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Montana Administrative Register Notice 37-898 No. 23   12/06/2019    
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BEFORE THE Department of Public

health and human services of the

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.40.307 and 37.85.105 pertaining to assisted living and nursing facility reimbursement

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NOTICE OF AMENDMENT

 

TO: All Concerned Persons

 

1. On October 4, 2019, the Department of Public Health and Human Services published MAR Notice No. 37-898 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1735 of the 2019 Montana Administrative Register, Issue Number 19. On October 18, 2019, the department published an amended MAR Notice No. 37-898 at page 1835 of the 2019 Montana Administrative Register, Issue Number 20.

 

2. The department has amended the above-stated rules 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: A commenter stated even very modest inflation to bring the costs to Fiscal Year (FY) 2020 would bring actual costs to about $237 per day, while a rate of $208 is being proposed under ARM 37.40.307. The commenter indicated the statement of reasonable necessity does not adequately address the factors that are to be considered in setting the statewide price under applicable law.

 

RESPONSE #1: ARM 37.40.307(2)(c) sets forth a non-exhaustive list of factors that may be considered in the establishment of the statewide price for nursing facility services. Section 53-6-113, MCA, also sets forth a non-exhaustive list of factors, including the availability of appropriated funds the department may consider in establishing the average statewide price. Actual cost of services is one of several factors the department may consider in establishing the average statewide price. In balancing the factors that may be considered, the department's primary consideration was the availability of appropriated funds. The average statewide price proposed by the department appropriately balances the factors that may be considered.

 

COMMENT #2: A commenter stated there are fact issues related to cost, quality, and access that should be addressed in setting the nursing facility services statewide price. The commenter provided examples of how the statewide price impacts access to nursing facility services and the ability of facilities to recruit and retain qualified staff.

 

RESPONSE #2: The department considered the non-exhaustive list of factors set forth in 53-6-113, MCA and ARM 37.40.307(2)(c). Access to services was considered primarily by reviewing facility reports showing the percentage of beds paid by Medicaid and other payors, as well as any changes in the number of beds in facilities and the number of open facilities.

 

COMMENT #3: A commenter expressed their support for the proposed nursing facility services statewide rate because it is a step in the right direction in terms of moving Medicaid rates for nursing facility services closer to where they need to be to assure quality and access.

 

RESPONSE #3: The department thanks the commenter for their support.

 

COMMENT #4: A commenter stated that for future rulemaking the department should provide information about how it determines the nursing facility services statewide price and identify and explain the factors considered.

 

RESPONSE #4: The information provided in the rule notice is sufficient to enable comment on the proposed rule.  The department will consider for future rule changes the commenter's suggestions.

 

COMMENT #5: A commenter stated for future rulemaking the department should consider quality and cost of providing services as important factors in determining an appropriate reimbursement rate for nursing facility services.

 

RESPONSE #5: The information provided in the rule notice is sufficient to enable comment on the proposed rule.  The department will consider for future rule changes the commenter's suggestions.

 

COMMENT #6: A commenter indicated the statement of reasonable necessity should refer to a spreadsheet the department uses to set individual nursing facility rates. The commenter stated there are many factors that go into determining each facility's rate, and facilities cannot determine if their rate is correct or appropriate based on just a list of rates.  The commenter also suggested the department provide certain information as part of future rulemaking.

 

RESPONSE #6: The rule notice meets the requirements of the Montana Administrative Procedure Act, and the information provided in the notice is sufficient to enable comment on the proposed rule. The notice provides the public with the proposed substantive rule changes, including the change in rates.  The department adopts rates through rulemaking, and nursing facility rates are readily available to the public and to the industry.

 

COMMENT #7: A commenter expressed support for the proposed nursing rate.

 

RESPONSE #7: The department thanks the commenter for their support.

 

COMMENT #8: A commenter expressed support for the proposed assisted living rate.

 

RESPONSE #8: The department thanks the commenter for their support.

 

COMMENT #9: A commenter indicated the statement of reasonable necessity does not adequately explain how the assisting living rate was calculated or how it will be applied and distributed.  The commenter stated they presume the funding will be distributed as a flat rate of $78.80 for each adult residential day and that they support this method of distribution.

 

RESPONSE #9: The information provided in the rule notice is sufficient to enable comment on the proposed rule. The fee schedule increase to $78.80 (daily) is based on an increase of 2.27%. The fee schedule added to the room and board cost equals the maximum daily rate. It is not a flat rate increase to all individuals. The calculation to determine each member's daily rate is based on the sum of their room and board cost, level of care determination, and service package. The room and board cost ($545) did not change and the level of care multiplier ($34) did not change.  The service package was increased by 2.27%.  The calculation for assisted living facilities with regard to room and board of $545 is based on the Medically Needy Income Level (MNIL) in ARM 37.82.1106. The MNIL standard is $525, and members are allowed a general income exclusion in the eligibility calculation setting the room and board amount to $545.

 

COMMENT #10: A commenter recommended the rule be amended to clarify that the room and board payment for assisted living will increase to account for inflation since 2009 when the room and board rate was established.

 

RESPONSE #10: The department is not proposing to adjust the room and board rate as part of this rulemaking.

 

COMMENT #11: A commenter stated the proposed assisting living rate is too low and the current rate is causing serious access problems. The commenter recommended the department take steps to improve Medicaid client access to assisted living services or explain how the obligation to assure access and choice are being met given that about half of all licensed facilities are not currently serving Medicaid clients and about three-quarters of those who do accept Medicaid strictly limit the number of clients served.

 

RESPONSE #11: The department is required by the Centers for Medicare and Medicaid Services (CMS) to ensure that rates are adequate to maintain an ample provider base and to ensure quality of services. At the same time, the department is limited to serve the number of individuals by the State Legislature according to the program budget allocation. There are different methods to use when establishing rates for services provided through the program. The department will be creating a work group of assisted living providers and other interested parties to address some of these concerns.  The group will examine the current rate methodology and discuss other potential options.

 

COMMENT #12: A commenter stated that a shortage of available employees has required raising starting wages from $8.50/hr. to $10+/hr. at their assisted living facility, which is still too low, considering the job the employees perform. The commenter indicated the assisted living rate needs to be increased to help reduce problems with access to assisted living and to cover actual expenses.  The commenter stated lack of access to assisted living results in an increase in the use of skilled care, which is more costly. The commenter summarized approaches taken by other states to address access issues.

 

RESPONSE #12: As stated in the response to comment #11, the department will be creating a work group of assisted living providers and other interested parties to address some of these concerns.  The group will examine the current rate methodology and discuss other potential options.

 

COMMENT #13: A commenter asked the department to consider increasing the Assisted Living Medicaid Waiver rates within the department's Senior and Long-Term Care budget. The commenter stated that significant fiscal savings could be achieved by the movement of some nursing facility residents to assisted living facilities and by the creation of a simplified method. The commenter stated that low reimbursement rates and billing problems are creating access issues.

 

RESPONSE #13: As stated in the response to comment #11, the department will be creating a work group of assisted living providers and other interested parties to address some of these concerns.  The group will examine the current rate methodology and discuss other potential options.

 

COMMENT #14: A commenter stated they operate a 32-bed assisted living facility and usually do not take more than three Medicaid residents.  The commenter indicated they avoid taking on additional Medicaid residents because the Medicaid rate does not adequately cover actual costs.

 

RESPONSE #14: As stated in the response to comment #11, the department will be creating a work group of assisted living providers and other interested parties to address some of these concerns.  The group will examine the current rate methodology and discuss other potential options.

 

COMMENT #15: A commenter stated assisted living facilities are being reimbursed at the Medicaid rate of $77.05 per day, while nursing facilities are reimbursed at $204.30 per day.  The commenter indicated the low rate of reimbursement for assisting living facilities results in facilities limiting or refusing to take Medicaid waiver residents. The commenter stated these access issues result in many Medicaid waiver residents being placed in nursing facilities at significantly increased cost. The commenter suggested the department increase the assisted living rate, which the commenter believes will result in significant fiscal savings by avoiding the payment of nursing facility Medicaid rates for those who do not need such services.

 

RESPONSE #15: As stated in response to comment #11, the department will be creating a work group of assisted living providers and other interested parties to address some of these concerns.  The group will examine the current rate methodology and discuss other potential options.

 

            4. The department intends to apply these rules retroactively to October 1, 2019. A retroactive application of the proposed rules does not result in a negative impact to any affected party.

 

 

/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 26, 2019.

 

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