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 ADOPTION, AMENDMENT, AND REPEAL

TO: All Concerned Persons

1. On June 23, 2011, the Department of Public Health and Human Services published MAR Notice No. 37-551 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 1077 of the 2011 Montana Administrative Register, Issue Number 12.

2. The department as adopted New Rule II (37.40.1422), New Rule III (37.40.1423), New Rule IV (37.40.1424), New Rule V (37.40.1425), New Rule VI (37.40.1426), New Rule VII (37.40.1427), New Rule VIII (37.40.1431), New Rule IX (37.40.1436), New Rule X (37.40.1437), New Rule XI (37.40.1439), and New Rule XII (37.40.1440) as proposed.

3. The department has amended ARM 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, and 37.40.1488. The department has repealed ARM 37.40.1437, 37.40.1464, 37.40.1466, and 37.40.1467 as proposed.

4. The department has adopted the following rule as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined.

NEW RULE I [37.40.1402] HOME AND COMMUNITY-BASED SERVICES FOR ELDERLY AND PHYSICALLY DISABLED PERSON: DEFINITIONS (1) through (19) remain as proposed.

(20) "Serious occurrence" means a significant event which affects the health, welfare, and safety of an individual served in home and community-based services. The department has established a system of reporting and monitoring serious incidents that involve consumers served by the program in order to identify, manage, and mitigate overall risk to the individual.

(20) through (23) remain the same, but are renumbered (21) through (24).

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

5. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

Comment #1: The department received 18 oral and written comments related to the changes being proposed in this rule notice. The majority of the comments received pertained to ARM 37.40.1435 and related to adult residential care facilities and the belief that these facilities should provide for private room accommodations for Medicaid consumers in this setting.

Commenters stated that individual choice and freedom is a fundamental value of community settings, and consumers should not be forced to have a roommate. Community settings should offer privacy and individual control over their setting to the fullest extent possible. Roommate issues magnify the stressors already inherent with significant disabilities and increase the difficulty for successful community placement. Every consumer should be protected from discrimination and not forced to have a roommate who is not of their choosing. This language needs to be strengthened to allow for private living units and maximum individual independence and choice.

Response #1: The department appreciates the number of individuals that took the time to comment on these rules. The characteristics of a home and community setting and assisted living facilities providing a homelike environment are a topic that the department has had much discussion about with consumer and advocacy groups, facility owners and operators, as well as the Centers for Medicare and Medicaid Services (CMS) related to this service setting. Federal regulations are currently being evaluated pertaining to the specific issue of facilities meeting home and community characteristics. To the extent there are changes adopted at the federal level the department will re-evaluate this portion of the Home and Community-Based Services (HCBS) waiver rule to determine if additional changes will be necessary to be consistent with these federal changes. The department will not be requiring private rooms at this time.

Many consumers currently reside in adult residential facilities that meet all or most of the homelike environment requirements of this rule section. Many facilities already provide private living accommodations for residents who live in this service setting. We agree that there are many consumers that benefit from private rooms due to their physical and mental health needs. We continue to encourage the movement of adult residential facilities towards offering single occupancy or private rooms for all residents in adult residential facilities regardless of payor source. This is consistent with providing a homelike environment for consumers, is the preference of many consumers and their families, and accommodates consumer choice.

Comment #2: Several commenters expressed support for the proposed language changes related to assisted living/adult residential facilities and the steps that the department has taken toward making these proposed rules more reasonable for all of the assisted living providers across the state.

Response #2: The department acknowledges this support and acknowledges the need to evaluate this service setting in an ongoing manner. The characteristics of a home and community setting will continue to be assessed as the CMS develops federal rules regarding this service setting. The department will continue to discuss and evaluate those changes on an ongoing basis with providers, consumers, and advocacy groups to the extent changes are made that impact adult residential and assisted living facility providers and services.

Comment #3: Comments were made in support for the addition of the Community Transitions Services to the waiver as reimbursable services under New Rule II (37.40.1422). One of the biggest barriers to serving individuals in their own homes and communities is the lack of accessible, affordable housing. Making community transition services reimbursable will go a long way towards ensuring that individuals can access services in the least restrictive setting possible.

Response #3: The department agrees with this comment and the importance of adding these transition services to the HCBS service package.

Comment #4: Comments were made in support of the proposed language that incorporated the Big Sky Bonanza services into the Montana Big Sky waiver. Specifically, the comments supported the consumer-directed components of the Big Sky Bonanza program such as financial management and independence advisor services, consumer-directed goods and services, and community support services.

Response #4: The department agrees with this comment and the importance of adding these services to the Montana Big Sky waiver.

Comment #5: Comments were made that expressed support for the language changes, within the rule, that incorporate the use of service plan and consumer directed services. This language more accurately portrays the holistic nature of services that are available through the waiver program which are not only medical in nature, but cover an array of areas in order to allow individuals to lead as normal and as independent lives as possible in their own communities.

Response #5: The department agrees with this comment and thanks the commenter.

Comment #6: One commenter expressed concern that the rule language may be duplicative of ARM 37.106.2831 (activities) and ARM 37.106.2833 (dining services) and wanted the department to ensure that they do not conflict with each other.

Response #6: The department has reviewed each of the mentioned rules in relation to the proposed HCBS rule and feels assured there is no conflict between these rules.

Comment #7: One commenter expressed concern that the assisted living (AL) language may present a challenge for some smaller ALs to readily meet the requirement and suggested language, similar to other areas of rule, such as: "Any provision of this rule may be waived at the discretion of the department if conditions in existence prior to the adoption of this rule or construction factors would make compliance extremely difficult or impossible and if the department determines that the level of safety to residents and staff is not diminished."

Response #7: The department recognizes the concern expressed; however, Medicaid funded HCBS waiver services are approved by the CMS and must adhere to federal guidance on restrictions and limitations of any approved service.

Exceptions to waive or make exceptions to these requirements for Medicaid funding are not at the discretion of the department and cannot be allowed as this commenter suggests.

Comment #8: One commenter expressed concern related to the requirement that assisted living facilities need to provide a serious occurrence reports (SORs) and requested a clarification or definition of a SOR be added to the rule.

Response #8: The department has a long standing requirement for providers of HCBS services to report serious occurrences. Assisted living facilities have had this requirement as a part of providing Medicaid reimbursed services and the requirement is now being added to the rule. The department will add a definition of serious occurrences to the rule language in New Rule I (37.40.1402).

/s/ John Koch /s/ Laurie G. Lamson for

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State August 15, 2011