Montana Administrative Register Notice 37-900 No. 23   12/06/2019    
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In the matter of the amendment of ARM 37.40.815, 37.40.816, and 37.40.830 pertaining to Hospice Rate Increase






TO: All Concerned Persons


            1. On December 27, 2019, at 9:00 a.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 December 20, 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 rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:



            (1) through (3) remain the same.

            (4) The department adopts and incorporates by reference the following sections of 42 CFR as amended August 22, 2014 August 6, 2019:

            (a) through (8) remain the same.


AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA


            37.40.816 HOSPICE, REVOCATION OF ELECTION (1) remains the same.

            (2) The department adopts and incorporates by reference 42 CFR 418.28, as amended August 22, 2014 August 6, 2019, which sets forth the Medicare requirements for revoking the election of hospice care. Copies of 42 CFR 418.28 are available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

            (3) remains the same.


AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA


37.40.830 HOSPICE, REIMBURSEMENT (1) through (11) remain the same.

            (12) The hospice fee schedules are effective October 1, 2018 October 1, 2019. Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov and may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59602-2951.


AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA




The Department of Public Health and Human Services (department) proposes to amend the hospice care administrative rules in two ways. First, the department proposes to amend ARM 37.40.830 to update the Medicaid hospice reimbursement fee schedule referenced in (12), in accordance with changes in federal hospice reimbursement rates set by the Centers for Medicare and Medicaid Services (CMS) in the Federal Register effective October 1, 2019.


Second, the department proposes to amend ARM 37.40.815 and 37.40.816 for the rules to reference recent changes to the Federal Code of Regulations (CFR) in the final Medicare Hospice rule published on August 6, 2019 (CMS-1714-F). The federal changes require an addendum to be added to all hospice election and revocation statements beginning on or after October 1, 2020, that includes information aimed at increasing coverage transparency for patients under a hospice election.


The proposed rule amendments are necessary to pay Medicaid providers according to the current Medicare fee schedule effective October 1, 2019, and to adopt by reference the current applicable federal regulations related to determination of payment rates. In order to pay Medicaid hospice providers according to the Medicare fee schedule and rate methodology, the rules must be updated to provide adoption and incorporation of current federal regulations. Failure to update these rules will result in hospice reimbursement rates no longer staying current with federal changes and providers not having clarity on which federal regulations are applicable for Medicaid hospice services and reimbursement.


The increase in hospice rates will be retroactive to October 1, 2019. Any decreases in hospice rates will not be applied retroactively and would be effective upon adoption of the proposed rule amendments. 


Fiscal Impact


The proposed amendment to ARM 37.40.830 will have a fiscal impact on the hospice program. Funds impacted will be from federal Medicaid fund source (03585) and general fund source (01100). In Fiscal Year (FY) 2019, approximately 409 Medicaid recipients received the hospice benefit.


Much of the Medicaid hospice program's budget provides reimbursement for hospice services provided in nursing facilities in the form of room and board for inpatient nursing facility hospice.


The proposed fee schedule implements an approximate, aggregate reimbursement rate increase of 2.6%, as computed and published by CMS, which will apply to providers in all 56 counties. The adoption of this rate structure rebases the FY 2020 continuous home care (CHC), in-patient respite care (IRC), and general in-patient care (GIP) per diem payment rates. 


Montana hospice rates are affected by a wage index applied geographically by county. The 2020 wage index has increased for Carbon, Yellowstone, and Golden Valley Counties by approximately 4.82% and Cascade County by 3.79%. Missoula County's wage index decreased by approximately 2.17%. All other Montana counties are subject to the Montana rural wage index rate which decreased by approximately 2.91%.


Additionally, two hospice providers will see a hospice reimbursement rate decrease of 2% for failure to comply with the federal quality data submission requirements during the prior fiscal year. A copy of the proposed hospice fee schedule can be found at https://medicaidprovider.mt.gov/proposedfs.


            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., January 3, 2020.


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 26, 2019.


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