December 12, 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 67, Principles of Reimbursement for Nursing Facilities
PROPOSED RULE NUMBER: 2018-P274
CONCISE SUMMARY: These proposed rule changes to Ch. III Section 67, Principles of Reimbursement for Nursing Facility services are made, in part, in order to comply with 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"), Section B-1 and B-3.
This proposed rulemaking makes a number of changes to the reimbursement methodology for Nursing Facilities pursuant to ''the Act". These changes include a change in the Occupancy Adjustment to allow for reduced occupancy percentages, an increase in the utilization payments, and the addition of a special supplemental allowance to account for wage increases. The Legislature further required that, for state fiscal year beginning July 1, 2018, the base year for each facility is its fiscal year that ended in calendar year 2016; for state fiscal years beginning on or after July 1, 2019, subsequent rebasing must be based on the most recent cost report filings available. Further, for the state fiscal year beginning July 1, 2018, the rates for each rebasing year must include an inflation adjustment for a cost-of-living percentage change in nursing facility reimbursement each year in accordance with the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index - medical care services index from the prior December for professional services, nursing home, and adult day care services. Finally, the Department added an aggregate hold harmless provision to reflect that the revised method of re basing a nursing facility's base year may not result in a rate of reimbursement for direct and routine costs that is lower than the rate in effect June 30, 2018.
Additional changes include:
* Uniform desk review completion is extended from one hundred eighty days to one calendar year;
* Clarification is added to describe the conditions required for interest expense to be allowable.
Similarly, the Department elaborated upon when refinancing expenses may be allowable;
* Principle 39 - Community-Based Specialty Nursing Facility Units states services provided are medical-psychiatric services and removes "under contract" with the Department;
* Throughout the policy "if CMS approves" language has been removed, where applicable, based on approved State Plan Amendment status.
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 67 rates on August 1, 2018. Upon the advice of the Office of the Attorney General, the changes in reimbursement methodology will be effective August 2, 2018; this effective date comports with the federal law requirement. Pending approval of the proposed changes to the Section 67 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the reimbursement methodology changes will be implemented with an August 2, 2018 effective date.
The Department initially implemented these rule changes on December 4, 2018 through emergency rulemaking under 5 MRS §8054(1); those changes are effective for 90 days. Through the emergency rulemaking, an August 2, 2018 retroactive effective date was 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 (8) calendar quarters. The Department initiates this proposed routine technical rulemaking seeking public comment and thereafter, to permanently adopt these rule changes.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: January 2, 2019 - 10:00 a.m., Cross Office 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 27, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on January 12, 2019.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Heidi Bechard, Comprehensive Health Planner II Office of 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 that this rulemaking will not have any impact on municipalities or counties.
STATUTORY AUTHORITY: 22 MRS §§ 42(8), 3173; 22 MRS §1708(3); PL 2017 ch. 460, Sec. B-1, B-3; PL 2013 ch. 594 sec. 3
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 93, Opioid Health Home Services
PROPOSED RULE NUMBER: 2018-P275
CONCISE SUMMARY: The Department of Health and Human Services (“Department”) proposes changes to Ch. II and III Section 93, “Opioid Health Home Services” of the MaineCare Benefits Manual pursuant to PL 2017 ch. 460 Part G, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (emergency, effective July 9, 2018) (the “Act”) and pursuant to the Department’s standard rulemaking authority.
The Act requires the Department to ensure that a continuum of evidence-based treatment and recovery support services for opioid use disorder is accessible to the people of Maine. The Department adopted the changes described below via emergency rulemaking on November 27, 2018. Pursuant to 5 MRS §8074, the emergency rule may be effective for up to ninety days. The Department is now engaging in proposed routine technical rulemaking to adopt these same Section 93 rule changes.
Pursuant to the Act, this rulemaking proposes to:
* add a definition of Integrated Medication Assisted Treatment (IMAT) to describe OHH service expectations;
* add urine drug screening as an integral part of IMAT services;
* establish levels of care (intensive, intermediate/stabilization, and maintenance) that correspond to the member’s needs; and
* create a tiered reimbursement rate structure corresponding to these levels of care
Additionally, to improve the Section 93 rules by making it easier for current and new providers to deliver IMAT services through the OHH model which, in turn, will increase accessibility to services for all individuals with opioid use disorder as envisioned under the Act, this rulemaking proposes to:
* alter the current staffing requirements;
* add a new patient navigator to the OHH team to ensure flexibility for provider organizations and expertise to meet members’ needs;
* create an allowance for members who meet eligibility for MaineCare Benefits Manual, Section 92, Behavioral Health Home Services, Section 91, Health Home Services, certain Section 13, Targeted Case Management Services, or Section 17, Community Support Services to receive these services in coordination with OHH services;
* ease requirements regarding the Electronic Health Record to allow provider flexibility in meeting OHH program requirements; and
* provide clarification to covered services; and make minor and technical changes to the operation of OHH.
The Department adopted the changes described above via emergency rulemaking on November 27, 2018.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: January 2, 2019 - 9:00 a.m., Marquardt Building – Room 118 Door D7, 32 Blossom Lane, 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 20, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on January 12, 2019.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Anne E. Labonte, Comprehensive Health Planner II, Office of MaineCare Services, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4082. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing). Email: Anne.Labonte@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, 3173; PL 2017 ch. 460 Part G, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (emergency, effective July 9, 2018).
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 and III Section 109, Speech and Hearing Services
PROPOSED RULE NUMBER: 2018-P276
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) proposes this rule to increase specific rates pursuant to Resolves 2017, ch. 60, Resolve, Regarding Reimbursement for Speech and Language Pathology Services.
Resolves 2017, ch. 60 requires codes to be amended to increase agency rates, independent rates, speech-pathology assistant agency rates, and speech-language pathology assistant independent rates in 10-144 CMR Ch. 101, MaineCare Benefits Manual (MBM), Ch. III Section 109, “Speech and Hearing Services”.
In Ch. II, the Department proposes referring Hearing Aid Services to Ch. 101, MaineCare Benefits Manual (MBM), Ch. II Section 60, “Medical Supplies and Durable Medical Equipment”. Additionally, the Department is proposing adding language allowing adults hearing aid evaluations along with hearing and/or hearing aid periodic rechecks.
In Ch. III, the Department proposes:
* Adding Agency rates at 69% of Medicare for codes 92507 (GN), 92521 (GN), 92522 (GN), 92523 (GN), 92607 (GN), 92608 (GN), 92609 (GN), and 92610.
* Adding Independent rates at 90% of Agency rates for codes 92507 (GN), 92507 (TF,GN), 92508 (HQ,GN), 92508 (TF,HQ,GN), 92521 (GN), 92522 (GN), 92523 (GN), 92524 (GN), 92526 (GN), 92607 (GN), 92608 (GN), 92609 (GN), and 92610.
* Adding Agency and Independent codes 92537, 92538, 92540, 92541, 92542, 92544, 92545, 92546, 92547, 92548, 92570, 92611, 92612, and V5011.
* Finally, removing the requirement of under age 21 only from codes 92592, 92593, and V5264.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: January 2, 2019 - 9:00 a.m., Conference Room 1 - 242 State 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 21, 2018.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on January 14, 2019.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Cari Philbrick, Comprehensive Health Planner II, MaineCare Services, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4031. Fax: (207) 287-1864. TTY: 711 (Deaf or Hard of Hearing).
IMPACT ON MUNICIPALITIES OR COUNTIES: The Department anticipates that this rulemaking will not have any impact on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS §§ 42, 3173
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: 17-229 - Maine Department of Transportation (MaineDOT)
CHAPTER NUMBER AND TITLE: Ch. 210, Utility Accommodation Rules
ADOPTED RULE NUMBER: 2018-261 (CORRECTED)
CONCISE SUMMARY: Revisions to clarify existing rules to address the permitting and physical location of facilities for the 5G wireless deployment currently underway in the State of Maine including technical revisions for utility accommodation such as material types, offsets in state and state-aid highway rights-of-way, dual pole lines, and permitting of pole locations.
EFFECTIVE DATE: December 1, 2018
AGENCY CONTACT PERSON: Michael Moreau, Department of Transportation, 16 State House Station, Augusta, Maine 04333. Telephone: (207) 624-3365. Email: Michael.Moreau@Maine.gov.
MaineDOT WEBSITE: http://www.maine.gov/mdot/ .
MaineDOT RULEMAKING LIAISON: Toni.Kemmerle@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office for Family Independence (OFI)
CHAPTER NUMBER AND TITLE: Ch. 301, Food Supplement Program, Rule #205A (COLA SUA FFY 2019): Sections FS-000-1 (Basis of Issuance) and FS-555-5 (Income and Deductions)
ADOPTED RULE NUMBER: 2018-263
CONCISE SUMMARY: This rule implements updates to the federal poverty levels, maximum allotments, standard deduction and standard utility allowance deductions for the Food Supplement program as of October 1st. As a result, Food Supplement benefits will change for some households.
See http://www.Maine.gov/dhhs/ofi/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: December 12, 2018
OFI CONTACT PERSON: Ian Miller, Senior Food Supplement Program Manager, Office for Family Independence, Department of Health & Human Services, 19 Union Street, Augusta, ME 04333. Telephone: (207) 624-4138. Fax: (207) 287-3455. TT Users Call Maine Relay- 711. Email: Ian.Miller@Maine.gov .
FOOD SUPPLEMENT PROGRAM WEBSITE: http://www.maine.gov/dhhs/ofi/services/snap/index.html .
OFI WEBSITE: http://www.maine.gov/dhhs/ofi/ .
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 67, Principles of Reimbursement for Nursing Facilities
ADOPTED RULE NUMBER: 2018-264 (Emergency)
CONCISE SUMMARY: The Department of Health and Human Services ("the Department") adopts these emergency rule changes to Ch. III Section 67, “Principles of Reimbursement for Nursing Facility Services”, continuing to ensure adequate funding for Nursing Facility Services pursuant to PL 2017 ch. 460, LD 925, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government ("the Act"), Sections B-1 and B-3.
This rulemaking makes a number of changes to the reimbursement methodology for Nursing Facilities pursuant to PL 2017 ch. 460. These changes include a change in the Occupancy Adjustment to allow for reduced occupancy percentages, an increase in the utilization payment, and the adoption of a special supplemental allowance to account for wage increases. The Legislature further required that, for state fiscal year beginning July 1, 2018, the base year for each facility is its fiscal year that ended in calendar year 2016; for state fiscal years beginning on or after July 1, 2019, subsequent rebasing must be based on the most recent cost report filings available. Further, for the state fiscal year beginning July 1, 2018, the rates set for each rebasing year must include an inflation adjustment for a cost-of living percentage change in nursing facility reimbursement each year in accordance with the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index - medical care services index from the prior December for professional services, nursing home, and adult day care services. Finally, the Department added an aggregate hold harmless provision to reflect that the revised method of rebasing a nursing facility's base year may not result in the rate of reimbursement for direct and routine costs that is lower than the rate in effect June 30, 2018.
The Department makes the following findings in support of this emergency rulemaking, consistent with 5 MRS §8054. The Department finds that these changes must be implemented immediately to improve the financial condition of Section 67 providers, and protect against a threat to public health and safety posed by instances of providers closing. These changes are a benefit to Nursing Facility Services providers and ensures vulnerable members have access to medically necessary covered services, and otherwise have no adverse impact on either MaineCare providers or members. This emergency adoption will enable these rules to take effect immediately and retroactively, to August 2, 2018, pursuant to 22 MRS §42(8).
Pursuant to 5 MRS §8054, this emergency rule may be effective for up to ninety (90) 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: December 4, 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 .