BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
In the matter of the adoption of New Rules I and II, and the repeal of ARM 37.34.206, 37.34.215, 37.34.216, and 37.34.221 pertaining to developmental disabilities eligibility rules for Medicaid only
NOTICE OF ADOPTION AND REPEAL
TO: All Concerned Persons
1. On March 10, 2011, the Department of Public Health and Human Services published MAR Notice No. 37-534 pertaining to the public hearing on the proposed adoption and repeal of the above-stated rules at page 312 of the 2011 Montana Administrative Register, Issue Number 5.
2. The department has repealed ARM 37.34.206, 37.34.215, 37.34.216, and 37.34.221 as proposed.
3. The department has adopted the following rules as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined.
NEW RULE I (37.34.225) DEVELOPMENTAL DISABILITIES COMMUNITY SERVICES ELIGIBILITY: TERMINATION OF ELIGIBILITY FOR A PROGRAM
(1) Funding for all individuals receiving developmental disability community services as of February 28, 2011 funded by state general funds will terminate on July 1, 2011.
(a) Individuals who apply for and are determined eligible for the Medicaid program will convert to Medicaid funded services.
(2) (1) The department may terminate a person's eligibility for a particular program of developmental disabilities services if the person, in accordance with this subchapter and the rules pertinent to eligibility for that program, does not meet the eligibility requirements for that program. The particular programs of developmental disability services are:
37.34.207 Eligibility: Federally Funded Part H Family Education and Support Services the 0208 waiver program of Medicaid funded home and community services;
37.34.208 Eligibility: Federally Funded Intensive Family Education and Support Services the 0371 community supports waiver program of Medicaid funded home and community services;
37.34.211 Eligibility: Children's Community Home Services; the 0667 autism services program of Medicaid funded home and community services; and
37.34.212 Eligibility: Children's Summer Day Services; the federally funded Part C early intervention services.
(e) 37.34.217 Eligibility: Federally Funded Intensive Adult Services; and
(f) 37.34.222 Eligibility: Federally Funded Senior Services.
(3) (2) The department may terminate a person's eligibility for a particular program of services for which the person no longer meets eligibility criteria if:
(a) through (e) remain as proposed.
the person's failure to receive or participate in the program services poses imminent risk to the health and safety of the individual or another person a person poses imminent risk to the health and safety of the person or another person by not participating in the program services available to that person;
(g) through (i) remain as proposed.
AUTH: 53-6-402, 53-20-204, MCA
IMP: 53-6-402, 53-20-203, 53-20-205, 53-20-209, MCA
NEW RULE II (37.34.224) DEVELOPMENTAL DISABILITIES COMMUNITY SERVICES ADULT FINANCIAL ELIGIBILITY (1) On July 1, 2011, funding will terminate for all persons 19 years of age or older who were receiving developmental disability community services as of February 28, 2011 and funded by a combination of the state general fund and the federal Title XX Social Services Block Grant.
(a) Persons subject to this loss of state general fund and federal Title XX Social Services Block Grant funding may continue to receive developmental disabilities services if they apply for and are determined by the department to meet the following:
(i) the financial and categorical eligibility for the Medicaid program; and
(ii) the eligibility criteria for one of the Medicaid funded programs of home and community developmental disabilities services and are accepted into that program.
(b) For persons who have as of July 1, 2011 applied for Medicaid eligibility, but for whom Medicaid eligibility has yet to be determined, their services may be continued with Title XX Social Services Block Grant funding during the pendency of this eligibility application.
(1) (2) For individuals persons, 19 years of age or older, who as of February 28, 2011 receive were in receipt of developmental disability community services funded by a combination of the state general fund and the federal Title XX Social Services Block Grant and who are not Medicaid eligible ineligible for Medicaid funded services or who are ineligible for or not accepted into a Medicaid funded developmental disabilities home and community services program, the department may, in its discretion, on or after July 1, 2011, convert funding for such services from state general funding to proceed to fund developmental disabilities community services for the person with federal Title XX Social Services Block Grant funding if such funding is available.
(2) (3) The department may apply available federal Title XX Social Services Block Grant funding under this rule to maintain establish the eligibility of an individual and to prevent the termination of a person for developmental disabilities community services by using the method set forth in the documents dated and effective June 9, 2011 entitled "Application for Federal Title XX Social Services Block Grant Funding" and "Directions for Federal Title XX Social Services Block Grant Funding .". The department hereby adopts and incorporates those documents by reference. The documents are available from the Developmental Disabilities Program, Department of Public Health and Human Services, P.O. Box 4210, Helena MT 59604, and at www.dphhs.mt.gov/dsd/ddp/forms.shtml.
(3) (4) Individuals Persons, 19 years of age or older, for whom neither Medicaid funding nor federal Title XX Social Services Block Grant funding is available will be terminated no longer be eligible to receive services from the developmental disability services program.
AUTH: 56-6-402, 53-20-204, MCA
IMP: 53-2-206, 53-6-402, 53-20-203, 53-20-205, 53-20-209, MCA
4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
COMMENT #1: A comment was made that the meaning of New Rule I(3)(f) (37.34.225) is not clear and the subsection should be redrafted to specify that it applies when department programs fail to provide services.
RESPONSE #1: The department has modified New Rule I(3)(f) (37.34.225) to clarify its intended meaning that when otherwise Medicaid eligible persons pose imminent risk to the health and safety of themselves or others by not participating in program services offered to them, their eligibility for those programs may be terminated.
COMMENT #2: A comment was made requesting that the department use more simplified and transparent language to describe how the changes set forth in this rulemaking will affect consumers, and what they can do about it.
RESPONSE #2: The department believes the rulemaking clearly states the effect of New Rules I (37.35.225) and II (37.34.224) in light of the reduction of state general funds, and the actions consumers may pursue, either in applying for Medicaid or, if they are ineligible for Medicaid, in applying for federal Title XX Social Services Block Grant (hereafter "Title XX") funding. Notices sent to current participants, and to persons applying for Medicaid, have and will inform them of their legal rights to appeal through the department's fair hearing process.
COMMENT #3: A comment was received that, until now, even without the department being able to force family members to provide support, the cost to the department of meeting the needs of developmentally disabled adults has been discounted because: (1) some of those adults with resources and income have been able to live with, and with the support of, family members, and (2) because some family members or guardians have helped them obtain health care coverage. Under the new rules, the commenter states, clients who spend down to qualify for Medicaid will not have sufficient resources to reside independently or with family, and that the demand for residential services and health care costs under this rule will result in long-term increases in both state and federal Medicare and Medicaid costs.
RESPONSE #3: While the cost of residential services may increase, as the commenter suggests, the department believes these rules will be effective in reducing the department's state general fund liability while limiting as much as possible any reduction of services, either by Medicaid for those persons eligible, or through Title XX funding to the extent those funds are available.
COMMENT #4: A comment was received stating that under the proposed rule change, the value of support that developmentally disabled persons currently receive from their families will disqualify them from meeting Medicaid eligibility limits and lose the current state support for their daytime developmental disabilities services. This value of support includes financial support and letting them reside with their families, which allows them to remain integrated in the community. When families are no longer able to support their family members, developmentally disabled persons will be placed into the service system in community homes and other more costly and restrictive residential service settings, thereby violating the federal integration mandate of the Americans with Disabilities Act as the U.S. Supreme Court interpreted in the Olmstead case.
RESPONSE #4: Beginning with the 2012-2013 biennium, funding for developmental disabilities services is limited to Medicaid monies consisting of a match of state monies for available federal Medicaid monies. Using state general fund monies under this approach will generate a significant increase in federal Medicaid matching monies dedicated to developmental disabilities services.
There will not be sufficient general fund monies to sustain the existing population of service recipients funded by a combination of the state general fund and the federal Title XX Social Services Block Grant. There may be some limited non-Medicaid federal Title XX monies and state monies available for discrete one-time or time-limited services and for limited long-term services. Based upon past experience and current knowledge, the department believes most current non-Medicaid eligible consumers can establish Medicaid eligibility and thereby maintain their status as consumers of the state sponsored developmental disabilities services.
Two federally approved Medicaid funded home and community services programs currently serve approximately 2,350 consumers in the disabilities program. These are consumers whose primary diagnosis is one of developmental disability and for whom the state provides approximately 32% of the Medicaid funding for services the Developmental Disabilities Program (DDP) delivers to them. As of the first day of fiscal year 2011, there were approximately 373 persons whose service costs were paid by the state using state general fund monies. Since it became apparent during this fiscal year that the state would have to convert funding of more persons from state general fund only to Medicaid funding, 158 consumers have already moved to Medicaid eligibility.
In light of the change in appropriated funding and changing eligibility criteria, the department will assist current consumers at risk of losing day habilitation services in establishing eligibility for Medicaid so they can continue to benefit from the state's service system. The DDP's support staff and case managers will continue to receive training and written materials for working with and assisting consumers and their families in establishing and maintaining Medicaid eligibility. The eligibility staff of the Public Assistance Bureau will also provide guidance.
The department encourages consumers and their families to contact a DD Program regional office if their case managers are not adequately assisting in eligibility matters.
COMMENT #5: A comment was made that the statutes at chapter 20 of Title 53, MCA provide for a developmental disabilities services program that is not based upon the recipients of services being Medicaid eligible. Comment was also made that the statutes the department cites as implementation authority for the proposed rules are not proper because they do not provide that the receipt of developmental disabilities services can be based upon general Medicaid eligibility, and that the department must cite statutory authority supporting its limitation of services eligibility to Medicaid eligible persons.
RESPONSE #5: The department inadvertently only cited Title 53, chapter 20, part 2, MCA as the statutory basis for the implementation of this change to Medicaid funding only for the receipt of the state developmental disabilities services. The correct statutory implementation authority has been inserted in the final notice to correct the mistake. The correct authority is explained below.
The general authority statutes at Title 53, chapter 20, part 2, MCA relate to general development of the program of developmental disabilities services that allow the department discretion to determine the nature and scope of a service system.
Other statutory authorities specifically govern the proposed rule adoption exercise.
The statutory authority of 53-6-402, MCA expressly governs the implementation of developmental disability home and community services programs funded with Medicaid monies, the largest of which is the federally designated 0208 waiver program initially implemented in 1981. In 1983 the Legislature enacted 53-6-401 and 53-6-402, MCA to govern Medicaid expenditures for home and community programs, and in 2007 amended 53-6-402, MCA to provide more detailed and explicit authority for the administration of home and community services.
COMMENT #6: Comment was made that state general fund monies are used to fund developmental disabilities services not only in whole but also in part, and that proposed New Rule I (37.34.225) appears to read that consumers of any state-sponsored services funded in any portion by state general fund monies will lose their eligibility for services, thereby terminating eligibility for all current consumers.
RESPONSE #6: The comment is well taken. The proposed language is mistaken and has been modified to reflect the intent that this provision concerns only state-sponsored developmental disabilities services funded by a combination of the state general fund and the federal Title XX Social Services Block Grant. State funds will continue to be used in the Medicaid program to match federal funds.
COMMENT #7: A comment was made that if by this rulemaking, the department intends to create a separate class of developmentally disabled adults receiving services funded only by state general funds on February 28, 2011, it should state a rational basis for doing so, and set forth how it will administer its waiting list for this class.
RESPONSE #7: The department does not intend to create a separate class of developmentally disabled adults identified as receiving services funded only by state general funds through this notice, and the rule does not establish such a definitive class funded by Title XX monies. Instead, some developmental disabilities services may be provided to non-Medicaid eligible persons through currently available federal Title XX monies limited on the basis of either time or type of services provided.
COMMENT #8: A comment was made objecting to the provision in New Rule I(3)(c) (37.34.225) allowing termination of eligibility of persons who fail to cooperate in the eligibility determination process, and stating concern that the department is failing its duty of care if those persons lack adequate mental capacity to cooperate in the eligibility process.
RESPONSE #8: The department cannot pay for services for persons with developmental disabilities unless they have been determined to be eligible and remain eligible. Eligibility determinations for persons with developmental disabilities consist of establishing general eligibility to receive Medicaid and, specific eligibility for Medicaid funded home and community services program. The burden of proving eligibility rests with the applicant and others who may be involved in the applicant's life, including family, who must act affirmatively to pursue and establish these types of eligibility. Department personnel are available to assist and guide consumers and their families in these efforts, however, if there is a lack of cooperation that leaves the department without the information necessary to establish initial or continuing eligibility, the department is without recourse and must determine ineligibility. The department has limited authority by which to intervene in such circumstances to undertake the effort for the applicant.
COMMENT #9: A comment was made that New Rule II (37.34.224) appears to implement a federal Title XX program of developmental disabilities services without express authority cited for that purpose, and that the department was not adopting criteria to govern the receipt of the funding by persons.
RESPONSE #9: As noted in a prior response, there is a limited amount of federal Title XX monies available to fund discrete one-time or time-limited services and for some limited long-term services. Title XX monies are available through the appropriation authority of the U.S. Congress, first, and second through the appropriation authority of the Montana Legislature.
The amount of these funds is limited and could be significantly reduced in the future due to actions of Congress or the Legislature. The department therefore does not intend to establish a program of Title XX services. The availability and expenditure of these monies is a measure to attempt to apply the monies in a way that improves, in limited manner, some of the impacts for consumers who cannot establish Medicaid eligibility for the payment of developmental disabilities services.
The department appreciates the concern that the application of this limited resource of monies be undertaken with consideration given to a guiding set of criteria. The department will review the applicable documents to determine if further guidance is warranted.
COMMENT #10: A comment was made that under this rulemaking, existing consumers who have resources that disqualify them from Medicaid eligibility may nevertheless be eligible for Title XX funded services, which are not available to consumers who spend down their resources to become Medicaid eligible.
RESPONSE #10: The department determined that because Title XX monies are extremely limited, those persons who could potentially achieve and maintain Medicaid eligibility through an income incurment will not be able to access the funding. Persons found ineligible for Medicaid due to excess resources will not be eligible for Title XX funding.
COMMENT #11: A comment was made that the proposed changes would act to limit choice in the service system since consumers who seek to establish incomes will find it harder to do so if receiving services funded with Medicaid monies and therefore being subject to the financial features of eligibility that penalize their efforts to build financial independence.
RESPONSE #11: The department shares the commenter's concern. Though the department cannot act outside the fiscal course that the Legislature has established for the state, it directs the commenter and others to the recently implemented Montana Medicaid for Workers with Disabilities Program which through higher income and resource limits allows for continued Medicaid eligibility for persons with disabilities as they further their financial independence through employment.
COMMENT #12: A comment was made that New Rule I (37.34.225) should be clarified to reflect not only the need for current participants to establish general categorical and financial eligibility for Medicaid coverage, but also the need for them to establish their eligibility to receive services under one of the Medicaid funded programs of home and community developmental disabilities services and to be accepted into that program.
RESPONSE #12: The department agrees and has modified New Rule I (37.34.225) to reflect this comment.
COMMENT #13: A comment was made that because the substantive text of (2) of New Rule I (37.34.225) concerns termination of participants in the regular course from programs administered by the DD Program (i.e., the 0208 or "principal waiver"; the 0371 "community supports" waiver; and the 0667 "autism waiver" as programs), that section should reflect circumstances in which persons are terminated from "programs" administered by the DD Program, rather than termination from "programs of services".
RESPONSE #13: The department agrees and has modified New Rule I (37.34.225) to reflect this comment.
COMMENT #14: A comment was made that the two rules should be restructured with proposed New Rule I (37.34.225) containing only the material pertinent to termination from one of the waiver programs in the normal course and with proposed New Rule II (37.34.224) containing the material pertinent to the current changes in eligibility related to the changes in the funding sources for the developmental disabilities program.
RESPONSE #14: The department agrees with the commenter and has restructured the two rules accordingly.
/s/ Cary B. Lund /s/ Anna Whiting Sorrell
Rule Reviewer Anna Whiting Sorrell, Director
Public Health and Human Services
Certified to the Secretary of State June 13, 2011