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Montana Administrative Register Notice 37-500 No. 6   03/25/2010    
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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 37.30.1001 and 37.30.1002 and repeal of ARM 37.30.1006 and 37.30.1007 pertaining to standards for providers of services funded through certain disability transitions programs

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO:  All Concerned Persons

 

            1.  On April 14, 2010, at 10:30 a.m., the Department of Public Health and Human Services will hold a public hearing in the auditorium of the Department of Public Health and Human Services Building, 111 North Sanders, Helena, Montana, to consider the proposed amendment and repeal of the above-stated rules.

 

            2.  The Department of Public Health and Human Services will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice.  If you require an accommodation, contact Department of Public Health and Human Services no later than 5:00 p.m. on April 5, 2010, to advise us of the nature of the accommodation that you need.  Please contact Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-4094; fax (406) 444-9744; or e-mail dphhslegal@mt.gov.

 

            3.  The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.30.1001  STANDARDS FOR PROVIDERS OF SERVICES FUNDED THROUGH CERTAIN DISABILITY TRANSITIONS PROGRAMS:  GENERALLY CERTIFICATION  (1)  It is the policy of the department to use, whenever feasible, providers which are accredited or approved by an appropriate public authority or professional organization.  Where this is not possible, the providers selected, whether public or private, are those that appear upon investigation to be the best adapted to render the specific services required.  Providers will be chosen based upon the professional and technical qualifications of personnel, adequacy of equipment, and scope and quality of services rendered.  Services that the department purchases to be delivered to persons who are applicants for or who are eligible consumers of the Vocational Rehabilitation Program, the Blind and Low Vision Program, the Older Blind Program, the Independent Living Program, the Extended Employment Program, or the Visual Medical Program must be appropriate to meet the needs of the person for whom they are purchased.

            (2)  The department purchases services for applicants and clients consumers only from providers entities or persons that meet the required or appropriate, as determined by the department, accreditation, certification, licensure or other requirements and criteria made applicable by law, accrediting body, or determination of the department as provided for in ARM Title 37, chapter 30, subchapter 1.

      (3)  A provider who fails to meet accreditation, certification, licensure or other requirements and criteria made applicable by law, accreditation body or determination of the department will lose certification as a provider.  The department reimburses the cost of professional services delivered to persons who are applicants for or who are eligible consumers of the Vocational Rehabilitation Program, the Blind and Low Vision Program, the Older Blind Program, the Independent Living Program, the Extended Employment Program, or the Visual Medical Program only if the person who is to deliver the services is currently professionally licensed to provide the type of services that are to be delivered to the applicant or consumer and is in conformance otherwise with the professional standards that are appropriate for the profession the person is practicing.  A provider of professional services is a person who provides services to persons with disabilities for the purposes of furthering their employment or life skills and who are subject under state law to licensure as a particular type of professional services practitioner.

            (4)  The department reimburses the cost of program services delivered to persons who are applicants for or who are eligible consumers of the Vocational Rehabilitation Program, the Blind and Low Vision Program, the Older Blind Program, the Independent Living Program, the Extended Employment Program, or the Visual Medical Program only if the department, in accordance with ARM Title 37, chapter 30, subchapter 1, has certified the entity that is to deliver the program services as an enrolled provider of services  and the entity is in conformance with all legal requirements necessary for the conduct of business, including but not limited to licensure, incorporation and registration, and federal and state laws and regulations on tax and wage and hour requirements.  A provider of program services is an incorporated or other legal business entity that provides services to persons with disabilities for the purposes of furthering their employment or life skills.

            (5)  The department may evaluate through quality assurance reviews, inclusive of service inspections and consumer and provider interviews, and other measures the quality of professional and program services delivered to consumers of the Vocational Rehabilitation Program, the Blind and Low Vision Program, the Older Blind Program, the Independent Living Program, the Extended Employment Program, or the Visual Medical Program.  The department based upon those evaluations and other pertinent information as it may note or receive from third parties may take any appropriate measures, including termination of the provider relationship, to assure that consumers receive appropriate and effective services and that state and federal monies are appropriately managed and accounted for.

 

AUTH:  53-2-201, 53-7-102, 53-7-203, 53-7-206, 53-7-302, 53-7-315, MCA

IMP:  53-2-201, 53-7-102, 53-7-103, 53-7-203, 53-7-302, 53-7-303, MCA

 

            37.30.1002  STANDARDS FOR PROVIDERS OF SERVICES FUNDED THROUGH CERTAIN DISABILITY TRANSITIONS PROGRAMS:  ENROLLMENT AS A PROVIDER OF PROGRAMS OR SERVICES  (1)  A provider of services for applicants or consumers of services provided through this chapter that is an incorporated corporation delivering a program of vocational rehabilitation, visual rehabilitation, extended employment services or independent living services in order to become enrolled with the department as qualified to be a provider must be accredited by the appropriate accrediting body as specified on the following list:  The department in its discretion may enroll an entity as a provider of program services for the Vocational Rehabilitation, Blind and Low Vision, or Extended Employment Programs if the entity is currently accredited as follows or is provisionally enrolled as provided for in (7) or is approved for limited enrollment by the department as provided for in (8) or (9):

            (a)  for providers of vocational rehabilitation facilities and similar providers, the standards of and extended employment services, the entity must be accredited by either the cCommission of aAccreditation of rRehabilitation fFacilities (CARF) or the Rehabilitation Services Accreditation System (RSAS); and

            (b)  for providers serving persons with visual disabilities, the standards of low vision and blind services, the entity must be accredited by either the nNational aAccrediting cCouncil (NAC) or of CARF; and.

            (c)  for providers of independent living services, the standards of the national council on disability (NCD).

            (2)  The department in its discretion may enroll an entity as a provider of program services for the independent living programs if the entity is currently recognized and funded as an authorized independent living center by the federal Centers for Independent Living Program of the U.S. Department of Education or is provisionally enrolled as provided for in (7) or is approved for limited enrollment by the department as provided for in (8) or (9).

            (3)  The standard term of enrollment for a provider of program services is three years.  If the enrollment is predicated upon an accreditation or authorization that is for a shorter term than three years, then the term of enrollment coincides with that term.

            (4)  The department may disenroll a provider at any time upon a determination by the department that the provider:

            (a)  is no longer accredited by an accrediting body;

            (b)  is no longer approved or authorized by another state or federal services program;

            (c)  is failing to perform in accordance with the various program and licensing standards and requirements that are applicable to the provider's service performance;

            (d)  is failing to prepare, maintain, or provide reports and other documentation necessary for monitoring performance and accounting for service delivery;

            (e)  is failing to perform in accordance with the terms of any contract the provider has entered into with the department for the delivery of vocational rehabilitation, blind and low vision, older blind, visual medical, extended employment or independent living services; or

            (f)  is violating or failing to conform with state or federal law.

            (5)  The department may review the enrollment status of a provider at any time.  A review may include a site review.

            (2) (6)  Copies of the standards adopted and incorporated by reference in this rule may be obtained as follows:

            (a)  the CARF standards may be obtained by temporary loan from the department through the Department of Public Health and Human Services, Disability Services Division Disability Transitions Programs, P.O. Box 4210, Helena, MT 59604-4210 or by purchase from CARF, 4891 E. Grant Road, Tucson, AZ 85712; and

            (b)  the NAC standards may be obtained by temporary loan from the department through the Department of Public Health and Human Services, Disability Services Division Disability Transitions Programs, P.O. Box 4210, Helena, MT 59604-4210 or by purchase from NAC, 15 E. 40th Street, Suite 1004, New York, NY 10016.;

            (c)  the RSAS standards may be obtained by temporary loan from the department through the Department of Public Health and Human Services, Disability Transitions Programs, P.O. Box 4210, Helena, MT 59604-4210 or by purchase from RSAS, 1309 Horne Street NE, Olympia, WA 98516; and

            (d)  copies of the federal requirements for a federally authorized independent living center may be obtained through the Department of Public Health and Human Services, Disability Transitions Programs, P.O. Box 4210, Helena, MT 59604-4210.

            (3) (7)  A provider of services An entity, that in accordance with (1) or (2) must receive accreditation in order to be enrolled, may be provisionally enrolled by the department until the provider entity receives the appropriate accreditation.  A provisionally enrolled provisional enrollment may not be for more than 18 months.  A provider may not receive another provisional enrollment, consecutive with a prior provisional enrollment unless the department determines that the provisional reenrollment is necessary due to matters of process relating to the accreditation and that the provider is making a good faith effort to become accredited.

            (4) (8)  The department may enroll a provider of services an entity that is not accredited as provided in (1) or (2), if the provider entity is necessary to the delivery of services to an applicant or consumer, and if the provider is approved for the delivery of those services by a entity has formal approval to act as a provider from another state or federal agency services program with which the department has a cooperative agreement concerning the coordinated delivery of services to a class of persons to which the person belongs.

            (9)  The department may provide for the limited enrollment of an entity that is not enrolled as provided for in of this rule if that entity can provide one or more services to a consumer in an area or circumstance that lacks an available enrolled provider.  Limited enrollment may be limited with respect to time period, location, type of services, and any other pertinent parameters.

            (10)  If enrollment is denied, the department must give notice to the entity of the reasons for the decision 30 days from the date that the entity submitted a proposal to enroll.

            (5) (11)  If enrollment is denied to be revoked by the department, the department must give notice to the provider is notified of the reasons for such the decision 30 days in advance of the date on which the department will cease to purchase services from the provider.

            (6)  The department provides for the enrollment of a provider upon receipt from the provider of records and reports attesting to its CARF or NAC accreditation.  The duration of the enrollment by the department may be up to three years.

            (a)  The department, upon being apprised of any source of material change in the facility's functioning in terms of the standards or in terms of the failure of the facility to provide such records and reports as requested by the department, may review the facility's certification and may modify its certification decision.  At the discretion of the department, such review may include an on site visit.

 

AUTH:  53-2-201, 53-7-102, 53-7-203, 53-7-206, 53-7-302, 53-7-315, MCA

IMP:  53-2-201, 53-7-102, 53-7-103, 53-7-203, 53-7-302, 53-7-303, MCA

 

            4.  The department proposes to repeal the following rules:

 

            37.30.1006  STANDARDS FOR PROVIDERS:  ON SITE EVALUATION, is found on page 37-6603 of the Administrative Rules of Montana.

 

AUTH:  53-7-102, 53-7-203, 53-7-206, 53-7-302, 53-7-315, MCA

IMP:  53-7-102, 53-7-103, 53-7-203, 53-7-302, 53-7-303, MCA

 

            37.30.1007  STANDARDS FOR PROVIDERS:  PROFESSIONAL PROVIDERS, is found on page 37-6603 of the Administrative Rules of Montana.

 

AUTH:  53-7-102, 53-7-203, 53-7-206, 53-7-302, 53-7-315, MCA

IMP:  53-7-102, 53-7-103, 53-7-203, 53-7-302, 53-7-303, MCA

 

            5.  The Department of Public Health and Human Services (the department) is proposing the amendment of ARM 37.30.1001 and 37.30.1002 and the repeal of ARM 37.30.1006 and 37.30.1007 pertaining to the standards for providers of program or professional services for vocational rehabilitation, blind and low vision services, older blind, visual medical, extended employment services, or independent living services.  The proposed amendments to ARM 37.30.1001 and 37.30.1002 and the repeal of ARM 37.30.1006 and 37.30.1007 are necessary to account for changes in the accreditation environment of the programs involved.  The current rules reference an accreditation process that no longer exists and there is an additional accreditation process now available for the accreditation of one type of service.  The rule amendments and repeals are also necessary in order to consolidate the substantive governing provisions into a more concise rule framework.

 

ARM 37.30.1001

 

The department's proposed amendments to ARM 37.30.1001 would specify the particular programs administered by the department through the Disability Transitions Programs to which these provider standards would be applicable.  The rule currently is ambiguous as to their programmatic applicability.  This option would be desirable as compared to not adding the changes in that it would clarify for departmental staff, the provider community, and the public the applicability of the standards.  A further aspect of the proposed amending to the rule are the provisions clarifying the difference between persons acting as professionals who provide services and entities acting as provider business organizations that provide services.  This differentiation would avoid ambiguity in the application of standards as to these two very different types of providers.  This option is preferable over no action which would maintain the significant possibility of misapplication of the standards with respect to some providers or over the adoption of one set of standards for all providers which would not be feasible given the very different nature of their service structures and activities.

 

The department is proposing the addition of express authority in ARM 37.30.1001 to allow the department to consider in the acceptance or enrollment of persons and entities as providers the legal status and conformance of the person or entity with respect to legal requirements other than programmatic requirements that can seriously affect their performance as an organization and in the delivery of services.  The amendments would also encompass express authority for the department to undertake quality assurance on and off site reviews and actions to further conformance with the best practices and to foster the delivery of services that are appropriate to meet the consumer's needs.  This express expansion of the discretion of the department is necessary to better assure the delivery of services to consumers. It is a preferable option in that it broadens the exercise of quality assurance oversight for the department based upon other pertinent requirements in addition to those expressed in these rules.

 

ARM 37.30.1002

 

The department's proposed amendments to ARM 37.30.1002 would remove the required applicability to independent living services of the standards of the National Council on Disability.  This particular amendment is necessary because the National Council on Disability no longer provides standards for this purpose.  Since there are no standards of an accrediting body which are particularly designed for independent living services, the department is proposing an amendment to provide that an independent living center may be enrolled by the department based upon its recognition and direct funding by the federal Department of Education, Rehabilitation Services Administration, as an independent living center that meets the pertinent federal standards governing the development and operation of independent living centers.  This option was implemented because the federal standards are definitive as to the constitution of independent living standards and the alternative of the development of particular state standards would be duplicative of the federal process and therefore an inefficient use of limited state resources.  In addition, the application of a state set of standards would be potentially confusing for the independent living centers.

 

The department's proposed amendments to ARM 37.30.1002 would add the applicability to rehabilitation services of the standards of the Rehabilitation Services Accreditation System (RSAS).  This particular amendment is necessary because this is a new accreditation service for rehabilitation services that did not exist when the rule was originally adopted.  This new accreditation service provides an effective and comprehensive accreditation service with desirable standards.  The department with the support of interested providers determined it would be desirable to amend the rule to provide for the application of the RSAS accreditation.  The department chose this option of an additional accreditation services because it is administratively desirable to recognize and utilize all available services that are appropriate for the purpose and to provide choice of accreditation services for providers.

 

The proposed amendment of the provision of ARM 37.30.1002 allowing for the department to enroll service programs approved as providers by another state or federal agency, will remove the limitation upon this exercise based upon a class of persons.  This will broaden the discretion of the department with respect to enrollment of entities that individually serve a person through another state or federal program.  This approach is the better option in that it will facilitate the individualization of services to consumers and further the collaboration in the delivery of services originating with different programs.  This option is preferable over no change or a change to no enrollment requirements, in that it continues to provide for the application of best practices in the delivery of services while furthering the improvement of service delivery and coordination.

 

The department is proposing the amendment of ARM 37.30.1002 allowing for the department to enroll service programs as limited enrollment providers, is for the purpose of assuring service delivery to consumers who live in areas that lack generally enrolled service programs.  This will broaden the opportunities for consumers to receive in their own communities and regions services that are funded by the department.  This approach is the better option in that it will facilitate the individualization of services to consumers while maintaining departmental oversight of the quality of programs.  This option is preferable over no change or a change to no enrollment requirements, in that it will geographically broaden service delivery.

 

ARM 37.30.1006 and 37.30.1007

 

The department is proposing the repeal of ARM 37.30.1006 and 37.30.1007.  The textual substance of these two existing rules is proposed to be amended into the proposed amendments of ARM 37.30.1001 and ARM 37.30.1002.  This would effectively consolidate related provisions together and allow for more succinct rule language for the purposes of administering the provision of services in a manner that facilitates quality assurance in delivery of the services to consumers and that facilitates accountability for the program monies expended on the services.  The department determined that this consolidation of provisions was preferable as compared to their retention was desirable for more effective implementation and presentation of the procedures and the criteria governing the selection and retention of entities and persons to obtain services from for the program consumers.

 

            6.  Concerned persons may submit their data, views, or arguments either orally or in writing at the hearing.  Written data, views, or arguments may also be submitted to: Rhonda Lesofski, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; fax (406) 444-9744; or e-mail dphhslegal@mt.gov, and must be received no later than 5:00 p.m., April 23, 2010.

 

7.  The Office of Legal Affairs, Department of Public Health and Human Services, has been designated to preside over and conduct this hearing.

 

8.  The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices.  Notices will be sent by e-mail unless a mailing preference is noted in the request.  Such written request may be mailed or delivered to the contact person in 6 above or may be made by completing a request form at any rules hearing held by the department.

 

9.  An electronic copy of this proposal notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register.  The Secretary of State strives to make the electronic copy of the notice conform to the official version of the notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the notice and the electronic version of the notice, only the official printed text will be considered.  In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

 

10.  The bill sponsor contact requirements of 2-4-302, MCA, do not apply.

 

 

 

 

/s/  Cary B. Lund                                            /s/  Anna Whiting Sorrell                              

Rule Reviewer                                               Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

           

Certified to the Secretary of State March 15, 2010.

 

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