BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
In the matter of the amendment ARM 37.85.212 pertaining to the resource based relative value scale (RBRVS)
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT
TO: All Concerned Persons
1. On May 20, 2010, at 10:00 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 rule.
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 May 11, 2010, 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 firstname.lastname@example.org.
3. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:
37.85.212 RESOURCE BASED RELATIVE VALUE SCALE (RBRVS) REIMBURSEMENT FOR SPECIFIED PROVIDER TYPES (1) For purposes of this rule, the following definitions apply:
(a) remains the same.
(b) "Conversion factor" means a dollar amount by which the relative value units, or the
base and time anesthesia units for anesthesia services, are multiplied in order to establish the RBRVS fee for a service. Effective July 1, 2008 there are four conversion factor categories. They are:
(i) physician services, which applies to the following health care professionals listed in (2): physicians,
mid-levels mid-level practitioners, podiatrists, public health clinics, independent diagnostic testing facilities (IDTF), nutrition providers, qualified Medicare beneficiary (QMB) QMB and early and periodic screening, diagnostic and treatment (EPSDT) EPSDT chiropractors, laboratory and x-ray services, family planning clinics, and dentists rendering providing medical procedures services. The conversion factor for physician services for state fiscal year 2010 2011 is $40.09;
(ii) allied services, which applies to the following health care professionals listed in (2): physical therapists, occupational therapists, speech therapists, optometrists, opticians, audiologists, and school-based services. The conversion factor for allied services for state fiscal year
2010 2011 is $30.39;
(iii) mental health services, which applies to the following health care professionals listed in (2): licensed psychologists, licensed clinical social workers, and licensed professional counselors. The conversion factor for mental health services for state fiscal year
2010 2011 is $24.26; and
(iv) anesthesia services, which applies to anesthesia services. The conversion factor for anesthesia services for state fiscal year
2010 2011 is $27.55.
(c) through (f) remain the same.
(g) "RBRVS fee" for a covered procedure means the amount calculated by multiplying the relative value units (or the
base and time anesthesia units for anesthesia services) for the procedure by the appropriate conversion factor. If applicable, a rate variable may be applied to the RBRVS fee to calculate the Montana Medicaid fee for the procedure.
(h) remains the same.
(i) "Resource based relative value scale (RBRVS)" means the most current version of the Medicare resource based relative value scale contained in the
physicians' Medicare Physician Fee Schedule adopted by the Centers for Medicare and Medicaid Services (CMS) of the U.S. Department of Health and Human Services and published at 73 74 Federal Register 224 226, 69726 61738 ( November 19, 2008 November 25, 2009), effective January 1, 2009 2010 which is adopted and incorporated by reference. A copy of the Medicare Physician Fee Schedule may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951. The RBRVS reflects RVUs for estimates of the actual effort and expense involved in providing different health care services.
(j) remains the same.
(2) Services provided by the following health care professionals will be reimbursed in accordance with the RBRVS methodology set forth in (3):
(a) through (i) remain the same.
providers of clinic services public health clinics;
(k) providers of EPSDT services;
(l) through (o) remain the same but are renumbered (k) through (n).
(p) providers of oral surgery services;
(q) (o) providers of pathology and laboratory and x-ray services;
(r) remains the same but is renumbered (p).
(s) (q) school-based services; and
(t) (r) QMB and EPSDT chiropractic services. chiropractors;
(s) family planning clinics; and
(t) anesthesia services.
(3) Except as set forth in (8) through (12)
(a)(vi), the RBRVS fee for a covered service is calculated by multiplying the RVUs determined in accordance with (7) through (7)(a)(ii)(C) (or the base and time units for anesthesia services) by the conversion factor , which is required to achieve the overall budget appropriation for provider services made by the Montana Legislature in the most recent legislative session. The RBRVS fee may also be multiplied by a rate variable to calculate the fee paid by Medicaid.
(4) through (4)(d) remain the same.
(5) For state fiscal year
2010 2011, policy adjustors will be used to accomplish the targeted funding allocations. The department's list of services affected by policy adjustors through July 1, 2009 2010 is adopted and incorporated by reference. The list is available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.
The 61st Legislature appropriated additional funds for state fiscal year 2010. For provider services identified in (2) there will be $1,065,121 additional funds. All conversion factors may be adjusted, pursuant to 17-7-140, MCA, to ensure that the expenditure of appropriations does not exceed available revenue.
(7) The RVUs for most services are adopted from the
resource based RBRVS Medicare Physician Fee Schedule described in (1). For services for which the RBRVS Medicare does not specify RVUs, the department sets those RVUs as follows:
(a) The RVUs for a Medicaid covered service provided by any of the provider types specified in (2) are calculated as follows:
(i) if Medicare sets RVUs, the Medicare RVUs are applicable;
(ii) if Medicare does not set RVUs but Medicaid sets RVUs, the Medicaid RVUs are set in the following manner:
(A) (a) convert the existing dollar value of a fee to an RVU value;
(B) (b) evaluate the RVU of similar services and assign an RVU value; or
(C) (c) convert the average by report dollar value of a fee to an RVU value.
(8) Except for physician administered drugs and vaccine administration as provided in ARM 37.86.105(4), clinical, laboratory services, and anesthesia services, if neither Medicare nor Medicaid sets RVUs, then reimbursement is by report.
(a) remains the same.
(b) For state fiscal year
2010 2011, the by report rate is 46% 48% of the provider's usual and customary charges.
(9) through (9)(b)(iii) remain the same.
(10) For anesthesia services the department pays the lower of the following for procedure codes with fees:
(a) remains the same.
(b) a fee determined by multiplying the anesthesia conversion factor by
the sum of the applicable base and time anesthesia units, and then multiplying the product by the applicable policy adjustor, if any;
(c) through (11)(b) remain the same.
(12) Subject to the provisions of (12)(a), when billed with a modifier, payment for procedures established under the provisions of (7) is a percentage of the rate established for the procedures.
(a) The methodology to determine the specific percent for each modifier is as follows:
(i) and (ii) remain the same.
(iii) The department's list of the specific percents for the modifiers used by Medicaid as amended through July 1,
2009 2010 is adopted and incorporated by reference. A copy of the list is available on request from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.
(iv) through (vi) remain the same.
(13) In applying the RBRVS methodology set forth in this rule, Medicaid reimburses in accordance with Medicare's policy on the bundling of services, as set forth in the
physicians' Medicare Physician fFee sSchedule adopted by CMS and published in the Federal Register annually, whereby payment for certain services constitutes payment for certain other services which are considered to be included in those services.
(14) remains the same.
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 of Public Health and Human Services (the department) is proposing amendments to ARM 37.85.212. This rule implements Montana Medicaid's resource based relative value scale (RBRVS) reimbursement method for specified provider types.
The Montana Medicaid program is administered by the department to provide health care to Montana's qualified low income and disabled residents (hereinafter "Medicaid clients"). It is a public assistance program paid for with state and federal funds appropriated to pay health care providers (hereinafter "Medicaid providers") for the covered medical services they deliver to Medicaid clients. The Legislature delegates authority to the department to set the reimbursement rates Montana pays Medicaid providers for Medicaid client's covered services. See 53-6-106(8) and 53-5-113, MCA.
Montana Medicaid uses the RBRVS rate system to calculate the fee Montana Medicaid pays to 20 types of health care professionals. The department is proposing to amend ARM 37.85.212(1)(b)(i) and (2) to accurately describe these health care professionals using current terminology. This is not a substantive change in the rule.
The RBRVS system is used nationwide by most health plans, including Medicare and Medicaid. The relative value unit component of the RBRVS system is revised annually by the Centers for Medicare and Medicaid Services (CMS) and the American Medical Association. The department annually proposes to amend ARM 37.85.212(1)(c)(i) to adopt current relative value units (RVUs). An RVU is a numerical value assigned to each medical procedure. RVUs are based on physician work, practice expense and malpractice and express the relative effort and expense expended to provide one procedure compared with another. RVUs are added for new procedures and the RVUs of particular procedures may increase or decrease from year to year.
The fee paid for a procedure by a health plan is calculated by multiplying that procedure's RVU by the health plan's conversion factor. Montana Medicaid's conversion factors for physicians' services, allied service, mental health services, and anesthesia services are published in ARM 37.85.212(b)(i) through (iv). The department is proposing to maintain its four conversion factors at the state fiscal year (SFY) 2010 current level. Although a particular fee for a particular procedure may increase or decrease based on a change to its RVU, the department's intent is to maintain overall spending and provider fees at the SFY 2010 level, treating all RBRVS providers consistently.
The department annually calculates conversion factors for allied services, mental health services, and anesthesia services. These conversion factors are calculated by dividing the Montana Legislature's appropriation for Medicaid client's health care during the upcoming SFY by the estimated total units of health care, expressed as total RVUs paid, to be provided during the upcoming SFY. The resulting quotient is the conversion factor. The RVU for a procedure multiplied by the conversion factor is the fee paid for the procedure. The conversion factor for licensed physicians is set by 53-6-124 through 53-6-127, MCA and the fee paid is funded by legislative appropriations.
The department is proposing amendments to ARM 37.85.212(3) and (6) to reflect the implementation of 17-7-140, MCA in SFY 2011 and the impact of a projected general fund budget deficit on the ability of the state of Montana to pay Medicaid provider rates. All fees paid to Medicaid providers for services to Medicaid clients during SFY 2011 are a result of funds appropriated by the 61st Montana Legislative Session and, except as limited by 17-7-140(2), MCA, those appropriations are subject to the Governor's authority, pursuant to 17-7-140, MCA, to reduce agency spending when the appropriated revenue appears to exceed the collected revenue.
The conversion factors and fees established by this rule are set in compliance with Title 53 and Title 17 to set SFY 2011 RBRVS rates at the SFY 2010 level. This will reduce state spending in SFY 2011. The department has analyzed what programs are mandatory or permissive and the impact of this proposed reduction in spending on the purpose of the programs it administers. The department considered the alternative of increasing Medicaid fees paid to licensed physicians and decreasing other providers' fees more. That solution to the current revenue shortfall would have a greater adverse impact on more Medicaid providers and clients. The department is attempting to maintain fees at the 2010 level for all providers and avoid lopsided adverse impacts of the shortfall in the state's revenue.
The department also considered the impact the rate changes will have on efficiency, economy, quality of care, and access and concluded that the rates are still sufficient to meet the requirements of 42 USC 1396a(a)(30(A).
ARM 37.85.212(7) through (13) address rates for services without RVUs. The amendment to ARM 37.85.212(7) sets the "by report" rate for SFY 2011 that applies if no RVU is specified in the Medicare Physician Fee Schedule or if an alternative rate exists.
As of April 19, 2010, the date this proposed rule amendment is filed with the Secretary of State, there is a projected Montana general fund budget deficit as that term is defined in 17-7-140(3), MCA for state fiscal year 2011. The Governor has instructed the department and other agencies of state government to implement a general fund spending reduction plan. As part of the department's spending reduction plan appropriated provider rate increases for state fiscal year 2011 will not be implemented.
The estimated cumulative fiscal impact of these rules is:
Total Cost State General Fund Federal Match
SFY 2011 $0 $0 $0
This rule amendment is estimated to impact 6,170 Medicaid providers and 91,710 Medicaid clients.
5. The department intends the proposed rule changes to be applied effective July 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 email@example.com, and must be received no later than 5:00 p.m., May 28, 2010.
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 April 19, 2010.