BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.40.701, 37.40.702, and 37.40.705 pertaining to home health program

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

            1. On December 6, 2018, at 3:00 p.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 amendment 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 26, 2018, to advise us of the nature of the accommodation that you need. Please contact Gwen Knight, 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 amended provide as follows, new matter underlined, deleted matter interlined:

 

37.40.701 HOME HEALTH SERVICES, DEFINITIONS (1) "Home-bound status" means that a recipients:  "Home health agency" means an entity licensed by the Montana Department of Public Health and Human Services, certified by Medicare, and enrolled as a Medicaid provider.

(a) is confined on a full time, part time or intermittent basis to the person's place of residence for medical reasons; 

(b) is unable to obtain required medical services without demonstrated taxing effort; or

(c) cannot reasonably obtain medical services other than through a home health agency.

(2) "Home health aide services" means services of an appropriately trained individual to assist with routine a recipient in the activities of daily living and the care not requiring specialized nursing skills and supervised by a licensed registered nurse of the household.

(3)  "Home health services" means services provided by a licensed home health agency to a member, on a part-time or intermittent basis recipient considered homebound in the recipient's place of residence for the purposes of postponing or preventing institutionalization.

(a) Home health services include:

(i) through (iv) remain the same.

(v) speech therapy services; and

(vi) disposable medical supplies for the purposes of the visit; and

(vi) (vii)  medical supplies and, equipment, and appliances suitable for use in any setting in which normal life activities take place and as provided in ARM 37.86.1801 the home.

(b) Home health services do not include:

(i) personal care services as provided at ARM 37.40.1101, et seq. Title 37, chapter 40, subchapter 11;

(ii) Community First Choice services provided in ARM Title 37, chapter 40, subchapter 10;

(ii) (iii)  visits made by a registered nurse for evaluating the home health needs of a recipient member or to review the provision of home health services by a home health aide or a licensed practical nurse; and

(iii) (iv)  maintenance therapy as provided at ARM 37.86.601, et seq Title 37, chapter 86, subchapter 6.

(4)  "Home health services visit" means a personal contact with the member in the place of residence of a place of service recipient made for the purpose of providing a covered home health service.

(5)  "Place of residence service" means the residential setting in which normal life activities take place the recipient generally resides.

(a) Place of residence includes a recipient's own home, a personal care facility, a foster home, a community home or other residential setting for persons who have a developmental disability or a physical disability, a rooming house or a retirement home.

(b) (a)  Place of residence service does not include a hospital, a nursing facility, an adult day care center, or a day habilitation facility providing developmental disabilities services or an intermediate care facility for individuals with intellectual disabilities.

(6) "Skilled nursing services" means professional nursing services, as defined in the Montana Nurse Practice Act, that are medically necessary to treat health care problems, provide health teaching, and/or provide health counseling provided on an intermittent or part time basis to meet the medical needs of a recipient who needs nursing procedures.

 

AUTH: 53‑6-113, MCA

IMP: 53-6-101, 53-6-131, 53-6-141, MCA

 

37.40.702 HOME HEALTH SERVICES, REQUIREMENTS  (1) through (3) remain the same.

(4)  Home health services must be:

(a) ordered by the recipient's member's attending physician;

(b) remains the same.

(c) reviewed and renewed by the recipient's member's attending physician at a minimum of 60 day intervals.

(5) The provider must maintain documentation that the recipient meets the homebound definition.

(5) A written plan of care must include:

(a) how care is to be provided;

(b) a summary of the member's condition;

(c) documentation of the medical necessity;

(d) rationale for the required skill level;

(e) treatment plans;

(f) discharge goals; and

(g) certification by the member's physician.

(6) A member's need for medical supplies, equipment, and appliances must be reviewed annually by the member's attending physician.

(6) (7)  Written physician orders, care plans and other recipient All member records related to the delivery of home health services must be current and available upon request of the department or its designated representative.

(8) For the initiation of home health services, the department requires an initial face-to-face encounter which must be related to the primary reason the member requires home health services and must occur within 90 days before or within 30 days after the start of care.

(a) The face-to-face encounter shall be conducted by the certifying physician, an authorized non-physician practitioner (NPP), or an attending or post-acute physician when the member is being admitted to home health services immediately following an acute or post-acute stay.

(b) NPPs authorized to perform the face-to-face encounters for home health services are: 

(i) a nurse practitioner;

(ii) a certified nurse midwife;

(iii) a clinical nurse specialist working with a physician; or

(iv) a physician assistant working under the supervision of a physician.

(c) If a NPP performs the face-to-face encounter, findings must be communicated to the certifying physician and included in the member's record.

(9) For the initiation of medical supplies, equipment, and appliances, a face-to-face encounter related to the reason the member requires medical equipment is required and must occur within six months prior to the start of the services.

(a) The face-to-face encounter for medical equipment shall be conducted by the certified physician or an authorized NPP, with the exception of a certified nurse midwife.

(7) (10)  Home health services, except skilled nursing services, are limited to a combined maximum of 100 visits per recipient per fiscal year. Skilled nursing services are limited to 75 visits 180 visits per recipient per fiscal year within 365 days from the day of the first authorized visit.

(a) remains the same.

(8) (11)  Home health aide services are subject to the following limitations:

(a) remains the same.

(b) Home health aide services must be provided under the supervision of a registered professional nurse and in accordance with a written plan of treatment established certified by a physician.

(c) A person receiving personal care attendant services or Community First Choice services may not receive home health aide services.

 

AUTH: 53-6-113, MCA

IMP: 53-6-101, 53-6-131, 53-6-141, MCA

 

37.40.705 HOME HEALTH SERVICES, REIMBURSEMENT

(1) remains the same.

(2) Home health services reimbursement includes the following services:

(a) and (b) remain the same.

           (c) medical supplies, and equipment, and appliances suitable for use in any setting in which normal life activities take place the home.

 

AUTH: 53-6-101, 53-6-113, MCA

IMP: 53-6-101, 53-6-111, 53-6-131, 53-6-141, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) proposes to amend ARM 37.40.701, 37.40.702, and 37.40.705. These amendments are necessary to incorporate changes made to the Code of Federal Regulations (CFR), specifically 42 CFR 440.70, as amended February 2, 2016, dealing with standards for home health services. Under the amended federal regulation, home health services cannot be restricted to individuals who are homebound or to services furnished solely in the home. The amended federal regulation also implements new face-to-face encounter requirements for initiation of home health services. Additionally, the federal regulation clarifies when medical supplies, equipment, and appliances are covered. 

 

In order to maintain compliance with federal regulations, the home health services program rules must be updated to conform with 42 CFR 440.70. Failure to update these rules will result in the home health services program being out of compliance with federal regulations.

 

The department is proposing to amend ARM 37.40.702 to increase the allowable number of home health visits. This change is necessary to set service availability at levels that reflect the characteristics and, therefore, the service needs of persons for whom home health services are most appropriate.

 

The department is also proposing to make stylistic and organizational changes to ARM 37.40.701, 37.40.702, and 37.40.705 to make the rules clearer. These changes are necessary to improve administration of the program and comprehension of the rules.

 

ARM 37.40.701

 

The department has removed the "home-bound status" definition. The department added a definition to define the term "home health agency." The department has revised the rule to more clearly define the types of services that fall under the home health services program and training requirements applicable to home health service providers. References to the term "recipient" have been changed to "member" so that the rules consistently use the same term to identify persons receiving home health services.

 

ARM 37.40.702

 

The department has added language to clarify what must be contained in a written plan of care. The department has implemented the federal requirement for a face-to-face encounter to initiate home health services and identified the non-physician practitioners authorized to perform face-to-face encounters. The department has revised the rule to clarify coverage for medical supplies, equipment, and appliances. The department has also revised the rule to increase the allowable number of home health visits to 180 visits and to change the applicable time period from fiscal year to one year from the date of the first authorized visit. References to the term "recipient" have been changed to "member" so that the rules consistently use the same term to identify persons receiving home health services. 

 

ARM 37.40.705

 

The department has revised this rule to remove reference to a home based requirement for receipt of home health services and to clarify coverage for medical supplies, equipment, and appliances.

 

Fiscal Impact

 

These rule amendments will increase the number of beneficiaries who are eligible for home health services due to the removal of the home bound status requirement and the expansion of service delivery locations. This may lead to a cost shift for programs that currently provide services to medically needy populations. The 1915(c) HCBS Big Sky Waiver and 1915(c) Waiver for Individuals with Severe Disabling Mental Illness programs provide private-duty nursing services to 257 Medicaid members who could be eligible for home health services depending on the care they need. The expected shift in services could lead to an increase in home health services expenses. The total estimated annual fiscal impact for the home health services amendment is $1.1 million.

 

Funds impacted will be from federal Medicaid fund source 03583 and general fund source 01100. The department is unable to ascertain the exact fiscal impact to the home health services program at this point due to lack of available data. In FY 2018, approximately 331 Medicaid members received the home health services benefit. The annual operating budget for FY 2018 was $476,847.00.

 

            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: Gwen Knight, 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., December 14, 2018.

 

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

 

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

 

10. Section 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 not appropriate for performance-based measurement and therefore are not subject to the performance-based measures requirement of 53-6-196, MCA.

 

 

 

/s/ Robert Lishman                                      /s/ Sheila Hogan                                         

Robert Lishman                                           Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services

 

 

Certified to the Secretary of State November 7, 2018.