BEFORE THE DEPARTMENT OF PUBLIC

 HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.34.2101, 37.34.2102, and 37.34.2111 and the repeal of ARM 37.34.2106, 37.34.2107, and 37.34.2112 pertaining to developmental disabilities program staffing

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On March 20, 2013, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, at Helena, Montana, to consider the proposed amendment and repeal 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 March 13, 2013, 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 amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.34.2101  STAFFING:  APPLICABILITY  (1)  Contractors A contractor who contracts to provide developmental disabilities services funded by the developmental disabilities program must employ, in the provision of direct care to persons eligible for those services, staff who are able to demonstrate the ability to meet the needs of the persons that the contractors serve.

            (2)  All A contractors of who contracts to provide developmental disabilities services, except contractors providing transportation services that are also available to the general public and contracting with the department to provide only transportation services, are is subject to these rules this subchapter.

            (3)  A contractor providing transportation services, that are also available to the general public, who contracts with the department only to provide transportation services is not subject to this subchapter.

 

AUTH:  53-20-204, MCA

IMP:     53-20-205, MCA

 

            37.34.2102  STAFFING:  STAFF COMPETENCIES GENERALLY  (1)  A The contractor must have, for each direct care staff position, a written job position description and listing of competencies that specifies the physical requirements and the minimum standards for education and experience for each staff position.

            (2)  A The contractor must conduct a thorough screening and a background check of all persons a person prior to an offer of employment as a direct care staff with the corporation.  A thorough screening and background check must include, but is not limited to, a criminal background check through the Montana Ddepartment of Jjustice.

            (3)  A The contractor must verify to the department upon hire and on a regular basis thereafter, that each direct care staff member person meets the competencies to perform the tasks and responsibilities of their position.

            (4)  Upon hiring of a direct care staff person and thereafter on a monthly basis, the contractor must review the list of excluded individuals and entities maintained at the System for Award Management maintained by the federal General Services Administration (GSA) to determine whether the person appears on the list and if the person appears on the list, must:

            (a)  report the listing to the department immediately; and

            (b)  take the appropriate action to terminate the person if the person is employed in a manner that is not permissible under the applicable federal requirements.

            (5)  A staff person must be trained and demonstrate competency within 30 days of hire, in the following:

            (a)  abuse and incident reporting;

            (b)  rights and confidentiality;

            (c)  first aid and CPR; and

            (d)  any specialty training related to the needs of the persons served.

            (6)  A staff person must complete the department-approved basic training in the provision of direct care services within six months of hire.

            (7)  A staff person must complete 20 hours of lessons annually of the department-approved basic training in the provision of direct care services.

 

AUTH:    53-20-204, MCA

IMP:       53-20-205, MCA

 

            37.34.2111  STAFFING:  CONTRACTOR STAFFING FOR SERVICES

            (1)  All contractors must comply with the staffing requirements of this rule.

            (2) (1)  For each person served, Tthe contractor must maintain minimum staffing ratios in each program of service, as specified for each program in the contract provide the number of staff with appropriate training and guidance required to ensure the quality and effectiveness of services to be delivered in accordance with the person's plan of care and individual cost plan.

            (3) (2)  The contractor must ensure the presence of on-site awake night staff in applicable programs, when specified in the contract sufficient to meet the needs of the persons the contractor serves.

            (4) (3)  The contractor must provide for emergency, back-up staff in applicable programs, when specified in the contract sufficient to meet the needs of the persons the contractor serves.

            (5)  Procedures for supervision of staff including day, evening, night and weekend staff must be maintained, implemented and documented in applicable programs, when specified in the contract.

            (a)  Supervision of staff must include the provision of guidance and direction to on-line staff in a sufficient and reasonable manner to ensure that the individuals served receive appropriate, quality care and treatment.  Supervision of staff can include having a supervisor on call or available to provide assistance to on-line staff on an as needed basis.  Some periodic and unscheduled on site visits should be utilized as a means of ensuring and maintaining appropriate staff behavior.

 

AUTH:    53-20-204, MCA

IMP:       53-20-205, MCA

 

4.  The department proposes to repeal the following rules:

 

37.34.2106  STAFFING:  STAFF COMPETENCIES FOR FAMILY EDUCATION AND SUPPORT SERVICES, is found on page 37-7615 of the Administrative Rules of Montana.

 

AUTH:  53-20-204, MCA

IMP:     53-20-205, MCA

 

            37.34.2107  STAFFING:  STAFF COMPETENCIES FOR COMMUNITY  HOME, INTENSIVE COMMUNITY HOME, SUPPORTED LIVING, WORK OR DAY SERVICES, is found on page 37-7615 of the Administrative Rules of Montana.

 

AUTH:    53-20-204, MCA

IMP:       53-20-205, MCA

 

            37.34.2112  STAFFING:  CONTRACTOR STAFFING FOR SUPPORTED  LIVING SERVICES, is found on page 37-7620 of the Administrative Rules of Montana.

 

AUTH:     53-20-204, MCA

IMP:        53-20-205, MCA

 

            5.  STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) is proposing to amend ARM 37.34.2101, 37.34.2102, and 37.34.2111 and to repeal ARM 37.34.2106, 37.34.2107, and 37.34.2112.  The rules in Title 37, chapter 34, subchapter 21 were enacted in 1995.  Changes made to the programs of developmental disabilities services administered by the department since that time make it necessary for the department to propose these amendments to update current rule language.  In particular, the department no longer designates staffing requirements based upon the type of service provided but instead, staffing is determined by the plan of care and individual cost plans of the persons served.

 

ARM 37.34.2101

 

The department proposes to amend ARM 37.34.2101 to clarify the applicability of the subchapter.  This is necessary in that the current language states the rules apply to all contractors.  The department is proposing language stating that the rule applies only to those contractors who contract with the developmental disabilities program to supply services to persons with developmental disabilities and that the requirements pertain to the employment of persons who provide direct care.

 

ARM 37.34.2102

 

The department is proposing to amend ARM 37.34.2102 to update staff training competencies to align with current program requirements.  The additional requirement for contractors to check the list of excluded individuals and entities maintained at the System For Award Management (SAM) by federal General Services Administration (GSA) has been added.

 

ARM 37.34.2111

 

The department is proposing to amend ARM 37.34.2111 to remove the use of set minimum staff ratios.  The department now requires staffing based upon the plan of care and individual cost plan of each person served.

 

ARM 37.34.2106, 37.34.2107, and 37.34.2112

 

The department is proposing to repeal ARM 37.34.2106, 37.34.2107, and 37.34.2112.  It is necessary to repeal these rules because of the change in staffing requirements.  The department no longer designates staffing requirements based upon the type of service provided but instead, staffing is determined by the plan of care and individual cost plans of the persons served.  The amendments proposed in ARM 37.34.2102 incorporate this change.

 

            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: 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., March 28, 2013.

 

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/ Cary B. Lund                                           /s/ Richard H. Opper                                   

Rule Reviewer                                             Richard H. Opper, Director

                                                                      Public Health and Human Services

           

Certified to the Secretary of State February 19, 2013.