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| Montana Administrative Register Notice 37-648 | No. 21 11/14/2013 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On September 19, 2013, the Department of Public Health and Human Services published MAR Notice No. 37-648 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 1667 of the 2013 Montana Administrative Register, Issue Number 18.
2. The department has amended ARM 37.87.701, 37.87.703, 37.87.733, 37.87.809, 37.87.903, 37.87.1013, 37.87.1401, 37.87.1410, and 37.87.2233 as proposed and repealed ARM 37.87.1015, 37.87.1017, and 37.87.1411 as proposed.
3. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
37.87.1404 HOME SUPPORT SERVICES (HSS) AND THERAPEUTIC FOSTER CARE (TFC), INDIVIDUALIZED TREATMENT PLAN (1) through (3) remain as proposed.
37.87.1405 HOME SUPPORT SERVICES (HSS) AND THERAPEUTIC FOSTER CARE (TFC), ASSESSMENTS (1) remains as proposed.
37.87.1407 HOME SUPPORT SERVICES (HSS) AND THERAPEUTIC FOSTER CARE (TFC), PROVISIONS OF SERVICE (1) remains as proposed. (2) The following must be available and provided as clinically indicated by a mental health professional (a) conduct a treatment team meeting with the caregiver to develop an individualized treatment plan in accordance with ARM (b) through (4) remain as proposed.
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 regarding the removal of prior authorization for therapeutic group home (TGH) care. Commenters stated that this proposed change sets providers up to make expensive guesses as to whether the youth meets the "ambiguous" clinical guidelines. Furthermore, one commenter stated the department is being cynical and second-guessing every admission into TGH by requiring providers to submit a prior authorization form along with the certificate of need to the UR contractor. RESPONSE #1: Reductions to the state's contract with Magellan Medicaid Administration required the department to choose between prior authorization and continued stay authorization for TGH. The department chose continued stay authorization in order to ensure that youth are being placed at the least restrictive level of care for their needs over time. The comment that the department is being overly cynical and second-guessing providers about requiring prior authorization with the certificate of need (CON) at 120 days is a misinterpretation of the department's intent. A prior authorization must be included at 120 days rather than a continued stay authorization because neither the state's claim system nor the utilization review contractor's system can handle a continued stay authorization in the absence of a prior authorization. The intent is not to retroactively prior authorize the first 120 days; the intent is to generate a prior authorization for continued stay at 120 days. The department is in the process of developing a group of on-staff licensed clinicians. We are researching the possibility of doing some group-home authorizations internally at which time we can further address this issue. COMMENT #2: One commenter requested clarification regarding what level of practitioner is needed to complete the CON. RESPONSE #2: As stated on page 9 of the proposed clinical guidelines manual, "A CON is based on the determination by a team of mental health care professionals that has competence in diagnosis and treatment of mental illness, and that has knowledge of the situation of the youth, including the psychiatric condition of the youth. The interdisciplinary team must include a physician and a licensed mental health professional." COMMENT #3: One commenter expressed concern about the requirement for family/legal representative engagement in treatment as an approval criterion for continued stay in a TGH. They state they agree with family involvement when it is possible and appropriate but that there are many instances when family involvement is not possible or appropriate and that may indicate an even greater need by the youth for services. RESPONSE #3: The department reviewed the continued stay criteria for TGH and agrees with the commenter; however, this comment is outside of the scope of this rulemaking. The department intends to review this issue further in future rulemaking. COMMENT #4: One commenter requested clarification regarding when a CON is required for CBPRS. RESPONSE #4: The department will correct the table in the clinical management guidelines to provide a CON is needed for CBPRS only when provided concurrently with other services which require a CON. COMMENT #5: One commenter stated that the proposed criteria for Home Support Services (HSS) make the service extremely restrictive and inaccessible and that it forces youth to fail out of unnecessary services prior to being eligible for the level of care HSS provides. RESPONSE #5: The criteria do not require failure into the service. The clinical guideline manual contains the following language: "In the event a youth is acute enough to require HSS without meeting the above criteria, a provider must call the Children's Mental Health Bureau at (406) 444-4545 in order to request services." The department's assumption is that, in general, providers will try other, less intensive approaches before using an approach that is intensive and expensive. The department understands that on rare occasion a more intensive approach is required at intake. COMMENT #6: One commenter stated that the matrix of services excluded from simultaneous reimbursement states that outpatient therapy requires prior authorization for any youth in a TGH while the authorization chart states it is managed by retrospective review. The commenter points out that this is contradictory. RESPONSE #6: The commenter is correct; the matrix will be corrected to remove the requirement for prior authorization of outpatient therapy for any youth in a TGH. COMMENT #7: One commenter stated that the table in 2.1.1 of the clinical guidelines manual reflects that a CON is required to be submitted for TGH; however, the new proposed regulations state they are to be maintained in the file for the youth. The commenter also expressed confusion regarding whether a new CON will be required for the 120-day continued stay review or if the CON maintained in the file for the youth upon entry will be sufficient. The commenter also stated that the changes to the TGH authorization requirements are confusing and unnecessary. RESPONSE #7: The department agrees in part. The department will specify that the CON must be maintained in the file for the youth. A new CON will be required for the 120-day continued stay review. The department addresses in Response #1 the necessity of the changes to the TGH requirements and will update the manual to provide clarification in relation to the changes to TGH authorization requirements. COMMENT #8: One commenter stated they feel strongly that technical denials should not require the provider to pay back fees already paid for treatment. RESPONSE #8: In ARM 37.85.410, general Medicaid requirements state that "The department shall only make payment for those services which are medically necessary…" The proposed rules establish the discretion of the department to manage the various aspects of the Medicaid program in conformance with federal authority, the appropriated budget authority, and as otherwise determined appropriate by the department. This application of discretion to the Medicaid program is necessary to ensure continuing conformance with the governing federal authority so as to avoid withdrawal of federal approval for the funding and to avoid federal recoupment for inappropriate expenditures of federal monies. Under federal regulations this may be done before payment or after payment. COMMENT #9: One commenter stated that limiting HSS to 365 days is arbitrary, not based upon individual need, and flies in the face of the ACES study. The commenter states that the proposed limit will negatively impact young children. Moreover, the commenter indicated that the rule takes the choice out of the hands of clinicians and puts it in the hands of the state. RESPONSE #9: The department disagrees with the commenter that the 365-day limit is arbitrary. The department met extensively with stakeholders in order to establish best practices and to create a service that provides for the needs of youth with serious emotional disturbances. One of the outcomes from the stakeholder meetings was to establish consensus on the proposed 180- and 365-day reviews. The department believes that youth, especially children under the age of six, should receive the least restrictive treatment options. HSS is a high-level intervention for seriously emotionally disturbed youth. The department presumes that providers will try to use other, lower-level, less invasive approaches to treatment before attempting a potentially intrusive in-home service, particularly for young children. Additionally, the department added the option to extend the 365-day limit, established on needs-based criteria, in order to continue to serve youth past 365 days. After 365 days, the process of determining eligibility is put directly into the hands of clinicians, not removed from them. A licensed clinician at the department will review another licensed clinician's suggestion and determine if the need meets the established criteria for an extension. COMMENT #10: One commenter indicates that the proposed HSS criteria blend medical necessity and quality assurance measures for providers. As evidence of this, the commenter notes that a youth may not continue to receive services if a provider fails to document attendance at meetings. RESPONSE #10: The department assumes that as a standard of practice, the provider would document meeting attendance regardless. The admission criteria states "…the parent/caregiver agrees to actively participate in treatment planning and presence at agreed-upon meeting times." Meeting attendance is noted as a measure because attendance at meetings is a valid way to document parent/caregiver participation, which is absolutely essential as part of the HSS service. COMMENT #11: One commenter stated that there are certain activities involved with targeted case management (TCM) that are nonbillable and are necessary activities. The commenter also made comments regarding the role of a case manager during crisis situations. RESPONSE #11: These comments are beyond the scope of the proposed rule changes. The purpose of the TCM rule change was solely to change the admission criteria. TCM rules will be reviewed at a later date to consider the reimbursement of services. COMMENT #12: One commenter expressed disagreement about allowing TCM concurrent with HSS. The commenter stated the bundling of HSS and TCM has proved to be a great success during their trial demonstration which began May 1, 2013. RESPONSE #12: In conversations with providers about the purpose of HSS, providers noted that HSS is a high-intensity, in-home service with a behavioral intervention focus. TCM, by contrast, is an indirect service. Upon further examination through discussions with a provider workgroup we agree the services are different and not duplicative. Allowing families the choice of HSS and TCM, as opposed to disallowing concurrent services, will allow providers to tailor services to the needs of individual clients as opposed to offering families a defined package of services. COMMENT #13: One commenter asked how to determine the 365-day maximum benefit for HSS. RESPONSE #13: The 365-day limit will begin the date the rule becomes effective. Providers will be able to access information about the billing limits in two ways: either by calling Xerox, who processes Medicaid claims; or, if a youth has received 300 days or more of service, there will be a notation on the Explanation of Benefits providers receive. COMMENT #14: One commenter stated that ARM 37.87.1404 (2) through (5) is redundant with ARM 37.106.1916. RESPONSE #14: The department agrees in part. The requirements that a licensed person coordinate the ITP and that an ITP is in place for 90 days are redundant and will be removed. However, there is nothing in ARM 37.106.1916 that specifically states the caregiver, who is defined differently than the legal representative/guardian, may choose the team members. There is also no existing specific requirement for coordination in ARM 37.106.1916. In the proposed notice, the department removed the requirement for a strengths, needs, and cultural assessment from ARM 37.87.1404 to be consistent with other rule changes. COMMENT #15: One commenter expressed concern regarding the assessments required in ARM 37.87.1405. The commenter stated that the requirements in (2) and (3) are not clear because the assessment required in (1) is a "clinical intake assessment" and the department is requesting it be done not only at intake but also annually. The commenter proposes a solution to add a reassessment of the serious emotional disturbance (SED) eligibility at the 180-day review. RESPONSE #15: The department agrees with the commenter that the annual requirement for an intake assessment is confusing. The department will remove the language in ARM 37.87.1405 (2) and (3). Also the department will add the reassessment of the SED eligibility at the 180-day and 365-day reviews in the UR manual. COMMENT #16: One commenter stated that the connection between ARM 37.87.1407(2) and ARM 37.87.903 is unclear. They also stated that ARM 37.87.1407(2)(a) is redundant because it is already contained in ARM 37.106.1916(5). RESPONSE #16: The department agrees that the connection between ARM 37.87.1407(2) and ARM 37.87.903 is unclear and will remove that reference. The department agrees that ARM 37.87.1407(2)(a) is redundant and will remove it. COMMENT #17: Several commenters asked the department to review the UR manual closely for inconsistency with the rules. RESPONSE #17: The department will review the manual closely for inconsistencies and make any needed amendments to ensure the manual is consistent with rule language. Furthermore, it is the department's intention in a future rulemaking to revamp the UR manual and any further concerns will be addressed during that time. COMMENT #18: Several commenters stated that they would like to express their genuine appreciation of the department for facilitating a collaborative, transparent process for resolving differences and developing solutions. They further stated that the department's competence and positive approach have made this an excellent rule process. The commenters also requested six-month review meetings to review this new rule and the UR manual and the ongoing effect of the rule changes. RESPONSE #18: The department appreciates the comments and agrees that administrative rule changes should be incremental and well reasoned, to allow for organizational learning and will arrange to hold a six-month review meeting. COMMENT #19: Several commenters thanked the department for hearing their complaints about the rule process prior to initiating the workgroup to look at the HHS rules. These commenters appreciated the collaborative process that the rule rewrite entailed and the department's direct and open approach in dealing with the providers. They stated that the rules have been simplified and are more understandable. In addition, one commenter stated they appreciated the department's trust and willingness to address misbehavior by addressing the outliers rather than creating more complex rules and matrix management. RESPONSE #19: The department agrees and is thankful for the participation of provider agencies in the process to improve children’s services.
/s/ John C. Koch /s/ Richard H. Opper John C. Koch Richard H. Opper, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State November 4, 2013.
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