Administrative Rules of the State of Montana

BEFORE THE Department of LABOR AND INDUSTRY

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 24.29.1401A definitions, 24.29.1433 facility service rules and rates, 24.29.1534 professional fee schedule for services provided, 24.29.1538 conversion factors for services provided, and 24.29.1591 utilization and treatment guidelines

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NOTICE OF AMENDMENT

TO: All Concerned Persons

1. On April 24, 2014, the Department of Labor and Industry (department) published MAR Notice No. 24-29-283 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 776 of the 2014 Montana Administrative Register, Issue Number 8. On May 22, 2014, the department published an amended notice, which rescheduled the public hearing and extended the comment period, at page 1055 of the 2014 Montana Administrative Register, Issue Number 10.

2. The department amends the following rules as proposed:

24.29.1401A DEFINITIONS

24.29.1534 PROFESSIONAL FEE SCHEDULE FOR SERVICES PROVIDED ON OR AFTER JULY 1, 2013

24.29.1538 CONVERSION FACTORS FOR SERVICES PROVIDED ON OR AFTER JANUARY 1, 2008

24.29.1591 Utilization and Treatment Guidelines

3. The department amends the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

24.29.1433 FACILITY SERVICE RULES AND RATES FOR SERVICES PROVIDED ON OR AFTER JULY 1, 2013 (1) and (2) remain as proposed.

(3) Critical access hospitals (CAH) are reimbursed at 100 percent of that facility's usual and customary charges. CAH is a designation for a facility only. The reimbursement rate for CAH set by this rule applies to facility charges.

~~(i)~~ (a) Regarding professional services provided at a CAH, ~~PT, OT, and ST~~ physical therapy (PT), occupational therapy (OT), and speech therapy (ST) services provided on an outpatient basis must be billed on a UB04 and reimbursed 100 percent of usual and customary. PT, OT, and ST outpatient services may not be billed on the CMS 1500.

(ii) remains as proposed but is renumbered (b).

(4) through (12) 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: One commenter suggested that the percentages of payment listed in the Instruction Sets for the Professional and Facility Fee Schedules be consistently repeated in the appropriate section of the CPT Modifiers.

RESPONSE # 1: The department appreciates the careful attention to detail commenters have given in reviewing the various components of the Professional and Facility Fee Schedules, Instruction Sets, and CPT Modifier Schedules. The department determines that the suggested change to the CPT Modifiers is necessary to consistently list all percentages of payments for medical services. The department adds the percentage of payment for assistant surgeons at 20% (Modifier 80) and for nonphysician assistant surgeons at 15% (Modifier 81) of the Professional Fee Schedule.

COMMENT # 2: A commenter pointed out that a conflict exists between the Facility Fee Instruction Set and administrative rule. The Instruction Set excludes the "costs" of inpatient and outpatient implants from the outlier calculation, while ARM 24.29.1433(11)(e)(iii) states that the "implantable charge is excluded from any calculation for an outlier payment."

RESPONSE # 2: The department concurs that the words "costs" and "charge" have very different meanings. The department corrects the Facility Fee Instruction Set at pages 12 and 14 by replacing the word "costs" with the term "charge," in order to conform the Instruction Set with the administrative rule.

COMMENT # 3: A commenter noted an inconsistency in the language of the Facility Fee Schedule Instruction Set concerning payment reductions for multiple procedures.

RESPONSE # 3: The department is grateful for the careful review and comments provided during this rulemaking process. The department corrects the clerical error on page 10 of the Facility Fee Schedule Instruction Set by replacing the phrase "second subsequent procedure" with the phrase "second and all subsequent procedures."

COMMENT # 4: Two commenters pointed out that the Surgery Section of the Professional Fee Schedule Instruction Set does not include payment percentages for preoperative, surgical, and postoperative care provided by separate providers. The commenters observed that payment percentages of 10%, 70%, and 20%, respectively, were in effect prior to July 1, 2013. The commenters noted that such payment percentages would help insurers and providers establish consistent expectations for payments.

RESPONSE # 4: The department acknowledges that the Professional Fee Schedule Instruction Set includes no lower payment percentages for preoperative, surgical, and postoperative care provided by separate medical providers. Under the 2014 Professional Fee Schedule, the services of these separate providers of preoperative, surgical, and postoperative care are paid at 100% and are not subject to a lower percentage payment. The department determines that the changes to the Professional Fee Schedule proposed by the commenters would be a material change to the reimbursement rate of providers that would necessitate additional public participation in the rulemaking process.

COMMENT # 5: One commenter suggested that if the department were able to maintain consistency in the payments to medical providers over a two-year biennium period, reimbursement rates would be stabilized and small practices would be assisted in financial planning.

RESPONSE # 5: Montana law, specifically 39-71-704, MCA, requires the department to adopt a revised Professional Fee Schedule on an annual basis. The change suggested by the commenter would require a statutory change.

COMMENT # 6: Another commenter suggested alternative language for the Guidelines for Complex Regional Pain Syndrome and Chronic Pain in order to encompass the use of neurostimulation devices for more medical conditions than those specifically listed in the Guidelines.

RESPONSE # 6: The department adopts the Guidelines for Complex Regional Pain Syndrome and Chronic Pain as presented by the Colorado Guidelines. Colorado derived these Guidelines after extensive search of the peer-reviewed medical literature for evidence-based medical best practices and a consensus-building process. The department notes that it lacks the scientific resources to develop the Guidelines independent of the Colorado Guideline process.

COMMENT # 7: A commenter pointed out that the proposed rule amendments do not explain the acronyms "OT, PT, and ST."

RESPONSE # 7: The department determines that definition of acronyms is critical to provide clarity, and amends ARM 24.29.1433 in order to define the acronyms when they first appear in the Facility Service Rules.

COMMENT # 8: A commenter requested that all percentages of payment listed in the Modifier Table be included in the Professional and Facility Instruction Sets.

RESPONSE # 8: The department determines that consistent repetition of the percentages of payment in both the Modifier Table and the Instruction Sets would be unnecessarily redundant.

COMMENT # 9: Two commenters requested that the department amend the Professional and Facility Fee Schedules in order to increase the payments to providers and facilities in order to ensure patient access to vital medical services.

RESPONSE # 9: The department adopts the Professional and Facility Fee Schedules on an annual basis, in accordance with the direction set forth by 39-71-704, MCA, and does not have the legal authority to increase reimbursement as suggested.

/s/ JUDY BOVINGTON /s/ PAM BUCY

Judy Bovington Pam Bucy

Rule Reviewer Commissioner

Department of Labor and Industry

Certified to the Secretary of State June 30, 2014.