November 21, 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. III Section 28, Rehabilitative and Community Support Services for Children with Cognitive Impairments and Functional Limitations
PROPOSED RULE NUMBER: 2018-P245
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) proposes this major substantive rule addressing the emergency rulemaking adopted to increase the rates of reimbursement for rehabilitative and community support services pursuant to PL 2017 ch. 460, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (the “Act”).
The Act requires the Department to amend its rules for reimbursement rates for rehabilitative and community support services provided under the provisions of 10-144 CMR Ch. 101, MaineCare Benefits Manual, Ch. III of Section 28, “Allowances for Rehabilitative and Community Support Services for Children with Cognitive Impairments and Functional Limitations”. Specific changes are as follows:
* Part C of the Act directs the Department to amend the rates of reimbursement to providers of Section 28 services to reflect the final rates modeled in the April 24, 2017 report: “Rate Study for Behavioral Health and Targeted Case Management Services: Final Proposed Rates for Formal Rulemaking” prepared for the Department by Burns & Associates, Inc. Those rate changes were made.
* Part D of the Act directs the Department to increase the rate of reimbursement for all services by two percent Sec. D-1 and D-2 specifically require the increase in reimbursement to be applied to the wages and benefits of employees providing direct services. The two percent rate increase was made to the rates as changed by the Burns study.
Through the Act, 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.” As such, the Act requires the Department to implement “immediate rate increases,” effective July 1, 2018. However, the Act did not become law until July 9, 2018, following a Legislative override of the Governor’s veto.
Because the Act involves MaineCare reimbursement, these rule changes are also governed by federal Medicaid law. 42 CFR §447.205(d) requires that public notice of changes in reimbursement for State Plan services must “be published before the proposed effective date of the change.” The Department published its notice of reimbursement methodology change for the Section 28 rates on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018; this effective date comports with the federal law requirement.
Pending approval of the proposed changes to the Section 28 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.
Pursuant to the Legislative determination regarding the urgent need for these reimbursement increases, the requirements of 5 MRS §8054(1) are satisfied and emergency rulemaking is appropriate. Similarly, an August 1, 2018 retroactive effective date is necessary to implement these changes as soon as possible. The retroactive application comports with 22 MRS §42(8), which authorizes the Department to adopt rules with a retroactive application (where there is no adverse impact on providers or members) for a period not to exceed eight calendar quarters.
To remedy the difference between the July 1, 2018 effective date set forth in the Act, and the August 1, 2018 date that is permissible pursuant to federal Medicaid law, the Department has recalculated the annual appropriation of funds for this service into a temporary eleven month rate. As such, providers will, over the course of eleven months, receive equivalent aggregate payments as would have been received under a twelve month rate. Beginning on July 1, 2019, rates will be annualized (based upon a twelve month appropriation). This is not an effective rate decrease, but rather a redistribution of the annual appropriation over twelve months, rather than eleven months.
PL 2017 ch. 460 Part C Sec. C-1 directed that rulemaking authorized by the Sec. C-1 law would be a “major substantive” rule. Sec. C-1 provided for certain rate increases, and rulemaking, for Section 28 services. Therefore, for purposes of this rulemaking only, the rule is major substantive.
Thereafter, unless otherwise directed by the Legislature, the rule will revert back to routine technical rulemaking status.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: Monday December 10, 2018 - 9 a.m., 32 Blossom Lane, Marquardt Building Door D7, Augusta, ME 04333. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed above before December 3, 2018.
COMMENT DEADLINE: Comments must be received by 11:59 p.m. on December 20th, 2018.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Dean Bugaj, Comprehensive Health Planner, DHHS – OMS - Division of Policy, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207)-624-4045. Fax: (207) 287-1864. TTY users call Maine relay 711. Email: Dean.Bugaj@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department anticipates that this rulemaking will not have any impact on municipalities or counties.
STATUTORY AUTHORITY: 22 MRS §§ 42(8), 3173, 5 MRS §§ 8054 and 8073; PL 2017 ch. 460 Parts C and D
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. II & III Section 12, Consumer-Directed Attendant Services and Allowances for Consumer-Directed Attendant Services
PROPOSED RULE NUMBER: 2018-P246
CONCISE SUMMARY: The Ch. III proposed rule complies 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.
PL 2017 ch. 459 Part B, requires the Department to amends its rules for reimbursement rates for the personal care services under the provisions of 10-144 CMR ch. 101, MaineCare Benefits Manual, Ch. III Section 12, "Allowances for Consumer-Directed Attendant Services", to reflect 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.
In addition, the following changes are made to Ch. II:
1) New Definition added for Fiscal Intermediary (FI), an organization that provides administrative and payroll services on behalf of members self-directing their personal care services. The FI entity has an established contract with the Department, but its service is not billable under this section.
2) Authorized Agent is updated to Authorized Entity throughout the policy.
3) Electronic Visit Verification (EVV) requirements are added effective January 1, 2020 pursuant to Section 12006 of the 21st Century CURES Act (PL 114-255), as codified in 42 USC §1396b(l)(1).
4) Clarification of personal care services duplication with other sections of the MaineCare Benefits Manual is provided.
The Department is seeking, and anticipates receiving, approval from the federal Centers for Medicare and Medicaid Services (CMS) for these changes. Pending CMS approval, the increased reimbursement rates will be effective retroactive to August 1, 2018. A methodology change notice was posted on the Office of MaineCare Services’ website on July 31, 2018.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: December 11, 2018 - 10:00 a.m., Burton Cross Office Building - Conference Room 300, 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 December 4, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on December 21, 2018.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Heidi Bechard, Comprehensive Health Planner II, MaineCare Services, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4074. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). Email: Heidi.Bechard@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department does not anticipate that these rulemakings will have any impact on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS §§ 42, 3173; PL 2017 ch. 459 Part B (128th Legis. 2017), An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: N/A
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. II & III Section 65, Behavioral Health Service
PROPOSED RULE NUMBER: 2018-P247
CONCISE SUMMARY: This letter gives notice of a proposed rule: Ch. 101, MaineCare Benefits Manual, Ch. II & III Section 65, “Behavioral Health Services”.
The Department of Health and Human Services (“the Department”) proposes these rule changes in 10-144 CMR Ch. 101, MaineCare Benefits Manual, Ch. II & III Section 65, “Behavioral Health Services”, to: (a) ensure broader access to crisis services for adults with intellectual disabilities; and (b) increase the rates of reimbursement for services pursuant to PL 2017 ch. 460, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (the “Act”), Parts D, E and I.
Specific changes are as follows:
* Part D of the Act directs the Department to increase the rate of reimbursement for all Section 65 services to ensure a net increase in funding from fiscal year 2008-09 to fiscal year 2018-2019 of two percent as long as no rate for a service is lower than the rate reimbursed as of January 1, 2018. The Legislature required this increase in reimbursement to be applied to the wages and benefits of employees providing direct services to MaineCare members, and not to administrators or managers. Section 65 providers must document compliance with this requirement in their financial records and provide such documentation to the Department upon request.
* Part E of the Act directs the Department to increase the reimbursement rate for Section 65 Medication Management services by fifteen percent. This increase is in addition to the two percent increase required by Part D of the Act.
* Part I of the Act directs the Department to increase the reimbursement rates for Multi-Systemic Therapy (MST), Multi-Systemic Therapy for Problem Sexualized Behaviors (MST-PSB), and Functional Family Therapy (FFT) by twenty percent. This twenty percent increase, which is in addition to the two percent increase, is effective until June 30, 2019. The Department shall publish a separate notice of change in reimbursement methodology, and seek approval from the Centers of Medicare and Medicaid Services (CMS) for the Multi-Systemic Therapy and Functional Family Therapy rate changes that go into effect in 2019.
Through the Act, 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.” As such, the Act requires the Department to implement “immediate rate increases,” effective July 1, 2018. However, the Act did not become law until July 9, 2018, following a Legislative override of the Governor’s veto.
Because the Act involves MaineCare reimbursement, these rule changes are also governed by federal Medicaid law. 42 CFR §447.205(d) requires that public notice of changes in reimbursement for state plan services must “be published before the proposed effective date of the change.” The Department published its notice of reimbursement methodology change for the Section 65 rates on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018; this date comports with the federal law requirement. Pending approval of the proposed changes to the Section 65 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.
Pursuant to the Legislative determination regarding the urgent need for these reimbursement increases, the requirements of 5 MRS §8054(1) are satisfied and emergency rulemaking is appropriate. Similarly, an August 1, 2018 retroactive effective date is necessary to implement these changes as soon as possible. The retroactive application comports with 22 MRS §42(8), which authorizes the Department to adopt rules with a retroactive application (where there is no adverse impact on providers or members) for a period not to exceed eight calendar quarters.
To remedy the difference between the July 1, 2018 effective date set forth in the Act and the August 1, 2018 date that is permissible pursuant to federal Medicaid law, the Department has recalculated the annual appropriation of funds for this service into a temporary eleven month rate. As such, providers will, over the course of eleven months, receive equivalent aggregate payments as would have been received under a twelve month rate. Beginning on July 1, 2019, rates will be annualized (based upon a twelve month appropriation).
Additionally, the Department finds that emergency rule changes are required to add certain diagnoses to Crisis Services in Ch. II. The crisis services system for adult developmental services is stressed, as the agency that previously contracted for state funded beds has declined to renew their contract with the Department. The state offers a small amount of crisis beds, but the demand outweighs the supply. Current policy language does not support serving individuals with developmental disabilities. The Department finds that it must broaden the language in Ch. II Sections 65.06-1, 65.06-2, to extend eligibility to members with developmental disabilities. Without emergency rulemaking, the health, safety, and well-being of these members may be compromised. These rule changes allow any willing and qualified provider of crisis services under Section 65 to offer crisis beds to adult members with developmental disabilities. Additionally, the Department finds that it must add allowable staff (Direct Support Professionals) to treat this population, as those currently available under Section 65 (MHRT) do not have the education or expertise to effectively treat this population.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: December 10, 2018 – 12 p.m., 32 Blossom Lane - Marquardt Building Door D7, Augusta, ME 04333. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed above before December 3, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on December 20, 2018.
OMS CONTACT PERSON: Dean Bugaj, Comprehensive Health Planner II, MaineCare Services, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4045. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). Email: Dean.Bugaj@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(8), 3173; PL 2017 ch. 460 Parts D, E, and I
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. II & III Section 96, Private Duty Nursing and Personal Care Services
PROPOSED RULE NUMBER: 2018-P248
CONCISE SUMMARY: These proposed rules seek to increase rates of reimbursement and level of care limits for personal care and related services pursuant to PL 2017, An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“the Act”), Part B.
PL 2017 ch. 459 Part B requires the Department to amend its rules for reimbursement rates for the home-based and community-based personal care services under the provisions of 10-144 CMR Ch. 101, MaineCare Benefits Manual, Ch. II & III, “Private Duty Nursing and Personal Care Services”. to reflect 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. Further, Part B-3 directs the Department to ensure that caps and limitations on home-based and community-based personal care and related services are increased to reflect the increase in reimbursement rates that result from this change, such that Section 96 recipients may not experience a reduction in hours solely as a result of increased reimbursement rates authorized by the Act.
This Ch. III proposed rule seeks to increase the following rates:
G0299 TD (0551)-RN Services
G0299 TD UN (0551)-RN Services–multiple patients (2)
G0299 TD UP (0551)-RN Services-multiple patients (3)
G0300 TE (0559)-LPN Services
G0300 TE UN (0559)-LPN Services–multiple patients (2)
G0300 TE UP (0559)-LPN Services–multiple patients (3)
T1000 TD-Independent RN
T1000 TD UN-Independent RN-multiple patients (2)
T1000 TD UP-Independent RN–multiple patients (3)
T1004 (0571)-Home Health Aide/Certified Nursing Assistant Services
T1004 UN (0571)-Home Health Aide/Certified Nursing Assistant Services-multiple patients (2)
T1004 UP (0571)-Home Health Aide/Certified Nursing Assistant Services–multiple patients (3)
T1019 (0589)-Personal Support Services
T1019-Personal Support Services (PCA Agencies only)
T1019 UN-Personal Support Services (PCA Agencies only) multiple patients (2)
T1019 UP-Personal Support Services (PCA Agencies only) multiple patients (3)
S5125 TF (0589)-PCA Supervisit
S5125 TF UN (0589)-PCA Supervisit-multiple patients (2)
S5125 TF UP (0589)-PCA Supervisit–multiple patients (3)
S5125 TF-PCA Supervisit (PCA Agencies only)
S5125 TF UN-PCA Supervisit (PCA Agencies only) multiple patients (2)
S5125 TF UP-PCA Supervisit (PCA Agencies only) multiple patients (3)
This Ch. II proposed rule seeks to increase the following level of care limits:
Level I
Level II
Level III
Level IV
Level
Level VIII
Level IX
Additional changes to Ch. II include:
1) Electronic Visit Verification (EVV) requirements as mandated by Section 12006 of the 21st Century CURES Act (PL 114-255) as codified in 42 USC §1396b(l)(1).
2) Care Coordination units are increased from eighteen (18) to twenty-four (24) hours annually.
3) Duration of Care and Non-Covered Services are updated to clarify duplicative personal care services in Section 96 and personal care services in other identified sections of the MaineCare Benefits Manual.
4) For members under the age of 21 receiving 1:1 Nursing Services in a school-based setting, the member’s Plan of Care must indicate the medically necessary services being provided as well as why the onsite nurse or one at another district cannot provide the medical services.
5) New definitions added are Custodial Care and Respite Care.
6) The Private Duty Nursing definition has been updated to state “when normal life activities take the member outside of his or her residence” from “required life activities.”
The Act requires the Department to implement “immediate rate increases,” effective July 1, 2018. However, the Act did not become law until July 9, 2018, following a Legislative override of the Governor’s veto.
Because the Act involves MaineCare reimbursement, these rule changes are also governed by federal Medicaid law. 42 CFR §447.205(d) requires that public notice of changes in reimbursement for State Plan services must “be published before the proposed effective date of the change.” The Department published its notice of reimbursement methodology change for the Section 96 rates on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018; this effective date comports with the federal law requirement. Pending approval of the proposed changes to the Section 96 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.
There are three separate proposed rate changes and increased level of care limits pending before CMS, one submitted in July 2016 (effective July 29, 2016), one submitted in September 2017 (effective September 6, 2017), and one submitted in July 2018 (effective August 1, 2018); thus, there are three retroactive effective dates applicable for these rates included in Ch. III and level of care limits in Ch. II.
To remedy the difference between the July 1, 2018 effective date set forth in the Act, and the August 1, 2018 date that is permissible pursuant to federal Medicaid law, the Department has recalculated the annual appropriation of funds for this service into a temporary eleven month rate. As such, providers will, over the course of eleven months, receive equivalent aggregate payments as would have been received under a twelve month rate. Beginning on July 1, 2019, rates will be annualized (based upon a twelve month appropriation). This is not a rate decrease, but rather a redistribution of the annual appropriation over twelve months, rather than eleven months.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: December 11, 2018 - 1:00 p.m., Burton Cross Building - Room 300, 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 December 4, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on December 21, 2018.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Heidi Bechard, Comprehensive Health Planner II, MaineCare Services, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4074. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). Email: Heidi.Bechard@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department anticipates these rulemakings will not have any impact on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS §§ 42, 3173; PL 2017 ch. 459 Part B (128th Legis. 2017), An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government
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: 16-633 - Department of Public Safety (DPS), Gambling Control Unit
CHAPTER NUMBERS AND TITLES:
Regulation of Fantasy Contests:
Ch. 33, Introduction
Ch. 34, Definitions
Ch. 35, License Applications
Ch. 36, License Fee and Renewal
Ch. 37, Communications and Advertising
Ch. 38, Fantasy Contest System Standards
Ch. 39, Registration of Fantasy Contestants
Ch. 40, Enforcement of Exclusion
Ch. 41, Fantasy Contestant Funds and Required Reserves
Ch. 42, Licensee Records, Annual Reporting and Audits
Ch. 43, Complaints and Disciplinary Actions
Ch. 44, Fairness of Fantasy Contests
PROPOSED RULE NUMBERS: 2018-P249 thru P260 (New chapters)
BASIS STATEMENT / CONCISE: These rules are to comply with changes in state law under 8 MRS ch. 33. Establishes rules for Fantasy Sports Contests to include eligibility for a license, registration of players, player account activity and monitoring, enforcement of self -exclusion and data and report requirements for both players and the state.
THESE RULES WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 8 MRS §1102(D); 8 MRS §1106(1)
PUBLIC HEARING: December 12, 2018 at 9:00 a.m. in the Gambling Control Board Meeting Room, 45 Commerce Drive, Augusta ME 04333
DEADLINE FOR COMMENTS: December 24, 2018
AGENCY CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION / RULEMAKING LIAISON: Milton Champion, Executive Director, Gambling Control Unit, 45 Commerce Drive - Suite 3, Augusta ME 04333-0087. Telephone: (207) 626-3900. Email: Milton.F.Champion@Maine.gov .
WEBSITE: http://www.maine.gov/dps/GambBoard/index.html

AGENCY: 99-639 - ConnectME Authority
CHAPTER NUMBER AND TITLE: Ch. 101, ConnectME Authority
PROPOSED RULE NUMBER: 2018-P261
BRIEF SUMMARY: The purpose of this chapter is to incorporate revisions to the Advanced Technology Infrastructure Act contained in Title 35-A, MRS, ch. 93 (specifically Sections 9201 to 9218), including the operation of the ConnectME Authority.
DETAILED SUMMARY: This revision of Ch. 101, ConnectME Authority, maintains the current operating structure and incorporates several changes to 35-A MRS ch. 93 as a result of legislation passed in the 127th session of the State of Maine Legislature. These changes include:
* a refinement and clarification of the duties of the ConnectME Authority;
* changes in definitions of terms used in Ch. 101;
* changes in data filing requirements;
* the elimination of the Infrastructure Grant program challenge process; and
* the addition of the Planning Grant program and associated processes
PUBLIC HEARING: N/A
COMMENT DEADLINE: Friday, December 21, 2018
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION / RULEMAKING LIAISON: Heather Johnson, ConnectME Authority, 59 State House Station, Augusta, ME 04330-0059. Telephone: (207) 624-9838. Email: Heather.Johnson@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 35-A MRS ch. 93
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different): N/A
AGENCY WEBSITE: www.maine.gov/connectme/ .

AGENCIES: 06-096 - Maine Department of Environmental Protection (DEP), jointly with 94-376 - Maine Municipal Bond Bank (MMBB)
CHAPTER NUMBER AND TITLE: Ch. 595, State Revolving Fund
PROPOSED RULE NUMBERS: 2018-P262, P263
BRIEF SUMMARY: Ch. 595 contains eligibility requirements for the funding of planning, design, and/or construction of municipal wastewater treatment works and other water pollution control facilities or practices under the State Revolving Fund (SRF). The existing rule will be amended to allow eligible applicants of Maine’s SRF program to use construction delivery methods that have become common practice in the construction industry and are utilized by other state SRF’s nationally. The proposed amendments also update the rule in accordance with current procedures at the Maine Municipal Bond Bank, and bring the rule into consistency with current Federal requirements.
PUBLIC HEARING: No public hearing is scheduled. There is a 30-day written comment period. A public hearing will be held if the Department receives 5 or more requests before the end of the comment period.
COMMENT DEADLINE: December 28, 2018 at 5:00 p.m.
CONTACT PERSONS FOR THIS FILING:
John True, Maine DEP 17 State House Station, Augusta, Maine 04333-0017. Telephone: (207) 287-7808. Email: John.N.True@Maine.gov .
Greg Connors, Maine Municipal Bond Bank, P.O. Box 2268, Augusta, ME 04338-2268. Telephone: (207) 622-9386. Email: gdc@mmbb.com .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None anticipated. 
STATUTORY AUTHORITY FOR THIS RULE: 30-A MRS §5959
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: Water Resources Reform and Development Act (June 10, 2014) (WRRDA), amending Titles I, II, V, and VI of the Federal Water Pollution Control Act (FWPCA), and the Federal Funding Accountability and Transparency Act of 2010.
DEP RULEMAKING WEBSITE: http://www.maine.gov/dep/rules/ .
AGENCY WEBSITES: http://www.maine.gov/dep/ ; https://www.mmbb.com/ .
RULEMAKING LIAISONS: DEP: Jeff.S.Crawford@Maine.gov ; Bond Bank: gdc@mmbb.com .

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. III Section 12, Allowances for Consumer-Directed Attendant Services
ADOPTED RULE NUMBER: 2018-245 (Emergency)
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) adopts this emergency rule to increase the rates of reimbursement for personal care services provided through Ch. III Section 12, “Allowances for Consumer-Directed Attendant Services”, pursuant to 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. The Department is seeking, and anticipates receiving, approval from the federal Centers for Medicare and Medicaid Services (CMS) for this change. Pending approval, the increased rates of reimbursement will be effective retroactive to August 1, 2018.
The adopted rule ensures vulnerable members have access to medically necessary covered services and providers of Attendant Care Services will receive increased rates of reimbursement. Otherwise, the Department anticipates no adverse impact on either MaineCare providers or members. Further, this change is not expected to have an adverse effect on the administrative burdens of small businesses.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: November 13, 2018
OMS CONTACT PERSON: Heidi Bechard, 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. Email: Heidi.Bechard@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. II & III Section 65, Behavioral Health Service
ADOPTED RULE NUMBER: 2018-246 (Emergency)
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) adopts these emergency rule changes in 10-144 CMR ch. 101, MaineCare Benefits Manual, Ch. II and III Section 65, “Behavioral Health Services”, to: (a) ensure broader access to crisis services for adults with intellectual disabilities; and (b) increase the rates of reimbursement for services pursuant to PL 2017 ch. 460, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (the “Act”), Parts D, E and I.
Specific changes are as follows:
* Part D of the Act directs the Department to increase the rate of reimbursement for all Section 65 services to ensure a net increase in funding from fiscal year 2008-09 to fiscal year 2018-2019 of two percent as long as no rate for a service is lower than the rate reimbursed as of January 1, 2018. The Legislature required this increase in reimbursement to be applied to the wages and benefits of employees providing direct services to MaineCare members, and not to administrators or managers. Section 65 providers must document compliance with this requirement in their financial records and provide such documentation to the Department upon request.
* Part E of the Act directs the Department to increase the reimbursement rate for Section 65 Medication Management services by fifteen percent. This increase is in addition to the two percent increase required by Part D of the Act.
* Part I of the Act directs the Department to increase the reimbursement rates for Multi-Systemic Therapy (MST), Multi-Systemic Therapy for Problem Sexualized Behaviors (MST-PSB), and Functional Family Therapy (FFT) by twenty percent. This twenty percent increase, which is in addition to the two percent increase, is effective until June 30, 2019. The Department shall publish a separate notice of change in reimbursement methodology, and seek approval from the Centers of Medicare and Medicaid Services (CMS) for the Multi-Systemic Therapy and Functional Family Therapy rate changes that go into effect in 2019.
Through the Act, 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.” As such, the Act requires the Department to implement “immediate rate increases,” effective July 1, 2018. However, the Act did not become law until July 9, 2018, following a Legislative override of the Governor’s veto.
Because the Act involves MaineCare reimbursement, these rule changes are also governed by federal Medicaid law. 42 CFR §447.205(d) requires that public notice of changes in reimbursement for state plan services must “be published before the proposed effective date of the change.” The Department published its notice of reimbursement methodology change for the Section 65 rates on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018; this date comports with the federal law requirement. Pending approval of the proposed changes to the Section 65 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.
Pursuant to the Legislative determination regarding the urgent need for these reimbursement increases, the requirements of 5 MRS §8054(1) are satisfied and emergency rulemaking is appropriate. Similarly, an August 1, 2018 retroactive effective date is necessary to implement these changes as soon as possible. The retroactive application comports with 22 MRS §42(8), which authorizes the Department to adopt rules with a retroactive application (where there is no adverse impact on providers or members) for a period not to exceed eight calendar quarters.
To remedy the difference between the July 1, 2018 effective date set forth in the Act and the August 1, 2018 date that is permissible pursuant to federal Medicaid law, the Department has recalculated the annual appropriation of funds for this service into a temporary eleven month rate. As such, providers will, over the course of eleven months, receive equivalent aggregate payments as would have been received under a twelve month rate. Beginning on July 1, 2019, rates will be annualized (based upon a twelve month appropriation).
Additionally, the Department finds that emergency rule changes are required to add certain diagnoses to Crisis Services in Ch. II. The crisis services system for adult developmental services is stressed, as the agency that previously contracted for state funded beds has declined to renew their contract with the Department. The state offers a small amount of crisis beds, but the demand outweighs the supply. Current policy language does not support serving individuals with developmental disabilities. The Department finds that it must broaden the language in Ch. II Sections 65.06-1, 65.06-2, to extend eligibility to members with developmental disabilities. Without emergency rulemaking, the health, safety, and well-being of these members may be compromised. These rule changes allow any willing and qualified provider of crisis services under Section 65 to offer crisis beds to adult members with developmental disabilities. Additionally, the Department finds that it must add allowable staff (Direct Support Professionals) to treat this population, as those currently available under Section 65 (MHRT) do not have the education or expertise to effectively treat this population.
Pursuant to 5 MRS §8054, this emergency rule may be effective for up to ninety days. The Department shall proceed with routine technical rulemaking to permanently adopt these rule changes.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: November 13, 2018
OMS CONTACT PERSON: Dean Bugaj, Comprehensive Health Planner, Division of Policy, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4045. Fax: (207) 287-1864. TTY users call Maine relay 711. Email: Dean.Bugaj@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. II & III Section 96, Private Duty Nursing and Personal Care Services
ADOPTED RULE NUMBER: 2018-247 (Emergency)
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) adopts these emergency rules to increase the rates of reimbursement and level of care limits for personal care and other related services pursuant to 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 (“the Act”), Part B.
The Act requires the Department to amend its rules for reimbursement rates and level of care limits 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. II & III Section 96, “Private Duty Nursing and Personal Care Services” (“Section 96”) 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. Further, Part B-3 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 PL 2017. In addition, a recipient of services may not experience a reduction in hours solely as a result of the increased reimbursement rates authorized by the Act.
This Ch. III emergency rule increases the following rates:
G0299 TD (0551)-RN Services
G0299 TD UN (0551)-RN Services–multiple patients (2)
G0299 TD UP (0551)-RN Services-multiple patients (3)
G0300 TE (0559)-LPN Services
G0300 TE UN (0559)-LPN Services–multiple patients (2)
G0300 TE UP (0559)-LPN Services–multiple patients (3)
T1000 TD-Independent RN
T1000 TD UN-Independent RN-multiple patients (2)
T1000 TD UP-Independent RN–multiple patients (3)
T1004 (0571)-Home Health Aide/Certified Nursing Assistant Services
T1004 UN (0571)-Home Health Aide/Certified Nursing Assistant Services-multiple patients (2)
T1004 UP (0571)-Home Health Aide/Certified Nursing Assistant Services–multiple patients (3)
T1019 (0589)-Personal Support Services
T1019-Personal Support Services (PCA Agencies only)
T1019 UN-Personal Support Services (PCA Agencies only) multiple patients (2)
T1019 UP-Personal Support Services (PCA Agencies only) multiple patients (3)
S5125 TF (0589)-PCA Supervisit
S5125 TF UN (0589)-PCA Supervisit-multiple patients (2)
S5125 TF UP (0589)-PCA Supervisit–multiple patients (3)
S5125 TF-PCA Supervisit (PCA Agencies only)
S5125 TF UN-PCA Supervisit (PCA Agencies only) multiple patients (2)
S5125 TF UP-PCA Supervisit (PCA Agencies only) multiple patients (3)
This Ch. II emergency rule increases the following level of care limits:
Level I
Level II
Level III
Level IV
Level V
Level VIII
Level IX
Through the Act, 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.” As such, the Act requires the Department to implement “immediate rate increases,” effective July 1, 2018. However, the Act did not become law until July 9, 2018, following a Legislative override of the Governor’s veto.
Because the Act involves MaineCare reimbursement, these rule changes are also governed by federal Medicaid law. 42 CFR §447.205(d) requires that public notice of changes in reimbursement for State Plan services must “be published before the proposed effective date of the change.” The Department published its notice of reimbursement methodology change for the Section 96 rates on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018, this effective date comports with the federal law requirement. Pending approval of the proposed changes to the Section 96 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.
There are four separate proposed rate changes and increased level of care limits pending before CMS, one submitted in September 2015 (effective July 1, 2015), one submitted in September 2016 (effective July 29, 2016), one submitted in September 2017 (effective September 6, 2017), and one submitted in July 2018 (effective August 1, 2018); thus, there are four retroactive effective dates applicable for these rates included in Ch. III.
Pursuant to the Legislative determination regarding the urgent need for these reimbursement increases, the requirements of 5 MRS §8054(1) are satisfied and emergency rulemaking is appropriate. Similarly, an August 1, 2018 retroactive effective date is necessary to implement these changes as soon as possible. The retroactive application comports with 22 MRS §42(8), which authorizes the Department to adopt rules with a retroactive application (where there is no adverse impact on providers or members) for a period not to exceed eight calendar quarters.
To remedy the difference between the July 1, 2018 effective date set forth in the Act, and the August 1, 2018 date that is permissible pursuant to federal Medicaid law, the Department has recalculated the annual appropriation of funds for this service into a temporary eleven month rate. As such, providers will, over the course of eleven months, receive equivalent aggregate payments as would have been received under a twelve month rate. Beginning on July 1, 2019, rates will be annualized (based upon a twelve month appropriation). This is not a rate decrease, but rather a redistribution of the annual appropriation over twelve months, rather than eleven months.
Pursuant to 5 MRS §8054, these emergency rules may be effective for up to ninety (90) days. The Department intends to proceed with routine technical rulemaking to permanently adopt these rules.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: November 13, 2018
OMS 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 RULEMAKING LIAISON: Kevin.Wells@Maine.gov .