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Montana Administrative Register Notice 37-467 No. 12   06/25/2009    
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BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.85.212 and 37.86.205 pertaining to resource based relative value scale (RBRVS) Medicaid provider rates and mid-level practitioner's reimbursement for services to Medicaid clients under age 21

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NOTICE OF AMENDMENT

 

TO:  All Concerned Persons

 

1.  On April 30, 2009, the Department of Public Health and Human Services published MAR Notice No. 37-467 pertaining to the public hearing on the proposed amendment of the above-stated rules at page 436 of the 2009 Montana Administrative Register, Issue Number 8.

 

            2.  The department has amended ARM 37.86.205 as proposed.

 

3.  After receiving public comment, the department has amended the following rules that were not in the proposal notice (see comment and response #2 and #3).  Matter to be added is underlined.  Matter to be deleted is interlined.

 

            37.86.105  PHYSICIAN SERVICES, REIMBURSEMENT/GENERAL REQUIREMENTS AND MODIFIERS  (1) through (2)(b) remain the same.

            (3)  Reimbursement for services of a psychiatrist, except as otherwise provided in this rule, is the lower of:

            (a)  remains the same.

            (b)  to address problems of access to mental health services, subject to funding, up to 150% 125% of the reimbursement for physicians provided in accordance with the methodologies described in ARM 37.85.212.

            (4) through (5) remain the same.

 

AUTH:  53-6-101, 53-6-113, MCA

IMP:  53-6-101, 53-6-113, 53-6-141, MCA

 

            37.86.2005  OPTOMETRIC SERVICES, REIMBURSEMENT  (1)  Subject to the requirements of this rule, the Montana Medicaid program pays the following for optometric services:

            (a)  For patients who are eligible for Medicaid, the lower of:

            (i)  the provider's usual and customary charge for the service; or

            (ii)  the reimbursement provided in accordance with the methodologies described in to address problems of access to optometric services, subject to funding, up to 112% of the reimbursement for allied services provided in accordance with the methodologies described in ARM 37.85.212.

 

AUTH:  53-6-113, MCA

IMP:  53-6-101, 53-6-113, 53-6-141, MCA

 

4.  The department has amended the following rule as proposed, but with the following changes from the original proposal, new matter underlined, deleted matter interlined:

 

            37.85.212  RESOURCE BASED RELATIVE VALUE SCALE (RBRVS) REIMBURSEMENT FOR SPECIFIED PROVIDER TYPES  (1)  For purposes of this rule, the following definitions apply:

            (a) remains as proposed.

            (b)  "Conversion factor" means a dollar amount by which the relative value units, or the base and time units for anesthesia services, are multiplied in order to establish the RBRVS fee for a service.  Effective July 1, 2008 there are four conversion factor categories.  They are:

            (i)  physician services, which applies to the following health care professionals listed in (2):  physicians, mid-levels, podiatrists, public health clinics, independent diagnostic testing facilities, nutrition providers, QMB and EPSDT chiropractors, and dentists rendering medical procedures. The conversion factor for physician services for state fiscal year 2010 is $38.43 $40.09;

            (ii)  allied services, which applies to the following health care professionals listed in (2):  physical therapists, occupational therapists, speech therapists, optometrists, opticians, audiologists, and school-based services.  The conversion factor for allied services for state fiscal year 2010 is $30.49 $30.39;

            (iii)  mental health services, which applies to the following health care professionals listed in (2):  psychologists, licensed clinical social workers, and licensed professional counselors.  The conversion factor for mental health services for state fiscal year 2010 is $25.95 $24.26; and

            (iv)  anesthesia services, which applies to anesthesia services.  The conversion factor for anesthesia services for state fiscal year 2010 is $26.25 $27.55.

            (c) through (14) remain as proposed.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:  53-2-201, 53-6-101, 53-6-111, 53-6-113, MCA

 

5.  The department has thoroughly considered the comments and testimony received.  A summary of the comments received and the department's responses are as follows:

 

COMMENT #1:  The Health Resources Division (division) of the Department of Public Health and Human Services (department) commented that the proposed conversion factors should be changed in the final rule as follows:

 

                                                            Proposed                   Final

Physician related services               $38.43                        $40.09

Allied services                                   $30.49                        $30.39

Mental health services                      $25.95                        $24.26

Anesthesia services                         $26.25                        $27.55

 

The proposed value for the conversion factors were calculated as of April 20, 2009, prior to the end of the 2009 legislative session, to meet publication deadlines for proposed rules to be effective by July 1, 2009.  Using data now available regarding the legislative appropriation for state fiscal year (SFY) 2010, historical and projected usage for procedure codes, a 9% increase over 2008 in the aggregate relative value units, a legislative requirement that Medicaid provider rates increase by 2% in the aggregate and the conversion factor for physicians increase by 6%, the division has revised its calculation of the conversion factors.

 

RESPONSE #1:  The department agrees that the conversion factor should be based on the final appropriation for SFY 2010, the most current usage rates and relative value units and the 2009 Legislature's directions regarding provider rates including physicians.  It accepts the proposed change and will adopt a conversion factor of:

 

Physician related services               $40.09

Allied services                                   $30.39

Mental health services                      $24.26

Anesthesia services                         $27.55

 

COMMENT #2:  The Health Resources Division of the department commented that the final change in the conversion factor for physician related services from a proposed conversion factor of $38.43 to an adopted conversion factor of $40.09 also impacts ARM 37.86.105.  The resource based relative value scale (RBRVS) provider rates established with this conversion factor for psychiatrists is currently increased by a factor of 1.5, as stated in ARM 37.86.105, because of the problem of inadequate access to mental health services for Medicaid clients.  These services will continue to have a favorable provider rate adjustment to address access problems but the favorable factor will be reduced from 1.5 to 1.25 to implement the final RBRVS rates for SFY 2010 as directed by the Legislature.

 

RESPONSE #2:  The department agrees with the comment and is amending ARM 37.86.105 to accurately state the current provider rate of reimbursement adjustment.

 

COMMENT #3:  The Health Resources Division of the department commented that the final change in the conversion factor for physician related services from a proposed conversion factor of $38.43 to an adopted conversion factor of $40.09 also impacts ARM 37.86.2005.  The RBRVS provider rates for optometric services are currently increased by a factor of 1.25 to address the problem of inadequate access to optometric services for Medicaid clients.  This provider rate adjustment has not previously been stated in administrative rule.  These services will continue to have a favorable provider rate adjustment to address access problems but the favorable factor will be reduced from 1.25 to 1.12 to implement the final RBRVS rate changes for SFY 2010 as directed by the Legislature.

 

RESPONSE #3:  The department agrees with the comment and is amending ARM 37.86.2005 to accurately state the current provider rate of reimbursement adjustment.

 

COMMENT #4:  The Montana Medical Association (MMA) commented that it supports the increase in the physician services conversion factor in ARM 37.85.212(1).  The proposed conversion factor published MAR Notice No. 37-467 (2009 MAR Issue no. 8, page 436) was $38.43.  The final conversion factor for physician services the department is proposing is $40.09.  The MMA commented that a conversion factor of $40.09 complies with the requirements of 53-6-124 through 53-6-127, MCA.

 

The MMA commented in opposition to amending ARM 37.86.105(3), which the division proposed as part of its testimony at the May 20, 2009, hearing.  ARM 37.85.105(3) establishes a provider rate of reimbursement adjustment for psychiatrists.  The adjustment increases the resource based relative value scale (RBRVS) provider rate for psychiatrists' services by a factor of 1.5.  The division is proposing to reduce the positive adjustment to 1.25.  Psychiatrist services would be paid at the $40.09 conversion factor rate with a 1.25 adjustment to $50.11.

 

The MMA commented that the $50.11 rate is inadequate and if the amendment results in a lower rate for psychiatrists the change in rule should not be made without published notice in a proposed amendment.

 

RESPONSE #4:  The department gave notice of a rate change, not a rate increase or decrease.  The division's proposed change to ARM 37.86.105(3) remains a positive rate adjustment for psychiatrists in relation to other licensed physicians.  Using data now available regarding the legislative appropriation for SFY 2010, historical and projected usage for procedure codes, a 9% increase over 2008 in the aggregate relative value units, a legislative requirement that Medicaid provider rates increase by 2% in the aggregate and the conversion factor for physicians increase by 6%, the division had to revise its calculation of the final conversion factors for all providers.

 

The MMA commented that the $40.09 conversion factor complies with the requirements of 53-6-124 through 53-6-127, MCA.  The department agrees.  All licensed physicians, including psychiatrists are receiving that favorable rate change.

 

Psychiatrist rates are also increased by a provider rate of reimbursement adjustment stated in ARM 37.86.105(3), which the department adopted to implement Montana Medicaid rates.  The department considers the adjustment correct because Montana Medicaid recognizes that the unadjusted RBRVS rate for psychiatrists does not provide a sufficient Medicaid reimbursement rate and there are insufficient psychiatrists to treat Medicaid clients, which is an access issue.  Statute controls over any policy decisions by the department, however.  The department must comply with the requirements of 53-6-124 through 53-6-127, MCA and the legislative directions in House Bill 2 (HB2), the state appropriation legislation.  In order to comply it must reduce the rate adjustment for psychiatrists that it set by administrative rule.

 

The anticipated increase in relative value units is approximately 9%.  Sections 53-6-124 through 53-6-127, MCA require a 6% increase in the physician service conversion factor.  The Legislature also requires a 2% overall increase for all Medicaid providers groups which are physicians service, allied services, mental health services, and anesthesia services.  In order to balance these legislative directives it is necessary to decrease, but not eliminate, the positive provider rate of reimbursement adjustment for psychiatrists.

 

COMMENT #5:  The Montana Psychiatric Association representative on the Montana Medical Association Board of Trustees commented in opposition to the department's proposed amendment to ARM 37.86.105(3).  The board member points out that the conversion factor for physicians must apply to psychiatrists and that an unfavorable provider rate for psychiatrists may result in a decrease in the number of Medicaid patients treated.  

 

RESPONSE #5:  The board member is correct that the physician services conversion factor for licensed medical doctors must apply to psychiatrists.  The conversion factor established in ARM 37.85.212 for physician services does apply to psychiatrists.  Montana Medicaid applies a positive adjustment to the conversion factor for purposes of calculating psychiatrist's reimbursement rate.  The proposed adjustment decreases, but does not eliminate, the positive adjustment.

 

            6.  These rule amendments are effective July 1, 2009. 

 

 

 

/s/  Geralyn Driscoll                                       /s/  Anna Whiting Sorrell                              

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

 

Certified to the Secretary of State June 15, 2009

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