Montana Administrative Register Notice 37-849 No. 2   01/25/2019    
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In the matter of the amendment of ARM 37.40.701, 37.40.702, and 37.40.705 pertaining to home health program






TO: All Concerned Persons


1. On November 16, 2018, the Department of Public Health and Human Services published MAR Notice No. 37-849 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 2287 of the 2018 Montana Administrative Register, Issue Number 22.


2. The department has amended the following rules as proposed: ARM 37.40.702 and 37.40.705.


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


37.40.701 HOME HEALTH SERVICES, DEFINITIONS (1) remains as proposed.

(2) "Home health aide services" means services of an appropriately trained individual a certified home health aide to assist with routine care not requiring specialized nursing skills and supervised by a licensed registered nurse.

(3) through (6) remain as proposed.


AUTH: 53‑6-113, MCA

IMP: 53-6-101, 53-6-131, 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: A commenter suggested the proposed language in ARM 37.40.701 HOME HEALTH SERVICES, DEFINITIONS (2) which describes the use of "...an appropriately trained individual" to assist with the delivery of home health care be revised. Because the definition of "home health agency" means a licensed and certified provider, the commenter suggests that this definition be more reflective of the requirements of a home health aide who works in a home health agency (i.e., a "certified home health aide"). Alternatively, the commenter suggests the department keep the language as provided under the current rule because (3)(a)(ii) lists "home health aide services" already. The commenter states that using the language "...an appropriately trained individual" does not provide any clarification to the type of training an individual must have to perform these services.


RESPONSE #1: The department agrees that the amendment to ARM 37.40.701(2) should include the language "a certified home health aide" (HHA), to more clearly describe the requirement that a HHA must complete an approved Montana Nurse Aide Training Program. The department has revised the language to state "a certified home health aide."


COMMENT #2: The department received the following comment with regard to ARM 37.40.701(3)(b)(iv): "Maintenance therapy" as defined in ARM 37.86.601(5) is not considered an allowable home health service. The commenter suggests that the department consider including maintenance therapy as allowed in the Medicare Home Health Benefit and described in the Medicare Benefit Policy Manual, Chapter 7, Sections 40.2.1 and 40.2.2. The commenter states that maintenance therapy programs can prevent or slow further deterioration and do not require a high volume of visits by the therapist. The commenter also states these programs are effective for those patients that have special medical complications which require the skills of a qualified therapist to perform the therapy service safely.


RESPONSE #2: The Montana home health benefit includes "restorative" therapy only. The home health benefit does not include maintenance therapy. The department recognizes the importance of maintenance therapy and covers the service through the Home and Community-Based Services (HCBS) waiver benefit or, for individuals under the age of 21 years, through the Early and Periodic Screening, Diagnostic, and Treatment benefit. The department does not believe it is appropriate to provide maintenance therapy as a home health benefit.


COMMENT #3: A commenter recommends that ARM 37.40.702(8)(a) be revised to read: "If the member is being admitted to home health services immediately following an acute or post-acute stay, the face-to-face encounter shall be conducted by..." The commenter indicates the existing proposed language could possibly be interpreted as meaning that an acute or post-acute stay is required to receive the services and/or face-to-face encounter.


RESPONSE #3: The department disagrees and believes the proposed rule language adequately reflects who may perform the face-to-face encounter and under what circumstances.


COMMENT #4: A commenter suggests removing the exception language in ARM 37.40.702(9)(a) for a certified nurse midwife. The commenter states: "Medicare rules allow for CNMs (certified nurse midwives) to order DME, so it makes sense to keep the language consistent between the face-to-face requirements for home health and DME."


RESPONSE #4: The department disagrees and believes the language it has proposed is consistent with the requirements of the federal regulations. The department interprets 42 CFR 440.70(g)(2) to mean that a certified nurse midwife is not allowed to perform the face-to-face encounter for the initiation of medical equipment. This interpretation is supported by the federal register entry adopting the federal regulation. 81 FR 5530, 5557 (Feb. 2, 2016) ("certified nurse midwives are not permitted to conduct face-to-face encounters required for the items, as proposed at § 440.70(g)(2)").



/s/ Robert Lishman                                      /s/ Sheila Hogan                                         

Robert Lishman                                           Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services



Certified to the Secretary of State January 15, 2019.


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