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 adoption of New Rule I pertaining to supports for community working and living waiver program

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION

TO: All Concerned Persons

1. On May 29, 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 adoption 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 May 22, 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 adopted provides as follows:

NEW RULE I SUPPORTS FOR COMMUNITY WORKING AND LIVING PROGRAM: AUTHORITY (1) The department has been granted by the United States Department of Health and Human Services (HHS) the authority, through 42 USC 1396n(c) and 42 CFR 441.300 through 441.310, to provide Medicaid home and community-based services (HCBS) to persons with developmental disabilities. This rule implements in Montana the Supports for Community Working and Living Waiver Program for persons with developmental disabilities.

(2) In accordance with the state and federal statutes and rules generally governing the provision of Medicaid-funded home and community-based services and federal-state agreements specifically governing the provision of the Medicaid-funded home and community-based services to be delivered through this program, and within the fiscal limitations of the funding appropriated and available for the program, the department may determine within its discretion the following features of the program:

(a) the types of services to be available;

(b) the amount, scope, and duration of the services;

(d) individual eligibility; and

(e) delivery approach.

(3) The Supports for Community Working and Living Waiver Program must be delivered in accordance with the requirements and limitations of the 1915(c) Home and Community-Based Services, Supports for Community Working and Living, Manual for the 1037 Waiver Program, dated August 1, 2013.

(4) The department adopts and incorporates by reference the 1915(c) Home and Community-Based Services, Supports for Community Working and Living Manual for the 1037 Waiver Program, dated August 1, 2013. A copy of the 1915(c) Home and Community-Based Services, Supports for Community Working and Living, Manual for the 1037 Waiver Program, dated August 1, 2013 may be obtained through the Department of Public Health and Human Services, Developmental Services Division, Developmental Disabilities Program, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210 and at http://www.dphhs.mt.gov/dsd/ddp/medicaidwaivers.shtml.

AUTH: 53-6-402, MCA

IMP: 53-6-402, MCA

4. STATEMENT OF REASONABLE NECESSITY

The Department of Public Health and Human Services (department) is proposing New Rule I, Supports for Community Working and Living Waiver Program. The proposed rule is necessary to provide a clear understanding of the program, the services offered, and is specific for administering the Supports for Community Working and Living Waiver Program as described below.

NEW RULE I

New Rule I outlines the federal authority through Section 1915(c) of the Social Security Act, providing the option to apply for Medicaid waivers to offer Home and Community-based Services (HCBS). In addition, the proposed rule establishes the discretion of the department to manage the various aspects of the program in conformance with federal authority and as otherwise determined appropriate by the department. This application of discretion to the program is necessary to assure continuing conformance with the governing federal authority so as to avoid withdrawal of federal approval for the program and to avoid federal recoupment for inappropriate expenditures of federal monies.

This proposed rule adopts and incorporates by reference, the 1915(c) Home and Community-Based Services, Supports for Community Working and Living Manual for the 1037 Waiver Program, (manual) dated August 1, 2013. This is necessary because the manual defines the population eligible to be served, screening and placement stipulations, the provision of services available under the program, plans of care, plan management processes and responsibilities, provider requirements, and reimbursement.

Manual

The Supports for Community Working and Living Program Waiver offers up to 30 persons self-directed services and supports intended to allow persons diagnosed with a developmental disability to achieve competitive employment; thereby, maximizing their choice and independence in where they work, live, socialize, and to participate to the fullest extent possible in their communities.

Initial eligibility is determined based upon current Medicaid financial eligibility requirements and current department requirements. Persons considered appropriate for this waiver are those who: want to work and have the ability to achieve employment; are 16 years of age or older; have health and safety needs that can be met for $20,000 or less per year by the waiver; live at home with their natural family or in a private residence; and have care giving needs that are largely met by unpaid family members, or persons who have most of the skills to live alone or with an unpaid roommate and who require modest levels of support or supervision.

The screening process is based on a priority rating scale model which will identify those persons transitioning out of high school who want integrated employment and those persons who otherwise meet the eligibility requirements and wish to seek integrated employment. The 1037 Waiver also encourages persons in this waiver to stay within their communities, near their natural supports. Persons found eligible for developmental disabilities waiver services may choose to be placed on the waiting list for the 1037 Waiver.

The supported employment services offered include coworker support, follow-along support, individual employment support, job discovery/job preparation, and small group employment support. Other waiver services available are respite, supports brokerage, environmental modifications, adaptive equipment, individual goods and services, personal emergency response system, personal supports, and transportation. For persons with identified dietary needs, that cannot be met otherwise, reimbursement for meals will be available.

The supported employment services were selected because employment and inclusion in communities is important in the lives of persons in services. All persons 16 years of age and older in this waiver will be required to participate in at least ten hours per week, or the maximum hours allowed in order for the person to maintain Medicaid eligibility, of meaningful work in integrated community employment, earning at least minimum or competitive wages. If the person does not achieve integrated employment as stated above in a period of three years, or if the person states they no longer wish to seek integrated employment, the person has the option to transition into the 1915(c) Home and Community-Based Services for Individuals with Developmental Disabilities 0208 Waiver Program or to terminate developmental disabilities waiver services.

The services in the 1037 Waiver are entirely self-directed, either through a provider agency offering an agency with choice model or by a person with employer authority using financial management services. Self-directing services provide further independence and choice for persons in the 1037 Waiver. The plan of care for persons in the 1037 Waiver includes the Self-Direct with Employer Authority Plan of Care Guide which:

(a) assists the planning team to identify the role of the support broker for each person;

(b) identifies the support person's training needs and qualifications;

(d) describes voluntary and involuntary exit information to the person.

Supported employment service definitions, general provider requirements, notice and fair hearings, and freedom of choice are also included in the new proposed manual and are consistent with current department requirements and the 1915(c) Home and Community-Based Services for Individuals with Developmental Disabilities 0208 Waiver Program.

Fiscal Impact

The Supports for Community Working and Living Waiver Program is expected to serve up to 30 persons. Persons receiving services and their funding in the 1915(c) Home and Community-Based Services for Individuals with Developmental Disabilities 0208 Waiver Program will transfer to the Supports for Community Working and Living 1037 Waiver Program; therefore, no fiscal impact is expected.

5. The department intends to adopt these rule amendments effective August 1, 2013.

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., June 6, 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

Cary B. Lund Richard H. Opper, Director

Rule Reviewer Public Health and Human Services

Certified to the Secretary of State April 29, 2013