Montana Administrative Register Notice 37-730 No. 20   10/29/2015    
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In the matter of the adoption of New Rules I through X pertaining to the implementation of the Montana health and economic livelihood partnership (HELP) program








TO: All Concerned Persons


          1. On November 18, 2015, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption 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 the Department of Public Health and Human Services no later than 5:00 p.m. on November 10, 2015, 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 dphhslegal@mt.gov.


3. The rules as proposed to be adopted provide as follows:


NEW RULE I HELP PROGRAM: PURPOSE (1) The purpose of this subchapter is to implement the Montana Health and Economic Livelihood Partnership Act (HELP Act) enacted by the 64th Montana Legislature, Ch. 368, L. 2015 MT.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-131, 53-6-1302, 53-6-1303, 53-6-1304, 53-6-1305, 53-6-1306, 53-6-1307, MCA


          NEW RULE II HELP PROGRAM: DEFINITIONS (1) "Advance Benefit Notice (ABN)" means a notice that providers give to the participant when they have determined that a service or item is a noncovered benefit of the Health and Economic Livelihood Partnership (HELP) Program. The ABN provides notice to the participant that the participant is responsible for the full payment of the particular service.

          (2) "Advanced practice registered nurse (APRN)" means a registered professional nurse who has completed educational requirements related to the nurse's specific practice role, in addition to basic nursing education, as specified by the Board of Nursing in ARM 24.159.1414.

          (3)  "American Indian and Alaska Native" means an American Indian, Alaska Native, or other individual who is eligible for health services through the Indian Health Service, tribes and tribal organizations, or urban Indian organizations.

          (4)  "Benefit year" means the state fiscal year from July 1 through June 30.

          (5) "Benefits" means the services a participant is eligible to receive. The HELP Program benefits are stated in its Evidence of Coverage.

          (6) "Copayment" means a predetermined portion of the cost for a health care service or item that is owed by the participant directly to a provider for a covered health care service.

          (7) "Cost Share" means the total of premium and copayment costs in relation to the delivery of health care services to the participant that are the responsibility of the participant to pay.

          (8) "Department" means the Montana Department of Public Health and Human Services.

          (9) "Early and periodic screening, diagnostic, and treatment (EPSDT) services" means services as defined in ARM Title 37, chapter 86, subchapter 22.

          (10) "Emergency medical condition" means a medical condition manifesting itself with acute symptoms of sufficient severity, including severe pain, such that a prudent layperson could reasonably expect the absence of immediate medical attention to result in any of the following:

(a) serious jeopardy to the health of the participant or the participant's unborn child;

          (b) serious impairment of bodily function; or

          (c) serious dysfunction of any bodily organ or part.

          (11) "Evidence of Coverage (EOC)" means a document that explains covered services, defines the plan's obligations, and explains the rights and responsibilities of the plan participant.

          (12)  "Experimental and unproven" means any drug, device, treatment, or procedure that meets any of the following criteria:

          (a)  prescription drugs not approved by the Food and Drug Administration (FDA) to be lawfully marketed for the proposed use, and it is not identified in the American Hospital Formulary Service, the AMA Drug Evaluation, or the Pharmacopoeia as an appropriate use;

(b)  it is subject to review or approval by an institutional review board (meaning that a hospital considered it experimental and put it under review to meet federal regulations, or review is required and defined by federal regulations, particularly those of the FDA or U.S. Department of Health and Human Services);

(c)  it is the subject of an ongoing clinical trial that meets the definition of a Phase 1, 2, or 3 clinical trial set forth in FDA regulations, regardless of whether it is an FDA trial;

(d)  it has not been demonstrated through prevailing, peer-reviewed medical literature to be safe and effective for treating or diagnosing the condition or illness for which its use is proposed;

(e)  the predominant opinion among experts as expressed in the published authoritative literature is that further research is necessary in order to define safety, toxicity, and effectiveness (or effectiveness compared with conventional alternatives), or that usage should be substantially confined to research settings;

(f) it is not a covered benefit under Medicare, as determined by the Centers for Medicare and Medicaid Services (CMS), because it is considered experimental, investigational, or unproven;

(g) it is experimental, investigational, unproven, or not a generally acceptable medical practice in the predominate opinion of independent experts utilized by the administrator of each plan; or

          (h)  it is not experimental or investigational in itself pursuant to the above and would not be medically necessary, but it is being provided in conjunction with the provision of a treatment, procedure, device, or drug which is experimental, investigational, or unproven.

          (13) "Eyeglasses" mean corrective lens, frames, or both prescribed by an ophthalmologist or by an optometrist to improve vision.

          (14) "Federal poverty level (FPL)" means the poverty income guidelines published annually in the Federal Register by the U.S. Department of Health and Human Services.

          (15) "Federally Qualified Health Center (FQHC)" means an entity as defined in 42 USC 1396d(l)(2)(B) (2015) and 42 CFR, part 491, subpart A (2015).

          (16) "Health and economic livelihood partnership (HELP) program"  means a Medicaid coverage program for persons as authorized at Title 53, chapter 6, part 13, MCA, and as implemented in accordance with that part, 53-2-215, MCA, 42 U.S.C. 1315 (2015), 42 U.S.C. 1396d(y) (2015), and other applicable state and federal authorities for those persons who are eligible for the HELP Program as authorized under 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2015), exclusive of those individuals exempt pursuant to 53-6-1305(3), MCA, and served under Title 53, chapter 6, part 1, MCA.

          (17) "Indian Health Service (IHS)" means an agency within the U.S. Department of Health and Human Services that is responsible for providing federal health services to American Indians and Alaska Natives.

          (18) "Inpatient hospital services" means services that are ordinarily furnished in an acute care hospital for the care and treatment of a patient under the direction of a physician, dentist, or other practitioner as permitted by federal law.  The facility must:

          (a) be licensed or formally approved as an acute care hospital by the officially designated authority in the state where the institution is located; and

          (b) except as otherwise permitted by federal law, meet the requirements for participation in Medicare as a hospital and have in effect a utilization review plan that meets the requirements of 42 CFR 482.30 (2015).

          (19) "Medicaid state plan benefit" means the Medicaid services described in ARM Title 37, chapter 86.

          (20) "Medically frail" means individuals defined in 42 CFR 440.315(f) (2015).

          (21) "Medically necessary" or "medically necessary covered services" means services and supplies that are necessary and appropriate for the diagnosis, prevention, or treatment of physical or mental conditions as specified in the HELP Program Evidence of Coverage provided in [New Rule IV].

          (22) "Modified adjusted gross income (MAGI)" means income determined in accordance with 42 U.S.C. 1396a(e)(14) (2015) and 42 CFR 435.603(d)(4) (2015).

          (23) "Nonemergency transportation service" means travel furnished by a licensed motor carrier or by a private vehicle.

          (a) Nonemergency transportation service does not include ambulance services.

          (b) A motor carrier operated by the Indian Health Service (IHS) or by a federally recognized Indian Tribe, which meets all applicable standards for a class B public service commission license, need not be licensed for the purposes of this subchapter.

          (24) "Outpatient hospital services" means preventive, diagnostic, therapeutic, rehabilitative, or palliative services provided to an outpatient by or under the direction of a physician, dentist, or other practitioner as permitted by federal law. The facility must:

          (a) be licensed or formally approved as a hospital by the officially designated authority in the state where the institution is located; and

          (b) except as otherwise permitted by federal law, meet the requirements for participation in Medicare as a hospital.

          (25) "Participant" means an individual who is eligible for and enrolled with the HELP Program and who can receive covered benefits as determined by the department under this subchapter or 42 U.S.C. 1396a.  An individual who meets the criteria of 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2015) is eligible to be a participant. An individual is not a participant while an eligibility hearing decision is pending or during any period a hearing officer determines the individual was not eligible for HELP Program coverage benefits.

          (26) "Participating provider" means a health care professional or facility that is enrolled in the HELP Program.

          (27) "Physician assistant (PA)" means a mid-level practitioner as defined in ARM 37.86.202.

          (28) "Premium" means a fee owed by an individual as a participant in the HELP Program.

          (29) "Preventative health care services" means routine health care that includes screenings, checkups, and patient counseling to prevent illnesses, disease, or other health problems, including secondary and tertiary preventive care.

          (30) "Qualifying life event" is a change in a participant's life that allows them to change benefit plans, examples are pregnancy and the onset of a disability.

          (31) "Rural health clinic (RHC)" means a clinic determined by the U.S. Department of Health and Human Services to meet the rural health clinic conditions of certification specified in 42 U.S.C. 1396d(l)(1) (2015) and 42 CFR, part 491, subpart A (2015).

          (32) "Third party administrator (TPA)" means an entity with a certificate of registration to conduct business in Montana in accordance with 33-17-603, MCA. TPA services include, but are not limited to, claims processing, maintaining an adequate network of participating providers, coordination and continuation of care, health education, notices, quality assurance, reporting, case management services, and customer service.

          (33)  "Tribal health services" means a facility or location owned and operated by a federally recognized American Indian Tribe or tribal organization under a P.L. 93-638 agreement, which provides diagnostic, therapeutic (surgical and nonsurgical), and rehabilitation services to tribal members either in an inpatient or outpatient setting.

          (34) "Wellness program" means a program implemented to improve the health of participants by providing services focused on the promotion or maintenance of good health.

          (35) "Workforce program" means a program developed and administered by the Department of Labor and Industry that includes employment assessment and workforce development opportunities to participants.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-131, 53-6-1304, 53-6-1305, 53-6-1306, 53-6-1307, MCA


          NEW RULE III HELP PROGRAM: ELIGIBILITY FOR COVERAGE  (1)  An individual qualifies for Medicaid coverage under the HELP Program if the person is a Montana resident who meets the eligibility criteria for Medicaid expansion coverage as authorized at 42 U.S.C. 1396a(a)(10)(A)(i)(VIII) (2015).

          (2)  HELP Program coverage, as specified in (1), is inclusive of a person who is over the age of 19 and under the age of 65 who has a modified adjusted gross income at or below 138% of FPL as appropriate to the household size and who is not:

          (a)  pregnant at the time of enrollment;

          (b)  entitled to or enrolled in Medicare;

          (c)  disabled as determined for purposes of social security;

          (d)  in one of the other categories for Medicaid coverage that are excluded from Medicaid expansion coverage by the language of the federal statute; or

          (e) receiving coverage through the standard Medicaid state plan as a person who is:

          (i) medically frail;

          (ii) an American Indian or Native Alaskan; or

          (iii) excluded otherwise by federal law.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-131, 53-6-1304, MCA


          NEW RULE IV HELP PROGRAM: BENEFITS PLANS  (1) Coverage of health care services for a participant in the HELP Program, except as provided in (2), is provided through the HELP TPA benefits plan.

          (2) A participant may be excluded from the HELP TPA benefits plan and receive coverage through the standard Medicaid state plan if the participant:

          (a) lives in a geographical area, including an Indian reservation, for which the TPA is unable to make arrangements with sufficient numbers and types of health care providers to offer services to participants; or

          (b) needs continuity of care that would not otherwise be available or cost-effective through the TPA.

          (3) The department adopts and incorporates by reference the HELP Program Evidence of Coverage (EOC) dated January 1, 2016, which is available on the department's web site at http://dphhs.mt.gov/MontanaHealthcarePrograms.

          (4) The HELP Program EOC describes the health care benefits, inclusive of limitations upon those benefits, available to the HELP Program participants.

          (5) Services that are not covered, not reimbursable, not medically necessary, experimental, unproven, or performed in an inappropriate setting are not covered benefits in the HELP Program.

          (6) Prior authorization may be required for certain types and levels of services.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1305, MCA


          NEW RULE V MAGI AS THE MEASURE OF INCOME (1) Effective January 1, 2014, except for participants receiving aged, blind, or disabled benefits or benefits based on participation in a Medicaid home and community-based services waiver, a participant's income must be determined in accordance with 42 U.S.C. 1396a(e)(14) (2015), which establishes modified adjusted gross income (MAGI) as the required measure of income.

          (2) There is no resource test for participants whose income is calculated based on MAGI.

          (3) To create uniformity among the states for income disregards, federal regulation 42 CFR 435.603(d)(4) (2015) requires a state to subtract an amount equal to five percentage points of the current FPL to determine an individual's eligibility. This is implemented by increasing the maximum income to qualify for Medicaid from 133% to 138% of the current FPL.


AUTH: 53-6-113, MCA

IMP: 53-6-131, MCA


          NEW RULE VI HELP PROGRAM: PREMIUMS (1) A HELP Program participant must pay an annual premium, billed monthly, equal to two percent of the prorated share of the participant's annual household income.

          (2) A participant, except as provided in (4) and (5), for whom a due premium has not been paid and remains owing may be disenrolled from coverage until the department has been compensated for the overdue premium.

          (3) The process for collection of overdue premiums is as follows:

          (a) Within 30 days of the date a participant's premium payment was due, the TPA must notify the participant that the payment is overdue and that all overdue premiums must be paid within 90 days of the date the notification was sent. The TPA must provide a copy of the notice to the department.

          (b) If payment for overdue premiums is not received, the department will notify the Department of Revenue of the sum owed.

          (c) Unless the person states the intent not to reenroll, the department may reenroll the person in the HELP Program when the Department of Revenue assesses the unpaid premium through the participant's income tax.

          (4) A participant who has an annual household income below 100 percent of the current FPL is not subject to disenrollment due to nonpayment of a premium.

          (5) A participant is not subject to disenrollment for failure to pay a premium if the participant meets two of the following criteria:

          (a) discharge from the United States military within the previous 12 months;

          (b) enrollment in any Montana university system unit, a tribal college, or an accredited Montana college offering at least an associate degree. A participant cannot claim the education exemption for more than four years;

          (c) participation in a workforce program or activity established under the authority of 39-12-101 through 39-12-107, MCA; or

          (d) participation in any of the following health behavior activities developed by a health care provider or the TPA or approved by the department:

          (i) participation in a Medicaid health home;

          (ii) participation in a patient-centered medical home;

          (iii) participation in a cardiovascular disease, obesity, or diabetes prevention program;

          (iv)  participation in a program requiring the participant to obtain primary care services from a designated provider and to obtain prescriptions from a designated pharmacy;

          (v) participation in a Medicaid primary care case-management program established by the department;

          (vi) participation in a tobacco use prevention or cessation program;

          (vii) participation in a substance abuse treatment program;

          (viii) participation in a care coordination or health improvement plan administered by the TPA; or

          (ix) participation in a department-approved wellness program.

          (6)  A premium payment is assessed for a participant's coverage based upon retroactive eligibility.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1307, MCA


          NEW RULE VII HELP PROGRAM: COPAYMENTS (1) Except as provided in this rule each participant in the HELP Program must pay to the provider of service the copayments as described in ARM 37.85.204, not to exceed the cost of service.

          (2) Additional copayments may not be charged if, during the current benefit year the participant has paid in total, three percent of the participant's annual income in copayments.

          (3) Copayments may not be charged for:

          (a) preventative health care services;

          (b) immunizations provided according to a schedule established by the department that reflects guidelines issued by the Centers for Disease Control and Prevention;

          (c) medically necessary health screenings ordered by a health care provider;

          (d) pregnancy services;

          (e) generic pharmaceutical drugs;

          (f) eyeglasses purchased by the Medicaid program under a volume purchasing agreement;

          (g) EPSDT;

          (h) transportation services;

          (i) family planning services;

          (j) emergency services;

          (k) hospice;

          (l) independent laboratory and x-ray services; and

          (m) tobacco cessation.

          (4) Copayments may not be charged for services rendered in circumstances of third party liability (TPL) claims where the HELP Program is the secondary payer under ARM 37.85.407. If a service is not subject to TPL, but is covered by the HELP Program, copayments are applied.

          (5) The following categories of persons are exempt from copayments:

          (a) American Indian and Alaska Native;

          (b) pregnant women;

          (c) individuals under age 21;

          (d) terminally ill individuals; and

          (e) individuals covered under the Breast and Cervical Cancer Treatment Program.

          (6) Premiums and copayments combined may not exceed an aggregate limit of five percent of the annual family household income.

          (7) Providers may only charge participants for the following services if the participant signs an ABN for the specific service prior to services being provided:

          (a) noncovered services;

          (b) experimental services;

          (c) unproved services;

          (d) services performed in an inappropriate setting; and

          (e) services that are not medically necessary.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1306, MCA


          NEW RULE VIII HELP PROGRAM: REIMBURSEMENT (1) Covered services for participants in the HELP Program enrolled with the TPA, except as otherwise provided in (2), are reimbursed directly by the TPA according to the schedule found at https://medicaidprovider.mt.gov.

          (2) The following services received by participants enrolled with the TPA are reimbursed directly through the department:

          (a) FQHC;

          (b) RHC;

          (c) dental;

          (d) eyeglasses;

          (e) Indian Health Services and tribal health services;

          (f) diabetes prevention programs;

          (g) transportation;

          (h) prescription drugs;

          (i) home infusion;

          (j) hearing aids; and

          (k) audiology.

          (3)  The services specified in (2) are reimbursed at the established Medicaid reimbursement rates for those services.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-1305, MCA


          NEW RULE IX HELP PROGRAM: PROVIDER QUALIFICATIONS (1) As a condition of participation in the HELP Program, all providers must comply with all applicable state and federal statutes, rules, and regulations governing the Montana Medicaid Program and all applicable Montana statutes and rules governing licensure and certification.

          (2) Any health care provider that is currently subject to exclusion by the U.S. Department of Health and Human Services (HHS) or that is suspended or terminated by the Medicaid or the Medicare program or by a state Medicaid program may not be enrolled as a HELP Program provider or receive reimbursement from the department for the delivery of health care or other services to participants.

          (3) Participating providers must be licensed or certified in Montana. Out-of-state providers must be licensed in the state in which they practice.

          (4) Physicians, APRNs, and PAs must either have admitting privileges to at least one general or critical access hospital or must have a mechanism in place to ensure that participant hospitalization may occur when appropriate.

          (5) Providers that are delivering services to participants outside of the TPA provider network must be enrolled as a Montana Medicaid Program provider. Providers that are enrolled with the TPA network and are not delivering services to participants or other Medicaid eligible persons outside of the TPA network need not be enrolled as a Medicaid provider.

          (6) A TPA may not prohibit a participating provider from:

          (a) discussing a treatment option with a participant, parent of a minor, spouse, legal guardian, or other responsible representative; or

          (b) advocating on behalf of a participant within the utilization review or grievance processes established by the TPA or the department.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1305, MCA


          NEW RULE X HELP PROGRAM: GRIEVANCE AND APPEAL PROCESS           (1) An applicant or participant aggrieved by a denial, suspension, or termination of the HELP Program eligibility by the department, or a participant aggrieved by a reduction or denial of benefits by the department, may request a fair hearing in accordance with ARM 37.5.103.

          (2) The TPA acts under the oversight of the department in all grievance and appeal processes.


AUTH: 53-2-215, 53-6-113, 53-6-1305, 53-6-1318, MCA

IMP: 53-2-215, 53-6-101, 53-6-113, 53-6-1305, MCA




The 2015 Montana Legislature authorized through the enactment of Senate Bill 405 (SB405), the Montana Health and Economic Livelihood Partnership (HELP) Act, a program to implement an expansion of Medicaid coverage in Montana.  This new category of Medicaid coverage is authorized by federal law and in accordance with federal case law is within the discretion of each state to implement.  The Legislature directed the department to implement Medicaid expansion and provided express rulemaking authority for doing so.


The persons to be covered in this Medicaid category are adults with limited incomes who are without minor children, who do not qualify for Medicare, and who are not pregnant.  The new coverage generally includes persons between the ages of 19 and 65 who are at or below 138 percent of the current federal poverty level (FPL).  It is estimated that 70,000 Montanans are potentially eligible for this new coverage.


The Legislature chose to primarily implement the expansion by directing the department to contract with a third party administration (TPA) to provide a provider network and claims processing.  This is an innovative approach which has not been applied before in the context of the delivery of Medicaid health care services.  While the department will administer eligibility determinations for persons seeking coverage through the expansion category and will establish the array of health care benefits that must be made available, the TPA will be responsible for arranging for providers for delivery of services, managing participants' health care access, providing health improvement programs, and conducting various other administrative functions.  The Legislature directed the department to competitively procure the TPA.


Since Medicaid is a federally authorized and, in part, federally funded program,  the TPA approach to implementation of the expansion of Medicaid coverage in Montana must meet with federal approval.  The request for federal approval necessitates formal submittal to, and approval by, the Centers for Medicare and Medicaid Services (CMS).  The submittal is in the form of a request for waivers along with additional documents necessary for approval of various aspects of the overall proposal.


The department, based on the HELP Act, has crafted the federal waiver requests, using certain features of the existing health care market, particularly the TPA vehicle, to analyze the efficiency and cost-effectiveness of those features for delivery of Medicaid health care coverage.


On September 15, 2015, the department formally submitted the waivers proposal to CMS along with the other necessary documents.  Currently, CMS is reviewing those documents in consideration of possible approval.  Approval may contain certain conditions that may necessitate changes to certain aspects of the proposed rule subchapter.  There is active discussion between the State of Montana (State) and CMS as to various features in the State's proposed innovative TPA model. There is no definite date certain as to when CMS approval might be given.  Because of this, there are certain features of the proposed rules that may require modification before final adoption.


The department has initiated preliminary activities for the purposes of eventual implementation of the HELP Act Medicaid expansion coverage.  A request for proposals to provide TPA services to the State was published and proposals were received in response to it.  The department, subject to federal approval, intends to award the contract in the near future.  In addition, the department is undertaking some activities that will foster enrollment once federal approval is received and the new coverage is ready to implement.


The department has additionally submitted to CMS a Montana proposal for the Alternative Benefit Plan of Medicaid funded services that will be available to the participants in the Medicaid expansion coverage.  This plan has to provide for the ten essential health benefits set forth in the Affordable Care Act (ACA).


The HELP Act authorized the application of copayments and premiums generally for persons who are participating in the Medicaid expansion coverage.  These are intended to familiarize the participant with standard features of the private insurance market.


Based on the HELP Act provisions and certain federal requirements and limitations, some persons eligible for the new expansion category will not receive services through the TPA. Persons of certain statuses or circumstances will receive services through the department under the standard Medicaid state plan.


These proposed rules are necessary to provide the public with further knowledge and understanding of the various features for the implementation of the HELP Act.  The proposed rules are also necessary to implement additional requirements and limitations that are necessary for implementation of the HELP Act.  The Legislature directed the adoption of implementing rules, and the implementation of the HELP Act would be seriously impeded, if not impossible, without the additional requirements and limitations.


New Rule I HELP Program: Purpose


Proposed New Rule I states the relationship of the proposed rules to the 2015 Legislature's SB405, the Montana Health and Economic Livelihood Partnership (HELP) Act.  The HELP Act expressly authorized the department to proceed with the implementation, inclusive of rules, of the expansion of Medicaid coverage to a new population.


New Rule II HELP Program: Definitions


Proposed New Rule II provides a set of definitions for principal terms appearing in the proposed rules.  These definitions serve to set the full meaning of many provisions and provide for the use of acronyms in the subchapter so as to reduce the amount of text.  Definitions are an essential feature of understanding the meaning of written text.  The department determined that the addition of definitions is essential to the implementation of the rules and that a comprehensive presentation of the definitions in one rule is the most appropriate practice.


New Rule III HELP Program: Eligibility for Coverage


Proposed New Rule III states the eligibility criteria governing entry into Medicaid expansion coverage.  This rule does not change the persons identified by the Legislature as the population who will receive benefits because of the HELP Act.  The rule is necessary because the expansion group is identified in the HELP Act by reference to the federal statute, 42 U.S.C. 1396a (a)(10)(A)(i)(VIII), that provides the parameters for the population encompassed by the new Medicaid expansion category.  This rule specifies, in accordance with the federal law, that the coverage group is those persons with income at or below 138% of FPL who are not pregnant, not entitled to or enrolled in Medicare, and not disabled as determined by the social security administration.


New Rule IV HELP Program: Benefits Plans


The proposed New Rule IV explains the benefits that are to be available for persons in the expansion population.  The proposed rule is necessary to the implementation of the HELP Act since the Act did not specify the benefits to be provided.


There are two benefit plans through which a participant in the Medicaid expansion coverage may receive health care services.  The first is the TPA benefit plan which is administered by the TPA that generally applies to participants in the HELP expansion.  The second benefits plan is the standard Medicaid state plan that is generally applicable to members of Montana Medicaid.


The proposed rule is necessary to provide a clear delineation of those participants who are to receive health care coverage through each benefit plan and to provide the specific features of both benefit plans with respect to covered services, requirements, and limitations.


The TPA plan will serve most of the participants in the Medicaid expansion population.  In conformity with federal law, American Indians and Native Alaskans are to receive health care through the standard Medicaid plan.  Persons who are medically frail, who live in an area that is without TPA who are otherwise excluded by federal law coverage, or who need continuity of care not available through the TPA are also to receive services through the standard Medicaid Plan.


Federal Medicaid law does provide certain requirements as to the benefits to be provided.  The benefits plan that is to apply to persons receiving coverage through the TPA is presented in a HELP Program Evidence of Coverage (EOC) document which the proposed rule incorporates by reference.  The department determined that development of the EOC document was the best manner by which to provide an accessible reference for providers and participants.


New Rule V MAGI as the Measure of Income


Proposed Rule V would cross reference the federally mandated Modified Adjusted Gross Income (MAGI) as the standard measure of income for eligibility in the income-based categories of the Montana Medicaid program.  MAGI is not applicable to persons who qualify for Medicaid on the basis of a disability or based on being elderly.  The federal requirement for the application of MAGI took effect on January 1, 2014. Prior to January 1, 2014, states did not use a consistent measure of income. With the enactment of the Affordable Care Act (ACA), states use a uniform standard based on reported taxable income, which is an easily verified income standard.


The proposed rule would establish the MAGI eligibility criteria in state authority.  The department considered not adopting a rule since the requirement is mandatory under federal law.  However, the department decided to propose this rule to clarify in state authority that the MAGI standard is being applied to measure income.


MAGI is how an income is measured; it does not determine whether a person is eligible for Medicaid. That determination is based on the standard percentage of the FPL set in ACA and CMS federal regulation. Upon implementation of Medicaid expansion in Montana, if a person's income, calculated using MAGI, is at or below 138 percent of FPL, that person qualifies for Medicaid.  The statutory percentage of 133 percent is adjusted by federal regulation to take into account the income disregards that states previously used.


New Rule VI HELP Program: Premiums


The HELP Act provides for annual premium based on two percent of a participant's annual income.  The proposed rule provides several procedural features to govern the application of the premiums to participants.  Those procedures include the procedures for providing notice to the participants and providing for how reenrollment occurs.  These additional procedures in the proposed rule are necessary to establish certain features essential for the implementation of the HELP Act premium requirement and to address the role that the TPA is to undertake in the application of premiums to participants.


New Rule VII HELP Program: Copayments


The HELP Act provides that copayments are to be applied for plan participants.  The proposed rule describes how copayments are to be assessed and collected and specifies the groups of persons, the services, and the circumstances that are exempt from copayments.  The HELP Act established the requirement for copayments but did not address all the criteria necessary for the application of the copayments.  The features set forth in the rule are necessary to ensure successful implementation of copayments under the HELP Act.


In addition, the proposed rule would establish a limited set of circumstances where a provider may charge the person for the delivery of a health care service.  These circumstances encompass services that are not covered by Medicaid.  There is a proposed requirement that a provider may not impose the charge unless the participant is informed prior to the delivery of the service and has signed an advanced benefit notice.  This aspect of the proposed rule is necessary to protect the participant from unknown charges and to provide a process that will engage the participant in the decision making as to the delivery of the service.


New Rule VIII HELP Program: Reimbursement


The proposed rule establishes the rates of reimbursement that are to be paid to providers.  Since the HELP Act provides for the use of a TPA to administer health care coverage in general for the Medicaid expansion population, the rates of reimbursement paid for health care services by the TPA will be those that the TPA has established for those providers that it engages in the delivery of services.  The comprehensive schedule of rates established by the TPA is consequently referenced in the proposed rule.


The proposed rule further describes those services that are to be reimbursed directly through the department and establishes that the rates of reimbursement for those services are based on the current Medicaid state plan reimbursement methodologies.


For purposes of the implementation of coverage for the Medicaid expansion population it is necessary to have in place the rates that are to be paid to providers.  The HELP Act does not specify the rates that are to apply to the health care services delivered under the Act.  The proposed rule is necessary to provide notice of what rates are to be applicable.


New Rule IX HELP Program: Provider Qualifications


The proposed rule will establish the qualifications that a provider must meet in order to receive reimbursement from the HELP Program.  These requirements include complying with all applicable state and federal statutes, rules, and regulations governing the Montana Medicaid Program, and all applicable Montana statutes and rules governing licensure and certification.  The HELP Act does not specify the provider requirements that are to apply to the health care services delivered under the HELP Act.  The proposed rule is necessary to provide notice of what requirements the department has determined to be applicable.  The requirements chosen are those that are generally required in accordance with federal law applicable to the provision of Medicaid-funded health care services.


In addition, the proposed rule would prohibit the TPA from interfering with the health care provider and patient relationship.  The administrator role of the TPA is a strong one and the department determined that this protection of the patient's relationship with the health care provider is a necessary feature to adopt into rule.


New Rule X HELP Program: Grievance and Appeal Process


The proposed rule provides notice of what due process is to be afforded an applicant or participant in the Medicaid expansion.  The proposed rule does so by referencing an existing departmental rule that serves as the focal rule for due process requests from Medicaid members.


While this proposed rule is not necessary for the application of due process for participants in the Medicaid expansion, the department contends that the unique implementation of the Medicaid expansion through the TPA may cause concern about what due process would be available for participants in the TPA benefit plan.  The proposed rule plainly states the availability of Medicaid-related due process for participants.


This proposed rule also states that the TPA is subject to departmental oversight in all due process matters.  Again, the administrator role of the TPA is strong and the department determined that discretion to direct the TPA's actions in relation to any grievance matters is a necessary feature for rule adoption.


Fiscal Impact


The HELP Program will significantly increase the number of adults eligible for Medicaid. This increase of Montanans with health care coverage will benefit not only the newly eligible participants, but also health care providers and other businesses.  The HELP Program will use federal matching funds to provide for state savings through fiscal year 2017.



FY 2016 Difference

FY 2017 Difference

FY 2018 Difference

FY 2019 Difference






General Fund





Federal Special Revenue
















General Fund





Federal Special Revenue











Net Impact-General Fund






          5. The department intends to adopt these new rules effective January 1, 2016.


          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 dphhslegal@mt.gov, and must be received no later than 5:00 p.m., November 27, 2015.


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, apply and have been fulfilled. The primary bill sponsor was notified by e-mail and text on October 9, 2015.


          11.  With regard to the requirements of 2-4-111, MCA, the DPHHS has determined that the adoption of the above-referenced rules will not significantly and directly impact small businesses.


12. 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement. The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.


The department has determined that the proposed program changes presented in this notice are appropriate for performance-based measurement and therefore are subject to the performance-based measures requirement of 53-6-196, MCA.


The following matrix presents the department's intended performance monitoring scheme.


Principal reason for the rule


Data Collection Methods/Metrics

Period of Measurement

Provide coverage of health care services for low-income Montanans

HELP Act enrollment

Track enrollment via eligibility determination system (CHIMES)


Provide greater value for the tax dollars spent on the Montana Medicaid program

Ratio of state and federal funds expended on adult mental health

Track expenditure by funding source via the state accounting system


Provide incentives that encourage Montanans to take greater responsibility for their personal health

Health Behavior Activities

Track the level of participant engagement in health behavior activities via the department's data systems




/s/ Cary B. Lund                                    /s/ Richard H. Opper                            

Cary B. Lund, Attorney                          Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services


Certified to the Secretary of State October 19, 2015.



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