(2) The department utilizes its own rule notice forms which meet all Montana Administrative Procedure Act (MAPA) requirements. Samples of these forms can be obtained from the Department of Public Health and Human Services, Office of Legal Affairs, 111 N. Sanders, P.O. Box 4210, Helena MT 59604-4210, telephone (406) 444-5622.

During the period of time set forth in (8), the department will exercise regulatory discretion and waive strict compliance with the following categories of administrative rules to the limited extent that they conflict with the department's implementation of federal COVID-19-related guidance, waivers, or rules, as follows:

(1) Training and other training-related annual recertification requirements in congregate care facilities: 

(a) provisions of ARM Title 37, chapter 34, related to services of the developmental disabilities program and the home and community-based services program (HCBS);

(b) provisions of ARM Title 37, chapter 40, related to home and community-based services for elderly and physically disabled persons;

(c) provisions of ARM Title 37, chapter 97, related to the licensure of youth care facilities;

(d) provisions of ARM Title 37, chapter 100, related to community residences; and

(e) provisions of ARM Title 37, chapter 106, related to the licensure of health care facilities.

(2) Staffing-related licensing and certification requirements in congregate care facilities:

(a) provisions of ARM Title 37, chapter 40, related to home and community-based services for elderly and physically disabled persons;

(b) provisions of ARM Title 37, chapter 90, related to the home and community-based services waiver for adults with severe and disabling mental illness;

(c) provisions of ARM Title 37, chapter 97, related to the licensure of youth care facilities;

(d) provisions of ARM Title 37, chapter 100, related to community residences; and

(e) provisions of ARM Title 37, chapter 106, related to the licensure of health care facilities.

(3) Licensing and certification requirements related to permissible premises, settings, or construction standards in situations:

(a) provisions of ARM Title 37, chapter 97, related to the licensure of youth care facilities;

(b) provisions of ARM Title 37, chapter 100, related to community residences; and

(c) provisions of ARM Title 37, chapter 106, related to the licensure of health care facilities.

(4) Telehealth face-to-face requirements for the provision of medical services:

(a) ARM 37.27.102(9);

(b) ARM 37.27.902(2) and (3), to the extent that provider manuals require face-to-face interactions;

(c) ARM 37.27.517(1)(b);

(d) ARM 37.34.3005(2), to the extent that the rates manual requires face-to-face interactions;

(e) ARM 37.40.702(8) and (9);

(f) ARM 37.40.805(1) through (3), to the extent Medicare normally requires face-to-face encounters;

(g) ARM 37.40.1005(4), to the extent such provision requires in-person meetings;

(h) ARM 37.40.1114(4), to the extent such provision requires in-person meetings;

(i) ARM 37.86.901(2);

(j) ARM 37.86.902(2)(b);

(k) ARM 37.86.3405(2);

(l) ARM 37.86.4402(1);

(m) ARM 37.87.703(1)(h), to the extent that such provision requires face-to-face interactions for home support services;

(n) ARM 37.87.903(7), to the extent the provider manual requires face-to-face interactions;

(o) ARM 37.87.1410(6)(b);

(p) ARM 37.88.101(2), to the extent the provider manual requires face-to-face interactions;

(q) ARM 37.89.501(2);

(r) ARM 37.106.1916(5);

(s) ARM 37.106.1935(4), to the extent such provision requires in-person or face-to-face contacts for targeted case management services; and

(t) ARM 37.106.2011(3), to the extent such provision requires in-person, in-home meetings.

(5) Any provision of ARM 37.82.205 and 37.84.107, to the extent that the rule would end eligibility for any individual enrolled as of March 18, 2020, unless the individual ceases to be a state resident or requests a voluntary disenrollment. Waiver of such requirements and provisions shall not exceed the end of the month in which the nationwide COVID-19 public health emergency ends.

(6) Licensing or certification requirements for congregate care facilities that require background checks, as long as the facility has submitted fingerprint background checks to the appropriate authority and has conducted other background checks, including but not limited to name background checks:

(a) provisions of ARM 37.97.132 and 37.97.140, related to the licensure of youth care facilities; and

(b) provisions of ARM 37.100.138(1) and (2) and 37.100.165(5), related to community residences.

(7) If the intensive care unit of a licensed hospital, critical access hospital, or licensed medical assistance facility is 70% occupied, swing-bed requirements in:

(a) ARM 37.40.402(1)(b)(i)(A) through (D); and

(b) ARM 37.40.405(1)(b) and (2), to the extent necessary to facilitate payment under Medicaid.

(8) This rule is intended to be of limited duration to provide flexibilities to the state's health care industry and related human service organizations as they respond to the COVID-19 pandemic. The rule is repealed and the provisions of this rule expire upon the expiration or rescinding of the nationwide COVID-19 public health emergency determination, issued under section 319 of the Public Health Service Act, 42 U.S.C. § 247d, initially on January 31, 2020, and subsequently renewed by the secretary of the U.S. Department of Health and Human Services, or at the conclusion of any transition period or of phase-down requirements relating to federal waivers issued by the Centers for Medicare and Medicaid Services in response to the COVID-19 pandemic, whichever is later.

(1) The Department of Public Health and Human Services, for purposes of establishing department public participation procedures, adopts and incorporates by reference the Attorney General's model procedural rules ARM 1.3.101 and 1.3.102.

(1) Public participation is encouraged and assisted to the fullest extent practicable. Participation must be consistent with other requirements of state law and the rights and requirements of personal privacy. The major objectives of such participation include: 

(a) greater responsiveness of governmental actions to public concerns and priorities; and 

(b) improved public understanding of official programs and actions.

(2) Prior to the adoption, amendment, or repeal of a rule or policy, the department shall, where the decision is of significant public interest, give adequate notice and opportunity to participate in the decision-making process.

(1) The adoption, amendment, or repeal of any regulation or written policy that implements, interprets, or prescribes law or policy, or practice requirements of the department, are considered actions of significant public interest to require notice and opportunity for public participation in the decision-making process. 

(2) In all other cases, whether the decision is one of significant public interest will be determined by the person within the department who is proposing the decision according to the following considerations: 

(a) the decision regards a matter which is controversial;

(b) the number of persons who will be affected by the decision;

(c) the fiscal impact the decision will have; or

(d) the department has witnessed a high level of citizen interest.

(1) If it is determined that significant public interest is involved, one or more of the following steps, as applicable, shall be taken to assist public participation in the decision-making process: 

(a) a proceeding or hearing is held in compliance with the provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, MCA; 

(b) a public hearing, after appropriate notice is given, is held pursuant to any other provision of state law, a local ordinance, or regulation; or

(c) a news release, legal advertisement, or other method of publication will be given to news media within the area to be affected which shall include the name of a person within the department most familiar with the proposed action, that person's departmental address, and a telephone number where interested persons may submit their data, views, or arguments, orally or in written form, concerning the proposed action.  This information will also be posted on the department's website.

(1) Citizens desiring information about anything mentioned in these rules or about anything concerning the department and public participation should contact the Public Information Officer, Department of Public Health and Human Services, P.O. Box 4210, Helena, Montana 59604-4210, or visit the department's website at dphhs.mt.gov.

(2) The recovery and offset of debts being enforced or collected by the department under Title IV-D of the Social Security Act is implemented by ARM 37.62.1501, 37.62.1503 and 37.62.1505.

(3) The provisions of this subchapter are not the department's exclusive means of debt collection, but are in addition to any other means of offset, recovery or other debt collection procedures authorized by law.

(2) "Department" means the department of public health and human services.

(3) "Offset" means a deduction from monies due to a person or entity from the state for the purpose of recovering in total or in part a debt owed by the person or entity to the state. An offset is undertaken by the department of revenue under the authority of 17-4-105 , MCA in accordance with that agency's rules and policies. Offset may include but is not limited to an offset of a person or entity's state tax return.

(4) "Program" means any program of services or benefits for the public administrated by the department including but not limited to:

(a) aid for dependent families (AFDC) ;

(b) medicaid;

(c) food stamps;

(d) AFDC and JOBS related daycare;

(e) low income energy assistance program (LIEAP) ;

(f) the former state general relief program;

(g) rehabilitation services; and

(h) visual services.

(5) "Recovery" means any measure undertaken by the state auditor's office under the authority of 17-4-101 , MCA et seq. in accordance with that agency's rules and policies as a means of recovering a debt owed by a person or entity to the state of Montana. Recovery may include but is not limited to assignment to a collection agency and litigation.

(2) The department may refer to the department of revenue any debt of a program recipient or a provider of program services including but not limited to those arising out of intentional or unintentional actions of the recipient or provider and those due to mistake upon the part of the department.

(3) The department must determine that a debt is uncollectable by the department before the debt may be referred to the department of revenue.

(a) the debt is owing to the department;

(b) the debtor has either not pursued available administrative due process within the department or has failed to prevail in the available administrative due process within the department or in any appeal from that administrative due process to the state or federal courts;

(c) the debtor has failed to pay the debt after the department has made all reasonable efforts to collect the debt; and

(d) the department has no administrative means such as recoupment from current payments to a recipient or provider by which to recover the debt.

(2) The department has made all reasonable efforts to collect a debt when the debt remains owed in whole or part after:

(a) the department has utilized appropriate notices directed at the debtor's last known address to inform the debtor of the debt owed and the debtor cannot be contacted; or

(b) the department has provided the debtor with an opportunity to enter into a repayment agreement based on a schedule for debt repayment that the department determines is appropriate and the debtor has failed to cooperate or the debtor is failing to repay the debt.

(3) A debtor is failing to repay a debt when the debtor has failed to make three monthly payments for which the department has provided notice of delinquency.

(2) A properly constituted self-sufficiency trust allows a person to obtain additional resources for enhancing the quality of the person's life while maintaining the person's eligibility for certain state funded human services.

(3) These rules are not written to correspond to or to provide guidance concerning any requirements that may be necessary for a trust to be in compliance with state laws relating to trusts or the federal and state tax codes.

(4) The department is not responsible for advising or directing a party in the various legal requirements necessary for the establishment of a trust in relation to state trust law and federal and state tax codes.

(1) "Department" means the department of public health and human services provided for in Title 2, chapter 15, part 22, MCA.

(2) "Department funded services" means services and items normally purchased by the department for recipients of its programs. Department funded services are typically provided by a service provider through a contract with the department or by fee reimbursement from the department. The term also includes services provided by a service provider through a contract with the department of corrections or by free reimbursement from the department of corrections.

(3) "Beneficiary" means a person who is eligible to be a beneficiary of a self-sufficiency trust as provided in ARM 37.2.503.

(4) "Life care plan" means a written plan established to govern the provision of supplemental services purchased with the monies of a self-sufficiency trust.

(5) "Person with a disability" means a disabled person as defined at 45 USC 1382c(a) (3) (1995) who has a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 45 USC 1382c(a) (3) (1995) is a federal statute that is adopted and incorporated by this reference. A copy of the cited regulation is available upon request from the Department of Public Health and Human Services, Office of Legal Affairs, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

(6) "Self-sufficiency trust", as defined at 53-18-101 (2) , MCA, means a trust to benefit a person with a disability established, held and managed by a nonprofit corporation that is a 501(c) (3) organization under the United States Internal Revenue Code of 1954, as amended, and that is organized under the Montana Nonprofit Corporation Act, Title 35, chapter 2, MCA. The corporation must have as one of its principal purposes the use of trust monies for the care and treatment of a person or persons with disabilities who are or could be the recipients of department funded services. The monies of individual self-sufficiency trusts may be pooled together by a nonprofit corporation for management and investment purposes.

(7) "Self-sufficiency trust account" means the account established by the state for the purpose of receiving monies from self-sufficiency trusts for the purchase of supplemental services by the state for eligible beneficiaries.

(8) "Service provider" means a person or corporation that provides department funded services or supplemental services to a beneficiary.

(9) "Special charitable account" means the account within the state's self-sufficiency trust account established for the purpose of receiving charitable donations to fund services for persons who have developmental disabilities, mental illness and physical disabilities or who are otherwise eligible for department services, as defined by the department.

(10) "Supplemental services" means services and items that are in addition to the department funded services an eligible beneficiary is receiving from the department.

(1) The beneficiary of a self-sufficiency trust must be:

(a) a resident of the state of Montana;

(b) a person with a disability; and

(c) potentially eligible for services provided by the department or for mental health services provided by the department of corrections.

(2) A person of 18 or more years of age has a disability only if the person is unable to engage in any substantial gainful activity due to the disability.

(3) Services provided by the department include:

(a) developmental disabilities services;

(b) vocational rehabilitation services;

(c) independent living services;

(d) severe disabilities services;

(e) weatherization services;

(f) low income energy assistance;

(g) aid for dependent children;

(h) food stamps; and

(i) medicaid services.

(1) To qualify as a self-sufficiency trust, an individual trust must meet the following criteria:

(a) The individual trust must be established and managed by a nonprofit corporation which has as one of its principal purposes the use of trust monies for the care and treatment of a person or persons with disabilities who are or could be the recipients of state funded services;

(b) The individual trust must be for the sole benefit of a person or persons with disabilities who are or could be the recipients of the state funded services listed in ARM 37.2.503(3) ;

(c) The individual trust must be funded by the beneficiary, by a parent, grandparent or legal guardian of the beneficiary, or at the direction of a court;

(d) The individual trust must provide that the trust monies may only be expended on supplemental services;

(e) The individual trust must provide that upon the death of the beneficiary the state be reimbursed, to the extent the monies remaining in the trust allow, an amount equal to the total cost to the state of providing medicaid services to the beneficiary;

(f) The individual trust must provide that upon the death of the beneficiary, in accordance with IRS codes, rulings and interpretations, monies are donated from the remainder of the trust to the special charitable account as described in ARM 37.2.511;

(g) The expenditure of monies from the individual trust on behalf of a beneficiary must be governed by a life care plan approved by the department in accordance with ARM 37.2.508; and

(h) The individual trust must be established in accordance with state laws governing trusts and with relevant federal and state tax codes, rulings and interpretations.

(a) the name and address of the beneficiary;

(b) a description of the specific supplemental services to be purchased;

(c) the amount of the supplemental services to be purchased;

(d) the amount of money available to purchase the supplemental services; and

(e) any other information necessary for the department to be able to decide whether it is feasible to purchase the specified supplemental services.

(2) A life care plan must meet the following criteria in order to be approved by the department:

(a) The supplemental services specified in the plan must be currently available and can be reasonably expected to be available for the beneficiary when necessary;

(b) The supplemental services specified in the life care plan can be purchased in a manner consistent with the practices of the department;

(c) The beneficiary's trust account must have sufficient monies over the term of the plan to fund the supplemental services to be purchased under the plan; and

(d) The services and items specified in the plan are supplemental services as defined in ARM 37.2.502.

(3) The department will notify the self-sufficiency trust corporation of the department's decision to approve or disapprove a life care plan.

(4) The self-sufficiency trust corporation must provide the department with a payment schedule by which the monies necessary for the reimbursement of the cost of the supplemental services specified in the plan will be deposited to the state's self-sufficiency trust account so as to provide payments for the purchase of the services.

(5) The department will not approve the life care plan for a person who is or could be eligible for state funded mental health services unless the department of corrections approves the plan and is committed to managing the delivery of the supplemental services specified in the plan.

(2) The department may contract with a service provider to manage on behalf of the department the delivery of supplemental services specified in a life care plan.

(3) A contract for the management of the purchase and delivery of supplemental services specified in a life care plan must provide the following:

(a) the name and address of the beneficiary;

(b) the supplemental services to be purchased and delivered;

(c) the amount of money available in the life care plan to purchase the supplemental services;

(d) the types and quantity of the supplemental services to be delivered;

(e) the amount of any reasonable administrative cost the service provider may charge for the management of the purchase and delivery of the supplemental services; and

(f) any other information necessary to secure the purchase and delivery of supplemental services.

(4) Prior to the purchase of a service or item, the money to purchase the service or item must be available in the state's self-sufficiency trust account.

(5) The department reimburses the charges for supplemental services based upon billing provided after the delivery of the services.

(6) The department may terminate the delivery of supplemental services if the amount of funds deposited in the state's self-sufficiency trust account for that particular beneficiary is not sufficient for the management and purchase of the services specified in the life care plan.

(7) A life care plan may be modified only with the written approval of the department.

(8) A self-sufficiency trust desiring to terminate supplemental services must provide the department with written notification 30 days prior to the date when the services are to terminate.

(2) The special charitable account is funded with monies donated by individual trust accounts as provided in ARM 37.2.505 (1) (f) by other charitable donations, and by any other permissible means.

(3) The expenditure of monies from the special charitable account is subject to the legislative appropriation process.

(4) Services for a person are provided in accordance with the provisions of a life care plan developed by the department and approved by the special charitable account review board.

(5) The special charitable account review board is a 3 person board appointed by the department director to review and approve proposed life care plans developed by the department to purchase services for persons with funds from the special charitable account and to review and approve other expenditures from the account.

(6) The special charitable account review board consists of the following members:

(a) a department employee;

(b) a member of the board of directors of an organization which provides self-sufficiency trust services; and

(c) an employee of a service provider.

(2) The department must provide an annual report on an active individual self-sufficiency trust to the managing self-sufficiency trust corporation specifying the following:

(a) the name and address of the eligible beneficiary who received supplemental services;

(b) a description of the supplemental services provided;

(c) the amount of the supplemental services provided;

(d) the cost of the supplemental services provided; and

(e) information about the impact of the supplemental services on the beneficiary.

(2) Monies from a self-sufficiency trust received by the department are deposited in the state's self-sufficiency trust account. The monies for each beneficiary are individually accounted for in the trust account.

(3) The department must return monies to a self-sufficiency trust along with any interest earned on the monies if the department is unable to obtain the supplemental services specified in the life care plan and the life care plan is not revised.

(4) The department must disburse monies from the special charitable account in the self-sufficiency trust account in accord with the appropriation process and the direction of the special charitable account review board.

(1) The purpose of the ABLE program is to provide Montana residents with access to a tax-favored program designed to provide secure funding for qualified disability-related expenses on behalf of individuals with disabilities that will supplement, but not supplant, benefits provided through public or private sources.

The following definitions, found in 53-25-103, MCA, apply to this subchapter:

(1) "Account" means an eligible participating account established under Title 53, chapter 25, MCA, by or on behalf of an eligible individual.

(2) "Account owner" means the designated beneficiary of the account.

(3) "Annual contribution limit" means the limit established in section 529A(b)(2) of the Internal Revenue Code, 26 U.S.C. 529A(b)(2).

(4) "Application" means a form executed by or on behalf of a prospective account owner to enter into a participating trust agreement and open an account. The application incorporates the participating trust agreement by reference.

(5) "Committee" means the achieving a better life experience program oversight committee established in 53-25-105, MCA.

(6) "Contribution" means a payment to an account for the benefit of a designated beneficiary.

(7) "Department" means the Department of Public Health and Human Services provided for in 2-15-2201, MCA.

(8) "Designated beneficiary" means the eligible individual on whose behalf an account is established.

(9) "Eligible individual" means an eligible individual as defined in section 529A(e)(1) of the Internal Revenue Code, 26 U.S.C. 529A(e)(1).

(10) "Financial institution" means a bank, commercial bank, national bank, savings bank, savings and loan association, credit union, insurance company, trust company, investment adviser, or other similar entity that is authorized to do business in this state.

(11) "Investment products" means, without limitation, certificates of deposit, savings accounts paying fixed or variable interest, financial instruments, one or more mutual funds, and a mix of mutual funds.

(12) "Member of the family" means, with respect to a designated beneficiary, a member of the family of the designated beneficiary as defined in section 529A(e)(4) of the Internal Revenue Code, 26 U.S.C. 529A(e)(4).

(13) "Nonqualified withdrawal" means a withdrawal from the account that is not:

(a) a qualified withdrawal;

(b) a withdrawal made as the result of the death of the designated beneficiary of an account; or

(c) a rollover distribution or a change of designated beneficiary described in 53-25-111, MCA.

(14) "Participating trust agreement" means an agreement between an account owner and the department or its designee that creates a trust interest in the trust and provides for participation in the program.

(15) "Program" means the Montana achieving a better life experience program provided for in 53-25-101, et seq., MCA and authorized under section 529A of the Internal Revenue Code, 26 USC 529A.

(16) "Program manager" means a financial institution that acts as an agent of the trust as provided in 53-25-112, MCA.

(17) "Qualified disability expenses" means qualified disability expenses as defined in section 529A(e)(5) of the Internal Revenue Code, 26 USC 529A(e)(5).

(18) "Qualified withdrawal" means a withdrawal from an account to pay the qualified disability expenses of the beneficiary of the account. A qualified withdrawal may be made by the beneficiary, by an agent of the beneficiary who has a power of attorney for the beneficiary, or by the beneficiary's legal guardian.

(19) "Rollover distribution" means a transfer of funds made:

(a) from one account in another state's qualified program to an account for the benefit of the same designated beneficiary or an eligible individual who is a family member of the former designated beneficiary; or

(b) from one account to another account for the benefit of an eligible individual who is a family member of the former designated beneficiary.

(20) "Trust" means the achieving a better life experience savings trust as provided in 53-25-121, MCA.

(21) "Trustee" means the department in its capacity as trustee of the trust.

(1) There is a one-time application fee of $25 for opening a new account. The fee must be paid when the new account is established.

(2) Financial institutions acting as program managers may impose fees upon account owners. Program management fees must be approved by the department before they can be imposed.

(3) Application fees collected must be remitted to the department and placed in a state special revenue account and only be used for administration of the program.

(4) Program management fees will be retained by each program manager as compensation for program management services.

(1) Each program manager must do the following:

(a) generally administer and carry out the program according to the directions and policies of the department and applicable law;

(b) keep adequate records of each account that is under its direction, keep such account segregated from other accounts and post contributions to accounts within no later than the business day that it receives verification that such contributions consist of fully collected funds;

(c) provide the department and all appropriate governmental and regulatory agencies all reports and information as may be required or deemed necessary to obtain tax advantages available under state or federal laws;

(d) provide regular statements at least annually, within 31 days of the annual period to which they apply, to each account owner showing all contributions, withdrawals, and earnings posted to each account during the previous reporting period;

(e) comply with the terms and conditions of its contract with the department;

(f) take all actions required to keep the program in compliance with the requirements of the ABLE Act and all reasonable action not contrary to the ABLE Act, these rules or the depository or program manager's contract to manage its program accounts so that it is treated as a qualified ABLE Act program under section 529A(b) of the Internal Revenue Code, 26 USC 529A(b);

(g) comply with all other laws and regulations applicable to the program manager;

(h) retain or provide copies to the department of all applications and related documentation received pursuant to these rules;

(i) include in any application, participating trust agreement, contract, offering or disclosure document, and any other document identified by the department that may be used in connection with a contribution to an account an express statement that the account is not insured by the state and that the principal deposited and any investment return are not guaranteed by the state; and

(j) include in any application or participating trust agreement a statement that the program must provide that a portion or all of the balance remaining in the account of a deceased designated beneficiary must be distributed to a state that files a claim against the designated beneficiary or the account itself with respect to benefits provided to the designated beneficiary under that state's Medicaid plan.

(1) An account may be opened by or on behalf of an eligible individual who is a resident of Montana or a resident of a state that has entered into a contract with Montana to provide its residents access to the program.

(2) An eligible individual or the eligible individual's legal guardian or agent under a power of attorney may open an account for the benefit of the eligible individual by:

(a) completing an application and a participating trust agreement supplied by the program manager;

(b) making the minimum contribution required by the program manager; and

(c) paying the one-time application fee.

(3) The application or participating trust agreement must include:

(a) the name, address, telephone number, and social security number or employer identification number of the contributor;

(b) the name, address, telephone number, and social security number of the eligible individual who will be the designated beneficiary and account owner;

(c) the designation of the financial institution with which the funds in the account will be invested;

(d) the certification relating to no excess contributions adopted by the department;

(e) the designation of the type of account to be opened if more than one type of account is offered;

(f) the certification that money in the account will be used solely to save for and to pay for the account owner's qualified disability expenses;

(g) the certification that the account will not be used or pledged as security for a loan;

(h) copies of documents establishing a legal guardianship or power of attorney if the account is established by a legal guardian or individual acting pursuant to a power of attorney; and

(i) any other information the department requires.

(4) Unless required by federal law or regulation, money in any account may not be counted as a resource in determining eligibility for an assistance program operated under Title 53, MCA, or any other federal, state, or local government means-tested program.

(1) Subject to the limitations in (2), any person, including a nonresident of Montana and an individual who is not the account owner, may make a contribution to an account.

(2) All contributions to accounts must be in cash and may not exceed the annual contribution limit found in section 529(A)(b)(2) of the Internal Revenue Code, 26 USC 529(b)(2).

(3) Contributions may be made following payroll deduction plans to which the contributor and his or her employer are parties. In such case, the employer, on behalf of the contributor, will send the contribution to the program manager, as agent for the trustee.

(1) Qualified withdrawals from an account are:

(a) a withdrawal from an account to pay the qualified disability expenses of an account owner;

(b) a withdrawal made as the result of the death of the account owner; or

(c) a rollover distribution or a change of designated beneficiary and account owner.

(2) A qualified withdrawal may be made by the account owner, by an agent of the account owner who has a power of attorney for the beneficiary, or by the account owner's legal guardian for qualified disability expenses.

(3) Nonqualified withdrawals are any withdrawals from an account other than qualified withdrawals and are subject to a recapture tax, as allowed under section 529A(c)(3) of the Internal Revenue Code and as implemented by the Montana Department of Revenue.

(1) At least annually, within 31 days of the annual period to which they apply, the program manager must provide to each account owner an account statement. The statement must include:

(a) a balance of the account at the beginning of the reporting period;

(b) all activity during the reporting period including deposits, withdrawals, penalties paid, and income earned; and

(c) the balance at the end of the reporting period.

(2) A program manager must prepare and provide to account owners such information as the Internal Revenue Service or federal income tax law may require be provided to account owners by the required deadlines.

(3) A program manager must prepare and provide to the Department of Revenue (DOR) such information as the director of DOR may request to permit the DOR to verify the $3,000 income deduction permitted by 15-30-2110(12), MCA.

(4) A program manager, upon request of the department, must provide to the department copies of the reports that it provides to account owners.

(1) If the department determines not to renew a contract with an existing program manager, then the department, as trustee of the trust, may take appropriate action consistent with the interest of the program and the accounts.

(2) Except as provided in (3), if the department does not renew a contract with a program manager, at the end of the term of the nonrenewed contract, the program manager must:

(a) continue to administer accounts already established with the program manager, including accepting additional contributions;

(b) not establish new accounts unless and until a new program contract is executed with the department; and

(c) comply with all rules or policies established by the department or the terms of a contract between the department and the nonrenewed program manager executed for the purpose of administering and managing the existing accounts.

(3) The department may terminate a contract with a program manager or prohibit the continued investment of funds with a nonrenewed program manager at any time for good cause on the recommendation of the committee.

(4) Upon termination of a program manager contract for good cause or prohibition of investment upon recommendation of the committee, the department must take custody of account funds held at the financial institution and must promptly reinvest the funds with another financial institution selected as a program manager by the department and into the same investment products or substantially similar investment products.

(5) Subject to (6), prior to terminating a contract or prohibiting investment, the department must give account owners notice of the termination and a period of up to 30 days to voluntarily terminate the account and to select another program manager with which to establish an account.

(6) If termination of a program manager causes an emergency that may lead to a loss of funds to any account owner, the department may take emergency action as necessary or appropriate to prevent the loss of funds. After taking emergency action, the department must provide notice to account owners and opportunity for action as provided in (5).

(2) "Discretionary income" is determined by subtracting fixed expenses from the total gross income or adjusted gross income from the most recent IRS tax return plus depreciation and voluntary retirement contributions which are deducted from the gross income on the tax return.

(3) "Financially responsible person" means a spouse of a resident, the natural or adoptive parents of a resident under 18 years of age or a guardian or conservator to the extent of the guardian's or conservator's responsibility for the financial affairs of the person who is a resident under applicable Montana law establishing the duties and limitations of guardianship or conservatorships.

(4) "Fixed expenses" means the amount determined by the department under ARM 37.2.703.

(5) "Income" means the amount determined by the department under ARM 37.2.702.

(6) "Liquid assets" means stocks, bonds, certificates of deposit, etc. which can be readily converted to cash.

(7) "Personal needs" means the reasonable cost of toiletries, newspapers, or other personal comfort items not normally supplied by an institution. The department will use the standards for medicaid guidelines as a minimum. The standards for medicaid guidelines are published in the Department Medical Assistance Guidelines Manual (see MA 904-1 and 904-3) . A copy of these standards can be obtained from the Department of Public Health and Human Services, Fiscal Services Division, 111 N. Sanders, P.O. Box 6429, Helena, MT 59604-6429.

(8) "Real property" means land and permanent attachments including trees, buildings and infrastructure.

(a) gross wages, salaries, tips, commissions, bonuses and other earnings;

(b) draws or advances against future earnings;

(c) allowances, flat rate payments or per diem compensation for employment expenses;

(d) net receipts from nonfarm self-employment (receipts from a nonfarm business, profession or occupation, after deductions for reasonable operating expenses) ;

(e) net receipts from farm self-employment, whether an owner, tenant, or sharecropper (receipts from a farm or ranch, after deductions for reasonable operating expenses) ;

(f) net rental income (receipts from rental property after deductions for reasonable operating expenses) ;

(g) periodic payments from social security, unemployment compensation insurance, union strike funds, workers compensation, veterans benefits, public assistance (including, but not limited to, aid to families with dependent children or temporary assistance for needy families, supplemental security income and non-federally funded general assistance or general relief) and other government payments or benefits, disability benefits and training stipends;

(h) alimony, child support and military family allotments or other regular support from an absent family member or someone not living in the household;

(i) private pensions, government employee pensions (including military retirement pay) , railroad retirement and regular insurance, trust or annuity payments;

(j) college or university scholarships, grants, fellowships and assistantships;

(k) dividends, interest or net royalties;

(l) distributions from estates or trusts, net gambling and lottery winnings; capital gains; proceeds from the sale of personal or real property (house, automobile, etc.) ; tax refunds, federal earned income credit, government subsidies or grants; gifts, one-time insurance payments, recoveries for injury or loss; and

(m) the value of non-cash benefits (including but not limited to inkind compensation, personal use of a business vehicle, housing, food, utilities and payment of personal expenses or obligations) .

(a) housing expenses such as:

(i) rent payment;

(ii) lease payment;

(iii) mortgage;

(iv) property taxes;

(v) property insurance;

(vi) mortgage insurance;

(vii) heat;

(viii) electricity;

(ix) water and sewer;

(x) waste disposal;

(xi) phone; and

(xii) special improvement districts (SIDs) and rural improvement districts (RIDs) ;

(b) transportation expenses such as:

(i) vehicle payment;

(ii) vehicle lease;

(iii) vehicle insurance;

(iv) license;

(v) vehicle maintenance;

(vi) fuel; and

(vii) public transportation;

(c) medical expenses such as:

(i) actual medically related cost after subtracting insurance reimbursement; and

(ii) medical and nursing home insurance premiums;

(d) food expense;

(e) clothing;

(f) union dues;

(g) lodge dues which include life insurance;

(h) court ordered debt or payment (child support, alimony, etc.) ;

(i) taxes such as:

(i) federal;

(ii) state;

(iii) social security;

(j) mandatory retirement;

(k) voluntary retirement up to social security contribution;

(l) life insurance;

(m) burial contract committed to prior to or during the inpatient stay;

(n) child or adult day care;

(o) education; and

(p) employment expenses.

(a) allowances for food and clothing needs shall be based on data reported periodically by the USDA center for nutrition policy and promotion. A copy of the allowances for food and clothing are available upon request from the Department of Public Health and Human Services, Fiscal Services Division, 111 N. Sanders, P.O. Box 6429, Helena, MT 59604-6429; and

(b) transportation expenses shall be allowed for the actual cost of operating one vehicle per family, unless a second vehicle is essential to the production of income. If no vehicle is owned, the actual cost of public transportation shall be allowed.

(2) Ability to pay shall be determined by dividing the resident or financially responsible person’s discretionary income as defined in ARM 37.2.701 by the number of persons dependent upon that income, including the resident or financially responsible person. The quotient shall be the resident's share of discretionary income or the ability to pay.

(3) The ability to pay shall be reduced by the monthly personal needs as defined in ARM 37.2.701 for the resident as determined by the department. If the department learns that the personal needs allowance is not being used for the resident’s benefit, the department may discontinue the allowance.

(4) Liquid assets which exceed eligibility standards for medicaid shall be considered available to pay the cost of care unless protected as follows:

(a) as protected by law;

(b) an order of the court; or

(c) the medicaid spousal impoverishment program.

(5) The department shall determine ability to pay based on the real property of a resident or the resident's spouse as follows:

(a) if the real property has been listed or advertised for sale, or is not occupied as the home of the resident, the resident's spouse, or a dependent child or parent of the resident or the resident's spouse, it shall be considered as provided in 53-1-405 , MCA; or

(b) upon the sale of real property, the proceeds shall be considered available to pay the cost of care and shall be added to the ability to pay unless the property sale proceeds will be used to purchase a home within 18 months or are used for primary residence living expenses.

(6) The department shall review each determination of ability to pay as follows:

(a) annually, as provided in 53-1-408 , MCA; or

(b) upon the request of a resident or financially responsible person providing documentation of a changed circumstance that would substantially affect the previous determination;

(c) the determination shall be effective upon completion of the review, unless the department finds one of the conditions in 53-1-408 , MCA applies. Refunds of any overpayment resulting from an assessment retroactively reduced because of a new determination of ability to pay shall be made according to 53-1-405 , MCA.

(2) The department shall allow the resident or financially responsible person 30 days from the date of the request or date of mailing to respond. If the resident or financially responsible person is contacted by mail, the department shall allow an additional three days for the response.

(3) If the resident or financially responsible person does not provide or cooperate with the department in obtaining the requested financial information and documentation within 30 days, the department may determine ability to pay, up to the full cost of care based on the information gathered by the department under 53-1-406 , MCA.

(a) the full cost of care, as determined by recorded charges, less any payments received from other sources, except that payments received from a managed care organization administering a mental health managed care program under contract with the department shall not reduce the charge;

(b) the amount of the adjusted ability to pay determination; or

(c) the maximum parental liability, for parents of a long-term resident shall be based on data reported periodically by the United States department of agriculture (USDA) center for nutrition policy and promotion. The liability shall commence on the 121st day of care. The current maximum parental liability amount is available upon request from the Department of Public Health and Human Services, Fiscal Services Division, 111 N. Sanders, P.O. Box 6429, Helena, MT 59604-6429.

(2) The department may accept a monthly payment that is less than the assessed charges, with the balance accumulating as a liability of the resident or financially responsible person under the following circumstances:

(a) pending the sale of liquid assets or real property available to pay the cost of care;

(b) pending the anticipated receipt of income; or

(c) when a resident whose care treatment plans provide for discharge and economic independence within one year, and additional funds are needed for:

(i) savings to furnish and initiate an independent living arrangement for the resident upon release from the facility. Under this provision, funds shall not be conserved beyond the point that the resident would no longer meet the asset eligibility limits for SSI or medicaid; or

(ii) purchase of clothing and other reasonable personal expenses the client will need to enter an independent living arrangement.

(2) Upon verification of the receipt of third party payments made directly to a resident or financially responsible person, the department may enforce the automatic assignment of rights provided in 53-1-414 , MCA.

(2) If no response or payment is received before the 120th day, the department may issue a second notice stating that action has been taken, and requesting that all correspondence and/or payment be directed to the department of administration.

(3) If a resident or financially responsible person dies owing a delinquent account, the department may notify the heirs, devisees, personal representative or attorney of its claim against any estate.

(2) If a new determination results in a retroactive reduction of a prior monthly payment amount, and the account has been paid in full for that time period, a refund will be made.

(3) If combined payments from more than one payer are received which exceed the cost of care, a refund will be initiated with the appropriate party or intermediary listed as designated recipient.

(2) The request for administrative review must be:

(a) submitted to the department in writing;

(b) state the reasons the person contends that the determination is incorrect or fails to comply with legal requirements;

(c) include any additional information and substantiating documentation which the person wishes the department to consider in the administrative review;

(d) be received by the department within 30 days of mailing of the department's ability to pay determination letter; and

(e) be mailed or delivered to the Department of Public Health and Human Services, Fiscal Services Division, 111 N. Sanders, P.O. Box 6420, Helena, MT 59604-6420.

(3) A resident or financially responsible person aggrieved by an adverse department administrative review determination under this rule may request a fair hearing in accordance with ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334 and 37.5.337.

(1) "Act" means the Omnibus Budget Reconciliation Act of 1981.

(2) "Contractor" means human resource development council, one of the state's 10 organizations designated as a community action agency under the provisions of section 210 of the Economic Opportunity Act of 1964 which is a nonprofit community organization serving low income persons in a multicounty area that has the same boundaries as one or more substate planning districts established by executive order of the governor.

(3) "County" means the board of county commissioners.

(4) "CSBG" means the community services block grant.

(5) "Department" means the department of public health and human services.

(6) "Director" means the director of the department of public health and human services.

(7) "Poverty line" means the official poverty line established by the director of the federal office of management and budget.

(a) to provide a range of services and activities having a measurable and potentially major impact on causes of poverty in the community or those areas of the community where poverty is a particularly acute problem;

(b) to provide activities designed to assist low income participants including the elderly poor:

(i) to secure and retain meaningful employment;

(ii) to attain an adequate education;

(iii) to make better use of available income;

(iv) to obtain and maintain adequate housing and a suitable living environment;

(v) to obtain emergency assistance through loans or grants to meet immediate and urgent individual and family needs, including the need for health services, family needs, including the need for health services, nutritious food, housing and employment related assistance;

(vi) to remove obstacles and solve problems which block the achievement of self-sufficiency;

(vii) to achieve greater participation in the affairs of the community; and

(viii) to make more effective use of other programs related to the purpose of this subchapter.

(c) to provide on an emergency basis for the provision of such supplies and services, nutritious foodstuffs, and related services, as may be necessary to counteract conditions of starvation and malnutrition among the poor;

(d) to coordinate and establish linkages between governmental and other social services programs to assure the effective delivery of services to low income individuals;

(e) to encourage the use of entities in the private sector of the community in efforts to ameliorate poverty in the community; and

(f) to meet department-identified priorities which address one or more of the eligible activities described in (1) (a) through (e) .

(2) Not all of items in (1) (b) through (f) must be proposed in a contractor plan. However, the contractor does have to certify that it is providing a range of services and activities having a measurable and potentially major impact on the causes of poverty in its community, commensurate with the amount of money received.

(3) The contractor plan shall contain the additional assurances that:

(a) CSBG funds will not be used to provide voters and prospective voters with transportation to the polls or provide similar assistance in connection with an election or any voter registration activity;

(b) CSBG funds will be used to provide for coordination between anti-poverty programs and, where appropriate, with emergency energy crisis intervention programs under Title XXVI of the Act (relating to low income home energy assistance) conducted in the county;

(c) fiscal control and fund accounting procedures will be established as may be necessary to assure the proper disbursal of and accounting for CSBG funds;

(d) the contractor will prepare and submit to the state, at least once every two years, an independent audit of the CSBG funds;

(e) amounts found not to have been expended in accordance with the Act or the contractor plan will be repaid to the state;

(f) no person shall on the ground of race, color, national origin or sex be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity funded, in whole or in part, with CSBG funds. Any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 shall also apply to any such program or activity;

(g) CSBG funds will not be used for the purchase or improvement of land, or the purchase, construction or permanent improvement (other than low cost residential weatherization or other energy-related home repair) of any building or other facility;

(h) it will permit and cooperate with any federal or state investigation related to the CSBG; and

(i) each contractor must have a board of directors constituted so as to assure that:

(i) one-third of the members of the board are elected public officials currently holding office or their representatives, except that if the number of elected officials reasonably available and willing to serve is less than one-third of the membership of the board, membership on the board of appointive public officials may be counted in meeting such one-third requirements;

(ii) at least one-third of the members are persons chosen in accordance with democratic selection procedures adequate to assure that they are representative of the poor in the area served; and

(iii) the remainder of the members are officials or members of business, industry, labor, religious, welfare, education or other major groups and interests in the community.

(4) The contractor plan must contain:

(a) evidence that an assessment of needs has been undertaken to determine the best expenditures of CSBG funds;

(b) a description of which services and activities will be carried out and the means to be used to provide those services and activities. Such description shall also include the geographic areas to be served and categories or characteristics of individuals to be served. If direct services are planned, only individuals with income below the poverty line are eligible; and

(c) a proposed budget describing how the CSBG funds will be used during the program period.

(5) The program period will begin January 1 and end on December 31 of the same year. All contractor plans/budget material must be proposed for completion during that period. Should unusual or extraordinary circumstances occur, the department will consider requests for amendments to the contractor plan.

(6) The contractor plan shall be submitted on forms provided by the department.

(1) The contractor shall submit the plan to the county governing bodies within its multicounty area. A county governing body may approve, disapprove, or offer amendments to the plan. If the county governing body and the contractor cannot agree as to the plan's components, the department shall prepare and approve a plan for such county.

(2) The department will, within 45 working days of plan receipt, notify the contractor of approval/disapproval of each contractor plan.

(3) The department will base its review of the contractor plan on whether or not:

(a) the contractor plan demonstrates that it provides a range of services and activities having a measurable and potentially major impact on causes of poverty in the community, or those areas of the community where poverty is a particularly acute problem;

(b) all assurances and requirements of ARM 37.2.907 have been met.

(4) The department may disapprove a plan, in whole or in part, only if the plan conflicts with a state or federal law. If the contractor plan is either partially or totally unacceptable, the department will work with the contractor to develop an acceptable proposal. If an acceptable proposal can not be developed within thirty days after notice of disapproval, CSBG funds reserved for an affected county shall be distributed to contractors with approved contractor plans.

(5) If a contractor plan is disapproved, a contractor has the right to appeal to the director. The director's decision shall be the final administrative decision.

(2) The balance of the block grant funds after any retention pursuant to (1) must be distributed to contractors that are eligible to receive such funding as follows:

(a) $500,000, or if the balance of the block grant funds is less than $500,000, then the entire balance of the block grant funds must be equally divided among the eligible contractors; and

(b) the balance of the block grant funds after distribution under (1) and (2) (a) must be divided among eligible contractors as follows:

(i) one-half based upon the percentage of the state's population residing within the contractor's area; and

(ii) one-half based upon the percentage of the state's population with income below the poverty line residing within the contractor's area.

(3) General population allocation: each contractor shall receive an amount equal to the population residing in the contractor's area according to the most recent U.S. decennial census divided by the population of the state of Montana according to the most recent U.S. decennial census times the amount available for allocation according to general population distribution in (2) (b) (i) .

(4) Poverty population allocation: each eligible contractor shall receive an amount equal to the population residing in the contractor's area which has income below the poverty line according to the most recent U.S. decennial census divided by the population of the state of Montana which has income below the poverty line according to the most recent U.S. decennial census times the amount available for allocation according to poverty population distribution in (2) (b) (ii) . If the results of the most recent U.S. decennial census are unavailable, the most current and accurate information available will be used.

(2) Upon request, the contractor will submit to the department any reports, forms or documents deemed necessary in order to determine how the funds were expended and for which services or activities.

(a) a statewide redistribution of funds in response to:

(i) the results of the most recent available census or other appropriate data;

(ii) the establishment of a new entity eligible for funding; or

(iii) severe economic dislocation; or

(b) the contractor's failure to comply with the terms of its agreement to provide services.

(2) The allotment of a contractor who currently receives CSBG funding or who received funding in the previous program period can be terminated or reduced only after the contractor has been notified and given an opportunity for a hearing on the record before the director or the director's designee. A request for a hearing from a contractor must be submitted to the department in writing within 30 days of the date of notice of the termination or reduction. The decision of the director or the director's designee shall be subject to review by the secretary of health and human services.

(a) Upon request, the secretary shall review the record and issue a written determination stating the secretary's reasons for that determination.

(b) In cases where a contractor requests review by the secretary, the termination or reduction of the contractor's allotment is not final until the secretary has affirmed the state's finding of cause.

(1) The purpose of these rules is to implement 53-6-1312, MCA, which establishes the Medicaid schedule of rates as the reimbursement rates that the State of Montana (State) pays for health care services provided to an individual who does not qualify for Medicaid, Medicare, a health insurer, or another private or governmental program that pays for health care costs and is:

(a) in the custody of the Department of Corrections; or

(b) a resident, by commitment or otherwise, of the Montana State Hospital, the Montana Mental Health Nursing Care Center, the Montana Chemical Dependency Center, or the Montana Developmental Center.

(2) The State will process these health care claims through the Department of Public Health and Human Services' Medicaid claims processing agent.

(1) To receive payment from the State for health care services provided to an individual identified in 53-6-1312, MCA, a provider must:

(a) be enrolled as a Montana Medicaid provider;

(b) accept the Montana Medicaid rates as full payment for all health care services; and

(c) comply with the requirements of this subchapter.

(2) A provider who accepts an individual identified in 53-6-1312, MCA, as a patient is agreeing to accept the Medicaid rate as payment in full.

(3) In service settings where an individual identified in 53-6-1312, MCA, is accepted as a patient by a provider who arranges for services by other providers, all providers performing services are deemed to have accepted reimbursement from the State at the Montana Medicaid rates.

(4) A provider may not "balance bill" or seek payment in addition to, or in lieu of, the payment by the State. "Balance bill" means a provider bills the patient, or responsible party, the difference between the amount the state reimburses for services and what the provider chooses to charge.

(1) Except for the administrative rules listed in (2), the provider requirements of ARM Title 37, chapter 85, subchapter 4, "Provider Requirements," apply to the delivery of health care services provided to an individual identified in 53-6-1312, MCA. For purposes of this subchapter, a reference to "Montana Medicaid" or "Medicaid" in ARM Title 37, chapter 85, subchapter 4 is understood to mean payments made under 53-6-1312, MCA.

(2) The following administrative rules do not apply to providers receiving payment for services provided to an individual identified in 53-6-1312, MCA:

(a) ARM 37.85.407, Third Party Liability;

(b) ARM 37.85.411, Provider Rights;

(c) ARM 37.85.415, Medical Assistance Medicaid Payment; and

(d) ARM 37.85.416, Statistical Sampling Audits.

(3) A provider who disputes a payment is entitled to an administrative hearing on the matter according to the procedures of the department responsible for payment. A provider who is aggrieved by a final written decision is entitled to a judicial review of the decision. 

(1) The cost sharing requirements of ARM 37.84.108 and 37.85.204 do not apply to the individuals identified in 53-6-1312, MCA. An individual identified in 53-6-1312, MCA, is neither a member nor a program participant as defined at 53-6-1302, MCA.