January 25, 2017

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. There is also a list of rule-making liaisons, who are single points of contact for each agency.

PROPOSALS

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 32, Elver Quota System for the 2017 Season
PROPOSED RULE NUMBER: 2017-P009
BRIEF SUMMARY: This proposed rule-making establishes the elver quota allocations for the 2017 season for individuals licensed under  § § 6505-A and 6302-A, and the method of calculating individual elver quota allocations for individuals licensed under  §6505-A. 2017 allocations will be the same as the 2016 allocations, plus any quota associated with licenses not renewed in 2016 or suspended for the duration of 2017. Finally, the proposed regulation clarifies that an individual may not possess or sell in any combination an amount of elvers that exceeds that individual’s individual elver individual fishing quota, and that a transaction card may only be used to sell elvers that individual has taken.
PUBLIC HEARING: February 14, 2017 - 5:00 p.m., DMR Offices, Marquardt Building, 32 Blossom Lane, Augusta, Maine
COMMENT DEADLINE: February 24, 2017
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / DMR RULE-MAKING LIAISON: Deirdre Gilbert, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6576. Fax: (207) 624-6024. TTY: (207) 633-9500 (Deaf/Hard of Hearing). E-mail: Deirdre.Gilbert@Maine.gov .
DMR RULE-MAKING E-MAIL: DMR.rulemaking@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: none
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS  § § 6505-A, 6302-B
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: same
DMR WEBSITE: http://www.maine.gov/dmr/rulemaking/ .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 40, Smelt Regulations
PROPOSED RULE NUMBER: 2017-P010
BRIEF SUMMARY: This proposed rule-making would amend the smelt regulations for Zone One (1), which is the area from the New Hampshire border to Owl’s Head Light. In this Zone, it would permit the taking of smelting only by hook and line through the ice. Currently, fishing is prohibited after March 15, whether there is ice or not. This proposed change would allow fishing for smelt as long as the ice is present. The existing four quart limit would remain in place.
PUBLIC HEARING: February 14, 2017 - 5:15 p.m., DMR Offices, Marquardt Building, 32 Blossom Lane, Augusta, Maine
COMMENT DEADLINE: February 24, 2017
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / DMR RULE-MAKING LIAISON: Deirdre Gilbert, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6576. Fax: (207) 624-6024. TTY: (207) 633-9500 (Deaf/Hard of Hearing). E-mail: Deirdre.Gilbert@Maine.gov .
DMR RULE-MAKING E-MAIL: DMR.rulemaking@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: none
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS  §6171
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: same
DMR WEBSITE: http://www.maine.gov/dmr/rulemaking/ .

AGENCY: 14-118 - Department of Health and Human Services (DHHS), Maine Office of Substance Abuse and Mental Health Services (SAMHS)
CHAPTER NUMBER AND TITLE: Ch. 11, Rules Governing the Controlled Substances Prescription Monitoring Program and Prescription of Opioid Medications
MAJOR SUBSTANTIVE RULE / ROUTINE TECHICAL RULE
PROPOSED RULE NUMBER: 2017-P011
CONCISE SUMMARY: In an effort to combat the Maine opioid epidemic, the Maine Legislature enacted PL 2015 ch. 488 (An Act to Prevent Opiate Abuse by Strengthening the Controlled Substances Prescription Monitoring Program). Ch. 488 included prescriber limits on opioid medication prescribing, effective January 1, 2017; included veterinarians in the definition of prescribers; required electronic prescribing and required prescribers and dispensers to check the Prescription Monitoring Program (PMP) database. Ch. 488 required the Department to establish reasonable exceptions to prescriber limits, and ordered the Department to include prescribers in the process of drafting appropriate exceptions and in the drafting of draft rules. With the guidance of the Maine State Health Officer Dr. Christopher Pezullo, the Department convened a PMP Stakeholder Group that included the Maine Medical Association, the Maine Hospital Association, the Maine Physician Assistant Association, the Maine Nurse Practitioners Association, the Maine Veterinary Medical Association, the Maine Pharmacy Association, and the Maine Osteopathic Association. This Group met at least once monthly, starting in June, 2016. The Maine Legislature mandated a January 1, 2017, effective date for the limits on opiate prescribing, but also mandated that the Department confer with the PMP Stakeholder Group, which continued to meet and confer until early December. In response to all of this, the Department previously adopted an emergency major substantive / routine technical rule that became effective January 1, 2017.
This proposed rule-making makes the following changes:
(1) Adds definitions (including definitions for “acute pain”, “Benzodiazepine”, “chronic pain”, “hospital”, “inpatient status”, “opioid medication”, “serious illness” and also includes veterinarians in the definition of “prescribers”;
(2) Adds general requirements for prescribing and dispensing, including the requirement that all prescribers must acquire DEA numbers and include the DEA number on each prescription, and includes exemption codes to match the exemptions from the opioid limitations set forth in the rule;
(3) Requires prescribers, dispensers and veterinarians to register as PMP data requesters;
(4) Indicates the statutory requirement regarding electronic prescriptions and waivers of such;
(5) Requires that dispensers report information to the PMP by electronic means and indicates the statutory waivers of such;
(6) Requires prescribers, dispensers and veterinarians to check the PMP system;
(7) Indicates the statutory limits on opioid medication prescribing;
(8) Defines exemptions to limits on opioid medication prescribing;
(9) Authorizes the Department to provide and receive PMP data from another state or Canadian province that has entered into an agreement with the Department for such sharing;
(10) Establishes civil violations for prescribers and dispensers;
(11) Establishes administrative sanctions for prescribers and dispensers;
(12) Establishes standards for immunity from liability for disclosure of information;
(13) Establishes standards for immunity from liability for a pharmacists which might result from dispensing medication in excess of the limit, if such dispensing was done in accordance with a prescription issued by a practitioner;
(14) Authorizes the Department to verify and audit prescriber and dispenser compliance with the rules; and
(15) Additional minor technical edits.
The Maine Legislature has designated the PMP regulations as major substantive rules. 22 MRS  §7252. However, Ch. 488 assigned some of its PMP rule changes as routine technical rules. Therefore, the proposed rule contains both major substantive provisions and routine technical provisions. The routine technical provisions are so labeled in the rule. Pursuant to 5 MRS  §8054, the emergency routine technical rule provisions are effective for up to 90 days. Pursuant to 5 MRS  §8073, emergency major substantive rule provisions may be effective for up to twelve months or until the Legislature has completed review of the rules. The Department is now engaging in a single rule-making which will make permanent the emergency routine technical rule provisions and which will also provisionally adopt the emergency major substantive rule provisions, which will then be submitted to the Maine Legislature for its review.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
PUBLIC HEARING: Monday, February 13, 2017 - 9:00 a.m., Conference Room 209B, Augusta Armory, 179 Western Ave. Augusta, ME 04330. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed below before February 5, 2017.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on February 23, 2017.
AGENCY CONTACT PERSON / SMALL BUSINESS INFORMATION: Thomas Leet, Comprehensive Health Planner II, MaineCare Services, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4068. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). E-mail: Thomas.Leet@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: 22 MRS  §7252, PL 2015 ch. 488
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
SAMHS WEBSITE: http://www.maine.gov/dhhs/samhs/osa/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

ADOPTIONS

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. III Section 67, Principles of Reimbursement for Nursing Facility Services
ADOPTED RULE NUMBER: 2017-004
CONCISE SUMMARY: The Department of Health and Human Services adopts this rule change to Ch. III Section 67, “Principles of Reimbursement for Nursing Facility Services”, to increase the Nursing Facility Services’ prospective and final prospective rate to one hundred percent (100%) of all calculated direct care and routine cost components.
The Department is seeking and anticipates receiving approval from the federal Centers for Medicare and Medicaid Services for this change. Pending approval, the increased rate will be effective retroactive to July 1, 2016.
The Department is authorized to adopt these changes retroactively under 22 MRS  §42(8) because these changes increase reimbursement for providers, and will have no adverse impact on either MaineCare providers or members.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: January 18, 2017
AGENCY CONTACT PERSON: Heidi Bechard, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4074. Fax: (207) 287-1864. TTY users call Maine relay 711. Email: Heidi.Bechard@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 18-125 - Department of Administrative & Financial Services (DAFS), Bureau of Revenue Services (Maine Revenue Service – MRS)
CHAPTER NUMBER AND TITLE: Ch. 323, Commercial Agricultural Production, Commercial Aquacultural Production, Commercial Fishing and Commercial Wood Harvesting
ADOPTED RULE NUMBER: 2017-005
CONCISE SUMMARY: This rule explains 36 MRS  §2013 as it pertains to the issuance of refunds and certificates or exemption to persons who are engaged in commercial agricultural production, commercial aquacultural production, commercial fishing, and commercial wood harvesting. The amendments update the rule in order to reflect recent statutory changes that apply to sales occurring on or after January 1, 2017. Prior law provides that fuel was eligible for exemption or refund only when used in a commercial fishing vessel, but effective January 1, 2017, all fuel used by farmers. fishermen and wood harvesters in their business is eligible for exemption or refund. This is routine annual rule-making.
EFFECTIVE DATE: January 22, 2017
AGENCY CONTACT PERSON: David E. Bauer, Esq., Maine Revenue Services, 24 State House Station, Augusta, Maine 04333. Telephone: (207) 699-6677. E-mail: David.E.Bauer@Maine.gov .
MRS WEBSITE: http://www.maine.gov/revenue/ .
MRS RULE-MAKING LIAISON: John.W.Sagaser@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office for Family Independence (OFI)
CHAPTER NUMBER AND TITLE: Ch. 331, Maine Public Assistance Manual (TANF), TANF Rule #106A (EBT): Ch. VI, Administrative Procedures, Electronic Benefit Transfer System
ADOPTED RULE NUMBER: 2017-006
CONCISE SUMMARY: This rule implements the statutory changes restricting the purchase of certain items using TANF benefits through the electronic benefit (EBT) system and creating penalties for violation of the rule. The penalties for knowingly violating the rule include establishing an overpayment in the amount used for the prohibited purchase, and the possibility of an increased period of disqualification from TANF benefits depending on the number of offenses. The statutory changes enacted in April 2016 via PL 484 are codified at 22 MRS  §3763(11)-(12).
The rule serves to clarify potentially ambiguous terms in the statute, including ammunition and vacation and travel services. After notice and comment, the Department modified its definition of vacation and travel services to make clear that routine transportation and emergency travel are not restricted. The proposed version allowed for that type of interpretation, which was not the intent of the statute.
This rule also includes formatting changes throughout the chapter to improve overall appearance, readability, and consistency of terminology. For example, the term “individual” is changed to “recipient,” and “assistance unit” is changed to “assistance group.” Cross references to the Food Supplement Manual have been removed to ensure that obsolete policy is not referenced by mistake.
See http://www.maine.gov/dhhs/ofi/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: February 1, 2017
AGENCY CONTACT PERSON: Marta Noriega, Senior Planner, Office for Family Independence, Department of Health & Human Services, 19 Union Street, 11 State House Station, Augusta, ME 04333. Telephone: (207) 624-4135. Fax: (207) 287-3455. TT Users Call Maine Relay – 711. E-mail: Marta.Noriega@Maine.gov .
OFI WEBSITE: http://www.maine.gov/dhhs/ofi/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .