BEFORE THE Department of PUBLIC

HEALTH AND HUMAN SERVICES

OF THE STATE OF MONTANA

 

In the matter of the amendment of ARM 37.34.2003 pertaining to discontinuation of services

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NOTICE OF AMENDMENT

 

TO: All Concerned Persons

 

1. On March 14, 2013 the Department of Public Health and Human Services published MAR Notice No. 37-629 pertaining to the public hearing on the proposed amendment of the above-stated rule at page 332 of the 2013 Montana Administrative Register, Issue Number 5.

 

2.  The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

            37.34.2003 DISCONTINUATION BY PROVIDER OF SERVICE 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, following good faith efforts, the person's health and safety needs cannot appropriately be managed be met 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 during the course of the process provided for in this rule.

            (2) and (3) remain as proposed.

            (4) The regional manager or designee will schedule a meeting within two working days after the receipt of the notice of intent to discontinue services from the provider. The meeting will include the regional manager or the regional manager's designee, the members of the person's plan of care team, the provider, and if applicable, a designee from the state facility. The meeting may be conducted telephonically. If the person's legal representative is not available within two working days, the meeting must be scheduled at the earliest possible time the legal representative is available. If the person or a legal representative is unable to participate in the plan of care meeting, the case manager must document the reasons for the absence and the attempts made to reschedule the meeting with the person or the person's legal representative.

            (6) remains as proposed.

            (7) If the planning team cannot reach consensus on the implementation of a supplemental plan of care, the person(s) who does not consent agree 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.

            (8) remains as proposed.

            (9)  If it is determined in the course of planning that an alternative provider is required needed, the case manager will assist the person, the legal representative, or both in seeking an alternative provider. 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.

            (10) remains as proposed.

            (11) The regional manager or designee will schedule a meeting between 15 to 30 calendar days prior to the expiration of the 90 calendar days to review the outcome of the supplemental plan of care. The meeting will include the regional manager or the regional manager's designee, the members of the person's plan of care team, the provider, and, if applicable, a designee from the state facility. The meeting may be conducted telephonically. If the person's legal representative is not available within two working days, the meeting must be scheduled at the earliest possible time the legal representative is available. If the person or a legal representative is unable to participate in the plan of care meeting, the case manager must document the reasons for the absence and the attempts made to schedule the meeting with the person or the person's legal representative.

            (11) (12)  At the expiration of 90 calendar 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 and the planning team, has participated in good faith in a supplemental plan of care if applicable, and the basis for the discontinuation action remains.

            (12) (13)  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) (14)  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

 

            3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

 

COMMENT #1: One commenter asked for clarification regarding what to do in children's services in the event that the family or the legal representative does not respond to requests for a meeting.

 

RESPONSE #1: The department added language to ARM 37.34.2003 to address the commenters concern regarding how to proceed if the family or legal representative does not respond to the meeting request.

 

COMMENT #2: One commenter expressed concerns regarding the language in ARM 37.34.2003(1) stating that current language to discontinue services is inclusive of the person receiving services refusing to cooperate even in instances where the person did not give consent to a proposed option or has exercised his or her right to appeal a portion in the plan of care. They would also like "good faith efforts" added to ensure both the person and the provider tried to fulfill their duties under the plan of care. The commenter also requests replacing "appropriately be managed" with "be met".

 

RESPONSE #2: The proposed rule language states that the provider may only discontinue services in the event the person refuses to cooperate in service delivery as provided in the person's plan of care or otherwise fails to substantively engage in their plan of care or when the person's health and safety needs cannot be appropriately managed by the provider. ARM 37.34.1114, Plan of Care, requires that the planning team, of which the person or the person's legal representative is a member of, reach consensus in regards to the person's plan of care and also provides for the person's right to request an administrative fair hearing. Also, ARM 37.5.316, Continuation of Public Assistance Benefits, requires that a person continue to receive Medicaid funded services until an issuance of a hearing decision in the event an administrative hearing was requested by the person. Therefore, this rule does not allow for discontinuation of services in the event the person has not given consent for a proposed action nor does it remove the person's right to request a fair hearing and the requirement for continuation of service during the duration of the administrative hearing process.

 

The department added the language "good faith efforts" as requested by the commenter and the department will change the language to "be met" rather than "appropriately be managed" as requested by the commenter.

 

COMMENT #3: One commenter requested the department change the word "consent" in ARM 37.34.2003(7) to "agree" stating that the term consent is often used in rule in relation to the person receiving services and their legal representative giving consent, therefore causing possible confusion in reference to other members of the planning team.

 

RESPONSE #3:  The department will replace the term "consent" with "agree" in ARM 37.34.2003(7).

 

COMMENT #4: One commenter requested the department change the word "required" in ARM 37.34.2003(9) to "needed" stating that the word "needed" allows the case manager latitude to find alternative placement and the flexibility to intervene earlier when necessary.

 

RESPONSE #4:  The department will replace the word "required" in ARM 37.34.2003(9) to "needed".

 

COMMENT #5: One commenter requested the addition of language to require the provider to submit proof the supplemental plan of care was followed and that the issues that caused the initial action are still of concern prior to allowing the discontinuation of services to proceed at the conclusion of the 90 calendar days.

 

RESPONSE #5: The department agrees that due to the seriousness of the action of discontinuation of services, additional review of the result of the supplemental plan of care is pertinent. However, the department will require a plan of care meeting prior to discontinuation in order for the plan team to review the results, rather than request the provider to submit proof. The department also added language to ensure that the basis of discontinuation must be the same issue that was present at initiation of the discontinuation action.

 

 

 

/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 June 10, 2013.