Montana Administrative Register Notice 37-872 No. 1   01/11/2019    
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In the matter of the amendment of ARM 37.86.1402 pertaining to clinic services requirements






TO: All Concerned Persons


            1. On January 31, 2019, at 1:00 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 January 22, 2019, 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 rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:


            37.86.1402 CLINIC SERVICES, REQUIREMENTS (1) through (3) remain the same.

            (4) Conditions for coverage of listed ambulatory surgical center procedures:

            (a) Covered surgical procedures are limited to those procedures that do not generally exceed:  Subject to the exclusions in (b), covered surgical procedures are surgical procedures that would not be expected to pose a significant safety risk to a member when performed in an ambulatory surgical center (ASC) and for which standard medical practice dictates that the member would not typically be expected to require active medical monitoring and care at midnight following the procedure.

            (i) a total of 90 minutes operating time; and

            (ii) a total of four hours recovery or convalescent time.

            (b) If the covered surgical procedure requires anesthesia, the anesthesia must be: Covered surgical procedures do not include those that:

            (i) local or regional anesthesia; or

            (ii) general anesthesia of 90 minutes or less duration.

            (c) Covered surgical procedures may not be of a type that:

            (i) generally result in extensive blood loss;

            (ii) requires a major or prolonged invasion of body cavities;

            (iii) directly involves major blood vessels;

            (iv) are generally emergency or life threatening in nature; or

            (v) can safely be performed in a physician's or dentist's office.

            (d) remains the same, but is renumbered (c).

            (5) remains the same.


AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-6-101, 53-6-141, MCA




The Department of Public Health and Human Services (department) is proposing to amend ARM 37.86.1402 to update covered surgical procedures. The reasonable necessity for the proposed amendment is to conform the rule to federal requirements. The proposed amendment will update the clinic service requirements for ambulatory surgical centers to reflect the requirements found in 42 CFR 416.166.


Fiscal Impact


These proposed amendments do not have a fiscal impact as providers are currently following Medicare coverage criteria. These proposed amendments do not change reimbursement methodology, service, or eligible provider criteria.


            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., February 8, 2019.


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 rule 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/ Brenda K. Elias                                       /s/ Sheila Hogan                             

Brenda K. Elias                                            Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services



Certified to the Secretary of State January 2, 2019.


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