BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.97.132, 37.106.301, 37.106.302, 37.106.316, 37.106.401, 37.106.601, 37.106.704, 37.106.804, 37.106.1505, and 37.106.2311 and the repeal of ARM 37.106.605, 37.106.645, 37.106.1101, 37.106.1103, 37.106.1104, 37.106.1105, 37.106.1110, 37.106.1111, 37.106.1112, 37.106.1120, 37.106.1121, 37.106.1122, 37.106.1123, 37.106.1124, 37.106.1130, 37.106.1131, and 37.106.1132 pertaining to Health Care Facility Revisions

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO: All Concerned Persons

 

            1. On August 30, 2022, 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 amendment and repeal of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways:

            (a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/89044728391?pwd=a1lyRk56eFpBaE1pM0p0Rlg1ZzNOdz09, Meeting ID: 890 4472 8391, and Password: 603592; or

(b) Dial by Telephone: +1 646 558 8656, Meeting ID: 890 4472 8391, and Password: 603592. Find your local number: https://mt-gov.zoom.us/u/k2hvnkBFI.

 

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 August 16, 2022, to advise us of the nature of the accommodation that you need. Please contact Kassie Thompson, 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:

 

37.97.132 YOUTH CARE FACILITY (YCF): GENERAL REQUIREMENTS FOR ALL ADMINISTRATORS, STAFF, INTERNS, AND VOLUNTEERS (1)  and (2) remain the same.

            (3) In addition to the specific requirements set out in subchapters 1 and 2 of this chapter, all staff working in a YCF must:

            (a) be at least 21 19 years of age;

            (b) through (4) remain the same.

            (5) A "personal statement of health for licensure" form must be completed for each person subject to the requirements of this rule. The form must be submitted to the department upon hire and annually thereafter. The "personal statement of health for licensure" form is available from the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, Licensure Bureau, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953.

            (6) through (8) remain the same.

 

AUTH: 52-2-111, 52-2-603, 52-2-622, MCA

IMP: 52-2-111, 52-2-603, 52-2-622, MCA

 

37.106.301 DEFINITIONS The following definitions apply in this subchapter:

            (1) through (4) remain the same.

(5) "Observation bed or unit" means a bed or unit within a hospital, critical access hospital, or specialty hospital, or medical assistance facility that includes ongoing short-term treatment, assessment, and reassessment, and is not considered an inpatient bed. Patient stays in observation beds are limited to 48 hours during which time a decision must be made whether a patient requires further treatment as an inpatient.

            (6) and (7) remain the same.

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-104, 50-5-105, 50-5-106, 50-5-107, 50-5-108, 50-5-201, 50-5-202, 50-5-203, 50-5-204, 50-5-207, 50-5-208, 50-5-210, 50-5-211, 50-5-212, 50-5-225, 50-5-226, 50-5-227, 50-5-228, MCA

 

37.106.302 MINIMUM STANDARDS OF CONSTRUCTION: GENERAL REQUIREMENTS (1) remains the same.

            (2) The construction of, alteration, or addition to a health care facility shall comply with:

            (a) the 2010 2018 edition of the "American Institute for Architects (AIA) Guidelines for Design and Construction of Hospitals and Health Care Facilities," which the department adopts and incorporates by reference, which sets forth the minimum construction equipment requirements deemed necessary by the state Department of Public Health and Human Services to ensure health care facilities can be efficiently maintained and operated to furnish adequate care. Copies of the cited edition are available at the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, 2401 Colonial Drive, P.O. Box 202953, Helena, MT, 59620-2953; and at the following web site http://www.fgiguidelines.org/guidelines2010.php;

            (b) NFPA 101, "Life Safety Code", 2012 edition "NFPA 101: Life Safety Code Handbook," 2012 Edition published by the national fire protection association National Fire Protection Association, which the department adopts and incorporates by reference, which sets forth construction and operation requirements designed to protect against fire hazards. Copies of the cited edition are available at the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, 2401 Colonial Drive, P.O. Box 202953, Helena, MT, 59620-2953; and at the following web site http://www.nfpa.org/aboutthecodes/AboutTheCodes.asp?DocNum=101&cookie%5Ftest=1;

            (c) the 2009 "American National Standards Institute A117.1," which the department adopts and incorporates by reference, which sets forth standards for buildings and facilities providing accessibility and usability for physically handicapped individuals. Copies of the cited edition are available at the Department of Public Health and Human Services, Quality Assurance Division, Office of Inspector General 2401 Colonial Drive, P.O. Box 202953, Helena, MT, 59620-2953; and at the following web site http://webstore.ansi.org/RecordDetail.aspx?sku=ICC+A117.1-2009;

            (d) through (3) remain the same.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-201, 50-5-204, MCA

 

37.106.316 MINIMUM STANDARDS FOR ALL HEALTH CARE FACILITIES: SECURED CARE UNIT WITHIN A LICENSED LONG-TERM HEALTH CARE FACILITY (1) remains the same.

            (2) Special locking arrangements as specified in the 2012 Edition of the NFPA Life Safety Code "NFPA 101: Life Safety Code Handbook", 2012 Edition must be utilized, or an acceptable alternative is based on an equivalency for the automatically releasing, panic hardware required by section 7.2.1.6.1 of the Life Safety Code "NFPA 101: Life Safety Code Handbook", 2012 Edition. Where local authorities having jurisdiction allow, the following conditions apply to this alternative:

            (a) through (e) remain the same.

            (3) A secured care unit is considered a separate nursing unit and must have a nurse station located within the secured care unit. At a minimum, the nurse station must provide the following:

            (a) through (d) remain the same.

            (e) a nurse call system in compliance with table 2.1-4 as found in the 2010 2018 Edition of the AIA Guidelines for Design and Construction of Hospitals and Health Care Facilities.

            (4) through (8) remain the same.

            (9) A secured care unit must provide for a nourishment station. The minimum standards for a nourishment station as indicated in section 2.5-2.2.6.7 of the 2010 2018 Edition of the AIA Guidelines for Design and Construction of Hospitals and Health care facilities Care Facilities include:

            (a) through (10) remain the same.

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-204, MCA

 

37.106.401 MINIMUM STANDARDS FOR A HOSPITAL: GENERAL REQUIREMENTS (1) A hospital shall comply with the Conditions of Participation for Hospitals in 42 CFR 482.2 through 482.62, revised as of October 1, 2002 subchapter G part 482.

            (2) If a hospital provides skilled nursing care or intermediate nursing care, as those levels of care are defined in 50-5-101, MCA, the hospital shall comply with the skilled nursing facility requirements listed in 42 CFR 482.66(b) revised as of October 1, 2002 subchapter G part 483.

            (3) The department hereby adopts and incorporates by reference 42 CFR 482.2 through 482.62 and 42 CFR 482.66(b), revised as of October 1, 2002 subchapter G part 482 and 42 CFR subchapter G part 483.  42 CFR 482.2 through 482.62 subchapter G part 482 sets forth the conditions of participation a hospital must meet to participate in the Medicare Program. 42 CFR 482.66(b) subchapter G part 483 sets forth the skilled nursing facility requirements a hospital provider of long term care services must meet to participate in the Medicare Program. A copy of the regulations may be obtained from the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953.

 

AUTH: 50-5-103, 50-5-404, MCA

IMP: 50-5-103, 50-5-204, 50-5-404, MCA

 

37.106.601 MINIMUM STANDARDS FOR A SKILLED AND SKILLED/ INTERMEDIATE CARE FACILITY: GENERAL REQUIREMENTS (1) A skilled nursing care facility shall comply with the Conditions of Participation for Skilled Nursing Facilities as set forth in 42 CFR 405, Subpart K subchapter G part 483. An intermediate care facility shall comply with the requirements set forth in 42 CFR 442, Subparts E and F subchapter G subpart I. A copy of the cited rules requirements is available at may be obtained from the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953.

 

AUTH: 50-5-103, 50-5-404, MCA

IMP: 50-5-103, 50-5-204, 50-5-404, MCA

 

37.106.704 MINIMUM STANDARDS FOR A CRITICAL ACCESS HOSPITAL (CAH) (1) A critical access hospital must comply with the conditions of participation for critical access hospitals under 42 CFR 485 Subpart F, updated through May 2005. The department adopts and incorporates by reference 42 CFR 485 Subpart F, updated through May 2005. A copy of the cited requirements is available may be obtained from the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953.

            (2) through (6) remain the same.

 

AUTH: 50-5-233, MCA

IMP: 50-5-233, MCA

 

37.106.804 GENERAL REQUIREMENTS (1) A specialty hospital must comply with the requirements under 42 CFR 482.2 through 482.62 subchapter G subpart E. The department adopts and incorporates by reference 42 CFR 482.2 through 482.62 as revised on May 16, 2012 subchapter G subpart E, which sets forth the Centers for Medicare and Medicaid Services Conditions of Participation for Hospitals as the standard for the operation of specialty hospitals in Montana. A copy of 42 CFR 482.2 through 482.62 the cited requirements may be obtained from the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, Licensure Bureau, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953.

 

AUTH: 50-5-103, 50-5-545, MCA

IMP: 50-5-103, 50-5-245, MCA

 

37.106.1505 MINIMUM STANDARDS FOR A HOME HEALTH AGENCY

            (1) A home health agency shall comply with the Conditions of Participation for Home Health Agencies as set forth in 42 CFR 405, Subpart L subchapter G part 484. A copy of the cited rule requirements is available at may be obtained from the Department of Public Health and Human Services, Quality Assurance Division Office of Inspector General, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953.

 

AUTH: 50-5-103, 50-5-404, MCA

IMP: 50-5-103, 50-5-204, 50-5-404, MCA

 

37.106.2311 MINIMUM STANDARDS FOR A RESIDENTIAL HOSPICE FACILITY (1) through (4) remain the same.

            (5) A residential hospice facility must meet the life-safety requirements set forth in chapters 32 and 33, Life Safety Code Handbook, National Fire Protection Association, 2000 Edition, the 2012 NFPA 101 Life Safety Code for residential board and care occupancies.

            (6) through (11) remain the same.

            (12) The department adopts and incorporates by reference chapters 32 and 33 of the Life Safety Code Hand­book, National Fire Protection Association, 2000 Edition, the 2012 NFPA 101 Life Safety Code which establishes building construction requirements for residential board and care occupancies. Copies of the above standards may be obtained from the National Fire Protection Association, 1 Batterymarch Park, Quincy, MD 02169, or by using their web site, www.nfpa.org.catalogue.

            (13) remains the same.

 

AUTH: 50-5-103, 50-5-210, MCA

IMP: 50-5-210, MCA

 

4. The department proposes to repeal the following rules:

 

37.106.605 MINIMUM STANDARDS FOR A SKILLED NURSING CARE FACILITY FOR EACH 24 HOUR PERIOD: STAFFING

 

AUTH: 50-5-103, 50-5-404, MCA

IMP: 50-5-103, 50-5-204, 50-5-404, MCA

 

37.106.645 MINIMUM STANDARDS FOR AN INTERMEDIATE DEVELOPMENTAL DISABILITY CARE FACILITY

 

AUTH: 50-5-103, MCA

IMP: 50-5-103, 50-5-201, 50-5-204, MCA

 

37.106.1101 MEDICAL ASSISTANCE FACILITIES: DEFINITIONS

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1103 MEDICAL ASSISTANCE FACILITIES: ORGANIZATIONAL STRUCTURE; GOVERNING BODY

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1104 MEDICAL ASSISTANCE FACILITIES: MEDICAL STAFF

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1105 MEDICAL ASSISTANCE FACILITIES: MEDICAL RECORDS

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1110 MEDICAL ASSISTANCE FACILITIES: QUALITY ASSURANCE

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1111 MEDICAL ASSISTANCE FACILITIES: UTILIZATION REVIEW

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1112 MEDICAL ASSISTANCE FACILITIES: INFECTION CONTROL

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1120 MEDICAL ASSISTANCE FACILITIES: NURSING SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1121 MEDICAL ASSISTANCE FACILITIES: PHARMACEUTICAL SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1122 MEDICAL ASSISTANCE FACILITIES: RADIOLOGIC SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1123 MEDICAL ASSISTANCE FACILITIES: LABORATORY SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1124 MEDICAL ASSISTANCE FACILITIES: FOOD AND DIETETIC SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1130 MEDICAL ASSISTANCE FACILITIES: OUTPATIENT SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1131 MEDICAL ASSISTANCE FACILITIES: EMERGENCY SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

37.106.1132 MEDICAL ASSISTANCE FACILITIES: THIRD-PARTY SERVICES

 

AUTH: 50-5-103, MCA

IMP: 50-5-101, 50-5-103, 50-5-204, MCA

 

            5. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) proposes to update the Health Care Facilities chapter to update construction guidelines to a current edition, to update subchapters, parts, and subparts of the Code of Federal Regulation (CFR) references to current subchapters, parts, and subparts, and to update Quality Assurance Division to its current title of Office of Inspector General.

 

The department proposes to repeal ARM 37.106.605, 37.106.645, and 37.106.1101 through 37.106.1132 as these rules either conflict directly with the CFR, or are rules set forth for facility types that no longer exist as health care facility types.

 

ARM 37.97.132

The department proposes to change this rule to move the 21-year-old age requirement for staff in the Youth Care Facilities to 19 in an effort to assist with staffing.

 

ARM 37.106.301

The department proposes a change to this rule to remove medical assistance facility from the definitions as it is no longer a health care facility type.

 

ARM 37.106.302

The department proposes a change to this rule to update the American Institute for Architects (AIA) Guidelines for Design and Construction of Hospitals and Health Care Facilities to a current edition. The department further proposes change to this rule to change the description of the NFPA edition that is required to read consistently in the rules it is mentioned in. The department also proposes to remove Quality Assurance Division to its current title of Office of Inspector General, and to remove inaccurate links to resource materials.

 

ARM 37.106.316

The department proposes a change to this rule to change the description of the NFPA edition that is required to read consistently in the rules it is mentioned in. The department proposes a change to this rule to update the AIA Guidelines for Design and Construction of Hospitals and Health Care Facilities to a current edition.

 

ARM 37.106.401

The department proposes a change to this rule to update the subchapters of the CFR reference to the current subchapters specific to hospitals. The department proposes to remove Quality Assurance Division to its current title of Office of Inspector General.

 

ARM 37.106.601

The department proposes a change to this rule to update the subchapters and subparts of the CFR reference to the current subchapters and subpart specific to Skilled and Skilled/Intermediate Care Facilities. The department proposes to remove Quality Assurance Division to its current title of Office of Inspector General.

 

ARM 37.106.605

The department proposes to repeal this rule as it conflicts with the requirements set forth in the CFR for Skilled Nursing Facilities.

 

ARM 37.106.645

The department proposes to repeal this rule as this facility type is no longer a health care facility and is not regulated by the CFR.

 

ARM 37.106.704

The department proposes a change to this rule to remove the requirement to refer to the subchapter of the CFR that was updated up to 2005. The department proposes to remove Quality Assurance Division to its current title of Office of Inspector General.

 

ARM 37.106.804

The department proposes a change to this rule to update the subchapters and subparts of the CFR reference to the current subchapters and subparts relevant to specialty hospitals. The department proposes to remove Quality Assurance Division to its current title of Office of Inspector General.

 

ARM 37.106.1505

The department proposes a change to this rule to update the subchapters and parts of the CFR reference to the current subchapters and subparts relevant to home health agencies. The department proposes to remove Quality Assurance Division to its current title of Office of Inspector General.

 

ARM 37.106.2311

The department proposes a change to this rule to update the adherence to the NFPA to the current edition.

 

ARM 37.106.1101, 37.106.1103, 37.106.1104, 37.106.1105, 37.106.1110, 37.106.1111, 37.106.1112, 37.106.1120, 37.106.1121, 37.106.11.22, 37.106.1123, 37.106.1124, 37.106.1130, 37.106.1131, and 37.106.1132

The department proposes to repeal these rules as this facility type is no longer utilized. This facility type existed prior to the creation of Critical Access Hospitals (CAHs), and no longer would be available for licensure as they would meet the criteria for CAHs.

 

Fiscal Impact

 

There is no fiscal impact to providers with these changes: Referencing the same CFR but a different section does not cost a facility money. Updating references to the Office of Inspector General has no impact on facilities. Repealing rules for facilities that there are currently none of has no impact. Repealing staffing ratio requirements for Nursing Facilities has no negative impact but may result in financial gain. The updated 2018 AIA Guideline manual may result in cost if a facility desires to obtain a copy of the manual; however, this is more commonly acquired by hired architects and construction consultants.

 

6. The proposed rule changes are intended to be effective upon the day after the date of publication of the adoption notice.

 

7. 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:  Kassie Thompson, 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., September 2, 2022.

 

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

 

9. 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 7 above or may be made by completing a request form at any rules hearing held by the department.

 

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

 

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

 

 

 

/s/ FLINT MURFITT                                     /s/ CHARLES T. BRERETON                   

Flint Murfitt                                                    Charles T. Brereton, Director

Rule Reviewer                                              Department of Public Health and Human Services

 

 

Certified to the Secretary of State July 26, 2022.