March 8, 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: 01-015 – Department of Agriculture, Conservation and Forestry (DACF), Maine Milk Commission (MMC)
CHAPTER NUMBER AND TITLE: Ch. 3, Schedule of Minimum Prices, Order #04-17
PROPOSED RULE NUMBER: 2017-P027
BRIEF SUMMARY: The principal reason for this rule is the need to respond to Federal Order changes and to certain other conditions affecting prevailing Class I, II and III milk prices in Southern New England in accordance with 7 MRS  §2954
PUBLIC HEARING: March 23, 2017, Thursday, starting at 10:30 a.m., Room 118, Department of Agriculture, Conservation & Forestry, Marquardt Building, Hospital Street, Augusta, Maine
COMMENT DEADLINE: March 23, 2017
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / MMC RULE-MAKING LIAISON: Tim Drake, Maine Milk Commission, 28 State House Station, Augusta ME 04333. Telephone: (207) 287-7521. E-mail: Tim.Drake@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 5 MRS  §8054, 7 MRS  §2954
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
AGENCY WEBSITE: http://www.maine.gov/dacf/milkcommission/index.shtml .
DACF RULE-MAKING LIAISON: Mari.Wells@Maine.gov .

AGENCY: 12-170 - Department of Labor (DOL), Bureau of Labor Standards (BLS)
CHAPTER NUMBER AND TITLE: Ch. 10, Rules Governing Employment Leave for Victims of Violence
PROPOSED RULE NUMBER: 2017-P028
BRIEF SUMMARY: The rule amendment reflects the changes identified in PL 2015 c. 343 Pt. A  §1 by increasing the fine the Department of Labor may assess upon an employer from up to $200 per violation to up to $1,000 per violation. It also provides that, for denial of leave in violation of the law, the employer must pay the affected individual an amount three times the total assessed fines. And for termination in connection with exercising a right granted under the law, the affected individual may choose either to receive an amount three times the total assessed fines or reemployment with the employer with back wages.
PUBLIC HEARING: None scheduled.
COMMENT DEADLINE: Friday, April 7, 2017 by 12:00 noon
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / DOL RULE-MAKING LIAISON: Jeanne St. Pierre, Department of Labor, 54 State House Station, Augusta, ME 04333-0054. Telephone: (207) 621-5096. E-mail: Jeanne.StPierre@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: Not applicable; no financial impact unless a violation occurs requiring the new assessed penalty.
STATUTORY AUTHORITY FOR THIS RULE: 26 MRS  §850
SUBSTANTNE STATE OR FEDERAL LAW BEING IMPLEMENTED: No changes to the current state law other than the penalty structure. Not required under federal law.
AGENCY WEBSITE: http://maine.gov/labor/labor laws/wagehour.html
BLS WEBSITE: http://www.maine.gov/labor/bls/ .

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. II & III Section 20, Home and Community Based Services for Adults with Other Related Conditions
ADOPTED RULE NUMBER: 2017-030
CONCISE SUMMARY: The Department has made changes to Ch. II that help move the Section 20 waiver program towards compliance with 42 CFR  §431.301(c), which sets forth new provisions for Home and Community Based Services (HCBS) waiver programs, including provisions outlining the person-centered planning process and provisions outlining the qualities of HCBS settings.
The Department has updated Ch. II to expand eligibility criteria and services for Section 20 members. The Department added Muscular Dystrophy, Huntington’s, Spina Bifida or other rare developmentally based conditions to General Eligibility Criteria at Section 20.03-2, and removed the provision that “any other condition will be reviewed for eligibility by the Office of MaineCare Services Medical Director.” The Department is also adding Career Planning as a new service, consistent with other developmental services waiver programs. The Department is seeking approval from CMS to add Licensed Audiologists to the list of providers of Communication Aids services. Although this was not contained in the Ch. II rule proposal, this change is being adopted in Ch. II on the basis that it will benefit members by expanding the number of professionals qualified to provide this service. The Department is also making changes to Ch. II that CMS has already approved in the current waiver, including clarifying the limits on the reimbursement of Assistive Technology Devices. The rule clarifies that there is a combined limit of $6,000.00 annually for devices and certain services associated with leasing, purchasing, and maintaining the devices; and that data transmission utility costs are covered up to $50.00 per month.
Consistent with the current waiver, the adopted rule also clarifies that for Home Support Services in Section 20.05-9, an individual Personal Care Assistant, Personal Support Specialist, or Direct Support Professional shall not be reimbursed for more than forty hours per week for any one waiver member. This provision follows other developmental services waiver programs, and this change helps ensure that individual providers are able to deliver services in a focused and safe manner. Other changes to Ch. II include updating the Quality Reporting requirements in Section 20.14 to help ensure members are receiving quality services under this waiver. The Department has also made a number of formatting and clerical changes to Ch. II for rule clarity.
For Ch. III, the rule adoption increases rates in accordance with PL 2015 ch. 477 (An Act to Increase Payments to MaineCare Providers That Are Subject to Maine’s Service Provider Tax). Effective April 15, 2016, this law provides additional appropriations to certain MaineCare providers that are subject to the service provider tax and that have experienced an increase in the tax from 5% to 6% since January 1, 2016. The Ch. III rule adoption also clarifies reimbursement limits for Assistive Technology Devices, and adds the appropriate procedure codes. The Department also added a procedure code for Career Planning, which was inadvertently left out of the proposed rule, and is consistent with Ch. II provisions.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: March 1, 2017
AGENCY CONTACT PERSON: Rachel Posner, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-6951. Fax: (207) 287-1864. TTY users call Maine relay 711. E-mail: Rachel.Posner@Maine.gov .
OMS 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 Section 29, Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder
ADOPTED RULE NUMBER: 2017-031
CONCISE SUMMARY: The Department is adopting various changes in its rule that help move the Section 29 waiver program towards compliance with 42 CFR  §431.301(c). This federal regulation, effective March 17, 2014, sets forth new provisions for Home and Community Based Services (HCBS) waiver programs, including provisions outlining the person-centered planning process and provisions outlining the qualities of HCBS settings. In addition, to protect members and increase the quality of the Covered Services, the Department is implementing various new provider requirements in Section 29.
Significant Updates and Changes to Ch. II Section 29 include the following:
Changes were made to ensure consistency with the current version of the Diagnostic and Statistical Manual of Mental Disorders (the “DSM”), the DSM 5. Specifically, the reference in the title of this section was changed from “Autistic Disorder” to “Autism Spectrum Disorder.” In addition, throughout Section 29, the term “Mental Retardation” with the term “Intellectual Disability.”
Language was added to the Introduction, Section 29.01, to clarify the purpose of the rule and its intended impact. This change provides more detailed language than existed previously regarding the relationship of the rule to other MaineCare benefits and explains that the benefit is limited in scope.
Multiple changes were made to the Definitions, Section 29.02, including the following:
o A definition of Clinical Review Team (the “CRT”) was added at 29.02-7. The CRT is a newly formed entity that will handle Medical Add On requests. The definition describes the role of the CRT and its responsibilities.
o The definition of Direct Supports at 29.02-10 was amended to remove specific examples of particular Covered Services to preclude the interpretation that Direct Support could be utilized only for those particular Covered Services.
o A definition of Exploitation was added at 29.02-12, as this is one of the circumstances in which providers are expected to report to the Department.
o Language was added to the definition of Medical Add On at 29.02-16 in order to specify the meaning of the term and the services to which it applies, and to explain how it is determined whether to grant Medical Add On.
o Language was added to the “On Behalf Of” section at 29.02-19 in order to specify that it is a billable activity and to remove unnecessary language.
Subpart F was removed from Section 29.03-2, General Eligibility Criteria, Subpart F had specified “lives with family or on their own,” as an eligibility requirement. The Department determined that this language was too limiting, in that people have a variety of living scenarios, including living with unrelated roommates, or with paid staff or residing in a boarding or group home separate from the waiver.
Under Section 29.03-5, Waiting List and Offers for Funding Openings, language was added to specify that once a member receives an offer, he or she moves from the waiting list to a different status, of offer received. The intent is to clarify that such a member is no longer part of the waiting list, thereby freeing up a spot on the waiting list for placement of a new member, with the goal of getting Covered Services to more eligible members more quickly.
Under Section 29.04, Personal Plan, the language was updated to ensure that the member is driving the process and that the process is more closely aligned with 42 CFR  § § 441.301 and 441.303 (eff. March 17, 2017). Direct references to the CFR were included and the Department shall file copies of the incorporated regulations with the Secretary of State’s Office pursuant to 5 MRS  §8056(B)(1)-(3).
Multiple changes were made to Section 29.05, Covered Services, including,
* Under Section 29.05-2, Career Planning, quality-oriented language was added so that the Department could review plans more frequently for appropriateness for the member.
* Under Section 29.05-3, Community Support, language was added to reinforce the fact that career exploration is included as part of this Covered Service and to stress the importance of employment related activities.
* Where applicable, dollar caps were increased to reflect the reimbursement increases implemented by this rule.
* At 29.05-4, Employment Specialist Services, 29.05-11 and Work Support-Individual the limits were removed that prevented members from receiving Employment Specialist Services and Work Support Services while enrolled in high school. This will allow members in transition to begin receiving services sooner, to help them prepare for changes after high school and, ideally, attain employment.
Under Section 29.06, Non Covered Services, the provision excluding certain family members and guardians from providing direct and indirect services to members was removed. Some members receive services from family members, and the Department seeks to continue this practice, which makes services more accessible for members and offers greater member choice.
A number of changes were made to Section 29.07, Limits, including,
o At 29.07-2, Assistive Technology and Career Planning were removed from the annual dollar cap. These services are subject to separate limits as described at 29.07-14 for Assistive Technology and 29.07-15 for Career Planning.
o At 29.07-4 the limit for Home Accessibility Adaptions was increased from $5,000 in a three year period to $10,000 in a five year period. This provides more services and greater flexibility to members.
o At 29.07-10, the limit was removed that prevented members from receiving Work Support Services while enrolled in high school. This will allow members in transition to begin receiving services sooner, to help them prepare for changes after high school and, ideally, attain employment.
o At 29.07-15, the cap of 60 hours of services must be delivered within a six month period, instead of annually. The Department believes this will improve the quality and effectiveness of this Covered Service.
o At 29.07-16, language was added in order to prevent individuals living out of state from receiving MaineCare services, which is contrary to state and federal law.
o Throughout, the Department increased various dollar caps to reflect the 1% increase in reimbursement for providers.
At 29.10, Provider Qualifications and Requirements, new provisions were added to provide additional safeguards for member health and safety, improve quality of services and to increase training and the qualifications for providers. The following changes were made:
o Additional qualifications for Direct Support Professionals.
o Additional qualifications for Employment Specialist.
o Clarification of Background Check Criteria.
o Clarification of Reportable Events & Behavioral Treatment.
At 29.12, Reimbursement, language was added to ensure compliance with the MaineCare rules as regards provider billing requirements.
In Appendix I, language was added to provide details regarding the role and composition of the Clinical Review Team, the types of services that would be appropriate for Medical Add On, and the requirements for Medical Add On determinations and approvals. The Department removed authority to approve Medical Add On retroactively to the date of application because Medical Add on is effectively a prior authorization, which by its nature cannot be backdated.
A new Appendix, Appendix IV - Additional Requirements for Section 29 Providers of Community Support Services, and Employment Specialist Services was added. The Department is adding these requirements to help ensure high quality services to members.
The following is a summary of significant changes that were made to the final rule as a result of the public comments and review by the Office of the Attorney General. A complete list of all changes to the final rule is contained in the Summary of Comments and Responses document.
At Sections 29.05-10 and 29.07-2, the program dollar cap was increased from $23,771.00 to $23,985.00, which reflects the 1% increase in reimbursement and assures no effective service reduction. Also, hourly caps were removed to make clear that the Department intends only to use the dollar caps. Elimination of the hourly caps removes redundancy and potential confusion from the rule, as the monetary cap accomplishes the same purpose as hourly caps.
As a result of comments as well as review by the Office of Attorney General, changes from proposed rule were removed so as to retain the requirement that various services must be implemented within ninety (90) days of assessment. See Sec. 29.04 (Personal Plan), 29.05-1 (Home Support Remote Support).
At 29.04-4, the term “Guardian” was added to make it clear that a member’s guardian may also request an update to the Personal Plan.
At 29.04-2, to be consistent with Section 21, citations to 42 CFR  §441.301(c)(1) and 34-B MRS  §5470-B(2) were added. Also, to ensure consistency with Section 21, at 29.04-2 and 21.10-1, clarification of policy mandating that Grievance Training must take place prior to working with members was added.
At 29.05-5, the limit for adaptations was changed from $5,000 in a three year period to $10,000 in a five year period in order to allow greater flexibility for members using this benefit.
At 29.05-7, Home Support-Remote Support the restriction that “sub-contracting is not permissible under this service” was removed. This will allow providers to subcontract with entities that specialize in technology and provider greater access to Covered Services for members.
Section 29.08-4 (Provider Termination of a Member’s Service) was removed as a result of concerns raised by commenters and the Office of the Attorney General.
* At 29.10-4, Background Check Criteria, the reference to “prospective” employees was removed as a result of concerns raised by commenters and the Office of Attorney General.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: March 4, 2017
AGENCY CONTACT PERSON: Andrew Hardy, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4058. Fax: (207) 287-1864. TTY users call Maine relay 711. E-mail: Andrew.Hardy@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 01-015 – Department of Agriculture, Conservation and Forestry (DACF), Maine Milk Commission (MMC)
CHAPTER NUMBER AND TITLE: Ch. 3, Schedule of Minimum Prices, Order #03-17
ADOPTED RULE NUMBER: 2017-032 (Emergency)
CONCISE SUMMARY: Minimum March 2017 Class I price is $20.15/cwt. plus $1.53/cwt. for Producer Margins, an over-order premium of $1.04/cwt. as being prevailing in Southern New England and $0.93/cwt. handling fee for a total of $23.85/cwt. that includes a $0.20/cwt. Federal promotion fee.
Minimum prices can be found at: http://www.maine.gov/dacf/milkcommission/index.shtml .
EFFECTIVE DATE: February 26, 2017
AGENCY CONTACT PERSON / SMALL BUSINESS INFORMATION / MMC RULE-MAKING LIAISON: Tim Drake, Maine Milk Commission, 28 State House Station, Augusta ME 04333. Telephone: (207) 287-7521. E-mail: Tim.Drake@Maine.gov .
MMC WEBSITE: http://www.maine.gov/dacf/milkcommission/index.shtml .
DACF RULE-MAKING LIAISON: Mari.Wells@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 11, Scallop Regulations: 11.08, Targeted Scallop Conservation Closures, 2nd paragraph and (13)(15)(16)(17)(18) - Chandler Bay/Head Harbor Island, Damariscotta River, North Haven, Mid Penobscot Bay, and Lower Blue Hill Bay/Jericho Bay; 11.12, Ten (10) Year Rotational Management Plan, (5)(7) – Lower Blue Hill Bay/Jericho Bay, Mid Penobsot Bay
ADOPTED RULE NUMBER: 2017-033 (Emergency)
CONCISE SUMMARY: The Commissioner adopts this emergency rule-making for the implementation of conservation closures located in Chandler Bay/Head Harbor Island, Damariscotta River (hand harvest only), North Haven, Mid Penobscot Bay and Lower Blue Hill Bay/Jericho Bay in order to protect Maine's scallop resource as authorized by 12 MRS  §6171(3) due to the risk of imminent depletion and unusual damage. The Department is concerned that unrestricted harvest during the remainder of the 2016-2017 fishing season in these specific areas may damage sublegal scallops that could be caught during subsequent fishing seasons, as well as reducing broodstock essential to a recovery. Based on direct input from Marine Patrol and independent industry participants as well as observations made through the Department's monitoring programs, the level of fishing effort in these areas during the fishing season has exceeded the 30% removal target that ensures the fishery continues to rebuild. Divers will also be allowed continued access to Damariscotta River until such time as further management actions are necessary.
EFFECTIVE DATE: February 26, 2017
AGENCY CONTACT PERSON: Trish Cheney, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6554. Fax: (207) 624-6024. TTY: (888) 577-6690 (Deaf/Hard of Hearing). E-mail: Trisha.Cheney@Maine.gov . DMR Rule-making Website: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/ .
DMR RULE-MAKING LIAISON: Deirdre.Gilbert@Maine.gov .

AGENCY: 94-293 - Baxter State Park Authority
CHAPTER NUMBER AND TITLE: Ch. 1, Baxter State Park Rules and Regulations: Rule 1.2, Camping is permitted by reservation
ADOPTED RULE NUMBER: 2017-034
CONCISE SUMMARY: The Park has extended the camping season at three (3) campgrounds to October 22. The addition of North Branch Camps as a group site facilitates the growing need for sites that accommodate more than 12 people.
EFFECTIVE DATE: March 4, 2017
AGENCY CONTACT PERSON / RULE-MAKING LIAISON: Georgia Manzo, Park Secretary, Baxter State Park Authority, 64 Balsam Drive, Millinocket, ME 04462. Telephone: (207) 723-9500 X2222. E-mail: Georgia.Manzo@BaxterStatePark.org .
WEBSITE: http://www.baxterstateparkauthority.com/index.htm .

AGENCY: 94-293 - Baxter State Park Authority
CHAPTER NUMBER AND TITLE: Ch. 1, Baxter State Park Rules and Regulations: Rule 1.3, All persons entering the Park by road or trail
ADOPTED RULE NUMBER: 2017-035
CONCISE SUMMARY: The purpose of this rule revision is to integrate the ATKatahdin Hiker Permit Card system into the registration of long-distance hikers in Baxter State Park.
EFFECTIVE DATE: March 4, 2017
AGENCY CONTACT PERSON / RULE-MAKING LIAISON: Georgia Manzo, Park Secretary, Baxter State Park Authority, 64 Balsam Drive, Millinocket, ME 04462. Telephone: (207) 723-9500 X2222. E-mail: Georgia.Manzo@BaxterStatePark.org .
WEBSITE: http://www.baxterstateparkauthority.com/index.htm .

AGENCY: 94-293 - Baxter State Park Authority
CHAPTER NUMBER AND TITLE: Ch. 1, Baxter State Park Rules and Regulations: Rule 5.5, The operation of Motorized trail bikes, and ATVs
ADOPTED RULE NUMBER: 2017-036
CONCISE SUMMARY: To accommodate the growing interest of the sport of winter bicycling within Baxter State Park.
EFFECTIVE DATE: March 4, 2017
AGENCY CONTACT PERSON / RULE-MAKING LIAISON: Georgia Manzo, Park Secretary, Baxter State Park Authority, 64 Balsam Drive, Millinocket, ME 04462. Telephone: (207) 723-9500 X2222. E-mail: Georgia.Manzo@BaxterStatePark.org .
WEBSITE: http://www.baxterstateparkauthority.com/index.htm .

AGENCY: 94-293 - Baxter State Park Authority
CHAPTER NUMBER AND TITLE: Ch. 1, Baxter State Park Rules and Regulations: Rule 5.6, Take off and landing of aircraft in the Park
ADOPTED RULE NUMBER: 2017-037
CONCISE SUMMARY: To further enforce UAV use and accommodate and protect the Wilderness Experience of the Park for its visitors and wildlife.
EFFECTIVE DATE: March 4, 2017
AGENCY CONTACT PERSON / RULE-MAKING LIAISON: Georgia Manzo, Park Secretary, Baxter State Park Authority, 64 Balsam Drive, Millinocket, ME 04462. Telephone: (207) 723-9500 X2222. E-mail: Georgia.Manzo@BaxterStatePark.org .
WEBSITE: http://www.baxterstateparkauthority.com/index.htm .

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 Section 21, Home and Community Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder
ADOPTED RULE NUMBER: 2017-038
CONCISE SUMMARY: This regulation governs a federal Medicaid home and community based federal Medicaid 1915C waiver service. In this rule-making, the Department has made changes that help move the Section 21 waiver program towards compliance with 42 CFR Sec. 431.301(c). This federal regulation, effective March 17, 2014, sets forth new provisions for Home and Community Based services (HCBS) waiver programs. The federal regulation requires states to engage in transition planning with the Centers for Medicare and Medicaid Services (CMS) to assure compliance with these provisions. The Department is currently engaged in this process with CMS. For this rule-making, the Department has incorporated changes regarding the Person-Centered planning process. Attached to this Basis Statement is a copy of a portion of the federal regulation, 42 CFR 431.301(c)(1), which is incorporated into this rule by reference.
Although the Department proposed changes (proposed 21.10-6 – Residential Settings Owned or Controlled by a Provider), in compliance with 42 CFR Sec. 441.301(c)(4)((vi)(B), the Department has chosen to not go forward with the proposed language. In response to the many comments the Department received complaining about the inclusion of the federal HCBS settings standards [codified in 42 CFR 441.301(c)(4)(vi)(B – F)] the Department has made the decision to remove, and not adopt, these proposed requirements in the final rule. The Department made this determination in an effort to balance the important goals of the federal HCBS settings standards regulation, and concerns of the Section 21 providers that compliance would be burdensome and expensive. According to CMS guidance, “Home and Community-Based Setting Requirements: Systemic and Site-Specific Assessments and Remediation” posted online at https://www.medicaid.gov/medicaid/hcbs/downloads/q-and-a-hcb-settings.pdf, states have until March 17, 2019 to come into full compliance with the rule. The Department intends to re-propose these requirements in a future rule-making.
Ch. II Section 21 is a routine technical rule and does not require legislative approval prior to final adoption of the rule. The companion rule, Ch. III Section 21, is a major substantive rule and requires legislative approval. With regard to the Ch. III rule, the Department adopted an emergency major substantive rule on September 28, 2016. The Department also went through proposed rule-making for Ch. III, and provisionally adopted the rule on 24 February, 2017. The provisionally adopted rule will be submitted to the Maine Legislature for its approval and action.
This Ch. II proposed rule was publically noticed on September 28, 2016 and a public hearing was held on October 19, 2016 in Augusta. There were 54 people in attendance for the hearing. The Department received comments from 67 individuals until the close of the commenting period on October 29, 2016.
Changes to Ch. II Section 21 include:
* Renamed the section from Home & Community Benefits for Members with Intellectual Disabilities or Autistic Disorder to Home & Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder to be consistent with the Diagnostic and Statistical Manual of Mental Disorders (DSM).
* Throughout Section 21 to be consistent with the DSM, replaced the term “Mental Retardation” with “Intellectual Disabilities.”
* In the Definitions section:
o In the definition of “DSM” the Department deleted the reference to the fourth edition, and substituted “current edition” so that the definition will always refer to the current edition of the DSM.
o Added clarifying language to Administrative Oversight Agency to include language that OADS needs to approve these agencies
o Updated definition for Autism Spectrum Disorder.
o Added Clinical Review Team as the entity to review service requests, including medical add-on services, to ensure clinical oversight.
o Added clarifying language Correspondent, to add spectrum disorder to the term autism.
o Removed language from Direct Supports to make the definition clearer.
o Added clarifying language to Family-Centered Support.
o Updated the definition of Intellectual Disability to be consistent with the Diagnostic and Statistical Manual of Mental Disorders.
o Added the role of the CRT in reference to Medical Add On.
o Deleted the term Mental Retardation, since that term is no longer used by DSM.
o Clarified Prior Authorization
o Moved language from Shared Living definition to the definition of Shared Living Provider.
* Under Determination of Eligibility, added clarifying language to Reserved Capacity
o Updated General Eligibility Criteria added clarifying language and updated the diagnoses to be consistent with the DSM and added Rett Syndrome.
o Under Redetermination of Eligibility added the requirement that every twelve months from the date of initial eligibility approval, the member’s case manager will need to resubmit an updated personal plan and a BMS 99. This is the codification of a current requirement.
* 21.03-5 Substituted “annual cost” for “annual budget” in order to be consistent with the hearings (Calculating the Estimated Annual Cost)
* 21.03-8. Added language regarding “Offers for funded opening” to the effect that at the time a member is offered a funded opening the member will be removed from the waiting list. The reason is that once the Department has determined an offer to meet the members needs has been offered, then the member no longer has to wait for an offer.
* 21.03-9 (Redetermination of Eligibility). Added requirement that eligibility for the waiver for each member has to be redetermined every 12 months. This requirement ensures that the member continues to be eligible for the service.
* 21.04-2 (Plan Requirements), adds language regarding conflict-free planning to ensure that members have informed choices, which is consistent with 42 CFR 441.301(c)(1).
* 21.05 (Covered Services)/Duplicative Services, moved the introductory sentence which stated that duplicative services were not covered, to the 21.06.1 (Duplicative Services) which section elaborates on the services which would be considered duplicative.
* Under Personal Plan and also Planning Team Composition, the language was updated throughout this section to ensure that the member is driving the process and that the process is more closely aligned with the CFR  §441.301 and 34-B MRS  §5470-B(2). Direct references to the CFR were included.
* 21.04-2 (Personal Plan), added the requirement that grievance training be provided to all staff, upon hire, and retraining every thirty six months. The reason for this is because the grievance process is a very important process, and staff members need this training, which benefits members.
* In the Covered Services section:
o Under Communication Aids, added Augmented communication services to replace Facilitated communication services as an update.
o Under Community Supports, added language that will allow for career exploration as part of the service, and allows a member to also receive Work Support services.
o Community Supports, the Department deleted the hour cap and replaced it with a dollar cap of $26,640.10 annually, for this service. This is not a reduction of community support services.
o 21.05-6 (Consultation Services), the Department removed the cap on these services from this section and moved the cap to the Limit Section 21.07-7 (Consultation Services).
o 21.05-9 (Employment Specialist Services), the Department deleted the limit that high school members could not receive this service, in order to help high school members transitioning from school to work.
o 21.05-19 (Physical Therapy Maintenance), added new language so that this service may be provided up to three members at a time.
o 21.05-20 (Shared living), added language to clarify that respite is not separate billable service because it is a component of the rate paid to the Administrative Oversight Agency.
* In the Limits section:
o Added language which disallows duplicative services covered by other sections in the MaineCare Benefits Manual.
o Under Consultation Services, added information regarding limits.
o Definition of annual limits for: Occupational Therapy (Maintenance).
o 21.07-2, the Department increased the limit for combined cost of Community Support, Work Support-individual and Work Support-Group.
o Deleted 21.07-4 and moved that language to 21.07-3 (Home Accessibility Adaptations).
o Added a new limit for Occupational Therapy.
o 21.07-14, added new language to state that if a member was in continuous care in a hospital or a nursing facility for over six months, that member would be terminated from Section 21 waiver services. This is consistent with the Section 21 limit for duplicative services.
* In the Duration of Care Section, added requirements for Provider Termination of a Member’s Services.
* 21.10 - In Provider Qualifications and Requirements, added language throughout to provide additional assurances for the health and safety of members as well as quality of services. These changes include updates to the following:
o Requiring providers to train staff in identifying risks such as risk of abuse, neglect or exploitation;
o Additional qualification for Direct Support Professionals.
o Provider qualifications necessary to perform an Assistive Technology Assessment.
o Shared Living (Foster Care, Adult), requiring that providers maintain a clean and healthy living environment for members.
o Background Check Criteria, requiring background checks for any adult who may be providing direct or indirect services.
o Reportable Events & Behavioral Treatment., requiring that providers provide staff with training on various Department regulations concerning reportable events, and rights of persons with intellectual disability.
* Appendix I. Clarifies that it is the CRT which reviews all increased levels of support requests. The Department also added Physician Assistants to the list of providers who can write a recommendation for medical support.
* Appendix II. Clarifies that it is the CRT that is responsible for review and approval of all Medical Add-ons. The Department also defined what medical conditions support the Medical Add on rate.
* Appendix V- Added Requirements for Section 21 Providers of Home Support Services, Community Support Services, and Employment Specialist Services. This new section of policy was added to assure the health and safety of members as well as quality of services, by placing requirements on certain providers. The requirements include requiring providers to comply with Department regulations for individuals with Intellectual Disabilities, and to comply with Department regulations regarding reporting incidents of abuse, neglect and exploitation of members with intellectual disability. Additional requirements include requiring providers to make available financial information to the Department, and include requirements of homeowners and/or rental insurance. These requirements protect Section 21 members, who are among Maine’s most vulnerable citizens.
Although the Department proposed a change (21.08-4 in the proposed rule) which would have prohibited providers from terminating members without written approval of the Department, the Department has determined to not adopt this change, in light of many public comments challenging this change.
Although the Department proposed the change under 21.05-2 Career Planning which was quality oriented language, the Department has removed from the rule the language requiring that plans will need to be sent into the Department at 3 intervals as those intervals were not defined clearly in the proposed rule.
For a list of changes made from the proposed rule to the Adopted Rule, please review the Summary of Comments and Department’s Responses that were filed with this rule.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: March 5, 2017
AGENCY CONTACT PERSON: Andrew Hardy, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4058. Fax: (207) 287-1864. TTY users call Maine relay 711. E-mail: Andrew.Hardy@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .