Montana Administrative Register Notice 37-643 No. 10   05/22/2014    
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In the matter of the adoption of New Rules I through IX, the amendment of ARM 37.100.101, 37.100.102, 37.100.120, 37.100.121, 37.100.125, 37.100.130, 37.100.135, 37.100.140, 37.100.141, 37.100.145, 37.100.146, 37.100.150, 37.100.151, 37.100.152, 37.100.153, 37.100.157, 37.100.161, 37.100.162, 37.100.165, 37.100.170, and 37.100.175, and the repeal of ARM 37.100.105 and 37.100.110, pertaining to adult foster care homes (AFCH)















TO: All Concerned Persons


1. On January 16, 2014, the Department of Public Health and Human Services published MAR Notice No. 37-643 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 26 of the 2014 Montana Administrative Register, Issue Number 1.


2.  The department has adopted New Rule I (37.100.136), II (37.100.137), III (37.100.122), IV (37.100.171), VI (37.100.138), VII (37.100.149), VIII (37.100.119), and IX (37.100.139) as proposed.


3. The department has amended ARM 37.100.101, 37.100.102, 37.100.120, 37.100.121, 37.100.125, 37.100.130, 37.100.135, 37.100.140, 37.100.141, 37.100.145, 37.100.146, 37.100.150, 37.100.151, 37.100.152, 37.100.153, 37.100.157, 37.100.161, 37.100.162, 37.100.165, 37.100.170, and 37.100.175 as proposed. The department has repealed ARM 37.100.105 and 37.100.110 as proposed.


4. The department has adopted the following rule as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined.


            NEW RULE V (37.100.172) ADULT FOSTER CARE HOMES (AFCH): PETS  (1) remains as proposed.

            (2) When animals are kept at the AFCH, the following conditions must be met:

            (a) through (c) remain as proposed.

            (d) live animals and fowl are prohibited from food preparation, food storage, and eating areas pets may not be permitted in food preparation, storage, or dining areas during meal preparation time or during meal service or in an area where their presence would create a significant health or safety risk to others; and

            (e) caregivers and residents must wash their hands after handling animals, animal food, and animal waste.

            (3) and (4) remain as proposed.


AUTH: 50-5-103, 50-5-215, MCA

IMP:     50-5-103, 50-5-215, MCA


5. 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 commenter requested the comment period be extended for an additional 30 days because the commenter only recently received her postcard notice from the department and because the commenter had difficulty assessing the proposed rule changed on the department's web site. The commenter is concerned AFCH providers may not have an adequate amount of time to access the proposed rules, consider them and provide comment on them, particularly, as the proposed rule changes are significant.


Response #1: The department thanks the commenter for the positive comment about the rules being strengthened but disagrees with extending the comment period. The department provided appropriate notice to interested parties list and allowed 28 days from the day of publication to make written comment.


Comment #2: A commenter is requesting New Rule III be rewritten to accommodate licensing concerns and to allow AFCH providers more flexibility in handling their AFCH business. The commenter believes the proposed language is too restrictive and would be interpreted to the prejudice of AFCH providers.


Response #2: Under 50-5-201, MCA, a health care facility license is only valid for the person and premises for which it was issued. Further, this statute indicates that a license may not be "...sold, assigned or transferred." Individuals may purchase a home that has housed a licensed adult foster care facility; however, if the person purchasing the structure wishes to provide a licensed service in that structure, that individual must apply and complete the process for a license. The statute applies to all health care facilities including AFCHs.


Comment #3: Three comments were made with regard to New Rule V. The commenters believe the proposed rule exceeds the threshold of minimum standards, as adult foster care homes are intended to be home-like environments. Pets are part of the home-like environment. The rule should be written to be less prescriptive in nature with the same tone as found in other sections for the rule. The commenters are concerned domestic animals such as cats and dogs are not allowed in the kitchen area or eating area and providers must wash hands after handling pets.


Response #3: The department agrees that the adult foster care home is intended to be a home-like environment; however, the department has the responsibility to publish rules for the overall health and safety of residents within this home-like environment. As a licensed residential care facility, adult foster care homes have to meet certain health and safety standards within the precept of establishing the home-like environment. As such, certain privileges enjoyed by individuals residing in their private home must be viewed differently when individuals are residing in a licensed facility and receiving services within that licensed facility. The threshold between what can be done in a private home and a licensed setting are different.


With that being said, the department disagrees with the commenter's statement that the threshold concerning New Rule V exceeds the minimum standards. While pets can be a significant source of comfort and are known to have a therapeutic effect for some residents, animals, including pets, can also be a source of illness for people. New Rule V is necessary to establish criteria to ensure that pets will be free and clear of health hazards and not present a danger to visitors, or to those who reside or work in the AFCH.


The department does understand that the restrictions listed in (2)(d) and (e) can be problematic within the home-like environment; therefore, the department has revised the rule. The revised language, and the expectations contained within it, is consistent with the language used in other residential care facilities' rules concerning pets.


Comment #4: A commenter is concerned that New Rule IX does not have exemptions for special circumstances that arise from time to time that may need to be resolved sooner than 30 days. The commenter requests that language be added to the proposed rule that addresses deliberate nonpayment of room and board and special circumstances that is documented with the treatment team or the equivalent.


Response #4: The department disagrees as the rule provides clear expectations for discharge of residents on a voluntary or involuntary basis. Providing a 30-day notice prior to discharge or transfer of residents is reasonable and allows time for resident or guardian to make other arrangements. An exception to the 30-day notice requirement is provided if the resident exhibits behavior that poses an immediate danger to self or others or has a medical emergency that requires care the AFCH provider is unable to provide. Nonpayment issues can simply be addressed by providing a 30-day notice and indicating the reason for discharge is due to nonpayment.


Comment #5: A commenter requests the word "support" in New Rule VII be defined. The commenter is concerned that the level of support and supervision that may evolve and that at some point there may be conflict with Montana independent contractor laws.


Response #5: The department disagrees. Proposed New Rule VII does not include the term "support." The comment regarding Montana independent contractor laws is beyond the scope of this rule.


Comment #6: A comment was made regarding the temperature requirements set forth in the proposed rules, hoped the intent was to only set upper and lower limits and did not mandate that the temperatures be set at the upper and lower limits.


Response #6: The department agrees. The intent of the rule is to set upper and lower limits to the temperature of the home. The rule states the temperature must be between specific ranges for day and night. The rule does not require temperatures be set at the upper or lower limit.


Comment #7: A commenter requests proposed New Rule I provide for an exception for nonambulatory adults if the adult is either independent with transfers, or needs minimal assistance of one person to transfer to and from a wheelchair, and if the home meets ADA regulations. Commenter states veterans may need placement whose primary mode of mobility will be a wheelchair.


Response #7: The department's authority to license and regulate adult foster care homes is found at 50-5-215, MCA. Adult foster care homes are intended to provide light personal care or custodial care to disabled adults or aged persons. The exception granted to adults placed by the developmental disabilities program or an adult that resided in the home before reaching the age of 18 is granted in 50-5-216, MCA, in order to provide continuity of care. To make this exception applicable to persons who do not meet the specific criteria is beyond the authority of the department and is beyond the scope of this rule. Any such change would have to be introduced through the legislative process.


Comment #8: A commenter requests regulations include a statement that the care of a bedridden adult can be managed in the adult foster home if that adult is receiving hospice care and if that adult was placed in the home prior to becoming bedridden.


Response #8The department agrees that a current resident that has entered the final stages of life should be able to remain in adult foster care; and this position is supported in ARM 37.100.157.


Comment #9: A commenter states that the authority for this rule only applies to developmentally disabled (DD) adults, not adults with mental illness. The commenter further believes the rules should reference Title 53, MCA, and believes that such references have been deleted. Last, the commenter states that adult mental health foster homes should be subject to similar or same rules governing adult DD foster homes.


Response #9: The department disagrees. The definition found at 50-5-101, MCA, states that adult foster care homes can provide services to "disabled adults and aged persons." Further, ARM 37.86.3503 essentially defines persons with a severe mental illness as disabled. Therefore, it is the department's interpretation that adult foster care homes can provide services to those adult individuals who are afflicted with mental illness.


53-5-3, MCA, was renumbered to 53-3-3, MCA. This statute has been repealed and the revised rule reflects this change. Adult foster care homes serving individuals with mental illness or developmental disabilities are subject to the same licensing requirements as outlined in this rule.


Comment #10: A commenter stated that adult foster care homes for persons with mental illness prefer to be called "recovery homes" and the rule should be changed to reflect this.


Response #10: The department disagrees as all homes are licensed as an adult foster care home per definition in statute.


Comment #11: A commenter said the rule changes impact adult foster care home providers serving individuals with mental illness. The commenter would like the department to make sure the mental health center contracting with independent contractors do not cross threshold. The commenter is concerned the proposed new rule regarding placement agreements may be in conflict with the mental health center's placement agreement.


Response #11:  Licensed mental health centers are not adult foster care home providers; even though some licensed centers have adult foster care endorsements, they are not bound by the same set of requirements as the individuals who provide licensed adult foster care services. The rules governing mental health centers are quite different and the department's oversight with respect to the centers must follow the rules governing their licensure. The issue raised by the commenter is one of a contractual issue between the provider and the mental health center and is not covered within the context of the rules governing the operation of the mental health center. This comment is beyond the scope of this rule.


Comment #12: A commenter states the proposed new rule change regarding the time given to report incidents to 24 hours, gives providers too little time to report incidents. The commenter is unable to report an incident via e-mail and states she must mail the incident report.


Response #12: The department has rewritten the rule so that all serious incidents are reported; the rule redefines what a serious incident is and no longer limits them to accidents and incidents that require medical attention. The department believes that notification within 24 hours must be required to increase safeguards to the resident and ensure adequate care has been provided. Serious incident reports can be faxed or hand delivered if e-mail is not an option. 


Comment #13: The commenter would like the department to define "transportation."


Response #13: The department considers that what is provided in the rule is sufficient.



/s/ Susan Callaghan                                               /s/ Richard H. Opper                                   

Susan Callaghan                                                   Richard H. Opper, Director

Rule Reviewer                                                       Public Health and Human Services


Certified to the Secretary of State May 12, 2014


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