BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of 37.85.406, 37.86.101, 37.86.105, 37.86.202, and 37.86.205 pertaining to early elective delivery and ancillary services clarification

) ) ) ) )

NOTICE OF AMENDMENT

 

TO: All Concerned Persons

 

1. On July 24, 2014, the Department of Public Health and Human Services published MAR Notice No. 37-684 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1583 of the 2014 Montana Administrative Register, Issue Number 14.

 

2. The department has amended ARM 37.85.406, 37.86.101, and 37.86.202, as proposed.

 

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

 

            37.86.105 PHYSICIAN SERVICES, REIMBURSEMENT/GENERAL REQUIREMENTS AND MODIFIERS (1) through (8) remain as proposed.

            (9) Effective October 1, 2014, Medicaid reimbursement for child delivery will not be made unless the claim meets the following coding requirements. Claims for child delivery must have one of the following line procedure code modifiers or the line will be denied:

      (a) through (d) remain as proposed.

            (10) Effective October 1, 2014, the department will reduce reimbursement to physicians that perform early elective inductions or cesarean sections prior to 39 weeks and 0/7 days gestation or nonmedically necessary cesarean sections at any gestation by not including t The maternity policy adjustor as part of the reimbursement for the service is not applied to early elective delivery.

            (11) Gestational age must be determined and documented in medical records. Confirmation of weeks gestation must be determined by the The department accepts the following American Congress of Obstetricians and Gynecologists guidelines for determining gestational age. At least one of the following guideline standards must be met:

            (a) fetal heart tones must have been documented for 20 weeks by nonelectronic fetoscope or 30 weeks by Doppler;

            (b) 36 weeks since a positive serum or urine pregnancy test that was performed by a reliable laboratory at least 36 weeks prior to delivery; or

            (c) an ultrasound prior to 20 weeks gestation that confirms the gestational age of at least 39 weeks at delivery.; or

            (12) (d)  If when pregnancy care was is not initiated prior to within 20 weeks of gestation, the gestational age may be documented from the first day of the last menstrual period (LMP).

 

AUTH: 53-6-101, 53-6-113, MCA

IMP:     53-6-101, 53-6-113, MCA

 

            37.86.205 MID-LEVEL PRACTITIONER SERVICES, REQUIREMENTS AND REIMBURSEMENT (1) through (10) remain as proposed.

            (11) Effective October 1, 2014, Medicaid reimbursement for child delivery will not be made unless the claim meets the following coding requirements. Claims for child delivery must have one of the following line procedure code modifiers or the line will be denied:

(a) through (d) remain as proposed.

            (12) Effective October 1, 2014, the department will reduce reimbursement to mid-level practitioners that perform early elective inductions or cesarean sections prior to 39 weeks and 0/7 days gestation or nonmedically necessary cesarean sections at any gestation by not including t The maternity policy adjustor as part of the reimbursement for the service is not applied to early elective delivery.

            (13) Gestational age must be determined and documented in medical records. Confirmation of weeks gestation must be determined by the The department accepts the following American Congress of Obstetricians and Gynecologists guidelines for determining gestational age. At least one of the following guideline standards must be met:

            (a) fetal heart tones must have been documented for 20 weeks by nonelectronic fetoscope or 30 weeks by Doppler;

            (b) 36 weeks since a positive serum or urine pregnancy test that was performed by a reliable laboratory at least 36 weeks prior to delivery; or

            (c) an ultrasound prior to 20 weeks gestation that confirms the gestational age of at least 39 weeks at delivery.; or

            (14) (d) If when pregnancy care was not initiated prior to within 20 weeks gestation, the gestational age may be documented from the first day of the last menstrual period (LMP).

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-6-101, MCA

 

4. 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: One commenter expressed concern over using the American Congress of Obstetricians and Gynecologists (ACOG) guidelines for determining weeks of gestation, and said that two of the three guidelines, accepted by the department, are not used in practice.

 

RESPONSE #1: The department will continue to use the ACOG guidelines listed in the rule to document gestational age. If a practitioner does not agree with a particular ACOG guideline, he or she may document gestational age using a different, listed guideline.

 

COMMENT #2: One commenter expressed concern over the wording of the rules establishing criteria for documenting gestational age. He stated that the rule applicable when pregnancy care is not initiated prior to 20 weeks gestation was incorrecty worded. He also disagrees with the requirement that the gestation age may be documented from the first day of the last menstrual period (LMP).

 

RESPONSE #2: A determination must be made of gestational age and documented in medical records. The department is revising the language of ARM 37.86.105 and 37.86.205 for clarity.  However, the department is only permitting usage of the LMP method in those situations where prenatal care is initiated after 20 weeks gestation.

 

COMMENT #3: Three commenters expressed concern that claims for patients who require cesarean section or elective induction will have a reduced reimbursement.

 

RESPONSE #3: "Early elective delivery" is defined to mean either a nonmedically necessary labor induction or cesarean section that is performed prior to 39 weeks and 0/7 days gestation. Labor inductions and cesarean sections that are medically necessary will not have reimbursement reductions.

 

COMMENT #4: One commenter expressed concern that the department is mandating the usage of nonstandard code sets by requiring the usage of nonstandard modifiers. This commenter feels this is a violation of the Health Information Portability and Accountability Act (HIPAA).

 

RESPONSE #4: The department's research determined which modifiers are not used by Montana's Medicaid Program and researched which modifiers other state Medicaid programs use in their efforts to reduce early elective deliveries. The department determined the usage of modifiers CG, GK, KX, and SC is appropriate. The department does not agree that it is a violation of HIPAA to use these line procedure code modifiers.

 

COMMENT #5: One commenter expressed concern that the usage of modifiers will force modification to claim generating systems for providers, at great expense to those providers.

 

RESPONSE #5: The department informed the provider community of the usage of these modifiers for this project well in advance of implementation. The department contends that this should not be burdensome to providers to implement.

 

COMMENT #6: Two commenters expressed concern that a substantial number of Montanans reside in rural communities without access to prenatal and obstetrical care. They asked for an exception to the ACOG standards for those circumstances where women are traveling for obstetrical care outside of their home community.

 

RESPONSE #6: The department is following ACOG and Joint Commission guidelines in determining medical necessity. Distance from the chosen hospital is not an ACOG or Joint Commission approved diagnosis for elective induction.

 

COMMENT #7: Three commenters expressed concern that the medical community has already adopted the standards recommended, thereby, making the department's regulation unnecessary. They point out that recent data reflects this.

 

RESPONSE #7: The department appreciates those providers that have adopted these standards. It has been determined that implementation of a policy to decrease the rate of reimbursement for early elective deliveries decreases the number of early elective deliveries and improves neonatal outcomes.

 

COMMENT #8: Three commenters questioned whether the department has adequately studied the issue of early elective deliveries to determine if an issue exists and is of a nature that requires a regulatory response.

 

RESPONSE #8: The department appreciates these comments. The department and others have adequately studied these issues. It has been determined that implementation of a policy to decrease the rate of reimbursement for early elective deliveries decreases the number of early elective deliveries and improves neonatal outcomes.

 

COMMENT #9: One commenter expressed concern that some physicians will be so concerned about reimbursement that they'll exercise poor judgment in applying these administrative rules which will result in harm to mothers and their babies.

 

RESPONSE #9: The department believes that these administrative rule changes will impact physician practice patterns in a positive fashion.

 

            5. These proposed rule amendments are effective October 1, 2014.

 

 

 

/s/ Francis X. Clinch                                                /s/ Mary E. Dalton acting for                      

Francis X. Clinch                                                    Richard H. Opper, Director

Rule Reviewer                                                       Public Health and Human Services

           

Certified to the Secretary of State September 8, 2014