July 17, 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

No proposals this week.

ADOPTIONS

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 25, Lobster and Crab: 25.02, Definitions
ADOPTEDRULENUMBER: 2019-117
CONCISE SUMMARY: This regulation defines the area in the Bay of Fundy referred to as the "gray zone" that encompasses approximately 210 square miles around Machias Seal Island where there are overlapping claims of sovereignty by the United States and Canada. In Resolves 2019 ch. 23, the Legislature directed the Commissioner of Marine Resources to adopt regulations to define this area to ensure the boundaries of this area are clearly delineated.
EFFECTIVE DATE: July 17, 2019
DMR CONTACT PERSON: Amanda Ellis, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (207) 633-9500 (Deaf/Hard of Hearing)
DMR RULEMAKING EMAIL: dmr.rulemaking@maine.gov .
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/ .
DMR RULEMAKING LIAISON: dmr.rulemaking@maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 26, Sea Urchins (2019-2020 Season)
ADOPTED RULE NUMBER: 2019-118
CONCISE 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.
EFFECTIVE DATE: July 17, 2019
DMR CONTACT PERSON: Amanda Ellis, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (207) 633-9500 (Deaf/Hard of Hearing)
DMR RULEMAKING EMAIL: dmr.rulemaking@maine.gov .
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 34, Groundfish Regulations (Cod, Haddock)
ADOPTED RULE NUMBER: 2019-119
CONCISE SUMMARY: In order to be consistent with the National Marine Fisheries Service (NMFS) federal proposed rulemaking anticipated to be finalized shortly, this rule allows harvesters to take or possess one cod per day in state waters. Cod may not be possessed on board a charter, party or recreational fishing vessel from October 1 through April 14 inclusive, and May 1 through September 14 inclusive. For cod, a minimum size limit of 21" (53.3 cm) is established. The rule also implements increased recreational possession limits for haddock from 12 to 15 fish. Finally, seasonal restrictions on recreational haddock possession are reduced, so that haddock may not be possessed on board a recreational fishing only from March 1 through April 14. In addition to complying with federal law, the rule will increase fishing opportunity in Maine State waters.
EFFECTIVE DATE: July 17, 2019
DMR CONTACT PERSON: Amanda Ellis, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (207) 633-9500 (Deaf/Hard of Hearing)
DMR RULEMAKING EMAIL: dmr.rulemaking@maine.gov .
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 36, Herring Management Plan (2019 Harvest Rules)
ADOPTED RULE NUMBER: 2019-120
CONCISE SUMMARY: This rule amends the existing seasonal spawning closures in accordance with 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 rule 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.).
EFFECTIVE DATE: July 17, 2019
DMR CONTACT PERSON: Amanda Ellis, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (207) 633-9500 (Deaf/Hard of Hearing)
DMR RULEMAKING EMAIL: dmr.rulemaking@maine.gov .
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@Maine.gov .

AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 41, Menhaden: 41.30, Menhaden Fishery Management Program
ADOPTED RULE NUMBER: 2019-121 (Emergency)
CONCISE SUMMARY: The fishery for Atlantic menhaden is managed through the Atlantic States Marine Fisheries Commission (ASMFC). Maine's allocated quota share for FY2019 was 2,438,677 pounds, which was fully consumed on June 30, 2019. Department of Marine Resources (DMR) requested, and was granted, approval to participate in the Episodic Event Set Aside program to access an available 4.7 million lbs. of menhaden quota. Beginning July 15, 2019, harvest may occur between 12:01 a.m. on Monday and 11:59 p.m. Thursday each week; daily landing limit is 120,000 lbs. and this regulation reduces the weekly limit to 120,000 lbs. as well. Harvesting and landings are restricted to Maine territorial waters; only one landing may occur per calendar day. All landings must be reported daily via email to menhaden.dmr@maine.gov. The Commissioner has determined that it is necessary to take emergency action to implement the reduction of the weekly limit to prevent the depletion of the supply of Atlantic menhaden. The Commissioner hereby adopts this emergency regulation as authorized by 12 MRS §6171(3)(B).
EFFECTIVE DATE: July 14, 2019
DMR CONTACT PERSON: Melissa Smith, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6558. Fax: (207) 624-6024. TTY: (207) 633-9500 (Deaf/Hard of Hearing) . Email: Melissa.Smith@Maine.gov .
DMR RULEMAKING EMAIL: dmr.rulemaking@maine.gov .
DMR RULEMAKING WEBSITE: http://www.maine.gov/dmr/rulemaking/ .
DMR WEBSITE: http://www.maine.gov/dmr/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@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 40, Home Health Services
ADOPTED RULE NUMBER: 2019-122 (Final adoption, major substantive)
CONCISE SUMMARY: The Department of Health and Human Services finally adopts these major substantive rule changes to Ch. II and III Section 40, “Home Health Services”, to add the use of Telemonitoring Services, to be provided by home health agencies. Telemonitoring is the use of information technology to remotely monitor a member’s health status through the use of clinical data while the member remains in the residential setting. Through telemonitoring, a home health agency sets up equipment that allows for a member’s vital statistics to be monitored daily. The addition of Telemonitoring Services is beneficial to members, allowing them to receive medically necessary home health covered services that can be delivered remotely at comparable quality in their own homes.
In addition, these finally adopted major substantive rules are updated to state any home health service may be offered as the sole home health service and shall not be contingent upon the provision of another home health service.
Other Ch. II changes include:
* New definitions added: Health Care Provider and Telemonitoring Services. Authorized Agent is changed to Authorized Entity and updated throughout the policy.
* Eligibility for Care changes: Medical Eligibility Requirements for Telemonitoring Services.
* Additions to Covered Services: Telemonitoring Services.
* Non-Routine Medical Supplies includes an updated link to billing instructions and list of supplies.
* A typographical error in the header of Chapter II, which previously read Chapter III, has been corrected.
* Pursuant to Section 12006, 21st Century CURES Act, Electronic Visit Verification (EVV) requirements for home health services providers, effective January 1, 2023, are added. * Limitations have been updated to reflect that members of Section 19, Home and Community-Based Services for the Elderly and Adults with Disabilities, may receive authorization for nursing services through Section 40, Home Health Services, should Section 19 nursing services be deemed insufficient to meet the member’s needs.
* Throughout the policy, “mental retardation” has been updated to “individuals with intellectual disabilities” and “severe and disabling mental illness.”
* MaineCare Services, Division of Customer Service has been updated to MaineCare Provider Services with an updated toll-free number.
In addition, Ch. III updates some of the procedure codes to support Ch. II Section 40, “Covered Services”, including the addition of Telemonitoring Services. Pursuant to 22 MRS §42(8), the Department shall apply certain of these procedure codes retroactively, effective eight (8) calendar quarters from when the Department finally adopts these rule changes. Additionally, pursuant to Resolve 2017 ch. 61, To Support Home Health Services, the Department increases the following reimbursement rates, effective January 1, 2019: G0299, G0300, G0151, G0151 TF, G0152, G0152 TF, G0153, G0153 TF, G0155, and G0156.
The Centers for Medicare and Medicaid Services (CMS) already separately approved the State Plan Amendment (SPA) for Telehealth and Telemonitoring Services. The Department is seeking, and anticipates receiving, CMS approval for the changes to Section 40, Ch. II and III, as noted specifically in the rules. Upon CMS approval, those changes shall be effective.
On February 15, 2019, the Department provisionally adopted these rules. Subsequently, the Department submitted the provisionally adopted rules to the Maine State Legislature for its review, in accordance with 5 MRS §8072.
The Maine State Legislature authorized the final adoption of these rules without making any changes to what was provisionally adopted. Resolves 2019 ch. 51 was signed by Governor Mills on June 6, 2019. Given the emergency as set forth in Resolves 2019 ch. 51, the law takes effect when approved.
These final adopted rules make the permanent changes to these rules as required by the Legislature. These final major substantive rules shall become effective thirty days after filing with the Secretary of State’s Office. 5 MRS §8072(8).
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: August 11, 2019
OMS CONTACT PERSON: Heidi Bechard, Comprehensive Health Planner, Office of MaineCare Services - 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 .

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 97, Private Non-Medical Institution Services, and Appendices B, C, D, E, F
ADOPTED RULE NUMBER: 2019-123 (Final adoption, major substantive)
CONCISE SUMMARY: These finally adopted major substantive rules effectuate a process by which an eligible PNMI Services provider may request an Extraordinary Circumstance Allowance (ECA); allow for certain regulatory compliance costs incurred by Appendix C and F PNMI providers to be considered reasonable and necessary; and increase the limit for new construction, acquisitions, and renovations involving capital expenditures to $500,000 from $350,000 pursuant to Public Law 2017 ch. 304, An Act to Amend Principles of Reimbursement for Residential Care Facilities (“The First Act”).
In addition, the Department adopts these rule changes to Ch. III Section 97, “Private Non-Medical Institution (PNMI) Services”, to increase the MaineCare payment rates attributable to wages and salaries in routine services cost by an inflation factor 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. This rule change also allows Appendix C PNMI providers to request a supplemental wage allowance for increases in wages and wage-related benefits in the routine cost component 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 Second Act”).
Further, as a result of comments on the proposed rule, the Department has provided that the cost of interpreter services for hearing impaired staff participating in training, supervision, and staff meetings may be an allowable cost subject to Department approval through submission of the annual budget in Ch. III Section 97, Appendix E.
The Department is authorized to finally adopt these changes retroactively under 22 MRS §42(8) because these changes increase reimbursement for providers and will have no adverse impact on either MaineCare providers or members. Additionally, the Change in Reimbursement Methodology Notice required by 42 CFR §447.205 relating to the Extraordinary Circumstance Allowance and Regulatory Compliance Costs was published on October 19, 2017 (for Appendices C and F). In regards to the Supplemental Wage Allowance and increased MaineCare payment rates for Appendix C PNMIs for the state fiscal year ending June 30, 2020, and each year after, the Department published its Notice of Change in Reimbursement Methodology on July 31, 2018.
In addition to the changes required by the First and Second Act, other changes include, but are not limited to:
*  Procedure codes: S9484 and corresponding modifiers HA, HE, and HI for Temporary High Intensity Services, per report per hours, are added to Appendices D, E, and F to more effectively align with the current prior authorization process.
*  Temporary High Intensity Staffing Services are reimbursed based on individual member’s direct care price. This direct care price is not subject to audit. The Temporary High Intensity Staffing Services remittances received will be removed from the total Direct Services Staff costs in determining the allowable cost for the PNMI rehabilitation and personal care direct service staff cost.
*  The Department will calculate each Appendix C PNMI’s rate setting case mix index using the number of MaineCare residents in each case mix classification group in the facility as of March 1st for the July rate and September 1st for the January rate. The changes are provisionally adopted in order to issue provider rate letters in a timely manner.
*  The Department will send a roster of Appendix C residents and source of payment as of March 1st and September 1st to facilities for verification prior to rate setting.
*  Principle 2400.3: The cost of interpreter services for hearing impaired staff participating in supervision, training, and staff meetings may be an allowed cost for Appendix E providers. This allowance is subject to Department approval obtained through the annual budget submission process.
The Department previously implemented these same changes through emergency major substantive rulemaking, effective November 20, 2018 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. Pursuant to 5 MRS §8073, emergency major substantive rules are effective up to 12 months or until the Legislature has completed review, and the Department thereafter finally adopts the rule changes.
On March 20, 2019, the Department provisionally adopted these rules. Subsequently, the Department submitted the provisionally adopted rules to the Maine State Legislature for its review, in accordance with 5 MRS §8072.
The Maine State Legislature authorized the final adoption of these rules without making any changes to what was provisionally adopted. Resolves 2019 ch. 39, was signed by Governor Mills on May 30, 2019. Given the emergency as set forth in Resolves 2019 ch. 39, the law takes effect when approved.
These final adopted rules make the permanent changes to these rules as required by the Legislature. These final major substantive rules shall become effective thirty days after filing with the Secretary of State’s Office. 5 MRS §8072(8).
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: August 11, 2019
OMS CONTACT PERSON: Heidi Bechard, Comprehensive Health Planner, Office of MaineCare Services - 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 .