| HOME | SEARCH | ABOUT US | CONTACT US | HELP | ||
 |
 |
|
|
| Montana Administrative Register Notice 37-517 | No. 24 12/23/2010 | |
|
||
| Prev | Next | ||
|
BEFORE THE Department of Public health and human services of the STATE OF MONTANA
TO: All Concerned Persons
1. On September 23, 2010 the Department of Public Health and Human Services published MAR Notice No. 37-517 pertaining to the proposed adoption and repeal of the above-stated rules at page 2053 of the 2010 Montana Administrative Register, Issue Number 18.
2. The department has adopted New Rules I (37.106.1411), III (37.106.1420), IV (37.106.1425), V (37.106.1430), VII (37.106.1435), VIII (37.106.1440), IX (37.106.1450), X (37.106.1452), XI (37.106.1454), XII (37.106.1460), XIII (37.106.1462), XV (37.106.1475), XVI (37.106.1480), XVII (37.106.1482), and XXI (37.106.1491) as proposed.
3. The department has adopted the following rules as proposed with the following changes from the original proposal. Matter to be added is underlined. Matter to be deleted is interlined. New Rule II (37.106.1413), VI (37.106.1432), XIV (37.106.1470), XVIII (37.106.1485), XIX (37.106.1487), and XX (37.106.1489). NEW RULE II (37.106.1413) DEFINITIONS In addition to the terms defined in 53-24-103, MCA, the following definitions shall apply in the interpretation and enforcement of the rules in this subchapter: (1) through (15) remain as proposed. (16) "First aid" means emergency treatment by someone who has received appropriate training. The provider and all staff who provide or supervise client care must complete required training and hold current certification in first aid and cardiopulmonary resuscitation (CPR). (17) through (23) remain as proposed.
AUTH: 50-5-103, 53-24-208, 53-24-301, MCA IMP: 50-5-101, 50-5-103, 53-24-208, 76-2-411, MCA
NEW RULE VI (37.106.1432) PERSONNEL FILE REQUIREMENTS (1) The administrator or designee must ensure there is a current secured personnel file for each employee (a) and (b) remain as proposed. (c) evidence that all staff who provide or supervise client care have current and valid certification in cardio-pulmonary resuscitation (CPR) and in first aid techniques; (d) through (e) remain as proposed. (f) evidence of an independent contractor status and contractual agreements for (g) through (j)(iii) remain as proposed.
AUTH: 50-5-103, 53-24-208, MCA IMP: 50-5-101, 50-5-103, 53-24-208, MCA
NEW RULE XIV (37.106.1470) FACILITY REQUIREMENTS (1) through (8)(a)(iv)(B) remain as proposed. (C) a wardrobe, (9) through (15)(a) remain as proposed.
AUTH: 50-5-103, 53-24-208, MCA IMP: 50-5-101, 50-5-103, 53-24-208, 76-2-411, MCA
NEW RULE XVIII (37.106.1485) HALFWAY HOUSE COMMUNITY-BASED PARENT AND CHILDREN RESIDENTIAL HOMES (ASAM LEVEL III.3 – MEDIUM INTENSITY) (1) The community-based parent and children residential homes for individuals with substance use disorders serve parent(s) with dependent child(ren) who are in need of 24-hour supportive housing while undergoing on- or off-site treatment services for substance use disorder and life skills training for independent living. To be licensed to provide community-based parent and children residential homes for individuals with substance use disorders ASAM Level III.3 medium intensity treatment, a provider must meet the following: (a) 24-hour staffing patterns or security patterns to afford sufficient security to assure the safety of residents, with the availability of 24-hour telephone consultation of a licensed clinician with competence in the treatment of substance dependence disorders. Staffing (i) and (ii) remain as proposed. (iii) case managers that have a minimum of two years of higher education or four or more years of related work experience and orientation to the (iv) through (b)(viii) remain as proposed.
AUTH: 50-5-103, 53-24-208, MCA IMP: 50-5-101, 50-5-103, 53-24-208, 53-24-209, 76-2-411, MCA
NEW RULE XIX (37.106.1487) HALFWAY HOUSE SINGLE GENDER RESIDENTIAL HOMES (ASAM LEVEL III.5 – HIGH INTENSITY) (1) The community-based single gender residential homes for individuals with substance use disorders serve individuals who are in need of 24-hour supportive housing while undergoing on- or off-site treatment services for substance use disorder and life skills training for independent living. To be licensed to provide community-based single gender residential homes for individuals with substance use disorders ASAM Level III.5 high intensity treatment, a provider must meet the following: (a) 24-hour staffing patterns or security patterns to afford sufficient security to assure the safety of residents, with the availability of 24-hour telephone consultation of a licensed clinician with competence in the treatment of substance dependence disorders. Staffing (i) and (ii) remain as proposed. (iii) case managers that have a minimum of two years of higher education or four or more years of related work experience and orientation to the (iv) through (b)(vi) remain as proposed.
AUTH: 50-5-103, 53-24-208, MCA IMP: 50-5-101, 50-5-103, 53-24-208, 53-24-209, 76-2-411, MCA
NEW RULE XX (37.106.1489) HALFWAY HOUSE SINGLE GENDER COMMUNITY-BASED RESIDENTIAL HOMES (ASAM LEVEL III.3 – MEDIUM INTENSITY) (1) Community-based single gender residential homes for individuals with substance use disorders may be located in residential neighborhoods, comparable to other homes in the neighborhood, and shall reflect the environment of a home. To be licensed to provide community-based residential homes for individuals with substance use disorders ASAM Level III.3 medium intensity treatment, a provider must meet the following: (a) staffing or security measures sufficient to assure the safety of residents, staffing requirements may include but are not limited to: (i) and (ii) remain as proposed. (iii) case managers that have a minimum of two years of higher education or four or more years of related work experience and orientation to the (iv) through (b)(v) remain as proposed.
AUTH: 50-5-103, 53-24-208, MCA IMP: 50-5-101, 50-5-103, 53-24-208, 53-24-209, 76-2-411, MCA
4. The department has adopted the following New Rule in response to a comment.
NEW RULE XXII (37.106.1415) APPLICATION OF OTHER RULES (1) To the extent that other licensure rules in ARM Title 37, chapter 106, subchapter 3 conflict with the terms of this subchapter, the terms of this subchapter shall apply to a chemical dependency facility.
AUTH: 50-5-103, 53-24-208, MCA IMP: 50-5-101, 50-5-103, 53-24-208, 53-24-209, 76-2-411, MCA
5. The department has repealed ARM 37.27.128, 37.27.129, 37.27.130, and 37.27.135 as proposed.
6. 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 commenter objects to Rule II(16) (37.106.1413) and Rule VI(1)(c) (37.106.1432) regarding current certification in first aid and CPR indicating the requirement is burdensome for large organizations with over 135 employees. Commenter recommends that the requirement be changed to one on-duty staff member per shift per facility be certified in first aid and CPR.
RESPONSE #1: The department's intent was to require first aid and CPR certification for only those providers, employees, trainees, students, and contract staff who provide or supervise client care. Rule II(16) (37.106.1413) and Rule VI(1)(c) (37.106.1432) will be amended to indicate the intent of the certification requirements. Commenter recommends that Rule VI(1)(b) (37.106.1432) be changed to require "a criminal background check" for each person having direct contact with clients rather than "a criminal justice information network background check".
COMMENT #2: One commenter recommended that proposed New Rule VI be changed to require a "criminal background check" for each person having direct contact with clients, rather than "a criminal justice information network background information check."
RESPONSE #2: The department disagrees with the recommendation. A criminal justice information network (CJIN) background check provides more detailed information on charges and convictions outside the public domain.
COMMENT #3: One commenter recommends that "for interns" in Rule VI(1)(f) (37.106.1432) be deleted as interns are not independent contractors.
RESPONSE #3: The department will delete "interns" from the rule as the requirements for trainee/interns and volunteers are addressed in Rule VII (37.106.1435).
COMMENT #4: One commenter recommends that the words "student and volunteer" be deleted from Rule VI (37.106.1432) as requirements for students and volunteers are addressed in Rule VII (37.106.1435) and commenter indicates the requirements may not be feasible for students who may be observing in the facility on a short-term basis.
RESPONSE #4: The department has amended Rule VI (37.106.1432) to indicate all employees and trainees and those students, volunteers, and contract staff who provide or supervise client care must have personnel files that meet the specified requirements.
COMMENT #5: One commenter objects to the requirement in Rule XIV (4)(g) (37.106.1470) that each facility must have an annual inspection by the local fire authority and indicates that the Fire Department will not inspect residential homes.
RESPONSE #5: The language in Rule XIV(4)(g) (37.106.1470) indicates "local fire authority" not limiting inspections to fire departments specifically. The State Fire Marshal or State Fire Marshal's designee may also have jurisdiction over licensed facilities. These residential facilities are licensed facilities and therefore subject to annual fire inspections for the safety of residents and staff.
COMMENT #6: One commenter recommended Rule XIV(6)(i) (37.106.1470) be changed to require only a mattress cover rather than both a mattress cover and a mattress pad and indicated a mattress cover is sufficient to assure sanitation.
RESPONSE #6: The department believes that both a mattress cover and mattress pad are necessary for the resident's comfort and to assure proper sanitation and therefore will require both to be used in these chemical dependency facilities. Replacing mattress pads and mattress covers is more cost-effective than replacing mattresses should mattresses become "soiled" and therefore unusable.
COMMENT #7: One commenter objects to the requirement in Rule XIV(7)(a)(iv) and (v) (37.106.1470) that the provider must provide hand cleansing soap and individual towels in a sober housing or community residential facility.
RESPONSE #7: The department believes the rule is written to provide flexibility in sober housing and community residential facilities by indicating that the provider must ensure hand cleansing soap and individual towels are provided. This language allows the provider to require residents to provide these items as a condition of residency. The provider's policies and procedures should address how this will be accomplished.
COMMENT #8: One commenter recommended that "closet" be added to Rule XIV(8)(a)(iv)(C) (37.106.1470) as an additional option for clothes storage.
RESPONSE #8: The department was hesitant to include closet as an option because some undergarments are more suited for drawers than for hanging while dressers can more easily accommodate all clothes. The department will amend the rule to include use of a closet with shelving to provide an additional option for clothes storage. COMMENT #9: One commenter objects to the requirement in Rule XIV(12)(b) (37.106.1470) that the facility must assure adequate housekeeping services and supplies as their community residential facilities require residents to do their own housekeeping and purchase their own housekeeping supplies. In addition, it is important for the residents to accept the responsibility for keeping their homes clean.
RESPONSE #9: This language allows the provider to assure adequate housekeeping services and supplies as a condition of residency and does not require provision of these services and supplies to be the responsibility of the provider. The provider's policies and procedures should address how this will be accomplished.
COMMENT #10: One commenter objected to the requirement in Rule XXI(1)(a)(iii) (37.106.1491) that case managers in halfway house community-based single gender residential homes have a minimum of two years of higher education. The requirement would eliminate a staff member with two or more years of related experience but no college from functioning as a case manager for sober housing residents. Commenter's facility has several staff members with a background in recovery who have the knowledge and experience to function more effectively as case managers than an individual with two years of college but no experience. The employer should be allowed to determine the qualifications for a case management position.
RESPONSE #10: The department agrees that appropriate work experience may substitute for college education. The department will amend Rules XVIII (37.106.1485), XIX (37.106.1487), and XX (37.106.1489) to allow appropriate work experience. In adding this language, it was noticed that "and" was inadvertently omitted at the end of the Rule XX(1)(a)(iii) (37.106.1489), but will be added to make this subsection consistent with Rules XVIII (37.106.1485), XIX (37.106.1487), and XXI (37.106.1491).
COMMENT #11: The commenter objects to the requirement in Rules XVIII (37.106.1485) and XIX(1)(a) (37.106.1487) which require 24-hour staffing patterns for ASAM Level III.3 and III.5 residential homes. Commenter states when the clients are adults and facility is secured with alarms and cameras, it is not necessary to have 24-hour staffing to assure the safety of the residents. Because of the expense of providing 24-hour staffing, it becomes cost prohibitive to offer these levels of care which is contrary to the intent of the policy of Addictive and Mental Disorders Division to expand these service levels.
RESPONSE #11: The department understands the commenter's concerns and has determined it to be feasible to incorporate the concepts of the comments into these rules.
COMMENT #12: One comment was received regarding the use of the phrase "requirements include but are not limited to the following:". Commenter indicates the language gives the reader the impression that there are other department requirements that are not stated in the rules and recommends that the use of this phraseology be clarified wherever it appears in the notice.
RESPONSE #12: The department understands the commenter's concerns. For decades, use of the phrase "requirements include but are not limited to the following:" or some variation thereof has been usual and customary in promulgating rules. In looking at just the 2010 Montana Administrative Register, Issues 15 through 20, the Departments of Revenue, Labor and Industry, Livestock, Public Service Regulation, and Environmental Quality used this language. The scenario is similar for Registers published in other years.
The common usage stems from contract language to indicate that the items may be part of a larger list and are not necessarily exclusive. It is inferred that what is listed is what is required under the specific rule; however, there may be other provisions applicable through some other authority. Depending upon the situation, other provisions of law, administrative rule, or local regulation may be applicable. In retrospect, the department was remiss and should have included a new rule with language that is commonly used in other health care facility licensure rules to indicate applicability of the health care facility minimum standards rules. This language will be inserted as the first rule in these chemical dependency facility rules.
These rules are the minimum requirements of the department necessary for chemical dependency programs. Nothing in these rules prohibits the provider from imposing other requirements as they deem necessary to meet the needs of their programs.
COMMENT #13: One comment was received indicating that the reasonable necessity statement for various rules did not address the "particular approach" taken or why the requirements were written like they were.
RESPONSE #13: The department acknowledges that the "particular approach" used was not cited for each of the individual rules. However, paragraph 5 generally addresses why the rules were proposed as they were. The department engaged stakeholders, providers, and others to develop the basis for the proposed rules. In doing so, this is the approach deemed by the department as most appropriate to implement through rule what was previously accomplished through contracts and nationally accepted substance use disorder treatment protocols. Using a joint statement instead of repeating information for individual rules avoids duplication and redundancy, makes the rule notice less cumbersome, and reduces cost.
7. The department intends the rules amendments to be applied effective July 1, 2011.
/s/ John Koch /s/ Anna Whiting Sorrell Rule Reviewer Anna Whiting Sorrell, Director Public Health and Human Services
Certified to the Secretary of State December 13, 2010
|
A directory of state agencies is available online at http://www.mt.gov/govt/agencylisting.asp.
For questions about the organization of the ARM or this web site, contact sosarm@mt.gov.
