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| Montana Administrative Register Notice 37-890 | No. 21 11/08/2019 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On August 23, 2019, the Department of Public Health and Human Services published MAR Notice No. 37-890 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1309 of the 2019 Montana Administrative Register, Issue Number 16. On September 20, 2019, the department published an amended MAR Notice No. 37-890 at page 1606 of the 2019 Montana Administrative Register, Issue Number 18.
2. The department has adopted the following rules as proposed: New Rule I (37.99.101), III (37.99.106), IV (37.99.107),VI (37.99.110), VII (37.99.115), XII (37.99.125), XIV (37.99.127), XVII (37.99.134), XVIII (37.99.135), XX (37.99.137), XXI (37.99.138), XXIV (37.99.147), XXVI (37.99.149), XXVII (37.99.150), XXVIII (37.99.151), XXX (37.99.153), XXXI (37.99.159), XXXII (37.99.160), XXXIII (37.99.161), XXXIV (37.99.162), XXXV (37.99.163), XXXVI (37.99.164), XXXVII (37.99.170), XXXVIII (37.99.171), XXXIX (37.99.172), XLII (37.99.175), XLIII (37.99.176), XLIV (37.99.181), XLV (37.99.182), XLVII (37.99.201), XLVIII (37.99.202), XLIX (37.99.206), L (37.99.208), LI (37.99.209), LIII (37.99.211), LIV (37.99.212), LV (37.99.213), LVI (37.99.214), LVII (37.99.215), LVIII (37.99.216), LIX (37.99.217), LX (37.99.218), and LXI (37.99.219).
3. 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 II (37.99.102) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: DEFINITIONS (1) " Adolescent" means any person between the ages of 10 and (2) and (3) remain as proposed. (4) "Correspondence search" means (5) through (11) remain as proposed. (12) "Mental health professional" (13) through (22) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 2, L. of 2019, Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019
NEW RULE V (37.99.109) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: PROCEDURE FOR OBTAINING A LICENSE: ISSUANCE AND RENEWAL OF A LICENSE (1) through (6) remain as proposed. (7) If all licensing requirements are met and the fee has been paid in full, the department (a) through (12) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 5, L. of 2019, Chap. 293, section 6, L. of 2019, Chap. 293, section 7, L. of 2019, Chap. 293, section 8, L. of 2019, Chap. 293, section 9, L. of 2019, Chap. 293, section 10, L. of 2019, Chap. 293, section 11, L. of 2019, Chap. 293, section 12, L. of 2019
NEW RULE VIII (37.99.117) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: ADMISSIONS (1) through (6) remain as proposed. (7) The admissions policy may not limit contact with the program participant's family for (8) through (10) remain as proposed. (11) A program must ensure compliance of each participant's placement
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE IX (37.99.119) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: DISCHARGE (1) remains as proposed. (2) (a) through (j) remain as proposed. (3) The discharge report must be maintained by the program in the participant's file and a copy must be provided to the parent/legal guardian (4) A program participant may only be discharged to the parent/legal guardian of the program participant. The program participant may be discharged to individuals other than the parent/legal guardian with written consent from the parent/legal guardian prior to discharge.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE X (37.99.118) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: WRITTEN AGREEMENT (1) The program must enter into a written agreement with the program participant's parent/legal guardian at the time of admission into the program. The written agreement must include: (a) through (d) remains as proposed. (e) a statement describing the communication policy, which must include a minimum of one telephone contact per week, in addition to any therapeutic contact (family therapy); (f) transportation of the program participant to and from medical appointments and activities; (f) through (j) remain as proposed, but are renumbered (g) through (k). (2) and (3) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE XI ( 37.99.124) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: CASE PLAN (1) Each program must develop and implement a case plan for each program participant in care. (2) through (6) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE XIII (37.99.126) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: BACKGROUND CHECKS (1) All administrators, staff, volunteers, persons associated with the program, and any adult living at the program must complete a National Crime Information Center (NCIC) fingerprint-based background check from the Federal Bureau of Investigation. Results of the fingerprint-based background check must be documented prior to working or living at the program. (a) A name-based criminal background check may be completed pending the results of the fingerprint background check. The department must receive the request for the fingerprint check and the results of the name-based check must be documented prior to the staff working at the facility. (2) through (10) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE XV (37.99.132) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: PHYSICAL ENVIRONMENT (1) through (6) remain as proposed. (7) The program must provide: (a) at least one toilet for every (b) one bathing facility for every (8) through (13) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019, Chap. 293, section 10, L. of 2019
NEW RULE XVI (37.99.133) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: LAUNDRY AND BEDDING (1) If a program processes its laundry on site, it must: (a) use (b) through (3) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019
NEW RULE XIX (37.99.136) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: FIRE SAFETY (1) The department adopts and incorporates by reference the current edition of the locally adopted Fire Code (FC) (2) The local or state fire authority having jurisdiction (3) Smoke detectors and smoke alarms must be installed and operated in accordance with the FC set forth in the locally adopted FC. (4) Carbon monoxide detectors must be installed and operated in accordance with the FC. (5) A workable portable fire extinguisher, with a minimum rating of 2A10BC, must be located on each floor of the facility. Fire extinguishers must be: (a) remains as proposed. (b) no more than 75 feet travel distance apart (c) through (10) remain as proposed. (11) The program must conduct at least one fire drill per quarter per each work shift. (a) through (d) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019, Chap. 293, section 10, L. of 2019
NEW RULE XXII (37.99.145) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: CASE RECORDS (1) remains as proposed. (2) The case record must include: (a) through (f) remain as proposed. (g) current custody and parent/legal guardianship documents or other documents verifying legal custody of the parent/legal guardian placing the program participant per program policy; (h) through (m) remain as proposed. (n) records of physical restraints and special or serious incidents; (o) through (4) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. 2019, Chap. 293, section 5, L. 2019, Chap. 293, section 9, L. 2019
NEW RULE XXIII (37.99.146) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: CONFIDENTIALITY OF RECORDS AND INFORMATION (1) through (3) remain as proposed. (4) Necessary information pertaining to the program participant must be disclosed when program staff are following mandatory reporting requirements as outlined in this rule and within the scope of an individual's license.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019, Chap. 293, section 11, L. of 2019
NEW RULE XXV (37.99.148) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: GENERAL REQUIREMENTS FOR ALL ADMINISTRATORS, STAFF MEMBERS, AND VOLUNTEERS (1) remains as proposed. (2) In addition to the specific requirements set out in this chapter, all staff working in a program must: (a) be at least (b) and (c) remain as proposed. (4) through (6) remain as proposed, but are renumbered (3) through (5).
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE XXIX (37.99.152) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: STAFF (1) Each program must maintain the minimum program participant to awake-staff ratios: (a) from 7:00 a.m. to 11:00 p.m., eight program participants to one staff; (b) from 11:00 p.m. to 7:00 a.m., or any other reasonable eight-hour period of time when program participants are generally sleeping, (c) programs must have at least one awake night staff in each building housing program participants regardless of the number of participants. (2) through (5) remain as proposed. (6) Mental health professionals must be licensed as defined in this rule and be employed in sufficient number to meet the mental health needs of program participants as outlined in the program description. (7) and (8) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE XL (37.99.173) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: SEARCHES (1) through (6) remain as proposed. (7) The program must have written policies and procedures prior to use of breathalyzer testing for the purpose of determining drug and alcohol use which include: (a) procedures for operating the breathalyzer; (b) consequences to the program participant when a breathalyzer (8) through (10) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE XLI (37.99.174) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: CONTRABAND AND POTENTIAL WEAPONS (1) through (5) remain as proposed. (6) (7) (8) remains as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE XLVI (37.99.183) PRIVATE ALTERNATIVE ADOLESCENT RESIDENTIAL PROGRAMS: TRANSPORTATION (1) All staff transporting program participants must possess a valid (2) through (6) remain as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
NEW RULE LII (37.99.210) PRIVATE OUTDOOR PROGRAMS: RESIDENTIAL OUTDOOR PROGRAM PARTICIPANT-TO-STAFF RATIO (1) A residential outdoor program must maintain the following program participant to awake staff ratios: (a) remains as proposed. (b) from 11:00 p.m. to 7:00 p.m., or any other reasonable eight-hour period of time when program participants are generally sleeping, (c) programs must have at least one awake night staff in each building housing program participants regardless of the number of participants. (2) remains as proposed.
AUTH: Chap. 293, section 3(2), L. of 2019, Chap. 293, section 5(2), L. of 2019 IMP: Chap. 293, section 3, L. of 2019, Chap. 293, section 5, L. of 2019, Chap. 293, section 9, L. of 2019
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 appreciates the thoughtfulness and work that went into drafting the proposed PAARP rules. While these will create additional work for us it also creates increased accountability and transparency. A very positive step forward in ensuring safe quality treatment.
RESPONSE #1: The department acknowledges and appreciates the comment.
COMMENT #2: A commenter feels the need for these standards as well as sound regulatory oversight is long overdue and welcome by many of us that have devoted both our personal and professional lives towards working with this difficult adolescent population.
RESPONSE #2: The department acknowledges and appreciates the comment.
COMMENT #3: A commenter states the proposed rules in general appear appropriate and the commenter supports the adoption of the rules pursuant to legislative directive.
RESPONSE #3: The department acknowledges and appreciates the comment.
COMMENT #4: A commenter expresses appreciation for the time and consideration put into establishing a new set of rules. For the most part the rules seem in line with the previous PAAR rules and with a few modifications will provide a strong set of rules and guidelines to enable the department to assume the new role of regulating these programs.
RESPONSE #4: The department acknowledges and appreciates the comment.
COMMENT #5: We want to express our deepest gratitude at the transparency and clarity that DPHHS approached with the proposed changes. The dialogue has been open and collaborative and we are deeply grateful for the partnership.
RESPONSE #5: The department acknowledges and appreciates the comment.
COMMENT #6: A commenter states generally speaking the new rules are amenable and often closely aligned with the former rules.
RESPONSE #6: The department acknowledges and appreciates the comment.
COMMENT #7: A commenter thanks the department for doing everything it has done to bring on the PAAR programs.
RESPONSE #7: The department acknowledges and appreciates the comment.
COMMENT #8: We appreciate the work that has gone into providing regulatory oversight to programs in the state. We note the support the providers such as ourselves receive which then affirms to our clients, our staff members, and the public at large that safety, ethical, and effective treatment is a priority in Montana. We generally view the rules and the changes as a great benefit in helping us in our mission.
RESPONSE #8: The department acknowledges and appreciates the comment.
NEW RULE II
COMMENT #9: Some commenters expressed concern regarding the definition of "adolescent" including an age range. Some commenters admit participants in the program are younger than the definition allows and others allow program participants 19 years of age to remain to finish high school. One commenter stated the term "adolescent" is not defined in any other department rule.
RESPONSE #9: The department disagrees with comments as the term adolescent is generally defined as beginning with the onset of physiologically normal puberty and ending when an adult identity and behavior are accepted. This period of development corresponds roughly to the period between the ages of 10 and 19 years. The department defines the term "youth" in other administrative rules and statutes. The rule text will be updated to reflect the age to be up to the age of 20 allowing program participants who turn 19 to remain in the program while attending school.
The department acknowledges programs may currently serve children younger than the age of 10. The department agrees to allow programs to continue to serve children currently placed in programs until either the individual reaches the age of 10 or discharges. Programs may not admit children younger than the age of 10 following the adoption of this rule.
COMMENT #10: A commenter asked if the definition of correspondence search includes observing clients opening their mail to reduce contraband.
RESPONSE #10: The rule text has been updated to remove the reference to opening and inspecting the contents of a package. This allows programs to inspect mail for possible contraband without the requirement of documenting every letter/package opened as a search. Programs will be required to notify parents of the search policy prior to placement including opening and inspecting mail for contraband.
COMMENT #11: One commenter disagreed with the reasonable necessity statement regarding the definition of physical restraint stating the definition does not state imminent threat.
RESPONSE #11: The department disagrees as the definition states physical restraint may be imposed only in emergency circumstances and only to ensure the immediate physical safety of the resident, a staff member, or other. The terms "immediate" and "imminent" are synonyms.
COMMENT #12: One commenter suggested the definition of "serious incident" include restraint and be included in negative licensing action.
RESPONSE #12: The department disagrees with the comment as a physical restraint may not be a "serious incident" that would require reporting or negative licensing action. If a physical restraint is conducted inappropriately by using excessive force and/or raise concerns or possible abuse or neglect, then the restraint would be considered a "serious incident" and must be reported.
COMMENT #13: A commenter states staff at these facilities are holding themselves out as professional counselors when they have no education or license. Every parent has the right to know what qualifications the staff member has that is caring for children.
RESPONSE #13: The department has included within the proposed rule a definition of "mental health professional" that means an individual licensed under current Montana rule. The department has added text to this rule that requires all mental health professionals to be licensed.
COMMENT #14: A commenter asked if it is okay to mention that our program offers support for teens in recovery, and education and support for teens at risk of becoming chemically dependent, as long as we are clear we are not providing primary chemical dependency treatment.
RESPONSE #14: Yes, programs may offer support as described in comment. Only programs that offer primarily chemical dependency treatment are required to be licensed as a chemical dependency facility under 50-5-201, MCA.
NEW RULE IV
COMMENT #15: One commenter finds it difficult to understand the State of Montana's decision to require a licensing fee nearly 8 times more than Idaho, 7 times more than Utah, and 3 times more than Arizona. The commenter asks for clarification as to the purpose of this drastic difference. The commenter questions whether this is a temporary condition given the State of Montana seeking unbudgeted funding within this fiscal year or if it is a long-term expectation.
RESPONSE #15: The fee structure for programs has not been changed from the previous regulations as set by the Private Alternative Adolescent Residential and Outdoor Program Board. The fee per Senate Bill 267 must be set commensurate with administrative costs required to issue a license. The department will continue to evaluate the administrative costs and either decrease or increase the fee depending on cost to operate the licensing program.
NEW RULE V
COMMENT #16: A commenter suggests an amendment to New Rule V(7) by changing "the department may issue a license" to "the department will issue a license."
RESPONSE #16: The rule text has been updated to reflect the change from "may" to "will."
NEW RULE VI
COMMENT #17: A commenter asks how the department will assess the requirement of programs using payments for the support of the program participant.
RESPONSE #17: The department will evaluate the appropriate use of funds for the support of program participants during the licensure renewal on-site inspections which may include interviews and documentation review.
COMMENT #18: Several commenters expressed concern with the department's ability to remove participants from the program without substantial proof of abuse or neglect or a process to determine the need to remove participants. Commenters are concerned that participants may be removed from a program based only on a phone call without reasonable grounds. Commenters are concerned program participants may misuse this requirement to attempt to get out of a program that they do not want to be at and requires them to follow age appropriate rules.
RESPONSE #18: The department acknowledges these concerns; however, under 41-3-202(5), MCA, the department may remove a child if from a safety assessment the department has reasonable cause to suspect that the child is suffering abuse or neglect, or under 41-3-301, MCA, when the department has reason to believe any child is in immediate or apparent danger of harm. Each determination will be made on a case-by-case basis and will be based on the facts known at the time. The department may summarily suspend a program's license as contemplated by 2-4-631, MCA, in emergency circumstances affecting health, safety, and welfare.
COMMENT #19: A commenter states there needs to be a process in place to swiftly respond to allegations of abuse, to immediately remove a participant from a program and interrupt his/her therapeutic process could have a detrimental impact on the child and his/her family. A process needs to be in place to safeguard the student from being able to truncate their therapy with an unfounded claim. The commenter states (3) of this rule is a process that is outlined and should also be included in (2).
RESPONSE #19: See Response #18. Section 2 of this rule allows the department to remove program participants for the safety and protection of the program participants. Section 3 allows the suspension or revocation of a license under certain circumstances. The rules address different circumstances and both are necessary.
NEW RULE VIII
COMMENT #20: Several commenters were concerned about how programs would verify legal authority to place or remove a program participant in situations that do not include divorce. One commenter suggests a signed document from parents could be used for verifying legal authority.
RESPONSE #20: The proposed rule requires programs to develop policy that would determine what verification is required. Verification could include a birth certificate with the placing individual's name or a divorce decree granting custody. The department agrees that a program can require parents/guardians sign an attestation stating they have the legal authority to place the program participant. This document may be used if no other form of verification is available.
COMMENT #21: Several commenters expressed concern that the admissions policy may not limit contact with a program participant's family for any duration of time after admission. One commenter suggested allowing programs to limit contact up to 1 week after admission.
RESPONSE #21: The department agrees given the nature of these programs limiting contact with parents for a short period of time after admission may be reasonable with parental consent. The rule text has been updated to allow programs to limit contact no longer than 7 days after admission.
COMMENT #22: A commenter states that as the proposed rule is written it could be interpreted to mean participants have unrestricted access to parents at all times and that is unreasonable policy. The commenter recommends setting up communication with families in advance of placement that are reasonable. Two additional comments were received regarding programs that did not allow enough contact with parents and/or had limits that were too extreme.
RESPONSE #22: The department does not agree that the proposed rule could be interpreted to mean participants have unrestricted access to parents. The programs are required to have a policy with guidelines for parental contact. The rule has been amended to allow programs up to 7 days to initiate contact with parent/guardian after admission. Additional rules are in place to require programs to have ongoing contact with parents in addition to therapeutic contact.
COMMENT #23: Two comments were received concerning programs denying contact with family for extended periods of time.
RESPONSE #23: See Responses #21 and #22.
COMMENT #24: Several commenters had concerns regarding Interstate Compact on the Placement of Children (ICPC) being applied to programs that accept placements from parents only.
RESPONSE #24: The department has determined that ICPC applies. The Association of Administrators of the Interstate Compact on the Placement Children's Regulation 4 requires compliance with the Interstate Compact on the Placement of Children for interstate placement of children into residential facilities.
NEW RULE IX
COMMENT #25: A commenter states the program is not required to have the discharge plan available to the parents at the time of discharge.
RESPONSE #25: The department agrees the rule does not require the discharge summary to be available at the time of discharge and has updated the rule text to reflect this change.
COMMENT #26: Some commenters expressed concern regarding the requirement that program participants may only be discharged to the parent/legal guardian. Commenters are concerned this would not allow parents to contract with a transportation company to pick up participants or for programs to discharge participants to a higher level of care if needed. A commenter states participants may require discharge to a higher level of care.
RESPONSE #26: The department agrees that a program should be allowed to discharge a program participant to individuals approved by the parents. The rule text has been updated to allow discharge with parental consent.
COMMENT #27: A commenter assumes the rule applies to minors under the age of 18.
RESPONSE #27: The commenter is correct. New Rule IX would not apply to program participants who have reached the age of 18 and choose to leave the program.
NEW RULE XI
COMMENT #28: Two commenters expressed concern about requiring the youth to participate in developing and signing the case plan stating that it is unreasonable for an oppositional defiant teen to sign a treatment plan. Commenters suggest the parent/legal guardian is the one that should be involved in and sign the case plan.
RESPONSE #28: The case plan is a document that details the goals and objectives that will assist the program participant and the family in overcoming the challenges that resulted in placement. It is imperative to have the program participants' involvement in this process as they should have the opportunity for input and ensure they are fully informed of what is expected of them while in placement. Signature of the program participant and parents/legal guardian indicates involvement in the process. If a program participant refused to sign the case plan the program may take the opportunity to discuss with the program participant, the reasons they disagree with the plan and amend accordingly or simply document the program participant refused to sign. The department disagrees that it is unreasonable for an oppositional defiant teen to sign a treatment plan.
COMMENT #29: A commenter supports the intent of this rule. The commenter states program creates an initial treatment plan within seven business day focusing on immediate needs and then a more through master treatment plan is developed within 30 business days. Does the rule have some flexibility to allow this? If so, would it be okay to obtain program participant's and parent/guardian signatures on the more thorough master treatment plan instead of the 7-day initial plan?
RESPONSE #29: The commenter's current process for developing the initial case plan and master case plan falls within compliance of the proposed rules. The signatures of the program participant and parent/guardian must be obtained on both plans. See Response #28.
NEW RULE XII
COMMENT #30: A commenter supports the intent of the rule. The commenter asks if the rights and grievance policy is in the program handbook. Will it suffice if the program handbook is reviewed with the program participant and his/her parents, and a statement acknowledging the review of the handbook is signed?
RESPONSE #30: Signature of the program participant and parent/guardian acknowledging the review of the handbook with the rights and grievance policy included would be acceptable.
NEW RULE XIII
COMMENT #31: Some commenters expressed concern regarding the number of background checks and the requirement that results be received before staff work at the program. One commenter suggested only FBI and DPHHS background checks should be required. Commenters requested the rule to allow staff to complete initial training and job shadowing, while not allowing staff to be counted in the staffing ratio or to work alone pending the results of the background checks. Commenters were concerned about the time it takes to receive results of the fingerprint background check and that in the past they have never received the results or been notified by the board regarding eligibility for employment. The program assumed the individual was eligible if they did not hear anything.
RESPONSE #31: In order to adequately screen perspective employees, the program must complete a thorough background check. Without adequate background checks, the safety of youth could be compromised. It is necessary to include requirements for state and national sexual and violent offender background checks for programs to receive relevant information regarding an applicant who may pose a significant risk to the program participants served. Information obtained from these checks may not be available on the fingerprint background checks.
The department agrees with the time concerns programs have and not being able to hire individuals pending the fingerprint background results. The department has amended the rule to allow programs to hire staff pending the results of the fingerprint checks given a name-based check and all other background checks have been completed and the program has submitted the required information to the department to process a fingerprint background check.
The department has been collaborating with the Department of Justice on developing tools that will provide clear guidance on conducting fingerprint background checks. This information will be available prior to the implementation of this rule. This will include the department completing all background checks required in order to expedite the process for programs.
COMMENT #32: A commenter supports this rule and asks if there is anything the department can do to simplify and help expedite this process. The process can be time-intensive and very complicated, and delays can result in difficulties in maintaining appropriate and safe staff-to-participant ratios.
RESPONSE #32: See Response #31.
COMMENT #33: A commenter believes background checks are essential and inquired as to how providers will be made aware of the results in a timely fashion and how they will obtain checks from other states.
RESPONSE #33: Programs will be notified in writing by the department when results of background checks are received. See Response #31.
COMMENT #34: There should be language in this standard that demonstrates that the intention of this standard is to ensure client safety rather than to limit the interaction of the client with the larger community; this standard should also not hinder programmatic advocacy efforts that intend to reduce the stigma of our client population with our local community.
RESPONSE #34: The department disagrees with the language suggestions. The intent of the rule is to ensure the safety of program participants and does not limit interaction with the larger community. The rule is specifically for staff working with program participants.
NEW RULE XIV
COMMENT #35: A couple of commenters raised concerns regarding allowing program participants the right to report abuse and neglect as they have often made false allegations in order to be removed from the program. One commenter stated the student would view it as their "ticket out" of the program. One commenter suggested allowing more time to report in order to notify client and parents of need.
RESPONSE #35: The department disagrees with these comments. The safety of program participant is paramount. Program participants must have the ability to report abuse or neglect when seeking help. It is the responsibility of the department to investigate and determine the credibility of the complaint.
COMMENT #36: A commenter requested extending the 24-hour reporting requirement for instances that occurred in the past when a program participant is not at risk.
RESPONSE #36: Programs must report all allegations of abuse and neglect within 24 hours. It is the responsibility of the department to determine the level of risk to the program participant and need to investigate.
NEW RULE XV
COMMENT #37: A commenter believes the rule was clearly written to provide a high level of safety to program participants. The commenter strongly supports this intent and has the same goal at their program. The commenter further states that at times of high census they may not meet the bedroom square footage requirements. The commenter is requesting information on how they request consideration for modifications of this requirement under (13).
RESPONSE #37: The department will conduct on-site inspections of each facility and determine if modifications to this rule are appropriate. The department will take into consideration the level of care each program provides. Exceptions or modifications will be on an individual basis as the department will determine if the spaces provide the same level of safety to program participants.
COMMENT #38: A commenter would like clarification on this rule and asks the following questions: Are there specific procedures or steps programs need to take to be able to make "alternative arrangements" with respect to square-footage requirements? Will programs licensed prior to October 1, 2019 be "grandfathered" into such alternative arrangements? The commenter further states that the term "grandfathered into" was used loosely during DPHHS facility inspections this summer and presumably referred to the existing "Grandfather Clause" as it is practiced in contemporary law. The commenter recommends defining "Grandfather Clause."
RESPONSE #38: See Response #37. The department disagrees with allowing all programs licensed prior to October 1, 2019 to be "grandfathered in." It is the responsibility of the department during the site inspection and program review to determine the safety level of program participants is adequate at current licensed programs. All programs are not "grandfather in;" therefore the term does not need to be defined.
COMMENT #39: Three programs expressed concern regarding the requirement for program participants sharing a bedroom must be no more than 3 years in age apart. A commenter states there is no similar requirement in either the Youth Care Facility rules, or the Outdoor Behavioral rules. Commenters believe this requirement will create an unnecessary burden on smaller programs that might not have as many options and more limited space. Such requirement established an arbitrary criterion that serves no safety function but will result in limiting enrollment of otherwise eligible students. Commenters state rule will create more rooms which clients can hide, conceal, or conspire. Limiting the age gap of students per room may actually slow a student's growth while enrolled in the program. An older more responsible student can encourage and mentor a newer, younger, or less mature student.
RESPONSE #39: The department agrees that current rules for other facilities mentioned do not have this same requirement. Prior experience working with facilities that serve youth in need of an out of home placement indicates the need for such a requirement. Safety and supervision requirements are the responsibility of the program and should not be diminished in order to place more program participants in one bedroom. Exceptions may be granted to current programs depending on the quality of the supervision. While older youth may positively influence younger youth in many ways, the risk outweighs the benefit when it comes to sharing sleeping space.
Older more mature program participants may encourage and mentor others while participating in activities outside of the sleeping space. Placing younger adolescents with older ones places program participants in higher risk situations that are unnecessary.
COMMENT #40: A commenter believes the more bathrooms a facility has, the more security risk that is created as 90% of all self-harm occurs in the bathroom and shower areas. The rule requirement would more than double the bathrooms in the programs. The commenter recommends 1 bathroom/shower area for 10 program participants.
RESPONSE #40: Requiring an adequate amount of bathing and toileting rooms to accommodate the number of program participants does not increase security risk to program participants. The program is responsible for providing adequate supervision regardless of the number of rooms in the facility. Program participants must be afforded adequate privacy, and this may be inhibited by limiting the number of bathrooms. The rule text was changed to increase the number of toilets and bathing facilities to 8 per program participant.
COMMENT #41: Several comments were received regarding concerns for the square footage requirements per bedrooms and the number of program participants allowed per bedroom. Commenters state the more program participants allowed to share a room the safer the students are. The participants are more likely to inform staff of negative behaviors of other youth if more participants are in one room. Open space keeps program participants accountable for each other, helps them to learn to work together, and it takes away a place to go and hide and get back into themselves.
RESPONSE #41: See responses #37, #38, and #39.
NEW RULE XVI
COMMENT #42: Two commenters expressed concern regarding the requirement that laundry be done in a room used solely for laundry purposes – in common area with everything else. One commenter asked if program participants can still do laundry.
RESPONSE #42: The department has revised the rule text to allow for areas used solely for the purpose of laundry rather than a room. The rule does not prohibit program participants from doing their own laundry.
NEW RULE XIX
COMMENT #43: The Montana Department of Justice Fire Prevention and Investigation Section suggests not citing a specific code or edition as not all localities adopt the same code and edition. Suggested language was included in comment.
RESPONSE #43: The rule text has been changed at the suggestion of the Montana Department of Justice State Fire Marshal's Office.
COMMENT #44: "The department adopts and incorporates by reference the occupancy designation/classification group R-3 of the International Fire Code." It appears from looking at section P2904 of the IFC that we will be required to have water irrigation throughout all living spaces. If this is correct, it will be a substantial investment, which they are prepared to make; however, it would take time. The program is requesting an extension.
RESPONSE #44: See Response #43. Programs will no longer be classified as group R-3. The state or local fire authority will determine occupancy designation and certify programs accordingly.
COMMENT #45: Programs are currently required to have an annual inspection by the local Fire Marshal. A commenter recommends and requests that the rule simply state that (1) a facility must pass an annual fire inspection by the local Fire Marshal (2) a facility must have a clear fire safety plan, a facility must conduct routine fire safety drills, (3) a facility must have adequate fire extinguishers tested and monitored on a weekly or monthly basis and (4) ongoing fire safety training, and have documentation recorded with the Department of Public Health and Human Services when received.
RESPONSE #45: See Response #44.
NEW RULE XXII
COMMENT #46: As previously noted, a commenter asked what sort of document would we ask a parent to produce, especially if parents have not been divorced.
RESPONSE #46: See Response #20.
NEW RULE XXIII
COMMENT #47: A commenter is concerned about the rule restricting the release of records and information to only those listed and not including suspected child abuse or neglect, duty to warn, runaways, and other circumstances.
RESPONSE #47: The department agrees the rule as proposed did not include additional circumstances which could be included in rule. The rule text has been amended to reflect the suggested language.
NEW RULE XXV
COMMENT #48: A commenter questions the legal authority to compel a staff member to have a medical exam under circumstances described in rule and questions if this is a violation of HIPPA. What would programs do if staff members refuse? Is refusal justification enough for termination?
RESPONSE #48: The department believes the commenter's concerns are valid and has removed this requirement from rule.
COMMENT #49: Some comments have been received concerning the requirement for staff to be at least 21 years of age and required to have a high school diploma or GED. One program states they have individuals at the high school and college level that have requested to volunteer and perform internships with their organization.
RESPONSE #49: The department partially agrees with the commenters; however, the department believes that a reasonable business necessity exists for the age limitation. The rule text will be amended to require staff to be at least 20 years of age. Many programs serve individuals who are over 18 years of age. In order for staff to not be undermined by individuals their same age, the department made the age requirement to be 20.
COMMENT #50: A program requests a variance for current staff members that do not have a GED or high school diploma.
RESPONSE #50: The department acknowledges programs may currently employ individuals who do not have a GED or high school diploma. The department agrees to allow programs to continue to employ these individuals until their termination. Programs may not hire staff without a GED or high school diploma following the adoption of this rule.
COMMENT #51: A commenter is concerned the rule would prohibit volunteers coming to the program and speaking to program participants.
RESPONSE #51: Guest speakers are not considered volunteers and would not be prohibited from speaking to program participants. Programs must have a policy regarding volunteers that should exempt guest speakers.
NEW RULE XXIX
COMMENT #52: Protecting the safety of the program participants is paramount so program supports the intent of this rule. A commenter states program is a "step down" from more intensive, often hospital-based, adolescent programs. Program does not admit students requiring proposed minimum staffing levels. Is there any flexibility in the staffing ratios identified in this rule based off of acuity and if we can demonstrate to the department that sufficient staff are employed to meet the supervision needs of the program participants we serve?
RESPONSE #52: The department agrees that the safety of the program participants is paramount. Program participants sent to these programs need a structured program and are experiencing some sort of emotional, behavioral, or learning problems and have a history of failing academically, socially, or emotionally at home or in less structured traditional settings. Many programs have stated they do not provide hospital level of care, nor do they take children placed by the state in other types of facilities currently licensed by the department. In listening to the comments provided at the hearing on September 12, 2019, and reading the written comments submitted, the needs of these program participants are comparable to the children placed in youth care facilities. Some commenters suggest these programs are very similar while others suggest they are much different and suggest they should be held to a lower standard since parents choose to place their children with them. Programs should not be allowed to provide a lesser level of supervision because the parent voluntarily placed their child. A minimum level of staffing needs to be established in order to protect the health and safety of program participants. The programs must increase the minimum staffing requirements if necessary, based on acuity.
The department has considered all the comments regarding the staffing requirements and has amended the rule to allow awake night staffing ratio of 1 staff to 16 program participants provided that programs have at least one awake night staff in each building housing participants.
COMMENT #53: A commenter believes the proposed night time staffing ratio of at least 12 to 1 is an unreasonable ratio particularly over a range of program types and sizes. If the department believes parents should not be able to choose a program without awake staff, then the commenter proposes a night time staffing ratio of 16 to 1. The current proposed rule would increase annual costs of nearly $200,000 as it would increase current night time staffing by 3 staff. The commenter states at their level of care almost all students are sleeping at night unlike psychiatric hospitals. The cost of going from 0 night staff to 3 or 4 awake staff in smaller programs would be unnecessary and cost prohibitive, causing several programs to close. This obviously would cause a negative impact and is to be considered and avoided according to Montana Code (2-4-111, MCA).
RESPONSE #53: See Response #52. The department disagrees that programs requiring 3-4 awake night staff under the proposed rules would be considered a small program. Programs requiring this level of awake night staff have 36 to 48 program participants.
COMMENT #54: Adoption of this rule would be a departure from the program's successful treatment process and will be disruptive to our ongoing efforts. As our program is not a hospital or a setting accepting clients with high acuity, we believe that the presence of additional staff monitoring will imply to our students that we view them as presenting with higher levels of risk and that they are unable to self-regulate which we believe will compromise treatment. Additionally, it implies that our clients will always need high levels of supervision, even when they approach graduation, have participated in numerous off campus visits with their families, and have shown leadership for other students. Additional costs of hiring an awake staff team will prevent some needy families from accessing our program and others of similar nature. Our safety record and availability of staff present demonstrate that our supervision has been effective over the years. The commenter recognizes some awake staff can be reassuring to some clients who may have difficulties with sleep or anxiety and that the proposed changes have some merit to provide another level of support if organized in a way that reflects the type of students the programs accepts. The commenter proposes a ratio of 1 awake staff per 16 participants.
RESPONSE #54: See Response #52.
COMMENT #55: A commenter believes every parent should have the ability to choose the level of night staffing they feel appropriate for their child. The program's census is usually 6-10 students and the need for an awake overnight staff member is not only unnecessary but cost-prohibitive. The proposed rule would have a crucial and devastating impact on our very small business (2-4-111, MCA). The commenter requests the rule be revised to reflect students that do not require awake night staff. The proposed ratio may also impact programs that have an increased census and may also impact them in a financially detrimental way.
RESPONSE #55: See Response #52.
COMMENT #56: Several comments were received regarding the proposed day time staffing requirement. While a one-to-eight ratio may be appropriate for a particular program with students presenting certain problems, it may not be for others. Programs are unclear on who could be considered a "direct care staff." Commenters question if it includes teachers, administrators, and/or therapists when they are all on campus. One commenter stated that if the rule counts only house moms, it would be overkill.
RESPONSE #56: The department has based the minimum day time staffing requirements based on the lowest level of care and acuity needs of participants based in these programs. See Response #53.
Adolescents struggling with emotional needs require a high level of supervision and anything less than a 1 to 8 ratio would not meet the health and safety needs of the participants. Teachers, administrators, or therapists that are providing direct care to the program participants may be counted in the staffing ratio. However, administrators, teachers, and therapists not directly providing care, even while on campus, may not be considered in the staffing ratio.
COMMENT #57: Several comments were received concerning programs being required to have nursing staff.
RESPONSE #57: The proposed new rule does not require all programs to have nursing staff. Nursing staff are only required for programs that describe that nursing care is provided in the program's description.
COMMENT # 58: Based off experience, one commenter is concerned programs do not have enough staff to provide appropriate recreational activities outdoors.
RESPONSE #58: The department has set minimum staffing requirements to ensure that programs have enough staff to supervise necessary activities for program participants including outdoor activities.
COMMENT #59: A commenter believes proposed staffing ratios would be devastating for facilities, creating significant obstacles for many programs in rural Montana to provide services.
RESPONSE #59: It is the responsibility of the program to ensure the availability of appropriate staff to meet the needs of the program participants. The location of the program and difficulty hiring staff in certain locations cannot override the program participants' need for safety and supervision.
COMMENT #60: Most troubling to one commenter is the program's fraudulent use of the term "counselor" and the staff at these facilities holding themselves out as professional counselors when they have no education or license.
RESPONSE #60: See Response #13.
NEW RULE XXX
COMMENT #61: The program supports this rule and recommends including a requirement for training on professional boundaries.
RESPONSE #61: The department appreciates the comment and agrees that training on professional boundaries would benefit program staff. However, the training currently proposed is the minimum programs must provide. The department does not feel it is prudent to add additional training requirements.
COMMENT #62: A commenter states, in their experience, staff in residential programs are under trained and unqualified to treat children.
RESPONSE #62: The department acknowledges this comment and expects the new rules regarding training requirements will increase the knowledge base and qualification of staff members providing services to program participants.
NEW RULE XXXII
COMMENT #63: One commenter suggested parents signing an over the counter medication permission form leads to staff administering medications such as Benadryl at their discretion and not on an "as needed" basis. The commenter expressed concerns about medications being used on a daily basis for the convenience of staff.
RESPONSE #63: Suggestions by the commenter are currently addressed in the proposed rules.
NEW RULE XXXVII
COMMENT #64: Several commenters request this rule be modified to allow for limitation (including denial) only with parental agreement. There are instances that due to student's behavioral choices (defiance, refusal, oppositionality, non-compliance, etc.) visits or communication may "reward" inappropriate behavior. Allowances for this must be present in the rule to best support the emotional needs of immature clients.
RESPONSE #64: The department has amended the communication policy to require programs to provide contact with parents/legal guardian one time per week, excluding therapeutic contact (family therapy). The behavioral modification program may not deny this contact for any reason including the program participants' behavior. The goal of any out-of-home placement is to reunify the family. Programs will hamper their progress with this goal if restricting contact with parents is too extreme.
COMMENT #65: A commenter had great concerns regarding a current program's lack of communication with parents/legal guardians and their children. A commenter states she has spoken to her child twice in almost 3 months. It does not make sense from a therapeutic standpoint that a sixteen-year-old child have such limited contact with their family.
RESPONSE #65: The department agrees and has made rule text changes to require weekly contact with parents/legal guardians regardless of the program participants' behavior.
NEW RULE XL
COMMENT #66: A commenter supports this rule and asks if the current practice of conducting "routine for cause" searches that occur at admission, after off-campus family visits, etc. can continue under proposed rules with written approval from parents.
RESPONSE #66: Searches as described may continue under proposed rule; however, they must be documented and parents/legal guardians must be notified according to rule.
COMMENT #67: Are prescreening urine tests following a home visit allowed if we have written approval from parents?
RESPONSE #67: Urinalysis testing is allowed with parental consent. Documentation requirements must be followed.
COMMENT #68: This section should allow for parents to give their permission for periodic and routine searches to maintain the health and well-being of all students. Procedures need to be in place and transparent to parents and the department to ensure the living environments are free from dangerous items that are discoverable through such searches.
RESPONSE #68: Periodic and routine searches are allowed with parental consent to maintain the health and well-being of all students and the program has reasonable cause documented for the search.
COMMENT #69: In this population adolescents are sent to us for reasons such as self-harm, stealing, and lying. Searches do happen very often for the safety of the students and staff. A program recommends that the rule state that the organization must have a written policy for searches and is signed by parents and program participants so that all parties are in agreement and understanding that this can happen often but only when necessary for safety.
RESPONSE #69: See Response #68.
COMMENT #70: A commenter recommends the rule should be amended to allow parents to give explicit permission for periodic routine searches of correspondence, computers, and possessions in order to maintain a safe and healthy environment. These types of searches are important so that the community can be protected from contraband and the creation of an underground culture that is dangerous for fellow students. A search policy should be transparent and agreed upon by parents.
RESPONSE #70: See Response #68.
COMMENT #71: The rule regarding breathalyzer testing should be eliminated as well as urinalysis, and should be, available to programs when authorized by parents as in (8)(c).
RESPONSE #71: The department disagrees with this comment. Urinalysis and breathalyzer testing is available at the request of a parent/legal guardian.
NEW RULE XLI
COMMENT #72: One commenter is concerned about damaging the therapeutic relationship with program participants if they are required to contact law enforcement when a small amount of cannabis is turned in or found on a program participant. The commenter requests a requirement allow disposal of contraband or turn into policy without identifying the program participant. The commenter states what if it is brought back from a home visit in a state where it is legal.
RESPONSE #72: The rule text has been changed to allow programs to determine in policy when it is appropriate to contact law enforcement.
COMMENT #73: A few comments were received regarding prohibiting firearms on program property. Program participants have in the past been allowed to hunt or engage in 4-H activities that use firearms. Programs have staff/owners living on the property that have and use firearms. The rule should allow programs to maintain firearms on property within program policies and procedures.
RESPONSE #73: The rule text has been revised to allow firearms on property and used by program participants with one on one supervision.
NEW RULE XLVI
COMMENT #74: A commenter would like a grace period for obtaining a Montana driver's license if they have a valid driver's license from another state and all other requirements are met.
RESPONSE #74: The rule text has been changed to require a valid driver's license. This will allow staff that have a valid out-of-state driver's license to transport program participants.
NEW RULE L
COMMENT #75: A commenter recommends requiring a staff to have a Wilderness First Responder Certificate or a Wilderness EMT certification on all expeditions.
RESPONSE #75: The proposed rule requires that each expedition has a field director. The field director must have a current wilderness first responder certification.
NEW RULE LII
COMMENT #76: A commenter states the population of students may not require "awake" overnight staff on outdoor adventures or excursions.
RESPONSE #76: The commenter is responding to staffing requirements for residential outdoor programs. Expedition staffing requirements are located in another rule and do not require awake night staff. Rule text for residential outdoor night staffing has been changed to reflect concerns regarding overnight staff for all private programs with the exception of expeditions.
NEW RULE LIII
COMMENT #77: A commenter does not feel it is necessary for the field director to be required to go on every group expedition, as the only additional competency-based training requirement of the field director is that he or she must have a wilderness first responder certificate. The commenter feels an adequate staff to program participant on a program expedition is one program staff to six program participants.
RESPONSE #77: The department disagrees with the commenter as the field director is responsible for the quality of the field activities, coordinating field operations, and supervising direct care staff among other duties. The field director must have additional educational and/or experience that is not required of direct care staff. The proposed staffing requirements are necessary to ensure the safety and well-being of program participants. Due to the inherent risk factors of expeditions, a higher level of supervision is required.
NEW RULE LV
COMMENT #78: A commenter states there are many other technologies that are more convenient, financially less money, and actually work better than satellite phones. Satellite phones have a habit of not being able to send calls out of certain areas or dropping calls. Global position satellite (GPS) style transmitters that relay messages and coordinates are much more capable.
RESPONSE #78: The proposed rule allows for a GPS system to be used.
COMMENT #79: A commenter believes it is unnecessary to require the field office to be staffed during a group expedition. A satellite phone can call any location and the items mentioned in rule can be accessed electronically.
RESPONSE #79: The proposed rule does not require 24-hour staff to continually monitor communications at the field office. The rule also requires staff to be available by satellite phone within 15 minutes of the field office.
NEW RULE LVI
COMMENT #80: A commenter believes the daily contact logs seem unnecessary and as a director would prefer staff spending their time seeing to students' needs and spending less time filling out daily logs for general statements.
RESPONSE #80: Documentation is necessary to ensure program staff are assessing the area on a daily basis to ensure the health and safety of the program participants. Staffing levels must be sufficient in order for staff to supervise program participants and tend to necessary daily program requirements during an expedition.
NEW RULE LVII
COMMENT #81: Due to satellite phones not being reliable, it might be better if the "verbal" portion of the communication was taken out and just left as communication.
RESPONSE #81: If verbal communication is not possible, programs have the ability to use GPS systems until verbal communication is established. Programs must document the attempt to verbally communicate with the field office.
NEW RULE LX
COMMENT #82: Many parents, staff, and programs may not want their students wearing sunscreen or insect repellent due to cancer causing agents.
RESPONSE #82: Sunscreen and insect repellent are necessary to protect the program participants while outdoor on expedition. Staff may choose to use them or not.
COMMENT #83: Insurance reimbursement eligibility is a key decision criterion for families placing a child. Montana has historically not been treated with the equivalent reimbursement value by insurance carriers as states like Idaho, Utah, and Arizona. DPHHS needs to adopt a similar name for these programs, such as residential treatment centers.
RESPONSE #83: DPHHS is unable to change the name of these programs as the terminality is set in Senate Bill 267.
COMMENT #84: Maintaining the name Alternative Adolescent Program would place programs licensed by the State of Montana at an unnecessary competitive disadvantage while the administrative rules are equal to "residential treatment center" in Idaho, Utah, and Arizona.
RESPONSE #84: See Response #83. Programs may choose to be licensed under Title 50 chapter 5, MCA as a Residential Treatment Facility.
COMMENT #85: Commenters requested time frames and expectation for facilities to become compliant with these rules.
RESPONSE #85: Administrative rules become effective upon adoption. Programs are required to begin implementing rules at this time. The department will provide a six-month time period for programs to submit updated policy and procedures required per new rules. The department will be available to assist programs during this transition.
COMMENT #86: A commenter does not believe these rules apply to their program and they should be excluded from the proposed rules and an alternative placement should be considered for oversight on licensure.
RESPONSE #86: The State of Montana has two licensing options for programs serving youth. Private Alternative Adolescent Residential or Outdoor Program licensure under these proposed rules or youth care facility licensure is available for programs providing substitute care pursuant to Title 52, chapter 2, part 6, MCA. Licensure authority for programs and facilities is determined by the Montana Legislature. The department does not have the authority to develop an alternative license category for programs that believe they should be excluded from these rules.
5. The department intends these rules to be effective upon publication.
/s/ Flint Murfitt /s/ Sheila Hogan Flint Murfitt Sheila Hogan, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State October 29, 2019.
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