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 amendment of ARM 37.85.104, 37.85.105, 37.86.2907, 37.87.903, and 37.90.408 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 April 27, 2018, the Department of Public Health and Human Services published MAR Notice No. 37-838 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 798 of the 2018 Montana Administrative Register, Issue Number 8.

2. The department has amended the following rules as proposed: ARM 37.85.104, 37.86.2907, 37.87.903, and 37.90.408.

3. 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) through (3) remain as proposed.

(4) The department adopts and incorporates by reference, the fee schedule for the following programs within the Senior and Long Term Care Division on the date stated:

(a) Home and community-based services for elderly and physically disabled persons fee schedule, as provided in ARM 37.40.1421, is effective ~~July 1, 2018~~ January 1, 2018.

(b) through (6) remain as proposed.

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, 53-6-101, 53-6-125, 53-6-402, 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: A commenter opposes the amended ARM 37.85.105 and contends that 37-10-104, MCA, requires the department to reimburse optometrists using the same rate as doctors of medicine (MD) and doctors of osteopathy (DO). The commenter requested the department change Medicaid reimbursement so that optometrists are reimbursed at the same rate as MDs and DOs.

RESPONSE #1: The department must follow Montana law. Section 53-6-125, MCA, requires the department to reimburse physicians with 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 (SB 354), which defined and clarified the Medicaid reimbursement conversion factor for physicians. SB 354 which was codified as
53-6-124 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. The department does not agree with the commenter's assertion regarding 37-10-104, MCA.

COMMENT #2: Commenters at the administrative rules hearing commented that Medicaid reimbursement rates for private duty nursing services are inadequate to ensure providers can continue to provide the service to Medicaid members.

RESPONSE #2: This rule amendment did not propose any change to the reimbursement rate for private duty nursing. However, the department is addressing private duty nursing reimbursement rates in another rule notice, MAR Notice No. 37-851, which is being filed concurrently with the filing of this Notice of Amendment.

COMMENT #3: One commenter asked if the proposed rulemaking applies to substance abuse providers. The commenter asks whether the previous rates for substance abuse providers are reinstated if the proposed effective date is July 1, 2018.

RESPONSE #3: The proposed rulemaking in MAR Notice No. 37-838, which updates the effective date of the RBRVS fee schedule to July 1, 2018, applies to all provider types, including Provider Type 32, state-approved chemical dependency providers. It does not reinstate previous reimbursement rates for Provider Type 32.

COMMENT #4: A commenter noted that she is unable to find the proposed July 1, 2018, fee schedule for home and community-based services, as contemplated in this rule notice.

RESPONSE #4: The department acknowledges that the July 1, 2018, fee schedule was not posted to the DPHHS website in a manner that gives adequate notice to interested parties and the public at large about the department's proposed changes for home and community-based services. Therefore, the department is withdrawing the proposed amendment to ARM 37.85.105(4)(a).

COMMENT #5: A commenter states that the department is saving "twice as much money as anticipated" by maintaining rates for home and community-based services for elderly and physically disabled persons. The commenter requested the department increase the rates in the fee schedule for home and community-based services.

RESPONSE #5: Rate changes that were adopted in an earlier rule notice and made effective January 1, 2018, must be maintained in order to meet and not exceed the budgetary appropriation passed by the Montana Legislature. The only change proposed in the fee schedule related to removing a service from the fee schedule that is no longer used because the sole provider of that service had notified the department that it will no longer provide the service.

5. These rule amendments are effective July 1, 2018.

/s/ Brenda K. Elias /s/ Sheila Hogan

Brenda K. Elias, Attorney Sheila Hogan, Director

Rule Reviewer Public Health and Human Services

Certified to the Secretary of State May 29, 2018.