Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the adoption of New Rules I through VIII and the amendment of ARM 37.84.101, 37.84.102, 37.84.103, 37.84.106, and 37.84.107 pertaining to Health and Economic Livelihood Partnership (HELP) Act

)

NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

TO: All Concerned Persons

1. On November 30, 2020, at 11:00 a.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed adoption and amendment of the above-stated rules. Because there currently exists a state of emergency in Montana due to the public health crisis caused by the coronavirus, there will be no in-person hearing. Interested parties may access the remote conferencing platform in the following ways:

(a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/91377667402; meeting ID: 913 7766 7402; or

(b) Dial by telephone +1 646 558 8656; meeting ID: 913 7766 7402. Find your local number: https://mt-gov.zoom.us/u/abzYOS0KD0.

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 November 20, 2020, to advise us of the nature of the accommodation that you need. Please contact Heidi Clark, 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 adopted provide as follows:

NEW RULE I HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: REQUIREMENTS (1) A participant shall participate in a minimum average of 80 hours per month of qualifying community engagement activities each reporting period unless exempt from participation as defined in (2).

(2) A participant is not subject to the community engagement activity participation requirements if the participant meets any of the following:

(a) is 55 years of age or older;

(b) qualifies for an income-based exemption as provided under [NEW RULE IV];

(d) qualifies for a hardship exemption under [NEW RULE VI].

(3) A participant may communicate exemption from or compliance with community engagement activity participation to the department electronically, telephonically, or by mail.

(4) The department shall implement and enforce this rule only upon receiving approval from the U.S. Secretary of Health and Human Services of the department's 1115 waiver application filed August 30, 2019, and in accordance with the terms and conditions of the approval.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

NEW RULE II HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: DATA REVIEW (1) The department shall make reasonable efforts to review available electronic data sources on a monthly basis to identify and document compliance with or exemption from community engagement activity participation requirements.

(2) The department shall only request supportive documentation or certification from a participant if no electronic data verification is available to demonstrate compliance with or an exemption from community engagement activity participation as required in [NEW RULES III, IV, V, and VI].

(3) This information will be used only for community engagement activity participation tracking. All information required to be reported by the member to other programs must continue to be reported according to those program rules and policies.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

NEW RULE III HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: QUALIFYING ACTIVITIES (1) Time spent in one or more of the following qualifying activities may be counted toward the community engagement activity participation requirements as provided under [NEW RULE I]:

(a) employment;

(b) work readiness or workforce training activities which include, but are not limited to, an education, training, coaching, or other related workforce readiness activity intended to support preparation for workforce participation;

(c) secondary, postsecondary, or vocational education including time spent completing assignments and preparing for exams;

(d) substance abuse education or substance use disorder treatment including prevention, treatment, medication assisted treatment, and recovery;

(e) other work or community engagement activities that promote work or work readiness or advance the health purpose of the Medicaid program;

(f) community service or volunteer activities; or

(g) any other activity required by the Centers for Medicare and Medicaid Services for the purpose of obtaining necessary waivers under HB 658, section 1, Ch. 1, L. 2019 MT.

(2) The department shall implement and enforce this rule only upon receiving approval from the U.S. Secretary of Health and Human Services of the department's 1115 waiver application filed August 30, 2019, and in accordance with the terms and conditions of the approval.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

NEW RULE IV HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: INCOME-BASED EXEMPTION (1) A participant is exempt from community engagement activity participation requirements if a participant's income exceeds an amount equal to or above the average of 80 hours per month multiplied by the minimum wage for each reporting period.

(2) The department shall review available electronic data sources on a monthly basis to identify an exemption under this subsection.

(3) If the department is unable to verify an income-based exemption through data review, a participant may provide documentation to meet the exemption under this subsection. Such documents may include:

(a) documentation of income, including pay stubs or other means of employment certification; or

(b) income tax forms, financial statements, or other supporting income documentation of self-employment.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-9-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

NEW RULE V HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: STANDARD EXEMPTIONS (1) A participant is exempt from the community engagement activity participation requirements if the participant is:

(a) medically frail consistent with 42 C.F.R. 440.315.

(i) The department shall review healthcare claims on a monthly basis for receipt of services including, but not limited to, a personal care service or a diagnosis of severe and disabling mental or physical illness to identify an exemption under this subsection.

(ii) If the department is unable to verify a medical frailty exemption through a data review, a participant may provide a certification to meet an exemption under this subsection.

(b) blind or disabled.

(i) A blind or disabled individual shall include:

(A) Social Security Disability Insurance recipients;

(B) individuals who, as defined under the Americans with Disability Act, Section 50 or Section 1557, are unable to comply with the community engagement requirements due to disability-related reasons; or

(ii) The department shall review available data sources on a monthly basis to identify an exemption under this subsection.

(iii) If the department is unable to verify a blind or disabled exemption through a data review, a participant may provide documentation to meet an exemption under this subsection.

(i) The department shall review healthcare claims on a monthly basis to identify an exemption under this subsection.

(ii) If the department is unable to verify pregnancy or up to six months post-partum through a data review, a participant may provide documentation or a certification to meet an exemption under this subsection.

(d) experiencing an acute medical condition.

(i) A participant who experiences a medical condition that requires medical treatment or that temporarily impacts activities of daily living shall meet an exemption under this subsection.

(ii) A participant shall provide documentation from a registered or licensed provider to meet an exemption under this subsection.

(e) unable to work due to a mental or physical condition.

(i) A participant shall provide documentation to meet an exemption under this subsection. Documentation may include:

(A) temporary or permanent disability benefits issued by governmental or private sources; or

(B) a statement provided by a physician, licensed or certified psychologist, physician assistant, nurse, nurse practitioner, designated representative of the physician's office, licensed or certified psychologist, social worker, or any other medical personnel.

(f) a primary caregiver of a person who is unable to provide self-care which shall include a child under the age of 19 residing in the household or an individual who is unable to provide self-care, regardless of age.

(i) A participant may provide a certification to meet an exemption under this subsection.

(ii) Only one participant may be deemed the primary caregiver for an individual.

(g) a foster care or kinship care provider.

(i) The department shall review available electronic records on a monthly basis to identify an exemption under this subsection.

(ii) If the department is unable to verify if a participant is a foster care or kinship care provider through a data review, a participant may provide documentation or a certification to meet an exemption under this subsection.

(h) Engaged in secondary, postsecondary, or vocational education.

(i) A participant in high school shall satisfy the requirements of this exemption.

(ii) A participant enrolled in the equivalent of at least six credits of community college or pursuing an associate degree, four-year undergraduate program, or post-graduate masters or doctoral program shall satisfy the requirements of this exemption.

(iii) A participant enrolled in the equivalent of at least six credits in a trade school, college, or career center program that provides specialized skills training shall satisfy the requirements of this exemption.

(iv) The department shall review available electronic records on a monthly basis to identify an exemption under this subsection.

(v) If the department is unable to verify if a participant is engaged in secondary, postsecondary, or vocational education through a data review, a participant may provide documentation to meet an exemption under this subsection.

(vi) A participant satisfies this exemption if they are participating in-person or virtually and such participation may be inside or outside of the State of Montana.

(i) Participating in or exempt from the work requirements of the Temporary Assistance for Needy Families or Supplemental Nutrition Assistance Program.

(i) The department shall review available electronic records on a monthly basis to identify an exemption under this subsection.

(ii) If the department is unable to verify if a participant is exempt from or compliant with Temporary Assistance for Needy Families or Supplemental Nutrition Assistance Program work requirements through a data review, a participant may provide documentation to meet an exemption under this subsection.

(j) Under the supervision of the Department of Corrections, a county jail, or another entity as directed by the court, the Department of Corrections, or the Board of Pardons and Parole.

(i) The department shall review available electronic records on a monthly basis to identify an exemption under this subsection.

(ii) If the department is unable to verify if a participant is under the supervision of the Department of Corrections, a county jail, or another entity as directed by the court, a participant may provide documentation to meet an exemption under this subsection.

(k) Experiencing chronic homelessness.

(i) Experiencing chronic homelessness includes a participant who:

(A) lacks a fixed and regular nighttime residence;

(B) primarily resides at nighttime in a supervised shelter designed to provide temporary accommodations;

(D) resides in a location that is not designed for, or ordinarily used to, accommodating individuals for sleep, home, or meals, including but not limited to hallways, bus station, or lobbies.

(I) The department shall review available data on a monthly basis to identify an exemption under this subsection.

(II) If the department is unable to verify if a participant is chronically homeless through a data review, the participant may provide a certification to meet an exemption under this subsection.

(l) A victim of domestic violence as defined by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 42 U.S.C. 601, et seq.

(i) A victim of domestic violence shall include a participant who is a victim of physical, sexual, financial, mental, or emotional abuse by a person with whom the individual lives or has lived with in the last 24 months;

(ii) A participant may provide a certification to meet an exemption under this subsection.

(m) Living in an area with a high poverty designation which shall include a participant residing in a zip code area in Montana with a poverty rate greater than the U.S. poverty rate, for individuals in the age range of 18 to 64 years, as determined by the U.S. Census Bureau, estimated for the most current year available.

(i) The department shall review available data to identify an exemption under this subsection.

(ii) If the department is unable to verify if a participant is living in an area with a high poverty designation through a data review, the participant may provide documentation or certification to meet an exemption under this subsection.

(n) A member of an entity organized under 26 U.S.C. 501(d). A participant shall provide a certification to meet an exemption under this subsection.

(o) An American Indian or Alaska Native.

(i) The department shall review available data on a monthly basis to identify an exemption under this subsection.

(ii) If the department is unable to verify if a participant is a member of a federally recognized tribe through a data review, the participant may provide a certification to meet an exemption under this subsection.

(p) Otherwise exempt under federal law.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

NEW RULE VI HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: HARDSHIP EXEMPTIONS (1) A participant is exempt from community engagement activity participation requirements if the participant:

(a) is hospitalized or is caring for an immediate family member who has been hospitalized;

(i) the department shall review healthcare claims on a monthly basis for receipt of services that include an inpatient hospitalization to identify an exemption under this subsection;

(ii) if the department is unable to verify if a participant is hospitalized through a data review, a participant may provide a certification to meet the exemption under this subsection. A participant shall provide documentation of caring for a family member who has been hospitalized to meet the exemption under this subsection.

(b) has a serious illness or is caring for an immediate family member who has a serious illness. A participant shall provide documentation to meet an exemption under this subsection;

(c) is incapacitated or is caring for an immediate family member who is incapacitated. A participant shall provide documentation to meet an exemption under this subsection; or

(d) is experiencing a catastrophic event or hardship that prevents

the participant from complying with the community engagement activity participation requirements. A catastrophic event or hardships includes, but is not limited to, public health emergencies, natural or human-caused disasters, or an unforeseen personal crisis. A participant may request a temporary reporting exemption for an unforeseen personal hardship.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

NEW RULE VII HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: COVERAGE SUSPENSION (1) A participant who does not meet the age-based exclusion found in [New Rule II](2)(a) or an income, standard, or hardship exemption and fails to comply with the community engagement activity participation requirements will have a grace period of 180 days after the end of the reporting period to come into compliance.

(2) A participant who does not come into compliance within the 180-day grace period will have their coverage suspended.

(3) The suspension period will end 180 days after the date of suspension or upon determination by the department that the participant is:

(a) exempt from community engagement activity participation requirements;

(b) compliant with community engagement activity participation requirements for 30 days; or

(4) A participant who has their coverage reinstated during a suspension period shall be monitored by the department to ensure continued compliance.

(5) Upon the end of the suspension period, a participant will have coverage reinstated so long as the participant continues to be eligible for the HELP program.

(6) Prior written notice of an adverse action, which shall include information on how to come into compliance with community engagement activity participation requirements, will be sent to a participant informing them of the pending suspension of coverage.

(7) The department shall implement and enforce this rule only upon receiving approval from the U.S. Secretary of Health and Human Services of the department's 1115 waiver application filed August 30, 2019, and in accordance with the terms and conditions of the approval.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

NEW RULE VIII HELP ACT: COMMUNITY ENGAGEMENT ACTIVITY PARTICIPATION: AUDIT REQUIREMENTS (1) On a quarterly basis, the Quality Assurance Division shall prepare, plan, and execute an audit to test compliance with community engagement participation requirements from a random sample of participants subject to community engagement participation requirements.

(2) Participants who are found to be out of compliance with community engagement participation requirements will be notified in writing with information on how to become compliant. Participants who are out of compliance with community engagement reporting requirements are subject to the provisions of [NEW RULE VII].

(3) The Quality Assurance Division shall provide audit results to the Human and Community Services Division for program improvement and corrective action plans when appropriate.

(4) The Human and Community Services Division shall provide corrective action plans to the Quality Assurance Division, which shall use the plans along with audit results to assess risk and plan future quarterly audit cycles.

(5) The department shall implement and enforce this rule only upon receiving approval from the U.S. Secretary of Health and Human Services of the department's 1115 waiver application filed August 30, 2019, and in accordance with the terms and conditions of the approval.

AUTH: 53-2-215, 53-6-113, 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1308, 53-6-1309, MCA

4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

37.84.101 HELP ACT: PURPOSE (1) The purpose of this subchapter is to implement the Montana Health and Economic Livelihood Partnership Act (HELP Act) enacted by the 64th Montana Legislature, Ch. 368, L. 2015 MT, and House Bill 658 enacted by the 66th Montana Legislature, Ch. 21, L. 2019 MT.

AUTH: 53-2-215, 53-6-113, ~~53-6-1305,~~ 53-6-1309, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, ~~53-6-131~~, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1306, 53-6-1307, 53-6-1308, 53-6-1309, MCA

37.84.102 HELP ACT: DEFINITIONS (1) "Advanced practice registered nurse (APRN)" means a registered professional nurse who has completed educational requirements related to the nurse's specific practice role, in addition to basic nursing education, as specified by the Board of Nursing in ARM 24.159.1414.

~~(2) "Medicaid Benefit Plan" means a service plan available to Medicaid and HELP members that is equivalent to the Medicaid services described in ARM Title 37.~~

(3) remains the same but is renumbered (1).

~~(4) "Benefit year" means the state fiscal year from July 1 through June 30.~~

~~(5) "Benefits" means the services a person is eligible to receive. The HELP Program benefits are stated in the Medicaid Benefit Plan.~~

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

~~(7) "Cost Share" means the total of premium and copayment costs in relation to the delivery of health care services to the participant that are the responsibility of the participant to pay.~~

(2) "Certification" means attestation of compliance with or exemption from community engagement activities. A participant's certification may be included as part of the Medicaid application or provided separately with a dated signature electronically, telephonically, or by mail.

(3) "Community engagement activity" means any qualifying activity identified in [NEW RULE III] as counting towards the community engagement participation requirements outlined in [NEW RULE I].

(8) remains the same but is renumbered (4).

(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 member or the member's unborn child;~~

~~(b) serious impairment of bodily function; or~~

~~(c) serious dysfunction of any bodily organ or part.~~

~~(10) "Experimental, investigational, and unproven" means any drug, device, treatment, or procedure that meets any of the following criteria:~~

(a) prescription drugs not approved by the Food and Drug Administration (FDA) to be lawfully marketed for the proposed use, and it is not identified in the American Hospital Formulary Service, the AMA Drug Evaluation, or the Pharmacopoeia as an appropriate use;

(b) it is subject to review or approval by an institutional review board (meaning that a hospital considered it experimental and put it under review to meet federal regulations, or review is required and defined by federal regulations, particularly those of the FDA or U.S. Department of Health and Human Services);

~~(c) it is the subject of an ongoing clinical trial that meets the definition of a Phase 1, 2, or 3 clinical trial set forth in FDA regulations, regardless of whether it is an FDA trial;~~

~~(d) it has not been demonstrated through prevailing, peer-reviewed medical literature to be safe and effective for treating or diagnosing the condition or illness for which its use is proposed;~~

(e) the predominant opinion among experts as expressed in the published authoritative literature is that further research is necessary in order to define safety, toxicity, and effectiveness (or effectiveness compared with conventional alternatives), or that usage should be substantially confined to research settings;

~~(f) it is not a covered benefit under Medicare, as determined by the Centers for Medicare and Medicaid Services (CMS), because it is considered experimental, investigational, or unproven;~~

~~(g) it is experimental, investigational, unproven, or not a generally acceptable medical practice in the predominant opinion of independent experts utilized by the administrator of each plan; or~~

(h) it is not experimental or investigational in itself pursuant to the above and would not be medically necessary, but it is being provided in conjunction with the provision of a treatment, procedure, device, or drug that is experimental, investigational, or unproven.

~~(11) "Eyeglasses" mean corrective lens, frames, or both prescribed by an ophthalmologist or by an optometrist to improve vision.~~

(12) remains the same but is renumbered (5).

~~(13) "Federally Qualified Health Center (FQHC)" means an entity as defined in 42 USC 1396d(l)(2)(B) (2015) and 42 CFR, part 491, subpart A (2015).~~

~~(14)~~(6) "Health and Economic Livelihood Partnership (HELP) program" means a Medicaid coverage program for persons as authorized at Title 53, chapter 6, part 13, MCA, and Title 39, chapter 12, part 1, MCA, and as implemented in accordance with that part, 53-2-215, MCA, 42 U.S.C. 1315 (2015), 42 U.S.C. 1396d(y) (2015), and other applicable state and federal authorities for those persons who are eligible for the HELP Program as authorized under 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2015).

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

(16) "Indian Health Service (IHS)" means an agency within the U.S. Department of Health and Human Services that is responsible for providing federal health services to American Indians and Alaska Natives.

(17) "Inpatient hospital services" means services or supplies provided to the 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) be licensed or formally approved as an acute care or critical access hospital by the officially designated authority in the state where the institution is located; and~~

(b) except as otherwise permitted by federal law, meet the requirements for participation in Medicare as a hospital and have in effect a utilization review plan that meets the requirements of 42 CFR 482.30 (2015).

(7) "Medicaid alternative benefit plan" means covered services available to HELP members that is equivalent to the Medicaid services described in ARM Title 37.

(18) and (19) remain the same but are renumbered (8) and (9).

~~(20)~~(10) "Modified adjusted gross income (MAGI)" means income determined in accordance with 42 U.S.C. 1396a(e)(14) ~~(2015)~~ and 42 CFR 435.603~~(d)(4)~~ (2015).

(21) "Outpatient facility services" means preventive, diagnostic, therapeutic, rehabilitative, or palliative services provided to an outpatient by or under the direction of a physician, dentist, or other practitioner as permitted by federal law. ~~The facility must:~~

~~(a) be licensed or formally approved as an acute care or critical access hospital by the officially designated authority in the state where the institution is located; and~~

~~(b) except as otherwise permitted by federal law,~~ ~~meet~~ ~~the requirements for participation in Medicare as a hospital.~~

~~(22)~~(11) "Participant" means a member with a modified adjusted gross income ~~between 50% and~~ at or below 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~~ and enrolled in Medicaid under the HELP Act.

~~(23) "Participating provider" means a health care professional or facility that is participating in the Medicaid program.~~

~~(24) "Physician assistant (PA)" means a mid-level practitioner as defined in ARM 37.86.202.~~

(25) remains the same but is renumbered (12).

(26) "Preventative health care services" means routine health care that includes screenings, checkups, and patient counseling to prevent illnesses, disease, or other health problems, including secondary and tertiary preventive care.

(27) "Rural health clinic (RHC)" means a clinic determined by the U.S. Department of Health and Human Services to meet the rural health clinic conditions of certification specified in 42 U.S.C. 1396d(l)(1) (2015) and 42 CFR, part 491, subpart A (2015).

~~(28) "Tribal health services" means a service provided by a federally recognized American Indian Tribe or tribal organization under a P.L. 93-638 agreement.~~

(13) "Reporting period" means the required frequency for providing information to the department on community engagement activity participation. The reporting period is every six months.

(29) remains the same but is renumbered (14).

AUTH: 53-2-215, 53-6-113, ~~53-6-1305,~~ 53-6-1309, 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, 53-6-1308, 53-6-1309, MCA

37.84.103 HELP ACT: ELIGIBILITY FOR COVERAGE (1) An individual qualifies for Medicaid coverage under the HELP Program if the person is a Montana resident who meets the eligibility criteria for Medicaid ~~expansion~~ coverage as authorized at 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2015) and 42 C.F.R. 435.119.

(2) HELP Program coverage, as specified in (1), is inclusive of a person who is 19 through 64 years of age, has a modified adjusted gross income at or below 138% of FPL as appropriate to the household size, and is not:

(a) remains the same.

(b) entitled to or enrolled in Medicare; or

(c) ~~disabled as determined for purposes of social security; or~~ otherwise eligible for and enrolled in mandatory coverage under the State Plan.

~~(d)~~ ~~in one of the other categories for Medicaid coverage that are excluded from Medicaid expansion coverage by the language of the applicable federal authority.~~

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

IMP: 53-2-215, 53-6-101, ~~53-6-131~~, 53-6-1304, MCA

37.84.106 HELP ACT: BENEFITS (1) Coverage for a person in the HELP Program is provided through the Medicaid Alternative Benefit Plan.

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: PREMIUMS (1) remains the same.

(2) Except as provided in subsection (3), the premiums must:

(a) be set at 2% of a participant's income in the first two years the participant received coverage; and

(b) increase by 0.5% in each subsequent year that a participant receives coverage, up to a maximum of 4% of the participant's income.

(3) A participant who is exempt from the community engagement activity participation requirements as allowed under [NEW RULES IV, V, and VI] is exempt from the premium increases in (2)(b).

~~(2)~~(4) A participant, except as provided in ~~(4)~~(6) and ~~(5)~~(7), for whom an overdue premium is owed, will be disenrolled from coverage as provided in ~~(3)~~(5).

(3) through (7) remain the same but are renumbered (5) through (9).

(10) The department shall implement and enforce (2) and (3) only upon receiving approval from the U.S. Secretary of Health and Human Services of the department's 1115 waiver application filed August 30, 2019, and in accordance with the terms and conditions of the approval.

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

5. STATEMENT OF REASONABLE NECESSITY

The 2019 Montana Legislature directed the Department of Public Health and Human Services (department) to pursue changes to the Montana Health and Economic Livelihood Partnership (HELP) Act, a program providing Medicaid coverage to adults between the ages of 19 and 65 with a household income at or below 138 percent of the current federal poverty level. The program changes outlined in this proposed rulemaking notice include the adoption of community engagement activity participation requirements and increases to premiums, as provided in House Bill (HB) 658 of the 2019 legislative session.

Community Engagement Activity Participation Requirements

The proposed rule amendments and adoptions are necessary to:

(a) identify which HELP program participants are required to complete community engagement activity participation requirements;

(b) describe the methods of receiving exemptions from community engagement activity participation requirements;

(c) identify what qualifying activities may be counted toward the monthly requirement for community engagement activity participation;

(d) describe the methods of reporting community engagement activity participation;

(e) describe how the department will review electronic data sources to identify compliance with or exemption from community engagement activity participation;

(f) outline the impact to HELP program participants who do not report a sufficient level of community engagement activity participation; and

(g) describe how the department will audit community engagement activity participation compliance and exemptions to prevent fraud.

Increases to Premiums

The proposed amendments to ARM 37.84.107 are necessary to:

(a) identify the circumstances in which HELP program participants will experience an increase in their premiums;

(b) describe exemptions from the increase in premiums; and describe the premium increases over time.

Implementation and Enforcement

The HELP Program is authorized under section 1115 of the federal Social Security Act, which grants the Secretary of Health and Human Services (HHS) the authority to approve a state's request to waive compliance with provisions of federal Medicaid law. Significant changes to the program, such as the community engagement requirements and premium changes, require approval of a waiver amendment by the HHS secretary before a state may implement and enforce such changes.

The current HELP Program is set to expire on December 31, 2020. On August 30, 2019, the department submitted an 1115 waiver amendment and extension request to HHS, pursuant to Montana HB 658. As of the filing of this proposed rulemaking notice, the 1115 waiver amendment and extension have not been approved by HHS.

The rule proposal provides that the department will implement and enforce (2) and (3) of ARM 37.84.107 and New Rules I through VIII only upon receiving approval from the HHS secretary of the department's 1115 waiver request and in accordance with the terms and conditions of the approval.

Fiscal Impact

The adoption of this proposed rule notice is expected to impact the number of adults eligible for Medicaid. It is estimated that some program participants will not report or will fail to meet the community engagement activity requirement. A decrease in the number of Montanans with health care coverage will impact health care providers and other businesses.

	Number	Percent of Total
Program participants as of 9/1/2020	87,881*	100%
No reporting obligation; State determines through available administrative data that the enrollee is either exempt from or compliant with work/community engagement requirements	64,034	74%**
Has reporting obligation	22,846	26%**
Estimated number of participants who do not report or fail to meet the work requirement	3,515– 10,575	4 – 12%**
Per Member Per Month Cost	$660
Annual estimated impact to health care providers 10% state funds, 90% federal funds	($27,838,000 - $83,754,000)

*Source: DPHHS Medicaid Expansion Dashboard

**Source: Montana Section 1115 Medicaid Demonstration Amendment and Extension Application "Montana Health and Economic Livelihood Partnership (HELP) Demonstration Program"

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: Heidi Clark, 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., December 4, 2020.

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 email on October 20, 2020.

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

Principle 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	Monthly
Implement community engagement reporting requirements	Community engagement reporting participation	Community engagement reporting system	Monthly
Implement community engagement reporting requirements	Community engagement reporting exemptions	Community engagement reporting system	Monthly

/s/ Brenda K. Elias /s/ Sheila Hogan

Brenda K. Elias Sheila Hogan, Director

Rule Reviewer Public Health and Human Services

Certified to the Secretary of State October 27, 2020.