May 24, 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: 14-472 - Department of Health and Human Services (DHHS), Office of Child and Family Services (OCFS)
CHAPTER NUMBER AND TITLE: Ch. 5 (New), Regulations Governing Behavior Plan Development and Implementation for Children with Intellectual Disabilities or Autism Spectrum Disorder (Autism) in Maine
PROPOSED RULE NUMBER: 2017-P034 (comment deadline extended)
BRIEF SUMMARY: The purpose of this rule is to ensure that services provided to Children with Intellectual Disabilities and Autism Spectrum Disorder who are experiencing challenging behavior are based upon positive support strategies, effective behavioral assessment, and least restrictive measures. Interventions are planned, consistent, and assure the child's individual rights and well-being are recognized and protected during the course of treatment. The rule describes the role of the child's planning team in development of the behavior plan. It also specifies the review and approval that is required for plans that propose different levels of restriction of rights.
Please note that this comment period has been extended to allow more time to comment, Rules are available at http://www.maine.gov/dhhs/ocfs/policy.shtml .
COMMENT DEADLINE: June 5, 2017
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Debra White, Hearings and Appeal Unit, DHHS-OCFS, 2 Anthony Avenue, 11 State House Station, Augusta, ME 04333. Telephone: (207) 624- 7968. E-mail: Debra.White@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES (if any):
STATUTORY AUTHORITY FOR THIS RULE: 34-B MRS  § § 5601-5610
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
OCFS WEBSITE: http://www.maine.gov/dhhs/ocfs/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 01-001 - Department of Agriculture, Conservation and Forestry (DACF)
CHAPTER NUMBER AND TITLE: Ch. 307, Fees for Testing Weighing and Measuring Devices
PROPOSED RULE NUMBER: 2017-P059
BRIEF SUMMARY: The proposed rulemaking would amend Ch. 307 to bring weights and measures fees in line with the actual costs to calibrate the equipment and elimination of language referencing fees for adjustment services. A reference to liquefied and compressed natural gas will also be added as Maine could see the future implementation of this technology within the State.
DETAILED SUMMARY: As a follow up to budget discussions with the Governor’s office, this proposed rulemaking would amend Ch. 307 to bring weights and measures fees in line with the actual costs to calibrate the equipment. An analysis of current labor and benefit rates for an inspector highlights that fees collected for calibration services are often less than one half of the labor cost associated with the actual procedure. A comparison with 11 other states also found that Maine fees were among the lowest in the group; not surprising given that Maine has not made any changes to this rulemaking chapter since 1991. Included in the proposed rulemaking would be elimination of language referencing fees for adjustment services given that the Department outsourced this activity to the private sector many years ago. A reference to liquefied and compressed natural gas will also be added as Maine could see the future implementation of this technology within the State. A spreadsheet of the analysis as well as a markup of the chapter is included for reference.
The revised rule proposed for adoption may be obtained on the Department’s internet web page located at: www.maine.gov/dacf/
PUBLIC HEARING: June 12, 2017 - 10:00 a.m., Room 118 Marquardt Bldg., 32 Blossom Lane, Augusta, Maine 04330
COMMENT DEADLINE: June 22, 2017
CONTACT PERSON FOR THIS / SMALL BUSINESS IMPACT INFORMATION: Steve Giguere, Acting Director, Division of Quality Assurance and Regulations, 28 State House Station, Augusta, Maine 04333-0028. Telephone: (207) 287-3841. Fax: (207) 287-5576. TTY: Maine Relay 711. E-mail: Steve.Giguere@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: The proposed amendment to increase weights & measures device testing fees has minimal impact on municipalities or counties. In general, municipalities who may be affected are those who operate airports offering motor fuels for sale or large scales used in determining the cost per ton of solid waste entering landfills and transfer stations.
STATUTORY AUTHORITY FOR THIS RULE: Title 10, Part 6, Ch. 501, Subchapter 9,  §2701
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
AGENCY WEBSITE: www.maine.gov/dacf/ .
DACF RULE-MAKING LIAISON: Mari.Wells@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services, Maine Center for Disease Control and Prevention (Maine CDC)
CHAPTER NUMBER AND TITLE: Ch. 122, Rule Governing the Maine Medical Use of Marijuana Program
PROPOSED RULE NUMBER: 2017-P060
BRIEF SUMMARY: This proposed rulemaking contains changes to remove outdated references to registered patients, reconstruct sections for improved organization, clarify the Department’s procedures needed to implement changes enacted by the 126th and 127th Legislature, including the following: (1) allow a primary caregiver to possess and administer a minor’s medical marijuana on school grounds and school buses; (2) permit certified nurse practitioners to issue written certifications for the medical use of marijuana; (3) allow primary caregivers to retain one employee; (4) allow residents of an inpatient hospice or nursing facility to use and store smokeless forms of medical marijuana in their room; and (5) permit a primary caregiver to dispose of excess prepared marijuana by transferring it to a registered dispensary, a qualifying patient, and/or another primary caregiver. The original draft of proposed changes clarified constitutions for a “collective” and reduced application fees.
Additional changes were proposed after further consideration and review by the Department. These changes include the elimination of language that duplicates statute. Changes proposed for this rulemaking also now include the following: (1) technical edits and revisions to grammar and format; (2) added definitions for bona fide medical provider-patient relationship, on-site assessment, smoking and vaporize; (3) added requirement for Department approval prior to a dispensary acquiring excess prepared marijuana from a registered caregiver; (4) increased consistency for caregivers and dispensaries for plant limit for outdoor cultivation; (5) removal of the provision requiring the proof of identification of authorized persons be held by the caregiver or dispensary while the person is in the cultivation area; (6) allowance for the Department to permit a medical provider to proceed with certifying a minor patient in the absence of a list of willing consulting physicians; (7) added requirement for a petition to add a debilitating condition to be endorsed by a medical provider; (8) added provisions for vaporizing marijuana for medical use; (9) prohibition of cultivation by a visiting patient; (10) added requirement for reporting of inventory and patient designation counts; (11) in Section 10, establishment of procedural details of the Department’s monitoring process to ensure program compliance; and (12) clarification of the processes employed by the Department for approving applications, designations, transfer of excess marijuana and the issuance of written certification.
PUBLIC HEARING: June 14, 2017 - 9 a.m.-noon, Augusta Civic Center, 76 Community Drive, Augusta, ME 04330
COMMENT DEADLINE: 5 p.m., June 26, 2017
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Bridget Bagley; 286 Water Street, 11 State House Station, Augusta, ME 04333. Telephone: (207) 287-9394. Fax: (207) 287-5807. TTY: 711. E-mail: Bridget.Bagley@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS ch. 558-C, Maine Medical Marijuana Act; 22 MRS  § § 42, 205
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
AGENCY WEBSITE: http://www.maine.gov/dhhs/dlrs/mmm/index.shtml .
MAINE CDC RULE-MAKING CONTACT: Tera.Pare@Maine.gov .
MAINE CDC WEBSITE: http://www.maine.gov/dhhs/mecdc/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services, Maine Center for Disease Control and Prevention (Maine CDC)
CHAPTER NUMBER AND TITLE: Ch. 265, Maine Drug Testing Laboratory Rule
PROPOSED RULE NUMBER: 2017-P061
BRIEF SUMMARY: The proposed changes to the Maine Drug Testing Laboratory Rule provide updates to comply with changes in the Maine Department of Labor’s policies. Proposed changes for this rulemaking include: 1) protocols for the collection of hair, oral fluids and sweat patches for drugs in accordance with mandates for federal workplace drug testing programs; 2) in Section 3, the addition of propoxyphene, prescription medications and specific opiates and/or metabolites to the list of substances and groups of substances for which an employer may require testing; 3) revised list of proficiency testing programs in Section 4; 4) clarifying storage requirements for samples; 5) updates to testing technology for screening tests; 6) changing mandatory laboratory inspections to discretionary inspections; and 7) grammatical corrections and reformatting, for clarity.
PUBLIC HEARING: Thursday, June 15, 2017 - 9 a.m., 286 Water Street, Augusta, Maine: Key Plaza, 1st floor, Conference Room 12
COMMENT DEADLINE: 5 p.m., June 26, 2017
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Bridget Bagley; 286 Water Street, 11 State House Station, Augusta, ME 04333. Telephone: (207) 287-9394. Fax: (207) 287-5807. TTY: 711. E-mail: Bridget.Bagley@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None anticipated
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS  §42(1); 22-A MRS  §205(2); 26 MRS  § § 681-690
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/labor/labor_laws/substance_abuse_testing/index.html .
MAINE CDC RULE-MAKING CONTACT: Tera.Pare@Maine.gov .
MAINE CDC WEBSITE: http://www.maine.gov/dhhs/mecdc/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 418, Solid Waste Management Rules: Beneficial Use of Solid Wastes
PROPOSED RULE NUMBER: 2017-P062
BRIEF SUMMARY: The Department’s experience in administering Ch. 418 over past years has highlighted the need to revise it for a variety of reasons. Amendments to Ch. 418 are being proposed in order to: make substantive changes to certain standards and provisions of the rule based on knowledge, experience, and new information; modify the format and language for clarity, consistency and improved operation; and, update citations and references. In part, the proposed amendments include: new exemptions addressing the beneficial use of several different waste streams (e.g., spent septic systems, catch basin grit, petroleum contaminated soil); updated and consolidated general standards for beneficial use projects; replacement of the constituent values in Appendix A (Screening Standards for Beneficial Use) with current, risk based values based on the “Maine Remedial Action Guidelines for Sites Contaminated with Hazardous Substances”, as revised February 5, 2016; additions and revisions to the permit-by-rule and reduced procedure licensing standards pertaining to tires and dredge material; reorganization and substantive updates of the “Fuel Substitution” provisions of the rule; and, establishment of 4 different approval mechanisms (exemption, authorization through notification when certified by a professional engineer, permit-by-rule, and full license procedure) for the beneficial use of emulsified asphalt encapsulated contaminated soil.
PUBLIC HEARING: June 15, 2017 - 9:00 a.m., Augusta Civic Center, Civic Center Drive, Augusta, Maine
COMMENT DEADLINE: June 26, 2017 at 5 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT: Tom Graham, 17 State House Station, Augusta, Maine 04333. Telephone: (207) 287-7598. E-mail: Tom.Graham@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: none anticipated
STATUTORY AUTHORITY FOR THIS RULE: 38 MRS  § § 341-D(1-B), 1304(1,1-B & 13)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: N/A
DEP RULEMAKING WEBSITE: http://www.maine.gov/dep/rules/ .
DEP WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Jeff.S.Crawford@Maine.gov .

AGENCY: 06-096 – Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 502, Direct Watersheds of Lakes Most at Risk from New Development, and Urban Impaired Streams
PROPOSED RULE NUMBER: 2017-P063
BRIEF SUMMARY: The Department is proposing to amend its Ch. 502, Direct Watersheds of Lakes Most at Risk from New Development, and Urban Impaired Streams, to reflect current water quality, and identify those lakes that are now most at risk from development activities and urban impaired streams.
Copies of these rules are available upon request by contacting the Agency contact person or on the DEP website at http://www.maine.gov/dep/rules/ . Pursuant to Maine law, interested parties are publicly notified of the proposed rulemaking and are provided an opportunity for comment. Written comments may be submitted by mail, email or fax to the contact person before the end of the comment period. To ensure the comments are considered, they must include your name and the organization you represent, if any.
PUBLIC HEARING: June 15, 2017 - 9:00 a.m., Augusta Civic Center, Civic Center Drive, Augusta, Maine
COMMENT DEADLINE: June 26, 2017 - 5:00 p.m.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT / DEP RULEMAKING LIAISON: Jeffrey Crawford, DEP, 17 State House Station, Augusta, ME 04333. Telephone: (207) 287-7647. Fax: (207) 287-7826. E-mail: Jeff.S.Crawford@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: The Department is proposing to both add and delete certain waterbodies from its listing of watersheds of lakes most at risk from development, and urban impaired streams. Municipal and county public works projects affecting these resources may be subject to additional (or fewer) stormwater control requirements; these costs (or savings) are site and project-specific and cannot be quantified a priori.
STATUTORY AUTHORITY FOR THIS RULE: 38 MRS  § § 341-D, 420-D, 484
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
DEP RULEMAKING WEBSITE: http://www.maine.gov/dep/rules/ .
DEP WEBSITE: http://www.maine.gov/dep/ .

ADOPTIONS

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS)
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual (MBM): Ch. II and III Section 19, Home and Community Benefits for the Elderly and Adults with Disabilities
ADOPTED RULE NUMBER: 2017-078
CONCISE SUMMARY: The Department is adopting changes to both Ch. II and III of Section 19, “Home and Community Benefits for the Elderly and Adults with Disabilities”, that seek to add services, clarify existing services, increase rates for personal care services, adjust rates and rate methodology for other services, more closely align the rule with federal requirements for waiver services, and make various clerical and formatting updates.
This rule adoption adds three new services that enhance members’ opportunities to access necessary supports and services within their communities: Home Delivered Meals, Living Well for Better Health, and Matter of Balance (Falls Prevention). In addition, the Department is moving Adult Day Health Services from Section 19 to the State Plan. This change benefits members by increasing options for services under the program cap. Services under the State Plan also do not limit members in the same manner under the Section 19 waiver in terms of scope and duration.
The Department is also increasing options for members by adding a definition of “Budget Authority” to allow members under the Participant-Directed Option to determine the wages of hired Attendants, and is adding a definition for “Fiscal Intermediary” so that the responsibilities of the Fiscal Management Services provider are also clear. In addition, the Department added language to the rule which clarifies that, under the Participant-Directed Option, the member is considered the employer of the Attendant. These changes give the member more autonomy in self-directing services under this waiver. Other changes to the Ch. II rule adoption include the addition of the Person-Centered Planning definition and requirement that the Service Coordination Agency follow this model when working with the member to develop and implement services. The adoption of these rule provisions helps move the Section 19 waiver program towards compliance with 42 CFR  §431.301(c). The Department made a number of other changes to the rule adoption to help clarity and improve upon existing processes for determining eligibility. This includes removing the requirement that the member provides a physician’s letter to the Service Coordination Agency, as all services will be medically authorized by the Assessing Services Agency; adding language to the rule that emphasizes consideration of the member’s needs and preferences; and updating the timeframes in which the Assessing Services Agency must complete both assessments and re-assessments, as reflected in current Departmental contracts.
The Department is increasing several rates under Ch. III. To correspond with these rate increases, the Department is increasing the waiver cap in Ch. II. With this rule adoption, the Department is making a number of changes to Ch. III: The Department is adopting rate increases for personal care and related services in accordance with Resolves 2015, ch. 83 (Resolve, Directing the Department of Health and Human Services To Increase Reimbursement Rates for Home-based and Community-based Services). Through this Resolve, the Legislature directed the Department to amend this rule “to reflect 50% of the increase in rates noted in the final rates modeled in the February 1, 2016 report “Rate Review for Personal Care and Related Services: Final Rate Models” prepared for the department by Burns & Associates, Inc.” These rate increases will be retroactive to July 29, 2016, the effective date of the Resolve, and pursuant to 22 MRS  §42(8).
The Department is incorporating other changes to Ch. III as a result of other recommendations in the Burns & Associates rate study. The Department has decreased the rate for three procedure codes: Skilled Nursing Visit (RN), Other Nursing (LPN), and Home Health Aide Visit – Home Health services. In addition, the Department has added new rates and procedure codes in accordance, as set forth in the study, for personal care and related services provided to two and three members simultaneously. These changes will take effect on June 1, 2017. The Department also increased the rate for Respite Care Services, not in the home to match the rate under Section 19 with the current nursing facility rate elsewhere in the MaineCare Benefits Manual. This increase will be retroactive to July 1, 2016.
Next, the Department has added procedure codes and rates for the three new services added under Ch. II: Home Delivered Meals, Living Well (Chronic Disease Management), and Matter of Balance (Falls Prevention). The Department has also removed the procedure code and rate for Adult Day Health Services, as this service will now be offered to members under the State Plan. These changes are effective June 1, 2017.
Finally, the Department is adding columns to differentiate between procedure code, modifier, and revenue code in Ch. III, which should assist providers in billing appropriately.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: June 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)-624-6195. 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 .