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

)

NOTICE OF ADOPTION

TO: All Concerned Persons

1. On July 26, 2012, the Department of Public Health and Human Services published MAR Notice No. 37-595 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1509 of the 2012 Montana Administrative Register, Issue Number 14. On September 6, 2012, the Department of Public Health and Human Services published an Amended Notice of Public Hearing on Proposed Adoption at page 1733 of the 2012 Montana Administrative Register, Issue Number 17. The purpose of the amended notice was to inform the public that due to comments to this rule the department clarified reimbursement rates and wraparound facilitation services and extended the comment period.

2. The department has adopted New Rule III (37.87.1315) as proposed.

3. The department has adopted the following rules as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined.

RULE I (37.87.1313) 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) through (3) remain as proposed.

(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~~ January 1, 2013. 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 (37.87.1314) 1915(i) HOME AND COMMUNITY-BASED SERVICES (HCBS) STATE PLAN PROGRAM FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE: REIMBURSEMENT (1) remains as proposed.

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

(a) remains as proposed.

(b) the fees stated in the 1915(i) HCBS State Plan Program for Youth with Serious Emotional Disturbance Policy Manual dated ~~October 1, 2012~~ January 1, 2013 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~~ January 1, 2013 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) and (4) remain as proposed.

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

4. 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: Several commenters expressed concern about the proposed unit and rate for wraparound facilitation (proposed "encounter" unit of 50 minutes minimum with only one unit allowable per day and proposed encounter rate that allows billing only for face-to-face time working with the youth and family). The commenters noted this unit does not allow for the time flexibility facilitators need to do their work and does not allow billing for non-face-to-face care coordination and paperwork which are required when providing wraparound facilitation.

RESPONSE #1: The department has changed the unit of service for wraparound facilitation back to a 15-minute unit and will allow some specific non-face-to-face care coordination activities to be billable. The policy manual has been updated to reflect these changes and to include a table of billable activities. Paperwork activities will still not be billable as paperwork time was included in calculation of the unit rate.

COMMENT #2: A comment was received suggesting a rate of $18.75 per 15-minute unit for wraparound facilitation, to incentivize providers to choose it over case management and home support services (formally therapeutic family care) and to account for the supervision and coaching required.

RESPONSE #2: The rate setting process and analysis recently completed does not support a higher rate for wraparound facilitation than the $15.00 per 15-minute unit, which will become effective January 1, 2013. Supervision and coaching were considered when setting the rate.

COMMENT #3: Two commenters asked why outdoor behavioral programs/wilderness programs are not included among qualified providers for the crisis intervention service. One of the commenters stated that a particular short wilderness program fits the intent of the service.

RESPONSE #3: The wilderness program referred to above has a model of scheduled wilderness trips, most of those being much greater than 14 days duration. The crisis intervention service has a maximum of 14 days, with the provider working intensively with the youth and family during that time. Also, given that the wilderness trips are planned for specific times and crisis isn't planned, the wilderness program model does not appear to be a good fit for the crisis intervention service. The department is open to further discussion about potential options.

COMMENT #4: Several commenters noted concern about the setting of an encounter rate for in-home therapy with the encounter unit being a minimum of 50 minutes face-to-face care, given that youth and families referred for these services may not be able to sit through a session of that length. Commenters requested a return to a 15-minute unit and rate to allow needed flexibility for providers of this service for this population and suggested that some non-face-to-face time be billable as well, such as telephone support in crises.

RESPONSE #4: The department considered work-related components (including non-face-to-face components) in the rate as part of the rate-setting process. The unit will remain an encounter with a minimum of 50 minutes with the assumption that in-home therapy is a scheduled service (for the therapy itself), which is the practice model for licensed mental health professionals is providing mental health therapy. The in-home therapist may bill one encounter per day unless they attend a wraparound team meeting for the same youth on the same day, in which case they can bill for both. The billing code will be the same for the encounter and the wraparound team meeting, but an informational modifier will be added to the code to denote the team meeting. The department did not include a separate unit and rate of reimbursement for an in-home therapist who may respond to a crisis. The department remains open to further evaluation and consideration of the type of unit for the in-home therapy service.

COMMENT #5: Several commenters noted concern about the requirement that in-home therapists provide crisis response during and after work hours and suggested that a way be provided to bill for that requirement.

RESPONSE #5: If a provider responds to a crisis in person and spends 50 or more minutes working with the youth or family, the provider may bill for an encounter if they have not provided therapy for the youth/family on the same day. Non-face-to-face crisis responses are not billable. As noted above, non-face-to-face activities were considered in the setting of the rate for this service. Family teams generally have crisis plans that include the therapist as one of a number of potential responders, not the only one. The department remains open to discussion and consideration about more clearly defining this expectation.

COMMENT #6: Several commenters suggested that the department reconsider the requirement that in-home therapists be individually licensed as that limits the pool of providers and the capacity of mental health centers to serve those youth. Commenters noted that there may not be enough licensed therapists in rural communities who would want to do in-home therapy. Commenters proposed that in-training therapists be allowed to provide in-home therapy.

RESPONSE #6: The department will maintain the requirement that in-home therapists be individually licensed given the complexity and intensity of the needs of the target population. If access to in-home therapy becomes an issue in some geographical areas, the department will reconsider this suggestion.

COMMENT #7: One commenter noted that requiring therapy be provided in the home is not always clinically appropriate and the family may not want it to occur in their home.

RESPONSE #7: The department agrees and has amended the language in the policy manual to state that it may be in the residence of the youth or in community settings chosen by the family at time convenient for the youth and family.

COMMENT #8: A commenter asked whether the requirement that the in-home therapist develop and write an individual treatment plan meant that it should be a separate plan from the wraparound plan and if so stated that it defeats the purpose of having one plan for the family based on need. The commenter suggested that perhaps instead the therapist could stipulate specific interventions in the wraparound plan relating to the therapy.

RESPONSE #8: The individual treatment plan for therapy is developed by the therapist with the youth and family based on their needs and is directly integrated with the wraparound plan. Specific interventions relating to therapy can be included in the wraparound plan.

COMMENT #9: A commenter asked who the UR contractor and regional care coordinator is and what will their assessments look like.

RESPONSE #9: The UR contractor is Magellan. The regional care coordinator (RCC) is the current RCC for Magellan. Their assessments will be a face-to-face assessment with the youth and family as part of the eligibility determination for 1915(i) services. This independent face-to-face assessment is a Center for Medicare and Medicaid Services (CMS) requirement. This assessment begins to determine the strengths, needs, family culture, and services the youth might need within the 1915(i).

COMMENT #10: A commenter asked for clarification regarding the statement that youth enrolled are not eligible for other types of case management services and asked if that includes developmental disabilities (DD) case management.

RESPONSE #10: Yes, it does include all other types including DD case management.

COMMENT #11: One commenter asked if education and support services should include education around empowerment, self-advocacy, and assessing resources, not just diagnosis and meds.

RESPONSE #11: This service is specific to helping parents and other caregivers understand the youth with a serious emotional disturbance and learn their own ways of responding to and providing the best care to assist the youth. Peer to peer support services generally focus more on empowerment, self-advocacy, and assessing resources.

COMMENT #12: A commenter noted the policy manual states the family support specialist will be under the guidance of the in-home therapist, but the in-home therapist is not a required part of the program. The commenter asked if there is no in-home therapist, whose guidance is the family support specialist under?

RESPONSE #12: If there is a therapist providing services though regular Medicaid state plan, the family support specialist (FSS) would follow the guidance of that therapist. If there is no therapist, the FSS will work with the family and youth on items identified in the service plan. The agency providing FSS service provides the clinical supervision for the FSS whether or not there is a therapist on the wraparound team.

COMMENT #13: A commenter asked about the freedom of choice of all other waiver and state plan services and asked if any other waiver services, including the DD waivers, can be provided in conjunction with the 1915(i).

RESPONSE #13: Families have a choice of which state plan services and waiver to enroll in if the youth is eligible. Youth cannot be enrolled in the 1915(i) and a Medicaid home and community-based waiver concurrently.

COMMENT #14: A commenter asked if specialized evaluation services include speech, occupational therapy, or other evaluation services that are specialized and relevant to care and not typically covered under Medicaid.

RESPONSE #14: Specialized evaluation services are targeted to mental health and behavioral issues. If a need for other evaluation were identified by the family and team, strategies for addressing and paying for those resources will be included in the service plan. Medicaid state plan or services available through the schools would be accessed if possible.

COMMENT #15: One commenter asked if crisis intervention services could be provided in a setting besides shelter or group home, such as a foster home or respite home with crisis staffing.

RESPONSE #15: The department will only allow this service in shelter or group homes given the expectation that the provider will have staff working intensively with the youth and family in the provider's facility and in the home. The crisis intervention services will include de-escalating the crisis, identifying what led to the crisis and how to prevent a reoccurrence, provide tools and practice skills to help head off similar crises in the future. It will also include coordination with the wraparound team so that gains are maintained after the service has been provided.

COMMENT #16: A commenter stated that ten days is an insufficient time to procure a facilitator, compile the team, and have a care plan meeting and will result in a poor initial plan. The commenter suggests that the strengths, needs and cultural discovery (SNCD) be done within ten days and the service plan be completed within 21 days, consistent with the requirements for other Medicaid services.

RESPONSE #16: Since the department received this comment, the policy manual has been updated to reflect the changes below. CMS advised the department that to comply with conflict of interest requirements under the 1915(i), the state must demonstrate in its state plan application that there is an independent evaluation of eligibility, an independent assessment and an individual service plan conducted by an entity that does not have a financial interest in provider of home and community-based services. The brief initial service plan will be developed by the regional care coordinator rather than the facilitator and the timeframes referenced in the comment no longer apply.

COMMENT #17: A commenter asked for more information on the prior authorizations for community-based psychiatric rehabilitation and support (CBPR&S) and asked if it is required for a youth to be enrolled in CSCT and receiving CBPR&S during those same times as a supplement.

RESPONSE #17: For a youth in the 1915(i), when the youth is in day treatment, prior authorization is required for a youth to received CBPR&S during day treatment program hours. The prior authorization request is sent to the children's mental health regional manager for approval. The form is located on the Magellan web site or can be requested from the regional manager. Regarding concurrent CBPR&S and CSCT, regular state plan Medicaid rules apply.

COMMENT #18: One commenter stated that therapeutic foster care is not mentioned and asked how it is going to blend with the 1915(i).

RESPONSE #18: Therapeutic foster care will not be allowed concurrent with the 1915(i) if the family chooses to receive therapeutic foster care. Due to recent rule changes for therapeutic foster care and home support services, the core services required in those programs are duplicative of several services in the 1915(i). Families can choose which program they prefer if the youth is eligible.

COMMENT #19: Several commenters requested revision to the requirement for a youth peer-to-peer specialist, which as written, indicate that youth peer-to-peer specialists must have parented a youth with SED.

RESPONSE #19: The department agrees with the commenter and the language of the manual was clarified to indicate that having parented a youth with SED while the youth was receiving mental health services is a requirement only for the peer-to-peer specialist who is a parent or legal representative.

COMMENT #20: A comment was received asking for the rationale behind the new peer-to-peer rate and requesting consideration of increasing the peer-to-peer rate to be closer to the family support specialist rate.

RESPONSE #20: The department's rate setting process and analysis does not support a rate higher than the proposed rate. The department is willing to ask providers to participate in time studies for further analysis of rates for services when there are provider concerns about adequacy of the rates.

COMMENT #21: A commenter requested that the requirement for peer-to-peer specialist services remove the criterion that the peer-to-peer specialist be an adult who also received mental health services as a youth.

RESPONSE #21: The policy manuals have been amended to reflect that a person providing peer-to-peer services to a parent/legal representative does not have to have received mental health services as a youth.

COMMENT #22: A commenter asked for clarification whether a youth can receive 1915(i) services if the youth has been placed in a shelter for reasons other than placement as a crisis intervention service. The commenter suggested the department consider allowing the family to engage in wraparound services as a way of addressing the problems that are preventing a return of the youth to the family home.

RESPONSE #22: The wraparound team can continue to work with the family and the youth if the shelter care provider is in agreement, if the youth is temporarily out of the home in shelter care. The main and usual residence of the youth must be in home in order for the youth to remain eligible for the 1915(i).

COMMENT #23: A commenter requested clarification of the requirement that the family support specialist (FSS) works under the guidance of the in-home therapist, given that there is no guidance about who supervises the FSS. The commenter also requests consideration of allowing the provider agency that employs the FSS to provide a licensed therapist to provide the guidance, rather than obligating the in-home therapist to do it.

RESPONSE #23: The provider agency is required to provide clinical supervision for the FSS. It is assumed that the provider agency supervises the FSS. The department welcomes further discussion about this matter. At this time, the requirement will remain the same given the need for close alignment of the work of the in-home therapist and the FSS.

COMMENT #24: A commenter recommended that the department strike the requirement that respite providers be employees of an agency given that it is cost prohibitive for agencies to employ respite providers.

RESPONSE #24: The department will keep the requirement that respite providers be employed by an agency at this time. Provider agencies may offset administrative costs by paying respite providers a portion of the billed amount for the service. The department welcomes further discussion on this issue, as access to respite is a significant need of the youth and families, as noted by the commenter.

COMMENT #25: A commenter requested guidelines for agencies to follow to determine whether respite providers are physically and mentally qualified.

RESPONSE #25: The department does not have guidelines for this determination. The department welcomes provider input and discussion on this issue.

COMMENT #26: A commenter asked for details expected to be in the contracts between service provider and family when crisis intervention services are provided.

RESPONSE #26: The department will work with providers of this service to develop a template for the contracts that will include specific language regarding the agreement with the family that the plan is for the child to return home noting the anticipated return date. Details of each contract will be worked out between the provider and the family.

COMMENT #27: One commenter requested the department consider allowing the in-home therapist and wraparound facilitator to work for the same agency, at family's request, to allow for family voice and choice. The commenter noted this exclusion may restrict access of rural families to in-home therapy where there are few providers.

RESPONSE #27: Centers for Medicare and Medicaid Services (CMS) requires strong safeguards against conflict of interest in service provision. The safeguards must be written into the application for home and community-based services. The department must keep the current language.

COMMENT #28: Several commenters noted that the department has been advised the fees for services are inadequate, the fees structure will not attract new providers, and current providers will not be able to continue to afford to provide services. The commenters request that the department consider seeking input from providers about the cost to provide the services and areas that the fee structure can be adjusted to support adequate rates for certain services.

RESPONSE #28: The department will continue to seek and welcome input from providers about the cost to provide services and the costs that could be adjusted to support rate changes. The department did seek provider input during the recent rate-setting process and will continue to welcome input from providers on the cost of providing these services.

COMMENT #29: One commenter asked why time wasn't considered in a rate for travel and asking the department to consider removing the restriction of "25 miles or greater" from the "geographical factor" and to consider increasing the rate for the factor to help defray cost of travel time away from the office or to consider adding a fee to cover travel time.

RESPONSE #29: The department will keep the current rate and requirements for the geographical factor the same at this time. Travel time was considered in the setting of the rates for each service. The geographical factor is designed to assist providers willing to serve youth and families who live more than 25 miles from the provider's usual business location. The department welcomes additional input and discussion on this matter.

COMMENT #30: A commenter questioned the continuation of the single approach of high fidelity wraparound services as the program expands to all qualified Montanans, given that there are also other credible evidence-based approaches that would increase families' ability to have choice. The commenter noted this could be done within the committed approach of wrapping services around a distressed family.

RESPONSE #30: The department appreciates the suggestion. Families currently can choose other service options that wrap services around them. The department will continue to require high fidelity wraparound facilitation for care coordination for 1915(i) services as when practiced with fidelity it is very effective. The department welcomes more discussion on this topic.

COMMENT #31: One commenter stated that the department seems to be engaging the UR contractor to do an assessment during the eligibility determination process that children's mental health bureau regional program manager could do with the additional costs and delays of the contractor.

RESPONSE #31: The department has selected the UR contractor to conduct the face-to-face needs assessment as an entity without conflict of interest, which is a federal requirement for the 1915(i). Additionally, the UR contractor may be familiar with the youth and the circumstances of the youth as there may be history of service authorizations in the UR contractor's system.

COMMENT #32: One commenter suggested that language be changed in the eligibility requirements for the 1915(i) services to remove the section requiring that a youth be receiving specific outpatient mental health services in the community and not making progress and replacing that language with youth at risk of psychiatric residential treatment facility (PRTF) placement.

RESPONSE #32: The department has been advised by CMS to make the initial needs-based eligibility criteria and re-evaluation criteria the same. The needs-based criteria must be less stringent than level of care criteria for PRTF. The department is approaching the implementation of this new program conservatively in order to stay within budget. The needs-based eligibility requirements are one means of regulating the number and severity of youth enrolling in the program. The department has the ability to request amendment to the 1915(i) based on the needs of the youth and the cost of the program in relation to projected budget.

COMMENT #33: A commenter asked where co-occurring services are or will be provided once the needs of the youth for this service is identified.

RESPONSE #33: The department has engaged with Dr. Richard Shepler and Patrick Kanary from Case Western Reserve University to provide training in integrated co-occurring treatment services to interested providers. In addition, through a substance abuse and mental health administration (SAMHSA) grant to increase capacity for co-occurring treatment for adolescents, two providers will be selected via a request for proposal process to be trained in integrated co-occurring treatment and to provide it in their service area. Co-occurring services are expected to be provided in the family home or a community setting convenient for the youth and family.

COMMENT #34: A commenter suggested that the rate for the FSS should be increased to $17.50 rather than the proposed rate of $14.00 per 15 minutes.

RESPONSE #34: The recent rate-setting process and analysis does not support a rate higher than the proposed rate. The department is willing to ask providers to participate in further analysis or time studies for services where there are provider concerns about adequacy of the rates.

COMMENT #35: One commenter expressed concern that all payment allowed for services requires face-to-face contact yet providers are serving high risk families over great distances and during an electronic age. The commenter suggests consideration of a wraparound model which could be attached to an intensive family service in place which is a bundled rate.

RESPONSE #35: The department is not considering a bundled rate for the 1915(i). Services are outlined and proposed to be reimbursed as a fee for service. Paid claims information provides the department data about the actual services provided. The department welcomes continued discussion about how HCBS services can best be provided.

COMMENT #36: One commenter noted the details of the requirements for serious occurrence reports are unclear and suggested that they simply address what happened, were there witnesses, what immediate action was taken, and are there any changes in provider operation that would reduce risk of this happening again.

RESPONSE #36: The department has required the completion of serious occurrence reports since the implementation of the PRTF Waiver five years ago. The department will develop a training tool for the CMHB regional managers to use to inform providers about the completion of the serious occurrence report (SOR). The SOR is similar to an incident report. It is to be completed by the person who witnessed or had knowledge of the incident, describes what occurred, and notes whether Child Protective Services or law enforcement was involved. The SOR is submitted to the CMHB regional manager, who reviews and then completes the bottom part of the form. The provider agency should also receive a copy. Investigation depends on the nature of the incident. SORs are reviewed quarterly by the quality review committee to identify trends and discuss changes in practice that may be needed.

COMMENT #37: One commenter noted that the requirement that a youth enrolling in 1915(i) services must have been admitted to a PRTF defeats the purpose of avoiding placing youth in PRTFs. Commenter also notes that additional eligibility requirements that a youth must be receiving specific outpatient services and not be making progress will exclude access to the program for youth who live in areas where those specific outpatient services are not available. Commenter also asks how lack of progress will be objectively determined.

RESPONSE #37: Previous admission to a PRTF is one of several possible factors in eligibility determination. It is not required that the youth has had a previous PRTF admission. The department is approaching the implementation of this new program conservatively in order to stay within budget. The eligibility criterion is one means of regulating the number and severity of youth enrolling in the program. Access to the program for all eligible youth who need it statewide is very important. If the department finds that the eligibility requirements are a significant impediment to access in some areas, the department can request to amend the eligibility requirements. Lack of progress in the outpatient services will be assessed by the UR contractor based on referral information and accompanying reports from current service providers.

COMMENT #38: Several commenters stated that in appendix A of the policy manuals there is language indicating that the therapist and other providers can only bill for face-to-face time with the youth present. The language is "Total time billed using one or multiple procedure codes may not exceed the total actual time spent with the Medicaid youth."

RESPONSE #38: It is the department's intent that the services are to be provided related to the youth's needs and the family's needs in support of the youth. The youth will not be present every time a service is provided. Family therapy can occur with parents or legal representatives without the youth present.

COMMENT #39: One commenter stated that a grievance procedure and a fair hearing process are allowed for in the Rules for the 1915(i), but not described. Commenter asks what the grievance process is as well as the resolution process for families. Commenter suggests that the grievance process and fair hearing process be made available in writing to families before or shortly after enrollment.

RESPONSE #39: The department appreciates the suggestion that written information on these processes be provided to families. Additionally the department will make it available on the CMHB web site so that providers will have access to the information as well.

COMMENT #40: A commenter asked for explanation of how much money in total is available for the 1915(i) and how this money is distributed among 56 youth over a period of two years. The commenter referred to figures in the fiscal impact statement regarding projected cost.

RESPONSE #40: The department will provide the services to eligible youth statewide. The projected costs and number of youth served figures were based on paid claims and usage of services in the PRTF waiver and in state plan Medicaid services often provided to the target population. The department cannot provide a figure for how much money is available. Costs for each youth are directly related to the service plan for that youth.

COMMENT #41: A commenter asked where the money comes from for the 1915(i), why the billing process changed, and asked why billing issues with regard to an atypical NPI number have not been resolved yet.

RESPONSE #41: The funding for the 1915(i) is from federal Medicaid plus state general fund match. A rate-setting process was required for the 1915(i). This resulted in some unit procedure and rate changes. The department continues to work with Xerox (formerly ACS) to address persistent billing difficulties for atypical providers. Currently Xerox is working with the department on plans for an updated payment system.

COMMENT #42: A commenter asks about the process to report abuses of the system or inappropriate activities by service providers, including the hierarchy of the grievance process. Commenter also asks about what punitive measures will ensure a provider will not continue poor practice and is given opportunities to align practice with high fidelity wraparound.

RESPONSE #42: Abuses of the system (such as financial abuses) can be reported to the audit and compliance bureau of the quality assurance division of the department. These can also be reported to a supervisor at children's mental health bureau (CMHB). Inappropriate activities by service providers should be addressed directly with that provider, then the provider's supervisor, then with the regional manager, then the CMHB supervisor, finally with the CMHB bureau chief if there has been no resolution.

COMMENT #43: A commenter expressed concern about the nonmedical transportation service because families are supposed to be focused on natural supports and an agency is required to provide the service but in some cases cannot afford to provide it. The commenter requests an example when this service would apply.

RESPONSE #43: Please refer to the description of the service in the policy manual. This service is used when there is not another resource to transport a youth to nonmedical activities included in the service plan.

COMMENT #44: A commenter noted a few concerns about the service of respite care, including the suggestion that providers could bill for training and developing specialized skills for respite providers and not be required to employ respite providers.

RESPONSE #44: The department appreciates the suggestion but will continue to require that respite providers be employed by an agency that assures they are qualified to provide care.

COMMENT #45: A commenter asked for information about outcomes from the psychiatric residential treatment facility waiver. The commenter also inquired about the paradox of requiring families to participate in the PRTF waiver and now the 1915(i), with respect to the issue of family choice. The commenter wanted to know whether CMHB adequately researched statewide the service models already available before implementing the PRTF waiver and what CMHB's stance is in regard to models of service outside the current PRTF waiver being able to meet the needs of and appropriately serve youth currently enrolled in the PRTF waiver, if the proposed rule changes do not go through.

RESPONSE #45: Families have free choice of providers and services. There is no requirement to participate in 1915(i) services. The department considers the additional items in the comment to be outside of the scope of the proposed rule changes.

The Centers for Medicare and Medicaid requested the following items be changed in the department's application for the 1915(i) in order for it to be approved. In response, the department made the changes to the state plan application (SPA) and the 1915(i) HCBS State Plan Program for Youth with Serious Emotional Disturbance Policy Manual dated January 1, 2013 incorporated by reference in New 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 as follows:

(1) In the needs-based eligibility criteria, items f and g, needed to be removed as these do not demonstrate criteria that would be less stringent than institutional criteria. These items were:

(f) the youth is/was enrolled in the 1915(c) HCBS PRTF Waiver; and

(g) the youth meets PRTF level of care admission criteria but the youth and family choose to remain in the community and receive 1915(i) HCBS state plan services; the youth is at risk for PRTF placement.

(2) The minimum criteria for evaluation and re-evaluation must be the same and the state needed to remove the existing re-evaluation criteria from the application and clarify that the criteria are the same for evaluation and for re-evaluation.

(3) The service customized goods and services could not be offered by the state unless it offers self-direction through the budget authority. CMS indicated the state could propose a different service that includes the specific items or categories of items that could be covered and include that the service not be open-ended.

(4) The state must define and ensure that respite services:

(a) may only be used on a temporary and intermittent basis;

(b) that the service be defined as for the needs of the youth rather than for the needs of the caregiver's;

(d) that room and board are not included in respite services.

(5) The state needed to describe how crisis intervention service;

(a) differs from respite services;

(b) will not be used or billed at the same time as respite services;

(d) ensure that the service is only used on a temporary and intermittent basis and;

(e) indicate how many consecutive stays are allowed.

(6) The state was directed to clarify conflict of interest safeguards regarding wraparound facilitators who are employed by agencies that provide other HCBS services and to clarify that the family, not the provider, should always be the one choosing providers.

(7) In order to comply with conflict of interest requirements under 1915(i), the state needed to demonstrate in its SPA that there is an independent evaluation of eligibility, an independent assessment and an individual service plan conducted by an entity that does not have a financial interest in providers of HCBS.

(8) The state was directed to remove specific language in the SPA under Specialized Evaluation Services regarding evaluation and associated costs of youth under consideration for enrollment in the 1915(i) HCBS state plan program prior to the youth being referred to the UR organization for the needs-based criteria review.

(9) The state needed to remove the following items from the SPA's target group criteria as the items are captured elsewhere in the SPA and do not fit within the permissible parameters for target group criteria (age, disability, diagnosis and/or Medicaid eligibility):

(a) Families/caregivers willing to participate in the high fidelity wraparound process;

(b) Living in the community with family, licensed foster home or legal representative;

(d) Have needs that may be adequately met by 1915(i) HCBS state plan services.

(10) The state needed to confirm the proposed effective date of the SPA as it was not approved for the original effective date of October 1, 2012.

5. The department intends to apply these rules retroactively to January 1, 2013. A retroactive application of the proposed rules does not result in a negative impact to any affected party.

/s/ Cary B. Lund /s/ Richard H. Opper

Rule Reviewer Richard H. Opper, Director

Public Health and Human Services

Certified to the Secretary of State January 22, 2013.