Montana Administrative Register Notice 38-2-204 No. 18   09/24/2009    
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In the matter of the amendment of ARM 38.5.1411, pertaining to medical emergencies










TO: All Concerned Persons


1.  On October 30, 2009, the Department of Public Service Regulation (PSC) proposes to amend the above-stated rule.  


2.  The PSC will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or who need an alternative accessible format of this notice.  If you require an accommodation, contact the PSC no later than 5:00 p.m. on October 20, 2009, to advise us of the nature of the accommodation you need.  Please contact Verna Stewart, PSC Secretary, 1701 Prospect Avenue, P.O. Box 202601, Helena, Montana 59620-2601; telephone (406) 444-6170; TTD (406) 444-6199; fax (406) 444-7618; or e-mail vstewart@mt.gov.


3.  The rule proposed to be amended provides as follows, stricken matter interlined, new matter underlined:


38.5.1411 MEDICAL EMERGENICES EXCEPTIONS  (1)  Except as provided herein, service may not be terminated to a residence where a physician or local board of health licensed health care professional certifies to the utility that the absence of service will aggravate an existing medical emergency condition which would threaten the health of any permanent resident.  A licensed health care professional means a licensed physician, physician assistant-certified, advanced practice registered nurse, or registered nurse provided for in ARM 37.106.2805 and Title 37, MCA.  All certifications must be in writing. The certificate must provide the name and address of the person with a the medical emergency condition that would be aggravated by a termination of service and the office address and telephone number of the certifying physician or local board of health licensed health care professional.  All written certifications must be signed by a physician or by a person with knowledge of the facts at the local board of health the licensed health care professional.  A medical emergency condition certificate expires in 30 is valid for 180 days from the date it is signed and dated by the licensed health care professional, but and may be renewed on a monthly semiannual basis.

(2)  To avoid the burden accumulation of a substantial arrearage at the end of the medical emergency during the term of the medical certificate, the utility and the customer, or an authorized representative of the customer, shall negotiate an equitable payment plan arrangement that is reasonable and consistent with the customer's ability to pay.  If the parties cannot reach a satisfactory agreement, either party may seek such an agreement through the Commission.  If the customer fails to make payments as established, resulting in an arrearage of $500 or more, the customer is required to enter into and comply with a monthly payment arrangement equal to the average of the last 12 months billing plus 1/12 of the arrearage.  Failure to enter into a monthly payment arrangement and make payments will result in disconnection proceedings being initiated as set out in (3).

(3)  The utility must provide written notice of the initiation of disconnection proceedings to the customer.  If no resolution has been reached within ten days of mailing, the utility must send a second notice.  From the date of the second notice the customer must pay at least one-third of the delinquent charges to avoid termination of service.  The second notice must be sent by the utility at least ten days prior to the date of the proposed termination.  All written notices must be sent by first class or certified mail.  Prior to termination of service the utility must make a diligent attempt to contact the customer, either in person or by telephone, to apprise the customer of the proposed action.  If telephone or personal contact is not made, the utility employee shall leave notice in a place conspicuous to the customer that service will be terminated on the next business day.  If the required payment is made, a new payment arrangement will be recalculated consistent with (2).  Under no circumstances shall disconnection proceedings occur on accounts with an arrearage of less than $500.  Nothing in this rule prevents a utility from continuing service to a delinquent medically protected account.

(4)  The utility must notify the commission in writing of the proposed termination at the beginning of the disconnection process.  The commission may intervene and require a different payment arrangement or delay termination of services if the circumstances warrant.  Before the commission will consider approving an alternate payment arrangement, the customer must apply, if eligible, for financial aid through organizations providing utility bill payment assistance and must respond to commission requests for information.  The payment arrangement set by the commission is binding upon both the customer and the utility.  Failure to comply with the payment arrangement may result in disconnection proceedings being initiated as set out in (3).

(5)  From November 1 through March 31, the utility may not terminate a medical exception account protected from disconnection by the criteria established in ARM 38.5.1410.


AUTH:  69-3-103, MCA

IMP:      69-3-102, MCA


4.  Amendment of ARM 38.5.1411 is necessary to allow the PSC to clarify and update the medical exception rule to utility service termination.   The PSC has received more medical emergency review requests from NorthWestern Energy in the past year than at any time since the rule was established.  One of the primary concerns the PSC has with the rule is whether termination of service is allowed when an individual qualifies for medical protection but does not comply with certain rule provisions. The first section of the rule supports a conclusion that service may not be terminated for qualified medical emergencies.  The second section can be read as qualifying the first section, and allowing termination under certain circumstances.  The rule indicates that the customer shall negotiate a payment arrangement with the utility or, if that is unsuccessful, one will be established by the commission.  The rule is not entirely clear on whether a customer with medical emergency protection can be terminated for failure to enter into and be in compliance with a payment arrangement.  The commission has, at least implicitly, interpreted the rule both ways.   The manner in which the rule has been interpreted and implemented creates problems with the enforcement of the rule.  The rule is currently used primarily for chronic medical conditions even though the rule is titled "medical emergencies."  The current rule does not adequately address chronic medical situations, which constitute the majority of cases under the rule that come up for review by the commission.


5.  Concerned persons may submit their written data, views, or arguments (original and 10 copies) to Legal Division, Public Service Commission, 1701 Prospect Avenue, P.O. Box 202601, Helena, MT 59620-2601, and must be received no later than October 28, 2009 at 5:00 p.m., or may be submitted to the PSC through the PSC's web-based comment form at http://psc.mt.gov (go to "Contact Us," "Comment on Proceedings Online," then complete and submit the form) no later than October 28, 2009. (PLEASE NOTE: When filing comments pursuant to this notice please reference "Docket No. L-09.9.1-RUL.")


6.  The Montana Consumer Counsel, 616 Helena Avenue, P.O. Box 201703, Helena, Montana 59620-1703, telephone (406) 444-2771, is available and may be contacted to represent consumer interests in this matter.


7.  If persons who are directly affected by the proposed amendment wish to express their data, views, or arguments either orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Justin Kraske, Legal Division, Public Service Commission, 1701 Prospect Avenue, P.O. Box 202601, Helena, Montana 59620-2601, or e-mail jkraske@mt.gov to be received no later than 5:00 p.m., October 28, 2009. 


8.  If the PSC receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the approximately 500 persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held.  Ten percent of those directly affected has been determined to be 50 persons based on the number of medical exemption customers impacted. 


9.  The PSC maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by the PSC.  Persons who wish to have their name added to the list shall make a written request which includes that name, e-mail address, and mailing address of the person to receive notices and specifies that the person wishes to receive notices regarding: electric utilities, providers, and suppliers; natural gas utilities, providers, and suppliers; telecommunications utilities and carriers; water and sewer utilities; common carrier pipelines; motor carriers; rail carriers; and/or administrative procedures.  Such written request may be mailed or delivered to Public Service Commission, Legal Division, 1701 Prospect Avenue, P.O. Box 202601, Helena, Montana 59620-2601, faxed to Verna Stewart at (406) 444-7618, e-mailed to vstewart@mt.gov, or may be made by completing a request form at any rules hearing held by the PSC.


            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.  However, the PSC advises that it will decide any conflict between the official version and the electronic version in favor of the official printed version.  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/ Greg Jergeson

Greg Jergeson, Chairman

Public Service Commission




                                    /s/ Robin A. McHugh

Reviewed by Robin A. McHugh


Certified to the Secretary of State, September 14, 2009.


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