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Montana Administrative Register Notice 37-582 No. 8   04/26/2012    
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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 37.85.212 and 37.86.105 pertaining to resource based relative value scale (RBRVS)

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NOTICE OF PUBLIC HEARING ON PROPOSED AMENDMENT

 

TO:  All Concerned Persons

 

            1.  On May 16, 2012, 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 May 9, 2012, 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:

 

            37.85.212  RESOURCE BASED RELATIVE VALUE SCALE (RBRVS) REIMBURSEMENT FOR SPECIFIED PROVIDER TYPES  (1)  For purposes of this rule, the following definitions apply:

            (a) remains the same.

            (b)  "Conversion factor" means a dollar amount by which the relative value units, or the anesthesia units for anesthesia services, are multiplied in order to establish the RBRVS fee for a service.  There are four conversion factor categories:

            (i)  physician services, which applies to the following health care professionals listed in (2):  physicians, mid-level practitioners, podiatrists, public health clinics, independent diagnostic testing facilities (IDTF), qualified Medicare beneficiary (QMB) and early and periodic screening, diagnostic and treatment (EPSDT) chiropractors, laboratory and x-ray services, family planning clinics, and dentists providing medical services.  The conversion factor for physician services for state fiscal year 2012 2013 is $33.23 $31.86;

            (ii)  allied services, which applies to the following health care professionals listed in (2):  physical therapists, occupational therapists, speech therapists, optometrists, opticians, audiologists, and school-based services.  The conversion factor for allied services for state fiscal year 2012 2013 is $23.24 $23.11;

            (iii)  mental health services, which applies to the following health care professionals listed in (2):  licensed psychologists, licensed clinical social workers, and licensed professional counselors.  The conversion factor for mental health services for state fiscal year 2012 2013 is $22.23 $22.80; and

            (iv)  anesthesia services, which applies to anesthesia services.  The conversion factor for anesthesia services for state fiscal year 2012 2013 is $27.55.

            (c) through (h) remain the same.

            (i)  "Resource based relative value scale (RBRVS)" means the most current version of the Medicare resource based relative value scale contained in the Medicare Physician Fee Schedule adopted by the Centers for Medicare and Medicaid Services (CMS) of the U.S. Department of Health and Human Services and published at 75 Federal Register 228, 73504 (November 29, 2010) and corrected at 76 Federal Register 7, 1670 (January 11, 2011) 76 Federal Register 228, 73026 (November 28, 2011), effective January 1, 2011 2012 which is adopted and incorporated by reference.  A copy of the Medicare Physician Fee Schedule may be obtained from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.  The RBRVS reflects RVUs for estimates of the actual effort and expense involved in providing different health care services.

            (j) through (4) remain the same.

            (5)  For state fiscal year 2012 2013, policy adjustors will be used to accomplish the targeted funding allocations.  The department's list of services affected by policy adjustors through September 1, 2012 July 1, 2013, is adopted and incorporated by reference.  The list is available from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT  59620-2951.

            (6) through (8)(a) remain the same.

            (b)  For state fiscal year 2012 2013, the by report rate is 47% 46% of the provider's usual and customary charges.

            (9) through (11) remain the same.

            (12)  Subject to the provisions of (12)(a), when billed with a modifier, payment for procedures established under the provisions of (7) is a percentage of the rate established for the procedures.

            (a)  The methodology to determine the specific percent for each modifier is as follows:

            (i) and (ii) remain the same.

            (iii)  The department's list of the specific percents for the modifiers used by Medicaid as amended through August 1, 2012 July 1, 2013 is adopted and incorporated by reference.  A copy of the list is available on request from the Department of Public Health and Human Services, Health Resources Division, 1400 Broadway, P.O. Box 202951, Helena, MT 59620-2951.

            (iv) through (14) remain the same.

 

AUTH:  53-2-201, 53-6-113, MCA

IMP:     53-2-201, 53-6-101, 53-6-111, 53-6-113, 53-6-125, MCA

 

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

            (2)  Reimbursement for physician services, except as otherwise provided in this rule, is the lower of:

            (a)  the provider's usual and customary charges (billed charges); or

            (b)  the department's fee schedule maintained in accordance with the methodologies described in ARM 37.85.212; or.

            (3)  Reimbursement for services of a psychiatrist, except as otherwise provided in this rule, is the lower of:

            (a) remains the same.

            (b)  to address problems of access to mental health services, subject to funding, mental health services performed by a psychiatrist are reimbursed up to 125% of the reimbursement for physicians provided in accordance with the methodologies described in ARM 37.85.212.

            (4)  Reimbursement to physicians for physician-administered drugs which are billed under HCPCS "J" and "Q" codes is made according to the department's fee schedule or the provider's usual and customary charge, whichever is lower.  The department's fee schedule is updated at least annually based upon:

            (a)  the Medicare Average Sale Price (ASP) set at 42 CFR 414.904 (2011 2012) if there is an ASP fee;

            (b) through (6) remain the same.

 

AUTH:  53-6-101, 53-6-113, MCA

IMP:     53-6-101, 53-6-113, MCA

 

            4.  STATEMENT OF REASONABLE NECESSITY

 

The Department of Public Health and Human Services (the department) is proposing amendments to ARM 37.85.212 and 37.86.105.  This rule implements Montana Medicaid's resource based relative value scale (RBRVS) reimbursement method for specified provider types.  Montana Medicaid uses the RBRVS rate system to calculate the fees Montana Medicaid pays to 20 types of health care professionals.

 

The Montana Medicaid program is administered by the department to provide health care to Montana's qualified low income and disabled residents (hereinafter "Medicaid clients").  It is a public assistance program paid for with state and federal funds appropriated to pay health care providers (hereinafter "Medicaid providers") for the covered medical services they deliver to Medicaid clients.  The Legislature delegates authority to the department to set the reimbursement rates Montana pays Medicaid providers for Medicaid client's covered services.  See 53-6-106(8) and 53-5-113, MCA.

 

The RBRVS system is used nationwide by most health plans, including Medicare and Medicaid.  The relative value unit component of the RBRVS system is revised annually by the Centers for Medicare and Medicaid Services (CMS) and the American Medical Association.  The department annually proposes to amend ARM 37.85.212(1)(i) to adopt current relative value units (RVUs).  An RVU is a numerical value assigned to each medical procedure.  RVUs are based on physician work, practice expense, and malpractice insurance expenses and express the relative effort and expense expended to provide one procedure compared with another.  RVUs are added for new procedures and the RVUs of particular procedures may increase or decrease from year to year.

 

The department annually calculates conversion factors for allied services, mental health services, and anesthesia services.  These conversion factors are calculated by dividing the Montana Legislature's appropriation for Medicaid client's health care during the upcoming SFY by the estimated total units of health care, expressed as total RVUs paid, to be provided during the upcoming SFY.  The resulting quotient is the conversion factor.  The RVU for a procedure multiplied by the conversion factor is the fee paid for the procedure.  The conversion factor for licensed physicians is set by 53-6-124 through 53-6-127, MCA and the fees paid are funded by legislative appropriations.

 

The fee paid for a procedure by a health plan is calculated by multiplying that procedure's RVU by the health plan's conversion factor.  Montana Medicaid's conversion factors for physicians' services, allied service, mental health services, and anesthesia services are published in ARM 37.85.212(b)(i) through (iv).  The department for SFY 2013 is proposing to maintain fees at SFY 2012 levels in aggregate.  Therefore, the proposed conversion factor amounts for SFY 2013 are: physician services ($31.86); allied services ($23.11), mental health services ($22.80), and anesthesia services ($27.55).

 

ARM 37.85.212

 

ARM 37.85.212(7) through (14) address rates for services without RVUs.  The amendment to ARM 37.85.212(8) sets the by-report rate for SFY 2013 that applies if no RVU is specified in the Medicare Physician Fee Schedule or if an alternative rate exists.  The by-report percentage is determined by dividing the amount that is reimbursed for services by the amount billed for the services.  For SFY 2013 the Department is proposing to amend the by-report percentage to 46%.

 

The department will continue the process of modeling fees for SFY 2013.  This process will be complete prior to the rule hearing date May 16, 2012.  It may be necessary to change the rates for conversion factors and/or the by-report percentage as a result of this modeling process.  If so, these changes will be reflected in the department's testimony at the public hearing and second notice.

 

ARM 37.86.105

 

ARM 37.86.105(3) addresses the reimbursement of psychiatrists when performing mental health services.  Clarification to this rule is needed to insure that it is clear that psychiatrists do not receive enhanced reimbursement when performing nonmental health services.

 

In ARM 37.86.105(2) a small grammatical correction was made by placing the word "or" in the correct sequence.

ARM 37.86.105 (4) addresses the reimbursement of physician administered drugs.  The department follows the reimbursement methodology used by Medicare for many physician administered drugs.  The amendment to ARM 37.86.105(4) allows the department to update the fees for these drugs by using the most current information provided by Medicare.

 

The department at ARM 37.85.212 and ARM 37.86.105 reflect the requirements of 17-7-140, MCA.  All fees paid to Medicaid providers for services to Medicaid clients during SFY 2013 are a result of funds appropriated by the 62nd Montana Legislative Session and, except as limited by 17-7-140(2), MCA, those appropriations are subject to the Governor's authority, pursuant to 17-7-140, MCA, to reduce agency spending when the appropriated revenue appears to exceed the collected revenue.

 

Rate increases for SFY 2013 were not included in the department's budget and there is no appropriation for rate increases by the 62nd legislature.

 

The conversion factors and fees established by this rule are set in compliance with Title 53 and Title 17.  The department interprets 53-6-124 MCA and 53-6-125, MCA to mean that fees for services performed by physicians using the RBRVS reimbursement system will in aggregate remain at a minimum at the SFY 2010 levels.  This assumes that as a result of changes to the relative value units, fees for some services will increase and some will decrease.  However, in aggregate, increases will offset decreases and the department will comply with the requirements of 53-6-124, MCA.

 

The department also considered the impact the fees will have on efficiency, economy, quality of care, and access and concluded that the fees are still sufficient to meet the requirements of 42 USC 1396a(a)(30(A).

 

Fiscal Impact

 

The estimated cumulative fiscal impact of these rules is:

 

                        Total Cost                  State General Fund             Federal Match

 

                        SFY 2013      $0                                $0                                            $0

 

This rule amendment is estimated to impact 13,400 Medicaid providers and 108,000 Medicaid clients.

 

            5.  The department intends the proposed rule changes to be applied effective July 1, 2012.

 

            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 24, 2012.

 

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, apply and have been fulfilled.

 

 

 

/s/ John Koch                                               /s/ Anna Whiting Sorrell                            

Rule Reviewer                                             Anna Whiting Sorrell, Director

                                                                        Public Health and Human Services

           

Certified to the Secretary of State April 16, 2012.

 

 

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