BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
In the matter of the amendment of ARM 37.85.212 and 37.86.105 pertaining to the resource based relative value scale (RBRVS) and the reimbursement for physician administered drugs
NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT
TO: All Concerned Persons
1. On June 15, 2011, at 11:00 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 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 firstname.lastname@example.org.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
37.85.212 RESOURCE BASED RELATIVE VALUE SCALE (RBRVS) REIMBURSEMENT FOR SPECIFIED PROVIDER TYPES (1) and (1)(a) remain the same.
(b) "Conversion factor" means a dollar amount by which the relative value units, or the anesthesia units for anesthesia services, are multiplied in order to establish the RBRVS fee for a service.
Effective July 1, 2008 tThere are four conversion factor categories . They are:
(i) physician services, which applies to the following health care professionals listed in (2): physicians, mid-level practitioners, podiatrists, public health clinics, independent diagnostic testing facilities (IDTF), qualified Medicare beneficiary (QMB) and early and periodic screening, diagnostic and treatment (EPSDT) chiropractors, laboratory and x-ray services, family planning clinics, and dentists providing medical services. The conversion factor for physician services for state fiscal year
2011 2012 is $40.09 $32.84;
(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
2011 2012 is $30.39 $23.24;
(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
2011 2012 is $25.45 $22.19; and
(iv) anesthesia services, which applies to anesthesia services. The conversion factor for anesthesia services for state fiscal year
2011 2012 is $27.55.
(c) through (h) remain 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 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
74 75 Federal Register 226 228, 61738 73504 (November 25 29, 2009 2010) and corrected at 76 Federal Register 7, 1670 (January 11, 2011), effective January 1, 2010 2011 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) through (3) remain the same.
(4) The conversion factor for physician services is calculated as stated in 53-6-124
through and 126 125, MCA. The conversion factor for allied services, mental health services, and anesthesia services is calculated as follows:
(a) through (d) remain the same.
(5) For state fiscal year
2011 2012, policy adjustors will be used to accomplish the targeted funding allocations. The department's list of services affected by policy adjustors through July 1, 2010 August 1, 2012, 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.
(6) through (7) remain the same.
(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 or anesthesia units, then reimbursement is by report.
(a) remains the same.
(b) For state fiscal year
2011 2012, the by report rate is 48 47% of the provider's usual and customary charges.
(9) through (12)(a)(ii) remain the same.
(iii) The department's list of the specific percents for the modifiers used by Medicaid as amended through
July 1, 2010 August 1, 2012, 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 (14) remain the same.
AUTH: 53-2-201, 53-6-113, MCA,
IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-125, MCA
37.86.105 PHYSICIAN SERVICES, REIMBURSEMENT/GENERAL REQUIREMENTS AND MODIFIERS (1) through (3) remain the same.
(4) Reimbursement to physicians for physician-administered drugs which are billed under HCPCS "J" and "Q" codes is made according to the department's fee schedule or the provider's usual and customary charge, whichever is lower. The department's fee schedule is updated at least annually based upon:
(a) the Medicare Average Sale Price (ASP)
Fee Schedule set at 42 CFR 414.904 (2009) (2011) if there is an ASP fee;
(b) the RBRVS fee as defined in ARM 37.85.212 if there is an RBRVS fee;
(c) the estimated acquisition cost (EAC) as defined in ARM 37.86.1101 if there is an EAC; or
(d) the by-report amount as defined in ARM 37.85.212.
(5) and (6) remain the same.
AUTH: 53-6-101, 53-6-113, MCA
IMP: 53-6-101, 53-6-113, MCA
4. STATEMENT OF REASONABLE NECESSITY:
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. Montana Medicaid uses the RBRVS rate system to calculate the fee Montana Medicaid pays to 20 types of health care professionals.
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 clients' covered services. See 53-6-106(8) and 53-5-113, MCA.
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)(i) to adopt current relative value units (RVUs). An RVU is a numerical value assigned to each medical procedure. RVUs are added for new procedures and the RVUs of particular procedures may increase or decrease from year to year.
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 clients' health care during the upcoming State Fiscal Year (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 and 53-6-125, MCA.
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).
There is a dramatic increase in the RVUs for services for SFY 2012. To maintain present fee levels requires an offsetting decrease to conversion factors. Not making this adjustment would increase provider fees dramatically and would not comply with the Legislature's appropriation for SFY 2012. No adjustment is needed for anesthesia services because the value of anesthesia units is unchanged for SFY 2012.
By statute, the physician conversion factor may be adjusted by the department in order to maintain reimbursement, at a minimum, at the fiscal year 2010 reimbursement rate. The department is proposing to set the other service's conversion factors to legislative appropriation levels.
Provider rate increases that went into effect in fiscal year 2010, and were held constant in fiscal year 2011, were paid for with one-time-only funding appropriated by the 61st legislative session meeting in 2009. This one-time-only funding was not included in the base budget for fiscal year 2012 and the funds were not appropriated by the current 62nd legislative session. The net result is a funding decrease of approximately 2%. Given legislative appropriations and the requirements of 53-6-124 and 53-6-125, MCA the proposed conversion factor amounts are: physician services ($32.84), allied services ($23.24), mental health services ($22.19), and anesthesia services ($27.55).
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 (14) address rates for services without RVUs. The amendment to ARM 37.85.212(8) sets the "by report" rate for SFY 2012 that applies if no RVU is specified in the Medicare Physician Fee Schedule or if an alternative rate does not exist.
The department is proposing the amendment to ARM 37.86.105 to implement current drug pricing for physician administered drugs that are priced using "J" or "Q" codes. Current pricing is implemented by updating the reference to the federal regulation regarding the Medicare Average Sale Price (ASP). The overall fiscal impact of this rule change is expected to be negligible. The impact to an individual provider will depend on the drug administered because each drug is priced separately. The department does not establish a Montana ASP. It adopts by rule a regulation of the Centers for Medicare and Medicaid Services (CMS) that is used in the Medicare program for pricing physician administered drugs.
The estimated cumulative fiscal impact of these rules is:
Total Cost State General Fund Federal Match
SFY 2012 ($392,942) ($132,854) ($260,088)
This rule amendment is estimated to impact 13,400 Medicaid providers and 108,000 Medicaid clients.
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 email@example.com, 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, apply and have been fulfilled. The primary bill sponsor was contacted by mail, e-mail, and telephone on May 16, 2011.
/s/ Geralyn Driscoll /s/ Anna Whiting Sorrell
Rule Reviewer Anna Whiting Sorrell, Director
Public Health and Human Services
Certified to the Secretary of State May 16, 2011