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| Montana Administrative Register Notice 37-625 | No. 19 10/17/2013 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On February 28, 2013, the Department of Public Health and Human Services published MAR Notice No. 37-625 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 249 of the 2013 Montana Administrative Register, Issue Number 4. On July 11, 2013, the Department of Public Health and Human Services published an Amended Notice of Proposed Amendment and Repeal at page 1173 of the 2013 Montana Administrative Register, Issue Number 13. The purpose of the amended notice was to propose additional amendments based on public comment. On August 22, 2013, the Department of Public Health and Human Services published a Notice of Extension of Comment Period on Proposed Amendment and Repeal at page 1499 of the Montana Administrative Register, Issue Number 16.
2. The department has amended ARM 37.34.2101 as proposed.
3. The department has repealed ARM 37.34.2106, 37.34.2107, and 37.34.2112 as proposed.
4. The department has amended the following rules as proposed, but with the following changes from the amended proposal, new matter underlined, deleted matter interlined:
37.34.2102 STAFFING: STAFF COMPETENCIES (1) and (2) remain as proposed. (3) (4) The contractor must verify to the department, annually, that each staff person has the ability to meet the competencies to perform the tasks and responsibilities of their position in the provision of developmental disabilities program services, as determined by completion of the training requirements within the established timeframes. (a) and (b) remain as proposed.
AUTH: 53-20-204, MCA IMP: 53-20-205, MCA
37.34.2111 STAFFING: CONTRACTOR STAFFING FOR SERVICES (1) and (2) remain as proposed. (3) For noncongregate services or agency-based self-directed services,
AUTH: 53-20-204, MCA IMP: 53-20-205, MCA
5. 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: A few commenters asked for clarification on proposed ARM 37.34.2102(3) regarding what the department expects in terms of "regular basis" and "meets the competencies." One commenter stated that it would be difficult to assess and document competency and suggested that the measure be that the provider document that the staff has taken the appropriate training in the timeframes established.
RESPONSE #1: The department will change the language of ARM 37.34.2102(3) to state that contractors must verify to the department annually that each direct care staff person meet the competencies to perform the tasks and responsibilities of their position. The department will further clarify that the level of competency to perform the tasks and responsibilities of the position is based upon the completion of the training requirements within the established timeframes. The department will remove the requirement that a staff person must meet the competencies upon hire and instead require they have the ability to meet the competencies for their position.
COMMENT #2: One commenter requested further information regarding the use of aliases by potential job applicants or employees in terms of reviewing the list of excluded individuals and entities maintained at the System for Award Management.
RESPONSE #2: If a provider employs or contracts with a person that the provider knows or should know is excluded, the provider may be held liable if the person participates in any way in providing items or services that are payable by a federal health care program. The Office of Inspector General released a Special Advisory Bulletin, dated May 8, 2013, which provides additional information and resources pertaining to the exclusion from participation in federal health care programs.
COMMENT #3: One commenter wants to know who the department contact is for reporting if a staff person was found on the excluded individuals list.
RESPONSE #3: The department contact for reporting persons found on the excluded individuals list is the Surveillance and Utilization Review Supervisor, Quality Assurance Division, Department of Health and Human Services.
COMMENT #4: One commenter stated a need to find out what exactly the federal requirements are for terminating persons on the excluded individuals list.
RESPONSE #4: The Office of Inspector General released a Special Advisory Bulletin, dated May 8, 2013, which provides additional information and resources pertaining to the exclusion from participation in federal health care programs.
COMMENT #5: Several commenters stated that it is difficult for staff persons to be trained and demonstrate competency within 30 days of hire in abuse and incident reporting, rights and confidentiality, first aid and CPR. A few of the commenters also asked what constitutes "specialty training."
RESPONSE #5: The department is removing the training requirements from this rule and will address the concerns of the commenters in a future rulemaking process.
COMMENT #6: A few commenters asked what the department-approved basic training is. They also asked what are the consequences of not getting the training completed in the allotted six-month period.
RESPONSE #6: The department-approved basic training currently refers to the College of Direct Supports, Tier One training module. A person who does not complete the training required in the timeframe specified would no longer meet the competencies to perform the tasks and responsibilities for their position.
COMMENT #7: Several commenters asked if the "20 hours of lessons annually" is the College of Direct Supports training.
RESPONSE #7: As referred to in the proposed notice, the 20 hours of annual training is the College of Direct Support. However, the department is removing the training requirements from the staffing rule and instead, specifying the training requirements per service in future rulemaking.
COMMENT #8: A few commenters requested the department allow the 20 hours of annual training be prorated based upon staff FTE. Another commenter asked if the 20 hours of annual training can be limited, for example, a set number of tiers the staff person must complete.
RESPONSE #8: The department is removing the training requirements from the staffing rule and instead, specifying the training requirements per service in a future rulemaking. The prorated training requirements will be addressed at that time.
COMMENT #9: One commenter stated that it is, at times, impossible to provide back-up staffing and would like to know if making attempts to have back-up staff would suffice for this requirement in those situations.
RESPONSE #9: The department believes it is imperative to have back-up staffing in self-directed services and in noncongregate settings due to the fact that, in these settings, essential services may not be available to the person without such back-up planning. In congregate settings there are other staff members present that could cover essential services in the event back-up staff are not available. The department will amend the language to specify back-up staffing in self-directed services and noncongregate settings only is essential and attempts to have back-up staffing under these circumstances would not suffice to meet the requirement.
COMMENT #10: One commenter asked why the language in ARM 37.34.2111(5)(a) is being repealed.
RESPONSE #10: The language in ARM 37.34.2111(5)(a) is being repealed because, though it provides guidelines that are considered a best practice, it is not enforceable by the department. The department encourages those who apply this standard to continue to do so.
COMMENT #11: Some commenters requested the flexibility to manage the training for their staff after they have completed the College of Direct Supports training curriculum. Another commenter stated that the department needs to provide new tiers for staff persons to take who have already completed the six available tiers.
RESPONSE #11: The department is removing the training requirements from the staffing rule and instead, specifying the training requirements per service in future rulemaking. It is the department's intent to address the commenters' concerns by allowing providers to create training specific to the needs of staff persons after the completion of Tier One of the College of Direct Support is completed.
COMMENT #12: One commenter noted that if the person's individual cost plan is not sufficient to meet the health and safety needs of the person, then the provider must continue to provide that level of care at a financial loss.
RESPONSE #12: Individual cost plans are determined by identifying the services, amount of the services, the provider types, and the funding allocated in order to meet the person's needs. If the person's needs are not sufficiently being met by the services identified in the plan of care, a provider should contact the regional manager to discuss their concerns in providing the level of care the person requires.
/s/ Cary B. Lund /s/ Mary E. Dalton acting for Cary B. Lund Richard H. Opper, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State October 7, 2013
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