Montana Administrative Register Notice 37-733 No. 21   11/12/2015    
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In the matter of the amendment of ARM 37.40.830 pertaining to updating hospice reimbursement fee schedules to reflect new federal rates







TO: All Concerned Persons


          1. On December 2, 2015, at 9:00 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, 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 the Department of Public Health and Human Services no later than 5:00 p.m. on November 25, 2015, 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:


37.40.830 HOSPICE, REIMBURSEMENT (1) remains the same.

(2) The department adopts and incorporates by reference 42 CFR 418.302, effective August 6, 2009 August 6, 2015, and 42 CFR 418.306, effective August 22, 2014 August 6, 2015, which sets forth the Medicare payment procedures. Copies of 42 CFR 418.302 and 42 CFR 418.306 are available at the federal web site:  http://cms.hhs.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html.

(3) through (7) remain the same.

(8) The department adopts and incorporates by reference 42 CFR 418.309, effective August 4, 2011 August 6, 2015, which sets forth Medicare's methodology for calculating the hospice cap amount. Copies of 42 CFR 418.309 are available at the federal web site: http://cms.hhs.gov/Medicare/Medicare-Fee-for-Service-Payment/Hospice/index.html.

(9) and (10) remain the same.

(11) The hospice fee schedules are effective October 1, 2014 2015. Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov and may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59602-2951.


AUTH: 53-6-113, MCA

IMP: 53-6-101, MCA




The Department of Public Health and Human Services (department) proposes to amend ARM 37.40.830 to update its Medicaid hospice reimbursement fee schedule referenced in (11), effective October 1, 2015, in accordance with changes in federal hospice reimbursement rates set by the Center for Medicare and Medicaid Services (CMS) in the Federal Register effective October 1, 2015.  Also being updated is the Code of Federal Regulations (CFR) references for 42 CFR 418.302 and 42 CFR 418.306 in (2), and 42 CFR 418.309 in (8), which are adopted and incorporated by reference. Medicaid hospice incorporates the Medicare reimbursement methodology and the reimbursement updates as specified in the Federal Register, by incorporating wage indexes and geographic factors specific for Montana counties.


The proposed fee schedule implements an approximate, aggregate reimbursement rate increase of one percent, as computed and published by CMS, which will apply to providers in 54 of Montana's 56 counties. A one percent increase in the hospice reimbursement rate equals approximately $50,000. Providers in two counties, Cascade County and Missoula County, will experience an aggregate rate decrease of approximately one-half percent and one percent, respectively. Additionally, four hospice providers will see a hospice reimbursement rate decrease of two percent for failure to comply with the federal quality data submission requirements during the prior fiscal year. A copy of the proposed hospice fee schedule can be found at http://medicaidprovider.mt.gov.


The proposed rule amendments are necessary to pay Medicaid providers according to the current Medicare fee schedule effective October 1, 2015, and to adopt by reference the current applicable federal regulations related to determination of payment rates. Failure to amend the rule as proposed will result in a deficient state hospice reimbursement rate from the current federal rate, which would result in underpayment to hospice providers, and introduces an inability for the state to comply with federal requirements pertaining to hospice providers.


Fiscal Impact


A majority of the hospice program's $5 million Medicaid budget funds reimbursement for hospice services delivered in nursing facilities in the form of room and board for inpatient nursing facility hospice. The funds impacted are from federal Medicaid fund (03585) and general fund (01100) sources.


In Fiscal Year 2015, approximately 384 Medicaid members received hospice benefits under Medicaid.


          5. The department proposes to apply increases in the hospice reimbursement rates retroactively to October 1, 2015.  The implementation date of the rate increase is consistent with the federal approval of the hospice reimbursement rate fee increase and the effective dates of the promulgated federal regulations.  Decreases in hospice rates would not be applied retroactively, but would be effective upon adoption of the proposed rule amendment.


          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., December 10, 2015.


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 paragraph 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.


11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rule will not significantly and directly impact small businesses.


12. 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement. The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.


The department has determined that the proposed program changes presented in this notice are not subject to the performance-based measures requirement of 53-6-196, MCA, as they implement a federal Medicaid requirement.



/s/ Valerie Bashor                                  /s/ Robert Runkel for Richard H. Opper 

Valerie Bashor, Attorney                        Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services


Certified to the Secretary of State November 2, 2015.



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