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Montana Administrative Register Notice 37-525 No. 20   10/28/2010    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.81.304, 37.86.1005, 37.86.1006, 37.86.1101, 37.86.1105, 37.86.1802, 37.86.1807, and 37.86.2207 and repeal of ARM 37.83.812 pertaining to Big Sky RX benefit, Medicaid dental services, outpatient drugs, prescriptions for durable medical equipment, prosthetics, and orthotics (DMEPOS), early and periodic screening, diagnostic and treatment (EPSDT), and qualified Medicare beneficiaries chiropractic services

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On November 18, 2010, 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 and repeal 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 9, 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 dphhslegal@mt.gov.

 

            3.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.81.304  AMOUNT OF THE BIG SKY RX BENEFIT  (1)  An applicant eligible for the Big Sky Rx PDP premium assistance may receive a benefit not to exceed $37.55 $37.47 per month.  The benefit amount will not exceed $37.55 $37.47 regardless of the cost of the premium for the PDP the individual chooses.

            (a)  If a portion of the applicant's PDP premium is paid through the Extra Help Program, the Big Sky Rx Program will pay the applicant's portion of the PDP premium up to $37.55 $37.47 per month.

            (b) remains the same.

            (c)  All expenditures are contingent on legislative appropriation.  The amount of the monthly benefit, $37.55 $37.47, extends the Social Security Extra Help benefit amount to Montana residents with income up to 200% FPL.  The department's total expenditure for the program will be based on appropriation and the number of enrolled applicants.

 

AUTH:  53-2-201, 53-6-1004, MCA

IMP:  53-2-201, 53-6-1001, 53-6-1004, 53-6-1005, MCA

 

            37.86.1005  DENTAL SERVICES, REIMBURSEMENT  (1) through (3) remain the same.

            (4)  Payment for denture all dentures includes:

            (a)  payment for any tissue conditioners provided;

            (b)  the first three adjustments after the dentures are placed; and

            (c)  adjustments during the first year after delivery of the dentures is available only to a dentist or denturist who did not make the dentures.

            (5) and (6) remain the same.

            (7)  Payment for orthodontia is limited to an overall lifetime cap of $7,000 for interceptive and full band orthodontia phases unless otherwise provided by these rules.  Services included in the separate phases including monthly visits, are as listed in the department's orthodontic coverage and reimbursement guidelines.  Surgeries are not included in this lifetime cap. will be as follows:

            (a)  Full band orthodontia for Medicaid recipients who have cleft lip/palate, craniofacial anomalies or malocclusions caused by traumatic injury and interceptive orthodontia for Medicaid recipients who have posterior crossbite with shift, anterior crossbite and/or anterior deep bite at 80% or greater vertical incisor overbite, will be reimbursed at 85% of the provider's usual and customary charge, subject to the maximum allowable charge as published in the department's Dental and Denturist Program Provider Manual effective July 2009.

            (b)  Payment will be based upon a treatment plan submitted by the provider which will include at a minimum, a description of the plan of treatment, estimated usual and customary charge and time line for treatment.  The department will reimburse 40% of the Medicaid allowed amount up front for application of appliances, the remainder being paid in monthly installments as determined by the time line defined in the provider's treatment plan for completing orthodontic care.

            (c)  Recipients are limited to an overall lifetime cap of $7000.00 for interceptive and full band orthodontia phases unless otherwise provided by these rules.  Services included in the separate phases including monthly visits, are as listed in the department's orthodontic coverage and reimbursement guidelines.  Surgeries are not included in this lifetime cap.

            (d)  Maximum allowable charges for each phase of orthodontic treatment, time lines for orthodontic phases of care, and the services included in each phase of orthodontic care are listed in the department's Dental and Denturist Program Provider Manual.  The department adopts and incorporates by reference the department's Dental and Denturist Program Provider Manual effective July 2009.  The guidelines, issued by the department to all providers of orthodontic services, inform providers of the requirements applicable to the delivery of services. A copy of the department's Dental and Denturist Program Provider Manual is available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-6-101, 53-6-113, MCA

 

            37.86.1006  DENTAL SERVICES, COVERED PROCEDURES  (1) through (4) remain the same.

            (5)  Covered services for adults age 21 and over include:

            (a) and (b) remain the same.

            (c)  basic restorative services including prefabricated crowns; and

            (d)  extractions.; and

            (e)  porcelain fused to base metal crowns with prior authorization, limited to two per person per year, total.  For second molars base metal crowns only.

            (6) through (8)(a) remain the same.

            (9)  Coverage of all denture services is subject to the following requirements and limitations:

            (a)  A denturist may provide initial immediate full prosthesis and initial immediate partial prosthesis only when prescribed in writing by a dentist.  The prescription must be signed and dated within 90 days and must be maintained in the patient file.

            (b) through (17) remain the same.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-6-101, 53-6-113, MCA

 

            37.86.1101  OUTPATIENT DRUGS, DEFINITIONS  (1) through (3) remain the same.

            (4)  "Estimated acquisition cost (EAC)" means the calculation of the provider's estimated cost of a drug for which no federal maximum allowable cost (FMAC) or state maximum allowable cost (SMAC) price has been determined.  The EAC is the department's best estimate of what price providers are generally paying in the state for a drug in the package size providers buy most frequently.  If actual wholesale cost is not available the EAC is 85 percent of average wholesale price.

            (5)  "Federal maximum allowable cost" (FMAC) means the per unit amount the department reimburses a provider for a prescription drug included in the federal upper limit program.  FMAC is the federal upper limit the department will pay for multi-source drugs as published by the Centers for Medicare and Medicaid Services (CMS) at https://www.cms.gov/Reimbursement/05_FederalUpperLimits.asp.

            (5) through (9) remain the same but are renumbered (6) through (10).

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA

 

            37.86.1105  OUTPATIENT DRUGS, REIMBURSEMENT  (1)  Drugs will be paid for on the basis of the Montana "estimated acquisition cost", "the federal maximum allowable cost", or the "state maximum allowable cost", plus a dispensing fee established by the department, or the provider's "usual and customary charge", whichever is lower; except that the "federal maximum allowable cost", or the "state maximum allowable cost" limitation shall not apply in those cases where a physician or other licensed practitioner who is authorized by law to prescribe drugs and is recognized by the Medicaid program certifies in their own handwriting that in their medical judgment a specific brand name drug is medically necessary for a particular patient.  An example of an acceptable certification would be the notation "brand necessary" or "brand required".  A check-off box on a form or a rubber stamp is not acceptable.

            (2) through (7) remain the same.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-2-201, 53-6-101, 53-6-113, MCA

 

            37.86.1802  PROSTHETIC DEVICES, DURABLE MEDICAL EQUIPMENT, AND MEDICAL SUPPLIES, GENERAL REQUIREMENTS  (1) remains the same.

            (2)  Reimbursement for prosthetic devices, durable medical equipment, and medical supplies shall be limited to items delivered in the most appropriate and cost effective manner.  Montana Medicaid adopts Medicare coverage criteria for Medicare covered durable medical equipment as outlined in the Region D Supplier Manual, local coverage determinations (LCDs) and national coverage determinations (NCDs) dated January 2010 2011.  For prosthetic devices, durable medical equipment, and medical supplies not covered by Medicare coverage will be determined by the department.  The items must be medically necessary and prescribed in accordance with (2)(a) by a physician or other licensed practitioner of the healing arts within the scope of his practice as defined by state law.

            (a)  The prescription must indicate the diagnosis, the medical necessity, and projected length of need for prosthetic devices, durable medical equipment, and medical supplies.  The original prescription must be retained in accordance with the requirements of ARM 37.85.414.  Prescriptions may be transmitted by an authorized provider to the durable medical equipment provider by electronic means or pursuant to an oral prescription made by an individual practitioner and promptly reduced to hard copy by the durable medical equipment provider containing all information required.  Prescriptions for durable medical equipment, prosthetics, and orthotics (DMEPOS) shall follow the Medicare criteria outlined in chapters 3 and 4 of the Region D Medicare Supplier Manual (January 1, 2010 2011), which is adopted and incorporated by reference.  A copy of the Region D Medicare Supplier Manual may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59620-2951. For items requiring prior authorization the provider must include a copy of the prescription when submitting the prior authorization request.

            (i) remains the same.

            (b)  Subject to the provisions of (3), medical necessity for oxygen is determined in accordance with the Medicare criteria outlined in the Medicare Durable Medical Equipment Regional Carrier (DMERC) Region D Supplier Manual, (January 1, 2010 2011), Local Coverage Determination (LCD) and policy articles (January 1, 2010 2011), and National Coverage Determination (NCD) (January 1, 2010 2011), which are adopted and incorporated by reference.  The Medicare criteria specify the health conditions and levels of hypoxemia in terms of blood gas values for which oxygen will be considered medically necessary.  The Medicare criteria also specify the medical documentation and laboratory evidence required to support medical necessity.  A copy of the Medicare criteria may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59620-2951.

            (c) through (7) remain the same.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

 

            37.86.1807  PROSTHETIC DEVICES, DURABLE MEDICAL EQUIPMENT, AND MEDICAL SUPPLIES, FEE SCHEDULE  (1) remains the same.

            (2)  Prosthetic devices, durable medical equipment, and medical supplies shall be reimbursed in accordance with the department's Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Fee Schedule, effective January 2010 2011, which is adopted and incorporated by reference.  A copy of the department's fee schedule is posted at the Montana Medicaid provider web site at http://medicaidprovider.hhs.mt.gov.  A copy of the department's Prosthetic Devices, Durable Medical Equipment, and Medical Supplies Fee Schedule may also be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59620-2951.

            (3) through (4) remain the same.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

 

            37.86.2207  EARLY AND PERIODIC SCREENING, DIAGNOSTIC AND TREATMENT (EPSDT) SERVICES, REIMBURSEMENT  (1) through (8) remain the same.

            (9)  Reimbursements for school-based health related services are specified in the School-Based Health Service Fee Schedule dated October 2010 January 2011, which is adopted and incorporated by reference.  A copy of the School-Based Health Service Fee Schedule is posted at http://medicaidprovider.hhs.mt.gov.  Rates are adjusted to reimburse these services at the federal matching assistance percentage (FMAP) rate.

            (10) and (11) remain 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 proposes to repeal the following rule: 

 

            37.83.812  QUALIFIED MEDICARE BENEFICIARIES, PAYMENT FOR CHIROPRACTIC SERVICES AS MEDICARE SERVICES NOT COVERED BY FULL MEDICAID, is found on page 37-19152 of the Administrative Rules of Montana.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-6-101, 53-6-131, MCA

 

            5.  The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.81.304, 37.86.1005, 37.86.1006, 37.86.1101, 37.86.1105, 37.86.1802, 37.86.1807, and 37.86.2207 and repeal of ARM 37.83.812 pertaining to Big Sky RX benefit, Medicaid dental services, outpatient drugs, prescriptions for durable medical equipment, prosthetics, and orthotics (DMEPOS), early and periodic screening, diagnostic and treatment (EPSDT), and qualified Medicare beneficiaries chiropractic services.  The proposed rule change is necessary to update the Big Sky Rx benefit to match the regional benchmark, to the eliminate chiropractic care benefit for qualified Medicare beneficiaries, establish a Medicaid resource based fee schedule for orthodontics, define and reinstate the federal maximum allowable cost (FMAC) into the pharmacy pricing algorithm, to properly cite Medicare policy for durable medical equipment and associated fee schedule and to properly cite the fee schedule for school-based services.

 

ARM 37.81.304

 

The amendment to ARM 37.81.304(1) changes the maximum premium assistance amount from $37.55 to $37.47 to reflect the regional low income subsidy benchmark effective January 1, 2011.

 

ARM 37.86.1005

 

The proposed amendment to ARM 37.86.1005(4) clarifies denture reimbursement criteria and ARM 37.86.1005(7) removes the percent of billed charges reimbursement methodology for orthodontics and the percent of up-front payment for the application of appliances.

 

ARM 37.86.1006

 

The proposed amendment to ARM 37.86.1006(4) establishes limits for porcelain fused crowns and proposed amendment to ARM 37.86.1006(9) clarifies coverage for all dentures and clarifies dental prescription requirements.

 

ARM 37.86.1101

 

The proposed amendment to ARM 37.86.1101(5) defines federal maximum allowable cost and renumbers the section (6) through (10).

 

ARM 37.86.1105

 

The proposed amendment to ARM 37.86.1105(1) returns the federal maximum allowable cost into the department's pricing algorithm which was inadvertently removed when the department established the ARM for a state maximum allowable cost.

 

ARM 37.86.1802

 

The proposed amendment to ARM 37.86.1802(2) updates the reference to the current Medicare Supplier Manual, Medicare's local and national coverage determinations and policy articles to January 2011.

 

ARM 37.86.1807

 

The proposed amendment to ARM 37.86.1807(2) changes the fee schedule date from January 2010 to January 2011.

 

ARM 37.86.2207

 

The proposed amendment to ARM 37.86.2207(9) changes the school-based health services fee schedule date from October 2010 to January 2011.

 

ARM 37.83.812

 

The department is repealing ARM 37.83.812 to consistently reflect the Medicaid policy of not paying healthcare services for qualified Medicare beneficiaries.

 

These proposed rule changes are necessary to update the fee schedule dates and update reimbursement rules to reflect current policy are to clarify the department's policies for better understanding by providers and the public.

 

Rules that needed an effective date of January 1 2011 were identified either because of fee schedule expiration or because of updated references were identified.  Additional rules for clarification or housekeeping have been included based on feedback from various sources such as Centers for Medicare and Medicaid Services (CMS), new relative values or through routine course of business where weaknesses have been identified.

 

Fiscal impact and number of persons effected

 

ARM 37.81.304

 

The annual estimated cost savings to state special revenue is $2,834.88.  The estimated number of persons affected is 2,953 recipients. 

 

ARM 37.83.812

 

The repeal of this rule would result in an annual estimated cost savings to the general fund is ($2,991).  The number of people affected by this change is 161 recipients and 45 providers.

 

ARM 37.86.1005 and 37.86.1006

 

The annual estimated impact to the general fund is $0.  The estimated number of persons affected 25,077 recipients and 342 dental providers.

 

ARM 37.86.1005

 

Changes the payment methodology for orthodontia services from the 'by report' method to the RVD scale method.  The annual estimated cost savings to the general fund is $10,160.  The number of persons affected is as high as 366 recipients and 21 orthodontia providers.

 

ARM 37.86.1006

 

The annual estimated cost savings to the general fund is $80,789.  The number of persons affected is 515 people and 360 providers.

 

ARM 37.86.1101 and 37.86.1105

 

The annual estimated impact to the general fund is $0.  The estimated number of persons affected 26,938 recipients and 327 pharmacy providers.

 

ARM 37.86.1802 and 37.86.1807

 

The annual estimated impact to the general fund is $0.  The estimated number of persons affected 13,149 recipients and 637 DME providers.

 

ARM 37.86.2207

 

The annual estimated impact to the general fund is $0.  The estimated number of persons affected 20,138 recipients and 119 schools.

 

            6.  The department intends the rule amendments to be applied effective January 1, 2011. 

 

            7.  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., November 26, 2010.

 

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

 

9.  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 7 above or may be made by completing a request form at any rules hearing held by the department.

 

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, 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.

 

11.  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 October 18, 2010.

 

 

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