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Montana Administrative Register Notice 37-737 No. 9   05/06/2016    
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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 37.85.204, 37.85.206, 37.86.601, 37.86.606, 37.86.2002, 37.86.2102, 37.86.2902, 37.86.3103, and 37.86.3105, pertaining to Medicaid program treatment limits, cost-share requirements, and Medicaid coverage

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NOTICE OF AMENDMENT

 

TO: All Concerned Persons

 

1. On March 4, 2016, the Department of Public Health and Human Services published MAR Notice No. 37-737 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 409 of the 2016 Montana Administrative Register, Issue Number 5.

 

2. The department has amended the following rules as proposed: ARM 37.86.601, 37.86.606, 37.86.2002, 37.86.2902, 37.86.3103, and 37.86.3105.

 

3. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

          37.85.204 MEMBER REQUIREMENTS, COST SHARING (1) and (2) remain as proposed.

          (3) A member with income at or below 100% of the federal poverty level (FPL) is responsible for the following copayments:

          (a) remains as proposed.

          (b) pharmacy-preferred brand drugs - $4 per prescription;

          (c) pharmacy-nonpreferred brand drugs, including specialty drugs - $8 per prescription;

          (d) outpatient hospital services - $4 per visit;

          (e) podiatry services - $4 per visit;

          (f) physical therapy services - $4 per visit;

          (g) speech therapy services - $4 per visit;

          (h) audiology services - $4 per visit;

          (i) hearing aid services - $4 per visit;

          (j) occupational therapy services - $4 per visit;

          (k) home health services - $4 per visit;

          (l) ambulatory surgical center services - $4 per visit;

          (m) public health center services - $4 per visit;

          (n) dental treatment services - $4 per visit;

          (o) denturist services - $4 per visit;

          (p) durable medical equipment - $4 per visit;

          (q) optometric and optician services - $4 per visit;

          (r) professional services - $4 per visit;

          (s) federally qualified health center services - $4 per visit;

          (t) rural health clinic services - $4 per visit;

          (u) dialysis clinic services - $4 per visit;

          (v) independent diagnostic testing facility services - $4 per visit;

          (w) home infusion therapy services - $4 per therapy;

          (x) home dialysis attendant services - $4 per visit;

          (y) personal assistance services - $4 per visit;

          (z) mental health clinic services - $4 per visit;

          (aa) chemical dependency services - $4 per visit; and

          (ab) targeted case management services - $4 per visit.

          (4) A member with income above 100 percent of the FPL, except as noted in (a) and (b) is responsible for cost share of 10% of the provider reimbursed amount. A member is responsible for cost share for outpatient pharmacy services as follows:

          (a) preferred brand drugs - $4 per prescription;

          (b) nonpreferred brand drugs, including specialty drugs - $8 per prescription.

          (5) through (8) remain as proposed.

          (9) Providers may directly charge members only for the following services if the member signs an Advanced Beneficiary Notice for the specific service prior to the service being provided:

          (a) through (d) remain as proposed.

          (e) services that are not medically necessary; or

          (f) investigational services.; or

          (g) dental treatment expenses that exceed the annual dental treatment cap.

 

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

IMP: 53-6-101, 53-6-113, 53-6-141, MCA

 

          37.85.206 SERVICES PROVIDED (1) and (2) remain as proposed.

          (3) State plan Medicaid benefits are available for members who are Medicaid-covered through the 00181 Waiver for Additional Services and Populations (WASP) Medicaid 1115 Waiver as approved by the Centers for Medicare and Medicaid Services (CMS).

          (a) A person may receive coverage through the 00181 WASP Medicaid 1115 Waiver if the person is 18 or older, has severe disabling mental illnesses (SDMI), would qualify for or be enrolled in the state-financed mental health services plan (MHSP) or the 00181 WASP Medicaid 1115 Waiver but is otherwise ineligible for Medicaid benefits, and either:

          (i) and (ii) remain as proposed.

          (b) A person determined categorically eligible for Medicaid as aged, blind, or disabled (ABD) in accordance with ARM 37.82.901 through 37.82.903 is not subject to the annual $1,125 dental treatment limit. The monies expended for treatment costs exceeding the limit are covered through the 00181 WASP Medicaid 1115 Waiver.

         

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

IMP: 53-2-201, 53-6-101, 53-6-103, 53-6-111, 53-6-113, 53-6-131, 53-6-141, MCA

 

          37.86.2102 EYEGLASSES, SERVICES, REQUIREMENTS AND RESTRICTIONS (1) through (4) remain as proposed.

          (5) In the circumstances described in (4)(a) through (i), the member may be allowed two pairs of single vision eyeglasses every 365-day period.

          (6) and (7) remain as proposed.

 

AUTH: 53-6-113, MCA

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

 

4. The department has thoroughly considered the comments and testimony received. A summary of the comments received and the department's responses are as follows:

 

COMMENT #1: One comment was received questioning why the department was updating ARM 37.85.204.

 

RESPONSE #1: The changes to ARM 37.85.204 are to align the cost share payments for both the Medicaid population and the Montana Health and Economic Livelihood Partnership (HELP), Medicaid expansion, population. The HELP legislation required charging the maximum cost sharing allowed under federal law. This rule change aligns cost share for the expansion Medicaid population and the nonexpansion population. By aligning the cost share for these two coverage populations, these proposed rule changes also make the cost share less confusing for consumers and providers. The department's current rules, inclusive of ARM 37.85.204, also do not match federal legal authority on either exempt services or exempt populations. The rule changes align cost share with the current federal guidelines.

 

COMMENT #2: One comment was received regarding the different proposed copayment requirements for members below 100% of the Federal Poverty Level (FPL) and members above 100% of the FPL. The commenter is concerned about the administrative burden to manage these varying requirements.

 

RESPONSE #2: The changes are to align the copayments for services as among the new expansion population and the nonexpansion population. The HELP legislation specified that the department would charge the maximum amount permissible under federal law. Federal law provides that people over 100% of the federal poverty level (FPL) can be charged 10% of the Medicaid reimbursed amount for the service. While federal law limits the copays for services to people under 100% of FPL to certain specified copays. Those copays are in the changes for the rule.

 

COMMENT #3: One comment was received concerning the reduction of the inpatient hospital cost-share amount. The commenter was concerned that this change could have a negative impact to hospitals.

 

RESPONSE #3: Based on the federal cost-share regulations the department must decrease the amount that can be charged for inpatient stays for individuals with a FPL of below 100%. This proposed reduction aligns our cost share with federal requirements and actually increases the Medicaid payment to hospitals for those members under 100% of the FPL.

 

COMMENT #4: Several comments were received regarding ARM 37.85.204(7) which precludes providers from collecting cost shares from members at the time of service. The commenters are concerned that seeking to collect cost shares after the date of service would be difficult to achieve and that this could be a direct impact to small businesses.

 

RESPONSE #4: Due to the differing amounts of cost share for people above or below 100% of the FPL, different eligibility groups, services that are exempt from cost share, and the quarterly cost-sharing cap, the department determined that the best way to ensure that the correct amount of cost share was charged and paid would be to wait until the claim was adjudicated. In private insurance, it is standard practice for providers to bill patients for cost share after the claims have been adjudicated and this change closely aligns with the standard insurance practice.

 

COMMENT #5: One comment was received regarding the 5% cost-sharing cap being done on a quarterly basis. The commenter was concerned about the administrative burden and the cost to the department.

 

RESPONSE #5: The Centers for Medicare and Medicaid Services (CMS) require that the 5% cost-sharing cap be done on a quarterly basis. This requirement protects the members from large charges in relationship to their low income by capping the amount owed in one quarter.

 

COMMENT #6: One comment was received regarding the populations exempted in ARM 37.85.204(5)(c), (d), and (e) from cost-sharing requirements. The commenter questions the addition of these groups.

 

RESPONSE #6: The addition of the new groups of people exempt from cost share is necessary to comply with federal law. American Indians/Alaska Natives are exempt from cost share under federal law if they meet the criteria that are proposed in ARM 37.85.204(5)(c)(i-v). Individuals covered through breast and cervical cancer eligibility and individuals receiving hospice care are also exempt from cost share under federal law.

 

COMMENT #7: One comment was received regarding the proposed change at ARM 37.85.204(6)(e) expanding the exemption from nonemergency transportation to the all-inclusive transportation services. The commenter questioned why no cost share would be charged for emergency transportation.

 

RESPONSE #7: Due to varying considerations, transportation, including ambulance, coverage is under current policy exempt from cost share. Transportation is provided by a variety of providers from friends and family to air ambulance. Nonemergency transportation services are paid as an administrative cost of operating the Medicaid program and do not go through the claims payment system. Nonemergency transportation services are prior authorized and mileage is only paid to the nearest available provider. Emergency transportation is also reviewed for medical necessity. However, depending on the urgency of the situation, it is often reviewed after the service. Emergency transportation is only reimbursed if it is medically necessary and to the nearest available provider. The changes to the rule reflect current policy that all transportation services are currently exempt from cost share.

 

COMMENT #8: One comment was received questioning how a provider would know what to charge for cost share.

 

RESPONSE #8: Providers will know what to charge members for cost share by reviewing their remittance advice after the claim has gone through the adjudication process. Cost share cannot be charged to the member until the claim has been paid and the provider receives their remittance advice with the amount paid and the amount owing by the member. This practice is necessary for purposes of administrative processing and parallels that of the insurance industry.

 

COMMENT #9: One comment was received regarding how providers will know what the federal poverty level (FPL) of a member is, in order to charge cost share.

 

RESPONSE #9: Providers will know what to charge members for cost share by reviewing their remittance advice after the claim has gone through the adjudication process. Cost share cannot be charged to the member until the claim has been paid and the provider receives their remittance advice with the amount paid and the amount owing by the member. This practice is necessary for purposes of administrative processing and parallels that of the insurance industry.

 

COMMENT #10: One comment was received regarding how a provider will know what to charge for members who are over 100% of the FPL at the time of service.

 

RESPONSE #10: Providers will know what to charge members for cost share by reviewing their remittance advice after the claim has gone through the adjudication process. Cost share cannot be charged to the member until the claim has been paid and the provider receives their remittance advice that outlines the amount due by the member.  This practice is necessary for purposes of administrative processing and parallels that of the insurance industry.

 

COMMENT #11: One comment was received regarding how providers will be able to charge cost share for goods such as prescriptions and eyeglasses. The commenter asked if providers could hold the goods until the member paid their cost share.

 

RESPONSE #11: Prescription services are processed and adjudicated in a real time so pharmacy providers will know the cost share amount at the time the prescription is dispensed. All eyeglasses made available through Medicaid coverage are provided through a state bulk-purchasing contract. Consequently, cost share cannot be calculated for the individual provision of the item. The legal authorities governing the provision of services funded with Medicaid monies, do not allow for providers to withhold goods or services from a member until their cost-share amounts are paid.

 

COMMENT #12: One comment was received regarding cost share being exempt for emergency services. The commenter asked if there was a definition of emergency services and who would determine if a service was an emergency, or if there were designated codes for emergencies.

 

RESPONSE #12: Emergency services are defined in ARM 37.86.2601 as services provided after the sudden onset of a medical condition manifesting itself by acute symptoms of such severity, including severe pain, that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.

 

COMMENT #13: One comment was received noting that federal law forbids providers from refusing services to a member who cannot pay their cost share.

 

RESPONSE #13: 42 CFR Section 447.52(e) does prohibit providers from refusing services to a member who cannot pay their cost share if the member has a family income below 100% of the FPL and the member is not part of an exempted group per 42 CFR 447.56(a). ARM 37.85.402(5)(a) states that no provider may deny services to any member due to their inability to pay a copayment. A member's inability to pay does not lessen the member's obligation to pay a copayment. A provider may use their policy on collecting delinquent payments from a non-Medicaid member, to collect delinquent payments from Medicaid members.

 

COMMENT #14: One comment was received regarding the proposed 10% cost share for inpatient stays for members over 100% FPL. The commenter was concerned that the provider could have a fiscal impact if the member was to not pay their cost share. The commenter suggested making the inpatient cost share the same for both members above and below 100% FPL.

 

RESPONSE #14: The changes align the new expansion population and the nonexpansion population. The HELP legislation specified that the department would charge cost share at the maximum amount allowed under federal law. Federal law specifies that individuals over 100% of the FPL can be charged 10% of the Medicaid reimbursed amount for the service. This includes inpatient hospital services. The maximum 5% cost-share cap, applied quarterly, protects members from large charges in relationship to their low incomes.

 

COMMENT #15: One comment was received questioning if the cost-share amounts listed in the proposed rule were meant to be per visit or per line, as the proposed rule change does not state which methodology will be used.

 

RESPONSE #15: The department has modified the proposed rule for adoption to denote whether the methodology used to determine cost share is by visit or by service.

 

COMMENT #16: One comment was received regarding cost share for provider-based services. The commenter questioned if cost share will be charged on both the provider claim and the facility claim.

 

RESPONSE #16: Cost sharing for provider-based services will continue to be subject to the methodology currently in place with the applicable cost share charged to each claim.

 

COMMENT #17: One comment was received regarding the use of charity care within nonprofit hospitals for members who cannot pay their cost share. The commenter noted that most hospitals within the state are nonprofit hospitals and that most if not all Medicaid members qualify for charitable care. Members with increased copayments may be inclined to use the charity care systems at these hospitals.

 

RESPONSE #17: Eligibility for nonprofit hospital charity care and the services that are given under these programs is determined by the individual hospitals not the department.

 

COMMENT #18: One comment was received requesting the department to clarify that noncovered services include those services for members who have met their dental treatment cap that would have been covered, if the member had not met their dental treatment cap. The commenter is concerned that the cost of performing dental treatments can readily exceed the annual maximum limit, and unless the remaining balance is considered noncovered, the practice cannot collect the balance billed for that service.

 

RESPONSE #18: Medicaid considers all dental procedure codes on the fee schedule as covered services. If the procedure code is not on the fee schedule, it is considered a noncovered service. Medicaid members now have an annual cap of $1,125 for covered treatment services. Treatment services include procedures such as fillings, crowns, root canals, periodontal procedures, and extractions. Once a member has met their cap, any treatment code on the fee schedule is considered a noncovered service and will require a private payment arrangement between the member and the dental office. Private pay agreements are addressed at ARM 37.85.406(11)(a). If a member wishes to have a procedure performed that is a noncovered service not on the fee schedule, this would also be considered a private pay arrangement. Procedures not counted toward the cap are diagnostic, preventive, anesthesia, and denture services. Medicaid will pay claims for these covered services even after the cap is met. The department has updated the final rule adoption section ARM 37.85.204(9) to include dental treatment expenses that exceed the dental treatment cap.

 

COMMENT #19: One comment was received requesting that the department create an Advanced Beneficiary Notice template for providers.

 

RESPONSE #19: The department will not be creating an Advanced Beneficiary Notice template.

 

COMMENT #20: One comment was received regarding the proposed removal of cost share exemption for personal assistance services and home dialysis attendant services. The commenter expressed concern that while the changes may simplify cost sharing these changes could affect patient access to these services.

 

RESPONSE #20: The proposed changes are to align the new expansion population and the nonexpansion population. The HELP legislation specified the department would charge the maximum cost share allowed under federal law. Personal assistance services and home dialysis attendant services are not exempt from cost share under federal law. Therefore, these services are being charged cost share.

 

COMMENT #21: One comment was received regarding nonemergency use of emergency room services. The commenter questioned why the new HELP Plan has cost share guidelines related to nonemergency use of the emergency room but ARM 37.85.204 does not. The commenter also noted that low-level emergency room visits are already reimbursed at a lower rate in lieu of increased cost share.

 

RESPONSE #21: At this current time, the cost share requirements related to nonemergency use of the emergency room only pertain to those participants in the HELP Plan.

 

COMMENT #22: One comment was received in support of the proposed exemption of preventive dental services from cost share.

 

RESPONSE #22: The department thanks the commenter for their support.

 

COMMENT #23: One comment was received in support of the proposed amendment of ARM 37.85.206 that exempts persons who are categorically eligible for Medicaid as aged, blind, or disabled from the annual $1,125 dental treatment limit.

 

RESPONSE #23: The department thanks the commenter for their support.

 

COMMENT #24: One comment was received regarding the removal of therapy limits in ARM 37.86.603. The commenter questioned why the department is removing the limits.

 

RESPONSE #24:  The department is aligning the benefits for the Medicaid expansion population and the nonexpansion population. The benchmark plan that the expansion plan was required to follow did not have limits on therapy services. In order to align the existing program, the department is removing this limit for the nonexpansion members.

 

COMMENT #25: One comment was received regarding the change of eyeglass and vision exams from once every 730 days to once every 365 days in ARM 37.86.2002. The commenter questioned why the department is changing the limits.

 

RESPONSE #25: The department is aligning the benefits for the Medicaid expansion population and the nonexpansion population. The benchmark plan that the expansion plan was required to follow allowed for these services once every 365 days. In order to align the existing program, the department is modifying the coverage of eyeglass and vision exams to once every 365 days.

 

COMMENT #26: One comment was received regarding the proposed language in ARM 37.86.2102(5). The commenter is concerned that the language as written about in the circumstances described in (4) is confusing and suggested that the language be changed to include the circumstances described in (4)(a) through (i).

 

RESPONSE #26: The department agrees with the commenter and has modified the language in the final rule adoption.

 

COMMENT #27: One comment was received regarding the proposed removal of the inpatient detoxification limit of seven days in ARM 37.86.2902. The commenter questioned why the department is changing the limit and why it is shown to have no cost implication.

 

RESPONSE #27: The department is modifying this rule to conform it with federal law that requires that Medicaid may not place unnecessary burdens on the obtainment of behavioral health services. The department required inpatient hospitals that performed detoxification services receive prior authorization only if the member is inpatient for greater than seven days. This change removes the prior authorization of services over seven days. The department's payment methodology for inpatient stays has a strong incentive for hospitals to self-monitor length of stay due to the prospective all-inclusive payment for the stay rather than paying based on a daily rate. The department examined its process of prior authorization for the past several years and found that this prior authorization was not needed or cost effective, as both the admissions and length of stays were appropriate.

 

COMMENT #28: One comment was received regarding the proposed removal of limits for cardiac rehabilitation in ARM 37.86.3103. The commenter questioned why the department was removing the limit and why the cost implication is so low.

 

RESPONSE #28: The department is aligning the benefits for the Medicaid expansion population and the nonexpansion population. The benchmark plan that the expansion plan is required to follow does not have limits on cardiac rehabilitation. In order to align the existing program, the department is removing this limit for the nonexpansion members. Cardiac rehabilitation is only used for people after a serious previous qualifying cardiac event; due to this, relatively few people use this service. The removal of the limits on the number of visits is not expected to significantly increase utilization.

 

COMMENT #29: One comment was received regarding the proposed removal of limits for pulmonary rehabilitation in ARM 37.86.3105. The commenter questioned why the department was removing the limit and why the cost implication is so low.

 

RESPONSE #29: The department is aligning the benefits for the Medicaid expansion population and the nonexpansion population. The benchmark plan that the expansion plan was required to follow did not have limits on pulmonary rehabilitation. In order to align the existing program, the department is removing this limit for the nonexpansion members. Pulmonary rehabilitation is only used for individuals with serious chronic obstructive pulmonary disease; due to this, relatively few people use this service. The removal of the limits on the number of visits is not expected to significantly increase utilization.

 

COMMENT #30: The department made the following change to the name of the 00181 Medicaid 1115 Waiver on further review of the rules based on comments that were received.

 

RESPONSE #30: The name of the 00181 Medicaid 1115 waiver was changed to the Waiver for Additional Services and Populations (WASP) Medicaid 1115 waiver.

 

          5. The department intends to apply these rule amendments retroactively to January 1, 2016. A retroactive application of the proposed rule amendments does not result in a negative impact to any affected party.

 

 

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

Cary B. Lund, Attorney                          Richard H. Opper, Director

Rule Reviewer                                       Public Health and Human Services

         

Certified to the Secretary of State April 25, 2016

 

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