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Montana Administrative Register Notice 37-737 No. 5   03/04/2016    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

  STATE OF MONTANA

 

In the matter of the amendment of ARM 37.85.204, 37.85.206, 37.86.601, 37.86.606, 37.86.2002, 37.86.2102, 37.86.2902, 37.86.3103, and 37.86.3105, pertaining to Medicaid program treatment limits, cost-share requirements, and Medicaid coverage

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

          1. On March 24, 2016, at 11:00 a.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 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 the Department of Public Health and Human Services no later than 5:00 p.m. on March 17, 2016, 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:

 

          37.85.204 RECIPIENT MEMBER REQUIREMENTS, COST SHARING

          (1) Except as provided in (4) through (6) each recipient must pay to the provider a copayment of $100 per discharge for inpatient hospital services, not to exceed the cost of the services.

          (2) Except as provided in (4) through (6) each recipient must pay to the provider a cost sharing payment for outpatient drugs not to exceed the cost of the service. The rate of cost sharing payment is a minimum of $1 per prescription up to a maximum of $5 per prescription based on 5% of the Medicaid allowed amount. The maximum total cost sharing payment per recipient for outpatient drugs shall not exceed $25 per month.

          (3) Except as provided in (4) through (6) each recipient must pay to the provider a cost sharing payment not to exceed the cost of the service. For the following service providers, the rate of cost sharing is a minimum of $1 per visit up to a maximum of the lesser of $5 per visit or 5% of the average Medicaid allowed amount for that provider type, rounded to the nearest dollar:

          (a) outpatient hospital services;

          (b) podiatry services;

          (c) physical therapy services;

          (d) speech therapy services;

          (e) audiology services;

          (f) hearing aid services;

          (g) occupational therapy services;

          (h) home health services;

          (i) ambulatory surgical center services;

          (j) public health clinic services;

          (k) dental services;

          (l) denturist services;

          (m) durable medical equipment, orthotics, prosthetics, and medical supplies;

          (n) optometric and optician services;

          (o) physician services;

          (p) mid-level practitioner services;

          (q) federally qualified health center services;

          (r) rural health clinic services;

          (s) freestanding dialysis clinic services;

          (t) licensed psychiatrist services;

          (u) licensed psychologist services;

          (v) licensed clinical social worker services;

          (w) licensed professional counselor services;

          (x) independent diagnostic testing facility services; and

          (y)  home infusion therapy services.

          (4) For purposes of this rule, "Medicaid allowed amount" means the amount allowed in accordance with the reimbursement methodology for the particular service, before third party liability, incurment and other such payments are applied.

          (5) The following individuals are exempt from cost sharing:

          (a) individuals under 21 years of age;

          (b) pregnant women; and

          (c) institutionalized individuals for services furnished to any individual who is an inpatient in a hospital, skilled nursing facility, intermediate care facility or other medical institution if such individual is required to spend for the cost of care all but their personal needs allowance, as defined in ARM 37.82.1320.

          (6) Cost sharing may not be charged for services provided for the following purposes:

          (a) emergencies;

          (b) family planning;

          (c) hospice;

          (d) personal assistance services;

          (e) home dialysis attendant services;

          (f) home and community based waiver services;

          (g) nonemergency medical transportation services;

          (h) eyeglasses purchased by the Medicaid program under a volume purchasing arrangement;

          (i) early and periodic screening, diagnostic and treatment (EPSDT) services;

          (j) independent laboratory and x-ray services;

          (k) services for Medicare crossover claims where Medicaid is the secondary payor under ARM 37.85.406(18). If a service is not covered by Medicare but is covered by Medicaid, cost sharing will be applied; and

          (l) services for third party liability (TPL) claims where Medicaid is the secondary payor under ARM 37.85.407. If a service is not covered by TPL but is covered by Medicaid, cost sharing will be applied.

          (1) Except as provided in this rule each member must pay cost share to the provider of service as described below.

          (2) The cost share applied to a service or item is not to exceed the cost of service.

          (3) A member with income at or below 100% of the federal poverty level (FPL) is responsible for the following copayments:

          (a) inpatient hospital - $75 per discharge;

          (b) pharmacy-preferred brand drugs - $4;

          (c) pharmacy-nonpreferred brand drugs, including specialty drugs - $8;

          (d) outpatient hospital services - $4;

          (e) podiatry services - $4;

          (f) physical therapy services - $4;

          (g) speech therapy services - $4;

          (h) audiology services - $4;

          (i) hearing aid services - $4;

          (j) occupational therapy services - $4;

          (k) home health services - $4;

          (l) ambulatory surgical center services - $4;

          (m) public health center services - $4;

          (n) dental treatment services - $4;

          (o) denturist services - $4;

          (p) durable medical equipment - $4;

          (q) optometric and optician services - $4;

          (r) professional services - $4;

          (s) federally qualified health center services - $4;

          (t) rural health clinic services - $4;

          (u) dialysis clinic services - $4;

          (v) independent diagnostic testing facility services - $4;

          (w) home infusion therapy services - $4;

          (x) home dialysis attendant services - $4;

          (y) personal assistance services - $4;

          (z) mental health clinic services - $4;

          (aa) chemical dependency services - $4; and

          (ab) targeted case management services - $4.

          (4)  A member with income above 100 percent of the FPL, except as noted in (a) and (b) is responsible for cost share of 10% of the provider reimbursed amount. A member is responsible for cost share for outpatient pharmacy services as follows:

          (a) preferred brand drugs - $4;

          (b) nonpreferred brand drugs, including specialty drugs - $8.

          (5) Members with the following statuses are exempt from cost sharing:

          (a) persons under 21 years of age;

          (b) pregnant women;

          (c) American Indians/Alaska Natives who are eligible for, currently receiving, or have ever received an item or service furnished by:

          (i) an Indian Health Service (IHS) provider;

          (ii) a Tribal 638 provider;

          (iii) an IHS Tribal or Urban Indian Health provider; or

          (iv) through referral under contract health services.

          (d) persons who are terminally ill receiving hospice services;

          (e) persons who are receiving services under the Medicaid breast and cervical cancer treatment category;

          (f) institutionalized persons who are inpatients in a skilled nursing facility, intermediate care facility, or other medical institution if the person is required to spend for the cost of care all but their personal needs allowance, as defined in ARM 37.82.1320.

          (6) Cost sharing may not be charged to members for the following services:

          (a) emergency services;

          (b) family planning services;

          (c) hospice services;

          (d) home and community based waiver services;

          (e) transportation services;

          (f) eyeglasses purchased by the Medicaid program under a volume purchasing arrangement;

          (g) early and periodic screening, diagnostic and treatment (EPSDT) services;

          (h) provider preventable health care acquired conditions as provided for in 42 CFR 447.26(b);

          (i) generic drugs;

          (j) preventive services as approved by CMS through the Health and Economic Livelihood Plan (HELP) Medicaid 1115 waiver;

          (k) services for Medicare crossover claims where Medicaid is the secondary payer under ARM 37.85.406(18). If a service is not covered by Medicare but is covered by Medicaid, cost sharing will be applied; and

          (l) services for third party liability (TPL) claims where Medicaid is the secondary payor under ARM 37.85.407. If a service is not covered by the TPL but is covered by Medicaid, cost sharing will be applied.

          (7) Cost share may not be charged to the member until the claim has been processed through the claims adjudication process and the provider has been notified of payment and amount owing.

          (8) The total of Medicaid premiums and cost sharing incurred by a Medicaid household may not exceed an aggregate limit of five percent of the family's income applied quarterly. There may not be further cost sharing applied to the household members in a quarter once a household has met the quarterly aggregate cap.

          (9) Providers may directly charge members only for the following services if the member signs an Advanced Beneficiary Notice for the specific service prior to the service being provided:

          (a) noncovered services;

          (b) experimental services;

          (c) unproven services;

          (d) services performed in an inappropriate setting;

          (e) services that are not medically necessary; or

          (f) investigational services.

 

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

IMP: 53-6-101, 53-6-113, 53-6-141, MCA

 

          37.85.206 SERVICES PROVIDED (1) Except as otherwise provided in this rule, the following medical or remedial care and services shall be are available to all persons who are certified eligible for Medicaid benefits under this chapter (including deceased persons, categorically related, who would have been eligible had death not prevented them from applying)However, only those medical or remedial care and services also covered by Medicare be available to a person who is certified eligible for Medicaid benefits as a qualified Medicare beneficiary under ARM 37.83.201 and 37.83.202.

          (a) through (k) remain the same.

          (l) personal care services in a recipient's member's home;

          (m) through (q) remain the same.

          (r) durable medical equipment, prosthetic devices, and medical supplies;

          (s) through (af) remain the same.

          (ag) institutions for mental diseases for persons age 65 and over; and

          (ah)  payment of premiums, co-insurance, deductibles, and other cost sharing obligations under an individual or group health plan in accordance with the provisions of ARM 37.82.424; and

          (ai)  diabetes and cardiovascular disease prevention services.;

          (aj) habilitative services; and

          (ak) rehabilitative services.

          (2) Only those medical or remedial care and services also covered by Medicare are available to a person who is eligible for Medicaid benefits as a qualified Medicare beneficiary under ARM 37.83.201 and 37.83.202.

          (2) (3)  Individuals who will receive Medicaid benefits are: State plan Medicaid benefits are available for members who are Medicaid-covered through the 00181 Medicaid 1115 waiver as approved by the Centers for Medicare and Medicaid Services (CMS).

          (a) qualified for A person may receive coverage through the 00181 Medicaid 1115 Waiver if the person is 18 or older, has severe disabling mental illnesses (SDMI), would qualify for or be enrolled in the state-financed mental health services plan (MHSP) or the 00181 Medicaid 1115 Waiver but is otherwise ineligible for Medicaid benefits, and either:

          (i) family or family-transitional Medicaid services the person's income is 0 to 138% of the federal poverty level and the person is eligible for or is enrolled in Medicare; or

          (ii) MHSP waiver services the person's income is 139 to 150% of the federal poverty level whether Medicare eligible or not.

          (b) age 21 through 64; A person determined categorically eligible for Medicaid as aged, blind, or disabled (ABD) in accordance with ARM 37.82.901 through 37.82.903 is not subject to the annual $1,125 dental treatment limit.  The monies expended for treatment costs exceeding the limit are covered through the 00181 Medicaid 1115 Waiver.

          (c) not pregnant; and

          (d) not disabled (according to Social Security Administration (SSA) criteria).

          (3) Basic Medicaid benefits are the services specified in (1)(a) through (1)(ah) of this rule except the following:

          (a) eyeglasses and routine eye exams, whether provided by an optometrist, ophthalmologist or other provider;

          (b) audiology and hearing aids;

          (c) personal care services in the recipient's home;

          (d) dental services; and

          (e) durable medical equipment and supplies.

          (4) With regard to persons identified in (2) who receive basic Medicaid benefits, the department will provide the noncovered services specified in (3)(a) through (3)(e):

          (a) if the noncovered services are required as a condition of employment; or

          (b) on an emergency basis. For purposes of this rule, an emergency is a situation which:

          (i) arises suddenly or unexpectedly; and

          (ii) is life-threatening or has very serious implications for the individual's health.

 

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

IMP: 53-2-201, 53-6-101, 53-6-103, 53-6-111, 53-6-113, 53-6-131, 53-6-141, MCA

 

          37.86.601 THERAPY SERVICES, DEFINITIONS In ARM 37.86.601, 37.86.605, 37.86.606, and 37.86.610, 46.12.526, and 46.12.529, the following definitions apply:

          (1) and (2) remain the same.

          (3) "Habilitative care" means services provided when a member requires help to maintain, learn, or improve skills and functioning for daily living, or to prevent deterioration. These services include:  physical therapy, occupational therapy, speech-language pathology, and behavioral health professional treatment. Applied behavior analysis (ABA) for adults is excluded.  Habilitative services are reimbursable if a licensed therapist is needed and the service must be provided by a licensed therapist.  Services may be provided in a variety of inpatient and outpatient settings as prescribed by a physician or mid-level practitioner.

          (3) through (7) remain the same, but are renumbered (4) through (8).

          (9) "Rehabilitative care" means services provided when a member needs help to keep, get back, or improve skills and functioning for daily living that have been lost or impaired because a member was sick, hurt, or disabled.  Rehabilitative services include: physical therapy, occupational therapy, speech-language pathology, and behavioral health professional treatment.  Applied behavioral analysis (ABA) for adults is excluded. Rehabilitative services are reimbursable if a licensed therapist is needed and the service must be provided by a licensed therapist.  Services may be provided in a variety of inpatient and outpatient settings as prescribed by a physician or mid-level practitioner.

          (8) through (10) remain the same, but are renumbered (10) through (12).

 

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

IMP: 53-6-101, 53-6-113, MCA

 

          37.86.606 THERAPY SERVICES, SERVICE REQUIREMENTS AND RESTRICTIONS (1) and (2) remain the same.

          (3) Therapy services may be provided to a recipient member only upon a current written or verbal order or referral by a physician or mid-level practitioner.  All verbal orders or referrals must be followed up by a written order received by the provider within 30 days of the verbal order or referral.

          (a) through (4) remain the same.

          (5) Maintenance therapy services are not covered or reimbursable under the Montana Medicaid program.

          (a) Establishment of a maintenance therapy plan by a licensed therapist is reimbursable. Establishment of a maintenance plan includes the initial evaluation of the recipient's needs, development of a plan that incorporates the treatment objectives of the prescribing physician or mid-level practitioner and that is appropriate for the recipient's capacity and tolerance, instruction of others in carrying out the plan and further evaluations by a licensed therapist as required.

          (6) remains the same, but is renumbered (5).

          (7) The following limits apply to therapy services:

          (a) Occupational therapy services are limited to 40 hours per state fiscal year per recipient. Individuals age 21 or older are not eligible to receive additional hours over 40.

          (b) Speech therapy services are limited to 40 hours of service per state fiscal year per recipient. Individuals age 21 or older are not eligible to receive additional hours over 40.

          (i) One unit is equal to one visit code or four 15-minute increment codes as provided in the CPT.

          (c) Physical therapy services are limited to 40 hours of service per state fiscal year per recipient. Individuals age 21 or older are not eligible to receive additional hours over 40.

 

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

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA

 

          37.86.2002 OPTOMETRIC SERVICES, REQUIREMENTS (1) and (2) remain the same.

          (3) A Medicaid recipient member age 21 and over is limited to one eye examination for determination of refractive state per 730 365-day period unless one of the following circumstances exist:

          (a) following cataract surgery more than one examination during the 730 365-day period is necessary; or

          (b) remains the same.

          (4) A Medicaid recipient under age 21 is limited to one eye examination for determination of refractive state per 365 day period unless one of the following circumstances exist:

          (a) following cataract surgery, more than one examination during the 365 day period is necessary; or

          (b) the provider determines by screening that a loss of one line acuity has occurred with present glasses.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, 53-6-141, MCA

 

          37.86.2102 EYEGLASSES, SERVICES, REQUIREMENTS AND RESTRICTIONS (1) through (3) remain the same.

          (4) A recipient member under 21 years of age is limited to one pair of eyeglasses per 365-day period and each recipient 21 years of age or older is limited to one pair of eyeglasses every 730 day period unless additional pairs are necessary due to any of the following circumstances:

          (a) through (h) remain the same.

          (i) the inability of the recipient member to wear bifocals because of a diagnosed medical condition.

          (i) (5)  When this is the case, In the circumstances described in (4), the recipient member may be allowed two pairs of single vision eyeglasses every 730 365-day period if he is 21 years of age or over, or every 365 day period if he is under 21 years of age.

          (5) and (6) remain the same, but are renumbered (6) and (7).

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, 53-6-141, MCA

 

          37.86.2902 INPATIENT HOSPITAL SERVICES, REQUIREMENTS

          (1) through (4) remain the same.

          (5) Alcohol and drug detoxification services are limited to:

          (a) detoxification services up to seven days, except that more than seven days may be covered if concurrently authorized by the department or the department's designated review organization and a hospital setting is required; or

          (b) the department or the department's designated review organization determines that the client has a concomitant condition that must be treated in the inpatient hospital setting, and the alcohol and drug treatment is a necessary adjunct to the treatment of the concomitant condition.

          (6) through (9) remain the same, but are renumbered (5) through (8).

 

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

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

 

          37.86.3103 OUTPATIENT HOSPITAL SERVICES, CARDIAC REHABILITATION SERVICES (1) Cardiac rehabilitation services are limited to

a maximum of two 1-hour sessions per day for up to 36 sessions, limited to the following cardiac events and diagnoses:

          (a) through (g) remain the same.

 

AUTH: 53-2-201, 53-6-111, MCA

IMP: 53-2-201, 53-6-101, MCA

 

          37.86.3105 OUTPATIENT HOSPITAL SERVICES, PULMONARY REHABILITATION SERVICES (1) Pulmonary rehabilitation services are limited to a maximum of two 1-hour sessions per day for up to 36 sessions, for patients members with moderate to severe COPD, (defined as GOLD classification II, III, and IV).

          (2) and (3) remain the same.

 

AUTH: 53-2-201, 53-6-111, MCA

IMP: 53-2-201, 53-6-101, MCA

 

          4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to amend 37.85.204, 37.85.206, 37.86.601, 37.86.606, 37.86.2002, 37.86.2102, 37.86.2902, 37.86.3103, and 37.86.3105 regarding Medicaid Program treatment limits, cost share requirements, and Medicaid coverage. These changes are all necessary for purposes of implementing the newly established Alternative Benefits Plan for the health care services spectrum to be delivered by the Montana Medicaid program. The state has, as provided for by the federal Affordable Care Act and implementing federal regulations, developed and received federal approval from the Centers for Medicare and Medicaid (CMS) of an Alternative Benefits Plan that is to be effective in conjunction with the implementation by the state of the Affordable Care Act authorized Medicaid coverage expansion to adults approved by the federal Department of Health and Human Services through a new Health and Economic Livelihood Plan (HELP) Medicaid 1115 Waiver for the state.

 

The Alternative Benefits Plan health care services coverage adopted by the state must be applicable to the delivery of all Medicaid state plan services to Montana Medicaid members. Montana has had a Medicaid benefits plan specifically applicable to a limited adult population that previously was covered by Medicaid. That plan had coverage limitations for several health care services. With the adoption of an Alternative Benefits Plan the services for all Medicaid members must be brought into general conformity with the new plan. These proposed rule changes are necessary for accomplishing the implementation of that conformity. In addition, an Alternative Benefits Plan must conform to the Essential Health Benefits Plan that has been approved by CMS for general application to insurance benefits in the state. Some current features of the state's Medicaid coverage are not in conformity with certain features of coverage as established in the state's Essential Health Benefits Plan and therefore those features, as currently established in departmental rule must be modified.

 

ARM 37.85.204

 

The department in administering the federally authorized program of Medicaid funded health care services for Montana must comply with the standards and limitations established in federal statute and regulations for the program. Federal law allows states, subject to definite restrictions and limits, to impose certain forms of cost sharing on persons who are in receipt of Medicaid funded health care services. The department has established through ARM 37.85.204 various copayment and cost-sharing requirements for persons eligible for the state administered Medicaid program and has further also provided certain categories of persons with exemptions from those cost sharing requirements.

 

In the course of preparing to implement the federally required Alternative Benefit Plan to be applied to the administration of the spectrum of health care services that would be covered by the department through the new HELP Medicaid 1115 Waiver coverage expansion, it was determined that the existing copayment and cost sharing requirements for Medicaid members in Montana would need to be modified to conform with current federal limitations and restrictions. The proposed changes to ARM 37.85.204 are necessary to accomplish the alignment with the federal requirements.

 

Several changes are proposed in ARM 37.85.204. Those changes include the following:

 

          1. add language regarding what members must pay to the provider of service cost share as described in the rule not to exceed the cost of service;

          2. cost share may not exceed 5% of the family's household income applied quarterly;

          3. members with incomes above 100% of the federal poverty level will be responsible for cost share of 10% of the provider reimbursed amount, except for outpatient pharmacy services in which the member is responsible for preferred brand drugs $4 and nonpreferred brand drugs, including specialty drugs $8;

          4. change the cost-sharing payment for preferred brand drugs to $4 from a minimum of $1 up to a maximum of $5 per prescription based on 5% of the Medicaid allowed amount;

          5. impose a cost sharing amount for nonpreferred and specialty drugs of eight dollars ($8);

          6. remove a limitation providing that the maximum total cost-sharing payment per member for outpatient drugs may not exceed $24 per month;

          7. for members with an income at or below 100% of the federal poverty level change the cost-sharing payment for outpatient services to four $4 per visit from a minimum of $1 per visit or 5% of the average Medicaid allowed amount for that provider type, rounded to the nearest dollar;

          8. for members with an income below 100% of the federal poverty level change the inpatient cost share to $75 per discharge from $100 per discharge;

          9. add the following members to the groups of persons who are exempt from cost share:

          (a) American Indians/Alaska Natives who are eligible for, currently receiving, or have ever received an item or service furnished by:

          (i) an Indian Health Service (IHS) provider;

          (ii) a Tribal 638 provider;

          (iii) an IHS Tribal or Urban Indian Health provider; or

          (iv) through referral under contract health services.

          (b) terminally ill members receiving hospice services; and

          (c) members in the Medicaid breast and cervical cancer treatment program;

          10. add the following services that are exempt from cost sharing:

     (a) provider preventable health-care conditions as defined in 42 CFR 447.26(b);

     (b) generic drugs; and

     (c) preventive services as approved by CMS through the new HELP Medicaid 1115 Waiver;

     11.  impose a cost sharing payment for the following services:

     (a) home dialysis attendants;

     (b) personal assistance;

     (c) mental health clinics;

     (d) chemical dependency services; and

     (e) targeted case management;

          12. add language regarding that cost share may not be charged to the member until the claim has been processed through the claims adjudication process and the provider has been notified of the payment and amount owing;

          13. add language regarding that providers may only charge members for the following services if an Advanced Beneficiary Notice for the specific service is signed by the member prior to the service being provided:

(a) noncovered services;

(b) experimental services;

(c) unproven services;

(d) services performed in an inappropriate setting;

(e) services that are not medically necessary; or

(f) investigational services.

 

A set of proposed changes would remove the current exemption of personal assistance services and home dialysis attendant services from the application of cost sharing. In addition, another proposed change would be to broaden the limitation upon cost sharing from nonemergency medical transportation to all transportation.

 

Some of these proposed changes implement reductions in the cost share charges members will be obligated to pay. Some of the changes will result in members being obligated to pay a larger cost share amount.  When the member will pay less to the provider, the department will make up the difference in payment to the provider so that a provider is not adversely impacted by these changes. When the member will pay more in cost share, the department will pay less. The provider is not adversely impacted because the member will be responsible for the cost share.

 

Another proposed change requires the provider to bill and collect cost share after the department reimburses rather than at the time of service. This change is needed to ensure that members are charged the right amount of cost share based on their unique circumstances such as less than or over 100% of the federal poverty level and whether they have exceeded the 5% household quarterly cap. These proposed changes will be implemented June 1, 2016.

 

Fiscal Impact

 

The proposed changes to ARM 37.85.204 will change the cost-share amounts that the member is responsible for, and therefore, will change the provider reimbursement amount from the department. Below is the estimated annual fiscal impact based on federal fiscal year.

 

Cost Share Impact - Federal Fiscal Year

Funding Source

FY 2016 Difference

FY 2017 Difference

General Fund ($78,455)  ($281,572)    

Federal Match

($278,738)    ($536,000)  

 

ARM 37.85.206

 

Montana for a number of years has had a Medicaid 1115 Waiver granted by the Secretary of the federal Department of Health and Human Services that allowed the department to provide Medicaid funded health care coverage to certain persons who are not within required coverage groups for Medicaid. The Medicaid 1115 Waivers have been granted for states to develop differing services and populations for Medicaid coverage. The populations covered through Montana's long established 00181 Medicaid 1115 Waiver included adult parents with income below a certain percent of poverty whose children were Medicaid eligible and persons with severe disabling mental illness. The spectrum of health care services available to persons receiving coverage through this existing 00181 Medicaid 1115 Waiver was limited as compared to that afforded persons in other categories of Medicaid coverage.  Many of the members previously served under this waiver are eligible for the HELP Act (Medicaid Expansion) with enhanced federal funding and CMS required they receive the Alternative Benefit Package. The remaining small number of clients left in the 00181 Medicaid 1115 Waiver will receive the same service coverage as the other Medicaid populations. Consequently, the prior health services coverage as memorialized in ARM 37.85.206 which limited the receipt of certain services no longer applies and must be removed from the rule provisions.

 

With the recent approval of the new Health and Economic Livelihood Plan (HELP) Medicaid 1115 Waiver for Montana by which persons within the federally authorized adult expansion may now receive Medicaid funded health care services coverage, most of the adults in the existing 00181 Medicaid 1115 Waiver will qualify for coverage in the new 1115 Waiver. There will, however, be a subset of those adults whose income is above the income ceiling for the new HELP Medicaid 1115 Waiver's coverage or who are dually eligible for Medicare and Medicaid and therefore not eligible for the new 00181 Medicaid 1115 Waiver. Federal approval has been given to maintain the existing 00181 Medicaid 1115 Waiver so as to allow that subset of persons to continue to receive Medicaid coverage for their health care needs through that particular waiver authority.

 

Certain of the proposed rule changes for ARM 37.85.206 are necessary to provide for the reconfiguration in the coverage populations as between the existing 00181 and the new HELP Medicaid 1115 Waivers. The population of coverage for the continued existence of the 00181 Medicaid 1115 Waiver, as proposed by changes to the rule, will be limited to persons 18 and older who have severe disabling mental illness and who either:  are Medicare eligible and have an income of 0 to 138% of poverty; or have an income of 139 to 150% of poverty whether Medicare eligible or not.

 

The department is proposing updates to this rule regarding the services for members who are enrolled through the existing 00181 Medicaid 1115 Waiver. Currently qualified members receive limited services that are different from the standard Medicaid benefit. The 00181 Medicaid 1115 Waiver has been updated with CMS to change the persons who are eligible through the waiver and the services that are received. Members will now receive standard Medicaid benefits. Consequently, the provisions of ARM 37.85.206, providing for the specifications of the health care services under the prior conditions of the 00181 Medicaid 1115 Waiver and addressing their application, are proposed for removal.

 

In addition, the department is proposing to exempt people categorically eligible for Medicaid as aged, blind, or disabled from the annual $1,125 dental treatment limit that was enacted January 1, 2016. These members have unique health care needs that are better served by lifting this cap. The additional benefits will be covered through the 00181 Medicaid 1115 Waiver.

 

Additionally, the department proposes to add text regarding the coverage of habilitation and rehabilitation.

 

Fiscal Impact

 

The updates to ARM 37.85.206 will increase the allowed benefits for members under the existing 00181 Medicaid 1115 Waiver and decrease the number of members served through that waiver since many are now covered through the HELP Medicaid 1115 Waiver.  The updates will also remove the previous deducted dental treatment limit for only those members who are categorically eligible for Medicaid as aged, blind, or disabled.

 

Below is the estimated annual fiscal impact based on federal fiscal year.

 

00181 Medicaid 1115 Waiver - Federal Fiscal Year

Funding Source

FY 2016 Difference

FY 2017 Difference

General Fund $1,149,124  $1,894,203

Federal Match

$2,156,756    $3,605,805  


ARM 37.86.601

 

The department is proposing to add new definitions for habilitative care and rehabilitative care to ARM 37.86.601. The new proposed updates define the difference between habilitative and rehabilitative care and provide guidance on the types of service allowed and providers that may perform these services.

 

Since the implementation of an alternative benefit plan in accordance with federal criteria is integral to the implementation of the provision of health care coverage under the new HELP Medicaid 1115 Waiver and to the realignment of the existing health care coverage under the existing but amended 00181 Medicaid 1115 Waiver, the effective dates for those changes must coincide with the dates of implementation as authorized by CMS in the waiver approvals. The proposed changes to ARM 37.86.601, in accordance with federal direction, were to be effective on January 1, 2016, so as to coincide with the effective date for the implementation of the Medicaid expansion of coverage to include adults up to 138% of poverty and the resulting implementation of the federally approved Medicaid Alternative Benefit Plan for Montana. Since the federal approvals for the expansion of Medicaid member coverage in Montana provided for a January 1, 2016 effective date and necessitate the removal of these requirements, the proposed rule upon adoption of necessity will have a retroactive effective date of January 1, 2016. There will be no negative impact from this implementation since the affected population will be receiving a broader spectrum of benefits.

 

Fiscal Impact

 

There are no fiscal impacts related to the updates of ARM 37.86.601.

 

ARM 37.86.606

 

The department in administering the federally authorized program of Medicaid funded health care services for Montana must comply with the standards and limitations established in federal statute and regulations for the program. Federal law allows states, subject to definite restrictions and limits, to impose certain forms of cost sharing on persons who are in receipt of Medicaid funded health care services. The department has established through ARM 37.86.606 certain limits on utilization of the various health care services therapies for persons eligible for the state administered Medicaid program. The proposed changes to ARM 37.86.606 would remove those limits.

 

In the course of preparing to implement the federally required Alternative Benefit Plan to be applied to the administration of the spectrum of health care services that would be covered by the department through the new HELP Medicaid 1115 Waiver coverage expansion, it was determined that the existing limits on therapy services for Medicaid members in Montana would need to be removed so as to conform with current federal requirements for alternative benefit plans.  Additionally, the department proposes to remove the information regarding maintenance therapy from the rule.  The proposed changes to ARM 37.86.606 are necessary to accomplish the alignment with the federal requirements.

 

Since the implementation of an alternative benefit plan in accordance with federal criteria is integral to the implementation of the provision of health care coverage under new HELP Medicaid 1115 Waiver and to the realignment of the existing health care coverage under the existing but amended 00181 Medicaid 1115 Waiver, the effective dates for those changes must coincide with the dates of implementation as authorized by CMS in the waiver approvals. The proposed changes removing the limits on therapies of ARM 37.86.606, in accordance with federal direction, were to be effective on January 1 of 2016, so as to coincide with the effective date for the implementation of the Medicaid expansion of coverage to include adults up to 138% of poverty and the resulting implementation of the federally approved Medicaid Alternative Benefit Plan for Montana. Since the federal approvals for the expansion of Medicaid member coverage in Montana provided for a January 1 of 2016 effective date and necessitate the removal of these requirements, the proposed rule upon adoption of necessity will have a retroactive effective date of January 1, 2016. There will be no negative impact from this implementation since the affected population will be receiving a broader spectrum of benefits.

 

Fiscal Impact

 

The proposed amendments to ARM 37.86.606 will remove the service limits on speech therapy, physical therapy, and occupational therapy, allowing a possible increase in utilization. Below is the estimated annual fiscal impact based on federal fiscal year.

 

 

Therapies - Federal Fiscal Year

Funding Source

FY 2016 Difference

FY 2017 Difference

General Fund

 $21,510    $28,416  

Federal Match

 $40,372    $54,093  

 

 

ARM 37.86.2002 and 37.86.2102

 

The department is proposing to change the maximum service limits on eyeglasses and eye exams for determining refractive state. Currently for eyeglasses a person 21 years of age and older is limited to one pair of eyeglasses to include a frame and a set of lenses in a 730-day period. The department is proposing to change this to one pair of eyeglasses to include a frame and a set of lenses in a 365-day period. Currently a person 21 years of age and older is limited to one eye examination for determination of refractive state per 730 days. The department is proposing to change this to one eye examination for refractive state every 365 days.

 

In the course of preparing to implement the federally required Alternative Benefit Plan to be applied to the administration of the spectrum of health care services that would be covered by the department through the new HELP Medicaid 1115 Waiver coverage expansion, it was determined that the existing limits on optometric and eyeglass services for Medicaid members in Montana would need to be modified so as to conform with current federal requirements for alternative benefit plans. The proposed changes to ARM 37.86.2002 and 37.86.2102 are necessary to accomplish the alignment with the federal requirements.

 

Since the implementation of an alternative benefit plan in accordance with federal criteria is integral to the implementation of the provision of health care coverage under new HELP Medicaid 1115 Waiver and to the realignment of the existing health care coverage under the existing but amended 00181 Medicaid 1115 Waiver, the effective dates for those changes must coincide with the dates of implementation as authorized by CMS in the waiver approvals. The proposed changes modifying the limits on therapies of ARM 37.86.2002 and 37.86.2102, in accordance with federal direction, were to be effective on January 1 of 2016, so as to coincide with the effective date for the implementation of the Medicaid expansion of coverage to include adults up to 138% of poverty and the resulting implementation of the federally approved Medicaid Alternative Benefit Plan for Montana. Since the federal approvals for the expansion of Medicaid member coverage in Montana provided for a January 1 of 2016 effective date and necessitate the removal of these requirements, the proposed rule upon adoption of necessity will have an effective retroactive date to January 1, 2016. There will be no negative impact from this implementation since the affected population will be receiving less restrictive benefits.

 

Fiscal Impact

 

The updates to ARM 37.86.2002 and 37.86.2102 increase the frequency in which members may receive new eyeglass frames, lenses, and eye exams that allows a possible increase in utilization of these services. Below is the estimated annual fiscal impact based on federal fiscal year.

 

Eyeglasses/Eye Exams - Federal Fiscal Year

Funding Source

FY 2016 Difference

FY 2017 Difference

General Fund

   $257,875      $340,668  

Federal Match

   $483,998      $648,496  

 

ARM 37.86.2902

 

The department is proposing to remove the prior authorization requirement on inpatient medical alcohol and drug detoxification services that last over seven days. Currently, the department requires that inpatient hospitals who perform detoxification services require a prior authorization if the member is admitted to the hospital for greater than seven days. The department examined its process of prior authorization for the past several years and found that it was not needed, as both the admissions and length of stays were appropriate. The department's method of payment for inpatient stays has a strong incentive for hospitals to self-monitor length of stays.

 

In addition, the department, in administering the federally authorized program of Medicaid funded health care services for Montana, must comply with the standards and limitations established in federal statute and regulations for the program. Federal law allows states, subject to definite restrictions and limits, to impose certain forms of cost sharing on persons who are in receipt of Medicaid funded health care services. The department has established through ARM 37.86.2902 certain limits on utilization of alcohol and drug detoxification for persons eligible for the state administered Medicaid program. The proposed changes to ARM 37.86.2902 would remove those limits.

 

In the course of preparing to implement the federally required Alternative Benefit Plan to be applied to the administration of the spectrum of health care services that would be covered by the department through the new HELP Medicaid 1115 Waiver coverage expansion, it was determined that the existing limits on alcohol and drug detoxification services for Medicaid members in Montana would need to be removed so as to conform with current federal requirements for alternative benefit plans. The proposed changes to ARM 37.86.2902 are necessary to accomplish the alignment with the federal requirements.

 

Since the implementation of an alternative benefit plan in accordance with federal criteria is integral to the implementation of the provision of health care coverage under new HELP Medicaid 1115 Waiver and to the realignment of the existing health care coverage under the existing but amended 00181 Medicaid 1115 Waiver, the effective dates for this change must coincide with the dates of implementation as authorized by CMS in the waiver approvals. The proposed changes removing the limits on alcohol and drug detoxification of ARM 37.86.2902, in accordance with federal direction, were to be effective on January 1, 2016, so as to coincide with the effective date for the implementation of the Medicaid expansion of coverage to include adults up to 138% of poverty and the resulting implementation of the federally approved Medicaid Alternative Benefit Plan for Montana. Since the federal approvals for the expansion of Medicaid member coverage in Montana provided for a January 1, 2016 effective date and necessitate the removal of this requirement, the proposed rule change upon adoption of necessity will have a retroactive effective date to January 1, 2016. There will be no negative impact from this implementation since the affected population will be receiving a less restrictive benefit.

 

Fiscal Impact

 

There are no fiscal impacts related to the updates to ARM 37.86.2902.

 

ARM 37.86.3103 and 37.86.3105

 

The department is proposing to remove the maximum service limits on cardiac and pulmonary rehabilitation services. Currently, outpatient cardiac rehabilitation services are limited to a maximum of two one-hour sessions per day for up to 36 sessions and pulmonary rehabilitation services are limited to a maximum of two one-hour sessions per day for up to 36 sessions.

 

The department in administering the federally authorized program of Medicaid funded health care services for Montana must comply with the standards and limitations established in federal statute and regulations for the program. Federal law allows states, subject to definite restrictions and limits, to impose certain forms of cost sharing on persons who are in receipt of Medicaid funded health care services. The department has established through ARM 37.86.3103 and 37.86.3105 certain limits on cardiac and pulmonary rehabilitation services for persons eligible for the state administered Medicaid program. The proposed changes to ARM 37.86.3103 and 37.86.3105 would remove those limits.

 

In the course of preparing to implement the federally required Alternative Benefit Plan to be applied to the administration of the spectrum of health care services that would be covered by the department through the new HELP Medicaid 1115 Waiver coverage expansion, it was determined that the existing limits on cardiac and pulmonary rehabilitation services for Medicaid members in Montana would need to be removed so as to conform with current federal requirements for alternative benefit plans. The proposed changes to ARM 37.86.3103 and 37.86.3105 are necessary to accomplish the alignment with the federal requirements.

 

Since the implementation of an alternative benefit plan in accordance with federal criteria is integral to the implementation of the provision of health care coverage under new HELP Medicaid 1115 Waiver and to the realignment of the existing health care coverage under the existing but amended 00181 Medicaid 1115 Waiver, the effective dates for this change must coincide with the dates of implementation as authorized by CMS in the waiver approvals. The proposed changes removing the limits for cardiac and pulmonary rehabilitation services of ARM 37.86.3103 and 37.86.3105, in accordance with federal direction, were to be effective on January 1, 2016, so as to coincide with the effective date for the implementation of the Medicaid expansion of coverage to include adults up to 138% of poverty and the resulting implementation of the federally approved Medicaid Alternative Benefit Plan for Montana. Since the federal approvals for the expansion of Medicaid member coverage in Montana provided for a January 1, 2016 effective date and necessitate the removal of this requirement, the proposed rule change upon adoption of necessity will have a retroactive date to January 1, 2016. There will be no negative impact from this implementation since the affected population will be receiving less restrictive benefits.

 

Fiscal Impact

 

The updates to ARM 37.86.3103 and 37.86.3105 remove the service limits for cardiac and pulmonary rehabilitation. This allows a possible increase in utilization of these services. Below is the estimated annual fiscal impact based on federal fiscal year.

 

Cardiac/Pulmonary Rehab - Federal Fiscal Year

Funding Source

FY 2016 Difference

FY 2017 Difference

General Fund

   $390      $515  

Federal Match

   $731      $980  

         

          5. 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., April 1, 2016.

 

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

 

7. 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 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. 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.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was notified by e-mail that the department was working on these rules on February 5, 2016. A draft copy was sent to the sponsor on February 13, 2016.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

Small Business Impact

 

The changes in cost sharing for Medicaid members, as proposed, would not result in changes in the current business operations of small health-care providers.  Medicaid members and the insureds of private insurers are already subject to cost share requirements that necessitate the implementation by health-care providers of operational policies and practices through which they may recover from the members and the insureds those cost-share amounts.  Consequently, the proposed changes would not result in any changes in or additional features in the operations of health-care providers. The other proposed changes in the notice also are not anticipated to have an impact on small businesses.

 

11. Section 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement. The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.

 

The department has determined that the proposed program changes presented in this notice are appropriate for performance-based measurement and therefore are subject to the performance-based measures requirement of 53-6-196, MCA.

 

The following matrix presents the department's intended performance monitoring scheme.

 

Principal reason for the rule

Measurement

Data Collection Methods/Metrics

Period of Measurement

Provide coverage of health care services for low-income Montanans

HELP ACT enrollment

Track enrollment via eligibility determination system (CHIMES)

Quarterly

Provide greater value for the tax dollars spent on the Montana Medicaid program

Ratio of state and federal funds expended

Track expenditure by funding source via the state accounting system

Annually

Provide incentives that encourage Montanans to take greater responsibility for their personal health

Health Behavior Activities

Track the level of participant engagement in health behavior activities via the department's data systems

Quarterly

  

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

Cary B. Lund, Attorney                          Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services

 

 

Certified to the Secretary of State February 22, 2016.

 

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