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| Montana Administrative Register Notice 37-481 | No. 15 08/13/2009 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons 1. On September 2, 2009 at 10:30 a.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption and amendment of the above-stated rules. 2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on August 24, 2009 to advise us of the nature of the accommodation that you need. Please contact Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov. 3. The rule as proposed to be adopted provides as follows: RULE I CASE MANAGEMENT SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS, SEVERE DISABLING MENTAL ILLNESS (1) "Severe disabling mental illness" means with respect to a person who is 18 or more years of age that the person meets the requirements of (1)(a), (b), (c), or (d). The person must also meet the requirements of (1)(e). The person: (a) has been involuntarily hospitalized for at least 30 consecutive days because of a mental disorder at (b) has recurrent thoughts of death, recurrent suicidal ideation, a suicide attempt, or a specific plan for committing suicide; (c) has a DSM-IV-TR diagnosis of: (i) schizophrenic disorder (295); (ii) other psychotic disorder (293.81, 293.82, 295.40, 295.70, 297.1, 297.3, 298.9); (iii) mood disorder (293.83, 296.22, 296.23, 296.33, 296.34, 296.40, 296.42, 296.43, 296.44, 296.52, 296.53, 296.54, 296.62, 296.63, 296.64, 296.7, 296.80, 296.89); (iv) amnestic disorder (294.0, 294.8); (v) disorder due to a general medical condition (293.01, 310.1); (vi) pervasive developmental disorder not otherwise specified (299.80) when not accompanied by mental retardation; (vii) anxiety disorder (300.01, 300.21, 300.3); or (viii) posttraumatic stress disorder (309.81). (d) has a DSM-IV-TR diagnosis of personality disorder (301.00, 301.20, 301.22, 301.4, 301.50, 301.6, 301.81, 301.82, 301.83, or 301.90); and (e) has ongoing functioning difficulties because of the mental illness for a period of at least six months or for an obviously predictable period over six months, as indicated by at least two of the following: (i) a medical professional with prescriptive authority has determined that medication is necessary to control the symptoms of mental illness; (ii) the person is unable to work in a full-time competitive situation because of mental illness; (iii) the person has been determined to be disabled due to mental illness by the social security administration; (iv) the person maintains a living arrangement only with ongoing supervision, is homeless, or is at imminent risk of homelessness due to mental illness; or (v) the person has had or will predictably have repeated episodes of decompensation. 4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined: 37.86.3501 CASE MANAGEMENT SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS, DEFINITIONS (1) "Case management" services means services furnished to assist Medicaid eligible individuals who reside in a community setting, or are transitioning to a community setting, in gaining access to needed medical, social, educational, and other services. (6) remains the same but is renumbered (2). (3) "Medically necessary service" means a service or item reimbursable under the Montana Medicaid program, as provided in ARM 37.82.102: (a) that is reasonably calculated to prevent, diagnose, correct, cure, alleviate, or prevent the worsening of conditions in a patient which: (i) endanger life; (ii) cause suffering or pain; (iii) result in illness or infirmity; (iv) threaten to cause or aggravate a handicap; or (v) cause physical deformity or malfunction. (b) A service or item is not medically necessary if there is another service or item for the individual that is equally safe and effective and substantially less costly including, when appropriate, no treatment at all. (c) Experimental services or services that are generally regarded by the medical profession as unacceptable treatment are not medically necessary for purposes of the Montana Medicaid program. (d) Experimental services are procedures and items, including prescribed drugs, considered experimental or investigational by the U.S. Department of Health and Human Services, including the Medicare program, or the department's designated review organization, or procedures and items approved by the U.S. Department of Health and Human Services for use only in controlled studies to determine the effectiveness of such services.
37.86.3505 CASE MANAGEMENT SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS, SERVICE COVERAGE (1) Case management services for adults with severe and disabling mental illness include: (a) (i) taking client history; (ii) identifying the needs of the individual, and completing related documentation; and (iii) gathering information from other sources, such as family members, medical providers, social workers, and educators, if necessary, to form a complete assessment of the eligible individual. (b) (i) specifies goals and actions to address the medical, social, educational, and other services needed by the eligible individual; (ii) includes activities such as ensuring the active participation of the eligible individual and working with the individual (or the individual's authorized health care decision maker) and others to develop those goals; (iii) identifies a course of action to respond to the assessed needs of the eligible individual. (c) (d) (i) services are being furnished in accordance with the individual's care plan; (ii) services in the care plan are adequate to meet the needs of the individual; and (iii) there are changes in the needs or status of the eligible individual. Monitoring and follow-up activities include making necessary adjustments in the care plan and service arrangements with providers. (2) (3) (4) "Case management" does not include the: (a) direct delivery of a medical, educational, social, or other service to which an eligible individual has been referred; (b) transportation; and (c) Medicaid determination and redetermination. (5) Delivery of case management may be provided outside of a clinical or mental health program setting. IMP: 53-2-201, 53-6-101, 53-6-113, MCA 37.86.3506 CASE MANAGEMENT SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS, SERVICE REQUIREMENTS (1) Individuals receiving case management services are allowed the free choice of any qualified Medicaid provider when obtaining case management services. An individual cannot be compelled to receive case management services. (2) Case management services cannot restrict an individual's access to other Medicaid services. (3) Case management services will not duplicate payments made to public agencies or private entities under the Medicaid program and other program authorities. (4) A provider may not condition receipt of case management services on the receipt of other Medicaid services, or condition receipt of other Medicaid services on receipt of case management services. (1) through (4) remain the same but are renumbered (5) through (8). (9) Case management services must be provided on a one-to-one basis, to an individual by one case manager. (10) Providers of case management services are prohibited from exercising the agency authority to authorize or deny the provision of other services under Medicaid. (11) Case management providers must maintain case records that document for all individuals receiving case management services as follows: (a) the name of the individual; (b) the dates of the case management services; (c) the time of services; (d) the name of the provider agency and the person providing the case management services; (e) the nature, content, units of the case management services received, and whether the goals specified in the case plan have been achieved; (f) whether the individual has declined services in the care plan; (g) the need for, and occurrences of, coordination with case managers of other programs; (h) a timeline for obtaining needed services; and (i) a timeline for reevaluation of the plan. (12) Providers must also meet recording requirements as identified in ARM 37.85.414 and 37.85.410. 37.86.3515 CASE MANAGEMENT SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS, REIMBURSEMENT (1) Case management services for adults with severe disabling mental illness will be reimbursed on a fee per unit of service basis as follows: (a) the department will pay the lower of the following for case management services: (i) the provider's actual submitted charge for services; or (ii) the amount specified in the department's Medicaid fee schedule. (b) a unit of service is a period of 15 minutes as follows: (i) one unit of service is from 9 through 23 minutes; (ii) two units of service are from 24 through 38 minutes; (iii) three units of service are from 39 through 53 minutes; (iv) four units of service are from 54 through 68 minutes; (v) five units of service are from 69 through 83 minutes; (vi) six units of service are from 84 through 98 minutes; (vii) seven units of service are from 99 through 113 minutes; and (viii) eight units of service are from 114 through 128 minutes. (c) if a provider sees an eligible individual more than one time in a day, the entire time spent with the individual that day should be totaled and billed once with the correct number of units described in (b), which must be supported by documentation requirements described in ARM 37.86.3305; (d) providers are discouraged from consistently billing one unit of service for an eight minute service, because one unit of service is meant to be a period of 15 minutes; (e) reimbursement cannot be made to providers for time spent traveling to provide a service or travel on behalf of an eligible individual for the following: (i) direct delivery of a medical, educational, social, or other service to which an eligible individual has been referred; (ii) transportation for an eligible individual; (iii) Medicaid eligibility determination and redetermination activities. IMP: 53-2-201, 53-6-101, 53-6-113, MCA 5. The Department of Public Health and Human Services (the department) is proposing new Rule I, and amendments to ARM 37.86.3501, 37.86.3505, 37.86.3506, and 37.86.3515 pertaining to case management services for adults with severe disabling mental illness (SDMI). The amendments are necessary to conform the rules to federal law, to promote the free choice of providers, and to add two diagnoses to the definition of the term SDMI. The department is taking this opportunity to continue its reorganization of the rules pertaining to mental health services for youth with SED into a single chapter, separating them from rules that pertain to adults with SDMI and reforming the rules in accordance with current administrative rule standards. The department is taking this opportunity to propose a cross-reference to the term medically necessary service, an expansion of the term severe disabling mental illness, a redefinition of case management service coverage and requirements, and reorganization of certain reimbursement requirements for case management services to adults with SDMI. The proposed amendments are described in detail below. Rule I and ARM 37.86.3501 The department is proposing amendments to this rule containing definitions applicable to case management services for adults with SDMI. The proposed amendments would eliminate the definitions for assessment, assistance in daily living, case planning, coordination, referral and advocacy, and crisis response. These deletions are necessary to conform The department is proposing amendments to the definition of the term case management services to align it with the definition of case management in Section 6052 of the Deficit Reduction Act of 2005 (Public Law No. 109-171) and 42 CFR 440.169. For more information, please see the discussion of case management under ARM 37.86.3505 below. The department is proposing to add a reference to ARM 37.82.102 in the definition of medically necessary service, a service or item reimbursable under the Montana Medicaid program. The definition is not contained within the Mental Health rule chapters and providers have reported difficulty finding ARM 37.82.102. ARM 37.86.3501 and Rule I The department is proposing an expansion and clarification of the term severe disabling mental illness (SDMI) to better identify individuals who are eligible for case management and other Medicaid services. An individual may meet the criteria for SDMI under any one of four indicators of mental illness plus ongoing difficulty functioning because of the mental illness for a period of at least six months. Existing language is not clear and providers expressed concern about possibly inconsistent interpretations of the term. The proposed amendments would expand the definition to include individuals who have demonstrated suicidal behavior or an intent to commit suicide. The department believes this is necessary to partially address Montana's high suicide rate. This addition will allow interventions to be reimbursed when an individual is at risk of self harm. The proposed expansion of covered diagnoses would include post traumatic stress disorder (PTSD). The department is proposing the addition of PTSD because of the disorder's disabling effects. Suicidality and PTSD were implicitly deleted from the definition of SDMI in 2001 because of the department's need to restrict services. The department believes that reinstatement is now appropriate and fiscally responsible. The department is taking this opportunity to update the reference to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV), current edition, "DSM-IV-TR". The proposed amendments would also update the codes of covered diagnoses to be consistent with the DSM-IV-TR. The department is also taking this opportunity to move the substantive provisions related to SDMI into a separate rule, proposed new Rule I. This would make ARM 37.86.3501 consistent with current administrative rule formatting standards by removing substantive provisions from the definitions rule and placing them in a separate rule. ARM 37.86.3505 The department is proposing replacement language in ARM 37.86.3505 describing in detail the service coverage for case management services for adults with severe disabling mental illness. On December 4, 2007, the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) adopted regulations 42 CFT 440.169 and 42 CFR 441.18 implementing the case management services provision of Section 6052 of the Deficit Reduction Act of 2005 (Public Law No. 109-171) and clarifying the limitations on the targeted case management services that qualify for federal financial participation (FFP). CMS is the federal agency responsible for administering the Medicaid program. The proposed amendments to ARM 37.86.3505 would make the rules consistent with current federal law, with the exceptions noted in the discussion of ARM 37.86.3506, below. Targeted case management services (TCM) include information gathering, arranging for medical, educational, or social services to meet identified needs, monitoring and follow-up to assure that a plan of care is implemented, and periodic reassessment and updating. Consequently, the department is proposing use of the term "comprehensive assessment" to replace the assessment function in this rule. The allowable comprehensive assessment and reassessment activities would be limited to taking an individual's history, identifying the needs of the individual, and gathering information from other sources to form a complete assessment of the eligible individual. Development of a specific care plan would replace case planning in the proposed amendments. The specific elements of a care plan and periodic revisions would be listed. The department is also proposing that assistance in daily living be replaced by referral and related activities; that coordination, referral, and advocacy be replaced by monitoring and follow-up; and that crisis response be eliminated altogether as reimbursable case management services. In harmony with 42 CFR 441.18, the term case management services would not include the direct delivery of a medical, educational, social or other service, transportation, or Medicaid eligibility determination and redetermination. However, the department is proposing to specify that delivery of case management services may be provided outside a clinical or mental health program setting. ARM 37.86.3506 The department is proposing amendments to this rule containing the service requirements for case management services. First, the department is proposing new assurances that individuals receiving case management services are allowed the free choice of any qualified Medicaid provider. The proposed assurances would specify that an individual cannot be compelled to receive case management services, that case management services cannot restrict an individual's access to other Medicaid services, that a case management services provider may not condition receipt of case management services on the receipt of other Medicaid services, or condition receipt of other Medicaid services on receipt of case management services. The department is also proposing an amendment to specifically warn providers that case management services will not duplicate payments made to public agencies or private entities under the Medicaid program and other program authorities. While these assurances and warnings are not new policies for the department, the department is proposing to publish them together in this rule to make them easy for the public to find and the department to administer. On May 13, 2009, CMS published, at 74 Federal Register 21232, a proposed rule that, if adopted in its entirety, would rescind 45 CFR 440.169(c), the limitations on case management services for residents of public institutions; 441.18(a)(5), the requirement that case management services be provided on a one-to-one basis; 441.18(a)(6), the prohibition against providers of case management services authorizing or denying other services; 441.18(a)(8)(vi), requiring the state to use a reimbursement methodology that pays and calculates rates on a unit of service that does not exceed 15 minutes; 441.18(a)(8)(viii), the state plan requirements pertaining to case management services to residents of public institutions; 441.18(c)(1), denying federal financial participation in case management services that are an integral component of another covered service; 441.18(c)(4), denying federal financial participation in case management services that are an integral component of other non-Medicaid program services, 441.18(c)(5), denying federal financial participation in administrative activities that meet the definition of case management services; and removing references to programs other than foster care from 441.18(c)(2) and 441.18(c)(3). In view of the proposed rescision of these requirements, the department is not proposing amendments to meet the requirements of 45 CFR 441.169(c), 441.18(c)(1), and 441.18(c)(5) at this time. The department is proposing amendments to meet the requirements of 45 CFR 441.18(a)(5), 441.18(a)(6), 441.18(a)(8)(vi), and 441.18(c)(4) because they are consistent with current and proposed targeted case management rules of ARM 37.86.3515 The department is proposing amendments to this rule pertaining to reimbursement of case management services providers. A more detailed explanation of the 15-minute billing increment is proposed. This should answer many of the questions providers have about the appropriate number of units to bill and will, consequently, reduce the number and cost of billing errors. The department is also proposing an amendment that would reorganize the existing billing requirements into this rule. Providers of case management services would be allowed to bill for services to individuals transitioning from an institution to a community setting for the last 60 days. Case management activities must be coordinated with and not duplicative of institutional discharge planning. They must be provided on a one-to-one basis, to an individual by one case manager. In furtherance of the freedom of choice amendments to ARM 37.86.3506 above, the department is proposing that case managers be required to inform eligible individuals they have the right to refuse case management at the time of eligibility determination and annually thereafter at the time of assessment. The case manager would be required to document in the case record that the individual has been informed of his or her free choice rights and has refused services. Options Considered Since some of the case management amendments are necessary to comply with federal law, and the other proposed amendments are necessary for good management of the case management services program, no other options were considered. Persons and Entities Affected There are ten mental health centers providing targeted case management services to individuals 18 years of age and older and 5,500 individuals receiving adult case management services in the state of Montana. All could be affected by the proposed changes. Fiscal and Benefit Effects The department expects the addition of suicidality and PTSD to the disorders eligible for consideration in the definition of severe disabling mental illness (SDMI) to increase the number of individuals eligible for Medicaid mental health, mental health services plan (MHSP) and developmental disability services by about 4%. The department does not expect the changes proposed in this notice to affect the level of TCM services Medicaid recipients would receive. No effects on state or federal Medicaid expenditures are expected. 6. The department intends to apply these rules retroactively effective July 1, 2009. Retroactive application will have no negative impact on providers or consumers. 7. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., September 10, 2009. 8. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing. 9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 7 above or may be made by completing a request form at any rules hearing held by the department. 10. An electronic copy of this Proposal Notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems. 11. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
/s/ John Koch /s/ Anna Whiting Sorrell Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State August 3, 2009.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
