Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the adoption of New Rules I through XIV and repeal of ARM 37.40.1101, 37.40.1102, 37.40.1105, 37.40.1106, 37.40.1301, 37.40.1302, 37.40.1303, 37.40.1305, 37.40.1306, 37.40.1307, 37.40.1308, and 37.40.1315 pertaining to the establishment of regulations for the personal assistance services program

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NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION AND

REPEAL

TO: All Concerned Persons

1. On November 12, 2014, at 11:00 a.m., the Department of Public Health and Human Services will hold a public hearing in Room 207 of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed adoption and repeal 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 the Department of Public Health and Human Services no later than 5:00 p.m. on November 5, 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 adopted provide as follows:

NEW RULE I AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: DEFINITIONS (1) "Activities of daily living" (ADL) means basic personal everyday activities limited to bathing, personal hygiene, transferring, positioning, eating, dressing, toileting, assistance with exercise routine performed in home, self-administered medication, including medication reminders, and meal preparation.

(2) "Agency-based services" means services provided by a qualified personal care provider agency. The agency works with the member to establish the schedule for service provision and provides the trained staff necessary for the delivery of care.

(3) "Annual review" means a member review conducted by a licensed nurse from the designated quality improvement organization once every 365 days. The review of the member's health status includes the completion of a functional assessment and service profile.

(4) "Case manager" means a nurse or social worker who is responsible for managing services provided to eligible members under the Home and Community Based Services (HCBS Waiver) Program. These case managers plan, implement, and monitor the delivery of services available through the program to the member.

(5) "Department" means the Montana Department of Public Health and Human Services.

(6) "Direct-Care Wage" means funding which is a supplemental payment made to Personal Assistance Services (PAS) providers for the purpose of providing direct-care wage increases, benefits, or lump-sum payments to workers that provide direct services. These funds are distributed proportionately based on a pro rata share of appropriated funding to participating providers of PAS. The distribution is based on the number of units of Medicaid PAS provided by each provider agency for the distribution year relative to the total number of units provided statewide by all providers of PAS.

(7) "Functional assessment" means an assessment that is performed by the designated quality improvement organization licensed nurse to determine if the member qualifies for PAS and requires assistance with activities of daily living, instrumental activities of daily living, and health-related tasks.

(8) "Health Care for Health Care Workers" means funding which is designated for the purpose of Medicaid provider rate increases when health insurance is provided for direct-care workers in the personal assistance, personal assistance services, and private duty nursing programs. The funds must be used to cover premiums for health insurance that meet defined benchmark criteria established by the department. These funds are distributed proportionately based on a pro rata share of appropriated funding to participating providers of PAS based on the number of units of Medicaid PAS provided by each provider for the distribution year relative to the total number of units provided statewide by all providers of service.

(9) "Health care professional" means a medical doctor, certified physician assistant, nurse practitioner or registered nurse, occupational therapist or a medical social worker, who is familiar with the member's activities of daily living. The health care professional may not be a paid employee of the PAS provider agency.

(10) "Health maintenance activities" means health-related tasks that may be reimbursed through the Nurse Practice Act exemption in accordance with ARM 24.159.1616 and 37-8-103, MCA. These tasks are limited to bowel programs, wound care, urinary system management, and administration of medication. These activities are delivered by the member's personal care attendant when the activities, in the opinion of the physician or other health care professional, can be performed by the person if the person were physically capable and if the procedure could be safely performed in the home. A member is only able to receive these services from a personal care attendant using the self-direct model.

(11) "Instrumental activities of daily living" means activities which are limited to activities provided in accordance with the service plan, which are directly related to the member's person-centered needs. These activities are limited to the following:

(a) household tasks which are limited to cleaning the area used by the

member, changing the member's bed linens, and doing the member's laundry; and

(b) shopping.

(12) "Member" means a person eligible for and enrolled as a participant in the Montana Medicaid Program.

(13) "Nurse supervisor" means a licensed nurse employed by an agency-based PAS provider agency who completes the service plan with the member and oversees the training and orientation of personal care attendants in the delivery of PAS.

(14) "Personal Assistance Services" (PAS) means the delivery of medically necessary in-home services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living. A member must have a medical need for hands-on assistance in order to receive PAS.

(15) "Personal Assistance Services Program" (PASP) means a program developed in accordance with 1905 (a)(24) of the Social Security Act, which allows states the option of providing personal assistance services through an approved state plan. The PAS Program is developed to deliver attendant-based services through the use of a person-centered planning process that includes service coordination and member involvement to provide long-term services and supports (LTSS) to individuals in their homes or communities rather than in institutional settings.

(16) "Personal care attendants" means individuals who assist members with their activities of daily living, instrumental activities of daily living, and other health care needs.

(17) "Person-centered plan" means a department-generated form that is utilized in the identification of the member's goals, strengths, and preferences for service delivery. The form is developed using a person-centered planning process that focuses on learning what is important to a member and how they want to live. The ultimate goal of the person-centered planning process is increased member choice, participation, and independence, while also ensuring health and safety.

(18) "Personal representative" means an individual designated by a member to act on the member's behalf to hire, direct, schedule, and train personal care attendants in performing self-directed PAS.

(19) "Plan Facilitator" means the person designated by the department to be responsible for developing and coordinating the member's person-centered plan. The plan facilitator is either a qualified case manager, when one exists, or an individual appointed by the provider agency who is responsible for development of the plan in situations where there is no qualified case manager.

(20) "Oversight staff" means the person employed by a self-directed PAS provider agency that completes the service plan with the member and oversees the member's participation in the program.

(21) "Provider agency" means a Medicaid-enrolled provider who provides attendant-based services.

(22) "Quality Improvement Organization" (QIO) means a department-contracted entity who is responsible for completing the functional assessments for members accessing PAS.

(23) "Self-directed services" means a service delivery option for PAS. In this option the member, or a personal representative, takes responsibility of managing the PAS. Under the self-directed option, the member or personal representative must hire, fire, supervise, and manage the personal care attendants.

(24) "Service Delivery Record" means a form used to document the personal care attendants' delivery of PAS on a daily basis. The form includes:

(a) dates;

(b) times;

(d) types of tasks provided by the personal care attendant.

(25) "Service plan" means a department-generated form that captures the scope and frequency of PAS based on the functional assessment of a member's needs for service and support.

(26) "Service profile" means a form that summarizes the member's functional need for PAS. A licensed quality improvement organization nurse completes the service profile form. The service profile identifies the member's level of impairment, frequency and need for assistance with activities of daily living, instrumental activities of daily living, and health maintenance activities. The profile also provides the member's total authorization for PAS on a biweekly basis.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE II AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: ELIGIBILITY, SERVICES PROVIDED, AND LIMITATIONS (1) To qualify for Personal Assistance Services (PAS), a person must:

(a) be Medicaid eligible; and

(b) demonstrate a medical and functional need for assistance with activities

of daily living.

(2) PAS include assistance with the following activities:

(a) activities of daily living;

(b) instrumental activities of daily living; and

(3) Instrumental activities of daily living are only authorized when the member demonstrates a medical and functional need to receive assistance with activities of daily living. Instrumental activities of daily living may not account for more than one-third of the total time allocated per two-week period for PAS or a maximum of six hours per two-week time period, whichever is less.

(4) Medical escort services are only authorized when the member has demonstrated a medical and functional need for PAS. Medical escort services must be directly related to a member's medical and functional need for assistance en route to, or at the Medicaid reimbursable medical service, and are available when a family member or caregiver is unable to accompany the member.

(5) PAS, except for medical escort services, shopping, and laundry, will be provided in the member's home.

(6) PAS may not typically be provided in group home settings unless prior authorized by the department. Group home settings include licensed youth foster homes, mental health group homes, and adult intensive community home services. PAS may be authorized when the person's medical needs are beyond the scope of services normally provided by programs funding services in the group setting. For example, a person requiring additional assistance because of an acute medical episode or post-hospitalization period may receive PAS in a youth foster home setting.

(7) PAS are not available to the following:

(a) persons who reside in a hospital, hospitals providing long-term care, or a long-term care facility as defined in 50-5-101, MCA, and licensed under 50-5-201, MCA;

(b) persons who reside in assisted living or adult foster homes, as defined in 50-5-225, MCA, and licensed under 50-5-227, MCA; or

(8) PAS may not include any skilled services that require professional medical training unless otherwise permitted under 37-8-103, MCA, or ARM 24.159.1616.

(9) PAS do not include services which maintain an entire household. PAS do not include:

(a) cleaning floors and furniture in areas that members do not use or occupy;

(b) laundering clothing or bedding that members do not use;

(d) maintenance of animals unless the animal is a certified service animal specifically trained to meet the health and safety needs of the member;

(e) home and outside maintenance; and

(f) meal preparation for other family members.

(10) PAS provided by a member of the member's immediate family are not PAS for the purposes of the Medicaid program, and are not eligible for reimbursement. Immediate family member includes the following:

(a) a spouse; and

(b) a natural, adoptive, or foster parent of a minor child.

(11) In addition to the PAS provided through these rules, a member may receive PAS through the Medicaid Home and Community-Based Services Program for elderly and physically disabled persons, persons with severe and disabling mental illness, or persons with developmental disabilities.

(12) PAS must be delivered by a PAS personal care attendant employed by an enrolled Medicaid provider that has met the criteria established by the department for the delivery of PAS as referenced in [New Rules X and XI].

(13) PAS may not be provided to relieve a parent of child-caring or other legal responsibilities. PAS for children with disabilities may be appropriate when the parent is unqualified or otherwise unable to provide services and the child is at risk of institutionalization unless the services are provided.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE III AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: PERSON-CENTERED PLAN REQUIREMENTS (1) In order to receive Personal Assistance Services (PAS), the member must be capable of making choices about activities of daily living and instrumental activities of daily living. The member must be able to understand the impact of these choices and assume responsibility for the choices. If the member is unable to meet these criteria, the member may have someone assist them in decision making and directing their activities. The PAS person-centered planning process includes multiple steps to protect a member's health and safety while ensuring that member choice and control are an integral component of service delivery. Prior to delivering PAS, the following person-centered planning requirements must be met:

(a) a licensed contract nurse must complete a functional assessment and

service profile;

(b) a plan facilitator must complete the person-centered plan; and

plan.

(2) The person-centered planning requirements in (1) may be delayed in the

circumstances outlined in (7).

(3) The quality improvement organization will define the member's medical and functional needs in a functional assessment and service profile. The functional assessment and service profile must meet the following criteria:

(a) a licensed contract nurse will develop and review the member's functional assessment and service profile initially and will renew it at least annually; and

(b) the service profile will establish the maximum authorization for PAS in a two-week time period.

(4) The member and plan facilitator must meet to complete a person-centered plan that identifies, in writing, member-specific goals and objectives for the delivery of PAS. The plan facilitator must ensure the person-centered plan is completed prior to service and renewed at least annually. The person-centered plan will be based on the member's functional assessment and service profile as provided by the quality improvement organization.

(a) In agency-based PAS, the PAS provider agency nurse supervisor must participate in the initial and annual person-centered planning visit.

(b) In self-directed PAS, the PAS provider agency oversight staff must

participate in the initial and annual person-centered planning visit.

(5) The service plan will identify the type and amount of PAS and will govern the delivery of service. The service plan must meet the following criteria:

(a) in agency-based PAS, the agency nurse supervisor must approve the service plan initially, and must recertify the service plan every six months;

(b) in self-directed PAS, the provider agency oversight staff must approve the service initially, and must recertify the service plan every six months;

(d) the plan must not exceed the service profile authorization for hours delivered in a two-week time period.

(6) A member will not receive PAS beyond the service profile authorization unless one of two conditions is met:

(a) The provider agency implements a temporary service plan as outlined in (7).

(i) in agency-based PAS, the provider agency nurse supervisor must

sign the temporary service plan and prescribe in writing the member's needs for the increase in services.

(ii) in self-directed PAS, the provider agency oversight staff must sign

the temporary service plan and prescribe in writing the member's needs for the increase in services.

(b) The provider agency approves medical escort service during the time period. The provider agency must provide documentation to ensure the escort was provided according to program parameters.

(7) If a member is at high risk for institutionalization or in need of temporary PAS, the provider agency may implement services immediately that include activities of daily living without the functional assessment, service profile, and person-centered plan in place. In this case the provider agency must implement a temporary service plan. The provider agency must use a department-approved form to document the temporary service plan. The temporary service plan must prescribe in writing the member's medical and functional need for service. The provider must refer the member to the quality improvement organization for a functional assessment by the 28th day of the temporary service plan or they must discharge the member.

(a) In self-directed PAS, the health care professional must complete the health care professional authorization form prior to the delivery of services and the provider agency oversight staff must complete and sign the service plan prior to the delivery of services.

(b) In agency-based PAS, the provider agency nurse supervisor must complete and sign the temporary service plan prior to the delivery of services.

(8) The member must agree to accept the provision of PAS as specified in the person-centered service plan.

(9) The PAS provider must have a written complaint process. The member may receive a copy upon request. The provider must adhere to the process for any member complaints related to the person-centered planning and service-delivery process.

(10) The delivery of agency-based PAS must be supervised by a licensed agency nurse. Supervision includes oversight of the training and orientation of direct-care workers.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE IV SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: DESCRIPTION AND PURPOSE (1) Self-directed Personal Assistance Services (PAS) are services provided to Medicaid members who choose to take the responsibility or have a representative take the responsibility of managing the PAS. Self-directed PAS allow the member to direct PAS, including health maintenance tasks.

(2) Health maintenance tasks include the following:

(a) urinary systems management;

(b) bowel care;

(d) medication management.

(3) Members must provide their physician or health care professional evidence of ability to manage their PAS and health maintenance tasks.

(a) The scope and detail of the evidence will be determined by the physician or health care professional.

(4) Members who are unable to utilize self-directed PAS may receive services through the agency-based PAS program managed by provider agencies under agreement with Medicaid.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE V SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: GENERAL REQUIREMENTS (1) Self-directed Personal Assistance Services (PAS) may only be delivered by an attendant who is the employee of a Medicaid-enrolled provider and who is selected by the member or their personal representative.

(2) Agency-based PAS managed by provider agencies under agreement with Medicaid are not available to members who are participating in the self-directed PAS program. The use of PAS managed by provider agencies may be permissible in the event that the member's backup plan fails.

(3) Home health and home and community-based waiver skilled nursing services are not available to members for the completion of health maintenance activities which the member has been authorized to manage. The use of home health and home and community-based waiver skilled nursing services may be permissible in the event that the member's backup plan fails. In this case the service must be prior authorized.

(4) Members who have been terminated from the self-directed program may apply for agency-based PAS through the Medicaid PAS program managed by approved provider agencies.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE VI SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: MEMBER REQUIREMENTS (1) To qualify for self-directed Personal Assistance Services (PAS), the member:

(a) must be capable of assuming the management responsibilities of self-directed PAS or have a personal representative willing to assume this responsibility. Management responsibilities include the following:

(i) recruit, hire, schedule, train, and dismiss all personal care attendants;

(ii) develop a backup plan for when a personal care attendant is unable to provide services. The backup plan identifies the process for addressing the member's functional need for service as identified on the service plan should the personal care attendant be unable to deliver services;

(iii) review, approve, sign, and date all service delivery records to provide assurance that the service plan has been followed; and

(iv) assume medical and related liability regarding the delivery of PAS.

(b) must obtain authorization from a physician or health care professional to participate in the program;

(d) must be capable of making choices about activities of daily living, understand the impact of these choices, and assume the responsibility of the choices.

(2) The member may have a personal representative assume some or all of the responsibilities imposed by this rule. The personal representative is an immediately involved representative who meets the following criteria:

(a) is a person who is directly involved in the daily care of the member;

(b) is available to assume the responsibility of managing the member's care, including directing the care as it occurs in the home; and

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE VII AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: TERMINATION OF SERVICES (1) Personal Assistance Services (PAS) may be terminated for any of the following reasons:

(a) the member, or other persons in the household, subjects the direct-care worker to physical or verbal abuse, sexual harassment, exposure to the use of illegal substances, or to threats of physical harm;

(b) the member requests termination of services or refuses to accept help;

(d) the member is engaging in illegal activity in the home;

(e) the member's physician requests termination of services;

(f) the member no longer has a medical need for PAS;

(g) the member refuses the services of a direct-care worker based solely or partly on the attendant's race, creed, religion, sex, marital status, color, age, handicap, or national origin;

(h) the member refuses to accept services in compliance with the service plan;

(i) the member refuses to participate in the functional assessment, recertification, and person-centered planning visits; or

(j) the member falsifies the service delivery record.

(2) The department may terminate or reduce PAS when funding for services is unavailable.

(3) The provider must give at least ten days advance notice to a member when PAS are terminated for reasons listed in (1)(d) through (1)(j).

(4) The provider may immediately, but temporarily, suspend services for the reasons listed in (1)(a) through (1)(c). Following the temporary suspension of services the provider may enter into an agreement with the member to ensure that the violations of (1)(a) through (1)(c) do not reoccur. If the member fails to abide by the terms of the agreement, services may be permanently terminated.

(5) The department will provide written notice to an applicant when PAS are initially denied to the applicant.

(6) A person may request a fair hearing for any adverse determination made by the department. Fair hearings will be conducted as provided for in ARM 37.5.304, 37.5.307, 37.5.310, 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.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE VIII AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: PROVIDER ENROLLMENT (1) Providers will enroll as a Personal Assistance Services (PAS) personal care attendant provider. Providers must enroll through the department's fiscal intermediary.

(2) PAS providers must be businesses incorporated under the laws of the state of Montana.

(3) PAS providers must submit a description of the proposed service area which must include, at a minimum, coverage of the entire area of at least one county or Indian reservation.

(4) PAS providers must comply with onsite visit requirements both before and after enrollment to verify information submitted to the department.

(5) PAS providers must provide the documentation to demonstrate the following:

(a) general liability insurance with a minimum coverage of $1,000,000 per occurrence and $2,000,000 aggregate;

(b) motor vehicle liability insurance with split limits of $500,000 per person for personal injury, $1,000,000 per accident occurrence for personal injury, and $100,000 per accident occurrence for property damage; or, combined single limits of $1,000,000 per occurrence to cover such claims as may be caused by any act, omission, or negligence of the provider or its agents, officers, representatives, assigns, or subcontractors;

(d) verification of completion of the department's mandatory PAS training.

(6) PAS providers will select to deliver either agency-based or self-directed PAS option. Once a provider has completed a successful compliance review the provider may enroll in the other service option.

(7) The department may contract with out-of-state agencies to provide PAS for Montana Medicaid members temporarily living out of state.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE IX AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: CONFLICT-OF-INTEREST CRITERIA (1) In order to perform the duties of an agency-based nurse supervisor, self-directed program oversight staff, or the Personal Assistance Services (PAS) provider person-centered plan facilitator the person cannot:

(a) be related by blood or marriage to the member or to any paid caregiver for the member;

(b) be financially responsible to the member;

(d) benefit financially from the provision of assessed need for services;

(e) be employed as a direct-care worker at the agency; or

(f) have a majority ownership stake in the agency.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE X AGENCY-BASED PERSONAL ASSISTANCE SERVICES: PROVIDER REQUIREMENTS (1) Providers may enroll as a Personal Assistance Services (PAS) personal care attendant provider.

(2) PAS providers will maintain staff resources, including a nurse supervisor and person-centered plan facilitator, to perform the necessary PAS duties as referenced in [New Rule III]. The nurse supervisor and plan facilitator may be the same person.

(3) PAS nurse supervisors must meet the following criteria:

(a) be a licensed nurse;

(b) have at least one year's experience in aging and disability services;

(d) be free of conflict-of-interest criteria as referenced in [New Rule IX].

(4) PAS plan facilitators must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive certification in the person-centered planning process; and

(5) The PAS provider agency must provide documentation to verify the nurse supervisor and plan facilitator credentials, certification, and training.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE XI SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: PROVIDER REQUIREMENTS (1) Self-directed Personal Assistance Services (PAS) providers must employ program oversight staff to perform the following self-directed oversight activities:

(a) assist members to identify resources for personal assistants;

(b) advise the member regarding program requirements;

(d) provide documentation to ensure that the personal representative meets the participation criteria described in [New Rule VI].

(2) Self-directed PAS providers must maintain staff resources, including a program oversight staff and person-centered plan facilitator, to perform the necessary PAS duties as referenced in [New Rule III]. The program oversight staff and person-centered plan facilitator may be the same person.

(3) Self-directed program oversight staff must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive training in PAS; and

(4) Self-directed plan facilitators must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive certification in the person-centered planning process; and

(5) The PAS provider agency must provide documentation to verify program oversight staff and plan facilitator credentials, certification, and training.

(6) Self-directed PAS provider agencies must act as the employer of record for direct-care workers for the purposes of payroll and federal hiring practices.

(7) Effective January 1, 2015, self-directed PAS provider agencies must provide quarterly reports for all self-directed personal care attendants employed by the agency, in the format specified by the department. The quarterly report must include the names, addresses, and phone numbers, wages, years of experience in aging and disability services, availability of employee-sponsored health insurance, whether a background check was conducted, and, if so, whether it was a fingerprint criminal background check.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE XII AGENCY-BASED PERSONAL ASSISTANCE SERVICES: PROVIDER COMPLIANCE (1) Providers of Personal Assistance Services (PAS) will be subject to compliance reviews to provide assurance to the department that services are being provided within the rules and policy of the program.

(2) The department will conduct compliance reviews on the provider's premises and through documentation requests. The provider must supply documentation requested by the department in a reasonable time frame and no later than 30 days following the request.

(3) The reviews will take place at times determined by the department.

(4) The department will determine compliance in the following service delivery areas:

(a) service authorization documentation;

(b) high-risk authorization;

(d) service plan and member choice;

(e) service delivery;

(f) nurse supervision and oversight; and

(g) health and welfare and serious occurrence reports.

(5) The department will determine compliance in the following administrative areas:

(a) attendant training;

(b) staff credentials, certification, and training;

(d) maintenance of serious occurrence reports;

(e) member satisfaction surveys;

(f) required documentation;

(g) agency manuals and handouts, including complaint process;

(h) workers' compensation, liability, and automobile coverage; and

(i) service billing.

(6) The department will determine compliance in the following person-centered planning delivery areas:

(a) plan facilitator certification documentation;

(b) member and plan facilitator rights and responsibility documentation;

(d) risk assessment and mitigation.

(7) The department will examine a minimum of three cases or five percent of the provider's case load for the purpose of the compliance review, whichever is greater. The department will review additional cases, when necessary.

(8) The provider will meet all standards in ninety percent of the cases to be considered in compliance. If ninety percent compliance is not met, a second compliance review will be scheduled.

(9) The provider must meet all standards in ninety percent of the cases in the second review or will be subject to department sanctions as provided in ARM 37.85.401.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE XIII SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: PROVIDER COMPLIANCE (1) Providers of self-directed Personal Assistance Services (PAS) will be subject to compliance reviews to provide assurance to the department that services are being provided within the rules and policy of the program.

(3) The reviews will take place at times determined by the department.

(4) The department will determine compliance in the following service delivery areas:

(a) service authorization documentation;

(b) health-care professional authorization;

(d) amendments and temporary authorization;

(e) service plan and member choice;

(f) service delivery;

(g) agency program oversight; and

(h) health and welfare and serious occurrence reports.

(5) The department will determine compliance in the following administrative areas:

(a) staff credentials, certification, and training;

(b) principles of charting;

(d) member satisfaction surveys;

(e) required documentation;

(f) agency manuals and handouts, including complaint process;

(g) workers' compensation, liability, and automobile coverage; and

(h) service billing.

(6) The department will determine compliance in the following person-centered planning delivery areas:

(a) plan facilitator certification documentation;

(b) member and plan facilitator rights and responsibility documentation;

(d) risk assessment and mitigation.

(8) The provider must meet all standards in ninety percent of the cases to be considered in compliance. If ninety percent compliance is not met, a second compliance review will be scheduled.

(9) The provider must meet all standards in ninety percent of the cases in the second review or will be subject to department sanctions as provided in ARM 37.85.401.

AUTH: 53-2-201, 53-6-101, MCA

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

NEW RULE XIV AGENCY-BASED AND SELF-DIRECTED PERSONAL ASSISTANCE SERVICES: REIMBURSEMENT (1) Personal Assistance Services (PAS) may be provided up to, but not more than, 80 hours of attendant service per two-week time period per person as defined by the service profile. The department may, within its discretion, authorize additional hours in excess of this limit. Any services exceeding this limit must be prior authorized by the department. Prior authorization for excess hours may be authorized if additional assistance is required for:

(a) a period of time not to exceed three months and as the result of an acute medical episode;

(b) a period of time not to exceed three months and to prevent institutionalization during the absence of the normal caregiver; or

(2) Add-on payments for direct-care wage, bonus, and health care for health care workers are subject to the requirements in [New Rules XV and XVI, proposed in MAR Notice No. 37-690].

(3) PAS include the following:

(a) personal care attendant service is a 15-minute unit and means an onsite visit specific to a member. Personal care attendant services include the performance of activities of daily living, instrumental activities of daily living, and health maintenance activities. The personal care attendant service rate is an all-inclusive rate and includes the provider agency's administrative, person-centered planning, supervision, and oversight duties;

(b) medical escort is a 15-minute unit and means transportation time and appointment time so the person can access an approved medical appointment; and

(c) mileage is a unit of one mile and means reimbursement for mileage when an attendant uses their vehicle to transport a person on an approved shopping, or medical escort trip.

(4) The department will not reimburse a member for in-home services delivered by a privately retained attendant.

(5) Reimbursement is not available for PAS provided by immediate family members as described in [New Rule II].

(6) The agency-based and self-directed PAS fee schedules are effective July 1, 2014. Copies of the department's current fee schedules are posted at http://medicaidprovider.hhs.mt.gov and may be obtained from the Department of Public Health and Human Services, Senior and Long Term Care Division, 1401 East Lockey, P.O. Box 202951, Helena, MT 59620-2951.

AUTH: 53-2-201, 53-6-101, MCA

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

4. The department proposes to repeal the following rules:

37.40.1101 PERSONAL CARE, SERVICES, SERVICES PROVIDED AND LIMITATIONS is found on page 37-9101 of the Administrative Rules of Montana.

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

IMP: 53-6-101, 53-6-131, 53-6-141, MCA

37.40.1102 PERSONAL CARE SERVICES, REQUIREMENTS is found on page 37-9103 of the Administrative Rules of Montana.

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

IMP: 53-6-101, 53-6-131, 53-6-141, MCA

37.40.1105 PERSONAL CARE SERVICES, AGENCY-BASED REIMBURSEMENT is found on page 37-9109 of the Administrative Rules of Montana.

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

IMP: 53-6-101, 53-6-141, MCA

37.40.1106 PERSONAL CARE SERVICES, PROVIDER COMPLIANCE is found on page 37-9110 of the Administrative Rules of Montana.

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

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

37.40.1301 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, DESCRIPTION AND PURPOSE is found on page 37-9141 of the Administrative Rules of Montana.

AUTH: 53-6-113, 53-6-145, MCA

IMP: 53-6-101, 53-6-145, MCA

37.40.1302 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, APPLICATION OF GENERAL PERSONAL CARE RULES is found on page 37-9143 of the Administrative Rules of Montana.

AUTH: 53-6-113, 53-6-145, MCA

IMP: 53-6-101, 53-6-145, MCA

37.40.1303 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, REIMBURSEMENT is found on page 37-9143 of the Administrative Rules of Montana.

AUTH: 53-6-113, MCA

IMP: 53-6-101, 53-6-145, MCA

37.40.1305 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, CONSUMER REQUIREMENTS is found on page 37-9147 of the Administrative Rules of Montana.

AUTH: 53-6-113, 53-6-145, MCA

IMP: 53-6-101, 53-6-145, MCA

37.40.1306 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, PLAN OF CARE REQUIREMENTS is found on page 37-9149 of the Administrative Rules of Montana.

AUTH: 53-6-113, 53-6-145, MCA

IMP: 53-6-101, 53-6-145, MCA

37.40.1307 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, PROVIDER REQUIREMENTS is found on page 37-9149 of the Administrative Rules of Montana.

AUTH: 53-6-113, 53-6-145, MCA

IMP: 53-6-101, 53-6-145, MCA

37.40.1308 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, GENERAL REQUIREMENTS is found on page 37-9150 of the Administrative Rules of Montana.

AUTH: 53-6-113, 53-6-145, MCA

IMP: 53-6-101, 53-6-145, MCA

37.40.1315 SELF-DIRECTED PERSONAL ASSISTANCE SERVICES, COMPLIANCE REVIEWS is found on page 37-9161 of the Administrative Rules of Montana.

AUTH: 53-6-113, 53-6-145, MCA

IMP: 53-6-101, 53-6-145, MCA

5. STATEMENT OF REASONABLE NECESSITY

The Department of Public Health and Human Services (the department) proposes to adopt New Rules I through XIV for the Personal Assistance Services Program and repeal ARM 37.40.1101, 37.40.1102, 37.40.1105, 37.40.1106, 37.40.1301 through 37.40.1303, 37.40.1305 through 37.40.1308, and 37.40.1315.

The purpose for proposing to repeal the current personal assistance rules and creating these new rules is to establish the same regulations for the Personal Assistance Services Program (PASP) that are proposed for the Community First Choice Program (CFCP), as noticed in MAR Notice No. 37-690. The new rules propose a service delivery model based on person-centered planning and self-directed service options. The proposed rules include sections that pertain to personal assistance agency-based and self-directed service options. The rule subsections provide guidance specific to the functional areas of the program: services provided and limitations; service requirements; provider enrollment; conflict-of-interest criteria; self-directed description and purpose; self-directed general requirements; self-directed consumer requirements; person-centered plan requirements; provider requirements; provider compliance; and reimbursement.

The proposed rules will establish the parameters for service scope, authorization, and service delivery for the current state plan personal assistance services.

The proposed rules will also provide requirements for service scope and service delivery for the two service delivery options available under the PASP: agency-based and self-directed.

Next, the proposed rules will provide the scope of expectations for the federally mandated person-centered framework, including conflict-of-interest criteria and service structure to support the planning framework.

In addition, the proposed rules will provide reimbursement methodology for each PASP service.

Finally, the proposed rules will also establish expectations for provider enrollment, provider requirements, and provider compliance in the PASP.

New Rule I

The department is proposing this rule to provide the definitions of agency-based and self-directed Personal Assistance Services (PAS). The proposed new rule is necessary to provide uniform definitions and the foundational requirements for PAS.

New Rule II

The department is proposing this rule to outline the minimal requirements for a member to be eligible to receive PAS and the service options available to a member who qualifies for PAS. The rule also establishes the settings where a member may reside to receive PAS. Last, this rule provides the service limitations for PAS and the individual who can be employed to provide PAS. The intent of this rule is to provide clear guidelines for service availability in the PASP.

New Rule III

The department is proposing this rule to outline the steps that must be followed through a person-centered planning process to deliver PAS. The person-centered planning process ensures member involvement and participation in all aspects of service delivery. The department has developed a planning process that provides the member and people close to him/her with relevant information and resources and a support team to guide the member in developing a plan for receiving services. The rule also provides the expectations for the plan facilitator and provider agency staff in relation to the person-centered planning process and delivery of PAS.

New Rules IV through VI

The department is proposing these three new rules to provide a general description of the self-directed option of PAS. The goal of the department is to provide the most enhanced options for consumer choice and control. The self-directed rule provides the scope and authority wherein a member can assume increased responsibility and authority over the provision of his/her PAS. The proposed rules outline the criteria that must be met for a member to receive self-directed services and the additional service options that are available under the self-directed option. It also establishes the member responsibilities and expectations, which are a key component of the self-directed option. Lastly, the rule establishes the criteria a provider agency must meet to deliver self-directed PAS.

New Rule VII

The department is proposing this rule to provide a general outline for situations when PAS may be terminated. Termination of services may be based on a department or provider agency decision. Proposed New Rule VII establishes parameters to govern the department and provider agency in making these decisions so as to ensure member rights are upheld and proper protocol are adhered to.

New Rule VIII

The department is proposing this rule to provide the requirements for provider agency enrollment and participation in the PASP. The provider enrollment verifies that provider agencies are established businesses in the state of Montana and that the provider agency has reasonable coverage for personal care attendant worker claims. The standards for provider agencies are based on federal regulations and department standards. The training criteria are provided in lieu of any certification or licensure criteria used to regulate home-based services.

New Rule IX

The department is proposing this rule to provide the requirements for conflict-of-interest criteria. Conflict-of-interest criteria are mandated by the federal government to ensure compliance with expectations for service delivery in home-based settings. The conflict-of-interest criteria are developed to ensure that the individuals who are working with consumers in the person-centered planning process can act in a manner free of conflict when supporting the consumer in the decision-making process around their service options.

New Rule X and New Rule XI

The department is proposing these two new rules to provide the requirements for provider participation in the PASP. The rule establishes the minimum staffing requirements for an agency in order to deliver PAS. The department developed these requirements to ensure qualified staff provides planning, oversight, and supervision of PAS. The criteria also ensure that all plan facilitators receive training in the person-centered planning philosophy of service delivery. The department also developed this rule to outline the expectations that are unique to the agency-based provider agency found in New Rule X and the self-directed provider agency found in New Rule XI, specifically with regard to oversight and supervisory expectations and authority. Additionally, we have added the requirement for self-directed PAS provider agencies to report quarterly on the workers that deliver self-directed services in order to evaluate this work force quality, stability, and sustainability. The department may use the information to provide ongoing training and compliance information to direct-care workers, and may create a voluntary online directory to assist potential members in finding information about available direct-care workers and PAS self-directed providers.

New Rule XII and New Rule XIII

The department is proposing the two new rules to provide the requirements for provider compliance in the PASP. The rule establishes the areas that the department will use to evaluate compliance with the program parameters. The department has an extensive quality assurance process to ensure PASP provider agencies deliver services according to the parameters established in the PASP rule. The compliance process is an important component in the department's overall quality assurance strategy.

New Rule XIV

The department is proposing this rule because it specifies the reimbursement for services under the PASP. This rule is necessary to direct an individual to the correct location for the rates of reimbursement.

ARM 37.40.1101, 37.40.1102, 37.40.1105, 37.40.1106, 37.40.1301, 37.40.1302, 37.40.1303, 37.40.1305, 37.40.1306, 37.40.1307, 37.40.1308, and 37.40.1315

These administrative rules are being repealed because the PASP rules are being rewritten to correspond with the Community First Choice Program (CFCP) administrative rules.

6. The department intends to apply these rule adoptions retroactively to July 1, 2014. A retroactive application of the proposed rule adoptions does not result in a negative impact to any affected party.

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., November 20, 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 repeal of the above-referenced rules will not significantly and directly impact small businesses.

/s/ Valerie Bashor /s/ Richard H. Opper

Valerie Bashor, Attorney Richard H. Opper, Director

Rule Reviewer Public Health and Human Services

Certified to the Secretary of State October 14, 2014.