BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.87.1217, 37.87.1222, and 37.87.1223 pertaining to Medicaid reimbursement for psychiatric residential treatment facility (PRTF) services

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On December 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 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 November 23, 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 rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.87.1217  PSYCHIATRIC RESIDENTIAL TREATMENT FACILITY (PRTF) SERVICES, TREATMENT REQUIREMENTS  (1) and (2) remain the same.

            (3)  The PRTF plan of care must be comprehensive and address all psychiatric, medical, educational, psychological, social, behavioral, developmental, and chemical dependency treatment needs.

            (4) remains the same.

            (5)  In addition to the requirements in (4) that pertain to discharge planning the following activities are required.  The PRTF must:

            (a)  develop a discharge plan within 30 days of admission that identifies the youth and family's needed services and supports upon discharge:

            (i)  the discharge plan must be comprehensive; and

            (ii)  the discharge plan must address all psychiatric, medical, educational, psychological, social, behavioral, developmental, and chemical dependency treatment needs.

            (b)  identify the community to which the youth will discharge;

            (c)  make referrals for needed services and supports upon discharge, no less than 30 days before discharge; and

            (d)  work with the youth's parent or legal guardian in making agreed upon discharge plans and referrals for needed services.

            (6)  If comprehensive and adequate arrangements for services upon discharge are not made as required in (5) the PRTF may be at risk of losing its enrollment in the Montana Medicaid program.

            (5) (7)  As part of the discharge planning requirements, PRTFs shall services include, at a minimum, discharge planning to ensure the youth has a seven-day supply of medication or and a written prescription for medication to last through the first outpatient visit in the community with a prescribing provider.  Prior to discharge, the PRTF must identify a prescribing provider in the community and schedule an outpatient visit.  Documentation of the medication plan and arrangements for the outpatient visit must be included in the youth's medical record.  If medication has been used during the youth's PRTF treatment but is not needed upon discharge, the reason the medication is being discontinued must be documented in the youth's medical record.

 

AUTH:  53-2-201, 53-6-113, MCA

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

 

            37.87.1222  PSYCHIATRIC RESIDENTIAL TREATMENT FACILITY (PRTF) SERVICES, INTERIM RATE AND COST SETTLEMENT PROCESS  (1)  The interim rate for services provided to youths as the term "youth" is defined at ARM 37.87.102 for PRTF providers located in the state of Montana is composed of:

            (a) remains the same.

            (b)  a direct care wage add-on through a contract with the department, if or in the psychiatric service rate in (1)(a), as applicable; and

            (c)  a facility specific ancillary add-on rate for medical and authorized ancillary costs Medicaid services provided in and by the PRTF, not already included in the base psychiatric service rate in (1)(a) for psychiatric care at the facility.

            (2)  Medicaid services included in the ancillary add-on rate in (1)(c) must be provided by individuals employed by or under contract with the PRTF who have appropriate credentials and who will be subject to the Montana Medicaid program's prevailing payment methodology and/or fee schedule for reimbursement.  At a minimum, covered ancillary services include:

            (a)  the professional component of physician, psychiatrist, and mid-level practitioner services;

            (b)  licensed addiction counselor services;

            (c)  lab and pharmacy services not related to the youth's psychiatric condition; and

            (d)  other Medicaid services approved by the department to address the youth's treatment needs in the facility.

            (2) (3)  The ancillary add-on rate in (1)(c) will be adjusted retrospectively when:

            (a)  allowable ancillary costs are reported using auditable data, standardized forms, instructions, definitions, and timelines supplied by the department; and

            (b)  ancillary costs in the facility-specific aggregate for all discharges, for Montana Medicaid paid youth, in a state fiscal year exceed or are less than 5% of the reimbursement that the facility received as an interim rate.  If the costs exceed the aggregate by more than 5%:

            (i)  the department will reimburse the facility for costs exceeding 105% 100% of the agregate; and

            (ii)  the facility will reimburse the department for costs less than 95% 100% of the aggregate; and.

            (iii)  no adjustments to reimbursement will be made by either the department or the facility for costs within 5% of the aggregate ancillary rate payment.

            (3) (4)  The psychiatric service rate in (1)(a) is an all-inclusive a bundled per diem rate, and includes:

            (a)  all therapies, services, and items not specifically designated as an ancillary service that are provided while the youth is an inpatient in the PRTF services, therapies, and items related to the youth's psychiatric condition;

            (b)  services provided by licensed psychologists, licensed clinical social workers, and licensed professional counselors; and

            (c)  lab and pharmacy costs services related to the youth's psychiatric condition with the exception noted in (4)(r) pharmacy for post-discharge medication.

            (4)  Ancillary services are provided by or include the following:

            (a)  ambulatory surgical center;

            (b)  audiologist;

            (c)  chiropractor;

            (d)  dentist, denturist, and orthodontist;

            (e)  durable medical equipment;

            (f)  emergency room services not related to the psychiatric condition;

            (g)  eyeglasses;

            (h)  federally qualified health center;

            (i)  hearing provider and hearing aides;

            (j)  hospital;

            (k)  licensed addiction counselor;

            (l)  medical transportation and ambulance services;

            (m)  mental health center;

            (n)  MRI, or other diagnostic services;

            (o)  nutritionist;

            (p)  optometrist and ophthalmologist;

            (q)  outpatient hospital not relative to the psychiatric condition;

            (r)  pharmacy for post-discharge medication;

            (s)  physical and speech therapist;

            (t)  physician, psychiatrist, and mid-level practitioner;

            (u)  podiatrist;

            (v)  public health clinic;

            (w)  respiratory therapy;

            (x)  rural health clinic;

            (y)  targeted case management; and

            (z)  any other Medicaid service provided to the youth receiving PRTF in-patient care not related to the youth's psychiatric condition may be considered an ancillary service.

            (5)  Emergency medical conditions treated by providers outside the PRTF will be reimbursed at the prevailing Montana Medicaid rate, and must be billed by an enrolled provider directly to the Montana Medicaid program.  Emergency services must be authorized by the department or its designee within 24 hours of the emergency service being provided or the next business day (Monday through Friday). 

            (6)  For purposes of this rule "emergency medical condition" means:

            (a)  a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in:

            (i)  placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy;

            (ii)  serious impairment to bodily functions; or

            (iii) serious dysfunction of any bodily organ or part.

            (5) (7)  If a youth receiving in-patient care in a PRTF has an unusually expensive medical condition that requires a higher ancillary rate, prior to the cost settlement process, the PRTF may request interim reimbursement for the ancillary care.  The department at its discretion may grant the youth specific request if the PRTF:

            (a)  submits a request in writing to the department with documentation of the expenses; and

            (b)  interim payments must be requested within 90 days of the date of service and will be taken into consideration during the ancillary cost settlement process described in (2) (3).  Payment of these claims will be made by the department within 90 days from the date all requirements for payment are met.

            (6) through (9) remain the same but are numbered (8) through (11).

 

AUTH:  53-2-201, 53-6-113, MCA

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

 

            37.87.1223  PSYCHIATRIC RESIDENTIAL TREATMENT FACILITY SERVICES, REIMBURSEMENT  (1)  For PRTF services provided on or after March 1, 2009 January 1, 2010, the Montana Medicaid program will pay a provider for each patient day as provided in these rules.

            (a) through (3)(b) remain the same.

            (4)  Out-of-state PRTF providers who are not hospital-based will be reimbursed 50% of their usual and customary charges.  Reimbursement will include all Medicaid covered psychiatric, medical, and ancillary services provided in and by the PRTF consistent with ARM 37.87.1222.  The usual and customary charge may not be more than twice the cost of providing the service.  Medical services are included as ancillary services.  Ancillary services are defined in ARM 37.87.1222.  The PRTFs usual and customary charge for medical and ancillary services must be defined by the facility and may not be more than two times the cost of procuring these services.

            (5)  Emergency medical conditions treated by providers outside the PRTF will not be included in the out-of-state PRTF's usual and customary rate, and must be billed by an enrolled provider directly to the Montana Medicaid program.  Emergency medical services provided outside the PRTF will be reimbursed the prevailing Montana Medicaid rate.  See ARM 37.87.1222 for the definition of emergency medical conditions and authorization requirements.

 

AUTH:  53-2-201, 53-6-113, MCA

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

 

            4.  The Department of Public Health and Human Services (the department) is proposing the amendment of ARM 37.87.1217, 37.87.1222, and 37.87.1223 pertaining to Medicaid reimbursement for psychiatric residential treatment facility (PRTF) services.  The proposed amendments are necessary to provide clear direction on PRTF discharge planning requirements and reimbursement for medical and ancillary services when they are provided "in and by" in-state and out-of-state PRTFs.

 

A U.S. Department of Health and Human Services Departmental Appeals Board (DAB) decision with the state of Kansas, dated June 23, 2009, upheld a disallowance by the Centers for Medicare and Medicaid Services (CMS), the federal agency responsible for the regulation of Medicaid, of $3.8 million in federal financial participation (FFP) for medical services provided by outside providers to youth in psychiatric residential treatment facilities (PRTF).  The department is proposing changes to its PRTF rules and Medicaid state plan (SPA) to conform to this DAB decision and directives from CMS.  According to CMS, FFP is not available for medical services provided outside a PRTF, to youth residing in the PRTF.  The proposed amendments would identify services that may be provided "in and by" the PRTF.  Services provided "outside" the PRTF, for youth in the PRTF, would be limited to emergency services reimbursed at the prevailing Montana Medicaid rate.  The department's PRTF SPA will not be approved without these rule changes.  The department does not see a reasonable alternative to making these proposed changes.  Failure to conform to CMS directives could result in the loss of FFP as experienced by the states of New York in 2007, Virginia in 2008, Texas in 2009, and Kansas in 2009.   The proposed amendments are discussed in detail below.

 

ARM 37.87.1217

 

The department is proposing additional language in ARM 37.87.1217 to provide clear direction on PRTF discharge planning requirements to ensure youth receive adequate services upon discharge to continue the gains they made in the PRTF, when being treated at a lower level of care.

 

Some targeted case management (TCM) services by the PRTF are currently allowed when provided by the PRTF or through contracts with mental health centers with the appropriate area of endorsement added to their licensure.  These TCM services would be discontinued if the proposed rule amendment is implemented.  Discharge planning has been and would continue to be a PRTF requirement, including referrals for needed services and supports upon discharge.  The department proposes to monitor the adequacy of PRTF discharge plans more closely.  Comprehensive and appropriate discharge plans would be required under the proposed amendment.  Insufficient PRTF discharge plans could be grounds for disenrollment from the Montana Medicaid program.

 

ARM 37.87.1222

 

The department is proposing an amendment to ARM 37.87.1222 that would clarify which medical and ancillary services will be reimbursed when provided "in and by" a PRTF.

 

In-state PRTFs would be required to track medical and ancillary services provided "in and by" their facility.  The department is proposing a cost settlement reimbursement procedure with in-state PRTFs to receive 100% of their total cost for providing medical services "in and by" their facility when reimbursement exceeds or is less than 100% of actual costs.  This is a change from the current rule using 105% and 95% of the actual cost as a trigger for cost settlement. 

 

Medical services provided by providers outside the PRTF would be limited to emergency conditions.  Emergency medical conditions are defined in this rule.  Outside providers of medical services would be required to seek authorization of emergency services within one business day of delivering the service and to bill the state directly, bypassing the PRTF.  Reimbursement for these services would be limited to the prevailing Montana Medicaid rate.  Authorization would be determined by the department or its designee.

 

ARM 37.87.1223

 

The proposed amendment to ARM 37.87.1223 would specify that out-of-state PRTFs must provide psychiatric, medical, and ancillary services "in and by" their facility, that the cost of such services may be included in their usual and customary rate, and that the facility would not receive more than 100% of its actual cost of providing services from Montana Medicaid.  The proposed amendment refers to ARM 37.87.1222 that would limit medical services provided outside the facility to emergency conditions; would require authorization; would be billed directly to the state by an enrolled provider; and would be reimbursed the prevailing Montana rate.  Out-of-state PRTFs would continue to be reimbursed at the rate of 50% of their usual and customary charges.  Only services provided "in and by" their facility could be included in their rate which may not be more than twice what their actual cost of providing services are.

 

Persons and entities affected

 

The proposed rule amendments would affect in-state and out-of-state psychiatric residential treatment facilities (PRTFs) enrolled in Montana Medicaid.  There are three in-state and approximately 18 out-of-state PRTFs currently enrolled.  Approximately 431 youth were served in a PRTF (in-state and out-of-state) in state fiscal year (SFY) 2009.

 

Fiscal and benefit effects

 

The department would see an increase in general fund expended for Medicaid services provided outside a PRTF to resident youths in a PRTF.  The department is proposing to limit these to emergency services.  The department estimates an additional $726,292 in state general fund is needed to cover the general fund liability for nonqualifying FFP medical and ancillary services allowed under current reimbursement rules between March 1, 2009 when the PRTF reimbursement methodology and rate were changed and January 1, 2010 when these proposed amendments are expected to be effective.

 

Recipients would not see an increase in cost, and Medicaid benefits would remain the same, except that recipients would not receive nonemergent medical services while they are residents of a PRTF.  The state general fund cost beyond January 1, 2010 for emergency services provided outside the PRTFs is unknown.  The above estimate is the difference between the state's general fund liability for nonallowed FFP for all medical and ancillary services currently provided for in rule that are available to youth in a PRTF, both inside and outside the facility.

 

            5.  The department intends the proposed rule amendments to be effective January 1, 2010.

 

            6.  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., December 10, 2009.

 

7.  The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

8.  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 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9.  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.

 

10.  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 November 2, 2009.