BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
In the matter of the adoption of New Rules I through XIV and repeal of ARM 37.40.1101, 37.40.1102, 37.40.1105, 37.40.1106, 37.40.1301, 37.40.1302, 37.40.1303, 37.40.1305, 37.40.1306, 37.40.1307, 37.40.1308, and 37.40.1315 pertaining to the establishment of regulations for the personal assistance services program
NOTICE OF ADOPTION AND REPEAL
TO: All Concerned Persons
1. On October 23, 2014, the Department of Public Health and Human Services published MAR Notice No. 37-694 pertaining to the public hearing on the proposed adoption and repeal of the above-stated rules at page 2552 of the 2014 Montana Administrative Register, Issue Number 20.
2. The department has adopted New Rule III (37.40.1114), IV (37.40.1115) V (37.40.1116), VI (37.40.1117), VIII (37.40.1122), IX (37.40.1125), X (37.40.1126), XI (37.40.1127), XII (37.40.1131), XIII (37.40.1132), and XIV (37.40.1135), as proposed.
3. The department has repealed ARM 37.40.1101, 37.40.1102, 37.40.1105, 37.40.1106, 37.40.1301, 37.40.1302, 37.40.1303, 37.40.1305, 37.40.1306, 37.40.1307, 37.40.1308, and 37.40.1315 as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 I (37.40.1110) AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: DEFINITIONS (1) through (6) remain as proposed.
(7) "Functional assessment" means an assessment that is performed by the designated quality improvement organization licensed nurse to determine if the member qualifies for PAS and requires assistance with activities of daily living, instrumental activities of daily living, and
health-related tasks health maintenance activities.
(8) through (13) remain as proposed.
(14) "Personal Assistance Services" (PAS) means the delivery of medically necessary in-home and community-based services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living and instrumental activities of daily living. A member must have a medical need for hands-on assistance in order to receive PAS.
(15) through (22) remain as proposed.
(23) "Self-directed services" means a service delivery option for PAS. In this option the member, or a personal representative, takes responsibility of managing the PAS. Under the self-directed option, the member or personal representative must hire, fire, supervise, and manage the personal care attendants. In this service option personal care attendants are employed by the provider agency.
(24) through (26) remain as proposed.
AUTH: 53-2-201, 53-6-101, MCA
IMP: 53-2-201, 53-6-113, MCA
NEW RULE II (37.40.1111) AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: ELIGIBILITY, SERVICES PROVIDED, AND LIMITATIONS (1) through (10) remain as proposed.
(11) In addition to the PAS provided through these rules, a member may receive PAS through the Medicaid Home and Community-Based Services Program for elderly and physically disabled persons, persons with severe and disabling mental illness, or persons with developmental disabilities.
(12) and (13) remain as proposed, but are renumbered (11) and (12).
AUTH: 53-2-201, 53-6-101, MCA
IMP: 53-2-201, 53-6-113, MCA
NEW RULE VII (37.40.1121) AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: TERMINATION OF SERVICES (1) and (2) remain as proposed.
(3) The provider must give at least ten days advance notice to a member when PAS are terminated for reasons listed in (1)
(d)(f) through (1)(j).
(4) The provider may immediately, but temporarily, suspend services for the reasons listed in (1)(a) through (1)
(c)(e). Following the temporary suspension of services the provider may enter into an agreement with the member to ensure that the violations of (1)(a) through (1) (c)(e) do not reoccur. If the member fails to abide by the terms of the agreement, services may be permanently terminated.
(5) and (6) remain as proposed.
AUTH: 53-2-201, 53-6-101, MCA
IMP: 53-2-201, 53-6-113, 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: One commenter had previously commented on the Community First Choice (CFC) rule and suggested changing the definition of "functional assessment" in New Rule I(7) to use the phrase "health maintenance activity," rather than, "health-related task" to describe this service.
RESPONSE #1: The department agreed with this comment and has amended the CFC rule to read "health maintenance activities" rather than health-related tasks. Since the definitions in the CFC Services rule and Personal Assistance Services (PAS) rule are intended to be consistent across both programs the department has made an identical change in the personal assistance services rule.
COMMENT #2: A couple of commenters were concerned that the language of "in-home services" in New Rule I(14) was restrictive for purposes of the PAS definition since some of the PAS are delivered outside of the home. A couple of commenters were also concerned that the definition was limited to medically necessary activities of daily living, and failed to take into consideration services available outside the home to enable members to participate in community activities.
RESPONSE #2: The department's intent is that these services are delivered where the member needs them in accordance with the approved person-centered plan and they are inclusive of both activities of daily living and instrumental activities of daily living. We have made a change in the rule language to read "Personal Assistance Services" (PAS) means the delivery of medically necessary in home and community-based services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living and instrumental activities of daily living."
COMMENT #3: A couple commenters suggested that the service definition of the PAS program in New Rule I(15) be broadened to no longer be based on the "medically necessary in-home criteria."
RESPONSE #3: The service definition includes the provision services to individuals "in their homes or communities rather than institutional settings." The department recognizes the need for service delivery outside of the home setting. The criteria for services to be medically necessary, which means there is a hands-on need for the service, is a requirement of the PAS state plan and enables the department to provide services to the people who need the service most in a cost-effective manner.
COMMENT #4: A few commenters suggested that the department use the term "personal assistant" in New Rule I(16) rather than "personal care attendant."
RESPONSE #4: The department collaborated with a work group to decide on terminology that was consumer-focused and would resonate with the service recipients. Personal care attendant was the term the group advised the department to use. It is also a widely accepted and utilized term in the home-based service delivery arena.
COMMENT #5: One commenter had previously commented on the CFC rule and suggested that a statement in New Rule I(23), about a personal care assistant being an employee of the provider agency, should be added to the service definition.
RESPONSE #5: The department agreed with the comment and amended the CFC rule to include the recommended statement. Since the definitions in the CFC services rule and PAS rule are intended to be consistent across both programs, the department has made an identical change in the PAS rule at New Rule I(23).
COMMENT #6: A couple commenters suggested that the service section in New Rule II(5) should include the provision of activities of daily living (ADL) outside the home.
RESPONSE #6: New Rule II(5) provides for the delivery of ADL tasks in association with specified IADL services outside the home. These services include shopping and medical escort. The authorization and delivery of these services are based on the assessment that there is a need for ADL assistance while the member participates in the instrumental activity of daily living service. The provision of ADL activities when a member is not participating in shopping medical escort must be provided in the member's home.
COMMENT #7: Multiple comments were received related to concerns with the language in New Rule II(7)(c) that stated PAS services would not be available if a member lives in a home which is not safely accessible by normal modes of transportation. They were concerned this would limit access to service for members who live in remote areas of our state. A few commenters also questioned how "safely accessible" would be defined.
RESPONSE #7: The department believes there is merit in maintaining this language because there are situations where it is impossible for the required department staff, contract staff, provider agency staff, and personal care attendants to reach a member to assess, authorize, or deliver services. In these situations it may not be possible to provide PAS services to a member. The department, provider, and contract agencies are very cognizant of the rural nature of the state and are creative when trying to provide services in remote areas. The determination whether a home is accessible will be made on a case-by-case basis, based on the facts of each specific situation.
COMMENT #8: One commenter suggested a change of language in New Rule II(9)(d) from "certified" to "trained" regarding the use of services for the maintenance of animals.
RESPONSE #8: The department requires that a service animal be certified in order to qualify for assistance. The suggestion for an animal to be "specifically trained to meet the needs of the member" is too broad to meet the criteria for this service category. The waiver program has a certification program for service animals and the personal assistance service is intended to allow a personal care attendant to maintain service animals for members who receive a service animal that has gone through the waiver certification process or a similar type of certification.
COMMENT #9: One commenter had previously provided a comment to the CFC rule about New Rule II(11) and suggested that the rule be expanded to include children on waivers.
RESPONSE #9: Since the definitions in the CFC Services rule and PAS rule are intended to be consistent across both programs the department has made an identical change in the PAS rule to remove the language in New Rule II(11). Waivers provide expanded state plan services and the scope and type of services provided in each waiver are defined in each waiver's administrative rules and as such we do not need to state that in these rules.
COMMENT #10: Regarding New Rule III(9), one commenter suggested that an agency be required to give consumers their written complaint process at the time of intake, not only upon request.
RESPONSE #10: The department believes it is important to provide members with adequate information about the requirement of complaint processes for Medicaid provider agencies. The PAS person-centered planning process includes information about the requirement that every agency have a grievance procedure. This information is provided in the "Grievance Procedures" section of the "Community First Choice and Personal Assistance Services Handbook" that is provided to every member prior to enrolling in the program. The department believes this approach empowers the member to be informed and educated in gathering information that will be useful in the person-centered planning process. In addition, the standard practice is for PAS provider agencies to distribute a grievance policy at the time of intake.
COMMENT #11: Regarding New Rule V(3), one commenter was concerned that the rule implied a member who qualifies for health maintenance activities would not have a choice to receive those services in another service arena.
RESPONSE #11: Mountain Pacific Quality Health will only authorize a service based on a member's identified need for the service and the member's desire to receive the service through the self-directed program. If a member would like to receive health maintenance activities in another service arena, they can communicate this to Mountain Pacific Quality Health and receive the service; however, these services will no longer be authorized under their PAS plan.
COMMENT #12: Regarding New Rule VII(1)(g), one commenter asked if a member could be terminated from the program under this rule if she does not want a member of the opposite sex doing her bathing, etc.
RESPONSE #12: If a member does not want someone of the opposite sex to perform certain tasks the member would indicate this preference in the person-centered planning process and the agency would be expected to comply with this request. However, if the member discriminates solely or partly on the attendant's race, creed, religion, sex, marital status, color, age, handicap, or national origin, they may be subject to termination from the program.
COMMENT #13: Regarding New Rule VII(2), one commenter stated that termination of the PAS program or reduction of available services should require legislative action.
RESPONSE #13: Termination or reduction of PAS services may occur when funding is unavailable. Legislative action is one reason this may occur; but it is not the only reason. The department is given broad authority to make these decisions when necessary without Legislative approval in order to manage Medicaid programs.
COMMENT #14: Several commenters suggested additions or clarifications to New Rule VII(3) and (4). One requested that termination rights be granted when a member doesn't maintain Medicaid eligibility. Another commenter requested that illegal activity in the home and falsification of service delivery records be considered for immediate termination.
RESPONSE #14: The department has clarified New Rule VII(3) to incorporate the reasons for ten-day advanced notice to a member when PAS are terminated for reasons listed in New Rule VII(1)(f) through (1)(j) of this rule section, and has clarified New Rule VII(4) to incorporate the reason that a provider may immediately, but temporarily, suspend services for the reasons listed in New Rule VII(1)(a) through (1)(e) which includes the member is engaging in illegal activity in the home. We will not change the falsification of service delivery records New Rule VII(1)(j) recommendation for immediate termination.
COMMENT #15: Several comments were received regarding opposing New Rule XI(7). The comments included that the information received could be construed as a Health Insurance Portability and Accountability Act (HIPAA) breach, there was concern about disclosure of the information received and the feeling that it was an unnecessary violation of personal privacy, concern that the rule is not voluntary, concern that the rule may detract individuals from choosing to become a personal assistant, increased administrative burden for provider agencies, and the department should not single out self-direct providers. Some commenters were also concerned that the statement of reasonable necessity regarding the department's involvement in reporting and training of the workforce was contrary to the philosophy of the self-directed program.
RESPONSE #15: The information required for quarterly reports of workers that deliver self-directed services does not include protected health information; therefore, it is not considered a HIPAA breach of information. The PAS program is funded with Medicaid dollars and the need to gather information regarding the delivery of services and the accountability and sustainability of services is appropriate and necessary in order to manage this joint state and federal program. The information required will be used to evaluate this work force for quality, stability, and sustainability. The department may create a voluntary online directory that could assist a member in choosing a personal assistant.
The department will work with self-direct provider agencies to create a streamlined process for providing the information required with quarterly reports to have the least amount of administrative burden possible. The department will also work with provider agencies and consumers, within the framework of the self-directed model, to make decisions on identifying and responding to workforce training needs that may be identified through the reports.
Finally, the department recognizes the differences in the expectations of the agency-based and self-directed options of the PAS program and has determined that the self-direct option would benefit from having the information from quarterly reports and a voluntary online directory. Based on the results of the quarterly reporting for self-directed programs, the department may make a decision in the future that this reporting requirement would be beneficial for agency-based programs and may adopt rules to expand the reporting requirement to agency-based providers.
6. The department intends to apply these rule adoptions and repeals retroactively to July 1, 2014. A retroactive application of the proposed rule adoptions does not result in a negative impact to any affected party.
/s/ Valerie Bashor /s/ Richard H. Opper
Valerie Bashor, Attorney Richard H. Opper, Director
Rule Reviewer Public Health and Human Services
Certified to the Secretary of State December 15, 2014