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| Montana Administrative Register Notice 37-863 | No. 20 10/19/2018 | |
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BEFORE THE Department of PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On September 7, 2018, the Department of Public Health and Human Services published MAR Notice No. 37-863 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 1785 of the 2018 Montana Administrative Register, Issue Number 17.
2. The department has amended the following rules as proposed: ARM 37.34.3005, 37.85.104, 37.86.705, 37.86.805, 37.86.1101, 37.86.1105, 37.86.1406, 37.86.1807, 37.86.2005, 37.86.2605, 37.86.2803, 37.86.2905, 37.86.2912, 37.86.3007, 37.86.3109, and 37.86.3205.
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:
37.40.830 HOSPICE, REIMBURSEMENT (1) through (11) remain as proposed. (12) The hospice fee schedules are effective
AUTH: 53-6-113, MCA IMP: 53-6-101, MCA
37.85.105 Effective dates, CONVERSION FACTORS, POLICY ADJUSTERS, AND COST-TO-CHARGE RATIOS of Montana Medicaid Provider Fee Schedules (1) through (3)(d) remain as proposed. (e) The dental services covered procedures, the Dental and Denturist Program Provider Manual, as provided in ARM 37.86.1006, is effective (f) through (6) remain as proposed.
IMP: 53-2-201, 53-6-101, 53-6-125, 53-6-402, MCA
37.85.106 MEDICAID BEHAVIORAL HEALTH TARGETED CASE MANAGEMENT FEE SCHEDULE (1) remains as proposed. (2) The Department of Public Health and Human Services (department) adopts and incorporates by reference the Medicaid Behavioral Health Targeted Case Management Fee Schedule effective July 1, 2018, (a) through (3) remain as proposed.
IMP: 53-2-201, 53-6-101, 53-6-113, MCA
37.86.1006 DENTAL SERVICES, COVERED PROCEDURES (1) through (4) remain as proposed. (5) Covered services for adults age 21 and over include: (a) through (d) remain as proposed. (e) porcelain fused to base metal crowns (6) through (18) remain as proposed.
37.86.2806 COST-BASED HOSPITAL, GENERAL REIMBURSEMENT (1) Cost-based reimbursement shall be applied as follows: (a) remains as proposed. (b) For cost report periods ending on or prior to December 31, 2017, CAH final reimbursement is for reasonable costs of hospital services limited to 101% of allowable costs, as determined in accordance with ARM 37.86.2803(1). For cost report periods ending January 1, 2018 through June 30, 2018, CAH final reimbursement is for reasonable costs of hospital services limited to 97.98% of allowable costs as determined in accordance with ARM 37.86.2803(1). For cost report periods ending on or after July 1, 2018, CAH final reimbursement is for reasonable costs of hospital services limited to (2) through (8) remain as proposed.
IMP: 53-2-201, 53-6-101, 53-6-113, 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: At the hearing on September 7, 2018, the department noted an error in the proposed amendment to ARM 37.85.106(2), which refers to the Behavioral Health Targeted Case Management fee schedule. This fee schedule was previously dated January 1, 2018, and does not have a previously incorporated July 1, 2018, fee schedule. Therefore, there is no need to label it as "version 2."
RESPONSE #1: The rule text will be updated to remove the reference to "version 2" so as to accurately describe the fee schedule. This is a change in the label of the fee schedule and does not change any of the fees set forth in the schedule as proposed.
COMMENT #2: At the hearing on September 7, 2018, the department noted an error in the proposed amendment to ARM 37.86.2806(1)(b). The proposed amendment mistakenly states that cost settlements for report periods ending on or after July 1, 2018 will be limited to 100%. The correct percentage is 101%.
RESPONSE #2: The department will update the rule text to reflect the appropriate cost settlement percentage.
COMMENT #3: At the hearing on September 7, 2018, the department noted that a table in the Fiscal Impact statement, on page 1808 of MAR Notice No. 37-863, erroneously lists a fiscal impact to private duty nursing providers. There is no fiscal impact because there was no proposed rate change to private duty nursing in this rule notice.
RESPONSE #3: Private duty nursing rates were increased within MAR Notice No. 37-854, and the fiscal impact was articulated in that rule notice.
COMMENT #4: At the hearing on September 7, 2018, the department noted that ARM 37.40.830 was erroneously included in this rule notice. The department does not propose any changes to hospice reimbursement and ARM 37.40.830 should not have been included in this rule notice.
RESPONSE #4: The department withdraws ARM 37.40.830 from this rule notice and the hospice fee schedule will remain effective January 1, 2018.
COMMENT #5: The department noted an error in ARM 37.85.105(3)(e), which refers to the effective date of the Dental and Denturist Program Provider Manual. The effective date should be October 1, 2018, as set forth in the Statement of Reasonable Necessity.
RESPONSE #5: The department has made the correction to the language in ARM 37.85.105(3)(e) to make the manual changes effective on October 1, 2018.
COMMENT #6: Several commenters expressed support for the proposal to restore Medicaid reimbursement rates to levels prior to 1/1/2018, when Montana state government experienced revenue shortfalls necessitating a 2.99% reduction in Medicaid provider rate reimbursement. Some commenters took issue with using the word "increase" to characterize the action the department proposed. They said the department should use the word "restore" in place of the word "increase."
RESPONSE #6: The department acknowledges and appreciates the support. The department acknowledges the commenters' perspectives with respect to language usage. However, the department feels that the word "increase" is an accurate description of the proposed change in rule.
COMMENT #7: Some commenters noted that this rule proposal does not restore targeted case management (TCM) services for children and adults to pre-1/1/2018 reimbursement rates.
RESPONSE #7: The department acknowledges and agrees with this statement. The department is currently proposing to raise rates by 3.08%. The governor directed the department to create a plan for efficient and fiscally sound case management across Montana. Additional improvements to care/case management services across the Medicaid program are being analyzed by the department. Future changes to targeted case management and/or other care management programs will be noticed via the public rulemaking process as appropriate.
COMMENT #8: A commenter requested the reinstatement of 24 outpatient therapy sessions per year for youth who do not have a diagnosis of severe emotional disturbance (SED).
RESPONSE #8: The department acknowledges the request, but the department, at this time, is not proposing to reinstate this service for youth who do not have an SED diagnosis.
COMMENT #9: A commenter requested the reinstatement of room and board reimbursement for children's therapeutic group homes and indicated that eliminating funding for room and board has pushed children to a higher level of care.
RESPONSE #9: The department acknowledges this request, but the department at this time is not proposing to reinstate room and board payments for therapeutic group homes.
COMMENT #10: Some commenters expressed concerns that even with the proposed increase to restore rates to pre-1/1/2018 reimbursement levels the system is still short of dollars. Some commenters expressed concern regarding future funding to enable nonprofits to continue to provide services for individuals with developmental disabilities.
RESPONSE #10: The department has restored the rate for the 0208 waiver and the 0667 waiver, which effectively restores rates to the level prior to the 2.99% decrease. Future funding for services for individuals with developmental disabilities will be determined by the 2019 Montana Legislature.
COMMENT #11: A commenter expressed concern that prior authorization requirements increase administrative burdens for medical providers by increasing administrative tasks and reducing time and resources for direct care.
RESPONSE #11: The department acknowledges these concerns. Utilization review, in the form of prior authorizations, is a best practice that helps maintain adherence to the budget by ensuring Medicaid members are receiving medically necessary services at the appropriate level of care, thus allowing Medicaid dollars to go as far as possible in treating a population of members. The department intends to continue to monitor trends in member utilization, denials and deferments, numbers of providers, and length of stays. The department intends to use this information to manage requirements in the future.
COMMENT #12: A commenter stated that the legislature intended for monies relating to the private prison contract were supposed to fund specific programs such as fire suppression and budget restoration. The commenter indicated that the legislature intended for the budget restoration to assist the most vulnerable populations in Montana and treat people in the least restrictive environments.
RESPONSE #12: The department acknowledges the commenter's statement. However, the use of money relating to the private prison contract is outside the scope of this administrative rule proposal and is outside the purview of the Department of Public Health and Human Services.
COMMENT #13: One commenter discussed the challenges in providing home support services (HSS) at the current reimbursement rate structure.
RESPONSE #13: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #14: A commenter asked if the department intended to reinstate the prior authorization requirement for dental crowns.
RESPONSE #14: No, the department inadvertently included the prior authorization language in the restoration of the adult dental benefit. The rule text has been updated to eliminate the reference to "prior authorization" in ARM 37.86.1006(5)(e).
COMMENT #15: Several commenters appreciated the restoration of dental rates and services. Others went on to state that they considered this step a work in progress and discussed the impact of previous cuts.
RESPONSE #15: The department appreciates the support and will continue to work with providers and the Montana Dental Association on ways to improve the program.
COMMENT #16: A commenter stated the 2.99% restoration was a start, but outpatient hospitals were reduced an additional 10% during other reduction rules and were subjected to the elimination of provider-based clinics.
RESPONSE #16: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #17: A commenter requested the underlying financial and other materials supporting the proposed rule changes, including providing individual hospital impact analysis.
RESPONSE #17: The department included forecasted impact by provider type in the fiscal impact section of the Notice of Public Hearing on Proposed Amendment for this rule notice. The department does not produce forecasted impact analyses for individual providers. The department modeled claims data utilizing versions 35 of the DRG grouper. As part of the department's standard annual process, the modeling re-centered the national APR-DRG weights to a case mix of 1.0. Without any changes to the hospital base rates, the anticipated impact was budget neutral. The base rates were increased due to the budget restoration.
COMMENT #18: A few commenters addressed providers lowering wages, increasing the difficulty in finding employees to provide services for those at risk for institutionalization.
RESPONSE #18: The decision to lower wages is that of the provider, not the department. The department does recognize the difficulty in recruiting and retaining trained direct care workers.
COMMENT #19: One commenter stated they were unable to bill at the old higher rate with little direction from the department who should be working with the fiscal intermediary to fix this issue.
RESPONSE #19: The department thanks the commenter for the information. The department will provide additional information to providers on how to ensure they receive the increase reimbursement.
COMMENT #20: One commenter inquired about the timely response in implementing fee schedules.
RESPONSE #20: The department thanks the commenter for the question. The department will continue to communicate with providers and implement system changes to ensure timely implementation of fee schedule increases.
COMMENT #21: A commenter asked for a future review of all cuts in services and hours for some individuals.
RESPONSE #21: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #22: One commenter acknowledged the difficulty of the reductions on all parties and thanked the department for having collaboration on how to move forward.
RESPONSE #22: The department appreciates the comment.
COMMENT #23: One commenter reminded the department that restoration funds should not be used to raise direct care wages, as that funding is available in HB 638.
RESPONSE #23: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #24: One commenter stated trust needed to be restored with the department. Assisted Living is aging in place. House Bill (HB) 17 would have helped the industry with a rate increase but the department did not implement it.
RESPONSE #24: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #25: Comments were received that assisted living providers should be included in the direct care wage increase of HB 638.
RESPONSE #25: The department acknowledges the commenter's statements while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #26: A commenter stated that the rule is not clear about funding; therefore it cannot be determined if the department is doing enough or what kind of funding is available as compared to what is distributed in this rule.
RESPONSE #26: The department acknowledges the commenter's statement. The department has explained the reasons for these rule changes and the funding utilized in the Statement of Reasonable Necessity in the Notice of Public Hearing on Proposed Amendment for this rule proposal.
COMMENT #27: A few comments were received about the adequacy of the assisted living rate and problems remain on how rates are determined.
RESPONSE #27: This rule notice does not address the adequacy of the rate for a specific service; the scope is to increase provider rates equally among provider types.
COMMENT #28: One commenter stated restricted access to Assisted Living is silly as it is a cost effective alternative.
RESPONSE #28: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #29: A few commenters stated that adding Utilization Management for Substance Use Disorder (SUD) treatment burdens providers with administrative tasks rather than providing services to individuals. Additionally, one commenter stated that Utilization Management delays access to services for high need clients.
RESPONSE #29: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #30: A few commenters thanked the department for agreeing to work with providers regarding targeted case management and stated that they would like to meet with the department to discuss options.
RESPONSE #30: The department appreciates the comment. The governor directed the department to create a plan for efficient and fiscally sound case management across Montana. Additional improvements to care/case management services across the Medicaid program are being analyzed by the department. The department looks forward to discussing existing and potential care/case management models with providers.
COMMENT #31: A few commenters stated that the department made a mistake in reimbursing group therapy and assessments for SUD at the same rate as group therapy and assessments for mental health. The commenter states that the lowering of the group therapy rate essentially closed intensive outpatient therapy for SUD.
RESPONSE #31: The department acknowledges the commenter's statement while recognizing that the subject is outside the scope of this rule change. The department will incorporate the feedback into the broader program improvement recommendation list.
COMMENT #32: A commenter thanked the department for restoring high-cost dental procedures but stated that it doesn't undo the harm that was caused by cutting these procedures in the first place to providers of dental services.
RESPONSE #32: The department acknowledges the commenter's statement.
COMMENT #33: One commenter stated that the harsh reality is that restoring the reimbursement for Developmental Disability Programs still leaves programs short, as they were short prior to the rate reductions. The commenter requests the governor and the department look closely at the quality services for developmentally delayed youth and adults in this state for the next legislative section.
RESPONSE #33: The department acknowledges the commenter's statement while recognizing the subject is outside the scope of this rule change. The department will incorporate this feedback into the broader program improvement recommendation list.
COMMENT #34: A few commenters requested additional information about when and how the rate restoration will be implemented.
RESPONSE #34: The department will communicate with Medicaid providers about exact details on this process on or after October 20, 2018, when these rule amendments are finalized.
COMMENT #35: One commenter stated it was the legislative intent for the CorCivic money to go into a state special revenue account, with $15 million going to fire suppression and the balance to fund restoration of cuts. In addition, it was lined out in the bill what was meant by restoration, including the most vulnerable populations and the least restrictive environment. The commenter wishes the legislative intent was clearly articulated in this rule making. Another commenter expanded on this to state that it is not particularly clear which money and which funding sources are being spent
RESPONSE #35: The department acknowledges these comments while recognizing that this subject is outside the scope of this rule change.
5. With the exception of the changes in ARM 37.85.105(3)(e) and 37.86.1006 (restoring certain high-cost dental procedures), the department intends to apply these rule amendments retroactively to July 1, 2018. The department intends to apply the changes in ARM 37.85.105(3)(e) and 37.86.1006 retroactively to October 1, 2018. A retroactive application of the proposed rule amendments does not result in a negative impact to any affected party.
/s/ Brenda K. Elias /s/ Sheila Hogan Brenda K. Elias Sheila Hogan, Director Rule Reviewer Public Health and Human Services
Certified to the Secretary of State October 9, 2018.
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