Montana Administrative Register Notice 37-592 No. 13   07/12/2012    
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In the matter of the amendment of ARM 37.87.2202, 37.87.2205, and 37.87.2225 pertaining to non-Medicaid respite care services







TO:  All Concerned Persons


            1.  On August 1, 2012, at 1:30 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, 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 July 25, 2012, 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 rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


            37.87.2202  MENTAL HEALTH SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE (SED) NON-MEDICAID RESPITE CARE SERVICES, DEFINITION  For purposes of this subchapter, the following definitions apply:

         (1)  "Respite care" means relief services that allow family members, who are regular care givers of a youth with a serious emotional disturbance (SED), to be relieved of their care giver responsibilities for a temporary, short-term period.

         (2)  "SED" criteria are defined in ARM 37.87.303.

         (3)  "Youth" is defined in ARM 37.87.102. "Youth" means a person 17 years of age or younger.


AUTH:  53-2-201, 53-6-101, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, MCA


         37.87.2205  MENTAL HEALTH SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE (SED) NON-MEDICAID RESPITE CARE SERVICES, LIMITATIONS  (1)  Non-Medicaid Rrespite care services may be provided only on a short-term basis, such as part of a day, weekends, or vacation periods.

         (2)  Non-Medicaid Rrespite care services may not be provided in a youth's place of residence or through placement in another private residence or other related community setting, excluding psychiatric residential treatment facilities facility.

         (3)  Non-Medicaid Rrespite care services are limited to available funding each state fiscal year.

         (a)  Retroactive funds for non-Medicaid respite care services are not available.

         (4)  Youth must meet SED criteria and must also be receiving Medicaid funded mental health services. 

         (5)  Non-Medicaid respite care services shall only be provided to youth who receive Therapeutic Family Care (TFC) services or upon authorization by the department or its designee.

         (6)  For youth who qualify and receive non-Medicaid respite care services, the individualized treatment plan must document non-Medicaid respite care in accordance with ARM 37.106.1916(c).

         (7)  Non-Medicaid respite care services are available to a youth 17 years or age or younger.


AUTH:  53-2-201, 53-6-101, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, MCA


            37.87.2225  MENTAL HEALTH SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE (SED) NON-MEDICAID RESPITE CARE SERVICES, PROVIDER PARTICIPATION  (1)  Licensed and enrolled mental health centers and child placing agencies may provide non-Medicaid respite care services upon approval by the department of enrollment and according to the written provider agreement between the provider and the department and, provided they meet the requirements of this subchapter.

            (2)  Persons delivering non-Medicaid respite care services must be employed by a provider agency.

            (2) (3)  The provisions of ARM 37.85.402 shall apply for purposes of provider enrollment.  Providers must enroll with the department's Medicaid fiscal agent in the same manner and according to the same requirements applicable under the Montana Medicaid program.  The department may accept current Medicaid enrollment for purposes of enrollment, if the provider agrees, in a form acceptable to the department, to be bound by applicable requirements.

            (3) (4)  For purposes of enrollment, providers must be and remain enrolled in the Montana Medicaid program for the same category of service and must meet the same qualifications and requirements that apply to the provider's category of service under the Montana Medicaid program.

            (4) (5)  All providers of mental health services must maintain records which fully demonstrate the extent, nature, and medical necessity of services provided to youth with SED.  These records must be retained for a period of at least six years and three months from the date of service in accordance with ARM 37.85.414.  The provisions of ARM 37.85.414 shall apply for purposes of provider record keeping and retention.

            (5) (6)  The provider of non-Medicaid respite care services must ensure that its employees providing the services are:

            (a)  physically and mentally qualified to provide this service to the youth;

            (b)  aware of emergency assistance systems and crisis plans;

            (c)  knowledgeable of the physical and mental conditions of the youth;

            (d)  knowledgeable of common the safety, risks, and proper administration or supervision of medications and related conditions of the youth requires; and

            (e)  capable of administering basic first aid.


AUTH:  53-2-201, 53-6-101, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, MCA




The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.87.2202, ARM 37.87.2205, and ARM 37.87.2225 pertaining to non-Medicaid respite care services.


These rules guide non-Medicaid respite care services for youth with serious emotional disturbance.  The department proposes to amend the rules in order to stay within current budgetary constraints and to clarify the appropriate delivery of this service. The department also proposes language in order to bring the rules up to date and ensure correct and consistent references therein.


ARM 37.87.2202

The department proposes to add reference to the department's accepted definition of provider and to remove the reference to the definition of youth located in ARM 37.87.102.  While many of the children's mental health programs are available to youth after the age of 17 who are enrolled in secondary education, respite services end when a youth becomes a legal adult.


ARM 37.87.2205

The department proposes to amend ARM 37.87.2205 to add language which specifies that this is non-Medicaid respite, to clarify language, and to add concurrent therapeutic family care (TFC) as an eligibility requirement.  The department's current budget is insufficient to meet the needs of those currently eligible to receive non-Medicaid respite.  If access to those eligible is not limited, the department will have to close access to the program prior to the end of the state fiscal year.  The department reviewed current eligibility requirements to identify the areas of greatest need for non-Medicaid respite.  The department identified those youth currently receiving therapeutic family care as having the greatest need for respite services when compared to youth in less intensive outpatient therapeutic services.  In order to stay within the department's appropriations for non-Medicaid respite while still serving the youth with the highest need, the department proposes to provide non-Medicaid respite services concurrently with therapeutic family care.  This will not affect the eligibility requirements to Medicaid-funded respite services available through the Children's Mental Health Bureau.


ARM 37.87.2225

The proposed amendments to ARM 37.87.2225 will add child placing agencies as an additional provider type.  At this time only licensed mental health centers can provide non-Medicaid respite, however, child placing agencies provide TFC and in order to align the non-Medicaid respite services with TFC, all providers who provide TFC must also have the ability to provide non-Medicaid respite services.  This proposed rule amendment specifies that only employees of provider agencies may provide non-Medicaid respite services at this time.  The department is currently researching opportunities to provide self-directed non-Medicaid respite services; however, it is currently unavailable.  Further proposed amendments include correcting reference to record keeping requirements and updating language pertaining to administration and supervision of medications.


            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 dphhslegal@mt.gov, and must be received no later than 5:00 p.m., August 9, 2012.


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, do not apply.


/s/ John Koch                                               /s/ Anna Whiting Sorrell                            

Rule Reviewer                                             Anna Whiting Sorrell, Director

                                                                      Public Health and Human Services


Certified to the Secretary of State July 2, 2012.



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