BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
TO: All Concerned Persons
1. On December 26, 2012, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment and repeal 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 December 19, 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 email@example.com.
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
37.34.101 PURPOSE OF THE DEVELOPMENTAL DISABILITIES PROGRAM (1) The purpose of the developmental disabilities program is to provide quality community-based services in the least restrictive environment which promotes the principle of normalization for
citizens persons who are developmentally disabled.
AUTH: 53-20-204, MCA
IMP: 53-20-305, MCA
37.34.102 DEFINITIONS For purposes of this chapter, the following definitions apply:
(1) "Abuse" means the infliction of physical or mental injury or the deprivation of food, shelter, clothing or services necessary to maintain the physical or mental health of an older person or a person with a developmental disability without lawful authority, as described in 52-3-803, MCA. A declaration made pursuant to 50-9-103, MCA constitutes lawful authority.
(2) "Accreditation organization" means an organization recognized by rule which establishes and publishes standards relating to the quality of services provided by contractors of services to persons with a developmental disability, analyzes compliance with those standards and accredits contractors based on those standards.
(3) "Accredited program" means a program recognized and accredited, as provided in ARM 37.34.1801, et seq., by either the accreditation council on services for people with disabilities (AC) or by the commission on accreditation of rehabilitation facilities (CARF) for academic and professional preparation program.
(4) "Accreditation report" means a report produced after a survey of a contractor by an accreditation organization which states the extent of the contractor's compliance with the standards of the accreditation organization and presents the determination of the accreditation organization as to whether the contractor is accredited.
(5) through (8) remain the same, but are renumbered (2) through (5).
(9) "Client, individual, or recipient" means a person with a developmental disability who is receiving developmental disabilities services.
(10) through (19) remain the same, but are renumbered (6) through (15).
(20) "Field services specialist" means a person employed by the division in a field-based position to assist corporations in the delivery of services.
(21) and (22) remain the same, but are renumbered (16) and (17).
(23) "Individual plan" means a written plan identifying the supports and services that are necessary to achieve independence, dignity, and personal fulfillment, developed for a person with developmental disabilities by the individual planning team on the basis of a skill assessment and determination of the strengths and needs of the individual.
(24) "Individual planning team" means an interdisciplinary team composed of those persons specified in ARM 37.34.1107 that identifies and evaluates the needs of an individual receiving services, develops an individual plan to meet those needs, periodically reviews the individual's response to the plan and revises the plan accordingly.
(25) "Individual program plan" means the written strategy for meeting an objective of an individual plan.
(26) and (27) remain the same, but are renumbered (18) and (19).
(28) "Life management" means obtaining services, assistance or information necessary for an individual to undertake the everyday tasks of life. Examples of these tasks include making medical appointments, maintaining financial arrangements with government agencies for SSI payments or food stamps, banks for saving or checking accounts, developing a budget, balancing a checkbook, completing income tax forms, paying bills, going to the barber or beauty shop, getting a bicycle repaired, etc.
(29) and (30) remain the same, but are renumbered (20) and (21).
(22) "Plan of care" means a written plan identifying the supports and services that are necessary to achieve independence, dignity, and personal fulfillment, developed for a person with developmental disabilities by the planning team on the basis of a skill assessment and determination of the strengths and needs of the person.
(23) "Planning team" means an interdisciplinary team composed of those persons specified in ARM 37.34.1107 that identifies and evaluates the needs of a person receiving services, develops a plan of care to meet those needs, periodically reviews the person's response to the plan and revises the plan accordingly.
(31) remains the same, but is renumbered (24).
(32) (25) "Positive programming behavior support" means the application of a variety of behavior modification procedures and techniques to change undesirable behaviors, with an emphasis on minimizing the use of punishers and aversive programming.
(33) through (36) remain the same, but are renumbered (26) through (29).
(37) "Survey" means a review of the contractor's services by an accreditation organization for the purposes of determining the extent of compliance with the standards of the accreditation organization and for accrediting the contractor's services.
AUTH: 53-2-201, 53-20-204, MCA
IMP: 53-20-203, 53-20-204, 53-20-205, MCA
37.34.105 EVALUATION SERVICES (1) The division
shall must provide for the evaluation of any person eligible for diagnostic and evaluation services either through services funded by the department or by referral to another agency.
(2) Under ARM 37.34.1101 et seq.,
Within within 30 calendar days of the enrollment of a developmentally disabled person in a provider service program, with the exception of respite and transportation services, the provider shall must perform a comprehensive skill assessment for that person. Each assessment shall must be reviewed annually by the provider. Results of the assessment shall must be provided to the client's person's individual habilitation planning team, including the individual person receiving services.
AUTH: 53-20-203, MCA
IMP: 53-20-203, MCA
37.34.108 CONFIDENTIALITY OF INFORMATION (1) Confidential information, for purposes of this chapter, includes the following information about any
applicant or client person applying for or receiving services through the developmental disabilities program:
(a) through (g) remain the same.
(2) The department and the provider
shall must not disclose confidential information concerning any applicant or client the person except to department staff and providers who assist in eligibility determination, referral, or the provision of services to the applicant or client person.
(3) Information, as specified, may be disclosed upon the written consent of:
applicant or client person if a legally competent adult; or
client's person's parents, if legally responsible for the applicant or client person, or the legal guardian representative of the applicant or client person.
(4) Information may be disclosed if it is in summary, statistical, or any other form which does not identify and cannot be used to identify
any applicant or client the person.
(5) through (7) remain the same.
(8) The provisions of the department's confidentiality policy, except where contrary to a specific provision of this rule, provide the standards for the protection, management and release of confidential information. The department's confidentiality policy, adopted October 1, 1988, and published in the Department of Social and Rehabilitation Services Policy Manual ADM 102 is hereby adopted and incorporated by reference. Copies of the policy may be obtained from the Department of Public Health and Human Services, Office of Legal Affairs, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.
(8) The disclosure of any information related to the person will be governed by requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the requirements of Title 45 Part 160 and 164 of the Code of Federal Regulations (CFR) and all other applicable state and federal laws protecting the person's privacy.
AUTH: 53-20-204, MCA
IMP: 53-20-204, 53-20-205, MCA
CLIENT GRIEVANCE PROCEDURE (1) A provider shall maintain a written grievance procedure by which a client may file a complaint. A current copy of such procedure must be approved by the department. Providers must have a written grievance procedure, approved in writing by the department prior to implementation, for resolution of grievances brought by persons receiving developmental disabilities services.
(2) The procedure must provide for resolution of a grievance within 45 days of receipt of the grievance. Resolution may be extended beyond 45 days only with written approval by the department.
(3) The person must exhaust the provider's grievance procedure before appeal of the matter may be made to the department under the provisions of ARM 37.5.304, 37.5.305, 37.5.307, 37.5.311, 37.5.313, 37.5.316, 37.5.318, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.
(2) (4) Upon entry into a program and at least every 6 months annually thereafter, a client must be advised by the provider must advise the person of the their right to present grievances. The provider shall must assist clients persons, as may be necessary, in utilizing the grievance procedure.
(3) If the outcome of the grievance procedure is adverse to a client, the provider shall notify the person of his or her right to appeal to the department under the department's fair hearing procedure.
AUTH: 53-20-204, MCA
IMP: 53-20-205, MCA
4. The department proposes to repeal the following rules:
37.34.1601 REGIONAL COUNCILS, is found on page 37-7547 of the Administrative Rules of Montana.
AUTH: 53-20-207, MCA
IMP: 53-20-203, MCA
37.34.1701 PREPARATION OF MONTANA DEVELOPMENTAL DISABILITIES STATE PLAN, is found on page 37-7561 of the Administrative Rules of Montana.
AUTH: 53-20-204, MCA
IMP: 53-20-203, 53-20-206, MCA
37.34.1801 ACCREDITATION STANDARDS FOR PROVIDER PROGRAMS OF SERVICES: ADOPTION AND APPLICABILITY, is found on page 37-7581 of the Administrative Rules of Montana.
AUTH: 53-20-204, MCA
IMP: 53-20-203, 53-20-205, MCA
37.34.1802 ACCREDITATION STANDARDS FOR PROVIDER PROGRAMS OF SERVICES: DEPARTMENT ASSISTANCE, is found on page 37-7584 of the Administrative Rules of Montana.
AUTH: 53-20-204, MCA
IMP: 53-20-203, 53-20-205, MCA
5. STATEMENT OF REASONABLE NECESSITY
The Department of Public Health and Human Services (the department) is proposing to amend ARM 37.34.101, 37.34.102, 37.34.105, 37.34.108, and 37.34.109 and to repeal subchapters 16, 17, and 18. The rules in Title 37, chapter 34, subchapters 1, 16, and 17 were enacted in 1979. Subchapter 18 was last amended in 2000. Substantial changes made to the program since then make it necessary for the department to update the current rule language. The proposed amendments are summarized below.
The department is proposing to amend this rule in order to update terminology to make it consistent with the rules in Title 37. It is necessary to amend this rule to provide consistency throughout the developmental disabilities program.
The department is proposing to amend this rule to remove terminology no longer in use in the developmental disabilities program.
The department is proposing to amend this rule in order to update terminology, to make it consistent with the rules in Title 37, chapter 34, and to provide consistency throughout the developmental disabilities program.
The department is proposing to amend this rule in order to update terminology and to make it consistent with the rules in Title 37, chapter 34. It is necessary to amend this rule to provide consistency throughout the developmental disabilities program. The department is also proposing to remove the reference to the department's confidentiality policy, adopted October 1, 1988, and published in the Department of Social and Rehabilitation Services Policy Manual ADM 102. This is necessary because it is obsolete and no longer a valid reference.
The department is proposing to amend this rule to update the requirements for the grievance procedure that providers are required to have. Currently the rule requires notice to the person receiving services every six months. The department believes that annual notice is sufficient. The proposed rule change is also necessary to place a cap on the length of time of the grievance procedure in order to ensure that disputes and issues relating to the person's services do not go unresolved to the extent it becomes a detriment to the person receiving services.
ARM 37.34.1601, 37.34.1701, 37.34.1801, and 37.34.1802
The department is proposing to repeal ARM 37.34.1601, 37.34.1701, 37.34.1801, and 37.34.1802. Since these rules were enacted there have been substantial changes to the program. The councils referenced in ARM 37.34.1601 and 37.34.1701 no longer exist and the accreditation standards in ARM 37.34.1801 and 1802 no longer apply. It is necessary to repeal these rules because substantial changes to the program render these regulations obsolete.
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 firstname.lastname@example.org, and must be received no later than 5:00 p.m., January 3, 2013.
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/ John Koch /s/ Anna Whiting Sorrell
Rule Reviewer Anna Whiting Sorrell, Director
Public Health and Human Services
Certified to the Secretary of State November 26, 2012.