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 Rule I and amendment of ARM 37.40.1421 pertaining to all Medicaid provider fee schedules and home and community-based services (HCBS) for the elderly and people with physical disabilities

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

TO: All Concerned Persons

1. On June 15, 2011, at 12:00 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption and 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 Department of Public Health and Human Services no later than 5:00 p.m. on June 6, 2011, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].

3. The rule as proposed to be adopted provides as follows:

New Rule I Effective dates of Montana Medicaid Provider Fee Schedules (1) The Montana Medicaid program establishes provider reimbursement rates for medically necessary, covered services based on the estimated demand for services and the legislative appropriation and federal matching funds. Provider reimbursement rates are stated in fee schedules for covered services applicable to the identified Medicaid program. New rates are established by revising the identified program's fee schedule and adopting the new fees as of the stated effective date of the schedule. Copies of the department's current fee schedules are posted at http://medicaidprovider.hhs.mt.gov and 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. A description of the method for setting the reimbursement rate and the administrative rules applicable to the covered service is published in the chapter or subchapter of this title regarding that service.

(2) The department adopts and incorporates by reference, the fee schedule for the following programs on the date stated:

(a) home and community-based services for elderly and physically disabled persons fee schedule, as provided in ARM 37.40.1421, is effective August 1, 2011.

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

IMP: 53-2-201, 53-6-101, 53-6-402, MCA

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

37.40.1421 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: COST OF ~~PLAN OF CARE~~ SERVICE PLAN (1) In order to maintain the program cost within the appropriated monies, the cost of ~~plans of care~~ service plans ~~for recipients~~ may be limited by the department collectively and individually.

(2) remains the same.

(3) The total cost of services provided under a ~~plan of care~~ service plan ~~to a recipient~~ for an individual may exceed the maximum amount set by the department if authorized by the department based on the department's determination that one or more of the following circumstances is applicable:

(a) through (d) remain the same.

(4) The cost of services to be provided under a ~~plan of care~~ service plan is determined prior to implementation of the proposed plan of care and may be revised as necessary after implementation.

(5) A cost determination for the services provided under a ~~plan of care~~ service plan may be made at any time that there is a significant revision in the ~~plan of care~~ service plan.

(6) The provider reimbursement rate for a covered service for home and community-based services for elderly and physically disabled persons, except as otherwise provided in ARM 37.40.1415, is stated in the department's fee schedule adopted and effective at [New Rule I]. These fees are calculated based on:

(a) the biennial legislative appropriation; and

(b) the estimated demand for covered services during the biennium.

AUTH: 53-2-201, 53-6-101, 53‑6‑113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53‑6‑402, MCA

5. Statement of Reasonable Necessity

The Department of Public Health and Human Services (the department) administers the Montana Medicaid program to provide health care to Montana's qualified low income and disabled residents. It is a public assistance program paid for with state and federal funds appropriated to pay health care providers for the covered medical services they deliver to Medicaid clients. The Legislature delegates authority to the department to set the reimbursement rates Montana pays Medicaid providers for Medicaid clients' covered services. See 53-6-106(8) and 53-5-113, MCA.

Title 19 of the Social Security Act (42 U.S.C. 1396a, et seq.), provides for waiver and demonstration authority to states to allow flexibility in the operation of state Medicaid programs. Section 1395(c)of the Act (42 U.S.C. 1396n (c)) gives the Secretary of the Department of Health and Human Service authority to waive certain provisions of Title 19 to allow long-term care services to be delivered in community settings as an alternative to providing comprehensive long-term services in institutional settings. This waiver authority is referred to as the Home and Community-Based Services (HCBS) waiver. Montana's HCBS waiver for the elderly and people with physical disabilities will be renewed July 1, 2011.

New Rule I

The department is revising its process of changing provider reimbursement rates in administrative rule. It intends to adopt fee schedules effective as of a stated date in one rule. This is not a substantive change in the rate setting process. It is a procedural change to simplify notices of rate changes and to compile a centralized list of fees schedules that a reader can reference. This change is reasonably necessary to improve public access to provider rates, make the Medicaid rate setting process and the rates established by rule easier to understand, and reduce the costs associated with publication of revised provider rates. The department has considered the alternative of continuing the current process for publication of rate changes and intends to evaluate the efficacy of the current process and this change before applying this revision to all rate rules.

The department has determined these rates are consistent with efficiency, economy, and quality of care. These rates are sufficient to enlist enough providers so that care and services under the Montana Medicaid program are available to the extent that such care and services are available to the general population in the geographic area.

ARM 37.40.1421

The department will be proposing future revisions to Title 37, chapter 40. One change will be to change the term "plan of care" to "service plan". This stylistic change is made in this rule for consistency.

This rule is also being amended to establish a published fee schedule for this program effective August 31, 2011.

Fiscal Impact

Medicaid rates for home and community-based waiver services depend on the funding levels authorized by the Montana Legislature.

The one-time-only 2% provider rate increase that was provided in Fiscal Year (FY) 2010 and sustained in 2011, has not been restored for FY 2012 under House Bill 2 (HB 2) was passed by the 62nd Montana Legislature. The total fiscal impact for the 2% provider rate reduction is $720,927 of total funding.

Additionally, there will be reductions in one-time-only funding that was appropriated for direct care worker wages of $506,856 in total funds, as well as targeted assisted living facility rate increases provided in the 2010/2011 biennium with one time only funding of $1,041,695 that were not restored in HB 2.

Expansion of services for 80 new waiver slots/clients that were funded with one-time-only money in the 2010/2011 biennium, was restored by the 62nd Legislature so these services can be continued in FY 2012. Total replacement funding to continue these services under the waiver budget was $2,000,000.

The Montana Legislature has provided the following changes in funding for the Home and Community-Based Waiver Program.

Reductions in HB 2 related to a 2.2% reduction as part of 17-7-111, MCA (5%) reduction plan was adopted by the Legislature in HB 2. The total funding related to this reduction is $704,088.

Additional funding of $2,500,000 was included in HB 2 to fund 100 new waiver slots to fund Medicaid services in the following order of priority:

1. Plans of care for individuals moved from nursing homes into community settings under the HCBS program;

2. Maintaining individuals in assisted living facilities and others in the community who are at immediate risk of nursing home placement; and

3. Medicaid nursing home bed days in the event bed days are underfunded.

The Legislature in HB 2 also provided a new allotment of funding for direct care worker wages. The total funding available for FY 2012 will be $276,665 and will be distributed in the same manner as previous wage distributions have been implemented.

All providers will be affected by rate reductions. There are 506 providers that participate in the HCBS waiver program and over 2,300 individuals that use Medicaid funded waiver services.

6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., June 23, 2011.

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. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

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

/s/ Cary B. Lund /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State May 16, 2011