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| Montana Administrative Register Notice 37-652 | No. 2 01/30/2014 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On October 31, 2013, the Department of Public Health and Human Services published MAR Notice No. 37-652 pertaining to the public hearing on the proposed adoption and amendment of the above-stated rules at page 1906 of the 2013 Montana Administrative Register, Issue Number 20.
2. The department has adopted New Rule I (37.34.989), as proposed.
3. The department has amended ARM 37.34.901, 37.34.902, 37.34.906, 37.34.913, 37.34.917, 37.34.918, 37.34.919, 37.34.925, 37.34.926, 37.34.929, 37.34.930, 37.34.933, 37.34.934, 37.34.937, 37.34.938, 37.34.941, 37.34.942, 37.34.946, 37.34.950, 37.34.951, 37.34.954, 37.34.955, 37.34.956, 37.34.957, 37.34.960, 37.34.961, 37.34.962, 37.34.963, 37.34.967, 37.34.968, 37.34.971, 37.34.972, 37.34.973, 37.34.974, 37.34.978, 37.34.979, 37.34.980, 37.34.981, 37.34.985, 37.34.986, 37.34.987, and 37.34.988 as proposed.
4. 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 (37.34.908) 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SELF-DIRECTED SERVICES, DEFINITIONS (1) "Agency with choice model" means an agency that is the legal entity (a) compiles records necessary for the reporting and payment of wages and benefits for the person's staff; (b) calculates, withholds, and pays federal and state taxes; (c) calculates and pays wages; and (d) undertakes all other legally necessary activities. (2) and (3) remain as proposed.
NEW RULE III (37.34.909) 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SELF-DIRECTED SERVICES, REQUIREMENTS (1) remains as proposed. (2) In order to elect (a) through (4) remain as proposed.
5. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
37.34.907 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SELECTION AND ENTRY (1) and (2) remain as proposed. (3) The selection for consideration of persons with the same waiting list date will be made through a random selection process by the department. (4) through (14) remain as proposed.
37.34.911 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: AVAILABLE SERVICES (1) The following services may be provided under the Medicaid Home and Community-based Services Program: (a) through (w) remain as proposed. (x) remote monitoring (y) through (3) remain as proposed.
37.34.912 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: PROVIDER REQUIREMENTS (1) through (4) remain as proposed. (5) A provider must document the completion of training in the personnel file of the staff or in the provider's staff training file including: (a) through (7) remain as proposed.
37.34.947 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: JOB DISCOVERY (1) through (4) remain as proposed. (5)
6. 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 few commenters expressed concern regarding the online CPR/first aid requirements. One commenter stated it will have a fiscal impact of approximately $7,000.00 per year as well as increased liability. The commenters stated that having a little knowledge of CPR and first aid is more dangerous than having no knowledge. The commenters suggest the requirement be amended to require enrollment within 30 days of hire and full certification within 120 days.
RESPONSE #1: Upon consideration of the comments, the department agrees to amend the requirement to 120 days for full CPR certification. However, in congregate settings, there must be at least one staff person on every shift who is fully CPR-certified.
COMMENT #2: A few commenters stated that requiring 20 hours per year of additional training is cost prohibitive and arbitrary. One commenter also stated that it should be left to the discretion of the provider to determine staff training requirements because depending on staff duties and the persons served, they may need more or less training.
RESPONSE #2: The department thinks it is important for a staff person working with the person receiving service to receive equitable annual training regardless of the full time equivalent (FTE) of the staff person. However, the department considered the comments and researched national standards and determined that in order to make annual training more equitable, while still maintaining quality standard of care, the annual training requirement for staff regardless of the FTE will be lowered to 12 hours annually.
COMMENT #3: One commenter requested the department reconsider the requirement to keep training agendas in each staff's personnel file. The commenter stated that current practice based on this provider's policy is to keep training documentation and agendas in a separate training file for all staff.
RESPONSE #3: The department agrees to amend the language to allow for documentation to be maintained in a training file maintained by the provider.
COMMENT #4: Several commenters stated that the children's waiver rules were written by someone who doesn't know children's waiver services. They state that the developmental disabilities program (DDP) does not back children's waiver providers and the rules have been very outdated. They asked how it was possible that DDP did not know the requirements for screening when the waiver application was submitted to the Center for Medicare and Medicaid (CMS). The commenters also asked why the rules were not a topic of discussion at the town hall meetings that were currently held.
RESPONSE #4: The department disagrees with the commenter. The department has written the rules to afford equal opportunity for all providers, regardless of the population they choose to serve. The department agrees that the rules have been very outdated and has been making substantial progress towards updating all of developmental disabilities program rules. The requirements for screening have been in the approved waiver since at least 2003; therefore, DDP did not know that CMS would choose to implement a change in the screening requirements. The town hall meetings were steered by Rocky Mountain Development Council and as such it was not the appropriate venue for DDP-directed rules discussion. The DDP came as a guest to the town hall meetings with the intention to gather input shared by providers.
COMMENT #5: One commenter stated that after 38 years of providing services the commenter cannot understand the proposed rules and believes there isn't enough time to review the rules.
RESPONSE #5: This MAR notice was published on October 31, 2013, and the end of the comment period was November 29, 2013. Per 2-4-302, MCA, and ARM 1.3.307, the department allowed the required 28-day timeframe for public comment. The department cannot respond to the commenter's confusion regarding the proposed rules without specific information as to what the commenter does not understand.
COMMENT #6: One commenter stated that in New Rule I (37.34.989), the requirements for targeted case management do not meet the needs for children's providers, the tools needed for children's case management differ, and are not focused on children. The commenter also stated that targeted case management requirements do not provide the right skills or knowledge for children. The commenter also stated that there is no direct delivery of family intervention which is the current practice in waiver funded children's case management.
RESPONSE #6: All case managers are required to have a 4-year degree and experience or various combinations thereof. The rule establishes the minimum requirements. If there are requirements that the provider believes are pertinent for the staff, the provider may choose to implement specific requirements the provider determines instrumental for the population they serve. The function of family intervention has never been an approved function in waiver funded children's case management and should be provided under another appropriate service category.
COMMENT #7: One commenter stated the rules are poorly written and make no sense, that DDP changes day in and day out and requests the rules be discarded and meet with children's waiver service providers.
RESPONSE #7: The department will proceed with this rulemaking process. The department met with children's waiver service providers on December 2, 2013 per the request of the providers.
COMMENT #8: One commenter requested that waiver funded children's case management and caregiver training and support be combined into one service. The commenter stated that by separating the function, two people have to go into the home and this does not help the family in the right direction.
RESPONSE #8: CMS required the department to unbundle waiver funded children's case management and caregiver training and support into two discrete services. One person may still provide both services to the family if the family chooses that, so long as that person meets the requirements necessary for both services.
COMMENT #9: One commenter stated that the commenter recognizes the need for rules based upon the waiver but the commenter thinks there are unfunded mandates in the proposed rules. The commenter requested a meeting with the department administrators to discuss the requirements.
RESPONSE #9: The department met with the providers on December 2, 2013 in response to this request.
COMMENT #10: One commenter questioned the department's adherence to the administrative rule process stating that the department failed to provide adequate notice as to the changes in the rule as well as insufficient rationale. The commenter stated that this is especially true regarding the training requirements and other requirements included on the matrix.
RESPONSE #10: This MAR notice was published on October 31, 2013; the end of the comment period was November 29, 2013. Per 2-4-302, MCA, and ARM 1.3.307, the department allowed the required 28-day timeframe for public comment. If the commenter has specific questions regarding the statement of reasonable necessity, the department will respond accordingly.
COMMENT #11: One commenter stated that the definition of agency with choice in New Rule II (37.34.908) does not reflect the shared responsibility and authority of the person receiving the service in hiring and managing employees and is inconsistent with the generally accepted definition of agency with choice.
RESPONSE #11: The department will amend the definition to better define agency with choice.
COMMENT #12: One commenter questioned the use of the term "legal representative" as it pertains to self-directed services stating that those persons self-directing services should be able to appoint a "personal representative" without going through the legal process to appoint one.
RESPONSE #12: The department disagrees with this comment. A representative is a person who has been empowered with the authority to act on behalf of someone else to protect the interest of the person and as such, it is important to have a way in which to address concerns if they arise if the person with that authority fails to protect the best interest of the person they represent.
COMMENT #13: One commenter stated that (2) of New Rule III (37.34.909) needs to be applicable for both the agency with choice and employer authority using a financial management service option.
RESPONSE #13: The department agrees with this comment and will amend the language to reflect that (2) of New Rule III (37.34.909) applies to both self-directed options.
COMMENT #14: One commenter stated that the use of "delivery approach" in ARM 37.34.901(2)(e) is unclear and would like clarification from the department, or alternatively, would like it removed from the rule.
RESPONSE #14: In order to clarify the term "delivery approach," in the technical guide entitled, "Application for a §1915(c) Home and Community-Based Waiver, Version 3.5," the Centers for Medicare and Medicaid Services (CMS) state that states have the latitude to: (a) determine target groups of Medicaid beneficiaries; (b) specify the services that are furnished; (c) incorporate opportunities for participants to direct and manage their services; (d) determine the qualifications of waiver providers; (e) design strategies to assure the health and welfare of a person receiving services; (f) manage the waiver to promote cost-effective delivery of services; (g) line the delivery of waiver services to other programs; and (h) develop and implement quality improvement strategies.
COMMENT #15: One commenter stated that in ARM 37.34.907(5) through (9), the timeframes for which a person has to meet with prospective providers does not allow enough time for the opportunity to do so to take place.
RESPONSE #15: A person who is selected to enter into waiver services is frequently in need of services in a timely manner. The department established the timeframes found in ARM 37.34.907(5) through (9) in order to ensure the process was completed in a timely manner.
COMMENT #16: One commenter noted that in ARM 37.34.907(10) and (11) the priorities for life-threatening physical condition and emergency criteria do not appear to include a person who may potentially critically harm another person or a member of the general public.
RESPONSE #16: The commenter is correct. The purpose of criteria established for priority placement is to provide services to a person who, without services, may cease to exist.
COMMENT #17: One person commented that placement from an Intermediate Care Facility for Individuals with an Intellectual Disability (ICF/IID) is not subject to the selection and entry procedures. The commenter would like clarification.
RESPONSE #17: The commenter is correct. A person exiting ICF/IID is not subject to the selection and entry procedures described in the 0208 waiver. There are 30 waiver slots reserved and funding set aside for that population. The process and procedures in which that takes place for that population are not applicable to the 0208 waiver and therefore are outside of the scope of this rulemaking.
COMMENT #18: One commenter asked for clarification regarding the 1-to-1 staff ratio required in Job Discovery in ARM 37.34.947 and if this is also a requirement for agency-based services.
RESPONSE #18: The department will amend the rule language to state that Job Discovery as a service must be provided with a 1-to-1 staff ratio, regardless of the provider type.
/s/ Cary B. Lund /s/ Richard H. Opper Cary B. Lund Richard H. Opper, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State January 21, 2014
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