May 22, 2019

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: 09-137 – Department of Inland Fisheries and Wildlife (IFW)
CHAPTER NUMBER AND TITLE: Ch. 1, Open Water and Ice Fishing Regulations (Conroy Lake, Monticello)
PROPOSED RULE NUMBER: 2019-P073
BRIEF SUMMARY: The Department of Inland Fisheries and Wildlife has been petitioned to consider the following change to fishing regulations: CONROY LAKE, Monticello (North Region). General fishing laws apply, except: B, CI. S-19. Open to open water fishing from October 1 - November 30: ALO, S-7. If adopted, the rule would open Conroy Lake to ice fishing under the B season code, January 1 – March 31.
PUBLIC HEARING: June 13, 2019 @ 5:30 p.m., Shiretown Inn & Suites, 282 North Street, Houlton, ME
COMMENT DEADLINE: June 24, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION / IFW RULEMAKING LIAISON: Becky Orff, Inland Fisheries and Wildlife, 284 State Street - 41 State House Station, Augusta, ME 04333. Telephone: (207) 287-5202. Fax: (207) 287-6395. Email: Becky.Orff@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: No fiscal impact anticipated.
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS §10104
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED:
IFW WEBSITE: www.maine.gov/ifw .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 36, Atlantic Herring (2019 Harvest Rules)
PROPOSED RULE NUMBER: 2019-P074
BRIEF SUMMARY: This proposed rulemaking amends the existing seasonal spawning closures in accordance to the recently approved Addendum II of Amendment 3 to the Interstate Fishery Management Plan for Atlantic herring: the initial closure period is extended from 28 days to 42 days; the default closure date for both the Western Closure and the Massachusetts/New Hampshire Closure has been modified from October 4 to September 23; and, the re-closure protocol may be initiated with a lower percentage of spawning fish present in the population, from 25% to 20%.
This proposed rulemaking amends the start date for the mobile Atlantic herring fishery to commence on Sunday, July 14, 2019 and also sets harvest parameters for the Atlantic Herring fishery as determined at the Days Out meeting held April 3, 2019. The Days Out Commissioners designated zero landing days for Period 1 (June 2019). The Days Out Commissioners designated four consecutive landing days, beginning at 6:00 p.m. Sunday to 6:00 p.m. Thursday for vessels issued an Atlantic Herring Limited Access Category A Permit for Period 2 (July – August 2019. These vessels are limited to landing 160,000 lbs. (4 trucks) weekly). The Days Out Commissioners designated five consecutive landing days, beginning at 6:00 p.m. Sunday to 6:00 p.m. Friday for vessels issued an Atlantic Herring Limited Access Category C Permit. Limited access harvester vessels may transfer Atlantic herring at-sea to other limited access harvester vessels. All harvester vessels are prohibited from at-sea transfers of Atlantic herring to carrier vessels. All vessels landing herring caught in Management Area 1A in any Maine port are limited to one landing per 24 hour period (6:00 p.m. to 6:00 p.m.).
PUBLIC HEARING: June 12, 2019 at 5:00 p.m., Deering Building, Room 101, 90 Blossom Lane, Augusta. Hearing facilities: If you require accommodations due to disability, please contact Meredith Mendelson at (207) 624-6553.
COMMENT DEADLINE: June 24, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Amanda Ellis, DMR, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (207) 624-6500 (Deaf/Hard of Hearing). Email: dmr.rulemaking@maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS §6171
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: Same
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 26, Sea Urchin 2019-20 Season – Option 1
PROPOSED RULE NUMBER: 2019-P075
BRIEF SUMMARY: This regulation would establish open harvest days and tote limits for the taking of sea urchins by divers, rakers, trappers, and draggers in Zones 1 and 2 for the 2019-2020 season. For Zone 1, seasons are proposed for divers, trappers, rakers and draggers in 2019-2020, from which harvesters may only fish up to 15 days of their choosing, the same number of days allowed during the 2018-2019 season, while the number of opportunity days is increased. For Zone 1, the proposed daily tote limit is nine (9) which is 3 totes lower than the 2018-2019 season. For Zone 2, 40-day seasons are proposed for divers, trappers, rakers and draggers in 2019-2020, from which harvesters may only fish up to 30 days of their choosing. This proposal reduces the fishing days by eight days and opportunity days by five days from the 2018-2019 season. For the Whiting & Dennys Bays Limited Access Area in Zone 2, a 15-day season is proposed for Zone 2 divers, trappers, rakers and draggers in 2019-2020. For Zone 2, the proposed daily tote limit is six (6) which is one fewer than the 2018-2019 season.
PUBLIC HEARINGS:
Augusta: June 12, 2019 - 6:00 p.m., Room 101, Deering Building, 90 Blossom Lane
Ellsworth: June 13, 2019, 6:00 p.m., Council Chamber Room, Ellsworth City Hall, 1 City Hall Plaza
Hearing facilities: If you require accommodations due to disability, please contact Meredith Mendelson at (207) 624-6553.
COMMENT DEADLINE: June 24, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Amanda Ellis, DMR, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (207) 624-6500 (Deaf/Hard of Hearing). Email: dmr.rulemaking@maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS §6749
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: Same
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 26, Sea Urchin 2019-20 Season – Option 2
PROPOSED RULE NUMBER: 2019-P076
BRIEF SUMMARY: This regulation would establish open harvest days and tote limits for the taking of sea urchins by divers, rakers, trappers, and draggers in Zones 1 and 2 for the 2019-2020 season. For Zone 1, 20-day seasons are proposed for divers, trappers, rakers and draggers in 2019-2020, from which harvesters may only fish up to 15 days of their choosing, the same number of days allowed during the 2018-2019 season.  For Zone 1, the proposed daily tote limit is ten (10) which is 2 totes lower than the 2018-2019 season. For Zone 2, 40-day seasons are proposed for divers, trappers, rakers and draggers in 2019-2020, from which harvesters may only fish up to 30 days of their choosing. This proposal reduces the fishing days by eight days and opportunity days by five days from the 2018-2019 season. For the Whiting & Dennys Bays Limited Access Area in Zone 2, a 15-day season is proposed for Zone 2 divers, trappers, rakers and draggers in 2019-2020. For Zone 2, the proposed daily tote limit is six (6) with is one fewer than the 2018-2019 season.
PUBLIC HEARINGS:
Augusta: June 12, 2019 - 6:00 p.m., Room 101, Deering Building, 90 Blossom Lane
Ellsworth: June 13, 2019, 6:00 p.m., Council Chamber Room, Ellsworth City Hall, 1 City Hall Plaza.
Hearing facilities: If you require accommodations due to disability, please contact Meredith Mendelson at (207) 624-6553.
COMMENT DEADLINE: June 24, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Amanda Ellis, DMR, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (207) 624-6500 (Deaf/Hard of Hearing). Email: dmr.rulemaking@maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS §6749
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: Same
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@Maine.gov .

ADOPTIONS

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS) – Division of Policy
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual (MBM): Ch. II & III Section 109, Speech and Hearing Services
ADOPTED RULE NUMBER: 2019-076
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) adopts these two rules.
Chapter II: The Department adopts changes to the rule which add two new covered services for adult Members (Members over the age of 21). The added covered adult services are: (1) Hearing Aid Evaluation and Related Procedures, by Audiologist; and (2) Hearing and/or Hearing Aid Periodic Recheck. In the previous rule, these two services were available for children Members only. The Department is adding them as adult service because hearing aids and replacement hearing aids are a covered service under Section 60, “Medical Supplies and Durable Medical Equipment”. The Department wanted to ensure that adult members received medical evaluations for the hearing aids.
In addition to the changes above, the Department updated the definition for “Hearing Aid Services.”
Chapter III: The Department adopts changes to this rule that increase specific rates pursuant to Resolves 2017 ch. 60, Resolve, Regarding Reimbursement for Speech and Language Pathology Services (“Resolves”). The Resolve requires codes to be amended to increase agency rates, independent rates, speech-pathology assistant agency rates, and speech-language pathology assistant independent rates in Ch. 101, MBM, Ch. III Section 109, “Speech and Hearing Services”. The Resolve provided funding to increase reimbursement for the increase to these rates. The Department adopts:
      • 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.
The Resolve directed that these increased rates be effective retroactively to January 1, 2019. However, CMS has indicated to the Department that the rates can be increased no earlier than January 12, 2019, because of the notice of change in reimbursement methodology requirement in 42 CFR §447.205. The retroactive application of these increased rates comports with 22 MRS §42(8) which authorizes the Department to adopt rules with a retroactive application for a period not to exceed 8 calendar quarters if there is no adverse financial impact on any MaineCare member or provider. The Department has submitted a State Plan Amendment to CMS to allow for the rate increases to be effective retroactive to January 12, 2019.
The Resolve directed the Department to increase certain rates to a precise percentage of the federal Medicare rate for the same service. The final adopted rates are slightly lower than the proposed rates because for the proposed rule rates the Department inadvertently used the 2018 federal Medicare national reimbursement rates rather than the 2018 federal Medicare local (Maine 99) reimbursement rates (which is the same area/code the Department uses for other MaineCare rates). Upon advice from the Office of the Attorney General, the Department does not believe the change in rates require additional notice and public comment. In each instance, the final rate is higher than the rates in the former Ch. III regulation.
The Department makes additional changes to the rule:
      • Removing the requirement of under age 21 only from codes 92592, 92593, and V5264.
      • Adding the following codes to allow them to be billed under Section 109, where currently they can be billed only under the MCBM, Section 90 (Physician Services).
The Department is seeking CMS approval for these changes, with a May 19, 2019 effective date.
The chart below matches the new codes to the provision of Section 109 policy which authorizes these services:

Billing Code Description
Section of Policy
92537
 Caloric vestibular test with recording, bilateral; bithermal (i.e., one warm and one cool irrigation in each ear for a total of four irrigations)
109.07-1; E, K, O, and N
92538
 Caloric vestibular test with recording, monothermal  (i.e., one irrigation in each ear for a total of two irrigations)
109.07-1; E, K, O, and N
92540
 Basic vestibular evaluation, includes spontaneous nystagmus test with eccentric gaze fixation nystagmus, with recording, positional nystagmus test, minimum of 4 positions, with recording, optokinetic nystagmus test, bidirectional foveal and peripheral stimulation, with recording, and oscillating tracking test, with recording
109.07-1; E, K, O, and N
92541
 Spontaneous nystagmus test, including gaze and fixation nystagmus, with recording
109.07-1; E, K, O, and N
92542
 Positional nystagmus test, minimum of 4 positions, with recording
109.07-1; E, K, O, and N
92544
 Optokinetic nystagmus test, bidirectional, foveal or peripheral stimulation, with recording
109.07-1; E, K, O, and N
92545
 Oscillating tracking test, with recording
109.07-1; E, K, O, and N
92546
 Sinusoidal vertical axis rotational testing
109.07-1; E, K, O, and N
92547
 Use of vertical electrodes
109.07-1; E, K, O, and N
92548
 Computerized dynamic posturography
109.07-1; E, K, O, and N
92570
 Acoustic immittance testing, includes tympanometry (impedance testing), acoustic reflex threshold testing, and acoustic reflex decay testing.
109.07-1; E, K, O, and N
92611
 Motion fluoroscopic evaluation of swallowing function by cine or video recording
109.07-1; A, E, K, O, and N
92612
 Flexible endoscopic evaluation of swallowing by cine or video recording
109.07-1; A, E, K, O, and N
V5011
 Fitting/orientation/checking of hearing aid
109.07-1; S

See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: May 19, 2019
OMS CONTACT PERSON: Cari Philbrick, Comprehensive Health Planner, Division of Policy, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4031. Fax: (207) 287-1864. TTY users call Maine relay 711. Email: Cari.Philbrick@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
OMS RULEMAKING LIAISON: Thomas.Leet@Maine.gov .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 01-001 - Department of Agriculture Conservation and Forestry (DACF)
CHAPTER NUMBER AND TITLE: Ch. 271, Gypsy Moth Quarantine
ADOPTED RULE NUMBER: 2019-077
CONCISE SUMMARY: This adopted rule establishes a statewide quarantine against the gypsy moth to prevent its movement from all parts of the State, to protect Maine's forest and landscape tree resources. The Gypsy moth is federally regulated pest and Maine must quarantine all parts of the state that are infested.
EFFECTIVE DATE: May 20, 2019
DACF CONTACT PERSON / RULEMAKING LIAISON: Shannon Ayotte, Department of Agriculture Conservation and Forestry, 22 State House Station, Augusta, ME 04333-0022. Telephone: (207) 287-5976. Email: Shannon.Ayotte@Maine.gov .
DACF WEBSITE: http://www.maine.gov/dacf/index.shtml .

AGENCY: 14-118 - Department of Health and Human Services (DHHS), Office of Substance Abuse and Mental Health Services
CHAPTER NUMBER AND TITLE: Ch. 19 (New), Rules Governing Community-Based Drug Overdose Prevention Programs
ADOPTED RULE NUMBER: 2019-078 (Emergency)
CONCISE SUMMARY: Pursuant to 22 MRS §2353(4), the Department of Health and Human Services is adopting Rules Governing Community-Based Drug Overdose Prevention Program to establish policies and procedures related to the storage, dispensing, and distribution of Naloxone Hydrochloride in Community-based Agency Settings. The Department is adopting this new rule on an emergency basis given the ongoing opioid epidemic and in response to the Governor's Executive Order 2 FY 19/20, An Order to Implement Immediate Responses to Maine's Opioid Epidemic (effective February 6, 2019).
EFFECTIVE DATE: May 16, 2019
AGENCY CONTACT PERSON: Amy Heino, Senior Policy Advisor, Department of Health and Human Services, Office of Substance Abuse and Mental Health Services, 41 Anthony Avenue - 11 State House Station, Augusta, ME 04333-0011. Telephone: (207) 287-2535. Email: Amy.M.Heino@Maine.gov .
AGENCY WEBSITE: http://www.maine.gov/dhhs/samhs/osa/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Division of Licensing and Certification (DLC)
CHAPTER NUMBER AND TITLE: Ch. 128, Certified Nursing Assistant and Direct Care Worker Registry Rule
ADOPTED RULE NUMBER: 2019-079
CONCISE SUMMARY: This rule governs the use and operation of the Certified Nursing Assistant and Direct Care Worker Registry. The Registry provides a resource for employers to verify that an individual is eligible for employment as a Certified Nursing Assistant, and also identifies individuals who are ineligible for employment as a Direct Care Worker due to criminal convictions or substantiated complaints of abuse, neglect or misappropriation of property.
This rulemaking repeals and replaces the current rule, Rules Governing the Maine Registry of Certified Nursing Assistants, due to the statutory requirements of 22 MRS §1812-G.
EFFECTIVE DATE: June 15, 2019
DLC CONTACT PERSON: Jonathan Leach, Department of Health and Human Services, Division of Licensing and Certification, 41 Anthony Avenue - 11 State House Station, Augusta, ME 04333-0011. Telephone: (207) 287-5825. Email: Jonathan.H.Jeach@Maine.gov .
DLC RULEMAKING WEBSITE: https://www.maine.gov/dhhs/dlc/rulemaking/index.shtml .
DLC WEBSITE: https://www.maine.gov/dhhs/dlc/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 10-144 – Department of Health and Human Services (DHHS), Maine Center for Disease Control and Prevention (Maine CDC)
CHAPTER NUMBER AND TITLE: Ch. 220, Radiation Protection Rule
ADOPTED RULE NUMBER: 2019-080
CONCISE SUMMARY: The Radiation Protection Rule governs all persons who receive, possess, use, transfer, own or acquire any source of radiation, in accordance with relevant federal and State standards. These rule changes correct errors/omissions and clarify current radiation requirements and references, as well as implement recommendations from the federal Nuclear Regulatory Commission.
EFFECTIVE DATE: May 20, 2019
AGENCY CONTACT PERSON: Andrew Hardy, Maine CDC, 286 Water Street - 11 State House Station, Augusta ME 04333-0011. Telephone: (207) 287-4490. Email: Andrew.Hardy@Maine.gov .
AGENCY WEBSITE: http://www.maine.gov/dhhs/mecdc/rules/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov