BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of 37.85.406, 37.86.101, 37.86.105, 37.86.202, and 37.86.205 pertaining to early elective delivery and ancillary services clarification

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO: All Concerned Persons

 

            1. On August 13, 2014, at 11:00 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 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 August 6, 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:

 

            37.85.406 BILLING, REIMBURSEMENT, CLAIMS PROCESSING, AND PAYMENT (1) Providers must submit clean claims to Medicaid within the latest of:

            (a) remains the same.

            (b) six months from the date on the Medicare explanation of benefits approving the service, if the Medicare claim was timely filed and the recipient member was Medicare eligible at the time the Medicare claim was filed; or

            (c) through (10) remain the same.

            (11) Providers are required to accept, as payment in full, the amount paid by the Montana Medicaid program for a service or item provided to an eligible Medicaid recipient member in accordance with the rules of the department. Providers shall must not seek any payment in addition to or in lieu of the amount paid by the Montana Medicaid program from a recipient member or his representative, except as provided in these rules. A provider may bill a recipient member for the copayments specified in ARM 37.83.826 and 37.85.204 and may bill certain recipients members for amounts above the Medicare deductibles and coinsurance as allowed in ARM 37.83.825.

            (a) A provider may bill a recipient member for noncovered services if the provider has informed the recipient member in advance of providing the services that Medicaid will not cover the services and that the recipient member will be required to pay privately for the services, and if the recipient member has agreed to pay privately for the services. For purposes of (11)(a), noncovered services are services that may not be reimbursed for the particular recipient member by the Montana Medicaid program under any circumstances and covered services are services that may be reimbursed by the Montana Medicaid program for the particular recipient member if all applicable requirements, including medical necessity, are met.

            (b) Except as provided in this rule, a provider may not bill a recipient member after Medicaid has denied payment for covered services because the services are not medically necessary for the recipient member.

            (i) A provider may bill a recipient member for covered but medically unnecessary services, including services for which Medicaid has denied payment for lack of medical necessity, if the provider specifically informed the recipient member in advance of providing the services that the services are not considered medically necessary under Medicaid criteria, that Medicaid will not pay for the services and that the recipient member will be required to pay privately for the services, and the recipient member has agreed to pay privately for the services. The agreement to pay privately must be based upon definite and specific information given by the provider to the recipient member indicating that the service will not be paid by Medicaid. The provider may not bill the recipient member under this exception when the provider has informed the recipient member only that Medicaid may not pay or where the agreement is contained in a form that the provider routinely requires recipients members to sign.

            (ii) An ambulance service provider may bill a recipient member after Medicaid has denied payment for lack of medical necessity.

            (c) A provider may not bill a recipient member for services as a private pay patient if, prior to provision of the services, the recipient member informed the provider of Medicaid eligibility, unless, prior to provision of the services, the provider informed the recipient member of its refusal to accept Medicaid and the recipient member agreed to pay privately for the services.

            (d) In service settings where the recipient is admitted or accepted as a Medicaid recipient by a provider, facility, institution or other entity that arranges provision of services by other or ancillary providers, all other or ancillary providers will be deemed to have accepted the individual as a Medicaid recipient and may not bill the recipient for the services unless, prior to provision of services, the particular provider informed the recipient of its refusal to accept Medicaid and the recipient agreed to pay privately for the services. In service settings where the individual is accepted as a Medicaid member by an arranging provider including, but not limited to, a facility, institution, or other entity that arranges for provision of services by other providers, all other providers performing services for the individual in conjunction with the arranging provider will be deemed to have accepted the individual as a Medicaid member.

            (i) The only exception to (d) is if the other provider, prior to providing services, informed the individual of their refusal to accept Medicaid and the individual agreed to pay privately for the services. The other provider may then bill the individual for services.

            (e) The provider may not bill a recipient member for services when Medicaid does not pay as a result of the provider's failure to comply with applicable enrollment, prior authorization, billing, or other requirements necessary to obtain payment.

            (f) Acceptance of an recipient individual as a Medicaid recipient member applies to all services provided by the provider to the recipient member, except as provided in (11)(a) or (b). A provider may not accept Medicaid payment for some covered services but refuse to accept Medicaid for other covered services. Subject to the requirements of ARM 37.85.402(4), a provider may terminate acceptance of Medicaid for a recipient member in accordance with the provider's professional responsibility, by informing the recipient member of the termination and the effect of the termination on provision of and payment for any further services.

            (g) If an individual has agreed prior to receipt of services that payment will be made from a source other than Medicaid but later is determined retroactively eligible for Medicaid, the provider may choose to accept the individual as a Medicaid recipient member with respect to the services or to seek payment in accordance with the original payment agreement.

            (h) A provider that bills Medicaid for services rendered will be deemed to have accepted the individual as a Medicaid recipient member.

            (i) Nothing in this rule is intended to permit a provider to refuse to accept an individual as a Medicaid recipient member where the provider is otherwise required by law to accept an individual as a Medicaid recipient member.

            (12) In the event that a provider of services is entitled to a retroactive increase of payment for services rendered, the provider shall must submit a claim within 180 days of the written notification of the retroactive increase or the provider forfeits any rights to the retroactive increase.

            (13) The Montana Medicaid program shall will make payments directly to the individual provider of service unless the individual provider is required, as a condition of his employment, to turn his fees over to his employer.

            (a) Exceptions to the above requirement may, at the discretion of the department, be made for transportation and/or per diem costs incurred to enable a recipient member to obtain medically appropriate services.

            (14) through (17) remain the same.

            (18) Except as otherwise provided in the rules of the department which pertain to the method of determining payment rates for claims of recipients members who have Medicare and Medicaid coverage (cross-over claims), the Medicaid allowed amount for Medicare covered services is:

            (a) through (c) remain the same.

            (d) for services to recipients members eligible to receive both Medicare and Medicaid benefits, an amount not to exceed the Medicare allowed amount in instances where the Medicaid fee is higher than the Medicare allowable.

            (19) through (21) remain the same.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-131, 53-6-141, 53-6-149, MCA

 

            37.86.101 PHYSICIAN SERVICES, DEFINITIONS (1)  "Early elective delivery" means either a nonmedically necessary labor induction or cesarean section that is performed prior to 39 weeks and 0/7 days gestation.

            (1) through (7) remain the same, but are renumbered (2) through (8).

 

AUTH: 53-6-113, MCA

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

 

            37.86.105 PHYSICIAN SERVICES, REIMBURSEMENT/GENERAL REQUIREMENTS AND MODIFIERS (1) through (8) remain the same.

            (9) Effective October 1, 2014, Medicaid reimbursement for child delivery will not be made unless the claim meets the following coding requirements. Claims for child delivery must have one of the following line procedure code modifiers or the line will be denied:

      (a) CG-cesarean section/induction prior to 39 weeks;

            (b) GK-spontaneous vaginal delivery prior to 39 weeks (noninduced);

            (c) KX-vaginal delivery at or after 39 weeks (induced or not induced; or

            (d) SC - cesarean section at or after 39 weeks.

            (10) Effective October 1, 2014, the department will reduce reimbursement to physicians that perform early elective inductions or cesarean sections prior to 39 weeks and 0/7 days gestation or nonmedically necessary cesarean sections at any gestation by not including the maternity policy adjustor as part of the reimbursement for the service.

            (11) Confirmation of weeks gestation must be determined by the American Congress of Obstetricians and Gynecologists guidelines. At least one of the following guideline standards must be met:

            (a) fetal heart tones must have been documented for 20 weeks by nonelectronic fetoscope or 30 weeks by Doppler;

            (b) 36 weeks since a positive serum or urine pregnancy test that was performed by a reliable laboratory; or

            (c) an ultrasound prior to 20 weeks gestation that confirms the gestational age of at least 39 weeks.

            (12) If pregnancy care was not initiated prior to 20 weeks gestation, the gestational age may be documented from first day of the last menstrual period (LMP).

 

AUTH: 53-6-101, 53-6-113, MCA

IMP:     53-6-101, 53-6-113, MCA

 

            37.86.202 MID-LEVEL PRACTITIONER SERVICES, DEFINITIONS For the purpose of these rules, the following definitions will apply:

            (1) through (3) remain the same.

            (4) "Early elective delivery" means either a nonmedically necessary labor induction or cesarean section that is performed prior to 39 weeks and 0/7 days gestation.

            (4) through (15) remain the same, but are renumbered (5) through (16).

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-6-101, MCA

 

            37.86.205 MID-LEVEL PRACTITIONER SERVICES, REQUIREMENTS AND REIMBURSEMENT (1) through (10) remain the same.

            (11) Effective October 1, 2014, Medicaid reimbursement for child delivery will not be made unless the claim meets the following coding requirements. Claims for child delivery must have one of the following line procedure code modifiers or the line will be denied:

(a) CG-cesarean section/induction prior to 39 weeks;

(b) GK–spontaneous vaginal delivery prior to 39 weeks (noninduced);

(c) KX–vaginal delivery at or after 39 weeks (induced or not induced); or

            (d) SC–cesarean section at or after 39 weeks.

            (12) Effective October 1, 2014, the department will reduce reimbursement to mid-level practitioners that perform early elective inductions or cesarean sections prior to 39 weeks and 0/7 days gestation or nonmedically necessary cesarean sections at any gestation by not including the maternity policy adjustor as part of the reimbursement for the service.

            (13) Confirmation of weeks gestation must be determined by the American Congress of Obstetricians and Gynecologists guidelines. At least one of the following guideline standards must be met:

            (a) fetal heart tones must have been documented for 20 weeks by nonelectronic fetoscope or 30 weeks by Doppler;

            (b) 36 weeks since a positive serum or urine pregnancy test that was performed by a reliable laboratory; or

            (c) an ultrasound prior to 20 weeks gestation that confirms the gestational age of at least 39 weeks.

            (14) If pregnancy care was not initiated prior to 20 weeks gestation, the gestational age may be documented from first day of the last menstrual period (LMP).

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:     53-6-101, MCA

 

            4. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) is proposing to amend ARM 37.85.406, 37.86.101, 37.86.105, 37.86.202, and 37.86.205. This proposed amendment is necessary protect infants and will result in healthier infants at birth. Supporting 39-week gestations will result in fewer stays in the Neonatal Intensive Care Unit (NICU) and other negative health results from early delivery of the infant. The American Congress of Obstetricians and Gynecologists (ACOG), the National Quality Forum, the Leapfrog Group, the March of Dimes, and the Joint Commission have identified the reduction of early deliveries as a key quality indicator for maternal child health.  The proposed amendments will encourage providers to follow federally recommended 39-week gestation policy.

 

Where applicable, the term "recipients" has been replaced with the term "members" throughout all of the proposed rules in this rulemaking. This is necessary to be consistent with department terminology for those persons receiving Medicaid services.

 

ARM 37.85.406

 

The department is proposing an amendment to clarify other provider requirements when services for a Medicaid member are organized by an arranging provider.

 

ARM 37.86.101 and 37.86.202

 

The department is proposing to add the definition for the term "early elective delivery."

 

ARM 37.86.105 and 37.86.205

 

Elective inductions, cesarean sections, and early deliveries all increase the risks to both mother and infant, and there is no evidence that they confer any health benefits in the absence of medical necessity.  Montana Medicaid, as the payer of more than one-third of the births in Montana, is in a key position to contribute to the reduction of elective early deliveries. These proposed amendments are necessary to define these elective deliveries and set the guidelines for reimbursement changes that will protect the health of persons eligible for Montana Medicaid benefits.

 

Fiscal Impact

 

No fiscal impact is expected for the proposed amended rules.

 

            5. The department intends to adopt these proposed amendments effective October 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., August 21, 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 July 14, 2014.