Montana Administrative Register Notice 37-870 No. 24   12/21/2018    
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BEFORE THE Department of Public

health and human services of the



In the matter of the amendment of ARM 37.34.3005 pertaining to updated Medicaid rates manual






TO: All Concerned Persons


1. On October 19, 2018, the Department of Public Health and Human Services published MAR Notice No. 37-870 pertaining to the public hearing on the proposed amendment of the above-stated rule at page 2034 of the 2018 Montana Administrative Register, Issue Number 20.


2. The department has amended the above-stated rule as proposed.


3. 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: The department received many comments that the proposed rule change does not consider nondiscretionary employment/administrative expenses, including payroll taxes, paid leave, other benefits, and training for staff.


RESPONSE #1: The department has taken the comments into consideration and is increasing the available funding, included in the direct care rate adjustments to include an additional 18% available for increased tax and person-specific overhead costs.


COMMENT #2: One commenter asked how the department is defining direct-care staff.


RESPONSE #2: The Montana Developmental Disabilities Program Manual of Service Rates and Procedures of Reimbursement for HCBS 1915c 0208 and 0667 Waiver Programs defines direct care staff as those staff whose primary responsibility is the day-to-day, hands-on, direct support of people with disabilities, training and instruction, and assistance with and management of activities of daily living. In addition, direct care staff is defined in ARM 37.34.102 as "a person employed by a contractor in a position the duties of which focus on the hands on delivery of services to persons with developmental disabilities or to their families or both. Direct care tasks include: monitoring and delivering basic life and health care needs, implementing programs, intervening when maladaptive behaviors occur, recording progress toward meeting goals and objectives, documenting incidents, and sharing information with supervisory staff or other professionals according to the policies and procedures of the contractor. In outreach services, direct care tasks may include conducting home visits and providing specialized instruction to family members in the implementation of programs to meet individual needs."


COMMENT #3: The department received several comments expressing concern that the proposed rule change does not include all direct care workers. Commenters expressed specific concerns that supported employment staff were not included, but foster families are considered direct care workers.


RESPONSE #3: The waiver defines supported employment as habilitation services and staff supports needed by a person to acquire a job/position or career advancement in the general workforce at or above the state's minimum wage. Additionally, the supported employment rate is based on a higher level of education and training than other rates that received an increase. The supported employment rate currently in effect is $37.88 with the wage component of the supported employment of the rate being $17.52. People who provide adult foster services are direct care workers because their primary responsibility is the day-to-day, hands-on, direct support of people with disabilities, training and instruction, and assistance with and management of activities of daily living.


COMMENT #4: Does the department plan to propose subsequent administrative rules that increase direct care professional's wages by $3 per hour over the biennium?


RESPONSE #4:  No. The department is implementing a rate increase sufficient to provide direct care workers a wage increase of $1 per hour with 18% available to cover increased tax and person-specific overhead costs. The department is utilizing funding from Senate Bill 9 (SB 9) to implement the intent of HB 638, Senate Bill 261 (SB 261) and SB 9. Utilizing the funding available from SB 9 ensures the direct care wage funding utilized will be a component of the base budget for the 2020-2021 biennium.


COMMENT #5: One commenter asked whether the department can implement this wage increase by applying it through the already established rate methodology that is approved by the Centers for Medicare and Medicaid (CMS). The commenter further questioned whether the department would be arbitrarily and inappropriately changing the rate methodology by implementing this rulemaking.


RESPONSE #5: The current waiver language approved by CMS regarding the rate-setting process specifies four cost components. The waiver states, "The rate-setting process is designed to allow adjustment to any of the 4 cost components exclusive of the others. So we have the ability to specifically adjust the direct care wage, and to adjust other components of the rate if funding allows. Increases/decreases to rates are due to the legislature." The Developmental Disabilities Program applied the available funding to the rate using the methodology as described and approved in the current 0208 Comprehensive Waiver.


COMMENT #6: The department received a number of questions and comments relating to budget and policy.


RESPONSE #6: The department appreciates the comments, but feels the comments are outside of the limited scope of MAR Notice No. 37-870.


COMMENT #7: One commenter inquired how many hours of direct care the department expects to fund with the implementation of this rulemaking.


RESPONSE #7: The department expects to fund 8,724,292 hours.


COMMENT #8: A commenter expressed concern that employers are uncertain how to retroactively implement the increase.


RESPONSE #8: The department, upon final adoption of the proposed rule amendment, plans to release instructions/details to all providers on how to implement the increase.


            4. The department intends to apply this rule amendment retroactively to July 1, 2018. A retroactive application of the rule amendment does not result in a negative impact to any affected party.



/s/ Jennifer C. Kaleczyc                              /s/ Erica Johnston for Sheila Hogan

Jennifer C. Kaleczyc                                   Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services



Certified to the Secretary of State December 11, 2018.


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