within 30 days of admission that identifies the youth and family's needed services and supports upon discharge: (b) through (d) remain as proposed. (6) If (7) As part of the discharge planning requirements, PRTFs shall ensure the youth has a seven-day supply of needed medication and a written prescription for medication to last through the first outpatient visit in the community with a prescribing provider. Prior to discharge, the PRTF must identify a prescribing provider in the community and schedule an outpatient visit. Documentation of the medication plan and arrangements for the outpatient visit must be included in the youth's medical record. If medication has been used during the youth's PRTF treatment but is not needed upon discharge, the reason the medication is being discontinued must be documented in the youth's medical record. IMP: 53-2-201, 53-6-101, 53-6-111, MCA 37.87.1222 PSYCHIATRIC RESIDENTIAL TREATMENT FACILITY (PRTF) SERVICES, INTERIM RATE AND COST SETTLEMENT PROCESS (1) through (4)(c) remain as proposed. (5) Emergency medical conditions treated by providers outside the PRTF will be reimbursed using state funds at the prevailing Montana Medicaid rate, and must be billed by an enrolled provider directly to the Montana Medicaid program. (6) For purposes of this rule "emergency medical condition" means: (a) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: (i) placing the health of the individual (ii) and (iii) remain as proposed. (7) Additional outside services that may be reimbursed using state funds to pay the prevailing (a) emergency dental services in accordance with the (b) eyeglasses and vision examinations; (c) durable medical equipment; and (d) hearing aids and hearing examinations. (7) through (11) remain as proposed but are renumbered (8) through (12). IMP: 53-2-201, 53-6-101, 53-6-111, MCA 37.87.1223 PSYCHIATRIC RESIDENTIAL TREATMENT FACILITY (PRTF) SERVICES, REIMBURSEMENT (1) through (4) remain as proposed. (5) Emergency medical conditions treated by providers in a hospital emergency room outside the PRTF will not be included in the out-of-state PRTF's usual and customary rate, and must be billed by an enrolled provider directly to the Montana Medicaid program. Emergency medical services provided outside the PRTF will be reimbursed the prevailing Montana Medicaid rate using state funds. See ARM 37.87.1222 for the definition of emergency medical conditions, additional outside services that may be reimbursed using state funds at the prevailing Montana Medicaid rate and where services must be provided to be reimbursed IMP: 53-2-201, 53-6-101, 53-6-111, MCA 3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows: COMMENT #1: In ARM 37.87.1217(1) "PRTF services must include active treatment designed to achieve the youth's discharge to a less restrictive level of care at the earliest possible time", we recommend that language be added specifying that discharge to less restrictive level of care also be based on the youth's ability to be safe from self-harm, harm to others, and placement in a setting that assists them to achieve successful treatment outcomes. RESPONSE #1: The department disagrees. The language in ARM 37.87.1217(1) is from a federal regulation from 42 CFR, part 441, subpart D. COMMENT #2: Several commentors recommended removing the terms "comprehensive" and "all" from ARM 37.87.1217(4)(b) so the language would read "the discharge plan must address psychiatric, medical, educational, psychological, social, behavioral, developmental, and chemical dependency needs;". RESPONSE #2: The commentors are referring to ARM 37.87.1217(5)(a)(ii). The department will remove the term "all". The term "comprehensive" is used in 37.87.1217(5)(a)(i) and (6) to describe discharge planning requirements. The term "comprehensive" will also be removed. PRTFs will be monitored more closely by the department to assure discharge planning is occurring as appropriate under federal regulation and national accreditation standards (42 CFR, part 441, subpart D; Joint Commission on Accreditation of Health Care Organizations, Council on Accreditation, and Commission on Accreditation of Rehabilitation Facilities.) COMMENT #3: Several commentors asked about ARM 37.87.1217(5)(a), the requirement to "develop a discharge plan within 30 days of admission that identifies the youth and family's needed services and supports upon discharge;". Although discharge plans begin at the time of admission, a concise plan that can be implemented within 30 days of admission may need to be frequently modified to reflect information derived from the resident and the family treatment sessions. This is particularly important with the requirement in ARM 37.87.1217(4)(b), that the discharge plan must be "comprehensive" and identify "all" psychiatric, medical, educational, psychological, social, behavioral, developmental, and chemical dependency needs. RESPONSE #3: The terms "comprehensive" and "all" will be removed from ARM 37.87.1217(5) and (6). A discharge plan developed within 30 days of admission may change during the course of the youth's treatment in the PRTF. The department is stressing the importance of good discharge planning, involving the youth, parent, or guardian and making timely referrals for needed services upon discharge. COMMENT #4: Because PRTFs are required to provide comprehensive discharge plans and identify needed services for youth discharging from their facility, if comprehensive and adequate arrangements for services upon discharge are not made per ARM 37.87.1217(5) the PRTF may be at risk of losing their enrollment in the Montana Medicaid program. What does "comprehensive and adequate arrangements for services" mean? There are examples where services are not available or payable by the family or Medicaid or when circumstances change that the PRTF cannot control. The threat of losing enrollment in the Montana Medicaid program is very disconcerting. To target providers in this rule without recognizing that comprehensive discharge planning also requires the full cooperation of parents, funding sources, agencies, other providers, and communities is not appropriate or reasonable. RESPONSE #4: "Comprehensive" will be taken out of ARM 37.87.1217(5) and (6). "Adequate" will be replaced by the word "appropriate" in these rules. "Appropriate" is used in the Council on Accreditation Case Closing and Aftercare Standards, "case closing is a planned orderly process, and aftercare occurs when possible and appropriate." As the commentors indicated there are circumstances in which services upon discharge will be limited. See Response #2 regarding discharge planning requirements. This does not alleviate the provider from addressing the discharge or aftercare needs of the youth, with the youth, parent, or guardian. The intent of this rule is to reiterate the PRTF discharge planning requirements, stress the importance of appropriate discharge planning, and to provide the department with the ability to take action with a provider who has a persistent pattern of inappropriate discharge plans. To take action, the pattern of inappropriate discharge plans would place youth at serious risk of harm to self and/or others. The department would take into consideration the unique set of circumstances surrounding each youth's discharge. COMMENT #5: Under proposed ARM 37.87.1217 (7), "as part of the discharge planning requirements, PRTFs shall ensure the youth has a seven day-supply of medication . . ." would be amended to a "three-day supply of medications and a written prescription for medication . . ." The seven-day requirement is an increase from the present standard of three days and is not calculated in our ancillary rate. If the seven-day requirement is implemented then we request that the department include that increased cost in the ancillary add-on rate. RESPONSE #5: The department will include a seven-day supply of discharge medication as an allowable expense in the PRTF cost report. The department plans to update the facility-specific ancillary add-on rate for in-state PRTFs in March 2010, after the department has analyzed the 3/1/09 - 6/30/09 cost report. The seven-day supply of medication requirement will not be effective until January 1, 2010. PRTFs will need to complete a revised cost report for 1/1/10 – 6/30/10, to capture the additional costs associated with this rule change. ARM 37.87.1222(7) (to be renumbered ARM 37.87.1222(8)) allows interim payments for unusually expensive medical conditions that require a higher ancillary rate prior to the cost settlement process. COMMENT #6: In ARM 37.87.1217(7), the third line, we propose that the word "needed" be inserted before "medicine" in the phrase "a seven-day supply of medicine". RESPONSE #6: The department agrees and will add the word "needed" as suggested. COMMENT #7: Several commentors recommended removing the requirement in ARM 37.87.1222(1)(c) that the facility-specific ancillary add-on rate include only those services provided "in and by" the PRTF. One commentor indicated the Regional Centers for Medicare and Medicaid Services (CMS) director told them in a December 7, 2009 conference call that medical services provided outside the PRTF would be eligible for federal financial participation (FFP) if the PRTF had a contract with the provider. In ARM 37.87.1222 (1)(c) "a facility-specific ancillary add-on rate for Medicaid services provided in and by the PRTF, not already included in the base psychiatric services rate in (1)(a)", would read "a facility-specific ancillary add-on rate for Medicaid services provided by the PRTF. . ." This language would allow the PRTF to contract with providers outside their facility to provide the Medicaid services. RESPONSE #7: The department disagrees and has received written information from CMS indicating services must be provided "onsite". The "in and by" language has been approved by CMS and was used in the June 2009 Kansas Departmental Appeal Board decision to indicate which medical services are eligible to receive FFP. CMS has made it clear to the department that medical and ancillary services provided "outside" the PRTF are not eligible for FFP and if allowed would put the department's FFP at risk. The department confirmed our interpretation of the COMMENT #8: Several commentors had questions about the authorization of emergency services in ARM 37.87.1222(5). "Emergency medical conditions treated by providers outside the PRTF will be reimbursed the prevailing Montana Medicaid rate, and must be billed by an enrolled provider directly to the Montana Medicaid program. Emergency services must be authorized by the department or its designee within 24 hours of the emergency service being provided or the next business day (Monday through Friday)." This rule modification returns us to practices before the January 1, 2009 administrative rule changes with the added stipulation that "emergency services" must be approved by the department. Since emergency services will likely be provided before the department rules on their eligibility, will the PRTF be liable for all costs if the department deems these services unnecessary? Please clarify what is needed, who in the department authorizes this, and what the procedure will be? Although ARM 37.87.1222(6) in this rule attempts to define "emergency medical condition", it is vague in nature and leaves much to the discretion of the reviewing entity. We would ask the department to more specifically define their intent with this rule. RESPONSE #8: The rule change in-part returns providers to the billing procedures in place prior to January 1, 2009. However, prior to January 1, all Medicaid state plan services could be billed while a youth was in a PRTF. The department is limiting services for youth in a PRTF to emergency medical conditions. The department has decided not to require authorization for emergency services and will allow emergency room services to be reimbursed by the department with state general funds, when provided "outside" the PRTF. In addition, the department will reimburse the following services with state general funds: emergency dental procedures in accordance with the Montana Medicaid Dental Program for adults ages 21 and over with basic Medicaid; eyeglasses and vision examinations; durable medical equipment; and hearing aids and hearing examinations. The intent of the "emergency medical condition" language is to indicate only emergency medical conditions and procedures are covered by state general funds and not less serious conditions and routine procedures. Based on provider comments, additional services have been added to the list of covered services provided outside the PRTF. If the service is not listed above, the provider will not be reimbursed for the service. MMIS has not been changed to pay for these service claims. Until further notice, these claims will need to be submitted to the Children's Mental Health Bureau. Claims must be submitted to the bureau the same way they would be submitted to ACS to be reimbursed. All Medicaid requirements for billing apply. Medicaid fee schedules in place at the time the service is provided will be used for reimbursement. COMMENT #9: We recommend changing ARM 37.87.1222(6) to "medically necessary services" rather than "emergency medical condition" and in ARM 37.87.1222(5) outline and define the acceptable services. RESPONSE #9: All state plan services must be "medically necessary" per ARM 37.82.102(18) to be reimbursed by the Montana Medicaid program. The department will not reimburse for all Medicaid state plan services for youth in a PRTF. See services to be reimbursed in Response #8. COMMENT #10: It appears that the department's definition of "emergency medical condition" in ARM 37.87.1222(6) is based on the definition of "emergency medical condition" in the federal Emergency Medical Treatment and Labor Act which provides standards for medical treatment at hospital emergency rooms. We are concerned that this definition is too narrow and will restrict services provided to patients in PRTFs. Can the department lawfully restrict ancillary services to emergency medical conditions, as proposed in the amendment to ARM 37.87.1222? This concern is based on statements made in the Departmental Appeals Board (DAB) Decision No. 2255, to the effect that Section 1905(h)(2) of Title XIX of the Social Security Act requires that the states "must maintain efforts prior to 1971 to fund either such services or outpatient services to eligible mentally ill children from nonfederal funds". This holding seems to imply that states are required to fund the types of ancillary services that historically have been provided and that are currently listed ARM 37.87.1222(4). If that in fact is the meaning and intent of the DAB decision, our concern is that the state may have no authority to restrict ancillary services to "emergency medical conditions" as proposed in the amendments to ARM 37.87.1222(4), (5), and (6). Additionally, the Early and Periodic Screening, Diagnosis and Treatment (EPSDT) requirements of the federal Medicaid statute require the department to provide all covered services to children who need them. Has the department talked to the federal government about the legality of restricting services as proposed? RESPONSE #10: Yes, the definition of "emergency medical condition" is based on the Emergency Medical Treatment and Labor Act (EMTALA). Based on feedback from in-state PRTF providers the department will also include for reimbursement the services in Response #8. The specific language in the Kansas DAB decision indicates that subsection (h)(2) provides, essentially, that states must maintain efforts "prior to 1971" to fund either such services or outpatient services to eligible mentally ill children from nonfederal funds. The department is confident that state expenditures have increased significantly since 1971 and the department meets the maintenance of effort requirements in limiting services as outlined in Response #8. The DAB indicated in the Kansas decision that several states made similar arguments against restricting services for youth in a PRTF citing the Early, Periodic, Screening, Diagnosis and Treatment (EPSDT) regulations, which they indicated did not apply to Institutions for Mental Diseases (IMD) exclusions. They cited a 1991 policy statement issued by the director of CMS's Medicaid Bureau that said the "fact that a need for the services determined through an EPSDT screen would not provide a basis for paying for services for which we otherwise could not pay because of the IMD exclusion". COMMENT #11: We are concerned that services to treat what we consider to be an emergency medical condition will not be paid for because Medicaid may determine after the fact that it was not an emergency. We would then feel we had to pay the outside medical provider ourselves. We need further guidance from the department in regard to what will be considered an emergency medical condition. For example, would the treatment of serious dental decay, dental abscesses, hearing, or visual problems or motor skill or language development delays be considered treatment of an emergency medical condition that would be reimbursed if provided by an outside provider? What about treatment of an accidental injury that typically would not be treated by going to an emergency room? If an outside medical provider furnished services while a child was at an in-state PRTF and a determination was made that there was no emergency medical condition, would the outside medical provider be allowed to bill Medicaid for the services? RESPONSE #11: The department has decided not to require authorization for emergency services. See the response and services listed in Response #8 that will be reimbursed by the department with state funds. Youth must be discharged from the PRTF when they are admitted to a hospital in order to receive state or Medicaid funded reimbursement. If occupational and speech therapy services are provided "in and by" the PRTF, whether or not the services are contracted for or provided by an employee of the PRTF, they will be reimbursed by Medicaid. COMMENT #12: One commenter asked if targeted youth case management services will be allowed for youth in a PRTF? RESPONSE #12: When these rules go into effect, PRTFs will no longer be reimbursed for providing any TCM activities to youth in their facility, directly or through a contract with a mental health center. Discharge planning is a PRTF requirement. The department will monitor more closely the appropriateness of discharge planning by the PRTFs. 4. The department intends to apply these rules effective January 1, 2010. /s/ John Koch /s/ Mary Dalton for Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State December 14, 2009.
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