Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                           HB 649.1
                                                HOUSE BILL NO. 649
   INTRODUCED BY M. CAFERRO, M. WEATHERWAX, C. KEOGH, J. HAMILTON, J. COHENOUR, J. WINDY
   BOY, D. HAWK, E. KERR-CARPENTER, A. BUCKLEY, M. MARLER, L. BISHOP, D. FERN, K. SULLIVAN, K.
   KORTUM, T. FRANCE, E. STAFMAN, M. THANE, F. SMITH, S. WEBBER, M. FOX, W. CURDY, C. POPE, J.
     ELLIS, M. DUNWELL, E. MCCLAFFERTY, J. LYNCH, K. ABBOTT, P. TUSS, D. HARVEY, S. STEWART
     PEREGOY, J. KARLEN, B. CARTER, Z. ZEPHYR, M. ROMANO, D. BAUM, E. MATTHEWS, S. HOWELL
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  A BILL FOR AN ACT ENTITLED: “AN ACT ESTABLISHING REIMBURSEMENT RATES FOR PROVIDERS
  COVERED BY THE RATE STUDY AUTHORIZED UNDER CHAPTER 401, LAWS OF 2021; REQUIRING
  IMPLEMENTATION OF RECOMMENDED RATE INCREASES; PROVIDING FOR INFLATIONARY
  INCREASES; AMENDING SECTIONS 53-6-113 AND 53-6-402, MCA; AND PROVIDING AN EFFECTIVE
  DATE.”
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           WHEREAS, the 2021 Legislature appropriated $2.75 million in House Bill 632 for a study of the
  reimbursement rates paid by the Department of Public Health and Human Services to providers of health care,
  behavioral health care, developmental disabilities, and senior and long-term care services, including nursing
  homes; and
           WHEREAS, the Governor and the Department of Public Health and Human Services used the
  appropriation to contract with the consulting firm of Guidehouse; and
           WHEREAS, Guidehouse produced two reports in 2022 identifying the rates necessary to cover the
  costs of providing services and detailing the extent to which the state's rates fall short of the benchmarks; and
           WHEREAS, the rate levels identified in the rate study reports specify how the state can improve its
  provider rates to account for the true costs of operating as a health care provider in this state; and
           WHEREAS, the insufficiency of reimbursement rates has resulted in the closure of 11 nursing homes
  and the loss of 857 skilled nursing facility beds in the state, with more nursing homes on the brink of closure;
  and
           WHEREAS, the insufficiency of reimbursement rates has contributed, and continues to contribute, to
  extensive and serious shortages of health care and behavioral health care providers; and
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68th Legislature 2023                                                                                           HB 649.1
          WHEREAS, the rate shortfalls and workforce shortages have forced the closure of many providers of
  services to Montanans with physical and developmental disabilities, including the closure of group homes; and
          WHEREAS, the Legislature recognizes the urgent need to fully reimburse providers at the rates
  identified in the provider rate studies.
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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          NEW SECTION. Section 1.            Establishment of certain provider reimbursement rates --
  inflationary increase. (1) The department shall reimburse providers of services reviewed as part of the 2021-
  2022 provider rate studies authorized under Chapter 401, Laws of 2021, and completed in 2022 in accordance
  with this section in order to:
          (a)      implement the rate increase recommendations resulting from the studies; and
          (b)      provide inflationary adjustments in subsequent years.
          (2)      For the fiscal year beginning July 1, 2023, the department shall:
          (a)      set the base daily rate for nursing homes at the base daily rate determined by the nursing
  facility rate study prior to applying the occupancy adjustment;
          (b)      except as provided in subsection (2)(c) and except for physician services reimbursed as
  provided in 53-6-125, set reimbursement rates for other provider types that were included in the rate studies at
  the benchmark rate identified for each service or provider type plus an inflationary factor equal to the increase
  in the consumer price index, U.S. city average, all urban consumers, for all items, as published by the bureau of
  labor statistics of the U.S. department of labor; and
          (c)      for any service or provider type for which the study identified a rate decrease, provide the
  increase appropriated for provider types not covered by the provider rate studies.
          (3)      In subsequent fiscal years, the department shall increase the rates for the providers and
  services covered under this section by an inflationary factor equal to the greater of 3% or the increase in the
  consumer price index, U.S. city average, all urban consumers, for all items, as published by the bureau of labor
  statistics of the U.S. department of labor.
          (4)      The department shall continue to supplement the base daily rate for nursing facility services
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68th Legislature 2023                                                                                            HB 649.1
  with add-on payments based on the quality of services provided and acuity of resident needs.
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          Section 2. Section 53-6-113, MCA, is amended to read:
          "53-6-113.      Department to adopt rules. (1) The department shall adopt appropriate rules necessary
  for the administration of the Montana medicaid program as provided for in this part and that may be required by
  federal laws and regulations governing state participation in medicaid under Title XIX of the Social Security Act,
  42 U.S.C. 1396, et seq., as amended.
          (2)        The department shall adopt rules that are necessary to further define for the purposes of this
  part the services provided under 53-6-101 and to provide that services being used are medically necessary and
  that the services are the most efficient and cost-effective available. The rules may establish the amount, scope,
  and duration of services provided under the Montana medicaid program, including the items and components
  constituting the services.
          (3)        (a) The department shall establish by rule the rates for reimbursement of services provided
  under this part. The Except as provided in subsection (3)(b), the department may in its discretion set rates of
  reimbursement that it determines necessary for the purposes of the program. In establishing rates of
  reimbursement, the department may consider but is not limited to considering:
          (a)(i)     the availability of appropriated funds;
          (b)(ii)    the actual cost of services;
          (c)(iii)   the quality of services;
          (d)(iv) the professional knowledge and skills necessary for the delivery of services; and
          (e)(v)     the availability of services.
          (b)        The department shall set rates subject to the rate study authorized by Chapter 401, Laws of
  2021, in accordance with the provisions of [section 1].
          (4)        The department shall specify by rule those professionals who may:
          (a)        deliver or direct the delivery of particular services; and
          (b)        deliver services by means of telehealth in accordance with 53-6-122.
          (5)        The department may provide by rule for payment by a recipient of a portion of the
  reimbursements established by the department for services provided under this part.
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68th Legislature 2023                                                                                                 HB 649.1
          (6)      (a) The department may adopt rules consistent with this part to govern eligibility for the
  Montana medicaid program, including the medicaid program provided for in 53-6-195. Rules may include but
  are not limited to financial standards and criteria for income and resources, treatment of resources, nonfinancial
  criteria, family responsibilities, residency, application, termination, definition of terms, confidentiality of applicant
  and recipient information, and cooperation with the state agency administering the child support enforcement
  program under Title IV-D of the Social Security Act, 42 U.S.C. 651, et seq.
          (b)      The department may not apply financial criteria below $15,000 for resources other than income
  in determining the eligibility of a child under 19 years of age for poverty level-related children's medicaid
  coverage groups, as provided in 42 U.S.C. 1396a(l)(1)(B) through (l)(1)(D).
          (c)      The department may not apply financial criteria below $15,000 for an individual and $30,000 for
  a couple for resources other than income in determining the eligibility of individuals for the medicaid program for
  workers with disabilities provided for in 53-6-195.
          (d)      (i) The department may not adopt rules or policies requiring a person who is eligible for
  medicaid pursuant to 53-6-131(1)(e)(ii)(A) to:
          (A)      make only a cash payment to qualify for medicaid under that subsection; or
          (B)      only incur medical expenses as a means of qualifying for medicaid under that subsection.
          (ii)     If a person eligible for medicaid under 53-6-131(1)(e)(ii)(A) is participating in a home and
  community-based services waiver, the department shall count as an eligible medical expense any medical
  service or item that a nonwaiver medicaid member is allowed to count as a medical expense to qualify for
  medicaid under 53-6-131(1)(e)(ii)(A).
          (iii)    Nothing in this subsection (6)(d) may be construed as preventing a person from making only a
  cash payment to qualify for medicaid pursuant to 53-6-131(1)(e)(ii)(A).
          (7)      The department may adopt rules limiting eligibility based on criteria more restrictive than that
  provided in 53-6-131 if required by Title XIX of the Social Security Act, 42 U.S.C. 1396, et seq., as may be
  amended, or if funds appropriated are not sufficient to provide medical care for all eligible persons.
          (8)      The department may adopt rules necessary for the administration of medicaid managed care
  systems. Rules to be adopted may include but are not limited to rules concerning:
          (a)      participation in managed care;
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68th Legislature 2023                                                                                              HB 649.1
          (b)      selection and qualifications for providers of managed care; and
          (c)      standards for the provision of managed care.
          (9)      Subject to subsection (6), the department shall establish by rule income limits for eligibility for
  extended medical assistance of persons receiving section 1931 medicaid benefits, as defined in 53-4-602, who
  lose eligibility because of increased income to the assistance unit, as that term is defined in the rules of the
  department, as provided in 53-6-134, and shall also establish by rule the length of time for which extended
  medical assistance will be provided. The department, in exercising its discretion to set income limits and
  duration of assistance, may consider the amount of funds appropriated by the legislature.
          (10)     Unless required by federal law or regulation, the department may not adopt rules that exclude a
  child from medicaid services or require prior authorization for a child to access medicaid services if the child
  would be eligible for or able to access the services without prior authorization if the child was not in foster care."
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          Section 3. Section 53-6-402, MCA, is amended to read:
          "53-6-402.    Medicaid-funded home and community-based services -- waivers -- funding
  limitations -- populations -- services -- providers -- long-term care preadmission screening -- powers
  and duties of department -- rulemaking authority. (1) The department may obtain waivers of federal
  medicaid law in accordance with section 1915 of Title XIX of the Social Security Act, 42 U.S.C. 1396n, and
  administer programs of home and community-based services funded with medicaid money for categories of
  persons with disabilities or persons who are elderly.
          (2)      The department may seek and obtain any necessary authorization provided under federal law
  to implement home and community-based services for seriously emotionally disturbed children pursuant to a
  waiver of federal law as permitted by section 1915 of Title XIX of the Social Security Act, 42 U.S.C. 1396n(c).
  The home and community-based services system shall strive to incorporate the following components:
          (a)      flexibility in design of the system to attempt to meet individual needs;
          (b)      local involvement in development and administration;
          (c)      encouragement of culturally sensitive and appropriately trained mental health providers;
          (d)      accountability of recipients and providers; and
          (e)      development of a system consistent with the state policy as provided in 52-2-301.
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68th Legislature 2023                                                                                            HB 649.1
          (3)      The department may, subject to the terms and conditions of a federal waiver of law, administer
  programs of home and community-based services to serve persons with disabilities or persons who are elderly
  who meet the level of care requirements for one of the categories of long-term care services that may be
  funded with medicaid money. Persons with disabilities include persons with physical disabilities, chronic mental
  illness, developmental disabilities, brain injury, or other characteristics and needs recognized as appropriate
  populations by the U.S. department of health and human services. Programs may serve combinations of
  populations and subsets of populations that are appropriate subjects for a particular program of services.
          (4)      The provision of services to a specific population through a home and community-based
  services program must be less costly in total medicaid funding than serving that population through the
  categories of long-term care facility services that the specific population would be eligible to receive otherwise.
          (5)      The department may initiate and operate a home and community-based services program to
  more efficiently apply available state general fund money, other available state and local public and private
  money, and federal money to the development and maintenance of medicaid-funded programs of health care
  and related services and to structure those programs for more efficient and effective delivery to specific
  populations.
          (6)      The department, in establishing programs of home and community-based services, shall
  administer the expenditures for each program within the available state spending authority that may be applied
  to that program. In establishing covered services for a home and community-based services program, the
  department shall establish those services in a manner to ensure that the resulting expenditures remain within
  the available funding for that program. To the extent permitted under federal law, the department may adopt
  financial participation requirements for enrollees in a home and community-based services program to foster
  appropriate utilization of services among enrollees and to maintain fiscal accountability of the program. The
  department may adopt financial participation requirements that may include but are not limited to copayments,
  payment of monthly or yearly enrollment fees, or deductibles. The financial participation requirements adopted
  by the department may vary among the various home and community-based services programs. The
  department, as necessary, may further limit enrollment in programs, reduce the per capita expenditures
  available to enrollees, and modify and reduce the types and amounts of services available through a home and
  community-based services program when the department determines that expenditures for a program are
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68th Legislature 2023                                                                                            HB 649.1
  reasonably expected to exceed the available spending authority.
          (7)      The department may consider the following populations or subsets of populations for home and
  community-based services programs:
          (a)      persons with developmental disabilities who need, on an ongoing or frequent basis, habilitative
  and other specialized and supportive developmental disabilities services to meet their needs of daily living and
  to maintain the persons in community-integrated residential and day or work situations;
          (b)      persons with developmental disabilities who are 18 years of age and older and who are in need
  of habilitative and other specialized and supportive developmental disabilities services necessary to maintain
  the persons in personal residential situations and in integrated work opportunities;
          (c)      persons 18 years of age and older with developmental disabilities and chronic mental ill