Montana Administrative Register Notice 37-540 No. 14   07/28/2011    
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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








TO:  All Concerned Persons


1.  On May 26, 2011, the Department of Public Health and Human Services published MAR Notice No. 37-540 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 858 of the 2011 Montana Administrative Register, Issue Number 10.


2.  The department has adopted New Rule I (37.40.1303) as proposed.


            3.  The department has amended the above-stated rules as proposed.


            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:  The department needs to clarify what is meant by "immediate family member" as proposed in New Rule I (37.40.1303), where it states that "[r]eimbursement is not available for self-directed personal assistance provided by immediate family members".


RESPONSE #1:  The language relative to "immediate family member" is the same language that currently exists in ARM 37.40.1105, Personal Care Services Reimbursement.  The interpretation of immediate family member has not changed from current practice.  The current interpretation continues to apply in New Rule I (37.40.1303).


COMMENT #2:  The department should not decrease Medicaid reimbursement rates by 2%.  Some operations are already underfunded and they are asked to cut back even more.  The 2% increase for state fiscal years 2010 and 2011 was made in part to improve pay and recruitment of qualified individuals providing personal care.  The proposed reduction will lead to a decrease in staff and possibly a cut in their pay.  Staff salaries are not high to begin with.  Medicaid requires that individuals be served in the least restrictive setting possible, and underfunding personal care will not meet this objective.  Rather, it will lead to more individuals in nursing home facilities which are more restrictive.


RESPONSE #2:  The 2% provider rate increase was funded as a one-time-only (OTO) increase, by the 2009 Legislature.  This OTO funding was not included in the budget base for state fiscal year (SFY) 2012, and the funds were not appropriated by the 62nd Legislative Session.  The department has no ability to mitigate the impact of this 2% reduction.  There is an appropriation for the continuation of the direct care worker wages that was appropriated by the 2011 Legislature for SFY 2012.  While it was not the subject of this rule change, it will in fact be available to provide for continuation of some portion of the direct care worker wages that were funded during the last biennium.  Separate reporting forms and information on the direct care worker wages will be sent to agencies for distribution of this ongoing wage funding.  The department does not agree that the reduction of the rate by $.09 for personal assistance services will lead to more individuals being admitted to the nursing facility.


COMMENT #3:  The department's proposed 2% reduction will have a greater impact on self-directed personal care.  The existing rate for self-directed care is already lower than that for agency-based care.  The proposed rate decrease will be more than 2% for self-directed care, whereas the impact is not as great for agency-based care.  The department should treat self-directed and agency-based care differently when proposing rate decreases.


RESPONSE #3:  The department implemented the 2% provider rate reduction as a uniform amount across the program as a whole, equally distributing the reduction across both self-direct and agency-based programs.  This was believed to be the fairest and simplest manner in which to implement the decrease.  The resulting decrease in rate is the same $.09 for each program.




/s/ Michelle Maltese                                      /s/ Mary E. Dalton for                                   

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services


Certified to the Secretary of State July 18, 2011.




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