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Montana Administrative Register Notice 37-675 No. 8   04/24/2014    
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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 37.86.1401, 37.86.1402, 37.86.1405, and 37.86.1406 pertaining to Medicaid reimbursement for ambulatory surgery centers (ASC)

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

 

TO: All Concerned Persons

 

            1. On May 16, 2014, at 2:30 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 May 9, 2014, 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 rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

 

            37.86.1401 CLINIC SERVICES, DEFINITIONS (1) and (2) remain the same.

            (3) "Class I anesthesia risk" means an individual with no detectable systemic diseases and no physical abnormalities which would in any way impair the functioning of his jaw, neck, airway, chest, or abdominal function.

            (4) "Class II anesthesia risk" means an individual who has only one systemic disease which can potentially threaten the safe outcome of an anesthesia.

            (5) "Public health department services" mean physician services and mid-level practitioner services as provided for in 50-2-116, 50-2-118, and 50-2-119, MCA.

            (6) "Protocols" mean written plans developed by a public health clinic in collaboration with physician and nursing staff specifying the nursing procedures to be followed in giving a specific exam, or providing care for particular conditions. Protocols must be updated and approved by a physician at least annually.

            (7) The definitions found in the introduction to Physicians Current Procedural Terminology, fourth edition (CPT4), published by the American Medical Association of Chicago, Illinois adopted at ARM 37.86.101 sets forth meanings of terms commonly used by the Montana Medicaid program in implementation of the program's public health clinic fee schedule.

            (8) The "Physician-Related Services Manual" means the physician-related services manual adopted at ARM 37.86.101. It governs the administration of the Public Health Clinic program.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-6-101, 53-6-141, MCA

 

            37.86.1402 CLINIC SERVICES, REQUIREMENTS (1) through (3) remain the same.

            (4) Patients receiving ambulatory surgical center services must be either class I anesthesia risk or a class II anesthesia risk.

            (5) remains the same, but is renumbered (4).

            (6) Public health department services consist of the following types of services:

            (a) Mid-level practitioner services which:

            (i) are provided through a public health department; and

            (ii) meet all requirements specified in ARM 37.86.201, 37.86.202 and 46.12.2012.

            (b) Physician services which:

            (i) are provided either:

            (A) directly by the physician; or

            (B) by a public health nurse under a physician's immediate supervision. This means the physician has seen the patient and ordered the services except that a minimal service does not require the physician to see the patient. Minimal services are covered when provided by a licensed registered nurse under protocols provided by a physician affiliated with the public health department. Protocols shall be updated at least annually.

            (ii) meet the requirements specified in ARM 37.86.105.

            (7) remains the same, but is renumbered (5).

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-6-101, 53-6-141, MCA

 

            37.86.1405 CLINIC SERVICES, COVERED PROCEDURES

            (1) Ambulatory surgical center (ASC) services:

            (a) remains the same.

            (b) are limited as provided by ARM 37.86.1402(1) through (5) (4) with the term clinic taken to mean ASC.

            (2) and (3) remain the same.

 

AUTH: 53-6-113, MCA

IMP:     53-6-101, 53-6-141, MCA

 

            37.86.1406 CLINIC SERVICES, REIMBURSEMENT

            (1) Ambulatory surgical center (ASC) services as defined in ARM 37.86.1401(2) provided by an ASC will be reimbursed on a fee basis as follows:

            (a) 100% of the Medicare allowable amount. For purposes of determining the Medicare allowable amount for ASC services to Medicaid recipients members under this rule, the department adopts and incorporates by reference the methodology at 42 CFR part 416, subpart E (2005), and the schedule listing the allowable amounts for ASC services in the Medicare Carriers Manual, section 5243. The cited authorities are federal regulations and manuals specifying the methods and rules used to determine reasonable cost for purposes of the Medicare program. Copies of the cited authorities may be obtained from the Department of Public Health and Human Services, Health Resources Division, P.O. Box 202951, Helena, MT 59620-2951.

            (i) For purposes of applying the provisions of 42 CFR part 416, subpart E (2005), and the Medicare Carriers Manual, section 5243, any reference in such authorities to Medicare, Medicare beneficiary, beneficiary, intermediary or secretary shall be deemed to refer also to Medicaid, Medicaid recipient member, recipient member, or the department.

            (ii) For state fiscal year 2003, fees determined in accordance with this rule shall be reduced by 2.6%.

            (b) For ASC services where no Medicare fee has been assigned, the fee is 55% of usual and customary charges the fees will be set at the average Medicaid payment-to-charge ratio for all ASC services that have a Medicaid fee.

            (c) through (2) remain the same.

            (3) Public health department services are reimbursed at the lowest of the following:

            (a) the fees established by the department; or

            (b) reimbursement for either physician services, provided in accordance with the methodologies described in ARM 37.85.212 and 37.86.105, or mid-level practitioner services, provided in accordance with the methodologies described in ARM 37.85.212 and 37.86.205.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-6-101, 53-6-141, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.86.1401, 37.86.1402, 37.86.1405, and 37.86.1406 regarding changes in Medicaid reimbursement for Ambulatory Surgery Centers (ASC).

 

The Centers for Medicare and Medicaid Services (CMS) will no longer allow "by report" reimbursement methodology effective July 1, 2014.  This rule amendment removes the "by report" reimbursement language and replaces it with "payment-to-charge" reimbursement methodology which is approved by CMS.  Also, these proposed amendments will remove additional outdated language and provide the necessary updates to ensure accuracy and clarity within the rules.

 

The following describes the purpose of the proposed rule amendments pertaining to Ambulatory Surgery Centers:

 

ARM 37.86.1401

 

Sections (5), (6), (7), and (8) are being removed as they pertain to the public health department. Public health departments are addressed in other department rules.

 

ARM 37.86.1402

 

Section (4) is being removed because Medicaid does not recognize the classes of anesthesia risk. Section (6) is being removed because the information is addressed in other rules pertaining to public health departments.

 

ARM 37.86.1405

 

In (1)(b) the citation is being corrected from (5) to (4) to reference the applicable sections in ARM 37.86.1402.

 

ARM 37.86.1406

 

In (1)(a) the department is proposing to replace the term "recipients" with "members." Subsection (1)(a)(ii) is being removed because it no longer applies. 

In (1)(b) the language referring to "usual and customary charges" is being removed and replaced with "payment-to-charge average" for ASC services.

Section (3) is being removed because the information in this section is addressed in rules pertaining to the public health department.

 

            5. The department intends to adopt these rule amendments effective July 1, 2014.

 

            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: 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., May 22, 2014.

 

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.

 

11. With regard to the requirements of 2-4-111, MCA, the department has determined that the amendment of the above-referenced rules will not significantly and directly impact small businesses.

 

 

/s/ John C. Koch                                          /s/ Richard H. Opper                                   

John C. Koch                                               Richard H. Opper, Director

Rule Reviewer                                               Public Health and Human Services

           

Certified to the Secretary of State April 14, 2014.

 

 

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