BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.40.305, 37.40.330, 37.86.1801, 37.86.1802, and 37.86.1806 pertaining to durable medical equipment (DME)

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

            1. On May 31, 2018, at 11:30 a.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 N. Sanders, at 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 21, 2018, to advise us of the nature of the accommodation that you need. Please contact Gwen Knight, 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:

 

            37.40.305 NURSING FACILITY SERVICES: REIMBURSABLE SERVICES

(1) Nursing facility services include but are not limited to the following or any similar items:

            (a) all general nursing services, including but not limited to administration of oxygen and medications, handfeeding, incontinence care, tray service, nursing rehabilitation services, enemas, and routine pressure sore/decubitis treatment; the practice of nursing, as defined in 37-8-102, MCA, which must be rendered in conformity with the Standards of Professional Nursing Practice from the American Nurses Association;

            (b) through (e) remain the same.

            (f) items used by individual residents which are reusable and expected to be available, including but not limited to:

            (i) through (xxix) remain the same.

            (xxx) wheelchairs (standard) in a range of sizes, weights, and accessories to meet the needs of nursing facility residents; and

(xxxi) through (h) remain the same.

 

AUTH: 53-2-201, 53-6-113, MCA

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

 

            37.40.330 SEPARATELY BILLABLE ITEMS (1) through (4) remain the same.

            (5) Durable medical equipment and medical supplies which are not nursing facility services in ARM 37.40.302 and which are intended to treat a unique condition of the recipient which cannot be met by routine nursing care, may be billed separately by the medical supplier in accordance with department rules applicable to such services.

            (a) Powered wheelchairs are not covered.

            (b) The department may reimburse a nursing facility for a specialized (non-powered) wheelchair for a nursing facility resident if the nursing facility demonstrates that the specialized wheelchair:

            (i) is necessary to treat a condition of the recipient which cannot be met by nursing care;

            (ii) cannot reasonably be used by another nursing facility resident;

            (iii) is the least costly option;

            (iv) is necessary to meet the recipient's mobility-related activities of daily living; and

            (v) is not intended for the recipient's independence or the convenience of the recipient, the recipient's caretaker, or the provider.

            (c) The department will reimburse for medically necessary custom-molded wheelchair positioning equipment for a nursing home resident.

            (6) through (10) remain the same.

 

AUTH:  53-2-201, 53-6-113, MCA

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

 

37.86.1801 PROSTHETIC DEVICES, DURABLE MEDICAL EQUIPMENT, AND MEDICAL SUPPLIES, DEFINITIONS (1) "Durable medical equipment and supplies" means the most economical equipment or supplies that are medically necessary to treat a health problem or a physical condition.  The equipment or supplies must be appropriate for use in a patient's home, residence, school, or workplace any setting in which life activities take place, as defined at 42 CFR 440.70(c)(1) (2018). Equipment or supplies that are useful or convenient, but are not medically necessary to treat an illness or injury do not qualify for Medicaid coverage.

            (2) through (4) remain the same.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-6-101, 53-6-141, MCA

 

            37.86.1802 PROSTHETIC DEVICES, DURABLE MEDICAL EQUIPMENT, AND MEDICAL SUPPLIES, GENERAL REQUIREMENTS (1) These requirements are in addition to those contained in rule provisions generally applicable to Medicaid providers. Requirements for prosthetic devices, durable medical equipment, and medical supplies utilized by nursing facility residents are contained in the department's rules governing nursing facility reimbursement. when the The nursing facility bills for separately billable items as a skilled nursing durable medical equipment provider as outlined in ARM 37.40.330.

            (2) through (4) remain the same.

            (5) Reimbursement for nursing home residents includes:

            (a) medically necessary custom molded wheelchair positioning equipment used by nursing home residents not covered under nursing home per diem (see department nursing home rules). A copy of the Medicaid criteria may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59620-2951.

            (6) (5)  The following items are not reimbursable by the program:

            (a) through (r) remain the same.

            (s) items included for members residing in the nursing home facilities, except for prosthetic devices, as defined at 42 CFR 440.120(c) (2018) per diem rate;

            (t) through (7) remain the same.

 

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

 

37.86.1806 PROSTHETIC DEVICES, DURABLE MEDICAL EQUIPMENT, AND MEDICAL SUPPLIES, REIMBURSEMENT REQUIREMENTS 

            (1) Requirements for the purchase or rental of prosthetic devices, durable medical equipment, medical supplies and related maintenance, repair, and services are as follows:

            (a) through (d) remain the same.

            (e) Reimbursement for prosthetic devices, durable medical equipment, medical supplies and related maintenance, repair and services utilized by nursing facility residents and billed by a nursing facility is subject to the limits in the department's rules governing nursing facility reimbursement.

            (2) through (7) remain the same.

 

AUTH: 53-2-201, 53-6-113, MCA

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

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The proposed amendments update the Prosthetic Devices, Durable Medical Equipment (DME), and medical supplies rules as well as the Nursing Facility rules to reflect the Home Health Services requirements as they are defined in 42 CFR 440.70(c)(1) (2018). These changes will be effective July 1, 2018.

 

In February 2016, the Centers for Medicare and Medicaid Services (CMS) revised federal regulations relating to Medicaid home health services to ensure certain rule definitions were consistent with newly passed federal healthcare legislation and with certain reauthorized federal healthcare acts. One requirement provides that state Medicaid programs must pay for DME supplied to nursing facility residents from the Medicaid nursing facilities program rather than from the durable medical equipment program.

 

These proposed amendments effectuate that federal requirement and provide that DME supplied to nursing facility residents will no longer be paid through the state's durable medical equipment program and now will be paid from the Medicaid nursing program.

 

The proposed rules also propose to amend the rule relative to separately billed items in nursing facilities to ensure that the rule accurately reflects the department's policy that Medicaid does not cover powered wheelchairs for nursing facility residents.

 

The department will make appropriate changes before July 1, 2018, to both Program's Provider Manuals as well as post-Provider notices to the http://medicaidprovider.mt.gov website to inform providers of these program changes.

 

ARM 37.40.305

 

The department is proposing to amend ARM 37.40.305 because the Senior and Long-Term Care Division has refined the definition of standard wheelchairs to ensure that the rule accurately reflects the department's policy. Specifically, Medicaid does not reimburse for powered wheelchairs for residents of nursing facilities.

 

ARM 37.40.330

 

The department is proposing to amend ARM 37.40.330(5) to eliminate the option of providers billing the DME program for services and specifying how they are billed separately by the medical supplier in accordance with department rules applicable to such services.

 

ARM 37.86.1801

 

The department is proposing to amend the definition in ARM 37.86.1801(1) for durable medical equipment and supplies for use in any setting in which normal life activities take place, as defined in 42 CFR 440.70(c)(1) (2018).

 

ARM 37.86.1802

 

The department is proposing to amend ARM 37.86.1802 to reflect that DME for nursing facility residents should be billed as separately billable items and ensuring that the nursing program will pay for the items and not the state's durable medical equipment program.

 

ARM 37.86.1806

 

The department is proposing to remove (1)(e) in ARM 37.86.1806. This section is no longer necessary in this rule if DME for nursing home residents is paid by the nursing home services.

 

Fiscal Impact

 

The funds for State Fiscal Year (SFY) 2018 are $197,419.18 for durable medical equipment provided in skilled nursing facilities. These funds will be transferred from Durable Medical Equipment to Nursing Home Services. State funds equal $68,346.52 and federal funds equal $129,072.66. This is only a transfer of funds; therefore, there will be no fiscal impact at this time.

 

The proposed rule amendments will have no effect to the estimated 268 nursing home members nor will these changes affect the estimated 442 DME and Home Health providers.

 

            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: Gwen Knight, 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 8, 2018.

 

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

 

9. 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.

 

 

/s/ Brenda K. Elias                                       /s/ Laura Smith for                                      

Brenda K. Elias                                            Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services

 

Certified to the Secretary of State May 1, 2018.