Montana Administrative Register Notice 38-2-204 No. 6   03/25/2010    
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In the matter of the amendment of                           )           NOTICE OF AMENDMENT

ARM 38.5.1411, pertaining to medical                  )          

emergencies                                                             )          


TO: All Concerned Persons


1.  On September 24 2009 the Department of Public Service Regulation published MAR Notice No. 38-2-204 pertaining to the proposed amendment of the above-stated rule at page 1647 of the 2009 Montana Administrative Register Issue Number 18.  On November 25 2009 the department published a Notice of Extension of Hearing Request and Comment Period on Proposed Amendment at page 2242 of the 2009 Montana Administrative Register, Issue Number 22.


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


38.5.1411 MEDICAL EXCEPTIONS  (1)  Except as provided herein service may not be terminated to a residence where a licensed health care professional certifies to the utility that the absence of service will aggravate an existing medical 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. and The certificate must provide the name and address of the person with the medical condition that would be aggravated by a termination of service.   The certification must include the printed name, signature‚ and the office address, and telephone number of the certifying licensed health care professional.  All written certifications must be signed by the licensed health care professional.  A medical condition certificate is valid for 180 days from the date it is signed and dated by the licensed health care professional‚ and may be renewed on a semiannual basis.

(2)  remains as proposed.

(3)  The utility must provide written notice of the initiation of disconnection proceedings to the customer.  If the missed payments are not received 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) and (5) remain as proposed.


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


COMMENT NO. 1:  NorthWestern Energy (NWE) and Montana-Dakota Utilities (MDU) commented that written medical certifications should also include the printed name of the certifying medical professional.


RESPONSE NO. 1:  The department agreed with the commenters and is amending ARM 38.5.1411 accordingly.


COMMENT NO. 2:  Both NWE and MDU request that the department consider changing the proposed minimum arrearage before a payment plan is required to be based on a time period in arrears such as 60-90 days rather than the $500.00 amount contained in the proposed rule.  NWE argues that it would be more fair and equitable for all customers and would be less burdensome administratively.  


RESPONSE NO. 2:  The purpose of revising the rule was to specifically prevent the accumulation of substantial arrearages.  The rule as written will require past substantial arrearages to be paid down and will limit future arrearages from building up.  Switching to a 90-day arrearage deadline would result in department involvement in accounts that may not have substantial arrearages.  Based on the statistics provided by NWE and MDU only a small number of additional accounts would be impacted if a 90-day deadline was used.  Nothing in this rule prevents the utility from pursuing collection efforts on debts under $500.  In fact it requires the utilities to negotiate a payment plan prior to the arrearage getting to that amount.  The department appreciates these comments but determines that the rule meets the goal of limiting the accumulation of substantial arrearages.


COMMENT NO. 3:  NWE comments that resolution within ten days, as described in paragraph three is not entirely clear.  NWE argues that this language leaves room for interpretation as to what an acceptable resolution is.  NWE would support at a minimum payment of the missed portion of the initial agreement and agree to continue original payment requirements.  NWE indicates that broken payment arrangements should be limited to no more than one occurrence to limit potential misuse by customers.  NWE requests provisions indicating that once the process has been initiated, it should be carried out to a complete resolution and should not revert back if the account falls under the $500 threshold.  MDU requests that if the arrangements made pursuant to 38.5.1411(2), are broken that only one 10-day notice of disconnect be required to pursue disconnection of service.


RESPONSE NO. 3: The department agrees with NWE that the rule should be re-worded to state that if the missed payments are not received within ten days of mailing the first written notice the utility must send a second notice.  The department disagrees with the commenters to limit the payment arrangement to no more than one occurrence.  The payment arrangements proposed require customers to continue to reduce their outstanding balances each month which will limit potential misuse by customers without making any additional changes.  Allowing customers to renegotiate the agreement if they fall behind provides additional safeguards to prevent disconnection in cases where circumstances warrant additional protection.


COMMENT NO. 4:  NWE recommends e-mail be accepted as proper written notification to the department upon initiation of the disconnection process.


RESPONSE NO. 4:  The department determines that the rule itself does not need to be revised to address e-mail notification.  The department finds that acceptable written notification process can be clarified by department policy. 


COMMENT NO. 5:  MDU suggests that subparagraph (4) is not necessary as the customer may request that the commission intervene in establishing a payment arrangement without adding this rule.


RESPONSE NO. 5:  Staff disagrees with the commenter that the entire paragraph is not necessary.  The department wants the rule to clearly indicate to customers that the department can intervene in establishing payment arrangements as circumstances warrant. 


COMMENT NO. 6:  NWE feels the initial or additional payment requirements should be applicable at any time during the year.  If the agreements made should end in default during the period of November 1 to March 31 and the account qualifies for protection from disconnect during the winter months termination would proceed pursuant to subparagraph (3) on April 1.


RESPONSE NO. 6:  The department determines that no clarification of the rule is necessary.  This rule makes it clear that the winter disconnect rules if applicable override the disconnection provisions of the medical exception rule and disconnection cannot occur during the winter moratorium period.   





/s/ Robin A. McHugh                                                 /s/ Greg Jergeson

Reviewed by Robin A. McHugh                              Greg Jergeson, Chairman

                                                                                    Public Service Commission



Certified to the Secretary of State, March 15, 2010.


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