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| Montana Administrative Register Notice 37-672 | No. 8 04/24/2014 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On May 15, 2014, at 2:30 p.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption and amendment of the above-stated rules.
2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on May 8, 2014, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.
3. The rule as proposed to be adopted provides as follows:
NEW RULE I OUTPATIENT DRUGS, FRAUD, WASTE, AND ABUSE (1) Medicaid, Healthy Montana Kids, and Mental Health Services Plan members may be subject to investigation for prescription fraud and abuse in accordance with 42 CFR 455. (2) "Fraud" means the intentional deception or misrepresentation with knowledge that the deception could result in some unauthorized benefit to the individual or some other person. Examples include: (a) doctor shopping; (b) reported cash payment for drugs of abuse where it is suspected that the member has circumvented the Medicaid benefit system to avoid detection; and (c) reports from providers of suspected drug misuse or diversion. (3) "Abuse" means the misuse of the prescription drug program resulting in undue expenditures or substance abuse. Examples include: (a) high utilization; (b) multiple provider usages that result in the receipt of unnecessary services; (c) seeking of medical services that are not medically necessary; (d) repeated use of emergency rooms or urgent care clinics; and (e) unwarranted multiple pharmacy usage. (4) Pharmacy providers may notify the department when Medicaid members pay cash for controlled substances (CII-CV), ultram (tramadol), ultracet (tramadol and acetaminophen), carisoprodol, and gabapentin. (5) Prescriptions for noncontrolled substances may be refilled after 75% of the estimated therapy days have elapsed. Prescriptions for controlled substances (CII-CV), ultram (tramadol), ultracet (tramadol and acetaminophen), carisoprodol, and gabapentin may be refilled after 90% of the estimated therapy days have elapsed. Members who have a "drug not covered" in place may be required to have 100% of the estimated therapy days elapse prior to a refill being authorized. (6) As stated in ARM 37.86.1102, the department does not authorize payment for medications dispensed in quantities greater than a 34-day supply excluding maintenance medications and where manufacturer packaging precludes the 34-day supply limit. Authorization for early refills, lost or stolen medication, or vacation supplies will not be granted. (7) The use of tamper-resistant pads for written prescriptions is required. The department follows ARM 24.174.510 established by the Montana Board of Pharmacy to define tamper-resistant prescriptions.
IMP: 53-2-201, 53-6-101, 53-6-111, MCA
4. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
37.79.102 DEFINITIONS As used in this subchapter, unless expressly provided otherwise, the following definitions apply: (1) through (4) remain the same. (5) "Benefit year" means: (a) for medical and mental health, the period from October 1 (b) for dental, the period from July 1 through June 30 for those enrolled in the HMK coverage group. If an individual is enrolled in the HMK coverage group after July 1, the benefit year is the period from the date of enrollment through the following June 30. (6) through (38) remain the same.
AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1103, 53-4-1104, 53-4-1105, 53-4-1108, MCA
37.79.304 SERVICES COVERED (1) The department adopts and incorporates by reference the HMK Evidence of Coverage dated (2) remains the same.
AUTH: 53-4-1009, 53-4-1105, MCA IMP: 53-4-1005, 53-4-1109, MCA
37.79.326 DENTAL BENEFITS (1) The maximum dental benefits paid under the basic dental plan will be 85% of the billed services received. Up to (a) remains the same. (b) Providers may bill the enrollee, parent, or guardian for services received in excess of (2) Providers must bill for services using the procedure codes and modifiers set forth, and according to the definitions contained in the American Dental Association Manual of Current Dental Terminology (3) and (4) remain the same. (6) and (7) remain the same, but are renumbered (5) and (6).
AUTH: 53-4-1004, 53-4-1005, 53-4-1009, 53-4-1105, MCA IMP: 53-4-1003, 53-4-1004, 53-4-1005, 53-4-1009, 53-4-1104, 53-4-1105, MCA
37.86.610 THERAPIES, REIMBURSEMENT (1) remains the same. (2) Subject to the requirements of this rule, the Montana Medicaid program pays the following for therapy services: (a) For patients who are eligible for Medicaid, the lower of: (i) the provider's usual and customary charge for the service; (ii) the reimbursement provided in accordance with the methodologies described in ARM 37.85.212 (iii) for items or services where no RBRVS or Medicare fee is available, the fee schedule amount will be calculated using the following methodology: (A) Establishing a fee for a service that has been billed at least 50 times by all providers in the aggregate during the previous 12-month period. The department will set each fee at 44% of the average charge billed by all providers in the aggregate. (B) For services where utilization cannot meet the methodology outlined in (A), the fee will be set at the same rate as a service similar in scope.
IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA
37.86.705 AUDIOLOGY SERVICES, REIMBURSEMENT (1) remains the same. (2) Subject to the requirements of this rule, the Montana Medicaid program pays the following for audiology services: (a) For patients who are eligible for Medicaid, the lowest of: (i) remains the same. (ii) the reimbursement provided in accordance with the methodologies described in ARM 37.85.212; (iii) 100% of the Medicare Region D allowable fee (iv) for items or services where no RBRVS fee is available, the fee schedule amount will be calculated using the following methodology: (A) Establishing a fee for a service or item that has been billed at least 50 times by all providers in the aggregate during the previous 12-month period. The department will set each fee at 44% of the average charge billed by all providers in the aggregate. (B) For services where utilization cannot meet the methodology outlined in (A), the fee shall be set at the same rate as a service similar in scope.
IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA
37.86.805 HEARING AID SERVICES, REIMBURSEMENT (1) remains the same. (2) For items or services where no Medicare allowable fee is available, the fee schedule amount in (1)(b) will be calculated using the following methodology: (a) Establishing a fee for a service that has been billed at least 50 times by all providers in the aggregate during the previous 12-month period. The department will set each fee at 44% of the average charge billed by all providers in the aggregate. (b) For supplies or equipment, reimbursement will be set at 75% of the manufacturer's suggested retail price. For items without a manufacturer's suggested retail price, the charge will be considered reasonable if the provider's acquisition cost from the manufacturer is at least 50% of the charge amount. For items that are custom-fabricated at the place of service, the amount charged will be considered reasonable if it does not exceed the average charge of all Medicaid providers by more than 20%. (c) For services where utilization cannot meet the methodology outlined in (a), the fee will be set at the same rate as a service similar in scope. (2) remains the same, but is renumbered (3).
IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA
37.86.1005 DENTAL SERVICES, REIMBURSEMENT (1) For dental services listed in the (a) remains the same. (b) the amount determined using the methodology described in ARM 37.86.1004 (c) for items or services when there is no RVD, the department will set the fee at the same rate as a service similar in scope. (3) through (7) remain the same.
37.86.2005 OPTOMETRIC SERVICES, REIMBURSEMENT (1) Subject to the requirements of this rule, the (a) (b) the reimbursement provided in accordance with the methodologies described in ARM 37.85.212; or (c) the amount specified for the particular service or item in the department's fee schedule. (2) For items or services where no RBRVS or Medicare is available, the fee schedule amount in (1)(c) will be calculated using the following methodology: (a) Establishing a fee for a service that has been billed at least 50 times by all providers in the aggregate during the previous 12-month period. The department will set each fee at 44% of the average charge billed by all providers in the aggregate. (b) For supplies or equipment, reimbursement will be set at 75% of the manufacturer's suggested retail price. For items without a manufacturer's suggested retail price, the charge will be considered reasonable if the provider's acquisition charge from the manufacturer is at least 50% of the charge amount. For items that are custom-fabricated at the place of service, the amount charged will be considered reasonable if it does not exceed the average charge of all Medicaid providers by more than 20%. (c) For services where utilization cannot meet the methodology outlined in (a), the fee shall be set at the same rate as a service similar in scope.
AUTH: 53-6-113, MCA IMP: 53-6-101, 53-6-113, 53-6-141, MCA
37.86.2605 AMBULANCE SERVICES, REIMBURSEMENT (1) remains the same. (2) The department adopts and incorporates by reference the Montana Medicaid Fee Schedule, Ambulance as provided in ARM 37.85.105(3) and ARM 37.85.105(2) for drugs. (3) For items and services for which no fee has been set in the department's fee schedule referred to in (2), reimbursement will be (4) remains the same.
IMP: 53-6-101, 53-6-113, 53-6-141, MCA
5. STATEMENT OF REASONABLE NECESSITY
The Department of Public Health and Human Services (department) is proposing to adopt New Rule I and amend ARM 37.79.102, 37.79.304, 37.79.326, 37.86.610, 37.86.705, 37.86.805, 37.86.1005, 37.86.2005, and 37.86.2605 that pertain to Medicaid Allied Health Services Program reimbursement and rates. Programs included in this rulemaking are: Medicaid Fraud and Abuse; Healthy Montana Kids (HMK) Dental Benefit and Evidence of Coverage; Hearing Aids and Audiology, Therapies Reimbursement, Ambulance and Dental Services; and Optometric Reimbursement Methodology.
Medicaid Fraud and Abuse
In 2013 the pharmacy program had a legislative audit. This audit found that there were insufficient procedures in place to investigate and track member fraud and abuse. Since this audit, internal processes have been strengthened and refined in regards to member fraud and abuse. Given these refined processes, the department would like to further strengthen internal policies through an administrative rule.
Proposed New Rule I would allow providers to report cash payment in reporting suspected fraud, abuse, or both. This is necessary because the recent amendment to the Health Insurance Portability and Accountability Act (HIPAA) prevents providers from reporting cash payment to health plans if requested by a member unless there are regulations in place that allow it. In addition, the rule will explicitly state department policy on early refills and lost or stolen medication.
The proposed anti-fraud and anti-abuse provisions are necessary to maintain the integrity of Montana's medical assistance programs.
New Rule I
The department is proposing to add a fraud and abuse rule to the Outpatient Drug Services administrative rules. This rule will contain a provision to allow providers to disclose to the department when Medicaid members pay cash for prescription medications. In addition, the rule will include the following policies: a link to the Board of Pharmacy's rule on Tamper Resistant Pads; a link to 42 CFR Part 455, Prescription Fraud and Abuse; a description of the department's policy on early refills for both controlled and noncontrolled substances; and a description of the department's policy on lost or stolen medication.
Fiscal Impact
No fiscal impact is anticipated by the proposed rule amendments. These changes are expected to be budget neutral. The proposed rules are estimated to effect up to 273 in state pharmacies, 127 out-of-state pharmacies, 23,000 HMK recipients and 114,746 Medicaid recipients.
Healthy Montana Kids (HMK) Dental Benefit and Evidence of Coverage
The department is proposing to amend this rule to reduce the administrative burden on providers and staff and to streamline needed dental services for HMK members. The change will increase the Healthy Montana Kids Basic Dental Benefit to $1900 while eliminating the HMK Extended Dental Benefit. The Extended Dental Benefit required dentists to submit a written request form along with the child's treatment plan for approval before the dental work was to be done. The HMK Dental Program Officer checked eligibility for the child, previous Basic Dental usage, calculated the amount needed for dental work (maximum billed amount of $1176), and entered this amount in CHIMES. The proposed changes are necessary to reduce the complexity of the HMK dental program and make it easier and less costly to administer.
Additionally the effective date of the Evidence of Coverage must be changed to incorporate these changes effective July 1, 2014.
ARM 37.79.102
The department is proposing to amend the definitions for "Benefit Year" by adding "Benefit Year" for medical and mental health and a new paragraph for dental to this definitions rule. The benefit period for dental is July 1st through June 30th. If the member's effective date is after July 1st, the dental benefit period begins with the member's effective date and ends on June 30th.
ARM 37.79.326
The proposed amendments to this rule reflect the department's proposal to increase the Health Montana Kids (HMK) dental benefit to $1900 and eliminate the HMK extended dental program. This is necessary to increase access to services and reduce the administrative burden on providers. The Extended Dental Benefit currently requires dentists to submit a written request form along with the child's treatment plan for approval before the dental work can be done. The amendment also updates the dental coding and modifier reference to the Current Dental Terminology 2014 publication. This is necessary to maintain reimbursement rates at a level consistent with efficiency, economy, and quality of care and to ensure the continued participation of providers in the Montana Medicaid Program.
ARM 37.79.304
The department is proposing to change the effective date of the Evidence of Coverage (EOC) from October 1, 2013 to July 1, 2014 to incorporate dental program changes and perform general revisions for clarity. Revisions include: capitalize references throughout the EOC of words that are defined in definitions; revise definitions; clean up words that were struck out in the previous version and were not removed in the final version; restructure and rename articles of the EOC for benefit information; include covered services information for Children's Special Health Services clinic available for HMK members; include additional covered over-the-counter drugs; update the HMK dental program benefit; clarify benefit maximums for the HMK Extended Mental Health benefit; update consultation services administration; and remove implantology as a non-covered benefit. The proposed changes are necessary to maintain and improve administration of the HMK program.
Significant Changes
The department proposes to allow reimbursement for enteral formula for medically necessary treatment of conditions other than inborn errors of metabolism.
Lack of access to certain types of provider services throughout Montana has been problematic for HMK members. The department proposes to cover telemedicine services to allow better access to participating provider services. This is necessary to assure access by HMK participants to essential services.
Fiscal Impact
No fiscal impact to the HMK program is anticipated by the proposed dental rule amendment. These changes are expected to be budget neutral.
The proposed amendments that would allow reimbursement for enteral formula for medically necessary treatment of conditions other than inborn errors of metabolism, are anticipated to result in additional costs of $14,000 annually.
The proposed amendments that would add telemedicine as a covered benefit are anticipated to result in additional costs of $13,620 annually.
The addition of pyridoxine, doxylamine, triamcinolone acetonide nasal spray, and oxybutynin transdermal as covered over-the-counter products is expected to be budget neutral. This expectation is because generally, over-the-counter drugs are a less costly alternative to prescription drug costs.
The proposed rule is estimated to affect up to 444 HMK dental providers, 77 durable medical equipment (DME) providers, 177 pharmacy providers, and 23,384 Healthy Montana Kids members.
Hearing Aids and Audiology
The department is proposing changes to ARM 37.86.705 and 37.86.805 to include specific language in regards to the methodology used to establish a fee schedule rate for a service or item that does not have an RBRVS fee or existing fee schedule amount. The proposed rule amendments are necessary because CMS has mandated that the existing "By Report" or percentage of billed charges language and methodology be replaced with a set fee and an established methodology of how those fees are calculated. The proposed changes are necessary to maintain Medicaid rates at a level consistent with efficiency, economy, quality of care, and to ensure the continued participation of providers.
Language would be included in the rule to include the methodology used to establish a fee schedule amount when there is no Medicare fee or established fee schedule amount available. For services when no other methodology can be used, the department will adopt a rule the same as a service similar in scope, after notice and an opportunity for public comment.
Fiscal Impact
The amendments to the rules pertaining to hearing aids and audiology are budget neutral. The proposed rules are estimated to affect: 24 hearing aid providers; 32 audiology providers, and 114,746 Medicaid recipients.
Therapies Reimbursement
The department is proposing to add language to define what methodology will be used when no Medicare fee or RBRVS method can be used to reimburse providers for their services, equipment or supplies, or both. An updated fee schedule for physical, occupational, and speech therapy providers will be completed by July 1, 2014. This proposed rule is necessary because CMS has mandated that the existing "By Report" or percentage of billed charges language and methodology be replaced with a set fee and an established methodology of how those fees are calculated.
ARM 37.86.610
Language is being proposed in the rule to include the methodology used to establish a fee schedule amount for therapy services when there is no Medicare fee or established fee schedule amount available. For services when no other methodology can be used, the department will adopt a rule the same as a service similar in scope, after notice and an opportunity for public comment.
Ambulance and Dental Services
The department is proposing amendments to ARM 37.86.1006 and 37.86.2605 regarding the payment methodology for some Medicaid fees to providers. The change is based on a requirement by CMS to no longer use the "By-Report" payment methodology. Updates will be added regarding the reimbursement methodology and how the department sets fees where there are no RBRVS, RVD, Medicare, or other established fees for the service. It is necessary for the department to provide these updates to reflect the most current provider rate payment methodology as mandated by CMS, and to reference the most current information regarding fee schedules, effective dates, and conversion factors where applicable for each service.
ARM 37.86.1005
The department proposes adding the set fee to the Medicaid dental services reimbursement method. This proposed rule change eliminates "By Report" reimbursement and sets the department fee methodology. For dental services that are not listed in the RVD scale the department will set the fee at the same amount as a service similar in scope to the new code after notice and an opportunity for public comment. This fee will remain in place until an RVD is established using the methodology described in ARM 37.86.1004.
ARM 37.86.2605
The department proposing a reference to the ambulance fee schedule found in ARM 37.35.105(2) for drugs. This amendment eliminates the "By Report" methodology. If Medicare does not have a fee set for the Medicaid covered service the department will set the fee by evaluating the fees of services similar in scope to the new code after notice and an opportunity for public comment.
Fiscal Impact
The proposed change in payment methodology will have budget neutral fiscal impact to the dental and ambulance programs. This change will impact 373 dental and 103 ambulance providers. This change may also affect 114,746 members within Montana.
Optometric Reimbursement Methodology
The department is proposing to add language to ARM 37.86.2005 to define what methodology will be used when no Medicare fee or RBRVS method can be used to reimburse providers for their services, equipment or supplies, or both. An updated fee schedule for optometric providers will be effective July 1, 2014. This proposed rule is necessary because CMS has mandated that the existing "By Report" or percentage of billed charges language and methodology be replaced with a set fee and an established methodology for of how those fees are calculated. For services when no other methodology can be used, the department will adopt a rule the same as a service similar in scope, after notice and an opportunity for public comment.
ARM 37.86.2005
The proposed amendment to the optometric services reimbursement rule adds to the methodology that the department will pay the lowest of the following for optometric services: the provider's usual and customary charge for the service or item; or the reimbursement provided in accordance with the methodologies described in ARM 37.85.212; 100% of the Medicare Region D allowable fee; or the amount specified for the particular service or item in the department's fee schedule.
The proposed rule also corrects an error directing the reader to the appropriate reference in 37.85.105 from (3) to (2)(h).
Fiscal Impact
The change to ARM 37.86.2005 is expected to have no fiscal impact to the department and no material effects on Medicaid recipients or Medicaid providers. The proposed rule changes could affect an estimated 169 optometric providers and 114,746 Medicaid members.
6. The department intends to adopt these rule amendments effective July 1, 2014.
7. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Kenneth Mordan, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., May 22, 2014.
8. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.
9. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 7 above or may be made by completing a request form at any rules hearing held by the department.
10. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.
11. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
12. With regard to the requirements of 2-4-111, MCA, the department has determined that the adoption and amendment of the above-referenced rules will not significantly and directly impact small businesses.
/s/ John C. Koch /s/ Richard H. Opper John C. Koch Richard H. Opper, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State April 14, 2014.
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A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
