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| Montana Administrative Register Notice 20-9-54 | No. 21 11/08/2012 | |
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BEFORE THE DEPARTMENT OF CORRECTIONS OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On November 30, 2012, at 10:00 a.m., the Department of Corrections will hold a public hearing in Room 3-65 of 5 South Last Chance Gulch, at Helena, Montana, to consider the proposed adoption, amendment, and amendment and transfer of the above-stated rules.
2. The Department of Corrections 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 Corrections no later than 5:00 p.m. on November 22, 2012, to advise us of the nature of the accommodation that you need. Please contact Jeff Christofferson, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-6551; fax (406) 444-0522; or e-mail jchristofferson@mt.gov.
3. The proposed new rules provide as follows:
NEW RULE I DEFINITIONS For the purposes of this subchapter, the following definitions apply: (1) "CAPS" means child and adult protective services, the online statewide management system maintained by DPHHS. (2) "Cost containment pool" means funds retained by the department under 41-5-132, MCA, for disbursement by the cost containment review panel. (3) "Cost containment review panel" means the panel established in 41-5-131, MCA. (4) "Department" means the Department of Corrections as authorized in 2-15-2301, MCA. (5) "DPHHS" means the Department of Public Health and Human Services. (6) "Juvenile delinquency intervention act" (JDIP) means the act established by the Montana Legislature and implemented by the Department of Corrections to more effectively manage juvenile placement services and funding. (7) "Mental disorder" has the meaning found in 53-21-102, MCA. (8) "Youth correction facility" means a facility for the habilitation of delinquent youth such as the Pine Hills Youth Correctional Facility, Riverside Youth Correctional Facility, or a youth correctional facility under contract with the Department of Corrections.
AUTH: 41-5-2006, MCA IMP: 41-5-130, 41-5-131, 41-5-132, 41-5-2003, 41-5-2006, MCA
STATEMENT OF REASONABLE NECESSITY: New Rule I is necessary to define terms used in this subchapter.
NEW RULE II REMOVING A YOUTH WITH A MENTAL DISORDER FROM A STATE YOUTH CORRECTIONAL FACILITY (1) A youth correctional facility must remove a youth committed to it if the facility learns that the youth suffers from a mental disorder and, because of the mental disorder, the youth: (a) is substantially unable to provide for the youth's own basic needs including the youth's health or safety; i.e., cannot provide for the youth's hygiene; (b) has recently caused self-injury or injury to others; (c) presents an imminent threat of injury to himself/herself or others; or (d) the youth's disorder will, if untreated, predictably deteriorate to the point the youth will become a danger to himself/herself or to others. (2) Treatment staff in a youth correctional facility will assess youth at the following times to determine if the youth suffers from a mental disorder and the youth meets any of the criteria in (1)(a) through (d): (a) at the time of the admission to the facility; (b) at regular intervals if the youth has been diagnosed with a mental disorder or if the youth has been prescribed psychotropic medications for a mental disorder; and (c) if the youth's behavior suddenly changes and the youth becomes aggressive, assaultive, self-injurious, or dangerous. (3) If, after assessment by the correctional facility treatment staff, the facility has reason to believe the youth suffers from a mental disorder and meets one of the criteria in (1)(a) through (d), the facility will obtain an evaluation of the youth by a medical doctor, an advanced practice registered nurse with a clinical specialty in psychiatric mental health nursing, a licensed psychologist, or a person who has been certified by the Department of Public Health and Human Services. (4) If the person listed in (3) certifies that the youth suffers from a mental disorder and meets one of the criteria in (1)(a) through (d), the facility will make application to Medicaid and to in-state psychiatric residential treatment facilities for residential psychiatric treatment of the youth. If no in-state psychiatric residential treatment facilities will accept the youth, the facility will make application to out-of-state psychiatric residential treatment facilities. (5) When a youth correctional facility places a youth in a psychiatric residential treatment facility, it will periodically discuss the youth's progress with the treatment facility. If the youth makes sufficient progress so the youth no longer suffers from a mental disorder or no longer meets any of the criteria in (1)(a) through (d), the youth correctional facility will take the youth back in the facility, or may release the youth to juvenile parole.
AUTH: 41-5-2006, MCA IMP: 41-5-1504, 41-5-2006, MCA
STATEMENT OF REASONABLE NECESSITY: The principal reason for this rule is to comply with a statutory mandate to adopt a rule necessary to perform the department's duties under the Juvenile Delinquency Intervention Act including a rule regarding removing youth with a mental disorder from state youth correctional facilities. There is presently no rule for which an amendment would suffice to carry out the purpose of this statutory mandate, therefore the department elected to promulgate a new rule. The statute the rule implements, 41-5-1504, MCA, mandates that a youth who has a mental disorder and meets the criteria in 53-21-126, MCA, must be removed from the facility and moved to a more appropriate placement in response to the youth's mental health needs. In addition to suffering from a mental disorder, the youth must, because of the mental disorder: (a) be substantially unable to provide for the youth's own basic needs including the youth's health or safety; (b) recently caused self-injury or injury to others; (c) present an imminent threat of injury to himself/herself or others; or (d) if untreated, predictably deteriorate to the point the youth will become a danger to himself/herself or to others. The department enumerated the above-listed criteria in the rule as a reference. The department had to first define when it needed to assess youth to determine if the youth must be removed from the youth correctional facility. The department determined that it was appropriate to first assess every youth when he/she arrives at a facility. The department concluded, based on youth services professionals' experience with youth in correctional facilities, that youth who have been previously diagnosed with a mental disorder and youth who have been prescribed psychotropic medications for a mental disorder should be assessed at regular intervals after they enter the facility because there is a risk such youth's mental status could deteriorate. The professionals also determined that a youth should be assessed if the youth's behavior suddenly changes to aggressive, assaultive, self-injurious, or dangerous. The department determined that facility treatment staff is in the best position to make an initial determination/assessment about a youth's mental status. If the staff's initial assessment reveals a youth suffers from a mental disorder and possibly meets one of the criteria listed in 53-21-126, MCA, the facility will obtain an evaluation of the youth from a professional person. The department decided the persons appropriate to perform evaluations were the same professionals listed in 53-21-102(16), MCA, as "professional persons" for purposes of performing evaluations for Department of Public Health and Human Services: a medical doctor, an advanced practice registered nurse with a clinical specialty in psychiatric mental health nursing, a licensed psychologist, or a person who has been certified by the Department of Public Health and Human Services. If the professional determines a youth suffers from a mental disorder and meets one of the criteria listed in 53-21-126, MCA, the youth must be removed from the facility and placed in a more appropriate placement. The department ascertained that the only suitable placements for a youth who suffers from a mental disorder and meets one of the criteria for placement out of a youth correctional facility are psychiatric residential treatment facilities for residential psychiatric treatment of youth. The department deemed it important to first attempt to find a more suitable placement for the youth within the state of Montana as Montana facilities are more cost effective, it is in the youth's best interest, and optimal for the youth's recovery to be as close as possible to the youth's support network of friends and family. If the department, however, cannot find an acceptable in-state psychiatric residential treatment facility that will accept the youth, it is necessary to find a treatment facility out-of-state and the department will make application for such out-of-state placement. Finally, the department determined it needs to make periodic inquiries to determine if the youth should be returned to the youth correctional facility. The department determined the best approach to take to fulfill that requirement is for the youth correctional facility that removed the youth to stay in contact with the facility where it placed the youth and periodically discuss the youth's progress. If the youth can be placed back in the youth correctional facility, the facility will make those arrangements, or the Montana Department of Corrections Youth Services Division may release the youth to juvenile parole.
4. The rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:
20.9.101 DEFINITIONS For the purposes of this
AUTH: 41-5-125 IMP: 41-5-121, 41-5-122
STATEMENT OF REASONABLE NECESSITY: The department repealed all but one of the rules in this subchapter; it, therefore, deleted all the definitions that were only applicable to the repealed rules.
5. The rules as proposed to be amended and transferred provide as follows, new matter underlined, deleted matter interlined:
20.9.129 (20.9.204) ALLOCATION OF JUVENILE PLACEMENT FUNDS TO THE OFFICE OF COURT ADMINISTRATOR, JUVENILE PAROLE, JUDICIAL DISTRICTS, AND COST CONTAINMENT (1) For each fiscal year, out of the money appropriated by the Legislature for juvenile placement funds, the department will allocate money to the Office of Court Administrator, the cost containment pool, and the juvenile parole in the following manner and amounts: (a) The department will allocate $25,000 to the Office of Court Administrator for evaluations of out-of-home placements, programs, and services. (b) The department will allocate at least $1 million to the cost containment pool. The cost containment review panel will recommend to the department an amount to be allocated to the cost containment pool. After considering the recommendation of the cost containment review panel, the department shall determine if it will allocate more than $1 million to the cost containment pool. If the cost containment pool expenditures exceed $900,000 in the previous fiscal year, the department will allocate at least an amount equal to the amount over $900,000 of pool expenditures in addition to $1 million to the pool for the next fiscal year; the department may allocate additional funds. (c) After funds have been allocated as indicated in (1)(a) and (b), the department will allocate 11 percent of appropriated juvenile placement funds to juvenile parole for out-of-home placements, programs, and services for youth on juvenile parole. (2) After funds have been allocated as indicated in (1)(a) through (c), the department shall allocate the remaining funds to judicial districts for out-of-home placements, programs, and services for youth. The cost containment review panel will determine the formula the department must use to establish the amount of funds allocated to each judicial district. (3) After the cost containment review panel has determined the allocation formula to be used to compute the amount of funds to be distributed to each judicial district, the department will use the formula to calculate the amount allocated to each judicial district. (4) By no later than July 15 of each year, the department will notify each judicial district of the following: (a) the total amount of funds appropriated by the Legislature for the juvenile placements, the amount of funds allocated to the Office of Court Administrator for evaluations, the amount allocated to juvenile parole, the amount allocated to the cost containment pool, and the amount remaining that will be allocated to the judicial districts; (b) the allocation formula the cost containment review panel established; and (c) the amount the department has calculated the judicial district will receive from the remaining appropriated funds using the formula established by the cost containment review panel.
AUTH: 41-5-2006, MCA IMP: 41-5-130, 41-5-131,
STATEMENT OF REASONABLE NECESSITY: Because the Legislature made fundamental changes in the Juvenile Delinquency Intervention Act (JDIP), most of the existing rule was no longer statutorily correct: therefore, the department elected to delete the substance of the rule and start over. The name and purpose of the existing rule, however, was still appropriate; hence, the department made changes within the existing rule number. Each biennium the Legislature appropriates a sum of money for juvenile placements to implement the Juvenile Delinquency Intervention Act (JDIP). This rule implements 41-5-130, MCA, that authorizes the department to allocate the legislatively appropriated funds to the Office of Court Administrator for evaluation of JDIP programs; to juvenile parole for out-of-home placements, programs, and services; to the cost containment pool; and, finally, to the judicial districts. The department took the approach as written in the rule because the total allotment of funds has to be allocated in a certain sequence. First, it must allocate $25,000 to the Office of Court Administrator; then an amount (at least $1 million) to the cost containment pool; followed by 11 percent of the funds to the department for juvenile parole, and lastly, all of the remaining funds to the judicial districts. The department, therefore, drafted the rule to reflect that order. Subsection (1)(a) reflects the statutory duty to allocate $25,000 to the Office of Court Administrator for evaluations of out-of-home placements, programs, and services. Subsection (1)(b) reflects the department's duty in 41-5-132, MCA, to allocate money to the cost containment pool. The department must allocate at least $1 million to the cost containment pool, but has the discretion to increase the allocation. To decide if it should allocate additional funds, the department must consider the recommendation of the cost containment review panel. The department decided to look at the history of expenditures from the cost containment pool to predict how much the pool would need in the next fiscal year. If the cost containment review panel expended more than $900,000 from the pool in the previous fiscal year, the department would fund the pool with at least $1 million in addition to the amount over $900,000 of expenditures from the pool. The department determined this approach would achieve the desired purpose of funding the pool with money adequate to provide a safety net to judicial districts for unexpected expenditures for out-of-home placements. Thirdly, the department is statutorily obligated, after it has allocated $25,000 to the Office of Court Administrator, and after it has allocated money to the cost containment pool, to allocate 11 percent of the funds to juvenile parole for out-of-home placements, programs, and services for youth on juvenile parole; thus, it drafted (1)(c) to reflect that statutory obligation. Finally, the department must allocate the remaining funds to the judicial districts. The department must utilize the formula adopted by the cost containment review panel to allocate the funds to the judicial districts. The department decided to continue to use current practice and advise each judicial district in writing how much the judicial district will receive in JDIP funds. The department decided to take the approach in (4) because it deemed it important for each judicial district to have complete information about how the department allocated the legislatively appropriated funds. It is important, the department decided, for each judicial district to know how much total money the Legislature appropriated for the JDIP program; the amount of funds the department allocated to the Office of Court Administrator for evaluations; the amount of funds the department allocated, using the statutory formula, to juvenile parole; and, the amount the department allocated to the cost containment pool. The department also determined it was appropriate, in the interest of full disclosure, to advise each judicial district of the formula established by the cost containment review panel to apportion the remaining funds to the judicial districts and, utilizing the formula, the amount of money the department calculated the judicial district will receive.
20.9.135 (20.9.207) MONITORING (2) In order to properly monitor the judicial district's annual allocation, (3) The department will provide technical assistance to any judicial district that requests assistance with monitoring its annual allocation. (4) The department shall prepare a monthly budget status report that indicates the amount each judicial district has expended or committed to expend from its annual allocation and the amount remaining in the allocation. (a) The department shall submit the monthly budget status report to each judicial district and to the cost containment review panel. (b) If it appears to the department that the judicial district will exceed its annual allocation, the department will notify the judicial district and the cost containment review panel of the judicial district's expected excess and advise the judicial district of appropriate procedures and actions it should take to come into compliance with the spending authority it has or procedures with which it must comply to receive additional funds from the cost containment pool. (6) The department will process payments to providers after expenditures have been properly entered into the CAPS system or have been approved as indicated in (2). (a) The department financial and program chief will approve expenditures that are appropriately documented and entered within 30 days of commencement of service or within five working days of changes of placement or closure of services. (b) The department will generate payments within 30 days of approval by the department's financial and program chief.
AUTH: 41-5-2006 IMP:
STATEMENT OF REASONABLE NECESSITY: The title of the rule changed because the authorizing statute, 41-5-2006, MCA, changed. As to (1), the department deleted "participating" because when the rule was originally adopted there were both participating and nonparticipating judicial districts, but now all judicial districts participate. The department deleted the first sentence of (1), and stated the purpose of the rule in the amended sentence. Section 41-5-2006, MCA, requires each judicial district and the department to monitor the judicial district's expenditures. The department took the approach reflected in (2) after consulting with the Office of Court Administrator. The court administrator's office and the department realize that districts make most expenditures through the CAPS system, but some service providers are not in the CAPS system; hence, the rule needs to reflect both eventualities. Since this rule only applies to processing payments and not to the type of payments, the court administrator's office agreed the department should approve an alternative type of payment processing. The department determined it was more appropriate to include all the material that was previously in (2)(a) and (b) in one subsection labeled (2) because (a) is more appropriately subsumed in (2) and (b) is no longer necessary as all judicial districts are participating. Section (3) reflects the department's statutory duty in 41-5-2006, MCA, to provide technical assistance to judicial districts and is a recitation of the statute. The department decided it would promulgate (4) to fulfill its statutory duty to monitor judicial districts to ensure judicial districts do not exceed their allocated placement funds. If it appears a judicial district will exceed its allocation, the department will aid the judicial district to stay within its allocation or inform the judicial district what it must do to apply for funds from the cost containment pool. The department took the approach indicated in the rule as it was the method that is the least intrusive on the autonomy of the judicial districts. The department will keep each judicial district informed as to the amount of allocated funds the judicial district has encumbered. Section (5) completes the department's obligation to monitor each judicial district. The Office of Court Administrator and the department jointly agreed that if, while monitoring a judicial district, the department discovered what may be considered an irregularity, the department will inform the Office of Court Administrator. The Office of Court Administrator can decide how to proceed, and whether an audit is warrented. The department will be available to consult with the Office of Court Administrator concerning the irregularity and potential audit. Section (6) reflects the department's statutory duty to administer the juvenile placement funds. The methodology in the rule expresses the current successful payment practice.
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: Diana L. Koch, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-9593; fax (406) 444-4920; or e-mail dkoch@mt.gov, and must be received no later than 5:00 p.m., December 6, 2012.
7. Diana L. Koch, Department of Corrections, 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 Myrna Omholt-Mason, Department of Corrections, 5 South Last Chance Gulch, Helena, Montana, 59620; telephone (406) 444-3911, fax (406) 444-4920, or e-mail momholt-mason@mt.gov 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, apply and have been fulfilled. The undersigned rule reviewer spoke to the primary bill sponsor, Sen. Jim Shockley, by telephone on Tuesday, July 24, 2012.
/s/ Diana L. Koch /s/ Mike Ferriter Diana L. Koch Mike Ferriter Rule Reviewer Director Department of Corrections
Certified to the Secretary of State October 29, 2012.
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