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 X pertaining to the implementation of the Montana health and economic livelihood partnership (HELP) program

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NOTICE OF ADOPTION

 

TO: All Concerned Persons

 

1. On October 29, 2015, the Department of Public Health and Human Services published MAR Notice No. 37-730 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1837 of the 2015 Montana Administrative Register, Issue Number 20.

 

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

 

NEW RULE I (37.84.101) HELP PROGRAM ACT: PURPOSE (1) remains as proposed.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-131, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1306, 53-6-1307, MCA

 

          NEW RULE II (37.84.102)  HELP PROGRAM ACT: DEFINITIONS

          (1) "Advance Benefit Notice (ABN)" means a notice that providers give to the participant when they have determined that a service or item is a noncovered benefit of the Health and Economic Livelihood Partnership (HELP) Program Plan. The ABN provides notice to the participant that the participant is responsible for the full payment of the particular service.

          (2) remains as proposed.

          (3) "Aligned Medicaid Alternative Benefit Plan" means a service plan available to HELP members that is equivalent to the Medicaid services described in ARM Title 37, chapters 86 and 88.

          (3) and (4) remain as proposed, but are renumbered (4) and (5).

          (5) (6)  "Benefits" means the services a participant person is eligible to receive. The HELP Program benefits are stated in its the Evidence of Coverage or the Aligned Medicaid Alternative Benefit Plan as applicable.

          (6) through (8) remain as proposed, but are renumbered (7) through (9).

          (9) "Early and periodic screening, diagnostic, and treatment (EPSDT) services" means services as defined in ARM Title 37, chapter 86, subchapter 22.

          (10) remains as proposed.

          (11) "Evidence of Coverage (EOC)" means a document that explains covered services, defines the plan's HELP Plan's obligations, and explains the rights and responsibilities of the plan HELP Plan participant.

          (12) "Experimental, investigational, and unproven" means any drug, device, treatment, or procedure that meets any of the following criteria:

          (a) through (f) remain as proposed.

(g) it is experimental, investigational, unproven, or not a generally acceptable medical practice in the predominate predominant opinion of independent experts utilized by the administrator of each plan; or

          (h) it is not experimental or investigational in itself pursuant to the above and would not be medically necessary, but it is being provided in conjunction with the provision of a treatment, procedure, device, or drug which that is experimental, investigational, or unproven.

          (13) through (15) remain as proposed.

          (16) "Health and economic livelihood partnership (HELP) plan" means the participant's benefits as described in the evidence of coverage, the network of providers, the coordination of care, and the claims processing that is administered by the third-party administrator pursuant to the HELP Act.

          (16) (17)  "Health and economic livelihood partnership (HELP) program" means a Medicaid coverage program for persons as authorized at Title 53, chapter 6, part 13, MCA, and as implemented in accordance with that part, 53-2-215, MCA, 42 U.S.C. 1315 (2015), 42 U.S.C. 1396d(y) (2015), and other applicable state and federal authorities for those persons who are eligible for the HELP Program as authorized under 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2015), exclusive of those individuals exempt pursuant to 53-6-1305(3), MCA, and served under Title 53, chapter 6, part 1, MCA.

          (18) "Healthy behavior plan" means a program implemented to improve the health of participants by providing services focused on the promotion or maintenance of good health.

          (17) remains as proposed, but is renumbered (19).

          (18) (20)  "Inpatient hospital services" means services that are ordinarily furnished in an acute care hospital for the care and treatment of a patient under the direction of a physician, dentist, or other practitioner as permitted by federal law services or supplies provided to the participant who has been admitted to a hospital as a registered bed patient and who is receiving services under the direction of a participating provider with staff privileges at that hospital, including a critical access hospital. The facility must:

          (a) be licensed or formally approved as an acute care or critical access hospital by the officially designated authority in the state where the institution is located; and

          (b) remains as proposed.

          (19) "Medicaid state plan benefit" means the Medicaid services described in ARM Title 37, chapter 86.

          (20) remains as proposed, but is renumbered (21).

          (21) (22) "Medically necessary" or "medically necessary covered services" means services and supplies that are necessary and appropriate for the diagnosis, prevention, or treatment of physical or mental conditions as specified in the HELP Program Plan Evidence of Coverage provided in [New Rule IV].

          (23) "Member" means an individual enrolled in the Montana Medicaid Program under 53-6-131, MCA, or receiving Medicaid-funded services under 53-6-1304, MCA.

          (22) remains as proposed, but is renumbered (24).

          (23) "Nonemergency transportation service" means travel furnished by a licensed motor carrier or by a private vehicle.

          (a) Nonemergency transportation service does not include ambulance services.

          (b) A motor carrier operated by the Indian Health Service (IHS) or by a federally recognized Indian Tribe, which meets all applicable standards for a class B public service commission license, need not be licensed for the purposes of this subchapter.

          (24) (25)  "Outpatient hospital facility services" means preventive, diagnostic, therapeutic, rehabilitative, or palliative services provided to an outpatient by or under the direction of a physician, dentist, or other practitioner as permitted by federal law. The facility must:

          (a) be licensed or formally approved as a an acute care or critical access hospital by the officially designated authority in the state where the institution is located; and

          (b) remains as proposed.

          (25) (26)  "Participant" means an individual enrolled in the HELP Program established in Title 53, chapter 6, part 13, MCA, and Title 39, chapter 12, MCA. A participant who is eligible for and enrolled with the HELP Program and who can receive covered benefits as determined by the department under this subchapter or 42 U.S.C. 1396a. An individual who meets the criteria of 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2015) is eligible to be a participant. An individual is not a participant while an eligibility hearing decision is pending or during any period a hearing officer determines the individual was not eligible for HELP Program coverage benefits receiving benefits through the HELP Plan.

          (26) (27)  "Participating provider" means a health care professional or facility that is enrolled in the HELP Program participating in either the HELP Plan network or the Medicaid program.

          (27) remains as proposed, but is renumbered (28).

          (28) (29)  "Premium" means a fee owed by an individual as a participant in the HELP Program Plan.

          (29) remains as proposed, but is renumbered (30).

          (30) "Qualifying life event" is a change in a participant's life that allows them to change benefit plans, examples are pregnancy and the onset of a disability.

          (31) remains as proposed.

          (32) "Third party administrator (TPA)" means an entity with a certificate of registration to conduct business in Montana in accordance with 33-17-603, MCA. TPA appropriately authorized, as may be required by Montana law, to provide administrative services include including, but are not limited to, claims processing, maintaining an adequate network of participating providers, coordination and continuation of care, health education, notices, quality assurance, reporting, case management services, and customer service.

          (33) "Tribal health services" means a facility or location owned and operated service provided by a federally recognized American Indian Tribe or tribal organization under a P.L. 93-638 agreement, which provides diagnostic, therapeutic (surgical and nonsurgical), and rehabilitation services to tribal members either in an inpatient or outpatient setting.

          (34) "Wellness program" means a program implemented to improve the health of participants by providing services focused on the promotion or maintenance of good health.

          (35) remains as proposed, but is renumbered (34).

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-131, 53-6-1304, 53-6-1305, 53-6-1306, 53-6-1307, MCA

 

          NEW RULE III (37.84.103) HELP PROGRAM ACT: ELIGIBILITY FOR COVERAGE (1) remains as proposed.

          (2) HELP Program coverage, as specified in (1), is inclusive of a person who is over the age of 19 and under the age of 65 through 64 years of age, who has a modified adjusted gross income at or below 138% of FPL as appropriate to the household size, and who is not:

          (a) and (b) remain as proposed.

          (c)  disabled as determined for purposes of social security; or

          (d) in one of the other categories for Medicaid coverage that are excluded from Medicaid expansion coverage by the language of the applicable federal statute authority; or

          (e) receiving coverage through the standard Medicaid state plan as a person who is:

          (i) medically frail;

          (ii) an American Indian or Native Alaskan; or

          (iii) excluded otherwise by federal law.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-131, 53-6-1304, MCA

 

          NEW RULE IV (37.84.106) HELP PROGRAM ACT: BENEFITS PLANS

          (1) Coverage of health care services for a participant person in the HELP Program, except as provided in (2), is provided through the HELP TPA benefits pPlan.

          (2) A participant may be excluded from the HELP TPA benefits plan and receive coverage through the standard Medicaid state plan if the participant A person eligible under the HELP Program may be excluded from the HELP Plan and receive coverage through the Aligned Medicaid Alternative Benefit Plan if the person:

          (a) lives in a geographical area, including an Indian reservation, for which where the TPA is unable to make arrangements with sufficient numbers and types of health care providers to offer services to participants; or

          (b) needs continuity of care that would not otherwise be available or cost-effective through the TPA, including American Indians and Alaska Natives.;

          (c) has been determined by the department to have exceptional health care needs, including, but not limited to, a medical, mental health, or developmental condition; and

          (d) is exempt by federal law, including all individuals with incomes up to 50 percent of the FPL, from premium or cost-sharing obligations and other exemptions not waived by CMS.

          (3) The department adopts and incorporates by reference the HELP Program Plan Evidence of Coverage (EOC) dated January 1, 2016, which is available on the department's web site at http://dphhs.mt.gov/MontanaHealthcarePrograms.

          (4) The HELP Program Plan EOC describes the health care benefits, inclusive of limitations upon those benefits, available to the HELP Program Plan participants.

          (5) Services that are not covered, not reimbursable, not medically necessary, experimental, investigational, unproven, or performed in an inappropriate setting are not covered benefits in the HELP Program Plan.

          (6) remains as proposed.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1305, MCA

 

          NEW RULE V (37.82.301)  MAGI AS THE MEASURE OF INCOME

          (1) Effective January 1, 2014, except for participants members receiving aged, blind, or disabled benefits or benefits based on participation in a Medicaid home and community-based services waiver, a participant's person's income must be determined in accordance with 42 U.S.C. 1396a(e)(14) (2015), which establishes modified adjusted gross income (MAGI) as the required measure of income.

          (2) There is no resource test for participants whose income is calculated based on MAGI.

          (3) remains as proposed, but is renumbered (2).

 

AUTH: 53-6-113, MCA

IMP: 53-6-131, MCA

 

          NEW RULE VI (37.84.107) HELP PROGRAM ACT: HELP PLAN PREMIUMS (1) A HELP Program Plan participant must pay an annual a premium, billed monthly, equal to two percent of the prorated share of the participant's annual household income. The premium will be billed in twelve equal monthly amounts.

          (2) A participant, except as provided in (4) and (5), for whom a due premium has not been paid and remains owing an overdue premium is owed, may will be disenrolled from coverage until the department has been compensated for the overdue premium as provided in (3).

          (3) The process for collection of overdue premiums is as follows:

          (a) and (b) remain as proposed.

          (c) Unless the person participant states the intent not to reenroll, the department may reenroll the person in the HELP Program Plan when the Department of Revenue assesses the unpaid premium through the participant's income tax.

          (4) remains as proposed.

          (5) A participant is not subject to disenrollment for failure to pay a premium if the participant meets two of the following criteria:

          (a) through (c) remain as proposed.

          (d) participation in any of the following health behavior activities developed by a health care provider or the TPA or approved by the department:

          (i) participation in a Medicaid health home;

          (ii) participation in a patient-centered medical home;

          (iii) participation in a cardiovascular disease, obesity, or diabetes prevention program;

          (iv) participation in a program requiring the participant to obtain primary care services from a designated provider and to obtain prescriptions from a designated pharmacy;

          (v) participation in a Medicaid primary care case-management program established by the department;

          (vi) participation in a tobacco use prevention or cessation program;

          (vii) participation in a substance abuse treatment program; or

          (viii) participation in a care coordination or health improvement plan administered by the TPA;. or

          (ix) participation in a department-approved wellness program.

          (6) A premium payment is assessed for a participant's coverage based upon retroactive eligibility.

          (6) A participant may reenroll at any time by payment of the premium.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1307, MCA

 

          NEW RULE VII (37.84.108) HELP PROGRAM ACT: HELP PLAN COPAYMENTS (1) Except as provided in this rule each participant in the HELP Program must pay to the provider of service the copayments as described in ARM 37.85.204, not to exceed the cost of service. Except as provided in this rule each participant in the HELP Plan must pay to the provider of service copayments as described below not to exceed the cost of service.

          (2) All HELP Plan participants receive a credit in the amount of their premium obligation towards the first copayments accrued up to two percent of household income.

          (3) Premiums and copayments combined may not exceed an aggregate limit of five percent of the annual family household income.

          (4) Participants with incomes at or below 100 percent of the FPL are responsible for the following copayments:

          (a) inpatient hospital - $75 per discharge;

          (b) nonemergency services provided in an emergency room - $8;

          (c) pharmacy-preferred brand drugs - $4;

          (d) pharmacy-non-preferred brand drugs, including specialty drugs - $8;

          (e) professional services - $4;

          (f) outpatient facility services - $4;

          (g) durable medical equipment - $4; and

          (h) lab and radiology - $4.

          (5) Participants with incomes above 100 percent of the FPL are responsible for the following copayments:

          (a) inpatient hospital - 10 percent of provider reimbursed amount;

          (b) nonemergency services provided in an emergency room - $8;

          (c) pharmacy-preferred brand drugs - $4;

          (d) pharmacy-non-preferred brand drugs, including specialty drugs - $8;

          (e) professional services - 10 percent of provider reimbursed amount;

          (f) outpatient facility services - 10 percent of provider reimbursed amount;

          (g) durable medical equipment - 10 percent of provider reimbursed amount; and

          (h) lab and radiology - 10 percent of provider reimbursed amount.

          (2) (6) Additional copayments may not be charged if, during the current benefit year the participant has paid in total, three percent of the participant's annual income in copayments. Copayments are subject to a quarterly aggregate cap of one-quarter of three percent of the annual household income. Copayments may not be charged in a quarter after a household has met the quarterly aggregate cap.

          (3) (7) Copayments may not be charged for:

          (a) through (c) remain as proposed.

          (d) pregnancy services;

          (e) remains as proposed, but is renumbered (d).

          (f) (e) eyeglasses purchased by the Medicaid program under a volume purchasing agreement; and

          (f) other services exempt by applicable federal authority.

          (g) EPSDT;

          (h) transportation services;

          (i) family planning services;

          (j) emergency services;

          (k) hospice;

          (l) independent laboratory and x-ray services; and

          (m) tobacco cessation.

          (4) (8) Copayments may not be charged for services rendered in circumstances of third party liability (TPL) claims where the HELP Program Plan is the secondary payer under ARM 37.85.407. If a service is not subject to TPL, but is covered by the HELP Program Plan, copayments are applied.

          (5) The following categories of persons are exempt from copayments:

          (a) American Indian and Alaska Native;

          (b) pregnant women;

          (c) individuals under age 21;

          (d) terminally ill individuals; and

          (e) individuals covered under the Breast and Cervical Cancer Treatment Program.

          (6) Premiums and copayments combined may not exceed an aggregate limit of five percent of the annual family household income.

          (9) Copayments may not be charged to the participant until the claim has processed through the claims adjudication process and the provider has been notified of payment and amount owing.

          (7) (10) Providers may only charge participants for the following services if the participant signs an ABN for the specific service prior to services being provided:

          (a) and (b) remain as proposed.

          (c) unproved unproven services;

          (d) services performed in an inappropriate setting; and

          (e) services that are not medically necessary.; and

          (f) investigational services.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1306, MCA

 

          NEW RULE VIII (37.84.109)  HELP PROGRAM ACT: HELP PLAN REIMBURSEMENT (1) Covered services for participants in the HELP Program enrolled with the TPA Plan, except as otherwise provided in (2), are reimbursed directly by the TPA according to the schedule found at https://medicaidprovider.mt.gov.

          (2) The following services received by participants enrolled with the TPA in the HELP Plan are reimbursed directly through the department:

          (a) through (3) remain as proposed.

         

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1305, MCA

 

          NEW RULE IX (37.84.112)  HELP PROGRAM ACT: HELP PLAN PROVIDER QUALIFICATIONS (1) As a condition of participation in the HELP Program Plan, all providers must comply with all applicable state and federal statutes, rules, and regulations governing the Montana Medicaid Program and all applicable Montana statutes and rules governing licensure and certification.

          (2) Any health care provider that is currently subject to exclusion by the U.S. Department of Health and Human Services (HHS) or that is suspended or terminated by the Medicaid or the Medicare program or by a state Medicaid program may not be enrolled as a HELP Program Plan provider or receive reimbursement from the department for the delivery of health care or other services to participants.

          (3) through (6) remain as proposed.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1305, MCA

 

          NEW RULE X (37.84.115)  HELP PROGRAM ACT: HELP PLAN GRIEVANCE AND APPEAL PROCESS (1) remains as proposed.

          (2) The TPA acts under the oversight of the department in all grievance and appeal processes will cooperate with the department in all grievances and appeal processes.

 

AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1305, MCA

 

3. 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 (37.84.102):

 

Comment #1: One comment was received regarding the definition of adjudication process in proposed New Rule II(2). The commenter believes that the clause "which is finalized by the provider receiving the remittance advice," should be removed as the commenter feels the definition is clear without this statement.

 

Response #1: This definition was described at the public hearing; however, the definition has been stricken from the draft of the rules and proposed New Rule VII(9) has been amended to add clarification of the adjudication process.

 

Comment #2: One comment was received regarding proposed New Rule II(6) pertaining to what recourse is a provider allowed for collection of nonpaid copayments. Will providers routinely waive copayments due to administrative complexity?

 

Response #2: Proposed New Rule II is the definition section for this subchapter. Proposed New Rule II(6) is a definition of the term "copayment," which is used throughout this subchapter. The department has no authority to direct a provider by rule how to collect copayments. That decision is made by the provider consistent with its business practices.

 

Comment #3: One comment was received regarding the definition of "experimental" and "unproven" in proposed New Rule II(12). The commenter requested the defined term be changed to, "experimental, investigational, and unproven," as the word "investigational" is used in (b), (g), and (h).

 

Response #3: The department agrees that "investigational" should be used in the defined term. The definition, as adopted, includes the term "investigational."

 

Comment #4: One comment was received regarding the use of the HELP Program versus HELP Plan throughout the document.

 

Response #4: The department agrees with the commenter and has added a new definition of HELP Plan in New Rule II(16), and updated the definition of HELP Program. The rules were updated throughout to clarify this change.

 

Comment #5: One comment was received regarding definition of inpatient hospital services in New Rule II(21) that inpatient hospital services are based on place, "in an acute care hospital," not type of service.

 

Response #5: The department agrees with the commenter and the definition has been modified.

 

Comment #6: One comment was received regarding the use of the word "predominate" in proposed New Rule II(12)(g) versus "predominant."    

 

Response #6: The department agrees with the commenter regarding word selection and the rule will be adopted with the suggested change.    

 

Comment #7: One comment was received regarding proposed New Rule II(24) definition of outpatient hospital services. The commenter is concerned that the definition describes services and is not dependent on facility type, as in the case of inpatient services. This seems inconsistent with the definition of "inpatient hospital services."    

 

Response #7: Outpatient hospital services are defined in relation to setting. Outpatient hospital services are those services provided without overnight hospital admission in a licensed or formally approved acute care or critical access hospital. The definition is consistent with how the term is used throughout the department's Medicaid-related administrative rules. The definition was updated to be outpatient facility services to match the term used in proposed New Rule VII.    

 

Comment #8: One comment was received regarding the definition of Participating Provider in proposed New Rule II(26). The commenter requests the definition be changed to state the following: "Participating provider means a health care professional or facility that is participating in the Third Party Administrator's HELP Program provider network."    

 

Response #8: The TPA will not be responsible for the delivery of certain services available to all persons in the new coverage population. Consequently, the TPA will not be responsible for the enrollment of all providers of services. The definition of participating provider has been clarified to include providers that are enrolled both directly through the department's Medicaid system and through the TPA's provider network.  

 

Comment #9: One comment was received regarding the definition of participant in New Rule II(26). The HELP Act distinguishes between the terms "member" and "participant." The commenter contends the definition of "participant" should be clearer and a definition of "member" should be included.    

 

Response #9: The department agrees with the comment and has amended the rule as adopted.    

 

Comment #10: Several comments were received regarding the definition of Third Party Administrator in proposed New Rule II(32). The commenter does not feel that 33-17-603, MCA, applies to the Third Party Administrator that provides services for plans such as the HELP Program, as the HELP Program is not funded by a policy of insurance, but rather is in the nature of a self-funded plan. The commenter requests the text be changed to, "Third party administrator means an entity whose services include, but are not limited to, claims processing, maintaining an adequate network of participating providers, coordination and continuation of care, health education, notices, quality assurance, reporting, case management services, and customer service."    

 

Response #10: The department has rewritten the rule to remove the citation to 33-17-603, MCA, and to provide instead that the third party administrator be appropriately authorized, as required by Montana law, to provide administrative services. As rewritten, the rule requires the third party administrator to be in compliance with applicable Montana law in the conduct of its responsibilities under the contract.    

 

Comment #11: One commenter, regarding proposed New Rule II(32), thinks the rules should include a definition of what constitutes an "adequate network of participating providers."    

 

Response #11: The department agrees that the HELP Act requires the TPA to provide an adequate provider network and the department will monitor provider coverage and access in the TPA network through the contractual relationship. The department will consider implementing through further rule adoption particular criteria to govern network adequacy as performance develops and monitoring becomes better established.    

 

Comment #12: One commenter, regarding proposed New Rule II(33), is concerned that the HELP Act requires the TPA to collect premiums but that is not stated in proposed New Rule II(33).    

 

Response #12: Since proposed New Rule II is a definition section, it does not include a substantive requirement. The department agrees that the TPA must collect premiums and that requirement is clearly stated in statute and in the department's contract with the TPA. Consequently, it was not necessary to express the requirement in rule.    

 

Comment #13: One commenter, regarding proposed New Rule II(33), is concerned that the word "continuation" was used without stating what is expected.    

 

Response #13: The department agrees and is removing the word "continuation" from the definition.    

 

New Rule III (37.84.103)    

 

Comment #14: One comment was received on clarifying the age ranges of eligibility for the HELP Program. In proposed New Rule III(2) the commenter suggests changing the wording to state, "HELP Program coverage, as specified in (1), is inclusive of a person who is at least 19 years of age but under the age of 65 who has a modified adjusted gross income at or below 138% of FPL as appropriate to the household size and who is not…"    

 

Response #14: The department has revised the rule language for clarity.    

 

Comment #15: One comment was made regarding proposed New Rule III(2)(d). The commenter requests wording be revised to cite the specific federal statute that provides the categories of persons who are excluded.    

 

Response #15: There are several types of federal authorities that provide for the exemption of certain categories of persons from participation in the department's TPA arrangement. Since the department is being kept apprised of those exemptions on an ongoing basis by the Centers for Medicare and Medicaid (CMS), it has not been feasible to compile a comprehensive list. The department has revised the rule to include all applicable federal authority.    

 

New Rule IV (37.84.106)    

 

Comment #16: One comment was received regarding those individuals who are exempt from participation in the alternative benefit plan administered by the TPA in proposed New Rule IV(2)(a) through (d). The commenter requests the sections of proposed New Rule IV(2)(a) through (d) be stricken and replaced with the following:    

 

"(a) individuals who live in a region, that may include all or part of an Indian reservation, where the TPA is unable to contract with sufficient providers (as described in the TPA alternative benefit plan SPA);    

 

(b) individuals who are medically frail;    

 

(c) individuals who the state determines have exceptional health care needs, including but not limited to a medical, mental health, or developmental condition;    

 

(d) individuals who the state determines, in accordance with objective standards approved by CMS (as described in the TPA alternative benefit plan), require continuity of coverage that is not available or could not be effectively delivered through the TPA; and    

 

(e) individuals exempted by federal law from premium or cost-sharing obligations whose exemption is not waived by CMS, including all individuals with incomes up to 50 percent of the FPL."    

 

Response #16: The department agrees the rule needed clarification and has adopted new language in New Rule IV(2).    

 

Comment #17: One comment was received regarding proposed New Rule IV(2)(a) pertaining to those individuals who will be excluded from the HELP Program and who will receive services through the Medicaid State Plan if the TPA is unable to make arrangements with sufficient number and types of health care providers in the geographic area in which the participant lives, or if the participant needs continuity of care that is not available or cost effective through the TPA. The commenter is questioning the standard that the department will use to make these decisions.    

 

Response #17: Due to the geographic and demographic variance in Montana, the department will monitor these provisions closely and address any inadequacies through the TPA contract. The department has identified that American Indian individuals need continuity of care that is not available through the TPA. Other individuals will be identified on a case-by-case basis.    

 

Comment #18: One comment was received regarding proposed New Rule IV(5). The commenter is concerned that the subsection of rule is poorly worded and unclear.    

 

Response #18: The department agrees the rule language requires clarity and has rewritten the rule for adoption.    

 

New Rule V (37.82.301)    

 

Comment #19: One comment was received regarding the proposed New Rule V(1) regarding the MAGI determination. The commenter is concerned that as the rule is written, it could be interpreted to mean that a participant's income must be measured by MAGI for all income determination purposes. The commenter suggests the rule be changed to the following:    

 

"(1) Effective January 2, 2014, except for participants receiving aged, blind, or disabled benefits or benefits based on participation in a Medicaid home and community-based services waiver or otherwise described in 42 U.S.C. section1396a(e)(14)(D), as a non-MAGI population, a participant's income must be determined for the purposes of the HELP Program in accordance with 42 U.S.C. section 1396a(e)(14)(2015), which establishes adjusted gross income (MAGI) as the required measure of income."    

 

Response #19: The MAGI eligibility criteria is used for other Medicaid eligibility categories in addition to the HELP Program; therefore, the department will be adopting the rule as proposed.    

 

Comment #20: One comment was received regarding proposed New Rule V(2). The commenter is concerned that this section is irrelevant to the HELP Act and a repetition of language in federal statute and rule. It gives new Medicaid participants an advantage over recipients in the existing Medicaid. A person with substantial net worth could receive public benefits.    

 

Response #20: The department agrees proposed New Rule V(2) was confusing and not needed and is not adopting the proposed section.    

 

New Rule VI (37.84.107)    

 

Comment #21: One comment was received regarding proposed New Rule VI(1) pertaining to the term "annual." The commenter feels the term should be defined.    

 

Response #21: The term "annual" means 12 months. The rule language has been clarified.    

 

Comment #22: One comment was received regarding proposed New Rule VI(2) pertaining to the use of the word "may." The commenter is concerned the term "may" should be changed to "shall."    

 

Response #22: The department agrees and has modified the final rule as suggested.    

 

Comment #23: The department received comments regarding proposed New Rule VI(5)(d)(ix) pertaining to the wellness program. A commenter feels that the department should adopt rules with more detail regarding what constitutes a wellness program. Another commenter pointed out that a healthy behavior plan, not wellness program, is the term used in Senate Bill 405 (SB405).    

 

Response #23: The term "healthy behavior plan" has been adopted in place of wellness program in New Rule II(18). As the HELP Program matures and data and experience are available, the department will review what it accepts as a healthy behavior plan and may adopt more detailed rules.    

 

Comment #24: One comment was received regarding clarifying proposed New Rule VI(2). The commenter expressed concern with the clarity of (2) and suggested the rule be written as follows:    

 

"(2) A participant, except as provided in (4) and (5), for whom a premium, which has become due and has not been paid and remains owing after the time period in (3) may be disenrolled from coverage until the department has been compensated for the overdue premium."    

 

Response #24: The department agrees with the commenter that there is the need for clarity in the section. The department has clarified the language in (2) and has added a new (6) for further clarification in the adopted rule.    

 

Comment #25: One comment was received regarding proposed New Rule VI(3)(a) pertaining to TPA's requirement to provide the department with a copy of each notice sent to every delinquent participant. The commenter expressed concern that this requirement would become administratively burdensome to both the TPA and the department. The commenter suggested having the TPA send a periodic report of premium deficiencies as directed by the department.    

 

Response #25: The department has determined that this process is what is currently needed to accurately track these individuals. The rule has been adopted as proposed.    

 

Comment #26: The department received one comment regarding proposed New Rule VI(6) pertaining to the term "retroactive eligibility." The commenter is concerned that the term is not defined and this subsection is unclear and notes that the term was not used in the HELP act.    

 

Response #26: The department agrees that proposed New Rule VI(6) is unclear and is removing this subsection.

 

Comment #27: One comment was received regarding proposed New Rule VI(5)(d)(i) through (ix) pertaining to concerns that as the rule is written a participant has the option to choose which two programs he or she will participate in to avoid disenrollment for unpaid premiums. The commenter suggests revising the rule to require that the department determine whether the program in which the participant is enrolled is appropriate and beneficial to the participant. The commenter is also concerned that the rule does not address how long a participant may continue to participate in any of the programs, and what will happen to the premiums owed during that time period.

 

Response #27: The Third Party Administrator will utilize health coordinators to review participants' appropriate and beneficial use of the health behavior programs.    

 

New Rule VII (37.84.108)    

 

Comment #28: One comment was received regarding proposed New Rule VII(5) pertaining to the three percent copayment cap. The commenter is concerned that the cap on copayments of three percent of the participant's annual income is not provided for in the HELP Act.    

 

Response #28: Section 53-6-1306(2), MCA, provides that the copayment cannot be greater than the maximum amount allowed under federal law. The maximum allowed cost share, inclusive of copayments and premiums, is five percent of the annual household income. The total permissible cost share of five percent less the two percent required for premiums equals a maximum copayment at a three percent cap. The rule has been adopted as proposed. The department moved (6) to (3) to improve clarity.    

 

Comment #29: Several comments were received regarding the services exempt from copayments in proposed New Rule VII(8). Commenters noted that the rule included exemptions that do not appear in the language in SB405.    

 

Response #29: The department has modified the rule as adopted to state in rule only those bases for exception from the copayment requirement that are authorized by state or federal statutory authority or are not feasible for the application of copays due to circumstances to which copayments cannot be applied. Other types of circumstances previously stated that do not meet these criteria have been deleted.

 

Comment #30: Two comments were made that pregnant women are not eligible for the HELP Program but the copayment section states that pregnancy services and pregnant women are exempt from copayments. The commenters would like to have it clarified about what happens if a women in the HELP Program becomes pregnant.

 

Response #30: If the department knows a woman is pregnant when she applies for Medicaid, she must be enrolled under the pregnancy category. If a woman becomes pregnant while in the HELP Program, she has the option in accordance with federal authority of remaining in the expansion category rather than shifting to the pregnant category. The references to pregnancy services at (7)(d) and pregnant women at (8)(b) have been deleted. See response #29.    

 

Comment #31: One comment was received regarding the proposed New Rule VII(11) as the requirements in rule do not match the requirements set forth in the RFP Section 3.2.1.F (2). The commenter suggests changing the wording of proposed New Rule VII(10) to the following:    

 

"(a) noncovered services;

 

(b) experimental services;

 

(c) unproven services;

 

(d) investigational services;

 

(e) services performed in an inappropriate setting;

 

(f) services that are not medically necessary per the TPA definition; and

 

(g) services requiring prior authorization or other administrative function for which prior authorization requests were not obtained."    

 

Response #31: The department has added investigational services in the rule as adopted and has corrected the spelling error in the unproven services.    

 

Comment #32: The department received comments regarding proposed New Rule VII(5). The commenters are concerned that the individuals exempted from copayment do not appear in 53-6-1306, MCA.    

 

Response #32: Section 53-6-1306(2), MCA, requires the department to "adopt a copayment schedule that reflects the maximum copayment amount allowed under federal law." The individuals listed in proposed New Rule VII(5) are exempt under federal law. The department has stricken this section as to not duplicate what is already in federal statute.    

 

New Rule VIII (37.84.109)    

 

Comment #33: One comment was received regarding proposed New Rule VIII(1) and (2). The commenter would like the wording changed to remove the wording regarding participants in the HELP Program enrolled with the TPA.    

 

Response #33: Some participants in the TPA program will be receiving certain particular types of services that are not within or not available through the TPA program and therefore those services are to be reimbursed through the department's Medicaid reimbursement system. The rule therefore, of necessity, specifies those services that are to be billed directly to the department. The rule has been adopted as proposed.    

 

New Rule IX (37.84.112)    

 

Comment #34: One comment was received requesting clarification of proposed New Rule IX.    

 

Response #34: Proposed New Rule IX sets forth the requirements that a provider meet to receive reimbursement from the HELP Program. The requirements set forth are those that are generally required in accordance with federal law applicable to the provision of Medicaid-funded health care services.    

 

New Rule X (37.84.115)    

 

Comment #35: One comment was received regarding proposed New Rule X(1). The commenter expressed concern that currently ARM 37.5.103, concerning applicable due process hearing procedures for Medicaid members, does not reference the HELP Program. The commenter suggests updating ARM 37.5.103 to add reference to the HELP Program.    

 

Response #35: ARM 37.5.103(1)(i) references the medical assistance program (Medicaid) which is inclusive of the HELP Program. The rule has been adopted as proposed.    

 

Comment #36: One comment was received regarding proposed New Rule X(2) pertaining to the department rather than the TPA conducting fair hearings. The commenter suggested updating proposed New Rule X(2) to state: The TPA will cooperate with the department in all grievances and appeal processes.    

 

Response #36: The department agrees with the commenter and has updated the final rule as suggested.

 

Comment #37: One comment was received regarding proposed New Rule X. The commenter is concerned that the sentence "The role of the TPA...for rule adoption" should be deleted, as it does not give any direction to the department.    

 

Response #37: The department notes that this sentence is not in rule. It was included in the statement of reasonable necessity as part of the rationale for proposed New Rule X, which now cannot be changed.    

 

Other Comments    

 

Comment #38: One comment was received regarding the usage of the wording of annual household income versus annual income. The commenter noted that in the rules the wording used is annual household income; however, in the statement of reasonable necessity annual income is used.    

 

Response #38: The wording of "annual household income" in the rule is the correct language.    

 

Comment #39: One comment was received regarding a concern that there are not any rules implementing HELP Act Sections (8) and (16).    

 

Response #39: Section 8 is codified as 53-6-1311, MCA, Medicaid program reforms. The department is in the process of implementing this statute and will be proposing future rules. Section 16 is codified as 39-12-103, MCA. The department does not have rulemaking authority over this section and anticipates it will be implemented by the Montana Department of Labor and Industry.    

 

Comment #40: One comment was received regarding a concern that there are not any rules implementing HELP Act Sections 19 and 21 regarding limits on malpractice claims.    

 

Response #40: Section 19 is codified as 25-3-106, MCA, and Section 21 is codified as 27-2-205, MCA. The department does not have rulemaking authority over these sections. These sections also appear to be self-enacting and do not require administrative rules to implement.    

 

Comment #41: Two comments were received regarding the performance measurements described in the notice of proposed rules at page 1853, stating that these measurements reveal nothing regarding value received by beneficiaries or personal responsibility.    

 

Response #41: This section of the notice is not a proposed rule. Section 53-6-196, MCA, requires the department to include performance-based measures in some rules, which is the case with this notice.    

 

Comment #42: One comment was received regarding continuous eligibility. The commenter is concerned that SB405 did not create 12-month continuous eligibility. The rules do not include any means of disenrolling participants when their income climbs above 138 percent of the federal poverty level (FPL). There is no requirement that participants report income changes and there is no annual redetermination. Does the department intend perpetual eligibility once an applicant enrolls?    

 

Response #42: Eligibility determination will be conducted annually; perpetual eligibility is not allowed. Continuous eligibility for HELP is contingent upon the participant complying with New Rule VI regarding premium payment.    

 

Comment #43: One comment was received regarding the extent to which a third party may pay premiums on behalf of a participant. The commenter stated while the CMS 1115 waiver addresses this issue the rule does not.    

 

Response #43: The language of proposed New Rule VI is written in a manner so as to not preclude the payment by a third party of the premium owed by a participant.    

 

Comment #44: One comment was received in support of the new rules.    

 

Response #44: The department thanks the commenter for the comment.    

 

Additional Changes:    

 

The following are additional changes made by the department after further review of the rules.    

 

A new definition of Aligned Medicaid Alternative Benefit Plan was added to replace the standard Medicaid state plan benefit throughout the rule. Definitions regarding nonemergency transportation, Medicaid state plan benefit, qualifying life event, and early and periodic screening, diagnostic and treatment (EPSDT) have all been stricken from the rule, as the terms are no longer used within the rules. The definition for Tribal Health Services has been updated to clarify that these are services provided by an Indian tribe not a type of facility.  

 

          4. These rule adoptions are effective January 1, 2016.

 

 

 

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

Cary B. Lund, Attorney                          Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services

         

Certified to the Secretary of State December 14, 2015