Montana Administrative Register Notice 37-629 No. 5   03/14/2013    
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In the matter of the amendment of ARM 37.34.2003 pertaining to discontinuation of services







TO:  All Concerned Persons


            1.  On April 3, 2013, 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 rule.


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 27, 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 rule as proposed to be amended provides as follows, new matter underlined, deleted matter interlined:


            37.34.2003  DISCONTINUATION BY PROVIDER OF SERVICES DELIVERY:  PROVIDER INITIATED  (1)  When a person receiving developmental disability community services from a service provider refuses to cooperate in service delivery as provided for in their plan of care or otherwise fails to substantively engage in their plan of care or when the person's health and safety needs cannot appropriately be managed by the provider, the provider may follow the process provided in these rules to be relieved of service delivery responsibilities for the person.  The provider will continue to provide services to ensure the persons' health and safety until an alternative solution is established during the course of the process provided for in this rule.

            (2)  The provider who wishes to discontinue the services must provide notice of the provider's intent to discontinue services in writing and submit the notice to:

            (a)  the regional manager or designee of the developmental disabilities program (DDP) of the region in which the person resides;

            (b) through (6) remain the same.

            (7)  If the planning team cannot reach consensus on the implementation of a supplemental plan of care, the person(s) who does not consent may submit their disagreement along with the justification for their disagreement to the DDP program director or designee.  The DDP program director or designee must:

            (a)  make a determination within three working days; and

            (b)  provide the determination in writing to the members of the planning team.

            (7) remains the same, but is renumbered (8).

            (8) (9)  If it is determined in the course of planning that an alternative provider is required, the case manager will assist the person, the legal representative, or both in seeking an alternative provider as described in the developmental disabilities program porting policy.  The case manager will place the person on the port list.  If additional funding is required, the case manager will also place the person on the waiting list for screening into an opening with sufficient funding in accordance with the screening policy of the department.

            (10)  A provider must, in good faith, participate in the implementation of a supplemental plan of care.

            (11)  At the expiration of 90 days following the receipt by the department of a proper notice of intent to discontinue services from a provider, the provider may proceed with the discontinuation of services for the person, if the provider, as determined by the department, has participated in good faith in a supplemental plan of care if applicable.

            (9) (12)  A provider must abide by applicable statutes or regulations of the state of Montana regarding the relationship between the provider as the landlord and the person as the tenant.

            (13)  The person or the person's legal representative maintains their right to a fair hearing as provided for in ARM 37.5.115.


AUTH:  53-6-402, 53-20-204, MCA

IMP:     53-6-402, 53-20-205, MCA




The Department of Public Health and Human Services (department) is proposing to amend in ARM 37.34.2003 pertaining to the discontinuation of services.  This rule was proposed and adopted effective December 21, 2013.  Comments were received during the comment period for this rulemaking which asked the department to consider removing the language that required the provider to serve a person receiving services an additional 90 days if an alternative solution was not found after an initial 90 days.  The department inadvertently removed language pertaining to the initial 90 days which were intended to remain in the adopted rule.


The department also recognized during this review that person(s) on the planning team who were not in agreement with the majority determination of the team had no recourse for further presentation of their disagreement.  As such, the department has added language to allow those person(s) on the planning team who disagree with the majority determination to submit their disagreement to the developmental disabilities program director for review.  The department also recognized that there needed to be further language added to describe how the 90-day discontinuation process would proceed where there is a supplemental plan of care.  The title of the rule has been modified to read "DISCONTINUATION BY PROVIDER OF SERVICE DELIVERY: PROVIDER INITIATED" from "DISCONTINUATION OF SERVICES: PROVIDER INITIATED" so as to avoid confusion as to whether the person is losing eligibility for the services of the program.


            5.  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., April 11, 2013.


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


7.  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 5 above or may be made by completing a request form at any rules hearing held by the department.


8.  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.


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





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

Cary B. Lund                                                Richard H. Opper, Director

Rule Reviewer                                             Public Health and Human Services


Certified to the Secretary of State March 4, 2013.



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