BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.40.801, 37.40.805, 37.40.806, 37.40.807, 37.40.808, 37.40.815, 37.40.816, 37.40.825, and 37.40.830 pertaining to hospice reimbursement and updates

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

          1. On May 26, 2016, at 10:00 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 May 18, 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:

 

37.40.801 HOSPICE, DEFINITIONS (1) remains the same.

(2) Except for the definition of "physician"," the department hereby adopts and incorporates by reference 42 CFR 418.3, as amended through October 1, 1988 August 22, 2014, which sets forth definitions of terms related to services covered as hospice care. Copies of 42 CFR 418.3, as amended through October 1, 1988 August 22, 2014, are available from the Department of Public Health and Human Services, Health Policy and Services Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

(3) remains the same.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.805 HOSPICE, CONDITIONS OF PARTICIPATION (1) remains the same.

(2) The department hereby adopts and incorporates by reference 42 CFR 418.50 through 418.100, as amended through October 1, 1988, which set forth Medicare's conditions of participation for hospice providers. Copies of 42 CFR 418.50 through 418.100, as amended through October 1, 1988, are available from the Department of Public Health and Human Services, Health Policy and Services Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951. The department adopts and incorporates by reference the following sections of 42 CFR as amended June 5, 2008:

(a) 418.52 through 418.74;

(b) 418.78;

(c) 418.102 through 418.106; and

(d) 418.110 through 418.116.

          (3) The department adopts and incorporates by reference the following sections of 42 CFR as amended August 6, 2009:

          (a) 418.76;

          (b) 418.100; and

          (c) 418.108.

          (4) These CFRs set forth Medicare's conditions of participation for hospice providers. A copy of the sections of CFR listed in (2) and (3) may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59320-2951.

(3) through (5) remain the same, but are renumbered (5) through (7).

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.806 HOSPICE, COVERED SERVICES (1) remains the same.

(2) For covered hospice services, Medicaid will generally pay for the services covered by Medicare. The department hereby adopts and incorporates by reference 42 CFR 418.202 through 418.204, as amended through October 1, 1988, except for those provisions of 42 CFR 418.202 which apply to physicians' services. The incorporated material sets forth requirements for Medicare coverage of hospice services. Copies of 42 CFR 418.202 through 418.204, as amended through October 1, 1988, except for those provisions of 42 CFR 418.202 which apply to physicians' services, are available from the Department of Public Health and Human Services, Health Policy and Services Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

(a) Physicians' services is a covered hospice service and must be performed by a doctor of medicine or osteopathy.

(b) Outpatient drugs and biologicals not related to the terminal conditions will be reimbursed separately under the provisions of ARM 37.86.1101, 37.86.1102, and 37.86.1105 and 46.12.701.

(3) The department adopts and incorporates by reference the following section of 42 CFR as amended August 4, 2011:

(a) 418.202 except for those provisions which apply to physicians services.

(4) The department adopts and incorporates by reference the following sections of 42 CFR as amended August 6, 2009:

(a) 418.200; and

(b) 418. 204.

(5) The department adopts and incorporates by reference the following section of 42 CFR as amended November 5, 2004:

(a) 418.205.

(6) The incorporated material sets forth requirements for Medicare coverage of hospice services. A copy of the sections of CFR listed in (3), (4), and (5) may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59320-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.807 HOSPICE REQUIREMENTS, PLAN OF CARE CONDITION OF PARTICIPATION: INTERDISCIPLINARY GROUP, CARE PLANNING, AND COORDINATION OF SERVICES (1) The plan of care must be maintained by the hospice and available for department review. To be eligible for coverage, services must be consistent with the plan of care. In order to establish a plan of care:

(a) one member of the basic interdisciplinary assessment group must assess the individual's needs;

(b) prior to writing the initial plan that member must discuss his assessment with at least one other group member;

(i) one of those two members must be either a physician or nurse.

(c) the initial plan must be completed on the same day as the assessment if that day is to be a covered day; and

(d) the entire group must approve the initial plan within two calendar days following the assessment. The department adopts and incorporates by reference 42 CFR 418.56 as amended June 5, 2008, which sets forth Medicare conditions for participation in regards to interdisciplinary groups, care planning, and coordination of services.  Copies of 42 CFR 418.56 are available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.808 HOSPICE, CERTIFICATION OF TERMINAL ILLNESS 

(1) remains the same.

(2) The department hereby adopts and incorporates by reference 42 CFR 418.22, as amended through October 1, 1988 August 4, 2011, which sets forth Medicare conditions for certification of terminal illness to qualify an individual to be eligible to elect hospice care. Copies of 42 CFR 418.22, as amended through October 1, 1988, are available from the Department of Public Health and Human Services, Health Policy and Services Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.815 HOSPICE, ELECTION AND WAIVER OF OTHER BENEFITS

(1) remains the same.

(2) The department hereby adopts and incorporates by reference 42 CFR 418.24(a) through 418.24(d), as amended through October 1, 1988, which set forth requirements for individual election of hospice care and 42 CFR 418.26, as amended through October 1, 1988, which sets forth elements of the election statement. Copies of 42 CFR 418.24(a) through 418.24(d) and 418.26, as amended through October 1, 1988, are available from the Department of Public Health and Human Services, Health Policy and Services Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951. The department adopts and incorporates by reference the following sections of 42 CFR as amended November 22, 2005:

(a) 418.21 which sets forth the duration of hospice care coverage and election periods; and

(b) 418.25 which sets forth the requirements for admission to hospice.

(3) The department adopts and incorporates by reference the following section of 42 CFR as amended June 5, 2008:

(a) 418.20 which sets forth eligibility requirements.

(4) The department adopts and incorporates by reference the following sections of 42 CFR as amended August 22, 2014:

(a) 418.24(a) through 418.24(f) which sets forth the requirements for individual election of hospice care; and

(b) 418.26 which sets forth the requirements for discharge from hospice care.

(5) A copy of the sections of CFR listed in (2) through (4) may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59320-2951.

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

(7) The hospice chosen by the eligible individual, or their representative, must file a Notice of Election (NOE) with the department within five calendar days after the effective date of the election statement. NOEs must be sent to the Senior & Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210. The department may waive the consequences of failure to submit a timely-filed NOE.  A hospice must fully document and furnish any requested documentation to the department for a determination of exception.

          (8) When the hospice election is ended due to discharge, the hospice must file a Notice of Termination of Election with the department within five calendar days after the effective date of the discharge, unless it has already filed a final claim for that beneficiary. Notice of Terminations must be sent to the Senior & Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.816 HOSPICE, REVOCATION OF ELECTION (1) remains the same.

(2) The department hereby adopts and incorporates by reference 42 CFR 418.28, as amended through October 1, 1988 August 22, 2014, which sets forth the Medicare requirements for revoking the election of hospice care. Copies of 42 CFR 418.28, as amended through October 1, 1988, are available from the Department of Public Health and Human Services, Health Policy and Services Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

(3) When the hospice election is ended due to revocation, the hospice must file a Notice of Revocation of Election with the department within five calendar days after the effective date of the revocation, unless it has already filed a final claim for that beneficiary. A Notice of Revocation must be sent to the Senior & Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.825 HOSPICE, CHANGE OF HOSPICE (1) remains the same.

(2) The department hereby adopts and incorporates by reference 42 CFR 418.30, as amended through October 1, 1988 June 5, 2008, which sets forth the Medicare requirements that must be met when another hospice is chosen in an election period. Copies of 42 CFR 418.30, as amended through October 1, 1988, are available from the Department of Public Health and Human Services, Health Policy and Services Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

37.40.830 HOSPICE, REIMBURSEMENT (1) Medicaid payment for covered hospice care will be made in accordance with the specific categories of covered hospice care (routine home care day, continuous home care day, inpatient respite care day, and general inpatient care day) and the payment amounts and procedures established by Medicare. The specific categories of covered hospice care include:

(a) routine home care day;

(b) continuous home care day;

(c) inpatient respite care day;

(d) general inpatient care day; and

(e) service intensity add-on.

(2) Hospice Routine Home Care (RHC) level of care days will be paid one of two RHC rates. RHC per-diem payment rates for the RHC level of care will be paid depending on the timing of the day within the patient's episode of care. Days 1 through 60 will be paid at the RHC "High" rate while days "61 plus" will be paid at the RHC "Low" rate.

(2) (3)  The department adopts and incorporates by reference 42 CFR 418.302, effective as amended August 6, 2015 and 42 CFR 418.306, effective as amended August 6, 2015, which sets forth the Medicare payment procedures. Copies of 42 CFR 418.302 and 42 CFR 418.306 are available at the federal web site: http://cms.hhs.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html.

(3) remains the same, but is renumbered (4).

(4) (5)  The following services performed by hospice physicians are included in the rates described in (1) and through (2) (3) of this rule:

(a) general supervisory services of the medical director; and

(b) participation in the establishment of plans of care, supervision of care and services, periodic review and updating of plans of care, and establishment of governing policies by the physician member of the interdisciplinary group.

          (5) (6)  For services not described in (4) (5), Medicaid will pay the hospice for those physician services furnished by hospice employees or under arrangements with the hospice in accordance with ARM 37.86.101, 37.86.104, and 37.86.105. Reimbursement for these physician services is included in the amount subject to the hospice limit described below in (7). Services furnished voluntarily by physicians are not reimbursable.

(6) and (7) remain the same, but are renumbered (7) and (8).

(8) (9)  The department adopts and incorporates by reference 42 CFR 418.309, effective as amended August 6, 2015, which sets forth Medicare's methodology for calculating the hospice cap amount. Copies of 42 CFR 418.309 are available at the federal web site: http://cms.hhs.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html.

(9) and (10) remain the same, but are renumbered (10) and (11).

          (11) (12)  The hospice fee schedules are effective October 1, 2015 January 1, 2016. Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov and may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59602-2951.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA

 

          4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) proposes to amend ARM 37.40.801, 37.40.805, 37.40.806, 37.40.807, 37.40.808, 37.40.815, 37.40.816, 37.40.825, and 37.40.830. These amendments are necessary to incorporate changes made to the Code of Federal Regulations (CFR), specifically 42 CFR 418.1 through 418.405, dealing with standards for participation in, and reimbursement rates for Hospice care.

 

In order to pay Medicaid hospice providers according to the Medicare fee schedule and rate methodology the rules must be updated to provide adoption and incorporation of current federal regulations.  This includes updating all references to CFR related to determination of payment rates.  Failure to update these rules will result in hospice reimbursement rates no longer staying current with federal changes and providers not having clarity on which federal regulations are applicable for Medicaid hospice services and reimbursement.

 

ARM 37.40.801, 37.40.807, 37.40.808, 37.40.825

 

The department proposes to amend these rules to incorporate the most recent federal regulations governing hospice participation and reimbursement.  Failure to update these rules will result in the hospice program being out of compliance with federal regulations.

 

ARM 37.40.805

 

The department proposes to amend this rule to include the adoption and incorporation by reference of: 42 CFR 418.52 through 418.74; 418.76; 418.78; 418.100; 418.102 through 418.106; 418.108; and 418.110 through 418.116.

 

The proposed amendment is necessary to incorporate the most recent federal regulations governing Hospice participation and reimbursement. Failure to update the rules will result in the Hospice program being out of compliance with federal regulations.

 

ARM 37.40.806

 

The department proposes to amend this rule to include the adoption and incorporation by reference of 42 CFR 418.200; 418.202 (except for those provisions which apply to provision services); 418.204; and 418.205.

 

The proposed amendment is necessary to incorporate the most recent federal regulations governing Hospice participation and reimbursement. Failure to update the rules will result in the Hospice program being out of compliance with federal regulations.

 

ARM 37.40.815

 

The department proposes to amend this rule to include the adoption and incorporation by reference of 42 CFR 418.20 and 418.21; 418.24 (a) though (f); 418.25; and 418.26.

 

This proposed amendment will include language about the requirement for the hospice provider to submit the Election of Hospice Benefit Form to the department and provides an updated mailing address for submission.

 

The proposed amendment is necessary to incorporate the most recent federal regulations governing Hospice participation and reimbursement. Failure to update the rules will result in the Hospice program being out of compliance with federal regulations.

 

ARM 37.40.816

 

The department proposes to amend this rule to include the adoption and incorporation by reference of 42 CFR 418.28.  This proposed amendment will include the requirement for the hospice provider to submit the Termination of Hospice Benefit Form to the department and provides an updated mailing address for submission.

 

The proposed amendment is necessary to incorporate the most recent federal regulations governing Hospice participation and reimbursement. Failure to update the rules will result in the Hospice program being out of compliance with federal regulations.

 

ARM 37.40.830

 

The department proposes to amend this rule to include the adoption and incorporation of a new routine home care rate structure (RHC) and the addition of a service intensity add-on rate (SIA), effective January 1, 2016.

 

The department also proposes to adopt and incorporate federal rule references in order to update the rule to the most current federally amended dates.

 

The proposed amendment is necessary to incorporate the most recent federal regulations governing Hospice participation and reimbursement. Failure to update the rules will result in the Hospice program being out of compliance with federal regulations.

 

Fiscal Impact

 

This proposed rulemaking incorporates the Medicare fee changes effective January 1, 2016, for the Medicaid Hospice program. Funds impacted will be from federal Medicaid fund source (03585) and general fund source (01100).

 

All providers will receive an increase in the RHC rate of 13.35% for services provided between 1 and 60 days.  Hospice providers will experience a 10.26% decrease in the RHC rate for services provided 61 days and over.

 

Hospice rates are affected by a wage index which is adjusted for geographic differences and applied by county.

 

Four Hospices will receive a RHC and SIA rate reduction of two percentage points for failure to comply with the quality data submission requirements during this fiscal year.

 

Any reduction in rate is not applied retroactively but will be effective upon adoption of the MAR notice.

 

          5. The department proposes to apply increases in the hospice reimbursement rates retroactively to January 1, 2016. The implementation date of the rate increase is consistent with the federal approval of the hospice reimbursement rate fee increase and the effective dates of the promulgated federal regulations. Decreases in hospice rates would not be applied retroactively, but would be effective upon adoption of the proposed rule amendment.

 

          6. 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., June 3, 2016.

 

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

 

8. 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 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. 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.

 

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

11. 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.

 

12. 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 not appropriate for performance-based measurement and therefore are not subject to the performance-based measures requirement of 53-6-196, MCA.

 

 

/s/ Valerie A. Bashor                              /s/ Richard H. Opper                            

Valerie A. Bashor                                  Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services

 

 

Certified to the Secretary of State April 25, 2016.