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 XII, amendment of 37.40.1406, 37.40.1407, 37.40.1408, 37.40.1415, 37.40.1420, 37.40.1426, 37.40.1430, 37.40.1435, 37.40.1438, 37.40.1446, 37.40.1448, 37.40.1449, 37.40.1451, 37.40.1452, 37.40.1465, 37.40.1488, and repeal of 37.40.1437, 37.40.1464, 37.40.1466, and 37.40.1467 pertaining to 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, AMENDMENT, AND

REPEAL

TO: All Concerned Persons

1. On July 13, 2011 at 2:00 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, amendment, and repeal 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 July 5, 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 rules as proposed to be adopted provide as follows:

NEW RULE I HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSON: DEFINITIONS (1) "Adult residential care" means a residential habilitation option for consumers residing in an adult foster home, a residential hospice, or an assisted living facility.

(2) "Case management" means a service that provides the planning for, arranging for, implementation of, and monitoring of the delivery of services available through the program to a consumer.

(3) "Community supports" means services that are inclusive of personal assistant services (Attendant PAS and Socialization/Supervision PAS), homemaker, chore, transportation, and respite type services.

(4) "Community transitions services" means nonrecurring set-up expenses for individuals who are transitioning from an institutional or other provider-operated living arrangement to a living arrangement in a private residence where the person is directly responsible for his or her own living expenses.

(5) "Consultative clinical and therapeutic services" means services that assist unpaid and/or paid caregivers in carrying out individual service plans and are necessary to improve the individual's independence and inclusion in the community.

(6) "Consumer-directed goods and services" means services, supports, supplies, or goods not otherwise provided through this waiver or the Medicaid state plan.

(7) "Family training and support" means a service that provides training to families and others who work or play with a child with a disability.

(8) "Financial management services" means services provided by an individual called a financial manager who provides finance, employer, payroll, and related functions for the consumer or personal representative.

(9) "Habilitation" means the provision of intervention services designed for assisting a consumer to acquire, retain, and improve the self-help, socialization, and adaptive skills necessary to reside successfully at home and in the community.

(10) "Health and wellness" means services that assist consumers in acquiring, retaining, and improving self-help, socialization, and adaptive skills to reside successfully in the community.

(11) "Homemaker chore" means services provided for individuals who are unable to manage their own home or when the consumer, normally responsible for homemaking, is absent.

(12) "Independence advisor services" means services that provide an array of consumer-directed support activities to ensure the ability of consumers to direct their care successfully.

(13) "Nonmedical transportation" means the provision to a consumer of transportation through common carrier or private vehicle for access to social or other nonmedical activities.

(14) "Pain and symptom management" means a service that allows the provision of traditional and nontraditional methods of pain management.

(15) "Participant direction" means an option available to individuals who elect to direct their own care and that participants, or their representatives, have decision-making authority over certain services and take direct responsibility to manage their services with the assistance of a system of available support.

(16) "Personal assistant services" (PAS) is defined at 53-6-145, MCA and includes attendant PAS and socialization/supervision PAS.

(17) "Post-acute rehabilitation services" means the provision of therapeutic intervention to a consumer with a brain injury or other related disability in a residential or nonresidential setting.

(18) "Respite care" means the provision of supportive care to a consumer to relieve those unpaid persons normally caring for the consumer from that responsibility.

(19) "Senior companion" means services directed at providing companionship and assistance.

(20) "Service plans" means a written plan of supports and interventions based on an assessment of the status and needs of a consumer.

(21) "Specialized child care for medically fragile children" means the provision of day care, respite care, and other direct and supportive care to a consumer under 18 years of age who is medically fragile and who, due to medical and other needs, cannot be served through traditional child care settings.

(22) "Specially trained attendant care" means an option under personal assistance that is the provision of supportive services to a consumer residing in their own residence.

(23) "Supported living" means the provision of supportive services to a recipient residing in an individual residence or in a group living situation. It is a comprehensive service designed to support a person with brain injury or other severe disability.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE II HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: COMMUNITY TRANSITION SERVICES, REQUIREMENTS (1) Community transition services is defined in [New Rule I].

(2) Allowable expenses are those necessary to enable a person to establish a basic household and may include:

(a) usual and customary security deposits that are required to obtain a lease on an apartment or home;

(b) essential household furnishings required, including furniture, window coverings, food preparation items, and bed/bath linens;

(d) usual and customary setup fees or deposits for utility or service access, including telephone, electricity, heating, and water;

(e) activities to assess need, arrange for and procure resources.

(3) Community transition services do not include monthly rental or mortgage expenses, food, regular utility charges, household appliances, or items that are intended for purely diversion/recreational purposes.

(4) Refunded security deposits must be paid to the department.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE III HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: FINANCIAL MANAGEMENT, REQUIREMENTS (1) Financial management (FM) service is defined in [New Rule I].

(2) The financial manager acts as the common law employer (employer of record) and the consumer acts as the managing employer. Since the financial manager is the employer, this entity is responsible for all employee-related expenses and liability risks that may be incurred if a worker's compensation or unemployment claim is filed.

(3) On behalf of the consumer/personal representative the financial manager will:

(a) accept referral from the consumer/personal representative to process the employment packet;

(b) prepare and distribute an application package of information that is clear and easy for the potential employee to understand and follow;

(c) provide needed counseling and technical assistance regarding the role of the FM to consumer, their personal representatives, and others;

(d) process employment application package and documentation for prospective individual to be employed (as agency employee);

(e) complete criminal background checks on prospective consumer-referred worker and maintain results on file, if requested by the consumer;

(f) establish and maintain record for each individual employed and process all employment records;

(g) withhold, file, and deposit Federal Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA), and State Unemployment Tax Act (SUTA) taxes in accordance with Federal Internal Revenue Service (IRS), Federal Department of Labor (DOL), and state rules (if applicable);

(h) process all judgments, garnishments, tax levies or any related holds on a consumer's worker as may be required by local, state, or federal laws;

(i) generate and distribute IRS W-2s and 1099s, wage and tax statements and related documentation annually to all member-employed providers who meet the statutory threshold earnings, amounts during the tax year by January 31st;

(j) withhold, file, and deposit federal and state income taxes (if applicable) in accordance with federal IRS and state Department of Revenue Services rules and regulation;

(k) administer benefits for member-employed providers (if applicable);

(l) generate payroll checks in a timely and accurate manner, as approved in the consumer's self-direct spending plan, and in compliance with all federal and state regulations;

(m) develop a method of payment of invoices and monitoring expenditures against the self-direct spending plan for each consumer;

(n) receive, review, and process all invoices from individuals, vendors, or agencies providing consumer-directed goods or services as approved in the consumer's self-direct spending plan authorized by the division;

(o) process and pay non-labor-related invoices;

(p) generate utilization reports along with payroll reflecting accurate balances for a consumer/personal representative, independence advisor, the regional program officer (RPO), and the division;

(q) establish and maintain all consumer records with confidentiality, accuracy, and appropriate safeguards;

(r) respond to calls for consumer or their personal representatives and employees regarding issues such as withholdings and net payments, lost or late checks, reports, and other documentation;

(s) file claims through the Medicaid Management Information System (MMIS) for consumer-directed goods and services and prepare checks for individually hired workers; and

(t) generate service management and statistical information and reports.

(4) This is a mandatory service for consumer-direction.

(5) The fiscal manager provider must be certified by the department to provide the service.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE IV HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: INDEPENDENCE ADVISOR, REQUIREMENTS (1) Independence advisor (IA) is defined in [New Rule I].

(2) The IA may help consumers or their personal representatives:

(a) learn how to successfully direct services;

(b) develop a service plan;

(c) access waiver services, Medicaid State Plan services, and other needed medical, social, or educational services regardless of funding source;

(d) develop, implement, and monitor a monthly spending plan;

(e) identify risks and develop a plan to manage those risks;

(f) develop an individualized emergency backup plan;

(g) negotiate payments for necessary and allowable goods and services;

(h) work with the financial manager (FM) to track expenditures;

(i) monitor the provision of the services to ensure the consumer's health and welfare; and

(j) coordinate with the FM to ensure that consumers or personal representatives budget appropriately to meet their needs as defined in the service plan.

(3) This is a mandatory service for consumer-direction.

(4) An IA must be certified by the department to provide the service.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE V HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: CONSUMER-DIRECTED GOODS AND SERVICES, REQUIREMENTS (1) Consumer directed goods and services is defined in [New Rule I].

(2) These items could include the purchase of appliances and vans, with or without modifications.

(3) These items or services must address an identified need in the consumer's service plan and must meet any or all of the following requirements:

(a) decrease the need for other Medicaid services;

(b) promote inclusion in the community;

(d) fulfill a medical, social, or functional need based on unique cultural approaches; or

(e) increase the person's safety in the community or home environment.

(4) Goods and services purchased must meet the following criteria:

(a) meet the consumer's identified needs and outcomes as outlined in their service plan;

(b) collectively must provide an alternative to institutional placement;

(d) be of sole benefit to the consumer.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE VI HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: PAIN AND SYMPTOM MANAGEMENT, REQUIREMENTS (1) Pain and symptom management is defined in [New Rule I].

(2) Treatments include but are not limited to:

(a) acupuncture;

(b) reflexology;

(d) craniosacral therapy;

(e) hyperbaric oxygen therapy;

(f) mind-body therapies such as hypnosis and biofeedback;

(g) pain mitigation counseling/coaching;

(h) chiropractic therapy; and

(i) nursing services by a nurse specializing the pain and symptom management.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE VII HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: FAMILY TRAINING AND SUPPORT, REQUIREMENTS (1) Family training and support is defined in [New Rule I]. Services include:

(a) general orientation about the child's disability; and

(b) training specific to the needs of the child and his or her family on how to best meet the child's needs.

(2) Providers of this service may:

(a) serve as consultants to families in terms of developmental stages and teaching activities that families can engage in with their child that help in the developmental process;

(b) collaborate with case managers and families to develop strategies for environmental modifications or adaptations that would be beneficial to the child;

(c) periodically assess the child, including conducting developmental assessments, in order to discover unmet needs, determine progress or lack of progress, and identify areas of strength that can be emphasized;

(d) provide emotional support to families, including active listening, problem solving;

(e) recommend resources within the community that could offer support;

(f) advocate for the family; and

(g) assist the family with transition and referral to special education.

(3) The provider of this service must be an employee of a Child and Family Services provider under contract with the Developmental Services Division.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE VIII HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: HOMEMAKER CHORE, REQUIREMENTS (1) Homemaker chore services is defined in [New Rule I]. Services include:

(a) extensive cleaning beyond the scope of general household cleaning; and

(b) heavy cleaning such as:

(i) washing windows and walls;

(ii) yard care;

(iii) walkway maintenance;

(iv) minor home repairs; and

(v) firewood cutting, splitting, and stacking.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE IX HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: COMMUNITY SUPPORTS SERVICES, REQUIREMENTS (1) Community supports services is defined in [New Rule I]. These services will be offered as a group only under the consumer-directed option. The personal assistance services normally provided under the Medicaid State Plan will be provided as an integral part of this service. Individuals performing the duties are recruited, selected, hired, and managed by the consumer.

(2) Services include assisting the consumer with:

(a) basic living skills such as eating, drinking, toileting, personal hygiene, and dressing;

(b) transferring and other activities of daily living;

(d) maintaining health and personal safety;

(e) carrying out household chores and preparation with meals and snacks;

(f) accessing and using transportation (with providers possessing a valid Montana driver's license);

(g) participating in community experiences and activities;

(h) relieving unpaid caregivers at those times when such relief is in the best interest of the consumer or caregiver; and

(i) receiving day care for medically fragile children who, because of their disability, cannot be served in traditional child care settings.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE X HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: HEALTH AND WELLNESS, REQUIREMENTS (1) Health and wellness services is defined in [New Rule I].

(2) The service includes adaptive health, wellness, and therapeutic recreational services such as:

(a) hippotherapy;

(b) hydrotherapy;

(d) access to fitness and exercise facilities.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE XI HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: SENIOR COMPANION SERVICES, REQUIREMENTS (1) Senior companion services is defined in [New Rule I].

(2) The service includes:

(a) respite;

(b) socialization;

(b) homemaking.

(3) Providers of this service are Senior Companion Programs that are a part of Senior Corps.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

NEW RULE XII HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: PARTICIPATION DIRECTION (1) Participant direction is defined in [New Rule I].

(2) Services may be directed by:

(a) an adult who has the capacity to self-direct;

(b) a legal representative of the member, including a parent, spouse, or legal guardian; or

(3) The person directing the services must:

(a) be 18 years of age or older;

(b) successfully complete required training for self-direction; and

(c ) if acting in the capacity of a representative demonstrate understanding of the consumer's needs and preferences.

AUTH: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-402, MCA

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

37.40.1406 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: SERVICES (1) The services available through the program are limited to those specified in this rule.

(2) The department may determine the particular services of the program to make available to a recipient based on, but not limited to, the following criteria:

(a) the recipient's need for a service generally and specifically;

(b) the availability of a specific service through the program and any ancillary service necessary to meet the recipient's needs;

(c) the availability otherwise of alternative public and private resources and services to meet the recipient's need for the service;

(d) the recipient's risk of significant harm or of death if not in receipt of the service;

(e) the likelihood of placement into a more restrictive setting if not in receipt of the service; or

(f) the financial costs for and other impacts on the program arising out of the delivery of the service to the person.

(3) A person enrolled in the program may be denied a particular service available through the program that the person desires to receive or is currently receiving.

(4) Bases for denying a service to a person include, but are not limited to:

(a) the person requires more supervision than the service can provide;

(b) the person's needs, inclusive of health, can no longer be effectively or appropriately met by the service;

(c) access to the service, even with reasonable accommodation, is precluded by the person's health or other circumstances;

(d) a necessary ancillary service is no longer available; and

(e) the financial costs for and other impacts on the program arising out of the delivery of the service to the person.

(5) The department may make program services for persons with intensive needs available to a recipient whom it determines, based on past medical history and current medical diagnosis, would otherwise require on a long-term basis the level of care of an inpatient hospital or a rehabilitation service setting.

(6) The following services, as defined in these rules, may be provided through the program:

(a) ~~case management services~~ adult day health;

(b) ~~homemaking~~ adult residential care;

(d) ~~adult day health~~ community supports services;

(e) ~~habilitation~~ community transition services;

(f) ~~respite care~~ consultative clinical and therapeutic services;

(g) ~~personal emergency response systems~~ consumer-directed goods and services;

(h) ~~nutrition services~~ day habilitation;

(i) ~~environmental accessibility adaptations~~ dietetic services;

(j) ~~nonmedical transportation~~ environmental accessibility adaptations;

(k) ~~outpatient physical therapy~~ family training and support;

(l) ~~outpatient occupational therapy~~ financial management;

(m) ~~speech pathology and audiology~~ habilitation;

(n) ~~respiratory therapy~~ health and wellness;

(o) ~~nursing~~ homemaker chore services;

(p) ~~psycho-social consultation~~ homemaker; ~~and~~

(q) ~~dietetic services~~ independence advisor;

(r) ~~adult residential care~~ nonmedical transportation;

(s) ~~specially trained attendant care~~ nursing;

(t) ~~chemical dependency counseling~~ nutrition services;

(u) ~~cognitive rehabilitation~~ occupational therapy;

(v) ~~comprehensive day treatment~~ pain and symptom management;

(w) ~~community residential rehabilitation~~ personal assistance;

(x) ~~supported living~~ personal emergency response systems;

(y) ~~specialized medical equipment and supplies~~ physical therapy;

(z) ~~specialized child care for children with AIDS~~ post-acute rehabilitation services; ~~and~~

(aa) ~~behavioral programming.~~ respiratory therapy;

(bb) respite care;

(cc) senior companion services;

(dd) speech pathology and audiology;

(ee) specially trained attendants;

(ff) specialized child care for medically fragile children;

(gg) specialized medical equipment and supplies;

(hh) supported living; and

(ii) vehicle modifications.

(7) Monies available through the program may not be expended on the following:

(a) room and board; ~~and~~

(b) special education and related services as defined at 20 USC 1401(16) and (17).; and

(8) The program is considered the payor of last resort. A service available through the program is not available to any extent that a service of another program is otherwise available to a recipient to meet the recipient's need for that service.

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

37.40.1407 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: GENERAL REQUIREMENTS

(1) Services of the program may only be provided by ~~or through~~ a provider that is enrolled with the department as a Medicaid provider or, in rare instances, through ~~that is under contract with~~ a provider with whom the department is contracting ~~with~~ for home and community-based case management services.

(2) A facility providing services to a recipient must meet all licensing requirements including fire and safety standards as well as other service-specific requirements set forth by the department in this chapter.

(3) A provider of service must meet the requirements necessary for the receipt of reimbursement with Medicaid monies.

(4) ~~A recipient's immediate family members may not provide services to the recipient as a reimbursed provider or as an employee of a reimbursed provider. Immediate family members include:~~ Immediate family members and legally responsible individuals may be paid for the provision of certain services under the following conditions:

(a) the service is identified in the federally approved waiver;

(b) the service is specified in the individual's service plan;

(c) the family member or legally responsible individual meets the provider qualifications and training standards for that service as specified in the federally approved waiver;

(d) the services do not supplant tasks that are customarily performed by legally responsible individuals; and

(e) the family member or legally responsible individual may not provide more than 40 hours of service in a seven-day period.

(5) Immediate family members include:

(a) a spouse; and

(b) a natural or adoptive parent of a minor child.

~~(5)~~ (6) A provider may also provide support to other family members in the recipient's household during hours of program reimbursed service if approved by the case management team or FM.

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

37.40.1408 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: ENROLLMENT (1) A person in order to be considered by the department for enrollment in the program, must be determined by the department to qualify for enrollment in accordance with the criteria in this rule.

(2) A person is qualified to be considered for enrollment in the program if the person:

(a) meets one of the following criteria:

(i) is 65 years of age or older; or

(ii) is certified as disabled by the social security administration but does not have a primary diagnosis of mental retardation or serious mental illness.

(b) is Medicaid eligible;

(c) requires the level of care of a nursing facility as determined in accordance with the preadmission screening provided for in ARM 37.40.202, 37.40.205, 37.40.206, and 37.40.207; and.

~~(d) does not reside in a hospital or a nursing facility; and~~

~~(e)~~ (d) has needs that can be met through the program.

(3) The department considers for an available opening for services those persons who, as determined by the department:

(a) are actively seeking services;

(b) are in need of the services available;

(d) have a projected total cost of ~~plan of care~~ service plan that is within the limits specified at ARM 37.40.1421.

(4) The department offers an available opening for services to the person, as determined by the department, who is most in need of the available services and most likely to benefit from the available services.

(5) Factors to be considered in the determinations of whether a person is in need of the available services and likely to benefit from those services and as to which person is most likely to benefit from the available services include, but are not limited to, the following:

(a) medical condition;

(b) degree of independent mobility;

(d) presence of problems with judgment;

(e) presence of a cognitive impairment;

(f) prior enrollment in the program;

(g) current institutionalization or risk of institutionalization,

(h) risk of physical or mental deterioration or death;

(i) willingness to live alone;

(j) adequacy of housing;

(k) need for adaptive aids or environmental modifications;

(l) need for 24-hour supervision;

(m) need of person's caregiver for relief;

(n) need, in order to receive services, of a waiver of the Medicaid deeming financial eligibility requirement;

(o) appropriateness for the person, given the person's current needs and risks, of services available through the program;

(p) status of current services being purchased otherwise for the person; and

(q) status of support from family, friends, and community.

(6) A person enrolled in the program may be removed from the program by the department. Bases for removal from the program, include, but are not limited to, the following:

(a) a determination by the case management team or program managers that the services, as provided for in the ~~plan of care~~ service plan, are no longer appropriate or effective in relation to the person's needs;

(b) the failure of the person to use the services as provided for in the ~~plan of care~~ service plan;

(c) the behaviors of the person place the person, caregivers or others at serious risk of harm or substantially impede the delivery of services as provided for in the ~~plan of care~~ service plan;

(d) the health of the person is deteriorating or in some other manner placing the person at serious risk of harm;

(e) a determination by the case management team or program managers that the service providers necessary to the delivery of services as provided for in the ~~plan of care~~ service plan are unavailable; and

(f) a determination that the total cost of ~~plan of care~~ service plan is not within the limits specified at ARM 37.40.1421.

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

IMP: 53-2-201, 53-6-101, 53-6-113, 53-6-131, 53-6-402, MCA

37.40.1415 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: REIMBURSEMENT (1) Services available through the program are reimbursed as specified in this rule.

(2) The following services are reimbursed as provided in (3):

(a) ~~environmental accessibility adaptations~~ adult day health;

(b) ~~homemaking~~ adult residential care;

(d) ~~habilitation~~ community supports services;

(e) ~~personal emergency response systems~~ community transition services;

(f) ~~nutrition~~ consultative clinical and therapeutic services;

(g) ~~psycho-social consultation~~ consumer-directed goods and services;

(h) ~~nursing~~ dietetic services;

(i) ~~respiratory therapy~~ environmental accessibility adaptations;

(j) ~~dietetic services~~ family training and support;

(k) ~~specially trained attendant care~~ financial management;

(l) ~~behavioral programming~~ habilitation;

(m) ~~chemical dependency counseling~~ health and wellness;

(n) ~~cognitive rehabilitation~~ homemaker chore services;

(o) ~~comprehensive day treatment~~ homemaker;

(p) ~~community residential rehabilitation~~ independence advisor;

(q) ~~supported living~~ nonmedical transportation;

(r) ~~specialized child care for children with AIDS~~ nursing;

(s) ~~adult residential care~~ nutrition services;

(t) ~~respite care not provided by a nursing facility~~ pain and symptom management; ~~and~~

(u) ~~nonmedical transportation~~ personal emergency response systems;.

(v) post-acute rehabilitation services;

(w) respite care;

(x) senior companion services;

(y) specialized child care for medically fragile children;

(z) supported living; and

(aa) vehicle modifications.

(3) The services specified in (2) are, except as otherwise provided in (4), reimbursed at the lower of the following:

(a) the provider's usual and customary charge for the service; or

(b) the rate negotiated with the provider by the case management team up to the department's maximum allowable fee.

(4) The services specified in (2) are reimbursed as provided in (3) except that reimbursement for components of those services that are incorporated by specific cross reference from the general Medicaid program may only be reimbursed in accordance with the reimbursement methodology applicable to the component service as a service of the general Medicaid program.

(5) The following services are reimbursed in accordance with the referenced provisions governing reimbursement of those services through the general Medicaid program:

(a) personal assistance as provided at ARM 37.40.1105 and 37.40.1302;

(b) outpatient occupational therapy as provided at ARM 37.86.610;

(d) speech therapy as provided at ARM 37.86.610; and

(e) audiology as provided at ARM 37.86.705.

(6) Case management services are reimbursed, as established by contractual terms, on either a per diem or hourly rate.

(7) Respite care services provided by a nursing facility are reimbursed at the rate established for the facility in accordance with ARM Title 37, chapter 40, subchapter 3.

(8) Specialized medical equipment and supplies are reimbursed as follows:

(a) equipment and supplies which are reimbursable under ARM 37.86.1801, 37.86.1802, 37.86.1806, and 37.86.1807 shall be reimbursed as provided in ARM 37.86.1807;

(b) equipment and supplies which are not reimbursable under ARM 37.86.1801, 37.86.1802, 37.86.1806, and 37.86.1807 shall be reimbursed at the lower of the following:

(i) the provider's usual and customary charge for the item; or

(ii) the negotiated rate ~~negotiated with the provider by the case management team~~ up to the department's maximum allowable fee.

(9) Reimbursement is not available for the provision of a service to a person that may be reimbursed through another program.

(10) No copayment is imposed on services provided through the program but recipients are responsible for copayment on other services reimbursed with Medicaid monies.

(11) Reimbursement is not available for the provision of services to other members of a recipient's household or family unless specifically provided for in these rules.

(12) Payment for the following services may be made to legally responsible individuals, if all program criteria in ARM 37.40.1407 are met:

(a) personal assistance;

(b) homemaker;

(d) specialized child care for medically fragile children;

(e) private duty nursing;

(f) transportation;

(g) respite;

(h) community supports;

(i) consumer-directed goods and services;

(j) homemaker chore;

(k) pain and symptom management;

(l) vehicle modifications; and

(m) environmental accessibility adaptations.

(13) When the Legislature funds a direct care wage initiative, waiver providers targeted by the initiative must report to the department, for a determined time period, actual hourly wage and benefit rates paid for all direct care workers or the lump sum payment amounts for all direct care workers that will receive the benefit of the increased funds. The reported data shall be used by the department for the purpose of tracking distribution of direct care wage funds to designated workers.

(a) The department will pay targeted waiver providers that submit an approved request to the department a lump sum payment in addition to the Medicaid reimbursement rate to be used only for wage and benefit increases or lump sum payments for direct care workers.

(b) To receive the direct care workers' lump sum payment, a targeted provider shall submit for approval a request form to the department stating how the direct care workers' lump sum payment will be spent to comply with all department requirements. The provider shall submit all of the information required on the form in order to continue to receive subsequent lump sum payment amounts.

(c) If these funds will be distributed in the form of a wage increase to direct care workers the form for wage and benefit increases will request information including, but not limited to:

(i) the number of category of each direct care worker that will receive the benefit of the increased funds;

(ii) the actual per hour rate of pay before benefits and before the direct care wage increase has been implemented for each worker that will receive the benefit of the increased funds;

(iii) the projected per hour rate of pay with benefits after the direct wage increase has been implemented;

(iv) the number of staff receiving a wage or benefit increase by category of worker, effective date of implementation of the increase in wage and benefit; and

(v) the number of projected hours to be worked in the budget period.

(d) If these funds will be used for the purpose of providing lump sum payments (i.e., bonus, stipend, or other payment types) to direct care workers the form will request information including, but not limited to:

(i) the number of category of each direct care worker that will receive the benefit of the increased funds;

(ii) the type and actual amount of lump sum payment to be provided for each worker that will receive the benefit of the lump sum funding;

(iii) the breakdown of the lump sum payment by the amount that represents benefits and the direct payment to workers by category of worker; and

(iv) the effective date of implementation of the lump sum benefit.

(e) A provider that does not submit a qualifying request for use of the funds distributed under (2), or does not include all of the information requested by the department, within the time established by the department, or a provider that does not wish to participate in this additional funding amount shall not be entitled to their share of the funds available for wage and benefit increases or lump sum payments for direct care workers.

(14) A provider that receives funds under this rule must maintain appropriate records documenting the expenditure of the funds. This documentation must be maintained and made available to authorize governmental entities and their agents to the same extent as other required records and documentation under applicable Medicaid record requirements, including but not limited to the provisions of ARM 37.40.345, 37.40.346, and 37.85.414.

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

IMP: 53-6-101, 53-6-111, 53-6-113, 53-6-402, MCA

37.40.1420 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: ~~PLANS OF CARE~~ SERVICE PLANS (1) A ~~plan of care~~ service plan is a written plan of supports and interventions based on an assessment of the status and needs of a ~~recipient~~ consumer. The ~~plan of care~~ service plan describes the needs of the ~~recipient~~ consumer and the services available through the program and otherwise that are to be made available to the ~~recipient~~ consumer in order to maintain the ~~recipient~~ consumer at home and in the community.

(2) The services that a ~~recipient~~ consumer may receive through the program and the amount, scope, and duration of those services must be specifically authorized in writing through an individual ~~plan of care for the person~~ service plan.

(3) The ~~plan of care~~ service plan is initially developed upon the person's entry into the program. The plan must be reviewed and, if necessary, revised at intervals of at least six months beginning with the date of the initial ~~plan of care~~ service plan.

~~(4) Each plan of care is developed, reviewed and revised by the case management team.~~

~~(5)~~ (4) ~~The case management team in developing~~ tThe ~~plan of care~~ service plan is developed in conjunction ~~consults~~ with the ~~recipient~~ consumer or the ~~recipient's~~ consumer's legal representative, with treating and other appropriate health care professionals and others who have knowledge of the ~~recipient's~~ consumer's needs.

~~(6)~~ (5) Each ~~plan of care~~ service plan must include the following:

(a) diagnosis, symptoms, complaints, and complications indicating the need for services;

(b) a description of the ~~recipient's~~ consumer's functional level;

~~(d) any orders for:~~

~~(i)~~ (d) medication;

~~(ii)~~ (e) treatments;

~~(iii)~~ (f) restorative and rehabilitative services;

~~(iv)~~ (g) activities;

~~(v)~~ (h) therapies;

~~(vi)~~ (i) social services;

~~(vii)~~(j) diet; ~~and~~

~~(viii)~~ (k) other special procedures recommended for the health and safety of the ~~recipient~~ consumer to meet the objectives of the ~~plan of care~~ service plan;.

~~(e)~~ (l) the specific services to be provided, the frequency of the services, and the type of provider to provide them;

~~(f)~~ (m) the projected annualized costs of each service; and

~~(g)~~ (n) names and signatures of all persons who have participated in developing the ~~plan of care~~ service plan (including the ~~recipient~~ consumer, unless the ~~recipient's~~ consumer's inability to participate is documented) which will verify participation, agreement with the ~~plan of care~~ service plan, and acknowledgement of the confidential nature of the information presented and discussed.

~~(7)~~ (6) The ~~case management team~~ consumer must be provided a copy of the service plan to the ~~recipient~~ consumer.

~~(8)~~ (7) ~~Plan of care~~ Service plan approval is based on:

(a) completeness of plan;

(b) consistency of plan with screening criteria; and

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

37.40.1426 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: NOTICE AND FAIR HEARING

(1) The department provides written notice to an applicant for ~~and recipient~~ a consumer of services when a determination is made by the department concerning:

(a) financial eligibility;

(b) level of care;

(d) termination of ~~recipient's~~ consumer's eligibility for the program.

(2) The department provides a ~~recipient~~ consumer of services with notice ten working days before termination of services due to a determination of ineligibility.

(3) A person aggrieved by any adverse final determinations as listed in (1)(a) through (1)(d) or any adverse determinations regarding services in the ~~plan of care~~ service plan may request a fair hearing as provided in ARM 37.5.304, 37.5.307, 37.5.313, 37.5.316, 37.5.318, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(4) Fair hearings will be conducted as provided for in ARM

37.5.304, 37.5.307, 37.5.313, 37.5.316, 37.5.318, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

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

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

37.40.1430 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: CASE MANAGEMENT, REQUIREMENTS (1) Case management is the planning for, arranging for, implementation of, and monitoring of the delivery of services available through the program to a ~~recipient~~ consumer.

(2) Case management services includes:

(a) developing a ~~plan of care~~ service plan for a ~~recipient~~ consumer;

(b) monitoring and managing a ~~plan of care~~ service plan for a ~~recipient~~ consumer;

(d) maximizing a ~~recipient's~~ consumer's efficient use of services and community resources such as family members, church members, and friends;

(e) facilitating interaction among people working with a ~~recipient~~ consumer;

(f) prior authorizing the provision of all services; and

(g) managing expenditures.

(3) The case management team consists of a registered nurse and a social worker.

(4) The case management team must:

(a) function as directed by the department;

(b) assure that services provided to ~~recipients~~ consumers are of appropriate quality and cost effective;

(d) manage expenditures within the allocated monies; and

(e) meet the department's reporting requirements.

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

37.40.1435 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: ADULT RESIDENTIAL CARE, REQUIREMENTS (1) Adult residential care is ~~the provision of supportive services to a recipient~~ a residential habilitation option for consumers residing in an adult foster home, a residential hospice, or ~~a personal care~~ an assisted living facility.

(2) Adult residential care is a bundled service that may include:

(a) personal care services ~~as specified at ARM 37.40.1101(1) through (5)~~;

(b) homemaking ~~as specified at ARM 37.40.1450~~;

(d) recreational activities;

(e) medication oversight; and

(f) assistance in arranging transportation for medical care.

(3) Adult residential care must provide for 24-hour on-site response staff to meet scheduled or unpredictable needs of ~~recipients~~ consumers and to provide supervision of ~~recipients~~ consumers for safety and security.

(4) A ~~recipient~~ consumer of adult residential care may not receive the following services through the program:

(a) personal assistance as specified at ARM 37.40.1447;

(b) homemaking services as specified at ARM 37.40.1450;

(d) respite care as specified at ARM 37.40.1451; and

~~(e) medical alert personal emergency response system as specified at ARM 37.40.1486; and~~

~~(f)~~ (e) nutrition as specified in ARM 37.40.1476.

(5) Adult residential care facilities must be licensed by the state of Montana.

(6) A provider of adult residential care must report serious occurrences to the department in accordance with serious occurrence policy requirements.

(7) An assisted living facility providing adult residential services must have the following features:

(a) Provide a home-like environment in either:

(i) an apartment style living unit with a bedroom, easy access to a bath, and cooking areas; or

(ii) a home style living unit with a bedroom, easy access to a bath, and reasonable access to food and beverages, unless against medical advice.

(b) Small dining areas or ability to eat with a private party.

(c) Residents must have control of lockable access to living unit and egress from the facility (unless Category C). The facility may have a master key for emergencies.

(d) Residents must have the ability to furnish and decorate living unit.

(e) Access to private areas for telephone and visitors.

(f) Provide reasonable assistance coordinating and arranging for the resident's choice of community pursuits outside the residence. This is in addition to the regular outings provided by the facility.

(g) Residents must have reasonable access to unscheduled activities and resources in the community.

(h) Policies and practices allow resident risk, through family and resident education, risk assessment, and negotiated risk agreement.

(i) Aging in place must be a common practice of the assisted living facility, within scope of license.

(j) The facility should make concerted efforts to allow consumers to remain in the facility when changing from private pay to waiver funding.

(k) Education and documentation of the facility policies around room changes needs to have been given and explained to the consumer prior to admission and reviewed as financial status changes.

(8) Providing waiver funding for adult residential services in assisted living facilities that do not meet the above criteria is not allowed.

(9) Effective September 1, 2011, Medicaid funding will no longer be available for newly admitted home and community services consumers in an assisted living facility, unless the facility meets the above criteria.

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

IMP: 53-6-402, MCA

37.40.1438 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: SUPPORTED LIVING, REQUIREMENTS (1) Supported living is the provision of supportive services to a ~~recipient~~ consumer residing in an individual residence or in a group living situation. It is a comprehensive service designed to support a person with brain injury or other severe disability.

(2) Supported living services may include:

(a) independent living evaluation;

(b) service coordination;

(d) health and safety supervision;

(e) homemaking services as specified at ARM 37.40.1450;

(f) day habilitation as specified at ARM 37.40.1448;

~~(g) habilitation aide as specified at ARM 37.40.1448;~~

~~(h) behavioral programming as specified at 37.40.1465;~~

~~(i)~~ (g) supported employment as specified at ARM 37.40.1448;

~~(j)~~ (h) prevocational training as specified at ARM 37.40.1448;

~~(k)~~ (i) nonmedical transportation as specified at ARM 37.40.1488; and

~~(l)~~ (j) specially trained attendants as specified at ARM 37.40.1449.

(3) An entity providing supported living services must ~~meet the following criteria:~~

(a) be accredited by the commission on accreditation of rehabilitation facilities (CARF) or by the council on quality in the areas of integrated living, congregate living, personal, social and community services, community employment services and work services; and

~~(b)~~ have two years' experience in providing services to persons with physical disabilities.

(4) This service must be prior authorized by the department.

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

IMP: 53-6-402, MCA

37.40.1446 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: ~~COMPREHENSIVE DAY TREATMENT~~ POST-ACUTE REHABILITATION SERVICES, REQUIREMENTS

(1) ~~Comprehensive day treatment~~ Post-acute rehabilitation is the provision of therapeutic intervention to a ~~recipient~~ consumer with brain injury ~~on a week day basis~~ or other related disability in a residential or nonresidential setting. ~~Comprehensive day treatment~~ Post-acute rehabilitation assists in reducing the dependency of the ~~recipient~~ consumer and in facilitating the integration of the ~~recipient~~ consumer into the community.

(2) ~~Comprehensive day treatment services~~ Post-acute rehabilitation may include:

~~(a) cognitive rehabilitation as specified at ARM 37.40.1467;~~

~~(b)~~ (a) ~~behavioral programming~~ consultative clinical and therapeutic services as specified at ARM 37.40.1465;

~~(c)~~ (b) chemical dependency counseling as specified at ARM 37.40.1466;

~~(d)~~ (c) therapeutic recreational activities;

~~(e)~~ (d) nutrition services as specified in ARM 37.40.1476;

~~(f)~~ (e) nonmedical transportation as specified at ARM 37.40.1488; and

~~(g)~~ (f) counseling.

~~(3) An entity providing comprehensive day treatment services, must provide services from 8 a.m. to 5 p.m. during the 5 working days of the week.~~

~~(4)~~ (3) An entity providing ~~comprehensive day treatment~~ post-acute rehabilitation services must be under the direction of an interdisciplinary team consisting of a licensed psychologist, a licensed neuropsychologist, a board-certified physiatrist, therapists, and other appropriate support staff.

~~(5)~~ (4) An entity providing ~~comprehensive day treatment~~ post-acute rehabilitation services must be accredited or in the process of becoming accredited by the commission on accreditation of rehabilitation facilities (CARF) as a community reentry program for persons with brain injury.

~~(6) This service must be prior authorized by the department.~~

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

IMP: 53-6-402, MCA

37.40.1448 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: HABILITATION, REQUIREMENTS

(1) Habilitation is the provision of intervention services designed for assisting a ~~recipient~~ consumer to acquire, retain, and improve the self-help, socialization, and adaptive skills necessary to reside successfully at home and in the community.

(2) Habilitation services may include:

(a) residential habilitation;

(b) day habilitation;

(d) supported employment;.~~and~~

~~(e) habilitation aide.~~

(3) Residential habilitation is habilitation provided in a ~~community~~ licensed group home for persons with physical disabilities or a specialized licensed adult residential care facility.

(4) Day habilitation is habilitation provided in a day service setting.

(5) Prevocational services are habilitative activities that foster employability for a ~~recipient~~ consumer who is not expected to join the general work force or participate in a transitional sheltered workshop within a year by preparing the ~~recipient~~ consumer for paid or unpaid work. Prevocational services include teaching compliance, attendance, task completion, problem solving and safety.

(6) Supported employment is intensive ongoing support to assist a ~~recipient~~ consumer who is unlikely to obtain competitive employment in performing work activities in a variety of settings, particularly work sites where nondisabled persons are employed. Supported employment service includes supervision, training, and other activities needed to sustain paid work by a ~~recipient~~ consumer.

(7) Habilitation aide is the assistance of an aide directed at fostering the recipient's ability to achieve independence in instrumental activities of daily living such as homemaking, personal hygiene, money management, transportation, housing and use of community resources. Habilitation aide services include conducting an assessment and the provision of training and teaching.

~~(8)~~ (7) An entity inclusive of its staff, providing habilitation services must be qualified generally to provide the services and specifically to meet each ~~recipient's~~ consumer's defined habilitation needs.

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

37.40.1449 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: SPECIALLY TRAINED ATTENDANT CARE, REQUIREMENTS (1) Specially trained attendant care ~~is the provision of~~ is an option under personal assistance that provides supportive services to a ~~recipient~~ consumer residing in their own residence.

(2) Specially trained attendant care services may include:

(a) personal assistance services directed at fostering the consumer's ability to achieve independence in instrumental activities of daily living such as homemaking, personal hygiene, money management, transportation, housing, and the use of community resources;

(b) services that assist consumers in acquiring, retaining, and improving self-help, socialization, and adaptive skills to reside successfully in the community;

~~(a)~~ (c) personal assistance services as specified at ARM 37.40.1447; ~~and~~

~~(b)~~ (d) personal care services as specified at ARM 37.40.1101(1) through (5), ~~and~~ 37.40.1301, 37.40.1302, 37.40.1305, 37.40.1306, 37.40.1307, and 37.40.1308.; and

(e) continuous and extensive nursing services.

(3) A person providing specially trained attendant care must be trained in accordance with the department's training requirements by the provider and others to deliver the services that meet the specific needs of the ~~recipient~~ consumer.

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

IMP: 53-6-402, MCA

37.40.1451 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: RESPITE CARE, REQUIREMENTS

(1) Respite care is the provision of supportive care to a ~~recipient~~ consumer so as to relieve those unpaid persons normally caring for the ~~recipient~~ consumer from that responsibility.

(2) Respite care services may be provided only on a short term basis, such as part of a day, weekends, or vacation periods.

(3) Respite care services may be provided in a ~~recipient's~~ consumer's place of residence or through placement in another private residence or other related community setting, a hospital, a nursing facility, or a therapeutic camp.

(4) A person providing respite care services must be:

(a) physically and mentally qualified to provide this service to the ~~recipient~~ consumer; and

(b) aware of emergency assistance systems.

(5) A person who provides respite care services to a ~~recipient~~ consumer may be required ~~by the case management team~~ to have the following when the ~~recipient's~~ consumer's needs so warrant:

(a) knowledge of the physical and mental conditions of the ~~recipient~~ consumer;

(b) knowledge of common medications and related conditions of the ~~recipient~~ consumer; and

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

IMP: 53-2-201, 53-6-101, 53-6-141, 53-6-402, MCA

37.40.1452 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: SPECIALIZED CHILD CARE FOR MEDICALLY FRAGILE CHILDREN ~~WITH AIDS~~, REQUIREMENTS (1) Specialized child care for medically fragile children ~~with AIDS~~ is the provision of day care, respite care, and other direct and supportive care to a ~~recipient~~ consumer under 18 years of age who is ~~HIV positive or has a diagnosis of AIDS~~ medically fragile and who, due to medical and other needs, cannot be served through traditional child care settings.

(2) A person providing specialized child care for medically fragile children ~~with AIDS~~ services must be:

(a) physically and mentally able to perform the duties;

(b) aware of emergency assistance systems; and

(3) A person providing specialized child care for medically fragile children ~~with AIDS~~ services may be required, if appropriate to the circumstances of the ~~recipient~~ consumer, to have:

(a) knowledge of the physical and mental conditions of the ~~recipient~~ consumer;

(b) knowledge of the ~~recipient's~~ consumer's commonly needed medications and the conditions for which they are administered; and

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

IMP: 53-6-402, MCA

37.40.1465 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: ~~BEHAVIORAL PROGRAMMING~~ CONSULTATIVE CLINICAL AND THERAPEUTIC SERVICES, REQUIREMENTS (1) ~~Behavioral programming is the continuous in-depth assessment on a short term basis of a recipient with brain injury.~~ These are services that assist unpaid and/or paid caregivers in carrying out individual service plans and are necessary to improve the individual's independence and inclusion in the community.

(2) ~~Behavioral programming services includes assessment, if appropriate, of the abilities and effectiveness of caregivers.~~ Consultation activities are provided by professionals in psychiatry, psychology, neuro-psychology, physiatry, nursing, nutrition, behavior management, or occupational/speech/physical/recreational therapy.

~~(3) A person providing behavioral programming services, must:~~

~~(a) have a bachelor's degree;~~

~~(b) be employed by a rehabilitation agency; and~~

~~(c) be under the direct supervision of a licensed neurologist, board certified psychiatrist, or board certified physiatrist who has experience in working with persons with brain injury.~~

(3) The service may include:

(a) assessment;

(b) development of a home/community treatment plan;

(d) one-on-one consultation and support for paid and nonpaid caregivers.

(4) ~~This service is limited to 80 hours per plan of care year unless otherwise authorized by the department.~~ An entity, described in (2), inclusive of its staff providing consultative clinical and therapeutic services must be qualified generally to provide the services and specifically to meet each consumer's defined needs.

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

IMP: 53-6-402, MCA

37.40.1488 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: NONMEDICAL TRANSPORTATION, REQUIREMENTS (1) Nonmedical transportation is the provision to a ~~recipient~~ consumer of transportation through common carrier or private vehicle for access to social or other nonmedical activities.

(2) Nonmedical transportation services are provided only after volunteer transportation services, or transportation services funded by other programs, have been exhausted.

(3) Nonmedical transportation providers must provide proof of:

(a) a valid Montana driver's license;

(b) adequate automobile insurance; and

(4) Nonmedical transportation services must be provided by the most cost effective mode.

~~(5) Nonmedical transportation services are available only for the transport of recipients to and from activities that are included in the individual plan of care.~~

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

IMP: 53‑2‑201, 53-6-101, 53-6-141, 53-6-402, MCA

5. The department proposes to repeal the following rules:

37.40.1437 HOME AND COMMUNITY-BASED SERVICES TREATMENT FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: COMMUNITY RESIDENTIAL REHABILITATION, REQUIREMENTS, is found on page 37-9221 of the Administrative Rules of Montana.

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

IMP: 53-6-402, MCA

37.40.1464 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: PSYCHOSOCIAL CONSULTATION, REQUIREMENTS, is found on page 37-9243 of the Administrative Rules of Montana.

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

IMP: 53-2-201, 53-6-101, 53-6-141, 53-6-402, MCA

37.40.1466 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: CHEMICAL DEPENDENCY COUNSELING, REQUIREMENTS, is found on page 37-9244 of the Administrative Rules of Montana.

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

IMP: 53-6-402, MCA

37.40.1467 HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSONS: COGNITIVE REHABILITATION, REQUIREMENTS, is found on page 37-9245 of the Administrative Rules of Montana.

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

IMP: 53-6-402, MCA

6. STATEMENT OF REASONABLE NECESSITY

The Department of Public Health and Human Services (the department) is proposing the adoption of New Rules I through XII, amendment of 37.40.1406, 37.40.1407, 37.40.1408, 37.40.1415, 37.40.1420, 37.40.1426, 37.40.1430, 37.40.1435, 37.40.1438, 37.40.1446, 37.40.1448, 37.40.1449, 37.40.1451, 37.40.1452, 37.40.1465, 37.40.1488, and repeal of 37.40.1437, 37.40.1464, 37.40.1466, and 37.40.1467 pertaining to home and community-based services (HCBS) for the elderly and people with physical disabilities. Since July 15, 1983 the United States Department of Health and Human Services (HHS) has granted the department, under 42 CFR 441.300 through 441.310, the authority to establish a program of Medicaid funded home and community-based services for persons who are elderly or who have physical disabilities and who would otherwise have to reside in and receive Medicaid reimbursed care in a hospital or nursing facility.

The HCBS waiver for the elderly and people with physical disabilities will be renewed July 1, 2011. The proposed rules and amendments are necessary to make them consistent with the renewal waiver. The renewed waiver will contain a number of changes and the administrative rules must be updated to reflect those changes. Modifications to the waiver are twofold: some are mandated by HHS; others are those resulting from stakeholder input throughout the years. The specific proposals are described below:

New Rule I

The department is adding a definition section to these rules in order to make it easier for the reader to locate and understand terms used in the subchapter.

New Rule II

Community Transition Service is a new service added to support individuals transitioning from an institution into the community. Community Transition Service is proposed to facilitate the transition of individuals from institutional settings to community placement. Sometimes individuals have no option but to move into an assisted living facility when transitioning back into the community after having been in an institution. Many times they have no resources to assist them in accessing housing. This service will make resources available to establish a basic household, such as deposits and basic furnishings.

New Rule III

Financial Manager (FM) is a new service for participant direction. It provides finance, employer, payroll, and related functions for consumers in this option.

New Rule IV

Independent Advisor (IA) is a new service that offers an array of support activities to ensure that consumers are successful under the participant directed option.

New Rule V

Consumer-Directed Goods and Services is a new service for participant direction that was available under Big Sky Bonanza Waiver (BSB). It allows for the purchase of services, supports, supplies, or goods not otherwise provided through the waiver.

New Rule VI

Pain and Symptom Management is a new service that allows for the provision of traditional and nontraditional methods of pain management. Many waiver consumers live with chronic pain that is not easily treated by medication.

New Rule VII

Family Training and Support is a new service that provides support and training to families and others who work or play with disabled children.

New Rule VIII

Homemaker Chore is a new service which allows for more extensive cleaning beyond the scope of general household cleaning as well as walkway maintenance, minor home repairs, and wood chopping and stacking.

New Rule IX

Community Support Service is a participant-directed service that was available under BSB and includes attendant-type services and homemaking as well as respite and transportation.

New Rule X

Health and Wellness is a new service that includes adaptive health, wellness, and therapeutic recreational services.

New Rule XI

Senior Companion Services is a new service that allows for the purchase of senior companions from programs that are part of the Senior Corps.

New Rule XII

An option has been made available to individuals who elect to direct their own care.

Throughout the waiver rules the term "plan of care" is proposed to be changed to "service plan". The term "recipient" is proposed to be changed to "consumer" to identify the individual enrolled in the waiver program. The list of services has been alphabetized for ease of reading.

Senior Companion is also a new service and will allow the waiver to purchase senior companion services for HCBS recipients.

Behavioral Programming has been redefined and renamed Consultative Clinical and Therapeutic Services (CCTS).

Psychosocial Rehabilitation, Chemical Dependency Counseling, and Cognitive Rehabilitation have been removed. The supports they provided can be obtained through either state plan services or the new CCTS.

Habilitation Aide has been removed from Habilitation and placed under Specially Trained Attendant. The latter is now a variation of personal assistance and includes some nursing. This falls in line with the caregiver responsibilities.

Community Residential Rehabilitation and Comprehensive Day Treatment have been combined and renamed Post-Acute Rehabilitation.

Specialized Child Care has been expanded to serve all medically fragile children, not just those with AIDS.

Qualifications for Supported Living and Adult Residential have been updated to reflect current practices and CMS mandates.

Participant direction and the payment of legally responsible persons have been added to these rules to cover individuals in the BSB option.

ARM 37.40.1406

The department alphabetized and added new services and names.

ARM 37.40.1407

The department has more clearly defined when immediate family members could provide services.

ARM 37.40.1415

The department has alphabetized and added provisions for new services as well as payment to legally responsible individuals.

ARM 37.40.1420

The department proposes to change plan of care to service plan and remove the reference to case management team.

ARM 37.40.1435

The department is proposing to redefine a residential habilitation option to match waiver renewal definition, add requirements to report serious occurrences, and add required features.

ARM 37.40.1437

The department is proposing to move community residential rehabilitation service to post-acute rehabilitation.

ARM 37.40.1446

The department is proposing to rename Community Residential Rehabilitation and Comprehensive Day, both Bridges and Headway Programs, more appropriately renamed post-acute rehabilitation.

ARM 37.40.1449

The department proposes more detail in the definition of specially trained attendant care and redefines as an option under personal assistance.

ARM 37.40.1452

The department is proposing to rename Specialized Child Care for Medically Fragile Children to encompass not only children with AIDS but all medically fragile children.

ARM 37.40.1464

The department is proposing to delete psychosocial rehabilitation and add under Clinical and Therapeutic Services.

ARM 37.40.1465

This used to be entitled Behavioral Program, which is not included in CCTS. CCTS encompasses a wide variety of therapeutic services mainly geared towards individuals with severe disabilities, brain injuries, or other cognitive and neurological disabilities. The department proposes to rename Consultative Clinical and Therapeutic Services to more clearly reflect the service.

ARM 37.40.1466

The department proposes to delete this service because it is available under CCTS, if needed. Most chemical dependency counseling is available under state plan counseling.

ARM 37.40.1467

The service was deleted and is available under CCTS.

ARM 37.40.1488

The department proposes to remove the mandate that the service is only allowable for transportation to and from activities that are included in the individual service plan. Some outings are free to destinations covered by other payers.

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: 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., July 21, 2011.

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. 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.

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

/s/ John Koch /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State June 13, 2011.