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| Montana Administrative Register Notice 37-606 | No. 19 10/11/2012 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On October 31, 2012, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building,111 North Sanders, Helena, Montana, to consider the proposed adoption 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 October 24, 2012, 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 DISCONTINUATION OF SERVICES: PURPOSE (1) These rules provide a process by which a contracted provider of state-funded developmental disabilities home and community-based services may seek to discontinue the delivery of services to a person who is in receipt of services from that provider.
AUTH: 53-6-402, 53-20-204, MCA
NEW RULE II DISCONTINUATION OF SERVICES: PROVIDER INITIATED (1) When a person receiving developmental disability community services from a service provider refuses to cooperate in service delivery as provided for in their plan of care or otherwise fails to substantively engage in their plan of care or when the person's health and safety needs cannot appropriately be managed by the provider, the provider may follow the process provided in these rules to be relieved of service delivery responsibilities for the person. The provider will continue to provide services to ensure the persons' health and safety until an alternative solution is established. (2) The provider who wishes to discontinue the services must provide notice of the provider's intent to discontinue services in writing and submit the notice to: (a) the regional manager or designee of the developmental disabilities program of the region in which the person resides; (b) the person with a developmental disability; (c) the case manager for the person; (d) the legal representative for the person, if applicable; (e) the advocate for the person, if applicable; and (f) the designee at the state facility, if applicable. (3) The statement of intent to discontinue services must include: (a) the issues that the provider contends cause the need to discontinue the services; and (b) thorough documentation of the past and current efforts made by the provider and others to provide the services to the person. (4) The regional manager or designee will schedule a meeting within two working days after the receipt of the notice of intent to discontinue services from the provider. The meeting will include the regional manager or the regional manager's designee, the members of the person's plan of care team, the provider, and if applicable, a designee from the state facility. The meeting may be conducted telephonically. If the person's legal representative is not available within two working days, the meeting must be scheduled at the earliest possible time the legal representative is available. (5) The purpose of the meeting is to review the basis for the notice and determine if a change in the configuration of the current services or additional supports may assist the person to remain in or return to services with the current provider and, if so, identify those services or supports. The planning team determines if additional services or supports may assist the person to remain with the current provider. The planning team must develop a supplemental plan of care which identifies the actions to implement the determination for the person's services. (6) The department reviews the supplemental plan of care developed by the planning team to assess the feasibility of the plan and to suggest further changes if desired. If the plan provides for the delivery of additional services or for interim supports to the person at an additional cost, the department must approve those through an adjustment to the person's individual cost plan. (7) If a person who is the subject of a discontinuation of services process is admitted to Montana Developmental Center, Montana State Hospital, a hospital, or to any other facility, the person's ongoing discontinuation of services process and all applicable dates are suspended until the person returns to the community service unless the department determines that the person's admission is on a long-term basis. Admission to a facility is inclusive of commitment, emergency detention, emergency admission, court-ordered precommitment detention, voluntary admission, or any other process resulting in a person being placed in a facility. (8) If it is determined in the course of planning that an alternative provider is required, the case manager will assist the person, the legal representative, or both in seeking an alternative provider as described in the developmental disabilities program porting policy. The case manager will place the person on the port list. If additional funding is required, the case manager will also place the person on the waiting list for screening into an opening with sufficient funding in accordance with the screening policy of the department. (9) If it is determined that it is appropriate and an alternative placement has not been located within 90 days, the discontinuation of services process must be extended for a second 90 days to allow additional time to pursue an alternative placement. The regional manager or the regional manager's designee, the members of the person's plan of care team, the provider, and a designee from the state facility, if applicable, must reconvene to review the actions taken to locate an alternative provider and to identify the mechanisms needed to continue to pursue an alternative provider. If at the end of the second 90 days an alternative provider has not been located, the discontinuation of services process may proceed. (10) A provider must abide by applicable statutes or regulations of the state of Montana regarding the relationship between the landlord and tenant.
AUTH: 53-6-402, 53-20-204, MCA
NEW RULE III DISCONTINUATION OF SERVICES: PART C (1) Each contractor providing Part C services must have a written policy covering discontinuation of Part C services. (2) Prior to providing Part C services to a family, the contractor will have each family read the discontinuation of services policy referenced in (1), or will read the policy to the family, and have the family acknowledge receipt of the discontinuation criteria by their signature. (3) The contractor must have documentation in each family's file that confirms the following: (a) the reason for discontinuation of services; (b) notification provided to the family of the pending discontinuation of services in accordance with the requirements of CFR Section 303.421; and (c) notification provided to the family of the grievance procedure outlined in ARM 37.34.109. (4) The contractor must specify the reason for discontinuation of services. The reason must include one of the following: (a) the family declines services, either by: (i) notifying the contractor of their decision to decline services; or (ii) failing to respond to at least two attempts by the contractor to contact them regarding continuation of services. Contractors must document these attempts in the family file. (b) the person is transitioned into a more appropriate service; (c) temporary services, as determined at onset, have reached conclusion; (d) the person is determined ineligible; (e) the contractor has evidence of misuse of agency funds by the family; (f) the family moves from the service area; or (g) the death of the person.
AUTH: 53-6-402, 53-20-204, MCA
RULE IV DISCONTINUATION OF SERVICES: FAIR HEARING REQUIREMENTS (1) A person who is aggrieved of a change in services resulting from a discontinuation of services process under these rules is entitled to a fair hearing as provided for at ARM 37.5.115.
AUTH: 53-6-402, 53-20-204, MCA
4. STATEMENT OF REASONABLE NECESSITY
The Department of Public Health and Human Services (department) is proposing New Rules I through IV to explain the procedure taken when a provider can no longer serve a person while ensuring their health and safety and the health and safety of others. These proposed rules are necessary to give providers guidance through the discontinuation of services process, allow the department and the persons with developmental disabilities to find alternative placements, and provide support to both the providers and the persons with developmental disabilities.
In creating the process, the department looked at both the needs of the people receiving the services as well as the providers. It is imperative that providers, who cannot meet the health and safety needs of a person with developmental disabilities, have opportunity to seek a remedy for both the provider as well as the person with a developmental disability. The department believes the proposed language supports finding the best solution possible that will ensure the health and safety of the person through a collaborative effort.
New Rule I
The department proposes New Rule I to declare the purpose of these rules. It is necessary for the purpose of these rules to be clearly developed and defined to give providers a clear understanding of when to apply these rules.
New Rule II
The department proposes New Rule II to describe the process that must be taken in order to discontinue services of a person with developmental disabilities.
New Rule III
The department proposes New Rule III to give further detail under which circumstances a provider may discontinue services to a child receiving Part C of the Individuals with Disabilities Education Act as amended in 2004. This rule is necessary to provide service contractors guidelines to ensure federal regulation is abided by and that appropriate due process is provided.
New Rule IV
Proposed New Rule IV is necessary to provide information in the event a person is aggrieved by the discontinuation of services process.
5. 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., November 8, 2012.
6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.
7. 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 5 above or may be made by completing a request form at any rules hearing held by the department.
8. 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.
9. 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 October 1, 2012.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact [email protected].
