(1) The three basic considerations in every level of care determination are the individual patient's medical, psychological, and social needs; the specific services required to fill these needs; and the health and other personnel required to adequately provide these services. Specific level of care criteria, as well as preadmission screening procedures, are found in ARM 37.40.201.

(2) Assessing a patient's medical condition and evaluating the appropriateness of services for that condition is primarily a nurse coordinator's function. If questions arise regarding the patient's medical condition or the propriety of some or all of the services ordered by the attending physician, physician advisor review, including peer review, may be requested by the attending physician.

(3) Assessing a patient's psychological and social condition and evaluating the appropriate services for that condition is primarily a function of the department or its designee. 

(2) Skilled nursing care includes components which distinguish it from supportive care. Supportive care does not require professional health training. One component is the observation and assessment of the total needs of the patient. Another component is the rendering of direct services to a patient where the ability to provide the services requires specialized training, such as a registered or a licensed practical nurse.

(3) In evaluating whether the services required by the patient are the continuous skilled services which constitute skilled care, several basic principles are considered.

(a) Since skilled care represents skilled nursing care on a continuous basis, the need for a single skilled service -- for example, intramuscular injections twice a week -- would rarely justify a finding that the care constitutes skilled care.

(b) The classification of a particular service as skilled is based on the technical or professional health training required to effectively perform or supervise the service. For example, a patient, following instructions, can normally take oral medication. Consequently, the act of giving an oral medication to a patient who is too senile to take it himself would not be skilled service, even when a licensed nurse gives the medication.

(c) The importance of a particular service to an individual patient does not necessarily make it a skilled service. For example, a primary need of a non-ambulatory patient may be frequent changes of position in order to avoid development of decubiti. If changing the patient's position is the only regular and frequent service provided, it would not be a skilled service. Routine prophylactic and palliative skin care such as bathing, application of creams, etc. does not constitute skilled services. Presence of a small decubitus ulcer, rash or other relatively minor skin irritation does not generally indicate a need for skilled care. Existence of extensive decubiti or other widespread skin disorder may necessitate skilled care. Physicians' orders for treating the skin, rather than diagnosis, are the principal indication of whether skilled care is required.

(d) The possibility of adverse effects from improper performance of an otherwise unskilled service -- for example, improper transfer of patients from bed to wheelchair -- does not change it to a skilled service.

(4) Any of the following treatment services or care indicate need for skilled nursing care:

(a) oral administered medications requiring constant changes of dosage upon sudden undesirable side effects;

(b) oral medication before routine dosage established and must be watched for reactions;

(c) gastrostomy feedings;

(d) nasopharyngeal aspiration;

(e) recent postoperative colostomy and ileostomy care;

(f) repeated catheterizations during recent postoperative period;

(g) special services in application of dressings involving prescribed medications;

(h) initial phases of operation of inhalation equipment;

(i) physical therapy directed by the physician;

(j) intravenous or instramuscular injections except for the well controlled diabetic;

(k) patient on narcotics for pain;

(l) the very hostile, belligerent and demanding patient who is disruptive to other patients and staff, constantly refusing to take medication or treatment, may be destructive, may attack other patients or personnel, may have frequent periods of agitation and needs constant and close supervision; and

(m) the patient with severe impairments, or who is so withdrawn to the degree that he no longer can communicate and his needs must be anticipated.

(2) The intermediate nursing care patient needs some nursing service which is largely routine and whose major needs are for light personal care services. The following treatment services may indicate the need for intermediate nursing home care: oral medication after routine dosage established; routine catheter care; routine service for indwelling catheter; routine change in dressing to non-infected area; routine skin care; care of small decubitus ulcer; routine inhalation therapy; and maintenance care of colostomy or ileostomy.

(3) The following personal care services usually indicate the need for intermediate care. The incontinent patient needs to be dressed and bathed, may be a bed to chair patient, may need some restraints and constant watching for safety, needs help with toileting, needs help for ambulation or constant watching to prevent falls, needs help with eating, may be confused or senile and at times uncooperative, may have impairment, such as blindness or deafness and these impairments require some extra attention.

(1) Medications given by intravenous or intramuscular injections usually require skilled services. The frequency of injections would be particularly significant in determining whether the patient needs continuous skilled nursing care. Injections which can usually be self-administered -- for example, the well-regulated diabetic who receives a daily insulin injection -- do not require skilled services. Oral medications which require immediate changes in dosages because of sudden undesirable side effects or reactions should be administered to the patient and observed by licensed nurses, e.g., anti-coagulants, quinidine. This is a skilled service. Where a prolonged regimen of oral drug therapy is instituted, the need for continued presence of skilled nursing personnel can be presumed only during the period in which the routine is being established and changes in dosage cannot be anticipated or accomplished by unskilled personnel, e.g., digitalis.

(a) Administration of eye drops and topical ointments (including those required following cataract surgery) is not a skilled service. In Montana, institutional patients must receive all medications from licensed nurses; this fact, however, would not make the administration of oral medication a skilled service where the same type of medications are frequently prescribed for home use without skilled personnel being present.

(2) Levine tube and gastrostomy feedings must be properly prepared and administered. Supervision and observation by licensed nurses are required, thus making this procedure a skilled service.

(3) The services and observation required for nasopharyngeal aspiration constitute skilled nursing care.

(4) Colostomy or ileostomy may require skilled service during the immediate postoperative period following a newly created or revised opening. The need for such care should be documented by a physician and nursing notes. General maintenance care of this condition can usually be performed by the patient himself or by a person without professional raining and would not usually require skilled services.

(5) Repeated catheterizations during the immediate post-operative period following abdominal surgery could, with a few other skilled services, constitute continuous skilled nursing care. Routine services in connection with indwelling bladder catheters do not constitute skilled care. Catheters used in other parts of the body, such as bile ducts, chest cavity, etc., require skilled care.

(6) General methods of treating incontinence, such as use of diapers and rubber sheets, are not skilled services. A catheter used for incontinence would not require skilled care. Secondary skin problems should indicate the treatment required and should be noted in the patient's record.

(7) Special service in connection with application of dressings involving prescription medications and aseptic technique constitute skilled services. Routine changes of dressings, particularly in non-infected postoperative or chronic conditions, generally do not require skilled services or supervision.

(8) Routine care in connection with braces and similar devices appliances does not constitute skilled services. Care involving training in proper use of a particular appliance should be evaluated in relation to the need for physical therapy.

(9) The use of protective restraints generally does not require services of skilled personnel. This includes such devices as bed rails, soft binders, and wheelchair patient supports.

(10) Any regimen involving regular administration of inhalation therapy can be instituted only upon specific physician order. The initial phases of instituting such a regimen would be skilled care. However, when such administration becomes a part of regular routine, it would not generally be considered a skilled service since patients can usually be taught to operate their own inhalation equipment, or non-skilled personnel can supervise its administration, as in cases of chronic asthma, emphysema, etc.

(11) Physical therapy, one aspect of restorative care, consists of the application of a complex and sophisticated group of physical modalities and therapeutic services. Physical therapy, therefore, is a skilled service. However, a provision of physical therapy only would not justify a finding that the patient requires skilled care. In some situations, however, a patient whose primary need is for physical therapy will also require sufficient skilled nursing to meet the definition of skilled care. The need for such supportive skilled nursing on a continuing basis may be presumed when all four of the following conditions are met.

(a) The therapy is directed by the physician who determines the need for therapy, the capacity and tolerance of the patient, and the treatment objectives.

(b) The physician, in consultation with the therapist, prescribes the specific modalities to be used and frequency of therapy services.

(c) The therapy is rendered by or under the supervision of a physical therapist who meets the qualifications established by regulations; when the qualified therapist is the supervisor, he is available and on the premises of the facility while the therapy is being given, he makes regular and frequent evaluations of the patient, records findings on the patient's chart, and communicates with the physician as indicated.

(d) The therapy is actively concerned with restoration of a lost or impaired function. For example, frequent physical therapy treatments in connection with a fractured back or hip or a CVA can be presumed to be directed toward restoration of lost or impaired function during the early phase --when physical therapy can be presumed to be effective. However, when the condition has stabilized, the presumption that continuing supportive skilled nursing services are required is no longer valid. Such cases must be evaluated in relation to the specific amount of skilled nursing attention required in the individual case as evidenced by physician orders and nursing notes. The routine ambulation and/or transfer of patients is not a skilled service.

(2) Certain emotional conditions, or disturbed patients may require continuous services of sufficient degree of skill as to be considered as skilled service. However, when such is the case the exact services and medications should be sufficiently documented to justify claiming this as a skilled service.

(3) When any of the following circumstances exist, there must be evidence that continuous skilled nursing service is also concurrently required and received. These are not of themselves considered skilled services, but in combination with others may be skilled services.

(a) The primary service is one or more of the following:

(i) oral medication;

(ii) skin care to prevent decubiti;

(iii) restraints;

(iv) frequent laboratory tests;

(v) routine incontinence care;

(vi) routine care for the blind;

(vii) supervision of daily living activities.

(b) The patient is capable of independent ambulation, dressing, feeding, and hygiene.

(c) The patient has outside privileges.

(d) The diagnosis shown is not of a type which is sufficiently specific to indicate skilled treatment regimen; i.e., the diagnosis is chronic brain syndrome, senility, arteriosclerosis, "old" CVA, etc.

(1) "Active treatment" means:

(a) for persons with mental retardation or a related condition, a continuous program which includes aggressive consistent implementation of a program of specialized and generic training, treatment, health services and related services that is directed toward:

(i) the acquisition of the behaviors necessary for the person to function with as much self-determination and independence as possible; and

(ii) the prevention or deceleration of regression or loss of current optimal functional status. Active treatment does not include services to maintain a generally independent client who is able to function with little supervision or in the absence of a continuous treatment program.

(b) for persons with mental illness, the implementation of an individualized plan of care developed under and supervised by a physician and provided by physicians and other qualified mental health professionals, that prescribes specific therapies and activities under the supervision of trained mental health personnel for the treatment of a person who is experiencing an acute episode of severe mental illness.

(2) "Home and community services program" means the provision of services described in ARM 46.12.1401 through 46.12.1482 to a person in a community setting, who meets the nursing facility level of care requirements.

(3) "Level I screening" means a review of a nursing facility applicant to identify whether the applicant has a primary or secondary diagnosis or indications of mental retardation or of mental illness.

(4) "Level II screening" means an assessment applied to persons identified as having a primary or secondary diagnosis of mental retardation or mental illness which determines whether the person as a nursing facility applicant has need for the level of services provided by the nursing facility or by another type of facility and, if so, whether the individual requires active treatment.

(5) "Medicaid recipient" means a person who is currently medicaid eligible or who has applied for medicaid.

(6) "Mental illness" means an applicant has or has had a primary or secondary diagnosis of a major mental disorder, as defined in the Diagnostic and Statistical Manual of Mental Disorders, third edition (DSMIIIR) , limited to schizophrenic, paranoid, major affective, schizoaffective disorders and atypical psychosis, and does not have a primary diagnosis of dementia, including Alzheimer's disease or a related disorder, which is based on a neurological assessment.

(7) "Mental retardation" means:

(a) An applicant has or has had a primary or secondary diagnosis of mild, moderate, severe or profound retardation as described in the American Association on Mental Deficiency's Manual on Classification in Mental Retardation (1983) ; or

(b) An applicant has, or has had a primary or secondary diagnosis of a condition related to mental retardation, which is a severe, chronic disability that:

(i) is attributable to:

(A) autism, cerebral palsy or epilepsy; or

(B) any other condition, other than mental illness found to be closely related to mental retardation due to an impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons requiring treatment or services similar to those required for these persons;

(ii) is manifested before the person reaches age 22;

(iii) is likely to continue indefinitely; and

(iv) results in substantial functional limitations in three or more of the following areas of major life activity:

(A) self-care;

(B) understanding and use of language;

(C) learning;

(D) mobility;

(E) self-direction or;

(F) capacity for independent living.

(8) "Nursing facility" means an institution or a distinct part of an institution which is not primarily for the care and treatment of mental diseases, and is primarily engaged in providing either:

(a) skilled nursing care and related services for residents who require medical or nursing care;

(b) rehabilitation services for the rehabilitation of injured, disabled or sick persons, or

(c) on a regular basis, health-related care and services to persons who because of their mental or physical condition require care and services above the level of room and board which can be made available to them only through institutional

facilities.

(9) "Nursing facility applicant" means any person who has been referred for or is applying for admission to a nursing facility or the home and community services program.

(10) "Preadmission screening" means a medical, psychological and social evaluation of a nursing facility applicant which:

(a) is performed prior to entry to a nursing facility or the home and community services program and includes;

(i) a level I screening to determine if an applicant has a diagnosis or indication of mental illness or mental retardation;

(ii) a level II screening if an applicant is found by the level I screening to need further assessment; and

(iii) a nursing facility screening which determines an applicant's need for nursing facility services.

(11) "Preadmission screening team" means:

(a) for a nursing facility services determination, a licensed registered nurse and a department long term care specialist;

(b) for a level I screening, a long term care specialist or other professional approved by the department; and

(c) for a level II screening, employees or contractors of the state mental retardation authority or the state mental health authority.

(12) "Problems" means functional impairments, including those involving walking, bathing, grooming, dressing, toileting, transferring, feeding, bladder incontinence, bowel incontinence, special sense impairments (such as speech or hearing) , mental and behavioral dysfunctions.

(13) "State mental health authority" means the Montana department of corrections.

(14) "State mental retardation authority" means the developmental disabilities division of the Montana department of public health and human services.

(1) This rule provides the preadmission screening requirements of the Montana medicaid program for applicants to nursing facilities participating in the Montana medicaid program.

(2) Nursing facility applicants must undergo a level I screening prior to admission to a nursing facility.

(a) A level I screening may result in the following determinations which will apply as indicated:

(i) a nursing facility applicant who has no diagnosis or any indications of mental retardation or mental illness will:

(A) if not a medicaid recipient, receive a copy of the level I screen. No further action will be taken by the department; and

(B) if a medicaid recipient, undergo a level of care determination for nursing facility services.

(ii) a nursing facility applicant who has a diagnosis or indications of mental retardation or mental illness will be referred to either the state mental health authority or the mental retardation authority for a level II screening unless determined by the level I screening to be within one of the exceptions provided for in (3) (a) of this rule.

(3) A nursing facility applicant who has a diagnosis or indications of mental retardation or mental illness may enter a nursing facility only if the applicant is determined to be in need of nursing facility services and is allowed to enter as provided for in (3) (a) or (b) of this rule;

(a) A person with a diagnosis or indications of mental retardation or mental illness who is in need of nursing facility services may enter a nursing facility without a level II screening or a determination of appropriate active treatment, if either:

(i) the person is being discharged from an acute care facility and admitted to a nursing facility for recovery from an illness or surgery for a period not to exceed 120 days and is not a danger to self or others;

(ii) the person is certified by a physician to be terminally ill (prognosis of a life expectancy of six months or less) and is not a danger to self or others;

(iii) the person is comatose, ventilator dependent, functioning at the brain stem level or diagnosed as having chronic obstructive pulmonary disease, severe Parkinson's disease, Huntington's Chorea, amyotrophic lateral schlerosis, congestive heart failure or other similar diagnosis which prohibits the person from participating in active treatment; or

(iv) the person has a primary diagnosis of dementia, including Alzheimer's disease or a related disorder, based on a neurological examination.

(b) A level II screening may result in the following determinations which will apply as indicated:

(i) Any person with mental retardation or mental illness determined not to be in need of nursing facility services, whether or not active treatment services are required, shall be considered inappropriate for placement or continued residence in a nursing facility;

(ii) Any person with mental retardation or mental illness determined to be in need of active treatment services shall be considered inappropriate for placement or continued residence in a nursing facility;

(iii) Any person with mental retardation or mental illness determined to be in need of nursing facility services but not to be in need of active treatment services shall be considered appropriate for placement or continued residence in a nursing facility;

(iv) Any person with mental retardation or mental illness determined to be in need of both nursing facility services and active treatment, who is of advanced years, competent to make an independent decision and who is not a danger to self or others shall be considered appropriate for placement or continued residence in a nursing facility if the person so chooses.

(4) Medicaid recipients must be determined by a preadmission screening team to require nursing facility services before medicaid payment for services in a nursing facility or the home and community services program will be authorized.

(a) If a person is medicaid eligible prior to admission to a nursing facility, a nursing facility screening must be requested prior to admission. Payment for nursing facility care shall be effective on the date of entry to the nursing facility if the applicant meets all eligibility requirements.

(b) If the person applies for medicaid while a resident of a nursing facility, the nursing facility screening must be done prior to initial medicaid payment. Payment shall be effective on the date of the nursing facility screening or the date of referral to the preadmission screening team, whichever is earlier.

(5) Retroactive approval for nursing facility services is available only if:

(a) the applicant is determined to be financially eligible for medicaid during the retroactive period; and

(b) the applicant had undergone a determination of need for nursing facility services either by the preadmission screening team or for purposes of medicare payment; and

(c) the applicant was determined to be in need of nursing facility services as a result of the screenings.

(6) A nursing facility applicant who is not a medicaid recipient may request that a nursing facility screening be conducted. This screening will be performed by the preadmission screening team.

(7) Preadmission screening will be performed by persons the department determines are qualified to conduct the various elements of the screening.

(8) A nursing facility admitting a nursing facility applicant for whom a level I screening or a nursing facility screening has not been conducted may be subject to the sanctions provided at ARM 37.85.502 and to any other measures that federal or state authorities deem appropriate and necessary for the purposes of the federal Social Security Act.

(a) The services of a skilled nursing facility (SNF) are needed when a person meets the criteria for skilled care as defined by Title XVIII of the Social Security Act.

(b) The services of an intermediate care facility (ICF) are needed when a person:

(i) does not qualify for skilled nursing facility care; and

(ii) is determined by the department or its designee to need care at a level higher than personal care;

(c) In order to receive home and community services, an applicant must be determined to be at risk of or require care at the intermediate level as determined by the department or its designee through a functional rating of the person. The need for such care is indicated when the person:

(i) is able to ambulate (walk or wheel) to a dining room or equivalent;

(ii) is capable of self care with minimal assistance;

(iii) has four or fewer problems determined to be low level by the department or its designee; and

(iv) requires no more than one-hour of nursing care per 24 hours.

(d) A candidate for discharge is a person who has two or less problems. This criteria does not apply to persons with a diagnosis of mental illness or mental retardation.

(2) For mentally retarded persons applying for the home and community services program, the appropriate nursing facility services will be determined based upon the following criteria:

(a) The services of an intermediate care facility for the mentally retarded (ICF/MR) are needed when a mentally retarded person:

(i) has severe medical problems requiring substantial care, but not to the extent that habilitation is impossible;

(ii) has extreme deficits in self-care and daily living skills which require intensive training; or

(iii) has significant maladaptive social and/or interpersonal behavior patterns which require an on-going, supervised program of intervention.

(b) Skilled nursing facility (SNF) level of care is needed when a person with mental retardation meets the requirements for SNF services as found in (1) (a) of this rule.

(2) For a person who is identified as in need of nursing facility services in an intermediate care facility for the mentally retarded (ICF/MR) and is enrolled in the home and community services program, a redetermination will be conducted annually.

(2) Qualified mental retardation professional means a person who has specialized training or one year of work experience in habilitation or related services with mentally retarded or other developmentally disabled individuals.

(3) The department will accept as evidence of specialized training the following factors:

(a) licensure or certification in a profession which involves direct care to developmentally disabled persons;

(b) documentation of training, such as certification as a developmental disabilities client programming technician; or

(c) certification as a developmental disabilities professional person.

(4) The department will accept as evidence of work experience documentation of supervised employment in direct care to developmentally disabled persons.

(1) This subchapter specifies requirements applicable to provision of and reimbursement for Medicaid nursing facility services, including intermediate care facility services for individuals with intellectual disabilities. These rules are in addition to requirements generally applicable to Medicaid providers as otherwise provided in state and federal statute, rules, regulations, and policies.

(2) These rules are subject to the provisions of any conflicting federal statute, regulation or policy, whether now in existence or hereafter enacted or adopted.

(3) Reimbursement and other substantive nursing facility requirements are subject to the laws, regulations, rules, and policies then in effect. Procedural and other nonsubstantive provisions of these rules are effective upon adoption.

(1) "Administrator" means the person licensed by the state, including an owner, salaried employee, or other provider, with daily responsibility for operation of the facility. In the case of a facility with a central management group, the administrator, for the purpose of these rules, may be a person other than the titled administrator of the facility if such person has daily responsibility for operation of the nursing facility and is currently licensed by the state as a nursing home administrator.

(2) "Case mix index (CMI) " means an assigned weight or numeric score assigned to each RUG-III grouping which reflects the relative resources predicted to provide care to nursing facility residents.

(3) "Department" means the Montana Department of Public Health and Human Services or its agents, including but not limited to parties under contract to perform audit services, claim processing and utilization review.

(4) "Department audit staff" and "audit staff" mean personnel directly employed by the department or any of the department's contracted audit personnel or organizations.

(5) "Estimated economic life" means the estimated remaining period during which property is expected to be economically usable by one or more users, with normal repairs and maintenance, for the purpose for which it was intended when built.

(6) "Fiscal year" and "fiscal reporting period" both mean the provider's internal revenue tax year.

(7) "Maintenance therapy and rehabilitation services" mean repetitive services required to maintain functions which do not involve complex and sophisticated therapy procedures or the judgment and skill of a qualified therapist and without the expectation of significant progress.

(8) "Medicaid recipient" means a person who is eligible and receiving assistance under Title XIX of the Social Security Act for nursing facility services.

(9) "Minimum data set (MDS) " means the assessment form approved by the centers for Medicare and Medicaid services (CMS) , and designated by the department to satisfy conditions of participation in the Medicaid and Medicare programs.

(10) "Minimum data set RUG-III quarterly assessment form" means the three page quarterly, optional version for RUG-III 1997 update.

(11) "Nonemergency routine transportation" means transportation for routine activities, such as outings scheduled by the facility, nonemergency visits to physicians, dentists, optometrists, or other medical providers. This definition includes such transportation when it is provided within 20 miles of the facility.

(12) "Nursing facility fee schedule" means the list of separately billable ancillary services provided in ARM 37.40.330.

(13) "Nursing facility services" means nursing facility services as provided in ARM 37.40.304 and 37.40.305.

(14) "Patient contribution" means the total of all of a resident's income from any source available to pay the cost of care, less the resident's personal needs allowance. The patient contribution includes a resident's incurment determined in accordance with applicable eligibility rules.

(15) "Patient day" means a whole 24-hour period that a person is present and receiving nursing facility services, regardless of the payment source. Even though a person may not be present for a whole 24-hour period on the day of admission or day of death, such day will be considered a patient day. When department rules provide for the reservation of a bed for a resident who takes a temporary leave from a provider to be hospitalized or make a home visit, such whole 24-hour periods of absence will be considered patient days.

(16) "Provider" means any person, agency, corporation, partnership or other entity that, under a written agreement with the department, furnishes nursing facility services to Medicaid recipients.

(17) "Rate year" means a 12-month period beginning July 1. For example, rate year 2006 means a period corresponding to the state fiscal year July 1, 2005 through June 30, 2006.

(18) "Resident" means a person admitted to a nursing facility who has been present in the facility for at least one 24-hour period.

(19) "RUG-III" means resource utilization group, version III.

(20) "RUG-III grouper version" means the resource utilization group version III algorithm that classifies residents based upon diagnosis, services provided and functional status using MDS assessment information for each resident.

(1) Nursing facility services are provided in accordance with 42 CFR, part 483, subpart B, or intermediate care facility services for individuals with intellectual disabilities provided in accordance with 42 CFR, part 483, subpart I. The department adopts and incorporates by reference 42 CFR, part 483, subparts B and I, that define the participation requirements for nursing facility and intermediate care facility for individuals with intellectual disabilities (ICF/IID) providers, copies of which may be obtained from the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

(2) The term "nursing facility services" includes the term "long term care facility services".

(3) Nursing facility services include, but are not limited to:

(a) a medically necessary room;

(b) dietary services including dietary supplements used for tube feeding or oral feeding such as high nitrogen diet;

(c) nursing services;

(d) minor medical and surgical supplies; and

(e) the use of equipment and facilities.

(4) Payment for the services listed in ARM 37.40.304 and 37.40.305 are included in the per diem rate determined by the department under ARM 37.40.307 or 37.40.336 and no additional reimbursement is provided for such services.

(1) Nursing facility services include but are not limited to the following or any similar items:

(a) all general nursing services, including but not limited to administration of oxygen and medications, handfeeding, incontinence care, tray service, nursing rehabilitation services, enemas, and routine pressure sore/decubitis treatment;

(b) services necessary to provide for residents in a manner and in an environment that promotes maintenance or enhancement of each resident's quality of life;

(c) services required to attain or maintain the highest practicable physical, mental, and psychosocial well being of each Medicaid recipient who is a resident in the facility;

(d) items furnished routinely to all residents without charge, such as resident gowns, water pitchers, basins, and bed pans;

(e) items routinely provided to residents including but not limited to:

(i) antibacterial/bacteriostatic solutions, including betadine, hydrogen peroxide, 70% alcohol, merthiolate, zepherin solution;

(ii) cotton;

(iii) denture cups;

(iv) deodorizers (room-type);

(v) distilled water;

(vi) enema equipment and/or solutions;

(vii) facial tissues and paper toweling;

(viii) finger cots;

(ix) first aid supplies;

(x) foot soaks;

(xi) gloves (sterile and unsterile);

(xii) hot water bottles;

(xiii) hypodermic needles (disposable and nondisposable);

(xiv) ice bags;

(xv) incontinence pads;

(xvi) linens for bed and bathing;

(xvii) lotions (for general skin care);

(xviii) medication-dispensing cups and envelopes;

(xix) ointments for general protective skin care;

(xx) ointments (antibacterial);

(xxi) personal hygiene items and services, including but not limited to:

(A) bathing items and services, including but not limited to towels, washcloths, and soap;

(B) hair care and hygiene items, including but not limited to shampoo, brush, and comb;

(C) incontinence care and supplies appropriate for the resident's individual medical needs;

(D) miscellaneous items and services, including but not limited to cotton balls and swabs, deodorant, hospital gowns, sanitary napkins and related supplies, and tissues;

(E) nail care and hygiene items;

(F) shaving items, including but not limited to razors and shaving creme;

(G) skin care and hygiene items, including but not limited to bath soap, moisturizing lotion, and disinfecting soaps or specialized cleansing agents when indicated to treat special skin problems or to fight infection; and

(H) tooth and denture care items and services, including but not limited to toothpaste, toothbrush, floss, denture cleaner and adhesive;

(xxii) safety pins;

(xxiii) sterile water and normal saline for irrigating;

(xxiv) sheepskins and other fleece-type pads;

(xxv) soaps (hand or bacteriostatic);

(xxvi) supplies necessary to maintain infection control, including those required for isolation-type services;

(xxvii) surgical dressings;

(xxviii) surgical tape;

(xxix) over-the-counter drugs (or their equivalents), including but not limited to:

(A) acetaminophen (regular and extra-strength);

(B) aspirin (regular and extra-strength);

(C) cough syrups;

(D) specific therapeutic classes D4B (antacids), D6S (laxatives and cathartics) and Q3S (laxatives, local/rectal) including but not limited to:

(I) Milk of Magnesia;

(II) mineral oil;

(III) suppositories for evacuation (Dulcolax and glycerine);

(IV) Maalox; and

(V) Mylanta;

(E) nasal decongestants and antihistamines;

(xxx) straw/tubes for drinking;

(xxxi) suture removal kits;

(xxxii) swabs (including alcohol swab);

(xxxiii) syringes (disposable or nondisposable hypodermic; insulin; irrigating);

(xxxiv) thermometers, clinical;

(xxxv) tongue blades;

(xxxvi) water pitchers;

(xxxvii) waste bags;

(xxxviii) wound-cleansing beads or paste;

(f) items used by individual residents which are reusable and expected to be available, including but not limited to:

(i) bathtub accessories (seat, stool, rail);

(ii) beds, mattresses, and bedside furniture;

(iii) bedboards, foot boards, cradles;

(iv) bedside equipment, including bedpans, urinals, emesis basins, water pitchers, serving trays;

(v) bedside safety rails;

(vi) blood-glucose testing equipment;

(vii) blood pressure equipment, including stethoscope;

(viii) canes, crutches;

(ix) cervical collars;

(x) commode chairs;

(xi) enteral feeding pumps;

(xii) geriatric chairs;

(xiii) heat lamps, including infrared lamps;

(xiv) humidifiers;

(xv) isolation cart;

(xvi) IV poles;

(xvii) mattress (foam-type and water);

(xviii) patient lift apparatus;

(xix) physical examination equipment;

(xx) postural drainage board;

(xxi) room (private or double occupancy as provided in ARM 37.40.331);

(xxii) raised toilet seat;

(xxiii) sitz baths;

(xxiv) suction machines;

(xxv) tourniquets;

(xxvi) traction equipment;

(xxvii) trapeze bars;

(xxviii) vaporizers, steam-type;

(xxix) walkers (regular and wheeled);

(xxx) wheelchairs (standard); and

(xxxi) whirlpool bath;

(g) laundry services whether provided by the facility or by a hired firm, except for residents' personal clothing which is dry cleaned outside of the facility; and

(h) nonemergency routine transportation as defined in ARM 37.40.302(11).

(a) comply with and agree to be bound by all laws, rules, regulations and policies generally applicable to Medicaid providers, including but not limited to the provisions of ARM 37.85.401, 37.85.402, 37.85.406, 37.85.407, 37.85.410, 37.85.414, and 37.85.415;

(b) maintain a current license issued by the department of public health and human services under Montana law for the category and level of care being provided, or, if the facility is located outside the state of Montana, maintain a current license under the laws of the state in which the facility is located for the category and level of nursing facility care being provided;

(c) maintain a current certification for Montana Medicaid issued by the Department of Public Health and Human Services under applicable state and federal laws, rules, regulations and policies for the category and level of care being provided, or, if the facility is located outside the state of Montana, maintain current Medicaid certification in the state in which the facility is located for the category and level of nursing facility care being provided;

(d) maintain a current agreement with the department to provide the level of care for which payment is being made, or, if the facility is located outside the state of Montana, comply with the provisions of ARM 37.40.337;

(e) operate under the direction of a licensed nursing home administrator, or other qualified supervisor for the facility, as applicable laws, regulations, rules, or policies may require;

(f) for providers maintaining resident trust accounts, insure that any funds maintained in such accounts are used only for those purposes for which the resident, legal guardian, or personal representative of the resident has given written authorization. The provider must maintain personal funds in excess of $50 in an interest bearing account and must credit all interest earned to the resident's account. Resident's personal funds in amounts up to $50 must be maintained in such a manner that the resident has convenient access to such funds within a reasonable time upon request. A provider may not borrow funds from such accounts or commingle resident and facility funds for any purpose;

(g) A provider holding personal funds of a deceased nursing facility resident who received Medicaid benefits at any time shall, within 30 days following the resident's death, pay those funds as provided by law and regulation.

(h) maintain admission policies which do not discriminate on the basis of diagnosis or handicap, and which meet the requirements of all federal and state laws prohibiting discrimination against the handicapped, including persons infected with acquired immunity deficiency syndrome/human immunodeficiency virus (AIDS/HIV) ;

(i) comply with ARM 37.40.101, 37.40.105, 37.40.106, 37.40.110, 37.40.120, and 37.40.201 through 37.40.207, regarding screening for nursing facility services;

(j)  comply with all applicable federal and state laws, rules, regulations, and policies regarding nursing facilities at the times and in the manner required therein, including but not limited to 42 USC 1396r(b) (5) and 1396r(c) (1994 supp.) and implementing regulations, which contain federal requirements relating to nursing home reform. The department hereby adopts and incorporates herein by reference 42 USC 1396r(b) (5) and 1396r(c) . A copy of these statutes may be obtained from the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

(2) A provider which fails to meet any of the requirements of this rule may be denied Medicaid payments, refused further participation in the Medicaid program or otherwise sanctioned or made subject to appropriate department action, according to applicable laws, rules, regulations, or policies.

(a) Subject to applicable federal law and regulations, the department may impose a sanction or take other action against a provider that is not in compliance with federal Medicaid participation requirements. Department sanctions or actions may include imposition of any remedy or combination of remedies provided by state or federal law and regulations, including but not limited to federal regulations at 42 CFR 488, subpart F.

(3) A provider must provide the department with 30 days advance written notice of termination of participation in the Medicaid program. Notice will not be effective prior to 30 calendar days following actual receipt of the notice by the department. Notice must be mailed or delivered to the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

(a) For purposes of (3) , termination includes a cessation of provision of services to Medicaid residents, termination of the provider's business, a change in the entity administering or managing the facility or a change in provider as defined in ARM 37.40.325.

(b) In the event that discharge or transfer planning is necessary, the provider remains responsible to provide for such planning in an orderly fashion and to care for its residents until appropriate transfers or discharges are effected, even though transfer or discharge may not have been completed prior to the facility's planned date of termination from the Medicaid program.

(c) Providers terminating participation in the Medicaid program must prepare and file, in accordance with applicable cost reporting rules, a close out cost report covering the period from the end of the provider's previous fiscal year through the date of termination from the program. New providers assuming operation of a facility from a terminating provider must enroll in the Medicaid program in accordance with applicable rules.

(4) A provider must notify a resident or the resident's representative of a transfer or discharge as required by 42 CFR 483.12(a) (4) , (5) , and (6) . The notice must be provided using the form prescribed by the department. In addition to the notice contents required by 42 CFR 483.12, the notice must inform the recipient of the recipient's right to a hearing, the method by which the recipient may obtain a hearing and that the recipient may represent herself or himself or may be represented by legal counsel, a relative, a friend, or other spokesperson. Notice forms are available upon request from the department. Requests for notice forms may be made to the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

(1) For nursing facility services, other than ICF/IID services, provided by nursing facilities located within the state of Montana, the Montana Medicaid program will pay a provider, for each Medicaid patient day, a per diem rate determined in accordance with this rule, minus the amount of the Medicaid recipient's patient contribution.

(2) Effective July 1, 2020, and in subsequent rate years, the reimbursement rate for each nursing facility will be determined using the flat rate component specified in (2)(a) and the quality component specified in (2)(b).

(a) The flat rate component is the same per diem rate for each nursing facility and will be determined each year through a public process. Factors that could be considered in the establishment of this flat rate component include cost of providing nursing facility services and Medicaid recipient access to nursing facility services. The flat rate component for state fiscal year (SFY) 2024 is $257.54.

(b) The quality component of each nursing facility's rate is based on the 5-star rating system for nursing facility services calculated by the Centers for Medicare and Medicaid Services (CMS). It is set for each facility based on their average 5-star rating for staffing and quality. Facilities with an average rating of 3 to 5 stars will receive a quality component payment. The funding for the quality component payment will be divided by the total estimated Medicaid bed days to determine the quality component per Medicaid bed day. The quality component per bed day is then adjusted based on each facility's 5-star average of staffing and quality component scores. A facility with a 5-star average of staffing and quality component scores will receive 100%, a 4-star average will receive 75%, a 3-star average will receive 50%, and 1- and 2-star average facilities will receive 0%, of the quality component payment. Funds unused by the first allocation round will be reallocated based on the facility's percentage of unused allocation against the available funds.

(c) The total payment rate available for the period July 1, 2023, through June 30, 2024, will be the rate as computed in (2), plus any additional amount computed in ARM 37.40.311 and 37.40.361. Copies of the department's current nursing facility Medicaid reimbursement rates per facility are posted at https://medicaidprovider.mt.gov/26#1875810541, or may be obtained from the Department of Public Health and Human Services, Senior & Long-Term Care Division, P.O. Box 4210, Helena, MT 59604-4210.

(3) Providers who, as of July 1 of the rate year, have not filed with the department a cost report covering a period of at least six months participation in the Medicaid program in a newly constructed facility will have a rate set at the flat rate component as computed on July 1, 2023. Following a change in provider as defined in ARM 37.40.325, the per diem rate for the new provider will be set at the previous provider's rate, as if no change in provider had occurred.

(4) For ICF/IID services provided by nursing facilities located within the state of Montana, the Montana Medicaid program will pay a provider as provided in ARM 37.40.336.

(5) In addition to the per diem rate provided under (2) or the reimbursement allowed to an ICF/IID provider under (4), the Montana Medicaid program will pay providers located within the state of Montana for separately billable items, in accordance with ARM 37.40.330.

(6) For nursing facility services, including ICF/IID services, provided by nursing facilities located outside the state of Montana, the Montana Medicaid program will pay a provider only as provided in ARM 37.40.337.

(7) The Montana Medicaid program will not pay any provider for items billable to residents under the provisions of ARM 37.40.331.

(8) Reimbursement for Medicare coinsurance days will be as follows:

(a) for dually eligible Medicaid and Medicare individuals, reimbursement is limited to the per diem rate, as determined under (1) or ARM 37.40.336, or the Medicare co-insurance rate, whichever is lower, minus the Medicaid recipient's patient contribution; and

(b) for individuals whose Medicare buy-in premium is being paid under the qualified Medicare beneficiary (QMB) program under ARM 37.83.201 but are not otherwise Medicaid eligible, payment will be made only under the QMB program at the Medicare coinsurance rate.

(9) The department will not make any nursing facility per diem or other reimbursement payments for any patient day for which a resident is not admitted to a facility bed which is licensed and certified as provided in ARM 37.40.306 as a nursing facility or skilled nursing facility bed.

(10) The department will not reimburse a nursing facility for any patient day for which another nursing facility is holding a bed under the provisions of ARM 37.40.338(1), unless the nursing facility seeking such payment has, prior to admission, notified the facility holding a bed that the resident has been admitted to another nursing facility. The nursing facility seeking such payment must maintain written documentation of such notification.

(11) Providers must bill for all services and supplies in accordance with the provisions of ARM 37.85.406. The department's fiscal agent will pay a provider the amount determined under these rules upon receipt of an appropriate billing which reports the number of patient days of nursing facility services provided to authorized Medicaid recipients during the billing period.

(a) Authorized Medicaid recipients are those residents determined eligible for Medicaid and authorized for nursing facility services as a result of the screening process described in ARM 37.40.101, 37.40.105, 37.40.106, 37.40.110, 37.40.120, and 37.40.201, et seq.

(12) Payments provided under this rule are subject to all limitations and cost settlement provisions specified in applicable laws, regulations, rules, and policies. All payments or rights to payments under this rule are subject to recovery or nonpayment, as specifically provided in these rules. 

(2) Except as specifically provided in these rules, per diem rates and interim rates are set no more than once a year, effective July 1, and remain in effect at least through June 30 of the following year.

(a) Nothing in this subchapter shall be construed to require that the department apply any inflation adjustment, recalculate the Medicaid case mix index or the statewide price, or otherwise adjust or recalculate per diem rates or interim rates on July 1 of a rate year, unless the department adopts further rules or rule amendments providing specifically for a rate methodology for the rate year.

(3) A provider's rate established July 1 of the rate year shall remain in effect throughout the rate year and throughout subsequent rate years, regardless of any other provision in this subchapter, until the effective date of a new rate established in accordance with a new rule or amendment to these rules, adopted after the establishment of the current rate, which specifically provides a rate methodology for the new or subsequent rate year.

This rule has been repealed.

(1) For each state fiscal year, the department will provide a mechanism for a one time, lump sum payment to nonstate government owned or operated facilities for Medicaid services according to the methodology specified in this rule. These payments will be for the purpose of maintaining access and viability for a class of "at risk" county affiliated facilities who are predominately rural and are the only nursing facility in their community or county or who provide a significant share of nursing facility services in their community or county.

(2) A nursing facility is eligible to participate in this lump sum payment distribution if it is a nonstate government owned or operated facility that has provided Medicaid services in the current state fiscal year.

(a) The department will calculate the amount of lump sum distribution that will be allowed for each county affiliated provider so that the total per day amount does not exceed the computed Medicare upper payment limit for these providers. Distribution of these lump sum payments will be based on the Medicaid utilization at each participating facility for the period July 1 of the previous year through June 30 of the current year.

(b) In order to qualify for this lump sum adjustment, each county on behalf of its non-state government owned or operated facility must enter into a written agreement to transfer local county funds to be used as matching funds by the department. This transfer option is voluntary, but those counties that agree to participate must abide by the terms of the written agreement.

(3) On or after July 1 of each year, the department will provide for a one time, lump sum distribution of funding to nursing facilities not participating in the funding for "at risk" facilities for the provision of Medicaid services.

(4) The department will calculate the maximum amount of the lump sum payments that will be allowed for each participating non-state government owned or operated facility, as well as the additional payments for other nursing facilities not participating in the funding for "at risk" facilities for the provision of Medicaid services in accordance with state and federal laws, as well as applicable Medicare upper payment limit thresholds. This payment will be computed as a per day add-on based upon the funding available. Distribution will be in the form of lump sum payments and will be based on the Medicaid utilization at each participating facility for the period July 1 of the preceding year through June 30 of the current year.

(5) There may be no prearranged formal or informal agreements with the nursing facility to return or redirect any portion of the lump sum nursing facility payment to the county in order to fund other Medicaid services or non-Medicaid services.

(a) Payments or credits for normal operating expenses and costs are not considered a return or redirection of a Medicaid payment.

(6) "Normal operating expenses" and "costs" include, but are not limited to:

(a) taxes, including health care provider related taxes;

(b) mill levies;

(c) fees;

(d) payment of facility construction bonds or loans;

(e) health insurance costs, unemployment insurance, workers compensation, and other employee benefits;

(f) payments in lieu of rent based on depreciation cost of county buildings occupied by nursing facility;

(g) mortgage or rent payments;

(h) payment of building insurance;

(i) other business relationships with county governments unrelated to Medicaid in which there is no connection to Medicaid payments; and

(j) legitimate services provided by the county to the nursing facility such as building maintenance, legal services, accounting, and advertising.

(7) Charges for services must be reasonable and the services must be documented.

(a) Documentation supporting charges are subject to the audit and record retention provisions in ARM 37.85.414.

This rule has been repealed.

This rule has been repealed.

(1) Providers must provide staffing at levels which are adequate to meet federal law, regulations, and requirements.

(a) Each provider must submit to the department within ten days following the end of each calendar month a complete and accurate DPHHS-SLTC-015, "Monthly Nursing Home Staffing Report" prepared in accordance with all applicable department rules and instructions.

(b) If a complete and accurate DPHHS-SLTC-015 is not received by the department within ten days following the end of each calendar month, the department may withhold all payments for nursing facility services until the provider complies with the reporting requirements in (1)(a).

(2) Submitted assessment data shall conform to federal data specifications and meet minimum editing and validation requirements.

(3) Retention of assessments on the database will follow the records retention policy of the Department of Public Health and Human Services. Back up tapes of each rate setting period will be maintained for a period of five years.

(4) Assessments not containing sufficient in-range data to perform a resource utilization group-III (RUG-III) algorithm will not be included in the case mix calculation during the transition period.

(5) All current assessments in the database older than six months will be excluded from the case mix index calculation.

(6) For purposes of calculating rates, the department will use the RUG-III, 34 category, index maximizer model, version 5.12. The department may update the classification methodology to reflect advances in resident assessment or classification subject to federal requirements.

(7) For purposes of calculating rates, case mix weights will be developed for each of the 34 RUG-III groupings. The department will compute a Montana specific Medicaid case mix utilizing average nursing times from the 1995 and the 1997 CMS case mix time study. The average minutes per day per resident will be adjusted by Montana specific salary ratios determined by utilizing the licensed to non-licensed ratio spreadsheet information.

(8) For purposes of calculating rates, the department shall assign each resident a RUG-III group calculated on the most current non-delinquent assessment available on the first day of the second month of each quarter as amended during the correction period. The RUG-III group will be translated to the appropriate case mix index or weight. From the individual case mix weights for the applicable quarter, the department shall determine a simple facility average case mix index, carried to four decimal places, based on all resident case mix indices. For each quarter, the department shall calculate a Medicaid average case mix index, carried to four decimal places, based on all residents for whom Medicaid is reported as the per diem payor source any time during the 30 days prior to their current assessment.

(9) Facilities will be required to comply with the data submission requirements specified in this rule and ARM 37.40.321. The department will utilize Medicaid case mix data in the computation of rates for the period July 1, 2001 through June 30, 2002 and for rate years thereafter.

(1) The department will prepare and distribute resident listings to facilities by the 15th day of the third month of each quarter (cut off date) . The listings will identify current assessments for residents in the nursing facility on the first day of the second month of each quarter as reflected in the database maintained by the department. The listings will identify resident social security numbers, names, assessment reference date, the calculated RUG-III category and the payor source. Resident listings shall be signed and returned to the department by the 15th day of the first month of the following calendar quarter. Facilities who do not return this corrected resident listing by the due date will use the database information on file in their case mix calculation.

(2) If data reported on the resident listings is in error or if there is missing data, facilities will have until the 15th day of the first month of each calendar quarter to correct data submissions.

(a) Errors or missing data on the resident listings due to untimely submissions to the CMS database maintained by the Department of Public Health and Human Services (DPHHS) are corrected by transmitting the appropriate assessments or tracking documents to DPHHS in accordance with CMS requirements.

(b) Errors in key field items are corrected following the CMS key field specifications through DPHHS.

(c) Errors on the current payor source should be noted on the resident listings prior to signing and returning to DPHHS.

(3) The department may also use Medicaid paid claim data to determine the Medicaid residents in each facility when determining the Medicaid average case mix index for each facility.

(2) Each provider must document and submit to the department on a quarterly basis information on the nurse aide certification training and competency evaluation (testing) costs, including but not limited to the costs of training for nurse aides and the costs of actual testing required for nurse aides, incurred at the facility and, in the case of competency evaluation (testing) costs for providers that are not testing entities, incurred in payment of a qualified testing entity's fee for competency evaluation (testing) . The required information must be submitted quarterly on the nurse aide certification/training and competency evaluation (testing) survey reporting form provided by the department and must include the total dollars incurred in each of the categories of facility personnel, supplies and equipment, subcontracted services and testing fees. The reporting form must include a brief description of the items included in each of the four categories.

(a) Acceptable documentation will be any documentation that adequately supports the costs claimed on the reporting form and includes all records and documentation as defined in ARM 37.40.346, such as invoices, contracts, canceled checks and time cards. This documentation is subject to desk review and audit in accordance with ARM 37.40.346. This documentation must be maintained by the facility for six years, three months from the date the form is filed with the department or until any dispute or litigation regarding the costs supported by such documentation is finally resolved, whichever is later.

(b) If a provider fails to submit the quarterly reporting form within 30 calendar days following the end of the quarter, the department may withhold reimbursement payments in accordance with ARM 37.40.346(4) (c) . All amounts so withheld will be payable to the provider upon submission of a complete and accurate nurse aide certification/training survey reporting form.

(3) Medicaid nursing facility reimbursement for the costs associated with training and competency evaluation programs for nurse aides employed in Medicare and Medicaid nursing facilities, as required under OBRA, shall be as follows:

(a) Nurse aide certification training and competency evaluation (testing) costs documented in accordance with (2) and allowable under ARM 37.40.345 will be reimbursed to the extent provided under the per diem rate determined under ARM 37.40.307. No additional reimbursement will be provided for such costs.

(4) For purposes of reporting under (2) , nurse aide tests are those tests which:

(a) demonstrate competency through testing methods which address each course requirement and include successful completion of both a written or oral examination and a demonstration of the skills required to perform the tasks required of a nurse aide;

(b) are performed at either a nursing facility which is currently in compliance with Medicaid nursing facility participation requirements or at a regional testing site at regularly scheduled testing times;

(c) are administered to nurse aides actually employed by the facility; and

(d) do not exceed a third attempt by the individual nurse aide to successfully complete the portion of the test for which costs are reported. The written/oral examination and the skills demonstration may be taken separately if the nurse aide passed only one portion of the test in a previous exam.

(5) Competency evaluation (testing) costs reported by a provider shall include the testing entity's basic fee charged to the facility and other costs associated with competency testing, to the extent allowable under ARM 37.40.345.

This rule has been repealed.

This rule has been repealed.

(1) Except as provided in (2) , a change in provider will be deemed to have occurred if the events described in any one of the following (1) (a) through (d) occurs:

(a) For sole proprietorship providers, a change in provider occurs where the entire sole proprietorship is sold to an unrelated party and a selling proprietor does not retain a right of control over the business.

(b) For partnership providers, a change in provider occurs where:

(i) a new partner acquires an interest in the partnership greater than 50%;

(ii) the new partner is not a related party to either a current partner or a former partner from whom the new partner acquired all or any portion of the new partner's interest; and

(iii) the current or former partners from whom the new partner acquires an interest do not retain a right of control over the partnership arising from the transferred interest.

(c) For corporation providers, a change in provider occurs where stock and the associated stockholder rights representing an interest of more than 50% in the provider's corporation is acquired by an unrelated party.

(d) For all providers, a change in provider occurs where an unrelated party acquires:

(i) the provider's title or interest in the nursing facility or a leasehold interest in the nursing facility; and

(ii) the right to control and manage the business of the nursing facility.

(2) Regardless of the provisions of (1) through (1) (d) , a change in provider will not be deemed to have occurred if the circumstances indicate that:

(a) a related party will acquire, retain or actually exercise substantial influence over the new entity; or

(b) the occurrence or transaction is undertaken primarily for the purpose of triggering a change in provider under this rule.

(3) For purposes of this rule:

(a) "Provider" means the business entity having the right to control and manage the business of the nursing facility.

(b) "Related party" means:

(i) a person, including a natural person and a corporation, who is an owner, partner or stockholder in the current provider and who has a direct or indirect interest of 5% or more or a power, whether or not legally enforceable to directly or indirectly influence or direct the actions or policies of the entity;

(ii) A spouse, ancestor, descendant, sibling, uncle, aunt, niece, or nephew of a person described in (3)(b)(i) or a spouse of an ancestor, descendant, sibling, uncle, aunt, niece or nephew of a person described in (3)(b)(i); or

(iii) a sole proprietorship, partnership corporation or other entity in which a person described in (3)(b)(i) or (ii) has a direct or indirect interest of 5% or more or a power, whether or not legally enforceable to directly or indirectly influence or direct the actions or policies of the entity.

(c) "Unrelated party" means a person or entity that is not a related party.

(4) In determining whether a change in provider has occurred within the meaning of this rule, the provisions of federal Medicare law, regulation or policy or related caselaw regarding changes in ownership under the Medicare program are not applicable.

(5) As required in ARM 37.40.306, a provider must provide the department with 30 days advance written notice of a change in provider and must file a close out cost report, and new providers must enroll in the Medicaid program in accordance with applicable requirements.

(6) Any change in provider, corporate or other business ownership structure, or operation of the facility that results in a change in the National Provider Identifier (NPI) will require a provider to seek a new Medicaid provider enrollment. If the NPI is transferred with the facility, and this results in a change in the federal tax identification number, the provider will be required to seek a new Medicaid provider enrollment. 

(1) This rule specifies the methodology the department will use to determine the interim per diem rate for in-state providers, other than ICF/IID providers, which as of July 1 of the rate year have not filed with the department a cost report covering a period of at least six months participation in the Medicaid program in a newly constructed facility or following a change in provider as defined in ARM 37.40.325.

(a) Effective July 1, 2001, and thereafter, the rate paid to new providers that acquire or otherwise assume the operations of an existing nursing facility, that was participating in the Medicaid program prior to the transaction, will be paid the price-based reimbursement rate in effect for the prior owner/operator of the facility before the transaction as if no change in provider had occurred. These rates will be adjusted at the start of each state fiscal year in accordance with (1)(b).

(b) Effective July 1 2020, and thereafter, the rate paid to newly constructed facilities or to facilities participating in the Medicaid program for the first time will be the flat rate component specified under ARM 37.40.307(2)(a) combined with the quality component specified under ARM 37.40.307(2)(b).

(1) In addition to the amount payable under the provisions of ARM 37.40.307(1) or (4) , the department will reimburse nursing facilities located in the state of Montana for the following separately billable items. Refer to the department's nursing facility fee schedule for specific codes and refer to healthcare common procedure coding system (HCPCS) coding manuals for complete descriptions of codes:

(a) ostomy surgical tray;

(b) ostomy face plate;

(c) ostomy skin barriers;

(d) ostomy filter;

(e) ostomy bags (pouches) ;

(f) ostomy belt;

(g) adhesive;

(h) adhesive remover;

(i) ostomy irrigation set and supplies;

(j) ostomy lubricant;

(k) ostomy rings;

(l) ostomy irrigation supply, cone/catheter, including brush;

(m) catheter care kit;

(n) urine test or reagent strips or tablets;

(o) blood tubing, arterial or venous;

(p) blood glucose test strips for dialysis;

(q) blood glucose test or reagent strips for home blood glucose monitor;

(r) implantable access catheter (venous, arterial, epidural, subarachnoid, peritoneal, etc.) external access;

(s) gastrostomy/jejunostomy tube, any material, any type;

(t) oropharyngeal suction catheter;

(u) implanted pleural catheter;

(v) external urethral clamp or compression device;

(w) urinary catheters;

(x) urinary insertion trays (sets) ;

(y) urinary collection bags;

(z) tracheostomy care kit for established tracheostomy;

(aa) tracheostomy, inner cannula (replacement only) ;

(ab) oxygen contents, portable, liquid;

(ac) oxygen contents, portable, gas;

(ad) oxygen contents, stationary, liquid;

(ae) oxygen contents, stationary, gas;

(af) cannula, nasal;

(ag) oxygen tubing;

(ah) regulator;

(ai) mouth piece;

(aj) stand/rack;

(ak) face tent;

(al) humidifier;

(am) breathing circuits;

(an) respiratory suction pump, home model, portable, or stationary;

(ao) nebulizer, with compressor;

(ap) feeding syringe;

(aq) nasal interface (mask or cannula type) used with positive airway device;

(ar) stomach tube - levine type;

(as) nasogastric tubing (with or without stylet) ;

(at) nutrition administration kits;

(au) feeding supply kits;

(av) nutrient solutions for parenteral and enteral nutrition therapy when such solutions are the only source of nutrition for residents who, because of chronic illness or trauma, cannot be sustained through oral feeding. Payment for these solutions will be allowed only where the department determines they are medically necessary and appropriate, and authorizes payment before the items are provided to the resident;

(aw) routine nursing supplies used in extraordinary amounts and prior authorized by the department;

(ax)   oxygen concentrators and portable oxygen units (cart, E tank and regulators), if prior authorized by the department.

(i)   The department will prior authorize oxygen concentrators and portable oxygen units (cart, E tank and regulators) only if:

(A)   The provider submits to the department documentation of the cost and useful life of the concentrator or portable oxygen unit, and a copy of the purchase invoice.

(B)   The provider maintains a certificate of medical necessity indicating the PO2 level or oxygen saturation level. This certificate of medical necessity must meet or exceed Medicare criteria and must be signed and dated by the patient's physician. If this certificate is not available on request of the department or during audit, the department may collect the corresponding payment from the provider as an overpayment in accordance with ARM 37.40.347.

(ii)   The provider must attach to its billing claim a copy of the prior authorization form.

(iii)   The department's maximum monthly payment rate for oxygen concentrators and portable oxygen units (cart, E tank and regulators) will be the invoice cost of the unit divided by its estimated useful life as determined by the department. The provider is responsible for maintenance costs and operation of the equipment and will not be reimbursed for such costs by the department. Such costs are considered to be covered by the provider's per diem rate.

(2) The department may, in its discretion, pay as a separately billable item, a per diem nursing services increment for services provided to a ventilator dependent resident, trach dependent resident, behavior related needs resident, wound care resident, bariatric care resident, and residents with traumatic brain injury (TBI) diagnoses if the department determines that extraordinary staffing by the facility is medically necessary based upon the resident's needs.

(a) Payment of a per diem nursing services increment under (2) for services provided to a ventilator dependent resident shall be available only if, prior to the provision of services, the increment has been authorized in writing by the department's senior and long term care division. Approvals will be effective for one month intervals and reapproval must be obtained monthly.

(b) The department may require the provider to submit any appropriate medical and other documentation to support a request for authorization of the increment. Each calendar month, the provider must submit to the department, together with reporting forms and according to instructions supplied by the department, time records of nursing services provided to the resident during a period of five consecutive days. The submitted time records must identify the amount of time care is provided by each type of nursing staff, i.e., licensed and nonlicensed.

(c) The increment amount shall be determined by the department as follows. The department shall subtract the facility's current average Medicaid case mix index (CMI) used for rate setting determined in accordance with ARM 37.40.320 from the CMI computed for the ventilator dependent resident, determined based upon the current minimum data set (MDS) information for the resident in order to determine the difference in case mix for this resident from the average case mix for all Medicaid residents in the facility. The increment shall be determined by the department by multiplying the provider's direct resident care component by the ratio of the resident's CMI to the facility's average Medicaid CMI to compute the adjusted rate for the resident. The department will determine the increment for each resident monthly after review of case mix information and five consecutive day nursing time documentation review.

(3) The department will reimburse for all Montana Medicaid covered services delivered via telemedicine/telehealth originating site fees as long as such services are medically necessary and clinically appropriate for delivery via telemedicine/telehealth, comply with the guidelines set forth in the applicable Montana Medicaid provider manual, and are not a service specifically required to be face-to-face.

(4) The department will reimburse for separately billable items at direct cost, with no indirect charges or mark-up added. For purposes of combined facilities providing these items through the hospital portion of the facility, direct cost will mean invoice price to the hospital with no indirect cost added.

(a) If the items listed in (1)(a) through (1)(ax) are also covered by the Medicare program and provided to a Medicaid recipient who is also a Medicare recipient, reimbursement will be limited to the lower of the Medicare prevailing charge or the amount allowed under (3). Such items may not be billed to the Medicaid program for days of service for which Medicare Part A coverage is in effect.

(b) The department will reimburse for separately billable items only for a particular resident, where such items are medically necessary for the resident and have been prescribed by a physician.

(5) Physical, occupational, and speech therapies which are not nursing facility services may be billed separately by the licensed therapist providing the service, subject to department rules applicable to physical therapy, occupational therapy, and speech therapy services.

(a) Maintenance therapy and rehabilitation services within the definition of nursing facility services in ARM 37.40.302 are reimbursed under the per diem rate and may not be billed separately by either the therapist or the provider.

(b) If the therapist is employed by or under contract with the provider, the provider must bill for services which are not nursing facility services under a separate therapy provider number.

(6) Durable medical equipment and medical supplies which are not nursing facility services and which are intended to treat a unique condition of the recipient which cannot be met by routine nursing care, may be billed separately by the medical supplier in accordance with department rules applicable to such services.

(7) All prescribed medication may be billed separately by the pharmacy providing the medication, subject to department rules applicable to outpatient drugs. The nursing facility will bill Medicare directly for reimbursement of Medicare Part B covered drugs and vaccines and their administration when they are provided to an eligible Medicare Part B recipient. Medicaid reimbursement is not available for Medicare Part B covered drugs and vaccines and related administration costs for residents that are eligible for Medicare Part B.

(8) Nonemergency routine transportation for activities other than those described in ARM 37.40.302(11), may be billed separately in accordance with department rules applicable to such services. Emergency transportation may be billed separately by an ambulance service in accordance with department rules applicable to such services.

(9) The provider of any other medical services or supplies, which are not nursing facility services, provided to a nursing facility resident may be billed by the provider of such services or supplies to the extent allowed under and subject to the provisions of applicable department rules.

(10) The provisions of (3) through (7) apply to all nursing facilities, including intermediate care facilities for individuals with intellectual disabilities, whether or not located in the state of Montana.

(11) Providers may contract with any qualified person or agency, including home health agencies, to provide nursing facility services. However, except as specifically allowed in these rules, the department will not reimburse the provider for such contracted services in addition to the amounts payable under ARM 37.40.307.

(a) gifts purchased by residents;

(b) social events and entertainment outside the scope of the provider's activities program;

(c) cosmetics and grooming items and services in excess of those for which payment is made by Medicare or Medicaid;

(d) personal comfort items, including tobacco products and accessories, notions, novelties, and confections;

(e) personal dry cleaning;

(f) beauty shop services;

(g) television, radio and private telephone rental;

(h) less-than-effective drugs (exclusive of stock items) ;

(i) vitamins, multivitamins, vitamin supplements and calcium supplements;

(j) personal reading materials;

(k) personal clothing;

(l) flowers and plants;

(m) privately hired nurses or aides;

(n) specially prepared or alternative food requested instead of food generally prepared by facility; and

(o) the difference between the cost of items usually reimbursed under the per diem rate and the cost of specific items or brands requested by the resident which are different from that which the facility routinely stocks or provides (e.g., special lotion, powder, diapers) ;

(2) Services provided in private rooms will be reimbursed by the department at the same rate as services provided in a double occupancy room.

(a) A provider must provide a medically necessary private room at no additional charge and may not bill the recipient any additional charge for the medically necessary private room.

(b) A provider may bill a resident for the extra cost of a private room if the private room is not medically necessary and is requested by the resident. The provider must clearly inform the resident that additional payment is strictly voluntary.

(1) For intermediate care facility services for individuals with intellectual disabilities provided in facilities located in the state of Montana, the Montana Medicaid program will pay a provider a per diem rate equal to the actual allowable cost incurred by the provider during the fiscal year, determined retrospectively in accordance with ARM 37.40.345 and 37.40.346, divided by the total patient days of service during the rate year, minus the amount of the Medicaid recipient's patient contribution, subject to the limits specified in (2)(a) and (b).

(2) Payments under (1) may not exceed the following limits:

(a) Final per diem payment rates for base years shall be as specified in (1), without application of any further limit. Base years are even-numbered state fiscal years, i.e., state fiscal years 1994, 1996, and subsequent even-numbered years.

(b) Final per diem rates in non-base years are limited to the final per diem rate for the immediately preceding base year indexed from June 30 of the base year to June 30 of the rate year. The index is the final Medicare market basket index applicable to the non-base year. Non-base years are odd-numbered state fiscal years, i.e., state fiscal years 1993, 1995 and subsequent odd-numbered years.

(3) All ICF/IID providers must use a July 1 through June 30 fiscal year for accounting and cost reporting purposes.

(4) Prior to the billing of July services each rate year, the department will determine an interim payment rate for each provider. The provider's interim payment rate shall be determined based upon the department's estimate of actual allowable cost under ARM 37.40.345, divided by estimated patient days for the rate year. The department may consider, but shall not be bound by, the provider's cost estimates in estimating actual allowable costs. The provider's interim payment rate is an estimate only and shall not bind the department in any way in the final rate determination under (1) and (5).

(5) The provider's final rate as provided in (1) shall be determined based upon the provider's cost report for the rate year filed in accordance with ARM 37.40.346, after desk review or audit by the department's audit staff. The difference between actual includable cost allocable to services to Medicaid residents, as limited in (2), and the total amount paid through the interim payment rate will be settled through the overpayment and underpayment procedures specified in ARM 37.40.347.

(6) Following the sale of an intermediate care facility for individuals with intellectual disabilities after April 5, 1989, the new provider's property costs will be the lesser of historical costs or the rate used for all other intermediate care facilities, subject to the limitations in 42 USC 1396a(a)(13)(C).

(1) The department will reimburse nursing facilities located outside the state of Montana for nursing facility services and any other reimbursable services or supplies provided to eligible Montana Medicaid individuals at the Medicaid rate and upon the basis established by the Medicaid agency in the state in which the facility is located.

(2) The Montana Medicaid program will pay for nursing facility services or related supplies provided to eligible Montana Medicaid individuals in nursing facilities located outside the state of Montana only when one of the following conditions is met:

(a) because of a documented medical emergency, the resident's health would be endangered if he or she was to return to Montana for medical services;

(b) the services required are not provided in Montana;

(c) the required services and all related expenses are less costly than if the required services were provided in Montana;

(d) the recipient is a child in another state for whom Montana makes adoption assistance or foster care assistance payments; or

(e) the department determines that it is general practice for recipients in the resident's particular locality to use medical resources located in another state.

(3) To receive payments, the out-of-state provider must enroll in the Montana Medicaid program. Enrollment information and instructions may be obtained from the department's fiscal intermediary.

(4) The department will reimburse a nursing facility located outside the state of Montana under the Montana Medicaid program only if, in addition to meeting other applicable requirements, the facility has submitted to the department the following information:

(a) a physician's order identifying the Montana resident and specifically describing the purpose, cause and expected duration of the stay;

(b) for nursing facility services, copies of documents from the facility's state Medicaid agency establishing or stating the facility's Medicaid per diem rate for the period the services were provided;

(c) for separately billable items, copies of documents from the facility's state Medicaid agency establishing or stating the Medicaid reimbursement payable for such items for the period the items were provided;

(d) a properly completed level I screening form for the resident, as required by ARM 37.40.201, et seq.;

(i) To the extent required by ARM 37.40.201, et seq., a level I screening must be performed prior to entry into the nursing facility to determine if there is a diagnosis of mental illness or mental retardation and if so, to conduct assessments which determine the resident's need for active treatment. A level I screening form may be obtained from the department.

(e) a copy of the preadmission-screening determination for the resident completed by the department or its designee;

(i) Payment will be made for services no earlier than the date of referral for screening or the date of screening, whichever is earlier.

(f) the resident's full name, Medicaid ID number and dates of service;

(g) a copy of the certification notice from the facility's state survey agency showing certification for Medicaid during the period services were provided; and

(h) assurances that, during the period the billed services were provided, the facility was not operating under sanctions imposed by Medicare or Medicaid which would preclude payment.

(5) Reimbursement to nursing facilities located outside the state of Montana for Medicare coinsurance days for dually eligible Medicaid and Medicare individuals shall be limited to the per diem rate established by the facility's state Medicaid agency, less the Medicaid recipient's patient contribution.

(a) the provider's facility is full and has a current waiting list of potential residents during each such bed day claimed for reimbursement;

(b) the resident for whom the bed is held is temporarily receiving medical services outside the facility, except in another nursing facility, and is expected to return to the provider;

(c) the cost of holding the bed will evidently be less costly than the possible cost of extending the hospital stay until an appropriate long term care bed would otherwise become available; and

(d) the provider has received written approval from the department's senior and long term care division as provided in (4) .

(2) For purposes of (1) , a provider will be considered full if:

(a) all Medicaid certified beds are occupied or being held for a recipient who is either temporarily receiving medical services outside the provider's facility or outside the facility on a therapeutic home visit; or

(b) as to gender, if all appropriate, available beds are occupied or being held. For example, if all beds are occupied or held except for one semi-private bed in a female room, the provider is full for purposes of hold days for male recipients.

(3) For purposes of (1) , the provider must maintain and, upon request, provide to the department or its agents documentation that the absence is expected to be temporary and of the anticipated duration of the absence. Temporary absences which are of indefinite duration must be documented at least weekly by the provider to assure that the absence is indeed temporary.

(4) A provider's request for the department's written approval of bed hold days as required in (1) must be submitted to the department's senior and long term care division on the form provided by the department within 90 days after the first day of the requested bed hold period. The request must include a copy of the waiting list applicable to each bed hold day claimed for reimbursement.

(5) Where the conditions of (1) through (4) are met, providers are required to hold a bed and may not fill the bed until these conditions are no longer met. The bed may not be filled unless prior approval is obtained from the department's senior and long term care division. In situations where conditions of billing for holding a bed are not met, providers must hold the bed and may not bill Medicaid for the bed hold day until all conditions of billing are met and may not bill the resident under any circumstances.

(6) Payment will be made to a provider for holding a bed for a resident during a therapeutic home visit only if:

(a) the recipient's plan of care provides for therapeutic home visits;

(b) the recipient is temporarily absent on a therapeutic home visit; and

(c) the resident is absent from the provider's facility for no more than 72 consecutive hours per absence, unless the department determines that a longer absence is medically appropriate and has authorized the longer absence in advance of the absence. If a resident leaves the facility unexpectedly, on a weekend or a non business day for a visit longer than 72 hours, a provider must call in to the department on the next business day to receive prior authorization for the visit. If a resident is unexpectedly delayed while out on a therapeutic home visit, a provider must call the department and receive prior authorization if that delay will result in the visit exceeding 72 hours or obtain an extension for a visit that was previously approved by the department in excess of 72 hours.

(7) The department may allow therapeutic home visits for trial placement in the Home and Community Services (Medicaid Waiver) program.

(8) No more than 24 days per resident in each rate year (July 1 through June 30) will be allowed for therapeutic home visits.

(9) The provider must submit to the department's Senior and Long Term Care Division a request for a therapeutic home visit bed hold, on the appropriate form provided by the department, within 90 days of the first day a resident leaves the facility for a therapeutic home visit. Reimbursement for therapeutic home visits will not be allowed unless the properly completed form is filed timely with the department's Senior and Long Term Care Division.

(10) Approvals or authorizations of bed hold days obtained from county offices will not be valid or effective for purposes of this rule.

(1) In accordance with section 9435(b) of the Omnibus Budget Reconciliation Act of 1986, Public Law 99-509, the department may not pay a nursing facility provider for services provided to an eligible Medicaid/Medicare individual who has elected the Medicare hospice benefit.

(a) This rule applies where the hospice provider and the nursing facility provider have made a written agreement under which the hospice provider agrees to provide professional management of the individual's hospice care and the nursing facility provider agrees to provide room and board to the individual.

(b) When this rule applies, the department will pay the hospice provider in accordance with the department's rules governing Medicaid reimbursement to hospice providers.

(1) This rule applies for purposes of determining allowable costs for cost reporting periods beginning on or after July 1, 1991. Allowable costs for cost reporting periods beginning prior to July 1, 1991 will be determined in accordance with rules for allowable costs then in effect.

(2) For purposes of reporting and determining allowable costs, the department hereby adopts and incorporates herein by reference the Provider Reimbursement Manual (PRM-15), published by the United States Department of Health and Human Services, Social Security Administration, which provides guidelines and policies to implement Medicare regulations and principles for determining the reasonable cost of provider services furnished under the Health Insurance for Aged Act of 1965, as amended. A copy of the PRM-15 may be obtained through the Department of Public Health and Human Services, Senior and Long Term Care Division, P.O. Box 4210, 111 N. Sanders, Helena, MT 59604-4210. Applicability of the PRM-15 is subject to the exceptions and limitations specified in this rule.

(a) The term "allowable costs" means costs which are allowable under the provisions of this subchapter and which are considered in determining the costs of providing Medicaid nursing facility services. The determination that a cost is an allowable cost does not require the department to reimburse the provider for that cost. Providers will be reimbursed only as specifically provided in these rules.

(3) For purposes of reporting costs as required in ARM 37.40.346, allowable costs will be determined in accordance with the PRM-15, subject to the exceptions and limitations provided in these rules, including but not limited to the following:

(a) Return on net invested equity is an allowable cost only for providers of intermediate care facility services for individuals with intellectual disabilities which provide services on a for-profit basis.

(b) Allowable property costs are limited as follows:

(i) The capitalized costs of movable equipment are not allowable in excess of the fair market value of the asset at the time of acquisition.

(ii) Property-related interest, whether actual interest or imputed interest for capitalized leases, is not allowable in excess of the interest rates available to commercial borrowers from established lending institutions at the date of asset acquisition or at the inception of the lease.

(iii) Leases must be capitalized according to generally accepted accounting principles.

(iv) Depreciation of real property and movable equipment must be in accordance with American hospital association guidelines. Depreciation of real property and movable equipment based upon accelerated cost recovery guidelines is not an allowable cost.

(v) In accordance with sections 1861(v) (1) (O) and 1902(a) (13) of the Social Security Act, allowable property costs shall not be increased on the basis of a change in ownership which takes place on or after July 18, 1984. Section 1861(v) (1) (O) and section 1902(a) (13) of the Social Security Act are hereby adopted and incorporated herein by reference. The cited statutes are federal statutes governing allowability of certain facility property costs for purposes of Medicare and Medicaid program reimbursement. Copies of these sections may be obtained through the Department of Public Health and Human Services, Senior and Long Term Care Division, P.O. Box 4210, 111 N. Sanders, Helena, MT 59604-4210.

(c) Administrator compensation is allowable only as determined according to the PRM-15 provisions relating to owner compensation, and as specifically limited in this rule.

(i) For purposes of reporting and determining allowable administrator compensation, administrator compensation includes:

(A) all salary paid to the administrator for managerial, administrative, professional or other services;

(B) all employee benefits except employer contributions required by state or federal law for FICA, workers' compensation insurance (WCI) , federal unemployment insurance (FUI) , and state unemployment insurance (SUI) ;

(C) all deferred compensation either accrued or paid;

(D) the value of all supplies, services, special merchandise, and other valuable items paid or provided for the personal use or benefit of the administrator;

(E) wages of any provider employee to the extent such employee works in the home of the administrator;

(F) the value of use of an automobile owned by the provider business to the extent used by the administrator for uses not related to patient care;

(G) personal life, health, or disability insurance premiums paid by the provider on the administrator's behalf;

(H) the rental value of any portion of the facility occupied by the administrator as a personal residence;

(i) the value of any other remuneration, compensation, fringe, or other benefits whether paid, accrued, or contingent.

(d) Allowable costs include employee benefits as follows:

(i) Employee benefits are defined as amounts accrued on behalf of an employee, in addition to direct salary or wages, and from which the employee or his beneficiary derives a personal benefit before or after the employee's retirement or death, if uniformly applicable to all employees. An item is an employee benefit only if it directly benefits an individual employee and does not directly benefit the owner, provider, or related parties.

(ii) Employee benefits include all employer contributions which are required by state or federal law, including FICA, WCI, FUI, SUI.

(iii) Costs of recreational activities or facilities available to employees as a group, including but not limited to condominiums, swimming pools, weight rooms and gymnasiums, are not allowable.

(iv) For purposes of this rule, an employee is one from whose salary or wages the employer is required to withhold FICA. Stockholders who are related parties to the corporate providers, officers of a corporate provider, and sole proprietors and partners owning or operating a facility are not employees even if FICA is withheld for them.

(v) Accrued vacation and sick leave are employee benefits if the facility has in effect a written policy uniformly applicable to all employees within a given class of employees, and are allowable to the extent they are reasonable in amount.

(e) Bad debts, charitable contributions and courtesy allowances are deductions from revenue and are not allowable costs.

(f) Revenues received for services or items provided to employees and guests are recoveries of cost and must be deducted from the allowable cost of the related items.

(g) Dues, membership fees, and subscriptions to organizations unrelated to the provider's provision of nursing facility services are not allowable costs.

(h) Charges for services of a chaplain are not an allowable cost.

(i) Subject to (4) , fees for management or professional services (e.g., management, legal, accounting or consulting services) are allowable to the extent they are identified to specific services and the hourly rate charged is reasonable in amount. In lieu of compensation on the basis of an hourly rate, allowable costs may include compensation for professional services on the basis of a reasonable retainer agreement which specifies in detail the services to be performed. Documentation that such services were in fact performed must be maintained by the provider. If the provider elects compensation under a retainer agreement, allowable costs for services specified under the agreement are limited to the agreed retainer fee.

(j) Travel costs and vehicle operating expenses related to resident care are allowable to the extent such costs are reasonable and adequately documented.

(i) Vehicle operating costs will be allocated between business and personal use based on actual mileage logs, a percentage derived from a sample mileage log and pre-approved by the department, or any other method pre-approved by the department.

(ii) For vehicles used primarily by an administrator, any portion of vehicle costs allocated to personal use shall be included as administrator compensation and subject to the limits specified in (3) (c) .

(iii) Allowable costs include automobile depreciation calculated on a straight-line basis, subject to salvage value, with a minimum of a three-year useful life. The total of automobile depreciation and interest, or comparable lease costs will not be allowable in excess of $7,500 per year.

(iv) Public transportation costs will be allowable only at tourist or other available commercial rate (not first class) .

(k) Allowable costs for purchases, leases or other transactions between related parties are subject to the following limitation:

(i) Allowable cost of services, facilities and supplies furnished to a provider by a related party or parties shall not exceed the lower of costs to the related party or the price of comparable services, facilities or supplies obtained from an unrelated party. A provider must identify such related parties and costs in the annual cost report.

(4) Costs, including attorney's fees, in connection with court or administrative proceedings are allowable only to the extent that the provider prevails in the proceeding. Where such proceedings are related to specific reimbursement amounts, the proportion of costs which are allowable shall be the percentage of costs incurred which equals the percentage derived by dividing the total cost or reimbursement on which the provider prevails by the total cost or reimbursement at issue.

(1) Providers must use generally accepted accounting principles to record and report costs. The provider must, in preparing the cost report required under this rule, adjust such costs in accordance with ARM 37.40.345 to determine allowable costs.

(2) Providers must use the accrual method of accounting, except that, for governmental institutions that operate on a cash method or a modified accrual method, such methods of accounting will be acceptable.

(3) Cost finding means the process of allocating and prorating the data derived from the accounts ordinarily kept by a provider to ascertain the provider's costs of the various services provided. In preparing cost reports, all providers must use the methods of cost finding described at 42 CFR 413.24 (1997) , which the department hereby adopts and incorporates herein by reference. 42 CFR 413.24 is a federal regulation setting forth methods for allocating costs. A copy of the regulation may be obtained from the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210. Notwithstanding the above, distinctions between skilled nursing and nursing facility care need not be made in cost finding.

(4) All providers must report allowable costs based upon the provider's fiscal year and using the financial and statistical report forms designated and/or provided by the department. Reports must be complete and accurate. Incomplete reports or reports containing inconsistent data will be returned to the provider for correction.

(a) A provider must file its cost report:

(i) within 150 days after the end of its designated fiscal year;

(ii) within 150 days after the effective date of a change in provider as defined in ARM 37.40.325; or

(iii) for changes in providers occurring on or after July 1, 1993, within 150 days after six months participation in the Medicaid program for providers with an interim rate established under ARM 37.40.326. Subsequent cost reports are to be filed in accordance with (4) (a) (i) above and subsequent cost reports shall not duplicate previous cost reporting periods.

(b) The report forms required by the department include certain Medicare cost report forms and related instructions, including but not limited to certain portions of the most recent version of the CMS-2540 or CMS-2552 cost report forms, as more specifically identified in the department's cost report instructions. The department also requires providers to complete and submit certain Medicaid forms, including but not limited to the most recent version of the Medicaid expense statement, form DPHHS-MA-008A.

(i) In preparing worksheet A on the CMS-2540 or CMS-2552 cost report form, providers must report costs in the worksheet A category that correspond to the category in which the cost is reportable on the Medicaid expense statement, as designated in the department's cost report instructions.

(ii) For purposes of the Medicaid cost report required under this rule, all Medicare and Medicaid cost report forms must be prepared in accordance with applicable cost report instructions. Medicare cost report instructions shall apply to Medicare cost report forms to the extent consistent with Medicaid requirements, but the Medicaid requirements specified in these rules and the department's Medicaid cost reporting instructions shall control in the event of a conflict with Medicare instructions.

(c) If a provider files an incomplete cost report or reported costs are inconsistent, the department may return the cost report to the facility for completion or correction, and may withhold payment as provided in (4) (d) .

(d) If a provider does not file its cost report within 150 days of the end of its fiscal year, or if a provider files an incomplete cost report, the department may withhold from payment to the provider an amount equal to 10% of the provider's total reimbursement for the month following the due date of the report or the filing of the incomplete report. If the report is overdue or incomplete a second month, the department may withhold 20% of the provider's total reimbursement for the following month. For each succeeding month for which the report is overdue or incomplete, the department may withhold the provider's entire Medicaid payment for the following month. If the provider fails to file a complete and accurate cost report within six months after the due date, the department may recover all amounts paid to the provider by the department for the fiscal period covered by the cost report. All amounts so withheld will be payable to the provider upon submission of a complete and accurate cost report.

(e) The department may grant a provider one 30-day extension for filing the cost report if the provider's written request for the extension is received by the department prior to expiration of the filing deadline and if, based upon the explanation in the request, the department determines that the delay is unavoidable.

(f) Cost reports must be executed by the individual provider, a partner of a partnership provider, the trustee of a trust provider, or an authorized officer of a corporate provider. The person executing the reports must sign, under penalties of false swearing, upon an affirmation that he has examined the report, including accompanying schedules and statements, and that to the best of his knowledge and belief, the report is true, correct, and complete, and prepared in accordance with applicable laws, regulations, rules, policies, and departmental instructions.

(5) A provider must maintain records of financial and statistical information which support cost reports for six years, three months after the date a cost report is filed, the date the cost report is due, or the date upon which a disputed cost report is finally settled, whichever is later.

(a) Each provider must maintain, as a minimum, a chart of accounts, a general ledger and the following supporting ledgers and journals: revenue, accounts receivable, cash receipts, accounts payable, cash disbursements, payroll, general journal, resident census records identifying the level of care of all residents individually, all records pertaining to private pay residents and resident trust funds.

(b) To support allowable costs, the provider must make available for audit at the facility all business records of any related party, including any parent or subsidiary firm, which relate to the provider under audit. To support allowable costs, the provider must make available at the facility for audit any owner's or related party's personal financial records relating to the facility. Any costs not so supported will not be allowable.

(c) Cost information and documentation developed by the provider must be complete, accurate and in sufficient detail to support payments made for services rendered to recipients and recorded in such a manner to provide a record which is auditable through the application of reasonable audit procedure. This includes all ledgers, books, records and original evidence of cost (purchase requisitions, purchase orders, vouchers, checks, invoices, requisitions for materials, inventories, labor time cards, payrolls, bases for apportioning costs, etc.) which pertain to the determination of reasonable cost. The provider must make and maintain contemporaneous records to support labor costs incurred. Documentation created after the fact will not be sufficient to support such costs.

(d) The provider must make all of the above records and documents available at the facility at all reasonable times after reasonable notice for inspection, review or audit by the department or its agents, the federal department of health and human services, the Montana legislative auditor, and other appropriate governmental agencies. Upon refusal of the provider to make available and allow access to the above records and documents, the department may recover, as provided in ARM 37.40.347, all payments made by the department during the provider's fiscal year to which such records relate.

(6) Department audit staff may perform a desk review of cost statements or reports and may conduct on site audits of provider records. Such audits will be conducted in accordance with audit procedures developed by the department.

(a) Department audit staff may determine adjustments to cost reports or reported costs through desk review or audit of cost reports. Department audit staff may conduct a desk review of a cost report to verify, to the extent possible, that the provider has provided a complete and accurate report.

(b) Department audit staff may conduct on site audits of a provider's records, information and documentation to assure validity of reports, costs and statistical information. Audits will meet generally accepted auditing standards.

(c) The department shall notify the provider of any adverse determination resulting from a desk review or audit of a cost report and the basis for such determination. Failure of the department to complete a desk review or audit within any particular time shall not entitle the provider to retain any overpayment discovered at any time.

(d) The department, in accordance with the provisions of ARM 37.40.347, may collect any overpayment and will reimburse a provider for any underpayment identified through desk review or audit.

(7) A provider aggrieved by an adverse department action may request administrative review and a fair hearing as provided in ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(2) Unless, within 30 days of mailing of overpayment notice to the provider, the provider enters into an agreement with the department which provides for full repayment within 60 days of mailing of the overpayment notice, the department will immediately commence offsetting from rate payments so as to complete full recovery as soon as possible.

(3) The department may recover the full overpayment amount regardless of whether the provider disputes the department's determination of the overpayment in whole or in part. A request for administrative review or fair hearing does not entitle a provider to delay repayment of any overpayment determined by the department.

(4) The department will notify the provider of any underpayment discovered. In the event an underpayment has occurred, the department will reimburse the provider promptly following the department's determination of the amount of the underpayment.

(5) Court or administrative proceedings for collection of overpayment or underpayment must be commenced within five years following the due date of the original cost report or the date of receipt of a complete cost report whichever is later. In the case of a reimbursement or payment based on fraudulent information, recovery of overpayment may be undertaken at any time.

(6) The amount of any overpayment constitutes a debt due the department as of the date the department mails notice of overpayment to the provider. The department may recover the overpayment from any person, party, transferee, or fiduciary who has benefited from either the payment or from a transfer of assets.

(1) Regardless of any other provision of these rules, a provider may not bill the Medicaid program for any patient day, item, service or other amount which could have been or could be paid by any other payer, including but not limited to a private or governmental insurer, or Medicare, regardless of whether the facility participates in such coverage or program. If the department finds that Medicaid has made payments in such an instance, retroactive collections may be made from the provider in accordance with ARM 37.40.347.

(a) This rule does not apply to payment sources which by law are made secondary to Medicaid.

(2) The payments allowed under ARM 37.40.307 constitute full payment for nursing facility services and separately billable items provided to a resident. A provider may not charge, bill, or collect any amount from a Medicaid recipient, other than the resident's patient contribution and any items billable to residents under ARM 37.40.331.

(3) This rule applies in addition to ARM 37.85.415.

(1) Upon admission and as frequently thereafter as the department may deem necessary, the department or its agents, in accordance with 42 CFR 456 subpart F (1997), may evaluate the necessity of nursing facility care for each Medicaid resident in an intermediate care facility for individuals with intellectual disabilities. 42 CFR 456 subpart F contains federal regulations which specify utilization review criteria for intermediate care facilities. The department adopts and incorporates by reference 42 CFR 456 (1997). A copy of these regulations may be obtained from the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

This rule has been repealed.

(1) Effective for each state fiscal year and for the six months thereafter, nursing facilities must report to the department actual hourly wage and benefit rates paid for all direct care and ancillary services workers or the lump sum payment amounts for all direct care and ancillary services workers that will receive the benefit of the funds. The reported data will be used by the department for the purpose of comparing types and rates of payment for comparable services and tracking distribution of direct care wage funds to designated workers.

(2) The department will pay Medicaid certified nursing facilities located in Montana that submit an approved request to the department a lump sum payment in addition to the amount paid as provided in ARM 37.40.307 and 37.40.311 to their computed Medicaid payment rate to be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in nursing facilities.

(a) The department will determine the lump sum payments, twice a year commencing July 1 of the state fiscal year, and again in six months from that date as a pro rata share of appropriated funds allocated for increases in direct care and ancillary services workers' wages and benefits or lump sum payments to direct care and ancillary services workers.

(b) To receive the direct care and/or ancillary services workers' lump sum payment, a nursing facility must submit for approval a request form to the department stating how the direct care and ancillary services workers' lump sum payment will be spent in the facility to comply with all statutory requirements. The facility must submit all of the information required on a form to be developed by the department in order to continue to receive subsequent lump sum payment amounts for the entire rate year. The form for wage and benefit increases will request information including, but not limited to:

(i) the number by category of each direct care and ancillary services workers that will receive the benefit of the funds, if these funds will be distributed in the form of a wage increase;

(ii) the actual per hour rate of pay before benefits and before the direct care wage increase has been implemented for each worker that will receive the benefit of the funds;

(iii) the projected per hour rate of pay with benefits after the direct wage increase has been implemented;

(iv) the number of staff receiving a wage or benefit increase by category of worker, effective date of implementation of the increase in wage and benefit; and

(v) the number of projected hours to be worked in the budget period.

(c) If these funds will be used for the purpose of providing lump sum payments (i.e., bonus, stipend, or other payment types) to direct care and ancillary services workers in nursing care facilities the form will request information including, but not limited to:

(i) the number by category of each direct care and ancillary services worker that will receive the benefit of the funds;

(ii) the type and actual amount of lump sum payment to be provided for each worker that will receive the benefit of the lump sum funding;

(iii) the breakdown of the lump sum payment by the amount that represents benefits and the direct payment to workers by category of worker; and

(iv) the effective date of implementation of the lump sum benefit.

(d) A facility that does not submit a qualifying request for use of the funds distributed under (2), that includes all of the information requested by the department, within the time established by the department, or a facility that does not wish to participate in this additional funding amount will not be entitled to their share of the funds available for wage and benefit increases or lump sum payments for direct care and ancillary services workers.

(3) A facility that receives funds under this rule must maintain appropriate records documenting the expenditure of the funds. This documentation must be maintained and made available to authorized governmental entities and their agents to the same extent as other required records and documentation under applicable Medicaid record requirements, including, but not limited to, the provisions of ARM 37.40.345, 37.40.346, and 37.85.414.

(2) Swing-bed hospital services are services provided in accordance with these rules by a swing-bed hospital which meets the swing-bed hospital participation requirements specified in these rules.

(3) "Swing-bed" means a bed approved pursuant to 42 USC 1395tt to be used to provide either acute care or extended skilled nursing care to a patient.

(1) To participate and be reimbursed as a swing-bed hospital service provider in the Montana medicaid program, a hospital must meet all of the following requirements:

(a) The hospital is a swing-bed hospital as defined in ARM 37.40.401.

(b) The hospital has fewer than 50 hospital beds and has provided written assurance to the health care financing administration that the hospital will not operate over 49 hospital beds, including swing-beds, except in connection with a catastrophic event.

(i) The hospital bed count is determined by excluding from the total licensed hospital beds:

(A) beds which because of their special nature would not be available for swing-bed use, such as newborn and intensive care beds;

(B) beds included in a separately certified skilled nursing facility or nursing facility;

(C) beds included in a distinct part psychiatric or rehabilitation unit; and

(D) beds which the department determines are not consistently staffed and utilized by the hospital, as demonstrated by the hospital's staffing schedules and census records for the 12 months immediately preceding application for enrollment as a medicaid swing-bed hospital services provider.

(c) The critical access hospital (CAH) with swing-bed approval has no more than 25 acute care inpatient beds, of which no more than 15 are used for acute care at any one time for providing inpatient care.

(d) The hospital is located in a rural area of the state. A rural area is an area which is not designated as "urbanized" by the most recent official census. A copy of the bureau of the census listing of urbanized areas is available upon request from the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

(e) The hospital has a certificate of need from the state Department of Public Health and Human Services to provide swing-bed hospital services.

(f) The hospital does not have in effect a 24 hour nursing waiver under the provisions of 42 CFR 488.54(c).

(g) The hospital's Medicare or Medicaid swing-bed certification or approval has not been terminated within two years prior to the application for enrollment as a Medicaid swing-bed hospital services provider.

(h) The hospital meets the requirements of ARM 37.40.416(1).

(i) The hospital has applied for and the department has approved enrollment in the Medicaid program as a Medicaid swing-bed hospital services provider.

(i) As a condition of granting enrollment approval or of allowing continuing enrollment, the department may require a hospital to submit documentation or information relating to participation requirements.

(ii) The department may terminate a provider's swing-bed hospital services provider enrollment if it determines that the hospital is not in compliance with any of the requirements of this rule.

(1) Before admitting a Medicaid recipient to a swing-bed, the swing-bed hospital must meet all of the following requirements:

(a) the hospital must obtain a preadmission screening to determine the level of care required by the patient's medical condition. Medicaid will not reimburse a provider for swing-bed hospital services provided to a Medicaid recipient admitted to a swing-bed unless the recipient meets the nursing facility level of care requirements specified in ARM 37.40.202 and 37.40.205. The swing-bed hospital must ensure that form DPHHS-SLTC-61, "screening notification", is completed by the department preadmission screening team to document the level of care determination.

(b) Except when a waiver is obtained under (4), the hospital must determine that no appropriate nursing facility bed is available to the Medicaid patient within a 25 mile radius of the swing-bed hospital. The hospital is required to maintain written documentation of inquiries to nursing facilities about the availability of a nursing facility bed and indicating that if a bed is not available, the hospital will provide swing-bed services to the patient. The swing-bed hospital is encouraged to enter into availability agreements with Medicaid-participating nursing facilities in its geographic region that require the nursing facility to notify the hospital of the availability of nursing facility beds and dates when beds will be available.

(i) For purposes of this rule, an "appropriate" nursing facility bed is a bed in a Medicaid-participating nursing facility which provides the level of care required by the recipient's medical condition.

(2) A Medicaid patient admitted to a swing-bed must be discharged to an appropriate nursing home bed within a 25 mile radius of the swing-bed hospital within 72 hours of an appropriate nursing home bed becoming available.

(3) The requirements of (1)(b) and (2) apply regardless of the 30-day notice requirement generally applicable to transfers and discharges under ARM 37.40.420(1). When an appropriate nursing facility bed is or becomes available, the provider must provide notice as required by ARM 37.40.420(5)(f) and must otherwise comply with the requirements of ARM 37.40.420(1) to the extent practicable in the time available before transfer to the nursing facility bed.

(4) A provider may request a waiver of the determination requirement of (1)(b) for an acute care patient of the swing-bed hospital or may request for a swing-bed patient a waiver of the transfer requirement of (2) when the recipient's attending physician verifies in writing that either the recipient's condition would be endangered by transfer to an appropriate nursing facility bed within a 25 mile radius of the swing-bed hospital or that the individual has a medical prognosis that his or her life expectancy is six months or less if the illness runs its normal course.

(a) The waiver request and physician's written verification must be submitted to the Department of Public Health and Human Services, Senior and Long Term Care Division, 2030 11th Avenue, P.O. Box 4210, Helena, MT 59640-4210. Waiver approvals granted by county offices will not be valid or effective for purposes of this rule.

(b) The waiver request and physician's written verification must be received by the nursing facility services bureau within five working days of admission to the swing-bed or within five days of availability of an appropriate nursing facility bed and the provider must obtain written approval from the Medicaid services bureau prior to billing for services provided after the date of admission to the swing-bed or the date of availability of an appropriate nursing facility bed.

(5) The department may retrospectively review the use of swing-bed services provided to Medicaid patients and may deny payments when it is determined that the requirements of this rule were not met.

(1) Montana medicaid will reimburse swing-bed hospitals as provided in this rule for swing-bed hospital services provided in accordance with all applicable swing-bed hospital service requirements specified in ARM 37.40.401, 37.40.402, 37.40.405 and this rule and subject to all other applicable laws and regulations.  

(2) For swing-bed hospital services, the Montana medicaid program will pay a provider a per diem rate as specified in (2) (a) for each medicaid patient day, plus additional reimbursement for separately billable items as provided in (2) (b) .

(a) The swing-bed hospital services per diem rate is the average medicaid per diem rate paid to nursing facilities under ARM 37.40.307 for routine services furnished during the calendar year immediately previous to the year in which the swing-bed hospital services are provided. Nursing facility routine services are those services included in the definition of "nursing facility services" specified at ARM 37.40.302.

(b) Separately billable items are those items specified in ARM 37.40.330. Swing-bed hospital service providers will be reimbursed for separately billable items at the rates specified in ARM 37.40.330 and subject to the requirements of ARM 37.40.330.

(c) The Montana medicaid program will not reimburse swing-bed hospital service providers for items billable to residents as specified in ARM 37.40.331.

(3) For purposes of reporting costs under ARM 37.86.2803, inpatient hospital services providers which also provide swing-bed hospital services shall allocate hospital inpatient general routine service costs associated with swing-bed hospital services on the medicare "carve out" method as specified in 42 CFR 413.53(a) (2) . The department adopts and incorporates by reference 42 CFR 413.53(a) (2) (2004) . A copy of 42 CFR 413.53(a) (2) may be obtained from the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, P.O. Box 4210, Helena, MT 59604-4210.

(4) Providers must bill for all services and supplies in accordance with the provisions of ARM 37.85.406. The department's fiscal agent will pay a provider the amount determined under these rules upon receipt of an appropriate billing which reports the number of patient days of swing-bed hospital services provided to authorized Medicaid recipients during the billing period.

(5) Swing-bed hospital service providers aggrieved by adverse determinations by the department may request administrative review and fair hearing as provided in ARM 37.5.304, 37.5.305, 37.5.307, 37.5.310, 37.5.311, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(2) The policies must provide that the facility will:

(a) not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion;

(b) not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law, or have had a finding entered into the nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property;

(c) report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the nurse aide registry maintained by the department of public health and human services;

(d) ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source, and misappropriation of resident property are reported immediately to the administrator of the facility, the long term care ombudsman, and the department of public health and human services in accordance with 52-3-811 , MCA;

(e) have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress;

(f) ensure that the results of all investigations must be reported to the administrator of the facility and to the department of public health and human services in accordance with 52-3-811 , MCA, within five working days of the incident; and

(g) if the alleged violation is verified, take appropriate corrective action.

(a) Specialized rehabilitative services must be provided under the written order of a physician by qualified personnel.

(2) The facility must assist residents in obtaining routine and 24-hour emergency dental care.

(a) The facility must, if necessary, assist the resident in making appointments, and by arranging for transportation to and from the dentist's office.

(b) The facility must promptly refer residents with lost or damaged dentures to a dentist.

(2) The activities program must be directed by a qualified professional who:

(a) is a qualified therapeutic recreation specialist or an activities professional who is licensed or registered and is eligible for certification as a therapeutic recreation specialist or as an activities professional by a recognized accrediting body on or after October 1, 1990;

(b) has two years of experience in a social or recreational program within the last five years, one of which was full-time in a patient activities program in a health care setting;

(c) is a qualified occupational therapist or occupational therapy assistant; or

(d) has completed a training course approved by the state.

(3) The facility must provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well being of each resident.

(2) A provider must protect and promote the rights of each resident, including each of the following rights:

(a) The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the provider's facility.

(b) The resident has the right to be fully informed of the resident's total health status, including but not limited to medical condition, in language that the resident can understand.

(c) The resident has the right to refuse treatment, to refuse to participate in experimental research, and to formulate an advance directive as specified in 42 CFR 483.10(b) (8) . The department adopts and incorporates by reference 42 CFR 483.10(b) (8) . A copy of 42 CFR 483.10(b) (8) may be obtained from the Department of Public Health and Human Services, Senior and Long Term Care Division, 111 N. Sanders, PO Box 4210, Helena, MT 59604-4210.

(3) Each resident who is entitled to medicaid benefits has a right to be informed by the provider in writing, at the time of admission to the swing-bed or, when the resident becomes eligible for medicaid of:

(a) the items and services that are included in the swing-bed per diem rate for which the resident may not be charged, i.e., those items included in nursing facility services under ARM 37.40.302(14) or ancillary services under ARM 37.40.330(1) ; and

(b) those other items and services that the provider offers and for which the resident may be charged, and the amount of charges for those services; and

(c) changes made to the items and services specified in (3) (a) and (b) .

(4) The resident has the right to:

(a) choose a personal attending physician;

(b) be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect the resident's well being; and

(c) unless adjudged incompetent or otherwise found to be incapacitated under state law, participate in planning care and treatment or changes in care and treatment.

(5) The resident has the right to personal privacy and confidentiality of personal and clinical records.

(a) Personal privacy includes accommodations, medical treatment, written and telephone communications, personal care, visits, and meetings of family and resident groups. The right of personal privacy does not require the provider to provide a private room for each resident.

(b) The resident may approve or refuse the release of personal and clinical records to any individual outside the facility, except when the resident is transferred to another health care institution or record release is required by law.

(6) The resident has the right to:

(a) refuse to perform services for the facility;

(b) perform services for the facility, if the resident chooses, when:

(i) the facility has documented in the plan of care the need or desire for work;

(ii) the plan specifies the nature of the services performed and whether the services are voluntary or paid;

(iii) compensation for paid services is at or above prevailing rates; and

(iv) the resident agrees to the work arrangement described in the plan of care.

(7) The resident has the right to privacy in written communications, including the right to:

(a) send and promptly receive mail that is unopened; and

(b) have access to stationery, postage, and writing implements at the resident's own expense.

(8) The resident has the right to see, and the facility must provide immediate access to any resident by, the following:

(a) subject to the resident's right to deny or withdraw consent at any time, immediate family or other relatives of the resident; and

(b) subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, others who are visiting with the consent of the resident.

(9) The resident has the right to retain and use personal

possessions, including some furnishings and appropriate clothing, as space permits, unless to do so would infringe upon the rights or health and safety of other residents.

(10) The resident has the right to share a room with a spouse when married residents live in the same facility and both spouses consent to the arrangement.

(11) The resident has the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.

(12) The resident has the right to be free from verbal, sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.

(13) The resident has the right to be informed in writing of the policies and procedures developed by the facility pursuant to ARM 37.40.408.

(1) The resident has the following transfer and discharge rights. Transfer and discharge includes movement of a resident to a bed outside of the swing-bed hospital facility whether or not that bed is in the same physical plant. Transfer and discharge does not refer to movement of a resident to a bed within the same certified facility.

(2) The facility must permit each resident to remain in the facility and may not transfer or discharge the resident from the facility unless any one or more of the following apply:

(a) the transfer or discharge is necessary for the resident's welfare and the resident's needs cannot be met in the facility;

(b) the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility;

(c) the safety of individuals in the facility is endangered;

(d) the health of individuals in the facility would otherwise be endangered;

(e) the resident has failed, after reasonable and appropriate notice, to pay for (or to have paid under medicare or medicaid) a stay at the facility. For a resident who becomes eligible for medicaid after admission to a facility, the facility may charge a resident only allowable charges under medicaid;

(f) the facility ceases to operate; or

(g) an appropriate nursing facility bed is available within a 25 mile radius of the swing-bed hospital, as provided in ARM 37.40.405.

(3) When the facility transfers or discharges a resident, the facility must document the reason for transfer or discharge in the resident's clinical record. The documentation must be made by the resident's physician when transfer or discharge is necessary under (2) (a) and (b) , or a physician when transfer or discharge is necessary under (2) (d) .

(4) Before a facility transfers or discharges a resident, the facility must:

(a) notify the resident and, if known, a family member or legal representative of the resident of the transfer or discharge and the reasons for the move in writing and in a language and manner they understand;

(b) record the reasons in the resident's clinical record; and

(c) include in the notice the items described in (6) through (6) (f).

(5) Notice of transfer or discharge must be made by the facility at least 30 days before the resident is transferred or discharged except when:

(a) the safety of individuals in the facility would be endangered;

(b) the health of the individuals in the facility would be endangered;

(c) the resident's health improves sufficiently to allow a more immediate transfer or discharge;

(d) an immediate transfer or discharge is required by the resident's urgent medical needs;

(e) a resident has not resided in the facility for 30 days; or

(f) transfer is required within 72 hours because an appropriate nursing facility bed is available within a 25 mile radius of the swing-bed hospital. In such cases, the facility must provide notice within 24 hours of determining that the nursing facility bed is available.

(6) The written notice of transfer or discharge must include the following:

(a) the reason for transfer or discharge;

(b) the effective date of transfer or discharge;

(c) the location to which the resident is transferred or discharged;

(d) a statement that the resident has the right to appeal the action to the Fair Hearings Office at the Department of Public Health and Human Services;

(e) the name, address, and telephone number of the state of Montana long term care ombudsman in the Office on Aging, Senior and Long Term Care Division; and

(f) for nursing facility residents with developmental disabilities and nursing facility residents who are mentally ill, the mailing address and telephone number of the Montana Advocacy Program, Inc.

(7) A facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

(a) a recapitulation of the resident's stay;

(b) a final summary of the resident's status which includes:

(i) medically defined conditions and prior medical history;

(ii) medical status measurement;

(iii) physical and mental functional status;

(iv) sensory and physical impairments;

(v) nutritional status and requirements;

(vi) special treatments or procedures;

(vii) mental and psychosocial status;

(viii) discharge potential;

(ix) dental condition;

(x) activities potential;

(xi) cognitive status;

(xii) drug therapy; and

(c) a post discharge plan of care that is developed with the participation of the resident and family, which will assist the resident to adjust to the new living environment.

(1) Effective for the calendar year January through December, swing-bed hospitals must report to the department actual hourly wage and benefit rates paid for all direct care and ancillary services workers or the lump sum amounts paid for all direct care and ancillary services workers that will receive the benefit of a direct care and ancillary workers' wage and benefit increase.

(2) The department will use the reported data for the purpose of comparing types and rates of payment for comparable services and for tracking distribution of direct care wage funds to designated workers.

(3) The department will pay Medicaid certified swing-bed hospitals located in Montana, in accordance with this rule, lump sum payments in addition to the reimbursement rate to be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in swing-bed hospitals.

(a) The department will determine lump sum payments January 1 of the calendar year, and again six months from that date as a pro rata share of appropriated funds allocated for increases in direct care and ancillary services workers' wages and benefits or lump sum payments to direct care and ancillary services workers.

(b) To receive the direct care or ancillary services workers' lump sum payment, a swing-bed hospital must submit:

(i) a request to the department stating how the direct care and ancillary services workers' lump sum payment will be spent in the facility in compliance with all statutory requirements; and

(ii) all of the information required on a form developed by the department in order to continue to receive subsequent lump sum payment amounts for the entire rate year.

(c) The form for wage and benefit increases will request information including but not limited to:

(i) the number by category of each direct care and ancillary services workers that will receive the benefit of the increased funds, if these funds will be distributed in the form of a wage increase;

(ii) the actual per hour rate of pay before benefits and before the direct care wage increase has been implemented for each worker that will receive the benefit of the increased funds;

(iii) the projected per hour rate of pay with benefits after the direct wage increase has been implemented;

(iv) the number of workers receiving a wage or benefit increase by category of worker, effective date of implementation of the increase in wage and benefit; and

(v) the number of projected hours to be worked in the budget period.

(d) If these funds will be used for the purpose of providing lump sum payments such as bonuses, stipends, or other payment types to direct care and ancillary services workers in swing-bed hospitals, the form will request information including, but not limited to:

(i) the number by category of each direct care and ancillary services worker that will receive the benefit of the increased funds;

(ii) the type and actual amount of lump sum payment to be provided for each worker that will receive the benefit of the lump sum funding;

(iii) the breakdown of the lump sum payment by the amount that represents benefits and the direct payment to workers by category of worker; and

(iv) the effective date of implementation of the lump sum benefit.

(e) A facility that does not submit a qualifying request for use of the funds distributed under (2), that includes all of the information requested by the department, within the time established by the department, or a facility that does not wish to participate in this additional funding amount shall not be entitled to their share of the funds available for wage and benefit increases or lump sum payments for direct care and ancillary services workers.

(4) A facility that receives funds under this rule must maintain appropriate records documenting the expenditure of the funds. This documentation must be maintained and made available to authorized governmental entities and their agents to the same extent as other required records and documentation under applicable Medicaid record requirements, including, but not limited to the provisions of ARM 37.40.345, 37.40.346, and 37.85.414.

(1) "Home health agency" means an entity licensed by the Montana Department of Public Health and Human Services, certified by Medicare, and enrolled as a Medicaid provider.

(2) "Home health aide services" means services of a certified home health aide to assist with routine care not requiring specialized nursing skills and supervised by a licensed registered nurse.

(3) "Home health services" means services provided by a home health agency to a member, on a part-time or intermittent basis for the purposes of postponing or preventing institutionalization.

(a) Home health services include:

(i) skilled nursing services;

(ii) home health aide services;

(iii) physical therapy services;

(iv) occupational therapy services;

(v) speech therapy services;

(vi) disposable medical supplies for the purposes of the visit; and

(vii) medical supplies, equipment, and appliances suitable for use in any setting in which normal life activities take place and as provided in ARM 37.86.1801.

(b) Home health services do not include:

(i) personal care services as provided at ARM Title 37, chapter 40, subchapter 11;

(ii) Community First Choice services provided in ARM Title 37, chapter 40, subchapter 10;

(iii) visits made by a registered nurse for evaluating the home health needs of a member or to review the provision of home health services by a home health aide or a licensed practical nurse; and

(iv) maintenance therapy as provided at ARM Title 37, chapter 86, subchapter 6.

(4) "Home health services visit" means a personal contact with the member in a place of service for the purpose of providing a covered home health service.

(5) "Place of service" means the setting in which normal life activities take place.

(a) Place of service does not include a hospital, a nursing facility, or an intermediate care facility for individuals with intellectual disabilities.

(6) "Skilled nursing services" means professional nursing services, as defined in the Montana Nurse Practice Act, that are medically necessary to treat health care problems, provided health teaching, and/or provide health counseling.

(1) These requirements are in addition to those rule provisions generally applicable to Medicaid providers.

(2) A home health agency must be:

(a) licensed by the Montana department of public health and human services;

(b) Medicare certified; and

(c) an enrolled Medicaid provider.

(3) Home health services may be provided by providers located outside of the borders of the state of Montana only if the service meets the requirements of ARM 37.85.207(3) and the service is prior authorized by the department or the department's designee.

(4) Home health services must be:

(a) ordered by the member's attending physician;

(b) part of a written plan of care; and

(c) reviewed and renewed by the member's attending physician at a minimum of 60 day intervals.

(5) A written plan of care must include:

(a) how care is to be provided;

(b) a summary of the member's condition;

(c) documentation of the medical necessity;

(d) rationale for the required skill level;

(e) treatment plans;

(f) discharge goals; and

(g) certification by the member's physician.

(6) A member's need for medical supplies, equipment, and appliances must be reviewed annually by the member's attending physician.

(7) All member records related to the delivery of home health services must be current and available upon request of the department or its designated representative.

(8) For the initiation of home health services, the department requires an initial face-to-face encounter which must be related to the primary reason the member requires home health services and must occur within 90 days before or within 30 days after the start of care.

(a) The face-to-face encounter shall be conducted by the certifying physician, an authorized non-physician practitioner (NPP), or an attending or post-acute physician when the member is being admitted to home health services immediately following an acute or post-acute stay.

(b) NPPs authorized to perform the face-to-face encounters for home health services are:

(i) a nurse practitioner;

(ii) a certified nurse midwife;

(iii) a clinical nurse specialist working with a physician; or

(iv) a physician assistant working under the supervision of a physician.

(c) If a NPP performs the face-to-face encounter, findings must be communicated to the certifying physician and included in the member's record.

(9) For the initiation of medical supplies, equipment, and appliances, a face-to-face encounter related to the reason the member requires medical equipment is required and must occur within six months prior to the start of the services.

(a) The face-to-face encounter for medical equipment shall be conducted by the certified physician or an authorized NPP, with the exception of a certified nurse midwife.

(10) Home health services are limited to 180 visits within 365 days from the day of the first authorized visit.

(a) The department may, within its discretion, authorize additional visits in excess of this limit. Any services exceeding this limit must be prior authorized by the department or the department's designee.

(11) Home health aide services are subject to the following limitations:

(a) Home health aide services must be prior authorized by the department or the department's designee.

(b) Home health aide services must be provided under the supervision of a registered professional nurse and in accordance with a written plan of treatment certified by a physician.

(c) A person receiving personal care attendant services or Community First Choice services may not receive home health aide services.

(1) Reimbursement fees for home health services are as referenced in ARM 37.85.105(4).

(2) Home health services reimbursement includes the following services:

(a) nursing or therapy service;

(b) home health aide visit; and

(c) medical supplies, equipment, and appliances suitable for use in any setting in which normal life activities take place.

(1) "Department" means the Montana Department of Public Health and Human Services.

(2) Except for the definition of "physician," the definitions of terms defined under 42 CFR 418.3 apply for purposes of this subchapter.

(3) "Physician" means an individual licensed under the state medical practice act to practice medicine or osteopathy.

(1) For purposes of this subchapter, the department adopts and incorporates by reference the following sections of the Code of Federal Regulations (CFR) that are in effect as of October 1, 2022: 

(a)  42 CFR 418.3, which sets forth definitions of terms.

(b)  42 CFR 418.20 through 418.30, which set forth Medicare hospice care eligibility, election, and duration of benefits.

(c)  42 CFR 418.52 through 418.116, which set forth Medicare conditions of participation for hospice programs.

(d)  42 CFR 418.200 through 418.205, which set forth Medicare coverage of hospice services.

(e)  42 CFR 418.301 through 418.312, which set forth Medicare hospice care payment procedures.

(2)  Copies of these sections of the CFR may be obtained from the Department of Public Health and Human Services, Senior & Long Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210 or by visiting https://www.ecfr.gov/.

(1) The hospice must be licensed under state law and must meet Medicare's conditions of participation for hospice programs and have a valid provider agreement with Medicare as conditions of enrollment in Medicaid. Medicare conditions of participation for hospice programs are set forth under 42 CFR 418.52 through 418.116.

(2) The above requirements are in addition to those contained in ARM 37.82.102, 37.85.401, 37.85.402, 37.85.406, 37.85.407, 37.85.410, and 37.85.414.

(3) The hospice must submit a physician listing with their provider application and update changes in the listing of the physicians who are hospice employees, including physician volunteers.

(4) The designated hospice must notify the department when the designated attending physician of a beneficiary in their care is not a hospice employee.

(1) To be covered, hospice services must meet the following requirements:

(a) they must be reasonable and necessary for the palliation or management of the terminal illness as well as related conditions;

(b) the beneficiary must elect hospice care in accordance with ARM 37.40.815;

(c) a plan of care must be established as set forth in ARM 37.40.805 and 37.40.807 before services are provided. The services must be consistent with the plan of care; and

(d) a certification that the beneficiary is terminally ill must be completed as set forth in ARM 37.40.808.

(2) For covered hospice services, Medicaid will generally pay for the services covered by Medicare. Medicare coverage of hospice services is described under 42 CFR 418.200 through 418.205.

(a) Physician services is a covered hospice service and must be performed by a doctor of medicine or osteopathy.

(b) Outpatient drugs and biologicals not related to the terminal conditions will be reimbursed separately under the provisions of ARM 37.86.1101, 37.86.1102, and 37.86.1105.

This rule has been repealed.

(1) In order to be eligible to elect hospice care under Medicaid, a beneficiary must be certified as being terminally ill in accordance with Medicare certification requirements under 42 CFR 418.22.

(1) A beneficiary eligible for hospice care or their representative must file an election statement with a particular hospice in order to receive such care. The department will follow Medicare regulations and guidelines in administering this provision, including 42 CFR 418.20 through 418.30.

(2) A beneficiary waives all rights to Medicaid payments for the duration of the election of hospice care for the following services:

(a) Hospice care provided by a hospice other than the hospice designated by the beneficiary (unless provided under arrangements made by the designated hospice).

(b) Any Medicaid services that are related to the treatment of the terminal condition for which hospice care was elected or a related condition or that are equivalent to hospice care except for:

(i) services provided by the designated hospice;

(ii) services provided by another hospice under arrangements made by the designated hospice; and

(iii) services provided by the beneficiary's attending physician if that physician is not an employee of the designated hospice or receiving compensation from the hospice for those services.

(3) The hospice chosen by the eligible beneficiary, or their representative, must file the original Notice of Election (NOE) or a copy, with the department within five calendar days of the start of Medicaid Hospice Services. NOEs must be sent to the Senior & Long Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210. The department may waive the consequences of failure to submit a timely filed NOE. A hospice must fully document and furnish any requested documentation to the department for a determination of exception.

(4) When the hospice election is ended due to discharge, the hospice must file a Notice of Termination of Election with the department within five calendar days after the effective date of the discharge, unless it has already filed a final claim for that beneficiary. Notice of Terminations must be sent to the Senior & Long Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena MT 59604-4210. 

(1) A beneficiary or their representative may revoke the beneficiary's election of hospice care at any time during an election period. The department will follow Medicare regulations and guidelines in administering this provision, including 42 CFR 418.28.

(2) When the hospice election is ended due to revocation, the hospice must file a Notice of Revocation of Election with the department within five calendar days after the effective date of the revocation, unless it has already filed a final claim for that beneficiary. A Notice of Revocation must be sent to the Senior & Long Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210.

(1) A beneficiary or their representative may change once in each election period the designation of the particular hospice from which hospice care will be received. The department will follow Medicare regulations and guidelines in administering this provision, including 42 CFR 418.30.

(1) Medicaid payment for covered hospice care will be made in accordance with the specific categories of covered hospice care and the payment amounts and procedures established by Medicare under 42 CFR 418.301 through 418.312. The specific categories of covered hospice care include:

(a) routine home care day;

(b) continuous home care day;

(c) inpatient respite care day;

(d) general inpatient care day; and

(e) service intensity add-on.

(2) Hospice Routine Home Care (RHC) level of care days will be paid at one of two RHC rates. RHC per-diem payment rates for the RHC level of care will be paid depending on the timing of the day within the patient's episode of care. Days 1 through 60 will be paid at the RHC "High" rate while all other days will be paid at the RHC "Low" rate.

(3) The room and board rate to be paid a hospice for a Medicaid beneficiary who resides in a nursing facility will be the Medicaid rate established by the department in ARM 37.40.307 for the individual facility minus the amount the beneficiary pays toward their own cost of care. Payment for room and board will be made to the hospice and, in turn, the hospice will reimburse the nursing facility. General inpatient care or hospice respite care in a nursing facility will not be reimbursed directly by the Medicaid program when a Medicaid recipient elects the hospice benefit payment. Under such circumstances payment will be made to the hospice in accordance with this rule.

(a) In this context, the term "room and board" includes performance of personal care services, including assistance in the activities of daily living, socializing activities, administration of medication, maintaining the cleanliness of a resident's room, and supervision and assisting in the use of durable medical equipment and prescribed therapies.

(4) The following services performed by hospice physicians are included in the rates described in (1)(a) through (1)(d):

(a) general supervisory services of the medical director; and

(b) participation in the establishment of plans of care, supervision of care and services, periodic review and updating of plans of care, and establishment of governing policies by the physician member of the interdisciplinary group.

(5) For services not described in (4), Medicaid will pay the hospice for those physician services furnished by hospice employees or under arrangements with the hospice in accordance with ARM 37.86.101, 37.86.104, and 37.86.105. Reimbursement for these physician services is included in the amount subject to the hospice limit described in (6). Services furnished voluntarily by physicians are not reimbursable.

(6) Services of the patient's attending physician, if he or she is not an employee of the hospice or providing services under arrangements with the hospice, are not considered hospice services and are not included in the amount subject to the hospice payment limit.

(7) Medicaid reimbursement to a hospice in a cap period is limited to a cap amount established using Medicare principles.

(8) The department will notify the hospice of the determination of program reimbursement at the end of the cap year.

(9) Payments made to a hospice during a cap period that exceed the cap amount are overpayments and must be refunded.

(10) The department adopts and incorporates by reference the Hospice Rates FFY23 fee schedule, effective October 1, 2022.  Copies of the department's current fee schedules are posted at http://medicaidprovider.mt.gov and may be obtained from the Department of Public Health and Human Services, Senior & Long Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210.

(a) Related services includes training at a certified home dialysis training center for a recipient and a "back-up" person, if necessary, in dialysing a patient at home.

(1) The provision of home dialysis and related services by the medicaid program shall be coordinated with the Title XVIII medicare renal disease program and any other program providing the same or similar service. Application for medicare benefit is required if medicaid coverage is to be allowed.

(2) Any interest in equipment accrued by means of lease or purchase by the department shall be retained by the department. In no case will a recipient have or be entitled to any property interest in the equipment leased or purchased.

(3) Home dialysis and related services shall be provided only to a person who has been diagnosed as suffering from chronic end stage renal disease by a physician.

(4) Medical necessity and appropriateness of the services shall be subject to review by the designated professional review organization.

(5) In all cases where feasible and necessary, a member of the recipient's household shall be trained as the "back-up" person.

(a) the provider's usual and customary charges which are reasonable; or

(b) the medicaid established fee for that service.

(2) Payment to a nonrelated individual for "back-up" services shall be negotiated between the department and the provider on a case-by-case basis. Members of a recipient's family shall not be reimbursed for providing this service. Reimbursement shall only be allowed in those cases where a family member is not available to provide "back-up" services.

(1) "Activities of daily living" (ADL) means basic personal everyday activities limited to bathing, personal hygiene, transferring, positioning, eating, dressing, toileting, assistance with exercise routine performed in home, self-administered medication, including medication reminders, and meal preparation.

(2) "Agency-based services" means services provided by a qualified personal care provider agency. The agency works with the member to establish the schedule for service provision and provides the trained staff necessary for the delivery of care.

(3) "Annual review" means a member review conducted by a licensed nurse from the designated quality improvement organization once every 365 days. The review of the member's health status includes the completion of a functional assessment and service profile.

(4) "Case manager" means a nurse or social worker who is responsible for managing services provided to eligible members under the Home and Community Based Services (HCBS Waiver) Program. These case managers plan, implement, and monitor the delivery of services available through the program to the member.

(5) "Community First Choice Program" (CFCP) means a program developed in accordance with 1915(k) of the Social Security Act, which allows states the option of providing home and community-based attendant services and supports through an approved state plan. The CFC Program is developed to deliver attendant-based services through the use of a person-centered planning process that includes service coordination and member involvement to provide long-term services and supports (LTSS) to individuals in their homes or communities rather than in institutional settings.

(6) "Community First Choice Services" (CFCS) means the delivery of medically necessary in-home and community-based services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living and instrumental activities of daily living.

(7) "Department" means the Montana Department of Public Health and Human Services.

(8) "Direct-Care Wage" means funding which is a supplemental payment made to Community First Choice service providers for the purpose of providing direct-care wage increases, benefits, or lump-sum payments to workers that provide direct services. These funds are distributed proportionately based on a pro rata share of appropriated funding to participating providers of CFCS. The distribution is based on the number of units of Medicaid CFCS provided by each provider agency for the distribution year relative to the total number of units provided statewide by all providers of CFCS.

(9) "Functional assessment" means an assessment that is performed by the designated quality improvement organization licensed nurse to determine if the member qualifies for CFCS and requires assistance with activities of daily living, instrumental activities of daily living, and health maintenance activities.

(10) "Health Care for Health Care Workers" means funding which is designated for the purpose of Medicaid provider rate increases when health insurance is provided for direct-care workers in the Community First Choice, personal assistance services and private duty nursing programs. The funds must be used to cover premiums for health insurance that meet defined benchmark criteria established by the department. These funds are distributed proportionately based on a pro rata share of appropriated funding to participating providers of CFCS based on the number of units of Medicaid CFCS provided by each provider for the distribution year relative to the total number of units provided statewide by all providers of service.

(11) "Health care professional" means a medical doctor, certified physician assistant, nurse practitioner or registered nurse, occupational therapist or a medical social worker, who is familiar with the member's activities of daily living. The health care professional may not be a paid employee of the CFCS provider agency.

(12) "Health maintenance activities" means health-related tasks that may be reimbursed through the Nurse Practice Act exemption in accordance with ARM 24.159.1616 and 37-8-103, MCA. These tasks are limited to bowel programs, wound care, urinary system management, and administration of medication. These activities are delivered by the member's personal care attendant when the activities, in the opinion of the physician or other health care professional, can be performed by the person if the person were physically capable and if the procedure could be safely performed in the home. A member is only able to receive these services from a personal care attendant using the self-direct model.

(13) "Instrumental activities of daily living" means activities which are limited to activities provided in accordance with the service plan, which are directly related to the member's person-centered needs. These activities are limited to the following:

(a) household tasks which are limited to cleaning the area used by the

member, changing the member's bed linens, and doing the member's laundry;

(b) shopping;

(c) community integration which provides assistance so the member can

participate in recreational and community activities;

(d) yard hazard removal which provides safe access to the member's home;

and

(e) correspondence assistance which provides a member, capable of

directing the service, with assistance opening mail, filing records, and completing paperwork.

(14) "Level of care" means a functional assessment performed by the department or the department's designee to determine if an individual requires nursing facility or intermediate care facility for person with intellectual disabilities level of service. Level of care process is defined in ARM 37.40.201.

(15) "Member" means a person eligible for and enrolled as a participant in the Montana Medicaid Program.

(16) "Nurse supervisor" means a licensed nurse employed by an agency-based CFCS provider agency who completes the service plan with the member and oversees the training and orientation of personal care attendants in the delivery of CFCS.

(17) "Personal Assistance Services" (PAS) means the delivery of medically necessary in-home services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living. A member must have a medical need for hands-on assistance in order to receive PAS.

(18) "Personal care attendants" means individuals who assist members with their activities of daily living, instrumental activities of daily living, and other health care needs.

(19) "Person-centered plan" means a department-generated form that is utilized in the identification of the member's goals, strengths, and preferences for service delivery. The form is developed using a person-centered planning process that focuses on learning what is important to a member and how they want to live. The ultimate goal of the person-centered planning process is increased member choice, participation, and independence, while also ensuring health and safety.

(20) "Personal Emergency Response System" (PERS) means a service which provides members with an electronic, telephonic, or mechanical system used to summon assistance in an emergency situation. The system alerts medical professionals, support staff, or other designated individuals to respond to the member's emergency request.

(21) "Personal representative" means an individual designated by a member to act on the member's behalf to hire, direct, schedule, and train personal care attendants in performing self-directed CFCS.

(22) "Plan Facilitator" means the person designated by the department to be responsible for developing and coordinating the member's person-centered plan. The plan facilitator is either a qualified case manager, when one exists, or an individual appointed by the provider agency who is responsible for development of the plan in situations where there is no qualified case manager.

(23) "Oversight staff" means the person employed by a self-directed CFCS provider agency that completes the service plan with the member and oversees the member's participation in the program.

(24) "Provider agency" means a Medicaid-enrolled provider who provides attendant-based services.

(25) "Quality Improvement Organization" (QIO) means a department-contracted entity who is responsible for completing the functional assessments for members accessing CFCS.

(26) "Self-directed services" means a service delivery option for CFCS. In this option the member, or a personal representative, takes responsibility of managing the CFCS. Under the self-directed option, the member or personal representative must hire, fire, supervise, and manage the personal care attendants. In this service option personal care attendants are employed by the provider agency.

(27) "Service Delivery Record" means a form used to document the personal care attendants' delivery of CFCS on a daily basis. The form includes:

(a) dates;

(b) times;

(c) location, when not in the home; and

(d) types of tasks provided by the personal care attendant.

(28) "Service plan" means a department-generated form that captures the scope and frequency of CFCS based on the functional assessment of a member's needs for service and support.

(29) "Service profile" means a form that summarizes the member's functional need for CFCS. A licensed quality improvement organization nurse completes the service profile form. The service profile identifies the member's level of impairment, frequency and need for assistance with activities of daily living, instrumental activities of daily living, and health maintenance activities. The profile also provides the member's total authorization for CFCS on a biweekly basis.

(30) "Skill acquisition advocate" means someone who has the capacity to assess the necessity and appropriateness of a member to acquire the skills necessary to achieve independence in performing a CFCS. The skill acquisition advocate may be an occupational therapist, speech therapist, physical therapist, physician, nurse practitioner, physician assistant, registered nurse, behavior specialist, or any other qualified professional approved by the department.

(31) "Skill acquisition letter of endorsement" means a department-generated letter that is signed by a skill acquisition health advocate. The letter outlines the member's plan for receiving skill acquisition service and provides endorsement by the skill acquisition health advocate that the member is capable of achieving independence in performing the service.

(32) "Skill acquisition, maintenance, and enhancement" means a service that may be authorized in the CFCP and is designed to promote member independence. The service enables a member to receive additional support from a personal care attendant to acquire the skills necessary to achieve independence in performing a CFCS.

(1) To qualify for Community First Choice Services (CFCS), a person must:

(a) be Medicaid eligible;

(b) meet the level of care criteria found at ARM 37.40.205(1); and

(c) demonstrate a medical and functional need for assistance with activities

of daily living.

(2) CFCS includes assistance with the following activities:

(a) activities of daily living;

(b) instrumental activities of daily living;

(c) medical escort services;

(d) skill acquisition, maintenance, and enhancement; and

(e) personal emergency response systems.

(3) Instrumental activities of daily living are only authorized when the member demonstrates a medical and functional need to receive assistance with activities of daily living. Instrumental activities of daily living may not account for more than one-third of the total time allocated per two-week period for CFCS or a maximum of ten hours per two-week time period, whichever is less.

(4) Medical escort services are only authorized when the member has demonstrated a medical and functional need for CFCS. Medical escort services must be directly related to a member's medical and functional need for assistance en route to, or at the Medicaid reimbursable medical service, and are available when a family member or caregiver is unable to accompany the member.

(5) Skill acquisition, maintenance, and enhancement services are only authorized when the member demonstrates a medical and functional need to receive assistance with activities of daily living. The service may be authorized if a member is expected to achieve full independence in skill acquisition within a 90-day time period. A skill acquisition letter of endorsement signed by a skill acquisition advocate is required prior to authorization of the service.

(6) Personal emergency response system services (PERS) are only authorized when the member demonstrates a medical and functional need to receive assistance with activities of daily living.

(7) CFCS, except for medical escort services, shopping, laundry, and community integration, will be provided in the member's home.

(8) CFCS may not typically be provided in group home settings unless prior authorized by the department. Group home settings include licensed youth foster homes, mental health group homes, and adult intensive community home services. CFCS may be authorized when the person's medical needs are beyond the scope of services normally provided by programs funding services in the group setting. For example, a person requiring additional assistance because of an acute medical episode or post-hospitalization period may receive CFCS in a youth foster home setting.

(9) CFCS is not available to the following:

(a) persons who reside in a hospital, hospitals providing long-term care, or a long-term care facility as defined in 50-5-101, MCA, and licensed under 50-5-201, MCA;

(b) persons who reside in assisted living or adult foster homes, as defined in 50-5-225, MCA, and licensed under 50-5-227, MCA;

(c) persons who live in homes which are not safely accessible by normal modes of transportation.

(10) CFCS may not include any skilled services that require professional medical training unless otherwise permitted under 37-8-103, MCA, or ARM 24.159.1616.

(11) CFCS do not include services which maintain an entire household. CFCS do not include:

(a) cleaning floors and furniture in areas that members do not use or occupy;

(b) laundering clothing or bedding that members do not use;

(c) supervision, respite care, babysitting, or visiting;

(d) maintenance of animals unless the animal is a certified service animal specifically trained to meet the health and safety needs of the member;

(e) home and outside maintenance; and

(f) meal preparation for other family members.

(12) CFCS provided by a member of the member's immediate family is not CFCS for the purposes of the Medicaid program, and is not eligible for reimbursement. Immediate family member includes the following:

(a) a spouse; and

(b) a natural, adoptive, or foster parent of a minor child.

(13) CFCS must be delivered by a CFCS personal care attendant employed by an enrolled Medicaid provider that has met the criteria established by the department for the delivery of CFCS as referenced in ARM 37.40.1017 and 37.40.1018.

(14) CFCS may not be provided to relieve a parent of child-caring or other legal responsibilities. CFCS for children with disabilities may be appropriate when the parent is unqualified or otherwise unable to provide services and the child is at risk of institutionalization unless the services are provided.

(1) In order to receive Community First Choice Services (CFCS), the member must be capable of making choices about activities of daily living and instrumental activities of daily living. The member must be able to understand the impact of these choices and assume responsibility for the choices. If the member is unable to meet these criteria, the member may have someone assist them in decision making and directing their activities. The CFCS person-centered planning process includes multiple steps to protect a member's health and safety while ensuring that member choice and control are an integral component of service delivery. Prior to delivering CFCS, the following person-centered planning requirements must be met:

(a) a licensed contract nurse must complete a functional assessment and

service profile;

(b) a plan facilitator must complete the person-centered plan; and

(c) a nurse supervisor or program oversight staff must complete the service

plan.

(2) The Person-Centered Planning requirements in (1) may be delayed in the

circumstances outlined in (7).

(3) The quality improvement organization will define the member's medical and functional needs in a functional assessment and service profile. The functional assessment and service profile must meet the following criteria:

(a) a licensed contract nurse will develop and review the member's functional assessment and service profile initially and will renew it at least annually; and

(b) the service profile will establish the maximum authorization for CFCS in a two-week time period.

(4) The member and plan facilitator must meet to complete a person-centered plan that identifies, in writing, member-specific goals and objectives for the delivery of CFCS. The plan facilitator must ensure the person-centered plan is completed prior to service and renewed at least annually. The person-centered plan will be based on the member's functional assessment and service profile as provided by the quality improvement organization.

(a) In agency-based CFCS, the CFCS provider agency nurse supervisor must participate in the initial and annual person-centered planning visit.

(b) In self-directed CFCS, the CFCS provider agency oversight staff must

participate in the initial and annual person-centered planning visit.

(5) The service plan will identify the type and amount of CFCS and will govern the delivery of service. The service plan must meet the following criteria:

(a) in agency-based CFCS, the agency nurse supervisor must approve the service plan initially, and must recertify the service plan every six months;

(b) in self-directed CFCS, the provider agency oversight staff must approve the service initially, and must recertify the service plan every six months;

(c) the plan must address the member's medical and functional need for service; and

(d) the plan must not exceed the service profile authorization for hours delivered in a two-week time period.

(6) A member will not receive CFCS beyond the service profile authorization unless one of two conditions is met:

(a) The provider agency implements a temporary service plan as outlined in (7).

(i) in agency-based CFCS, the provider agency nurse supervisor must

sign the temporary service plan and prescribe in writing the member's needs for the increase in services.

(ii) in self-directed CFCS, the provider agency oversight staff must sign

the temporary service plan and prescribe in writing the member's needs for the increase in services.

(b) The provider agency approves medical escort service during the time period. The provider agency must provide documentation to ensure the escort was provided according to program parameters.

(7) If a member is at high risk for institutionalization or in need of temporary CFCS, the provider agency may implement services immediately that include activities of daily living without the functional assessment, service profile, and person-centered plan in place. In this case the provider agency must implement a temporary service plan. The provider agency must use a department-approved form to document the temporary service plan. The temporary service plan must prescribe in writing the member's medical and functional need for service. The provider must refer the member to the quality improvement organization for a functional assessment by the 28th day of the temporary service plan or they must discharge the member.

(a) In self-directed CFCS, the health care professional must complete the health care professional authorization form prior to the delivery of services and the provider agency oversight staff must complete and sign the service plan prior to the delivery of services.

(b) In agency-based CFCS, the provider agency nurse supervisor must complete and sign the temporary service plan prior to the delivery of services.

(8) The member must agree to accept the provision of CFCS as specified in the person-centered service plan.

(9) The CFCS provider must have a written complaint process. The member may receive a copy upon request. The provider must adhere to the process for any member complaints related to the person-centered planning and service-delivery process.

(10) The delivery of agency-based CFCS must be supervised by a licensed agency nurse. Supervision includes oversight of the training and orientation of direct-care workers.

(1) Self-directed Community First Choice Services (CFCS) are services provided to Medicaid members who choose to take the responsibility or have a representative take the responsibility of managing the CFCS. Self-directed CFCS allow the member to direct CFCS, including health maintenance tasks.

(2) Health maintenance tasks include the following:

(a) urinary systems management;

(b) bowel care;

(c) wound care; and

(d) medication management.

(3) Members must provide their physician or health care professional evidence of ability to manage their CFCS and health maintenance tasks.

(a) The scope and detail of the evidence will be determined by the physician or health care professional.

(4) Members who are unable to utilize self-directed CFCS may receive services through the agency-based CFCS program managed by provider agencies under agreement with Medicaid.

(1) Self-directed Community First Choice Services (CFCS) may only be delivered by an attendant who is the employee of a Medicaid-enrolled provider and who is selected by the member or their personal representative.

(2) Agency-based CFCS managed by provider agencies under agreement with Medicaid are not available to members who are participating in the self-directed CFCS program. The use of CFCS managed by provider agencies may be permissible in the event that the member's backup plan fails.

(3) Home health and home and community-based waiver skilled nursing services are not available to members for the completion of health maintenance activities which the member has been authorized to manage. The use of home health and home and community-based waiver skilled nursing services may be permissible in the event that the member's backup plan fails. In this case the service must be prior authorized.

(4) Members who have been terminated from the self-directed program may apply for agency-based CFCS through the Medicaid CFCS program managed by approved provider agencies.

(1) To qualify for self-directed Community First Choice Services (CFCS), the member:

(a) must be capable of assuming the management responsibilities of self-directed CFCS or have a personal representative willing to assume this responsibility. Management responsibilities include the following:

(i) recruit, hire, schedule, train, and dismiss all personal care attendants;

(ii) develop a backup plan for when a personal care attendant is unable to provide services. The backup plan identifies the process for addressing the member's functional need for service as identified on the service plan should the personal care attendant be unable to deliver services;

(iii) review, approve, sign, and date all service delivery records to provide assurance that the service plan has been followed; and

(iv) assume medical and related liability regarding the delivery of CFCS.

(b) must obtain authorization from a physician or health care professional to participate in the program;

(c) must obtain authorization prior to service delivery and annually thereafter; and

(d) must be capable of making choices about activities of daily living, understand the impact of these choices, and assume the responsibility of the choices.

(2) The member may have a personal representative assume some or all of the responsibilities imposed by this rule. The personal representative is an immediately involved representative who meets the following criteria:

(a) is a person who is directly involved in the daily care of the member;

(b) is available to assume the responsibility of managing the member's care, including directing the care as it occurs in the home; and

(c) will not be employed by the member's CFCS provider agency.

(1) Community First Choice Services (CFCS) may be terminated for any of the following reasons:

(a) the member, or other persons in the household, subjects the direct-care worker to physical or verbal abuse, sexual harassment, exposure to the use of illegal substances, or to threats of physical harm;

(b) the member requests termination of services or refuses to accept help;

(c) the environment of the member is unsafe for the provision of CFCS;

(d) the member is engaging in illegal activity in the home;

(e) the member's physician requests termination of services;

(f) the member no longer has a medical need for CFCS;

(g) the member refuses the services of a direct-care worker based solely or partly on the attendant's race, creed, religion, sex, marital status, color, age, handicap, or national origin;

(h) the member refuses to accept services in compliance with the service plan;

(i) the member refuses to participate in the functional assessment, recertification, and person-centered planning visits; or

(j) the member falsifies the service delivery record.

(2) The department may terminate or reduce CFCS when funding for services is unavailable.

(3) The provider must give at least ten days advance notice to a member when CFCS are terminated for reasons listed in (1)(d) through (1)(j).

(4) The provider may immediately, but temporarily, suspend services for the reasons listed in (1)(a) through (1)(e). Following the temporary suspension of services the provider may enter into an agreement with the member to ensure that the violations of (1)(a) through (1)(e) do not reoccur. If the member fails to abide by the terms of the agreement, services may be permanently terminated.

(5) The department will provide written notice to an applicant when CFCS are initially denied to the applicant.

(6) A person may request a fair hearing for any adverse determination made by the department. Fair hearings will be conducted as provided for in ARM 37.5.304, 37.5.307, 37.5.310, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(1) Providers will enroll as a Community First Choice Services (CFCS) personal care attendant provider, a CFCS personal emergency response system (PERS) provider, or both. Providers must enroll through the department's fiscal intermediary.

(2) CFCS providers must be businesses incorporated under the laws of the state of Montana.

(3) CFCS providers must submit a description of the proposed service area which must include, at a minimum, coverage of the entire area of at least one county or Indian reservation.

(4) CFCS personal care attendant service providers must comply with onsite visit requirements both before and after enrollment to verify information submitted to the department.

(5) CFCS personal care attendant service providers must provide the documentation to demonstrate the following:

(a) general liability insurance with a minimum coverage of $1,000,000 per occurrence and $2,000,000 aggregate;

(b) motor vehicle liability insurance with split limits of $500,000 per person for personal injury, $1,000,000 per accident occurrence for personal injury, and $100,000 per accident occurrence for property damage; or, combined single limits of $1,000,000 per occurrence to cover such claims as may be caused by any act, omission, or negligence of the provider or its agents, officers, representatives, assigns, or subcontractors;

(c) current unemployment insurance and workers' compensation coverage; and

(d) verification of completion of the department's mandatory CFCS training.

(6) CFCS attendant-based providers will select to deliver either agency-based or self-directed CFCS option. Once a provider has completed a successful compliance review the provider may enroll in the other service option.

(7) The department may contract with out-of-state agencies to provide CFCS for Montana Medicaid members temporarily living out of state.

(1) In order to perform the duties of an agency-based nurse supervisor, self-directed program oversight staff, or the Community First Choice Services (CFCS) provider person-centered plan facilitator the person cannot:

(a) be related by blood or marriage to the member or to any paid caregiver for the member;

(b) be financially responsible to the member;

(c) have authority to make financial or health-related decisions on behalf of the member;

(d) benefit financially from the provision of assessed need for services;

(e) be employed as a direct-care worker at the agency; or

(f) have a majority ownership stake in the agency.

(1) Providers may enroll as a Community First Choice Services (CFCS) personal care attendant provider, a CFCS personal emergency response system provider, or both.

(2) CFCS personal care attendant providers will maintain staff resources, including a nurse supervisor and person-centered plan facilitator, to perform the necessary CFCS duties as referenced in ARM 37.40.1005. The nurse supervisor and plan facilitator may be the same person.

(3) CFCS nurse supervisors must meet the following criteria:

(a) be a licensed nurse;

(b) have at least one year's experience in aging and disability services;

(c) receive training in CFCS; and

(d) be free of conflict-of-interest criteria as referenced in ARM 37.40.1016.

(4) CFCS plan facilitators must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive certification in the person-centered planning process; and

(c) be free of conflict-of-interest criteria as referenced in ARM 37.40.1016.

(5) The CFCS personal care attendant providers must provide documentation to verify the nurse supervisor and plan facilitator credentials, certification, and training.

(6) CFCS personal emergency response system service providers will provide a service, which includes electronic, telephonic, or mechanical system to assist the member in an emergency situation. The system must be connected to a local emergency response system with the capacity to activate local emergency medical personnel.

(7)  A provider of services must ensure that the services adhere to the requirements of 42 CFR 441.710(a)(1) and (a)(2), which permits reimbursement with Medicaid monies only for services within settings that meet certain qualities set forth under the regulation. These qualities include that the setting:

(a) is integrated in and facilitates full access of the individual to the greater community;

(b)  ensures the individual receives services in the community to the same degree of access as individuals not receiving Medicaid Home and Community-Based Services;

(c) is selected by the individual from among setting options, including non-disability specific settings and an option to choose a private unit in a residential setting;

(d)  ensures the individual's rights of privacy, dignity, and respect, and freedom from coercion and restraint;

(e)  optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including but not limited to daily activities, physical environment, and with whom to interact.;

(f) provides an opportunity to seek employment and work in competitive integrated settings; and

(g)  facilitates individual choice of services and supports, and who provides them.

(8)  The department adopts and incorporates by reference 42 CFR 441.710(a)(1) and (a)(2), as amended January 16, 2014. A copy of this regulation may be obtained at https://www.ecfr.gov/ or by contacting the Department of Public Health and Human Services, Senior & Long-Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210.

(1) Self-directed Community First Choice Services (CFCS) providers must employ program oversight staff to perform the following self-directed oversight activities:

(a) assist members to identify resources for personal assistants;

(b) advise the member regarding program requirements;

(c) complete compliance documentation and follow-up if the member does not comply with program requirements; and

(d) provide documentation to ensure that the personal representative meets the participation criteria described in ARM 37.40.1008.

(2) Self-directed CFCS providers must maintain staff resources, including a program oversight staff and person-centered plan facilitator, to perform the necessary CFCS duties as referenced in ARM 37.40.1005. The program oversight staff and person-centered plan facilitator may be the same person.

(3) Self-directed program oversight staff must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive training in CFCS; and

(c) be free of conflict-of-interest criteria as referenced in ARM 37.40.1016.

(4) Self-directed plan facilitators must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive certification in the person-centered planning process; and

(c) be free of conflict-of-interest criteria as referenced in ARM 37.40.1016.

(5) The CFCS provider agency must provide documentation to verify program oversight staff and plan facilitator credentials, certification, and training.

(6) Self-directed CFCS provider agencies must act as the employer of record for direct-care workers for the purposes of payroll and federal hiring practices.

(1) Providers of Community First Choice Services (CFCS) will be subject to compliance reviews to provide assurance to the department that services are being provided within the rules and policy of the program.

(2) The department will conduct compliance reviews on the provider's premises and through documentation requests. The provider must supply documentation requested by the department in a reasonable time frame and no later than 30 days following the request.

(3) The reviews will take place at times determined by the department.

(4) The department will determine compliance in the following service delivery areas:

(a) service authorization documentation;

(b) high-risk authorization;

(c) amendments and temporary authorization;

(d) service plan and member choice;

(e) service delivery;

(f) nurse supervision and oversight; and

(g) health and welfare and serious occurrence reports.

(5) The department will determine compliance in the following administrative areas:

(a) attendant training;

(b) staff credentials, certification, and training;

(c) principles of charting;

(d) maintenance of serious occurrence reports;

(e) member satisfaction surveys;

(f) required documentation;

(g) agency manuals and handouts, including complaint process;

(h) workers' compensation, liability, and automobile coverage; and

(i) service billing.

(6) The department will determine compliance in the following person-centered planning delivery areas:

(a) plan facilitator certification documentation;

(b) member and plan facilitator rights and responsibility documentation;

(c) person-centered plan and member choice; and

(d) risk assessment and mitigation.

(7) The department will examine a minimum of three cases or five percent of the provider's case load for the purpose of the compliance review, whichever is greater. The department will review additional cases, when necessary.

(8) The provider will meet all standards in ninety percent of the cases to be considered in compliance. If ninety percent compliance is not met, a second compliance review will be scheduled.

(9) The provider must meet all standards in ninety percent of the cases in the second review or will be subject to department sanctions as provided in ARM 37.85.401.

(1) Providers of Community First Choice Services (CFCS) will be subject to compliance reviews to provide assurance to the department that services are being provided within the rules and policy of the program.

(2) The department will conduct compliance reviews on the provider's premises and through documentation requests. The provider must supply documentation requested by the department in a reasonable time frame and no later than 30 days following the request.

(3) The reviews will take place at times determined by the department.

(4) The department will determine compliance in the following service delivery areas:

(a) service authorization documentation;

(b) health-care professional authorization;

(c) high-risk authorization;

(d) amendments and temporary authorization;

(e) service plan and member choice;

(f) service delivery;

(g) agency program oversight; and

(h) health and welfare and serious occurrence reports.

(5) The department will determine compliance in the following administrative areas:

(a) staff credentials, certification, and training;

(b) principles of charting;

(c) maintenance of serious occurrence reports;

(d) member satisfaction surveys;

(e) required documentation;

(f) agency manuals and handouts, including complaint process;

(g) workers' compensation, liability, and automobile coverage; and

(h) service billing.

(6) The department will determine compliance in the following person-centered planning delivery areas:

(a) plan facilitator certification documentation;

(b) member and plan facilitator rights and responsibility documentation;

(c) person-centered plan and member choice; and

(d) risk assessment and mitigation.

(7) The department will examine a minimum of three cases or five percent of the provider's case load for the purpose of the compliance review, whichever is greater. The department will review additional cases, when necessary.

(8) The provider must meet all standards in ninety percent of the cases to be considered in compliance. If ninety percent compliance is not met, a second compliance review will be scheduled.

(9) The provider must meet all standards in ninety percent of the cases in the second review or it will be subject to department sanctions as provided in ARM 37.85.401.

(1) Community First Choice Services (CFCS) may be provided up to, but not more than, 84 hours of attendant service per two-week time period per person as defined by the service profile. The department may, within its discretion, authorize additional hours in excess of this limit. Any services exceeding this limit must be prior authorized by the department. Prior authorization for excess hours may be authorized if additional assistance is required for:

(a) a period of time not to exceed three months and as the result of an acute medical episode;

(b) a period of time not to exceed three months and to prevent institutionalization during the absence of the normal caregiver; or

(c) a period of time not to exceed three months and during a post-hospitalization period.

(2) Add-on payments for direct-care wage, bonus, and health care for health care workers are as described in ARM 37.40.1027 and 37.40.1030.

(3) CFCS include the following:

(a) personal care attendant service is a 15-minute unit and means an onsite visit specific to a member. Personal care attendant services include the performance of activities of daily living, instrumental activities of daily living, skill acquisition, maintenance, and enhancement services. The personal care attendant service rate is an all-inclusive rate and includes the provider agency's administrative, person-centered planning, supervision, and oversight duties;

(b) medical escort is a 15-minute unit and means transportation time and appointment time so the person can access an approved medical appointment;

(c) mileage is a unit of one mile and means reimbursement for mileage when an attendant uses their vehicle to transport a person on an approved shopping, community integration, or medical escort trip; and

(d) personal emergency response is a unit of service that covers the initial installation fee and monthly rental fee of the unit.

(4) The department will not reimburse a member for in-home services delivered by a privately retained attendant.

(5) Reimbursement is not available for CFCS provided by immediate family members as described in ARM 37.40.1002.

(6) Reimbursement fees for agency-based and self-directed CFCS are stated in the department's fee schedule adopted at ARM 37.85.105(4).

(1) In addition to the reimbursement fee as provided in ARM 37.40.1026, 37.40.1030, 37.40.1105, and 37.85.105, the department will pay Medicaid personal assistance service and Community First Choice Services (CFCS) providers located in Montana who submit an approved request to the department, an add-on payment. Add-on payment is used only for wage and benefit increases or lump-sum payments for direct-care workers who deliver Medicaid personal assistance or CFCS.

(a) The department will determine the add-on payments, commencing July 1, 2014, as a pro rata share of appropriated funds available for increases in direct-care worker wages, lump-sum direct-care worker bonus payments, or both. A provider agency is eligible to receive a portion of the total funds based on their percentage of total utilization of personal assistance services and CFCS over the previous fiscal year.

(b) To receive the direct-care services workers' add-on payment, a provider must submit for approval an application request to the department stating how the direct-care workers' wage increase, add-on payment, or both will be spent to comply with the requirements outlined in the application. The provider must submit all of the information required on a department-approved form in order to continue to receive subsequent add-on payment amounts for the entire year.

(c) A provider must submit a qualifying request for the funds distributed under (1). The request must include all required information, within the deadlines established by the department. Providers who do not submit the qualifying request, or do not wish to participate in the add-on funding, may not be entitled to their pro rata share of the funds available for wage and benefit increase or lump-sum payments for direct-care workers.

(2) A provider that receives funds under this rule must maintain appropriate records documenting the expenditures of these funds. This documentation must be maintained and made available to authorized governmental entities and their agencies to the same extent as other required records and documentation under applicable Medicaid record requirements.

(a) Effective for the period beginning July 1, 2014, personal assistance services providers or CFCS providers must report to the department actual hourly wage and benefit rates paid for all direct-care workers or the lump-sum payment amounts for all direct-care workers who will receive these funds.

(1) The department will pay Medicaid Personal Assistance Services and Community First Choice Services (CFCS) providers located in Montana, who submit an approved request to the department, an add-on payment in addition to the reimbursement fee as provided in ARM 37.40.1026, 37.40.1027, 37.40.1105, and 37.85.105. The add-on payment is to be used only to cover health insurance payments for direct-care workers who spend a majority of their time serving Medicaid personal care members.

(a) The department will determine the add-on payments, commencing July 1, 2014, as a pro rata share of appropriated funds allocated for health care for health care worker coverage. A provider agency is eligible to receive a portion of the total funds based on their percentage of total utilization of personal assistance services and CFCS over the previous fiscal year.

(b) To receive the health care for health care worker payment, a provider must submit for approval an application request to the department stating how the health care for health care worker add-on payment will be spent to comply with the application's requirements. The provider must submit all of the information required on a department-approved form in order to continue to receive subsequent add-on payment amounts for the entire year.

(c) A provider must submit an application request for the funds distributed under (1)(b). The request must include all required information, within the deadlines established by the department. Providers who do not submit the application request or do not wish to participate in the add-on funding may not be entitled to their pro rata share of the funds available for health care for health care worker coverage.

(2) A provider that receives funds under this rule must maintain appropriate records documenting the expenditures of these funds. This documentation must be maintained and made available to authorized governmental entities and their agencies to the same extent as other required records and documentation under applicable Medicaid record requirements.

(a) Effective for the period beginning July 1, 2014, personal assistance services or CFCS providers must submit quarterly reports to the department. The report must include the names of eligible direct-care workers receiving health insurance coverage, the monthly cost of the insurance plan, and the total cost to the agency to provide health insurance coverage.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) "Activities of daily living" (ADL) means basic personal everyday activities limited to bathing, personal hygiene, transferring, positioning, eating, dressing, toileting, assistance with exercise routine performed in home, self-administered medication, including medication reminders, and meal preparation.

(2) "Agency-based services" means services provided by a qualified personal care provider agency. The agency works with the member to establish the schedule for service provision and provides the trained staff necessary for the delivery of care.

(3) "Annual review" means a member review conducted by a licensed nurse from the designated quality improvement organization once every 365 days. The review of the member's health status includes the completion of a functional assessment and service profile.

(4) "Case manager" means a nurse or social worker who is responsible for managing services provided to eligible members under the Home and Community Based Services (HCBS Waiver) Program. These case managers plan, implement, and monitor the delivery of services available through the program to the member.

(5) "Department" means the Montana Department of Public Health and Human Services.

(6) "Direct-Care Wage" means funding which is a supplemental payment made to Personal Assistance Services (PAS) providers for the purpose of providing direct-care wage increases, benefits, or lump-sum payments to workers that provide direct services. These funds are distributed proportionately based on a pro rata share of appropriated funding to participating providers of PAS. The distribution is based on the number of units of Medicaid PAS provided by each provider agency for the distribution year relative to the total number of units provided statewide by all providers of PAS.

(7) "Functional assessment" means an assessment that is performed by the designated quality improvement organization licensed nurse to determine if the member qualifies for PAS and requires assistance with activities of daily living, instrumental activities of daily living, and health maintenance activities.

(8) "Health Care for Health Care Workers" means funding which is designated for the purpose of Medicaid provider rate increases when health insurance is provided for direct-care workers in the personal assistance, personal assistance services, and private duty nursing programs. The funds must be used to cover premiums for health insurance that meet defined benchmark criteria established by the department. These funds are distributed proportionately based on a pro rata share of appropriated funding to participating providers of PAS based on the number of units of Medicaid PAS provided by each provider for the distribution year relative to the total number of units provided statewide by all providers of service.

(9) "Health care professional" means a medical doctor, certified physician assistant, nurse practitioner or registered nurse, occupational therapist or a medical social worker, who is familiar with the member's activities of daily living. The health care professional may not be a paid employee of the PAS provider agency.

(10) "Health maintenance activities" means health-related tasks that may be reimbursed through the Nurse Practice Act exemption in accordance with ARM 24.159.1616 and 37-8-103, MCA. These tasks are limited to bowel programs, wound care, urinary system management, and administration of medication. These activities are delivered by the member's personal care attendant when the activities, in the opinion of the physician or other health care professional, can be performed by the person if the person were physically capable and if the procedure could be safely performed in the home. A member is only able to receive these services from a personal care attendant using the self-direct model.

(11) "Instrumental activities of daily living" means activities which are limited to activities provided in accordance with the service plan, which are directly related to the member's person-centered needs. These activities are limited to the following:

(a) household tasks which are limited to cleaning the area used by the

member, changing the member's bed linens, and doing the member's laundry; and

(b) shopping.

(12) "Member" means a person eligible for and enrolled as a participant in the Montana Medicaid Program.

(13) "Nurse supervisor" means a licensed nurse employed by an agency-based PAS provider agency who completes the service plan with the member and oversees the training and orientation of personal care attendants in the delivery of PAS.

(14) "Personal Assistance Services" (PAS) means the delivery of medically necessary in-home and community-based services provided to Medicaid eligible members whose health conditions cause them to be functionally limited in performing activities of daily living and instrumental activities of daily living. A member must have a medical need for hands-on assistance in order to receive PAS.

(15) "Personal Assistance Services Program" (PASP) means a program developed in accordance with 1905 (a)(24) of the Social Security Act, which allows states the option of providing personal assistance services through an approved state plan. The PAS Program is developed to deliver attendant-based services through the use of a person-centered planning process that includes service coordination and member involvement to provide long-term services and supports (LTSS) to individuals in their homes or communities rather than in institutional settings.

(16) "Personal care attendants" means individuals who assist members with their activities of daily living, instrumental activities of daily living, and other health care needs.

(17) "Person-centered plan" means a department-generated form that is utilized in the identification of the member's goals, strengths, and preferences for service delivery. The form is developed using a person-centered planning process that focuses on learning what is important to a member and how they want to live. The ultimate goal of the person-centered planning process is increased member choice, participation, and independence, while also ensuring health and safety.

(18) "Personal representative" means an individual designated by a member to act on the member's behalf to hire, direct, schedule, and train personal care attendants in performing self-directed PAS.

(19) "Plan Facilitator" means the person designated by the department to be responsible for developing and coordinating the member's person-centered plan. The plan facilitator is either a qualified case manager, when one exists, or an individual appointed by the provider agency who is responsible for development of the plan in situations where there is no qualified case manager.

(20) "Oversight staff" means the person employed by a self-directed PAS provider agency that completes the service plan with the member and oversees the member's participation in the program.

(21) "Provider agency" means a Medicaid-enrolled provider who provides attendant-based services.

(22) "Quality Improvement Organization" (QIO) means a department-contracted entity who is responsible for completing the functional assessments for members accessing PAS.

(23) "Self-directed services" means a service delivery option for PAS. In this option the member, or a personal representative, takes responsibility of managing the PAS. Under the self-directed option, the member or personal representative must hire, fire, supervise, and manage the personal care attendants. In this service option personal care attendants are employed by the provider agency.

(24) "Service Delivery Record" means a form used to document the personal care attendants' delivery of PAS on a daily basis. The form includes:

(a) dates;

(b) times;

(c) location, when not in the home; and

(d) types of tasks provided by the personal care attendant.

(25) "Service plan" means a department-generated form that captures the scope and frequency of PAS based on the functional assessment of a member's needs for service and support.

(26) "Service profile" means a form that summarizes the member's functional need for PAS. A licensed quality improvement organization nurse completes the service profile form. The service profile identifies the member's level of impairment, frequency and need for assistance with activities of daily living, instrumental activities of daily living, and health maintenance activities. The profile also provides the member's total authorization for PAS on a biweekly basis.

(1) To qualify for Personal Assistance Services (PAS), a person must:

(a) be Medicaid eligible; and

(b) demonstrate a medical and functional need for assistance with activities

of daily living.

(2) PAS include assistance with the following activities:

(a) activities of daily living;

(b) instrumental activities of daily living; and

(c) medical escort services.

(3) Instrumental activities of daily living are only authorized when the member demonstrates a medical and functional need to receive assistance with activities of daily living. Instrumental activities of daily living may not account for more than one-third of the total time allocated per two-week period for PAS or a maximum of six hours per two-week time period, whichever is less.

(4) Medical escort services are only authorized when the member has demonstrated a medical and functional need for PAS. Medical escort services must be directly related to a member's medical and functional need for assistance en route to, or at the Medicaid reimbursable medical service, and are available when a family member or caregiver is unable to accompany the member.

(5) PAS, except for medical escort services, shopping, and laundry, will be provided in the member's home.

(6) PAS may not typically be provided in group home settings unless prior authorized by the department. Group home settings include licensed youth foster homes, mental health group homes, and adult intensive community home services. PAS may be authorized when the person's medical needs are beyond the scope of services normally provided by programs funding services in the group setting. For example, a person requiring additional assistance because of an acute medical episode or post-hospitalization period may receive PAS in a youth foster home setting.

(7) PAS are not available to the following:

(a) persons who reside in a hospital, hospitals providing long-term care, or a long-term care facility as defined in 50-5-101, MCA, and licensed under 50-5-201, MCA;

(b) persons who reside in assisted living or adult foster homes, as defined in 50-5-225, MCA, and licensed under 50-5-227, MCA; or

(c) persons who live in homes which are not safely accessible by normal modes of transportation.

(8) PAS may not include any skilled services that require professional medical training unless otherwise permitted under 37-8-103, MCA, or ARM 24.159.1616.

(9) PAS do not include services which maintain an entire household. PAS do not include:

(a) cleaning floors and furniture in areas that members do not use or occupy;

(b) laundering clothing or bedding that members do not use;

(c) supervision, respite care, babysitting, or visiting;

(d) maintenance of animals unless the animal is a certified service animal specifically trained to meet the health and safety needs of the member;

(e) home and outside maintenance; and

(f) meal preparation for other family members.

(10) PAS provided by a member of the member's immediate family are not PAS for the purposes of the Medicaid program, and are not eligible for reimbursement. Immediate family member includes the following:

(a) a spouse; and

(b) a natural, adoptive, or foster parent of a minor child.

(11) PAS must be delivered by a PAS personal care attendant employed by an enrolled Medicaid provider that has met the criteria established by the department for the delivery of PAS as referenced in ARM 37.40.1126 and 37.40.1127.

(12) PAS may not be provided to relieve a parent of child-caring or other legal responsibilities. PAS for children with disabilities may be appropriate when the parent is unqualified or otherwise unable to provide services and the child is at risk of institutionalization unless the services are provided.

(1) In order to receive Personal Assistance Services (PAS), the member must be capable of making choices about activities of daily living and instrumental activities of daily living. The member must be able to understand the impact of these choices and assume responsibility for the choices. If the member is unable to meet these criteria, the member may have someone assist them in decision making and directing their activities. The PAS person-centered planning process includes multiple steps to protect a member's health and safety while ensuring that member choice and control are an integral component of service delivery. Prior to delivering PAS, the following person-centered planning requirements must be met:

(a) a licensed contract nurse must complete a functional assessment and

service profile;

(b) a plan facilitator must complete the person-centered plan; and

(c) a nurse supervisor or program oversight staff must complete the service

plan.

(2) The person-centered planning requirements in (1) may be delayed in the circumstances outlined in (7).

(3) The quality improvement organization will define the member's medical and functional needs in a functional assessment and service profile. The functional assessment and service profile must meet the following criteria:

(a) a licensed contract nurse will develop and review the member's functional assessment and service profile initially and will renew it at least annually; and

(b) the service profile will establish the maximum authorization for PAS in a two-week time period.

(4) The member and plan facilitator must meet to complete a person-centered plan that identifies, in writing, member-specific goals and objectives for the delivery of PAS. The plan facilitator must ensure the person-centered plan is completed prior to service and renewed at least annually. The person-centered plan will be based on the member's functional assessment and service profile as provided by the quality improvement organization.

(a) In agency-based PAS, the PAS provider agency nurse supervisor must participate in the initial and annual person-centered planning visit.

(b) In self-directed PAS, the PAS provider agency oversight staff must

participate in the initial and annual person-centered planning visit.

(5) The service plan will identify the type and amount of PAS and will govern the delivery of service. The service plan must meet the following criteria:

(a) in agency-based PAS, the agency nurse supervisor must approve the service plan initially, and must recertify the service plan every six months;

(b) in self-directed PAS, the provider agency oversight staff must approve the service initially, and must recertify the service plan every six months;

(c) the plan must address the member's medical and functional need for service; and

(d) the plan must not exceed the service profile authorization for hours delivered in a two-week time period.

(6) A member will not receive PAS beyond the service profile authorization unless one of two conditions is met:

(a) The provider agency implements a temporary service plan as outlined in (7).

(i) in agency-based PAS, the provider agency nurse supervisor must sign the temporary service plan and prescribe in writing the member's needs for the increase in services.

(ii) in self-directed PAS, the provider agency oversight staff must sign the temporary service plan and prescribe in writing the member's needs for the increase in services.

(b) The provider agency approves medical escort service during the time period. The provider agency must provide documentation to ensure the escort was provided according to program parameters.

(7) If a member is at high risk for institutionalization or in need of temporary PAS, the provider agency may implement services immediately that include activities of daily living without the functional assessment, service profile, and person-centered plan in place. In this case the provider agency must implement a temporary service plan. The provider agency must use a department-approved form to document the temporary service plan. The temporary service plan must prescribe in writing the member's medical and functional need for service. The provider must refer the member to the quality improvement organization for a functional assessment by the 28th day of the temporary service plan or they must discharge the member.

(a) In self-directed PAS, the health care professional must complete the health care professional authorization form prior to the delivery of services and the provider agency oversight staff must complete and sign the service plan prior to the delivery of services.

(b) In agency-based PAS, the provider agency nurse supervisor must complete and sign the temporary service plan prior to the delivery of services.

(8) The member must agree to accept the provision of PAS as specified in the person-centered service plan.

(9) The PAS provider must have a written complaint process. The member may receive a copy upon request. The provider must adhere to the process for any member complaints related to the person-centered planning and service-delivery process.

(10) The delivery of agency-based PAS must be supervised by a licensed agency nurse. Supervision includes oversight of the training and orientation of direct-care workers.

(1) Self-directed Personal Assistance Services (PAS) are services provided to Medicaid members who choose to take the responsibility or have a representative take the responsibility of managing the PAS. Self-directed PAS allow the member to direct PAS, including health maintenance tasks.

(2) Health maintenance tasks include the following:

(a) urinary systems management;

(b) bowel care;

(c) wound care; and

(d) medication management.

(3) Members must provide their physician or health care professional evidence of ability to manage their PAS and health maintenance tasks.

(a) The scope and detail of the evidence will be determined by the physician or health care professional.

(4) Members who are unable to utilize self-directed PAS may receive services through the agency-based PAS program managed by provider agencies under agreement with Medicaid.

(1) Self-directed Personal Assistance Services (PAS) may only be delivered by an attendant who is the employee of a Medicaid-enrolled provider and who is selected by the member or their personal representative.

(2) Agency-based PAS managed by provider agencies under agreement with Medicaid are not available to members who are participating in the self-directed PAS program. The use of PAS managed by provider agencies may be permissible in the event that the member's backup plan fails.

(3) Home health and home and community-based waiver skilled nursing services are not available to members for the completion of health maintenance activities which the member has been authorized to manage. The use of home health and home and community-based waiver skilled nursing services may be permissible in the event that the member's backup plan fails. In this case the service must be prior authorized.

(4) Members who have been terminated from the self-directed program may apply for agency-based PAS through the Medicaid PAS program managed by approved provider agencies.

(1) To qualify for self-directed Personal Assistance Services (PAS), the member:

(a) must be capable of assuming the management responsibilities of self-directed PAS or have a personal representative willing to assume this responsibility. Management responsibilities include the following:

(i) recruit, hire, schedule, train, and dismiss all personal care attendants;

(ii) develop a backup plan for when a personal care attendant is unable to provide services. The backup plan identifies the process for addressing the member's functional need for service as identified on the service plan should the personal care attendant be unable to deliver services;

(iii) review, approve, sign, and date all service delivery records to provide assurance that the service plan has been followed; and

(iv) assume medical and related liability regarding the delivery of PAS.

(b) must obtain authorization from a physician or health care professional to participate in the program;

(c) must obtain authorization prior to service delivery and annually thereafter; and

(d) must be capable of making choices about activities of daily living, understand the impact of these choices, and assume the responsibility of the choices.

(2) The member may have a personal representative assume some or all of the responsibilities imposed by this rule. The personal representative is an immediately involved representative who meets the following criteria:

(a) is a person who is directly involved in the daily care of the member;

(b) is available to assume the responsibility of managing the member's care, including directing the care as it occurs in the home; and

(c) will not be employed by the member's PAS provider agency.

(1) Personal Assistance Services (PAS) may be terminated for any of the following reasons:

(a) the member, or other persons in the household, subjects the direct-care worker to physical or verbal abuse, sexual harassment, exposure to the use of illegal substances, or to threats of physical harm;

(b) the member requests termination of services or refuses to accept help;

(c) the environment of the member is unsafe for the provision of PAS;

(d) the member is engaging in illegal activity in the home;

(e) the member's physician requests termination of services;

(f) the member no longer has a medical need for PAS;

(g) the member refuses the services of a direct-care worker based solely or partly on the attendant's race, creed, religion, sex, marital status, color, age, handicap, or national origin;

(h) the member refuses to accept services in compliance with the service plan;

(i) the member refuses to participate in the functional assessment, recertification, and person-centered planning visits; or

(j) the member falsifies the service delivery record.

(2) The department may terminate or reduce PAS when funding for services is unavailable.

(3) The provider must give at least ten days advance notice to a member when PAS are terminated for reasons listed in (1)(f) through (1)(j).

(4) The provider may immediately, but temporarily, suspend services for the reasons listed in (1)(a) through (1)(e). Following the temporary suspension of services the provider may enter into an agreement with the member to ensure that the violations of (1)(a) through (1)(e) do not reoccur. If the member fails to abide by the terms of the agreement, services may be permanently terminated.

(5) The department will provide written notice to an applicant when PAS are initially denied to the applicant.

(6) A person may request a fair hearing for any adverse determination made by the department. Fair hearings will be conducted as provided for in ARM 37.5.304, 37.5.307, 37.5.310, 37.5.313, 37.5.316, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(1) Providers will enroll as a Personal Assistance Services (PAS) personal care attendant provider. Providers must enroll through the department's fiscal intermediary.

(2) PAS providers must be businesses incorporated under the laws of the state of Montana.

(3) PAS providers must submit a description of the proposed service area which must include, at a minimum, coverage of the entire area of at least one county or Indian reservation.

(4) PAS providers must comply with onsite visit requirements both before and after enrollment to verify information submitted to the department.

(5) PAS providers must provide the documentation to demonstrate the following:

(a) general liability insurance with a minimum coverage of $1,000,000 per occurrence and $2,000,000 aggregate;

(b) motor vehicle liability insurance with split limits of $500,000 per person for personal injury, $1,000,000 per accident occurrence for personal injury, and $100,000 per accident occurrence for property damage; or, combined single limits of $1,000,000 per occurrence to cover such claims as may be caused by any act, omission, or negligence of the provider or its agents, officers, representatives, assigns, or subcontractors;

(c) current unemployment insurance and workers' compensation coverage; and

(d) verification of completion of the department's mandatory PAS training.

(6) PAS providers will select to deliver either agency-based or self-directed PAS option. Once a provider has completed a successful compliance review the provider may enroll in the other service option.

(7) The department may contract with out-of-state agencies to provide PAS for Montana Medicaid members temporarily living out of state.

(1) In order to perform the duties of an agency-based nurse supervisor, self-directed program oversight staff, or the Personal Assistance Services (PAS) provider person-centered plan facilitator the person cannot:

(a) be related by blood or marriage to the member or to any paid caregiver for the member;

(b) be financially responsible to the member;

(c) have authority to make financial or health-related decisions on behalf of the member;

(d) benefit financially from the provision of assessed need for services;

(e) be employed as a direct-care worker at the agency; or

(f) have a majority ownership stake in the agency.

(1) Providers may enroll as a Personal Assistance Services (PAS) personal care attendant provider.

(2) PAS providers will maintain staff resources, including a nurse supervisor and person-centered plan facilitator, to perform the necessary PAS duties as referenced in ARM 37.40.1114. The nurse supervisor and plan facilitator may be the same person.

(3) PAS nurse supervisors must meet the following criteria:

(a) be a licensed nurse;

(b) have at least one year's experience in aging and disability services;

(c) receive training in PAS; and

(d) be free of conflict-of-interest criteria as referenced in ARM 37.40.1125.

(4) PAS plan facilitators must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive certification in the person-centered planning process; and

(c) be free of conflict-of-interest criteria as referenced in ARM 37.40.1125.

(5) The PAS provider agency must provide documentation to verify the nurse supervisor and plan facilitator credentials, certification, and training.

(1) Self-directed Personal Assistance Services (PAS) providers must employ program oversight staff to perform the following self-directed oversight activities:

(a) assist members to identify resources for personal assistants;

(b) advise the member regarding program requirements;

(c) complete compliance documentation and follow-up if the member does not comply with program requirements; and

(d) provide documentation to ensure that the personal representative meets the participation criteria described in ARM 37.40.1117.

(2) Self-directed PAS providers must maintain staff resources, including a program oversight staff and person-centered plan facilitator, to perform the necessary PAS duties as referenced in ARM 37.40.1114. The program oversight staff and person-centered plan facilitator may be the same person.

(3) Self-directed program oversight staff must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive training in PAS; and

(c) be free of conflict-of-interest criteria as referenced in ARM 37.40.1125.

(4) Self-directed plan facilitators must meet the following criteria:

(a) have at least one year's experience in aging and disability services;

(b) receive certification in the person-centered planning process; and

(c) be free of conflict-of-interest criteria as referenced in ARM 37.40.1125.

(5) The PAS provider agency must provide documentation to verify program oversight staff and plan facilitator credentials, certification, and training.

(6) Self-directed PAS provider agencies must act as the employer of record for direct-care workers for the purposes of payroll and federal hiring practices.

(1) Providers of Personal Assistance Services (PAS) will be subject to compliance reviews to provide assurance to the department that services are being provided within the rules and policy of the program.

(2) The department will conduct compliance reviews on the provider's premises and through documentation requests. The provider must supply documentation requested by the department in a reasonable time frame and no later than 30 days following the request.

(3) The reviews will take place at times determined by the department.

(4) The department will determine compliance in the following service delivery areas:

(a) service authorization documentation;

(b) high-risk authorization;

(c) amendments and temporary authorization;

(d) service plan and member choice;

(e) service delivery;

(f) nurse supervision and oversight; and

(g) health and welfare and serious occurrence reports.

(5) The department will determine compliance in the following administrative areas:

(a) attendant training;

(b) staff credentials, certification, and training;

(c) principles of charting;

(d) maintenance of serious occurrence reports;

(e) member satisfaction surveys;

(f) required documentation;

(g) agency manuals and handouts, including complaint process;

(h) workers' compensation, liability, and automobile coverage; and

(i) service billing.

(6) The department will determine compliance in the following person-centered planning delivery areas:

(a) plan facilitator certification documentation;

(b) member and plan facilitator rights and responsibility documentation;

(c) person-centered plan and member choice; and

(d) risk assessment and mitigation.

(7) The department will examine a minimum of three cases or five percent of the provider's case load for the purpose of the compliance review, whichever is greater. The department will review additional cases, when necessary.

(8) The provider will meet all standards in ninety percent of the cases to be considered in compliance. If ninety percent compliance is not met, a second compliance review will be scheduled.

(9) The provider must meet all standards in ninety percent of the cases in the second review or will be subject to department sanctions as provided in ARM 37.85.401.

(1) Providers of self-directed Personal Assistance Services (PAS) will be subject to compliance reviews to provide assurance to the department that services are being provided within the rules and policy of the program.

(2) The department will conduct compliance reviews on the provider's premises and through documentation requests. The provider must supply documentation requested by the department in a reasonable time frame and no later than 30 days following the request.

(3) The reviews will take place at times determined by the department.

(4) The department will determine compliance in the following service delivery areas:

(a) service authorization documentation;

(b) health-care professional authorization;

(c) high-risk authorization;

(d) amendments and temporary authorization;

(e) service plan and member choice;

(f) service delivery;

(g) agency program oversight; and

(h) health and welfare and serious occurrence reports.

(5) The department will determine compliance in the following administrative areas:

(a) staff credentials, certification, and training;

(b) principles of charting;

(c) maintenance of serious occurrence reports;

(d) member satisfaction surveys;

(e) required documentation;

(f) agency manuals and handouts, including complaint process;

(g) workers' compensation, liability, and automobile coverage; and

(h) service billing.

(6) The department will determine compliance in the following person-centered planning delivery areas:

(a) plan facilitator certification documentation;

(b) member and plan facilitator rights and responsibility documentation;

(c) person-centered plan and member choice; and

(d) risk assessment and mitigation.

(7) The department will examine a minimum of three cases or five percent of the provider's case load for the purpose of the compliance review, whichever is greater. The department will review additional cases, when necessary.

(8) The provider must meet all standards in ninety percent of the cases to be considered in compliance. If ninety percent compliance is not met, a second compliance review will be scheduled.

(9) The provider must meet all standards in ninety percent of the cases in the second review or will be subject to department sanctions as provided in ARM 37.85.401.

(1) Personal Assistance Services (PAS) may be provided up to, but not more than, 80 hours of attendant service per two-week time period per person as defined by the service profile. The department may, within its discretion, authorize additional hours in excess of this limit. Any services exceeding this limit must be prior authorized by the department. Prior authorization for excess hours may be authorized if additional assistance is required for:

(a) a period of time not to exceed three months and as the result of an acute medical episode;

(b) a period of time not to exceed three months and to prevent institutionalization during the absence of the normal caregiver; or

(c) a period of time not to exceed three months and during a post-hospitalization period.

(2) Add-on payments for direct-care wage, bonus, and health care for health care workers are subject to the requirements in ARM 37.40.1027 and 37.40.1030.

(3) PAS include the following:

(a) personal care attendant service is a 15-minute unit and means an onsite visit specific to a member. Personal care attendant services include the performance of activities of daily living, instrumental activities of daily living, and health maintenance activities. The personal care attendant service rate is an all-inclusive rate and includes the provider agency's administrative, person-centered planning, supervision, and oversight duties;

(b) medical escort is a 15-minute unit and means transportation time and appointment time so the person can access an approved medical appointment; and

(c) mileage is a unit of one mile and means reimbursement for mileage when an attendant uses their vehicle to transport a person on an approved shopping, or medical escort trip.

(4) The department will not reimburse a member for in-home services delivered by a privately retained attendant.

(5) Reimbursement is not available for PAS provided by immediate family members as described in ARM 37.40.1111.

(6) Reimbursement fees for agency-based and self-directed PAS are stated in the department's fee schedule adopted at ARM 37.85.105(4).

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

This rule has been repealed.

(1) The United States department of health and human services (HHS) has granted the department, through 42 CFR 441.300 through 441.310, the authority to establish a program of medicaid funded home and community-based services for persons who are elderly or who have physical disabilities and who would otherwise have to reside in and receive medicaid reimbursed care in a hospital or nursing facility.

(2) The department, in accordance with state and federal statutes and rules governing the provision of medicaid funded home and community-based services and any federal-state agreements governing the provision of medicaid funded home and community-based services and within the available funding appropriated for the program, may determine within its discretion:

(a) the types of services to be available through the program;

(b) the amount, scope and duration of the services available through the program;

(c) the categories of persons to be served through the program;

(d) the total number of persons who may receive services through the program;

(e) the total number of persons who may receive services through the program by category of eligibility, geographical area or specific case management team; and

(f) eligibility of individual persons for the program.

(3) There is no entitlement to eligibility for the program.

(1) "Adult residential care" means a residential habilitation option for consumers residing in an adult foster home, a residential hospice, or an assisted living facility.

(2) "Case management" means a service that provides the planning for, arranging for, implementation of, and monitoring of the delivery of services available through the program to a consumer.

(3) "Community supports" means services that are inclusive of personal assistant services (Attendant PAS and Socialization/Supervision PAS), homemaker, chore, transportation, and respite type services.

(4) "Community transitions services" means nonrecurring set-up expenses for individuals who are transitioning from an institutional or other provider-operated living arrangement to a living arrangement in a private residence where the person is directly responsible for his or her own living expenses.

(5) "Consultative clinical and therapeutic services" means services that assist unpaid and/or paid caregivers in carrying out individual service plans and are necessary to improve the individual's independence and inclusion in the community.

(6) "Consumer-directed goods and services" means services, supports, supplies, or goods not otherwise provided through this waiver or the Medicaid state plan.

(7) "Family training and support" means a service that provides training to families and others who work or play with a child with a disability.

(8) "Financial management services" means services provided by an individual called a financial manager who provides finance, employer, payroll, and related functions for the consumer or personal representative.

(9) "Habilitation" means the provision of intervention services designed for assisting a consumer to acquire, retain, and improve the self-help, socialization, and adaptive skills necessary to reside successfully at home and in the community.

(10) "Health and wellness" means services that assist consumers in acquiring, retaining, and improving self-help, socialization, and adaptive skills to reside successfully in the community.

(11) "Homemaker chore" means services provided for individuals who are unable to manage their own home or when the consumer, normally responsible for homemaking, is absent.

(12) "Independence advisor services" means services that provide an array of consumer-directed support activities to ensure the ability of consumers to direct their care successfully.

(13) "Nonmedical transportation" means the provision to a consumer of transportation through common carrier or private vehicle for access to social or other nonmedical activities.

(14) "Pain and symptom management" means a service that allows the provision of traditional and nontraditional methods of pain management.

(15) "Participant direction" means an option available to individuals who elect to direct their own care and that participants, or their representatives, have decision-making authority over certain services and take direct responsibility to manage their services with the assistance of a system of available support.

(16) "Personal assistant services" (PAS) is defined at 53-6-145, MCA and includes attendant PAS and socialization/supervision PAS.

(17) "Post-acute rehabilitation services" means the provision of therapeutic intervention to a consumer with a brain injury or other related disability in a residential or nonresidential setting.

(18) "Respite care" means the provision of supportive care to a consumer to relieve those unpaid persons normally caring for the consumer from that responsibility.

(19) "Senior companion" means services directed at providing companionship and assistance.

(20) "Serious occurrence" means a significant event which affects the health, welfare, and safety of an individual served in home and community-based services. The department has established a system of reporting and monitoring serious incidents that involve consumers served by the program in order to identify, manage, and mitigate overall risk to the individual.

(21) "Service plans" means a written plan of supports and interventions based on an assessment of the status and needs of a consumer.

(22) "Specialized child care for medically fragile children" means the provision of day care, respite care, and other direct and supportive care to a consumer under 18 years of age who is medically fragile and who, due to medical and other needs, cannot be served through traditional child care settings.

(23) "Specially trained attendant care" means an option under personal assistance that is the provision of supportive services to a consumer residing in their own residence.

(24) "Supported living" means the provision of supportive services to a recipient residing in an individual residence or in a group living situation. It is a comprehensive service designed to support a person with brain injury or other severe disability.

(1) The services available through the program are limited to those specified in this rule.

(2) The department may determine the particular services of the program to make available to a recipient based on, but not limited to, the following criteria:

(a) the recipient's need for a service generally and specifically;

(b) the availability of a specific service through the program and any ancillary service necessary to meet the recipient's needs;

(c) the availability otherwise of alternative public and private resources and services to meet the recipient's need for the service;

(d) the recipient's risk of significant harm or of death if not in receipt of the service;

(e) the likelihood of placement into a more restrictive setting if not in receipt of the service; or

(f) the financial costs for and other impacts on the program arising out of the delivery of the service to the person.

(3) A person enrolled in the program may be denied a particular service available through the program that the person desires to receive or is currently receiving.

(4) Bases for denying a service to a person include, but are not limited to:

(a) the person requires more supervision than the service can provide;

(b) the person's needs, inclusive of health, can no longer be effectively or appropriately met by the service;

(c) access to the service, even with reasonable accommodation, is precluded by the person's health or other circumstances;

(d) a necessary ancillary service is no longer available; and

(e) the financial costs for and other impacts on the program arising out of the delivery of the service to the person.

(5) The department may make program services for persons with intensive needs available to a recipient whom it determines, based on past medical history and current medical diagnosis, would otherwise require on a long-term basis the level of care of an inpatient hospital or a rehabilitation service setting.

(6) The following services, as defined in these rules, may be provided through the program:

(a) adult day health;

(b) adult residential care;

(c) case management services;

(d) community supports services;

(e) community transition services;

(f) consultative clinical and therapeutic services;

(g) consumer-directed goods and services;

(h) day habilitation;

(i) dietetic services;

(j) environmental accessibility adaptations;

(k) family training and support;

(l) financial management;

(m) habilitation;

(n) health and wellness;

(o) homemaker chore services;

(p) homemaker;

(q) independence advisor;

(r) nonmedical transportation;

(s) nursing;

(t) nutrition services;

(u) occupational therapy;

(v) pain and symptom management;

(w) personal assistance;

(x) personal emergency response systems;

(y) physical therapy;

(z) post-acute rehabilitation services;

(aa) respiratory therapy;

(bb) respite care;

(cc) senior companion services;

(dd) speech pathology and audiology;

(ee) specially trained attendants;

(ff) specialized child care for medically fragile children;

(gg) specialized medical equipment and supplies;

(hh) supported living; and

(ii) vehicle modifications.

(7) Monies available through the program may not be expended on the following:

(a) room and board;

(b) special education and related services as defined at 20 USC 1401(16) and (17); and

(c) vocational rehabilitation.

(8) The program is considered the payor of last resort. A service available through the program is not available to any extent that a service of another program is otherwise available to a recipient to meet the recipient's need for that service.

(1) Services of the program may only be provided by a provider that is enrolled with the department as a Medicaid provider or, in rare instances, through a provider with whom the department is contracting for home and community-based case management services.

(2) A facility providing services to a recipient must meet all licensing requirements including fire and safety standards as well as other service-specific requirements set forth by the department in this chapter.

(3) A provider of services must ensure that the services adhere to the requirements of 42 CFR 441.301(c)(4), which permits reimbursement with Medicaid monies only for services within settings that meet certain qualities set forth under the regulation. These qualities include that the setting:

(a)  is integrated in and facilitates full access of the individual to the greater community;

(b) ensures the individual receives services in the community to the same degree of access as individuals not receiving Medicaid Home and Community-Based Services;

(c) is selected by the individual from among setting options, including non-disability specific settings and an option for a private unit in a residential setting;

(d) ensures the individual's rights of privacy, dignity, and respect, and freedom from coercion and restraint;

(e) supports health and safety based upon the individual's needs, decisions, or desires;

(f) optimizes, but does not regiment, individual initiative, autonomy, and independence in making life choices, including, but not limited to daily activities, physical environment, and with whom to interact;

(g)  provides an opportunity to seek employment and work in competitive integrated settings; and

(h)  facilitates individual choice of services and supports, and who provides them.

(4) A provider of services must meet the requirements necessary for the receipt of reimbursement with Medicaid monies.

(5) Immediate family members and legally responsible individuals may be paid for the provision of certain services under the following conditions:

(a) the service is identified in the federally approved waiver;

(b) the service is specified in the individual's service plan;

(c) the family member or legally responsible individual meets the provider qualifications and training standards for that service as specified in the federally approved waiver;

(d) the services do not supplant tasks that are customarily performed by legally responsible individuals; and

(e) the family member or legally responsible individual may not provide more than 40 hours of service in a seven-day period.

(6) Immediate family members include:

(a) a spouse; and

(b) a natural or adoptive parent of a minor child.

(7) A provider may also provide support to other family members in the recipient's household during hours of program reimbursed service if approved by the case management team or FM.

(8) The department adopts and incorporates by reference 42 CFR 441.301(c)(4), as amended January 16, 2014.  A copy of this regulation may be obtained at https://www.ecfr.gov/ or by contacting the Department of Public Health and Human Services, Senior & Long-Term Care Division, 1100 N. Last Chance Gulch, P.O. Box 4210, Helena, MT 59604-4210.

(1) A person in order to be considered by the department for enrollment in the program, must be determined by the department to qualify for enrollment in accordance with the criteria in this rule.

(2) A person is qualified to be considered for enrollment in the program if the person:

(a) meets one of the following criteria:

(i) is 65 years of age or older; or

(ii) is certified as disabled by the social security administration but does not have a primary diagnosis of mental retardation or serious mental illness.

(b) is Medicaid eligible;

(c) requires the level of care of a nursing facility as determined in accordance with the preadmission screening provided for in ARM 37.40.202, 37.40.205, 37.40.206, and 37.40.207; and

(d) has needs that can be met through the program.

(3) The department considers for an available opening for services those persons who, as determined by the department:

(a) are actively seeking services;

(b) are in need of the services available;

(c) are likely to benefit from the available services; and

(d) have a projected total cost of service plan that is within the limits specified at ARM 37.40.1421.

(4) The department offers an available opening for services to the person, as determined by the department, who is most in need of the available services and most likely to benefit from the available services.

(5) Factors to be considered in the determinations of whether a person is in need of the available services and likely to benefit from those services and as to which person is most likely to benefit from the available services include, but are not limited to, the following:

(a) medical condition;

(b) degree of independent mobility;

(c) ability to be alone for extended periods of time;

(d) presence of problems with judgment;

(e) presence of a cognitive impairment;

(f) prior enrollment in the program;

(g) current institutionalization or risk of institutionalization;

(h) risk of physical or mental deterioration or death;

(i) willingness to live alone;

(j) adequacy of housing;

(k) need for adaptive aids or environmental modifications;

(l) need for 24-hour supervision;

(m) need of person's caregiver for relief;

(n) need, in order to receive services, of a waiver of the Medicaid deeming financial eligibility requirement;

(o) appropriateness for the person, given the person's current needs and risks, of services available through the program;

(p) status of current services being purchased otherwise for the person; and

(q) status of support from family, friends, and community.

(6) A person enrolled in the program may be removed from the program by the department. Bases for removal from the program, include, but are not limited to, the following:

(a) a determination by the case management team or program managers that the services, as provided for in the service plan, are no longer appropriate or effective in relation to the person's needs;

(b) the failure of the person to use the services as provided for in the service plan;

(c) the behaviors of the person place the person, caregivers or others at serious risk of harm or substantially impede the delivery of services as provided for in the service plan;

(d) the health of the person is deteriorating or in some other manner placing the person at serious risk of harm;

(e) a determination by the case management team or program managers that the service providers necessary to the delivery of services as provided for in the service plan are unavailable; and

(f) a determination that the total cost of service plan is not within the limits specified at ARM 37.40.1421.

(1) Services available through the program are reimbursed as specified in this rule.

(2) The following services are reimbursed as provided in (3):

(a) adult day health;

(b) adult residential care;

(c) case management services;

(d) community supports services;

(e) community transition services;

(f) consultative clinical and therapeutic services;

(g) consumer-directed goods and services;

(h) dietetic services;

(i) environmental accessibility adaptations;

(j) family training and support;

(k) financial management;

(l) habilitation;

(m) health and wellness;

(n) homemaker chore services;

(o) homemaker;

(p) independence advisor;

(q) nonmedical transportation;

(r) nursing;

(s) nutrition services;

(t) pain and symptom management;

(u) personal emergency response systems;

(v) post-acute rehabilitation services;

(w) respite care;

(x) senior companion services;

(y) specialized child care for medically fragile children;

(z) supported living; and

(aa) vehicle modifications.

(3) The services specified in (2) are, except as otherwise provided in (4), reimbursed at the lower of the following:

(a) the provider's usual and customary charge for the service; or

(b) the rate negotiated with the provider by the case management team up to the department's maximum allowable fee.

(4) The services specified in (2) are reimbursed as provided in (3) except that reimbursement for components of those services that are incorporated by specific cross reference from the general Medicaid program may only be reimbursed in accordance with the reimbursement methodology applicable to the component service as a service of the general Medicaid program.

(5) The following services are reimbursed in accordance with the referenced provisions governing reimbursement of those services through the general Medicaid program:

(a) personal assistance as provided at ARM 37.40.1105 and 37.40.1302;

(b) outpatient occupational therapy as provided at ARM 37.86.610;

(c) outpatient physical therapy as provided at ARM 37.86.610;

(d) speech therapy as provided at ARM 37.86.610; and

(e) audiology as provided at ARM 37.86.705.

(6) Case management services are reimbursed, as established by contractual terms, on either a per diem or hourly rate.

(7) Respite care services provided by a nursing facility are reimbursed at the rate established for the facility in accordance with ARM Title 37, chapter 40, subchapter 3.

(8) Specialized medical equipment and supplies are reimbursed as follows:

(a) equipment and supplies which are reimbursable under ARM 37.86.1801, 37.86.1802, 37.86.1806, and 37.86.1807 shall be reimbursed as provided in ARM 37.86.1807;

(b) equipment and supplies which are not reimbursable under ARM 37.86.1801, 37.86.1802, 37.86.1806, and 37.86.1807 shall be reimbursed at the lower of the following:

(i) the provider's usual and customary charge for the item; or

(ii) the negotiated rate up to the department's maximum allowable fee.

(9) Reimbursement is not available for the provision of a service to a person that may be reimbursed through another program.

(10) No copayment is imposed on services provided through the program but recipients are responsible for copayment on other services reimbursed with Medicaid monies.

(11) Reimbursement is not available for the provision of services to other members of a recipient's household or family unless specifically provided for in these rules.

(12) Payment for the following services may be made to legally responsible individuals, if all program criteria in ARM 37.40.1407 are met:

(a) personal assistance;

(b) homemaker;

(c) specially trained attendant;

(d) specialized child care for medically fragile children;

(e) private duty nursing;

(f) transportation;

(g) respite;

(h) community supports;

(i) consumer-directed goods and services;

(j) homemaker chore;

(k) pain and symptom management;

(l) vehicle modifications; and

(m) environmental accessibility adaptations.

(13) When the Legislature funds a direct care wage initiative, waiver providers targeted by the initiative must report to the department, for a determined time period, actual hourly wage and benefit rates paid for all direct care workers or the lump sum payment amounts for all direct care workers that will receive the benefit of the increased funds. The reported data shall be used by the department for the purpose of tracking distribution of direct care wage funds to designated workers.

(a) The department will pay targeted waiver providers that submit an approved request to the department a lump sum payment in addition to the Medicaid reimbursement rate to be used only for wage and benefit increases or lump sum payments for direct care workers.

(b) To receive the direct care workers' lump sum payment, a targeted provider shall submit for approval a request form to the department stating how the direct care workers' lump sum payment will be spent to comply with all department requirements. The provider shall submit all of the information required on the form in order to continue to receive subsequent lump sum payment amounts.

(c) If these funds will be distributed in the form of a wage increase to direct care workers the form for wage and benefit increases will request information including, but not limited to:

(i) the number of category of each direct care worker that will receive the benefit of the increased funds;

(ii) the actual per hour rate of pay before benefits and before the direct care wage increase has been implemented for each worker that will receive the benefit of the increased funds;

(iii) the projected per hour rate of pay with benefits after the direct wage increase has been implemented;

(iv) the number of staff receiving a wage or benefit increase by category of worker, effective date of implementation of the increase in wage and benefit; and

(v) the number of projected hours to be worked in the budget period.

(d) If these funds will be used for the purpose of providing lump sum payments (i.e., bonus, stipend, or other payment types) to direct care workers the form will request information including, but not limited to:

(i) the number of category of each direct care worker that will receive the benefit of the increased funds;

(ii) the type and actual amount of lump sum payment to be provided for each worker that will receive the benefit of the lump sum funding;

(iii) the breakdown of the lump sum payment by the amount that represents benefits and the direct payment to workers by category of worker; and

(iv) the effective date of implementation of the lump sum benefit.

(e) A provider that does not submit a qualifying request for use of the funds distributed under (2), or does not include all of the information requested by the department, within the time established by the department, or a provider that does not wish to participate in this additional funding amount shall not be entitled to their share of the funds available for wage and benefit increases or lump sum payments for direct care workers.

(14) A provider that receives funds under this rule must maintain appropriate records documenting the expenditure of the funds. This documentation must be maintained and made available to authorize governmental entities and their agents to the same extent as other required records and documentation under applicable Medicaid record requirements, including but not limited to the provisions of ARM 37.40.345, 37.40.346, and 37.85.414.

(1) A service plan is a written plan of supports and interventions based on an assessment of the status and needs of a consumer. The service plan describes the needs of the consumer and the services available through the program and otherwise that are to be made available to the consumer in order to maintain the consumer at home and in the community.

(2) The services that a consumer may receive through the program and the amount, scope, and duration of those services must be specifically authorized in writing through an individual service plan.

(3) The service plan is initially developed upon the person's entry into the program. The plan must be reviewed and, if necessary, revised at intervals of at least six months beginning with the date of the initial service plan.

(4) The service plan is developed in conjunction with the consumer or the consumer's legal representative, with treating and other appropriate health care professionals and others who have knowledge of the consumer's needs.

(5) Each service plan must include the following:

(a) diagnosis, symptoms, complaints, and complications indicating the need for services;

(b) a description of the consumer's functional level;

(c) consumer's goals and objectives;

(d) medication;

(e) treatments;

(f) restorative and rehabilitative services;

(g) activities;

(h) therapies;

(i) social services;

(j) diet;

(k) other special procedures recommended for the health and safety of the consumer to meet the objectives of the service plan;

(l) the specific services to be provided, the frequency of the services, and the type of provider to provide them;

(m) the projected annualized costs of each service; and

(n) names and signatures of all persons who have participated in developing the service plan (including the consumer, unless the consumer's inability to participate is documented) which will verify participation, agreement with the service plan, and acknowledgement of the confidential nature of the information presented and discussed.

(6) The consumer must be provided a copy of the service plan to the consumer.

(7) Service plan approval is based on:

(a) completeness of plan;

(b) consistency of plan with screening criteria; and

(c) feasibility of service provision, including cost-effectiveness of plan as provided for in ARM 37.40.1421.

(1) In order to maintain the program cost within the appropriated monies, the cost of service plans may be limited by the department collectively and individually.

(2) The total annual cost of services for each recipient, except as provided in (3), may not exceed a maximum amount set by the department based on the number of recipients and the amount of monies available to the program as authorized in appropriation by the Legislature.

(3) The total cost of services provided under a service plan for an individual may exceed the maximum amount set by the department if authorized by the department based on the department's determination that one or more of the following circumstances is applicable:

(a) the excess service need is short term and only a one time purchase is necessary;

(b) the excess service need is intensive services of 90 days or less which are necessary to:

(i) resolve a crisis situation which threatens the health and safety of the recipient;

(ii) stabilize the recipient following hospitalization or acute medical episode; or

(iii) prevent institutionalization during the absence of the normal caregiver;

(c) the excess service need is adult residential services; or

(d) the recipient has long term needs that result in the maximum amount being exceeded in minor amounts at various times.

(4) The cost of services to be provided under a service plan is determined prior to implementation of the proposed plan of care and may be revised as necessary after implementation.

(5) A cost determination for the services provided under a service plan may be made at any time that there is a significant revision in the service plan.

(6) The provider reimbursement rate for a covered service for home and community-based services for elderly and physically disabled persons, except as otherwise provided in ARM 37.40.1415, is stated in the department's fee schedule adopted and effective at 37.85.105. These fees are calculated based on:

(a) the biennial Legislative appropriation; and

(b) the estimated demand for covered services during the biennium.

(1) Community transition services is defined in ARM 37.40.1402.

(2) Allowable expenses are those necessary to enable a person to establish a basic household and may include:

(a) usual and customary security deposits that are required to obtain a lease on an apartment or home;

(b) essential household furnishings required, including furniture, window coverings, food preparation items, and bed/bath linens;

(c) moving expenses;

(d) usual and customary setup fees or deposits for utility or service access, including telephone, electricity, heating, and water;

(e) activities to assess need, arrange for and procure resources.

(3) Community transition services do not include monthly rental or mortgage expenses, food, regular utility charges, household appliances, or items that are intended for purely diversion/recreational purposes.

(4) Refunded security deposits must be paid to the department.

(1) Financial management (FM) service is defined in ARM 37.40.1402.

(2) The financial manager acts as the common law employer (employer of record) and the consumer acts as the managing employer. Since the financial manager is the employer, this entity is responsible for all employee-related expenses and liability risks that may be incurred if a worker's compensation or unemployment claim is filed.

(3) On behalf of the consumer/personal representative the financial manager will:

(a) accept referral from the consumer/personal representative to process the employment packet;

(b) prepare and distribute an application package of information that is clear and easy for the potential employee to understand and follow;

(c) provide needed counseling and technical assistance regarding the role of the FM to consumer, their personal representatives, and others;

(d) process employment application package and documentation for prospective individual to be employed (as agency employee);

(e) complete criminal background checks on prospective consumer-referred worker and maintain results on file, if requested by the consumer;

(f) establish and maintain record for each individual employed and process all employment records;

(g) withhold, file, and deposit Federal Insurance Contributions Act (FICA), Federal Unemployment Tax Act (FUTA), and State Unemployment Tax Act (SUTA) taxes in accordance with Federal Internal Revenue Service (IRS), Federal Department of Labor (DOL), and state rules (if applicable);

(h) process all judgments, garnishments, tax levies or any related holds on a consumer's worker as may be required by local, state, or federal laws;

(i) generate and distribute IRS W-2s and 1099s, wage and tax statements and related documentation annually to all member-employed providers who meet the statutory threshold earnings, amounts during the tax year by January 31st;

(j) withhold, file, and deposit federal and state income taxes (if applicable) in accordance with federal IRS and state Department of Revenue Services rules and regulation;

(k) administer benefits for member-employed providers (if applicable);

(l) generate payroll checks in a timely and accurate manner, as approved in the consumer's self-direct spending plan, and in compliance with all federal and state regulations;

(m) develop a method of payment of invoices and monitoring expenditures against the self-direct spending plan for each consumer;

(n) receive, review, and process all invoices from individuals, vendors, or agencies providing consumer-directed goods or services as approved in the consumer's self-direct spending plan authorized by the division;

(o) process and pay non-labor-related invoices;

(p) generate utilization reports along with payroll reflecting accurate balances for a consumer/personal representative, independence advisor, the regional program officer (RPO), and the division;

(q) establish and maintain all consumer records with confidentiality, accuracy, and appropriate safeguards;

(r) respond to calls for consumer or their personal representatives and employees regarding issues such as withholdings and net payments, lost or late checks, reports, and other documentation;

(s) file claims through the Medicaid Management Information System (MMIS) for consumer-directed goods and services and prepare checks for individually hired workers; and

(t) generate service management and statistical information and reports.

(4) This is a mandatory service for consumer-direction.

(5) The fiscal manager provider must be certified by the department to provide the service.

(1) Independence advisor (IA) is defined in ARM 37.40.1402.

(2) The IA may help consumers or their personal representatives:

(a) learn how to successfully direct services;

(b) develop a service plan;

(c) access waiver services, Medicaid State Plan services, and other needed medical, social, or educational services regardless of funding source;

(d) develop, implement, and monitor a monthly spending plan;

(e) identify risks and develop a plan to manage those risks;

(f) develop an individualized emergency backup plan;

(g) negotiate payments for necessary and allowable goods and services;

(h) work with the financial manager (FM) to track expenditures;

(i) monitor the provision of the services to ensure the consumer's health and welfare; and

(j) coordinate with the FM to ensure that consumers or personal representatives budget appropriately to meet their needs as defined in the service plan.

(3) This is a mandatory service for consumer-direction.

(4) An IA must be certified by the department to provide the service.

(1) Consumer directed goods and services is defined in ARM 37.40.1402.

(2) These items could include the purchase of appliances and vans, with or without modifications.

(3) These items or services must address an identified need in the consumer's service plan and must meet any or all of the following requirements:

(a) decrease the need for other Medicaid services;

(b) promote inclusion in the community;

(c) promote the independence of the consumer;

(d) fulfill a medical, social, or functional need based on unique cultural approaches; or

(e) increase the person's safety in the community or home environment.

(4) Goods and services purchased must meet the following criteria:

(a) meet the consumer's identified needs and outcomes as outlined in their service plan;

(b) collectively must provide an alternative to institutional placement;

(c) be a cost-effective means of addressing an identified need in the service plan; and

(d) be of sole benefit to the consumer.

(1) The department provides written notice to an applicant for a consumer of services when a determination is made by the department concerning:

(a) financial eligibility;

(b) level of care;

(c) feasibility, including cost-effectiveness of services to the consumer; and

(d) termination of consumer's eligibility for the program.

(2) The department provides a consumer of services with notice ten working days before termination of services due to a determination of ineligibility.

(3) A person aggrieved by any adverse final determinations as listed in (1)(a) through (1)(d) or any adverse determinations regarding services in the service plan may request a fair hearing as provided in ARM 37.5.304, 37.5.307, 37.5.313, 37.5.316, 37.5.318, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(4) Fair hearings will be conducted as provided for in ARM

37.5.304, 37.5.307, 37.5.313, 37.5.316, 37.5.318, 37.5.322, 37.5.325, 37.5.328, 37.5.331, 37.5.334, and 37.5.337.

(1) Family training and support is defined in ARM 37.40.1402. Services include:

(a) general orientation about the child's disability; and

(b) training specific to the needs of the child and his or her family on how to best meet the child's needs.

(2) Providers of this service may:

(a) serve as consultants to families in terms of developmental stages and teaching activities that families can engage in with their child that help in the developmental process;

(b) collaborate with case managers and families to develop strategies for environmental modifications or adaptations that would be beneficial to the child;

(c) periodically assess the child, including conducting developmental assessments, in order to discover unmet needs, determine progress or lack of progress, and identify areas of strength that can be emphasized;

(d) provide emotional support to families, including active listening, problem solving;

(e) recommend resources within the community that could offer support;

(f) advocate for the family; and

(g) assist the family with transition and referral to special education.

(3) The provider of this service must be an employee of a Child and Family Services provider under contract with the Developmental Services Division.

(1) Pain and symptom management is defined in ARM 37.40.1402.

(2) Treatments include but are not limited to:

(a) acupuncture;

(b) reflexology;

(c) massage therapy;

(d) craniosacral therapy;

(e) hyperbaric oxygen therapy;

(f) mind-body therapies such as hypnosis and biofeedback;

(g) pain mitigation counseling/coaching;

(h) chiropractic therapy; and

(i) nursing services by a nurse specializing the pain and symptom management.

(1) Case management is the planning for, arranging for, implementation of and monitoring of the delivery of services available through the program to a consumer.

(2) Case management services includes:

(a) developing a service plan for a consumer;

(b) monitoring and managing a service plan for a consumer;

(c) establishing relationships with service providers and community resources;

(d) maximizing a consumer's efficient use of services and community resources such as family members, church members and friends;

(e) facilitating interaction among people working with a consumer;

(f) prior authorizing the provision of all services; and

(g) managing expenditures.

(3) The case management team consists of a registered nurse and a social worker.

(4) The case management team must:

(a) function as directed by the department;

(b) assure that services provided to consumers are of appropriate quality and cost effective;

(c) provide case management services to no more than the number of persons specified by the department;

(d) manage expenditures within the allocated monies; and

(e) meet the department's reporting requirements.

(1) Homemaker chore services is defined in ARM 37.40.1402. Services include:

(a) extensive cleaning beyond the scope of general household cleaning; and

(b) heavy cleaning such as:

(i) washing windows and walls;

(ii) yard care;

(iii) walkway maintenance;

(iv) minor home repairs; and

(v) firewood cutting, splitting, and stacking.

(1) Adult residential care is a residential habilitation option for consumers residing in an adult foster home, a residential hospice, or an assisted living facility.

(2) Adult residential care is a bundled service that may include:

(a) personal care services;

(b) homemaking;

(c) social activities;

(d) recreational activities;

(e) medication oversight; and

(f) assistance in arranging transportation for medical care.

(3) Adult residential care must provide for 24-hour onsite response staff to meet scheduled or unpredictable needs of consumers and to provide supervision of consumers for safety and security.

(4) A consumer of adult residential care may not receive the following services through the program:

(a) personal assistance as specified at ARM 37.40.1447;

(b) homemaking services as specified at ARM 37.40.1450;

(c) environmental accessibility adaptation services as specified at ARM 37.40.1485;

(d) respite care as specified at ARM 37.40.1451; and

(e) nutrition as specified in ARM 37.40.1476.

(5)  Adult residential care facilities must be licensed by the state of Montana.

(6)  A provider of adult residential care must report serious occurrences to the department in accordance with serious occurrence policy requirements.

(7)  An assisted living facility providing adult residential services must have the following features:

(a)  Provide a home-like environment in either:

(i)  an apartment style living unit with a bedroom,  easy access to a bath, and cooking areas; or

(ii)  a home style living unit with a bedroom, easy access to a bath, and reasonable access to food and beverages, unless against medical advice.

(b)  Small dining areas or ability to eat with a private party.

(c)  Residents must have control of lockable access to living unit and egress from the facility (unless Category C).  The facility may have a master key for emergencies.

(d)  Residents must have the ability to furnish and decorate living unit.

(e)  Access to private areas for telephone and visitors.

(f)  Provide reasonable assistance coordinating and arranging for the resident's choice of community pursuits outside the residence.  This is in addition to the regular outings provided by the facility.

(g)  Residents must have reasonable access to unscheduled activities and resources in the community.

(h)  Policies and practices allow resident risk, through family and resident education, risk assessment, and negotiated risk agreement.

(i)  Aging in place must be a common practice of the assisted living facility, within scope of license.

(j)  The facility should make concerted efforts to allow consumers to remain in the facility when changing from private pay to waiver funding.

(k)  Education and documentation of the facility policies around room changes needs to have been given and explained to the consumer prior to admission and reviewed as financial status changes.

(8)  Providing waiver funding for adult residential services in assisted living facilities that do not meet the above criteria is not allowed.

(9)  Effective September 1, 2011, Medicaid funding will no longer be available for newly admitted home and community services consumers in an assisted living facility, unless the facility meets the above criteria.

(1) Community supports services is defined in ARM 37.40.1402. These services will be offered as a group only under the consumer-directed option. The personal assistance services normally provided under the Medicaid State Plan will be provided as an integral part of this service. Individuals performing the duties are recruited, selected, hired, and managed by the consumer.

(2) Services include assisting the consumer with:

(a) basic living skills such as eating, drinking, toileting, personal hygiene, and dressing;

(b) transferring and other activities of daily living;

(c) improving and maintaining mobility and physical functioning;

(d) maintaining health and personal safety;

(e) carrying out household chores and preparation with meals and snacks;

(f) accessing and using transportation (with providers possessing a valid Montana driver's license);

(g) participating in community experiences and activities;

(h) relieving unpaid caregivers at those times when such relief is in the best interest of the consumer or caregiver; and

(i) receiving day care for medically fragile children who, because of their disability, cannot be served in traditional child care settings.

This rule has been repealed.

(1) Supported living is the provision of supportive services to a consumer residing in an individual residence or in a group living situation. It is a comprehensive service designed to support a person with brain injury or other severe disability.

(2) Supported living services may include:

(a) independent living evaluation;

(b) service coordination;

(c) 24-hour supervision of the person;

(d) health and safety supervision;

(e) homemaking services as specified at ARM 37.40.1450;

(f) day habilitation as specified at ARM 37.40.1448;

(g) supported employment as specified at ARM 37.40.1448;

(h) prevocational training as specified at ARM 37.40.1448;

(i) nonmedical transportation as specified at ARM 37.40.1488; and

(j) specially trained attendants as specified at ARM 37.40.1449.

(3) An entity providing supported living services must have two years' experience in providing services to persons with physical disabilities.

(4) This service must be prior authorized by the department.

(1) Senior companion services is defined in ARM 37.40.1402.

(2) The service includes:

(a) respite;

(b) socialization;

(c) supervision; and

(d) homemaking.

(3) Providers of this service are Senior Companion Programs that are a part of Senior Corps.

(1) Participant direction is defined in ARM 37.40.1402.

(2) Services may be directed by:

(a) an adult who has the capacity to self-direct;

(b) a legal representative of the member, including a parent, spouse, or legal guardian; or

(c) a nonlegal representative freely chosen by the member or his/her legal representative.

(3) The person directing the services must:

(a) be 18 years of age or older;

(b) successfully complete required training for self-direction; and

(c) if acting in the capacity of a representative demonstrate understanding of the consumer's needs and preferences.

(1) Health and wellness services is defined in ARM 37.40.1402.

(2) The service includes adaptive health, wellness, and therapeutic recreational services such as:

(a) hippotherapy;

(b) hydrotherapy;

(c) living well with a disability; and

(d) access to fitness and exercise facilities.

(1) Post-acute rehabilitation is the provision of therapeutic intervention to a consumer with brain injury or other related disability in a residential or nonresidential setting. Post-acute rehabilitation assists in reducing the dependency of the consumer and in facilitating the integration of the consumer into the community.

(2) Post-acute rehabilitation may include:

(a) consultative clinical and therapeutic services as specified at ARM 37.40.1465;

(b) chemical dependency counseling as specified at ARM 37.40.1466;

(c) therapeutic recreational activities;

(d) nutrition services as specified in ARM 37.40.1476;

(e) nonmedical transportation as specified at ARM 37.40.1488; and

(f) counseling.

(3) An entity providing post-acute rehabilitation services must be under the direction of an interdisciplinary team consisting of a licensed psychologist, a licensed neuropsychologist, a board-certified physiatrist, therapists, and other appropriate support staff.

(4) An entity providing post-acute rehabilitation services must be accredited or in the process of becoming accredited by the commission on accreditation of rehabilitation facilities (CARF) as a community reentry program for persons with brain injury.

(2) Personal assistance services includes the provision of the following services:

(a) personal care services as specified at ARM 37.40.1101(1) through (5) and 37.40.1301, 37.40.1302, 37.40.1305, 37.40.1306, 37.40.1307 and 37.40.1308;

(b) homemaking services as specified at ARM 37.40.1450;

(c) supervision for health and safety reasons; and

(d) nonmedical transportation as specified at ARM 37.40.1488.

(3) Personal assistance services do not include any skilled services that require professional medical training except as allowed in ARM 37.40.1301, 37.40.1302, 37.40.1305, 37.40.1306, 37.40.1307 and 37.40.1308.

(4) The requirements for the delivery of personal care services specified at ARM 37.40.1101, 37.40.1102, 37.40.1105, 37.40.1106, 37.40.1301, 37.40.1302, 37.40.1305, 37.40.1306, 37.40.1307, 37.40.1308 and 37.40.1315 govern the provision of personal assistance services.

(1) Habilitation is the provision of intervention services designed for assisting a consumer to acquire, retain, and improve the self-help, socialization, and adaptive skills necessary to reside successfully at home and in the community.

(2) Habilitation services may include:

(a) residential habilitation;

(b) day habilitation;

(c) prevocational services; and

(d) supported employment.

(3) Residential habilitation is habilitation provided in a licensed group home for persons with physical disabilities or a specialized licensed adult residential care facility.

(4) Day habilitation is habilitation provided in a day service setting.

(5) Prevocational services are habilitative activities that foster employability for a consumer who is not expected to join the general work force or participate in a transitional sheltered workshop within a year by preparing the consumer for paid or unpaid work. Prevocational services include teaching compliance, attendance, task completion, problem solving and safety.

(6) Supported employment is intensive ongoing support to assist a consumer who is unlikely to obtain competitive employment in performing work activities in a variety of settings, particularly work sites where nondisabled persons are employed. Supported employment service includes supervision, training, and other activities needed to sustain paid work by a consumer.

(7) An entity inclusive of its staff, providing habilitation services must be qualified generally to provide the services and specifically to meet each consumer's defined habilitation needs.

(1) Specially trained attendant care is an option under personal assistance that provides supportive services to a consumer residing in their own residence.

(2) Specially trained attendant care services may include:

(a) personal assistance services directed at fostering the consumer's ability to achieve independence in instrumental activities of daily living such as homemaking, personal hygiene, money management, transportation, housing, and the use of community resources;

(b) services that assist consumers in acquiring, retaining, and improving self-help, socialization, and adaptive skills to reside successfully in the community;

(c) personal assistance services as specified at ARM 37.40.1447;

(d) personal care services as specified at ARM 37.40.1101(1) through (5), 37.40.1301, 37.40.1302, 37.40.1305, 37.40.1306, 37.40.1307, and 37.40.1308; and

(e) continuous and extensive nursing services.

(3) A person providing specially trained attendant care must be an employee of a Medicaid enrolled personal assistance provider, trained in accordance with the department's training requirements by the provider and others to deliver the services that meet the specific needs of the consumer.

(1) Homemaking is the provision of general household activities or chore services to a recipient when the recipient is unable to manage the recipient's home or care for self or others in the home, or when another who is regularly responsible for these responsibilities is absent.

(2) Homemaking may include:

(a) household management services consisting of assistance with those activities necessary for maintaining and operating a home and may include assisting the recipient in finding and relocating into other housing;

(b) social restorative services consisting of assistance which further a recipient's involvement with activities and other persons; and

(c) teaching services consisting of activities which improve a recipient's or family's skills in household management and social functioning.

(3) Homemaking services do not include the provision of personal care as specified at ARM 37.40.1101 and 37.40.1302.

(4) A person providing homemaking services must be:

(a) physically and mentally able to perform the duties required; and

(b) literate and able to follow written orders.

(1) Respite care is the provision of supportive care to a consumer so as to relieve those unpaid persons normally caring for the consumer from that responsibility.

(2) Respite care services may be provided only on a short term basis, such as part of a day, weekends, or vacation periods.

(3) Respite care services may be provided in a consumer's place of residence or through placement in another private residence or other related community setting, a hospital, a nursing facility or a therapeutic camp.

(4) A person providing respite care services must be:

(a) physically and mentally qualified to provide this service to the consumer; and

(b) aware of emergency assistance systems.

(5) A person who provides respite care services to a consumer may be required to have the following when the consumer's needs so warrant:

(a) knowledge of the physical and mental conditions of the consumer;

(b) knowledge of common medications and related conditions of the consumer; and

(c) capability to administer basic first aid.

(1) Specialized child care for medically fragile children is the provision of day care, respite care, and other direct and supportive care to a consumer under 18 years of age who is medically fragile and who, due to medical and other needs, cannot be served through traditional child care settings.

(2) A person providing specialized child care for medically fragile children services must be:

(a) physically and mentally able to perform the duties;

(b) aware of emergency assistance systems; and

(c) literate and able to follow written orders.

(3) A person providing specialized child care for medically fragile children services may be required, if appropriate to the circumstances of the consumer, to have:

(a) knowledge of the physical and mental conditions of the consumer;

(b) knowledge of the consumer's commonly needed medications and the conditions for which they are administered; and

(c) the capability to administer basic first aid.

(a) occupational therapy services as specified at ARM 37.86.601; and

(b) services for habilitative or maintenance purposes.

(2) The requirements for the delivery of outpatient occupational therapy services provided at ARM 37.86.601, 37.86.605, 37.86.606 and 37.86.610, govern the provision of outpatient occupational therapy services.

(3) No visit limitation exists for maintenance therapy.

(a) physical therapy services as specified at ARM 37.86.601; and

(b) services for habilitative or maintenance purposes.

(2) The requirements for the delivery of outpatient physical therapy services at ARM 37.86.601, 37.86.605, 37.86.606 and 37.86.610, govern the provision of outpatient physical therapy services.

(3) No visit limitation exists for maintenance therapy.

(a) speech therapy services as defined at ARM 37.86.601;

(b) audiology services as defined at ARM 37.86.702;

(c) services for habilitative or maintenance purposes;

(d) screening and evaluation with respect to speech and hearing functions;

(e) comprehensive audiological assessment, as indicated by screening results, that include tests of puretone air and bone conduction, speech audiometry, and other procedures, as necessary, and the assessment of the use of visual cues;

(f) assessments of the use of amplification;

(g) provision for procurement, maintenance and replacement of hearing aids, as specified by a qualified audiologist;

(h) comprehensive speech and language evaluation, as indicated by screening results, including appraisal of articulation, voice, rhythm and language;

(i) participation in the continuing interdisciplinary evaluation for purposes of beginning, monitoring and following up on individualized habilitation programs; and

(j) treatment services as an extension of the evaluation process, that include:

(i) direct counseling with a recipient;

(ii) consultation with appropriate persons involved with a recipient for speech improvement and speech education activities; and

(iii) work with an appropriate recipient to develop specialized programs for developing communication skills in comprehension, including speech, reading, auditory training, hearing aid utilization and skills in expression, including improvement in articulation, voice, rhythm and language.

(2) The requirements for the delivery of speech therapy services at ARM 37.86.605 and 37.86.606 and for audiology services at ARM 37.86.701 and 37.86.702 govern the provision of speech pathology and audiology services.

(3) No visit limitation exists for maintenance therapy.

(2) A certified respiratory therapy technician, as defined by the national board for respiratory care, may assist under the direct supervision of a registered respiratory therapist or physician who is responsible for and participates in the recipient's treatment program.

This rule has been repealed.

(1) These are services that assist unpaid and/or paid caregivers in carrying out individual service plans and are necessary to improve the individual's independence and inclusion in the community.

(2) Consultation activities are provided by professionals in psychiatry, psychology, neuro-psychology, physiatry, nursing, nutrition, behavior management, or occupational/speech/physical/recreational/therapy.

(3) The service may include:

(a) assessment;

(b) development of a home/community treatment plan;

(c) monitoring plan; and

(d) one-on-one consultation and support for paid and nonpaid caregivers.

(4) An entity, described in (2), inclusive of its staff providing consultative clinical and therapeutic services must be qualified generally to provide the services and specifically to meet each consumer's defined needs.

This rule has been repealed.

This rule has been repealed.

(2) Dietetic services may include evaluation and monitoring of nutritional status, nutrition counseling, dietetic therapy, dietetic education and dietetic research necessary for the management of a recipient's nutritional needs.

(3) Dietetic services are limited to recipients whose disease or medical condition is caused by or complicated by diet or nutritional status.

(1) Nutrition services are meals, congregate meals and home delivered meals as specified at ARM 37.41.302 including the meals on wheels program.

(2) The requirements for the delivery of nutrition services as specified at ARM 37.41.306 through 37.41.315 govern the provision of nutrition services.

(3) A full nutritional regimen of three meals a day may not be provided through this service.

(1) Nursing is the provision of individual and continuous nursing care.

(2) Environmental accessibility adaptation services may include:

(a) modifications to a personal vehicle that allow the recipient to be more independent;

(b) the installation of specialized electrical and plumbing systems to accommodate necessary medical equipment and supplies;

(c) consultation regarding the appropriateness of an adaptation; and

(d) facilitation of the ability of a caregiver or service provider to maintain a recipient at home.

(3) An environmental accessibility adaptation must:

(a) be functionally necessary and relate specifically to the recipient's disability;

(b) provide for the recipient's access to the home environment and increased independence and safety in the home;

(c) be reasonably expected to promote the recipient's functional ability or the ability of the caregiver to maintain the recipient at home;

(d) be the most cost effective adaptation among the adaptations that are available to meet the recipient's needs; and

(e) meet the 1980 specifications set by the American national standards institute.

(4) Environmental accessibility adaptation services do not include:

(a) general housing maintenance, including but not limited to plumbing, heating systems, or appliance repair; or

(b) measures to facilitate leisure time activities.

(5) The department may require review and approval by a consultant for certain types of environmental accessibility adaptations.

(6) A recipient may only receive any one environmental accessibility adaptation once unless the department specifically authorizes the repurchase of an adaptation.

(2) A personal emergency response system must be connected to a local emergency response unit with the capacity to activate emergency medical personnel.

(3) The provision of a personal emergency response system as a service does not include the purchase, installation or routine monthly charges of a telephone.

(2) The provision of medical equipment and supplies services may include:

(a) the provision of consultation regarding the appropriateness of the equipment or supplies; and

(b) the provision of supplies and care necessary to maintain a service animal.

(3) Specialized medical equipment and supplies must:

(a) be functionally necessary and relate specifically to the recipient's disability;

(b) substantively meet the recipient's needs for accessibility, independence, health, or safety;

(c) be likely to improve the recipient's functional ability or the ability of a caregiver or service provider to maintain the recipient in the recipient's home; and

(d) be the most cost effective item that can meet the needs of the recipient.

(4) Any particular item of medical equipment or supplies, except for an item or supply necessary to maintain a service animal, is limited to a one time purchase unless otherwise authorized by the department in writing.

(5) Specialized medical equipment and supplies services do not include:

(a) items used for leisure and recreational purposes only;

(b) items of clothing;

(c) basic household furniture; or

(d) educational items including computers, software, and books unless such items are purchased in conjunction with an environmental control unit.

(6) A service animal is an animal trained to undertake particular tasks on behalf of a recipient that the recipient can not perform and that are necessary to meet the recipient's needs for accessibility, independence, health, or safety.

(7) A service animal does not include any of the following:

(a) pets, companion animals, and social therapy animals;

(b) guard dogs, rescue dogs, sled dogs, tracking dogs, or any other animal not specifically designated as a service animal; or

(c) wild, exotic, or any other animals not specifically supplied by a training program on the approved provider list.

(8) Supplies necessary for the performance of a service animal may include, but are not limited to, leashes, harness, backpack, and mobility cart when the supplies are specifically related to the performance of the service animal to meet the specific needs of the recipient. Supplies do not include food to maintain the service animals.

(9) Care necessary to the health and maintenance of a service animal may include, but is not limited to, veterinarian care, transportation for veterinarian care, license, registration, and where the recipient or recipient's primary care giver is unable to perform it, grooming.

(10) Certain items of medical equipment or supplies for short term use, as specified by the department, may be leased or rented instead of purchased.

(11) The department may require a consultation prior to the purchase of certain equipment and supplies.

(1) Nonmedical transportation is the provision to a consumer of transportation through common carrier or private vehicle for access to social or other nonmedical activities.

(2) Nonmedical transportation services are provided only after volunteer transportation services, or transportation services funded by other programs, have been exhausted.

(3) Nonmedical transportation providers must provide proof of:

(a) a valid Montana driver's license;

(b) adequate automobile insurance; and

(c) assurance of vehicle compliance with all applicable federal, state, and local laws and regulations.

(4) Nonmedical transportation services must be provided by the most cost effective mode.