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(1) The department adopts and incorporates by reference the fee schedule for the following programs within the Behavioral Health and Developmental Disabilities Division on the dates stated:

(a) Mental health crisis services, as provided in ARM 37.88.101, is effective July 1, 2023.

(b) Goal 189, as provided in ARM 37.89.201, is effective October 1, 2022.

(c) Youth respite care services, as provided in ARM 37.87.2203, is effective July 1, 2023.

(d) Substance use disorder services provider reimbursement, as provided in ARM 37.27.905, is effective October 1, 2022.

(2) Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov. A description of the method for setting the reimbursement rate and the administrative rules applicable to the covered services are published in the chapter or subchapter of this title regarding that service.

(1) The Montana Medicaid Program establishes provider reimbursement rates for medically necessary, covered services based on the estimated demand for services and the legislative appropriation and federal matching funds. Provider reimbursement rates are stated in fee schedules for covered services applicable to the identified Medicaid program. New rates are established by revising the identified program's fee schedule and adopting the new fees as of the stated effective date of the schedule. Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov and may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59620-2951. A description of the method for setting the reimbursement rate and the administrative rules applicable to the covered service are published in the chapter or subchapter of this title regarding that service. The department will make quarterly updates as necessary to the fee schedule noted in this rule to include new procedure codes and applicable rates and removal of terminated procedure codes.

(2) The department adopts and incorporates by reference, the resource-based relative value scale (RBRVS) reimbursement methodology for specific providers as described in ARM 37.85.212 on the date stated.

(a) Resource-based relative value scale (RBRVS) means the version of the Medicare resource-based relative value scale contained in the Medicare Physician Fee Schedule adopted by the Centers for Medicare and Medicaid Services (CMS) of the U.S. Department of Health and Human Services and published at 81 Federal Register 220, page 80170 (November 15, 2016) effective January 1, 2017 which is adopted and incorporated by reference. Procedure codes created after January 1, 2018 will be reimbursed using the relative value units from the Medicare Physician Fee Schedule in place at the time the procedure code is created.

(b) Fee schedules are effective January 1, 2018. The conversion factor for physician services is $36.53. The conversion factor for allied services is $24.29. The conversion factor for mental health services is $24.07. The conversion factor for anesthesia services is $28.87.

(c) Policy adjustors are effective July 1, 2016. The maternity policy adjustor is 112%. The family planning policy adjustor is 105%. The psychological testing for youth policy adjustor is 145%. The psychological testing policy adjustor applies only to psychologists.

(d) The payment-to-charge ratio is effective January 1, 2018 and is 45.59% of the provider's usual and customary charges.

(e) The specific percentages for modifiers adopted by the department are effective July 1, 2016.

(f) Psychiatrists receive a 112% provider rate of reimbursement adjustment to the reimbursement of physicians effective July 1, 2016.

(g) Midlevel practitioners receive a 90% provider rate of reimbursement adjustment to the reimbursement of physicians for those services described in ARM 37.86.205(5)(b) effective July 1, 2016.

(h) Optometric services receive a 112% provider rate of reimbursement adjustment to the reimbursement for allied services as provided in ARM 37.85.105(2) effective July 1, 2016.

(i) Reimbursement for physician-administered drugs described in ARM 37.86.105 is determined in 42 CFR 414.904 (2016). The department adopts 102.83% of the Average Sale Price (ASP), effective January 1, 2018.

(j) Reimbursement for vaccines described at ARM 37.86.105 is effective January 1, 2018.

(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) The inpatient hospital services fee schedule and inpatient hospital base fee schedule rates including:

(i) the APR-DRG fee schedule for inpatient hospitals as provided in ARM 37.86.2907, effective January 1, 2018; and

(ii) the Montana Medicaid APR-DRG relative weight values, average national length of stay (ALOS), outlier thresholds, and APR grouper version 34 are contained in the APR-DRG Table of Weights and Thresholds effective January 1, 2018. The department adopts and incorporates by reference the APR-DRG Table of Weights and Thresholds effective January 1, 2018.

(b) The outpatient hospital services fee schedules including:

(i) the Outpatient Prospective Payment System (OPPS) fee schedule as published by the Centers for Medicare and Medicaid Services (CMS) in 81 Federal Register 219, page 79562, effective January 1, 2017, and reviewed annually by CMS as required in 42 CFR 419.5 (2016) as updated by the department;

(ii) the conversion factor for outpatient services on or after January 1, 2018 is $54.95;

(iii) the Medicaid statewide average outpatient cost-to-charge ratio is 39.91%; and

(iv) the bundled composite rate of $244.47 for services provided in an outpatient maintenance dialysis clinic effective on or after January 1, 2018.

(c) The hearing aid services fee schedule, as provided in ARM 37.86.805, is effective January 1, 2018.

(d) The Relative Values for Dentists, as provided in ARM 37.86.1004, reference published in 2017 resulting in a dental conversion factor of $32.77 and fee schedule is effective January 1, 2018.

(e) The dental services covered procedures, the Dental and Denturist Program Provider Manual, as provided in ARM 37.86.1006, is effective July 1, 2016.

(f) The outpatient drugs reimbursement, dispensing fees range as provided in ARM 37.86.1105(3)(b) is effective January 1, 2018:

(i) for pharmacies with prescription volume between 0 and 39,999, the minimum is $3.41 and the maximum is $14.55;

(ii) for pharmacies with prescription volume between 40,000 and 69,999, the minimum is $3.41 and the maximum is $12.61; or

(iii) for pharmacies with prescription volume greater than 70,000, the minimum is $3.41 and the maximum is $10.67.

(g) The outpatient drugs reimbursement, compound drug dispensing fee range as provided in ARM 37.86.1105(5), will be $12.50, $17.50, or $22.50 based on the level of effort required by the pharmacist, effective July 1, 2013.

(h) The outpatient drugs reimbursement, vaccine administration fee as provided in ARM 37.86.1105(6), will be $20.68 for the first vaccine and $12.61 for each additional administered vaccine, effective January 1, 2018.

(i) The outpatient drugs reimbursement, unit dose prescriptions fee as provided in ARM 37.86.1105(10), will be $0.75 per pharmacy-packaged unit dose medication, effective November 1, 2013.

(j) The home infusion therapy services fee schedule, as provided in ARM 37.86.1506, is effective January 1, 2018.

(k) Montana Medicaid adopts and incorporates by reference the Region D Supplier Manual, effective January 1, 2018, which outlines the Medicare coverage criteria for Medicare covered durable medical equipment, local coverage determinations (LCDs), and national coverage determinations (NCDs) as provided in ARM 37.86.1802, effective January 1, 2018. The prosthetic devices, durable medical equipment, and medical supplies fee schedule, as provided in ARM 37.86.1807, is effective January 1, 2018.

(l) Fee schedules for private duty nursing, nutrition, children's special health services, and orientation and mobility specialists as provided in ARM 37.86.2207(2), are effective January 1, 2018.

(m) The transportation and per diem fee schedule, as provided in ARM 37.86.2405, is effective July 1, 2016.

(n) The specialized nonemergency medical transportation fee schedule, as provided in ARM 37.86.2505, is effective July 1, 2016.

(o) The ambulance services fee schedule, as provided in ARM 37.86.2605, is effective January 1, 2018.

(p) The audiology fee schedule, as provided in ARM 37.86.705, is effective January 1, 2018.

(q) The therapy fee schedules for occupational therapists, physical therapists, and speech therapists, as provided in ARM 37.86.610, are effective January 1, 2018.

(r) The optometric fee schedule provided in ARM 37.86.2005, is effective January 1, 2018.

(s) The chiropractic fee schedule, as provided in ARM 37.85.212(2), is effective January 1, 2018.

(t) The lab and imaging fee schedule, as provided in ARM 37.85.212(2) and 37.86.3007, is effective January 1, 2018.

(u) The Federally Qualified Health Center (FQHC) and Rural Health Clinic (RHC) fee schedule for add-on services, as provided in ARM 37.86.4412, is effective January 1, 2018.

(v) The Targeted Case Management for Children and Youth with Special Health Care Needs fee schedule, as provided in ARM 37.86.3910, is effective January 1, 2018.

(w) The Targeted Case Management for High Risk Pregnant Women fee schedule, as provided in ARM 37.86.3415, is effective January 1, 2018.

(x) The mobile imaging fee schedule, as provided in ARM 37.85.212, is effective January 1, 2018.

(y) The licensed direct entry midwife fee schedule, as provided in ARM 37.85.212, is effective January 1, 2018.

(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 January 1, 2018.

(b) Home health services fee schedule, as provided in ARM 37.40.705, is effective January 1, 2018.

(c) Personal assistance services fee schedule, as provided in ARM 37.40.1135, is effective January 1, 2018.

(d) Self-directed personal assistance services fee schedule, as provided in ARM 37.40.1135, is effective January 1, 2018.

(e) Community first choice services fee schedule, as provided in ARM 37.40.1026, is effective January 1, 2018.

(5) The department adopts and incorporates by reference, the fee schedule for the following programs within the Addictive and Mental Disorders Division on the date stated:

(a) Mental health center services for adults reimbursement, as provided in ARM 37.88.907, is effective January 1, 2018.

(b) Home and community-based services for adults with severe disabling mental illness, reimbursement, as provided in ARM 37.90.408, is effective January 1, 2018.

(c) Substance use disorder services reimbursement, as provided in ARM 37.27.908, is effective January 1, 2018.

(6) The department adopts and incorporates by reference, the fee schedule for the following program within the Developmental Services Division, on the date stated: Mental health services for youth, as provided in ARM 37.87.901 in the Medicaid Youth Mental Health Services Fee Schedule, is effective January 1, 2018.

(1) The Montana Medicaid Program establishes provider reimbursement rates for medically necessary, covered services based on the estimated demand for services and the legislative appropriation and federal matching funds. Provider reimbursement rates are stated in fee schedules for covered services applicable to the identified Medicaid program. New rates are established by revising the identified program's fee schedule and adopting the new fees as of the stated effective date of the schedule. Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov. A description of the method for setting the reimbursement rate and the administrative rules applicable to the covered service are published in the chapter or subchapter of this title regarding that service. The department will make periodic updates, as necessary, to the fee schedules noted in this rule to include new procedure codes and applicable rates and to remove terminated procedure codes.

(2) The department adopts and incorporates by reference, the resource-based relative value scale (RBRVS) reimbursement methodology for specific providers as described in ARM 37.85.212 on the date stated.

(a) Resource-based relative value scale (RBRVS) means the version of the Medicare resource-based relative value scale contained in the Medicare Physician Fee Schedule adopted by the Centers for Medicare & Medicaid Services (CMS) of the U.S. Department of Health and Human Services and published at 87 Federal Register 69404 (Nov. 18, 2022), effective January 1, 2023, which is adopted and incorporated by reference. Procedure codes created after January 1, 2023, will be reimbursed using the relative value units from the Medicare Physician Fee Schedule in place at the time the procedure code is created.

(b) Fee schedules are effective July 1, 2023. The conversion factor for physician services is $44.32. The conversion factor for allied services is $26.13. The conversion factor for mental health services is $22.67. The conversion factor for anesthesia services is $32.04.

(c) Policy adjustors are effective July 1, 2023. The maternity policy adjustor is 100%. The family planning policy adjustor is 105%. The psychological testing policy adjustor is 200%. The psychological testing policy adjustor applies only to psychologists.

(d) The BCBA/BCBA-D services policy adjuster is 115.8%, effective July 1, 2021.

(e) The payment-to-charge ratio is effective July 1, 2023, and is 46.8% of the provider's usual and customary charges.

(f) The specific percentages for modifiers adopted by the department are effective July 1, 2016.

(g) Psychiatrists receive a 112% provider rate of reimbursement adjustment to the reimbursement of physicians effective July 1, 2016.

(h) Midlevel practitioners receive a 90% provider rate of reimbursement adjustment to the reimbursement of physicians for those services described in ARM 37.86.205(5)(b), effective July 1, 2016.

(i) Optometric services receive a 115.50% provider rate of reimbursement adjustment to the reimbursement for allied services, as provided in ARM 37.85.105(2), effective July 1, 2023.

(j) Reimbursement for physician-administered drugs described in ARM 37.86.105 is determined pursuant to 42 U.S.C. 1395w-3a.

(k) Reimbursement for vaccines described at ARM 37.86.105 is effective July 1, 2020.

(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) The inpatient hospital services fee schedule and inpatient hospital base fee schedule rates including:

(i) the APR-DRG fee schedule for inpatient hospitals, as provided in ARM 37.86.2907, effective October 1, 2023; and

(ii) the Montana Medicaid APR-DRG relative weight values, average national length of stay (ALOS), outlier thresholds, and APR grouper version 40.0, contained in the APR-DRG Table of Weights and Thresholds, effective October 1, 2023. The department adopts and incorporates by reference the APR-DRG Table of Weights and Thresholds effective October 1, 2023.

(b) The outpatient hospital services fee schedules including:

(i) the Outpatient Prospective Payment System (OPPS) fee schedule as published by the CMS in 87 Federal Register 71748 (Nov. 23, 2022), effective January 1, 2023, and reviewed annually by CMS, as required in 42 CFR 419.50 and as updated by the department;

(ii) the conversion factor for outpatient services on or after July 1, 2023 is $58.39;

(iii) the Medicaid statewide average outpatient cost-to-charge ratio is 48.95%; and

(iv) the bundled composite rate of $271.02 for services provided in an outpatient maintenance dialysis clinic effective on or after July 1, 2023.

(c) The hearing aid services fee schedule, as provided in ARM 37.86.805, is effective July 1, 2023.

(d) The Relative Values for Dentists, as provided in ARM 37.86.1004, reference published in 2023 resulting in a dental conversion factor of $36.90 and fee schedule is effective July 1, 2023.

(e) The Dental and Denturist Program Provider Manual, as provided in ARM 37.86.1006, is effective July 1, 2023.

(f) The outpatient drugs reimbursement dispensing fees range as provided in ARM 37.86.1105(3)(b), is effective July 1, 2023:

(i) for pharmacies with prescription volume between 0 and 39,999, the minimum is $5.11 and the maximum is $16.36;

(ii) for pharmacies with prescription volume between 40,000 and 69,999, the minimum is $5.11 and the maximum is $14.16; or

(iii) for pharmacies with prescription volume greater than or equal to 70,000, the minimum is $5.11 and the maximum is $11.98.

(g) The outpatient drugs reimbursement compound drug dispensing fee range, as provided in ARM 37.86.1105(5), will be $12.50, $17.50, or $22.50, based on the level of effort required by the pharmacist, effective July 1, 2013.

(h) The outpatient drugs reimbursement vaccine administration fee, as provided in ARM 37.86.1105(6), will be $21.32 for the first vaccine and $18.65 for each additional vaccine administered on the same date of service, effective July 1, 2023.

(i) The outpatient drugs reimbursement, unit dose prescriptions fee as provided in ARM 37.86.1105(10), will be $0.75 per pharmacy-packaged unit dose medication, effective November 1, 2013.

(j) The home infusion therapy services fee schedule, as provided in ARM 37.86.1506, is effective July 1, 2023.

(k) Montana Medicaid adopts and incorporates by reference the Region D Supplier Manual, effective October 1, 2023, which outlines the Medicare coverage criteria for Medicare covered durable medical equipment, local coverage determinations (LCDs), and national coverage determinations (NCDs), as provided in ARM 37.86.1802, effective October 1, 2023. The prosthetic devices, durable medical equipment, and medical supplies fee schedule, as provided in ARM 37.86.1807, is effective October 1, 2023.

(l) The nutrition services fee schedule, as provided in ARM 37.86.2207(2), is effective July 1, 2023.

(m) The children's special health services fee schedule, as provided in ARM 37.86.2207(2), is effective July 1, 2019.

(n) The orientation and mobility specialist services fee schedule, as provided in ARM 37.86.2207(2), is effective July 1, 2023.

(o) The transportation and per diem fee schedule, as provided in ARM 37.86.2405, is effective July 1, 2023.

(p) The specialized nonemergency medical transportation fee schedule, as provided in ARM 37.86.2505, is effective July 1, 2023.

(q) The ambulance services fee schedule, as provided in ARM 37.86.2605, is effective July 1, 2023.

(r) The audiology fee schedule, as provided in ARM 37.86.705, is effective July 1, 2023.

(s) The therapy fee schedules for occupational therapists, physical therapists, and speech therapists, as provided in ARM 37.86.610, are effective July 1, 2023.

(t) The optometric services fee schedule, as provided in ARM 37.86.2005, is effective July 1, 2023.

(u) The chiropractic fee schedule, as provided in ARM 37.85.212(2), is effective July 1, 2023.

(v) The lab and imaging services fee schedule, as provided in ARM 37.85.212(2) and 37.86.3007, is effective July 1, 2023.

(w) The Targeted Case Management for Children and Youth with Special Health Care Needs fee schedule, as provided in ARM 37.86.3910, is effective July 1, 2023.

(x) The Targeted Case Management for High Risk Pregnant Women fee schedule, as provided in ARM 37.86.3415, is effective July 1, 2023.

(y) The mobile imaging services fee schedule, as provided in ARM 37.85.212, is effective July 1, 2023.

(z) The licensed direct-entry midwife fee schedule, as provided in ARM 37.85.212, is effective July 1, 2023.

(aa) The private duty nursing services fee schedule, as provided in ARM 37.86.2207(2), is effective July 1, 2023.

(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) The Big Sky Waiver home and community-based services for elderly and physically disabled persons fee schedule, as provided in ARM 37.40.1421, is effective July 1, 2023.

(b) The home health services fee schedule, as provided in ARM 37.40.705, is effective July 1, 2023.

(c) The personal assistance services fee schedule, as provided in ARM 37.40.1135, is effective July 1, 2023.

(d) The self-directed personal assistance services fee schedule, as provided in ARM 37.40.1135, is effective July 1, 2023.

(e) The community first choice services fee schedule, as provided in ARM 37.40.1026, is effective July 1, 2023.

(5) The department adopts and incorporates by reference, the fee schedule for the following programs within the Behavioral Health and Developmental Disabilities Division on the date stated:

(a) The mental health center services for adults fee schedule, as provided in ARM 37.88.907, is effective July 1, 2023.

(b) The home and community-based services for adults with severe disabling mental illness fee schedule, as provided in ARM 37.90.408, is effective July 1, 2023.

(c) The substance use disorder services fee schedule, as provided in ARM 37.27.905, is effective July 1, 2023.

(6) For the Behavioral Health and Developmental Disabilities Division, the department adopts and incorporates by reference the Medicaid youth mental health services fee schedule, as provided in ARM 37.87.901, effective July 1, 2023.

(1) The Montana Medicaid Program establishes provider reimbursement rates for medically necessary, covered services based on the estimated demand for services and the legislative appropriation and federal matching funds.

(2) The Department of Public Health and Human Services (department) adopts and incorporates by reference the Medicaid Behavioral Health Targeted Case Management Fee Schedule effective July 1, 2023, for the following programs within the Behavioral Health and Developmental Disabilities Division:

(a) Targeted Case Management Services (TCM) for Youth with Serious Emotional Disturbance (SED), as provided in ARM 37.87.901;

(b) Targeted Case Management Services for Substance Use Disorders (SUD), as provided in ARM 37.27.905; and

(c) Targeted Case Management Services for Adults with Severe Disabling Mental Illness (SDMI), as provided in ARM 37.86.3515.

(3) Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov.

(1) Except as otherwise provided in ARM Title 37, chapters 40, 80, 82, 83, 85, 86, 88 any individual eligible for medical assistance may obtain the services available from any institution, agency, pharmacy, or practitioner, qualified to perform such services and participating under the program, including an organization which provides these services or arranges for their availability on a prepayment basis.

(1) Effective for claims paid on or after January 1, 2020, members covered under Medicaid or Medicaid Expansion will not be assessed a copayment, as defined in ARM 37.84.102, for any covered service.

(2) The total of Medicaid or Medicaid Expansion cost share, as defined in ARM 37.84.102, incurred by a Medicaid or Medicaid Expansion household may not exceed an aggregate limit of five percent of the family's income applied quarterly. There may not be further cost sharing applied to the household members in a quarter once a household has met the quarterly aggregate cap.

(3) Providers may directly charge members only for the following services if the member signs an Advanced Beneficiary Notice for the specific service prior to the service being provided:

(a) noncovered services;

(b) experimental services;

(c) unproven services;

(d) services performed in an inappropriate setting;

(e) services that are not medically necessary;

(f) investigational services; or

(g) dental treatment expenses that exceed the annual dental treatment cap.

This rule has been repealed.

(1) Except as otherwise provided in this rule, the following medical or remedial care and services are available to all persons who are eligible for Medicaid benefits under this chapter including deceased persons, categorically related, who would have been eligible had death not prevented them from applying.

(a) inpatient hospital services;

(b) outpatient hospital services;

(c) non-hospital laboratory and x-ray services;

(d) nursing facility services;

(e) early and periodic screening, diagnosis and treatment services;

(f) physician's services;

(g) podiatry services;

(h) outpatient physical therapy services;

(i) speech therapy, audiology and hearing aid services;

(j) outpatient occupational therapy services;

(k) home health care services;

(l) personal care services in a member's home;

(m) home dialysis services;

(n) private duty nursing services;

(o) clinic services;

(p) dental services;

(q) outpatient drugs;

(r) durable medical equipment, prosthetic devices, and medical supplies;

(s) eyeglasses and optometric services;

(t) transportation and per diem;

(u) ambulance services;

(v) specialized nonemergency transportation;

(w) family planning services;

(x) home and community services;

(y) mid-level practitioner services;

(z) hospice services;

(aa) licensed psychologist services;

(ab) licensed clinical social worker services;

(ac) licensed professional counselor services;

(ad) inpatient psychiatric services;

(ae) mental health center services;

(af) case management services;

(ag) institutions for mental diseases for persons age 65 and over;

(ah) payment of premiums, co-insurance, deductibles, and other cost sharing obligations under an individual or group health plan in accordance with the provisions of ARM 37.82.424;

(ai) diabetes and cardiovascular disease prevention services;

(aj) habilitative services; and

(ak) rehabilitative services.

(2) Only those medical or remedial care and services also covered by Medicare are available to a person who is eligible for Medicaid benefits as a qualified Medicare beneficiary under ARM 37.83.201 and 37.83.202.

(3) State plan Medicaid benefits are available for members who are Medicaid-covered through the Waiver for Additional Services and Populations (WASP) Medicaid 1115 Waiver as approved by the Centers for Medicare and Medicaid Services (CMS).

(a) A person may receive coverage through the WASP Medicaid 1115 Waiver if the person is 18 or older, has severe disabling mental illnesses (SDMI), would qualify for or be enrolled in the state-financed mental health services plan (MHSP) or the WASP Medicaid 1115 Waiver but is otherwise ineligible for Medicaid benefits, and either:

(i) the person's income is 0 to 138% of the federal poverty level and the person is eligible for or is enrolled in Medicare; or

(ii) the person's income is 139 to 150% of the federal poverty level whether Medicare eligible or not.

(b) A person determined categorically eligible for Medicaid as aged, blind, or disabled (ABD) in accordance with ARM 37.82.901 through 37.82.903 is not subject to the annual $1,125 dental treatment limit. The monies expended for treatment costs exceeding the limit are covered through the WASP Medicaid 1115 Waiver.

(1) Items or medical services not specifically included within these rules as covered benefits of the Montana Medicaid program are not reimbursable.

(2) The following medical and nonmedical services are explicitly excluded from the Montana Medicaid program, except for those services specifically available, as listed in ARM 37.40.1406, 37.90.402, and Title 37, chapter 34, subchapter 9 to persons eligible for home and community-based services; and except for those Medicare covered services, as listed in ARM 37.83.812 to qualified Medicare beneficiaries for whom the Montana Medicaid program pays the Medicare premiums, deductible, and coinsurance:

(a) chiropractic services;

(b) acupuncture services;

(c) naturopathic services;

(d) dietician services;

(e) physical therapy aide services, except as provided in ARM 37.86.601, 37.86.605, 37.86.606, and 37.86.610;

(f) surgical technicians who are not physicians or mid-level practitioners;

(g) nutritional services;

(h) masseur or masseuse services;

(i) dietary supplements;

(j) homemaker services;

(k) telephone service in home, remodeling of home, plumbing service, car repair, and/or modification of automobile;

(l) delivery services not provided in a licensed health care facility or nationally accredited birthing center unless as an emergency service. Delivery services means services necessary to protect the health and safety of the woman and fetus from the onset of labor through delivery. Emergency service is defined in ARM 37.82.102;

(m) treatment services for infertility, including sterilization reversals;

(n) experimental services;

(o) all invasive medical procedures undertaken for the purpose of weight reduction such as gastric bypass, gastric banding, or bariatric surgery, including all revisions; and

(p) circumcisions not authorized by the department as medically necessary.

(3) Medical services furnished to Medicaid eligible recipients who are absent from the state are excluded from the Montana Medicaid program except for those medical services provided when:

(a) there is a medical emergency and the recipient's health would be endangered if he were required to travel to Montana to obtain the medical services;

(b) the recipient travels to another state because the department finds the required medical services are not available in Montana; or it is determined by the department that it is general practice for recipients in a particular locality to use medical resources in another state;

(c) the recipient or his representative can demonstrate to the satisfaction of the department that out-of-state medical services and all related expenses will be less costly than in-state services; or

(d) the recipient is a child residing in another state for whom Montana makes adoption assistance or foster care maintenance payments.

(1) For purposes of this rule, the following definitions apply:

(a) "Anesthesia units" means time and base units used to compute reimbursement under RBRVS for anesthesia services. Base units are those units as defined by the Medicare program. Time units are 15-minute intervals during which anesthesia is provided.

(b) "Conversion factor" means a dollar amount by which the relative value units, or the anesthesia units for anesthesia services, are multiplied in order to establish the RBRVS fee for a service. The effective date and conversion factor amounts are adopted at ARM 37.85.105(2). There are four conversion factor categories:

(i) physician services, which applies to the following health care professionals listed in (2): physicians, mid-level practitioners, podiatrists, public health clinics, independent diagnostic testing facilities (IDTF), mobile imaging/portable X-ray providers, qualified Medicare beneficiary (QMB) and early and periodic screening, diagnostic and treatment (EPSDT) chiropractors, laboratory and x-ray services, family planning clinics, and dentists providing medical services;

(ii) allied services, which applies to the following health care professionals listed in (2): physical therapists, occupational therapists, speech therapists, optometrists, opticians, audiologists, school-based services, licensed direct-entry midwives, and EPSDT orientation and mobility specialists;

(iii) mental health services, which applies to the following health care professionals listed in (2): licensed psychologists, licensed clinical social workers, and licensed professional counselors; and

(iv) anesthesia services, which applies to anesthesia services.

(c) "Conversion factor category" means the four categories of providers for purposes of calculating Medicaid fees. The categories are physician services, allied services, mental health services, and anesthesia services.

(d) "Policy adjustor" means a factor by which the product of the relative value units and the conversion factor is multiplied to increase or decrease the fees paid by Medicaid for certain categories of services.

(e) "Provider rate of reimbursement adjustment" means the change to the RBRVS fee calculated for a procedure based on the health care professional delivering the service.

(f) "Rate variable" means a multiplier in the rate equation, such as a policy adjustor, a provider rate of reimbursement, or pricing modifier, that changes the RBRVS rate for a procedure or service.

(g) "RBRVS fee" for a covered procedure means the amount calculated by multiplying the relative value units (or the anesthesia units for anesthesia services) for the procedure by the appropriate conversion factor. If applicable, a rate variable may be applied to the RBRVS fee to calculate the Montana Medicaid fee for the procedure.

(h) "Relative value unit (RVU)" means a numerical value assigned in the resource based relative value scale to each procedure code used to bill for services provided by a health care provider. The relative value unit assigned to a particular code expresses the relative effort and expense expended by a provider in providing one service as compared with another service.

(i) "Resource-based relative value scale (RBRVS)" means the Medicare resource-based relative value scale contained in the Medicare Physician Fee Schedule adopted by the Centers for Medicare and Medicaid Services (CMS) of the U.S. Department of Health and Human Services. The effective date and citation for the RBRVS is adopted at ARM 37.85.105(2).

(2) Services provided by the following health care professionals will be reimbursed in accordance with the RBRVS methodology set forth in (3):

(a) physicians;

(b) mid-level practitioners;

(c) podiatrists;

(d) physical therapists;

(e) occupational therapists;

(f) speech therapists;

(g) audiologists;

(h) optometrists;

(i) opticians;

(j) public health clinics;

(k) licensed psychologists;

(l) licensed clinical social workers;

(m) licensed professional counselors;

(n) dentists providing medical services;

(o) laboratory and x-ray services;

(p) independent diagnostic testing facilities (IDTF);

(q) school-based services;

(r) QMB and EPSDT chiropractors;

(s) family planning clinics;

(t) anesthesia services;

(u) licensed direct-entry midwives;

(v) EPSDT orientation and mobility specialists; and

(w) mobile imaging/portable x-ray providers.

(3) The RBRVS fee for a covered service is calculated by multiplying the RVUs determined in accordance with (7) by the conversion factor. The RBRVS fee may also be multiplied by a rate variable to calculate the fee paid by Medicaid.

(4) The conversion factor for physician services is calculated as stated in 53-6-124 and 53-6-125, MCA. The conversion factor for allied services, mental health services, and anesthesia services is calculated as follows:

(a) The total RVUs for the prior period is calculated as the sum of the product of the RVUs for a procedure code multiplied by the number of times the procedure code was paid in a prior period.

(b) The total RVUs for the prior period is multiplied by the projected change in utilization to estimate utilization during the appropriation period.

(c) The Montana Legislature's appropriation for the period is divided by the estimated utilization for the period to calculate the conversion factor.

(d) The RVU assigned to each procedure code is multiplied by the appropriate conversion factor to calculate the RBRVS fee for a particular procedure code.

(5) Policy adjustors will be used to accomplish targeted funding allocations. The effective date and amounts are as provided in ARM 37.85.105(2).

(6) All conversion factors may be adjusted, pursuant to 17-7-140, MCA, to ensure that the expenditure of appropriations does not exceed available revenue.

(7) The RVUs for services are adopted from the Medicare Physician Fee Schedule described in (1).

(8) Subject to the provisions of (8)(a), when billed with a modifier, payment for procedures established under the provisions of (7) is a percentage of the rate established for the procedures.

(a) The methodology to determine the specific percent for each modifier is as follows:

(i) The department obtains information from Medicare and other third party payers regarding the comparative value utilized for payment of procedures billed with modifiers.

(ii) The department establishes a specific percentage for each modifier based upon the purpose of the modifier, the comparative value of the modified service and the medical insurance industry trend of reimbursement for the modifier.

(iii) The department's list of the specific percents for the modifiers used by Medicaid is adopted and incorporated by reference. A copy of the list is available on the department's web site at: https://medicaidprovider.mt.gov/manuals/physicianrelatedservicesmanual. The effective date and amounts are as provided in ARM 37.85.105(2).

(9) In applying the RBRVS methodology set forth in this rule, Medicaid reimburses in accordance with Medicare's policy on the bundling of services, as set forth in the Medicare Physician Fee Schedule adopted by CMS and published in the Federal Register annually, whereby payment for certain services constitutes payment for certain other services which are considered to be included in those services.

(10) Providers must bill for services using the procedure codes and modifiers set forth, and according to the definitions contained in the Federal Health Care Administration's Common Procedure Coding System (HCPCS). Information regarding billing codes, modifiers, and HCPCS is available in provider manuals located on the department's web site at: https://medicaidprovider.mt.gov/.�

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(1) Any provider that is enrolled in the federal Medicare program as a Mobile Imaging Provider/Portable X-Ray Supplier may also enroll in the Montana Medicaid program as a Mobile Imaging Provider/Portable X-Ray Supplier.

(2) A Mobile Imaging Provider/Portable X-Ray Supplier enrolled in the Montana Medicaid program is governed by 42 CFR 486.100, 486.102, 486.104, 486.106, 486.108, and 486.110. The department adopts and incorporates by reference 42 CFR 486.100, 486.102, 486.104, 486.106, 486.108, and 486.110. Copies of 42 CFR 486.100, 486.102, 486.104, 486.106, 486.108, and 486.110 are available upon request from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

(3) In addition to 42 CFR 486.100, 486.102, 486.104, 486.106, 486.108, and 486.110, a Mobile Imaging Provider/Portable X-Ray Supplier enrolled in the Montana Medicaid program must comply with all rules generally applicable to Medicaid providers.

(4) A Mobile Imaging Provider/Portable X-Ray Supplier must be reimbursed for diagnostic services performed under ARM 37.85.406 and 37.86.105.

(5) The definitions found in the introduction to Physicians Current Procedural Terminology, fourth edition (CPT4), published by the American Medical Association of Chicago, Illinois and adopted by reference at ARM 37.86.101, set forth meanings of terms commonly used by the Montana Medicaid program in implementation of the program's Mobile Imaging Provider/Portable X-Ray Supplier fee schedule.

(6) The Physician-Related Services Manual governing the administration of the Mobile Imaging Provider/Portable X-Ray Supplier program adopted at ARM 37.86.101 applies to a Mobile Imaging Provider/Portable X-Ray Supplier.

(1) Any facility that is enrolled in the federal Medicare program as an independent diagnostic testing facility (IDTF) may also enroll in the Montana Medicaid program as an IDTF.

(2) IDTFs enrolled in the Montana Medicaid program shall be governed by 42 CFR 410.32 and 410.33. The department hereby adopts and incorporates by reference 42 CFR 410.32 and 410.33 (2001). Copies of 42 CFR 410.32 and 410.33 (2001) are available upon request from the Department of Public Health and Human Services, Health Policy and Services Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

(3) In addition to 42 CFR 410.32 and 410.33, IDTFs enrolled in the Montana Medicaid program shall comply with all rules generally applicable to Medicaid providers.

(4) An IDTF shall be reimbursed for diagnostic services performed pursuant to this rule in accordance with ARM 37.85.406 and 37.86.105.

(5) The definitions found in the introduction to Physicians Current Procedural Terminology, fourth edition (CPT4), published by the American Medical Association of Chicago, Illinois and adopted at ARM 37.86.101 set forth meanings of terms commonly used by the Montana Medicaid program in implementation of the program's IDTF fee schedule.

(6) The Physician-Related Services Manual governing the administration of the IDTF program adopted at ARM 37.86.101 applies to independent diagnostic testing facilities.

(1) Within one year after the establishment of the contract auditor, and each subsequent year, the department will announce auditor evaluation hearing meetings via the department's website at www.dphhs.mt.gov and the State of Montana's public calendaring system. The meetings will provide an opportunity for the Medicaid provider community and the department to discuss appropriate conduct and determinations by contract auditors. The evaluation meetings' information will be published no less than 30 calendar days in advance of any annual meeting.

(1) As a condition of participation in the Montana Medicaid program all providers must comply with all applicable state and federal statutes, rules and regulations, including but not limited to federal regulations and statutes found in Title 42 of the Code of Federal Regulations and the United States Code governing the Medicaid Program and all applicable Montana statutes and rules governing licensure and certification.

(1) Providers must enroll in the Montana Medicaid program for each category of services to be provided. As a condition of granting enrollment approval or of allowing continuing enrollment, the department may require the provider to:

(a) complete and submit an enrollment application or form;

(b) complete and submit agreements or other forms applicable to the provider's category of service;

(c) provide information and documentation regarding ownership and control of the provider entity and regarding the provider's ownership interest or control rights in other providers that bill Medicaid;

(d) provide information and documentation regarding:

(i) any sanctions, suspensions, exclusions or civil monetary penalties imposed by the Medicare program, any state Medicaid program or other federal program against the provider, a person or entity with an ownership or control interest in the provider or an agent or managing employee of the provider; and

(ii) any criminal charges brought against and any criminal convictions of the provider, a person or entity with an ownership or control interest in the provider or an agent or managing employee of the provider related to that person's or entity's involvement in Medicare, Medicaid, or the Title XX Services program; and

(e) submit documentation and information demonstrating compliance with participation requirements applicable to the provider's category of service.

(2) Providers shall provide the department's fiscal agent with 30 days advance written notice of any change in the provider's name, address, tax identification number, group practice arrangement, business organization or ownership.

(a) An enrolled provider is not entitled to change retroactively the category of service for which the provider is enrolled, but must enroll prospectively in the new program category. The change in service category will be effective only upon approval of a completed enrollment application for the new service category and on or after the effective date of all required licenses and certifications. The change will apply only to services provided on or after the effective date of the enrollment change.

(3) Except as provided in (2)(a), an approved enrollment is effective on the later of:

(a) one year prior to the date the completed enrollment application is received by the department's fiscal agent; or

(b) the date as of which all required licenses and certifications are effective.

(4) Providers, whose services are covered by the Title XVIII program (Medicare), shall meet the certification standards of Medicare except as provided otherwise in these rules.

(5) Providers shall render services to an eligible Medicaid recipient in the same scope, quality, duration and method of delivery as to the general public, unless specifically limited by these regulations.

(a) No provider may deny services to any recipient because of the recipient's inability to pay a copayment in ARM 37.83.826 or in ARM 37.85.204.

(6) Providers shall not discriminate illegally in the provision of service to eligible Medicaid recipients or in employment of persons on the grounds of race, creed, religion, color, sex, national origin, political ideas, marital status, age, or disability. Providers shall comply with the Civil Rights Act of 1964 (42 USC 2000d, et seq.), The Age Discrimination Act of 1975 (42 USC 6101, et seq.), The Americans With Disabilities Act of 1990 (42 USC 12101, et seq.), section 504 of the Rehabilitation Act of 1973 (29 USC 794), and the applicable provisions of Title 49, MCA, as amended and all regulations and rules implementing the statutes.

(1) The department adopts and incorporates by reference the Diagnosis coding practice of International Classification of Diseases (ICD) published by the World Health Organization. The ICD is used as a health care classification system for diseases and health conditions.

(a) For dates of service on or before September 30, 2015, the ICD edition being utilized will be the ninth revision (ICD-9) to code the diagnosis of services.

(b) For dates of service October 1, 2015 and thereafter the ICD edition being utilized will be the tenth revision (ICD-10) to code the diagnosis of services. ICD-10 consists of the following codes sets:

(i) ICD-Clinical Modification (CM); and

(ii) ICD-Procedure Coding System (PCS).

(c) For inpatient claims with a discharge date on or after October 1, 2015, the tenth revision (ICD-10) must be utilized.

(d) Outpatient claims with dates of service that span the utilization dates must be split based on date of service in order to utilize the appropriate edition as noted in (a) and (b).

(e) Per 45 CFR 162.1002, ICD-10 will replace ICD-9 for dates of service October 1, 2015 and after. A copy of the ICD codes may be obtained at http://www.medicalcodingbooks.com/.

(1) Providers must submit clean claims to Medicaid within the latest of:

(a) 12 months from the latest of:

(i) the date of service;

(ii) the date retroactive eligibility is determined; or

(iii) the date disability was determined;

(b) six months from the date on the Medicare explanation of benefits approving the service, if the Medicare claim was timely filed and the member was Medicare eligible at the time the Medicare claim was filed; or

(c) six months from the date on an adjustment notice from a third party payor, where the third party payor has previously processed the claim for the same service and the adjustment notice is dated after the periods described in (1)(a) and (b).

(2) For purposes of this rule:

(a) "Clean claim" means a claim that can be processed without additional information or documentation from or action by the provider of the service;

(b) For inpatient hospital services, date of service is the date of discharge;

(c) The date of submission to the Medicaid program is the date the claim is stamped "received" by the department or its designee; and

(d) The claim submission deadline specified in (1) through (1)(c) applies regardless of whether or not a third party has allowed or denied a provider's claim. If a third party has not allowed or denied a provider's claim, the provider may submit a claim to Medicaid according to the requirements of ARM 37.85.407(6)(c) and subject to the claim submission deadline specified in (1) through (1)(c).

(3) Claims must be submitted in accordance with this rule to be valid. In processing claims, the department or its agent may deny payment of or pend a claim upon determining that a basis exists for denial of payment or pending the claim. No further review or processing of a denied claim is required until resubmission of the claim by the provider. The department or its agent is not required to list or identify all possible grounds for denial or pending of the claim. The fact that a particular basis for denial or pending of a claim for a service or item was not identified on an earlier statement of remittance or other similar statement does not preclude denial or pending of the claim on that basis on a later submission of the claim.

(4) Except as provided in (7), all Medicaid claims submitted to the department are to be submitted on a state claim form which is:

(a) personally signed by that provider;

(b) personally signed by a person who has actual written authority to bind and represent the provider for this purpose. The department may require a provider to furnish this written authorization; or

(c) signed by the use of a facsimile signature stamp or a computer generated, typed or block letter signature. Providers submitting or causing to be submitted a claim using a facsimile, computer generated, typed or block letter signature shall bear full responsibility for submission of the claim as though the claim were personally signed by the provider or the provider's authorized agent.

(5) All Medicaid claims submitted to the department by a hospital for services provided by a physician who is required to relinquish fees to the hospital are to be submitted on a state claim form which is:

(a) personally signed by the physician provider;

(b) personally signed by a person who has actual written authority to bind and represent the physician provider for this purpose. The department may require a provider to furnish this written authorization; or

(c) signed by the use of a facsimile signature stamp or a computer generated, typed or block letter signature. Providers submitting or causing to be submitted a claim using a facsimile, computer-generated, typed or block letter signature shall bear full responsibility for submission of the claim as though the claim were personally signed by the provider or the provider's authorized agent.

(6) The department may require a hospital provider to obtain on the claim form the signature of a physician providing services for which fees are relinquished to the hospital.

(7) Electronic media claims may be submitted by a provider who enters into an agreement with the department for this purpose and who meets the department's requirements for documentation, record retention and signature requirements.

(8) Claims submitted for the professional component of electrodiagnostic procedures which do not involve direct personal care on the part of the physician and performed by physicians on contract to the hospital may be submitted on state approved claim forms signed by the person with authority to bind the hospital under (5)(b).

(a) Electrodiagnostic procedures include echocardiology studies, electroencephalography studies, electrocardiology studies, evoked potential studies, holter monitors, telephonic or teletrace checks and pulmonary function tests.

(b) If, after review, the department determines that claims for hospital-based physician services are not submitted by a hospital provider in accordance with this rule, the department may require the hospital provider to obtain the signature of the physician providing the service on the claim form.

(9) If the department pays a claim but subsequently discovers that the provider was not entitled to payment for any reason, the department is entitled to recover the resulting overpayment as provided in (10).

(10) The department is entitled to recover from the provider and the provider is obligated to repay to the department all Medicaid payments made to which the provider was not entitled under applicable state and federal laws, regulations and rules. At the option of the department, recoveries may be accomplished by a direct payment to the department or by automatic deductions from future payments due the provider. Notice of overpayment must be made in accordance with ARM 37.85.512.

(a) The department is entitled to recover under (10) any payment to which the provider was not entitled, regardless of whether the payment was the result of department or provider error, or other cause, and without proving that the provider submitted an improper or erroneous claim knowingly, intentionally, or with intent to defraud.

(b) The department is entitled to recover an overpayment from the provider in whose name the erroneous or improper claim was submitted, even if the provider was an employee of another individual or entity and was required as a condition of the provider's employment to turn over all fees received by the provider to the employer.

(11) Providers are required to accept, as payment in full, the amount paid by the Montana Medicaid program for a service or item provided to an eligible Medicaid member in accordance with the rules of the department. Providers must not seek any payment in addition to or in lieu of the amount paid by the Montana Medicaid program from a member or his representative, except as provided in these rules. A provider may bill a member for the copayments specified in ARM 37.83.826 and 37.85.204 and may bill certain members for amounts above the Medicare deductibles and coinsurance as allowed in ARM 37.83.825.

(a) A provider may bill a member for noncovered services if the provider has informed the member in advance of providing the services that Medicaid will not cover the services and that the member will be required to pay privately for the services, and if the member has agreed to pay privately for the services. For purposes of (11)(a), noncovered services are services that may not be reimbursed for the particular member by the Montana Medicaid program under any circumstances and covered services are services that may be reimbursed by the Montana Medicaid program for the particular member if all applicable requirements, including medical necessity, are met.

(b) Except as provided in this rule, a provider may not bill a member after Medicaid has denied payment for covered services because the services are not medically necessary for the member.

(i) A provider may bill a member for covered but medically unnecessary services, including services for which Medicaid has denied payment for lack of medical necessity, if the provider specifically informed the member in advance of providing the services that the services are not considered medically necessary under Medicaid criteria, that Medicaid will not pay for the services and that the member will be required to pay privately for the services, and the member has agreed to pay privately for the services. The agreement to pay privately must be based upon definite and specific information given by the provider to the member indicating that the service will not be paid by Medicaid. The provider may not bill the member under this exception when the provider has informed the member only that Medicaid may not pay or where the agreement is contained in a form that the provider routinely requires members to sign.

(ii) An ambulance service provider may bill a member after Medicaid has denied payment for lack of medical necessity.

(c) A provider may not bill a member for services as a private pay patient if, prior to provision of the services, the member informed the provider of Medicaid eligibility, unless, prior to provision of the services, the provider informed the member of its refusal to accept Medicaid and the member agreed to pay privately for the services.

(d) In service settings where the individual is accepted as a Medicaid member by an arranging provider including, but not limited to, a facility, institution, or other entity that arranges for provision of services by other providers, all other providers performing services for the individual in conjunction with the arranging provider will be deemed to have accepted the individual as a Medicaid member.

(i) The only exception to (d) is if the other provider, prior to providing services, informed the individual of their refusal to accept Medicaid and the individual agreed to pay privately for the services. The other provider may then bill the individual for services.

(e) The provider may not bill a member for services when Medicaid does not pay as a result of the provider's failure to comply with applicable enrollment, prior authorization, billing, or other requirements necessary to obtain payment.

(f) Acceptance of an individual as a Medicaid member applies to all services provided by the provider to the member, except as provided in (11)(a) or (b). A provider may not accept Medicaid payment for some covered services but refuse to accept Medicaid for other covered services. Subject to the requirements of ARM 37.85.402(4), a provider may terminate acceptance of Medicaid for a member in accordance with the provider's professional responsibility, by informing the member of the termination and the effect of the termination on provision of and payment for any further services.

(g) If an individual has agreed prior to receipt of services that payment will be made from a source other than Medicaid but later is determined retroactively eligible for Medicaid, the provider may choose to accept the individual as a Medicaid member with respect to the services or to seek payment in accordance with the original payment agreement.

(h) A provider that bills Medicaid for services rendered will be deemed to have accepted the individual as a Medicaid member.

(i) Nothing in this rule is intended to permit a provider to refuse to accept an individual as a Medicaid member where the provider is otherwise required by law to accept an individual as a Medicaid member.

(12) In the event that a provider of services is entitled to a retroactive increase of payment for services rendered, the provider must submit a claim within 180 days of the written notification of the retroactive increase or the provider forfeits any rights to the retroactive increase.

(13) The Montana Medicaid program will make payments directly to the individual provider of service unless the individual provider is required, as a condition of his employment, to turn his fees over to his employer.

(a) Exceptions to the above requirement may, at the discretion of the department, be made for transportation and/or per diem costs incurred to enable a member to obtain medically appropriate services.

(14) The method of determining payment rates for out-of-state providers will be the same as for in-state providers except as otherwise provided in the rules of the department.

(15) A government agency may bill the Medicaid program for covered medical services under the following circumstances:

(a) The government agency has complied with all federal and state law governing the Medicaid program, and assures that the provider has complied with all state and federal law governing the Medicaid program, including reimbursement levels.

(b) The government agency accepts assignment from an eligible Medicaid provider for services provided prior to eligibility determination.

(16) A person enrolled as an individual provider may not submit a claim for services that the provider did not personally provide, inclusive of services provided by another person under the provider's supervision, unless authorization to bill for and receive reimbursement for services the provider did not personally provide is stated in administrative rule or a Montana Medicaid program manual and is in compliance with any supervision requirements in state law or rule governing the provider's professional practice and the practice of assistants and aides. Other providers, including but not limited to hospitals, nursing facilities, and home health agencies, may bill for and receive reimbursement for services provided by supervised persons in accordance with the Medicaid rules and manual and any supervision requirements in state law or rule governing professional practice.

(17) Medicaid coverage and reimbursement is available only for services or items that are provided in accordance with all applicable Medicaid requirements and within the scope of practice permitted under state licensure laws and other mandatory standards applicable to the provider.

(18) Except as otherwise provided in the rules of the department which pertain to the method of determining payment rates for claims of recipients members who have Medicare and Medicaid coverage (cross-over claims), the Medicaid allowed amount for Medicare covered services is:

(a) for facility based providers who generally bill on the UB-04 billing form, for covered medical services the full Medicare coinsurance and deductible as defined by the Medicare carrier;

(i) there is an exception for inpatient ancillary services with Medicare Part B coverage only (no Medicare Part A) or FQHCs: Medicare payments for these services are treated as third party payments and are offset against the Medicaid payment;

(b) for medical providers who generally bill on the HCFA-1500 billing form, for covered medical services the lower of:

(i) the Medicare coinsurance and deductible (if not met); or

(ii) the Medicaid fee less the amount paid by Medicare for the same service, not to exceed the Medicaid fee for that service;

(c) for mental health services that are subject to the Medicare psychiatric reduction, the lower of:

(i) the Medicaid allowed amount; or

(ii) the Medicare allowed amount, less the Medicare paid amount;

(d) for services to members eligible to receive both Medicare and Medicaid benefits, an amount not to exceed the Medicare allowed amount in instances where the Medicaid fee is higher than the Medicare allowable.

(19) For all purposes of this rule, the amount of the provider's usual and customary charge may not exceed the reasonable charge usually and customarily charged to all payers.

(20) Reimbursement from Medicaid may not exceed an amount which would cause total payment to the provider from both Medicaid and all other payers to exceed the Medicaid fee.

(21) Montana Medicaid does not reimburse for the facility component of a Provider Based entity service.

(1) No payment shall be made by the department for any medical service for which there is a known third party who has a legal liability to pay for that medical service except for those services specified in (6) below.

(2) For purposes of this section, the following definitions apply:

(a) A third party is defined as an individual, institution, corporation, or public or private agency that is or may be liable to pay all or part of the cost of medical treatment and medical-related services for personal injury, disease, illness, or disability of a recipient of medical assistance from the department or a county and includes but is not limited to insurers, health service organizations, and parties liable or who may be liable in tort. Indian health services is not a third party within the meaning of this definition.

(b) A known third party is a third party for which the provider has sufficient information to submit a claim and which if billed for a medical service is likely to pay the claim within a reasonable time.

(c) A potential third party is a third party for which the provider either has insufficient information to submit a claim or which if billed for a medical service, is likely to deny the claim as having no contractual or legal obligation to pay.

(3) For known recipients, the provider shall use its same usual and customary procedures for inquiring about possible third party resources as is done for non-recipients.

(4) If the provider delivers to a recipient or a recipient's legal representative a copy of a billing statement for services which have been or may be billed to the department, the statement must clearly indicate that third party benefits or payments have been assigned to the department by the patient or that the department may have a lien upon such benefits.

(a) The words "Medicaid has assignment of, or may have a lien upon third party benefits or payments" shall be sufficient to meet the notification requirement of this section.

(b) If a provider does not meet the notification requirements of this section, the department may withhold or recover from the provider an amount equal to any amounts paid by a third party towards the services described in the statement given to the recipient.

(5) If a provider learns of the existence of a known third party, that provider shall bill the third party prior to billing the department. If the department has knowledge of a known third party and the provider has not complied with (6) or (7) below, the department shall deny payment of the services.

(6) The department shall not deny payment of services solely because of the existence of a third party in the following circumstances:

(a) The primary diagnosis on the claim is for certain prenatal and preventive pediatric care as specified in the Medicaid provider manual, copies of which may be obtained from the Montana Department of Public Health and Human Services, Health Policy and Services Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951. The provider may bill the third party or the department in this circumstance.

(b) The third party is an insurer under a health insurance policy provided by the absent parent of a recipient and that health insurance is obtained or maintained as a result of an enforcement action taken by the Child Support Services Division against that absent parent, if the following provisions are met:

(i) the provider submits evidence that the third party has been billed;

(ii) the claim is submitted to the department 30 or more days beyond the date of service and in compliance with the timely filing rules in ARM 37.85.406(1);

(iii) the provider certifies on the claim that notice of payment or denial of the claim has not been received from the third party; and

(iv) the claim is submitted directly to the third party liability unit (hereafter referred to as the TPL unit) within the department.

(c) The provider has billed the third party and has not received a reply from the third party either allowing or denying payment, if the following provisions are met:

(i) the provider submits evidence of the date the third party was billed;

(ii) the claim is submitted 90 or more days beyond the date established in (c)(i) and in compliance with the timely filing rules in ARM 37.85.406(1);

(iii) the provider certifies on the claim that notice of payment or denial has not been received; and

(iv) the provider submits the claim directly to the TPL unit.

(d) The claim is for services for which the department has been granted a waiver from use of the cost avoidance method and the department has chosen to use and continue to use that waiver, as identified in the Medicaid provider manual.

(e) The provider is unable to obtain a valid assignment of benefits, if the following provisions are met:

(i) the provider submits documentation that it attempted to obtain assignment;

(ii) the provider certifies on the claim that assignment could not be obtained; and

(iii) the provider submits the claim directly to the TPL unit.

(f) The third party is only a potential third party as defined in (2)(c).

(7) Except as stated in (8), the department shall pay its allowed amount for services, less any known third party payments for those services, for any claim where a known third party exists in the following circumstances:

(a) the claim is submitted under the provisions of (6);

(b) the submitted claim clearly indicates the amount paid by the third party and includes whatever documentation is received regarding the payment from the third party; or

(c) the claim is submitted with a denial document which clearly shows that the third party denied the claim.

(8) For inpatient hospital claims where Medicare Part A benefits have been paid, the department's sole obligation shall be to pay the Medicare Part A deductible. For nursing facility service claims where Medicare Part A benefits have been paid, the department's sole obligation shall be to pay in accordance with ARM 37.40.307.

(9) In the event the provider receives a payment from a third party after the department has made payment, the provider shall refund to the department, within 60 days of receipt of the third party payment, the lesser of the amount the department paid or the amount of the third party payment.

(a) The refund shall be made payable to Montana Medicaid and submitted to the department's fiscal office, and shall indicate the name of the third party payor.

(b) The provider is entitled to retain any third party payments which exceed the Medicaid allowed amount if all Medicaid payments toward those services have been refunded to the department as required in this subsection.

(10) The department shall make no payment for services in those cases where, if the patient were not a Medicaid recipient, the third party payment would constitute full payment with no further obligation owing from the recipient.

(11) For any service where an identified third party has only a potential liability as a tort-feasor, the provider may file a medical lien against that third party. The provider may bill the department prior to determination of liability of the third party if the provider notifies the TPL unit of the identity of the third party and its name and address if known. The provider may keep its lien in place and receive payment from the third party. If payment is received from the third party, the provider must refund to the department as described in (9).

(12) A provider may not refuse to furnish services to a recipient based upon a third party's potential liability for the service.

(1) The department shall only make payment for those services which are medically necessary as determined by the department or by the designated review organization.

(2) In determining medical necessity the department or designated review organization may consider the type or nature of the service, the provider of the service, the setting in which the service is provided and any additional requirements applicable to the specific service or category of service.

(3) The department may review the medical necessity of services or items at any time either before or after payment. If the department determines that services or items were not medically necessary or otherwise in compliance with applicable requirements, the department may deny payment or may recover any overpayment in accordance with applicable requirements. The department is not precluded by an earlier screening, prior authorization, certification or similar process from reviewing and determining medical necessity of any service or item, or from denying payment or recovering any overpayment based upon any such review or determination. This rule does not require the department to notify a provider or recipient of a medical necessity determination until and unless the department completes its review and takes an adverse action against the provider based upon the determination.

(4) The provider must upon request provide to the department or its designated review organization without charge any records related to services or items provided to a recipient.

(1) Except as otherwise provided in these rules, a provider who is aggrieved by an adverse department action which directly affects the rights or entitlements of the provider under the Montana Medicaid program, may request a hearing to the extent provided and according to the procedures specified in ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.

(2) Except as otherwise provided in these rules, a provider who is aggrieved by an adverse department action affecting the applicant's or recipient's eligibility under the Montana Medicaid program, may request a hearing to the extent provided and according to the procedures specified in ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.

(3) This rule does not grant to providers any right to notice of actions affecting recipients, including but not limited to eligibility determinations.

(1) The department will interpret its rules by giving meaning to the plain language of the rules. If a provider requests an interpretation of a rule to provide clarification of a perceived ambiguity, clarification must be received in writing from the department before the service is billed to Medicaid, or the provider may not rely on it.

(2) Documentation of the clarification must contain:

(a) the date of the response;

(b) the identity of the person providing the clarification; and

(c) the specifics of the text of the provider's inquiry.

(1) Employees of the department, or of any contractor or agent of the department, may give a provider general information as to what codes are available for billing under Medicaid for a particular service or item being provided. However, the provider retains responsibility for selecting and submitting the proper code to describe the service or item provided. If an employee of the department or of a contractor or agent of the department suggests, recommends, or directs the provider to use a particular code from the choices available or gives other specific coding advice, the provider may not rely on such advice unless the advice is provided in writing before the provider submits a claim for the service or item.

(1) All providers of service must maintain records which fully demonstrate the extent, nature and medical necessity of services and items provided to Montana Medicaid recipients. The records must support the fee charged or payment sought for the services and items and demonstrate compliance with all applicable requirements.

(a) All records which support a claim for a service or item must be complete within 90 days after the date on which the claim was submitted to Medicaid for reimbursement. A record that is required to be signed and dated, including but not limited to an order, prescription, certificate of medical necessity, referral or progress note, is not complete until it has been signed and dated.

(b) When reimbursement is based on the length of time spent in providing the service, the records must specify the time spent or the time treatment began and ended for each procedure billed to the nearest minute. Total time billed using one or multiple procedure codes may not exceed the total actual time spent with the Medicaid client.

(c) These records must be retained for a period of at least six years and three months from the date on which the service was rendered or until any dispute or litigation concerning the services is resolved, whichever is later.

(d) In maintaining financial records, providers shall employ generally accepted accounting methods. Generally accepted accounting methods are those approved by the National Association of Certified Public Accountants.

(e) The department shall have access to all records so maintained and retained regardless of a provider's continued participation in the program.

(f) In the event of a change of ownership, the original owner must retain all required records unless an alternative method of providing for the retention of records has been established in writing and approved by the department.

(g) If a provider cannot provide medical records to prove that a service billed to Medicaid was provided and meets all requirements for reimbursement, the service will be deemed not to be provided and reimbursable due to the lack of documentation, and the department will recover all reimbursement paid to the provider. This recovery is permissible regardless of whether the documentation was destroyed or lost due to an event such as, but not limited to, misplaced records, a data processing failure, fire, earthquake, flood, or other natural disaster. The provider must have a backup system in place to allow recovery of documentation destroyed or lost due to such events or any other cause.

(h) These record keeping requirements are the minimum requirements for records to support all Medicaid claims. In addition to complying with these minimum requirements, providers must also comply with any specific record keeping requirements applicable to the type of service the provider furnishes, which may be more restrictive than the minimum requirements of this rule.

(2) In addition to the recipient's medical records, any Medicaid information regarding a recipient or applicant is confidential and shall be used solely for purposes related to the administration of the Montana Medicaid program. This information shall not be divulged by the provider or his employees, to any person, group, or organization other than those listed below or a department representative without the written consent of the recipient or applicant. In addition, the provider must comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USC 1320d et seq., and the Uniform Health Care Information Act, 50-16-501 et seq., MCA.

(3) The department, the designated review organization, the legislative auditor, the Department of Revenue, the Medicaid fraud control unit, and their legal representatives shall have the right to inspect or evaluate the quality, appropriateness, and timeliness of services performed by providers, and to inspect and audit all records required by this rule.

(a) Upon the department's request for records, the provider shall submit a true and accurate copy of each record of the service or item being reviewed as it existed within 90 days after the date on which the claim was submitted to Medicaid.

(b) Refusal to permit inspection, evaluation or audit of services shall result in the imposition of provider sanctions in accordance with the rules of the department.

(4) The provisions of this rule specifying the length of time for which records must be retained shall not be construed as a limitation on the period in which the department may recover overpayments or impose sanctions.

(1) Medicaid will pay only for medical expenses:

(a) incurred by a person eligible for the Medicaid program;

(b) for services provided for and to the extent provided for under the Medicaid program;

(c) for which third party payment is not available;

(d) not used to meet the incurrment requirement at ARM 37.82.1101 and following rules for persons who are medically needy;

(e) which are not the cost sharing provided for in ARM 37.85.204; and

(f) to the extent allowed by Medicaid.

(1) At the option of the department, the amount of money erroneously paid to a provider for any given period of time may be determined by the use of statistical sampling and extrapolation, rather than by an audit of 100% of the claims submitted by the provider during the period of time under review. Statistical sampling and extrapolation shall not be used to determine overpayments for inpatient hospital services, outpatient hospital services, or hospital inpatient psychiatric services, or in cases where the number of line items in the review period does not equal 500 or more.

(a) A line item consists of a single service, under one procedure rate with one or more units of service, procedure or item on a Medicaid claim form for which a provider has received payment.

(2) If the department chooses to use statistical sampling and extrapolation to determine an overpayment, it will use a statistical method to draw a random sample of claims for the review period and will audit these claims. The department will calculate the provider's error rate based on the net dollar amount overpaid to the provider after any underpayments occurring in the sample have been offset against the overpayments occurring in the sample. The department will then calculate the total overpayment for the review period using an appropriate statistical methodology.

(3) If the department chooses to use statistical sampling and extrapolation, it shall notify the provider of its intention to do so. When the sampling and extrapolation process is completed, the department shall provide the provider with information regarding the sample size, the sample selection method, and the formulas and calculations used in the extrapolation.

(4) It is presumed that the overpayment amount determined by the use of statistical sampling and extrapolation is correct. However, the provider may rebut this presumption by presenting evidence that the sampling and extrapolation process used by the department was invalid, by presenting evidence that claims in the sample determined by the department to be erroneous or overpaid were correctly paid, or by requesting an audit of 100% of the claims paid in the review period, as provided in (5).

(5) A provider who does not agree with the overpayment amount determined by statistical sampling may request that the department conduct a 100% audit of the claims paid in the review period. The request for a 100% audit must be made within 30 days of the date of the notice informing the provider of the results of the statistical sampling. The department must then conduct such a review.

(a) If the audit shows an overpayment amount which is different from the overpayment amount determined by sampling and extrapolation, the amount determined by the audit shall be used by the department in assessing an overpayment against the provider. A provider who is aggrieved by a department determination based upon the results of the audit may appeal by means of the fair hearing procedures set forth in ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.

(b) The provider must pay the department's costs for such an audit, unless the overpayment amount determined by the 100% audit is at least 10% less than the overpayment amount determined by the statistical sample.

(6) A provider who is aggrieved by an overpayment determined by statistical sampling and extrapolation may appeal by means of the fair hearing procedures set forth in ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.

(1) Sanctions may be imposed by the department against a provider of medical assistance, provided under ARM Title 37, chapters 40, 80, 82, 83, 85, 86, 88, for any one or more of the following reasons:

(a) Presenting or causing to be presented for payment any false or fraudulent claim for services or merchandise.

(b) Submitting or causing to be submitted false information for the purpose of obtaining greater compensation than that to which the provider is legally entitled under the rules of the department.

(c) Submitting or causing to be submitted false information for the purpose of meeting prior authorization requirements.

(d) Failure to maintain and retain records required by the rules of the department.

(e) Failure to disclose or make available required records to the department, its authorized agent or other legally authorized persons, organizations, or governmental entities.

(f) Failure to provide and maintain services to Medicaid recipients at a quality that is within accepted medical community standards as adjudged by a body of peers.

(g) Engaging in a course of conduct or performing an act which the department's rules or the decision of the applicable professional peer review committee, or licensing board, have determined to be improper or abusive of the Montana Medicaid program; or continuing such conduct following notification that the conduct should cease.

(h) Breach of the terms of the provider contract or failure to comply with the terms of the provider certification on medical assistance claim forms or the failure to comply with requirements imposed by the rules of the department.

(i) Over-utilizing the Montana Medicaid program by inducing, or otherwise causing a recipient to receive services or goods not medically necessary.

(j) Rebating or accepting a fee or portion of a fee or charge for a Medicaid patient referral.

(k) Violating any provision of the state Medicaid law, Title 53, chapter 6, MCA or any rule promulgated pursuant thereto, or violating any provision of Title XIX of the Social Security Act or any regulation promulgated pursuant thereto.

(l) Submission of a false or fraudulent application for provider status.

(m) Violations of any statutes, regulations or code of ethics governing the conduct of occupations or professions or regulated industries.

(n) Conviction of a criminal offense relating to medical assistance programs administered by the department or provided under contract with the state; or conviction for negligent practice resulting in death or injury to patients.

(o) Failure to meet requirements of state or federal law for participation (e.g. licensure).

(p) Exclusion from the Medicare program (Title XVIII of the Social Security Act) because of fraudulent or abusive practices.

(q) Charging Medicaid recipients for amounts over and above the amounts paid by the department for services rendered, except as specifically allowed under ARM 37.83.825 and 37.83.826.

(r) Refusal to execute a new provider agreement when requested to do so.

(s) Failure to correct deficiencies as defined by the ARM or federal regulation after receiving written notice of these deficiencies from the department, or the federal Department of Health and Human Services. The standards set forth at 42 CFR Part 442, Part 483 and Part 488, updated through February 2004, which identify deficiencies for providers of intermediate care facilities for the mentally retarded, skilled nursing and nursing facility services, are incorporated by reference. A copy of 42 CFR Part 442, Part 483 and Part 488, updated through February 2004, are available from the Department of Public Health and Human Services, Quality Assurance Division, 2401 Colonial Drive, P.O. Box 202653, Helena, MT 59620-2953.

(t) Formal reprimand or censure by an association of the provider's peers for unethical practices.

(u) Suspension or termination from participation in another government medical program including but not limited to workers' compensation, crippled children's services, rehabilitation services and Medicare.

(v) Filing of criminal indictment, information or complaint for fraudulent billing practices or negligent practice resulting in death or injury to the provider's patients.

(w) Civil judgement for fraudulent billing practices or negligent practice resulting in death or injury to the provider's patients.

(x) Failure to repay or make acceptable arrangements for the repayment of identified overpayments or otherwise erroneous payments.

(y) Threatening, intimidating or harassing patients or their relatives in an attempt to influence reimbursement rates or affect the outcome of disputes between the provider and the department.

(z) Submitting claims for reimbursement of costs or services which the provider knows or has reason to know are not reimbursable.

(1) The following sanctions may be invoked against providers based on the grounds specified in ARM 37.85.501:

(a) Termination from participation in the Medical Assistance program.

(b) Suspension of participation in the Medical Assistance program.

(c) Suspension or withholding of payments to a provider.

(d) Shortening of an existing provider agreement as permitted by the terms of such agreement.

(e) Required attendance at provider education sessions, the cost of which shall not be reimbursed by the department or any of its programs.

(f) Required prior authorization for provision of services.

(g) 100% review of the provider's claims prior to payment.

(h) Referral to the Department of Revenue for any action deemed necessary.

(i) In addition to the sanctions listed above, intermediate care facilities for the mentally retarded, skilled nursing and nursing facilities shall be subject to termination of participation when the deficiencies resulting from failure to meet conditions or standards of participation pose immediate jeopardy or the denial of payments for new admissions if the facility's deficiencies resulting from failure to meet conditions or standards of participation do not pose immediate jeopardy. Federal laws regarding termination from participation and intermediate sanctions provided in 42 CFR 442.2, 42 CFR 442.117 through 442.119, and 42 CFR Part 483 and 488, updated through February 2004 are incorporated by reference. A copy of 42 CFR 442.2, 42 CFR 442.117 through 442.119, and 42 CFR Part 483 and 488, updated through February 2004 may be obtained from the Department of Public Health and Human Services, Quality Assurance Division, 2401 Colonial Drive, Helena, MT 59620-2953; or

(j) Notification to the public of sanctions taken against a provider.

(1) The decision to impose sanctions and which sanctions to impose shall be within the discretion of the department except as provided in (3).

(2) The following factors shall be considered in determining the sanction(s) to be imposed:

(a) seriousness of the offense(s);

(b) extent of violations;

(c) history of prior violations;

(d) prior imposition of sanctions;

(e) prior provision of provider education;

(f) provider willingness to comply with program rules;

(g) whether a lesser sanction will be sufficient to remedy the problem;

(h) actions taken or recommended by peer review groups or licensing boards.

(3) Where a provider has been found by a court of competent jurisdiction in either a civil or criminal proceeding to have defrauded the Montana Medical Assistance program, or has been previously suspended due to program abuse, or has been terminated from the Medicare program for fraud or abuse, the department may terminate the provider from the Medical Assistance program.

(1) A sanction may be applied to all known affiliates of a provider, provided that each decision to include an affiliate is made on a case by case basis after giving due consideration to all relevant facts and circumstances. The violation, failure, or inadequacy of performance may be imputed to an affiliate where such conduct was accomplished within the course of the affiliate's official duty or was effectuated by the provider with the knowledge or approval of the affiliate.

(2) Suspension or termination from participation of any provider shall preclude such provider from submitting claims for payment, either personally or through claims submitted by any clinic, group, corporation or other association to the department or its fiscal agents for any services or supplies provided to persons eligible for the Montana Medical Assistance program except for those services or supplies provided prior to the suspension or termination. Providers of long term care facility services may submit claims for supplies and services provided for up to 30 days after the date of termination to allow for the transfer of recipients.

(3) No clinic, group, corporation, or other association which is a provider of services shall submit claims for payment to the department or its fiscal agents for any services or supplies provided by a person within such organization who has been suspended or terminated from participation in the Montana Medical Assistance program except for those services or supplies provided prior to the suspension or termination. Providers of long term care facility services may submit claims for supplies and services provided for up to 30 days after the date of termination to allow for the transfer of recipients.

(4) When the provisions of (3) of this rule are violated by a provider of services which is a clinic, group, corporation, the department may suspend or terminate such organization and/or any individual person within said organization who is responsible for such violation.

(1) When a provider has been suspended or terminated, the department shall notify the appropriate professional society, board of registration or licensure, and federal or state agencies of the findings made and the sanctions imposed.

(1) Except where termination has been imposed, the department may in its discretion direct each provider, who has been sanctioned, to participate in a provider education program as a condition of continued Medicaid participation.

(2) Provider education programs may include any of the following at the discretion of the department:

(a) instruction in claim form completion;

(b) instruction on the use and format of provider manuals;

(c) instruction on the use of procedure codes;

(d) instruction on statutes and regulations governing the Montana Medicaid program;

(e) instruction on reimbursement rates;

(f) instructions on how to inquire about coding or billing problems;

(g) any other matter as determined by the department.

(1) As provided in this rule, the department must notify a provider of any adverse action it will take when the department has determined that the provider has engaged in fraud, improper billing, waste, abuse, has received payment to which the provider is not entitled, or where the department has verified a credible allegation of fraud, as that term is defined at ARM 37.5.304. The notice must address all of the following:

(a) a description of the fraud, allegation, improper billing, waste, abuse, or overpayments;

(b) the dollar value of any overpayment;

(c) the adverse action to be taken or sanction to be imposed by the department;

(d) explanation of any actions required of the provider; and

(e) the provider's right to submit written evidence for consideration by the department, an administrative review, and fair hearing.

(2) The department is not required to notify a provider pursuant to (1) until after the department has determined that fraud, a credible allegation of fraud, improper billing, waste, abuse, or an overpayment has occurred. The department is not required to notify the provider when the department merely suspects or has information which suggests that fraud, abuse or an overpayment has occurred or when the department has not determined to take a particular adverse action in response to the fraud, abuse, or overpayment.

(3) Subject to the provisions of (4) and (5), and excepting suspensions of payment under ARM 37.85.513(3), the department must notify the provider as required in this rule within 45 days after the department has determined that fraud, improper billing, waste, abuse, or an overpayment has occurred. The department's failure to notify a provider as required by this rule is not a defense to recovery of the overpayment or imposition of the sanction, but the department may be required to provide a new notice in compliance with this rule.

(4) This rule shall not be construed to require that the department investigate, complete an investigation, make a determination or take any other action regarding a potential fraud, abuse or overpayment within any particular time.

(5) While this rule does not require the department to act within any particular time, if any governmental agency or entity is conducting an investigation of a provider, the department shall not in any event be required to notify the provider of a violation or overpayment until the investigation is concluded and enforcement proceedings, if any, have been completed, if in the sole discretion of the department or the governmental agency or entity conducting the investigation, earlier notification would interfere with or jeopardize the investigation, recovery of an overpayment or imposition of a sanction.

(1) Where the department has notified a provider of a violation, sanction, or an overpayment pursuant to ARM 37.85.512 the department may withhold payments on pending and subsequently received claims in an amount reasonably calculated to approximate the amounts in question or may suspend all payments pending the outcome of a departmental or law enforcement investigation.

(2) Where the department intends to withhold or suspend payments not regarding a credible allegation of fraud, as that term is defined at ARM 37.5.304, it shall notify the provider in writing at least ten days prior to commencement of withholding and shall include a statement of the provider's right to request an informal reconsideration of such decision as provided in ARM 37.5.305. This rule does not require that an informal reconsideration or any hearing be conducted prior to the withholding or suspension of payments.

(3) Where the department suspends payments based on a credible allegation of fraud in accordance with 42 CFR 455.23, the department may suspend payments without first notifying the provider.

(a) The department must send notice of its suspension of payments within the following timeframes:

(i) five days of taking such action unless requested in writing by a law enforcement agency to temporarily withhold such notice;

(ii) thirty days if requested by law enforcement in writing to delay sending such notice, which request for delay may be renewed in writing up to twice and in no event exceed 90 days.

(b) In addition to the noticing requirements of ARM 37.85.512(1), the notice must state that the suspension is in accordance with 42 CFR 455.23 and is for a temporary period and cite the circumstances under which the withholding will be terminated. Suspension of payment will not continue after either of the following:

(i) the agency or the prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by the provider; or

(ii) legal proceedings related to the provider's alleged fraud are completed.

(4) Where the department has terminated or suspended a provider, the provider shall be eligible to bill for covered services for the period covered by the suspension or termination if an appeal is decided in the provider's favor.

(1) "340B Drug Pricing Program (340B)" means a federal program administered by the Health Resources and Services Administration (HRSA) which allows qualified entities to purchase pharmaceuticals at a substantially reduced cost under PL 102-585, section 602, of the Veterans Health Care Act of 1992.

(2) "Carve out" means the process by which qualified entities may remove Medicaid clients from 340B program activities and, therefore, purchase pharmaceuticals at a non-340B cost.

(3) "Healthcare Common Procedures Coding System (HCPCS)" means the national uniform coding method maintained by the CMS that incorporates the American Medical Association (AMA) Physicians Current Procedural Terminology (CPT) and the three HCPCS unique coding levels, I, II, and III.

(a) For purposes of physician-administered drugs, HCPCS refers to billable codes with corresponding rebatable National Drug Codes (NDC).

(4) "National Drug Codes (NDC)" means an 11 digit numerical code maintained by the Federal Drug Administration (FDA) under the Drug Listing Act of 1972 that identifies the manufacturer, product, and package size.

(5) "Physician-administered drugs" means drugs other than vaccines covered under section 1927(k)(2) of the Social Security Act that are typically furnished incident to a physician's services.

(a) Physician-administered drugs are administered by a medical professional in a physician's office or other outpatient clinical setting.

(b) Physician-administered drugs are incident to a physician's services that are separately billed to Medicaid.

(c) Reimbursement for physician-administered drugs is allowed only if the drug qualifies for rebate in accordance with 42 USC 1396r-8.

(1) Billable claim lines submitted for reimbursement of physician-administered drugs must:

(a) include a valid 11 digit NDC;

(b) include the drug quantity billed for each code;

(c) state the NDC unit of measure as one of the following:

(i) international unit - F2;

(ii) gram - GR;

(iii) milliliter - ML;

(iv) units - UN; or

(v) milligram � ME;

(d) include corresponding CPT/HCPCS codes; and

(e) include a drug price.

(2) Reimbursement will be made only on those drugs manufactured by companies that have a signed rebate agreement with the CMS.

(3) A nonrebatable drug with a medically accepted indication may be prior authorized at the department's discretion. Prior authorized drugs will be reimbursed according to provider type.

(4) Drugs and devices purchased under the 340B Drug Pricing Program are exempt from this rule.

(5) Providers participating in the 340B Drug Pricing Program:

(a) must not submit an NDC for claim lines that are billed utilizing physician-administered drugs purchased under the 340B Drug Pricing Program;

(b) must submit CPT/HCPCS code(s) with all claims submitted to Montana Medicaid;

(c) must bill Montana Medicaid their actual acquisition cost; and

(d) must notify Montana Medicaid of newly acquired 340B status immediately upon approval from the Office of Pharmacy Affairs.

(6) Providers may elect to "carve out" Medicaid clients from their 340B program activities when billing non-340B priced physician-administered drugs and register their intent with the Office of Pharmacy Affairs.

(7) Providers who have registered with the Office of Pharmacy Affairs:

(a) must bill all claims as described in (1)(a) through (e); and

(b) will be reimbursed according to their provider type.

(1) The rules in this chapter implement the Montana Medicaid Provider Incentive Program (MMPIP). The purpose of the program is to provide incentive payments to eligible health care and hospital providers to adopt, implement, or upgrade certified electronic health record (EHR) technology and demonstrate the meaningful use of such technology. This incentive program is designed to encourage eligible health care providers to improve health information technology capabilities and accelerate the use of EHRs in meaningful ways to help Montana improve the quality, safety, and efficiency of patient health care.

For purposes of the Montana Medicaid Provider Incentive Program (MMPIP), the following definitions apply:

(1) "Act" means the Health Information Technology for Economic and Clinical Health Act or "HITECH" Title XIII of Division A and Title IV of Division B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. No. 111-5 (2009).

(2) "Electronic Health Records" (EHR) means a systematic collection of electronic health information about individual patients or populations. For the purposes of these rules, the term "EHR" will refer to an electronic health record information system that is certified by the Certification Commission for Health Information Technology and therefore qualifies for the Montana Medicaid Provider Incentive Program.

(3) "Eligible hospital" (EH) means an acute care hospital (including critical access hospitals and cancer hospitals) with at least 10% Medicaid patient volume and a children's hospital with no Medicaid patient volume requirements. An EH must have a Centers for Medicare and Medicaid (CMS) Certification Number with the last four digits in the series 0001-0879 as defined in 42 CFR 495.302 (2011).

(4) "Eligible hospital patient volume encounter" means the services rendered during one day by an eligible hospital to individuals, per inpatient discharges, or in an emergency department, for which Medicaid, or a Medicaid demonstration projection under 42 USC 1315 (2011), paid all or part of the fee or paid all or part of the individual's premiums, copayments, and/or cost-sharing.

(5) "Eligible provider" (EP) means a physician, dentist, nurse practitioner, certified nurse midwife, physician assistant practicing at a federally qualified health center (FQHC) or rural health clinic (RHC) so led by a physician assistant, critical access hospital, or acute care hospital.

(6) "Eligible provider patient volume encounter" means services rendered during one day by an eligible provider to individuals for which Medicaid, or a Medicaid demonstration project under 42 USC 1315 (2011), paid part or all of the fee or paid all or part of the individual's premiums, copayments, and/or cost-sharing.

(7) "Encounter" means a face-to-face meeting between a patient and health care provider taking place on any one day and at a single location.

(8) "Federally qualifying health clinics" (FQHC) means an entity defined at 42 USC 1395x(aa)(3) and 42 USC 1395y(aa)(3). This includes an outpatient health program or facility operated by a tribe or tribal organization receiving funds under Title V of the Indian Health Care Improvement Act for the provision of primary health services. In considering this definition, it should be noted that programs meeting FQHC requirements commonly include the following (but must be certified and meet all requirements stated above):

(a) Community Health Centers;

(b) Migrant Health Centers;

(c) Healthcare for the Homeless Programs;

(d) Public Housing Primary Care Programs;

(e) Federally Qualified Health Center Look-Alikes; and

(f) Tribal Health Centers.

(9) "Meaningful use" means the use of a certified EHR in a meaningful manner. Examples of meaningful use include: e-Prescribing, the use of certified EHR technology for electronic exchange of health information to improve quality of health care, and the use of certified EHR technology to submit clinical quality or other measures.

(10) "Montana Medicaid fiscal agent" means a contractor hired by the Department of Public Health and Human Services to provide a variety of services associated with the operation of the state Medicaid Program including claims processing, provider services, and other functionality.

(11) "Montana Medicaid Management Information System" (MMIS) means an automated system used by the department to administer various aspects of the Montana Medicaid Program, including claims processing and payment.

(12) "National Level Repository" (NLR) means a new record system authorized by provisions of the American Recovery and Reinvestment Act of 2009 (ARRA) (P.L. 111-5) and designed to collect, maintain, and process information that is required for the Medicaid EHR Incentive Program.

(13) "Needy individual patient volume encounter" means:

(a) a patient for whom Medicaid, Healthy Montana Kids (HMK) Plan, or a demonstration project under 42 USC 1315 (2011), paid for part or all of the services or paid all or part of the individual's premiums, copayments, and/or cost sharing; or

(b) services rendered to an individual on any one day on a sliding scale or that were uncompensated.

(14) "Program" means the Montana Medicaid Provider Incentive Program (MMIP).

(15) "Rural Health Clinic (RHC) means a clinic that is certified under 42 USC 1935x(aa)(2) to provide care in underserved areas, and therefore, to receive cost-based Medicare and Medicaid reimbursements.

(1) Medicaid Eligible Providers (EPs) and Eligible Hospitals (EHs) that choose to participate in the MMIP, will register through the Centers for Medicare and Medicaid (CMS) National Level Repository (NLR) indicating the program (Medicare or Medicaid) and the state selected. EPs may choose to participate in either the Medicare incentive program or a state Medicaid Incentive Program, but not both. EHs may participate in both the Medicare and Medicaid Incentive Programs. The department will use the NLR system to confirm provider eligibility and prevent duplication of payments. CMS will notify the department electronically of EPs and EHs who are electing to participate in MMIP.

(1) The following information will be verified by the department upon receipt of notification from the CMS that a Montana EP enrolled:

(a) the EP has no sanctions preventing participation;

(b) the EP is alive;

(c) the EP is not hospital-based;

(d) the EP is an eligible provider type (e.g., physician, dentist, nurse practitioner, certified nurse midwife, physician assistant practicing in a FQHC or RHC led by a physician assistant, critical access hospital, or acute care hospital);

(e) the EP is appropriately licensed by the state of Montana; and

(f) the EP is listed on the NLR correctly.

(2) Montana Medicaid will verify eligibility through the Montana Medicaid Management Information System (MMIS). If the provider is listed in the MMIS in an active status, the Montana Medicaid Fiscal Agent has already completed the verification for licensure, sanctions, and death.

(3) An EP must be actively enrolled in Medicaid in order to apply for the MMPIP program. If the provider is not listed as active in the MMIS, the provider must enroll, or clarify enrollment status with the Montana Medicaid Fiscal Agent prior to continuing registration in the MMPIP program.

(4) For an EP to qualify as "not hospital-based" at least 10% of his or her services must be performed somewhere other than a hospital. To verify that the EP is not hospital-based, Montana Medicaid will use Medicaid claims information from the MMIS and apply the formula in (a).

(a) (Paid Claims with Place Of Service (POS) codes 21 and 23) divided by (Total Paid Claims for all Services). A resulting value less than 90% qualifies.

(b) Prior to remittance of any incentive payment by the department, the EP must attest his or her hospital-based services are less than 90%.

(1) The following information will be verified by the department upon receipt of notification from the CMS NLR that a Montana EH enrolled:

(a) the EH has no sanctions preventing participation;

(b) the EH is appropriately licensed by the state of Montana;

(c) the provider is listed on the NLR correctly;

(d) the EH has a 10% Medicaid patient volume; and

(e) the EH is an eligible provider type (e.g., acute care hospital including critical access hospitals, cancer hospital, or children's hospital).

(2) Montana Medicaid will verify eligibility through the Montana Medicaid Management Information System (MMIS). If the EH is listed in the MMIS in an "active" status, the Montana Medicaid fiscal agent has already completed the verification for licensure and sanctions.

(3) An EH must be actively enrolled in Medicaid in order to apply for the MMPIP program. If an EH wants to participate in MMPIP but is not listed as active in the MMIS, the provider must enroll, or clarify enrollment status with the Montana Medicaid fiscal agent, prior to continuing registration in the MMPIP program.

(1) Upon receipt of notification from the CMS NLR of a Montana EP or EH registration, the department will accept the provider's request to register for the department's MMPIP program via secure web portal application.

(2) An EP must attest to qualifying patient volume threshold calculation as specified by 42 CFR 495.306 (2011), calculated as follows: (Total Medicaid (or needy individuals) Patient Encounters in any 90-day period in the review calendar Year) divided by (All Patient Encounters over the Same Period). Provider will submit the timeframe for the 90-day time period selected for the patient encounters measure, identify the source the information was obtained from, and submit the numerator and denominator with the resulting percentage for the Medicaid and/or needy patient volume.

(a) For all EPs except pediatricians, the minimum patient volume threshold is 30%. For pediatrician EPs, the minimum patient volume threshold is 20%.

(b) Group practices or clinics (GP/C) will be permitted to calculate patient volume at the GP/C level if all the following requirements are met:

(i) The GP/C patient volume is appropriate as a measure of patient volume for each EP;

(ii) Each EP working in the GP/C accepts Medicaid and/or needy individuals as patients;

(iii) There is an auditable data source to support the GP/C patient volume determination;

(iv) All EPs in GP/C use the same methodology for the payment year;

(v) The GP/C uses the entire practice or clinic's patient volume and does not limit patient volume in any way; and

(vi) If an EP works inside and outside of the GP/C practice, the patient volume calculation only includes patient encounters associated with the clinic or group practice, and not the EP's outside encounters.

(c) EPs practicing at FQHC or RHC must demonstrate that more than 50% of their clinical encounters occurred at an FQHC/RHC over a six-month period and that a minimum of 30% of their patient volume consists of needy individuals. EPs practicing predominantly at FQHC/RHC must provide the clinic location, the needy patient encounters for the location, the EP's total patient encounters, and the resulting percentage. This information must be for an identified six-month period.

(3) An EP or EH will report the amount of nonstate or local funds for an EHR system received that coincides with the payment year being requested, or certify that it has not received nonstate or local funds for EHRs.

(1) For the first year of participation the EP or EH must provide proof of EHR certification as described in ARM 37.85.1115, identify the system and date and attest to the adoption, implementation, or upgrade of a certified EHR.

(2) During the second and subsequent years of participation an EP must meet 20 of 25 meaningful use objectives as defined in 42 CFR 495.6 (2011) and 42 CFR 495.8.

(3) During the second and subsequent years of participation an EH must meet 19 of 24 meaningful use objectives as defined in 42 CFR 495.6 (2011) and 42 CFR 295.8.

(1) Proof of EHR certification must be filed simultaneously with the provider's or hospital's attestation and certification. The attestation and certification will be verified prior to any payments being made. If a provider omits information necessary to determine eligibility or payment, the provider will be notified that participation in the MMPIP program is denied based on the omission of required information.

(1) Upon notification by the CMS NLR that an EP or EH has applied for the MMPIP, and after initial verification of eligibility, the department will notify the provider of approval or denial of eligibility in the MMPIP program. All notifications regarding continued eligibility, payment, or other notifications will be done electronically.

(1) An EP qualifying to receive payment must submit the following provider identification information:

(a) name;

(b) National Provider Identification Number (NPI);

(c) business address and phone number; and

(d) Taxpayer Identification Number (TIN).

(2) In addition to the information in (1), an EP practicing outside of a FQHC or RHC must certify or attest that:

(a) the EP is using a certified electronic health record;

(b) the EP meets the meaningful use requirement;

(c) the EP meets applicable patient volume thresholds and identifies the 90-day continuous reporting period of the previous calendar year;

(d) the EP furnished less than 90% of covered services in "place of service" codes 21 Inpatient, and 23 Emergency Room;

(e) in the first payment year, the EP must adopt, implement, upgrade, or demonstrate meaningful use over any continuous 90-day period in a calendar year; and

(f) during the second and subsequent years the EP must attest through submission of defined objectives and clinical quality measures use of the certified EHR.

(3) In addition to (1) an EP practicing in a FQHC or RHC must certify or attest that:

(a) the EP practices predominantly at an FQHC or RHC and that more than 50% of total patient encounters during a six-month period in the most recent calendar year occurred at the FQHC/RHC;

(b) the EP is using a certified EHR;

(c) the EP meets the meaningful use requirements; and

(d) the EP meets the needy patient volume threshold.

(4) An EH qualifying to receive payment must submit the following provider identification information:

(a) name;

(b) CMS Certification Number (CNN);

(c) National Provider Identifier (NPI); and

(d) Hospital Tax Identification Number.

(5) In addition to the information in (4), the EH must attest or certify that:

(a) the hospital is using a certified electronic health record;

(b) the average length of stay for patients at the facility is 25 days or fewer; and

(c) the hospital meets the 10% Medicaid Patient Volume threshold and identifies the associated 90-day continuous period for the federal fiscal year.

(6) In the first payment year, the EH must adopt, implement, upgrade, or demonstrate meaningful use over any continuous 90-day period in a calendar year.

(7) During the second and subsequent years the EH must attest through submission of defined objectives and clinical qualifying measures use of the certified EHR.

(1) The department adopts and incorporates by reference the EP incentive payment schedule specified in 42 CFR 495.310 (2011), a copy of which is posted at www.medicaidprovider.hhs.mt.gov/providerpages/ehrincentives.shtml and may also be obtained by writing DPHHS Director's Office, PO Box 4210, Helena, MT 59604.

(2) Pediatricians who do not meet the 30% threshold, but meet the 20% threshold will receive reduced payments as specified in 42 CFR 495.310 (2011). Also, an EP's payment may be adjusted downward depending on net average allowable costs.

(3) Each year the EP will attest to the receipt of funds from sources other than state or local government to offset the cost of the certified electronic health record. If the EP received funds from other sources, the EP must identify the calendar year of receipt, the amount, and the source. For the first year, any amount over $29,000 will reduce the payment by a like amount. For years two through six any amount over $10,610 will reduce the payment by a like amount.

(4) Assignment of payment - EPs must choose either direct payment or may assign payment to the provider's group practice or clinic. If the EP is a member of a group and chooses to assign the incentive payment to the group, payment will be made to a group consistent with existing MMIS capabilities. If a member of a group chooses to retain the incentive payment, the payment will be made directly to the EP through an existing process in the MMIS. Due to existing MMIS limitations, Montana Medicaid will not make direct incentive payments to any entity (individual, group, or clinic) that is not recognized as a Montana Medicaid provider. For example, EHR system vendors are not recognized as Montana Medicaid providers, and as such cannot be assigned payment.

(1) Payment of the EH's incentive payment will be made over a four year period with 50% of the amount paid in year one, 30% in year two, 20% in year three, and 10% in year four.

(2) The department adopts and incorporates by reference the formula to calculate an EH's incentive payment amount found in 42 CFR Part 495.310 (2011).

(3) Assignment of payment - a multisite hospital with one CMS certification number is considered one hospital for purposes of calculating payment. Payments will be made to EHS consistent with existing MMIS capabilities. Due to existing MMIS limitations, Montana Medicaid will not make direct incentive payments to any entity that is not recognized as a Montana Medicaid provider.

(1) A provider participating in the MMPIP and aggrieved by the department's denial of eligibility, incentive payments, demonstration of efforts to adopt, implement, upgrade, or meaningful use of certified EHR technology, may request a fair hearing in accordance with ARM 37.5.310.