Montana Administrative Register Notice 37-606 No. 24   12/20/2012    
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In the matter of the adoption of New Rules I through IV pertaining to discontinuation of services






TO:  All Concerned Persons


1.  On October 11, 2012, the Department of Public Health and Human Services published MAR Notice No. 37-606 pertaining to the public hearing on the proposed adoption of the above-stated rules at page 1978 of the 2012 Montana Administrative Register, Issue Number 19.


2.   The department has adopted New Rule I (37.34.2001) and IV (37.34.2007) 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 II (37.34.2003) DISCONTINUATION OF SERVICES:  PROVIDER INITIATED  (1) through (4) remain as proposed.

            (5)  The purpose of the meeting is to review the basis for the notice and determine if a change in the configuration of the current services or additional supports may assist the person to remain in or return to services with the current provider and, if so, identify those services or supports.  The If the planning team determines if additional services or supports may assist the person to remain with the current provider, the planning team must develop a supplemental plan of care which identifies the actions to implement the determination for the person's services.

            (6) through (8) remain as proposed.

            (9)  If it is determined that it is appropriate and an alternative placement has not been located within 90 days, the discontinuation of services process must be extended for a second 90 days to allow additional time to pursue an alternative placement.  The regional manager or the regional manager's designee, the members of the person's plan of care team, the provider, and a designee from the state facility, if applicable, must reconvene to review the actions taken to locate an alternative provider and to identify the mechanisms needed to continue to pursue an alternative provider.  If at the end of the second 90 days an alternative provider has not been located, the discontinuation of services process may proceed.

            (10) remains as proposed, but is renumbered (9).


AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-205, MCA


            NEW RULE III (37.34.2005) DISCONTINUATION OF SERVICES:  PART C AND FAMILY EDUCATION AND SUPPORT  (1)  Each contractor providing Part C services or family education and support (FES) must have a written policy covering discontinuation of Part C or FES services.

            (2)  Prior to providing Part C or FES services to a family, the contractor will have each family read the discontinuation of services policy referenced in (1), or will read the policy to the family, and have the family acknowledge receipt of the discontinuation criteria by their signature.

            (3)  The contractor must have documentation in each family's file that confirms the following:

            (a) remains as proposed.

            (b)  for Part C, notification provided to the family of the pending discontinuation of services in accordance with the requirements of CFR Section 303.421; and

(c) through (4)(g) remain as proposed.


AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-205, 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:  One commenter suggested adding family education and support to New Rule III (37.34.2005).  The commenter stated that DDP forgot to address discontinuation of services for family education and support since it is their understanding New Rule II (37.34.2003) only applies to those enrolled in the Medicaid Waiver Program.


RESPONSE #1:  The department agrees with the comment and will add Family Education and Support to New Rule III to address this concern.


COMMENT #2:  One commenter requested that New Rule II (37.34.2003)(3)(a)) have a requirement to describe the issues the provider contends to be occurring in measurable terms.


RESPONSE #2:  The department reviewed the proposed requirement and determined that not every issue that arises is measurable and that describing the issue is sufficient.  The department will not make the requested change.


COMMENT #3:  A commenter stated that in the second sentence of New Rule II (37.34.2003)(5)) the word "if" should be removed and placed in front of the sentence.  The commenter states this will clarify the rule.


RESPONSE #3:  The department agrees with the comment and will make this change.


COMMENT #4:  A commenter recommended the department substitute the word "required" in New Rule II (37.34.2003)(8)) with "desired" stated it provides a more accurate description.


RESPONSE #4:  The department does not agree with this recommendation.  In the event the planning team determines an alternative provider is necessary based on New Rule II(5), an alternative provider is, in fact, required.


COMMENT #5:  One commenter stated that in New Rule II (37.34.2003)(9)), the department should replace the word "it" with "an alternative provider".  The commenter states this change will clarify the rule.


RESPONSE #5:  The department agrees with the comment and will make changes to the rule language to specify that it is an alternative provider.


COMMENT #6:  One commenter expressed that the additional 90-day requirement in New Rule II (37.34.2003)(9)) obligating the provider to continue the assume liability and risk for a failed placement is unreasonable.  The commenter stated that it seems that if the person's health and safety cannot be managed by the provider it would be in the best interest of the person, the state, and the provider to find an alternative placement as soon as possible.


RESPONSE #6:  The department agrees with the commenter that once it is established that a person's health and safety cannot be managed by the provider, it is in the best interest of all parties to find an alternative placement as soon as possible.  However, it is important to undertake any change in circumstances in a deliberative, well-planned manner, so as to assure the success of the person's move and limit the risk of harm to the person and others.  The department has reevaluated this matter and believes that 90 days is adequate to obtain an alternative placement.  The department has removed the additional 90-day requirement in New Rule II (37.34.2003(9)).




/s/ Cary B. Lund                                             /s/ Mary E. Dalton acting for            

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services


Certified to the Secretary of State December 10, 2012


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