Notice of Agency Rule-making Adoption: 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

Mar 23, 2022

AGENCY: Department of Health and Human Services, Office of MaineCare Services

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

Chapter III, Section 21, Allowances for Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder     

ADOPTED RULE NUMBER:

CONCISE SUMMARY: CONCISE SUMMARY: In response to the statewide staffing crisis and to comply with P.L. 2021, ch. 398 (the “Act”), the Department is implementing emergency 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 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.

Section GGGG-1 of the Act provides the Department with authority to enact these routine technical changes on an emergency basis, without the need to make findings in support of an emergency per 5 M.R.S. § 8054. These routine technical emergency rule changes shall be effective for up to 90 days. The Department intends to proceed with proposed routine technical rulemaking to make permanent the increases to reimbursement rates enacted through this emergency adoption. 

These increased rates will be 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 change is a beneficial change for the providers. 

Separately, effective December 31, 2021, and coinciding with the adoption of this emergency routine technical rule, the Department shall repeal an emergency major substantive rule that was adopted on April 7, 2021, and that included reimbursement rate increases for certain services under Ch. III, Section 21 pursuant to P.L. 2019, ch. 616; emergency major substantive rules are effective for up to twelve months, or until Legislative review. The Department has not yet initiated the proposed major substantive rulemaking associated with the April 7, 2021, emergency major substantive rule, and thus there is no provisional major substantive rule pending for review before the Legislature. There is no decrease in reimbursement for any service affected by the repeal of the April 2021 emergency major substantive rule.  

The Department shall seek approval from the Centers for Medicare & Medicaid Services (CMS) for the increased reimbursement rates. In addition, the Governor’s proposed budget will ask the legislature for 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. 

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

EFFECTIVE DATE:                     March 22, 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