First Amended Notice of Intent to Amend Rules Under the Good Cause Exemption

Minnesota Department of Human Services First Amended Notice of Intent to Amend Rules Under the Good Cause Exemption Proposed Exempt Amendments to Permanent Rules Relating to Medical Assistance Payments for Mental Health Services, Part 9505.0323 Governor s Tracking No: AR 441 Why is DHS adopting these rules? For mental health services to be eligible for payment under Minnesota s Medicaid program ( medical assistance ), the services must meet the various requirements stated in Minnesota Rule Part 9505.0323 (the mental health services rules ). When the rules were written, there were no required, uniform standards regarding how individual mental health services are defined, and how information about services is exchanged between health care providers and group purchasers of health care. Under the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 ( HIPAA ), Congress required that all electronic exchanges of health care data use a common format and uniform definitions of medical services. 42 U.S.C. 242k(k). In 2000, regulations were issued identifying the required systems standards and uniform medical codes. 45 C.F.R. 162.1000, 162.1002(b)(1). For mental health services, the federallyadopted uniform code is the Current Procedural Technology, 4 th Edition ( CPT ). 1 More recently, Minnesota legislation was enacted that takes a bold, first-in-the-nation approach by requiring that all health care providers and group purchasers exchange claims and eligibility information electronically. Minn. Stat. 62J.536. The requirements of the state law take effect in two phases, with the second effective date occurring on July 15, 2009. At that time, the federal requirements will apply to all transmittals of health care information between health care providers and group purchasers in Minnesota. Also under the state law, the Minnesota Department of Health is in the process of promulgating a series of state rules known as uniform companion guides. Minn. Stat. 62J.536. There are two pertinent companion guides for purposes of this notice, which govern professional and institutional claims transactions and were promulgated on June 16, 2008 (collectively, the uniform companion guides ). The uniform companion guides contain a series of principles to guide the selection and use of [the CPT] in connection with Minnesota electronic health care claim transactions. 2 As both a major health care provider and purchaser, DHS is required to develop systems and processes to ensure that its transmittals of health care information comply with the federal and state uniformity requirements. This includes ensuring that DHS own rules governing medical assistance coverage of mental health services do not conflict with the use of the CPT to report mental health services for billing purposes, and do not conflict with the uniform companion guides. Since the rules preceded the uniformity requirements, the rules conflict with the uniformity requirements in some respects. The purpose of this rulemaking is to conform the mental health services rules to the CPT and the uniform companion guides. 1 The CPT is a standardized system of five-digit codes that health care providers use to report medical services and procedures to payers for reimbursement. The American Medical Association maintains and publishes the code. 2 The uniform companion guides are meant to supplement, not contradict, the CPT. See Minnesota Uniform Companion Guide for the Implementation of the Health Care Claim - Professional Electronic Transactions, July 15, 2008 ( Minnesota Companion Guide (Professional) ), p. 2; Minnesota Uniform Companion Guide for the Implementation of the Health Care Claim - Institutional Electronic Transactions, July 15, 2008 ( Minnesota Companion Guide (Institutional) ), p. 2.

This is the first phase of a planned two-phase rulemaking process to amend the rules governing coverage of mental health services. In the first phase, DHS will use the exempt rulemaking process to timely bring the rules into compliance with federal and state law, as explained below. The changes being proposed in the exempt phase of rulemaking are limited to repealing or replacing rule language that conflicts with the uniform code and companion guides, and involve no discretionary, policy changes. The amendments made in this exempt process will be effective for only two years, while the Department undertakes traditional rulemaking to permanently adopt the changes. In the second, traditional phase of notice and comment rulemaking, DHS will make the temporary changes permanent, and will also more broadly address other rule changes that are expected to include some policy changes. Where can I get a copy of the proposed amendments to the rule part? A copy of the proposed rules is included with this notice as mailed and is available on the DHS public website in the Rulemaking Docket at http://www.dhs.state.mn.us/main/id_016414. A free copy of the rules is also available upon request from the agency contact person. The agency contact person is Beth Scheffer, Department of Human Services, Appeals and Regulations Division, P.O. Box 64941, St. Paul, Minnesota 55164-0941; Elizabeth.Scheffer@state.mn.us; telephone (651) 431-4336; fax (651) 431-7523; TDD users can call the Minnesota Relay Service at 711 or (800) 627-3529. For the Speech to Speech Relay, call (877) 627-3848. A courtesy copy of this notice and the proposed rules is also being provided to advocacy organizations whose membership includes parents that are affected by the statute and rule governing the determination of the parental fee. Alternative Format. Upon request, this notice can be made available in an alternative format, such as large print, Braille, or cassette tape. To make such a request, please contact the agency contact person at the address or telephone number listed above. Can I submit comments? DHS is adopting the rules under the good cause exemption to the rulemaking process. This exemption allows an agency to use a shorter rulemaking process when the rule amendments simply incorporate specific legislative changes. DHS will deliver the proposed amendments to the Office of Administrative Hearings on Monday, November 10, 2008. Interested parties will have five business days thereafter to submit written comments on the proposed changes. The comment period will begin on Monday, November 10, 2008 and end on Monday, November 17, 2008. DHS previously provided notice of the proposed exempt rulemaking on October 24, 2008, to give interested parties additional time to review the proposed changes. DHS is providing this amended notice on Thursday, November 7, 2008, to inform interested parties that the comment period is being extended by one business day, to Monday, November 17, 2008, due to the fact that Tuesday, November 11, is a national and state holiday. Comments should be submitted no earlier than Monday, November 10, and must be submitted by 4:30 p.m. on Monday, November 17, 2008, to Maria Lindstrom in the Office of Administrative Hearings; P.O. Box 64620; 600 N. Robert St.; St. Paul, Minnesota 55164-0620; fax: 651/361-7936. Comments may also be submitted electronically to the Office of Administrative Hearings at rulecomments@state.mn.us. If you have any questions about submitting comments, you may contact Ms. Lindstrom in the Office of Administrative Hearings at 651-361-7841. Why does the rule meet the requirements of the good cause exemption? Minnesota Statutes, section 14.388, subdivision 1, provides that an agency may use the good cause exemption to the rulemaking procedures 2

[i]f an agency for good cause finds that the rulemaking provisions of this chapter are unnecessary, impracticable, or contrary to the public interest when adopting, amending, or repealing a rule to... (2) comply with a requirement in federal law in a manner that does not allow for compliance with sections 14.14 to 14.28. In the present case, the repeal and replacement of language in the mental health services rules is due to the need to timely bring the rule into conformance with the CPT and the Minnesota uniform companion guides. One aspect of this rulemaking that makes traditional rulemaking impracticable is the short timeframe between the date by which DHS needs to implement amendments to its mental health services rules, and the promulgation of the uniform companion guides that supplement the CPT. The first provisions of the new Minnesota law to take effect do so on January 15, 2009. DHS has contracts to provide health insurance that begin and end in conjunction with the calendar year. DHS strives to adopt uniform coverage and rates throughout the term of the annual contract. For ease in programming automated claims processing systems, DHS will therefore make the rule changes being pursued in this rulemaking effective on January 1, 2009, to comply with the January 15, 2009 effective date. The uniform companion guides, however, were not adopted until June 16, 2008. It would have been impracticable for DHS to complete traditional, notice and comment rulemaking in the short window of time between mid-2008 and January 1, 2009. 3 The changes that DHS is proposing in this exempt phase are limited to changes that are dictated by applicable federal and state law. The proposed amendments involve only the repeal of language (and the replacement of four words) where the rule language conflicts with the CPT and the uniform companion guides. Thus, DHS has no discretion or policy decisions to make for these amendments. In this situation, public comment can have no effect on any policies behind the proposed rule amendments, and little effect on any language in the proposed rule amendments. Thus, using only the lengthy, regular rulemaking process to obtain public comment that can have little effect on the form of the final rule is against the public interest here because it would preclude timely adoption of the conforming amendments. This is especially true here because, as explained below, DHS is using the exempt process only as an initial step. Despite the limited impact that public input can have when no policy changes are being made, the Department nevertheless intends to pursue traditional, notice and comment rulemaking to adopt the conforming amendments on a permanent basis. As noted above, after the initial phase of exempt rulemaking, DHS plans to proceed with a second phase of traditional, notice and comment rulemaking to adopt the temporary amendments on a permanent basis. During the second phase, DHS plans to assemble an advisory committee comprised of interested regulated parties that will provide advice and opinions regarding the proposed changes. Thus, those entities that are impacted by the conforming amendments will still have the opportunity for the type of rigorous review and thoughtful discussion that is afforded by notice and comment rulemaking, before DHS adopts the conforming amendments on a permanent basis. 4 3 As a practical matter, the Minnesota Department of Health published proposed companion guides for public comment on March 31, 2008, at which time DHS began working toward compliance with the proposed documents. Even with the additional time for review of drafts, however, traditional rulemaking was not a viable option. 4 As noted, DHS is relying on the statutory basis that permits exempt rulemaking to comply with a requirement in federal law. It is worthwhile to note that the Department also considered relying on a different statutory basis for the exemption, namely, that which applies when the rule amendment is to incorporate specific changes set forth in applicable statutes when no interpretation of law is required. Minn. Stat. 14.388, Subd. 1. The two bases for an exemption are similar in that they both involve conforming amendments dictated by applicable law that involve virtually no agency discretion. Given the 3

For the reasons discussed above, DHS finds that the regular rulemaking provisions in Minnesota Statutes, chapter 14, are unnecessary, impracticable, and contrary to the public interest for the adoption of the proposed rule amendments, and that it is more appropriate to use the exempt rulemaking provisions in Minnesota Statutes, section 14.388, to adopt these amendments for a temporary, two-year period, beginning on January 1, 2009. Listed below is an explanation of how each proposed amendment brings the rule into conformity with federal and state law governing the electronic transmittal of health care information. 1. Repeal of subpart 1(M) (definition of an hour). When the mental health services rules were written, the rules were based on a system in which an hour was the primary unit of time for reporting medical services. Thus, reporting information about medical services revolved around the number of hours, or fractions of an hour, spent on the service. In keeping with this framework, rule subpart 1(M) defines an hour as a sixty minute session of mental health service. Other rule parts that are discussed below also reflect this general framework, in which services are defined or reimbursed with reference to an hour. See Part 9505.0323, subpart 9(A), (B), and (C) (measuring various services in multiples of an hour or one-half of an hour); subpart 9(D) (explaining how reimbursement will be impacted if the length of a session is less than an hour or a whole number multiple of an hour). The CPT, on the other hand, takes a holistically different approach to reporting medical services. In the CPT, some services are reported using a definition for the service that contains no reference to the amount of time spent on the service. Rather, both the CPT and the uniform companion guides instruct that for these services, one instance of the appropriate CPT code should be reported for each instance of the service being provided, without regard to the length of the service. 5 Using this type of CPT code conveys no information whatsoever about the length of service, and reimbursement for the service thus occurs without regard to the length of the service. The length of the service is a matter of discretion that is within the control of the provider and has no bearing on the amount of the reimbursement. For other medical services, the CPT contains a reference to time in the definition of the service. But these references are not based on an hour as the primary unit of time. Rather, when the CPT definition for a mental health service references time, it contains a series of three codes corresponding to three ranges of time, namely, approximately 20 to 30 minutes, approximately 45 to 50 minutes, or approximately 75 to 80 minutes. 6 The code is selected that best represents the amount of time spent on the service. If the time spent exceeds one and one-half times the defined value of the code and no additional time increment exists, the service is reported by counting up to the next whole number, in other words, reporting an additional unit of the service being provided in the appropriate time increment. 7 Because the CPT takes an entirely different approach to the reporting of time than that taken under the rules, and does not focus on an hour as a primary unit of time, it is confusing for the rule to define an hour as a sixty minute session of mental health service. This definition does not correspond to complexity of the overlapping federal and state law requirements involved here, however, the Department concluded that it would be more reasonable to rely upon the basis that implements the changes only on a temporary basis. By taking this approach, DHS is able to simultaneously pursue a separate process to permanently implement the changes with the benefit of public input. 5 The companion guides instruct the medical coder to [r]eport one unit for all services without a measure (such as each or per) in the description. Minnesota Companion Guide (Professional), Appendix A ( App. A ), pp. 50-51; Minnesota Companion Guide (Institutional), App. A, pp. 43-44. 6 See, for example, for office or outpatient individual psychotherapy, codes 90804, 90806, and 90808. Procedures, 2008 Coder s Desk Reference (Ingenix 2007), pp. 764-65. 7 Minnesota Companion Guide (Professional), App. A, pp. 50-51; Minnesota Companion Guide (Institutional), App. A, pp. 43-44. 4

reporting services using the CPT code. Accordingly, to avoid confusion to the public, DHS is repealing the definition of an hour. The rule definition of an hour also provides that up to one fourth of the [total] time spent on a mental health service may be spent on client-related activities. The CPT code handles such activities differently. The CPT code recognizes a category called evaluation and management services. For psychiatric patients, the CPT code describes evaluation and management services as a variety of unique responsibilities including medical diagnostic evaluation, drug management, physician orders, interpretation of laboratory or other medical diagnostic studies and observations. The CPT codes for the various types of psychotherapy contain one code designating the type of service when evaluation and management services are furnished on the same date of service as the psychotherapy, and a different code when they are not. 8 When evaluation and management services are furnished on a date when psychotherapy is not provided, then such services are reported separately using an appropriate code from those designating a specific type of evaluation and management service. Given the different approaches reflected in existing rule and the CPT code, it would be confusing to retain the existing rule language. DHS is therefore repealing the language. 2. Repeal of subpart 4(C) (limit on time spent for diagnostic assessment). Rule subpart 4(C) states that, with two exceptions discussed below, medical assistance payment for a diagnostic assessment is limited to two hours per assessment. This definition limits the amount of time that may be spent on a diagnostic assessment. In the CPT code, however, diagnostic assessments, which are defined in codes 90801 and 90802, 9 are among the services defined without reference to time in the definition. Using the CPT code to report an instance of the service being provided thus conveys no information about the length of the service. Plainly, the CPT code is not consistent with a regulatory structure in which the length of the diagnostic assessment is limited to a stated maximum. The rule limit is incompatible with the use of the CPT code and DHS is therefore repealing the rule subpart. 3. Repeal of subparts 5, 6 and 7 (extensions to limit on time spent for diagnostic assessment). As noted above, Minnesota Rule, Part 9505.0323, Subpart 4(C) limits the amount of time that may be spent on a diagnostic assessment to two hours, but notes two exceptions. The first exception is provided pursuant to subpart 5, which is entitled Extension of time available to complete a recipient s diagnostic assessment. In short, subpart 5 permits an extension of up to eight hours for a diagnostic assessment if the mental health professional documents that the recipient has any of the stated conditions, and if certain circumstances are present. The second exception is provided pursuant to subpart 6, which is entitled, Prior authorization of additional time to complete a diagnostic assessment. This subpart permits a mental health professional to exceed the time limits stated in subparts 4 and 5, up to a maximum of sixteen hours in a calendar year, if the mental health professional obtains prior authorization and documents that the recipient meets certain criteria. Subpart 7, which is entitled Criteria for prior authorization of additional time to complete a diagnostic assessment, states the criteria used to determine when prior authorization may be granted under subpart 6. All of these rule subparts address an extension to the standard two-hour limit. As explained in 2 of this Notice of Intent to Amend Rules Under the Good Cause Exemption ( Notice of Intent ), 8 For example, code 90804 is used for individual psychotherapy that is insight oriented, behavior modifying and/or supportive, in an office or outpatient facility, involving approximately 20 to 30 minutes face-to-face with time with the patient. Code 90805 is used for the same service when medical evaluation and management services are furnished on the same date of service as the psychotherapy. CPT 2008, Professional Edition (American Medical Association), Psychiatry, pp. 385-87. 9 Procedures, 2008 Coder s Desk Reference (Ingenix 2007), p. 764. 5

however, DHS is repealing the standard limit. As a result, it does not make sense to retain the provisions that provide for an extension to the limit. Furthermore, even the extensions contain a cap on the amount of time spent on the services. This is incompatible with use of the CPT code for diagnostic assessments because, as noted above, the code contains no information about the amount of time spent on the service. Rather, using the CPT, the amount of time spent on the service is now up to the discretion of the provider. Accordingly, DHS is repealing subparts 5, 6 and 7. 4. Repeal of subpart 8 (payment for diagnostic assessment based on hourly rate). Rule subpart 8 provides that payment for a diagnostic assessment will be paid according to the hourly payment rate for individual psychotherapy. As previously discussed in 1 of this Notice of Intent, when the mental health services rules were written, an hour was the primary unit of time for measuring mental health services; and services were billed and reimbursed based on one hour or fractions of an hour. Accordingly, there was a standard reimbursement rate corresponding to billing for a one hour session for psychotherapy service. The rule refers to this rate as the hourly payment rate for individual psychotherapy. As noted above, the CPT contains a series of codes for psychotherapy, namely, codes 90804 to 90815. The selection of the proper code depends, in part, on whether the amount of face-to-face associated with the service was approximately 20 to 30 minutes; 45 to 50 minutes; or 75 to 80 minutes. Reimbursement rates are associated with each of these time ranges. There is no particular hourly payment rate for individual psychotherapy. While one could extrapolate to conclude that the payment rate associated with the CPT code for 45 to 50 minutes of service best corresponds to an hourly payment rate, this is plainly not what was intended when the rule was written. Rather, because the CPT represents an altogether different system for reporting and reimbursing the time spent on psychotherapy services, it would be confusing to retain rule language referring to an hourly payment rate for individual psychotherapy. As with the reimbursement rates established under existing rule, the reimbursement rates corresponding to the various CPT codes are established in accordance with the rate methodology set forth in Minnesota Statutes, section 256B.761. DHS is therefore repealing the outdated rule language. 5. Repeal of subpart 9 (limitation on length of psychotherapy session). As explained in 1 of this Notice of Intent, when the rule was written, one hour was the standard unit of measuring time for mental health services. Item A of rule subpart 9 requires that the length of an individual psychotherapy session must be either one-half hour or one hour. Similarly, item B of rule subpart 9 requires that the length of a family psychotherapy session shall be one hour or one and one-half hours. Item C of rule subpart 9 requires that the length of a group psychotherapy session shall be one hour, one and one-half hours, or two hours. As previously noted, the CPT contains a series of codes for individual psychotherapy, and the selection of the proper code depends, in part, on whether the amount of face-to-face time was approximately 20 to 30 minutes; 45 to 50 minutes; or 75 to 80 minutes. 10 The requirement in rule subpart A that the length of an individual psychotherapy session be one-half hour or one hour is thus inconsistent with the CPT. It would be confusing to keep the rule requirement when there is an incongruity between the language referring to one-half and one hour, and the CPT reporting system. DHS is therefore repealing the rule subpart. The CPT defines family psychotherapy sessions in codes 90846 and 90847, and these services are defined without reference to time. The same is true for group psychotherapy, which is defined in CPT codes 90853 and 90857 without reference to time. Thus, the rule requirement that these services be 10 Procedures, 2008 Coder s Desk Reference (Ingenix 2007), pp. 764-65. 6

reported in various increments of hours and half-hours is inconsistent with the CPT reporting system. Indeed, reporting one instance of the service occurring using the appropriate CPT code is not intended to convey information about the duration of service. Because the rule requirements are incompatible with the CPT reporting system, DHS is repealing these rule requirements. Item D of subpart 9 requires that if the length of a psychotherapy session is less than an hour or a whole number multiple of an hour, payment will be prorated according to the lesser length of time. This is inconsistent with the series of three CPT codes used for individual psychotherapy, in which the medical coder selects the appropriate code based on which of three time ranges best approximates the actual length of service. Similarly, this requirement conflicts with the CPT codes used for family psychotherapy and group psychotherapy, both of which are reported with codes that contain no reference to time. Because the rule language about pro-rating conflicts with the CPT codes for psychotherapy services, DHS is repealing the rule subpart. 6. Repeal of language in subpart 12 (payment for group psychotherapy based on hourly rate). The pertinent language in rule subpart 9 provides that payment for each person who participates in a session of group psychotherapy shall be one quarter of the payment rate for an hour of individual psychotherapy. As explained in 4 of this Notice of Intent, however, there is no standard reimbursement rate associated with an hour of individual psychotherapy service when using the CPT codes to report such services. Accordingly, it is confusing for the rule to provide that group psychotherapy will be paid at one quarter of a rate that does not exist. As previously noted, the reimbursement rates for the various CPT codes are established in accordance with the rate methodology set forth in Minnesota Statutes, section 256B.761. DHS is therefore repealing the outdated rule language. 7. Repeal of language and replacement of word in subpart 18 (limitation on explanation of findings). The pertinent rule language limits medical assistance payments for an explanation of findings to four hours per calendar year. In contrast, the CPT defines an explanation of findings under code 90887, which contains no reference to the amount of time spent on the service. Because the CPT code does not convey any information about the time spent on the service, use of the CPT code to report this service is incompatible with the rule limit on the number of hours of service. DHS is therefore replacing the limit on the quantity of hours in a calendar year with a limit on the number of sessions in a calendar year. This approach permits payment for up to four instances of the service occurring, regardless of the length of each occurrence. The proposed amendment thus resolves the conflict between the rule and the CPT. The pertinent rule language next limits medical assistance payments to one hour for an explanation of findings that takes place after the mental health professional has completed the recipient s diagnostic assessment, unless otherwise permitted pursuant to an exception. As noted above, however, the CPT defines an explanation of findings without reference to time. Thus, this rule limitation conflicts with the CPT, and DHS is therefore repealing the conflicting language. Next, the rule permits the mental health professional to use the time available under the rule for an explanation of findings in units of one-half hour or one hour, subject to the above-referenced four hour cap. This provision conflicts with the CPT code in two way. First, as explained elsewhere, the requirement that the time used be reported in units of one hour or one-half hour is inconsistent with the CPT code, in which an hour is not the standard unit of measurement. Second, as explained above, the CPT code for reporting an explanation of findings contains no reference to time and is therefore incompatible with a cap on the number of hours of service. Given these conflicts, retaining the rule language would not be accurate. DHS is therefore repealing the conflicting language. 7

Other language in the rule provides that when the recipient s diagnostic assessment qualifies for an extension or for additional time under subparts 5 to 7, then the mental health professional may allocate the four hours permitted per year in any manner necessary to explain the findings. But DHS is repealing subparts 5 to 7, so this rule subpart can no longer refer to these repealed subparts. Similarly, DHS is repealing the language in this subdivision that imposes a four hour limit. The rule provision thus conflicts with the other conforming amendments that DHS is proposing, so DHS is therefore repealing this language. Finally, the rule provides that medical assistance only pays for the actual amount of time spent on an explanation of findings or four hours, whichever is less. As noted above, however, DHS is repealing the four hour limitation because it is inconsistent with the CPT. In addition, use of the CPT code to report an explanation of findings means that service will be reimbursed regardless of the amount of time spent on the service. This conflicts with the rule requirement that payment be based on the actual amount of time spent, or four hours, whichever is less. Rather, the amount of time spent on the service is now up to the discretion of the provider. DHS is therefore repealing the conflicting language. 8. Repeal of language in subpart 21 (limitation on psychological testing). The rule provides that payment for psychological testing for a recipient in a calendar year is limited to eight times the medical assistance payment rate for an hour of individual psychotherapy. As explained in 4 of this Notice of Intent, though, there is no standard medical assistance payment rate for an hour of individual psychotherapy service when using the CPT code. It would therefore be confusing for the rule to refer to eight times the payment rate for an hour of individual psychotherapy, and DHS is therefore repealing this provision. The rule also provides that psychological testing will be paid for based on the psychological test used. The CPT defines psychological testing in codes 96101 to 96103. The codes define the service in terms of how the test is administered, rather than what test is administered. Thus, the rule conflicts with the CPT and DHS is therefore repealing this language in the rule. 9. Repeal of language in subpart 25 (reference to repealed subparts). As explained above, the proposed amendments will repeal subparts 5 and 6. Accordingly, DHS is repealing the reference in subpart 25 to the repealed subparts. 10. Repeal of language in subpart 27 (reference to a repealed subpart). As explained above, the proposed amendments will repeal subpart 6. Accordingly, DHS is repealing the reference in subpart 25 to the repealed subpart. 11. Repeal of language in subpart 28 (limitation on multiple family group psychotherapy). The rule limits medical assistance payment to one session of up to two hours per week. The CPT addresses multiple family group psychotherapy in CPT code 90849, which defines the service without reference to time. This means that use of the CPT code to report one instance of the service being provided does not convey information about the length of the session. Rather, the CPT requires that payment for the service be based on one instance of the service being provided, regardless of the amount of time spent on the service. The rule language limiting a session to two hours is therefore incompatible with the CPT code definition. DHS is therefore repealing the phrase that limits the session to two hours. 12. Replacement of three words in subpart 30 (reference to hours related to group psychotherapy for crisis intervention). Item C of the rule limits the client to three hours of group psychotherapy for crisis assistance per week within a period of two weeks, unless prior authorization is 8

obtained for additional hours per week. The CPT defines a group psychotherapy session in codes 90853 and 90857, and defines this service without reference to time. This means that use of the CPT code to report one instance of the service being provided does not convey any information about the length of the session. Rather, the CPT requires that payment for the service be based on one instance of the service being provided, regardless of the amount of time spent on the service. The rule language limiting services based on the number of hours per week is therefore incompatible with use of the CPT code to report services. DHS is therefore replacing the limit based on hours, and, consistent with the CPT focus on the number of instances of a service being provided, has replaced the limit on hours with a limit on the number of sessions per week. Item D of the rule provides that the number of hours of group psychotherapy for crisis intervention is subject to the limit specified in subpart 10, that is, subject to limits set forth in an annual publication in the State Register by the commissioner as provided under Minnesota Statutes, section 256B.0625, Subd. 25. As noted, though, the CPT defines this service without reference to time. The rule reference to a limitation on the quantity of hours is therefore incompatible with the CPT definition. As a result, DHS is replacing the word hours with the word sessions, so that the service is subject to a limitation on the number of sessions as published by the commissioner. This approach comports with the CPT. 9