October 17, 2018

WEEKLY NOTICES OF STATE RULEMAKING
Public Input for Proposed and Adopted Rules

Notices are published each Wednesday to alert the public regarding state agency rulemaking. 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 rulemaking if the petition is signed by 150 or more registered voters, and may begin rulemaking 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 rulemaking liaisons, who are single points of contact for each agency.

PROPOSALS

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 19, Home and Community Benefits for the Elderly and Adults with Disabilities
PROPOSED RULE NUMBER: 2018-P210
CONCISE SUMMARY: The Department is proposing this rule in accordance with PL 2017 ch. 459, An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“Act”). This Act provides funding to increase personal care and related services provided under Section 19. The Act further directs the Department to “ensure that caps and limitations on home-based and community-based services are increased to reflect increases in reimbursement rates that result from this Part,” and that “A recipient of services may not experience a reduction in hours solely as a result of increased reimbursement.” Act, Sec. B-3.
The Department is proposing rules for Sec. 19, Ch. III, as directed in the Act, and increasing personal care and related rates, simultaneously with the adoption of these proposed Ch. II rules. In accordance with the Act, therefore, this Ch. II rulemaking raises the program cap to $5,425.00 per member per month (Section 19.06.A).
The Department has adopted the increased cap through emergency rulemaking. The Legislature determined that immediate adoption is necessary for the preservation of the public peace, health, and safety under 5 MRS §8054. As such, no additional findings by the Department are required in support of this emergency rulemaking. Pursuant to 5 MRS §§ 8054 (3), the emergency rule may be effective for up to ninety (90) days. The Department is now engaging in proposed routine technical rulemaking to permanently adopt this change.
The increased cap will be effective retroactive to July 1, 2018. The retroactive application comports with 22 MRS §42(8), which authorizes the Department to adopt rules with a retroactive application for a period not to exceed eight calendar quarters and there is no adverse financial impact on any MaineCare member or provider. In addition, the Department sought, and obtained approval, from the Centers for Medicare and Medicaid Services (“CMS”) to submit a waiver amendment making the rate changes retroactive to July 1, 2018.
The proposed rule adds requirements for Electronic Visit Verification (“EVV”), consistent with the requirements of Section 12006 of the 21st Century CURES Act (PL 114-255), as codified in 42 USC §1396b(l)(1). The Department is seeking and anticipates approval from the Centers for Medicare and Medicaid Services for this change.
The following changes in the proposed rule have been approved by the Centers for Medicare and Medicaid Services:
* Deletes language regarding reserve capacity. Eligible members are able to access this waiver; therefore, reserve capacity is not necessary.
* Adds criteria that the Department shall consider when evaluating requests by members to seek an exception to the limitation on services in excess of forty (40) hours per week provided by an individual worker to any individual member or household.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: November 5, 2018, 9:30 a.m., Room 600 - Burton Cross 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 October 26, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on November 15, 2018.
OMS CONTACT PERSON: Rachel Posner, Comprehensive Health Planner II, MaineCare Services, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-6951. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). Email: Rachel.Posner@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department anticipates that this rulemaking will not have any impact on municipalities or counties.
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: N/A
STATUTORY AUTHORITY: 22 MRS §§ 42, 3173; PL 2017 ch. 459 Part B
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULEMAKING 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. III Section 19, Home and Community Benefits for the Elderly and Adults with Disabilities
PROPOSED RULE NUMBER: 2018-P211
CONCISE SUMMARY: The Department is proposing this routine technical rule in accordance with PL 2017 ch. 459 Part B, An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“Act”). The Act requires the Department to amend its rules for reimbursement rates for home-based and community-based personal care and related services provided under the provisions of 10-144 CMR ch. 101, MaineCare Benefits Manual, Ch. III Section 19, “Home and Community Benefits for the Elderly and for Adults with Disabilities”, and referenced 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 increased rates will be effective retroactive to July 1, 2018.
The proposed rule increases rates for 30 procedure codes. In addition, the rule adds in the code and rate for Home Health Aide Visit—Home Health Services, which was inadvertently deleted during final adoption of this rule in January 2018.
The Department has adopted these rates through emergency rulemaking. The Legislature determined that immediate adoption is necessary for the preservation of the public peace, health, and safety under 5 MRS §8054. As such, no additional findings by the Department are required in support of this emergency rulemaking. Pursuant to 5 MRS §8054(3), the emergency rule may be effective for up to ninety (90) days. The Department is now engaging in proposed routine technical rulemaking to permanently adopt these Section 19 rule changes.
These increased rates will be effective retroactive to July 1, 2018. The Department has determined that a retroactive increase to the beginning of the state fiscal year is appropriate, since the appropriation is intended for the entire fiscal year. The retroactive application comports with 22 MRS §42(8) which authorizes the Department to adopt rules with a retroactive application for a period not to exceed eight calendar quarters and there is no adverse financial impact on any MaineCare member or provider. In addition, the Department sought, and obtained approval, by the Centers for Medicare and Medicaid Services (“CMS”) to submit a waiver amendment making the rate changes retroactive to July 1, 2018.
In addition to this rulemaking, the Department is simultaneously adopting emergency rules as well as proposing routine technical rules for Section 19 Ch. II, which rulemaking raises the program cap, in accordance with the Act.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: November 5, 2018, 9:30 a.m., Room 600 - Burton Cross 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 October 26, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on November 15, 2018.
OMS CONTACT PERSON: Rachel Posner, Comprehensive Health Planner II, MaineCare Services, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-6951. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). Email: Rachel.Posner@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department anticipates that this rulemaking will not have any impact on municipalities or counties.
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: N/A
STATUTORY AUTHORITY: 22 MRS §§ 42(1), 42(8), 3173; PL 2017 ch. 459 Part B
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

ADOPTIONS

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Division of Licensing and Certification (DLC) - Maine Background Check Center (MBCC)
CHAPTER NUMBER AND TITLE: Ch. 60 (New), Maine Background Check Center Rule
ADOPTED RULE NUMBER: 2018-224
CONCISE SUMMARY: The reason for this rule is to implement the Maine Background Check Center Act ("the Act") passed in 2015 (22 MRS ch. 1691). This rule governs the use and operation of the Maine Background Check Center ("MBCC"). The MBCC will operate an Internet-based system that employers will use to access criminal records and other background information to determine the eligibility of individuals to work in direct access positions with vulnerable Maine citizens including children, elderly persons, dependent adults and persons with disabilities.
EFFECTIVE DATE: October 17, 2018
AGENCY CONTACT PERSON: Jonathan Leach, Division of Licensing and Certification, 41 Anthony Avenue - 11 State House Station, Augusta, ME 04333-0011. Telephone: (207) 287-5825. Email: Jonathan.H.Leach@Maine.gov .
MBC WEBSITE: https://backgroundcheck.maine.gov/DHHS/MBC/ .
DLC WEBSITE: https://www.maine.gov/dhhs/dlc/ .
DHHS WEBSITE: https://www.maine.gov/dhhs/ .
DHHS RULEMAKING 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 19, Home and Community Benefits for the Elderly and Adults with Disabilities
ADOPTED RULE NUMBER: 2018-225 (Emergency)
CONCISE SUMMARY: The Department is adopting this emergency rule in accordance with PL 2017 ch. 459, An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“Act”). This Act provides funding to increase personal care and related services provided under Section 19. The Act further directs the Department to “ensure that caps and limitations on home-based and community-based services are increased to reflect increases in reimbursement rates that result from this Part,” and that “A recipient of services may not experience a reduction in hours solely as a result of increased reimbursement.” Act, Sec. B-3.
The Act gave notice that the Legislature determined that “these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety…” Pursuant to this Legislative determination, the requirements of 5 MRS §8054(1) are satisfied.
The Department is adopting emergency rules for Sec. 19 Ch. III, as directed in the Act, and increasing personal care and related rates, simultaneously with the adoption of these emergency Ch. II rules. In accordance with the Act, therefore, this Ch. II rulemaking raises the program cap to $5,425.00 per member per month (Section 19.06.A).
The increased cap will be effective retroactive to July 1, 2018. The retroactive application comports with 22 MRS §42(8), which authorizes the Department to adopt rules with a retroactive application for a period not to exceed eight calendar quarters and there is no adverse financial impact on any MaineCare member or provider. In addition, the Department sought, and obtained approval, from the Centers for Medicare and Medicaid Services (“CMS”) to submit a waiver amendment making the rate changes retroactive to July 1, 2018.
Pursuant to 5 MRS §8054(3), this emergency rule will be effective for 90 days. The Department will be pursuing routine technical rulemaking for Ch. II Section 19 to avoid any lapse.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: October 9, 2018
OMS CONTACT PERSON: Rachel Posner, Comprehensive Health Planner II, 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. Email: Rachel.Posner@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULEMAKING 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. III Section 19, Home and Community Benefits for the Elderly and Adults with Disabilities
ADOPTED RULE NUMBER: 2018-226 (Emergency)
CONCISE SUMMARY: The Department is adopting this emergency rule in accordance with PL 2017 ch. 459 Part B, An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“Act”). The Act requires the Department to amend its rules for reimbursement rates for home-based and community-based personal care and related services provided under the provisions of 10-144 CMR ch. 101, MaineCare Benefits Manual, Ch. III Section 19, “Home and Community Benefits for the Elderly and for Adults with Disabilities”, and referenced 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 increased rates will be effective retroactive to July 1, 2018.
The Act gave notice that the Legislature determined that “these facts create an emergency within the meaning of the Constitution of Maine, and require the following legislation as immediately necessary for the preservation of the public peace, health and safety…” Pursuant to this Legislative determination, the requirements of 5 MRS §8054(1) are satisfied.
The Department moved to emergency rulemaking once the rates were calculated and finalized. Rates were increased for 30 procedure codes. In addition, the emergency rule adds in the code and rate for Home Health Aide Visit—Home Health Services, which was inadvertently deleted during final adoption of this rule in January, 2018.
Pursuant to 5 MRS §8054(3), this emergency rule may be effective for up to ninety (90) days. The Department intends to proceed with routine technical rulemaking to permanently adopt this rule.
These increased rates will be effective retroactive to July 1, 2018. The Department has determined that a retroactive increase to the beginning of the state fiscal year is appropriate, since the appropriation is intended for the entire fiscal year. The retroactive application comports with 22 MRS §42(8) which authorizes the Department to adopt rules with a retroactive application for a period not to exceed eight calendar quarters and there is no adverse financial impact on any MaineCare member or provider. In addition, the Department sought, and obtained approval, by the Centers for Medicare and Medicaid Services (“CMS”) to submit a waiver amendment making the rate changes retroactive to July 1, 2018.
In addition to this emergency rulemaking, the Department is simultaneously adopting emergency rules for Sec. 19 Ch. II, which rulemaking raises the program cap, in accordance with the Act.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: October 9, 2018
OMS CONTACT PERSON: Rachel Posner, Comprehensive Health Planner II, 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. Email: Rachel.Posner@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 09-137 - Department of Inland Fisheries and Wildlife (IFW)
CHAPTER NUMBER AND TITLE: Ch. 4, Hunting and Trapping: 4.09, Transportation of Certain Wildlife and Fish into Maine from Outside of the State
ADOPTED RULE NUMBER: 2018-227 (Emergency)
CONCISE SUMMARY: The Department of Inland Fisheries and Wildlife has adopted a rule limiting importation of cervid carcasses and parts from all states and provinces except New Hampshire. This emergency rule has been adopted to prevent the spread of Chronic Wasting Disease (CWD) into Maine. This disease was recently discovered in Quebec at a captive cervid facility. Preventing importation into Maine of cervid parts that may contain CWD will help reduce the likelihood of the disease becoming established in the state.
EFFECTIVE DATE: October 11, 2018
IFW CONTACT PERSON / RULEMAKING LIAISON: Becky Orff, Department of Inland Fisheries and Wildlife, 41 State House Station – 284 State Street, Augusta, ME 04333-0041. Telephone: (207) 287-5202. Email: Becky.Orff@Maine.gov
IFW WEBSITE: http://www.maine.gov/ifw/ .