November 12, 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: 10-144 - Department of Health and Human Services (DHHS), Office of Child and Family Services
CHAPTER NUMBER AND TITLE: Ch. 6, Child Care Subsidy Program Rules
PROPOSED RULE NUMBER: 2014-P196 (Hearing scheduled)
BRIEF SUMMARY: The rule proposes to clarify program definitions and program eligibility standards. The adopted rules will implement the regulations at 45.CFR 98.11. The rules will incorporate changes and current best practices in the operation of a Child Care Subsidy Program. The major amended provisions include clarification on 1.15 Educational Program, 1.21 Hobby, clarification on 1.22 Homeless Children, clarification on 1.24 In-Home Child Care Provider, clarification on 3.02 Ages of Children, eligibility for 3.06 Job Search, eligibility for 3.06 Medical Leave, eligibility determination for 4.08 One Parent with Disability, clarification on 6.02.10 Parent Fees and 7.07.4 Other fees, clarification on 9.05.4 Excused hours, clarification on 11.02.2 time frame to return a renewal agreement and clarification on 11.05.4 Good Standing. The rules will also include various technical, non-substantive changes relating to section numbering, intra-Departmental agency name changes, spelling, and usage.
PUBLIC HEARING: December 3, 2014 from 4:00 p.m. to 6:00 p.m. at 19 Union Street Room 110, Augusta, Maine 04333
COMMENT DEADLINE: Comments must be received by midnight, December 13, 2014
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Tim Swift, Policy & Training Unit, Office of Child and Family Services, 11 State House Station, Augusta, ME 04333. Telephone: (207) 624-7946. E-mail: Timothy.Swift@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES (if any):
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS §42
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/dhhs/ocfs/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .


AGENCY: 09-137 – Department of Inland Fisheries and Wildlife (IFW)
CHAPTER NUMBER AND TITLE: Ch. 1, Open Water and Ice Fishing Regulations
PROPOSED RULE NUMBER: 2014-P249
BRIEF SUMMARY: The Department of Inland Fisheries and Wildlife has been petitioned to consider the following fishing regulation and remove the sunset provision for ice fishing on First Roach Pond, Piscataquis County:
Roach Pond, First and North Inlet, Frenchtown Twp., Piscataquis County – S-4, S-19, S-26. Open to ice fishing from February 1 – February 28: S-4, S-8, S-19, S-26, closed to the taking of salmon; all salmon caught must be released immediately without removal from the water. Ice fishing regulations sunset on January 1, 2015.
PUBLIC HEARING: December 4, 2014 at 6:30 p.m. - Greenville Consolidated School, Learning Lab, 130 Pritham Avenue, Greenville
COMMENT DEADLINE: December 15, 2014
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / IFW RULE-MAKING LIAISON: Becky Orff, Inland Fisheries & Wildlife, 284 State Street, #41 State House Station, Augusta, ME 04333. Telephone: (207) 287-5202. E-mail: Becky.Orff@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None anticipated
STATUTORY AUTHORITY FOR THIS RULE: 12 MRSA §10104
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/ifw/ .


AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS)
RULE TITLE OR SUBJECT: Ch. 101, MaineCare Benefits Manual: Ch. II Section 15, Chiropractic Services
PROPOSED RULE NUMBER: 2014-P250
CONCISE SUMMARY: The Department is proposing to change the limit calculation methodology from “rolling year” to a calendar year, for purposes of clarity. This rule also proposes to remove the current hard cap of 12 visits per year and allow for additional visits when medically necessary. The Department proposes to impose a prior authorization requirement for additional visits for members over the age of twenty-one (21).
In addition, the proposed changes clarify the types of medical providers that are required to be involved in determining a member’s eligibility for Chiropractic Services.
If approved by the Centers for Medicare and Medicaid (CMS), x-ray services that are medically necessary for diagnosis and treatment of a subluxation shall be a covered service in Section 15. This rulemaking proposes language that explains the reimbursement for chiropractic x-rays. X-ray services provided through this section do not require prior authorization.
Finally, the Department proposes to make a number of technical changes in an effort to provide clarity and eliminate duplicative language. These proposed changes include the elimination of Sec. 15.04 “Specific Eligibility for Care”; elimination of the reference to the Division of Program Integrity (Sec. 15.08); and elimination of other unnecessary language regarding reimbursement, co-pays, and dispute resolution.
See: http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
DATE AND PLACE OF PUBLIC HEARING: December 1, 2014 - 8:30 a.m., Large Conference Room #110, Department of Health and Human Services, 19 Union Street, Augusta, ME 04333. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed below before Monday, November 17, 2014.
DEADLINE FOR COMMENTS: Comments must be received by midnight on Thursday, December 11, 2014.
AGENCY CONTACT PERSON: Debbie Walsh, CHPII, Policy Writer, MaineCare Services, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4052. Fax: (207) 287-1864. TTY: 711 (Deaf /Hard of Hearing). E-mail: Debbie.Walsh@Maine.gov .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 22 MRSA (( 42, 3173
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 (MBM): Ch. II & III Section 65, Behavioral Health Services
PROPOSED RULE NUMBER: 2014-P251
CONCISE SUMMARY: These proposed rule changes seek to add tobacco cessation treatment as a covered service. These changes are being proposed in order to comply with LD 386, An Act to Reduce Tobacco-related Illness and Lower Health Care Costs in MaineCare (22 MRSA §3174-WW), which requires MaineCare to provide comprehensive tobacco cessation treatment to all MaineCare members over the age of eighteen and those who are pregnant. The proposed rule changes add comprehensive tobacco cessation treatment including counseling and products as a covered service for all members, regardless of age, who wish to cease the use of tobacco. Tobacco cessation products are “Covered Drugs,” reimbursable pursuant to Ch. II Section 80.05 of the MBM. As Covered Drugs, tobacco cessation products are included on the Department’s Preferred Drug List (PDL), as set forth in Ch. II Section 80.07-5. The PDL may be accessed via the Department’s website. There are no annual or lifetime dollar limits on tobacco cessation treatment, nor are there any limits on attempts to quit. Members may not be charged a co-pay for tobacco cessation products, and they may not be required to participate in counseling to receive medications.
The following four Current Procedural Terminology (CPT) codes are proposed to be added to Ch. III Section 65: 99406 (smoking and tobacco use cessation counseling; individual, greater than 3 minutes up to 10 minutes), 99407 (smoking and tobacco use cessation counseling; individual, greater than 10 minutes), 99411 (preventive medicine, group counseling; 30 minutes) and 99412 (preventive medicine, group counseling; 60 minutes).
If the Centers for Medicare and Medicaid Services (CMS) approve the Department’s State Plan Amendment, and pursuant to 22 MRSA §42(8), these proposed changes to Section 65 will be effective retroactively to August 1, 2014.
Three additional technical changes are also included in this proposed rule-making:
1. Update of language referencing the former Children’s Behavioral Health Services (CBHS) and Office of Adult Mental Health Services (OAMHS) to the current Office of Child and Family Services (OCFS) and Office of Substance Abuse and Mental Health Services (SAMHS), to reflect current Departmental structure;
2. Replacement of the term “Authorized Agent” to “Authorized Entity” and,
3. In Ch. III, a change to the rate listed for CPT code H2012 with HN UQ TL and HN UQ TM modifiers from $16.65 to $14.65.
The additional proposed technical changes are intended to keep policy language updated and reflect correct rate allowances.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
PUBLIC HEARING: Monday, December 1, 2014 - 10:00 a.m., Room 302, Cross Office Building, 111 Sewall Street, Augusta, ME 04330. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed below before 5:00 p.m., on Monday, November 24, 2014.
DEADLINE FOR COMMENTS: Comments must be received by midnight Thursday, December 11, 2014.
AGENCY CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Elizabeth S. Bradshaw, Comprehensive Health Planner II, MaineCare Services, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4054. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). E-mail: Elizabeth.S.Bradshaw@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department anticipates that this rule-making will not have any impact on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRSA §§ 42, 3173, 42(8), §3174-WW
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
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 for Family Independence (OFI)
RULE TITLE OR SUBJECT: Ch. 301, Food Supplement Program, Rule #184P: Trafficking Controls and EBT Card Replacements (FS-777-7 pages 1-4, FS-999-1 pages 1-7)
PROPOSED RULE NUMBER: 2014-P252
CONCISE SUMMARY: This rule-making codifies provisions in the Food and Nutrition Act of 2008 that improve Program integrity. It is expected to enhance the program’s ability to serve those who are truly in need, and help to ensure that SNAP benefits are used as intended. This rule implements new Federal rules that expand the definition of “Trafficking” to include an attempt to buy or sell Food Supplement benefits or an EBT card, require that replacement EBT cards be placed in the mail by the Department within two business days of their reported loss, theft, or damage; and allows State agencies to deny a request for a replacement card until contact is made by the household with the State agency, if the requests for replacement cards are determined to be excessive. This rule implements this option for Maine. The fee structure for replacement cards has been revised to an amount that shall not exceed the cost of the replacement card.
PUBLIC HEARING: None
DEADLINE FOR COMMENTS: December 14, 2014
AGENCY CONTACT PERSON: Karen L. Curtis, Food Supplement Program Manager, Department of Health and Human Services, Office for Family Independence, 11 State House Station, 19 Union Street, Augusta ME 04333-0011. Telephone: (207) 624-4108. TTY: 711 (Maine Relay). E-mail: Karen.L.Curtis@Maine.gov .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON THE ADMINISTRATIVE BURDENS OF SMALL BUSINESSES.
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 22 M.R.S. §§ 42(1), 3104
WEBSITE: http://www.maine.gov/dhhs/ofi/services/snap/index.html .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

ADOPTIONS

AGENCY: 10-144 - Department of Health and Human Services, Office of MaineCare Services (OMS) - Division of Policy
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. III Section 67, Principles of Reimbursement for Nursing Facilities
ADOPTED RULE NUMBER: 2014-266
CONCISE SUMMARY: On August 15, 2014, the Department adopted an emergency rule, which increased MaineCare nursing facility reimbursement, as required by P.L. 2013, ch. 594 (“An Act to Implement the Recommendations of the Commission to Study Long-term Care Facilities”). The August 15, 2014 emergency rule had a retroactive application date of July 1, 2014 for the changes.
This rule seeks to make permanent those changes to nursing facility reimbursement made in the August 15, 2014 emergency rule. The August 15, 2014 emergency rule had an effective application date for the rule changes of July 1, 2014. This rule also uses the same effective application date for the changes of July 1, 2014.
This rule adopts the following 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 the direct care cost, the peer group upper limit was 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. Changes the methodology for calculating each nursing facility’s specific case mix index for the base year to the following: (1) 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) 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 2009 CMS Nursing Home without Capital Market Basket Index for inflation adjustments, and substitutes : (1) 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 (2) 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. Adds a provision that the inflation adjustments will be done every year.
8. Amends 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. Amends the Direct Care Hold Harmless Provision 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. Amends the Routine Hold Harmless Provision 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. Changes 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 defining Prospective Rate.
12. Adds Principle 81.3 (Prospective Rate), which provides that the prospective rate, excluding fixed costs, will be calculated to be 95.12% of all the calculated Direct Care cost components and all of the Routine Care cost components. Principle 82, the Final Prospective Rate, is also defined as being no more than 95.12%.
13. Adds 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. This language has been changed between the adoption of the emergency rule and this rule in order to clarify the process used to set the rate by breaking down the steps used to calculate the rate and setting when the Funding Adjustment will be used.
14. Added Principle 83 (August 15, 2014 Emergency Rule), to provide that for the retroactive application period of July 1, 2014, through August 15, 2015, the reimbursement to nursing facilities must be equal to or greater than the reimbursement that they had received under the rules previously in effect.
P.L. 2013, 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 carefully reviewed this issue but made no changes for this rulemaking.
Between the proposal and adoption, the following changes were made in response to comments:
The sentence, “This occupancy adjustment does not apply to High MaineCare Utilization or the Nursing Facility Health Care Provider Tax.” was added to Principle 44.10, Occupancy Adjustment.
A second paragraph was added to Principle 44.13, High MaineCare Utilization, to explain how the payment will be audited.
The Department added the phrases, “as described in Principle 41” and “base year,” to Principle 80.3.3(1), Source of Base Year Cost Data, as suggested by the commenter.
The phrase, “unless the facility qualifies for High MaineCare Utilization,” was added to the end of Principles 80.3.5, Direct Care Cost Settlement, and 80.5.7, Routine Cost Settlement, as suggested by the commenter.
The Department added the tool used to inflate rates, the Consumer Price Index, to Principle 91.1, and specified section (4) within Principle 80.3.3 as the location in which the tool is mentioned.
CMS approval is needed for these changes. Accordingly, the Department has submitted a State Plan Amendment.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: November 13, 2014
AGENCY CONTACT PERSON: Rachel Thomas, Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4001. Fax: (207) 287-9369. 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: 10-144 - Department of Health and Human Services (DHHS), Division of Licensing and Regulatory Services
CHAPTER NUMBER AND TITLE: Ch. 114, Rules Governing the Reporting of Sentinel Events
ADOPTED RULE NUMBER: 2014-267
CONCISE SUMMARY: For greater clarity and to avoid confusion, the rule removes from Section 1 duplicate sentinel events that are also listed in Appendix A of the rules. A number of definitions that were closely aligned with National Quality Forum (NQF) definitions have been standardized for consistency. Other changes delete the definitions of “hyperbilirubinemia” and “hypoglycemia”; add definitions of “injury” and “patient”; and move “incorporation by reference” from Section 1 to Section 8.9 of the rules. Section 3.3.2.2 adds “at a healthcare facility” and deletes “in an emergency department, ambulatory surgical facility, or end-stage renal disease facility”. Some language that was formerly in the definition section has been moved to Section 3.3.3 and 3.3.4 regarding when a facility is required to report a sexual assault or a serious event to the sentinel events team. Section 4.1 adds that the primary emphasis is to ensure effective corrective action. Section 8 adds failure to comply with the rules may result in an enforcement action. As necessary, the rules are renumbered and statutory citations added.
EFFECTIVE DATE: January 1, 2015
CONTACT PERSON FOR THIS filing: Kenneth Albert, RN, Esq., Director, Division of Licensing and Regulatory Services, 41 Anthony Avenue, 11 State House Station, Augusta, Maine 04333. Telephone: (207) 287-9300. Fax: (207) 287-5807. E-mail: Kenneth.Albert@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/dlrs/medical_facilities/sentinelevents/home.html .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .