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 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 ADOPTION, AMENDMENT, AND REPEAL

TO: All Concerned Persons

1. On October 11, 2012, the Department of Public Health and Human Services published MAR Notice No. 37-607 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 1983 of the 2012 Montana Administrative Register, Issue Number 19.

2. The department has adopted New Rule I (37.34.1105) and III (37.34.1119) as proposed.

3. The department has amended ARM 37.34.1101, 37.34.1102, and 37.34.1108 as proposed.

4. The department has repealed ARM 37.34.1109 and 37.34.1115 as proposed.

5. 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 II (37.34.1117) PLAN OF CARE: INDIVIDUAL FAMILY SERVICE PLAN: PURPOSE (1) An individual family service plan (IFSP) must be adopted for children through 16 15 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

6. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

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

(a) 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.

(b) 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.

(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 PSP may include an action plan developed by the provider responsible for completing the specific action. If an action plan is required, the provider must:

(a) ~~self-administration of medication~~ develop the action plan in accordance with department policy;

(b) ~~supported employment~~ describe the training and support the person needs to achieve the action statements required in (1)(c); and

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

(3) A PSP must include an action plan developed by the provider when the person has the following needs:

(a) self-administration of medication;

(b) supported employment;

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

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 PLAN OF CARE: PERSONAL SUPPORT PLAN: PLAN TEAM

(1) The personal support plan (PSP) team must include the following persons:

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

(b) the advocate of the person, if applicable;

(d) the PSP certified case manager of the person;

(e) a staff person from each service program; and

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

(2) If the person or a legal representative is unable to participate in the PSP meeting, the case manager must document the reasons for the absence and subsequently submit the plan of care to the person or legal representative for their review. The person or their legal representative may request that the team meet to consider any objections that they may have.

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 PLAN OF CARE: PERSONAL SUPPORT PLAN: DECISION MAKING (1) 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;

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

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

(2) All decisions of the PSP team must be made in consensus.

(3) If consensus cannot be reached, the person(s) who does not consent may submit their disagreement along with the justification for their disagreement within five working days to the regional manager. The regional manager must:

(a) make a determination within five working days; and

(b) provide the determination in writing to the members of the PSP team.

(4) The person receiving service maintains the right to request an administrative fair hearing.

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

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

New Rule II (37.34.1117)

The department is taking this opportunity to clarify the language in New Rule II (37.34.1117). The wording should have either read "to 16 years of age" or "through 15 years". The department has changed it to correctly state "through 15 years".

COMMENT #1: Multiple commenters stated their concern relating to the lack of an appeals process in the proposed rules.

RESPONSE #1: The department appreciates the commenters' concern and intends to review the administrative rules pertaining to developmental disabilities services and through a future rule notice procedure, will propose necessary changes to clearly establish the scope and nature of the right to a fair hearing for plan of care appeals. In accordance with federal requirements, the right to a fair hearing for a person receiving services will remain available.

COMMENT #2: One commenter stated concern that the proposed rules are less person-driven than the current rule. The commenter stated that the proposed rules do not address the person's individual rights, do not address if a person's consent is required prior to implementation, and removes the administrative appeal process.

RESPONSE #2: The department does not agree that the proposed rules are less person-driven than the current rules. The person's participation in the planning process is required, if they are able to participate, and the plan of care team must base all decisions on the person's rights, needs, visions, preferences, health and safety needs, and financial allocation as described in the proposed ARM 37.34.1114. The person's right for due process remains available.

COMMENT #3: One commenter requested the consent of the person or the person's legal representative be required to implement a plan of care.

RESPONSE #3: Adoption and implementation of a plan of care may proceed without the consent of the person or the person's legal representative. However, the person or the person's legal representative has the right to an administrative fair hearing appeal if there is disagreement with the final determination of the regional manager to proceed with the plan of care. If the person wishes to receive services from another provider, the person may follow the porting policy to obtain a placement. In addition, a person or their legal representative may make a decision for the person to withdraw from services.

COMMENT #4: One commenter requested that the word "that" be removed from ARM 37.34.1103(1)(c).

RESPONSE #4: The department does not agree with the requested change as the intent is not a definition rule. This proposed rule contains a list of components of a personal support plan, each of which has specific requirements.

COMMENT #5: One commenter stated they would like the department to add a definition section to ARM 37.34.1103(1), defining an action plan.

RESPONSE #5: The department will add further clarifying language to ARM 37.34.1103(2) which addresses the action plan to further describe the requirements.

COMMENT #6: One commenter suggested adding language to ARM 37.34.1107(2) for the case manager to submit the personal support plan to the person or the person's legal representative in the event they could not attend the plan of care meeting, in order to acquire consent.

RESPONSE #6: The department has reviewed the rule and will add language for the case manager to submit the personal support plan to the person or the person's legal representative in the event they could not attend the team meeting to allow for their review and to provide that they may request the team meet if there are objections.

COMMENT #7: One commenter requested that the department add a definition for legal representative.

RESPONSE #7: The department agrees with the commenter and intends to at a future date, add a definition of legal representative; however, since that terminology is used in all of our rules, we will not define it here, rather we intend to define it for the entire chapter of rules.

8. These rule amendments are effective upon publication.

/s/ Cary B. Lund /s/ Richard H. Opper

Rule Reviewer Richard H. Opper, Director

Public Health and Human Services

Certified to the Secretary of State January 22, 2013