BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rule I and the amendment of ARM 37.40.705, 37.40.1105, and 37.40.1302 pertaining to home health care and personal assistance service

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On June 15, 2011, at 2:00 p.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, at Helena, Montana, to consider the proposed adoption and 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 rule as proposed to be adopted provides as follows:

 

NEW RULE I  SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, REIMBURSEMENT  (1)  Self-directed personal assistance services may be provided up to but not more than 40 hours of attendant service per week per recipient as defined by the plan of care.  The department may, within its discretion, authorize additional hours in excess of this limit.  Any services exceeding this limit must be prior authorized by the department.  Prior authorization for excess hours may be authorized if additional assistance is required for:

(a)  a period of time not to exceed three months and as the result of an acute medical episode;

(b)  a period of time not to exceed three months and to prevent institutionalization during the absence of the normal caregiver; or

(c)  a period of time not to exceed three months and during a post-hospitalization period. 

(2)  The base reimbursement for self-directed personal assistance services is $3.68 per 15-minute unit of service.  Reimbursement above this amount is conditional and negotiated with the department.  The rate is for units of attendant and nurse supervision service.

(a)  A unit of attendant service is 15 minutes and means an on-site visit specific to a recipient.

(b)  A unit of nurse supervision service is 15 minutes and means an on-site recipient visit and related activity specific to that recipient.

(3)  A person retained personally by a recipient to deliver self-directed personal assistance services is not a provider of self-directed personal assistance services for the purpose of this rule and therefore may not be reimbursed for self-directed personal assistance services by the department.

(4)  Reimbursement is not available for self-directed personal assistance provided by immediate family members.

 

AUTH:  53-6-113, MCA

IMP:     53-6-101, 53-6-145 MCA

 

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

 

37.40.705  HOME HEALTH SERVICES, REIMBURSEMENT

(1)  Reimbursement fees for home health services are as provided for in this rule.

(2)  The interim reimbursement for a category of service submitted for reimbursement as provided in (4) or (5) is the most current medicare percent of billed charges for each provider.

(3)  The provider's final reimbursement as provided for in (4) and (5) is calculated when the actual reimbursement fees based on the medicare cost settlements are determined for the period.  The medicare cost settlements are derived from an audit of allowable costs conducted for medicare purposes.

(4)  For home health agencies located within the borders of the state that began providing services before July 1, 1989, the reimbursement fee for a category of service after January 1, 1990 and prior to July 1, 1995 is the lowest of:

(a)  the provider's billed charges;

(b)  the average medicare cost for the category of service;

(c)  the upper medicare limit for the category of service; or

(d)  the adjusted indexed fee for the category of service for state fiscal year ending June 30, 1990.

(i)  The state fiscal year 1990 adjusted indexed fee for a category of service is the sum of:

(A)  the lowest fee for the category of service reported in the provider's medicaid cost settlement report ending calendar year 1989, indexed to a common fiscal year ending December 30, 1989 by the most recent home health DRI market basket index percentage of the health care financing administration of the department of health and human services (HCFA); and

(B)  2% of the indexed lowest fee.  The department hereby adopts and incorporates by reference the HCFA home health DRI market basket rate which is a forecast model of market basket increase factors.  The rate and a description of the general methodology and variables used in formulating this model is available from HCFA, Office of the Actuary, 6325 Security Blvd., Baltimore, MD 21209.

(ii)  The state fiscal year 1991 indexed fee for a category of service is the 1990 indexed fee for a category of service increased by 2%.

(5)  For home health agencies which are located within the borders of the state that began providing services on or after July 1, 1989, the Medicaid reimbursement fee for a category of service delivered prior to July 1, 1995 is the lowest of:

(a)  the provider’s billed charges;

(b)  the average medicare cost for the category of service;

(c)  the upper medicare cost limit for the category of service; or

(d)  the adjusted averaged medicaid fee for the category of service for that state fiscal year.

(i)  The adjusted averaged Medicaid fee for a category of service is the sum of:

(A)  costs for the category derived from the most recent Medicaid cost settlements finalized before June 30, of that state fiscal year from all participating in state home health providers divided by the total number of delivered services; and

(B)  2% of the averaged Medicaid fee.

(6)  For home health agencies located within the borders of the state for services provided on or after July 1, 1995 and prior to July 1, 1997, the reimbursement fee for a home health service, except for a home health aide service, is 60% of the average of the provider’s medicare cost limits for skilled nursing, physical therapy, speech therapy and occupational therapy services.

(a)  The reimbursement fee for home health aide services is 60% of the provider’s medicare cost limit for that service.

(7) (2)  For home health services provided on or after July 1, 1997 2011, the reimbursement is the following for:

(a)  for a nursing or therapy service - $59.54 $70.40 per visit;

(b)  for a home health aide visit - $26.60 $31.43;

(c )  for medical supplies and equipment suitable for use in the home - 90% of the amount allowable for the specific item under Medicare.

 

AUTH:  53-6-101, 53-6-113, MCA

IMP:     53-6-101, MCA

 

37.40.1105  PERSONAL CARE SERVICES AGENCY-BASED, REIMBURSEMENT  (1)  Personal care services may be provided up to but not more than 40 hours of attendant service per week per recipient as defined by the plan of care.  The department may, within its discretion, authorize additional hours in excess of this limit.  Any services exceeding this limit must be prior authorized by the department.  Prior authorization for excess hours may be authorized if additional assistance is required for:

(a)  for a period of time not to exceed three months and as the result of an acute medical episode;

(b)  for a period of time not to exceed three months and to prevent institutionalization during the absence of the normal caregiver; or

(c)  for a period of time not to exceed three months and during a post-hospitalization period.

(2)  The base Rreimbursement for personal care services is $2.64 $4.45 per 15-minute unit of service.  Reimbursement above this amount is conditional and negotiated with the department.  The rate is for units of attendant and nurse supervision service.

(a) through (4) remain the same.

 

AUTH:  53-6-101, 53-6-113, MCA

IMP:     53-6-101, 53-6-141, MCA

 

37.40.1302  SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, APPLICATION OF GENERAL PERSONAL CARE RULES  (1)  The following ARM cites apply to the self-directed personal assistance services program:

(a) and (b) remain the same.

(c)  ARM 37.40.1105 pertaining to reimbursement; and

(c)  [New Rule I]; and

(d)  ARM 37.40.1106(1), (6), and (9), pertaining to compliance reviews.

 

AUTH:  53-6-113, 53-6-145, MCA  

IMP:     53-6-101, 53-6-145, MCA

 

            5.  STATEMENT OF REASONABLE NECESSITY

 

The proposed amendments give notice that the department will be reducing the reimbursement rates to the identified Medicaid providers by up to 2% beginning on August 1, 2011.  These provider rate changes are based on a provider rate increase that went into effect in Fiscal Year (FY) 2010, and was held constant in FY 2011.  The 2010 provider rate increase was paid for with one-time-only funding appropriated by the 61st Legislative Session in 2009.  This one-time-only funding was not included in the budget base for FY 2012, and the funds were not appropriated by the current 62nd Legislative Session.

 

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.  The department concluded that the rates are still sufficient to meet the requirements of 42 USC 1396a (a) (30(A).

 

This reduction is approximately $750,000 in total funding for the personal assistance and the home health programs combined.

 

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 it must 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:

 

Home Health

 

The home health budget must be reduced by $12,000 beginning Fiscal Year 2012 to be maintained within the funding levels currently appropriated.  In Fiscal Year 2010, 428 Medicaid recipients received home health services.  Providers will be directly impacted by the rate reduction.

 

The current rates for home health are:

 

Physical therapy, occupational therapy, speech therapy,

and skilled nursing care                                                                   $71.81 per visit

 

Home health aide                                                                              $32.06 per visit

 

The proposed rates for home health with the 2% reduction will be:

 

Physical therapy, occupational therapy, speech therapy,

and skilled nursing care                                                                   $70.40 per visit

 

Home health aide                                                                              $31.43 per visit

 

The rate reduction will not affect medical and surgical supplies.

 

Personal Assistance

 

The total reimbursement rate reduction for one-time-only provider rates by 2% will result in savings of $738,000.

 

The proposed rule changes will have a fiscal impact on the personal assistance program.  In fiscal year 2010, 3,173 Medicaid beneficiaries received personal assistance.  Providers will be impacted by the rate reductions.

 

To achieve the $738,000 reduction, personal assistance service rates will decrease by .09 cents.  The agency-based personal assistance rate would be decreased by the current base rate of $4.54 to the rate of $4.45.  The self-direct personal assistance rate would be decreased from the current base rate of $3.77 to the rate of $3.68 per unit. 

 

Rule I

 

This proposed rule allows for the differentiation of agency-based and self-directed personal assistance services.  It contains most of the language seen in ARM 37.40.1105, which will apply to agency-based services.  The new rule provides the same 15-minute units of service, limitations on hours, reasons for granting excess hours, the exclusion of personally obtained services, and exclusion of family members providing the services. The reduced reimbursement rate for services is included.

 

The rule specifies that reimbursement above the rate is conditional and negotiated with the department.  This refers to a rate previously negotiated with the department based on direct care wage funding allocated during the 2007 Legislative Session.  New negotiations cannot be made for a higher rate.

 

ARM 37.40.705

 

The department proposes to eliminate much of the language in this rule for home health services.  The language discussed how home health rates were calculated and it is no longer used.  The rule provides the rate changes as explained above.

 

ARM 37.40.1105

 

Changes to this rule include the new proposed rates for agency-provided personal assistance as described above.  Additionally, the rule specifies that reimbursement above the rate is conditional and negotiated with the department.  This refers to a rate previously negotiated with the department based on direct care wage funding allocated during the 2007 Legislative Session.  New negotiations cannot be made for a higher rate.

 

            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: 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.

 

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/ Michelle Maltese                                      /s/ Anna Whiting Sorrell                               

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

           

Certified to the Secretary of State May 16, 2011.