Notice of Agency Rule-making Proposal: 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
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 Proposal. You can access the complete rule at http://www.maine.gov/dhhs/oms/rules/index.shtml.
Notice of Agency Rule-making Proposal
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
PROPOSED RULE NUMBER:
CONCISE SUMMARY: In response to the statewide staffing crisis and to comply with P.L. 2021, ch. 398 (the “Act”), the Department is proposing 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 change is a beneficial change for the providers. This proposed routine technical rulemaking seeks to make permanent the increases to the reimbursement rates enacted via emergency rule.
Separately, effective December 31, 2021, and coinciding with the adoption of the 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 proposed 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.
STATUTORY AUTHORITY: 22 M.R.S. §§ 42 and 42(8), 3173; P.L. 2021, ch. 398
DATE FILED WITH THE SECRETARY OF STATE’S OFFICE: March 30, 2022
DATE, TIME AND PLACE OF PUBLIC HEARING: April 19, 2022, 09:00 AM Eastern Time (US and Canada)
Due to the ongoing threat posed by COVID-19, DHHS has determined that its public hearing will be conducted solely remotely, via Zoom. This is in accordance with the DHHS Remote Rulemaking Hearings Policy issued September 10, 2021.
(link to Remote Hearings Policy:
Zoom Meeting link: https://mainestate.zoom.us/j/87058388564
Meeting ID: Meeting ID: 870 5838 8564
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Meeting ID: 870 5838 8564
Find your local number: https://mainestate.zoom.us/u/kfBdl37XE
In addition to the public hearing, individuals may submit written comments to DHHS by the date listed in this notice.
COMMENT DEADLINE: April 29, 2022 by:11:59PM, EST
AGENCY CONTACT PERSON: Heather Bingelis, Comprehensive Health Planner II
AGENCY NAME: MaineCare Services
ADDRESS: 109 Capitol Street, 11 State House Station
Augusta, Maine 04333-0011
TELEPHONE: 207-624-6951 FAX: (207) 287-6106
TTY: 711 (Deaf or Hard of Hearing)
IMPACT ON MUNICIPALITIES OR COUNTIES (if any): The Department anticipates that this rulemaking will not have any impact on municipalities or counties.
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