BEFORE THE DEPARTMENT OF PUBLIC

HEALTH AND HUMAN SERVICES OF THE

STATE OF MONTANA

 

In the matter of the amendment of ARM 37.40.307 and 37.40.361, and the repeal of ARM 37.40.309 pertaining to nursing facility reimbursement rates for state fiscal year 2019

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT AND REPEAL

 

TO: All Concerned Persons

 

            1. On June 14, 2018, at 3:00 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 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 the Department of Public Health and Human Services no later than 5:00 p.m. on June 1, 2018, to advise us of the nature of the accommodation that you need. Please contact Todd Olson, 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:

 

            37.40.307 NURSING FACILITY REIMBURSEMENT (1) remains the same.

            (2) Effective July 1, 2001, and in subsequent rate years, nursing facilities will be reimbursed using a price-based reimbursement methodology. The rate for each facility will be determined using the operating component defined in (2)(a) and the direct resident care component defined in (2)(b):

            (a) through (c) remain the same.

            (d) The total payment rate available for the period July 1, 2017 July 1, 2018 through June 30, 2018 June 30, 2019 will be the rate as computed in (2), plus any additional amount computed in ARM 37.40.311 and 37.40.361.

            (3) Providers who, as of July 1 of the rate year, have not filed with the department a cost report covering a period of at least six months participation in the Medicaid program in a newly constructed facility will have a rate set at the statewide median price as computed on July 1, 2017 July 1, 2018. Following a change in provider as defined in ARM 37.40.325, the per diem rate for the new provider will be set at the previous provider's rate, as if no change in provider had occurred.

            (4) through (10) remain the same.

            (11) Providers must bill for all services and supplies in accordance with the provisions of ARM 37.85.406. The department's fiscal agent will pay a provider on a monthly basis the amount determined under these rules upon receipt of an appropriate billing which reports the number of patient days of nursing facility services provided to authorized Medicaid recipients during the billing period.

            (a) and (12) remain the same.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP:  53-6-101, 53-6-111, 53-6-113, MCA

 

            37.40.361 DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE REPORTING/ADDITIONAL PAYMENTS INCLUDING LUMP SUM PAYMENTS FOR DIRECT CARE AND ANCILLARY SERVICES WORKERS' WAGE AND BENEFIT INCREASES (1) Effective for the period July 1, 2017 each state fiscal year and for the six months thereafter, nursing facilities must report to the department actual hourly wage and benefit rates paid for all direct care and ancillary services workers or the lump sum payment amounts for all direct care and ancillary services workers that will receive the benefit of the increased funds. The reported data will be used by the department for the purpose of comparing types and rates of payment for comparable services and tracking distribution of direct care wage funds to designated workers.

            (2) The department will pay Medicaid certified nursing care facilities located in Montana that submit an approved request to the department a lump sum payment in addition to the amount paid as provided in ARM 37.40.307 and 37.40.311 to their computed Medicaid payment rate to be used only for wage and benefit increases or lump sum payments for direct care or ancillary services workers in nursing facilities.

            (a) The department will determine the lump sum payments, twice a year commencing July 1, 2017 July 1 of the state fiscal year, and again in six months from that date as a pro rata share of appropriated funds allocated for increases in direct care and ancillary services workers' wages and benefits or lump sum payments to direct care and ancillary services workers.

            (b) To receive the direct care and/or ancillary services workers' lump sum payment, a nursing facility must submit for approval a request form to the department stating how the direct care and ancillary services workers' lump sum payment will be spent in the facility to comply with all statutory requirements. The facility must submit all of the information required on a form to be developed by the department in order to continue to receive subsequent lump sum payment amounts for the entire rate year. The form for wage and benefit increases will request information including, but not limited to:

            (i) the number by category of each direct care and ancillary services workers that will receive the benefit of the increased funds, if these funds will be distributed in the form of a wage increase;

            (ii) the actual per hour rate of pay before benefits and before the direct care wage increase has been implemented for each worker that will receive the benefit of the increased funds;

            (iii) through (v) remain the same.

            (c) If these funds will be used for the purpose of providing lump sum payments (i.e., bonus, stipend, or other payment types) to direct care and ancillary services workers in nursing care facilities the form will request information including, but not limited to:

            (i) the number by category of each direct care and ancillary services worker that will receive the benefit of the increased funds;

            (ii) through (3) remain the same.

 

AUTH: 53-2-201, 53-6-113, MCA

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

 

4. The department proposes to repeal the following rule:

 

37.40.309 NURSING FACILITY REIMBURSEMENT is found on page 37-8763 of the Administrative Rules of Montana.

 

AUTH: 53-2-201, 53-6-113, MCA

IMP: 53-2-201, 53-6-101, 53-6-113, MCA

 

            5. STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (department) proposes amending ARM 37.40.307 and ARM 37.40.361 pertaining to revising nursing facility reimbursement rates for the upcoming state fiscal year (SFY) 2019, effective July 1, 2018.

 

The proposed amendments to the rules are as follows:

 

ARM 37.40.307

 

The proposed amendment to (2)(d) updates the SFY 2018 reference (July 1, 2017, through June 30, 2018) to SFY 2019 (July 1, 2018, through June 30, 2019). This amendment is necessary for the department to provide notice of the current period for funding of Medicaid nursing facility provider rates.

 

The proposed amendment to (3) updates the SFY 2018 reference to SFY 2019. This amendment is necessary for the department to provide notice of the current period Medicaid nursing facility statewide median price.

 

Rate calculations include HB2 and HB618 funding appropriated by the 65th Legislative Session, annualized SFY 2018 Medicaid-paid days, and individual facility case mix index (resident acuity) to determine nursing facility providers' reimbursement according to the methodology outlined in (2), (2)(a), and (2)(b) of this rule.

 

The term "monthly basis" in (11) is proposed for removal, and is a necessary amendment, because providers can now bill on a weekly or monthly basis, which also changes the potential payment frequency from the department's fiscal agent to the provider.

 

ARM 37.40.361

 

The Medicaid adjustment for nursing facility direct care wages is calculated annually. Previously, the department changed the state fiscal year referenced in the rule annually.  The department proposes replacing the reference to the individual state fiscal year to that of a general fiscal year reference so this amendment will be unnecessary in the future.

 

The word "increased" is proposed for removal, and is a necessary change, because funding increases for direct care wages do not occur every state fiscal year.

 

ARM 37.40.309

 

This rule was promulgated for the nursing facility rate reductions which became effective January 1, 2018. The department finds it necessary to propose repeal of this rule since it applied to rates between January 1 and June 30, 2018, making it obsolete after June 30, 2018.

 

Fiscal Impact

 

Nursing facility reimbursement will include an increase of 6.34% in provider rates for SFY 2019. The estimated total funding available for SFY 2019 for nursing facility reimbursement is estimated at $193,476,426 and is comprised of combined state funds, federal funds, and patient contributions. These amounts do not include at risk provider funds or direct care wage funding.

 

Medicaid-paid days for SFY 2019 are estimated at 1,002,018, which is based on the estimates of Medicaid-paid days from SFY 2018.

 

The SFY 2019 appropriated funding for lump-sum payments to providers for direct care and ancillary workers is $6,970,153 for the nursing facility direct care worker wage program, and $3,943,053 for CNAs only direct care worker wages program.

 

Seventy-one nursing facility providers participated in the Medicaid nursing facility payment program and approximately 4,200 recipients received services in nursing facilities under Medicaid.

 

            6. The department intends the proposed rule amendments and rule repeal to be applied effective July 1, 2018.

 

7. 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:  Todd Olson, 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., June 22, 2018.

 

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

 

9. 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 7 above or may be made by completing a request form at any rules hearing held by the department.

 

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 and repeal of the above-referenced rules will significantly and directly impact small businesses.

 

12. The department has determined that the proposed changes in this notice are not subject to the performance-based measures requirement of 53-6-196, MCA.

 

 

 

/s/ Geralyn Driscoll                                      /s/ Sheila Hogan                                         

Geralyn Driscoll                                           Sheila Hogan, Director

Rule Reviewer                                             Public Health and Human Services

 

 

Certified to the Secretary of State May 15, 2018.