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Montana Administrative Register Notice 37-678 No. 9   05/08/2014    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.86.2801, 37.86.2806, 37.86.2820, 37.86.2901, 37.86.2902, 37.86.3001, 37.86.3009, 37.86.3020, 37.86.3101, 37.86.3103, 37.86.3105 pertaining to Medicaid outpatient and inpatient hospital services

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

 

TO: All Concerned Persons

 

            1. On May 28, 2014, at 1:30 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 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 21, 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 rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.86.2801 ALL HOSPITAL REIMBURSEMENT, GENERAL

(1) through (6)(d) remain the same.

            (7) Medicaid reimbursement for early elective delivery and nonmedically necessary cesarean sections will not be made unless the hospital submitting the claim meets the following requirements:

            (a) Effective July 1, 2014, a hospital submitting claims for deliveries must have a hard stop policy regarding early elective deliveries and nonmedically necessary cesarean sections that complies with the requirements in ARM 37.86.2902(9).

            (b) Effective October 1, 2014, hospital claims for inductions and cesarean sections must meet the following coding requirements:

            (i) ICD-10 inpatient procedure codes must be used on all inpatient hospital claims; and

            (ii) claims for inductions or cesarean sections must have one of the following condition codes:

            (A) Condition Code 81–cesarean section or induction performed at less than 30 weeks for medical necessity;

            (B) Condition Code 82–cesarean section or induction performed at less than 39 weeks gestation elective; or

            (C) Condition Code 83–cesarean section or induction performed at 39 weeks gestation or greater.

            (iii) The department will begin accepting these coding changes as of July 1, 2014.

            (c) Beginning October 1, 2014, the department will reduce reimbursement to hospitals that perform early elective inductions or cesarean sections prior to 39 weeks and 0/7 days gestation, or nonmedically necessary cesarean sections at any gestation:

            (i) a 33% reduction in PPS reimbursement; or

            (ii)  cost-based hospital interim reimbursement will be reduced 33% and the total claim payment will not be eligible for final reimbursement through cost settlement as provided in ARM 37.86.2806.

            (8) All hospitals must use current ICD procedure codes for both inpatient and outpatient claims, including Medicare crossover claims.

 

AUTH: 2-4-201, 53-2-201, 53-6-113, MCA

IMP:     2-4-201, 53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

 

37.86.2806 COST-BASED HOSPITAL, GENERAL REIMBURSEMENT 

(1) through (7) remain the same.

           (8) Cost-based hospital claims that do not meet the requirements of the elective deliveries policy as provided in ARM 37.86.2801, will be subject to a 33% reduction in interim reimbursement based on the total claim payment and will not be eligible for final reimbursement through cost settlement.

 

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

IMP:     53-2-201, 53-6-101, 53-6-113, MCA

 

            37.86.2820 DESK REVIEWS, OVERPAYMENTS, AND UNDERPAYMENTS

            (1) through (3) remain the same.

            (4) When the upper payment limit has been exceeded based on filed cost reports the department will recover the overpayment amount. The department will collect overpayments using the following methodology:

            (a) the costs of all facilities that are over the upper payment limit will be divided by the total amount to be collected; and

            (b) the percentage in (a) will be multiplied by each facility's total costs to determine the recoverable amount.

            (4) remains the same, but is renumbered (5).

 

AUTH: 2-4-201, 53-2-201, 53-6-113, MCA

IMP:     2-4-201, 53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA

 

            37.86.2901 INPATIENT HOSPITAL SERVICES, DEFINITIONS (1) through (19) remain the same.

            (20) "Early elective delivery" means either a nonmedically necessary labor induction or cesarean section that is performed prior to 39 weeks and 0/7 days gestation.

            (20) through (44) remain the same, but are renumbered (21) through (45).

            (46) "Upper payment limit" means a federal limit placed on fee-for-service reimbursement of Medicaid providers.

            (45) remains the same, but is renumbered (47).

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, 53-6-149, MCA

 

            37.86.2902 INPATIENT HOSPITAL SERVICES, REQUIREMENTS

            (1) through (8) remain the same.

            (9) Effective July 1, 2014, all hospitals that perform deliveries must have a hard stop policy regarding early elective deliveries and nonmedically necessary cesarean sections. The policy must have the following parts:

            (a) no nonmedically necessary inductions or cesarean sections prior to 39 weeks and 0/7 days gestation, and no nonmedically necessary cesarean sections at any gestation;

            (b) confirmation of weeks gestation must be determined by the American Congress of Obstetricians and Gynecologists guidelines. At least one of the following guidelines must be met:

            (i) fetal heart tones must have been documented for 20 weeks by nonelectronic fetoscope or 30 weeks by doppler;

            (ii) 36 weeks since a positive serum or urine pregnancy test that was performed by a reliable laboratory; or

            (iii) an ultrasound prior to 20 weeks gestation that confirms the gestational age of at least 39 weeks; and

            (c) a multistep review process prior to all inductions and cesarean sections, including a requirement that the final decision be made by the perinatology chair/obstetrical chair, OB director, or medical director.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

 

            37.86.3001 OUTPATIENT HOSPITAL SERVICES, DEFINITIONS

            (1) through (7) remain the same.

            (8) "Early elective delivery" means either a nonmedically necessary labor induction or cesarean section that is performed prior to 39 weeks and 0/7 days gestation.

            (8) through (16) remain the same, but are renumbered (9) through (17).

     (17) (18)  "Provider-based entity" means a provider that is either created by, or acquired by, a main provider for purposes of furnishing health care services under the name, ownership, and administrative and financial control of the main provider as in 42 CFR 413.65. Both professional and facility (hospital outpatient department) providers are included together under this definition. For purposes of provider-based entity billing, a professional is a physician, podiatrist, mid-level, licensed clinical social worker, licensed professional counselor, or a licensed psychologist.

            (18) remains the same, but is renumbered (19).

            (19) For purposes of provider based entity billing, a professional is a physician, podiatrist, mid-level, licensed clinical social worker, licensed professional counselor, or a licensed psychologist.

            (20) "Upper payment limit" means the federal limit placed on fee-for-service reimbursement of Medicaid providers.

            (20) remains the same, but is renumbered (21).

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-141, MCA

 

            37.86.3009 OUTPATIENT HOSPITAL SERVICES, PAYMENT METHODOLOGY, EMERGENCY VISIT SERVICES (1) For emergency visits that are not provided by exempt hospitals or critical access hospitals as defined in ARM 37.86.2901, reimbursement will be based on the ambulatory payment classifications APC methodology in ARM 37.86.3020, except emergency room visits with CPT codes 99281 and 99282 will be reimbursed based on the lowest level clinical APC weight.

            (a) and (2) remain the same.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA

 

            37.86.3020 OUTPATIENT HOSPITAL SERVICES, OUTPATIENT PROSPECTIVE PAYMENT SYSTEM (OPPS) METHODOLOGY, AMBULATORY PAYMENT CLASSIFICATION (1) through (1)(f) remain the same.

            (i) The diagnosis used to define a potential obstetric qualification will be taken from diagnosis-related groups 382 565 (false labor) and 383 566 (other antepartum diagnosis with medical complications).

            (ii) through (2) remain the same.

            (3) All outpatient hospitals including birthing centers are subject to the requirements in ARM 37.86.2801(9).

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA

 

            37.86.3101 OUTPATIENT HOSPITAL SERVICES, CARDIAC AND PULMONARY REHABILITATION SERVICES (1) and (2) remain the same.

            (3) The following conditions are contraindications to cardiac or pulmonary rehabilitation, and except as provided in ARM 37.86.3107, patients with one or more contraindications are not eligible for cardiac or pulmonary rehabilitation:

            (a) remains the same.

            (b) significant or unstable medical conditions including, but not limited to, substance abuse, liver dysfunction, kidney dysfunction, and metastic metastatic cancer.

 

AUTH: 53-2-201, 53-6-111, MCA

IMP:     53-2-201, 53-6-101, MCA

 

            37.86.3103 OUTPATIENT HOSPITAL SERVICES, CARDIAC REHABILITATION SERVICES (1) Cardiac rehabilitation services are limited to the following:

            (a) Up to three visits per week for eight weeks, limited to the following cardiac events and diagnoses eligible for cardiac rehabilitation benefits a maximum of two 1-hour sessions per day for up to 36 sessions, limited to the following cardiac events and diagnoses:

            (i) (a)  myocardial infarction within the preceding 12 months;

            (ii) (b)  coronary angioplasty artery bypass surgery;

            (iii) (c)  heart-lung transplant;

            (iv) (d)  valvular surgery current stable angina pectoris;

            (v) (e)  congestive heart failure percutaneous transluminal coronary angioplasty (PTCA) or coronary stenting; and

            (vi) (f)  heart-lung transplant heart valve repair or replacement.

            (b) Services are limited to Phase I cardiac rehabilitation provided in the hospital immediately following the cardiac event or diagnosis, and, after hospital discharge, Phase II services if they are initiated within four months of the event or diagnosis and require EKG monitoring with a medical doctor present in the same building.

 

AUTH: 53-2-201, 53-6-111, MCA

IMP:     53-2-201, 53-6-101, MCA

 

            37.86.3105 OUTPATIENT HOSPITAL SERVICES, PULMONARY REHABILITATION SERVICES (1) Pulmonary rehabilitation services are limited to the following:

            (a) a maximum of 36 hours over a period not less than two weeks and not more than six weeks, limited to one of the following diagnoses: two 1-hour sessions per day for up to 36 sessions, for patients with moderate to severe COPD (defined as GOLD classification II, III, and IV).

            (i) persistent asthma;

            (ii) emphysema;

            (iii) chronic bronchitis;

            (iv) bronchiectasis;

            (v) interstitial lung disease; and

            (vi) chronic airway obstruction.

            (2) and (3) remain the same.

 

AUTH: 53-2-201, 53-6-111, MCA

IMP:     53-2-201, 53-6-101, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

Elective Deliveries

 

The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.86.2801, 37.86.2806, 37.86.2901, 37.86.2902, 37.86.3001, and 37.86.3020 pertaining to early elective inductions and cesarean sections, and nonmedically necessary cesarean sections.

 

These proposed amendments are necessary to define these elective deliveries and set the guidelines for reimbursement changes that will protect the maternal child health of persons eligible for Montana Medicaid benefits.

 

Montana Medicaid currently pays for approximately 37% of all births in Montana; of these births, 25% are induced and 30% are cesarean sections.  The American Congress of Obstetricians and Gynecologists (ACOG), the National Quality Forum, the Leapfrog Group, the March of Dimes, and the Joint Commission have identified the reduction of early deliveries as a key quality indicator for maternal child health.

 

Elective inductions, cesarean sections, and early deliveries all increase the risks to both mother and infant, and there is no evidence that they confer any health benefits in the absence of medical necessity.  These deliveries also increase the average hospital stay and costs for both mother and infant.  Montana Medicaid, as the payer of more than one-third of the births in Montana, is in a key position to contribute to the reduction of elective early deliveries.

 

The policy will be implemented in three steps:

 

July 1, 2014, all facilities enrolled in Montana Medicaid who perform deliveries must have a "hard stop" elective delivery policy in place.  The policy requires specific guidelines be met prior to any induction or cesarean section.

 

July 1, 2014, the department will begin a soft rollout of required coding changes, allowing the department to provide information and support to those providers who are not in compliance with the guidelines. Coding changes must be implemented no later than October 1, 2014.

 

October 1, 2014, a reimbursement reduction of 33% for facilities on all claims that are submitted that are determined by the department to be an elective delivery.

 

The following describes the proposed rule amendments pertaining to elective deliveries under hospital services:

 

ARM 37.86.2801

 

In (7) the department is proposing to add new policy information regarding the Elective Delivery Policy.  The policy will require all hospitals to have a no early elective induction/cesarean section policy by July 1, 2014.  Beginning October 1, 2014, hospitals will receive a 33% payment reduction, and physicians a 12% reduction on nonmedically necessary inductions prior to 39 weeks gestation, and nonmedically necessary cesarean sections at any gestation.

 

In (8) the department is proposing to add language requiring current International Statistical Classification of Diseases and Related Health Problems (ICD) procedure codes for inpatient and outpatient claims, including Medicare cross-over claims.

 

ARM 37.86.2806

 

In (8) the department is proposing to add language stating that cost-based hospital claims that have been reduced due to the elective delivery policy will not be eligible for cost settlement.

 

ARM 37.86.2901

 

In (20) the department is proposing to add a new definition of early elective delivery and adjust numbering throughout the rule.

 

ARM 37.86.2902

In (9) the department is proposing to add language regarding policies that hospitals must have by July 1, 2014, regarding early elective deliveries and to define specific requirements of the policies.

 

ARM 37.86.3001

 

In (8) the department is proposing to add a new definition of early elective delivery and numbering will be adjusted throughout the rest of the rule.

 

ARM 37.86.3020

 

In (3) the department is proposing to add language noting that birth centers are included in the early elective delivery policy and refer back to ARM 37.86.2801.

 

Outpatient Cardiac/Pulmonary Rehabilitation Services

 

The department is proposing amendments ARM 37.86.3101, 37.86.3103, and 37.86.3105 pertaining to outpatient cardiac/pulmonary rehabilitation services.  The changes to these rules are necessary to comply with the Centers for Medicare and Medicaid Services (CMS) guidelines for these services.

 

In 2010, the CMS updated the guidelines for outpatient cardiac/pulmonary rehabilitation services.  The update changed the maximum number of sessions and redefined the diagnoses that are eligible for these services.  The department did not update their rules at that time.

 

The previous guidelines required that all treatments be completed within eight weeks for cardiac rehab, and six weeks for pulmonary rehab.  These timelines have been removed and both now allow 36 sessions with a maximum of two 1-hour sessions per day.  The previous guidelines also allowed for multiple different diagnoses for pulmonary rehab; CMS has updated this to just moderate to severe chronic obstructive pulmonary disease.

 

The following describes the purpose and necessity of the proposed rule amendments pertaining to outpatient cardiac/pulmonary rehabilitation services under hospital services:

 

ARM 37.86.3101

 

In (3) the department is proposing to correct a spelling error from "metastic" to "metastatic cancer."

 

ARM 37.86.3103

 

In (1) the department is proposing to update this rule to be in compliance with CMS rules in 2010 cardiac rehabilitation.

 

ARM 37.86.3105

 

In (1) the department is proposing to update this rule to be in compliance with CMS rules in 2010 cardiac rehabilitation.

 

Upper Payment Limit and Methodology for Collection of Any Overages

 

The department is proposing amendments to ARM 37.86.2820, 37.86.2901, and 37.86.3001, pertaining to inpatient and outpatient services.  The above rules pertain to the upper payment limit and methodology for collection of any overages.

 

The following describes the proposed rule amendments pertaining to the upper payment limit:

 

ARM 37.86.2820

 

In (4), the department is proposing to add language pertaining to the methodology for collecting overpayments when the upper payment limit is exceeded. The upper payment limit is a limit put in place through federal regulation.  The department currently does not have language in rule defining how overpayments will be collected.  This new language will put in place the methodology for how any overpayments of the upper payment limit will be collected.

 

ARM 37.86.2901

 

In (46), the department is proposing to add a new definition of "Upper Payment Limit." The upper payment limit is a limit put in place through federal regulation.  The department currently does not have this as a definition, and is also updating ARM 37.86.2820 to include the methodology for collecting overpayments when the upper payment limit is exceeded.

 

ARM 37.86.3001

 

The department is proposing to add a new definition of "Upper Payment Limit." The upper payment limit is a limit put in place through federal regulation.  The department currently does not have this as a definition, and is also updating ARM 37.86.2820 to include the methodology for collecting overpayments when the upper payment limit is exceeded.

 

Obstetric Observation

 

The department is proposing amendments to ARM 37.86.3020 pertaining to inpatient services regarding obstetric observation.

 

The current language in ARM 37.86.3020(1)(f)(i) regarding obstetric observation qualifying diagnosis-related groups has been updated to new numbers since the original completion of this rule. The descriptions of these diagnosis-related groups have not been changed. The related number is the only item that changed.

 

The following describes the proposed rule amendments pertaining to obstetric observation:

 

ARM 37.86.3020

 

The department is proposing to change the diagnosis-related group number from 382 to 565.  The diagnosis-related group number currently listed is no longer accurate.

 

Provider-Based Entity

 

The department is proposing amendments to ARM 37.86.3001 pertaining to outpatient services regarding provider-based entities.

 

"Provider-based entity" is defined in ARM 37.86.3001 in (17), and a provider-based professional is defined in (19). The department is proposing to combine these two definitions into one as together they are a full definition of a provider-based entity.

 

The following describes the proposed rule amendment pertaining to provider-based entities:

 

ARM 37.86.3001

 

The department is also proposing to move (19) to (17).

 

Moving (19) to (17) combines the two provider-based definitions into one definition, making both definitions complete.

 

Emergency Room Visit Reimbursement

 

The department is proposing amendments to ARM 37.86.3009 pertaining to outpatient services regarding emergency room reimbursement.

 

The following describes the proposed rule amendment pertaining to emergency room visit reimbursement:

 

ARM 37.86.3009

 

The department is proposing to remove the term "lowest level."  As of January 1, 2014 the department has gone to a single level facility Ambulatory Payment Classification (APC) weight; therefore, there is no longer a lowest level APC weight.

 

Fiscal Impact

 

The changes to the above rules will have no fiscal impact.

 

            5. The department intends to adopt these rule amendments effective July 1, 2014.

 

            6. 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., June 5, 2014.

 

7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9. An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of 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.

 

10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ 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 28, 2014

 

 

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