BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.84.102, 37.84.106, 37.84.107, and 37.85.204, and the repeal of ARM 37.84.108, 37.84.109, 37.84.112, and 37.84.115 pertaining to health and economic livelihood partnership (HELP) program

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO: All Concerned Persons

 

           1. On November 6, 2017, 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 and repeal 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 October 27, 2017, 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:

 

37.84.102 HELP ACT: DEFINITIONS (1) "Advance Benefit Notice (ABN)" means a notice that providers give to the participant when they have determined that a service or item is a noncovered benefit of the HELP Plan. The ABN provides notice to the participant that the participant is responsible for the full payment of the particular service.

            (2) remains the same, but is renumbered (1).

            (3) (2)  "Aligned Medicaid Alternative Benefit Plan" means a service plan available to Medicaid and HELP members that is equivalent to the Medicaid services described in ARM Title 37, chapters 86 and 88.

            (4) and (5) remain the same, but are renumbered (3) and (4).

            (6) (5)  "Benefits" means the services a person is eligible to receive. The HELP Program benefits are stated in the Evidence of Coverage or the Aligned Medicaid Alternative Benefit Plan as applicable.

            (7) (6)  "Copayment" means a predetermined portion of the cost for a health care service or item that is owed by the participant member directly to a provider for a covered health care service.

            (8) and (9) remain the same, but are renumbered (7) and (8).

            (10) (9)  "Emergency medical condition" means a medical condition manifesting itself with acute symptoms of sufficient severity, including severe pain, such that a prudent layperson could reasonably expect the absence of immediate medical attention to result in any of the following:

 (a) serious jeopardy to the health of the participant member or the participant's member's unborn child;

            (b) and (c) remain the same.

            (11) "Evidence of Coverage (EOC)" means a document that explains covered services, defines the HELP Plan's obligations, and explains the rights and responsibilities of the HELP Plan participant.

            (12) through (15) remain the same, but are renumbered (10) through (13).

            (16) "Health and economic livelihood partnership (HELP) plan" means the participant's benefits as described in the evidence of coverage, the network of providers, the coordination of care, and the claims processing that is administered by the third-party administrator pursuant to the HELP Act.

            (17) remains the same, but is renumbered (14).

            (18) (15)  "Healthy behavior plan" means a program implemented to improve the health of participants members by providing services focused on the promotion or maintenance of good health.

            (19) remains the same, but is renumbered (16).

            (20) (17)  "Inpatient hospital services" means services or supplies provided to the participant member who has been admitted to a hospital as a registered bed patient and who is receiving services under the direction of a participating provider with staff privileges at that hospital, including a critical access hospital. The facility must:

            (a) and (b) remain the same.

            (21) remains the same, but is renumbered (18).

            (22) "Medically necessary" or "medically necessary covered services" means services and supplies that are necessary and appropriate for the diagnosis, prevention, or treatment of physical or mental conditions as specified in the HELP Plan Evidence of Coverage provided in ARM 37.84.106.

            (23) through (25) remain the same, but are renumbered (19) through (21).

            (26) "Participant" means an individual enrolled in the HELP Program established in Title 53, chapter 6, part 13, MCA, and Title 39, chapter 12, MCA. A participant is eligible for and enrolled with the HELP Program and receiving benefits through the HELP Plan.

            (22) "Participant" means a member with a modified adjusted gross income between 50% and 138% of the federal poverty level and is subject to premium payment provided for in the HELP Act, Title 53, chapter 6, part 13, MCA.

 (27) (23) "Participating provider" means a health care professional or facility that is participating in either the HELP Plan network or the Medicaid program.

 (28) remains the same, but is renumbered (24).

            (29) (25)  "Premium" means a fee owed by an individual as a participant in the HELP Plan Program.

            (30) and (31) remain the same, but are renumbered (26) and (27).

            (32) "Third party administrator (TPA)" means an entity appropriately authorized, as may be required by Montana law, to provide administrative services including, but not limited to, claims processing, maintaining an adequate network of participating providers, coordination of care, health education, notices, quality assurance, reporting, case management services, and customer service.

            (33) remains the same, but is renumbered (28).

            (34) (29)  "Workforce program" means a program developed and administered by the Department of Labor and Industry that includes employment assessment and workforce development opportunities to participants members. 

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-131, 53-6-1304, 53-6-1305, 53-6-1306, 53-6-1307, MCA

 

            37.84.106 HELP ACT: BENEFITS PLANS (1) Coverage for a person in the HELP Program, except as provided in (2), is provided through the HELP Plan Medicaid Benefit Plan.

            (2) A person eligible under the HELP Program may be excluded from the HELP Plan and receive coverage through the Aligned Medicaid Alternative Benefit Plan if the person:

            (a) lives in a geographical area, including an Indian reservation, where the TPA is unable to make arrangements with sufficient numbers and types of health care providers to offer services to participants;

            (b) needs continuity of care that would not otherwise be available or cost-effective through the TPA, including American Indians and Alaska Natives;

            (c) has been determined by the department to have exceptional health care needs, including, but not limited to, a medical, mental health, or developmental condition; and

            (d) is exempt by federal law, including all individuals with incomes up to 50 percent of the FPL, from premium or cost-sharing obligations and other exemptions not waived by CMS.

            (3) The department adopts and incorporates by reference the HELP Plan Evidence of Coverage (EOC) dated January 1, 2016, which is available on the department's web site at http://dphhs.mt.gov/MontanaHealthcarePrograms.

            (4) The HELP Plan EOC describes the health care benefits, inclusive of limitations upon those benefits, available to the HELP Plan participants.

            (5) Services that are not reimbursable, not medically necessary, experimental, investigational, unproven, or performed in an inappropriate setting are not covered benefits in the HELP Plan.

            (6) Prior authorization may be required for certain types and levels of services. 

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1305, MCA

 

            37.84.107 HELP ACT: HELP PLAN PREMIUMS (1) A HELP Plan participant must pay a premium equal to two percent of the prorated share of the participant's annual household income. The premium will be billed in twelve equal monthly amounts.

            (2) remains the same.

            (3) The process for collection of overdue premiums is as follows:

            (a) Within 30 days of the date a participant's premium payment was due, the TPA department must notify the participant that the payment is overdue and that all overdue premiums must be paid within 90 days of the date the notification was sent. The TPA must provide a copy of the notice to the department.

            (b) through (4) remain the same.

            (5) A participant is not subject to disenrollment for failure to pay a premium if the participant meets two of the following criteria:

            (a) through (c) remain the same.

            (d) participation in any of the following health behavior activities developed by a health care provider or the TPA or approved by the department:

            (i) through (iii) remain the same.

            (iv) a program requiring the participant member to obtain primary care services from a designated provider and to obtain prescriptions from a designated pharmacy;

            (v) remains the same.

            (vi) a tobacco use prevention or cessation program; or

            (vii) a substance abuse treatment program; or.

            (viii) a care coordination or health improvement plan administered by the TPA.

            (6) remains the same.

            (7)  A participant is exempt from paying a premium if the individual:

            (a)  has a modified adjusted gross income under 50% of the federal poverty level;

            (b)  has been determined to be medically frail;

            (c)  is American Indian or Alaska Native;

            (d)  is receiving Medicaid services under a presumptive eligibility program; or

            (e)  is pregnant.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1307, MCA

 

            37.85.204 MEMBER REQUIREMENTS, COST SHARING (1) through (5) remain the same.

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

            (a) through (i) remain the same.

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

            (k) through (9) remain the same.

 

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

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

 

4. The department proposes to repeal the following rules:

 

            37.84.108 HELP ACT: HELP PLAN COPAYMENTS Found on page 37-19230 of the Administrative Rules of Montana.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1306, MCA

 

            37.84.109 HELP ACT: HELP PLAN REIMBURSEMENT Found on page 37-19232 of the Administrative Rules of Montana.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1305, MCA

 

            37.84.112 HELP ACT: HELP PLAN PROVIDER QUALIFICATIONS Found on page 37-19237 of the Administrative Rules of Montana.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1305, MCA

 

            37.84.115 HELP ACT: HELP PLAN GRIEVANCE AND APPEAL PROCESS Found on page 37-19241 of the Administrative Rules of Montana.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1305, MCA

 

            5. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) proposes to amend or repeal the administrative rules listed above to eliminate references to the Third Party Administrator (TPA) from the Health and Economic Livelihood Partnership (HELP) Plan.  The proposed rule changes are necessitated by Senate Bill (SB) 261, which was passed by the 65th Legislature, and mandates changes to the administration of the HELP Plan, which provides health services to Montanans with low or moderate incomes, eligible through the HELP Act.

 

On May 22, 2017, Governor Bullock signed into law SB 261, an act revising budgeting laws, which provides that for the biennium beginning July 1, 2017, the department:

 

(a) may not enter into a new contract with one or more insurance companies or third-party administrators to assist in administering the HELP Act provided for in 53-6-1301, MCA; and

 

(b) must terminate any existing contract with an insurance company or third-party administrator related to the HELP Act.

 

As a consequence, the department will no longer contract with the TPA to administer the delivery of health care to HELP members. By operation of SB 261, the existing contract with the TPA expires on December 31, 2017. The rule amendments are proposed to be effective on January 1, 2018.

 

The department must amend or repeal administrative rules to reflect the changes mandated by SB 261. As contemplated by SB 261, participants who are currently served by the TPA will transition to standard Medicaid, which is administered by the department. The proposed rule amendments reflect this change. All benefits and processes will be aligned with standard Medicaid.

 

The department is responsible for overseeing the implementation and operation of these changes. Specifically, the proposed amendments and rule repeals are as follows:

 

ARM 37.84.102

 

The HELP Plan definition was removed, as this definition was previously used to identify individuals enrolled in the TPA Plan.  The definition of participant was updated to refer to the subset of Medicaid members who are responsible for paying a premium. The term "participant" is used in these rules to refer to individuals who are required to pay premiums as distinguished from others who are not required to pay premiums.

 

The term "advanced benefit notice" (ABN) was removed, as this definition referred only to those in the TPA.  Any language referring to the evidence of coverage and TPA were removed. The department is also proposing to replace the term "Aligned Medicaid Alternative Benefit Plan" with "Medicaid Benefit Plan," to clarify that there is now one Medicaid benefit plan.

 

ARM 37.84.106

 

This proposed amendment provides that Medicaid Expansion TPA participants will be served by the standard Medicaid Benefit Plan.

 

ARM 37.84.107

 

The department proposes to remove references to the TPA to align the rule with the updated definition in ARM 37.84.102.

 

ARM 37.85.204

 

The department proposes to replace the term "Health and Economic Livelihood Plan" with "Health and Economic Livelihood Partnership."

 

ARM 37.84.108

 

The department proposes to repeal this rule in its entirety. This rule sets copayments for individuals covered by the TPA network. After December 31, 2017, HELP benefits will be aligned with the standard Medicaid Benefit Plan, and this rule would be duplicative of ARM 37.85.204.  Repealing this rule also will eliminate the two percent premium credit and will relieve the department of the complexity of tracking the spending of individual participants to determine when they meet the two percent credit. The five percent maximum cost share obligation will not change, as provided in ARM 37.85.204(8).

 

ARM 37.84.109

 

The department proposes to repeal this rule in its entirety. This rule was previously needed to allow for "carved" out services to be administered by the standard Medicaid Benefit Plan.  With this rule repeal, all services will be administered by the standard Medicaid Benefit Plan.

 

ARM 37.84.112

 

The department proposes to repeal this rule in its entirety. This rule refers to provider qualifications for participation in the TPA network, which is no longer applicable after December 31, 2017. After that date, HELP members will receive health care through the standard Medicaid Benefit Plan and from providers who participate in that plan.

 

ARM 37.84.115

 

The department proposes to repeal this rule in its entirety. This rule refers to the grievance and appeal process for HELP members whose health care is administered by the TPA.  After December 31, 2017, HELP members will transition to the standard Medicaid Benefit Plan and will use the grievance and appeal process in ARM 37.5.103.

 

           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., November 10, 2017.

 

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. The bill sponsor contact requirements of 2-4-302, MCA, apply and have been fulfilled. The primary bill sponsor was notified by electronic mail correspondence on September 28, 2017.

 

10. As provided in 2-4-111, MCA, the department has determined the following impact to small businesses, as that term is defined in 2-4-102(13), MCA: Under the existing HELP Plan, licensed addiction counselors (LAC) may contract with the TPA as in-network providers. Montana Medicaid, however, does not allow LACs to enroll as providers unless they are associated with a Federally Qualified Health Center (FQHC), Rural Health Center (RHC), Indian Health Service (IHS), or a chemical dependency clinic.  The department has identified 9 LACs that are enrolled in the HELP TPA and will not be eligible to contract with Medicaid. Since implementation of the HELP Plan on January 1, 2016, a total of $20,802.75 in claims has been paid to the 9 LACs that are not associated with a FQHC, RHC, IHS, or a chemical dependency clinic.

 

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

 

12.  If an agency proposes to adopt, increase, or decrease a monetary amount that a person shall pay or will receive, 2-4-302(1)(c), MCA, requires the agency to include an estimate of the cumulative amount for all persons of the proposed increase, decrease, or new amount and the number of persons affected.  The department has determined that removing the 2% premium cost share credit will potentially impact premium paying members with income greater than 50% FPL, who are not premium exempt.  As of December 31, 2016, there are 18,704 premium paying members enrolled in Medicaid Expansion. The number of members affected will vary based on members' income in relation to FPL and services received, as income and services can vary from quarter to quarter.  The quarterly impact will range from $0 to $83.22, with a median quarterly impact of $75.42. The member's 5% maximum out of pocket cost share obligation will not change.

 

/s/ Brenda K. Elias                                       /s/ Marie Matthews for                                

Brenda K. Elias                                            Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services

 

Certified to the Secretary of State October 2, 2017.