BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.85.105 pertaining to updating Medicaid fee schedules with Medicare rates and updating effective dates

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NOTICE OF AMENDMENT

 

TO: All Concerned Persons

 

1. On November 9, 2017, the Department of Public Health and Human Services published MAR Notice No. 37-810 pertaining to the public hearing on the proposed amendment of the above-stated rule at page 2012 of the 2017 Montana Administrative Register, Issue Number 21.

 

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

 

            37.85.105 Effective dates, CONVERSION FACTORS, POLICY ADJUSTERS, AND COST-TO-CHARGE RATIOS of Montana Medicaid Provider Fee Schedules (1) and (2) remain as proposed.

            (3) The department adopts and incorporates by reference, the fee schedule for the following programs within the Health Resources Division, on the date stated.

            (a) through (t) remain as proposed.

            (u)  The Federal Qualified Health Center (FQHC) and Rural Health Clinic (RHC) fee schedule for education health services, as provided in ARM 37.86.4412, is effective July 1, 2017 January 1, 2018.

            (v) through (6) remain as proposed.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, 53-6-101, 53-6-402, 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:

 

COMMENT #1: Two commenters suggested the department is not following 37-10-104, MCA in that optometrists are not reimbursed for services at the same rate as ophthalmologists who hold a doctor of medicine or doctor of osteopathy degree.

 

RESPONSE #1: The department must follow Montana law and 53-6-125, MCA requires the department to reimburse physicians with a doctor of medicine (MD) or doctor of osteopathy (DO) degrees using a conversion factor different from other healthcare professionals, including optometrists. However, the department uses the same resource-based relative value scale (RBRVS) methodology in determining reimbursement rates for ophthalmologists and optometrists and thus they are reimbursed in the same manner. Prior to 2008, optometrists were reimbursed using the same conversion factor as physicians. In 2007, the 60th Montana Legislature passed Senate Bill 354 (SB354), which defined and clarified the Medicaid reimbursement conversion factor for physicians. SB354 which was codified in 53-6-124, MCA and 53-6-125, MCA defined "physician" as a person who holds an MD or DO degree and who has a valid license to practice medicine or osteopathic medicine in Montana. It must be presumed that the Legislature in 2007 was aware of 37-10-104, MCA, cited by the commenters, because that statute has been in existence since 1959. Also, if the Legislature in 2007 intended for the physician conversion factor to apply to optometrists, it would have included them in the definition of "physician" but did not.

 

COMMENT #2: Several commenters expressed concern if the department followed the Medicare fees for durable medical equipment (DME) they would make almost no profit and it would jeopardize access for Medicaid members especially in rural areas of Montana. They also had concerns for a member's health stating post-operative outcomes will suffer.

 

RESPONSE #2: Beginning January 1, 2018, in order for the department to receive Federal Financial Participation, the Medicaid DME program payments must not exceed the 2018 Medicare Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) fee schedule in the aggregate. This is mandated in accordance with the 21st Century Cures Act. Therefore, the department will adopt the Calendar Year 2018 Medicare DEMPOS fee schedule.

 

COMMENT #3: Because MAR Notice No. 37-788 was adopted before MAR Notice No. 37-810, the retroactive effective date in ARM 37.85.105(3)(u) of July 1, 2017 is no longer applicable. In order for the Federal Qualified Health Center (FQHC) and Rural Health Clinic (RHC) fee schedule for education health services to be consistent with the other effective dates of January 1, 2018, the department is amending the rule.

 

RESPONSE #3: The department has amended the July 1, 2017 date in ARM 37.85.105(3)(u) to January 1, 2018.

 

            4. This rule amendment is effective January 1, 2018.

 

 

 

/s/ Brenda Elias                                            /s/ Marie Matthews for                                

Brenda Elias, Attorney                                 Sheila Hogan, Director

Rule Reviewer                                              Public Health and Human Services

           

Certified to the Secretary of State December 11, 2017.