Administrative Rules of the State of Montana

BEFORE THE Department of PUBLIC

HEALTH AND HUMAN SERVICES

OF THE STATE OF MONTANA

In the matter of the amendment of ARM 37.27.136, 37.27.137, 37.27.138, 37.27.902, 37.27.903, 37.86.3515, 37.88.101, 37.88.907 and the repeal of ARM 37.27.906, 37.86.3501, 37.86.3502, 37.86.3503, 37.86.3505, 37.86.3506, 37.86.3507, 37.88.110, 37.88.201, 37.88.205, 37.88.206, 37.88.301, 37.88.305, 37.88.306, 37.88.601, 37.88.605, 37.88.606, 37.88.901, 37.88.903, 37.88.906, 37.88.908, 37.88.909 pertaining to Adult Mental Health and Substance Use Disorder

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NOTICE OF AMENDMENT AND REPEAL

TO: All Concerned Persons

1. On February 9, 2018, the Department of Public Health and Human Services published MAR Notice No. 37-835 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 273 of the 2018 Montana Administrative Register, Issue Number 3.

2. The department has amended ARM 37.27.136, 37.27.137, 37.27.138, 37.27.903, 37.86.3515, and 37.88.907 as proposed. The department has repealed ARM 37.27.906, 37.86.3501, 37.86.3502, 37.86.3503, 37.86.3505, 37.86.3506, 37.86.3507, 37.88.110, 37.88.201, 37.88.205, 37.88.206, 37.88.301, 37.88.305, 37.88.306, 37.88.601, 37.88.605, 37.88.606, 37.88.901, 37.88.903, 37.88.906, 37.88.908, and 37.88.909 as proposed.

3. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

37.27.902 MEDICAID SUBSTANCE USE DISORDER SERVICES: AUTHORIZATION REQUIREMENTS (1) remains as proposed.

(2) In addition to the requirements contained in rule, the department has developed and published the ~~Addictive and Mental Disorders Division, Medicaid Services Provider Manual for Adult Mental Health and Substance Use Disorder~~ Addictive and Mental Disorders Division Medicaid Services Provider Manual for Substance Use Disorder and Adult Mental Health (Manual), dated ~~April 1, 2018~~ May 1, 2018, which it adopts and incorporates by reference. The purpose of the Manual is to implement requirements for utilization management and services. A copy of the Manual may be obtained from the department by a request in writing to the Department of Public Health and Human Services, Addictive and Mental Disorders Division, 100 N. Park, Ste. 300, P.O. Box 202905, Helena, MT 59620-2905 or at http://dphhs.mt.gov/amdd.aspx.

AUTH: 53-6-113, 53-24-204, 53-24-208, 53-24-209, MCA

IMP: 53-6-101, 53-24-204, 53-24-208, 53-24-209, MCA

37.88.101 MEDICAID MENTAL HEALTH SERVICES FOR ADULTS, AUTHORIZATION REQUIREMENTS (1) remains as proposed.

(3) through (5) remain as proposed.

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA

4. 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: Many commenters questioned the overall proposed Medicaid Services Provider Manual for Adult Mental Health and Substance Use Disorder, April 1, 2018 (manual) design, components, perceived increases in service requirements and clinical components and service title changes. Many commenters critiqued the proposed severe and disabling mental illness (SDMI) and substance use disorder (SUD) worksheets. Many commenters pointed out discrepancies, language variances, prior authorization and continued stay timeframe inconsistencies, conflicts with current administrative rule, confusing terminology, unnecessary service coordination, and exclusion of services provided concurrently which limit access to necessary supports.

RESPONSE #1: In response to comments, the department recognizes that the proposed manual has discrepancies, language variances, inconsistencies, and confusing terminology. The department will make amendments to the manual to try to alleviate these concerns. Our intent for the manual is to be a comprehensive source of information for providers regarding services provided through the department's Addictive and Mental Disorders Division (AMDD). Ultimately, we hope the manual will be easy to read and be thorough regarding services, utilization review requirements, and limits.

The department has considered the comments about the manual and will make the following revisions based on public comment.

The department will remove:

Any proposed specific concurrent services limitation with day treatment including Intensive Community-Based Rehabilitation (ICBR); and
group therapy with adult group home concurrent services limitation.

This will not apply to any hospital or secure services such as acute inpatient hospitalization. The department maintains the requirement that services duplicative in nature cannot be provided concurrently and the onus is on clear provider documentation. The department asserts it is not appropriate to require members receiving adult group home, adult foster care, or ICBR services to attend day treatment; it is the member's choice.

The department has decided to remove proposed individual and group therapy mental health and SUD outpatient therapy limits.

The department has removed proposed targeted case management (TCM) limits.

The department will ensure that throughout the manual that Program of Assertive Community Treatment (PACT) can be prior authorized for up to 180 days and PACT continued stay reviews can be up to 180 days, depending on need.

The department will amend the name of "Secure Crisis Diversion" to "Crisis Stabilization Program" to be consistent with department administrative rules pertaining to licensure and will reduce the response time for prior authorization (PA) requests to two business days. The name change ensures that both voluntary and secure crisis diversion are covered in the manual. The department has added additional language related to voluntary crisis services for clarity.

The department will clarify submission of documentation for acute services must be within 36 hours.

The department will remove the word "therapeutic" from the Adult Group Home and Adult Foster Care titles, will remove mental health therapy components from Adult Group Home and Adult Foster Care, and modify the medical necessity criteria for Adult Group Home and Adult Foster Care so that it is less restrictive.

The department will remove the adult group therapy component for day treatment. The department will modify the medical necessity criteria for day treatment so that it is less restrictive.

The department will clarify that a member receiving PACT services should be receiving those services in the setting most convenient to the member, which will generally be in the community and not the clinic. The member's choice must be documented in the member's treatment plan.

The department has asked for clarification from Centers for Medicare and Medicaid Services (CMS) related to the billing of multiple groups on a single day. Until we receive clear guidance, providers should adhere to written department guidance and Current Procedural Terminology (CPT) definitions and limitations.

The department was asked to remove "private mental health professional" from the provider requirements in ICBR. We cannot find this statement in the manual. We did find this statement in IMR and that is referenced in RESPONSE #14.

The department will remove references to "Mental Health Center" (MHC) from individual and group outpatient therapy and only reference MHC for services that must be provided by such entity.

The department will add language to clarify that Federally Qualified Health Clinics (FQHC) and lookalikes must adhere to the behavioral health service requirements.

The department will remove the billing requirements section throughout the manual.

The department recognizes that commenters have a preferred organization for certain parts of the manual but not all commenters agreed what that organization should be. The department made some changes to the organization of the manual as follows:

Repeated reference to the forms, which contain the directions for submittal, from the Utilization Management section in the At-A-Glance section and the SUD section to ensure it is clear to providers how and where to get forms for utilization review.
Moved Amended Coordination of Services section under Utilization Management.
Moved Members Leaving a Correction Facility section under the Purpose section and amended the language to make it generalized to members who are required to receive services by any other entity.
Moved the SDMI and SUD definition to the Definition section.
Moved the Administrative Review/Fair Hearing section into Section 1, Utilization Management.

The department made the following changes to the manual for clarity and readability:

Added a statement that services with limitations include an exception clause for CBPRS and Day TX found to be medically necessary in the At-A-Glance section.
Amended the wording for DSM diagnosis to be consistent throughout the manual.
Removed the confidentiality statement because it is already provided elsewhere.
Uncapitalized M in "manual" throughout the document.
Referred to At-A-Glance section under Continued Stay Review section for all services where utilization review is required.
Cover page:
Removed the word "Proposed."
Amended the effective date to May 1, 2018 from April 1, 2018.
Changed the title due to confusion that this manual is only related to Adult Substance Use Disorder services.

Purpose:

Added a clarifying statement that this manual replaces the Medicaid portion of the CD Provider manual, but not the Non-Medicaid portion of that manual.
Added information clarifying that the manual is adopted and incorporated into rule and provided rule cross-references.
Coordination of Services Provided Concurrently Section:
Removed the directives from this section and left in the requirement that services may not be duplicated and are subject to recovery if duplication occurs.

Definitions:
Moved the SDMI and SUD definition to the Definition section.
Added a definition for DSM.
Added Individualized Treatment Plan and updated the acronym formatting.

Section 1, Utilization Management:
- Reworded the Authorization section under Section 1, Utilization Management.
- Changed the title of "Pending Authorization" to "Pending Request."
- Removed the language from the Denial section that a physician is the only party who may issue a denial. Also removed "A denial may be issued with additional days…" because this sentence was confusing.
- Changed wording in Desk Review section to "physician reviewer" to be consistent with the language used in the Peer-to-Peer section.
- At-A-Glance:
- Added a column specifying the diagnostic criteria for each service.
- Updated to reflect amendments to the utilization management of the services.
- Added SUD Intensive Outpatient Services (ASAM 2.1).

Section 3, Medicaid Adult Mental Health Services:
- Removed title Section 3, retitled, and now under Section 2.
- Moved the SDMI clinical guidelines requirements paragraph to this section.
- Acute Inpatient Hospital Services:
  - Moved the part of the definition down to Provider Requirements section that were provider requirements.
  - Updated the diagnostic criteria language in the Medical Necessity Criteria for consistency.
  - Updated UR Required Forms to specify only needed for OOS facilities.
  - Day TX Service:
    - Amended requirements to remove reference to half-day.
    - Concurrent Services Guide:
    - Has been removed and moved to each service section.

Though it is not a Medicaid service, the department intends to work with
state-approved providers who provide psychoeducation, a Non-Medicaid service, as part of their contracts to ensure that classes provided as part of intensive outpatient SUD treatment may be billed to the SUD treatment contracts.

Providers and members with manual questions on an ongoing basis are encouraged to contact the Addictive and Mental Disorders Division at 406-444-9344. The department appreciates the commenter's willingness to provide input on the manual through the public comment process. Going forward, the department will open the manual and rule as needed to make changes.

COMMENT #2: Several commenters questioned whether implementing utilization review would save the department money, allow appropriate access to services, or delay reimbursement to providers. Several commenters expressed concern that additional paperwork for prior authorization, continued stay reviews, and SDMI and SUD worksheets are an administrative burden without a corresponding rate increase and the exclusion of documentation as a billable component of many services. Several commenters stated the proposed SDMI and SUD worksheets have limited value and the department seems to question the clinical judgement of providers.

RESPONSE #2: Utilization review is a best practice that helps maintain adherence to a budget by ensuring the member is receiving medically necessary services at the appropriate level of care, thus allowing Medicaid dollars to go as far as they can in treating a population of members. The department will evaluate these changes and analyze results going forward and may need to adjust. Variables the department intends to monitor include:

Trends in member utilization
Denials and deferments
Number of providers
Length of stays

The department depends on providers for the Medicaid program safety net and does not question the professional judgement of providers.

Capturing the provider's clinical determination on the proposed SDMI Definition and SDMI Level of Impairment worksheet and proposed SUD Risk Rating and Level of Care worksheet (SDMI and SUD worksheets) ensures the medical necessity of services by documenting the initial and periodic assessment of the member's condition, thus ensuring the continued service need at the appropriate level of care. The department considered additional utilization review instead of documentation, but determined documentation would present less of a cost and administrative burden to providers than additional utilization review. The proposed SDMI and SUD worksheets provide an objective and consistent assessment tool to determine the appropriate level of care and the tools assume that the provider clinician will make the best judgement for the member.

COMMENT #3: One commenter asked if the proposed manual replaces the Substance Use Disorders Services CD Provider manual.

RESPONSE #3: Yes, in part. The proposed manual replaces the Medicaid portion of the CD Provider manual. The Non-Medicaid portion of the CD Provider manual will be moved into the manual in a future proposed rulemaking.

COMMENT #4: Many commenters made statements regarding rate reductions, changes in Medicaid medical benefits, changes to children's mental health and TCM benefits, aligning substance use providers to the Resource Based Relative Value Scale (RBRVS) reimbursement method, and provided comments to amendments in prior department rulemaking under MAR Notice Nos. 37-788 and 37-828. Several commenters questioned why additional utilization management would be applied to already decimated rates.

RESPONSE #4: The department acknowledges the frustration related to budgetary changes within the department, but these comments are outside the scope of this rulemaking. See RESPONSE #2 regarding utilization management.

COMMENT #5: Many commenters expressed concern over whether the proposed outpatient therapy limits are subject to telehealth and the billable originating and distance site code for telehealth Q3014.

RESPONSE #5: As stated in RESPONSE #1, the department will remove all outpatient therapy limits from the manual.

Regarding the Q3014 code, Medicaid reimburses providers for medically necessary telemedicine services furnished to eligible members. Telemedicine is not itself a unique service, but a means of providing selected services approved by Medicaid. Providers may only bill procedure codes for which they are already eligible to bill. Services not otherwise covered by Medicaid are not covered when delivered via telemedicine. The use of telecommunication equipment does not change prior authorization or any other Medicaid requirements established for the services being provided. See the Montana Medicaid Provider website (http://medicaidprovider.mt.gov) for more information.

COMMENT #6: Several commenters asked why the department is imposing a limit of eight members for a group therapy session.

RESPONSE #6: The department will revise this limit to 16 members. Substantial research supports between eight and 12 members in a group for substance use treatment.

COMMENT #7: Several commenters asked if new service limits apply to a calendar or state fiscal year, if unused services are prorated or carry over, when the effective date of the limit is in relation to the current fiscal year and the effective date of the proposed rulemaking.

RESPONSE #7: The department has determined that instead of initiating new limits for TCM, utilization trends will be monitored. The department has decided not to pursue outpatient therapy limits now. See RESPONSE #1.

COMMENT #8: Many commenters questioned whether regulations in the Patient Protection and Affordable Care Act and Montana law regarding parity were being followed.

RESPONSE #8: The department believes we are following the Patient Protection and Affordable Care Act and the Montana law regarding parity.

COMMENT #9: Many commenters expressed concerns with the content and requirements in the proposed SDMI and SUD worksheets. One commenter suggested combining the proposed SDMI definition and Level of Care worksheet into one document for simplicity. One commenter requests clarification of several components of the proposed SUD worksheet. The form states the provider must submit with prior authorization requests the current medication administration record, physical exam, and current labs. The commenter seeks clarification if this applies to American Society of Addiction Medicine (ASAM) 3.7 and 3.5 levels of care and proposes amending the medication administration record language to "current medication list, if available." The commenter states providers may be unable to obtain records from private physicians and asks if the phrase "current labs" refers to urinalysis testing or a full panel and seeks a definition of "current." One commenter requests clarification of the required frequency of reassessing the level of care for the member with the proposed worksheet. One commenter questions how incarcerated members will obtain this information while incarcerated. One commenter equates this to requiring a member to see a doctor just to see another doctor.

RESPONSE #9: In response to comments, the department will revise the SDMI worksheets into one document.

The department will clarify on the SUD worksheet and manual the requirements for utilization review by level of care (3.1, 3.5, and 3.7) that align with ASAM criteria. Additionally, members who meet criteria for 3.7 level of care can be admitted and provide required documentation for the prior authorization within 36 hours of admission.

The requirement to provide medical information will be revised to note that medication records will be included if available. A physical exam and current labs will only be required to justify a prior authorization at an ASAM 3.7 level of care but will not be required prior to placement. The exam and labs must be completed within 24 hours of placement and submitted to the department's contractor within 36 hours. The department does not wish to delay placement at this level of care; however, a prior authorization for billing will not be issued until all paperwork has been received.

COMMENT #10: One commenter stated as an accredited child advocacy center under the umbrella of a federally qualified health center (FQHC) they are required to practice evidence based interventions. The two models used by FQHCs, TF-CBT and PCIT, require 12-18 and 14-18 sessions respectively. Some of their members will not meet the SED or SDMI definition thus compromising the fidelity of these interventions.

RESPONSE #10: As noted in RESPONSE #1, the limits for outpatient therapy will be removed from the manual. The youth limit rulemaking was promulgated by the department under MAR Notice No. 37-828 and is outside the scope of this proposed rulemaking.

COMMENT #11: Many commenters opposed the limit of 96 units (24 hours) of TCM per state fiscal year. Several commenters stated two hours of TCM a month is inadequate and the continued stay authorization of up to 24 units (six hours) is insufficient. One commenter states requiring the provider to track units is an administrative burden. One commenter asks how an FQHC will adhere to the limit as they bill a bundled rate at one unit regardless of how many units of TCM they provide that day. One commenter asked that SUD women and children's homes be excluded from the limit. One commenter states the reduction of TCM services will result in fewer mental health providers serving Montana due to access to clinical supervision and practicum experience for licensure were not achievable.

RESPONSE #11: The department will not limit TCM now; see RESPONSE #1.

The department will revise both the SDMI and SUD worksheets; see RESPONSE #7.

Providers are required to document services billed to Medicaid as defined in ARM 37.85.414, which is not an additional requirement. Targeted case managers are not required to be licensed mental health professionals. TCM is not a direct clinical service and therefore does not affect the supervised clinical activities required for licensure.

COMMENT #12: One commenter states the continued stay review for PACT should be eliminated as there are some clients who will remain in this service for the remainder of their lifetime.

RESPONSE #12: Prior authorization and continued stay reviews for PACT are necessary to ensure the member is treated in the least restrictive level of care based on medical necessity. We will monitor this process. If it seems like the length of stay should be longer for PACT based on the evidence, we will consider increasing in a future rulemaking.

COMMENT #13: Many commenters opposed the implementation of an eight-unit (two hours per day) limit for Community Based Psychiatric Rehabilitation and Supports (CBPRS). Two commenters state the limit of two hours per day of CBPRS negatively impacts the quality of the service. One commenter states per current rule completing documentation for utilization management would not be a reimbursable activity for CBPRS. One commenter states the department is reducing the reimbursement rate for CBPRS. One commenter asks if CBPRS will continue to be allowed for nursing homes and waiver programs.

RESPONSE #13: The department recognizes the impact the reductions may have on Medicaid providers and vulnerable Montanans. All Medicaid budget reductions cause concern. These reductions are necessary to keep the department within its authorized appropriation while maintaining the core Medicaid services required by the federal government and provide optional community based service programs. Completing utilization management paperwork is not a component of this service. The department is not proposing to reduce the rate for CBPRS or make changes to nursing home or waiver services in this rulemaking.

Exceptions to the CBPRS limit will be reimbursed if the exception to limit form is submitted and the member meets the medical necessity criteria.

COMMENT #14: One commenter states the following: (1) it is unreasonable that the Illness Management and Recovery (IMR) requirements include "private licensed mental health professional, a licensed mental health professional associated with a MHC, or licensure candidates (under clinical supervision)" because the service requires training in an approved curriculum and feels the department is raising the level of provider credentials; (2) in service requirements should be removed as the service is member driven and should not be based on a comprehensive assessment; and (3) in service requirements should be removed as IMR is provided on a fee for service basis and it serves no purpose to require that it be provided once a week. The commenter further states a mental health professional associated with a SUD program and trained peers should be allowed to provide this service.

RESPONSE #14: The department will revise the manual language as IMR is not required to be provided by a licensed mental health professional associated with a MHC, or a licensure candidate (under clinical supervision) associated with a MHC. The practitioner providing IMR services must be trained in IMR services, as IMR is an evidence-based service program for managing mental illness. IMR services are based on a current member's comprehensive assessment. The department will remove the once a week requirement from the service requirement section.

A mental health center is the only approved provider type for IMR and the department will remove the private mental health professional from the provider requirements.

COMMENT #15: One commenter asks when the rules for peer support will be coming out to support changes in service delivery.

RESPONSE #15: Currently, the department has not received legislatively appropriated funds for Medicaid peer support services. SUD peer support services are available to contracted state-approved programs for SUD and co-occurring diagnoses and coverage is outlined in the CD Provider manual. The department has plans to issue an RFP for peer services for mental health using federal block grant dollars.

COMMENT #16: One commenter stated that the best practice for dialectical behavior therapy (DBT) is group therapy followed by individual therapy and proposes 12 groups with six hours of individual therapy.

RESPONSE #16: The department is not proposing changes to the therapy service of DBT. DBT is reimbursed with a HCPCS code outside of the CPT codes.

COMMENT #17: One commenter asks for clarification regarding the member leaving a correctional facility and being court ordered to treatment. If the member no longer meets the medical necessity criteria for the level of care or loses Medicaid eligibility how does the provider seek reimbursement from the Department of Corrections? One commenter states the SMART program is solely dependent on revenue from providing ACT classes, SUD evaluations, treatment court referrals, and level 2.1 and 1.0 services and is concerned how this will relate to court ordered services. One commenter asked whether someone involved with probation or CPS can get more TCM units.

RESPONSE #17: The proposed rulemaking defines medical necessity criteria to ensure the member is treated in the least restrictive level of care. If the member does not meet the criteria for the level of care a lower level of care should be utilized. The comment regarding Medicaid eligibility is outside the scope of this proposed rulemaking. The process for obtaining payment court-ordered services is outside the scope of this proposed rulemaking. Medical necessity is not based on involvement with another agency, such as probation or CPS, but rather, medical necessity.

COMMENT #18: One commenter requests clarification for secure crisis services regarding voluntary entry to the service and if voluntary entry is subject to utilization management.

RESPONSE #18: Continued stay reviews for secure crisis services (renaming to crisis stabilization program) are required for services exceeding five days and do not require initial prior authorization. The department has added language to the description of voluntary crisis services for clarity. See RESPONSE #1.

COMMENT #19: One commenter states the day treatment client to staff ratio of ten clients to one staff member infringes on management of staffing and the restriction is financially unfeasible and requests the language be removed.

RESPONSE #19: This requirement is in ARM 37.106.1937.

COMMENT #20: A few commenters stated that the proposed rule and corresponding manual contradict the intent and the programming of the ASAM criteria.

RESPONSE #20: The department is proposing to repeal old rules which conflict with current ASAM guidelines. The proposed manual will be reflective of current ASAM guidelines.

COMMENT #21: Many commenters have asked how the utilization management process will work, where should they submit the documentation to, and many expressed concerns regarding the required documentation for SUD services as outlined on the SUD High-Risk Rating and Level of Care worksheet.

RESPONSE #21: The department will be hosting a provider training. It was originally scheduled on March 22 and 23, 2018, but will be rescheduled. When it is rescheduled the department will send information to provider lists and details will be found at: http://dphhs.mt.gov/amdd.

COMMENT #22: One commenter states the manual appears to prohibit a SUD provider from billing mental health therapy if co-occurring treatment is necessary and being delivered within the SUD program. One commenter states throughout the manual it is referenced that anyone who holds a behavioral health license with SUD in their scope of practice may do assessments and treatment, but leaves out licensed addictions counselors which is required for assessments and treatment.

RESPONSE #22: The department agrees with the commenter that co-occurring treatment is necessary. To be clear, a licensed addiction counselor is a person with a behavioral health license, and SUD is within the scope of their practice. We have clarified this in the definitions section of the manual. The manual will be consistent with both statute and Montana Board of Behavioral Health licensure administrative rules.

COMMENT #23: One commenter states the concurrent services for outpatient therapy in residential and inpatient settings appears to be a violation of the Patient Protection and Affordable Care Act for parity in mental health and SUD services, i.e. refusing to pay for therapy relating to a co-occurring SUD disorder while the member is receiving inpatient treatment for mental illness. The commenter asks for clarification if a collaborating provider could deliver outpatient SUD services concurrent with services delivered in these programs.

RESPONSE #23: See RESPONSE #1. The concurrent services guide has been removed and moved to each service section.

COMMENT #24: One commenter states the proposed language in ARM 37.27.138 regarding referral, transfer, discharge, aftercare, and follow-up services that ensure continuity of care would constitute a financial hardship if they are mandatory and asks the department to describe the method of payment for this requirement. One commenter states the department has eliminated any option for level 1 services unless the member starts at that level of care. The commenter states a member must meet medical necessity criteria for level 2.1 for additional services and seems contradictory to the proposed rule language requiring aftercare.

RESPONSE #24: The requirement of referral, transfer, discharge, aftercare, and follow-up services has been a requirement to maintain a program's state-approved chemical dependency programs status; therefore is not a new requirement. The department disagrees with the commenter's assessment of the elimination of ASAM 1.0 services, but has eliminated outpatient therapy limits.

COMMENT #25: One commenter states the 24-hour staffing for SUD Clinically Managed Low-Intensity Residential (ASAM 3.1) is inconsistent with ASAM criteria. The commenter points out that mental health group home does not require 24-hour staffing in the manual and states mandatory 24-hour staffing in a ASAM 3.1 will result in the closure of all programs at this level of care due to fiscal impact. One commenter asks if a 24-hour crisis line and onsite security cameras are considered 24-hour staffing. The commenter states they have the house manager living on site in an apartment who they could utilize for an on-call or emergency response.

RESPONSE #25: The department will revise the manual to clarify that staffing requirements are subject to ARM 37.106.1491. Mental health group homes are subject to ARM 37.106.1938 which does not require 24-hour staffing.

COMMENT #26: One commenter questions the criteria between mental health group homes and 3.1 homes. The commenter states they are similar in scope and requests clarification of substantive differences between the services to address variances in the rate and prior authorization or continued stay review length for mental health group homes versus 3.1 homes.

RESPONSE #26: This is outside the scope of this rulemaking but the department appreciates the comment and will take into consideration for future rulemaking.

COMMENT #27: One commenter questions if there is a limit for biopsychosocial assessments in a state fiscal year.

RESPONSE #27: A limit currently does not apply to this code, but documentation of the medical necessity of the need for the assessment must be present in the member record as with any other Medicaid service.

COMMENT #28: One commenter asked if the proposed rulemaking is in effect for adult services only or if it applies to adolescents, specifically the adolescent 3.5 halfway home single gender residential high intensity program.

RESPONSE #28: All service requirements reflected for SUD in this rule and proposed manual for limitations, prior authorization requirements, and continued stay reviews apply to all ages. This clarification will be added to the manual.

COMMENT #29: One commenter states the outpatient therapy limits impact requirements for women who reside in women and children's homes who must maintain treatment hours to receive TANF funds which are necessary public funds that allow them to remain in the home.

RESPONSE #29: The process for obtaining payment for TANF services are outside the scope of this proposed rulemaking. Outpatient therapy limits are being removed. See RESPONSE #1.

COMMENT #30: One commenter states the SUD outpatient services section removes the requirement for assessment and screening and all admissions criteria are removed as well as counselor licensure requirements.

RESPONSE #30: The ASAM criteria is referenced in the manual and includes assessment and admission criteria. The proposed SUD worksheet contains assessment, screening, and admission criteria. The department is not responsible for licensure of behavioral health professionals.

COMMENT #31: One commenter states there are no references in the manual to an interdisciplinary treatment team; however, there is a reference to interdisciplinary treatment plans. The commenter states there are no references to trauma-informed care or motivational enhancement strategies.

RESPONSE #31: The department promotes, not requires, an interdisciplinary treatment plan. The department also supports trauma-informed care and motivational enhancement when those are appropriate practices, but leaves that to the provider to determine.

COMMENT #32: One commenter questions whether MCDC is affected by the proposed rulemaking.

RESPONSE #32: All changes in this rulemaking process apply to all Medicaid providers, including the Montana Chemical Dependency Center (MCDC).

COMMENT #33: One commenter states detox services are not included in the manual and requests clarification of prior authorization for this service. The commenter also asks if the 5-day requirement for residential services includes a detox stay or is that after.

RESPONSE #33: The only detoxification services that require utilization review are provided within the ASAM level of care 3.7. See RESPONSE #9.

COMMENT #34: The commenter asks if there will be block grant or grant resources given the exclusion of ICBR from most services. One commenter asks for clarification of ICBR and asks if the designation of ICBR is given to the member or the facility. The commenter asks if the ICBR is approved via a contracting process and who the contract is between.

RESPONSE #34: ICBR is an available Medicaid service with an all-inclusive rate at a group home setting providing rehabilitation services. ICBR is an intensive group home service and not a member designation. Currently, block grant resources will not be given for ICBR services. ICBR services are a designation of services performed in a group home setting. ICBR services are not a contracted service. Providers interested in ICBR services can call AMDD for further clarification.

COMMENT #35: One commenter asked the value of the Magellan contract.

RESPONSE #35: AMDD is currently contracted with Magellan for $342,000 to perform mental health utilization review for SFY18. We also paid this same amount in SFY17. AMDD is currently negotiating a SUD utilization review contract with Magellan for a proposed contracted amount of $129,586 for April – June 2018, paid through SUD block grant funds.

COMMENT #36: Commenters asked who made the decisions for cuts, what their qualifications are, and whether the rural/frontier nature of the state was factored in the calculations. Commenters asked why the department didn't do a cost study.

RESPONSE #36: The proposed cuts were generated by AMDD leadership and forwarded to department leadership after the special legislative session in November 2017, when it became apparent that to meet the division's budget this biennium controls on spending would need to be enforced. The proposed cuts were approved by department leadership. The department did not have time or funding to do a cost study due to the need to stay within budget this biennium.

COMMENT #37: One commenter stated that there is an underlying negative attitude from the Addictive and Mental Disorders Division (AMDD) and Medicaid towards SUD programs and counselors in the field. The commenter states that they are treated as if they are fundamentally dishonest, every effort is made to control them and guard against fraud, and the documentation requirements are overwhelming. The commenter asserts these factors are dismantling SUD treatment in the state and making it impossible to provide effective treatment.

RESPONSE #37: The department does not believe providers are fundamentally dishonest. The department believes that all behavioral health treatment is important. The department proposes to implement utilization review for two reasons. First, the implementation of utilization review is a best practice that can help programs maintain adherence to a budget, which is vitally important this biennium. Utilization review helps to ensure that members receive appropriate care at the least restrictive level of care. Secondly, the Centers for Medicare and Medicaid Services (CMS) require a state who receives federal participation in the reimbursement of Medicaid programs to manage the use of those benefits. 42 CFR 456 requires the state to implement utilization control that:

(a) Safeguards against unnecessary or inappropriate use of Medicaid services and against excess payments;

(b) Assesses the quality of those services; and

The documentation requirements are in place to provide evidence that services were medically necessary and appropriate to meet the needs of the members we serve, not to be overwhelming for providers.

It is not the department's intent or goal to dismantle SUD treatment in Montana, but ensure it is provided according to the federal and state requirements including 42 CFR 456, 42 CFR 433, and 42 CFR 455.

COMMENT #38: Several commenters questioned duplication of utilization management and Surveillance and Utilization Review (SURS) functions.

RESPONSE #38: The department does not believe the SURS retrospective review is a duplication of prior authorization and continued stay reviews, which help ensure members are in the right level of service or be moved to a higher or lower level of appropriate service. SURS retrospective review is a federally mandated check to ensure that Medicaid programs have rigorous oversight.

COMMENT #39: One commenter states the department makes it difficult to access the information regarding the proposed rulemaking and it is not right or legal to have a comment period without telling providers they have the chance to comment. Several commenters stated they were only informed of the proposed changes by members providing a copy of the member letter outlining benefit changes they received prior to the public hearing for this rulemaking.

RESPONSE #39: The department maintains an interested parties list for notification of proposed rulemaking. Individuals who wish to have their name added need to make a written request (or by email), as provided in 2-4-302, MCA. A public hearing is also held for most proposed rulemakings, providing a public forum for comments and an avenue for the submission of written or emailed comments Requests to be added to the department's interested persons' list may be sent to the department's Office of Legal Affairs, as described in every department notice of proposed rulemaking, or directly to AMDD at: Interested Parties Coordinator, Department of Public Health and Human Services, Addictive and Mental Disorders Division,100 North Park, Ste. 300 PO Box 202905 Helena, MT 59620-2905 fax 406-444-9389 or e-mail hhsamdemail@mt.gov.

Lastly, Medicaid members are required to have 30 days' notice of changes to Medicaid benefits, which is in line with the member letter publication.

COMMENT #40: Many commenters requested the manual be delayed until July 1, 2018. Many commenters requested the opportunity to work with the department in revising the manual and the proposed SDMI and SUD worksheets.

RESPONSE #40: The department appreciates the commenter's willingness to provide input on the manual through the public comment process; however, the department cannot delay the manual until July 1, 2018, because of a need to meet budgetary goals. The department did delay the manual for one month to address stakeholder concerns and will work with providers on a continual basis to monitor services and respond to concerns. It is the department's intention that the manual and corresponding administrative rules be revised or updated as needed. Providers and members are encouraged to contact the Addictive and Mental Disorders Division at 406-444-9344 with manual or program questions.

COMMENT #41: Many commenters expressed concern about service reductions, limits, and new medical necessity criteria. Many commenters illustrated their comments with shared stories of recovery, hope, dismay, ethical concerns, and provider and department responsibility. Commenters expressed general trepidation regarding the proposed changes including increased use of higher levels of care and involvement with courts and corrections systems and other unintended consequences including disparate impact on certain populations over others. Several commenters state the department appears to single out mental health providers and SUD providers and ignores the waste and abuse of other Medicaid programs and other government programs. Some commenters gave additional suggestions to generate revenue, thus making cuts unnecessary. Several commenters submitted suggestions to improve delivery and access to services including implementing managed care, new computerized data systems, electronic health records, telehealth, and prioritizing resource allocations, improving access in Indian country, and suggested new service models or questioned why services currently under development are not included in this rulemaking. One commenter proposes several substantial changes and suggestions for the overall prior authorization process including selective application based on provider performance or adherence to contractual agreements, transparency and communication between the department, providers, and patients, ensuring continuity of care, and adoption of automation. Many commenters provided additional information with their comments including studies, legislative reports, best practices, evidence based practices, clinical opinions, statistics about mental health and substance use, citations of the Americans with Disabilities Act, concerns for business models and retaining clinical staff and workforce shortages. Several commenters mentioned the "Addressing Substance Use Disorder in Montana: Strategic Plan Interim Draft Report" as absent from the rulemaking and manual and conflicting with the proposed rulemaking.

RESPONSE #41: The department recognizes the impact any provider rate reductions may have on Medicaid providers, workforce issues, and vulnerable Montanans, and hopes the reductions have the least number of ramifications and unintended consequences of all the possible action to mitigate the budget. All Medicaid budget reductions cause concern and are not implemented lightly; however; these reductions are necessary to allow the department to stay within its authorized appropriation while maintaining the core Medicaid services required by the federal government and community based service programs. The department had to implement limits to avoid cutting entire services altogether. Under normal circumstances the department values a longer and more thorough communication and collaboration with the public, both providers and members. The difficulty under this circumstance was the severe budget shortfall, resulted in required immediate actions to severely reduce department spending. The department appreciates the suggestions for service and access improvements, savings or service models in reports, studies, best practices, statistics, citations, delivery systems, improving access and services in Indian country, overall delivery enhancements, implementation of new standards, and offers of collaboration with stakeholders. The addition of services and implementation or integration of new or existing systems is outside the scope of this rulemaking. The department is committed to implementing strategies as identified in the Strategic Plan but must also meet necessary budgetary restrictions.

The department did not address comments outside this rulemaking.

5. These rule amendments and repeals are effective May 1, 2018.

/s/ Jorge Quintana /s/ Sheila Hogan

Jorge Quintana Sheila Hogan, Director

Rule Reviewer Public Health and Human Services

Certified to the Secretary of State April 3, 2018.