BEFORE THE DEPARTMENT OF PUBLIC
HEALTH AND HUMAN SERVICES OF THE
STATE OF MONTANA
TO: All Concerned Persons
1. On July 30, 2015, the Department of Public Health and Human Services published MAR Notice No. 37-719 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 1023 of the 2015 Montana Administrative Register, Issue Number 14. On August 27, 2015, the Department of Public Health and Human Services published the amended MAR Notice No. 37-719 pertaining to the public hearing on the proposed amendment and repeal of the above-stated rules at page 1243 of the 2015 Montana Administrative Register, Issue Number 16.
2. The department has amended ARM 37.87.102, 37.87.901, 37.87.903, 37.87.1303, 37.87.1313, and repealed 37.87.723 as proposed.
3. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:
The department received comments to the rule that requested changes be made to the Manual. No changes were made to the rules themselves. However, since the manual is incorporated by reference and hence part of the administrative rule, the department has noted the changes below in the responses and has placed the amendments to the Manual on the department's web site. You may obtain a copy of the amended manual at: http://dphhs.mt.gov/dsd/CMB/Manuals.aspx.
COMMENT #1: Comments were received expressing concern regarding the addition of the service requirement that Outpatient Therapy provided to youth under the age of 8 must include education and support for the family on how to respond to the needs of the youth, manage their own emotional state, and build secure attachment. The commenters noted that in the statement of reasonable necessity the requirement is for youth under the age of eight while this is not reflected in the service requirement section. The commenters believe it is not the department's position to dictate what a therapist provides during family sessions.
RESPONSE #1: Upon consideration of the comments received the department agrees that the requirement is not appropriate for all youth and is removing from the amended rule the service requirement to include "education and support for the family on how to respond to the needs of the youth, manage their own emotional state, and build secure attachment."
COMMENT #2: Comments were received expressing concern over the addition of the language pertaining to the use of the family therapy codes when a parent is part of the treatment of the youth and additionally questioning how much time the parent would have to spend in a session for the session to be billed as a family session. A few of the commenters would like more information pertaining to the "provider practices and utilization review" that is stated in the proposed rule. One commenter would also like to know if family sessions count towards the 24 sessions a youth is entitled to receive without a serious emotional disturbance (SED) diagnosis. Another commenter stated that if the amended language arises out of issues with billing practices then the department should deal with those through audits and retro reviews.
RESPONSE #2: The proposed language regarding the billing of family therapy codes has been in the Youth General Medicaid Manual. It was requested that it be added to the Children's Mental Health Bureau Medicaid Services Provider Manual (Manual) as it pertains to youth. Consequently, the proposed amendment language does not represent a change to current billing requirements. It serves as a clarification for providers based upon an identified need by the Surveillance and Utilization Review (SURS) program. However, the department agrees with the comment suggesting that implementation be through audit. The department has removed the proposed language from the Manual. SURS will communicate this requirement in a separate venue.
COMMENT #3: Comments were received opposing the proposed change to the functional impairment criteria in the Manual for the following reasons: 1) the department should have made such a profound change in collaboration with providers and stakeholders; 2) the proposed changes will result in a negative impact to SED youth and their families; 3) it appears that specific psychiatric symptoms are tied to statements asserting functional impairment and are poorly organized; using psychiatric symptoms to justify a finding of functional impairment results in circular reasoning; 4) the proposed language will serve to exclude more children from the SED label and does not provide clarity; 5) that while the department states that the functional impairment may be reflected in both internalizing and externalizing behaviors, the impairments listed are heavily weighted toward extreme externalizing; and 6) the five categories are inappropriate to children under 6 and that adding "developmental appropriate" does not make them developmentally appropriate.
RESPONSE #3: The department appreciates this feedback and has removed this proposed amendment from this rule change. The department will seek to collaborate with providers and stakeholders prior to proposing to amend this section in the future.
COMMENT #4: One commenter stated that the definitions proposed for CANS seem more like rationale than definitions.
RESPONSE #4: The department agrees with the comment and has amended the proposed definitions for CANS to provide clarity.
COMMENT #5: One commenter stated that the overview section is lacking any other motivation other than federal government requirements, for example the mission of the bureau.
RESPONSE #5: The department removed the overview section of the manual and replaced it with a simple purpose statement.
COMMENT #6: One commenter stated they would like examples of services that are not in the array of the Children's Mental Health Bureau's (CMHB) services that may be considered duplicative for the purpose of coordination of services.
RESPONSE #6: The department cannot provide an all-inclusive list of examples of services that may be considered duplicative. Youth in the CMHB program often receive services through other funding sources. The intent of this section is to inform providers of CMHB services that the coordination of services does not apply only to CMHB services for the purpose of coordination and preventing duplicative services.
COMMENT #7: One commenter recommended that the Notes/Exceptions listed for Targeted Case Management (TCM) under the Acute Hospital category also be noted under the TCM category.
RESPONSE #7: The department appreciates the comment and has added the Notes/Exceptions to the TCM category.
COMMENT #8: Regarding discharge from services, one commenter stated that they would like for the table of discharge requirements to be left in the Manual and to additionally have the addition of the requirements in specific categories of services.
RESPONSE #8: The department appreciates the comment and has maintained the table of discharge requirements and also is listing the requirements in the service specific areas.
COMMENT #9: One commenter stated that they are confused by the rationale of including "Asperger's Disorder" and "Other Pervasive Developmental Disorders" when these categories are now under the DSM-5 rubric of Autism Spectrum Disorder. The commenter believes that for practical purposes most providers will use the DSM-5 equivalent. The commenter would like to know what clarity is achieved by providing an encompassing diagnostic label followed by two labels that represent variations subsumed by the encompassing label.
RESPONSE #9: The department reviewed the list of Serious Emotional Disturbance (SED) diagnosis and agrees with the comment. The department has removed Asperger's Disorder, F84.5 and Other Pervasive Developmental Disorders, F84.8 from the list as they are under the rubric of Autism Spectrum Disorder in the DSM-5.
COMMENT #10: One commenter stated that they believe that targeted case management should be allowed concurrent with in-state Psychiatric Residential Treatment Facilities (PRTF) as well as out-of-state PRTFs.
RESPONSE #10: This comment is outside of the scope of this rulemaking.
COMMENT #11: One commenter stated that Chapter 5 of the Manual references Title 37, chapter 5 of the Administrative Rules of Montana (ARM) stating that complete information pertaining to the appeals process may be obtained there. The commenter would like to know why the Manual would provide information that is not complete if the complete appeals process is located in ARM.
RESPONSE #11: The department agrees with this comment and has removed the chapter regarding appeals. The department has maintained the reference to ARM Title 37, chapter 5. Additionally, the department removed the definition of authorized representative as that pertained to the appeals section in the Manual and is also defined in ARM.
COMMENT #12: One commenter stated that it appears that the Reconsideration Review process only applies to PRTF services and would like clarification on the appeals process for TGHs.
RESPONSE #12: The commenter is correct; the Reconsideration Review process section of the Manual is applicable only to PRTF services. Based upon Comment #11, the department will refer all inquiries regarding appeals to ARM Title 37, chapter 5.
COMMENT #13: One commenter asked for clarity in the Home Support Service (HSS) section of the Manual (c)(iii) pertaining to the required documents for crisis intervention under the continued stay criteria.
RESPONSE #13: The department reviewed the section and agrees with the comment. The department has removed the language from the crisis documentation in (c)(iii) of the HSS section of the Manual.
COMMENT #14: One comment was an objection to the proposed requirement for the addition of the detailed documentation of crisis intervention proposed for the admission criteria for HSS. The comment noted that the information may not be available if the youth has not been in services with the provider. The commenter recommended the following language for (2)(c)(iv) of the admission criteria instead: "Documentation that the youth has required crisis intervention more than once in the past 45 days. Documentation must include the date, location, and nature of the crisis situation."
RESPONSE #14: The department appreciates the comment and has changed the language to reflect the commenter's recommendation.
COMMENT #15: One commenter stated that they disagree with proposed (4) under the medical necessity criteria for TCM because TCM is already well defined in rule and this is unnecessary.
RESPONSE #15: It was not the intent of the department to constrict the meaning of TCM but to make clear that TCM is not to be used in lieu of services that other systems are responsible to provide. The department has changed the proposed language to state, "TCM cannot be used for activities that are the responsibility of other systems."
COMMENT #16: One commenter requested the prior authorization (PA) time frame for therapeutic group home stays remains at 120 days and not be extended to 180 days.
RESPONSE #16: The department has considered the options for the time frame of the initial stay for TGHs. Taking into consideration the average length of stays of youth in TGHs reported by providers and stakeholders as well as the staffing constraints in which the department must operate to complete the PAs, the department chose 180 days. It is at the provider's discretion to discharge a youth prior to the 180 days initial stay time frame if the youth no longer meets the medical necessity criteria for TGH level of care. Additionally, the language in the Manual provides for the option of the department to issue the PA for TGH initial stays for "up to 180 days." This allows the flexibility for the department to authorize fewer days in the event that 180 days is not believed to be medically necessary without it being considered a partial denial.
COMMENT #17: One commenter requested specific time frames for turnaround of a request for a PA or continued stay.
RESPONSE #17: The department agrees with the comment and has changed the Manual to reflect clear, consistent, and reasonable turnaround time frames for both the PA and the continued stay requests.
COMMENT #18: One commenter requested that the department clarify if the assessment for SED must occur annually.
RESPONSE #18: The SED assessment must occur annually. The department has clarified this in the Manual.
COMMENT #19: One commenter requested a place where the status of PA requests and continued stay requests can be checked rather than waiting for the letter from the department.
RESPONSE #19: The department is currently working with the department's Information Technology division to determine what options are available to offering provider access to this information electronically. At this time, the department cannot provide an estimate as to a timeframe for this to come to fruition. The current process provides a fax to the requestor within two business days of the determination by the clinical staff. Additionally, the requestor may contact the CMHB at any time to check on the status.
COMMENT #20: One commenter noted on page 51 of the Manual, the reference for the allowance of targeted case management for youth in an out of state PRTF has been removed from ARM 37.87.1223 and is proposed in New Rule I of MAR Notice No. 37-715.
RESPONSE #20: The department appreciates the comment and has corrected this reference to reflect the New Rule I as proposed in MAR Notice No. 37-715.
COMMENT #21: One commenter requested the department consider adding emergency admission criteria for youth with the Child and Family Services Division (CFSD) for occasions when there is an immediate need for such youth to enter a TGH.
RESPONSE #21: The department has considered this request and has changed the Manual to provide for up to 72 hours of TGH reimbursement, not dependent on youth meeting the medical necessity criteria for youth who require emergency admission to a TGH. This emergency admission window will be available to all youth in emergency or crisis situations not just those in CFSD custody.
COMMENT #22: One commenter would like an appeals process for partial certification for PAs and for continued stay. The commenter stated that as it currently stands a provider is required to submit a new authorization request 5 to 10 days prior to the discharge date of the youth and this does not leave enough time to facilitate discharge planning for the youth. Additionally, these time frames do not allow for the current appeals process to take place prior to the discharge date of the youth. The commenter would like a clear appeals process to include a peer-to-peer and a doctor-to-doctor review.
RESPONSE #22: The department's appeal process is located in ARM Title 37, chapter 5. While the department does agree with the commenter that having the option of a peer-to-peer and a doctor-to-doctor review would be ideal, the 2013 legislature removed the funding for the contract that afforded the department the ability to provide that option.
COMMENT #23: One commenter asked if the prior authorization form/information provided for therapeutic group home stays meets the requirements for the clinical assessment or does a provider need to have both documents in the file of the youth?
RESPONSE #23: The department requires both a prior authorization form and a clinical assessment and the file for the youth must contain both documents. The Manual has been changed to reflect this requirement.
COMMENT #24: One commenter stated it would be helpful to have a reference to the CANS section of the Manual in the "service requirements" section for the services which do require CANS.
RESPONSE #24: The department has added the CANS requirements to the service requirements for the specific areas in the Manual.
COMMENT #25: A few commenters would like clarification regarding the time frames associated with prior authorizations and continued stays.
RESPONSE #25: The department will review the time frames for the utilization review process of TGHs and HSS and provide clarification for prior authorizations and continued stays.
COMMENT #26: One commenter remarked that ARM 37.87.303 referenced in the Service Requirements section for CSCT has been repealed.
RESPONSE #26: The department appreciates the comment and has corrected the ARM reference in the CSCT section.
COMMENT #27: One commenter asked for clarification regarding the certificate of need section for Acute Inpatient. 42 CFR 456.60 states that a physician must certify the need for the service; the Manual specifies that a mid-level may certify need.
RESPONSE #27: The department appreciates the comment and has changed the Manual to reflect that a physician must certify the need for hospital services.
COMMENT #28: One commenter stated that they are concerned about the impact of the PA requirement for TGH restricting the use of beds for short term crisis placements.
RESPONSE #28: The department has changed the language to include a 72-hour payment authorization request for emergency/crisis situations. If the youth continues to need TGH care beyond the 72-hour authorization, the youth would need to continue to meet the medical necessity criteria and the provider will need to obtain a PA.
COMMENT#29: One commenter noted the time frame on the form for discharge notification is different from that in the proposed Manual and recommends they be consistent.
RESPONSE #29: The department thanks the commenter for this suggestion. The Manual becomes effective October 1, 2015, at which time the forms available online will all have been updated to reflect any changes that affect the forms.
COMMENT #30: One commenter stated that the PA requirements for Therapeutic Home Visits (THV) may be problematic if something happens while the youth is on the visit that would require an extension of time.
RESPONSE #30: The department recognizes that circumstances may arise that prevent a youth from returning from a THV in the allotted amount of time. As such the department did allow for a provider to submit a request for the PA in those circumstances no later than one business day, as opposed to five business days, prior to the end of the current visit.
4. These rule amendments and repeal are effective October 1, 2015.
/s/ Cary B. Lund /s/ Richard H. Opper
Cary B. Lund Richard H. Opper, Director
Rule Reviewer Public Health and Human Services
Certified to the Secretary of State September 14, 2015