BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.106.704 pertaining to ten additional inpatient beds granted by a waiver under the Patients and Providers Act of 2008 for critical access hospitals

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

          1. On March 24, 2016, at 1:30 p.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment of the above-stated rule.

 

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 March 11, 2016, 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 rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:

 

          37.106.704 MINIMUM STANDARDS FOR A CRITICAL ACCESS HOSPITAL (CAH) (1) A critical access hospital shall must comply with the conditions of participation for critical access hospitals as set forth in under 42 CFR 485 Subpart F, updated through May 2005. The department adopts and incorporates by reference 42 CFR 485 Subpart F, updated through May 2005.  A copy of the cited requirements is available from the Department of Public Health and Human Services, Quality Assurance Division, 2401 Colonial Drive, P.O. Box 202953, Helena, MT 59620-2953.

          (2) A critical access hospital may maintain up to 25 inpatient beds that can be used interchangeably for acute care or swing-bed services. A critical access hospital granted a waiver under Section 123(i) of the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) may maintain an additional ten beds to be used only for skilled nursing facility or nursing facility level services. A critical access hospital may not add the additional beds granted under a waiver through capital expenditure for new construction.

          (3) remains the same.

          (4) A critical access hospital shall must provide emergency services meeting the emergency needs of patients in accordance with following acceptable standards of practice, including the following standards:

          (a) Emergency services must be organized under the direction of a practitioner member of the medical staff. A practitioner is a physician, physician's assistant certified, or an advanced practice registered nurse.

          (b) through (e) remain the same.

          (i) an on-call practitioner must be immediately available by phone or radio for the registered nurse to contact, following completion of a nursing assessment, to determine whether the patient requires discharge, further examination, treatment or stabilization, and transfer to a facility capable of providing the appropriate level of care;

          (ii) and (iii) remain the same.

          (iv) the facility may not use a registered nurse to provide emergency services coverage for more than a 72-hour continuous period of time.

          (5) remains the same.

          (6) A facility aggrieved by a denial, suspension, or termination of licensure may request a fair hearing in accordance with under ARM 37.5.117.

 

AUTH: 50-5-233, MCA

IMP:     50-5-233, MCA

 

          4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) proposes to amend ARM 37.106.704 to allow critical access hospitals to take advantage of a waiver that may be granted under the Medicare Improvements for Patients and Providers Act of 2008 (MIPPA) which allows critical access hospitals to add ten additional inpatient beds.

 

The department is proposing to update grammar and legal terms to comply with the Office of Secretary of State's requirements and the department's general requirements for rule language.

 

Section 123 of the MIPPA, as amended by Section 3126 of the Affordable Care Act (ACA) of 2010, authorizes a "demonstration project" (project) on community health integration models in certain rural counties. The project's goal is to develop and test new models for the delivery of healthcare in order to better integrate the delivery of acute care, extended care, and other healthcare, as defined in Section 123. The project will improve access to care for Medicare and Medicaid beneficiaries residing in very sparsely populated areas. This "demonstration project" is commonly known as the Frontier Community Health Integration Project (FCHIP).

 

The Centers for Medicare and Medicaid Services (CMS) requested applications for participation in the project from eligible entities as defined in Section 123(d)(1)(B) of MIPPA. CMS interprets the eligible entity definition as meaning critical access hospitals (CAHs) that receive funding through the Rural Flexibility Program. The statute limits the project to no more than four states; it further restricts eligibility to CAHs in states in which at least 65 percent of counties have population densities of six persons or fewer per square mile. Thus, the applications to participate in this project will be limited to CAHs in Alaska, Montana, Nevada, North Dakota, and Wyoming. CMS will select participants from no more than four of these states.

 

MIPPA authorizes waiver of such provisions of the Medicare and Medicaid programs as necessary to conduct the project. Conditions of Participation waivers, to be offered, include an increase in the bed limit for CAHs from 25 to 35 beds. The additional beds can only be used for skilled nursing facility (SNF) or nursing facility (NF) level services, in accordance with standard Medicare and Medicaid reimbursement principles. Capital expenditure for new construction will not be permitted. Only sites demonstrating occupancy greater than 80 percent will be eligible for this waiver. Also, this waiver will not be permitted for CAHs that currently operate a distinct-part skilled nursing facility.

 

Two Montana facilities have applied and are eligible for the bed-expansion waiver. They are McCone County Health Center in Circle and Roosevelt Medical Center in Culbertson. Roosevelt terminated their 40 bed Nursing Home license May of 2007, and McCone terminated their 30 bed Nursing Home license April 1, 2009. Currently, according to ARM 37.106.704(2), the bed limit for a CAH is 25 beds that can be used interchangeably for acute beds or swing-bed services. A rule amendment is needed to increase the bed limit from 25 to 35 and add language to limit the use of the ten additional beds to SNF or NF level services. Without this amendment, the Montana facilities will be unable to take advantage of this opportunity.

 

          5. 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., April 1, 2016.

 

6. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

7. 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 5 above or may be made by completing a request form at any rules hearing held by the department.

 

8. 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.

 

9. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

10. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.

 

 

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

Susan Callaghan, Attorney                    Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services

 

 

Certified to the Secretary of State February 22, 2016.