37.2.103    EXERCISE OF REGULATORY DISCRETION DURING EMERGENCY

During the period of time set forth in (8), the department will exercise regulatory discretion and waive strict compliance with the following categories of administrative rules to the limited extent that they conflict with the department's implementation of federal COVID-19-related guidance, waivers, or rules, as follows:

(1) Training and other training-related annual recertification requirements in congregate care facilities: 

(a) provisions of ARM Title 37, chapter 34, related to services of the developmental disabilities program and the home and community-based services program (HCBS);

(b) provisions of ARM Title 37, chapter 40, related to home and community-based services for elderly and physically disabled persons;

(c) provisions of ARM Title 37, chapter 97, related to the licensure of youth care facilities;

(d) provisions of ARM Title 37, chapter 100, related to community residences; and

(e) provisions of ARM Title 37, chapter 106, related to the licensure of health care facilities.

(2) Staffing-related licensing and certification requirements in congregate care facilities:

(a) provisions of ARM Title 37, chapter 40, related to home and community-based services for elderly and physically disabled persons;

(b) provisions of ARM Title 37, chapter 90, related to the home and community-based services waiver for adults with severe and disabling mental illness;

(c) provisions of ARM Title 37, chapter 97, related to the licensure of youth care facilities;

(d) provisions of ARM Title 37, chapter 100, related to community residences; and

(e) provisions of ARM Title 37, chapter 106, related to the licensure of health care facilities.

(3) Licensing and certification requirements related to permissible premises, settings, or construction standards in situations:

(a) provisions of ARM Title 37, chapter 97, related to the licensure of youth care facilities;

(b) provisions of ARM Title 37, chapter 100, related to community residences; and

(c) provisions of ARM Title 37, chapter 106, related to the licensure of health care facilities.

(4) Telehealth face-to-face requirements for the provision of medical services:

(a) ARM 37.27.102(9);

(b) ARM 37.27.902(2) and (3), to the extent that provider manuals require face-to-face interactions;

(c) ARM 37.27.517(1)(b);

(d) ARM 37.34.3005(2), to the extent that the rates manual requires face-to-face interactions;

(e) ARM 37.40.702(8) and (9);

(f) ARM 37.40.805(1) through (3), to the extent Medicare normally requires face-to-face encounters;

(g) ARM 37.40.1005(4), to the extent such provision requires in-person meetings;

(h) ARM 37.40.1114(4), to the extent such provision requires in-person meetings;

(i) ARM 37.86.901(2);

(j) ARM 37.86.902(2)(b);

(k) ARM 37.86.3405(2);

(l) ARM 37.86.4402(1);

(m) ARM 37.87.703(1)(h), to the extent that such provision requires face-to-face interactions for home support services;

(n) ARM 37.87.903(7), to the extent the provider manual requires face-to-face interactions;

(o) ARM 37.87.1410(6)(b);

(p) ARM 37.88.101(2), to the extent the provider manual requires face-to-face interactions;

(q) ARM 37.89.501(2);

(r) ARM 37.106.1916(5);

(s) ARM 37.106.1935(4), to the extent such provision requires in-person or face-to-face contacts for targeted case management services; and

(t) ARM 37.106.2011(3), to the extent such provision requires in-person, in-home meetings.

(5) Any provision of ARM 37.82.205 and 37.84.107, to the extent that the rule would end eligibility for any individual enrolled as of March 18, 2020, unless the individual ceases to be a state resident or requests a voluntary disenrollment. Waiver of such requirements and provisions shall not exceed the end of the month in which the nationwide COVID-19 public health emergency ends.

(6) Licensing or certification requirements for congregate care facilities that require background checks, as long as the facility has submitted fingerprint background checks to the appropriate authority and has conducted other background checks, including but not limited to name background checks:

(a) provisions of ARM 37.97.132 and 37.97.140, related to the licensure of youth care facilities; and

(b) provisions of ARM 37.100.138(1) and (2) and 37.100.165(5), related to community residences.

(7) If the intensive care unit of a licensed hospital, critical access hospital, or licensed medical assistance facility is 70% occupied, swing-bed requirements in:

(a) ARM 37.40.402(1)(b)(i)(A) through (D); and

(b) ARM 37.40.405(1)(b) and (2), to the extent necessary to facilitate payment under Medicaid.

(8) This rule is intended to be of limited duration to provide flexibilities to the state's health care industry and related human service organizations as they respond to the COVID-19 pandemic. The rule is repealed and the provisions of this rule expire upon the expiration or rescinding of the nationwide COVID-19 public health emergency determination, issued under section 319 of the Public Health Service Act, 42 U.S.C. § 247d, initially on January 31, 2020, and subsequently renewed by the secretary of the U.S. Department of Health and Human Services, or at the conclusion of any transition period or of phase-down requirements relating to federal waivers issued by the Centers for Medicare and Medicaid Services in response to the COVID-19 pandemic, whichever is later.

History: 50-5-103, 50-5-215, 52-2-111, 52-2-603, 53-2-201, 53-6-113, 53-6-402, 53-24-204, 53-24-209, MCA; IMP, 50-5-103, 50-5-202, 50-5-203, 50-5-204, 50-5-215, 52-2-603, 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-131, 53-6-142, 53-6-402, 53-24-204, 53-24-208, 53-24-209, MCA; NEW, 2021 MAR p. 1791, Eff. 12/11/21.