Montana Administrative Register Notice 37-776 No. 23   12/09/2016    
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In the matter of the amendment of ARM 37.40.101 and 37.40.422 pertaining to updating direct care wage effective dates and reimbursement updates effective January 1, 2017










TO: All Concerned Persons


1. On January 8, 2017, the Department of Public Health and Human Services proposes to amend the above-stated rules.


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 December 28, 2016, 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. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:


37.40.101 LEVEL OF CARE DETERMINATIONS (1) The three basic considerations in every level of care determination are the individual patient's medical, psychological, and social needs; the specific services required to fill these needs; and, the health and other personnel required to adequately provide these services.

(a) Specific level of care criteria, as well as preadmission screening procedures, are found in ARM 37.40.201 and 46.12.1303.

(2) and (3) remain the same.


AUTH:  53-2-201, 53-6-113, 53-6-402, MCA

IMP: 53-2-201, 53-6-101, 53-6-131, 53-6-402, MCA


37.40.422 DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE REPORTING/ADDITIONAL PAYMENTS INCLUDING LUMP SUM PAYMENTS FOR DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE AND BENEFIT INCREASES (1) Effective for the period January 1, 2016  January 1, 2017 through December 31, 2016 December 31, 2017, swing-bed hospitals must report to the department actual hourly wage and benefit rates paid for all direct care and ancillary services workers or the lump sum amounts paid for all direct care and ancillary services workers that will receive the benefit of a direct care and ancillary workers' wage and benefit increase.

(2) remains the same.

(3) The department will pay Medicaid certified swing-bed hospitals located in Montana, in accordance with this rule, lump sum payments in addition to the reimbursement rate to be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in swing-bed hospitals.

(a) The department will determine lump sum payments January 1, 2016 January 1, 2017, and again six months from that date as a pro rata share of appropriated funds allocated for increases in direct care and ancillary services workers' wages and benefits or lump sum payments to direct care and ancillary services workers.

(b) through (4) remain the same.


AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-2-201, 53-6-101, 53-6-111, MCA




The Department of Public Health and Human Services (department) is proposing amendments to ARM 37.40.101 and 37.40.422.


ARM 37.40.101


The department is proposing to amend this rule in order to remove a reference to ARM 46.12.1303. ARM 46.12.1303 was repealed during the transfer of rules from the Department of Social and Rehabilitative Services which was incorporated into the current department in 1995. This is necessary to ensure the rules are current and not confusing to the public.


ARM 37.40.422


Medicaid swing bed rates are effective annually between January 1 and December 31.  Every October, the department changes the calendar year referenced in ARM 37.40.422 to the upcoming year.


The text of (1) will be updated from calendar year 2016 to calendar year 2017. The proposed amendment to (1) is necessary to provide a current period for providers of swing-bed services to report to the department the hourly wage and benefits paid for direct care and ancillary services workers.


The proposed amendment to (3)(a) is likewise necessary to update January 1, 2016 to January 1, 2017. This change gives notice of the current period for funding of Medicaid direct-care wage payments to the swing-bed providers.


Fiscal Impact


The department is continuing the methodology for Medicaid swing beds that incorporates the calendar year average nursing facility payment rate calculation. 

There are 45 hospitals and critical access hospitals (CAH) Medicaid swing-bed providers. Fourteen of the providers will participate in the fiscal year (FY) 2017 Direct Care Wage payment in the amount of $340,484. This includes the old funding and new funding for wages.


The change in funding is to implement an approximate 2% increase in Medicaid swing-bed provider rates. The total state and federal funds that will be allocated to swing-bed providers in calendar year 2017 is approximately $6,650,298 inclusive of the direct care wages payment. The projected Medicaid swing-bed rate will increase from an average of $171.04 to $174.35 inclusive of the direct care wages payment. For providers that do not participate in the direct care wage funding the calendar year average rate will increase from $166.78 to $170.09.


          5. 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 January 6, 2017. Comments may also be faxed to (406) 444-9744 or e-mailed to dphhslegal@mt.gov.


6. If persons who are directly affected by the proposed actions wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to Kenneth Mordan at the above address no later than 5:00 p.m., January 6, 2017.


7. If the agency receives requests for a public hearing on the proposed action from either 10% or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register.  Ten percent of those directly affected has been determined to be 4.5 persons based on forty-five hospital/critical access hospital (CAH) swing-bed providers.


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 5 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 this 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 rules will not significantly and directly impact small businesses.



/s/ Caroline Warne                                /s/ Richard H. Opper                            

Caroline Warne, Attorney                      Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services



Certified to the Secretary of State November 28, 2016.


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