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 III pertaining to home and community-based services (HCBS) state plan program

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On August 20, 2012, 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, 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 August 8, 2012, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, 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 1915(i) HOME AND COMMUNITY-BASED SERVICES (HCBS) STATE PLAN PROGRAM FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: FEDERAL AUTHORIZATION AND AUTHORITY OF STATE TO ADMINISTER PROGRAM (1) Section 1915(i) of the Social Security Act provides states the option to amend their Medicaid state plan to offer Home and Community-Based Services (HCBS) as a state plan benefit.

(2) The Montana Department of Public Health and Human Services has submitted a 1915(i) HCBS State Plan amendment to the Centers for Medicare and Medicaid Services (CMS) to establish a 1915(i) State Plan program of Medicaid funded home and community services for youth who have serious emotional disturbance.

(3) In accordance with the state and federal statutes and the rules generally governing the provision of services through a Medicaid-funded 1915(i) HCBS State Plan program and the federal-state agreements specifically governing the provision of the Medicaid-funded home and community-based services to be delivered through this program, and within the available funding appropriated for the program, the department may determine within its discretion the following features of the program:

(a) the types of services to be available;

(b) the amount, scope, and duration of the services;

(d) the categories of youth to be served; and

(e) individual eligibility.

(4) The 1915(i) home and community-based services state plan program for youth with serious emotional disturbance must be delivered in accordance with the requirements and limitations of the 1915(i) HCBS State Plan Program for Youth with Serious Emotional Disturbance Policy Manual dated October 1, 2012. A copy of the manual may be obtained from the Department of Public Health and Human Services, Developmental Services Division, Children's Mental Health Bureau, 111 Sanders, P.O. Box 4210, Helena, MT 59604 or at http://www.dphhs.mt.gov/mentalhealth/children/.

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

RULE II 1915(i) HOME AND COMMUNITY-BASED SERVICES (HCBS) STATE PLAN PROGRAM FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: REIMBURSEMENT (1) Services available through the program are reimbursed as provided in this rule.

(2) Program services are reimbursed at the lower of the following:

(a) the provider's usual and customary charge for the services; or

(b) the fees stated in the 1915(i) HCBS State Plan Program for Youth with Serious Emotional Disturbance Policy Manual dated October 1, 2012 which the department adopts and incorporates by reference. A copy of the 1915(i) HCBS State Plan Program for Youth with Serious Emotional Disturbance Policy Manual dated October 1, 2012 may be obtained through the Department of Public Health and Human Services, Developmental Services Division, Children's Mental Health Bureau, 111 N Sanders, P.O. Box 4210, Helena, MT 59604 or at http://www.dphhs.mt.gov/mentalhealth/children/.

(3) Reimbursement is not made for a service that is otherwise available from another source.

(4) No copayment is imposed on services provided through the program.

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

RULE III 1915(i) HOME AND COMMUNITY-BASED SERVICES (HCBS) STATE PLAN PROGRAM FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: NOTICE AND FAIR HEARING (1) When an adverse determination concerning a youth's eligibility or the delivery of program services to the youth is made by the department, the department provides notice to the parent or legal representative of the youth.

(2) The department provides a youth receiving services and the youth's parent or legal representative with notice ten working days before the intended date for termination of services due to a determination of ineligibility for the youth.

(3) A youth aggrieved by any adverse determination may request a fair hearing to be conducted as provided for in ARM 37.5.103, 37.5.301, 37.5.304, 37.5.305, 37.5.307, 37.5.313, 37.5.316, 37.5.318, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, 37.5.337, 37.5.503 and 37.5.505.

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

4. STATEMENT OF REASONABLE NECESSITY

The Department of Public Health and Human Services (department) is proposing New Rules I through III for the 1915(i) Home and Community-based Services (HCBS) State Plan Program for Youth with Serious Emotional Disturbance (the 1915(i) HCBS State Plan Program). The proposed rules are necessary to provide a clear understanding of the program and the services offered.

The Department of Public Health and Human Services, Developmental Services Division, Children's Mental Health Bureau has submitted a 1915(i) HCBS State Plan proposal to the Centers for Medicare and Medicaid Services to establish a program of Medicaid funded home and community-based services for youth who have serious emotional disturbance. The purpose of this program is to provide a particular set of special mental health services to qualifying youth in the community setting. The 1915(i) HCBS State Plan does not require eligible youth to meet the institutional level of care that is required under a 1915(c) HCBS waiver, allowing states flexibility in providing necessary and appropriate services. The proposed Administrative Rules of Montana, New Rule I through III, are specific for administering the 1915(i) HCBS state plan services.

New Rule I

The proposed language in New Rule I outlines the federal authority through Section 1915(i) of the Social Security Act, providing states the option to amend their Medicaid state plan to offer Home and Community-based Services (HCBS) as a state plan benefit.

In addition, the proposed rule establishes the discretion of the department to manage the various aspects of the program in conformance with federal authority, the appropriated budget authority, and as otherwise determined appropriate by the department. This application of discretion to the program is necessary to assure continuing conformance with the governing federal authority so as to avoid withdrawal of federal approval for the program and to avoid federal recoupment for inappropriate expenditures of federal monies. This proposed rule adopts and incorporates by reference, the 1915(i) HCBS State Plan Program for Youth with Serious Emotional Disturbance Policy Manual Dated October 1, 2012. The 1915(i) HCBS State Plan program manual defines the population eligible to be served, including: the needs-based criteria; enrollment and disenrollment stipulations; the provision of services available under the program; plans of care; plan management processes and responsibilities; program cost; provider requirements; and reimbursement.

New Rule II

Proposed New Rule II clarifies reimbursement for 1915(i) HCBS State Plan Program services. This rule directs person(s) to the correct location for the rates of reimbursement. This rule is necessary to assure that services provided through the program are appropriately and economically purchased and that there is a common scheme of reimbursement that assures the fairness of reimbursement among providers. This proposed rule adopts and incorporates by reference, the 1915(i) HCBS State Plan Program for Youth with Serious Emotional Disturbance Policy Manual Dated October 1, 2012. The 1915(i) HCBS State Plan program manual defines the population eligible to be served, including: the needs-based criteria; enrollment and disenrollment stipulations; the provision of services available under the program; plans of care; plan management processes and responsibilities; program cost; provider requirements; and reimbursement.

New Rule III

Proposed New Rule III provides youth and their parents or legal representatives the right to aggrieve any adverse determination through a fair hearing request. This proposed rule is necessary to assure conformity with due process requirements established in laws applicable to the program.

Fiscal Impact

It is estimated for the first two years of the 1915(i) Home and Community-based Services State Plan Program for Youth with Serious Emotional Disturbance the total cost will be $323,277 with a state share of $111,108 ($16,913 in general fund and $94,195 in school match).

It is anticipated for the first year of implementation, by October 1, 2013, 56 youth will be enrolled into the new 1915(i) Home and Community-based Services State Plan Program for Youth with Serious Emotional Disturbance.

5. The department intends the proposed adoption of these new rules to be applied effective October 1, 2012.

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: Kenneth Mordan, 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., August 23, 2012.

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, do not apply.

/s/ Cary B. Lund /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State July 16, 2012.