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| Montana Administrative Register Notice 37-491 | No. 10 05/27/2010 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF
TO: All Concerned Persons 1. On October 29, 2009, the Department of Public Health and Human Services published MAR Notice No. 37-491 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1871 of the 2009 Montana Administrative Register, Issue Number 20, and on December 10, 2009 published MAR Notice No. 37-491 pertaining to the notice of extension of comment period on proposed adoption on page 2360 of the 2009 Montana Administrative Register, Issue Number 23. 2. The department has adopted New Rule I (37.89.1001), and Rule VI (37.89.1021) as proposed. 3. The department has adopted the following rules as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined. RULE II (37.89.1003) GRANTS TO COUNTIES, PARTICIPANTS (1) and (2) remain as proposed. (3) Funds will be distributed only to a county or group of counties via a contract approved by the department. Counties must submit invoices to the department for funds. AUTH: 53-21-1203, MCA IMP: 53-21-1203, MCA RULE III (37.89.1005) GRANTS TO COUNTIES, DETERMINING GRANT AMOUNTS (1) through (3) remain as proposed. (4) The department will match county and other local entity funds or in-kind contributions using a sliding scale for state grants as provided in 53-21-1203, MCA. (a) The sliding scale is determined by calculating historical county use of the state hospital using the previous year's admission data versus total state use of the state hospital and county population versus total state population (b) remains as proposed. (c) The department may match the local investment of cash and in-kind contributions to any county whose MSH admissions are at or above the statewide average admission rate on a sliding scale of 50% to (5) remains as proposed. (6) The department will recalculate the sliding scale match rate annually using the formula described in 53-21-1203, MCA, based on the prior year's admissions to MSH AUTH: 53-21-1203, MCA IMP: 53-21-1203, MCA RULE IV (37.89.1007) GRANTS TO COUNTIES, PRO RATA DISTRIBUTION (1) If the amount requested for matching fund grants exceeds the funding available in the legislative appropriation, the department (2) The department will allocate funding by dividing available funding by the sum total population of all counties submitting a letter of intent and multiplying the result AUTH: 53-21-1203, MCA IMP: 53-21-1203, MCA RULE V (37.89.1009) GRANTS TO COUNTIES, STRATEGIC PLAN REQUIREMENTS (1) Letters of intent (LOI) to participate in the state fund matching grants will be accepted until two weeks after publication of the final adopted version of this rule and grant applications will be accepted until March 1, 2010 for fiscal year 2010 with the grant term concluding at the end of the fiscal year. (2) For subsequent fiscal years, grant applications that continue or expand activities implemented with a previous year's funding may be given priority over new applications, if the applying county or group of counties have met the requirements of (5) and the department has determined that continuation of the plan would promote appropriate utilizations of the Montana State Hospital and would ultimately result in cost savings to the state (3) (5) through (5)(e) remain as proposed but are renumbered (4) through (4)(e). (6) remains as proposed but is renumbered (5). AUTH: 53-21-1203, MCA IMP: 53-21-1203, 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 strongly agree with the goals and criteria set forth in Rule I (37.89.1001) and view them as embodying legislative intent for House Bill 130 (HB 130) rewarding existing mental health crisis services that are having the desired effect of reducing usage at Montana State Hospital (MSH) in Warm Springs as well as jail diversions at the local and state levels. We firmly believe that these goals and criteria should be the basis for disbursement of grant money to applicants.
RESPONSE #1: The department thanks the commentors and will adopt Rule I (37.89.1001) as proposed. COMMENT #2: We recommend that the following provisions be added to Rule II (37.89.1003): "(3) Funds will be distributed only to a county or group of counties via a contract approved by the department. Counties must submit invoices to the department for funds." RESPONSE #2: The department agrees and has adopted Rule II (37.89.1003) with the addition of the suggested provisions. COMMENT #3: We found the language in proposed Rule III (37.89.1005) difficult to understand. We recommend the following language be substituted for Rule III(4)(a) (37.89.1005): "The sliding scale is determined by calculating historical county use of the state hospital through the use of the previous year's admission data versus total state use of the state hospital and county population versus total state population." We also recommend deleting "per 1000 residents" at the end of Rule III(6) (37.89.1005). RESPONSE #3: The department agrees and has adopted Rule III (37.89.1005) with the recommended changes. COMMENT #4: Are the numbers in Rule III(4)(c) (37.89.1005) correct? RESPONSE #4: The department believes the numbers in Rule III(4)(c) (37.89.1005) should be 5%, 50%, and 70% respectively. The rule was adopted accordingly. COMMENT #5: We represent a coalition of 11 counties in eastern RESPONSE #5: The department acknowledges the contributions the commentor's service has made toward the goals expressed in House Bill 130 (HB 130) and proposed Rule I (37.89.1001). The grants are intended to encourage the development of jail diversion, crisis intervention services, and short-term inpatient treatment in strategically located centers throughout the state. A single short-term inpatient mental health evaluation and treatment center would result in little progress toward the goal of treating mental illness closer to home. COMMENT #6: We strongly support the use of the criteria in Rule I (37.89.1001) and the funding mechanism in Rule III (37.89.1005) involving a sliding scale reflecting successful reduction in use of MSH in Warm Springs and jail diversions. Since we believe that legislative intent of HB 130 was first to quickly reward local crisis services programs for accomplishing those goals, we believe use of the criteria and the sliding scale in determining grant funding amounts would not only be appropriate but absolutely fair. To do otherwise penalizes successful programs such as ours and contradicts legislative intent for HB 130. RESPONSE #6: The department thanks the commentor and has adopted Rule III (37.89.1005) with the language suggested in comment #3. COMMENT #7: Legislative intent to encourage quick disbursement of the grant funds is evident in HB 130 with the requirement that department rules be in place by August 1, 2009. This no doubt recognizes the importance of quick funding disbursement to existing crisis services facilities such as ours. Therefore, it would be harmful for the department to wait several months to determine if applications for grant funding will exceed the annual appropriations amount, which could only be accurately determined after receipt of all the applications. RESPONSE #7: HB 130 states that, as soon as possible after July 1 of each year, the department shall grant to each eligible county state matching funds. The department agrees that this language encourages a timely response to each application. The department provided grant application materials to all counties on August 4, 2009, and began accepting grant results September 1, 2009, to meet this obligation. COMMENT #8: We believe proposed Rule IV (37.89.1007) has no tie to legislative intent in HB 130, is based on a faulty assumption that the appropriation funding level is being exceeded, and should be discarded or minimized in its application. It would be inaccurate to allocate funding based on letters of intent because criteria driven applications subject to the sliding scale will not necessarily exceed appropriations. The letters of intent probably were not based on the criteria addressed in proposed Rule III (37.89.1005). We question the appropriateness of shifting away from grants being disbursed based on criteria and the sliding scale. A simple per capita approach is not appropriate because it rewards late comers and hinders the ability of more progressive counties to continue the good work they have started. RESPONSE #8: The department does not agree. We believe the rules detailing distribution methodology, including Rule IV (37.89.1007), are consistent with the plain language of the statute, effectively fulfill legislative intent, and are the fairest way to award grants when demand exceeds the available funds. Under Rule IV (37.89.1007), matching rates will still be determined using the sliding scale. Letters of intent will be used only to discover if counties intend to submit applications that would, in aggregate amount, exceed the funds available. Under this rule, applications still must include a plan that will, if implemented, reduce admissions to the state hospital for emergency and court-ordered detention and evaluation and will ultimately result in cost savings to the state. Successful applicants will still be required to demonstrate that participating counties have or will commit sufficient funds or in kind contributions to meet the match requirements. The per capita computations described in Rule IV (37.89.1007) will not be used to allocate funds pursuant to a county's letter of intent but rather to "set aside" funds within the fiscal year's appropriation until a completed grant application is received and approved by the department. Any funds not claimed in FY 2010 may be awarded to successful grant applicants in FY 2011. COMMENT #9: As one of the main architects of the funding and cost share language (in HB 130), my intent was not to be "fair" but to reward communities that could demonstrate collaboration, reduced use of MSH in Warm Springs, and successful jail diversion. The criteria for grant money in HB 130 may not be perfect but programs demonstrating collaboration and success in reducing use of the state hospital and jails should be rewarded by being first in line. Next in line should be the communities who are interested in developing crisis center services. So, I strongly disagree with what the department is doing and how it's doing it. My big fear is that if the department decides to change the proposed rules very much, there will be a big delay causing the
RESPONSE #9: The department believes these rules describe the fairest and most effective way to implement HB 130 by prompting development of local mental health crisis services and jail diversion options. Throughout the drafting process, the department was mindful of the need to make the proposed rules useable in future years when more than one crisis center is operating with the help of grants under HB 130. Therefore, the department has adopted Rule V (37.89.1009) with the provision that counties who were awarded a grant in fiscal year 2010 will be given priority over new applications for grants.
COMMENT #10: The goals of HB 130 can only be accomplished by increasing local and regional treatment capacity of people in crisis that addresses both crisis stabilization and short term treatment needs. HB 130 anticipated that the appropriation would not be enough to fund all grant requests. We believe proposed Rule IV (37.89.1007) contradicts the clear intent of the legislation. Letters of intent are not detailed proposals for funding and building treatment capacity. They cannot be compared against the measuring stick provided by HB 130, the prospects that a strategic plan will, if implemented, reduce admissions to the state hospital for emergency and court-ordered detention and evaluation. Furthermore, county population is not the chief driver of state hospital admissions.
RESPONSE #10: The department agrees that the goals of HB 130 can only be accomplished by increasing local and regional treatment capacity, as stated by the commentor. As explained in the response to comment #8, the department believes Rule IV (37.89.1007) is consistent with the clear intent of the legislation and is the fairest way to award grants when demand exceeds the available funds.
COMMENT #11: The language in Rule IV(1) (37.89.1007) is misleading. We recommend it be revised to say "(1) If the amount requested for matching fund grants exceeds the funding available in the legislative appropriation, the department shall allocate funding on the pro rata basis described in (2)." RESPONSE #11: The department agrees and has adopted Rule IV (37.89.1007) with the suggested language. COMMENT #12: The department's proposed method of fund disbursement in Rule IV (37.89.1007) (when the amount requested exceeds legislative appropriation) calling for distribution of available funding on a pro rata basis by county population conflicts with the HB 130 language requiring a two-part sliding scale (based on population and commitments together). Why couldn't the department complete its calculation using the elements of the formula established in HB 130, then distribute on a pro rata basis, rather than just distributing off the top using population? RESPONSE #12: As discussed in the responses above, the department will use the ratio of population and admissions to calculate a "match rate" (the department will match each dollar of local investment on a sliding scale from $0.50 to $0.70). Section 53-21-1203(2), MCA directs the department to establish the match rate based upon population and commitments. "Grant amounts", however, must be based on available funding. The department will use a prorated distribution formula that will consider the number of residents in all the counties submitting a letter of intent and the total amount of funding available. This approach encourages regional collaboration. Population totals are combined when evaluating regional proposals and maximum potential grant amounts are calculated, subject to local investment matching requirements. Under 53-21-1203, MCA, the department must evaluate each plan proposal to determine whether it will, if implemented, reduce admissions to the state hospital for emergency and court-ordered detention or evaluation and will ultimately result in cost savings to the state.
COMMENT #13: Proposed Rule V (37.89.1009) hints that existing facilities might not receive funding until after the deadline for all grant applications, March 1, 2010. This delay could be exacerbated by an additional waiting period of up to 60 days as provided in proposed Rule V (37.89.1009). This drawn-out process is contrary to legislative intent for quick disbursement to existing facilities. RESPONSE #13: The department recognizes it would have been harmful to delay disbursement of matching funds. The deadline for grant applications should not be interpreted as an obstacle to the award of grants submitted early. The department intends to award grants upon completion of the application process and will disburse state matching funds as soon as the necessary contracts have been signed and essential information has been submitted. The department proposed the March 1, 2010 deadline for applications because it is the latest date it could guarantee disbursement of funds within FY 2010. It has been the department's experience that the evaluation of a grant application, the exchange of essential information, and the signing of contractual agreements between the department, the counties, and services providers requires at least three months. The 60 day deadline for the award of grants proposed in Rule V (37.89.1009) has been deleted from the proposed rule. COMMENT #14: We believe the proposed rules are consistent with testimony, discussions, and understandings on HB 130 that occurred during the 2009 Montana Legislature. RESPONSE #14: The department made every effort to adopt rules that will advance the goals expressed in HB 130. The department thanks the commentor for its support. COMMENT #15: We generally support the proposed rules, but are concerned that many counties did not receive notice of the proposed rules in time to submit comments. We request that the comment period be extended to allow interested parties time to study the proposed rules and submit comments.
RESPONSE #15: The department agreed and extended the comment period to December 17, 2009 for written comments. COMMENT #16: Why is the department proposing to use 2007 population figures when 2008 population numbers are available? Even if the most recent population figures are used, they would still be compared with 2009 state hospital admissions. RESPONSE #16: The department used the most recent population figures when it computed state hospital utilization and a matching rate formula for each county. At the time, 2007 population figures were the most recent available. The commentor is correct that 2008 figures are now available. However, counties have made strategic plans based on the 2007 population data and have submitted proposals in reliance of the formulas computed with 2007 data. The department has determined that the benefits of keeping the match rate computations stable outweigh any advantage that would be gained from more recent data. COMMENT #17: We are concerned that the proposed match rate methodology is a "snapshot" of county utilization of the state hospital and does not take history into consideration. Small counties may commit only one person to the state hospital in a two or three year period. The proposed methodology could result in a small county being inaccurately designated a high use county. RESPONSE #17: The match rate methodology is set by statute and cannot be modified by administrative rules. The department has used a ratio of utilization to population so as to minimize the impact on counties with small population numbers. COMMENT #18: The proposed method of distributing state matching grants will mean that some areas of the state will not have access to jail diversion, involuntary precommitment, and short-term inpatient treatment services. We recommend that the department consider the distance to services when awarding grants. RESPONSE #18: The department does not agree that the distance to mental evaluation and treatment services should be a specific consideration in the evaluation of grant proposals. The mandate of HB 130 directs the department to make grants to "each eligible county". Counties that are distant from centers where medical services exist can form collaborative partnerships and may submit a proposal for regional services. In a group, the utilization of MSH by participating counties is aggregated and a grant will be awarded accordingly. COMMENT #19: The department's proposed contract with counties that receive grants is not compatible with I.R.S. code section 115 insurance pool requirements. We recommend rewriting the contract so that counties can participate in a section 115 insurance pool. RESPONSE #19: The department agrees and will make the necessary adjustments to next year's proposed contract. The department chose not to propose rules on the insurance pool requirement because details of that pool were not available at the time of the rule proposal notice. COMMENT #20: The proposed rules do not make provision for the distribution of unclaimed and unexpended funds. We recommend that the department distribute all of the appropriated funds before the close of the 2011 state fiscal year. RESPONSE #20: The department believes rules pertaining to the distribution of unclaimed and unexpended funds would be beyond its authority. The statutory provisions governing the treatment of unclaimed and unexpended appropriations apply. Since the appropriation for mental health diversion is biennial, funds not claimed in FY 2010 will be available to counties in FY 2011. COMMENT #21: It is unclear which categories of commitment will be reimbursed by the department under the proposed rules. Will matching fund grants be available for voluntary commitments, involuntary commitments, emergency commitments and court ordered detentions? RESPONSE #21: The department adopts proposed Rule III (37.89.1005) providing that the number of all admissions to MSH be used in calculating the match rate. HB 130 uses inconsistent terminology, employing the term "admissions" when describing how grant amounts should be determined and "commitments" when describing how the sliding scale should work. However, both the preamble and the stated goal for the matching grant program refer to a reduction in emergency and court-ordered detentions. These are among several kinds of admissions that may or may not qualify as commitments, but will be used by the department to calculate match rates. By interpreting the term "commitments" broadly, the department will include data about all forms of mental health detention, evaluation, and treatment needs in a grant determination and to harmonize all parts of the statute so that each provision will be given effect.
COMMENT #22: Why can't the department use the matching grant formula established in HB 130? County population Commitments per county State population and Total commitments in state Compare these two figures and a high-use county (commitments higher than population) will receive a lower percentage of matching funds. Please state why the department's proposed formula is preferable.
RESPONSE #22: Proposed new Rule III(1) (37.89.1005) states that the department "will base the matching fund grants . . . on the criteria specified in 53-21-1203, MCA". One provision of the Montana Administrative Procedure Act (MAPA), specifically 2-4-305(2), MCA, prohibits rules that unnecessarily repeat statutory language. Mindful of that prohibition, the department concluded that 53-21-1203, MCA should be the only standard for calculating match rates. The department used the formula established in HB 130, now codified at 53-21-1203, MCA, but defined "commitments" to include all admissions to MSH. This would include court-ordered detentions, emergency detentions, involuntary commitments, commitments ordered by tribal courts to Indian health services, voluntary commitments, inter-institutional transfers, court-ordered evaluations, fitness to proceed evaluations, guilty but mentally ill sentences, and not guilty by reason of mental illness sentences. As explained in the response to the previous comment, 53-21-1203, MCA uses the terms "admissions" and "commitments" inconsistently. The preamble to HB 130 and the stated goal for the matching grant program refer to a "reduction in emergency and court ordered detentions". The department will use a ratio of admissions to population to compute the match rate. COMMENT #23: We discussed using "admissions" for the funding formula versus "commitments". The department clarified it was using "admissions" for its calculations. HB 130 uses the word "commitments". The department's rule is contrary to the statute. Please comment. RESPONSE #23: The department does not believe its rule is contrary to the statute. As explained in the response to comments #21 and #22 above, the department will be using the number of all admissions to MSH in calculating the match rate. Section 53-21-1203, MCA uses the terms "admissions", "commitments", and "detentions". Rule III (37.89.1005) is an attempt to harmonize and give effect to all provisions of the statute. COMMENT #24: We are concerned that the department's planned reimbursement scheme may not accurately reflect the Legislature's intent on reimbursement. Clarify whether grant amounts will be distributed across the state or directed towards specific areas that may already have programs in place. Please address the concern voiced by several legislators that the money was intended to go towards counties with models that are already working, not spread across the state. RESPONSE #24: Section 53-21-1203, MCA directs the department to make grants to "each eligible county". The department finds nothing in the bill to indicate that it was intended to go toward counties with models that are already working. The grants are intended to encourage the development of jail diversion, crisis intervention services, and short-term inpatient treatment in strategically located centers throughout the state. COMMENT #25: The department has stated crisis intervention team training and crisis response team expenditures will be eligible for match under the proposed rules. Please state your basis for this. RESPONSE #25: Section 53-21-1203(3)(b) refers to "development" of jail diversion and crisis intervention services under counties' strategic plans, and charges the department with evaluating prospects that plans submitted "will, if implemented" reduce admissions to the state hospital. The department believes this language states the legislative intent that matching grants be used for the development or expansion of crisis intervention and jail diversion capacity, thereby reducing the current level of admissions for court-ordered and emergency detentions. Crisis intervention teams (CIT) and crisis response teams are effective in crisis intervention and jail diversion. Counties that have developed and supported these activities may consider that as an element of local investment in applying for matching funds. COMMENT #26: The Children, Families, Health, and Human Services Interim Committee would like to know which counties have responded with a letter of intent to seek state matching grants and the department's proposed funding numbers accordingly. RESPONSE #26: MAR notice 37-491 at 2009 MAR issue 20, page 1877 referred interested persons to the department's web site, www.dphhs.mt.gov/amdd/services where a matrix demonstrating the proposed distribution methodology is posted. For those without Internet access, the notice also stated that interested persons can obtain a copy of the matrix by writing the department's Addictive and Mental Disorders Division at COMMENT #27: Will the department commit half of the biennial appropriation for this program in the FY 2010 base budget year? If not, please comment as to ongoing funding to implement the matching grants program. Is it sustainable? RESPONSE #27: The biennial appropriation is allocated to fund HB 130, HB 131, and HB 132 collectively, without guidance as to distribution. The department has allocated approximately 50% of this biennial appropriation to funding these programs in FY 2010. Unspent funds will be available for program implementation in FY 2011. The department expects that the matching grant requests for FY 2010 will not exceed 50% of the appropriation, but has the ability to use more than 50% of the appropriation during the first year if the requests merit. The appropriation for matching grants was included in HB 2 and was not designated as one-time-only funding. The department will provide data to the 2011 Legislature to demonstrate the effectiveness of this funding. The sustainability of the program will depend on future appropriations. COMMENT #28: The department's preliminary state matching grant award figures indicate that some counties are slated to receive a larger grant amount than was asked for. Please explain. RESPONSE #28: No county will receive a larger grant amount than it requested. In order to access the amount calculated, the county must have sufficient local investment to match the grant funding. The department will revise its final rules to clarify that grant amounts will not be greater than the amount requested. COMMENT #29: HB 130 directed the department to adopt rules for implementation by August 1, 2009 and fully implement the grant program by September 1, 2009. Please address the delay in both these areas. RESPONSE #29: The department believes the grant program was fully implemented by the September 1, 2009 deadline. All counties received information on matching grant availability, the application process, and were asked to submit proposals in an August 4, 2009 letter to Harold Blattie, Executive Director of the Montana Association of Counties (MACO). The department received letters of intent from counties and subsequent applications for matching funds. The department acknowledges it did not meet the August 1, 2009 deadline for adoption of administrative rules. The deadline barely allowed sufficient time for the department to file proposed rules and complete the rulemaking process. The proposed rules were filed with the Secretary of State on October 19, 2009 and a public hearing was conducted November 23, 2009. The department received requests to extend the comment period and did extend it to December 17, 2009. The delay in rulemaking has not adversely affected the availability of funds to county grant applicants. As of the date of this notice, the department has signed a contract with
COMMENT #30: We understand there is concern that, under the rules being considered, the The We know what a benefit this program has been to constituents of ours and hope that you will do what is fair and equitable for them according to the legislative intent of HB130. A successful and established program should benefit according the reasoning of this bill.
RESPONSE #30: The department does not agree that established programs would be discriminated against under these rules. The department expects the rules will fairly and equitably implement the legislative intent expressed in HB 130. The department finds nothing in the bill to indicate that it was intended solely to assure adequate funding of the /s/ John Koch /s/ Anna Whiting Sorrell Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State May 17, 2010.
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