MaineCare Notice of Agency Rule-making Adoption, MaineCare Benefits Manual, Chapter III, Section 21, Allowances for Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder

Jun 15, 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. Ch. 101, MaineCare Benefits Manual, Chapter III, Section 21, Allowances for Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder.

ADOPTED RULE NUMBER:

CONCISE SUMMARY:  This letter gives notice of adopted rule: 10-144 C.M.R. Chapter 101, MaineCare Benefits Manual, Chapter III, Section 21, Allowances for Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder.

In response to the statewide staffing crisis and to comply with P.L. 2021, ch. 398 (the “Act”), the Department is adopting routine technical rule changes to increase rates for providers of services under Ch. III, Section 21, Allowances for Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder.

Section AAAA-1 of the Act enacts 22 M.R.S. Chapter 1627, Essential Support Worker Reimbursement. The new law requires that, effective January 1, 2022, the labor components of MaineCare reimbursement rates for specified services delivered by “essential support workers” must equal at least 125% of the minimum wage established in Title 26, section 664, subsection 1. Essential support workers are individuals who by virtue of employment generally provide to individuals direct contact assistance with activities of daily living or instrumental activities of daily living or have direct access to provide care and services to clients, patients or residents regardless of the setting. 22 M.R.S. § 7401. In addition, Part AAAA states that the reimbursement rate must include an amount necessary to reimburse the provider for taxes and benefits related to the wages. 22 M.R.S. § 7402(2). Section AAAA-2 of the Act specifies that the 125% of minimum wage requirement for essential support workers applies to Ch. III, Section 21 services. 

Additionally, Part OOO of the Act authorizes the Department to implement cost of living increases (COLAs). In calculating the rate increases necessary to comply with Part AAAA of the Act, the Legislature and the Department took into consideration the impact of the planned COLAs on ensuring the labor components of the reimbursement rates for Section 21 and other services specified under Part AAAA are equal to at least 125 percent of minimum wage.

Rulemaking required for these particular rule changes are routine technical per 22 M.R.S. § 7404 (for the essential support worker increases), and Part OOO of the Act (for the COLA-related increases) even though Ch. III, Section 21 is generally a major substantive rule.  See, e.g., 22 M.R.S. § 3195.

On March 22, 2022, the Department implemented these increased rates via an emergency routine technical rule, which shall be effective for up to 90 days. The rates are effective retroactive to January 1, 2022, as directed by the Act. The retroactive application of this rule comports with 22 M.R.S. § 42(8), which provides state authority for the Department to adopt rules with a retroactive application for a period not to exceed eight (8) calendar quarters where there is no adverse financial impact on any MaineCare member or provider. Here, the rule changes are beneficial for the providers. This adopted routine technical rulemaking seeks to make permanent the increases to the reimbursement rates enacted via emergency rule.

As noted in detail in the Summary of Comments and Responses, certain commenters incorrectly asserted that (1) the final rule, Sec. 1300(3), implements a reduction in per diem rates, and (2) the changes in reimbursement do not fully include rates equal to at least 125% of the minimum wage.

With regard to (1), this rule continues the previous policy of lower reimbursement for hours in excess of 168; the actual rate for hours in excess of 168 has increased by $3.95. Hence there is no reduction and no violation of the Maintenance of Effort required under Section 9817 of the American Rescue Plan.

With regard to (2), per P.L. 2021, ch. 635, An Act To Make Supplemental Appropriations and Allocations for the Expenditures of State Government, General Fund and Other Funds and To Change Certain Provisions of the Law Necessary to the Proper Operations of State Government for the Fiscal Years Ending June 30, 2022 and June 30, 2023, the Legislature has approved additional funds to support these increases and to meet the intent of Part AAAA of the Act ensuring labor components of all rates are at least equal to 125% of minimum wage. 

The Department had previously implemented rates to include these labor component amounts (that are all equal to at least 125% of the minimum wage) in the emergency rule and also proposed the same rates.  This final adopted rule includes rates with labor components that are all at least equal to 125% of the minimum wage.

The Department received temporary approval on March 7, 2022 and intends to seek permanent approval from the Centers for Medicare & Medicaid Services (CMS) for the adopted increased reimbursement rates with a retroactive effective date of January 1, 2022.

The Department did not make any additional changes to the adopted rule as a result of public comments.

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

EFFECTIVE DATE:                           June 15, 2022

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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