Montana Administrative Register Notice 37-625 No. 13   07/11/2013    
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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









TO: All Concerned Persons


1. On February 28, 2013, the Department of Public Health and Human Services published MAR Notice No. 37-625 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 249 of the 2013 Montana Administrative Register, Issue Number 4.


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 the Department of Public Health and Human Services no later than 5:00 p.m. on July 18, 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 MT 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.


3.  In response to comments received to the Notice of Public Hearing on Proposed Amendment and Repeal, MAR Notice No. 37-625, the department is proposing additional amendments.


ARM 37.34.2101 and 37.34.2102


The department has determined that it is necessary to make changes to the proposed rules so as to broaden the scope of the rules to include all contractors and all staff, employed by the contractors, providing developmental disability program services. Currently, the proposed rules apply to contractors and staff members only in the provision of direct care to persons that the contractor serves. The term "direct care" is being removed from these rules. This change is also necessary to assure full compliance with federal legal authorities that prohibit the employment of persons who are federally debarred from 1) providing services in relation to persons who are eligible for federally funded health care programs or 2) being compensated with federal monies.


ARM 37.34.2101


The department is amending the proposed rule to remove the requirement that a background check be completed prior to an offer of employment. Instead, the background check must be completed prior to a person providing developmental disability program services. This will allow contractors to offer positions contingent upon the background check. The department is also amending the rule to include entities that provide national background checks as an approved source because it provides a more comprehensive check.


The department is amending the rule to remove the requirement for monthly reviews of the list of excluded individuals and entities maintained at the System for Award Management maintained by the federal General Services Administration (GSA). The Office of Inspector General strongly suggests that monthly reviews are prudent in order for providers to avoid the liability of employing an excluded individual; however, the department recognizes that it is the provider's responsibility to ensure that their employees are not listed on the excluded list and therefore the department is removing the proposed language requiring monthly reviews. Providers who employ an excluded individual are liable for such action and are subject to the federal penalties as determined by the Office of Inspector General.


Upon adoption of the rule, the department also plans to remove the training requirements from the staffing rules and locate them in service-specific areas of the rules.


4. The rule as proposed is being amended as follows, new matter underlined, deleted matter interlined:


            37.34.2101 STAFFING: APPLICABILITY (1)  This subchapter specifies requirements applicable to provision of developmental disability program services. These rules are in addition to requirements generally applicable to Medicaid providers as otherwise provided in state and federal statute, rules, regulations, and policies.

            (1) (2) A contractor who contracts to provide developmental disabilities services funded by the developmental disabilities program must employ, in the provision of direct care services 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) and (3) remain as proposed, but are renumbered (3) and (4).


AUTH: 53-20-204, MCA

IMP:     53-20-205, MCA


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

            (2) The contractor must conduct a screening and a background check of a person prior to an offer of employment a person assuming their duties and responsibilities as a direct care staff. A screening and background check must include a criminal background check through the Montana Department of Justice or another background check entity that provides a national background check.

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

            (4) Upon hiring of a direct care staff person and thereafter on a monthly basis , inclusive of administrative and management services, the contractor must review the list of excluded individuals and entities maintained by the Office of Inspector General and the excluded parties list system 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) through (7) remain as proposed.


AUTH:    53-20-204, MCA

IMP:       53-20-205, MCA


5. The public comment period has been extended. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to: Kenneth Mordan, Office of Legal Affairs, Department of Public Health and Human Services, P.O. Box 4210, Helena MT 59604-4210, no later than 5:00 p.m. on July 25, 2013. Comments may also be faxed to (406) 444-9744 or e-mailed to dphhslegal@mt.gov.


/s/ Cary B. Lund                                           /s/ Mary E. Dalton acting for                      

Cary B. Lund                                                Richard H. Opper, Director

Rule Reviewer                                             Public Health and Human Services


Certified to the Secretary of State July 1, 2013.


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