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| Montana Administrative Register Notice 37-518 | No. 1 01/13/2011 | |
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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 23, 2010, the Department of Public Health and Human Services published MAR Notice No. 37-518 pertaining to the public hearing on the proposed adoption, amendment, and repeal of the above-stated rules at page 2085 of the 2010 Montana Administrative Register, Issue Number 18.
2. The department has adopted New Rule I (37.87.1011), III (37.87.1015), IV (37.87.1017), V (37.87.1021), VI (37.87.1023), and VII (37.87.1025) as proposed.
3. The department has amended ARM 37.86.2207 and repealed ARM 37.86.2219 and 37.86.2221 as proposed.
4. The department has adopted the following rule 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 (ARM 37.87.1013) THERAPEUTIC GROUP HOME (TGH), REIMBURSEMENT (1) through (1)(b) remain as proposed. (2) The therapeutic (a) " (b) "Therapeutic intervention" means interventions provided by the LCS or the PM under the supervision of the LCS to provide youth with activities and opportunities to improve social, emotional, and/or behavioral skill development and reduce symptoms of the youth's serious emotional disturbance. Interventions include implementing behavior modification techniques and offering psycho-educational groups and activities. Interventions may be provided to the youth individually, in a group setting or with the youth and family. (3) The purpose of the therapeutic services in (2) is: (a) to reduce the impairment of the youth's mental disability and to improve the youth's functional level; (b) to alleviate the emotional disturbances; (c) to reverse or change maladaptive patterns of behavior; and (d) to encourage personal growth and development. (3) through (6)(c) remain as proposed but are renumbered (4) through (7)(c).
IMP: 53-2-201, 53-6-101, 53-6-111, MCA
5. The department has amended the following rules as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:
37.86.2206 EARLY AND PERIODIC SCREENING, DIAGNOSTIC AND TREATMENT SERVICES (EPSDT), MEDICAL AND OTHER SERVICES (1) through (2)(g) remain as proposed. (3) The therapeutic portion of TGH, TFC, and TFOC must be prior-authorized by the department or their designee before services are provided. (a) Review of authorization requests by the department or its designee will be made consistent with Children's Mental Health Bureau's (CMHB) Provider Manual and Clinical Guidelines for Utilization Management
IMP: 53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA
37.87.702 MENTAL HEALTH CENTER SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE (SED), DEFINITIONS For purposes of this subchapter, the following definitions apply: (1) "Community-based psychiatric rehabilitation and support (CBPRS)" means rehabilitation services provided in home, school, and community settings for youth with serious emotional disturbance (SED) who are at risk of out of home or residential placement, or risk removal from current setting for youth under six years of age. CBPRS services are provided for a short period of time, generally 90 days or less, to improve or restore the youth's functioning in one or more of the (2) through (11) remain as proposed.
AUTH: 53-2-201, 53-6-101, 53-6-113, MCA IMP: 53-2-201, 53-6-101, 53-6-111, MCA
37.87.703 MENTAL HEALTH CENTER SERVICES FOR YOUTH WITH SERIOUS EMOTIONAL DISTURBANCE (SED), COVERED SERVICES (1) Mental health center services for youth with serious emotional disturbance include: (a) Community-based psychiatric rehabilitation and support (CBPRS) services: (i) are provided on a face-to-face basis primarily with a youth, and may also include consultation (ii) through (iii) remain as proposed. (iv) do not require prior authorization when provided on the same day as CSCT, Day Tx, or partial hospital services, if CBPRS is provided before or after program hours. This includes both individual and group CBPRS. Documentation of CBPRS must include time in and time out to show that CBPRS was not provided during program hours; (v) are not allowed when the service to be provided is: (A) through (D) remain as proposed. (E) in a (F) through (g)(i)(B) remain as proposed.
AUTH: 53-2-201, 53-6-101, 53-6-113, MCA IMP: 53-2-201, 53-6-101, 53-6-111, MCA
37.87.901 MEDICAID MENTAL HEALTH SERVICES FOR YOUTH, REIMBURSEMENT (1) Medicaid reimbursement for mental health services shall be the lowest of: (a) remains as proposed. (b) the rate established in the department's fee schedule. The department adopts and incorporates by reference the department's Medicaid Mental Health and Mental Health Services Plan, Individuals Under 18 Years of Age Fee Schedule dated (2) remains as proposed. (3) The department will not reimburse providers for two services that duplicate one another on the same day. The department adopts and incorporates by reference the Medicaid Mental Health Plan and Mental Health Services Plan for Youth Services Excluded from Simultaneous Reimbursement (Service Matrix) effective
IMP: 53-2-201, 53-6-101, 53-6-111, MCA
37.87.903 MEDICAID MENTAL HEALTH SERVICES FOR YOUTH, AUTHORIZATION REQUIREMENTS (1) through (5) remain as proposed. (6) Review of authorization requests by the department or its designee will be made with consideration of the department's clinical management guidelines. The department adopts and incorporates by reference the Children's Mental Health Bureau's Provider Manual and Clinical Guidelines for Utilization Management dated (7) and (8) remain as proposed.
IMP: 53-2-201, 53-6-101, 53-6-111, MCA
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: Referring to the definition of therapeutic services in proposed New Rule ll (37.87.1013), if only rehabilitative remedial versus psychotherapy services are provided, can the lead clinical staff (LCS) providing services hold a license, be credentialed, or be otherwise qualified without being a licensed clinician?
RESPONSE #1: The term "therapeutic services" will be changed to "therapy" in New Rule ll (37.87.1013) and the term "remedial" removed. Both rehabilitative and psychotherapy are terms used to define "therapy" services provided in a therapeutic group home (TGH) versus clinic setting. The department believes the LCS needs to be a licensed clinical psychologist, (psychologist) licensed master level social worker (MSW), or licensed clinical professional counselor (LCPC) to provide therapy in a TGH according to the definition in New Rule ll (37.87.1013). The department believes the LCS should be a licensed psychologist, MSW or LCPC to assure a minimum level of clinical competency in providing and supervising the delivery of mental health treatment services to youth with a serious emotional disturbance (SED) in a TGH. The department believes clinical competency is gained through the education and experience needed in attaining professional licensure.
Based on comments received in the rule making process, changes will be made to the licensing requirements regarding the amount of therapy required by the LCS and to allow some therapeutic intervention services to be provided by the program manager (PM). The department is adding a new definition for "therapeutic intervention", PMs may provide as part of the TGH treatment requirements for licensure. Both "therapy" and "therapeutic intervention" are therapeutic services for SED youth in a TGH.
COMMENT #2: Several commenters think the proposed rule changes represent a major change in options for providers in designing services for SED youth. SED is a broad label that covers a wide variety of problems for youth in the system. These changes take the flexibility out of providing TGH services for these youth.
Since 1990, when the first intensive TGH was created, the role of the LCS has been challenged. One group believes the LCS should be a licensed clinician like a licensed clinical professional counselor (LCPC), licensed clinical social worker (LCSW), or other licensed individual. The other line of thought was that the LCS should be a master's level position that did not require licensure, like individuals with a master's degree in education or public administration with experience in providing treatment. The two lines of thought on this topic have their pros and cons. The commenters have used and would like to continue using nonlicensed, experienced individuals in the LCS position. One commenter also requested existing staff that do not meet the new requirements be "grandfathered" in.
The first LCS in the state that designed one commenter's TGH system was not licensed, but had an important combination of skills and experience. The person had a master's degree in education and several years of experience managing the children's unit run by the state. While these examples are important, the most important combination of skills and education that is functionally eliminated from our system are individuals with advanced certification in applied behavior analysis (ABA). These individuals will no longer be able to hold a LCS position resulting in the elimination of existing employees from current jobs and prevent TGHs from employing individuals with these levels of education in the future. This restriction in a state that does not have an abundance of licensed professionals seems detrimental to a system that can barely find the individuals they need now. Another commenter says licensed clinicians are not necessarily trained or have the background to deliver evidence based approaches such as ABA.
For many years and even today, psychiatry has been unavailable to provider organizations. The commenter has implemented a system over the last 15 years with over 12 psychiatrists that work with their organization, which cannot be easily duplicated. The commenter uses psychiatrists for direct supervision of their residential program.
One commenter will have to use an employment strategy and treatment system that has not demonstrated the results consistently needed for quality services. The commenter created a residential program that provides services to some of the most difficult cases in the state, and delivers more than the minimum required services for the same reimbursement as other providers. The commenter claims it is being made to mothball that system for a system that has not been able to produce comparable results over the past 22 years.
These changes will limit the number and type of employee used over the last 22 years and will shrink the number of youth eligible for the program. This limit will include youth the state has a limited capacity to get services for in-state.
In some parts of the department extreme efforts are being undertaken to secure more staff with alternate education programs like the behavior certified applied behavior analysis (BCABA or ABA) courses being offered by Montana State University-Billings (MSU-B) and being implemented and mandated by the Developmental Disabilities Program (DDP). ABA is the preferred treatment for individuals with autism, developmental disabilities and/or individuals with suppressed intellectual capacity due to their mental health challenges. The rule as proposed eliminates staff qualified by alternate educational programs like ABA and prevents youth with autism and dually diagnosed youth with developmental disabilities and mental illnesses from being served in TGHs without incurring additional costs. These costs would be prohibitive to the operation of those programs.
The commenter alleges it will be forced to lay off staff and begin the process of moving children currently in services to services that allow the necessary flexibility to use approaches like ABA and other approaches that are not best offered by licensed clinical staff.
The commenter believes the primary mode of treatment contemplated by the proposed rule changes is "talk therapy" exclusively. It is the commenter's belief that only a limited population of youth benefit from this approach. The available research supports the commenter's claims on this matter.
While commenter will adjust their program to serve youth allowed by the rule change, some youth will need the kind of approaches used since 1990. These approaches will either not be allowed or will be too expensive to offer.
RESPONSE #2: The department assumes commenter is referring to New Rule II(2)(a) (37.87.1013) regarding the new definition of therapeutic services and LCS requirements. The department appreciates the commenter's work with difficult-to-serve youth and for building psychiatric service capacity. In some cases, commenter was reimbursed more than other residential providers to serve difficult youth.
Proposed New Rule ll (37.87.1013) defines TGH "therapeutic services" and requires they be provided by the LCS within their scope of practice as a licensed psychologist, MSW or LCPC . The term "therapeutic services" is being changed to "therapy" and a new definition for "therapeutic intervention" will be added to the rule per response #1. Licensing rules will be changed to allow the PM to provide some of the required therapeutic services. This change is being made to allow TGH staff who are not a licensed psychologist, MSW or LCPC as the PM to provide specialized services such as ABA to TGH clients, because commenter works with SED/DD and autistic youth.
Interactive psychotherapy will be added to the definition of "therapy". Interactive means using play equipment, physical devices, language interpreter or other mechanisms of nonverbal communication. Proposed New Rule ll (37.87.1013) will be updated to reflect this change.
Current TGH licensing ARM requires the LCS to be a clinical psychologist, master level social worker (MSW) or have a master's degree in a human services field with a minimum of one year clinical experience. ARM 37.87.702(3) defines "In-training mental health professional services" as services provided under the supervision of a licensed mental health professional by an individual who has completed all academic requirements for licensure as a psychologist, clinical social worker, or licensed professional counselor and is in the process of completing the supervised experience requirement for licensure.
The department understands some individuals with a master's degree in social work, counseling or psychology may not meet the Department of Labor's professional licensing requirements. The department believes the LCS should be a licensed psychologist, MSW or LCPC to assure a minimum level of clinical competency in providing mental health services to SED youth. Nothing in these rules would prohibit a licensed psychologist, MSW or LCPC from becoming ABA certified.
The definition of SED is broad and includes many different mental disorders and functional impairments well outside normal developmental expectations and severe behavioral abnormalities not attributable to intellectual, sensory, or health factors for at least a six-month period or obvious predictable period of six months. The definition of "therapy" is broad enough to encompass the diverse needs of SED youth being served. The definition includes a combination of supportive interactions, cognitive therapy and behavior modification techniques, and will be updated to include interactive psychotherapy to provide therapeutic change for youth in TGH, not exclusively "talk therapy".
Many TGH providers already use licensed clinicians in their programs. Licensing rules will allow TGH providers time to come into compliance with the new LCS requirement and not grandfather existing staff into these positions. The use of in-training professionals is allowed and the PM can provide some of the required therapeutic services. The department believes this addresses the commenter's concerns regarding capacity issues.
COMMENT #3: Many commenters were concerned about the TGH cost report, assumptions made from the cost report and the occupancy rate used in the cost report. Several commenters thought the department should obtain current occupancy rates prior to making the proposed rule changes. The commenters said the department agreed not to impose additional requirements on TGH providers unless additional funds were available to cover the new costs. The commenters say the proposed rule changes will include additional costs. Several had concerns about the new LCS requirement, the added expense of providing therapy services in the group home, and not being able to use outside providers. Additional funds are not available, so the proposed rule changes should not be made. TGH reimbursement rates have been frozen and will likely be rolled back to the 2009 rate. Providers cannot continue to be expected to absorb the cost of more unfunded mandates.
The 2008 TGH cost report was flawed. The report was not presented formally to providers for discussion, adjustment and agreement. The average TGH expenses and occupancy rate were not discussed with providers before the rule was filed.
In the work groups dating back to 2004, the department said that costs would be based on an 80% occupancy rate. Several commenters believe 80% is more realistic and accurate. In the 1980s, prior to Medicaid reimbursement for TGHs, the department's "rate matrix" was based on an 80% occupancy rate.
Most TGH providers solely serve Medicaid clients. TGH expenses must be based on expected revenue. Fewer than half of TGH providers raise enough donations to subsidize reimbursement rates. Therefore, TGH expenses are expected to be below revenue.
RESPONSE #3: The department completed a cost report of TGHs for state fiscal year (SFY) 2008. Expenses were divided into four categories: (1) room and board; (2) nonlicensed observation and support; (3) licensed therapies; and (4) education. One of the 14 TGH providers did not complete the cost report. Three TGH providers who completed the cost report did not report expenses in the "licensed therapies" category and were not included in calculating the average cost of TGH "licensed therapies". The "licensed therapies" category included expenses for both licensed and nonlicensed clinicians. Medicaid reimbursement is not available for categories (1) room and board or (4) education. Based on the TGH cost report, the average cost per day for all TGH providers for category (3) licensed therapies was $23.25 per day. The average cost for TGH providers for category (2) nonlicensed observation and support was $148.47 per day. The total of these two categories is $171.72 per day. At the SFY 2011 TGH reimbursement rate of $183.98, the department is reimbursing TGH providers 7% more than the average cost of providing the Medicaid portion of TGH services. If the TGH reimbursement rate for SFY 2012 is rolled back to the SFY 2009 reimbursement rate of $180.37, the TGH reimbursement rate is 5% more than the average cost of providing the Medicaid portion of TGH services.
The department does not believe the SFY 2008 TGH cost report was flawed. The financial information and average occupancy levels used in the report were based on actual data submitted by the TGH providers, and not occupancy rates used in the past. In SFY 2008 the average occupancy rate was 88%. The department did not agree to use an 80% occupancy rate. TGH providers received a draft cost report of their expenses to review and the department gave providers a chance to respond to anything they disagreed with in the cost report. TGH providers did not disagree with the utilization data they submitted on the cost report which was used to calculate the average occupancy rate.
The department carefully considered what additional requirements should be expected in a TGH reimbursed by Medicaid and which ones could include an additional expense. The department believes therapy services provided by appropriately trained and credentialed individuals should be required in group homes reimbursed by Medicaid. Other changes in TGH licensing requirements have been made in an attempt to offset additional costs. The department would like to point out that only 13.5% of the Medicaid portion of the cost report expenses reflect "licensed therapies." The department believes the TGH Medicaid daily rate should include more licensed therapeutic services to treat SED youth.
The department does not have data on current occupancy rates, and does not think it is reasonable to use current occupancy levels with SFY 2008 expenses.
COMMENT #4: In the development of these rules the department emphasized the importance and primary goal of implementing evidence and research-based treatment. These goals are not reflected in the proposed rule. Have they been abandoned? There is no mention of providers having the capacity to report outcomes. The state has data available and could require providers to report data to be used in making decisions.
RESPONSE #4: The department believes this comment is outside of the scope of the proposed rule changes. The department is not requiring the use of evidence-based practices in these rules. The department supports provider efforts to implement evidence-based practices using current Medicaid reimbursement methodology. The department agrees with the suggestion to require providers to report data and outcomes, but will not do so at this time.
COMMENT #5: Regarding proposed New Rules l and lll (37.87.1011 and 37.87.1015), one commenter would like clarification on whether incorporating the Children's Mental Health Bureau's (CMHB) Provider Manual and Clinical Guidelines for Utilization Management (provider manual) in the rule would require notice and opportunity for comment through the rulemaking process should any future changes be made. These amendments would have the force and effect of modifying this set of rules.
RESPONSE #5: Yes. The provider manual was included in the first MAR Notice 37-518 and posted on the CMHB's web site for review during this rulemaking process. If future changes are needed in the provider manual, the rule process will be followed, giving interested parties time to review the manual and make comments on the proposed changes. (Please note the dated version of the provider manual is incorporated by ARM 37.87.903(6).)
COMMENT #6: Referring to proposed New Rule ll (37.87.1013), does the requirement for TGH providers to meet the requirements in the provider manual require TGH providers to meet licensing standards as a licensed mental health center (MHC) and a TGH?
RESPONSE #6: No.
COMMENT #7: Referring to proposed New Rule II(5) (37.87.1013), Medicaid does not reimburse for room and board, maintenance, or any other nontherapeutic component of TGH services. However Medicaid does cover the cost for these components in PRTF or hospital level of care. This reimbursement disparity is a disincentive for community placement and an incentive for higher levels of care where board and room is paid. The commenter would like the department to begin a conversation with the Centers for Medicare and Medicaid (CMS) for consideration of paying room and board in TGH.
RESPONSE #7: The limit on Medicaid reimbursement for TGH room and board is not new. The comment is outside the scope of the proposed rule change.
COMMENT #8: Referring to proposed New Rule lV (37.87.1017), does the requirement for therapeutic family care (TFC) and therapeutic foster care (TFOC) providers to meet the requirements in the provider manual require TFC and TFOC providers to meet licensing standards as a licensed mental health center? RESPONSE #8: No. COMMENT #9: Referencing to proposed New Rule IV (37.87.1017), several commenters do not believe the Extraordinary Needs Aide (ENA) rate is equitable, and say that because this service is paid so much lower than community-based psychiatric rehabilitation and support services (CBPRS), it will not be used. The methodology for developing the ENA rate suggests that the lowest paid, most inexperienced staff would be hired to provide this important service to manage youth with highly unmanageable behaviors. Unmanageable behaviors according to the definition of this service are behaviors that cannot be managed by existing staff. The methodology for developing the rate of $14.56 per hour is based on having the lowest paid staff person, at $9.50 an hour, provide the service. This service has successfully been used in the past to keep youth from going to higher levels of care by using experienced staff. The commenters would like the department to conduct a survey of providers who have used this service and recommend an increase in the ENA reimbursement rate.
One commenter said they agree the current practice of using CBPRS is reimbursed at a level that exceeds the cost of delivering the one-to-one service in the structure, proximity and blocks of time utilized in TGH care. They recommend the department be consistent and look at the cost allocation method developed by the DD division. A 10 to 15% rate reduction would be reasonable, the $14.56 reimbursement rate is not. This rate reinforces the state's policy to serve less intensive youth.
One commenter said the method for calculating the ENA rate appears to set the hourly salary at $9.50 an hour. The prescription of the hourly wage and control of what these individuals do is beginning to make them look a bit like state employees. If so, they should get salaries comparable to other state employees with similar duties and responsibilities.
RESPONSE #9: The department does not believe it is necessary to conduct a survey of TGH providers who have used CBPRS services for youth in a TGH. It is not the department's intent to prescribe an hourly wage to providers for ENA staff. The base rate was chosen because it is above the $8.50 an hour minimum for the direct care wage reimbursement requirement. The administrative overhead cost was the median rate from the SFY 2008 TGH cost report and the benefit rate was based on the rate the state uses for grant applications. These rates were used in projecting costs associated with this new service. The DDP method for establishing the ENA rate will not be used. The department does not believe there are any state employees in comparable positions. The department believes the ENA reimbursement rate is adequate. ENA staff must be supervised by the LCS, who should be knowledgeable about managing youth with behavior problems. The LCS is responsible for the supervision and overall provision of treatment services to youth in a TGH. It is not the department's intent to serve less intensive youth. The intent was to make one-to-one staff services available for all TGHs and to reimburse the service adequately.
COMMENT #10: Referencing to proposed New Rule IV (37.87.1017), a commenter says the ENA rate does not allow for administrative expenses or have an allocation built in for overtime expenses.
RESPONSE #10: The ENA reimbursement rate includes an administrative overhead rate of 22.59%, which was the median rate from the SFY 2008 TGH cost report. If TGHs reported costs for overtime staff in the report, they were included in developing the ENA reimbursement rate.
COMMENT #11: Referring to proposed New Rule Vll (37.87.1025), one commenter has always provided individual, group and family therapy to youth in permanency therapeutic foster care (TFOC) out of the bundled rate. The current rule is already clear that these therapies are included in the rate.
RESPONSE #11: The department testified at the public hearing for MAR Notice 37-518 that proposed New Rule VII (37.87.1025) would be withdrawn because the definition of permanency TFOC is referenced in proposed New Rule Vl(7) (37.87.1023). Proposed New Rule VI(7) (37.87.1023) references the definition of "intensive" level therapeutic family care (TFC) in ARM Title 37, chapters 37 and 97. The requirements of "intensive" level TFC in ARM Title 37, chapters 37 and 97 applies to permanency level TFOC. Medicaid no longer reimburses for intensive level TFC. Wording to this effect will be added to proposed New Rule VI(7) (37.87.1023) for clarity. The department will adopt proposed New Rule VII (37.87.1025) as originally proposed. The department is not changing the TFOC rules at this time, and is only moving the TFC and TFOC rules into the Children's Mental Health chapter in ARM Title 37, chapter 87, subchapter 10.
COMMENT #12: Referring to proposed New Rule Vll(1)(c) (37.87.1025), commenter proposes the department allow for the clinical supervision in TFOC to be provided by a child psychiatrist as well as a licensed psychologist.
RESPONSE #12: This comment is outside the scope of the proposed rule changes. The department is not changing the TFOC rules at this time, and is only moving the TFC and TFOC rules into the Children's Mental Health chapter in ARM Title 37, chapter 87, subchapter 10.
COMMENT #13: Referring to proposed New Rule Vll (37.87.1025), one commenter asks if permanency TFOC is available to youth who are permanently placed with a guardian or family member including parent or other voluntary placement not involving a formal foster care placement of custodial relationship established through Child and Family Services Division (CFSD).
RESPONSE #13: The department is not changing the TFOC rules at this time, and is only moving the TFC and TFOC rules into the Children's Mental Health chapter in ARM Title 37, chapter 87, subchapter 10.
COMMENT #14: The department noticed the provider manual referenced in ARM 37.86.2206 is dated December 1, 2010. The current provider manual dated, adopted and incorporated is in ARM 37.87.903(6). To have the provider manual dated in both rules is redundant and would require both rules be opened if changes were needed to the provider manual. When the provider manual is updated only 37.87.903 will be opened.
RESPONSE #14: The date will be removed from the provider manual referenced in ARM 37.86.2206(3)(a).
COMMENT #15: Two commenters, referring to ARM 37.87.702, do not believe the financial data provided regarding the increased utilization for CBPRS separates out the cost of CBPRS services provided for youth in a TGH, from youth not in a TGH. They wanted to see financial data that differentiates CBPRS service utilization from in and outside the TGHs, and for individual versus group CBPRS utilization (outside the TGH) to justify the proposed changes in the definition of CBPRS and the individual and group CBPRS limits.
RESPONSE #15: The significant increase in CBPRS was for CBPRS not provided to youth in a TGH. See fiscal information from CBPRS paid claims in the chart below. The data is incomplete for SFY 2010 because providers have 365 days to bill. Approximately 90% of the CBPRS not provided to youth in a TGH, was individual CBPRS versus group CBPRS. The group CBPRS limits in ARM 37.87.703(1)(a)(vi) were also added for quality assurance purposes.
COMMENT #16: One commenter, in referring to the definition of CBPRS in ARM 37.87.702, pointed out that the SED definition in ARM 37.87.303 with respect to youth under six years old does not include "spheres". The commenter asked if CBPRS will not be available to SED youth under six.
RESPONSE #16: No. CBPRS is available to SED youth under six that meet the SED criteria in ARM 37.87.303. Wording in the rule was changed to make this clear.
COMMENT #17: If the department is concerned about utilization growth in CBPRS, referring to the definition in ARM 37.87.702, it could propose a weekly maximum limit to the number of hours of CBPRS that could be provided.
RESPONSE #17: CBPRS services should be based on the individual needs of the youth. The "generally 90 days or less" definition still allows flexibility in the weekly amount of service needed by the youth. The department does not wish to limit the number of CBPRS hours per week.
COMMENT #18: Referring to the changes in the definition of CBPRS in ARM 37.87.702, one commenter believes CBPRS will only be available after a significant decline in the SED youth's level of functioning. This implies the youth must first fail before qualifying for CBPRS. This has the potential to lead to increased and more expensive services, including out-of-home placement. This service should be available at the point of diagnosis rather than waiting for the youth to become at risk of out-of-home placement or residential placement. The change in definition also represents a significant shift from a model of rehabilitation and support to one of treatment.
There is compelling evidence that demonstrates many SED youth and families succeed in managing the youth's SED when support is provided early and as often as clinically indicated. Early identification and intervention has been a core value of the system of care. The commenter would like the department to propose rules consistent with the system of care literature rather than depart from tried and proven methods of effective mental health service delivery.
RESPONSE #18: The proposed rule does not eliminate the use of CBPRS for youth under the age of six if the youth meets SED criteria. The system of care implies a larger system than just Medicaid. The Children's Mental Health Bureau focuses on youth with SED while other parts of the system (ie: the Early Childhood Services Bureau), focus on early childhood intervention. The CBPRS definition represents a shift from support to treatment or rehabilitation services to serve those youth most in need.
COMMENT #19: Many commenters were concerned about ARM 37.87.702(1) the changes in the definition of CBPRS, the time constraints of 90 days or less, limiting the service to SED youth who are at risk of out-of-home or residential placement. Most believe the changes would make partnerships between head start programs and mental health centers unavailable. Most believe children under six are not at risk of out-of-home placement. Many referenced how important and cost effective this early mental health intervention is and without these programs, later treatment would result in greater expense for tax payers. Many requested the rule be amended to avoid eliminating these programs and not place arbitrary limits on CBPRS. The service should be continued if clinically indicated after the first 90 days.
Many commenters said that preschool mental illness is a problem. One of five preschool children have a psychiatric illness. Serious mental health problems often begin early in life and carry long-term consequences.
CBPRS is making an impact in preschool mental health and federal funding is available through Substance Abuse and Mental Health Services Administration (SAMHSA) grants for early childhood mental health. The department should apply for this grant.
Several point out that children in head start come from low income families, and many of them have experienced a number of risk factors associated with mental illness. Risk factors such as poverty, physical and sexual abuse, transient life styles or homelessness, exposure to domestic violence and drug abuse. Risk factors may have a negative impact on the child's social, emotional, or cognitive development. Persistent behavior problems can affect educational attainment, proper social development, employment, and the likelihood of criminality. Research confirms that young children's social and emotional adjustment is related to early school and future success.
One head start program conducted mental health screenings for their children in the fall. Five to 10% of them were identified as needing intensive mental health support. CBPRS is provided in the classroom in partnership with a mental health center. Several models have been tried in the head start classroom, without success. Using the CBPRS model has been successful.
They also point out that CBPRS can follow and work with the youth after head start, during the summer months and in kindergarten. This head start program receives a United Way grant for their mental health program and without this model they could lose future funding.
Several commenters said many of these children would be unable to remain in head start due to their emotional instability without this service. Often there are 20 children with two adults in head start classrooms. These adults are not trained to address the children's mental health needs. CBPRS aides provide ongoing teaching, modeling, and coaching to the children and adults in the classroom. These children need more than 90 days to learn socialization, self regulation, conflict resolution, and problem solving.
Providing CBPRS only in conjunction with other mental health services is not always cost effective. When children can begin to make changes in their self-regulation by having classroom support, there often is no need for further intervention.
One commenter understands the budget implications of unlimited CBPRS utilization. However, the 90-day limit does not reflect the intensity of the service or the clinical application of the mentoring relationship. Many youth we serve have reactive attachment, post traumatic stress and mood disorders. The relationship with the CBPRS aid may just be developing at 90 days. This would create another broken relationship for the youth. Why is this effective "wrap around" service being limited?
One commenter believed this change will not accomplish the department's goal of limiting service utilization and spending. A different method not harmful to youth could have been proposed. The new limits will result in a service that is "too little, too late". Outcome data indicates CBPRS is beneficial in avoiding out-of-home care. Youth and families will not be able to access CBPRS prior to a significant decline in the youth's functioning.
Existing guidelines suggest eligibility is based on medical necessity. The proposed changes suggest all children are limited to 90 days regardless of the child's individual medical need.
Individual and group CBPRS has been invaluable since permanency level TFOC was limited to adoptive and birth families. The first 90 days is spent establishing basic physical and psychological containment so the child feels safe, assessing problem areas and building the therapeutic relationship. Outcomes are based on relationships and not simply behavioral techniques.
One commenter's use of CBPRS is similar to Selligman's research on Learned Helplessness and Dr. Bruce Perry's work, which helps children experience positive adult relationships repeatedly for each identified sphere issue. As parents and children move through treatment they get caught in negative loops. CBPRS is another level of therapeutic intervention providing hope to the parents and child and models emotional connection and behavioral interventions in the "working through stage". This stage generally lasts eight to 15 months. CBPRS staff work with other team members to reflect their internal worlds and relational dynamics, maintain positive behavioral progress and generalize behaviors for success upon discharge.
RESPONSE #19: The department uses procedure code H2019 for billing CBPRS services. This code is defined by the American Medical Association, Healthcare Common Procedure Coding System (HCPCS), 2010 Coders Desk Reference as a "therapeutic behavioral service" provided for a short period of time for SED youth at risk of placement in a restrictive treatment facility or from a group home to a higher level of care. The definition requires a staff member to provide one-to-one therapeutic assistance and intervention to SED youth receiving other specialty mental health services.
The department will use the proposed definition in rule for CBPRS and has added language to the rule specific to youth under six years of age to improve or restore their functioning in one or more impaired areas outlined in the SED definition that jeopardize their placement in their current setting, such as a head start program. Services may also be provided in the youth's home or community settings.
The department understands mental illness is a problem for youth under six, which is why there is a SED definition for youth under six in ARM 37.87.303. Youth under six must exhibit "severe" behavioral abnormality that results in substantial impairment in functioning for a period of or predictable period of six months. The department already requires youth under six to have a SED to receive Medicaid mental health services. This requirement is not new.
The department interprets "short term" to be generally 90 days or less. However the department has not set a limit. If the youth needs additional services, due to being at risk of out-of-home or residential placement or current setting for youth under six they can continue to receive services. Services must be medically necessary, documented in the youth's medical record, and are subject to retrospective review by the department. Services should be intense and time limited. The youth's situation may change at a later date and they may again require and receive CBPRS services.
CBPRS is being limited to those SED youth most in need, because of the significant growth in utilization.
Requiring CBPRS services to be provided with other services follows the definition for the procedure code. CBPRS is a paraprofessional service. If the youth has a SED, professional services are likely needed in conjunction with paraprofessional services for effective treatment.
Moderate level TFOC staff should be able to provide many of the direct therapeutic services one commenter uses CBPRS staff, for example: assessing the youth and family problems, building a therapeutic relationship and establishing physical and psychological containment. Moderate level TFOC staff is required to provide active treatment directed at specific SED symptoms and behaviors and utilize some specialized behavior management techniques.
COMMENT #20: Referring to ARM 37.87.702, one commenter would like clarification about whether a rehabilitation plan for CBPRS services is the youth's individualized treatment plan, or is a separate treatment plan required. If it is a separate plan, please include a description of the individualized rehabilitation plan in the definition section.
RESPONSE #20: The term "rehabilitation plan" is not new in the definition, however, the department will change "rehabilitation plan" to "rehabilitation goals" for clarity. The term will also be changed in the provider manual. "Rehabilitation treatment plan" in ARM 37.87.703(1)(a)(i) will also be changed to " . . . meet rehabilitation goals established in the youth's individual treatment plan;" for consistency.
CBPRS rehabilitation goals must be incorporated into the youth's treatment plan and meet the licensing requirements for mental health center individualized treatment plans in ARM 37.106.1916.
COMMENT #21: Referring to ARM 37.87.702, one commenter asks if there are any duties an in-training practitioner may not perform in the delivery of any children's mental health services.
RESPONSE #21: Specific mental health duties are not identified in the definition of an in-training mental health professional in ARM 37.87.702. The only change to the rule was to reference their supervision requirements according to their professional licensing rules.
COMMENT #22: One commenter believes the term "consultation services" in reference to CBPRS in ARM 37.87.703(1)(a)(i) is unclear.
RESPONSE #22: The department agrees and has removed the wording "services provided" after "consultation" for clarity. The sentence will read, "are provided on a face-to-face basis primarily with a youth and may also include consultation on a face-to-face basis with family members, teachers, employers, or other key individuals in the youth's life . . ."
COMMENT #23: Referring to ARM 37.87.703(1)(a)(ii), one commenter said that after youth discharge from their services, they provide CBPRS with respite to youth at the request of the parents. The youth continues to receive outpatient medication management. The commenter requests clarification whether in the new rule, this would be allowable if CBPRS is documented in the initial clinical assessment, master treatment plan and quarterly treatment plans as required by mental health center rules. If the family only uses CBPRS would providers be required to pay back the CBPRS units provided?
RESPONSE #23: Respite is not considered "other mental health services" under this requirement. CBPRS services are retrospectively reviewed, and repayment to the department could be required.
COMMENT #24: Can the CBPRS provider be reimbursed for attending a treatment team meeting with family members, teachers, or other key individuals in the youth's life per ARM 37.87.703(1)(a)(i)?
RESPONSE #24: CBPRS staff may attend treatment team meetings, but will not be reimbursed for this per 37.87.703(1)(a)(v)(F). CBPRS is a face-to-face service that may include consultation with family members, teachers, employers, and other key individuals per ARM 37.87.703(1)(a)(i). Medicaid does not reimburse providers for attending treatment team meetings, except for targeted youth case managers.
COMMENT #25: Referring to ARM 37.87.703(1)(a)(ii), two commenters are concerned about the requirement that CBPRS must be provided with other mental health services and question the legality of requiring one Medicaid service in order to access another service. This is not allowable under federal Medicaid regulations.
RESPONSE #25: If the youth is at risk of out-of-home or residential placement or current setting for youth under age six, additional mental health services would be needed to treat the youth's SED. CBPRS is a para-professional service.
The department believes commenters are referring to 42 CFR section 441.18 specific to case management: not conditioning other services on the receipt of case management, not using case management to restrict an individual's access to other Medicaid services and allowing the free choice of qualified case management providers. The rules do not restrict access, condition services or limit free choice and do not violate federal regulation.
COMMENT #26: Referring to ARM 37.87.703(1)(a)(v)(E), several commenters disagree with CBPRS not being allowed for youth in a shelter care facility. The commenters would like CBPRS allowed in shelter care facilities to help stabilize youth and prevent them from being moved to more restrictive levels of care.
Shelter care is a temporary placement not reimbursed by Medicaid, therefore it is not a duplication of service. A youth may be temporarily placed in a shelter care program if they are suddenly removed from their home by child protective services. Ethical standards of care would suggest that CBPRS continue during the youth's temporary stay in shelter care, particularly since it is a service that can maintain the youth in their community. Is it the department's intent to deny CBPRS services to youth and families in all temporary settings, such as homeless shelters and domestic violence shelters?
RESPONSE #26: The department agrees with commenters and has as changed the final rule to allow CBPRS services to be provided to SED youth residing in shelter care facilities, when they meet criteria for the service. CBPRS services may not be used to supplement shelter care facility staffing requirements and services must be based on the needs of individual youth residing in the facility.
COMMENT #27: Referring to ARM 37.87.703(1)(a)(iii) and (iv), one commenter thanks the department for changing the rule and allowing CBPRS services to be provided in day treatment programs for youth in the PRTF waiver with prior authorization and not requiring prior authorization for CBPRS services before or after program hours for services received on the same day as CSCT, day treatment, or partial hospital programs. Does this include both individual and group CBPRS?
RESPONSE #27: Yes, both individual and group CBPRS are included. The final rule will be updated to reflect this.
COMMENT #28: Referring to ARM 37.87.703(1)(a)(v) and (vi), one commenter believes this rule eliminates group CBPRS for after-school, out-of-school and summer programs and CBPRS groups for youth at the moderate level while their parents are in Family Dynamics Parent's groups. This is especially concerning when combined with ARM 37.87.702(1) containing the 90-day limit to the definition of CBPRS. CBPRS services integrate the treatment. Youth and parents experience the same model, interventions, and structured relationships. Youth experience uniform concentration on developmental issues and are saturated with corrective emotional interactions in these services. Youth can then generalize these skills into other settings, such as home, school, and community. These services also provide opportunities to safely integrate socially with peers, provide a break for parents worn out by caring for SED youth and provide a place where the youth feel accepted. These programs are needed because youth are not able to function successfully in other community programs provided by the school or day care providers. Many older SED youth cannot be trusted to be left alone in the community or at home. The limits for group CBPRS will require us to turn away youth when the number of youth exceed available CBPRS staff.
RESPONSE #28: If youth meet criteria for CBPRS, some of these programs may continue. CBPRS is being limited to those SED youth most in need, because of the significant growth in utilization. The department believes a limit on the size of group CBPRS is important, in-part to assure quality rehabilitation and individualized services to SED youth. The limit also assures the group size is manageable and safe.
COMMENT #29: Several commenters did not think ARM 37.87.703 provides enough information describing allowable CBPRS activities. The rule describes what is not allowed for CBPRS. It would be helpful to describe the purpose and allowable CBPRS interventions. I recommend the following activities be allowed and be added to ARM 37.87.703, (1) restoration of basic skills necessary to function in the community, home and family relationships; (2) redevelopment of communication and socialization skills; (3) social skills and basic and daily living skills required for success in an academic program; (4) skills development and practice of skills necessary to structure and use leisure time; and (5) immediate intervention in a crisis situation.
RESPONSE #29: The department believes the CBPRS definition in ARM 37.87.702(1) provides enough detail regarding covered services by referring to the functional impairments listed in the definition of SED in ARM 37.87.303. CBPRS services are rehabilitative services provided to SED youth at risk of out-of-home or residential placement, or current placement for youth under six years of age. An example of a "current placement" for youth under six is a head start program. Services may be provided in the youth's home, school or community setting for a short period of time, generally 90 days or less, to improve or restore the youth's functioning in one or more areas identified in the SED definition.
COMMENT #30: Referring to ARM 37.87.901(3), one commenter requested a change in the "Medicaid and Mental Health Service Plan Youth Services Excluded from Simultaneous Reimbursement" (service matrix) to allow TGHs to request prior authorization for specialized therapy outside the bundled rate in isolated cases when it may be necessary for a youth in a TGH. The example given was for outpatient therapy provided by a Montana Sex Offender Treatment Association (MSOTA) -certified therapist. The commenter has an LCSW who provides therapy to youth in their TGH, and does not see any other diagnoses that would require an outside therapist.
RESPONSE #30: The department agrees with the proposal and has changed the service matrix to allow specialized outpatient therapy on an infrequent basis for youth in a TGH, when prior authorized. Please note, however, that outpatient therapy provided by an MSOTA-certified therapist must target a qualifying SED diagnosis to be reimbursed by Medicaid. The TGH would assist the outpatient therapist in getting prior authorization.
COMMENT #31: One commenter states proposed New Rule V (37.87.1021) does not allow for TFC to be provided in regular foster homes or in kinship homes. In the current provider manual, foster homes, and kinship homes were permitted to utilize TFC services.
RESPONSE #31: The department believes the commenter is referring to the provider manual incorporated in ARM 37.87.903(6), and agrees that TFC may be provided in foster homes and kinship homes. The provider manual states on page 49 that "TFC is provided in adoptive or biological homes". Regular foster homes and kinship homes were mistakenly omitted from this sentence. The department will amend the provider manual to include foster and kinship homes.
COMMENT #32: One commenter would like clarification about why a youth who has a certificate of need (CON) for permanency level TFOC would need another CON if discharged to a moderate level TFOC. This seems unnecessary as the youth is moving to a lower level of care, requires fewer services and costs are reduced. Eliminating this requirement would streamline the process and save the provider the time it takes to prepare and submit the CON.
RESPONSE #32: The department disagrees. A CON is necessary for both moderate and permanency TFOC levels because a youth discharging from permanency level TFOC may not meet the medical necessity criteria or need moderate level TFOC. Youth may be appropriately served with other mental health services such as outpatient therapy.
7. The department intends the rule amendments to be effective January 15, 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 January 3, 2011.
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