Notice of Agency Rule-making Adoption: 10-144 C.M.R. Chapter 101, MaineCare Benefits Manual, Chapter II, Section 21, Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder

May 20, 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.

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

The Department is adopting comprehensive amendments of 10-144 C.M.R. Chapter 101, MaineCare Benefits Manual (“MBM”), Chapter II, Section 21, Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder.

This Section 21 rule implements and regulates a Section 1915(c) home and community-based services (HCBS) Medicaid waiver approved by the Centers for Medicare and Medicaid (“CMS”) in the U.S. Dept. of Health and Human Services.  Under this Section 21 waiver program, the Department provides comprehensive services to support eligible adult MaineCare Members with an intellectual disability or autism living in the community.  MBM Chapter II, Section 21 is a routine technical rule pursuant to 34-B M.R.S. § 5432(3).   

On September 25, 2020,CMS approved the request of the Maine Department of Health and Human Services (DHHS or the Department) to renew the Section 21 HCBS waiver for a five-year period, with an effective date of July 1, 2020.  The Section 21 waiver was further amended effective January 1, 2021, April 1, 2021, and July 1, 2021, and the Department will prepare and request CMS approval of additional amendments of the waiver authorizing additional changes made as part of this rulemaking. 

On or about December 29, 2021, the Office of the Secretary of State gave notice of proposed amendments of MBM Chapter II, Section to the Executive Director of the Legislative Council, and published notice of the rulemaking.  The Department gave notice of the rulemaking to known interested parties, and held a remote public hearing pursuant to 34-B M.R.S. § 5465(4) on January 19, 2022 and accepted other public comment regarding the proposed rulemaking pursuant to 5 M.R.S. § 8057-A(3) until the close of business on January 31, 2022.  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. 

In conformance with the CMS-approved Section 21 waiver, the Department now:

• Adds a definition of “Competitive Integrated Employment” in § 21.02;

• Updates the definitions of “Autism Spectrum Disorder”, “Intellectual Disability”, “Activities of Daily Living”, “Instrumental Activities of Daily Living”, “Person-Centered Service Plan”, and “Shared Living”;

• Eliminates Counseling as a Section 21 Covered Service. Counseling services are available to Section 21 Members under Section 65 of the MaineCare Benefits Manual (MBM).  All Section 21 Members who were receiving Counseling services under Section 21 received written notice of this change in October 2020;

• Updates, expands, and/or clarifies the description of the following Covered Services in § 21.05:
  • Career Planning
  • Community Support
  • Crisis Intervention Services (Requires additional documentation by the Planning Team.)
  • Home Support – Agency Per Diem (Requires that at least one staff person be present and awake at all time one or more Members are at home, 24/7, in order to respond immediately to Member requests for assistance.)
  • Home Support – Family Centered Support
  • Home Support – Quarter Hour
  • Non-Medical Transportation Service
  • Shared Living (Foster Care Adult)
  • Specialized Medical Equipment
  • Speech Therapy (Maintenance) (Clarifies the intent is to prevent regression, loss of movement, injury and medical complications that would result in a higher level of skilled care) 
  • Work Support – Individual (Clarifies the primary focus of the service is job related and encompasses adherence to workplace policies and safety)

• U.S. Department of Justice (DOJ) Settlement Agreement:  On June 4, 2021, the Department entered into a Settlement Agreement with the DOJ (DJ No. 204-34-72).  The Department agreed to adopt a rule which establishes an exceptions process that provides Section 21 Members, and Members applying to receive Section 21 benefits, may request services in excess of otherwise-applicable Section 21 monetary and/or unit caps, where necessary to ensure that Section 21 Members receive adequate and appropriate services and supports in the most integrated setting appropriate to their needs, consistent with Title II of the Americans with Disabilities Act (ADA).  This rulemaking adopts this exceptions process as Requests for Exceptions in § 21.14.

• On January 19, 2022 the Department adopted a new rule which implements the federal requirements for Maine’s Section 1915(c) home and community-based waiver programs set forth in 42 C.F.R. § 441.301(c). This adopted rule is codified as 10-144 C.M.R. ch. 101, MaineCare Benefits Manual, Chapter I, Section 6, Global HCBS Waiver Person-Centered Planning and Settings Rule, referred to as the Global HCBS Rule. The Global HCBS Rule includes requirements for person-centered service planning and for settings in which home and community-based waiver services are provided, including requirements for provider-owned or controlled residential settings. Consistent with the Global HCBS Rule, MBM Chapter II, Section 21 rule incorporates applicable HCBS planning and settings requirements (See, e.g., § 21.04-2 [Person Centered Service Planning Process] and § 21.05-1 [Home and Community Based Settings]).

• This adopted rule notifies providers and the public that all Section 21 providers must comply with all applicable federal and state laws, which includes applicable Maine licensing laws and regulations as well as Ch I, Section 1 of the MBM including maintaining current licenses, as applicable. 

• Plan of Corrective Action (“POCA”):  The Department adopts a new provision which expands upon the quality assurance activities authorized under Appendix V of the rule.  This new § 21.14 authorizes the Department to issue written Notices of Deficiency, and to require providers to submit and implement Plans of Corrective Action as approved by the Department.  Providers have the right to appeal written Notices of Deficiency.  This POCA process provides increased protections for Members and ensures that providers are in compliance 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.

• § 21.08-3 (Termination from Participation as a MaineCare Provider):  The Department clarifies this provision by expressly notifying providers of the MBM Ch. I, Sec. 1 requirement that providers must give written notice of their intent to terminate all participation in the MaineCare Program.  In addition, this provision requires Section 21 providers to notify all Section 21 Members they serve of any intent to terminate participation in the MaineCare program.

• § 21.10-1 (Direct Support Professional Qualifications):  The Department requires all DSPs, regardless of capacity and prior to provision of services to a Member, to receive training regarding the Global HCBS Waiver Person Centered Planning and Settings Rule, MaineCare Benefits Manual, Chapter I, Section 6; eliminates the requirement for grievance process training prior to working with Members; and adds a requirement for DSPs who provide Crisis Intervention to receive behavioral intervention training.  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).  The Department changes Provider Qualifications and Requirements for Direct Support Professionals (DSPs) for Career Planning and Employment Specialist Services.       

• § 21.10-9 (Electronic Visit Verification): The Department requires providers of Home Support-Quarter Hour services to comply with Maine DHHS Electronic Visit Verification (EVV) system standards and requirements. This complies with the 21st Century Cures Act (P.L. 114-255), Section 12006, as codified in 42 U.S.C. § 1396b(l).

• 21.11 (Member Appeals):  The Department is adding a sentence to provide that Members have the right to appeal decisions made regarding priority level and waitlist determinations.

• Appendix IV (Performance Measures):  The Department eliminates Appendix IV 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.

With this rulemaking, the Department adopts and will seek CMS approval of the following additional changes:

• Community Support services are separated into three tiers of service delivery: Community Only-Individual, Community Only-Group, and Center-Based, to support individualized needs of the participant population more broadly. 

• 21.07-2 (Limits):  The Department changes the limit from $26,640 to $39,875 for the combined annual cost of Work Support-Group, Work Support-Individual, and Community Support Services, retroactive to January 1, 2021.  This retroactive application is authorized under 22 M.R.S. § 42(8), as the change is a benefit to both Members and Providers.

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 various Covered Services, including:  § 21.05-1, Home and Community-Based Settings, § 21.05-11, Community Support Services, § 21.05-13, Home Support-Quarter Hour Services, § 21.05-14, Home Support-Remote Support Services, and § 21.05-20 (Shared Living / Foster Care, Adult). 

Additionally, as a result of public comment the adopted rule includes a definition for Competitive Integrated Employment (§ 21.02-9) consistent with the Department’s CMS-approved waiver, a revised definition for § 21.02-5, Autism Spectrum Disorder, to align with the most current edition of the Diagnostic and Statistical Manual of Mental Disorders, (American Psychiatric Association), and a clarified definition for § 21.02-4, Agency Home Support.

Finally, as a result of public comment, the Department has revised the Plan of Corrective Action (POCA) process, specifically § 21.10-14 (D), to align with Chapter I, Section 1 of the MBM in allowing providers 60 days to appeal a Notice of Deficiency and including the mailing address of the Clinical Review Team at § 21.14-2(C).

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

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

EFFECTIVE DATE:                           May 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