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| Montana Administrative Register Notice 37-828 | No. 4 02/23/2018 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On January 12, 2018, the Department of Public Health and Human Services published MAR Notice No. 37-828 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 67 of the 2018 Montana Administrative Register, Issue Number 1.
2. The department has amended the following rules as proposed: ARM 37.27.905, 37.85.104, 37.85.106, 37.85.406, 37.86.105, 37.86.205, 37.86.506, 37.86.1006, 37.86.1807, 37.86.2002, 37.86.2102, 37.86.2803, 37.86.2918, 37.86.3001, 37.86.3025, 37.86.3906, 37.87.903, 37.87.1226, 37.88.206, 37.88.306, and 37.88.606. The department has repealed the following rules as proposed: ARM 37.86.3031, 37.86.3033, 37.86.3035, and 37.86.3037
3. The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
37.85.105 Effective dates, CONVERSION FACTORS, POLICY ADJUSTERS, AND COST-TO-CHARGE RATIOS of Montana Medicaid Provider Fee Schedules (1) remains as proposed. (2) The department adopts and incorporates by reference, the resource-based relative value scale (RBRVS) reimbursement methodology for specific providers as described in ARM 37.85.212 on the date stated. (a) remains as proposed. (b) Fee schedules are effective (c) through (6) remain as proposed.
IMP: 53-2-201, 53-6-101, 53-6-402, MCA
37.86.3902 TARGETED CASE MANAGEMENT SERVICES FOR CHILDREN WITH SPECIAL HEALTH CARE NEEDS, ELIGIBILITY (1) A child who is receiving Medicaid or is presumptively eligible for Medicaid is eligible for targeted case management services for children and youth with special health care needs if the child meets (a) The child is under the age of one and meets one of the following: (i) was born to a mother who abused drugs or alcohol during her pregnancy; (ii) was born prior to 37 weeks gestation; (iii) was born at a birth weight of less than 2500 grams; or (iv) the department has care and placement authority, a voluntary services agreement, an in-home service agreement or a voluntary placement agreement with the parent/guardians. (b) The child is birth through 18 years of age and meets one of the following
(i) through (iv) remain as proposed. (v) has been diagnosed with a condition that causes paraplegia or quadriplegia; (vi) has been diagnosed with another chronic physical health condition that is expected to last at least 12 months and causes difficulty performing activities of daily living; (vii) has been diagnosed with failure to thrive in the past year.
(i) remains as proposed. (ii) noncompliance with their prescribed medication regime; or (iii) an inability to coordinate multiple medical, social, and other services (3) remains as proposed, but is renumbered (2).
AUTH: 53-6-113 MCA IMP: 53-6-101 MCA
37.87.1401 HOME SUPPORT SERVICES AND THERAPEUTIC FOSTER CARE, SERVICES REIMBURSEMENT (1) and (2) remain as proposed. (3) HSS and TFC providers are reimbursed a daily rate. (a) To receive the daily rate for HHS, the provider must have contact as described in ARM 37.87.1410(6). The department will not reimburse the daily rate for any telephone contacts that exceed the number of face-to-face contacts reimbursed (b) For TFC services, the department will reimburse providers the daily rate for every day of a four-week period if the provider meets the minimum number of contacts as described in ARM 37.87.1410(6) during the four-week period. (4) remains as proposed.
4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
GENERAL COMMENTS AND RESPONSES
COMMENT #1: The department received many comments opposing the proposed spending reductions, which are intended to address the reduction to the department's budget of $49 million general fund dollars.
RESPONSE #1: The department recognizes the impact the reductions may have on Medicaid providers and vulnerable Montanans. All Medicaid budget reductions cause concern, however; these reductions are necessary to allow the department to stay within its authorized appropriation while maintaining the core Medicaid services required by the federal government and optional community based service programs such as the Home and Community Based Waivers.
COMMENT #2: The department received many comments opposing the proposed spending reductions, stating that providers will have to eliminate services they provide to at-risk children and families.
RESPONSE #2: The department has updated the eligibility criteria for targeted case management (TCM) for Children and Youth with Special Health Care Needs, to ensure the most vulnerable children and infants continue to receive TCM. This change expands the eligibility criteria for TCM services. Also, the department has amended the proposed rule change to exclude therapeutic foster care (TFC) from the change in rate structure. These changes are explained more fully below.
COMMENT #3: The department received several comments stating that the rate reductions will cause providers, such as dentists, to refuse to serve Medicaid members or cause social service providers to eliminate programs for at-risk children and families and adults receiving services for substance use disorder.
RESPONSE #3: While these rate changes may impact providers and Medicaid members who rely on these services, these reductions are necessary so the department can implement spending reductions mandated by the 2017 special legislative session to make up the department's $49 million budget shortfall. As part of its agreement with the Centers for Medicare and Medicaid Services (CMS), the department is required to ensure provider access. The department will monitor the current number of provider enrollments and compare against previous state fiscal year provider enrollment to determine whether there has been a significant reduction of providers. If the provider network decreases by 10 percent, the department must complete a corrective action plan to identify to CMS how the department will work to increase provider network.
COMMENT #4: Several commenters asked questions, sought data, or asked that studies be conducted relating to information that did not relate to the proposed rule changes.
RESPONSE #4: The department appreciates the comments and requests; however, these questions and requests cannot be addressed in this notice because they do not relate to the proposed rule changes.
Establishment of Incontinence Supply Reimbursement Rates:
COMMENT #5: Several commenters expressed concern that a reduction in Durable Medical Equipment (DME) rates might cause DME suppliers to close their doors. A commenter requested the department reconsider the decision to adopt the 2018 Medicare Fee Schedule.
RESPONSE #5: The adoption of the Calendar Year 2018 Medicare Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) fee schedule was not a part of this MAR notice.
COMMENT #6: A commenter is concerned about losing access to incontinence supplies due to the budget cuts.
RESPONSE #6: The rule establishes the reimbursement fees for incontinence supplies but did not make any changes to member benefits.
COMMENT #7: Commenters expressed concern that DME providers will supply cheaper or inferior products and products that don't meet special needs, which could result in negative medical outcomes and lead to costly visits to the doctor or specialty clinics. A commenter asked that the proposed fee schedule be delayed so that a clinical trial can be performed.
RESPONSE #7: The proposed change applies only to rate of reimbursement for incontinence supplies and does not make changes to member benefits. The department recommends members talk to multiple providers to ensure they are getting the product that best meets their needs.
COMMENT #8: A commenter suggested that the department find other items on the DME fee schedule for comparison to determine the fees for incontinence supplies. Other commenters believed the department's rate setting methodology to be flawed.
RESPONSE #8: The department's research into rates for incontinence supplies considered retail pricing and reimbursement rates of at least 15 other states and provided valuable data on pricing for incontinence supplies. The department based its proposed rates on the average of Wyoming and Idaho's fee schedules due to their geographic and demographic similarity to Montana and because those states offer similar incontinence supply benefit to their members. The department considered only incontinence supply pricing because of the unique characteristics of these items.
Adult Dental Reductions:
COMMENT #9: Several commenters opposed the reduced dental benefit, orthodontic restrictions, and elimination of the denture benefit. Commenters also expressed concern about employment implications for Medicaid members who cannot get dentures, noting that the federal government may impose work requirements for Medicaid members. Other commenters expressed concern about health implications for members who do not have teeth, including inadequate nutrition due to inability to properly masticate food, oral bone loss, and lack of support for facial muscles. A commenter stated that providing patients with dentures is essential to healthier living and avoiding major costs to the department at a later date. Commenters stated dentures are a cost-effective treatment option when weighed with the alternatives and said dentures are essential for overall health and well-being, not a cosmetic frivolity.
RESPONSE #9: The department is statutorily required to keep expenditures within its legislative appropriation. Under federal law, Medicaid states are not required to provide any dental services as part of its Medicaid program. Rather, the federal government considered dental coverage an optional service. Although not required by the federal government, Montana recognizes the need for good oral health and will continue to offer adults a preventive, diagnostic, and minor restoration dental benefit. Due to budget constraints, however, the department can no longer afford to continue to cover high cost and extensive dental procedures.
COMMENT #10: A dental provider commented that Montana should eliminate the dental benefit entirely for "able-bodied" adults and should maintain the benefit for disabled adults only. The commenter characterized reimbursements for dental services as inadequate and said dentists end up subsidizing care for "able-bodied" Medicaid members.
RESPONSE #10: Medicaid members who are categorically eligible as aged, blind, or disabled will continue to have a preventive, diagnostic, and minor restoration dental benefit above the $1,125 limit.
COMMENT #11: A commenter stated they were outraged there was any dental coverage for Medicaid members and said there should be no coverage at all.
RESPONSE #11: The department considers dental coverage an important health benefit and will continue to offer the dental benefit to its members within its legislative appropriations.
COMMENT #12: Several commenters proposed maintaining the dental benefits but suggested charging Medicaid members up to 10 percent of the cost of service or paying a sliding scale copayment based on an individual's ability to pay and disability.
RESPONSE #12: Federal regulations limit member copayments depending on income, and the department is currently charging the maximum allowable copayments permitted by federal regulation. The department has determined that eliminating high cost and extensive dental treatment while offering adults a preventive, diagnostic, and minor restoration dental benefit will keep the department within its legislative appropriation.
COMMENT #13: A commenter was concerned about access to dental services for those who recently received access to dental care with the implementation of Medicaid expansion in Montana.
RESPONSE #13: Access high cost and extensive dental services are reduced for all adults. Adult members will continue to be eligible to receive a preventive, diagnostic, and minor restoration dental benefit.
COMMENT #14: A commenter offered the department several suggestions for procedures within the dental program that can be added, eliminated, or reduced that will ultimately reduce costs.
RESPONSE #14: The department will evaluate these suggested code additions and other changes to determine their feasibility and will implement if appropriate at a later date.
Comment #15: Commenters expressed concern that provider rate reductions combined with reductions in dental services will result in reduced access to care, layoffs of staff, closure of satellite clinics, and a cost shift to emergency rooms. Another commenter suggested the department allow the dentist to decide the codes that benefit the member most up to the $1,125 limit. A commenter also questioned how the department made its decision regarding reductions in dental services.
Response #15: Federal regulations consider the adult dental benefit in Medicaid as optional, and therefore the department is not required to offer any dental benefit to members. The department's proposal is intended to maintain preventive, diagnostic, and minor restoration benefits for members while staying within the department's budget appropriation.
COMMENT #16: Several commenters expressed concern about the timing of the rule and the denture manufacturing process in that it could take up to a year to properly fit a denture, possibly leading to the need of a rebuild or refit to the new healed shape of the mouth.
Response #16: The department will consider the impression date as the date of service for those members currently in process. Rebuilds and refits will not be a covered service.
COMMENT #17: A commenter questioned how the department decided to make the proposed reductions to dental services, what criteria the department used in making the proposal, and what alternatives were considered.
RESPONSE #17: Please see response #11. Recognizing the need for good oral health, the department will continue to provide adults a preventive, diagnostic and minor restoration dental benefit.
COMMENT #18: A commenter requested the department issue a request for proposal (RFP) to see what a private dental third-party administrator could save the department.
RESPONSE #18: The department will evaluate the request and decide whether to move forward on this suggestion at a later date.
Reductions to the member eye exam and eyeglass benefit:
COMMENT #19: A commenter expressed support for the department's proposal to limit eye exams and eyeglasses for adults to no more than one exam and one set of eyeglasses every two years as it aligns with current practice standards for healthy eyes.
RESPONSE #19: The department appreciates the comment.
COMMENT #20: A commenter expressed concern with the limits placed on eyeglasses and exams for adults.
RESPONSE #20: The department worked with the Montana Optometric Association to align the Medicaid policy with the practice standards for prescription eyewear. The proposed rules provide that when an eyeglass prescription changes and meets the amount of change as defined in ARM 37.86.2102, a member may be eligible to receive an additional pair of eyeglasses before the 730-day period is reached.
Hospital Reductions:
COMMENT #21: The department received comments questioning the manner in which the department is eliminating the provider based billing component, noting that there is no need to change the physician fee schedule in order to effectuate change for provider based clinics.
RESPONSE #21: After further analysis, the department agrees and will not be updating the physician fee schedule. The January 1, 2018 Physician Fee Schedule provides for reimbursement within a clinic or facility based on the place of service billed. For purposes of provider based clinics, Montana Medicaid will recognize the place of service for clinics as appropriate for provider based clinics.
COMMENT #22: The department received several detailed questions surrounding provider based billing with the repeal of ARM 37.86.3031, 37.86.3033, 37.86.3035, and 37.86.3037.
RESPONSE #22: The department held a teleconference with several provider-based clinics and hospitals on February 6, 2018, to answer outstanding questions. In addition, the department will post a detailed provider notice, outlining expectations surrounding billing for provider-based clinics.
COMMENT #23: The department received comments stating that the reimbursement reductions to hospitals and the elimination of the provider based clinic status results in an increased struggle for providers to maintain reasonable financial health.
RESPONSE #23: The department's proposed spending reductions for hospitals were part of budget reductions as a result of the special legislative session in November 2017. The department is required to administer the Medicaid program within its budgetary authority.
COMMENT #24: The department received several comments expressing concern about the potential for increased administrative burden associated with prior authorization of outpatient radiology services, physician administered drugs, and genetic testing.
RESPONSE #24: The addition of prior authorizations was not a part of this rulemaking. Prior authorization is one avenue the department has to ensure services are medically necessary and that more appropriate options have been considered prior to service delivery. The department understands that prior authorization does impact our provider network, as well as our Medicaid population; however, prior authorization is necessary to ensure services provided meet medical criteria.
COMMENT #25: The department received comments requesting a two-year suspension of the supplement disproportionate share hospitals payment in order to increase the supplemental payment associated with the Hospital Utilization Fee.
RESPONSE #25: The department will evaluate this request and determine whether to move forward on this suggestion at a later date.
Targeted Case Management for Children and Youth with Special Health Care Needs Comments:
COMMENT #26: Several comments expressed concern regarding the removal of the dietician as part of the required care team for Targeted Case Management (TCM) for Children and Youth with Special Health Care Services.
RESPONSE #26: The department made the decision to remove dieticians as they are a covered direct care service for children age 20 and under. Therefore, the services currently being provided by the dieticians will continue to be reimbursed separate from TCM.
COMMENT #27: Several comments were received regarding dieticians being able to provide services in the home setting.
RESPONSE #27: Direct care services covered on the dietician fee schedule are allowed in many different settings, including the member's home.
COMMENT #28: Commenters expressed concern on the limitations to the eligible populations and that many needy children will not fit into these limitations but still need TCM services.
RESPONSE #28: To ensure the most vulnerable Medicaid children receive necessary medical services, the department has updated the eligibility criteria in ARM 37.86.3902 (see above in ARM 37.86.3902 revisions). The purpose of the change was to expand TCM eligibility to the most vulnerable Montana children.
COMMENT #29: Several comments requested the department keep funding for TCM for Children and Youth with Special Health Care Needs.
RESPONSE #29: The department must administer Medicaid healthcare programs within the legislative appropriation and recognizes the importance of TCM. The department is continuing to cover TCM for Children and Youth with Special Health Care Needs; however, reductions to eligible populations and reimbursement are required.
COMMENT #30: Commenters questioned whether the proposed reduction to TCM services conflicted with the requirements of 50-19-311, MCA, which is the Montana Initiative for the Abatement of Mortality in Infants.
RESPONSE #30: The department has multiple programs that meet the requirements in 50-19-311, MCA. The updates to the TCM for Children and Youth with Special Health Care Needs still aim to reduce the infant mortality rates in Montana.
COMMENT #31: Multiple commenters expressed concern that the rule excludes members from TCM services when the member is enrolled in medical home programs, as the services provided differ from those in TCM.
RESPONSE #31: The adoption of the exclusion of TCM if the member is enrolled in medical home programs was not a part of this MAR notice. However, in response, the department has removed the exclusion of the medical home programs from being eligible for TCM.
COMMENTS TO THE ADDICTIVE AND MENTAL DISORDERS DIVISION (AMDD)
COMMENT #32: The department received many comments expressing concern about the requirements in ARM 37.27.138(2), which states that eligibility for intensive outpatient therapy (IOP) requires at least three cross-referenced diagnostic/assessment tools confirming a determination of chemical dependency and generally outlines the therapeutic requirements for IOP.
RESPONSE #32: In MAR Notice No. 37-835, published February 9, 2018, and proposed to be effective April 9, 2018, the department is proposing to remove the language in ARM 37.27.138 pertaining to IOP and is proposing amendments which move substance use disorder treatment practice to the American Society of Addiction Medicine (ASAM) Criteria for IOP. The ASAM Criteria for IOP is nine or more hours of services per week for adults and six or more hours per week for adolescents. The hours may include skilled treatment services, such as individual counseling, group counseling, family therapy, medication management, educational groups, occupational and recreational therapy, and other therapies. It is the department's intent with the proposed amendments in MAR Notice No. 37-835 that individualized care is provided to individuals that is more consistent with the ASAM Criteria. The department does not intend to enforce the requirements in ARM 37.27.138 during the one month between the promulgation of the rules in MAR Notice No. 37-828 and MAR Notice No. 37-835, allowing providers that time to adapt their treatment programs to be consistent with the ASAM Criteria.
COMMENT #33: The department received many comments expressing concern about the effect of the proposed amendment on the provision of substance use disorder (SUD) treatment. Providers expressed concern that the proposed amendment would cause them to eliminate group therapy as the standard of care for SUD treatment and they would not be able to provide SUD assessments with the proposed rate. Members expressed concern that the proposed amendment would essentially cut group therapy as an option for SUD treatment.
RESPONSE #33: In Montana, Medicaid sets rates for all health professionals using the resource-based relative value scale (RBRVS). Historically, substance abuse providers had a fee schedule that was not connected to RBRVS; therefore SUD providers were following a different set of rates than all other healthcare providers who bill Montana Medicaid. The proposed amendment does not eliminate individual therapy, group therapy, or assessments from the SUD treatment array. Rather, the proposed amendment aligns these reimbursement codes with equitable codes used by other healthcare providers in the RBRVS fee schedule.
COMMENTS TO CHILDREN'S MENTAL HEALTH SERVICES BUREAU (CMHB)
COMMENT #34: Some commenters said the proposed reimbursement restructure is a fee decrease that is not based on a cost study or analysis taking into consideration costs that are incurred by providers when delivering the service, particularly in rural areas. Commenters said the proposed reimbursement will force providers to discontinue community-based services which will result in youth with a severe emotional disturbance being treated in costly higher levels of care, child protection services, and the criminal justice system. Commenters said the rate cut will cost the state more in the long term.
RESPONSE #34: The proposed reimbursement structure is intended to cover reasonable provider costs. The department has estimated that a Home Support Services and Targeted Case Management (HSS/TFC) employee who earns $16 per hour receives a salary of approximately $33,280 per year. With benefits at 27%, the cost of the employee's salary to the provider is $42,266. The department factored in an additional 65% to cover expenses such as mileage, computers, and office supplies, bringing the overall cost to the provider to $69,738. With an allowable caseload of 10 and assuming the HSS/TFC worker provides 1.5 face-to-face contacts and 1.5 phone contacts per week with each youth and family on their caseload, then the annual reimbursement from Medicaid would be $74,225.
COMMENT #35: Many commenters spoke specifically about the value of TFC. Foster parents stated they have personally benefited from the service which has permitted them to successfully adopt a child because of the training and support TFC provides. Several commenters stated foster children have multiple complex needs just by the nature of being in child protective services (CPS) custody and most have experienced severe abuse and neglect. Agencies and families rely on TFC to provide foster families education and support to safely care for complex youth. Child-placing agencies are required to provide extensive documentation to meet licensing requirements such as family studies and training of foster parents. Additionally, at least one commenter noted that the governor's proposed budget reductions did not include TFC, only HSS.
RESPONSE #35: Based on the comments received about the value of TFC, the department is amending the proposal to exclude TFC from the rate restructure. The department understands youth in foster care have complex needs given the traumatic nature of being removed from their home.
COMMENT #36: Many commenters asked the department to delay implementation of the HSS/TFC reimbursement restructure to work with providers on other alternatives and suggested the following alternatives to the rate restructure: not requiring HSS/TFC specialists to have Bachelor's degrees; removing the caseload and supervision caps; not allowing Targeted Case Management concurrent with HSS/TFC and; separating HSS and TFC in rule to distinguish the difference between the services asserting TFC services vary greatly from HSS in intensity, focus, needs, and challenges.
RESPONSE #36: The department thanks the commenters for the suggestions and will consider them when proposing future rule changes. In order to keep expenditures within the authorized appropriation, however, the department is unable to delay implementation.
COMMENT #37: One commenter opposes decreasing the review interval for prior authorization for Therapeutic Youth Group Home services from 180 days to 120 days. The commenter said the proposal will not save the state money because additional numbers of youth will meet continued stay criteria at 120 days than at 180 days.
RESPONSE #37: The department's fiscal impact analysis factored in the assumption that additional youth will likely meet medical necessity at 120 days than compared to 180 days. The department's analysis determined there are cost savings by changing the interval to 120 days.
COMMENT #38: One commenter opposes utilization review for genetic testing for youth who are prescribed medication for a mental health diagnosis. The commenter believes that it would be cost effective to conduct the testing when a person is young and potentially prevent years of medication trials that don't yield positive outcomes. The commenter asked: What type of clinical features would a prescriber observe in order to document changes in the CYP2D6 and CYP2C19 enzymes which metabolize numerous antipsychotics and antidepressants?
RESPONSE #38: In its research into the efficacy of genetics testing for prescribing psychotropic medications, the department consulted with a board-certified psychiatrist about this proposed change. The psychiatrist advised that best practice for prescribing psychotropic medications to youth would include titration, regardless of the result of genetic testing. Also, the department reviewed four other insurance plans. Most insurers cover genetic testing for limited physical health conditions. None of the plans cover genetics testing to inform psychotropic drug doses. Premera Blue Cross, Aetna, and Medicare state in coverage policy that genetic testing is considered investigational and not medically necessary. Additionally, the proposed rule change does not eliminate this service. Rather, the clinical criteria in the prior authorization process will require a physician-to-physician review of why the expensive genetic test is critical to the clinical outcome of a youth.
COMMENT #39: One commenter, a provider, stated that in 2013 department staff reviewed provider records and interviewed direct care staff and youth and parents/guardians receiving HSS through the provider. The commenter believed that the 2013 review was used to establish rates of reimbursement.
RESPONSE #39: The commenter is mistaken. The service reviews conducted in 2013 were not used to establish rates. The review was intended to inform rule changes to update outdated rules.
5. These rule amendments and repeals are effective March 1, 2018.
/s/ Brenda Elias /s/ Sheila Hogan Brenda Elias, Attorney Sheila Hogan, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State February 13, 2018.
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