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| Montana Administrative Register Notice 37-548 | No. 11 06/09/2011 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF
TO: All Concerned Persons 1. On June 29, 2011 at 1:30 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 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 20, 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, 3. The rules as proposed to be adopted provide as follows: NEW RULE I REIMBURSEMENT FOR SERVICES: GENERALLY (1) The following requirements and limitations govern the reimbursement of providers for the provision of services and items delivered to persons who are currently eligible for and accepted into one or more of the developmental disabilities services programs administered by the department. These requirements are in addition to any other federal and state requirements governing the funding and delivery of the various services provided through the program. (2) Reimbursement for services and items is only available: (a) through payments made to providers that have a current contract with the department authorizing the provider to deliver developmental disabilities services. In addition a provider must be: (i) currently enrolled in conformance with ARM 37.85.402 as a Montana Medicaid provider as evidenced by a signed current provider enrollment agreement, unless the type of provider is expressly exempted from the requirement by the department; and (ii) designated by Developmental Disabilities Program (DDP) to be a qualified developmental disabilities provider, unless the program does not require the provision of the particular type of service or item by or through a qualified provider. (b) for services and items that are authorized in rule or federal agreements for delivery through the particular developmental disabilities services program that the consumer is authorized by the DDP to participate in; (c) when the particular services and items delivered are authorized for delivery to the consumer through the consumer's individual cost plan (ICP) as provided for in [RULE II], or if the ICP is not applicable, the planning and authorization procedures applicable to the particular program; (d) if the consumer has received the services and items authorized; and (e) when delivered in accordance with applicable professional and facility licensing authorities. (3) The department reimburses for a service or item at the lower of: (a) the rate applicable to the particular service or item as established through rule; or (b) the provider's usual and customary fee that is charged to any and all parties for the delivery of the service or item. (4) Reimbursement for the delivery of a service or item delivered to a consumer through the department's DDP is payment in full and the provider may not receive further reimbursement for the service or item from the program, other departmental programs, the consumer, or other parties. (5) A provider in order to receive reimbursement for a service or item must properly invoice for the service or item through the DDP's electronic billing system, Agency Wide Accounting Client System (AWACS), unless the service or item is not reimbursed through that payment system. (6) A provider may receive reimbursement from a consumer for a service or item that is not reimbursable through the DDP if, prior to delivery of the service or item, the provider and the consumer or the consumer's legitimate representative have entered into a written agreement that allows for the delivery of and payment for the service or item in an accountable manner. (7) A provider may not seek or obtain reimbursement from a consumer for a service or item that, though reimbursable by the DDP as a service or item, has not been reimbursed by the program due to the failure of the provider to properly seek reimbursement for the service or item or due to the failure of the provider to properly deliver the service or item to the consumer. (8) Reimbursement is not available for services and items: (a) the DDP determines are not delivered in accordance with the quality assurance standards applicable to those services and items; (b) provided while a person is a resident of an intermediate care facility for the developmentally disabled, an intermediate nursing care facility, or a skilled nursing care facility, as those facilities are defined in 50-5-101, MCA; or (c) reimbursable as either a Medicaid state plan service or through any other local government, state, or federal program for which the person is eligible or would be eligible upon application. (9) The department has the right to recover as a sum owing to the department reimbursement received by a provider that is an overpayment or is improperly obtained. (a) Overpayments and improper payments include but are not limited to any departmental reimbursement obtained by a provider that: (i) does not conform to the requirements and limitations of this rule or any other rules governing the administration and delivery of the services and items for which the reimbursement is obtained; (ii) does not compensate for actual delivery of the services and items for which the reimbursement is obtained; (iii) is the consequence of mistaken, improper, or fraudulent billing; (iv) is due to departmental mistake; or (v) is due to other circumstances. (b) The department or its agents may recover overpayments by any available means including withholding of further reimbursement payments. (10) Reimbursement for services and items is not made directly to consumers or their representatives. AUTH: 53-2-201, 53-6-113, 53-6-402, 53-20-204, MCA IMP: 53-6-101, 53-6-111, 53-6-402, 53-20-203, 53-20-205, MCA NEW RULE II REIMBURSEMENT FOR SERVICES: INDIVIDUAL COST PLANS (1) Authorization for the reimbursement of a provider for the delivery of particular services and items to an individual consumer is based on the implementation of an individual cost plan (ICP) for the consumer. Absent an approved ICP for a consumer, reimbursement is not available for services and items delivered to the consumer. (2) Services and items delivered to a consumer may not be reimbursed unless authorized in the consumer's ICP prior to the delivery of those services and items. (3) Reimbursement for the delivered services and items may not exceed the sums designated as available for those services in the consumer's ICP. Nor may total reimbursement for the delivered services and items exceed the total of the sums designated as available for those services in the consumer's ICP. (4) An ICP is developed by the consumer's case manager for submission to the DDP regional office for review and approval. For services reimbursed on time units the case manager estimates the levels of service delivery based on a reasonable assessment of the direct care staff time necessary to meet the health and safety needs of the consumer. The case manager uses the standardized reimbursement rates and any specified rates of reimbursement for particular services and items to calculate the amount of monies necessary to fund the services and items to be provided to the consumer. (5) All new proposed ICPs or proposed amendments to ICPs must be reviewed and authorized by the DDP's regional manager. (6) Neither the Montana resource allocation tool nor the plan of care may be used to authorize reimbursement for services or items. NEW RULE III REIMBURSEMENT FOR SERVICES: THE 0208 COMPREHENSIVE PROGRAM OF MEDICAID FUNDED HOME AND COMMUNITY SERVICES (1) Reimbursement through the Medicaid Home and Community Services 0208 Comprehensive Services Program waiver is only available to a provider for services or items: (a) delivered in accordance with the requirements and limitations of [RULE I]; (b) delivered in accordance with the terms and conditions of the formal approval by the Centers for Medicare and Medicaid (CMS) governing this waiver; (c) specified as 0208 comprehensive program services in ARM 37.34.911; and (d) authorized in accordance with [RULE II] for reimbursement through the consumer's individual cost plan (ICP). (2) The department adopts and incorporates by this reference the rates of reimbursement for the delivery of services and items available through the 0208 Comprehensive Program of Home and Community Services as specified in Section Two: Rates of Reimbursement for the HCBS 1915(c) 0208, 0371, 0667 Waiver Programs, of the Developmental Disabilities Program Manual of Service Reimbursement Rates and Procedures, published September 1, 2011. A copy of Section Two of the manual may be obtained through the Department of Public Health and Human Services, Developmental Services Division, Developmental Disabilities Program, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210 and at www.dphhs.mt.gov/dsd/ddp/forms.shtml. NEW RULE IV REIMBURSEMENT FOR SERVICES: THE 0371 COMMUNITY SUPPORTS PROGRAM OF MEDICAID FUNDED HOME AND COMMUNITY SERVICES (1) Reimbursement for the provision of services or items funded through the 0371 Community Supports Program of Home and Community Services waiver is only available to a provider for services or items: (a) delivered in accordance with the requirements and limitations of [RULE I]; (b) delivered in accordance with the terms and conditions of the formal approval by the Centers for Medicare and Medicaid (CMS) governing this waiver; (c) specified as 0371 community supports program services; and (d) authorized in accordance with [RULE II] for reimbursement through the consumer's individual cost plan (ICP). (2) The department adopts and incorporates by this reference the rates of reimbursement for the delivery of services and items available through the 0307 Community Supports Program of Home and Community Services as specified in Section Two: Rates of Reimbursement for the HCBS 1915(c) 0208, 0371, 0667 Waiver Programs, of the Developmental Disabilities Program Manual of Service Reimbursement Rates and Procedures, published September 1, 2011. A copy of Section Two of the manual may be obtained through the Department of Public Health and Human Services, Developmental Services Division, Developmental Disabilities Program, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210 and at www.dphhs.mt.gov/dsd/ddp/forms.shtml.
NEW RULE V REIMBURSEMENT FOR SERVICES: THE 0667 AUTISM PROGRAM OF MEDICAID FUNDED HOME AND COMMUNITY SERVICES (1) Reimbursement for the provision of services or items funded through the 0667 Autism Program of Home and Community Services waiver is only available to a provider for services or items: (a) delivered in accordance with the requirements and limitations of [RULE I]; (b) delivered in accordance with the terms and conditions of the formal approval by the Centers for Medicare and Medicaid (CMS) governing this waiver; (c) specified as 0667 autism program services; and (d) authorized in accordance with [RULE II] for reimbursement through the consumer's individual cost plan (ICP). (2) The department adopts and incorporates by this reference the rates of reimbursement for the delivery of services and items available through the 0667 Autism Program of Home and Community Services as specified in Section Two: Rates of Reimbursement for the HCBS 1915(c) 0208, 0371, 0667 Waiver Programs, of the Developmental Disabilities Program Manual of Service Reimbursement Rates and Procedures, published September 1, 2011. A copy of Section Two of the manual may be obtained through the Department of Public Health and Human Services, Developmental Services Division, Developmental Disabilities Program, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210 and at www.dphhs.mt.gov/dsd/ddp/forms.shtml. NEW RULE VI REIMBURSEMENT FOR SERVICES: HOME AND COMMUNITY SERVICES FUNDED WITH NON-MEDICAID MONIES (1) Reimbursement for the provision of services or items funded through home and community services funded with non-Medicaid monies is only available to a provider for services or items: (a) delivered in accordance with the requirements and limitations of [RULE I]; (b) specified as non-Medicaid program services; and (c) authorized in accordance with [RULE II] for reimbursement through the consumer's individual cost plan (ICP). (2) The rates of reimbursement for the particular types of services and items funded through home and community services funded with non-Medicaid monies are the same as those authorized for the same types of services and items reimbursed in accordance with [RULE III] through the 0208 Comprehensive Program of Home and Community Services and with [RULE IV] through the 0371 Community Supports Program of Home and Community Services. (3) Developmental Disabilities Program (DDP) services or items funded with non-Medicaid monies are considered to be a payor of last resort. AUTH: 53-2-201, 53-20-204, MCA IMP: 53-2-201, 53-20-203, 53-20-205, MCA NEW RULE VII REIMBURSEMENT FOR SERVICES: PART C EARLY INTERVENTION SERVICES PROGRAM (1) Reimbursement for the provision of services or items funded through the Part C Early Intervention Services Program is available in accordance with the criteria and procedures appearing in the Part C State Plan entered into between the department and the U.S. Department of Education and in the contract between the DDP and a provider for the delivery of Part C funded services. AUTH: 53-2-201, 53-20-204, MCA IMP: 53-2-201, 53-20-203, 53-20-205, MCA NEW RULE VIII REIMBURSEMENT FOR SERVICES: TARGETED CASE MANAGEMENT SERVICES (1) Reimbursement for the provision of case management services funded either as the Medicaid state plan targeted case management service or as a state general fund funded service is available in accordance with ARM 37.86.3601, 37.86.3602, 37.86.3605, 37.86.3606, and 37.86.3607 pertaining to the administration and reimbursement of Medicaid funded state plan targeted case management services. 4. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined: 37.34.913 0208 COMPREHENSIVE PROGRAM OF MEDICAID HOME AND COMMUNITY SERVICES (1) Reimbursement for the provision of services or items funded through the 0208 Comprehensive Program of Home and Community Services is available in accordance with criteria and procedures in [RULES I and II]. (2) The rates of reimbursement for particular types of services and items that may be funded through the 0208 Comprehensive Program of Home and Community Services established in accordance with [RULE III].
AUTH: 53-2-201, IMP: 53-2-201, 5. STATEMENT OF REASONABLE NECESSITY The Department of Public Health and Human Services (the department) is proposing the adoption of New Rules I through VIII and the amendment of ARM 37.34.913 pertaining to reimbursement for the provision to persons with developmental disabilities of services and items covered as benefits of the various programs of services administered by the Developmental Disabilities Program (DDP). The implementation of this set of proposed rules, with the resulting establishment of a rate methodology, serves to reimburse contractors for the provision of services to meet the needs of persons with developmental disabilities. The delivered services serve to foster the capacities of consumers to live in the most appropriate and least restrictive settings through habilitation and other services generally designed for their needs. The reimbursement system and rates to be adopted through this proposed rule set have been several years in the development and application. At this time the methodology and factors constituting the reimbursement system are now thoroughly implemented and warrant adoption in rule. The system was developed in response to concerns stated by the Centers for Medicare/Medicaid (CMS) in a 2000 review of the principal Medicaid funded home and community developmental disabilities services program administered by the department. In response to the CMS review, the department proceeded with an intensive multifaceted initiative to develop a coherent reimbursement system that would meet with CMS approval. This effort included the work of a multiparty Rates Advisory Committee to bring many perspectives into consideration in the process of development and implementation. That committee, which remains in place, has included consumer and provider interested parties. In November 2003, the department contracted with a consulting firm to assist the state in the development of a published reimbursement system as well as a way to allocate available resources based on the needs of Montana's persons with developmental disabilities. Once the consulting firm was in place, various meetings were frequently held with extensive involvement of interested parties throughout the state to assure that the perspectives of interested parties were considered prior to implementation of a new comprehensive reimbursement system. In January 2005, an initial pilot of 50 individuals in service throughout the state was launched to test the methodology for the reimbursement system. At that same time, in the Appropriations Bill, the 2005 Legislature stated its support for a graduated approach to the implementation of the system. In July 2005, phase II of the reimbursement system started which involved all adult providers in Region II (consisting of approximately 320 individuals in services and 7 DD providers). This pilot lasted the fiscal year until June 2006. Based on legislative comments in HB2, the prior pilot findings, and updated provider information, the rates were adjusted to accommodate budget neutrality. The full implementation of the reimbursement system was accomplished by 2009. Since 2009, there have been further adjustments to the system, including approximately a 2% provider rate increase implemented in State Fiscal Year (SFY) 2010. Proposed NEW RULES III, IV, V, and VI give notice that the department will be reducing the reimbursement rates to the DDP providers by approximately 2% beginning on September 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 meeting 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 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. New Rule I New Rule I states the general authority governing reimbursement for the implementation of the State's program of home and community services for persons with developmental disabilities funded with both Medicaid and non-Medicaid monies. The provision by a state of health care and health care related services funded with federally derived Medicaid monies necessitates conformance by the state with federal statutes, regulations, and policies that govern expenditures of those monies. This proposed rule is necessary to denote those various expenditure and accountability requirements. The option of not specifying the federal authority governing the program was not considered appropriate. The proposed rule also would establish the parameters and particulars for provider participation in the reimbursement system with respect to contractual relationships with the department, conformance with quality assurance standards, and use of the electronic billing system. In addition, the proposed rule establishes the discretion of the department to manage the various aspects of the program in conformance with federal authority, the appropriated budget authority, and as otherwise determined appropriate by the department. This application of discretion to the program is necessary to assure continuing conformance with the governing federal authority so as to avoid withdrawal of federal approval for the program and to avoid federal recoupment for expenditures of federal monies inappropriately expended. Discretion is also necessary to assure that the program is managed within the programmatic and fiscal parameters and limitations that the Legislature may impose upon the department in the appropriation process. The necessity to conform with governing authority and fiscal dictates precludes consideration of other options. New Rule II Proposed New Rule II is necessary to inform service consumers, families, and providers of services that the particular services and the financial resources available for the reimbursement of the delivery of services to an individual consumer is predicated upon the financial resources authorized in the Individual Cost Plan (ICP) and then applied to the consumer's service delivery via the reimbursement methodology. The proposed new rule would further establish the constituent features and application of the ICP. New Rule III This proposed new rule is necessary to establish the department's rates of reimbursement for services delivered to consumers who are eligible for the 0208 Comprehensive Home and Community Services program. In addition the proposed rule would establish requirements for and limitations upon reimbursement for the services. The proposed rule is necessary to inform providers of services under this waiver of the allowable rates for those services and the requirements for billing and receiving payment. The rates for reimbursement for the services available under that waiver are to be found in the manual of service reimbursement adopted and incorporated by reference in this proposed rule. The proposed rule is necessary to establish that the services available through the program may only be provided by or through a provider that is enrolled as a Medicaid provider with the department, that meets all licensing and other nonprogrammatic requirements, that complies with the requirements related to the receipt of Medicaid monies, that meets the programmatic requirements governing the delivery of services, and that is not reimbursed otherwise. These provider requirements are necessary to provide conformance with the governing federal authority. New Rule IV This proposed new rule is necessary to establish the department's rates of reimbursement for services delivered to consumers who are eligible for the 0371 Community Supports home and community services program. In addition the proposed rule would establish requirements for and limitations upon reimbursement for the services. The proposed rule is necessary to inform providers of services under this waiver of the allowable rates for those services and the requirements for billing and receiving payment. The proposed rule is necessary to establish that the services available through the program may only be provided by or through a provider that is enrolled as a Medicaid provider with the department, that meets all licensing and other nonprogrammatic requirements, that complies with the requirements related to the receipt of Medicaid monies, that meets the programmatic requirements governing the delivery of services, and that is not reimbursed otherwise. These provider requirements are necessary to provide conformance with the governing federal authority. New Rule V This proposed new rule is necessary to establish the department's rates of reimbursement for services delivered to consumers who are eligible for the 0667 Children's Autism home and community services program. In addition the proposed rule would establish requirements for and limitations upon reimbursement for the services. The proposed rule is necessary to inform providers of services under this waiver of the allowable rates for those services and the requirements for billing and receiving payment. The proposed rule is necessary to establish that the services available through the program may only be provided by or through a provider that is enrolled as a Medicaid provider with the department, that meets all licensing and other nonprogrammatic requirements, that complies with the requirements related to the receipt of Medicaid monies, that meets the programmatic requirements governing the delivery of services, and that is not reimbursed otherwise. These provider requirements are necessary to provide conformance with the governing federal authority. New Rule VI This proposed new rule is necessary to establish the department's rates of reimbursement for services delivered to consumers who receive services that are not funded with Medicaid home and community services monies. In addition the proposed rule would establish requirements for and limitations upon reimbursement for the services. The proposed rule is necessary to inform providers of services under this waiver of the allowable rates for those services and the requirements for billing and receiving payment. The proposed rule is necessary to establish that the services available through the program may only be provided by or through a provider that meets all licensing and other nonprogrammatic requirements that meets the programmatic requirements governing the delivery of services, and that is not reimbursed otherwise. New Rule VII This proposed new rule is necessary to establish the department's manner of reimbursement for services delivered to consumers who receive services that are funded with Part C early intervention services program monies. New Rule VIII This proposed new rule informs via cross reference where the established rules regarding case management services may be located and the rates and reimbursement information may be accessed. ARM 37.34.913 This rule revision is necessary to eliminate this outdated language that is in conflict with this new set of rules and the processes that are established for reimbursement of services delivered through the comprehensive 0208 home and community services program. Effective Date
The effective date of these rules is September 1, 2011. Fiscal Impact The provider rate reduction affects all three DDP waivers and is expected to account for reduction in payments of approximately $2.1 million per year affecting 55 current providers. The affected rates will be primarily Medicaid rates with a very small portion being non-Medicaid. The rate reduction will affect approximately 330 individuals in the Community Supports (0371) waiver, approximately 2,390 individuals in the Comprehensive (0208) waiver, and approximately 55 individuals in the Children's Autism (0667) waiver. 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., July 7, 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/ Cary B. Lund /s/ Mary E. Dalton for Anna Whiting Sorrell Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services Certified to the Secretary of State May 31, 2011.
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