Montana Administrative Register Notice 37-476 No. 15   08/13/2009    
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In the matter of the amendment of ARM 37.40.307 and 37.40.361 pertaining to Medicaid nursing facility reimbursement






            TO:  All Concerned Persons


            1.  On June 25, 2009, the Department of Public Health and Human Services published MAR Notice No. 37-476 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 997 of the 2009 Montana Administrative Register, Issue Number 12.


            2.  The department has amended ARM 37.40.307 as proposed.


            3.  The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:



            (2)  The department will pay Medicaid certified nursing care facilities located in Montana that submit an approved request to the department a lump sum payment in addition to the amount paid as provided in ARM 37.40.307 and 37.40.311 to their computed Medicaid payment rate to be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in nursing facilities.

            (a)  The department will determine the lump sum payments, twice a year commencing July 1, 2009, and again in six months from that date as a pro rata share of appropriated funds allocated for increases in direct care and ancillary services workers' wages and benefits or lump sum payments to direct care and ancillary services workers.

            (b)  To receive the direct care and/or ancillary services workers' lump sum payment, a nursing facility shall submit for approval a request form to the department stating how the direct care and ancillary services workers' lump sum payment will be spent in the facility to comply with all statutory requirements.  The facility shall submit all of the information required on a form to be developed by the department in order to continue to receive subsequent lump sum payment amounts for the entire rate year.  The form for wage and benefit increases will request information including but not limited to:

            (i)  the number by category of each direct care and ancillary services workers  that will receive the benefit of the increased funds, if these funds will be distributed in the form of a wage increase;

            (ii) through (v) remain as proposed.

            (c)  If these funds will be used for the purpose of providing lump sum payments (i.e. bonus, stipend or other payment types) to direct care and ancillary services workers in nursing care facilities the form will request information including, but not limited to:

            (i)  the number by category of each direct care and ancillary services worker that will receive the benefit of the increases increased funds;

            (ii) through (3) remain as proposed.


AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA


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


COMMENT #1:  We recommend that the department adjust its methodology to provide an increase in the state wide average reimbursement rate that more closely implements a full 2% rate increase.  This will be consistent with the intent of the 2009 Montana Legislature as expressed by the funding for a 2% rate increase for Medicaid providers.  This 2% increase can be achieved by adjusting patient days to reflect a more accurate projection of the number of Medicaid days that will be paid in fiscal year 2010.  The result of taking this action will be to more properly allocate the legislative appropriation to reach at least the 2% increase in funding.


RESPONSE #1:  The department has continued to evaluate Medicaid caseload trends for nursing facilities and the estimate of patient contributions to be used in computing the 2010 nursing facility rates, in addition to the funding levels appropriated by the 2009 Legislature.  Based on this evaluation, we believe the number of Medicaid bed days will be slightly lower than projected in the proposed rule and the patient contribution estimates will be slightly higher.  The department agrees with the commentors and will make these adjustments in calculating the final rates for fiscal year 2010.  The department will also provide a 2% increase in the statewide average rate for fiscal year 2010.


COMMENT #2:  We recommend that the department make wording changes to ARM 37.40.361 pertaining to funding available for wage and benefit increases to nursing facility workers.  The title of the section should reflect that this funding is to be used for wages, benefits, or lump sum payments for both direct care and ancillary workers.  The commentor suggested that references to the workers eligible for the payments should be consistent by using the term "direct care and ancillary services lump sum payment" or including language the "hereinafter referred to as ________".  Also, that ARM 37.40.361(2)(c)(i) be corrected to read "the benefit of the increased funds" instead of "the benefit of the increases funds".


RESPONSE #2:  The department has reviewed this comment and has provided clarifying language to ARM 37.40.361 consistent with this comment.


COMMENT #3:  We support the funding available for direct care worker wages, and the distribution options that are presented in the rules to provide this funding to direct care and ancillary services workers for fiscal year 2010.


RESPONSE #3:  The department received several comments stating that funding provided by the 2009 Legislature for direct care wage initiatives is an important factor allowing providers to continue to deliver quality care to Montana seniors.  The department would like to reiterate that the funding for the 2% provider rate increase and the direct care and ancillary worker wage increases was allocated in House Bill 645 as a one-time appropriation.  A one-time appropriation means it will not be included in the department's base budget after state fiscal year 2011.  If the next Legislature does not take specific action to continue the wage initiative for direct care and ancillary workers or the provider rate funding, the funding levels will be returned to the state fiscal year 2009 levels.


            5.  The department intends to apply these rules retroactively to July 1, 2009.  A retroactive application of the proposed rules does not result in a negative impact to any affected party.



 /s/  John Koch                                                /s/  Laurie Lamson                                       

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services


Certified to the Secretary of State August 3, 2009.


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