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 amendment of ARM 37.87.1303, 37.87.1333, and 37.87.1335 and the repeal of 37.87.1305, 37.87.1306, 37.87.1307, 37.87.1321, 37.87.1325, and 37.87.1331 pertaining to home and community-based services (HCBS) for youth with serious emotional disturbance

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

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 amendment and repeal 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 13, 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 amended provide as follows, new matter underlined, deleted matter interlined:

37.87.1303 HOME AND COMMUNITY-BASED 1915(c) SERVICES BRIDGE WAIVER FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: FEDERAL AUTHORIZATION AND AUTHORITY OF STATE TO ADMINISTER PROGRAM

(1) In 2007, Tthe U.S. Department of Health and Human Services (HHS) ~~has~~ provided a grant to the Montana Department of Public Health and Human Services (department), under Section 6063 of the Deficit Reduction Act of 2005, ~~that allows Montana to submit to the Centers for Medicare and Medicaid Services (CMS) a proposal to establish a program of~~ ~~Medicaid funded home and community-based services for youth who have serious emotional disturbance. That proposal has been presented to and approved by CMS~~ to foster the establishment of a home and community-based (HCBS) Psychiatric Residential Treatment Facility (PRTF) Demonstration waiver program (HCBS PRTF waiver), approved by the Centers of Medicare and Medicaid Services (CMS). The purpose of ~~this program is~~ the HCBS PRTF waiver was to avoid ~~institutionalizing~~ admitting youth with serious emotional disturbance in into psychiatric residential treatment facilities. Institutionalization is avoided through the provision of mental health services and other services that support and treat those youth while residing with their families and receiving mental health treatment in the community. The HCBS PRTF waiver authority ends September 30, 2012.

(2) The Centers for Medicare and Medicaid Services (CMS) is allowing Montana the opportunity to continue to provide 1915(c) HCBS waiver services authorized by section 6063(b)(2) of the Deficit Reduction Act of 2005, only with respect to youth already enrolled in the existing HCBS PRTF waiver program on the termination date of that program and only for the duration of their current eligibility as established under these rules. These youth may continue to receive services through the 1915(c) HCBS bridge waiver, in accordance with these rules and the agreement with CMS, for the continued delivery of home and community services.

~~(2)~~(3) In accordance with the state and federal statutes and rules generally governing the provision of Medicaid-funded home and community-based services and ~~any~~ 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 fiscal limitations of the funding appropriated and available 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 total number of service opportunities that may be made available;

(i) Only those youth who were already enrolled in the HCBS PRTF waiver for youth with serious emotional disturbance on September 30, 2012 are eligible to be enrolled in the HCBS bridge waiver for youth with serious emotional disturbance.

~~(e) the total number of service opportunities that may be made available by category of eligibility or by geographical area;~~

~~(f)~~(e) individual eligibility; and

~~(g)~~(f) geographic service areas.

(3) A youth's enrollment in the program and the provision of services to the youth through the program are at the discretion of the department. There is no legal entitlement for a youth to enroll in the program or to receive any or all the services available through the program.

(4) The department has received federal approval to waive statewide coverage in the provision of program services. Program services may only be delivered in the following service areas for which federal approval of coverage has been received:

~~(a) Yellowstone County core site, implementation date of October 1, 2007.~~

~~(i) Service areas of Carbon, Stillwater, Musselshell, and Big Horn Counties added to the Yellowstone County core site, implementation date of October 1, 2010.~~

~~(b) Missoula and Ravalli Counties core site, implementation date of August 1, 2009.~~

~~(c) Cascade County core site, implementation date of October 1, 2010.~~

~~(d) Lewis and Clark County core site, with service areas of Jefferson and Broadwater Counties, implementation date of October 1, 2010.~~

~~(e) Flathead County core site, implementation date of July 1, 2011.~~

(5) In the service areas specified in (4) of this rule, no more than a total of 100 youth per waiver year for all core sites may be enrolled at any given time. A waiver year begins on October 1st and ends on September 30th.

(a) When a waiting list is established in any of the core sites, the protocol defined in the Psychiatric Residential Treatment Facility Home and Community Based Waiver for Youth with Serious Emotional Disturbance Provider Policy Manual dated October 2011 will be used by the department to reallocate unused service opportunities.

(6) The total cost of expenditures annually for services delivered through the program plus the total cost of Medicaid state plan costs for program participants annually may not exceed the total annual projected Medicaid cost for the participants if they were receiving treatment in a residential psychiatric treatment facility.

(4) The 1915(c) home and community-based bridge waiver services for youth with serious emotional disturbance must be delivered in accordance with the requirements and limitations of the Home and Community-Based Services Bridge Waiver 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: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

37.87.1333 HOME AND COMMUNITY-BASED 1915(c) SERVICES BRIDGE WAIVER FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: REIMBURSEMENT (1) remains the same.

(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 Appendix A with an effective date of October 1, ~~2011~~ 2012 ~~and December 1, 2011~~ contained in the program's ~~Psychiatric Residential Treatment Facility~~ Home and Community-Based Services Bridge Waiver for Youth with Serious Emotional Disturbance ~~Provider~~ Policy Manual dated October 1, ~~2011~~ 2012. The department adopts and incorporates by reference the ~~provider~~ policy manual which may be obtained through the Department of Public Health and Human Services, Developmental Services Division, Children's Mental Health Bureau, 111 North Sanders, P.O. Box 4210, Helena, MT 59604-4210 or at http://www.dphhs.mt.gov/mentalhealth/children/.

(3) and (4) remain the same.

(5) A geographical factor of $.50 per mile may be available to a family support specialist, wraparound facilitator, caregiver peer-to-peer specialist, or a home-based therapist when the following circumstances are met:

~~(a) the provider is traveling out of the location where the provider has its regular office, excluding satellite offices;~~

~~(b) the provider is traveling a distance greater than 35 miles one way from the office to the youth's home;~~

~~(c) the geographical factor will include the initial 35 miles and return trip;~~

~~(d) the geographical factor is prior authorized by the plan manager; and~~

~~(e) the geographical factor and those providers authorized to receive it are included in the youth's plan of care.~~

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

37.87.1335 HOME AND COMMUNITY-BASED 1915(c) SERVICES BRIDGE WAIVER FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: NOTICE AND FAIR HEARING (1) and (2) remain the same.

(3) A youth aggrieved by any adverse determination may request a fair hearing to be conducted as provided for in ARM ~~37.5.105~~ 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, ~~and~~ 37.5.337, 37.5.503, and 37.5.505.

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

4. The department proposes to repeal the following rules:

37.87.1305 HOME AND COMMUNITY-BASED SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: ELIGIBILITY FOR PROGRAM, is found on page 37-21389 of the Administrative Rules of Montana.

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

37.87.1306 HOME AND COMMUNITY-BASED SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: SELECTION FOR PLACEMENT, is found on page 37-21390 of the Administrative Rules of Montana.

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

37.87.1307 HOME AND COMMUNITY-BASED SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: LOSS OF A SERVICE AND DISENROLLMENT, is found on page 37-21391 of the Administrative Rules of Montana.

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

37.87.1321 HOME AND COMMUNITY-BASED SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: THE PROVISION OF SERVICES, is found at page 37-21401 of the Administrative Rules of Montana.

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

37.87.1325 HOME AND COMMUNITY-BASED SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: COST OF PLAN OF CARE, is found at page 37-21405 of the Administrative Rules of Montana.

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

37.87.1331 HOME AND COMMUNITY-BASED SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: PROVIDER REQUIREMENTS, is found at page 37-21409 of the Administrative Rules of Montana.

AUTH: 53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-6-402, MCA

5. STATEMENT OF REASONABLE NECESSITY

The Department of Public Health and Human Services (department) is proposing rule amendments to ARM 37.87.1303, 37.87.1333, and 37.87.1335 and to repeal ARM 37.87.1305, 37.87.1306, 37.87.1307, 37.87.1321, 37.87.1325, and 37.87.1331. The proposed changes to these rules are necessary to reflect the termination date of September 30, 2012 for the HCBS PRTF waiver authority. It is also necessary to reflect the federal authority for the opportunity to provide 1915(c) HCBS bridge waiver services as authorized by Section 6063, (b)(2) of the Deficit Reduction Act of 2005 in accordance with Section 1915(c) of the Social Security Act 42 U.S.C. 1396n(c).

There are limited alternatives the department has available. The department chose to apply for the new 1915(c) HCBS bridge waiver under the authority listed above to provide the continuation of home and community-based services for the youth enrolled on the last day of the HCBS PRTF waiver. CMS is allowing Montana the opportunity to continue to provide 1915(c) HCBS bridge waiver services only with respect to youth already enrolled in the waiver on the termination date. Montana is required to submit a new 1915(c) HCBS waiver application with an effective date of October 1, 2012. This new waiver will be called the "Bridge Waiver" for youth with serious emotional disturbance. The alternative would have been not to apply for the 1915(c) HCBS bridge waiver, which would be detrimental to those youth who have the opportunity to enroll into the 1915(c) HCBS bridge waiver.

The department will request federal approval to waiver comparability. The services that were included in the HCBS PRTF waiver will be the services requested in the new bridge waiver.

The department is proposing to repeal ARM 37.87.1305, 37.87.1306, 37.87.1307, 37.87.1321, 37.87.1325, and 37.87.1331. Repealing these rules is necessary to reflect the termination date of September 30, 2012 for the HCBS PRTF waiver authority.

ARM 37.87.1333

The department is proposing to amend this rule to incorporate by reference the Home and Community-based Services Bridge Waiver Policy Manual to October 1, 2012. It is necessary to amend this rule to remove the reference to the Psychiatric Residential Treatment Facility Home and Community-Based Services Waiver for Youth with Serious Emotional Disturbance Provider Policy Manual dated October 1, 2011 and replace the incorporation with the Home and Community-based Services Bridge Waiver Policy Manual to October 1, 2012.

Fiscal Impact

It is anticipated for Waiver Year One (10/1/12 – 9/30/13) the federal cost will be $48,000 and the state cost will be $25,000 for a total cost of $73,000. It is anticipated for Waiver Year Two (10/1/13 – 9/30/14) the federal cost will be $21,000 and the state cost will be $11,000 for a total cost of $33,000.

It is anticipated 85 youth will be enrolled into the Bridge Waiver on October 1, 2012.

Per federal regulation, only those youth who were already enrolled in the HCBS PRTF waiver for youth with serious emotional disturbance on September 30, 2012 are eligible to be enrolled in the HCBS bridge waiver.

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

7. 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.

8. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

9. 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.

10. 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.

11. 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.