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 adoption of New Rule I, the amendment of ARM 37.79.101, 37.79.102, 37.79.120, 37.79.201, 37.79.206, 37.79.207, 37.79.501, 37.79.503, 37.79.505, 37.79.602, and 37.79.801, and repeal of 37.79.301, 37.79.303, 37.79.307, 37.79.308 37.79.309, 37.79.312, 37.79.313, 37.79.316, 37.79.317, and 37.79.325 pertaining to the healthy Montana kids coverage group of the healthy Montana kids plan

)

)

)

)

)

)

)

)

)

)

)

)

NOTICE OF PUBLIC HEARING ON PROPOSED ADOPTION, AMENDMENT, AND REPEAL

TO: All Concerned Persons

1. On January 9, 2013, at 10:00 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, adoption, 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 January 2, 2013, to advise us of the nature of the accommodation that you need. Please contact Kenneth Mordan, 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 rule as proposed to be adopted provides as follows:

NEW RULE I SERVICES COVERED (1) The department adopts and incorporates by reference the HMK Evidence of Coverage dated October 1, 2012, which is available on the department's web site at www.hmk.mt.gov.

(2) The HMK Evidence of Coverage describes the health care benefits available to an HMK coverage group enrollee if the service is medically necessary. Prior authorization may be required and copayments may apply.

AUTH: 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1005, 53-4-1109, MCA

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

37.79.101 HEALTHY MONTANA KIDS (HMK) PLAN (1) The rules in this ~~sub~~chapter implement the Healthy Montana Kids Plan to provide comprehensive health care coverage to Montana residents who are 18 years of age or younger residing in households with a combined family income at or below 250% of the ~~2009~~ federal poverty level (FPL). There is no resource test, as that term is used in 53-6-113 and 53-6-131, MCA, to qualify to participate in the Healthy Montana Kids Plan.

(2) remains the same.

(a) Qualified residents residing in households with income at or below 250% of the ~~2009~~ FPL but greater than 133% of the ~~2009~~ FPL qualify for the HMK coverage group. The HMK coverage group is a public benefit program administered by the department through a third party administrator. HMK enrollees have health care coverage to the extent described in this chapter. HMK providers are members of a provider network reimbursed at rates agreed to by contract. The provisions of this chapter apply to HMK enrollees. The provisions of 42 USC § 1396d(r) (5) regarding services provided for early and periodic screening, diagnosis and treatment (EPSDT) purposes do not apply to the HMK coverage group.

(b) Qualified residents residing in households with income at or below 133% of the ~~2009~~ FPL qualify for the HMK Plus coverage group. The HMK Plus coverage group is the term used to identify the Montana Medicaid program for Montana residents 18 years of age or younger. HMK Plus enrollees have health care coverage to the extent provided by Montana Medicaid. HMK Plus providers are reimbursed at Montana Medicaid rates. The provisions of this chapter and Title 37, chapters 82, 83, 85, 86, and 88 apply to HMK Plus.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, 53-4-1110, MCA

37.79.102 DEFINITIONS As used in this subchapter, unless expressly provided otherwise, the following definitions apply:

(1) "Advanced practice registered nurse (APRN)" means a registered professional nurse who has completed educational requirements related to the nurse's specific practice role, in addition to basic nursing education, as specified by the Board of Nursing in ARM ~~Title 8, chapter 32, subchapter 3~~ 24.159.1414.

(2) and (3) remain the same.

(4) "Benefits" means the services an enrollee is eligible ~~for as outlined in~~ ~~this subchapter~~ to receive. The HMK coverage group benefits are stated in its Evidence of Coverage. All benefits are provided to an enrollee through the department.

(5) "Benefit year" means the period from October 1st through September 30th for those enrolled in the HMK coverage group. If an individual is enrolled in the HMK coverage group after October 1st, the benefit year is the period from the date of enrollment through the following September 30th.

(6) through (9) remain the same.

(10) "Enrollee" means an individual who is eligible ~~to receive HMK Plan benefits as determined by the department under this subchapter~~ and is enrolled in the HMK coverage group ~~program~~. An individual is not an enrollee while on a waiting list or pending issuance of a hearing decision or during any period a hearing officer determines the individual was not eligible for the HMK coverage group benefits. The term "enrollee" and "member" are synonymous.

(11) through (13) remain the same.

(14) "Federal poverty level (FPL)" means the poverty guidelines for ~~2011~~ 2012 for the 48 contiguous states and the District of Columbia as published under the "Annual Update on the HHS Poverty Guidelines" ~~76 Federal Register 13, pp 3637 – 3638, January 20, 2011~~ 77 Federal Register 17, pp 4034-4035, January 26, 2012.

(15) through (38) remain the same.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1103, 53-4-1104, 53-4-1105, 53-4-1108, MCA

37.79.120 MOVEMENT BETWEEN HMK AND HMK PLUS (1) The HMK Plan is available to all Montana residents who are 18 years of age or younger and live in households with a combined family income at or below 250% of the ~~2009~~ federal poverty level (FPL). The HMK Plan provides for two coverage groups, HMK and HMK Plus. The HMK coverage group is available to qualified residents who reside in households with a combined family income between 134% and 250% of the ~~2009~~ FPL. A waiting list may apply to this program. The HMK Plus coverage group is available to qualified residents who reside in households with a combined family income between 0 and 133% of the ~~2009~~ FPL.

(2) The HMK and HMK Plus coverage groups provide an eligible enrollee 12 months continuous coverage~~. An eligible HMK coverage group enrollee's coverage begins on the first day of the month following the date the application is received. An eligible HMK Plus coverage group enrollee's coverage~~ that begins on the first day of the month in which the application is received. ARM 37.79.503 states eligibility determination procedures for the HMK coverage group. ARM 37.82.204 states eligibility determination procedures for the HMK Plus coverage group.

AUTH: 53-4-1105, MCA

IMP: 53-4-1104, 53-4-1105, 53-4-1110, MCA

37.79.201 ELIGIBILITY (1) through (6) remain the same.

(7) Applicants who are losing HMK Plus coverage or who were denied HMK Plus coverage for a reason other than the family withdrew their application or failed to comply with HMK Plus requirements ~~will be referred to the~~ are evaluated for HMK coverage group via an electronic report. The HMK coverage group eligibility will be determined and applicants will be enrolled in the HMK coverage group or placed on the HMK coverage group's waiting list.

(8) and (9) remain the same.

(10) The HMK coverage group eligibility is redetermined within one year after the initial eligibility period, and annually thereafter. ~~A renewal application must be completed, signed, dated and returned by a specified date for purposes of eligibility redetermination.~~ Prior eligibility for HMK does not guarantee continued eligibility or enrollment.

(11) and (12) remain the same.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.206 ELIGIBILITY REDETERMINATION, NOTICE OF CHANGES

(1) Eligibility determinations ~~shall~~ will be effective for a period of 12 months unless one or more of the following changes occurs:

(a) through (2) remain the same.

(3) An HMK renewal application must be completed and eligibility redetermined every 12 months. If the renewal application is not returned before the HMK coverage group enrollment is scheduled to end, benefits will terminate. A new application may be completed at a later date but, if the children are determined eligible, they may be placed on the waiting list if one exists. A prepopulated HMK renewal application with household composition and income information is mailed to each family a month prior to the end of the existing family span. If there are changes to household composition, annual income, or health insurance coverage the family must complete, sign, date, and return the renewal application by a specified date or benefits will terminate. If there are no changes to household composition, annual income, or health insurance coverage the family is not required to respond or fill out the renewal application and the children are redetermined as eligible and are enrolled in the program for a new 12-month span. If enrollment ends, a new application may be completed and, if the children are determined eligible, they may be placed on the waiting list if one exists.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.207 TERMINATION OF ELIGIBILITY AND GUARDIAN LIABILITY

(1) remains the same.

(2) The HMK coverage group eligibility terminates at the end of the month the department becomes aware:

(a) through (e) remain the same.

(f) the ~~applicant~~ enrollee has moved without providing a new address and the department is unable to locate the ~~applicant~~ enrollee; or

(g) ~~a completed renewal application~~ information requested by the department to redetermine eligibility has not been received ~~by the department~~.

(3) Termination of eligibility, based on insufficient funding at the department may not be effective earlier than the end of the month notice of termination is given to the enrollee or the enrollee's parent or guardian. Disenrollment for provisions of (2), except for (2)(a), will be effective subject to ten-day notification per ARM 37.79.505.

(4) remains the same.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.501 COST SHARING PROVISIONS (1) remains the same.

(2) No copayment ~~shall~~ will apply to:

(a) through (d) remain the same.

(e) extended mental health services for children with a serious emotional disturbance ~~as stated in ARM 37.79.316(4)~~.

(3) The total copayment for each family shall not exceed $215 per family per benefit year.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.503 ENROLLMENT (1) remains the same.

(2) ~~The enrollment date will always be the first day of the enrollment month. An eligible child will be enrolled~~ Except for a newborn child, a child's HMK enrollment begins the later of:

(a) the first day of the month ~~following the month the~~ an application is received ~~if the family is determined eligible; or~~ so long as the child is determined to meet all eligibility criteria;

(b) ~~the month funding is sufficient to enroll the applicant from the waiting list.~~ the first day of the month the family reports a new child, who meets all HMK eligibility criteria, joined the family;

(d) the month funding is sufficient to enroll the applicant from the waiting list.

(3) A newborn will be enrolled effective:

(a) the date of birth when the child's birth is reported during the birth month;

(b) the date of birth when the birth is reported the following month, but within ten days of birth;

(d) the month funding is sufficient to enroll the applicant from the waiting list.

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

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1005, 53-4-1007, 53-4-1009, 53-4-1103, 53-4-1104, 53-4-1105, MCA

37.79.505 DISENROLLMENT (1) and (1)(a) remain the same.

(b) Good cause ~~shall be~~ is defined as provided in Montana insurance law and rules and does not include an adverse change in health status.

(2) and (3) remain the same.

(4) Notice of disenrollment will be mailed at least ten days prior to the time the proposed disenrollment or adverse action is to become effective.

(5) Notice is adequate if it includes:

(a) a statement of the proposed adverse action;

(b) the reason for the proposed adverse action;

(d) a statement of the claimant's right to a hearing;

(e) how to obtain a hearing;

(f) telephone number to call for additional information;

(g) the right to be represented by legal counsel, friend, relative, or other spokesman;

(h) the availability of free legal assistance if such assistance is known to the department program manager involved in the denial of the claim;

(i) if applicable, whether or not benefits are to be continued and the liability of the claimant for benefits received pending hearing if the hearing decision is adverse; and

(j) any other information as specifically required by applicable law, including department rule.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1103, 53-4-1104, 53-4-1105, MCA

37.79.602 PROVISION OF BENEFITS (1) through (3) remain the same.

(4) The department will deny payment to any entity located outside of the United States (U.S.) for any items or services provided to an enrollee.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.801 GRIEVANCE AND APPEAL PROCEDURES (1) through (4) remain the same.

(5) Continuation of HMK benefits during an appeal process will be applied as specified in ARM 37.5.316(3) through (15).

AUTH: 53-4-1009, MCA

IMP: 53-4-1003, MCA

5. The department proposes to repeal the following rules:

37.79.301 COVERED BENEFITS, is found on page 37-17625 of the Administrative Rules of Montana.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.303 BENEFITS NOT COVERED, is found on page 37-17627 of the Administrative Rules of Montana.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1005, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.307 INPATIENT HOSPITAL BENEFITS, is found on page 37-17633 of the Administrative Rules of Montana.

AUTH: 53-4-1009, MCA

IMP: 53-4-1003, MCA

37.79.308 OUTPATIENT HOSPITAL BENEFITS, is found on page 37-17634 of the Administrative Rules of Montana.

AUTH: 53-4-1009, MCA

IMP: 53-4-1003, MCA

37.79.309 PHYSICIAN AND ADVANCED PRACTICE REGISTERED NURSE BENEFITS, LIMITATIONS, AND EXCLUSIONS, is found on page 37-17635 of the Administrative Rules of Montana.

AUTH: 53-4-1009, MCA

IMP: 53-4-1003, MCA

37.79.312 PRESCRIPTION DRUG BENEFITS, is found on page 37-17639 of the Administrative Rules of Montana.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.313 LABORATORY AND RADIOLOGY BENEFITS, is found on page 37-17640 of the Administrative Rules of Montana.

AUTH: 53-4-1009, MCA

IMP: 53-4-1003, MCA

37.79.316 MENTAL HEALTH BENEFITS, is found on page 37-17645 of the Administrative Rules of Montana.

AUTH: 53-4-1009, MCA

IMP: 53-4-1003, MCA

37.79.317 SUBSTANCE USE DISORDER BENEFITS, is found on page 37-17646 of the Administrative Rules of Montana.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

37.79.325 AUDIOLOGY BENEFITS, is found on page 37-17657 of the Administrative Rules of Montana.

AUTH: 53-4-1004, 53-4-1009, 53-4-1105, MCA

IMP: 53-4-1003, 53-4-1004, 53-4-1009, 53-4-1104, 53-4-1105, MCA

6. STATEMENT OF REASONABLE NECESSITY

The Department of Public Health and Human Services (the department) administers the Healthy Montana Kids (HMK) Plan, which is a health care coverage plan for low income Montana children that includes two coverage groups: the HMK Plus coverage group and the HMK coverage group. The department is proposing to adopt, amend, and repeal rules pertaining to the HMK coverage group.

The following statement for each rule explains why the changes are necessary and what the changes mean for enrolled members or for those applying for HMK.

New Rule I

The department is proposing to adopt a new rule that will incorporate by reference the HMK coverage group's current Evidence of Coverage. New Rule I will become the department's statement in administrative rule of the HMK coverage group's benefits. The Evidence of Coverage is the document used by the department's third party administrator. It is available on the internet or in hard copy form. This change will make it easier for parents, guardians, and providers to determine what health care services are paid for by the HMK coverage group.

Effective October 1, 2012, the following services are added as a covered benefit: chiropractic services; cochlear implants and associated components; durable medical equipment, prosthetic devices and medical supplies; home health services; hospice services; nutrition services; transplants, organ, and tissue; and transportation and per diem. Effective January 1, 2013, the following services are added as a covered benefit: chiropractic services and durable medical equipment. The department is adding these services to align benefits more closely with benefits covered by HMK Plus

ARM 37.79.101

The Federal Poverty Level (FPL) is defined in ARM 37.79.102 and the current FPL (the 2012 FPL) is adopted. The reference to 2009 is removed from this rule because it is not the current FPL.

Language stating that EPSDT does not apply to the HMK coverage group is being added to this rule. This is not a substantive change because EPSDT has always only applied to the HMK Plus coverage group. This amendment is proposed because ARM 37.79.101 describes differences between the HMK and HMK Plus coverage groups and EPSDT is a difference.

ARM 37.79.102

The definition of "Benefits" is being amended to refer to the HMK coverage group Evidence of Coverage that is being adopted in New Rule I. This change is necessary to accurately define benefits.

The definition of "Advanced Practice Registered Nurse (APRN)" is being amended to correct the cross reference to Department of Labor rules.

The definition of "Benefit Year" is amended to agree with the changes to ARM 37.79.120 and 37.79.206.

The definition of "Federal Poverty Level (FPL)" is being amended to adopt the current FPL, which is calculated by the federal government on an annual basis. This change is necessary for the HMK coverage group rules to accurately state what income levels currently qualify for services.

The definition of "Enrollee" is being amended to remove unnecessary verbiage.

ARM 37.79.120

FPL is defined in ARM 37.79.102 and the current FPL is adopted. The reference to 2009 in this rule is removed because it is incorrect.

The coverage period for the HMK coverage group is changed to begin on the first day of the month in which the application is received. This is a substantive change made to align the HMK Plus and HMK coverage groups. This change will simplify administration of the program and assists parents, guardians, and providers.

ARM 37.79.201

In (7) the department is proposing to clarify that HMK plan eligibility is completed simultaneously for both programs.

The department changed its procedures for eligibility redetermination on April 1, 2012 for both Medicaid and the HMK Plan (see ARM 37.79.206 below). The changes in (10) conform to this change in procedure.

ARM 37.79.206

In April 2012 the department modified its annual eligibility redetermination process for the HMK plan. A prepopulated application is now mailed to every participating family. If there are no changes to household composition, income, or health insurance coverage, the parent or guardian is not required to respond and coverage is automatically extended for an additional 12 months. The application must be completed and returned to the department by the parent or guardian if there are changes. This modification of the renewal process simplifies program administration and assists program participants.

ARM 37.79.207

The department is amending the language in this rule to be consistent with the changes in ARM 37.39.206. A new application is no longer required every twelve months but, if the department determines additional information is needed, it may request the information. Enrollment may be terminated if the parent or guardian does not provide the requested information. The term applicant is changed to enrollee for consistency.

ARM 37.79.501

This rule is being amended to remove the cross reference to ARM 37.79.316 which is being repealed.

ARM 37.79.503

The department is proposing the changes to this rule to accurately state that enrollment in the HMK coverage group for an eligible child begins the first day of the month an application is received. This change occurred November 1, 2011. The rule changes also specify the language for adding a newborn to an existing family span. A parent or guardian must send notification to the HMK Plan during the birth month or within ten days of the date of birth for enrollment to be effective as of the child's date of birth.

ARM 37.79.505

The department is proposing to amend this rule to state the requirements of a notice of disenrollment. These changes reflect alignment with Medicaid rules for notice of disenrollment.

ARM 37.79.602

The department is proposing this amendment because the HMK coverage plan will not pay for services or items provided outside the United States (U.S.). This change is required by Section 6505 of the Affordable Care Act. This amendment will provide direction for members who receive services outside of the U.S.

ARM 37.79.801

The proposed amendments clarify policy and are not substantive changes in law. The department is proposing to amend this rule to specify that HMK coverage benefits continue during an appeal as stated in Title 39, chapter 5.

Repeal of ARM 37.79.301, 37.79.303, 37.79.307, 37.79.308, 37.79.309, 37.79.312,

37.79.313, 37.79.316, 37.79.317, and 37.79.325

The department is proposing to repeal these rules and replace them with new Rule I, which is described above. This is an editing change to improve the clarity of these rules. Except for the addition of services described above, this is not a substantive change in the medically necessary health care services that are covered for an enrollee in the HMK coverage group.

The department is repealing these rules and adopting by reference HMK coverage group's Evidence of Coverage document to more accurately describe what health care services are covered. The rules that are being repealed do not provide a complete list of what benefits are or are not covered.

Fiscal Impact

The definition of "Federal Poverty Level (FPL)," which changes when FPL is updated in the Federal Register (usually on an annual basis) will have a fiscal impact. New 2012 FPL levels impact all applicants for HMK because the income levels for program eligibility are higher than the previous year, thereby allowing more applicants access to coverage. The minimal change in FPL income levels represents very little impact to program funds.

The total fiscal impact for the additional covered benefits is projected to be $1,448,752 federal funding and $452,498 state special revenue for state fiscal year (SFY) 2013. Projected costs for the new benefits to HMK were derived from state fiscal year (SFY) 2010 and 2011 Montana Medicaid data for children between the ages of 0 through 18 years. HMK enrollment is anticipated to average 23,000 members per month.

7. The department intends to apply New Rule I retroactively to October 1, 2012 except for chiropractic services and durable medical equipment, which will be applied retroactively to January 1, 2013. A retroactive application of the proposed rules does not result in a negative impact to any affected party.

8. 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: Kenneth Mordan, 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 17, 2013.

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

10. 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 8 above or may be made by completing a request form at any rules hearing held by the department.

11. 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.

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

/s/ Geralyn Driscoll /s/ Mary E. Dalton acting for

Rule Reviewer Anna Whiting Sorrell, Director

Public Health and Human Services

Certified to the Secretary of State December 10, 2012.