Montana Administrative Register Notice 37-619 No. 2   01/31/2013    
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In the matter of the adoption of New Rules I through X, the amendment of ARM 37.87.703, and the repeal of ARM 37.37.301, 37.37.303, 37.37.310, 37.37.311, 37.37.316, 37.37.318, 37.37.323, 37.37.330, 37.37.336, 37.87.1021, 37.87.1023, and 37.87.1025, pertaining to therapeutic family care and therapeutic foster care













TO:  All Concerned Persons


1.  On December 6, 2012, the Department of Public Health and Human Services published MAR Notice No. 37-619 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 2442 of the 2012 Montana Administrative Register, Issue Number 23.


2.  The department has adopted New Rule II (37.87.1402), IV (37.87.1405), V (37.87.1407), VI (37.87.1408), VIII (37.87.701), and X (37.87.1413) as proposed.


3.  The department has amended ARM 37.87.703 and repealed ARM 37.37.301, 37.37.303, 37.37.310, 37.37.311, 37.37.316, 37.37.318, 37.37.323, 37.37.330, 37.37.336, 37.87.1021, 37.87.1023, and 37.87.1025 as proposed.


4.  The department has adopted the following rules as proposed with the following changes from the original proposal.  Matter to be added is underlined.  Matter to be deleted is interlined.


            NEW RULE I (37.87.1401)  HOME SUPPORT SERVICES AND THERAPEUTIC FOSTER CARE, SERVICES REIMBURSEMENT  (1) through (4) remain as proposed.

            (5)  Targeted case management will not be reimbursed concurrently with HSS or TFC.


AUTH:  53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, MCA



            (4)  The licensed person on each treatment team must coordinate sign the ITP of for each service with that of the other service(s) the youth, caregiver, or both are receiving receive.

            (5) remains as proposed.


AUTH:  53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, MCA


            NEW RULE VII (37.87.1410)  HOME SUPPORT SERVICES (HSS) AND THERAPEUTIC FOSTER CARE (TFC), PROVIDER REQUIREMENTS  (1)  Effective January 31, 2014, HSS and TFC providers must be a mental health center as described in Title 37, chapter 106, subchapter 19.

            (2) through (8) remain as proposed.


AUTH:  53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, MCA



            (6)  Medicaid will not reimburse for room, board, maintenance, or any other nontherapeutic component of TFOC-P treatment, including when this service is delivered in a foster home.

            (7)  Targeted case management will not be reimbursed concurrent with TFOC-P.


AUTH:  53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, MCA


5.  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 opposition to proposed New Rule I (37.87.1401)(5), that targeted youth case management (TCM) will not be reimbursed concurrently with home support services (HSS), therapeutic foster care (TFC), and therapeutic foster care permanency (TFOC-P).  The commenters stated about 1,000 youth receiving HSS/TFC/TFOC are also receiving targeted case management and that the proposed rule changes impose more service expectations on the home support service specialist (HSS-S) to fill the gap when case management services are needed, diminishing the quality of the service.  The commenters also stated that requiring case management as part of the bundled rate for HSS, TFC, and TFOC-P is an unfunded mandate.


RESPONSE #1:  The intent of New Rule I (37.87.1401)(5) is to allow families and providers more flexibility in specific service responses, to match needs with interventions identified in the family's individualized treatment plan (ITP).  Not all families who receive HSS/TFC/TFOC-P will identify case management as a need.  This flexibility allows providers to shift resources to provide services.  The rule requires specific interventions be available under a single bundled rate which allows the family to identify and prioritize which interventions best meet their individualized needs.


COMMENT #2:  Several commenters stated that youth transitioning to and from higher levels of care require TCM for successful transitions.  The commenters requested the department to consider allowing for a time period in which case management services can be provided concurrent to HSS/TFC/TFOC-P to support these transitions.


RESPONSE #2:  The department recognizes the merit of this request and may research the implications of allowing for this transition time in future rule amendments.


COMMENT #3:  Many commenters stated that this rule change will deter targeted case managers from referring youth for HSS/TFC/TFOC-P because it will force the family to choose between two needed services.  Many of the commenters identified themselves as family members currently receiving both services and said this rule change will force them to choose between two services they believe they need.  They stated the proposed rule change is in contrast with the department's value of promoting voice and choice.


RESPONSE #3:  The department supports asking the family to identify and prioritize their needs.  The intent of this proposed rule is to allow for flexibility within an intensive in-home support model to match the family's needs.  HSS/TFC/TFOC-P and TCM are not intended to be permanent services.  If HSS/TFC/TFOC-P is effective, the family will get what they need through HSS/TFC/TFOC-P.  If HSS/TFC/TFOC-P does not meet their needs they may choose another intervention more suited to meet their needs.


COMMENT #4:  A few commenters stated that TCM is a program which meets the global needs of the family in the system and ensures a continuum of care as youth and family needs change within that continuum.  They stated that the targeted case manager builds a longer relationship with the family than other providers and acts as an advocate for the youth and the family.  Not allowing TCM concurrent with HSS/TFC/TFOC-P forces them to choose between two medically necessary services or lose a potential advocate during this service.


RESPONSE #4:  The Children's Mental Health Bureau Provider Manual and Clinical Guidelines incorporated in ARM 37.87.903 defines the medical necessity criteria for admission and continued stay for TCM.  Admission Criteria #1, 2(d) requires the TCM provider to demonstrate they are assisting in identifying resources and services necessary to complete an individualized, strength-based case management treatment plan directed at achieving self-sufficiency for the youth/family.  TCM is not intended to be a long term service over multiple years.  The goal is for families to achieve self-efficacy.  Families will have the choice between TCM and HSS/TFC/TFOC-P, based on a prioritization of their needs.


COMMENT #5:  Many of the commenters do not think that TCM and HSS/TFC/TFOC-P are duplicative.  Commenters say that HSS/TFC/TFOC-P is a direct, specialized in-home service designed to work with the whole family in the home setting to address the needs of the youth.  In comparison, TCM cannot be a direct service and is designed to coordinate needed services.  TCM, as defined in state and federal rule, is a process of planning and coordinating care and services to meet individualized needs of a client to assist the client in accessing necessary medical, social, nutritional, educational, and other services.  The TCM links the youth and family to HSS/TFC/TFOC-P services when in-home family support is an identified need.


RESPONSE #5:  The department agrees that federal law states TCM is not a direct service.  Families can choose TCM when their priority is to have assistance accessing necessary medical, social, nutritional, educational, and other services. The HSS/TFC/TFOC-P provider is expected to assess the youth and family needs, develop, review, and monitor the plan of care as part of the service.  Linkage and referral to other services may be identified by the family as a prioritized need over other services options within HSS/TFC/TFOC-P and addressed as part of this service.


COMMENT #6:  One commenter referenced ARM 37.86.3305(2) saying that case management is a covered Medicaid service for severely emotionally disturbed (SED) youth and to deny TCM is denying access to a covered Medicaid service.


RESPONSE #6:  ARM 37.85.410(1) states: "The department shall only make payment for those services which are medically necessary as determined by the department or by the designated review organization."  A youth being determined as SED does not meet medical necessity requirements for TCM.  The department's medical necessity criteria for TCM can be found at the following web site: http://www.dphhs.mt.gov/publications/cmhbprovidermanualandclinicalmanagementguidelines.pdf


COMMENT #7:  Several commenters said families receiving HSS/TFC/TFOC-P have the greatest need for case management because they are at risk for out-of-home care.  These commenters stated the case manager has a global view of the service system and makes referrals to the appropriate services to prevent out of home placements.


RESPONSE #7:  HSS/TFC/TFOC-P is an effective, intensive intervention and the family will get what they need through HSS/TFC/TFOC-P or may return to TCM services.


COMMENT #8:  One commenter stated that in ARM 37.86.3305(5), case management must be delivered by a case manager whose primary responsibility is the delivery of case management services to one or more population(s) described in ARM 37.86.3305.  If HSS/TFC/TFOC-P providers must deliver case management, the intent of this rule is contradicted.


RESPONSE #8:  ARM 37.86.3305 applies to TCM.  It does not apply to HSS/TFC/TFOC-P services as proposed.


COMMENT #9:  A commenter said that in ARM 37.86.3305(3), the receipt of case management does not restrict a client's right to receive other Montana Medicaid services from any certified Medicaid provider.  Proposed rule contradicts this rule.


RESPONSE #9:  Most of the functions required of TCM are also expected from HSS/TFC/TFOC-P, raising sufficient concern that they are duplicative.  The proposed rules will require families to choose if they want to receive care coordination through either TCM or HSS/TFC/TFOC-P.


COMMENT #10:  One commenter opposed the proposed rule disallowing TCM to be reimbursed concurrent with HSS/TFC/TFOC-P because this rule will negatively impact children in foster care.  The commenter stated targeted case managers have extensive and important information about foster children such as clinical and placement history.  Department social workers are too busy with heavy caseloads or are too new to have a similar level of information so they rely on case managers to coordinate care.


RESPONSE #10:  Youth placed in foster care will continue to have access to care coordination either through TCM or HSS/TFC/TFOC-P.  Supports for foster services are administered through Child Protective Services and are monitored through contracts with the providers.


COMMENT #11:  A few commenters requested the department delay the implementation of disallowing TCM concurrent with HSS/TFC/TFOC-P and study TCM as it relates to all services.  The commenter asked the department to compare TCM specifically to high fidelity wraparound as an alternative to TCM.  One commenter stated that limiting TCM is denying an evidence-based practice.


RESPONSE #11:  The department will not delay the implementation of the proposed rule.  The department recognizes that high fidelity wraparound is an evidence-based practice and will continue to evaluate and monitor the effectiveness of that program along with all services funded through the department.  TCM is not recognized as an evidence-based practice by The Substance Abuse and Mental Health Services Administration.


COMMENT #12:  Multiple commenters opposed the requirement in New Rule V (37.87.1405)(4)(c) that therapy must be delivered by the clinical lead.  The commenters state that the clinical lead may potentially be responsible to provide family therapy for up to 50 families, which is not realistic and will diminish the quality of the service.


RESPONSE #12:  Family therapy is one of five options offered in HSS/TFC/TFOC-P, from which the families may choose two based upon the prioritization of need.  This provides families the opportunity to choose what services they will receive and allows providers to shift resources to provide services within the current bundled rate.


COMMENT #13:  Many commenters stated that requiring family therapy to be part of HSS/TFC/TFOC-P forces families to discharge from their current provider, where there is an established therapeutic relationship, and it forces families to choose between in-home services and their current provider.  Several commenters stated they believe all families needing HSS/TFC/TFOC-P should have family therapy to support better outcomes.


RESPONSE #13:  The department agrees that families who need family therapy should have access to it.  The proposed rules allow families to choose how to get that need met.  Per the clinical management guidelines, a referral to HSS/TFC/TFOC-P suggests outpatient interventions have been attempted and have proven insufficient.  All outpatient mental health services are intended to be time-limited interventions.  The department disagrees that all families will need and want family therapy as part of HSS/TFC/TFOC-P.  Currently, approximately 50% to 60% of families receiving HSS/TFC/TFOC-P are also receiving family therapy outside of HSS/TFC/TFOC-P.


COMMENT #14:  Many commenters request the department clarify the language "provide therapy to the caregiver and the family".  The commenters understanding of the intent of the rule was that other therapies needed outside HSS/TFC/TFOC-P are allowed with the exception of family therapy.  They would also like to know if the department intends to restrict Comprehensive School and Community Treatment (CSCT) providers from offering family therapy concurrent with HSS/TFC/TFOC-P.


RESPONSE #14:  It is the department's intent that family therapy, as described in ARM 37.87.703, is provided with or without the youth present, directed at the eligible youth's mental health needs and their impact on the family dynamics, and must be provided by the HSS/TFC/TFOC-P provider.  When families are receiving both HSS/TFC/TFOC-P and CSCT, family therapy must be provided by the HSS/TFC/TFOC-P provider.  However, there must be coordination with both individualized treatment plans.


COMMENT #15:  A few commenters stated that requiring the clinical lead to provide therapy to the families and at the same time requiring the HSS-S to be the clinical supervisor of the same families is placing providers into a dual relationship with the family which is prohibited by the American Mental Health Code of Ethics.


RESPONSE #15:  The department does not interpret the clinical lead providing therapy to families enrolled in HSS/TFC/TFOC-P and supervising the HSS-S as fitting the definition of a dual relationship in the American Mental Health Code of Ethics, revised 2010.


COMMENT #16:  A few commenters asked the department to remove the requirements in New Rule VIII (37.87.701)(1)(e) regarding CBPRS limitations for group and to clarify language in New Rule X (37.87.1413)(3)(e) and (f).


RESPONSE #16:  The proposed language in New Rule VIII (37.87.701) and New Rule X (37.87.1413) relocates language currently located in other sections of the department's rules.  There is no change in content from the current rule language; therefore, the department considers this comment outside of the scope of the proposed rules.


COMMENT #17:  Some commenters asked if the HSS-S is required on the treatment team and asked the department to define the roles and qualifications of potential team members.  Another commenter stated that if the families change the ITP team members at every ITP review, it will be difficult to consistently integrate the planning with care. 


RESPONSE #17:  The department intends for the service provider to be part of the ITP consistently to meet the other service requirements.  Family members may select the team members every time there is a team meeting and an ITP is developed, at least every 90 days.  At intake, the family must be informed of this choice before the ITP meetings.  The department supports individualized treatment planning, use of natural supports, and family voice in planning the ITP.  The department expects the family, with the assistance of the provider, to develop the roles and qualifications of the treatment team.


COMMENT #18:  Several commenters asked the department to clarify New Rule I (37.87.1401)(4) as it relates to reimbursement of room, board, maintenance, or any other nontherapeutic component of TFOC-P.


RESPONSE #18:  The department recognizes the proposed rule does not include TFOC-P and will add the applicable language to New Rule IX (37.87.1411) because it relates to TFOC-P services.


COMMENT #19:  Several commenters opposed New Rule III (37.87.1404)(3), (4), and (5) regarding individualized treatment plan.  Commenters stated the proposed rule appears to require the clinical lead be a member of the ITP team even if the family does not choose the clinical lead as part of the their team and requires the clinical lead to sign ITPs of other mental health services.  They state both new requirements are not possible for one full-time clinical lead, especially if they must sign the ITPs for other concurrent services.  Commenters also asked the department to clarify if the "licensed person" can also be "in-training" and what is required, a new ITP every 90 days or a review every 90 days.


RESPONSE #19:  The department's intent with New Rule III (37.87.1404)(3) is to require mental health providers to support integration of multiple treatment plans into one single plan of care when a family receives multiple services from multiple providers.  The department is adding language to New Rule IV (37.87.1405)(4) clarifying the licensed person must make every effort to integrate treatment planning.  The definition of a clinical lead in New Rule II (37.87.1402) allows the option of an in-training practitioner as defined in ARM 37.88.901.  The department incorporates ARM 37.106.1916 in New Rule III (37.87.1404) which states the ITP is reviewed every 90 days.


COMMENT #20:  Several commenters stated the proposed rules do not support wrap-around principles of family voice and choice, individualized services, collaboration, team based and outcome monitoring.


RESPONSE #20:  The department intends to empower families to choose and receive services they need and want.  Not all families will want or need a single model of combined community services by the same provider.  The department supports family choice by allowing them to select treatment team members and requiring their agreement with the ITP.  The department agrees that mental health services should be monitored for progress.  The ITP team is designed for this purpose and the treatment team collectively monitors treatment goal progress.


COMMENT #21:  Some commenters opposed New Rule II (37.87.1402)(3) requiring the clinical lead be a licensed mental health professional or in-training mental health professional stating this requirement is an unfunded mandate.


RESPONSE #21:  The proposed rules require family therapy be an available option and the department believes therapy should be delivered by a licensed mental health professional or an in-training mental health professional.


COMMENT #22:  One commenter disagreed with New Rule II (37.87.1402)(3) which changes the treatment supervisor to clinical lead.  The commenter stated that clinical lead is not common terminology used in the mental health field to indicate professional stature.


RESPONSE #22:  The department and provider committee chose clinical lead to reflect the clinical responsibilities of this position while not duplicating other positions in mental health services.


COMMENT #23:  Many commenters asked the department to allow a grace period to implement New Rule VII (37.87.1402)(1) which requires providers be a licensed mental health center.  The commenters asked for an implementation date of January 31, 2014.


RESPONSE #23:  The department agrees to this request and will add language to reflect implementation of this requirement as January 31, 2014.


COMMENT #24:  Several commenters asked the department to define what is meant by a cultural assessment in New Rule III (37.87.1404)(1).


RESPONSE #24:  Best practice and national industry standards provide resources for conducting needs assessment based on strength and culture.  Providers should refer to professional and industry standards for tools to develop an ITP based on strength, needs, and culture.


COMMENT #25:  Several commenters asked what is meant by a functional assessment.  Is it a global functional assessment or a behavioral functional assessment?


RESPONSE #25:  The department is referring to a behavioral functional assessment not a global functional assessment.  The rule requires use of the behavioral functional assessment to identify a potential crisis.  Providers should refer to professional and industry standards for tools available to develop a behavioral functional assessment.


COMMENT #26:  Several commenters stated agreement with the department's decision not to change the bundled rate.  The flexibility of a bundled rate allows for the service to be available to families 24 hours a day.


RESPONSE #26:  The department thanks the commenters for their input.


COMMENT #27:  One commenter asked the department if the HSS-S and the clinical lead must be full-time employees.


RESPONSE #27:  The department is not requiring these positions to be filled by full-time staff.  However, the provider must have adequate and appropriate staffing to meet the rule requirements.


            6.  The department intends to apply these rules retroactively to January 31, 2013.  A retroactive application of the proposed rules does not result in a negative impact to any affected party.



/s/ Care B. Lund                                            /s/ Richard H. Opper                        

Rule Reviewer                                               Richard H. Opper, Director

                                                                        Public Health and Human Services


Certified to the Secretary of State January 22, 2013


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