MaineCare Notice of Agency Rule-making Adoption, MaineCare Benefits Manual Chapter II, Section 29

Jan 22, 2024

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 MaineCare Notice of Agency Rulemaking 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

CHAPTER NUMBER AND TITLE: 10-144 C.M.R. Chapter 101, MaineCare Benefits Manual, Chapter II, Section 29, Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder

PROPOSED RULE NUMBER: 2023-P171

CONCISE SUMMARY:  The Department is adopting comprehensive amendments of 10-144 C.M.R. Chapter 101, MaineCare Benefits Manual (“MBM”), Chapter II, Section 29, Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder.

This Section 29 rule implements and regulates a Section 1915(c) home and community-based services (HCBS) Medicaid waiver program.  Under Section 29, the Department provides HCBS to support eligible adult MaineCare Members with an intellectual disability or autism living in the community.  MBM Chapter II, Section 29 is a routine technical rule pursuant to 34-B M.R.S. § 5432(3).

On December 18, 2020, The Centers for Medicare & Medicaid Services (CMS) approved the Department’s request to renew the Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder waiver for a five-year period, with an effective date of January 1, 2021.  On April 13, 2023, the Department gave public notice of proposed amendments to the CMS-approved Section 29 waiver, to add services and enhance service delivery.  The Department is seeking and anticipates receiving CMS approval of this waiver amendment.

On or about August 23, 2023, the Office of the Secretary of State gave notice of proposed amendments of MBM Chapter II, Section 29 to the Executive Director of the Legislative Council, published notice of the proposed rulemaking, and gave notice of the rulemaking to known interested parties.  The Department then held a hybrid remote and in-person public hearing pursuant to 34-B M.R.S. § 5465(4) on September 11, 2023, conducted jointly with the public hearing on proposed amendments to MBM Chapter III, Section 29.  The Department then accepted additional written public comment regarding the proposed rulemaking pursuant to 5 M.R.S. § 8057-A(3) until the close of business on September 21, 2023.  A summary of public comments, the Department’s responses, and changes made to the rule after it was published for public comment will be filed with the Secretary of State in conjunction with this rulemaking. 

The Department has added the following new services, effective March 1, 2024:

• Home Support - Quarter Hour (Self-Directed)
• Shared Living – Two Members served
• Shared Living - One Member, Increased level of support (Provider Managed)
• Shared Living - Two Members, Increased level of support (Provider Managed)
• Home Accessibility Adaptations (Self-Directed)
• Home Accessibility Adaptations Repairs (Self-Directed)
• Assistive Technology - Devices (Self-Directed)
• Assistive Technology - Transmission (Self-Directed)
• Community Support - Community Only - Individual (Self-Directed)
• Community Support - Community Only – Individual (Provider Managed)
• Community Support - Community Only – Group (Provider Managed)
• Financial Management Services (Self-Directed)
• Supports Brokerage (Self-Directed)
• Individual Goods and Services (Self-Directed)

The Department is seeking and anticipates approval from CMS for these newly added services with an effective date of March 1, 2024.  These services will continue to be provided through February 29, 2024, under the Department’s Appendix K:  Emergency Preparedness and Response authority in response to the COVID-19 Public Health Emergency, which was approved by the Centers for Medicare and Medicaid Services (CMS) but not added to MBM Chapter II, Section 29 at that time. 

The Department is concurrently going through APA rulemaking for MBM Ch. III, Section 29, to identify the methodology(ies) for reimbursements for these services.  MBM Chapter III, Section is a major substantive rule, will be provisionally adopted pending approval by the Legislature, and will propose a retroactive date of March 1, 2024, for the increased reimbursement rates. 

The Department adopts the following specific changes to this rule:

• Covered Services: Updates, expands, and/or clarifies the descriptions for the following Covered Services:
  • Assistive Technology
  • Career Planning
  • Community Support
  • Employment Specialist Services
  • Home Accessibility Adaptations
  • Home Support – Quarter Hour
  • Home Support – Remote Support
  • Shared Living
  • Non-Medical Transportation Service
  • Work Support – Group
  • Work Support – Individual

• Revised Definitions: Updates the following definitions: Activities of Daily Living, Autism Spectrum Disorder, Intellectual Disability, Instrumental Activities of Daily Living, Person-Centered Service Plan and Shared Living, and Services Delivered for the Member (formerly, “On Behalf Of” Services).

• New Definitions: Adds definitions for the following terms: Budget Authority, Community Inclusion, Competitive Integrated Employment, Community Mapping, Disability-Specific Setting, Employer Authority, Fiscal Intermediary, Home and Community Based Services, Personal Resources, Provider-Managed Service, Self-Direction, Representative, Self-Direction, Service Implementation Plan, and Supports Broker.

• Self-Direction: Adds Self-Direction Services, including Financial Management Services, Supports Brokerage Services, and Individual Goods and Services, to the list of covered services in Section 29 to expand opportunities for Members to manage and control certain services and service delivery methods.

• Global HCBS Rule: Incorporates the requirements of the January 19, 2022, Global HCBS Rule: see §§  29.04 [Person-Centered Service Plan (PCSP)], 29.15-1 [Self-Directed Person-Centered Service Planning Process] and 29.05-1 [Home and Community Based Services Settings]), implementing the federal requirements for Maine’s Section 1915(c) home and community-based waiver programs as required by 42 C.F.R. § 441.301(c). The HCBS Global Rule includes requirements for person-centered service planning and for settings in which HCBS waiver services are provided.

• 29.07-2 (Limits): Changes the limit from $58,168.50 to $84,689.28 for the combined annual cost of Home Support (Remote or Quarter-hour), Community Support, and Shared Living Services.  The Department received CMS approval for this change.

• 29.08-3 (Termination from Participation as a MaineCare Provider): Establishes and clarifies standards for providers who are disenrolling from participating as MaineCare providers. The provision expressly references the requirement in the MaineCare Benefits Manual, Ch. I, Sec. 1 that providers must give written notice to the Office of MaineCare Services of their intent to terminate participation in the MaineCare Program. In addition, this provision requires Section 29 providers to notify all Section 29 Members they serve of the provider’s intent to terminate participation in the MaineCare program.

• 29.10 (Provider Qualifications): Clarifies Provider Qualifications and Requirements for Direct Support Professionals (DSPs) and for Career Planners, Job Coaches, and Employment Specialists delivering Career Planning, Work Support, and Employment Specialist Services, to state that provider agencies may hire DSPs who are seventeen (17) years of age. The minimum age requirement for Career Planners, Job Coaches, and Employment Specialists remains eighteen (18) years of age.

• 29.10-1 (DSP Qualifications): Requires that all DSPs, regardless of capacity and prior to provision of services to a Member, receive training regarding the Global HCBS Rule. Moreover, within six (6) months of hire and annually thereafter, the adopted rule requires DSPs to comply with the Department’s regulations: Reportable Events System (14-197 C.M.R. ch. 12) and the Adult Protective Services System (10-149 C.M.R. ch. 1).

• 29.10-9 (Electronic Visit Verification): Requires that providers of Home Support-Quarter Hour services comply with Maine DHHS Electronic Visit Verification (EVV) system standards and requirements, in accordance with the 21st Century Cures Act (P.L. 114-255), Section 12006, as codified in 42 U.S.C. § 1396b(l).

• 29.10-11 (POCA): Authorizes for the Office of Aging and Disability Services (OADS) to issue written notices of deficiencies in service delivery and requires providers to submit and implement Plans of Corrective Action (POCA) as approved by the Department. Providers have the right to appeal written notices of deficiencies. This POCA process provides increased protections for Members and ensures that providers comply with service requirements, have sufficient clinical and administrative capability to carry out the intent of the service, and have taken steps to assure the safety, quality, and accessibility of the service for Members.

• 29.11 (Member Appeals):  Clarifies that Members have the right to appeal decisions made regarding priority level and waitlist determinations.

• 29.14 Exceptions from Caps on Services: Establishes an exceptions process which provides that Section 29 Members, and Members applying to receive Section 29 benefits, may request services in excess of otherwise applicable Section 29 monetary and/or unit caps, where necessary to ensure that Section 29 Members receive adequate services and supports in the most integrated setting appropriate to their needs, consistent with the Americans with Disabilities Act (ADA).

• 29.16 (Appendix I-Shared Living Criteria for Increased Level of Support): Adds a new appendix describing the criteria for an increased level of support if, due to extraordinary medical or behavioral needs, a Member requires Shared Living Services beyond the level of support defined in § 29.05-12.

• 29.16 Appendix III, Performance Measures: The Department eliminates Appendix III because the Department utilizes data available through the Department of Labor, Person Centered Service Plans, and authorization data as part of the Department’s commitment to quality assurance and quality improvement system.  Additionally, specific performance measures are either no longer relevant or necessary to measure the performance of specifically listed employment services or have been met.

• 29.19 (Appendix IV-Additional Requirements for Section 29 Providers of Community Support Services, Employment Specialist Services, and Shared Living): Clarifies the requirements and responsibilities of the Administrative Oversight Agency and the Shared Living Provider for Shared Living Services.

In conformance with the January 1, 2021, CMS-approved, renewed waiver, and the Department’s pending, proposed waiver amendments, this rule also aligns similar processes, service descriptions, and similar provisions with MaineCare’s four other Section 1915(c) waivers (primarily the Section 21 waiver).

As a result of public comments and further review by the Department and the Office of the Attorney General, the adopted rule includes clarifying language for §29.02-12 (E), Services that Support Personal Well-being, §29.04, Person-Centered Service Plan, §29.05-4 Community Support, and §29.05-8, Home Support-Quarter Hour.

Additionally, as a result of public comment, the adopted rule adds a provision allowing providers of Assistive Technology-Assessments to conduct evaluations via telehealth so long as the provider ensures that the assessment via telehealth meets the requirements of the scope of the service.

Further, as a result of public comment, the Department has revised §29.19 Appendix IV, Additional Requirements for Section 29 Providers of Community Support Services, Employment Specialist Services, and Shared Living, replacing the requirement that the Administrative Oversight Agency (AOA) train the Shared Living Provider with a requirement for the AOA to maintain and retain documentation that the Shared Living Provider meets the requirements to deliver Shared Living Services.  The Department has also added a provision that Shared Living Providers must comply with training and certification requirements and to provide proof of current trainings to the AOA.

The Summary of Public Comments and Responses identifies more specifically all changes that were made to the final rule.

Additionally, as a result of review and guidance from the Centers for Medicare and Medicaid Services (CMS), the Department has replaced the term “On Behalf Of” within the rule with “Services Delivered for the Member (formerly “On Behalf Of”)”.  The Department has revised § 29.18 Appendix III, Additional Guidance for Home Support, Community Support, Work Support, Career Planning, and Employment Specialist Covered Services that are Delivered Directly for the Member (formerly, On Behalf Of Covered Services) by clarifying the billable and non-billable activities that constitute the same. 

Finally, the Department anticipates that CMS will approve newly added services with an effective date of March 1, 2024.  In the interim, the Department will continue to implement these flexibilities under the Appendix K: Emergency Preparedness and Response authority in accordance with State Medicaid Director (SMD) Letter # 23-004.

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

EFFECTIVE DATE:                            January 24, 2024

AGENCY CONTACT PERSON:       Heather Bingelis, Comprehensive Health Planner

AGENCY NAME:                              Division of Policy

ADDRESS:                                         109 Capitol Street, 11 State House Station

                                                            Augusta, Maine 04333-0011

EMAIL:                                              heather.bingelis@maine.gov

TELEPHONE:     (207)-624-6951 FAX:(207) 287-6106

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