BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
In the matter of the amendment of ARM 37.87.2202, 37.87.2205, and 37.87.2225 pertaining to non-Medicaid respite care services
NOTICE OF AMENDMENT
TO: All Concerned Persons
1. On July 12, 2012, the Department of Public Health and Human Services published MAR Notice No. 37-592 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1338 of the 2012 Montana Administrative Register, Issue Number 13. On August 23, 2012, the Department of Public Health and Human Services published an Amended Notice of Public Hearing on Proposed Amendment at page 1659 of the 2012 Montana Administrative Register, Issue Number 16.
2. The department has amended ARM 37.87.2202 as proposed.
3. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
37.87.2205 MENTAL HEALTH SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE (SED) NON-MEDICAID RESPITE CARE SERVICES, LIMITATIONS (1) Children's Mental Health Bureau (CMHB)
Non non-Medicaid respite care services may be provided only on a short-term basis.
Non non-Medicaid respite care services may not be provided in a psychiatric residential treatment facility.
Non non-Medicaid respite care services are limited to available funding each state fiscal year.
(a) Retroactive funds for CMHB non-Medicaid respite care services are not available.
(4) Youth must meet SED criteria and must also be receiving Medicaid funded mental health services.
Non non-Medicaid respite care services shall only be provided to youth who receive Ttherapeutic Ffamily Ccare (TFC) and moderate level therapeutic foster care (TFOC moderate) services or upon authorization by the department or its designee.
(6) For youth who qualify and receive CMHB non-Medicaid respite care services, the individualized treatment plan must document CMHB non-Medicaid respite care in accordance with ARM 37.106.1916(c).
Non non-Medicaid respite care services are available to a youth 17 years or age or younger.
AUTH: 53-2-201, 53-6-101, 53-6-113, MCA
IMP: 53-2-201, 53-6-101, 53-6-111, MCA
37.87.2225 MENTAL HEALTH SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE (SED) NON-MEDICAID RESPITE CARE SERVICES, PROVIDER PARTICIPATION (1) Licensed and enrolled mental health centers may provide Children's Mental Health Bureau (CMHB) non-Medicaid respite care services upon approval by the department, provided they meet the requirements of this subchapter.
(2) Persons delivering CMHB non-Medicaid respite care services must be employed by a provider agency or a therapeutic foster parent in the state of Montana who meets all the requirements found in ARM 37.51.603.
(3) through (5) remain as proposed.
(6) The provider of CMHB non-Medicaid respite care services must ensure that its employees or a licensed therapeutic foster parent providing the services are:
(a) through (e) remain as proposed.
AUTH: 53-2-201, 53-6-101, 53-6-113, MCA
IMP: 53-2-201, 53-6-101, 53-6-111, MCA
4. 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: Several commenters expressed concern relating to the addition of concurrent Therapeutic Family Care as an eligibility requirement to receive non-Medicaid respite care services. The commenters are concerned that this limitation will prevent other families who benefit from non-Medicaid respite from getting the service.
RESPONSE #1: The department appreciates the comments and understands the frustration with limiting Children's Mental Health Bureau (CMHB) non-Medicaid respite services. The department considered many options in order to balance the need for this respite service with the budgetary constraints that exist. Limiting CMHB non-Medicaid respite services to those receiving therapeutic family care provides for those youth and families who are in higher levels of care. While the department recognizes the benefits this service could provide for those with a lower level of need, it is our practice to serve youth with greater need first, even if it means serving fewer people.
COMMENT #2: Several commenters opposed the requirement for respite care services to be provided only by employees of provider agencies. The commenters feel this requirement will pose financial as well as liability issues for the provider.
RESPONSE #2: The department is aware that the current language in the rule has created some confusion as to who can provide CMHB non-Medicaid respite services. The proposed rule attempts to only make clear the current rule's intent. The reason for this requirement is to ensure that those providing respite care are adequately trained to meet the youth's needs. The department has added "licensed therapeutic foster parent in the state of Montana," found in ARM Title 37, chapter 51, as a provider type for CMHB non-Medicaid respite. The department is also researching other options to provide and manage this service while maintaining responsible stewardship. One option may be utilizing self-directed respite. The department appreciates the creative ideas submitted and will be addressing respite reform in the near future.
COMMENT #3: A commenter asked for clarification on whether the reference to therapeutic family care also included therapeutic foster care as well.
RESPONSE #3: The initial proposed rule excluded therapeutic foster care moderate by mistake due to upcoming programmatic changes. An amended proposed rule was published on August 23, 2012 which corrected this error.
COMMENT #4: Several commenters stated that the term "non-Medicaid respite care services" causes confusion and possible conflicts with regulations through Child and Family Services who also provide non-Medicaid respite for therapeutic foster care services through child placing agencies.
RESPONSE #4: The department acknowledges this potential problem and has added Children's Mental Health Bureau (CMHB) to the term in ARM 37.87.2205 to discern between the two sets of regulations. Other divisions within DPHHS such as Child and Family services and the Developmental Disability Program offer non-Medicaid respite. This rule pertains only to CMHB non-Medicaid respite.
COMMENT #5: One commenter asked about CMHB's understanding of what respite is reimbursable through the Affordable Care Act and asked whether CMHB reverted money back to general fund last state fiscal year. They also inquired if there was any effort to request additional funds from the state's surplus to increase the respite appropriation.
RESPONSE #5: Funding for this CMHB non-Medicaid respite service is a general fund appropriation. CMHB did not revert any funds back to the general fund and in fact, spent approximately $200,000 more on respite than what was appropriated. The department is committed to staying within current appropriation this fiscal year. Access to the state surplus is through legislative appropriations. The Affordable Care Act only allows reimbursement for respite through a 1915i state plan amendment or a waiver.
COMMENT #6: One commenter asked that concurrent be defined.
RESPONSE #6: The department defines concurrent as "any time during the 90-day period the individualized treatment plan is in place, unless the youth is discharged from the service." As it applies to this rule, the youth must have an individualized treatment plan in place for therapeutic family care or moderate level therapeutic foster care in order to be eligible for CMHB non-Medicaid respite.
/s/ John Koch /s/ Anna Whiting Sorrell
Rule Reviewer Anna Whiting Sorrell, Director
Public Health and Human Services
Certified to the Secretary of State October 29, 2012