BEFORE THE Department of Public
health and human services of the
STATE OF MONTANA
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In the matter of the adoption of New Rule I and amendment of ARM 37.40.1421 pertaining to all Medicaid provider fee schedules and home and community-based services (HCBS) for the elderly and people with physical disabilities |
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NOTICE OF ADOPTION AND AMENDMENT |
TO: All Concerned Persons
1. On May 26, 2011, the Department of Public Health and Human Services published MAR Notice No. 37-547 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 896 of the 2011 Montana Administrative Register, Issue Number 10.
2. The department has adopted the following rule as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined.
New Rule I [37.85.105] Effective dates of Montana Medicaid Provider Fee Schedules (1) remains as proposed.
(2) The department adopts and incorporates by reference, the fee schedule for the following programs on the date stated:
(a) home and community-based services for elderly and physically disabled persons fee schedule, as provided in ARM 37.40.1421, is effective August 1, 2011 September 1, 2011.
AUTH: 53-2-201, 53-6-113, MCA
IMP: 53-2-201, 53-6-101, 53-6-402, MCA
3. The department has amended ARM 37.40.1421 as proposed.
4. The department has thoroughly considered the comments and testimony received. A summary of the department's comments and the department's responses are as follows:
COMMENT #1: The department received in excess of 70 oral and written comments related to the changes being proposed in this rule notice. The majority of the comments received pertained to the targeted Medicaid rate reductions for assisted living facilities, but also the 2% provider rate reductions for this program. Targeted assisted living facility rate increases provided in the 2010/2011 biennium with one-time-only (OTO) funding were not restored by the 2011 Montana Legislature in House Bill 2 (HB2). Following are some example comments received:
Commenters stated that the decreased rate being proposed is insufficient to pay for quality services in this setting. The current rates are too low and the 10-12% reduction is too drastic to be absorbed.
The proposed rate reduction will cause some assisted living providers to discharge current Medicaid recipients and/or not accept new Medicaid recipients. As it is now, very few facilities accept Medicaid residents due to the current discounted payment rate under Medicaid.
HCBS assisted living costs Medicaid less than nursing homes and consumers prefer it. Assisted living providers have accepted rates below their costs. The rate decrease in assisted living will result in a shift to skilled nursing home care at a significantly higher cost.
There was a recommendation that the department include language in these rules to allow higher adult residential rates to be paid if the department finds it is unable to place waiver clients in assisted living when that is the appropriate and least restrictive setting.
RESPONSE #1: The department appreciates the number of individuals that took the time to comment on these rules. The department has limited flexibility to mitigate these funding reductions and maintain this program within the funding levels appropriated by the Montana Legislature. Based on comments received related to the targeted assisted living facility rate reductions that were funded with one-time-only (OTO) funding, the department has evaluated its overall funding for the waiver program and determined that we can mitigate a portion of this reduction by managing individual consumer care budgets to direct funds where they are needed most, thus mitigating the $1,041,695 total fund reduction that was targeted for assisted living facility rates. The OTO 2% provider rate increase that was provided in Fiscal Year (FY) 2010 and sustained in 2011 was not restored in (HB2) that was passed by the 62nd Montana Legislature and will not be restored to this category of services. The department will continue to monitor the waiver budget and this program area in particular, to assess the ability of Medicaid waiver consumers to continue to access this service setting.
COMMENT #2: Three commenters expressed rate reduction concerns with regard to assisted living facilities providing specialized services to consumers with traumatic brain injuries (TBI). These facilities are required to provide a higher level of care and provide additional staff training. The staffing ratio is crucial to meet the needs of the consumers and complete individualized habilitation plans.
RESPONSE #2: The department appreciates the specialized services provided by the assisted living facilities providing services to consumers with TBI. However, the OTO 2% provider rate increase that was provided in FY 2010 and sustained in 2011 has not been restored in HB 2 that was passed by the 62nd Montana Legislature. The department has limited flexibility to mitigate these funding reductions and maintain this program within the funding levels appropriated by the Montana Legislature.
COMMENT #3: Commenters expressed concern with the department's ability to complete the legislative directive to utilize 100 slots to transition or divert individuals from nursing facility placements. Assisted living facilities play a key role in transition/diversion projects and the proposed rate reduction may significantly reduce access to assisted living for Medicaid consumers.
RESPONSE #3: The department has undertaken nursing home transition programs for several years and has rarely had difficulty in finding transition placements for those nursing facility residents that want to relocate to the community and are appropriate to transition. Clearly, these new 100 slots are targeted to avoid or divert, if possible, the initial admission to the nursing facility. The department will continue to monitor the waiver budget and specifically these 100 slots to assess the ability of Medicaid consumers to continue to access community settings, of which assisted living facilities are only one alternative for placement.
COMMENT #4: One commenter expressed concern with the priorities directed by the legislative funding for 100 additional waiver slots. The commenter was concerned about the use of dollars directed toward HCBS waiver services being allowed to fund Medicaid nursing home bed days.
RESPONSE #4: The 62nd Legislature appropriated $2,500,000 to meet three specific priorities for this designated funding for 100 new waiver slots: (1) plans of care for individuals moved from nursing homes into community settings under the HCBS program; (2) maintaining individuals in assisted living facilities and others in the community who are at immediate risk of nursing home placement; and (3) Medicaid nursing home bed days in the event bed days are underfunded. These dollars do not become a part of the HCBS waiver budget until one of the 100 potential slots is approved. If a portion of the funding for these slots cannot be met within the first two priorities, then it can become available for priority three. It is unlikely that there will be a need to fund nursing home bed days with any of this funding in FY 2012.
COMMENT #5: One commenter expressed concern with the expansion of 100 waiver slots while reducing significantly the rates for assisted living providers. It is felt that access will be severely limited and that a portion of these dollars would be better spent to maintain the current assisted living rate.
RESPONSE #5: The 62nd Legislature appropriated $2,500,000 to meet three specific priorities for this designated funding for 100 new waiver slots: (1) plans of care for individuals moved from nursing homes into community settings under the HCBS program; (2) maintaining individuals in assisted living facilities and others in the community who are at immediate risk of nursing home placement; and (3) Medicaid nursing home bed days in the event bed days are underfunded. This language is specific that this designated appropriation must be used for this specific purpose, and the department intends to track these placements during the biennium in order to provide information on who has utilized these specific service slots.
COMMENT #6: One commenter questioned the implementation date of this proposed rule. New Rule I [37.85.105] states August 1, 2011, but the explanation in the rule rationale under ARM 37.40.1421 indicates an effective date of August 31, 2011.
RESPONSE #6: The effective date for this rule will now be September 1, 2011 due to the delay in the filing of this second notice of the rule. New Rule I [37.85.105] fee schedule will be amended to read September 1, 2011 rather than the August 1, 2011 date that was included in the first notice of this rule. The date stated in the statement of reasonable necessity under ARM 37.40.1421 was a clerical error and has been corrected. The department is amending the text to read: "This rule is also being amended to establish a published fee schedule for this program effective August 31, 2011 August 1, 2011".
COMMENT #7: One commenter requested the department make available any information developed related to the adequacy of the rates being proposed.
RESPONSE #7: The waiver has historically had an adequate number of providers for the HCBS Waiver Program. We are aware that Medicaid rate reductions may impact the number of assisted living facility providers available, but it is felt that the access will remain adequate. There continue to be new assisted living facilities constructed and additional beds added in this area, thus there is capacity in the assisted living market for placements to occur. The waiver has seen increased growth in this area of their budget, even prior to this targeted increase in the rates in 2010/2011. The assisted living portion of the waiver now makes up approximately a third of the total waiver placements in the state. The department will continue to monitor the waiver budget and this program area in particular and assess the ability of Medicaid waiver consumers to continue to access this service setting.
COMMENT #8: Four commenters expressed concerns regarding the new requirements being proposed for assisted living facilities providing services to Medicaid individuals.
RESPONSE #8: This comment is not related to the topic of rule notice MAR 37-547.
COMMENT #9: One commenter expressed concerns with the assisted living guidelines being proposed by the Centers for Medicare and Medicaid.
RESPONSE #9: This comment is not related to the topic of rule notice MAR 37-547.
COMMENT #10: One commenter expressed concern regarding Montana's Medicaid policy not incorporating the ability for family supplementation of assisted living rates.
RESPONSE #10: This comment is not related to the topic of rule notice MAR 37-547.
COMMENT #11: One commenter expressed concern regarding availability of a waiver slot for any Medicaid resident of a nursing home.
RESPONSE #11: This comment is not related to the topic of rule notice MAR 37-547.
COMMENT #12: One commenter expressed their thanks and support for the change in the language for switching "plan of care" to "service plan". Using the term "service plan" rather than "plan of care" more accurately portrays the holistic nature of services that are available through the waiver program which, are not only medical in nature, but cover an array of areas in order to allow individuals to lead as normal and as independent lives as possible in their own communities.
RESPONSE #12: The department agrees with this comment and thanks the commenter.
/s/ John Koch /s/ Laurie G. Lamson for
Rule Reviewer Anna Whiting Sorrell, Director
Public Health and Human Services
Certified to the Secretary of State August 15, 2011.
