Montana Administrative Register Notice 37-537 No. 10   05/26/2011    
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In the matter of the amendment of ARM 37.40.307, 37.40.325, 37.40.330, and 37.40.361 pertaining to nursing facility reimbursement








TO:  All Concerned Persons


            1.  On June 15, 2011, at 1:00 p.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 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 June 6, 2011 to advise us of the nature of the accommodation that you need.  Please contact Kenneth Mordan, 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:


            37.40.307  NURSING FACILITY REIMBURSEMENT  (1) through (2)(c) remain the same.

            (d)  The total payment rate available for the period July 1, 2010 2011 through June 30, 2011 2012 will be the rate as computed in (2), plus any additional amount computed in ARM 37.40.311 and 37.40.361.

            (3)  Providers who, as of July 1 of the rate year, have not filed with the department a cost report covering a period of at least six months participation in the Medicaid program in a newly constructed facility shall have a rate set at the statewide median price as computed on July 1, 2010 2011.  Following a change in provider as defined in ARM 37.40.325, the per diem rate for the new provider shall be set at the previous provider's rate, as if no change in provider had occurred.

            (4) through (12) remain the same.


AUTH:  53-2-201, 53-6-113, MCA

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


            37.40.325  CHANGE IN PROVIDER DEFINED  (1) through (5) remain the same.

            (6)  Any change in provider, corporate or other business ownership structure, or operation of the facility that results in a change in the National Provider Identifier (NPI) federal tax identification number will require a provider to seek a new Medicaid provider enrollment.  If the NPI is transferred with the facility, then only a provider file update is required to change the federal tax identification number and ownership information.  A written request must be made to the department if the NPI is transferred with the facility.


AUTH:  53-2-201, 53-6-113, MCA

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


            37.40.330  SEPARATELY BILLABLE ITEMS  (1) through (3) remain the same.

            (a)  If the items listed in (1)(a) through (1)(de)(ax) are also covered by the Medicare program and provided to a Medicaid recipient who is also a Medicare recipient, reimbursement will be limited to the lower of the Medicare prevailing charge or the amount allowed under (3).  Such items may not be billed to the Medicaid program for days of service for which Medicare Part A coverage is in effect.

            (b) through (10) 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


            37.40.361  DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE REPORTING/ADDITIONAL PAYMENTS INCLUDING LUMP SUM PAYMENTS FOR DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE AND BENEFIT INCREASES  (1)  Effective for the period July 1, 2010 2011 and for the six months thereafter, nursing facilities must report to the department actual hourly wage and benefit rates paid for all direct care and ancillary services workers or the lump sum payment amounts for all direct care and ancillary services workers that will receive the benefit of the increased funds.  The reported data shall be used by the department for the purpose of comparing types and rates of payment for comparable services and tracking distribution of direct care wage funds to designated workers.

            (2) remains the same.

            (a)  The department will determine the lump sum payments, twice a year commencing July 1, 2010 2011, and again in six months from that date as a pro rata share of appropriated funds allocated for increases in direct care and ancillary services workers' wages and benefits or lump sum payments to direct care and ancillary services workers.

            (b) through (3) 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




The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.40.307, 37.40.325, 37.40.330, and 37.40.361 pertaining to reimbursement for Medicaid nursing facility services.  The purpose of the proposed rule amendments is to update and set provider rates to take into consideration the expiration of one-time-only (OTO) funding, direct care wage incentive funding, price-based reimbursement methodology, and intergovernmental fund transfers for State Fiscal Year (SFY) 2012, July 1, 2011 through June 30, 2012.


The department does not have available, at this time, all of the information that will be necessary to establish final payment rates for nursing facility providers effective August 1, 2011.  The final rates that will be set will be dependent on the funding levels authorized by the 62nd Legislature, as well as other factors.


The department will provide rate sheets to all providers in advance of the rule hearing for verification purposes and in order to facilitate comments, when final case mix information (CMI) and Medicaid utilization data and other details necessary to compute accurate reimbursement rates become available.  These sheets will distribute the funding available in order to meet the department goals for a price-based system of reimbursement and will incorporate legislatively appropriated funding levels.


Reductions to provider rates are expected to occur due to the following reasons:


Provider rates will be reduced due to the expiration of a OTO 2% provider rate increase that was provided in Fiscal Year (FY) 2010 and sustained in 2011 that has not been restored for FY 2012 under House Bill 2 (HB 2) passed by the 62nd Montana Legislature.  This reduction is approximately $2,981,100 of total funding.


Changes for Direct Care Wages


Funding provided in FYs 2010 and 2011 for direct care worker wages was funded with OTO money.  Consequently, these dollars will no longer be available in FY 2012 to fund direct care worker wages.  This will result in a reduction of funding for direct care wages of approximately $5,729,330 in FY 2012.


A new appropriation of direct care wage funding has been included in HB 2 to provide for a new distribution of funds for direct care/ancillary worker wage or lump sum payment increase for nursing facility providers in FY 2012.  This additional funding is estimated at $3,862,986 and will be distributed in the same manner as the FY 2011 wage funding was distributed.


Intergovernmental Transfer Program


The Legislature continued approval for the use of local county matching funds as a source of additional revenue for nursing facility providers through the intergovernmental fund transfer (IGT) program in order to maintain access to, and the quality of, nursing facility services for FY 2012.  This funding will again be available for FY 2012.


Specific Changes Being Proposed


For Rate Year 2012, the nursing facility per diem rate will be computed as follows:


1.  The Medicaid per diem rates will include two components. The operating component (includes both operating and capital combined), and is the same rate for all nursing facilities and represents 80% of the overall price.  The nursing component will be adjusted for individual nursing facility acuity and is 20% of the overall price.


2.  Medicaid per diem rates will be established annually each July 1st.


3.  The minimum data set (MDS) case mix assessment data will be used in the computation of each facility's resident acuity.  Each nursing facility's case mix index (CMI) will be calculated quarterly based upon a set point in time, using the most recent annual or quarterly MDS information.  Nonclassifiable MDS assessment will be excluded from the computation of case mix indexes during the transition period.  Medicaid case mix for annual rate setting will be based on the most recent four quarter average of Medicaid CMIs for each nursing facility.


4.  The new nursing facility rates will be effective August 1, 2011.


Provider Rate


Provider rates will be adjusted to remove the 2% OTO provider rate increases from SFY 2010.  Funding to sustain this 2010 rate increase was not appropriated by the 2011 Legislature.  Updates will be made to incorporate more current CMI using updated MDS data and updated Medicaid utilization information for all nursing facilities.


The department considered whether a rate decrease could cause a cost shift to a more expensive service.  The department considered the impact of the rate changes on efficiency, economy, quality of care, and access to Medicaid services and concluded that the rates are still sufficient to meet the requirements of 42 USC 1396a (a) (30(A).


In evaluating the reductions needed to live within the legislative appropriation, the department considered the alternatives of eliminating covered services and/or decreasing Medicaid eligibility.  The department is unable to decrease eligibility for services after March 23, 2010 and be in compliance with the Medicaid maintenance-of-effort (MOE) requirements of the Patient Protection and Affordable Care Act, PL 111-148, Title II, Sections 2001, et seq.  Eliminating optional services was considered and rejected because of the impact on vulnerable Medicaid clients who would lose coverage for services.  For these reasons, the department is proposing the following provider rate decreases:


Direct Care Wages


Total funding of approximately $3,862,986 will be available to provide for a one-time only direct care/ancillary worker wage or lump sum payment increase.  This direct care wage increase is for direct care and ancillary staff for the 2012 and 2013 biennium only.  This funding will be paid to nursing facilities as a lump sum payment twice a year using the methodology that was adopted in 2010 and 2011. Direct care wage funds can only be used to provide for worker wage or lump sum payment increases.  The department will provide the reporting form that will be used by providers in order to receive this additional funding for wages.  This form will identify which workers will receive these funds, if these funds will be distributed in the form of a stipend or a bonus, or in the form of a wage increase.  These funds are OTO and as such will not be an ongoing reimbursement source after 2013.  Providers will need to be aware that any funds put into their wage structure may not be available in future years after this biennium.


Estimated Financial/Budget Impacts


The total state and federal funding available for FY 2012 for rate calculation purposes is currently projected at $138,989,286 which is comprised of $15,667,871 in state special revenue, $31,324,407 in State General Funds and $91,997,008 in federal funds.  The additional funding of lump sum payments to nursing facilities to support wages for direct care workers and ancillary staff includes $1,306,076 of state special revenue and $2,556,910 in federal funds for a total appropriation of $3,862,986.


The estimated total funding available for FY 2012 for nursing facility reimbursement is estimated at approximately $171,106,187 of combined state and federal funds, including $32,116,901 inpatient contributions.  These numbers do not include at-risk provider funds or direct care wage incentive funding.  Anticipated patient bed days for SFY 2012 are estimated at 1,056,477 using estimates of caseload adopted by the Legislature.


The estimated total funding impact of the one-time payments to "at risk" nonstate governmental providers and other nursing facilities not determined to be "at risk" has been appropriated at $7,600,089 in total funds of which $2,569,590 comes from  state special revenue funds and approximately $5,030,499 comes from federal funding sources.


Persons and Entities Affected


Eighty-one nursing facility providers participated in the Medicaid nursing facility payment program and approximately 4,800 recipients received services in FY 2010 in nursing facilities under Medicaid.  These rate reductions will affect all providers.


            5.  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:  Kenneth Mordan, 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., June 23, 2011.


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


7.  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 5 above or may be made by completing a request form at any rules hearing held by the department.


8.  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.


9.  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 May 16, 2011.



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