August 20, 2014

WEEKLY NOTICES OF STATE RULE-MAKING
Public Input for Proposed and Adopted Rules

Notices are published each Wednesday to alert the public regarding state agency rule-making. You may obtain a copy of any rule by notifying the agency contact person. You may also comment on the rule, and/or attend the public hearing. If no hearing is scheduled, you may request one -- the agency may then schedule a hearing, and must do so if 5 or more persons request it. If you are disabled or need special services to attend a hearing, please notify the agency contact person at least 7 days prior to it. Petitions: you can petition an agency to adopt, amend, or repeal any rule; the agency must provide you with petition forms, and must respond to your petition within 60 days. The agency must enter rule-making if the petition is signed by 150 or more registered voters, and may begin rule-making if there are fewer. You can also petition the Legislature to review a rule; the Executive Director of the Legislative Council (115 State House Station, Augusta, ME 04333, phone 207/287-1615) will provide you with the necessary petition forms. The appropriate legislative committee will review a rule upon receipt of a petition from 100 or more registered voters, or from "...any person who may be directly, substantially and adversely affected by the application of a rule..." (Title 5 Section 11112). World-Wide Web: Copies of the weekly notices and the full texts of adopted rule chapters may be found on the internet at:http://www.maine.gov/sos/cec/rules/index.html. There is also a list of rule-making liaisons, who are single points of contact for each agency.

PROPOSALS

AGENCY: 18-553 - Department of Administrative and Financial Services (DAFS), Bureau of Alcoholic Beverages and Lottery Operations (BABLO) / Maine State Liquor and Lottery Commission
CHAPTER NUMBER AND TITLE: Ch. 60, Monopoly Millionaires’ Club Game Rules
PROPOSED RULE NUMBER: 2014-P187
BRIEF SUMMARY: This new rule governs the Multi-State Lottery Association’s (MUSL) draw game Monopoly Millionaires’ Club (“MMC”). MMC is a national game to be sold in over 22 lotteries in the US. MMC costs $5.00 per single play bet; has a double game matrix of 5 of 52 and 1 of 28 MONOPOLY game board property selected as an EZ Pick; has overall odds of winning a prize of 1 in 10.0025; has odds of winning the top prize of 1 in 72,770,880; has a top prize starting at $15,000,000 rolling to $25,000,000 and has a Match 5+0 second prize of $100,000. This game will be drawn on Fridays.
MMC has a television game show feature. Players may become eligible for the television show studio audience member selection by registering a MONOPOLY Millionaires’ Club ticket or tickets with one or more qualifying properties according to the requirements of these Rules and as indicated by the Lottery that sold the ticket(s). Every player holding tickets qualifying to participate in the studio audience selection process according to the rules announced by the Maine Lottery (“player”) who is selected by the Maine Lottery to participate as a member of a studio audience for an episode of the TV Show, and who is actually present in the studio audience, shall be eligible to be selected from the audience to participate as an on-stage participant in a game or games to be conducted on the TV Show.
MUSL requires selling lotteries has specific game rules in place for the conduct of the game. The Maine State Liquor and Lottery Commission must adopt uniform provisions and Maine specific provisions for the major components of the rules for MMC as required by MUSL. MUSL is the governing body for the MMC game.
Copies of the rule are available by contacting the Maine Bureau of Alcoholic Beverages and Lottery Operations, 8 State House Station, Augusta, Maine 04333-0008.
PUBLIC HEARING: No Public Hearing
COMMENT DEADLINE: October 1, 2014
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / BABLO RULE-MAKING LIAISON: Timothy R. Poulin, Deputy Director, Bureau of Alcoholic Beverages and Lottery Operations, 8 State House Station, Augusta, ME 04333-0008. Telephone: (207) 287-6750. Fax: (207) 287-6769. E-mail: Tim.Poulin@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
IDENTIFICATION OF PRIMARY SOURCE OF INFORMATION: Multi-State Lottery Association and Professional Judgment
STATUTORY AUTHORITY: 8 MRSA §374 and 8 MRSA §372 sub-§2 ¶I
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
BABLO WEBSITE: http://www.maine.gov/dafs/bablo/ .
DAFS RULE-MAKING LIAISON: Jennifer.M.Smith@Maine.gov .


AGENCY: 13-188 - Department of Marine Resources (DMR)
RULE TITLE OR SUBJECT: Ch. 50.02, Spiny Dogfish Trip Limit Increase
PROPOSED RULE NUMBER: 2014-P188
CONCISE SUMMARY: The principal reason for this rule-making is to increase the spiny dogfish commercial daily trip limit from 4,000 to 5,000 pounds effective September 8, 2014. This will expand commercial fishing opportunity, by amending the commercial trip limit regulation to comply with the Atlantic States Marine Fisheries Commission (ASMFC) fishery management plan. On August 6, 2014, the ASMFC’s Spiny Dogfish & Coastal Shark Management Board increased the daily trip limit to 5,000 pounds for the 2014/2015, 2015/2016 and 2016/2017 fishing seasons.
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 12 M.R.S. §6171
PUBLIC HEARING: None scheduled
DEADLINE FOR COMMENTS: September 19, 2014. To ensure consideration, comments must include your name and the organization you represent, if any. Please be aware that any risk of non-delivery associated with submissions by fax or e-mail is on the sender.
AGENCY CONTACT PERSON: Chris Vonderweidt (207-624-6558)
MAIL WRITTEN COMMENTS TO: Department of Marine Resources, attn: K. Rousseau, 21 State House Station, Augusta, Maine 04333. E-mail: dmr.rulemaking@maine.gov . Fax: (207) 624-6024. TTY: (888) 577-6690(Deaf/Hard of Hearing). DMR Rule-making Website: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/index.htm .
DMR RULE-MAKING LIAISON: Kevin.Rousseau@Maine.gov .

ADOPTIONS

AGENCY: 01-026 Department of Agriculture, Conservation and Forestry, Board of Pesticides Control
CHAPTER NUMBER AND TITLE: Ch. 20, Special Provisions
ADOPTED RULE NUMBER: 2014-163
CONCISE SUMMARY: These rule-making amendments relax the need for individual property owner authorization when the Maine CDC recommends spraying due to vector-borne disease threats.
EFFECTIVE DATE: September 11, 2014
AGENCY CONTACT PERSON / SMALL BUSINESS INFORMATION / RULE-MAKING LIAISON: Henry Jennings, Board of Pesticides Control, 28 State House Station, Augusta, Maine 04333-0028. Telephone: (207) 287-2731. E-mail: Henry.Jennings@Maine.gov .
WEBSITE: http://www.maine.gov/dacf/php/pesticides/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .


AGENCY: 01-026 Department of Agriculture, Conservation and Forestry, Board of Pesticides Control
CHAPTER NUMBER AND TITLE: Ch. 22, Standards for Outdoor Application of Pesticides by Powered Equipment in Order to Minimize Off-Target Deposition
ADOPTED RULE NUMBER: 2014-164
CONCISE SUMMARY: These rule-making amendments exempt certain sections when the Maine CDC recommends spraying due to vector-borne disease threats-Identifying and Recording Sensitive Areas; Presence of Humans and Animals, and certain specifics of Site Plans-which would not be practical in an emergency situation.
EFFECTIVE DATE: September 11, 2014
AGENCY CONTACT PERSON / SMALL BUSINESS INFORMATION / RULE-MAKING LIAISON: Henry Jennings, Board of Pesticides Control, 28 State House Station, Augusta, Maine 04333-0028. Telephone: (207) 287-2731. E-mail: Henry.Jennings@Maine.gov .
WEBSITE: http://www.maine.gov/dacf/php/pesticides/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .


AGENCY: 01-026 Department of Agriculture, Conservation and Forestry,-Board of Pesticides Control
CHAPTER NUMBER AND TITLE: Ch. 51, Notice of Aerial Pesticide Application
ADOPTED RULE NUMBER: 2014-165
CONCISE SUMMARY: These rule-making amendments exempt government-sponsored, wide-area vector control programs from most of the chapter- notice requirements are included in Ch. 20 in lieu of individual notification - notice to the BPC and Maine Poison Control were not exempted.
EFFECTIVE DATE: September 11, 2014
AGENCY CONTACT PERSON / SMALL BUSINESS INFORMATION / RULE-MAKING LIAISON: Henry Jennings, Board of Pesticides Control, 28 State House Station, Augusta, Maine 04333-0028. Telephone: (207) 287-2731. E-mail: Henry.Jennings@Maine.gov .
WEBSITE: http://www.maine.gov/dacf/php/pesticides/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .


AGENCY: 02-031 - Department of Professional and Financial Regulation (PFR), Bureau of Insurance
CHAPTER NUMBER AND TITLE: Amendments to Ch. 710, Standards for Determining Whether an Insurance Carrier is in Hazardous Financial Condition
ADOPTED RULE NUMBER: 2014-166
CONCISE SUMMARY: The amendments update the existing rule to reflect Maine statutory changes since its 1993 adoption as well as the development of National Association of Insurance Commissioners' accreditation standards.
EFFECTIVE DATE: August 17, 2014
AGENCY CONTACT PERSON: Elena Crowley, Maine Bureau of Insurance, 34 State House Station, Augusta, ME 04333. Telephone: (207) 624-8424. E-mail: Elana.I.Crowley@Maine.gov .
WEBSITE: http://www.maine.gov/pfr/insurance/ .
INSURANCE RULE-MAKING LIAISON: Thomas.M.Record@Maine.gov .


AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 850, Identification of Hazardous Wastes
ADOPTED RULE NUMBER: 2014-167
CONCISE SUMMARY: This rule-making eliminates the requirement that medicinal nitroglycerin containers be triple rinsed in order to be considered an empty container.
EFFECTIVE DATE: August 17, 2014
AGENCY CONTACT PERSON: Stacy Ladner, Department of Environmental Protection, 17 State House Station, Augusta ME 04333-0017. Telephone: (207) 287-2651. E-mail: Stacy.A.Ladner@Maine.gov .
WEBSITE: www.maine.gov/dep/rules .
DEP RULE-MAKING LIAISON: Mike.Karagiannes@Maine.gov .


AGENCY: 90-351 - Workers’ Compensation Board (WCB)
CHAPTER NUMBER AND TITLE: Repeal and Replace: Ch. 1-4, 6-18. New Ch. 19. Repeal Ch. 23.
ADOPTED RULE NUMBER: 2014-168 thru 186
CONCISE SUMMARY: These changes will eliminate inconsistencies between the Act and rules. This should reduce litigation and confusion. They also fulfill the Board’s requirement to adopt rules pursuant to 39-A MRSA §221(4).
EFFECTIVE DATE: August 18, 2014
AGENCY CONTACT PERSON / WCB RULE-MAKING LIAISON: John C. Rohde, General Counsel, Workers’ Compensation Board, 27 State House Station, Augusta, Maine 04333-0027. Telephone: (207) 287-7086. E-mail: John.Rohde@Maine.gov .
WCB WEBSITE: http://www.maine.gov/wcb/ .


AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS) - Division of Policy
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. II Section 21, Home and Community Benefits for Members with Intellectual Disabilities or Autistic Disorder
ADOPTED RULE NUMBER: 2014-187
CONCISE SUMMARY: The Department added three new services: Assistive Technology, Career Planning and Home Support-Remote Support. The Department split the existing Home Support service into four separate services: Home Support-Agency Per Diem, Home Support-Family Centered Support, Home Support-Quarter Hour, and Shared Living. Additionally, the Department split Work Support into two separate services: Work Support-Individual and Work Support-Group.
The Department added performance measures. The primary goal of performance measurement is to use data to determine the level of success a service is achieving in improving the health and wellbeing of members. Performance goals and performance measures have been established to monitor quality, inform, and guide reimbursement decisions and conditions of provider participation across MaineCare services. This focus on performance measurement is anticipated to enhance the overall quality of services provided and raise the level of public accountability for both the Department and MaineCare providers.
Other changes to the rule included:
* The addition of Licensed Audiologists and Assistive Technology Professionals as qualified providers for the Communication Aids service.
* The addition of Certified Occupational Therapy Assistants (COTA) under the supervision of an Occupational Therapist Registered (OTR) as qualified providers for the Occupational Therapy (Maintenance) service.
* The addition of six (6) new definitions: Activities of Daily Living, Administrative Oversight Agency, Independent Contractor, Instrumental Activities of Daily Living, Prior Authorization and Utilization Review.
* The removal of the definition of Summary of Authorized Services.
* The addition of a reserved capacity category to meet the needs of members under 21 in out-of-state residential placements funded by MaineCare or State funds.
* The phase-out of the Home Support-Family Centered Support services.
* New procedures for filling vacancies in two-person agency-operated homes.
* A requirement for Section 21 applicants and their planning teams to estimate the annual budget for services in the course of applying for waiver services.
* A requirement that the Personal Plan for members electing the Home Support-Remote Support service incorporate a safety/risk plan.
* The addition of limits on Community Support services, Counseling services, Consultation services, and Employment Specialist Services.
* The addition of new provider qualifications for those Direct Support staff that provide Work Support-Individual services, Work Support-Group services, Employment Specialist Services and Career Planning services.
Other technical language changes were also adopted. The reason for the rule changes are to comply with the budget bill P.L. 2013, ch. 368 directing the Department to add Assistive Technology. The Department is complying also with a CMS directive to separate Home Support into separate services. The work support and career planning changes are to comply with LD 8, Resolve, Directing the Department of Health and Human Services to provide coverage under the MaineCare program for Home Support Services for Adults with Intellectual Disabilities or Autistic Disorder. A public hearing was held on April 14, 2014. The comment deadline was April 14, 2014. This change is not expected to have an adverse effect on the administrative burdens of small businesses.
The Department made numerous changes to the Final Rule from the Proposed Rule, in response to comments, and also on the advice of the Office of the Attorney General. A list of the changes and the reasons for the changes can be found in the MAPA document, “Summary of Comments and Responses”.
These rule changes are not anticipated to impose any burden on small businesses or any costs on counties or municipalities.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: September 1, 2014
AGENCY CONTACT PERSON: Ginger Roberts-Scott, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4048. Fax: (207) 287-1864. TTY users call Maine relay 711. E-mail: Ginger.Roberts-Scott@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .


AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS) - Division of Policy
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. II Section 29, Support Services for Members with Intellectual Disabilities or Autistic Disorder
ADOPTED RULE NUMBER: 2014-188
CONCISE SUMMARY: The Department is adopting four new services: Assistive Technology, Career Planning, Home Support-Quarter Hour and Home Support-Remote Support. Additionally, the Department split Work Support into two separate services: Work Support-Individual and Work Support-Group.
The Department is also adopting performance measures. The primary goal of performance measurement is to use data to determine the level of success a service is achieving in improving the health and well-being of members. Performance goals and performance measures have been established to monitor quality, inform, and guide reimbursement decisions and conditions of provider participation across MaineCare services. The focus on performance measurement is anticipated to enhance the overall quality of services provided and raise the level of public accountability for both the Department and MaineCare providers.
Other changes to the rule include:
* The addition of seven (7) new definitions: Activities of Daily Living, Agency Home Support, Independent Contractor, Instrumental Activities of Daily Living, Medical Add On, Prior Authorization and Utilization Review.
* Removal of the definition of Summary of Authorized Services.
* A requirement for Section 29 applicants and their planning teams to estimate the annual budget of services in the course of applying for waiver services.
* A requirement that the Personal Plan for members electing the Home Support-Remote Support Service incorporate a safety/risk plan.
* The addition of limits on Community Support Services, Assistive Technology Services, Career Planning Services, Counseling Services, Consultation Services, Employment Specialist Services and Home Support-Remote Support Services.
* The addition of new provider qualifications for those Direct Support staff that provide Home Support Services, Work Support-Individual Services, Work Support-Group Services, Employment Specialist Services and Career Planning Services.
Other technical language changes are also being adopted. The reason for the rule changes are to comply with the budget bill P.L. 2013, ch. 368 directing the Department to add Assistive Technology to this waiver. The Department is complying with Resolve, Ch. 24, LD 8, Resolve, Directing the Department of Health and Human Services to Provide Coverage under the MaineCare Program for Home Support Services for Adults with Intellectual Disabilities or Autistic Disorder. This Resolve directs the Department to add Home Support as a covered Service to this waiver. The Department is also complying with a CMS directive to separate Home Support into separate services. The Work Support and Career Planning changes are to comply with LD 8, Resolve, Directing the Department of Health and Human Services to provide coverage under the MaineCare program for Home Support Services for Adults with Intellectual Disabilities or Autistic Disorder.
This rule change is not anticipated to have any adverse impact on small businesses or impose any additional costs on counties or municipalities.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: September 1, 2014
AGENCY CONTACT PERSON: Ginger Roberts-Scott, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4048. Fax: (207) 287-1864. TTY users call Maine relay 711. E-mail: Ginger.Roberts-Scott@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .


AGENCY: 01-017 Department of Agriculture, Conservation and Forestry, Maine State Harness Racing Commission
CHAPTER NUMBER AND TITLE: Ch. 5, Tracks: Section 7, Horsemen’s Association Funding
ADOPTED RULE NUMBER: 2014-189
CONCISE SUMMARY: To define the requirements of what a statewide association is for the purpose of receiving monies from the funds to supplement purses in compliance with 8 MRS §272-B; to establish in rule the requirements to qualify to receive the funds; and, when funds are to be paid to the qualifying “association” from these funds.
EFFECTIVE DATE: August 19, 2014
AGENCY CONTACT PERSON: Henry W. Jackson, Maine State Harness Racing Commission, 28 State House Station, Augusta, ME 04333-0028. Telephone: (207) 287-3221. E-mail: Henry.Jackson@Maine.gov .
WEBSITE: http://www.maine.gov/dacf/harnessracing/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .


AGENCY: 01-017 Department of Agriculture, Conservation and Forestry, Maine State Harness Racing Commission
CHAPTER NUMBER AND TITLE: Ch. 7, Racing: Section 8, Preference
ADOPTED RULE NUMBER: 2014-190
CONCISE SUMMARY: To clarify what constitutes the preference date and to bring it into compliance with other jurisdictions.
EFFECTIVE DATE: August 19, 2014
AGENCY CONTACT PERSON: Henry W. Jackson, Maine State Harness Racing Commission, 28 State House Station, Augusta, ME 04333-0028. Telephone: (207) 287-3221. E-mail: Henry.Jackson@Maine.gov .
WEBSITE: http://www.maine.gov/dacf/harnessracing/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .


AGENCY: 01-017 Department of Agriculture, Conservation and Forestry, Maine State Harness Racing Commission
CHAPTER NUMBER AND TITLE: Ch. 9, Sire Stakes: Section 4, Performance Eligibility
ADOPTED RULE NUMBER: 2014-191
CONCISE SUMMARY: This rule change will bring the existing rule into compliance with the change in Ch. 11, Medication and Testing, Section 2.
EFFECTIVE DATE: August 19, 2014
AGENCY CONTACT PERSON: Henry W. Jackson, Maine State Harness Racing Commission, 28 State House Station, Augusta, ME 04333-0028. Telephone: (207) 287-3221. E-mail: Henry.Jackson@Maine.gov .
WEBSITE: http://www.maine.gov/dacf/harnessracing/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .


AGENCY: 01-017 Department of Agriculture, Conservation and Forestry, Maine State Harness Racing Commission
CHAPTER NUMBER AND TITLE: Ch. 11, Medications and Testing: Section 2, Controlled Medication Program; Section 7, Antiulcer Medications; Section 8, Permitted Non-Steroidal Anti-Inflammatory Drugs (MSAIDs); Section 9, Androgenic-Anabolic Steroids (AAS)
ADOPTED RULE NUMBER: 2014-192
CONCISE SUMMARY: To make corrections to Section 2 by moving Phenylbutazone from the Controlled Medication Program to Section 8 that contains the Non-Steroidal Anti-Inflammatory Drug provisions. Further, to make corrections to Sections 7, 8 and 9 to bring them into compliance with new thresholds that have been established by the Association of Racing Commissions International (ARCI).
EFFECTIVE DATE: August 19, 2014
AGENCY CONTACT PERSON: Henry W. Jackson, Maine State Harness Racing Commission, 28 State House Station, Augusta, ME 04333-0028. Telephone: (207) 287-3221. E-mail: Henry.Jackson@Maine.gov .
WEBSITE: http://www.maine.gov/dacf/harnessracing/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Mari.Wells@Maine.gov .


AGENCY: 02-318 - Department of Professional and Financial Regulation (PFR), Office of Professional and Occupational Regulation (OPOR), Maine Electricians’ Examining Board
CHAPTER NUMBERS AND TITLES:
Ch. 120, Electrical Installation Standards
Ch. 125, Scope of Practice
ADOPTED RULE NUMBERS: 2014-193, 194
CONCISE SUMMARY: The adopted rule amends Ch. 120 to conform to the National Electrical Code for Maine for the adoption of the 2014 edition off the National Electrical Code (“NEC”). The adopted rule amends Ch. 125 by deleting Section 8, “Electrical Company”, as a license issued by the Board.
EFFECTIVE DATE: August 20, 2014
AGENCY CONTACT PERSON: Catherine M. Carroll, Board Administrator, Office of Professional and Occupational Regulation, 35 State House Station, Augusta, Maine 04333-0035. Telephone: 207 624-8605. E-mail: Catherine.M.Carroll@Maine.gov .
WEBSITE: http://www.maine.gov/pfr/professionallicensing/professions/electricians/index.html .
OPOR RULE-MAKING LIAISON: Holly.Doherty@Maine.gov .


AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS) – Division of Policy
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. III Section 67, Principals of Reimbursement for Nursing Facilities
ADOPTED RULE NUMBER: 2014-195 (Emergency)
CONCISE SUMMARY: On May 1, 2014, the Maine Legislature enacted emergency law, P.L. 2014, ch. 594 (An Act to Implement the Recommendations of the Commission to Study Long-term Care Facilities), which directed the Department of Health and Human Services (“Department”) to amend its regulation for the MaineCare reimbursement of Nursing Facilities (MaineCare Benefits Manual, Ch. III Section 67), to increase the rate of reimbursement beginning July 1, 2014.
Pursuant to emergency law, P.L. 2014, ch. 594, the Department is adopting this emergency rule without making the emergency findings otherwise required by 5 MRSA §8054, since the law allows the Department to do so if it provided a seven day notice and opportunity to comment on a draft rule. On June 16, 2014, the Department provided interested parties with a copy of the draft rule and opportunity to comment.
The Department carefully reviewed the comments received from the nursing facility providers, which delayed the adoption of this emergency rule.
This emergency rule has a retroactive application back to July 1, 2014 for the rule changes. Retroactive application for MaineCare reimbursement regulations is permitted by 22 MRSA §42(8) if the “reimbursement or other payments under the amended rule [is] equal to or greater than the reimbursement under the rules previously in effect.” In order to comply with 22 MRSA §42(8), this emergency rule adds a provision, Principle 83, that provides:
On August 15, 2014, the Department adopted an emergency rule with a retroactive application date of July 1, 2014. For the period July 1, 2014 through August 15, 2014, the reimbursement or other payments under the August 15, 2014 emergency rule must be equal to or greater than the reimbursement under the rules previously in effect.
This emergency rule makes the following additional changes:
1. Establishes a new base year for nursing facilities which is the fiscal year of each nursing facility ending in calendar year 2011. The base year will be updated every two years.
2. For the routine care cost and for direct care cost, the peer group upper limit is increased to 110% of the median.
3. Eliminates the Administration and Management Expense ceiling, although those costs are still subject to allowability standards.
4. Establishes a payment to nursing facilities that have a high MaineCare Utilization rate (defined as greater than 70% MaineCare days of care). This payment is cost settled.
5. Changed the methodology for calculating each nursing facility’s specific case mix index for the base year to the following: (1) first, the Department calculates the nursing facility’s 2011 average direct care case mix adjusted rate by dividing each nursing facility’s gross direct care payments received for their 2011 base year, by the 2011 base year MaineCare direct care resident days; (2) second, the Department calculates the nursing facility’s 2011 case mix index by dividing the nursing facility’s 2011 average direct care case mix adjusted rate as calculated in (1) by the nursing facility’s 2005 base year direct care rate.
6. Eliminates the use of the 2009 CMS Nursing Home without Capital Market Basket Index for inflation adjustments, and substitutes: (a) the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for Medical Care Services – Nursing Homes and Adult Day Care Services to adjust for inflation for the Routine Cost Component; and (b) the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index, Historical Consumer Price Index for Urban Wage Earners and Clerical Workers – Nursing Home and Adult Day service for the Direct care Component.
7. Provides that inflation adjustments will be done every year.
8. Amended the Direct Care Add-on Principle so that December 31, 2013, rather than July 1, 2008, is used for the inflation calculation, and the facility-specific average case mix index for the base year is used as the applicable case mix index for this calculation.
9. The Direct Care Hold Harmless Provision was amended so that the differential which will be applied is the difference between each nursing facility’s direct care rate for the first fiscal year to which the July 1, 2014 amendments to the rule apply, and the nursing facility’s direct care rate in effect on April 1, 2014.
10. The Routine Hold Harmless Provision was amended so that the differential which will be applied is the difference between each nursing facility’s routine rate for the first fiscal year to which the July 1, 2014 amendments to the rule apply, and the nursing facility’s routine rate in effect on April 1, 2014.
11. Changed the heading for Principle 81 from “Interim and Subsequent Rates” to “Interim, Subsequent, and Prospective Rates” because Principle 81 was amended to add a provision regarding Prospective Rates.
12. Added Principle 81.3 (Prospective Rate), which provides that the prospective rate, excluding fixed costs, will be adjusted down to 95.12% of all the calculated Direct Care cost components and all of the Routine Care cost components. The Final Prospective Rate will remain at 95.12%.
13. Added Principle 81.4 (Funding Adjustment), which provides that in the case of an individual nursing facility, whose rebased, adjusted direct and routine care rates totaled together are less than that nursing facility’s April 1, 2014, direct and routine rates, totaled together, then the Department will make a Funding Adjustment, by adding the difference to the rebased routine rate.
P.L. 2014, ch. 594’s requirement that the rule be amended to increase the specific resident classification group case mix weight that is attributable to a nursing home resident who is diagnosed with dementia is not directly applicable to the case mix methodology which is set forth in the rule, which is function or level-of-service based, and not based on diagnosis. The rule’s case mix methodology already provides that a dementia patient whose condition worsens, and needs a higher level of care, is put in a case mix with a greater weight. The Department will continue to review this issue during the regular rule-making which will follow this emergency rule-making.
CMS approval is needed for these changes, and the Department is seeking to amend its State Plan accordingly.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: August 15, 2014
AGENCY CONTACT PERSON: Rachel Thomas, Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 264-4001. Fax: (207) 287-1864. TTY: 711 (Deaf/Hard of Hearing). E-mail: Rachel.Thomas@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .


AGENCY: 16-219 - Department of Public Safety (DPS) -Office of the Commissioner
CHAPTER NUMBER AND TITLE: Ch. 504, Grievance Procedures for the Handicapped
ADOPTED RULE NUMBER: 2014-196 (Repeal)
CONCISE SUMMARY: This 1984 regulation is being rescinded because it has been superseded by another State regulation (see 12-168 C.M.R. c. 50, “Nondiscrimination Policy and Grievance Procedure”).
EFFECTIVE DATE: August 20, 2014
AGENCY CONTACT PERSON / RULE-MAKING LIAISON: Christopher Parr, Department of Public Safety, Maine State Police, 45 Commerce Drive, Suite 1, 42 State House Station, Augusta, ME 04333-0042. Telephone: (207) 624-7205. E-mail: Christopher.Parr@Maine.gov .
WEBSITE: http://www.maine.gov/dps/ .