Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the amendment of ARM 37.5.117, 37.5.331, 37.79.201, 37.79.202, 37.79.206, 37.79.207, 37.79.301, 37.79.302, 37.79.303, 37.79.326, and 37.79.801 pertaining to Healthy Montana Kids Plan

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

TO: All Concerned Persons

1. On September 1, 2010, at 1:30 p.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 Department of Public Health and Human Services no later than 5:00 p.m. on August 24, 2010, to advise us of the nature of the accommodation that you need. Please contact Rhonda Lesofski, 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:

37.5.117 CERTAIN TITLE 50 PROGRAMS AND OTHER PROGRAMS FOR WHICH NO PROCEDURE IS OTHERWISE SPECIFIED: APPLICABLE HEARING PROCEDURES (1) Hearings under the programs specified in this rule are available to the extent specifically provided by law, including the Montana Code Annotated and department rules. The provisions of ARM 37.5.311 and 37.5.318 do not apply to such hearings. Such hearings shall be conducted in accordance with the Montana Administrative Procedure Act and ARM 37.5.304, 37.5.307, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(a) through (n) remain the same.

(o) requests for departmental review of final ~~grievance~~ decisions ~~by contractors~~ under the Healthy Montana Kids (HMK) Plan;

(p) through (v) remain the same.

AUTH: 50-1-202, 53-2-201, 53-4-1009, 53-6-113, MCA

IMP: 41-3-1103, 41-3-1142, 42-10-104, 50-1-202, 50-4-612, 50-5-103, 50-6-103, 50-6-402, 50-15-102, 50-15-103, 50-15-121, 50-15-122, 50-31-104, 50-52-102, 50-53-103, 52-2-111, 53-2-201, 53-4-1004, 53-4-1009, 53-4-1105, 53-6-101, 53-6-111, 53-6-113, 53-6-402, 53-20-305, 53-24-208, MCA

37.5.331 NOTICE OF APPEAL AND REVIEW OF PROPOSAL FOR DECISION (1) remains the same.

(2) The notice of appeal must be made to and shall be decided by the Board of Public Assistance, Department of Public Health and Human Services, Office of Fair Hearings, P.O. Box 202953, Helena, MT 59620-2953 in cases arising from the following programs:

(a) through (f) remain the same.

(g) refugee assistance; ~~and~~

(h) mental health services plan.; and

(i) Healthy Montana Kids (HMK).

(3) through (8)(b) remain the same.

AUTH: 53-2-201, 52-2-704, 52-2-726, 53-2-201, 53-2-606, 53-4-212, 53-6-113, 53-7-102, MCA

IMP: 52-2-704, 53-2-201, 53-2-606, 53-4-1004, 53-4-1009, 53-4-1105, MCA

37.79.201 ELIGIBILITY (1) An applicant may be eligible for covered services under the HMK coverage group if:

(a) through (g) remain the same.

(h) for three months prior to enrollment the applicant ~~does not have or~~ has not had creditable private health insurance coverage ~~for three months prior to becoming eligible for the HMK coverage group~~. This requirement is waived ~~three month period does not apply~~ if the parent or guardian providing the insurance:

(i) through (viii) remain the same.

(ix) has insurance coverage that is not accessible (e.g. coverage is through an HMO in another state); or

(x) loses Tricare military health insurance; or

(xi) has an annual aggregate amount of health insurance premiums and cost sharing expenses imposed for coverage of the family of a child which exceeds 5% of the family's income.

(2) An applicant who is eligible for health benefits coverage under the Montana Employee's Health Insurance Plan or the Montana University System Employees Health Insurance Plan is not eligible for HMK coverage. State of Montana and Montana University System employees' children may be eligible for the HMK coverage group under the following conditions: the family meets HMK income guidelines and the health insurance premiums and cost-sharing expenses exceed 5% of the family's income for the benefit year.

(3) and (4) remain the same.

(5) Family income must be verified to determine eligibility. The department will request documentation of income from the applicant and will access various electronic databases to verify income as needed.

(a) through (B) remain the same.

(b) Family income does not include:

(i) through (iv) remain the same.

(v) the interest earned on ~~(2)(b)(iii)~~ (5)(b)(iii) and (iv);

(vi) through (12) remain the same.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.202 NONQUALIFYING APPLICANTS (1) remains the same.

(2) Applicants who are themselves eligible or who have a parent who is eligible for state employee or the Montana University System employee insurance benefits are not eligible for the HMK coverage group.

(3) through (5) remain the same but are renumbered (2) through (4).

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.206 ELIGIBILITY REDETERMINATION, NOTICE OF CHANGES

(1) Eligibility determinations shall be effective for a period of 12 months unless one or more of the following changes occurs:

(a) through (e) remain the same.

~~(f) the enrollee or the enrollee's parent becomes eligible for state employee or the Montana University System employee benefits before the expiration of the 12 month eligibility period;~~

(g) and (h) remain the same but are numbered (f) and (g).

(2) remains the same.

(3) An HMK renewal application must be completed and eligibility redetermined every 12 months. If the renewal application is not returned before the HMK coverage group enrollment is scheduled to end, benefits will terminate. A new application may be completed at a later date but, if the children are determined eligible, they may be placed on the waiting list if one exists.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.207 TERMINATION OF ELIGIBILITY AND GUARDIAN LIABILITY

(1) through (1)(b) remain the same.

(2) The HMK coverage group eligibility terminates at the end of the month the department becomes aware:

(a) remains the same.

~~(b) the parent or guardian or enrollee becomes eligible for state employee or Montana University System employee insurance benefits;~~

(3) and (4) remain the same.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.301 COVERED BENEFITS (1) The following services, if medically necessary, are covered benefits:

(a) and (b) remain the same.

(2) through (4) remain the same.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.302 COVERAGE LIMITATIONS (1) ~~The lifetime maximum benefit coverage is one million dollars per enrollee.~~ There is no lifetime limit on the dollar value of benefits per enrollee.

(2) and (3) remain the same.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.303 BENEFITS NOT COVERED (1) In addition to any exclusions noted elsewhere in these rules, the following services are not covered benefits:

(a) through (n) remain the same.

(o) any medical transportation other than ambulance services;

~~(p) ambulance services;~~

(q) through (y) remain the same but are renumbered (p) through (x).

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1005, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.326 DENTAL BENEFITS (1) The maximum dental benefits paid under the basic dental plan will be 85% of the billed services received up to ~~$350~~ $1,000 paid per benefit year for each enrollee. For example, ~~$412~~ $1,176 in services received would result in ~~$350~~ $1,000 paid.

(a) remains the same.

(b) Providers may bill the enrollee, parent, or guardian for services received in excess of ~~$1,000~~ $1,176 per benefit year.

(2) Providers must bill for services using the procedure codes and modifiers set forth, and according to the definitions contained in the American Dental Association Manual of Current Dental Terminology ~~Third Edition (CDT-3)~~ (CDT 2009/2010).

(3) through (4) remain the same.

(5) Enrollees with significant dental needs beyond those covered in the basic dental plan may, with prior authorization, receive additional services through the HMK coverage group Extended Dental Plan (EDP). The EDP program is dependent on legislative appropriation for the program.

(a) An HMK coverage group enrollee determined eligible for extended dental benefits may receive additional services in the benefit year. The maximum EDP payment to all dental providers for an enrollee's additional dental services is $1000 per benefit year.

(b) remains the same.

(c) The maximum basic and EDP payments combined is ~~$1350~~ $2,000 (~~$350~~ $1,000 basic plan and $1000 EDP) for a benefit year.

(6) and (7) remain the same.

AUTH: 53-4-1004, 53-4-1005, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1005, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.801 GRIEVANCE AND APPEAL PROCEDURES (1) and (2) remain the same.

(3) An applicant, parent, or guardian aggrieved by a denial, suspension, or termination of the HMK coverage group eligibility or an enrollee, parent, or guardian aggrieved by a final grievance decision of a third party administrator, including but not limited to a reduction or denial of benefits, may request a fair hearing in accordance with ARM 37.5.304, 37.5.307, 37.5.313, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(4) remains the same.

~~(5) A proposal for decision by the hearing officer is a final agency decision for purposes of 2-4-702, MCA and is subject to judicial review as provided in Title 2, chapter 4, part 7, MCA.~~

AUTH: 53-4-1009, MCA

IMP: 53-4-1003, MCA

4. The Department of Public Health and Human Services (the department) is proposing the amendment of ARM 37.5.117, 37.5.331, 37.79.201, 37.79.202, 37.79.206, 37.79.207, 37.79.301, 37.79.302, 37.79.303, 37.79.326, and 37.79.801 pertaining to Healthy Montana Kids Plan.

The department administers the Healthy Montana Kids (HMK) Plan, which is funded by the state and federal government to pay for covered health care services to low income Montana children. The department is proposing amendments and additions to current rules to comply with requirements of the Patient Protection and Affordable Care Act of 2010 (PPACA), to develop and/or amend current rules to reflect requirements and options of the Children's Health Insurance Program Reauthorization Act (CHIPRA) of 2009, to develop and/or amend current rules to reflect requirements and recommendations in Montana I-155, the Healthy Montana Kids Plan, and to amend current rules to reflect program policy changes.

ARM 37.5.117, 37.5.331, and 37.79.801

The department is proposing to amend ARM 37.5.117, 37.5.331, and 37.79.801 to remove any ambiguity in rules regarding the appeal procedures applicable to the HMK program. In October, 2006 the program, then known as CHIP, changed from a contracted insurance plan to a program that pays on a fee-for-service basis and uses a contracted third party administrator (TPA). To implement this change the rules for grievances and appeal procedures were amended to provide the opportunity for appeal of a TPA's decision to the department's Office of Fair Hearing. The intent was to establish a hearing procedure consistent with other contested case proceedings at the department level, including appeal of a proposed decision to the Board of Public Assistance (BPA). Language was inadvertently left in ARM 37.79.801 stating that a hearing officer's decision was a final administrative order subject to judicial review. This conflicts with the procedural requirement that hearing officer decisions are proposed decisions that may be appealed to the BPA. The amendments to ARM 37.5.117, 37.5.331, and 37.79.801 remove the incorrect reference to appeal to district court and correctly reference the BPA.

ARM 37.79.201, 37.79.206, and 37.79.207

The department proposes to implement the PPACA option to cover eligible children of Montana state employees and Montana University System employees if approved by the Centers for Medicare and Medicaid Services (CMS). Title XIX of the Social Security Act (SSA), Section 2110(b)(2)(B) excluded children of families who were public employees from benefit coverage under state child health benefits plans. Section 10203(6)(C) of the PPACA, amended the SSA and allows CHIP programs to provide eligibility for children from families who are employees of public entities if their annual aggregate amount of premiums and cost-sharing would exceed 5% the family's income. Montana's wages are relatively low and many state and university employees are not able to cover the cost of health care for their children. Implementation of this option will increase children's access to health care services.

The department proposes to amend ARM 37.79.201(1)(h) to implement a "hardship exception" to the three month insurance delay period for eligible families who have an aggregate amount of health insurance premiums and cost-sharing expenses imposed for coverage of a family of a child which exceeds 5% of the family's income. Currently, many Montana families are hesitant to have their children be uninsured for three months. This is especially true for families who have children with chronic conditions, special health needs or require prescription medications on an ongoing basis.

ARM 37.79.202

The department proposes to update language in ARM 37.79.202 to reflect changes in ARM 37.79.201 providing coverage for eligible children of state of Montana and Montana University System employees.

ARM 37.79.301 and 37.79.303

The department proposes to add licensed ambulance services as a covered benefit in ARM 37.79.301 and delete ambulance services as a benefit not covered in ARM 37.79.303. Utilization of ambulance services in HMK claims history reveals the need for this benefit for children of low income families. This amendment adds coverage for services provided by means of a privately or publicly owned motor vehicle or aircraft that is maintained and used for the transportation of patients. This amendment does not provide HMK coverage for transportation that does not offer skilled medical services. It does not allow coverage for transportation to or from nonemergent medical care.

ARM 37.79.302

The department proposes to delete language that limits the lifetime maximum payment to $1 million for HMK coverage group members. The PPACA of 2010, section 2711 removes maximum lifetime limits of group health plans and health insurers. HMK proposes removal of the lifetime limit to assure compliance with the PPACA.

ARM 37.79.326

The department proposes to amend this rule to increase the maximum basic dental payment from $350 to $1,000 per member per benefit year. This proposed change will affect all HMK members who utilize dental benefits and will allow access to needed dental services. During federal fiscal year (FY) 2009 approximately 12,000 CHIP members utilized basic dental services.

Fiscal Impact

It is estimated that 19,000 HMK enrollees and approximately 5,808 HMK participating providers may be impacted by the proposed rule amendments. The estimated fiscal impact of these rule changes will be $1.9 million in federal funds and $500,000 in state funds during FY 2011 and $4 million in federal funds and $1 million in state funds during FY 2012.

5. The department intends the rule amendments to be applied effective October 1, 2010. In the event the rules are amended retroactively no negative impact is anticipated.

6. 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: Rhonda Lesofski, 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., September 9, 2010.

7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

8. 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 6 above or may be made by completing a request form at any rules hearing held by the department.

9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

/s/ Geralyn Driscoll /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State August 2, 2010.