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 III, the amendment of 37.34.1101, 37.34.1102, 37.34.1103, 37.34.1107, 37.34.1108, and 37.34.1114 and the repeal of 37.34.1109 and 37.34.1115 pertaining to plan of care

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

 

TO: All Concerned Persons

 

            1. On October 31, 2012, at 3:00 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, at 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 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 PLAN OF CARE: PERSONAL SUPPORT PLAN: ASSESSMENTS  (1) The case manager must complete the following annual assessments for the purpose of personal support planning:

            (a) a consumer survey to be completed upon the person's entry into services and annually thereafter; and

            (b) a risk factor for health and safety form.

            (2) The residential provider agency must supply the following assessments, if applicable:

            (a) physical:  yearly, unless otherwise recommended by the person's physician;

            (b) dental: yearly, unless otherwise recommended by the person's dentist;

            (c) hearing: as determined by the person's health care professional; and

            (d) vision: as determined by the person's health care professional.

            (3) Providers must address the following assessment domains:

            (a) living;

            (b) employment;

            (c) educational;

            (d) developmental; and

            (e) social.

            (4) If the person with a developmental disability is not receiving residential services by a provider agency, the case manager must obtain the assessments in (2).

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            NEW RULE II  PLAN OF CARE: INDIVIDUAL FAMILY SERVICE PLAN: PURPOSE (1)  An individual family service plan (IFSP) must be adopted for children through 16 years of age who are receiving federally authorized Part C early intervention or Medicaid funded services. An IFSP is a written plan which denotes supports for a child and a child's family as identified through multidimensional and multidisciplinary assessment and information gathering.  The IFSP serves as an agreement between the family with an eligible child, agencies, and other service providers.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            NEW RULE III PLAN OF CARE:  INDIVIDUAL FAMILY SERVICE PLAN: IMPLEMENTATION (1) The individual family services plan (IFSP) must be developed in accordance with the Part C early intervention federal regulations at 34 CFR 303.340 through 303.345.

            (2)  The department will establish policies and procedures for the development and implementation of the IFSP that are in compliance with governing federal laws and regulations.

            (3) The department hereby adopts and incorporates by reference the federal regulations at 34 CFR 303.340 through 303.345. 34 CFR 303.340 through 303.345 contain the requirements under which an IFSP must be developed, reviewed, and implemented.  A copy of the cited requirements is available from the Department of Public Health and Human Services, Developmental Disabilities Program, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

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

 

            37.34.1101 INDIVIDUAL PLAN PLAN OF CARE: PERSONAL SUPPORT PLAN: PURPOSE (1) An individual plan A personal support plan (PSP) identifies the supports and services that are necessary for a person receiving state- administered developmental disabilities services to achieve independence, dignity and personal fulfillment. for a person receiving developmental disabilities services. The individual plan ensures that the provision of developmental disabilities services is systematic and that training is designed to enhance the development of the person receiving services. The PSP is a person-driven and person-centered plan that assesses an eligible person's needs and identifies services that are appropriate to meet the person's assessed needs.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1102 INDIVIDUAL PLAN: PLAN OF CARE: PERSONAL SUPPORT PLAN: IMPLEMENTATION (1) A single,comprehensive individual plan must be developed and maintained by an individual planning team for each recipient of state funded developmental disabilities services. Individual plans are not required for persons who are only recipients of one or more of the following developmental disabilities services:  An initial personal support plan (PSP) must be developed by the PSP team with the participation of the person within 30 calendar days of the person's entry into a service program or when the person moves from services in one community to services in another community. The PSP may be reviewed within 60 days of adoption if needed to accurately reflect the person's needs for support and services. The PSP must be reviewed annually by the PSP team and updated to accurately reflect the person's needs for support and services.

            (a) family services where an individual family service plan (IFSP) or an annual service agreement exists;

            (b) transportation;

            (c) adaptive equipment; or

            (d) case management.

            (2) An initial individual plan must be developed by the individual planning team within 30 calendar days of a person's entry into a service program, implemented within two calendar weeks of the date of its adoption unless otherwise specified by the team, and formally reviewed and revised at intervals determined by the team. A plan must be formally reviewed and revised as necessary within 12 months from the initial or previously reviewed individual plan. The person's case manager must schedule and facilitate all PSP meetings.  The case manager:

            (a) sends written notice to the person and the person's legal representative at least 14 days prior to the PSP meeting;

            (b) meets with the person or the person and the PSP team prior to the PSP meeting to develop the person's vision statements; and

            (c) posts the completed PSP on the department-approved data management system within 21 calendar days of the PSP meeting and provides a copy, if requested, to PSP team members who do not have access to the data management system.

            (3) When a person moves from services in one community to services in another community a service coordination agreement must be in place prior to entry into the new service. The agreement is developed by members of the designated individual planning team at the new service with participation preferably in person, but at least in writing, of a representative from the sending team. The service coordination agreement identifies critical service and training objectives for the person to be implemented immediately upon entry into the new service. Providers must submit the assessments required by [New Rule I] with summaries to the case manager at least 14 calendar days prior to the PSP meeting and submit action plans no later than 14 calendar days after the PSP meeting.

            (4) The day after the PSP meeting is the effective date of the PSP.

            (5) The PSP team must conduct an annual PSP meeting with the person within the same month as the person's last annual PSP meeting.

            (6) Each provider will revise the lifestyle and wellness, general information, and financial page in the PSP if the needs of the person necessitate a revision.

            (7) Any member of the PSP team may request a review, or a revision, or both a review and revision to the PSP, as determined by the person's needs.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1103 INDIVIDUAL PLAN: PLAN OF CARE: PERSONAL SUPPORT PLAN: COMPONENTS (1) Each individual plan must include the following: Each personal support plan (PSP) must include the following:

            (a) any results of comprehensive assessments, both formal and informal, of the individual receiving services, which identify current abilities and needs. Assessments must include, but are not limited to, the following: Vision statements that describe where the person wants to live or work, what the person would like to learn, what social opportunities the person would like to be involved in, and what interests the person would like to pursue. Vision statements are written for a one to three year span of time.

            (i) a physical examination, a health assessment and a dental examination completed at appropriate intervals as determined by the health professional;

            (ii) a living skills assessment completed within 60 calendar days prior to the individual planning meeting;

            (iii) developmental, educational, employment, social or leisure assessments completed or updated within 60 calendar days prior to the individual planning meeting unless the team determines and documents in the individual plan that an assessment should be conducted at other than annual intervals;

            (iv) a self assessment; and

            (v) other reassessments as needed and identified by the person's individual planning team;

            (b) the goals toward which the activities outlined in the plan will be directed; Outcome statements that define what the person wants to accomplish, written in the person's own words when possible, and directly relate to the person's vision statements.

            (c) the specific objectives directed toward accomplishing the goals; and Action statements that define how the person will achieve the outcomes described in (b).

            (d) a summary of medical, dental, and other health related appointments and records for the period since the last individual planning meeting. The summary must include the health professionals' names, the dates of service, the results of the person's most recent health examinations, a list of any prescribed medications, the current methods of administration for any prescription medication, and the purpose of each medication.

            (2) The objectives of an individual plan must be prioritized, stated separately in behavioral terms, specifying single outcomes.

            (a) An objective must include the following elements:

            (i) a statement of the conditions, as appropriate, in which the behavior is to occur;

            (ii) an objective, measurable description of the behavior;

            (iii) a statement of the acceptable level of performance;

            (iv) the names of persons, along with their affiliations, who have been assigned responsibility for implementation of each objective;

            (v) the dates by which the programs for each objective assigned by the individual planning team are to be implemented; and

            (vi) the date by which each objective is expected to be met.

            (2) A PSP must include an action plan if the person requires training or support to achieve the actions described in (1)(c). Each provider develops the action plan in accordance with department policy and provides it to the case manager within 14 calendar days after the PSP meeting.  An action plan must also be completed when the person has the following needs:

            (a) self-administration of medication;

            (b) supported employment;

            (c) rights restrictions; or

            (d) positive behavior supports approved according to ARM Title 37, chapter 34, subchapter 14.

            (3) The individual plan must be signed by all persons who have participated in developing the plan, including the person receiving services. Each participant must indicate whether the person agrees or disagrees with the plan. Each participant must acknowledge the confidential nature of the information presented and discussed.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1107 INDIVIDUAL PLAN: PLAN OF CARE: PERSONAL SUPPORT PLAN: COMPOSITION OF INDIVIDUAL PLANNING PLAN TEAM (1) The individual planning personal support plan (PSP) team should must include the following persons if available and willing to participate:

            (a) the person receiving services with a developmental disability, if able to participate;

            (b) the advocate of the person receiving services, unless the person does not have an advocate, if applicable;

            (c) the parents of the person receiving services or other family member(s), if the person is a minor or if the person, even though an adult, requests their partici­pation;

            (d)(c) the legal guardian representative of the person receiving services, unless the person does not have a guardian, if applicable;

            (e)(d) the PSP certified case manager of the person receiving services;

            (f)(e) at least one a staff person from each service program who works directly with the person receiving services; and

            (g) the qualified mental retardation professional (QMRP) or designee from the institution of origin if the person receiving services has not yet been formally dis­charged from that institution;

            (f)  other persons(s) who are approved by the person.

            (h) in cases where the person receiving services is currently enrolled in a public school, the persons designated to develop an individ­ualized education plan (IEP);

            (i) a field services specialist, if the case manager in (1)(e), herein, is a contracted case manager; and

            (j) professionals such as psychologists, medical personnel and others, as needed.

            (2) If the person receiving services, a legal guardian or parent of a minor or a legal representative is unable to participate in the PSP meeting, the reasons for that absence must be documented in writing by the case manager. the case manager must document the reasons for the absence.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1108 INDIVIDUAL PLAN: PLAN OF CARE: PERSONAL SUPPORT PLAN: STATUS REPORTS AND ANNUAL PLANNING MEETING QUARTERLY REPORTS (1) For each person receiving services, an individual plan status report must be produced on a quarterly basis. Providers must complete a quarterly report for each action statement.  The report must include:

            (a) Each corporation providing services for the person receiving services must assign a representative to participate in the development of the quarterly individual plan status report. a brief summary of progress toward the attainment of the action statements listed in the personal support plan (PSP); and

            (b) A copy of the individual plan status report must be provided to: a brief summary of any action taken to assure progress.

            (i) the case manager; and

            (ii) the developmental disabilities program program office, if the case manager is a contracted case manager.

            (c) An individual plan status report must include the following:

            (i) a summary of progress toward the attainment of the objectives listed in the individual plan;

            (ii) the need for or the action taken to assure progress; and

            (iii) the need, if any, to reconvene the individual planning team.

            (d) The case manager will, depending on the individual plan status report:

            (i) discuss the information with an assigned representative from the corporation;

            (ii) observe the implementation of objectives;

            (iii) review individual progress data to determine if there is a sufficient lack of progress to necessitate notification of the individual planning team; and

            (iv) send individual plan status reports to other planning team members upon request.

            (2) The individual planning team must meet at least annually to formally review the goals and objectives established at the previous planning meeting. In reviewing the previous plan, the team shall: Providers must submit quarterly reports:

            (a) analyze progress data for each objective selected at the last team meeting; every three months after the actual date of the initial PSP meeting; or

            (b) modify the goals and objectives as necessary; before the 30th day of January, April, July, and October, if the provider is on a calendar year schedule.

            (c) determine satisfaction with current services and supports; and

            (d) determine further services and supports that are needed.

            (3) Providers must prepare the quarterly report in the fourth quarter for review at the annual PSP meeting.

            (4) Providers must prepare and submit the quarterly report in the data management system approved by the department.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            37.34.1114 INDIVIDUAL PLAN: PLAN OF CARE: PERSONAL SUPPORT PLAN: DECISION MAKING (1) All decisions of an individual planning team must be made by consensus. The personal support plan (PSP) team must base all decisions on a team process which is person-driven and person-centered and ensures the health and safety of the person receiving services. The PSP team members must consider the:

            (a) person's rights;

            (b) person's needs, visions, and preferences;

            (c) person's health and safety needs;

            (d) Montana resources allocation (MONA) for the person; and

            (e) person's cost plan (ICP).

            (2) If an individual planning team does not have consensus on a matter, the team must adjourn for no more than 5 working days, to allow time for possible resolution of the matter at issue.

            (3) A team member who disagrees with the plan or wishes to comment on a matter in the plan, must notify the case manager in writing within 5 working days of receipt of the plan or modification to the plan.

            (4) The case manager must schedule an individual planning meeting within 5 working days of receiving written notice that a team member disagrees with the plan or a modification to the plan.

            (5) At the individual planning meeting held to reconsider a matter upon which there is disagreement, if a consensus is not reached, the unresolved issues must be clearly stated in the meeting summary. The written summary is sent to each team member.

            (6) Each individual planning team member who wishes to express a view point about issues upon which there is disagree­ment must submit the reasons for agreement or disagreement in writing to the case manager. The case manager must send a cover letter outlining the issues to the regional manager within 10 working days of the previous individual planning meeting. The meeting summary and any written materials submitted by team members are to accompany the letter.

            (7) The regional manager, within 10 days of the receipt of a letter from a case manager relating to an appeal, reviews the matter at issue, and after consideration of the meeting summary and any written materials submitted by team members, arrives at a decision in the matter.

            (8) If any individual planning team member is dissatisfied with the decision of the regional manager, the team member must notify the case manager in writing within 5 working days of receipt of the regional manager's decision. The case manager must refer the appeal immediately to the individual planning appeal committee as provided in ARM 37.34.1115(3).

            (9) In cases where an appeal occurs involving an individual who is currently enrolled in public school, the following procedures apply:

            (a) if the appeal arises in a situation where a team member is appealing an issue which impacts an individualized education program (IEP), federal and state authorities governing the IEP process shall have precedence over the appeal process in this rule;

            (b) if the appeal arises in a situation where a team member is appealing an issue which does not concern the IEP, the appeal process in this rule shall apply.

            (10) The decision of the individual planning appeal committee is the final administrative decision of the department.

 

AUTH: 53-2-201, 53-6-402, 53-20-204, MCA

IMP:     53-2-201, 53-6-402, 53-20-203, 53-20-205, MCA

 

            5. The department proposes to repeal the following rules:

 

            37.34.1109 INDIVIDUAL PLAN: DUTIES OF THE CASE MANAGER, is found on page 37-7469 of the Administrative Rules of Montana.

 

AUTH:    53-2-201, 53-20-204, MCA

IMP:        53-20-203, MCA

 

            37.34.1115 INDIVIDUAL PLAN: INDIVIDUAL PLANNING APPEAL COMMITTEE, is found on page 37-7474 of the Administrative Rules of Montana.

 

AUTH:     53-2-201, 53-20-204, MCA

IMP:       53-20-203, MCA

 

            6. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to amend ARM 37.34.1101, 37.34.1102, 37.34.1103, 37.34.1107, 37.34.1108, and 37.34.1114 and repeal ARM 37.34.1109 and 37.34.1115 pertaining to plan of care, personal support plans.  The department is also proposing New Rules I through III pertaining to plan of care, individual family service plans.  The rules in subchapter 11 were enacted in 1993 and it is necessary to make the above-mentioned rule changes in order to align the current rules with programmatic and policy updates. This rule change also serves to update the name from individual plan to personal support plan.

 

The rules as they currently exist reflect a team-driven planning process in which the plan is created for the person receiving services rather than with the person receiving services.  It is necessary to change these rules to reflect the department's person-centered approach to creating a personal support plan with the person, based upon not only what is important for the person but what is important to the person as well.

 

New Rule I

 

The department is proposing New Rule I regarding the personal support plan required assessments.  The assessments are the keystone of the person-centered thinking planning process.  The assessments not only serve to ensure the health and safety of the person, but also provide the opportunity for the person to effectively communicate their vision in the areas of living, employment, education, development and social domains.  In the current version of these rules, the assessments are embedded into the components listed in ARM 37.34.1103; however, in order to illuminate the importance of the assessments in person-centered plans, the department is proposing New Rule I to bring greater focus and emphasis on the assessments in the planning process.

 

New Rules II and III

 

The department is proposing New Rules II and III, individual family service plan (IFSP). New Rule II provides the purpose of the IFSP.  It is necessary to differentiate the purpose of the personal support plan for adults and the IFSP for children and families.  New Rule III adopts and incorporates the federal regulations for the development of the IFSP.  There are specific requirements in the code of federal regulations that control the development of IFSPs, therefore, it is necessary for the department to adhere to the federal regulations.

 

ARM 37.34.1101

 

The department is proposing to amend the purpose of the personal support plan to better reflect the change from the individual plan, with service provisions created for the person to provide systematic support, to the personal support plan, which is person-driven and person-centered.  It is necessary to reflect this change in purpose to create the foundation of person-driven and person-centered planning.

 

ARM 37.34.1102

 

The department is proposing language to amend the implementation of the personal support plan.  This rule amendment is necessary to define the steps and timeframes involved in the creation of a personal support plan and to ensure the person's involvement in the planning process via the development of the person's vision statements prior to the plan team meeting.

 

ARM 37.34.1103

 

The department is proposing to amend ARM 37.34.1103 in order to define the components of a personal support plan.  The conversion of the plan of care from individual plans to personal support plans alters the terminology and definitions used in practice.  This rule is necessary to identify each of the main components of a personal support plan and provides a clear understanding of the function of each component.

 

ARM 37.34.1107

 

The department is proposing to amend ARM 37.34.1107 to update the language from individual plan to personal support plan and to align the language with current policy.  This is necessary in order to correlate rule language and current policy.

 

ARM 37.34.1108

 

The department is proposing to amend ARM 37.34.1108 to update the language from individual plan to personal support plan and to align the language with current policy.  This is necessary in order to correlate rule language and current policy.

 

ARM 37.34.1114

 

The department is proposing to amend ARM 37.34.1114 to redefine the decision making process for the personal support plan. While the creation of a personal support plan is still a team process, the focus has shifted from creating the plan for the person to a team process which is person-centered.  It is necessary to update the current language in which the team was the center of the process.

 

ARM 37.34.1109

 

The department is proposing to repeal ARM 37.34.1109.  The responsibilities of the case manager in the planning process are clearly described in department policy.

 

ARM 37.34.1115

 

The department is proposing to repeal ARM 37.34.1115.  This is necessary because the individual planning appeal committee no longer exists.  ARM 37.5.115 outlines the Fair Hearing rules in relation to Montana developmental disabilities services.

 

            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., November 8, 2012.

 

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/ 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.