Administrative Rules of the State of Montana

BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

In the matter of the amendment of ARM 37.89.103, 37.89.114, 37.89.115, 37.89.125, 37.89.131, pertaining to provider reimbursement under the Mental Health Services Plan

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

TO: All Concerned Persons

1. On December 29, 2010, at 1:30 p.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 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 December 22, 2010, to advise us of the nature of the accommodation that you need. Please contact Gwen Knight, Department of Public Health and Human Services, Office of Legal Affairs, P.O. Box 4210, Helena, Montana, 59604-4210; telephone (406) 444-9503; 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:

37.89.103 MENTAL HEALTH SERVICES PLAN, DEFINITIONS As used in this subchapter, unless expressly provided otherwise, the following definitions apply:

(1) "Adult" means an individual ~~that is not a youth as defined in this rule~~ 18 years of age or older.

(2) remains the same.

(3) "Correctional or detention facility" means:

(a) the Montana sState pPrison, including the Warm Springs correctional facilities;

(b) the Montana w Women's Prison ~~correctional center~~;

(8) "Medically necessary service" is defined as provided in ARM 37.82.102. (9) through (11) remain the same.

(12) "Mental hHealth sServices pPlan, (MHSP)" or "plan" means the Mental Health Services Program established in this subchapter.

(13) through (18) remain the same.

AUTH: 41-3-1103, 52-1-103, 53-2-201, 53-6-113, 53-6-131, 53-6-701, 53-21-703, MCA

IMP: 41-3-1103, 52-1-103, 53-1-601, 53-1-602, 53-1-603, 53-2-201, 53-6-101, 53-6-113, 53-6-116, 53-6-117, 53-6-131, 53-6-701, 53-6-705, 53-21-139, 53-21-201, 53-21-202, 53-21-701, 53-21-702, MCA

37.89.114 MENTAL HEALTH SERVICES PLAN, COVERED SERVICES

(1) Authorized medically necessary mental health services for a covered diagnosis are covered under the plan for members, except as provided in this subchapter, include:

(a) remains the same.

(b) ~~primary care providers, as defined in ARM 37.86.5001~~ physician services as defined in ARM 37.86.101 and mid-level practitioner services as defined in ARM 37.86.202, for screening and identifying psychiatric conditions and for medication management;

(d) remains the same.

(e) mental health center services provided by a licensed mental health center contracted with the department for services to adults enrolled in the plan.

(2) This subchapter is not intended to and does not establish an entitlement for any individual to be determined eligible for or to receive any services under the plan. The category of services, the particular provider of services, the duration of services and other specifications regarding the services to be covered for a particular member may be determined and may be restricted by the department or its designee based upon and consistent with the services medically necessary for the member, the availability of appropriate alternative services, the relative cost of services, the member's treatment plan objectives, the availability of funding, the degree of financial need, the degree of medical need and other relevant factors.

(a) If the department determines with respect to the plan that it is necessary to reduce, limit, suspend or terminate eligibility or benefits, reduce provider reimbursement rates, reduce or eliminate service coverage or otherwise limit services, benefits or provider participation, in a manner other than provided in this subchapter, the department may implement such changes by providing ten days advance notice published in Montana major daily newspapers with statewide circulation, and by providing:

~~(i) ten days advance written notice of any individual eligibility and coverage changes to affected members; and~~

~~(ii) ten days advance written notice of coverage, rate, and provider participation changes to affected providers.~~

(3) through (5) remain the same but are renumbered (2) through (4).

~~(6)~~ (5) Except as provided in ~~(6)(a)~~ (5)(a), the plan covers medically necessary mental health services for covered diagnoses for members who are residents of nursing facilities, regardless of whether the services are provided in the nursing facility.

(a) remains the same.

(7) through (8)(c) remain the same but are renumbered (6) through (7)(c).

~~(9)~~ (8) A member who is an inmate in or incarcerated in a correctional or detention facility is not entitled to services under the plan, except as specifically provided in these rules.

(a) The plan covers discharge planning services in relation to a covered diagnosis prior to release from a correctional or detention facility for a member who is:

(i) and (ii) remain the same.

(iii) a forensic patient~~, as specified in (6)(a),~~ admitted to the Montana state hospital.

(b) and (c) remain the same.

~~(10)~~ (9) This subchapter is not intended to and does not establish an entitlement for any individual to be determined eligible for or to receive services under the plan. The department may limit services, rates, eligibility or the number of persons determined eligible under the plan based upon such factors as availability of funding, the degree of financial need, the degree of medical need or other factors.

The category of services, the particular provider of services, the duration of services, and other specifications regarding the services to be covered for a particular member may be determined and may be restricted by the department or its designee based upon and consistent with the services medically necessary for the member, the availability of appropriate alternative services, the relative cost of services, the member's treatment plan objectives, the availability of funding, the degree of financial need, and the degree of medical need.

(a) through (a)(ii) remain the same.

AUTH: 41-3-1103, 52-1-103, 52-2-603, 53-2-201, 53-6-113, 53-6-131, 53-6-706, 53-21-703, MCA

IMP: 41-3-1103, 52-1-103, 52-2-603, 53-1-405, 53-1-601, 53-1-602, 53-1-603, 53-2-201, 53-6-101, 53-6-113, 53-6-116, 53-6-701, 53-6-705, 53-6-706, 53-21-139, 53-21-202, 53-21-701, 53-21-702, MCA

37.89.115 MENTAL HEALTH SERVICES PLAN, PROVIDER PARTICIPATION (1) through (1)(b) remain the same.

(2) Providers in the following categories may request enrollment in the plan:

(a) and (b) remain the same.

(d) mid-level practitioners as defined in ARM 37.86.202);

(d) through (i) remain the same but are renumbered (e) through (j).

(3) through (3)(c) remain the same.

(4) The provisions of ARM Title 37, chapter 85, subchapter 4 and other Medicaid program laws, rules, and regulations regarding particular categories of service apply to participating providers and the services provided under the plan, except as specifically provided in this subchapter or the provider agreement.

(a) through (b) remain the same.

(c) The department may collect from a provider any overpayment under the plan as provided with respect to Medicaid overpayments in ARM 37.85.406(9) through (10)(b). The department may recover overpayments by withholding or offset as provided in ARM 37.85.513~~(1)~~.

(i) through (d)(iii) remain the same.

(5) An enrolled provider has no right to an administrative review or fair hearing as provided in ARM ~~37.5.304, et seq.~~ Title 37, chapter 5, 37.85.411 or any other department rule for:

(a) through (7) remain the same.

AUTH: 2-4-201, 41-3-1103, 53-2-201, 53-6-113, 53-21-703, MCA

IMP: 2-4-201, 41-3-1103, 53-1-601, 53-1-602, 53-1-603, 53-2-201, 53-6-113, 53-6-116, 53-6-701, 53-6-705, 53-21-202, 53-21-701, 53-21-702, MCA

37.89.125 MENTAL HEALTH SERVICES PLAN, PROVIDER REIMBURSEMENT (1) through (1)(a)(i) remain the same.

(2) Provider claims for mental health services provided by the following provider types to members under the plan must be submitted to the department's Medicaid Management Information System (MMIS) contractor according to requirements set forth in ARM 37.85.406. Payments will be made to the provider through the department's Medicaid MMIS contractor.:

(a) psychiatrists;

(b) physicians;

(d) outpatient pharmacies;

(e) labs; and

(f) rural health clinics and federally qualified health clinics.

(3) Licensed mental health centers contracted with the department for mental health center services to adults enrolled in the plan will be reimbursed according to the provisions of their contract.

(3) through (4) remain the same but are renumbered (4) through (5).

AUTH: 53-2-201, 53-6-113, 53-21-703, MCA

IMP: 53-1-601, 53-2-201, 53-6-101, 53-6-116, 53-6-701, 53-6-705, 53-21-202, 53-21-702, MCA

37.89.131 MENTAL HEALTH SERVICES PLAN, MEMBER NOTICE, GRIEVANCE AND RECONSIDERATION AND RIGHTS (1) through (2) remain the same.

(3) A member has the right to any applicable grievance processes provided by the department's review designee referred to in ARM 37.89.118 and, following exhaustion of such grievance processes, an informal reconsideration as provided in ARM ~~37.5.318(5)(a)~~ 37.5.311 regarding a denial or termination of plan eligibility, a denial of authorization or coverage of services, or a determination that a member is liable to the department as provided in ARM ~~37.89.106~~ 37.82.207 based upon a misrepresentation or failure to provide notification of changes in income or family.

(4) through (10) remain the same.

AUTH: 2-4-201, 53-2-201, 53-6-113, 53-6-706, 53-21-703, MCA

IMP: 2-4-201, 53-1-601, 53-2-201, 53-6-101, 53-6-113, 53-6-116, 53-6-706, 53-21-202, 53-21-701, 53-21-703, MCA

4. The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.89.103, 37.89.114, 37.89.115, 37.89.125, and 37.89.131 pertaining to provider reimbursement under the Mental Health Services Plan. The proposed amendments are for the purpose of altering the reimbursement methodology for the Mental Health Services Plan (MHSP). If adopted, the amendments will allow the department to establish a fixed amount contract with licensed mental health centers that provide services to adults with severe disabling mental illnesses who have been determined eligible for the plan. Reimbursement to providers who have prescriptive authority or who provide medication management will continue to be reimbursed on a fee-for-service basis. The provider types that are not affected by these amendments include physicians, psychiatrists, mid-level practitioners, labs, rural health clinics, and federally qualified clinics.

The proposed amendments do not alter the provider network and does not adversely affect the consumer's freedom of choice that is currently in place.

Additional amendments to existing rules are proposed that modify language in existing rule for clarification or accuracy.

The proposed changes are described as follows:

ARM 37.89.103

The department is proposing the amendment of ARM 37.89.103(1) to remove language referring to another definition in the same rule that was removed earlier, and inserts language that provides a definition of "adult".

ARM 37.89.103(12) proposes that the term "Mental Health Services Plan" be accurately identified and adds the acronym "MHSP" which is used throughout the rule to the definition.

ARM 37.89.114

The department proposes an amendment to ARM 37.89.114(1) to provide clarification of physician services and mid-level practitioner services included under the plan; and to amend the language for mental health center services to limit those services to those provided by a licensed mental health center that is contracted with the department. This change is necessary because, under the current proposed amendments, mental health center services will be reimbursed under a contract methodology rather than the existing fee-for-service arrangement.

Language in ARM 37.89.114(2) was repeated in ARM 37.89.114(10) and the proposed amendment removes the redundancy.

In ARM 37.89.114(8)(a)(iii) language is deleted because the reference to an earlier portion of the rule is not accurate.

ARM 37.89.115

The proposed amendment to ARM 37.89.115 includes providers who may request enrollment and specifically identifies physicians and mid-level practitioners as an alternative to the broad category of primary care providers.

ARM 37.89.125

The proposed amendment to ARM 37.89.125 identifies providers that will continue to submit claims through the department's Medicaid MMIS contractor. For these provider types, reimbursement is unchanged. The proposed amendment to ARM 37.89.125 states that licensed mental health centers who are contracted with the department for services to adults enrolled in the plan will be reimbursed according to the provisions of their contract with the department. This represents a change in reimbursement methodology for this provider type.

ARM 37.89.131

The proposed amendments to ARM 37.89.131 change the references elsewhere in ARM for the grievance process. The references that are currently in place are not correct.

Statement of Necessity

The proposed changes are necessary to ensure the fiscal sustainability of the Mental Health Services Plan. Prior to February 2008, all MHSP services were provided through contracts with four community mental health centers. In order to improve access to services, the department expanded the provider network to include any willing provider with prescriptive authority and labs to submit claims for reimbursement. In July 2008, fee-for-service reimbursement was expanded to any licensed mental health center. Although MHSP operated within its appropriation for fiscal year (FY) 2009, growth and expenditures were projected to exceed the appropriation for FY 2010. The department implemented cost-saving measures in January 2010, but the actions were not sufficient to bring the program into fiscal alignment. By the end of FY 2010, the claims expenditures for MHSP exceeded the appropriation by $1.4 million. As an alternative to drastically reducing services or being forced to terminate benefits, the department has chosen to return to a contractual arrangement with mental health centers. This change will allow the department to operate MHSP with fixed expenditures for the remainder of FY 2011 and into the future.

The proposed amendments were developed after a historical review of approaches that had been utilized in the past to address funding shortfalls in the MHSP. Rather than return to the contracted program that was in place between 2003 and 2008, the department wanted to preserve the ability to reimburse individual providers who were available to assist enrolled beneficiaries with timely access to medications prescribed for the treatment of symptoms of mental illness. The remaining provider type in the MHSP provider network was licensed mental health centers and the department is proposing that this group be reimbursed with fixed-price contracts. If the department is unable to implement this change in reimbursement methodology, it is unlikely that the program's appropriation is sufficient to continue services to the end of the fiscal year. The department is unable to make up for the shortfall during FY 2011 because of other budget considerations.

Fiscal Impact

The proposed amendments will decrease the monetary amount that will be reimbursed to licensed mental health centers because the contracts that would be established under this amendment will be based upon the legislative appropriation, not upon a fee-for-service reimbursement methodology.

The cumulative amount of the fiscal impact is estimated to be a decrease of $1.4 million based upon the billable expenditures for FY 2010.

This decrease will impact eight licensed mental health centers in Montana that currently provide services to individuals enrolled in the Mental Health Services Plan.

5. 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: Gwen Knight, 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., January 6, 2011.

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

7. 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 5 above or may be made by completing a request form at any rules hearing held by the department.

8. 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.

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

/s/ John Koch /s/ Anna Whiting Sorrell

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State November 29, 2010.