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| Montana Administrative Register Notice 37-1073 | No. 11 06/07/2024 | |
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BEFORE THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES OF THE STATE OF MONTANA
TO: All Concerned Persons
1. On June 28, 2024, at 10:00 a.m., the Department of Public Health and Human Services will hold a public hearing via remote conferencing to consider the proposed amendment and repeal of the above-stated rules. Interested parties may access the remote conferencing platform in the following ways: (a) Join Zoom Meeting at: https://mt-gov.zoom.us/j/85903765981?pwd=c2VkWlJYTmZGOVVNUHBCTWMyUGpRdz09, meeting ID: 859 0376 5981, and password: 185527; or (b) Dial by telephone: +1 646 558 8656, meeting ID: 859 0376 5981, and password: 185527. Find your local number: https://mt-gov.zoom.us/u/koaMF763r.
2. The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the Department of Public Health and Human Services no later than 5:00 p.m. on June 14, 2024, to advise us of the nature of the accommodation that you need. Please contact Bailey Yuhas, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail [email protected].
3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:
37.34.911 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: AVAILABLE SERVICES (1) remains the same.
(c) through (g) remain the same but are renumbered (a) through (e). (h) through (k) remain the same but are renumbered (g) through (j).
(o) through (v) remain the same but are renumbered (k) through (r).
(x) through (z) remain the same but are renumbered (t) through (v).
(ab) and (ac) remain the same but are renumbered (w) and (x). (ad) through (ai) remain the same but are renumbered (z) through (ae).
(2) and (3) remain the same.
37.34.925 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: (2) (a) and (b) remain the same.
(e) remains the same but is renumbered (c).
37.34.926 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: (2) Companion services delivered by legally responsible relatives involve personal care or similar services of activities of daily living and/or instrumental activities of daily living.
(a) persons in residential settings in which primary care is funded 24/7; (b) (c) personal care services; or (d) homemaker services.
37.34.929 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: ADULT FOSTER (1) through (4)(a) remain the same. (b) (c) homemaker services; or (d) personal care services. (5) and (6) remain the same.
37.34.930 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: ASSISTED LIVING (1) Assisted living is a congregate residential setting that provides or coordinates personal care, homemaker services, medication oversight, social and recreation activities, 24-hour supervision and assistance to meet the unpredictable needs of the
(3) and (4) remain the same but are renumbered (2) and (3). (a) personal care services; (b) homemaker services; (c) remains the same.
(e) and (f) remain the same but are renumbered (d) and (e). (5) remains the same but is renumbered (4).
37.34.933 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: BEHAVIORAL SUPPORT SERVICES (1) Behavioral support services (BSS) teach others to carry out ethical and effective behavior interventions based on positive behavior supports. Behavioral support services staff may supervise the work of others who implement behavior interventions. This service is available at two different levels. (2) Level one (a) through (e) remain the same.
(3) Level one services may be provided by: (a) a board-certified behavioral analyst-doctoral (BCBA-D), board-certified behavior analyst (BCBA), or board-certified assistant behavior analyst (BCaBA) under the supervision of a BCBA-D or BCBA; (b) an intermediate applied behavior analysis (ABA) professional or a person with an Institute for Applied Behavior Analysis (IABA) certification; or (c) either a person with a degree in ABA, psychology, or special education who has provided documentation of training and experience in the use of the principles of ABA as approved by the department. (4) Level two services include all services identified in level one and: (a) monitoring and overseeing BSS staff, including a registered behavior technician (RBT) or an intensive behavior assistant (IBA), who are directly implementing treatment; (b) direct implementation of treatment plans, behavior intervention procedures, skill acquisition procedures, and positive-behavior support plans by an RBT or an IBA. (5) Level two services may be provided by: (a) a BCBA-D or BCBA; (b) a BCaBA under the supervision of a BCBA-D or BCBA; or (c) an intermediate ABA professional or a person with an IABA certification. (6) Level two direct treatment must be supervised by a BCBA-D, BCBA, or BCaBA and may be provided by: (a) an RBT; or (b) an IBA.
37.34.937 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: COMMUNITY TRANSITION SERVICES (1) through (3)(a) remain the same. (b) clearly identified in the service plan;
(c) remains the same but is renumbered (d). (4) Community transition services may include: (a) security deposits required to obtain a lease on an apartment or home; (b) essential household furnishings and moving expenses required to occupy and use a community domicile, including furniture, window coverings, food preparation items, and bath and bed linens; (c) set-up fees or deposits for utility or services access, including land line telephone, electricity, heating, and water; (d) services necessary for the individual's health and safety, such as pest eradication and one-time cleaning prior to occupancy; (e) moving expenses; (f) necessary home accessibility adaptations; or (g) activities to assess, arrange for, and procure needed resources as identified in the plan of care. (4) remains the same but is renumbered (5) (a) through (c) remain the same. (d) household appliances; (e) items that are intended for purely recreational purposes (f) cellular telephone service; or (g) internet service. (5) and (6) remain the same but are renumbered (6) and (7).
37.34.941 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: ENVIRONMENTAL MODIFICATIONS (1) Environmental modifications are those physical adaptations to the home or vehicle required by the waiver recipient's plan of care, which are necessary to safeguard the health, welfare, and safety of the person, or which enable the person to function with greater independence and without which the person would require institutionalization. (2) remains the same. (a) relate specifically to and be primarily for the waiver recipient (b) have utility primarily for the waiver recipient (c) through (e) remain the same. (f) be prior authorized by the department (3) Environmental modifications may not include: (a) adaptions to the home which are of general utility and are not of direct medical or remedial benefit to the waiver recipient, such as carpeting, roof repair, central air condition; or (b) adaptations to the home which add to the total square footage of the home.
37.34.942 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: HOMEMAKER (1) Homemaker services are general household activities performed when the person regularly responsible for these activities is unable to manage the home or care for self or others in the home or is engaged in providing habilitation and support services to the (2) and (3) remain the same. (4) Homemaker services are not available to persons in residential settings in which primary care is funded 24/7 by the DDP. (5) Homemaker services must be bundled with other services when delivered as a component of self-directed (SD) services and supports and is therefore not available as a discrete service to waiver recipients receiving SD services and supports. (6) A homemaker must have successfully completed a background check to provide this service when only the waiver recipient is in attendance when the service is provided. In such circumstance, the homemaker will not be reimbursed for services provided when a successful background check has not been completed.
37.34.946 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: INDIVIDUAL GOODS AND SERVICES (1) and (2) remain the same. (a) memberships and fees; (b) recreational activities specific to a rehabilitative goal in the plan of care. Recreational activities provided under individual goods and services may be covered only when they are included in a planning outcome related to a specific residential rehabilitation goal; or (b) remains the same but is renumbered (c). (3) Individual goods and services can be used when the item or service is not covered under any other private or publicly funded resource or other waiver service. (4) Individual goods and services may pay for: (a) repair of equipment when the equipment meets the authorization criteria and the repair is a cost-effective alternative; (b) a maintenance or insurance agreement for items that meet authorization criteria when the maintenance agreement is expected to be cost effective; (c) shipping and handling cost if the shipping cost is included in the price of the item, and is being purchased using waiver funds pursuant to the plan of care; (d) reconditioned equipment if all authorization criteria are met and the item is considered of adequate quality, expected to be durable, and the cost is commensurate with the age and condition of the item; or (e) vitamins and nutritional supplements when there is no other source for reimbursement and only if the waiver recipient's licensed health care provider has prescribed the specific items. (3) remains the same but is renumbered (5). (a) exclusively for the benefit of the waiver recipient (b) the most cost-effective alternative that reasonably meets the assessed need of the waiver recipient (6) Individual goods and services must: (a) be directed exclusively toward the benefit of the waive recipient; and (b) be the least costly alternative that reasonably meets the waiver recipient's assessed need.
(a) remains the same. (b) increases the waiver recipient's (c) remains the same.
(a) services, equipment, or supplies which are experimental; (b) room and board; (c) gifts, gift certificates, gift cards, or discretionary cash; (d) items solely for entertainment or recreational purposes; (e) personal hygiene items; (f) general clothing, food, or beverages, except specialized dietary or clothing needs; and (g) household furnishings, cleaning supplies, and home maintenance.
37.34.960 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: PERSONAL EMERGENCY RESPONSE SYSTEM (1) Personal emergency response system (PERS) is an electronic device that enables the (2) PERS service may be delivered via a cellular phone if it is more flexible and cost effective for ensuring the health and safety of the waiver recipient. Cell phones are not for convenience or general-purpose use. (3) To (a) and (b) remain the same. (4) (5) The service coordinator and the team must evaluate the needs of the waiver recipient and look at the most cost-effective options.
(7)
37.34.961 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: PERSONAL SUPPORTS (1) Personal supports services assist the (2) Personal supports may also provide the necessary assistance and supports to maintain employment in a competitive, customized, or self-employment setting, or to provide supports in day programming to assist the waiver recipient in integrating in community settings. (3) Personal supports activities are generally defined in the plan of care and are flexible in meeting the changing needs of the waiver recipient. Workers may be assigned activities that involve mentorships and activities designed to develop or maintain skills. (4) Personal supports workers may be required to provide non-medical transportation to a waiver recipient for activities as outlined in the plan of care, including community integration activities, work or school, and other community activities. A waiver recipient receiving personal supports self-directs this service with employer authority. Other waiver services that may overlap with the activities of the personal support worker are prohibited.
(a) ensuring the waiver recipient's (b) assisting the waiver recipient with hygiene, bathing, eating, dressing, grooming, toileting, transferring, or basic first aid. (b) through (h) remain the same but are renumbered (c) through (i). (3) and (4) remain the same but are renumbered (6) and (7).
(d) respite. (8) Personal supports services must not overlap with, supplant, or duplicate other services provided through the waiver or Medicaid state plan services.
37.34.963 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: PRIVATE DUTY NURSING (1) (2) remains the same. (3) A waiver recipient (4) remains the same. (5) Services may include medical management, direct treatment, consultation, and training for the waiver recipient. The training component of this service is available for the caregiver.
(7) Private duty nursing must be specified in the plan of care. It must be ordered in writing by the waiver recipient's physician, and it must be delivered by a registered nurse (RN) or a licensed practical nurse (LPN). (8) Waiver private duty nursing services will be used after the Medicaid state plan home health nursing limits have been reached or if the service required is different from that authorized under the Medicaid state plan. (9) Private duty nursing services must not overlap with, supplant, or duplicate other services provided through the waiver or Medicaid state plan services.
37.34.967 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: (2) remains the same. (3) Psychological evaluation, (a) through (e) remain the same. (4) Psychological evaluation, (a) through (c) remain the same. (5) Psychological evaluation,
37.34.968 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: REMOTE MONITORING (1) Remote monitoring provides oversight and monitoring within a residential setting through off-site electronic surveillance, while maintaining the health and safety of the waiver recipient (2) through (2)(b) remain the same. (c) radio frequency identification; or (d) web-based monitoring systems
(3) The waiver recipient (4) and (5) remain the same. (6) Live HIPAA-compliant two-way communication may be provided if it is designated in a waiver recipient's (7) Cameras are not permitted in bathrooms or bedrooms.
(9) Individuals will receive the training needed to successfully utilize the technology, including how to turn off the equipment. This includes training the waiver recipient and staff on the equipment and devices that will be used. (8) remains the same but is renumbered (10). (a) reducing or replacing the amount of residential habilitation needed by the waiver recipient (b) remains the same. (9) remains the same but is renumbered (11).
37.34.974 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: RESPITE (1) (2) Respite is only available to waiver recipients residing with primary caregivers in family settings. Respite is available when a primary caregiver is not compensated for providing some or all of the supervision and support needed by the waiver recipients.
(4) Respite providers must comply with all state and federal respite standards. (5) Respite care must not exceed a period of 24 hours per day for more than 29 consecutive days. The amount and frequency of respite care must be included in each waiver recipient's plan of care.
(8) Federal financial participation will not be claimed for the cost of room and board except when provided as part of respite care furnished in a facility approved by the state that is not a private residence. (9) Respite services cannot be used in place of services otherwise available through public education programs, including education activities, after school supervision, daytime services when the school is not in session, or services available to preschool age children.
37.34.978 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: RETIREMENT SERVICES (1) Retirement services are available to a waiver recipient (2) remains the same. (3) Retirement services must be provided in a (4) remains the same. (a) treat each waiver recipient with dignity and respect;
(5) Retirement services are designed to: (a) actively stimulate, encourage, and enable active participation; (b) develop, maintain, and increase awareness of time, place, weather, persons, and things in the environment; (c) introduce new leisure pursuits; (d) establish new relationships; (e) improve or maintain flexibility, mobility, and strength; (f) develop and maintain the senses; and (g) maintain and build on previously learned skills. (6) Retirement services must be delivered in a provider-operated residence and staff must meet scheduled or unpredictable needs in a way that promotes maximum dignity and independence; provides supervision, safety, and security; and provides activities to keep the waiver recipient engaged in their environment. (5) remains the same but is renumbered (7).
37.34.980 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SUPPORTED EMPLOYMENT, FOLLOW ALONG SUPPORT (1) Follow along support consists of habilitation services and supports that enable a (2) The waiver recipient (a) the waiver recipient's (b) remains the same. (3) Follow along support may be provided in an extended ongoing manner or intermittently as needed. Outcomes and actions needed for the waiver recipient to maintain employment must be identified in the plan of care. (4) remains the same. (a) person-centered employment planning with or on behalf of the waiver recipient; (b) development of skills that will make the waiver recipient employable for more hours or for additional duties; (b) remains the same but is renumbered (c).
(e) (f) regular contact and/or follow up with the employer, coworkers, employed (g) remains the same. (h) individual program development, writing task analysis, monthly reviews, and behavioral intervention programs;
(5) The following services are not reimbursable: (a) transportation of a waiver recipient to and from the job site; (b) any service that is available under the Rehabilitation Act of 1973. Documentation is required to ensure that service is not available or is no longer available under a program funded under section 110 of the Rehabilitation Act of 1973, the IDEA (20 U.S.C 1401 et seq.), or EPSDT; (c) public relations activities; (d) staff continuing education – in service meetings, department meetings, individual staff development; (e) incentive payments made to an employer to subsidize the employer's participation in a supported employment program; (f) payments that are passed through to the waiver recipient; (g) payments for vocational training that is not directly related to a waiver recipient's supported employment program; (h) any activities which are not directly related to the waiver recipient's career plan; (i) services furnished to a minor waiver recipient by a parent(s), step-parent(s), or legal guardian; and (j) services furnished to a waiver recipient by the waiver recipient's spouse. (6) Behavioral intervention programs may be applied as a component of follow along support services when the plan is: (a) specifically designed to be implemented in the employment setting by the follow along staff; (b) when developed and approved according to ARM 37.34.1401 through 37.34.1422; and (c) developed by the person who trains the follow along staff to utilize the interventions to reduce the challenging behaviors in the employment setting.
(8) A waiver recipient may be considered inappropriately placed if they are unable to sustain competitive, customized, or self-employment. Movement to a better-fit employment setting should be considered, and the waiver recipient may need to be referred or re-referred to vocational rehabilitation. (9) Reimbursement for follow along support and vocational rehabilitation services will not be allowed concurrently for the same job placement. (10) The department requires all other funding sources be utilized and a denial from other funding sources before this service is authorized for payment by the Developmental Disabilities Program.
AUTH: 53-6-113, 53-6-402, 53-20-204, MCA IMP: 53-6-101, 53-6-402, 53-20-205, MCA
37.34.981 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SUPPORTED EMPLOYMENT, INDIVIDUAL EMPLOYMENT SUPPORTS (1) Individual employment supports are habilitation services and staff supports needed by a (2) through (2)(e) remain the same. (f) (g) through (k) remain the same. (3) Individual employment supports may not include: (a) transportation of a waiver recipient to and from the job site once the waiver recipient has been hired; (b) any service that is otherwise available under the Rehabilitation Act of 1973. Documentation is required to ensure that the service is not available or is no longer available under a program funded under section 110 of the Rehabilitation Act of 1973, the IDEA (20 U.S.C. 1401 et seq.), or EPSDT; (c) employment activities taking place in a group, such as work crews or enclaves; (d) public relations activities; (e) staff continuing education, including in-service meetings, department meetings, or individual staff development; (f) incentive payments made to an employer to subsidize the employer's participation in a supported employment program; (g) payments that are passed through to the waiver recipient; (h) payments for vocational training that is not directly related to a waiver recipient's supported employment program; (i) any other activities that are not specific to the waiver recipient, including circumstances when the waiver recipient cannot work their scheduled hours so the job coach is working the job instead of the waiver recipient; (j) any activities which are not directly related to the waiver recipient's career plan; (k) services furnished to a minor waiver recipient by a parent, step-parent, or legal guardian; and (l) services furnished to a waiver recipient by the waiver recipient's spouse. (4) Individual employment supports will not overlap with, supplant, or duplicate other services provided through the waiver or Medicaid state plan services. (5) Income from customized home-based businesses need not be commensurate with minimum wage requirements with other employment. (6) Federal financial participation is not claimed for incentive payments, subsidies, or unrelated vocational training expenses such as the following: (a) incentive payments made to an employer to encourage or subsidize the employer's participation in supported employment; or (b) payments that are passed through to the waiver recipient.
AUTH: 53-6-113, 53-6-402, 53-20-204, MCA IMP: 53-6-101, 53-6-402, 53-20-205, MCA
37.34.985 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SUPPORT EMPLOYMENT, SMALL GROUP SUPPORT (1) Small group employment support consists of habilitation services and staff supports needed for groups of two to eight (2) through (4) remain the same. (a) person-centered employment planning with or on behalf of the waiver recipient; (b) through (e) remain the same.
(j) job promotion support; and (k) career advancement support. (5) The following services are not reimbursable: (a) transportation of a waiver recipient to and from the job site; (b) any service that is otherwise available under the Rehabilitation Act of 1973. Documentation is required to ensure that the service is not available or is no longer available under a program funded under section 110 of the Rehabilitation Act of 1973, the IDEA (20 U.S.C 1401 et seq.), or EPSDT; (c) public relations activities; (d) staff continuing education, including in-service meetings, department meetings, individual staff development; (e) incentive payments made to an employer to subsidize the employer's participation in a supported employment program; (f) payments that are passed through to waiver recipients of supported employment program; (g) payments for vocational training that is not directly related to a waiver recipient's supported employment program; (h) any activities which are not directly related to the waiver recipient's career plan; (i) services furnished to a minor waiver recipient by a parent(s), step-parent(s), or legal guardian; and (j) services furnished to a waiver recipient by the waiver recipient's spouse. (6) Total hours for a waiver recipient's attendance shall not include time spent during transportation to or from the waiver recipient's residence. (7) The department requires all other funding sources be utilized and a denial from other funding sources before this service is entered into the cost plan and approved by the Developmental Disabilities Program.
AUTH: 53-6-113, 53-6-402, 53-20-204, MCA IMP: 53-6-101, 53-6-402, 53-20-205, MCA
37.34.986 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SUPPORT EMPLOYMENT, COWORKER SUPPORT (1) Coworker support service allows the Developmental Disabilities Program (DDP) and developmental disabilities provider agencies to contract with a business to provide coworker job supports as a part of the natural workplace. This service differs from supported employment, follow along support, in that it creates opportunity for services and supports to be provided by the employee of a local business where the (2) The purpose of supported employment coworker support is to assist the waiver recipient (a) through (c) remain the same. (d) assist the waiver recipient (e) provide job skill maintenance or assistance with incorporating new tasks; (f) facilitate other supports at the work site (g) assist during breaks and/or lunch. (3) Waiver recipients participating in this service must be employed by a business and be paid at or above the state's minimum wage, with a goal of not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by individuals without disabilities.
(6) Coworker support and follow-along support cannot be billed for during the same time but could be billed for during the same day. (7) The activities of this service are over and above the obligations an employer has for an employee without a disability and does not duplicate or supplant those provided under the provisions of the Individuals with Disabilities Education Improvement Act, or Section 110 of the Rehabilitation Act of 1973, or the Americans with Disabilities Acts. (8) The waiver will not cover activities which are otherwise available under section 110 of the Rehabilitation Act of 1973, the IDEA (20 U.S.C. 1401 et seq.), or EPSDT. (9) The department requires all other funding sources be utilized, and a denial from other funding sources before this service is entered into the cost plan and approved by the Developmental Disabilities Program.
AUTH: 53-6-113, 53-6-402, 53-20-204, MCA IMP: 53-6-101, 53-6-402, 53-20-205, MCA
37.34.987 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: SUPPORTS BROKERAGE (1) Supports brokerage services assist the waiver recipient (2) As determined by the scope and nature of the opportunities afforded to the (a) remains the same. (b) the range and scope of the choices and options the waiver recipient (c) through (f) remain the same. (g) waiver recipient rights; (g) and (h) remain the same but are renumbered (h) and (i). (3) The supports broker may assist the waiver recipient (a) defining goals, needs, and preferences and identifying and accessing services, supports, and resources;
(e) remains the same but is renumbered (b).
(g) and (h) remain the same but are renumbered (c) and (d). (e) recognizing and reporting critical events;
(g) other areas related to managing services and supports. (4) remains the same. (5) The annual cap for supports brokerage is the lesser of $6,000 or 20% of the value of the individual cost plan (ICP). These values may be exceeded for a limited time period in extraordinary circumstances with prior approval of the Developmental Disabilities Program (DDP)
AUTH: 53-6-113, 53-6-402, 53-20-204, MCA IMP: 53-6-101, 53-6-402, 53-20-205, MCA
37.34.988 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: TRANSPORTATION (1) Transportation services are those services which enable waiver recipients (2) Transportation may be offered in addition to medical transportation required under 42 CFR 431.53 and transportation services under the state plan, defined at 42 CFR 440.170(a), and shall not replace them. (3) Transportation services under the waiver shall be offered in accordance with the plan of care. (4) Family, neighbors, friends, or community agencies that can provide this service without charge must be utilized when possible. (3) remains the same but is renumbered (5). (a) and (b) remain the same. (c) registration or other costs associated with a waiver recipient's (4) remains the same but is renumbered (6). (a) and (b) remain the same. (c) regularly scheduled upkeep and maintenance of a vehicle with the exception of upkeep and maintenance of any modifications; (d) escort services (e) transportation may not be reimbursed if bundled within another service. (5) and (6) remain the same but are renumbered (7) and (8). (a) transportation services provided to the waiver recipient (b) and (c) remain the same.
(8) remains the same but is renumbered (10).
(a) and (b) remain the same. (c) transportation not directly related to the specific disability needs of a waiver recipient (10) remains the same but is renumbered (12). (a) be (b) through (d) remain the same.
AUTH: 53-6-113, 53-6-402, 53-20-204, MCA IMP: 53-6-101, 53-6-402, 53-20-205, MCA
4. The department proposes to repeal the following rules:
37.34.947 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: JOB DISCOVERY
37.34.950 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: JOB PREPARATION
37.34.951 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: LIVE-IN CAREGIVER
37.34.973 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES PROGRAM: RESIDENTIAL TRAINING SUPPORT
37.34.989 0208 MEDICAID HOME AND COMMUNITY-BASED SERVICES WAIVER PROGRAM: WAIVER-FUNDED CHILDREN'S CASE MANAGEMENT
5. STATEMENT OF REASONABLE NECESSITY
The Department of Public Health and Human Services Developmental Disabilities Program is proposing to amend ARM 37.34.911, 37.34.925, 37.34.926, 37.34.929, 37.34.930, 37.34.933, 37.34.937, 37.34.941, 37.34.942, 37.34.946, 37.34.960, 37.34.961, 37.34.963, 37.34.967, 37.34.968, 37.34.974, 37.34.978, 37.34.980, 37.34.981, 37.34.985, 37.34.986, 37.34.987, 37.34.988, and to repeal ARM 37.34.947, 37.34.950, 37.34.951, 37.34.973, and 37.34.989.
The purpose of the proposed amendments and repeals is to update the rules to reflect the most recently approved 0208 waiver. Without these changes, the listed rules will not reflect the Centers for Medicare & Medicaid Services-approved (CMS) waiver services for the State of Montana's Medicaid Program. Below is a list of each rule which the department proposes to amend or repeal and the reasonable necessity for each change.
ARM 37.34.911 The rule lists all the services available under the 0208 waiver. However, some of the listed services are no longer available and other services have a different name. DDP proposes amending this rule so that it would reflect services offered by the 0208 Waiver.
ARM 37.34.925 The rule uses the term "adaptive equipment," instead of the current term "specialized medical equipment and supplies." Several provisions in the rule, (2)(c) and (2)(d), no longer reflect waiver requirements. Accordingly, DDP proposes to amend this rule to reflect current terminology and practices.
ARM 37.34.926 This rule established requirements for "adult companion" services, which is now known as companion services. Additionally, the current waiver limits this service to functionally impaired members age 14 or older which the rule does not reflect. DDP proposes amending this rule to reflect the terms of the 0208 Waiver.
ARM 37.34.929 This rule currently provides that adult foster may not be provided concurrently with live-in caregiver services. However, live-in caregiver services are no longer covered under the 0208 waiver. Additionally, the current waiver stipulates that adult foster services may not be provided concurrently with companion services, which this rule does not reflect. DDP proposes revisions to this rule to reflect the current 0208 waiver.
ARM 37.34.930 This rule contains requirements for assisted living services which no longer reflects the 0208 waiver. The rule references live-in caregivers, a type of service which is no longer offered under the waiver. In addition, ARM 37.34.930(2) is redundant as it repeats a portion of ARM 37.34.930(1). DDP proposes to amend this rule to reflect the current 0208 waiver and to remove this redundancy.
ARM 37.34.933 This rule currently establishes requirements for behavioral support services which does not reflect the current 0208 waiver. The current waiver delineates between level one and two behavioral support services, which must be provided by professionals who have different professional credentials. DDP proposes amending this rule to outline level one and two services and the professionals allowed to provide each service.
ARM 37.34.937 This rule currently requires that community transition services are furnished only to the extent that they are reasonable and necessary, the person is unable to meet such an expense, or the services cannot be obtained from other sources. However, the currently approved waiver additionally provides that services are furnished only to the extent that they are clearly identified in the service plan. The waiver also indicates which services are reimbursable or excluded from reimbursement which this rule does not reflect. For example, land line fees are reimbursable but not cellular phone set up fees. DDP proposes to amend this rule to reflect the current waiver.
ARM 37.34.941 The rule currently establishes requirements for environmental modifications, but does not include language pertaining to non-allowable modifications, limitations included in the current waiver. DDP proposes amending this rule to address these non-allowable modifications to reflect the scope of the current 0208 waiver.
ARM 37.34.942 The rule provides that coverage for homemaker services is provided under the waiver, subject to certain requirements. However, it does not reflect various limitations set forth in the current 0208 waiver, such as who is allowed to receive and administer services and rules regarding the bundling of services. DDP proposes amending this rule to reflect these limitations in waiver homemaker services.
ARM 37.34.946 This rule provides requirements for coverage for individual goods and services, which do not reflect the current 0208 waiver. The current 0208 waiver allows for recreational goods specific to rehabilitation goals included in the plan of care, services not available through private or publicly funded resource, repair of equipment, maintenance or insurance, shipping and handling costs, reconditioned equipment, and nutritional supplements. The 0208 waiver further requires that individual goods and services must be directed exclusively toward the benefit of the individual and be the least costly alternative. The current 0208 waiver also stipulates non-reimbursable services and pre-approval guidelines which is not reflected in the rule. These requirements are not currently in the rule. Accordingly, DDP proposes to amend this rule to reflect these requirements or limitations.
ARM 37.34.947 This rule established requirements for job discovery services. However, this service is no longer offered under the currently approved Medicaid waiver. Accordingly, DDP proposes to repeal this rule.
ARM 37.34.950 This rule established job preparation service requirements. However, this service is no longer offered by the Medicaid Program under the currently approved waiver. DDP proposes repealing this rule.
ARM 37.34.951 This rule provided rules for live-in caregiver services. However, this service is no longer offered under the currently approved Medicaid Waiver. DDP proposes repealing this rule.
ARM 37.34.960 This rule currently imposes requirements for personal emergency response system coverage, which is not consistent with the current 0208 waiver. The 0208 waiver allows for a member to wear a portable "help" button or, if it is more flexible and cost effective, a cellular phone. There are certain restrictions to cell phones which must be reviewed with the waiver recipient, and insurance is also available should the phone need to be replaced. DDP proposes to amend this rule to reflect these restrictions and allowances.
ARM 37.34.961 This rule imposes requirements for personal supports which do not reflect the current waiver, which includes certain covered/offered activities and plan of care requirements. The current waiver also precludes personal supports service from being provided concurrently with live-in caregiver or adult companion. However, live-in caregiver is no longer a service offered by the 0208 waiver, and adult companion services are now known as companion services. DDP proposes to amend this rule to reflect the current 0208 waiver.
ARM 37.34.963 This rule provides requirements for private duty nursing services, which do not reflect the 0208 waiver, such as offered services and plan of care requirements. Also, under the waiver, this type of service must be used after other state plan programs have been exhausted and may not overlap or duplicate other waivers or state services. This rule also miscites 37-8-102 as 37-18-102, MCA, in reference to private duty nursing. DDP proposes to amend this rule to reflect the current 0208 waiver and to correct the citation.
ARM 37.34.967 This rule establishes requirements for psychological and counseling services. Under the current waiver, this type of service has been changed to psychological evaluation, counseling, and consultation services, reflecting a broader range of services to be covered under the waiver. DDP proposes to amend this rule to reflect this change in scope of covered services under the current waiver.
ARM 37.34.968 This rule provides requirements for remote monitoring which do not reflect the requirements for coverage of remote monitoring under the current 0208 waiver renewal. DDP would also add language prohibiting cameras in bathrooms and bedrooms as required by CMS, and would require that privacy will be monitored by targeted case managers. Additionally, the waiver imposes staff training and HIPAA compliance requirements. Under the current waiver, remote monitoring cannot be billed while a direct care service is being delivered. DDP proposes amending this rule to be consistent with the changes in the waiver as required by CMS.
ARM 37.34.973 This ARM established requirements for residential training support services, which are no longer covered under the 0208 Waiver. DDP proposes repealing this rule.
ARM 37.34.974 This rule currently imposes requirements for respite services which do not reflect the current 0208 waiver. The 0208 waiver requires that respite providers comply with all state and federal standards and that care not exceed a period of 24 hours per day for more than 29 consecutive days. The waiver also has certain restrictions for federal financial participation and does not allow the use of services otherwise available through public education programs. DDP proposes to amend this rule to reflect these waiver restrictions on respite services.
ARM 37.34.978 This rule currently imposes requirements or limitations on retirement services, which do not reflect the current 0208 waiver regarding eligible member, program design, and setting requirements. DDP proposes to amend this rule to reflect the waiver.
ARM 37.34.980 This rule imposes certain requirements for supported employment follow along support services. However, such requirements do not reflect the requirements of the current 0208 waiver, such as minimum wage requirements, plan of care requirements, reimbursable activities, non-reimbursable activities, behavioral intervention guidelines, service bundling guidelines, and member qualifications for continued services. DDP proposes to amend this rule to reflect these waiver requirements.
ARM 37.34.981 This rule establishes requirements for supported employment individual employment support, but does not reflect the current 0208 waiver on such issues as minimum wage requirements, program design, non-reimbursable services, overlap restrictions with other services, bundling of service guidelines, and federal financial participation. DDP proposes to amend this rule to reflect the provisions of the current 0208 waiver.
ARM 37.34.985 This rule establishes requirements for supported employment small group support, but does not reflect the current 0208 waiver regarding such issues as minimum wage, reimbursable activities, non-reimbursable activities, transportation restrictions, and the utilization of all other funding sources. DDP proposes to amend this rule to reflect these requirements of the current 0208 waiver.
ARM 37.34.986 This rule establishes requirements for support employment coworker support, but does not reflect the current 0208 waiver regarding such issues as minimum wage, the bundling and billing of services, the Rehabilitation Act of 1973, non-reimbursable services, and the requirement of all other funding sources to be utilized. DDP proposes to amend this rule to reflect these requirements of the current 0208 waiver.
ARM 37.34.987 This rule provides requirements for supports brokerage services which do not reflect the current 0208 waiver on such issues as the duties of support brokers or the information they may provide waiver member. DDP proposes to amend this rule to reflect the requirements of the current 0208 waiver.
ARM 37.34.988 This rule sets forth requirements for coverage of transportation services, but does not reflect the current 0208 waiver on such issues as plan of care requirements, utilization limitations, non-reimbursable services, and age requirements for providers. DDP proposes to amend this rule to reflect the requirements of the current 0208 waiver.
ARM 37.34.989 This rule provides requirements for waiver funded children's case management. However, this service is no longer offered under the currently approved Medicaid waiver. DDP proposes to repeal this rule.
Fiscal Impact
Fiscal impact is accounted for under MAR Notice No. 37-1036. Below were the projected fiscal impact numbers for DD Waiver services for State Fiscal Year 2024:
6. Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Bailey Yuhas, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail [email protected], and must be received no later than 5:00 p.m., July 5, 2024.
7. The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.
8. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a mailing preference is noted in the request. Such written request may be mailed or delivered to the contact person in paragraph 6.
9. An electronic copy of this notice is available on the department's web site at https://dphhs.mt.gov/LegalResources/administrativerules, or through the Secretary of State's web site at http://sosmt.gov/ARM/register.
10. The bill sponsor contact requirements of 2-4-302, MCA, do not apply.
11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment and repeal of the above-referenced rules will not significantly and directly impact small businesses.
12. Section 53-6-196, MCA, requires that the department, when adopting by rule proposed changes in the delivery of services funded with Medicaid monies, make a determination of whether the principal reasons and rationale for the rule can be assessed by performance-based measures and, if the requirement is applicable, the method of such measurement. The statute provides that the requirement is not applicable if the rule is for the implementation of rate increases or of federal law.
The department has determined that the proposed program changes presented in this notice are not appropriate for performance-based measurement and therefore are not subject to the performance-based measures requirement of 53-6-196, MCA.
/s/ Brenda K. Elias /s/ Charles T. Brereton Brenda K. Elias Charles T. Brereton, Director Rule Reviewer Department of Public Health and Human Services
Certified to the Secretary of State May 28, 2024.
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For questions about the organization of the ARM or this web site, contact [email protected].
