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Montana Administrative Register Notice 37-581 No. 8   04/26/2012    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the adoption of New Rules I through IV, amendment of ARM 37.90.401, 37.90.402, 37.90.408, 37.90.410, 37.90.425, 37.90.428, 37.90.442, and 37.90.460  pertaining to home and community-based services for adults with severe disabling mental illness

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On May 16, 2012, at 11:00 a.m., the Department of Public Health and Human Services will hold a public hearing in auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption and 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 May 9, 2011, to advise us of the nature of the accommodation that you need.  Please contact Kenneth Mordan, 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 adopted provide as follows:

 

            NEW RULE I HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  DEFINITIONS  (1) "Adult residential care" means a residential habilitation option for persons residing in an adult foster home, group home, or an assisted living facility.

            (2)  "Case management" means a service that provides the planning for, arranging for, implementation of, and monitoring of the delivery of services available to an person through the program.

            (3)  "Community transitions services" means nonrecurring set-up expenses for persons who are transitioning from an institutional or other provider-operated living arrangement to a living arrangement in a private residence where the person is directly responsible for his or her own living expenses.

            (4)  "Habilitation" means intervention services designed to assist a person to acquire, retain, and improve the self-help, socialization, and adaptive skills necessary to reside successfully at home and in the community.

            (5)  "Health and wellness" means services that assist persons in acquiring, retaining, and improving self-help, socialization, and adaptive skills to reside successfully in the community.

            (6)  "Homemaker chore" means services provided for persons who are unable to manage their own homes, or when the person normally responsible for homemaking is absent.

            (7)  "Illness management and recovery (IMR)" means an evidence-based program to provide services consisting of personalized strategies for managing mental illness and achieving personal goals.

            (8)  "Nonmedical transportation" means transportation through common carrier or private vehicle for access to social or other nonmedical activities.

            (9)  "Pain and symptom management" means a service of traditional and nontraditional methods of pain management.

            (10)  "Personal assistant services (PAS)" is defined at 53-6-145, MCA and includes attendant PAS and socialization/supervision PAS.

            (11)  "Plan of care" means a written plan of supports and interventions to guide the provision of services based on an assessment of the status and needs of a consumer.

            (12)  "Respite care" means the provision of supportive care to a consumer to relieve those unpaid persons normally caring for the consumer.

            (13)  "Serious occurrence" means a significant event which affects the health, welfare, and safety of a person served in home and community-based services.  The department has established a system of reporting and monitoring serious incidents that involve persons served by the program in order to identify, manage, and mitigate overall risk to the person.

            (14)  "Severe disabling mental illness" is defined in ARM 37.86.3503.

            (15)  "Specially trained attendant care" means an option under personal assistance that is the provision of supportive services to a person residing in their own residence.

            (16)  "Substance use related disorder services" means provision of counseling to a person with a substance use related disorder by a licensed addiction counselor or appropriate licensed professional.

            (17)  "Supported living" means the provision of comprehensive supportive services to a person residing in an individual residence or in a group living situation.

            (18)  "Wellness, recovery and action plan (WRAP)" means an individualized plan developed by a person to manage their mental illness.  This is a tool to guide persons through the process of identifying and understanding their personal wellness resources.

 

AUTH:  53-6-402, MCA

IMP:     53-6-402, MCA

 

            NEW RULE II  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  COMMUNITY TRANSITION SERVICES REQUIREMENTS  (1)  Community transition services means nonrecurring set-up expenses for persons who are transitioning from an institutional or other provider-operated living arrangement to a living arrangement in a private residence where the person is directly responsible for his or her own living expenses.

            (2) Allowable expenses are those necessary to enable a person to establish a basic household and may include:

            (a)  customary security deposits that are required to obtain a lease on an apartment or home;

            (b)  essential household furnishings required, including furniture, window coverings, food preparation items, and bed/bath linens;

            (c)  moving expenses;

            (d)  customary setup fees or deposits for utility or service access, including telephone, electricity, heating, and water; and

            (e)  activities to assess need for, arrange for, or procure resources.

            (3)  Community transition services do not include monthly rental or mortgage expenses, food, and diversion/recreational expenses.

            (4)  Refunded security deposits must be paid to the department.

 

AUTH:  53-6-402, MCA

IMP:     53-6-402, MCA

 

            NEW RULE III  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  PAIN AND SYMPTOM MANAGEMENT REQUIREMENTS  (1)  Pain and symptom management is defined as a service that allows the provision of traditional and nontraditional methods of pain reduction and/or management.

            (2)  Treatments are limited to:

            (a)  acupuncture;

            (b)  reflexology;

            (c)  massage therapy;

            (d)  craniosacral therapy;

            (e)  mind-body therapies such as hypnosis and biofeedback;

            (f)  pain mitigation counseling/coaching;

            (g)  chiropractic therapy; and

            (h)  nursing services by a nurse specializing in pain and symptom management.

 

AUTH:  53-6-402, MCA

IMP:     53-6-402, MCA

 

            NEW RULE IV  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  HEALTH AND WELLNESS REQUIREMENTS  (1)  Health and wellness is defined as services that assist consumers in acquiring, retaining and improving self-help, socialization, and adaptive skills to reside successfully in the community.

            (2)  The service includes adaptive health, wellness, and therapeutic recreational services such as:

            (a)  hydrotherapy;

            (b)  living well with a disability; and

            (c)  access to fitness and exercise facilities.

           

AUTH:  53-6-402, MCA

IMP:     53-6-402, MCA

 

4.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

37.90.401  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  FEDERAL AUTHORIZATION AND STATE ADMINISTRATION  (1) through (3) remain the same.

(4)  The state has received federal approval to waive statewide coverage in the provision of program services.  Program services may only be delivered to recipients persons in the following service areas for which federal approval of coverage has been received:

(a) remains the same.

(b)  Cascade County Region, inclusive of the counties of Cascade, Blaine, Chouteau, Glacier, Hill, Liberty, Pondera, Teton, and Toole, and Phillips;

            (c)  Butte-Silver Bow County Region, inclusive of the counties of Butte-Silver Bow, Beaverhead, Deer Lodge, Granite, Powell, and Jefferson; and

            (d)  Missoula County;

            (e)  Lewis and Clark County; and

            (f)  Flathead County Region, inclusive of the counties of Flathead, Lake, Sanders, and Lincoln.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

37.90.402  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  THE PROVISION OF SERVICES

(1) remains the same.

(2)  The department may determine the particular services of the program to make available to a recipient a person based on, but not limited to, the following criteria:

(a)  the recipient's person's need for a service generally and specifically;

(b)  the availability of a specific service through the program and any ancillary service necessary to meet the recipient's person's needs;

(c)  the availability otherwise of alternative public and private resources and services to meet the recipient's person's need for the service;

(d)  the recipient's person's risk of significant harm or of death if not in receipt of the service;

(e) through (4) remain the same.

            (5)  The following services, as defined in these rules, may be provided through the program:

(a) through (o) remain the same.

(p)  chemical dependency counseling substance use related disorder services;

(q) through (t) remain the same.

(u)  community transition services;

(v)  health and wellness; and

(w)  pain and management.

(6)  Monies available through the program may not be expended on the following: 

(a)  room and board; and

(b)  special education and related services as defined at 20 USC 1401(16) and (17); and

(c)  vocational rehabilitation.

            (7)  The program is considered the payor of last resort.  A program service is not available to a recipient person if that type of service is otherwise available to the recipient person from another source.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

37.90.408  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  REIMBURSEMENT  (1) remains the same.

(2)  The following services are reimbursed as provided in (3):

(a) through (i) remain the same.

(j)  chemical dependency counseling substance use related disorder services;

(k) through (o) remain the same.

(p)  illness management and recovery services; and

(q)  Wellness Recovery Action Plan (WRAP).;

(r)  community transition service;

(s)  health and wellness; and

(t)  pain and symptom management.

(3) through (8) remain the same.

            (9)  No copayment is imposed on services provided through the program but recipients consumers are responsible for copayment on other services reimbursed with Medicaid monies.

            (10)  Reimbursement is not available for the provision of services to other members of a recipient's person's household or family unless specifically provided for in these rules.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

37.90.410  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  ELIGIBILITY AND SELECTION

            (1) through (3)(f) remain the same.

            (g)  resides in one of the following service areas for which federal approval of coverage has been received:

            (i) remains the same.

            (ii)  Cascade County Region, inclusive of the counties of Cascade, Blaine, Chouteau, Glacier, Hill, Liberty, Pondera, Teton, and Toole, and Phillips;

            (iii)  Butte-Silver Bow County Region, inclusive of the counties of Butte-Silver Bow, Beaverhead, Deer Lodge, Granite, Powell, and Jefferson; and

            (iv)  Missoula County;

            (v)  Lewis and Clark County; and

            (vi)  Flathead County Region, inclusive of the counties of Flathead, Lake, Sanders, and Lincoln.

            (4) through (6) remain the same.

            (7)  A recipient person may be removed from the program by the department.  Bases for removal from the program include, but are not limited to the following:

            (a) through (h) remain the same.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

37.90.425  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  CASE MANAGEMENT, REQUIREMENTS  (1)  Case management is the planning for, arranging for, implementation of, and monitoring of the delivery of services available through the program to a recipient person.

(2)  Case management services include:

(a)  developing a plan of care for a recipient person;

(b)  monitoring and managing a plan of care for a recipient person;

(c) remains the same.

(d)  maximizing a recipient's person's efficient use of services and community resources such as family members, church members, and friends;

(e)  facilitating interaction among people working with a recipient person;

(f) and (g) remain the same.

            (3)  A case management team must consist of:

            (a)  a registered nurse currently with experience serving on a case management team serving persons who are recipients through the a program of home and community-based services for the elderly and persons with physical disabilities, or severe disabling mental illness; and

            (b)  a social worker currently employed by a licensed mental health center with two consecutive years experience providing case management services to adults with severe disabling mental illness.

            (4) remains the same.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

37.90.428  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  ADULT RESIDENTIAL CARE, REQUIREMENTS  (1)  Adult residential care is the provision of supportive services to a recipient a residential habilitation option for a person residing in an adult foster home, a residential hospice, or a personal care facility an assisted living facility.

(2) remains the same.

(3)  Adult residential care must provide for 24 hour on site response staff to meet scheduled or unpredictable needs of recipients consumers and to provide supervision of recipients consumers for safety and security.

(4)  A recipient consumer of adult residential care may not receive the following services through the program:

(a) through (e) remain the same.

            (5)  Adult residential care facilities must be licensed by the state of Montana.

            (6)  A provider of adult residential care must report serious occurrences, as defined in [New Rule I], to the department.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

37.90.442  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  CHEMICAL DEPENDENCY COUNSELING SUBSTANCE-RELATED DISORDERS SERVICES, REQUIREMENTS  (1)  Chemical dependency counseling Substance-related disorder service is the provision of counseling to a recipient person with a substance abuse problem by a certified chemical dependency licensed addiction counselor or appropriately licensed professional.

(2)  Chemical dependency counseling Substance-related services may be provided on an individual or group basis.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

37.90.460  HOME AND COMMUNITY-BASED SERVICES FOR ADULTS WITH SEVERE DISABLING MENTAL ILLNESS:  ILLNESS MANAGEMENT AND RECOVERY SERVICES, REQUIREMENTS  (1)  Illness management and recovery (IMR) program consists of a series of weekly sessions where licensed mental health practitioners department-approved trainers provide services consisting of personalized strategies for managing mental illness and achieving personal goals to individuals who have experienced the symptoms of schizophrenia, bipolar disorder, and major depression to individuals who have experienced the symptoms of schizophrenia, bipolar disorder, or major depression.

(2) remains the same.

(3)  Mental health practitioners Department-approved trainers work collaboratively with individuals by offering a variety of information, strategies, and skills for use to manage mental illness, achieve personal goals, and further their own recovery.

            (4)  Illness management and recovery has been identified as an evidence-based practice by the Substance Abuse and Mental Health Services Administration.

 

AUTH:  53-2-201, 53-6-402, MCA

IMP:     53-2-401, 53-6-402, MCA

 

            5.  STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) is proposing to adopt New Rules I through IV and amend ARM 37.90.401, 37.90.402, 37.90.408, 37.90.410, 37.90.425, 37.90.428, 37.90.442, and 37.90.460 pertaining to the Home and Community Based Services (HCBS) Waiver for Adults with Severe Disabling Mental Illness.  New Rules I through IV include a definition section and additional services.  The proposed amendments are necessary changes because they will improve the services provided, resolve issues that have been proven previously problematic, and enhance the recovery of persons served.

 

The proposed amendments to the existing rules add additional counties, provide additional services, change requirements for social workers and "Illness Management Recovery" trainers, change the name "recipient" to "person" for consistency across the rules and to recognize that individuals are active participants in their care, and change the name of chemical dependency counseling services.

 

New Rule I

 

The Administrative Rules of Montana Title 37, chapter 90, subchapter 4, "The Home and Community Based Services for Adults with Severe Disabling Mental Illness" does not have a definition section.  New Rule I defines the terms used in subchapter 4.

 

New Rules II - IV

 

Section 53-6-402 (9), MCA states HCBS may include case management, homemaker services, home health aide services; personal care services; adult day health services; habilitation services; respite care services; and other cost-effective services appropriate for maintaining the health and well-being of persons and to avoid institutionalization of persons.   The proposed new rule pertaining to  Community Transition, Symptom and Pain Management, and Health and Wellness services meet this statutory criteria.

 

Community Transition Services are nonrecurring set-up expenses for individuals transitioning from the Montana State Hospital, Montana Mental Health Nursing Care Center, or a long-term care facility.  Many of the residents of the facilities have lost their home and household goods during their stay and these situations have proven to be a barrier to discharge to the community.  The Community Transition Services would allow persons who are ready for discharge to obtain appropriate housing and household goods.

 

The Pain and Symptom Management services, proposed in New Rule III, will allow for traditional and nontraditional methods of pain reduction and/or management.  People on the Waiver are prescribed psychotropic medication.  Often the combinations of pain medications interfere in the health and well-being of the individuals.  There is a danger of over-medication and over-sedation.  The services listed in New Rule III provide alternatives to pain relief.

 

The Health and Wellness requirements in New Rule IV help with physical and social well-being.  Historically, persons with severe disabling mental illness live on an average 25 years less than the average person.  These individuals suffer from diabetes, COPD, heart disease, and obesity to name a few of the medical issues.  New Rule IV's services will assist individuals in acquiring and maintaining activities that will support recovery and healthy lifestyles in the community.

 

ARM 37.90.401 and 37.90.410

 

The proposed amendment to these rules add Phillips, Lewis and Clark, Flathead, Lake, Lincoln, and Sanders counties as approved service areas for the waiver.  The departmant has sufficient appropriation to expand to Lewis and Clark County.  Lewis and Clark County was chosen because of the proximity of staff to oversee the waiver site.  Flathead, Lake, Sanders, and Lincoln counties were selected to receive waiver services when resources are available because they are considered the next population areas in need of waiver services.  Phillips County was selected to provide availability of waiver services for the entire Fort Belknap Reservation rather than part of the reservation.

 

ARM 37.90.402 and 37.90.408

 

The proposed amendments add new services to the waiver program.  These include Community Transition, Pain and Symptom Management, and Health and Wellness services.  Chemical dependency counseling is renamed as "substance-related disorder" services.  The American Psychiatric Association's Diagnostic and Statistical Manual V and International Classification of Diseases (ICD) are adopting the term "substance-related disorder" to include other substances and abuse issues that are not necessarily dependency matters.

 

The Vocational rehabilitation services should have been included in the list of nonallowable expenses in ARM 37.90.402.  This was an oversight in the original rule.  The Centers for Medicare and Medicaid do not allow HCBS waivers to cover prevocational and supported employment services when these services are already provided for in the Rehabilitation Act.

 

ARM 37.90.425

 

The proposed amendment requires that nurses on the case management team have experience rather than being currently employed by waiver services.  The change will help in providing more nurses for HCBS.  Social workers on the case management teams are required to have two years of experience providing case management services to persons with severe disabling mental illness, but they are not required to be employed by a mental health center.  In the past, the salary of social workers employed by the mental health center has been significantly lower than their peers in the waiver program.  In addition, there has been little supervision of social workers since the supervisor is from the mental health center and is not focused on the waiver program.  The proposed rule changes give the waiver programs flexibility in hiring a social worker and allow for better supervision.

 

ARM 37.90.428

 

The proposed amendment includes adult residential care as an option under residential habilitation.  This amendment allows an adult residential care facility to hold a bed and be reimbursed if the resident is hospitalized on a short-term basis or visiting family. Currently, if an individual wants to visit a family member or is hospitalized, the adult residential care facility is not reimbursed for those days.  As a result, the adult residential care facility may discharge the person and not have a bed available for the individual's return.  The proposed amendment requires that adult residential care facilities be licensed by the state under ARM 37.40.1435, and these facilities must report serious occurrences, as defined in New Rule I, to the department.

 

ARM 37.90.442

 

The proposed amendment changes the service called chemical dependency counseling to substance-related disorder services.  This change encompasses not only dependency but also abuse of substances.  The proposed amendment changes the provider name from "certified chemical dependency counselor" to "licensed addiction counselor" and adds other appropriate licensed practitioners who can address treatment for substance-related disorders within the scope of their license.  Chemical dependency counselors, according to their license, are licensed addiction counselors.  Adding the other licensed practitioners allows for additional flexibility in obtaining an appropriate practitioner.

 

ARM 37.90.460

The department is proposing to amend ARM 37.90.460 to change the provider for Illness Management Recovery services from a licensed mental health practitioner to a department-approved trainer.  The department has provided training to persons who can provide Illness Management Recovery services without the need for professional mental health licenses. Persons performing these services are not required to be licensed mental health practitioners.

 

FISCAL IMPACT

 

No fiscal impact.  The proposed changes are included in the 2011 Montana legislative appropriations.

 

            6.  The department intends the proposed rule changes to be applied effective July 1, 2012.

 

            7.  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: Kenneth Mordan, 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., May 24, 2012.

 

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

 

9.  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 7 above or may be made by completing a request form at any rules hearing held by the department.

 

10.  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.

 

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

 

 

/s/ Michelle Maltese                                     /s/ Mary Dalton acting for                           

Rule Reviewer                                             Anna Whiting Sorrell, Director

                                                                      Public Health and Human Services

           

Certified to the Secretary of State April 16, 2012.

 

 

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