Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC HEALTH

AND HUMAN SERVICES

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 37.85.104, 37.85.105, 37.85.106, and 37.86.3607 pertaining to updating Medicaid and non-Medicaid provider rates, fee schedules, and effective dates

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NOTICE OF AMENDMENT

TO: All Concerned Persons

1. On April 29, 2022, the Department of Public Health and Human Services published MAR Notice No. 37-983 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 576 of the 2022 Montana Administrative Register, Issue Number 8.

2. The department has amended the following rules as proposed: ARM 37.85.104, 37.85.105, 37.85.106, and 37.86.3607.

3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

COMMENT #1: Several commenters wrote in support of the Level 2 rate for assisted living facilities. The commenters stated that the rate will assist providers in caring for residents as it requires extra time to properly care for them. Additionally, commenters stated the rate will allow improved access to services for individuals with Alzheimer's/Dementia and other mental health issues.

RESPONSE #1: The department agrees with the commenters' statements that it can be more costly to care for residents who qualify for Level 2 Assisted Living Facility Services.

COMMENT #2: Several commenters recommended the proposed rates be increased to represent the 0.3% (three tenths of one percent) increase for State Fiscal Year 2023. One commenter stated the proposed rate for Level 1 does not include a 0.3% rate increase as is indicated for Big Sky Waiver Services. Other than the fee schedule that shows a rate of $104.00 for Assisted Living Level 1, there is no explanation of why the rate is not increased along with all other waiver services. Also, the commenter stated the information necessary to evaluate the proposal and be fully informed of your rate setting methodology, would include number of days/units anticipated for FY 2023, amount of funding available, room and board amount, and any other components that relate to the rate.

RESPONSE #2: The department agrees with the commenter that residential services rates, including the proposed Level 1 Assisted Living Facility service rate, should include the 0.3% (three tenths of one percent) rate increase as indicated for Big Sky Waiver Services. The department has revised the Big Sky Waiver home and community-based services for elderly and physically disabled persons fee schedule to implement the 0.3% rate increase for these residential services. The department disagrees with the commenter's statement regarding information necessary to evaluate the rulemaking proposal. The department believes the information provided in the rule notice and publicly available proposed fee schedules is sufficient to enable comment on the proposed rule.

COMMENT #3: One commenter provided their support of the Level 2 Assisted Living Facility proposed rate for Behavior Management. The commenter stated the direct care staff alone are staffed at over three times as much in Memory Care (Alzheimer's and related Dementias) than in their typical Assisted Living. An increase for this level is needed due to the extra staff cost and the rising costs of labor – wage rates, overtime, recruitment efforts.

RESPONSE #3: The department acknowledges the commenter's statements and agrees that it can be more costly to care for residents who qualify for Level 2 Assisted Living Facility Services safely and effectively. Please see the response to comment #2 regarding the 0.3% rate increase for residential services, which includes Level 2 Assisted Living Facility Services.

COMMENT #4: Several commenters wrote regarding the need for an increase in the Room and Board calculation. One commenter further stated that the proposed rate of $104.00 per day is not enough for the increase of costs that Assisted Livings are having to pay. The commenter stated the facility's cost increase of groceries alone have doubled in the past six months. The commenter stated that the facility will have to stop taking Medicaid Waiver if the facility does not get an increase. The commenter stated the facility has increased their private pay rooms $300 each month per room to be able to keep staff paid and keep the place running. The commenter stated that on top of groceries increasing, the pay for staff has increased to recruit and retain staff. The staff cannot afford to live on $11.00 an hour anymore. Furthermore, one commenter stated that in the last 18 months, a facility has had to raise the minimum wage for patient care attendants by almost 40% for employee recruitment and retention. Several commenters stated the room and board amount has not increased since 2009 and recommend an increase from $545.00 to $645.00, and one commenter recommends an increase to $675.00.

RESPONSE #4: The department believes the proposed daily rate, coupled with the 0.3% rate increase described in the response to comment #2, appropriately balances the factors that may be considered under 53-6-113, MCA. The proposed rate ensures fair reimbursement practices by applying a flat rate to all assisted living facility services and eliminating the SLTC-132 Big Sky Waiver Adult Residential Care Calculation. The department also acknowledges the commenter's statement regarding room and board. The room and board cost ($545) did not change. The room and board calculation for assisted living facilities of $545 is based on the Medically Needy Income Level (MNIL) calculation outlined within ARM 37.82.1101 through 37.82.1116.

COMMENT #5: The department received a comment supporting the physician services conversion factor increase.

RESPONSE #5: The department appreciates the comment.

4. These rule amendments are effective July 1, 2022.

/s/ Brenda K. Elias /s/ Adam Meier

Brenda K. Elias Adam Meier, Director

Rule Reviewer Public Health and Human Services

Certified to the Secretary of State June 14, 2022.