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| Montana Administrative Register Notice 37-690 | No. 24 12/24/2014 | |
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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 9, 2014, the Department of Public Health and Human Services published MAR Notice No. 37-690 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 2381 of the 2014 Montana Administrative Register, Issue Number 19.
2. The department has adopted New Rule IV (37.40.1006), V (37.40.1007), VI (37.40.1008), VIII (37.40.1013), IX (37.40.1016), X (37.40.1017), XI (37.40.1018), XII (37.40.1022), XIII (37.40.1023), XIV (37.40.1026), XV (37.40.1027), and XVI (37.40.1030) as proposed.
3. The department has adopted the following rules 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 (37.40.1001) AGENCY-BASED AND SELF-DIRECTED COMMUNITY FIRST CHOICE SERVICES: DEFINITIONS (1) through (5) remain as proposed. (6) "Community First Choice Services" (CFCS) means the delivery of medically necessary in-home and community-based services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living and instrumental activities of daily living. (7) and (8) remain as proposed. (9) "Functional assessment" means an assessment that is performed by the designated quality improvement organization licensed nurse to determine if the member qualifies for CFCS and requires assistance with activities of daily living, instrumental activities of daily living, and (10) through (25) remain as proposed. (26) "Self-directed services" means a service delivery option for CFCS. In this option the member, or a personal representative, takes responsibility of managing the CFCS. Under the self-directed option, the member or personal representative must hire, fire, supervise, and manage the personal care attendants. In this service option personal care attendants are employed by the provider agency. (27) through (32) remain as proposed.
AUTH: 53-2-201, MCA
NEW RULE II (37.40.1002) AGENCY-BASED AND SELF-DIRECTED COMMUNITY FIRST CHOICE SERVICES: ELIGIBILITY, SERVICES PROVIDED, AND LIMITATIONS (1) through (12) remain as proposed.
(14) and (15) remain as proposed, but are renumbered (13) and (14).
AUTH: 53-2-201, MCA
NEW RULE III (37.40.1005) AGENCY-BASED AND SELF-DIRECTED COMMUNITY FIRST CHOICE SERVICES: PERSON-CENTERED PLAN REQUIREMENTS (1) remains as proposed. (2) The Person-Centered Planning requirements in (1) may be delayed in the circumstances outlined in ( (3) through (5) remain as proposed. (6) A member will not receive CFCS beyond the service profile authorization unless one of two conditions is met: (a) The provider agency implements a temporary service plan as outlined in ( (i) through (10) remain as proposed.
AUTH: 53-2-201, MCA
NEW RULE VII (37.40.1012) AGENCY-BASED AND SELF-DIRECTED COMMUNITY FIRST CHOICE SERVICES: TERMINATION FROM SERVICES (1) and (2) remain as proposed. (3) The provider must give at least ten days advance notice to a member when CFCS are terminated for reasons listed in (1) (4) The provider may immediately, but temporarily, suspend services for the reasons listed in (1)(a) through (1) (5) and (6) remain as proposed.
AUTH: 53-2-201, 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: Commenters stated overall support of the proposed rules because they allow Montana to receive more funding for home-based service, which will improve service system and increase wages to direct care workers.
RESPONSE #1: The department appreciates the support and agrees that the ability to fund home-based services at an enhanced matching rate has the potential to affect the entire home-based service delivery system, including members and their direct care workers.
COMMENT #2: One commenter was concerned that the rate of reimbursement associated with the additional provider responsibilities was not sufficient to compensate for the loss of oversight reimbursement and increased administrative, planning, and other required duties.
RESPONSE #2: The fee schedule for the Personal Assistance (PA) program and Community First Choice (CFC) program was published with Montana Administrative Register (MAR) Notice No. 37-683 in July 2014. The increased administrative requirements and other expectations were included as part of the rationale for the necessity for the fee change and the resulting rates were increased to reflect this increased level of effort.
COMMENT #3: A couple of commenters were concerned that the language in New Rule I(6) of "in-home services" was restrictive for purposes of the CFC service delivery model since some of the CFC services are delivered outside of the home. A couple of commenters were also concerned that the definition was limited to medically necessary activities of daily living and failed to take into consideration services available outside the home to enable members to participate in community activities.
RESPONSE #3: The department's intent is that these services are delivered where the member needs them in accordance with the approved person-centered plan and they are inclusive of both activities of daily living and instrumental activities of daily living. We have made a change in the rule language to read: "Community First Choice Services" (CFCS) means the delivery of medically necessary in home and community-based services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living and instrumental activities of daily living.
COMMENT #4: One commenter suggested using the phrase "health maintenance activity" in New Rule I(9), rather than, "health-related task" to describe this service.
RESPONSE #4: The department agrees with this comment and has amended New Rule I(9) to read "health maintenance activities" rather than health-related tasks.
COMMENT #5: One commenter asked for a clarification in New Rule I(10) regarding the distribution of health care for health care worker funding and whether it included Personal Assistance Services (PAS).
RESPONSE #5: Proposed New Rule XVI outlines the full scope of this program as it pertains to CFC and to PAS. New Rule XVI(1)(a) specifies that these funds will be distributed based on Medicaid utilization for providers that participate in each of these programs.
COMMENT #6: A few commenters suggested that the department use the term "personal assistant" rather than "personal care attendant" in New Rule I(18).
RESPONSE #6: The department collaborated with a work group to decide on terminology that was consumer-focused and would resonate with the service recipients. "Personal care attendant" was the term the group advised the department to use. It is also a widely accepted and utilized term in the home-based service delivery arena.
COMMENT #7: One commenter recommended that in New Rule I(26) a statement about a personal care assistant being an employee of the provider agency should be added to the service definition.
RESPONSE #7: The department had already stated in New Rule II(14) that CFCS must be delivered by a CFCS personal care attendant employed by an enrolled Medicaid provider that has met the criteria established by the department for the delivery of CFCS as referenced in New Rules X and XI. We agree that it would be helpful to add this additional clarification to New Rule I(26) as it relates to self-directed services and have done so.
COMMENT #8: One commenter questioned why, in New Rule I(30), skill acquisition, maintenance, and enhancement service should be based on a member needing assistance with a task and proposed authorizing the service when someone needed to learn or relearn the task.
RESPONSE #8: The CFC federal regulation 42 CFR 441.520(a)(2) stipulates included services as the following: "acquisition, maintenance, and enhancement of skill necessary for the individual to accomplish ADLs, IADLs and health-related tasks." The department established the service definition for skill acquisition based on the terminology in the federal statute, which focuses on the term "skill." The department believes that the current definition for this service is in alignment with the intent of the regulation and Montana's CFC state plan because it provides additional support to a member to acquire the skills necessary to achieve independence with a task.
COMMENT #9: A couple of commenters suggested the department change the service limits for instrumental activities of daily living (IADL) in New Rule II(3) because they did not allow sufficient time to perform Community Integration.
RESPONSE #9: The CFC program provides for an expansion of services under the state plan option. This expansion includes increased service options under the category of instrumental activities of daily living and additional time to perform these tasks. The majority of Medicaid CFC members will receive additional time to perform these activities. The limits are in compliance with Montana's CFC state plan amendment. The person-centered planning process provides a member with the opportunity to prioritize their needs for instrumental activities of daily living and make individual decisions about what would be most beneficial to the member based on the service limits.
The department believes there is value in providing additional IADL support and has structured the Medicaid waivers to provide for expanded support. The department will continue to look at the costs associated with home-based services to determine whether it is more advantageous to deliver these services under the state plan or waiver option. The department has also committed to continued meetings with the Community First Choice Advisory Council to discuss ways to enhance and expand service options.
COMMENT #10: A couple commenters suggested that the service section in New Rule II(7) should include the provision of activities of daily living (ADL) outside the home.
RESPONSE #10: New Rule II(7) provides for the delivery of ADL tasks in association with specified IADL services outside the home. These services include shopping, community integration, and medical escort. The authorization and delivery of these services are based on the assessment that there is a need for ADL assistance while the member participates in the IADL service. The provision of ADL activities when a member is not participating in community integration, shopping, or medical escort must be provided in the member's home.
COMMENT #11: Multiple comments were received related to concerns with the language in New Rule II(9)(c) that stated CFC services would not be available if a member lives in a home which is not safely accessible by normal modes of transportation. They were concerned this would limit access to service for members who live in remote areas of our state. A few commenters also questioned how "safely accessible" would be defined.
RESPONSE #11: The department believes there is merit in maintaining this language because there are situations where it is impossible for the required department staff, contract staff, provider agency staff, and personal care attendants to reach a member to assess, authorize, or deliver services. In these situations it may not be possible to provide CFC services to a member. The department, provider, and contract agencies are very cognizant of the rural nature of the state and are creative when trying to provide services in remote areas. The determination whether a home is accessible will be made on a case-by-case basis and based on the facts of each specific situation.
COMMENT #12: One commenter suggested a change in language in New Rule II(11)(d) from "certified" to "trained" regarding the use of CFC services for the maintenance of animals.
RESPONSE #12: The department requires that a service animal be certified in order to qualify for assistance. The suggestion for an animal to be "specifically trained to meet the needs of the member" is too broad to meet the criteria for this service category. The waiver program has a certification program for service animals and the CFC service is intended to allow a personal care attendant to maintain service animals for members who receive a service animal that has gone through the waiver certification process or a similar type of certification.
COMMENT #13: A commenter suggested that the New Rule II(13) be expanded to include children on waivers.
RESPONSE #13: The department has reviewed this section and has decided to remove the language in New Rule II(13) from the CFC rule. CFC services are only available under the CFC state plan option. Waivers provide expanded state plan services and the scope and type of services provided in each waiver are defined in each of the specific waiver's administrative rules and as such we do not need to state this requirement in these rules.
COMMENT #14: One person commented that they believe the requirement in New Rule III(4) for the coordination of the person-centered planning visit seems like a significant waste of time and is a conflict of interest because information shared may not be relevant to all parties.
RESPONSE #14: The requirement for coordination of the person-centered planning process between case managers and CFC provider agencies is designed to improve service outcomes for members. Prior to making this decision, the department conducted an online survey of members, advocates, providers, case managers and worked with the CFC Advisory Council, to gather recommendations on how to improve the home-based service delivery system and make it more person centered. The feedback that was gathered emphasized the need for coordination of visits and sharing of information. New Rule III incorporates this feedback into the functional design of the CFC program.
The department agrees with this commenter that there may be information conveyed in the coordinated visit that is not relevant to all participants. As such, the department only requires that the CFC person-centered planning components be communicated during the joint visit. There may be other portions of the visit that someone may not attend. The department encourages the plan facilitator and CFC agency staff to communicate with members and use the person-centered planning framework to coordinate and schedule the visits with the member so member preferences and concerns are addressed.
COMMENT #15: One commenter was concerned that New Rule V(3) implied a member who qualifies for health maintenance activities would not have a choice to receive those services in another service arena.
RESPONSE #15: Mountain Pacific Quality Health will only authorize a service based on a member's identified need for the service and the member's desire to receive the service through the self-directed program. If a member would like to receive health maintenance activities in another service arena they can communicate this to Mountain Pacific Quality Health and receive the service. These services will no longer be authorized under their CFC plan.
COMMENT #16: One commenter suggested that the department remove the limitation in New Rule VI(2)(c) that a personal representative cannot be employed by the member's CFC provider agency.
RESPONSE #16: The department has established this assurance as a safeguard to ensure there are no conflicts of interest for the personal representative and to ensure that the person can act solely on behalf of the member.
COMMENT #17: Regarding New Rule VII(1)(g), one commenter asked if a member could be terminated from the program under this rule if she does not want a member of the opposite sex doing her bathing, etc.
RESPONSE #17: If a member does not want someone of the opposite sex to perform certain tasks the member would indicate this preference in the person-centered planning process and the agency would be expected to comply with this request. However, if the member discriminates solely or partly on the attendant's race, creed, religion, sex, marital status, color, age, handicap, or national origin, they may be subject to termination from the program.
COMMENT #18: Regarding New Rule VII(2), one commenter stated that termination of the CFC program or reduction of available services should require legislative action.
RESPONSE #18: Termination or reduction of CFC services may occur when funding is unavailable. Legislative action is one reason this may occur but it is not the only reason. The department is given broad authority to make these decisions when necessary without legislative approval in order to manage Medicaid programs.
COMMENT #19: Several commenters suggested additions or clarifications to New Rule VII(3) and (4). One requested that termination rights be granted when a member doesn't maintain Medicaid eligibility. Another commenter requested that illegal activity in the home and falsification of service delivery records be considered for immediate termination.
RESPONSE #19: The department has clarified New Rule VII(3) to incorporate the reasons for ten-day advanced notice to a member when CFCS are terminated for reasons listed in New Rule VII(1)(f) through (1)(j) of this rule section, and has clarified New Rule VII(4) to incorporate the reason that a provider may immediately, but temporarily, suspend services for the reasons listed in New Rule VII(1)(a) through (1)(e) which includes the member is engaging in illegal activity in the home. We will not change the falsification of service delivery records New Rule VII(1)(j) recommendation for immediate termination.
COMMENT #20: Regarding New Rule VII(4), a commenter requested that the department provide further direction on the terms a provider should use to enter into an agreement when violations have occurred.
RESPONSE #20: New Rule VII(4) states that a provider agency may enter into an agreement with a member to ensure that violations do not reoccur. This is not mandatory. As such the department believes it is important to leave the parameters of this arrangement up to each provider agency's internal policy and procedures.
COMMENT #21: Several comments were received in favor of New Rules X and XI. The comments included that the new rules would address the deficiencies of skill levels and training for staff. The comments also indicated that quarterly reports would allow the department to collect information to improve the quality of self-directed services delivered to members enrolled in the CFC program.
RESPONSE #21: The department agrees that the information gathered may be helpful in determining whether additional training is required related to this service delivery option and will allow the department to evaluate the work force quality, stability, and sustainability.
COMMENT #22: Regarding New Rule XI(6), one commenter requested additional language be added to "allow the provider agency the right to terminate personal assistants for failure to follow agency rules."
RESPONSE #22: The goal of the Self-Directed CFC program is to provide members choice and control over the services they receive. New Rule VI requires the self-directed CFC member be capable of recruiting, hiring, scheduling, training, and dismissing all personal care attendants. The member has the responsibility to terminate a personal assistant for failing to follow agency rules when appropriate.
COMMENT #23: Several comments were received regarding opposing New Rule XI(7). The comments included that the information received could be construed as a Health Insurance Portability and Accountability Act (HIPAA) breach, there was concern about disclosure of the information received and the feeling that it was an unnecessary violation of personal privacy, concern that the rule is not voluntary, concern that the rule may detract individuals from choosing to become a personal assistant, increased administrative burden for provider agencies, and the department should not single out self-direct providers. Some commenters were also concerned that the statement of reasonable necessity regarding the department's involvement in reporting and training of the workforce was contrary to the philosophy of the self-directed program.
There were also several comments in support of New Rule XI(7) as set forth in Comment #21.
RESPONSE #23: The information required for quarterly reports of workers that deliver self-directed services does not include protected health information; therefore, it is not considered a HIPAA breach of information. The CFC program is funded with Medicaid dollars and the need to gather information regarding the delivery of services and the accountability and sustainability of services is appropriate and necessary in order to manage this joint state and federal program. The information required will be used to evaluate this work force for quality, stability, and sustainability. The department may create a voluntary online directory that could assist a member in choosing a personal assistant.
The department will work with self-direct provider agencies to create a streamlined process for providing the information required with quarterly reports to have the least amount of administrative burden possible. The department will also work with provider agencies and consumers, within the framework of the self-directed model, to make decisions on identifying and responding to workforce training needs that may be identified through the reports.
Finally, the department recognizes the differences in the expectations of the agency-based and self-directed options of the CFC program and has determined that the self-direct option would benefit from having the information from quarterly reports and a voluntary online directory. Based on the results of the quarterly reporting for self-directed programs, the department may make a decision in the future that this reporting requirement would be beneficial for agency-based programs and may adopt rules to expand the reporting requirement to agency-based providers.
COMMENT #24: New Rule III(2) and (6) have an incorrect reference related to where the temporary service plan requirements can be found. The correct reference should be New Rule III(7) as was noted at the public rule hearing.
RESPONSE #24: The department has made this correction in New Rule III(2) and (6)(a) to correct this reference to temporary service plans to reference New Rule III(7).
5. The department intends to apply these rule adoptions retroactively to July 1, 2014. The implementation date is consistent with the federal approval of the Community First Choice state plan amendment. A retroactive application of the proposed rule adoptions does not result in a negative impact to any affected party.
/s/ Valerie Bashor /s/ Richard H. Opper Valerie Bashor, Attorney Richard H. Opper, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State December 15, 2014
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