MaineCare Notice of Agency Rule-making Adoption, MaineCare Benefits Manual Chapter I, Section 1, General Administrative Policies and Procedures

May 27, 2022

The Division of Policy posts all proposed and recently adopted rules on MaineCare’s Policy and Rules webpage.  This website keeps the proposed rules on file until they are finalized and until the Secretary of State website is updated to reflect the changes.  The MaineCare Benefits Manual is available on-line at the Secretary of State’s website. 

Below, please find a Notice of Agency Rule-making Adoption. You can access the complete rule at http://www.maine.gov/dhhs/oms/rules/index.shtml.

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Notice of Agency Rule-making Adoption

AGENCY:  Department of Health and Human Services, MaineCare Services, Division of Policy

CHAPTER NUMBER AND TITLE:  10-144 C.M.R. Chapter 101, MaineCare Benefits Manual (MBM), Chapter I, Section 1, General Administrative Policies and Procedures

ADOPTED RULE NUMBER:

CONCISE SUMMARY: This final rule makes various complex changes, including changes to comply with federal regulations, make updates to reflect current practices, clarify ambiguous and vague sections of policy, and increase the MaineCare Program Integrity Unit’s ability to safeguard against fraud, waste, and abuse. The changes in this final rule are listed below.

The previous rule did not address retroactive enrollment for providers other than federally qualified health centers, rural health centers, and Indian health centers. This final rule broadens Sec. 1.03-1(F) to allow for retroactive enrollment for other eligible providers, subject to review and approval by the Department of Health and Human Services (the Department) in accordance with 42 CFR §431.108. A request for retroactive enrollment is subject to the Department’s review and discretion and is not a guarantee of claim payment or prior authorization. The Department may grant retroactive enrollment back to providers’ Medicare enrollment effective dates but will not grant a retroactive enrollment date that is more than 365 days prior to the date of providers’ MaineCare application submissions.

To comply with 42 CFR § 455.434, the final rule adds a section on fingerprint-based criminal background checks (FCBC), mandating that providers or applicants whose categorical risk level meets the federal definition of high risk must consent to a FCBC. The new Section 1.03-1(J) includes relevant criteria for provider termination or denial of enrollment and outlines which providers and suppliers have high categorical risk.

The current “rounding rule” in Sec. 1.03-8(J)) allows providers to round up a unit of service if the unit of service delivered is equal to or greater than fifty percent. The current version of this rule will remain in effect until December 31, 2022. To encourage better alignment between the amount of covered, medically necessary services delivered and billed, the final rule makes changes so when a partial unit of service is delivered, the provider may either bill for the partial unit of service provided or round up if eighty percent of the unit of service was delivered. The rule retains the ability to round up if fifty percent of the unit of service was delivered, but only when unforeseen circumstances prevent a provider from delivering a whole unit of service. As a result of comments, these changes will be effective January 1, 2023 to allow providers time to change their billing systems in order to comply with the changes. The final rule also adds misuse of the “rounding rule” to examples of conduct that could constitute fraud.

This final rule expands the definition of non-covered services to include administrative tasks (Sec. 1.06-4(B)(8)), including verification of MaineCare eligibility, updating member contact information, scheduling of appointments, tasks performed for the provider’s own administrative purposes, and similar activities. The final rule includes an exception explaining that certain administrative tasks may be covered if addressed in an appropriate section of the MaineCare Benefits Manual. This provision strengthens the Office of MaineCare Services (OMS) Program Integrity Unit’s enforcement of the prohibition on billing for administrative tasks, which already exists per current MaineCare rules.

To comply with section 53102 of the Bipartisan Budget Act of 2018, P.L. No. 115-123, the final rule removes Section 1.07-3(F)(1) to reflect that the Department will no longer pay and then seek reimbursement, commonly known as pay and chase, from liable third parties for prenatal services.

In Section 1.19-1(C)(2), the final rule clarifies that the Department may reimburse providers for covered services rendered during the period following a notice of termination up to the effective date of termination, instead of for a period not to exceed thirty days after the date of receipt of the notice of termination. This change was made because providers may not be reimbursed after termination of a provider agreement. The final rule also adds that providers must follow the provisions of their provider agreements and the MaineCare Benefits Manual to continue to receive reimbursement for services.

To enable the OMS Program Integrity Unit to implement appropriate sanctions, the final rule allows the Department, in its discretion, to consider a request from a provider to impose a lower percentage than 20% recoupment. The rulemaking adds a list of factors in Sec. 1.20-2 the Department may consider when assessing this type of provider request.

In order to correct provider deficiencies, the final rule adds a sanction permitting the Department to require providers to submit a detailed plan of correction for review and approval.  This will allow the OMS Program Integrity Unit to ensure providers comply with MaineCare rules and monitor providers who experience rapid growth or changes. Providers that grow rapidly may not have adequate infrastructure to maintain quality of service provision. The final rule allows providers to satisfy the plan of correction requirement by submitting a plan that was approved by another Division within the Department if it addresses identical violations. The additional sanctions added to Section 1.20-2 provide that the Department may:

• Impose a suspension of referrals to a provider;
• Deny or pend any enrollment applications submitted by a provider;
• Limit the number of service locations a provider may enroll; and
• Limit the number of MaineCare members the provider may serve.

The final rule clarifies the provisions in Sec. 1.21 regarding reinstatement following termination or exclusion to make the provisions easier to understand and apply.

The final rule adds Section 1.24-4 on expedited member appeals that includes: (1) the procedure to request an expedited appeal, (2) criteria for the Division of Administrative Hearings (DAH) to consider when deciding whether to grant requests, (3) deadlines for when the Department must take final agency action, and (4) other requirements, per 42 CFR § 431.224. The final rule amends Section 1.24-3 to provide that MaineCare Member Services shall send all expedited hearing requests to a hearings representative and the DAH within 24 hours of identifying the request.

The MaineCare Advisory Committee (MAC) developed structural and process changes to improve its function and efficiency. The final rule implements these changes in Section 1.25. The MAC changes include, among others, increasing MAC membership and including at least two Medicaid beneficiaries as members.

The final rule also makes the following changes:

• Defines the ownership and control relationships that are subject to an offset and/or recoupment;
• Establishes a 10-day timeframe for when providers need to update OMS of changes to their National Provider Identifier or other enrollment information;
• Requires providers who change their name or “doing business as” name to change their MaineCare Provider Agreement;
• Clarifies that providers must take all reasonable and appropriate steps requested by the Department to transition members before changes of ownership, closures, and disenrollment, except in the case of reasonably unforeseen circumstances, and, upon request, submit a transition plan to the Department for review and approval;
• Update the rule in accordance with 10-144 Code of Maine Rules, Chapter 128, Certified Nursing Assistant and Direct Care Worker Registry Rule, to require agencies hiring direct care workers (DCWs) to check the Maine Certified Nursing Assistant and Direct Care Worker Registry to ensure DCWs are eligible for employment in Maine and comply with all requirements stipulated in the rule;
• Adds that providers may not bill MaineCare for an interpreter service supplied by an entity in which the providers, any owner of the providers, or an immediate family member of the providers or any of their owners has any direct or indirect ownership or financial interest, unless the provider also reimburses other entities for the provision of interpreter services and the entity providing the interpreting service makes those services commercially available to MaineCare providers or other businesses that do not share a direct or indirect familial ownership interest with the interpreting entity;
• Changes the billable amount for interpreter services to be the lesser of the interpreter’s usual and customary charge and the rate authorized by the Department;
• To comply with section 53102 of the Bipartisan Budget Act of 2018, increases the number of days, from 30 to 100, that providers must wait for a response from an absent parent’s third party insurance before billing MaineCare;
• Adds that the Department may impose sanctions on providers who fail to provide information to the Department or to otherwise respond to Departmental requests for information within a reasonable timeframe established by the Department;
• Adds a penalty of 25% of MaineCare payments for covered goods and services where the providers’ records lack a required signature by a member or the member’s guardian;
• Changes penalties to equal 20%, as opposed to not exceeding 20%, when mandated records are missing but providers are able to demonstrate by a preponderance of the evidence that the disputed goods or services were medically necessary;
• Clarifies the Department’s authority to exclude individuals, entities, and providers from participation in MaineCare for any reason identified in 42 C.F.R. Part 1001 or 1003;
• Adds considerations for reinstatement from termination or exclusion to include the conduct of the individual or entity prior to and after the date of the notice of exclusion;
• Clarifies that providers may request an informal review within 60 calendar days from the date of written notification of the Department’s alleged grievance and extends the deadline to the next business day if it falls on a weekend or holiday; and
• Makes minor grammatical and technical changes.

See http://www.maine.gov/dhhs/oms/rules/index.shtml  for rules and related rulemaking documents.

EFFECTIVE DATE:                            May 29, 2022

AGENCY CONTACT PERSON:       Henry Eckerson, Comprehensive Health Planner II

AGENCY NAME:                               MaineCare Services

ADDRESS:                                         109 Capitol Street, 11 State House Station,  Augusta, Maine 04333-0011

EMAIL:                                              henry.eckerson@maine.gov

TELEPHONE:                                   207-624-4085 FAX: (207) 287-6106

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