August 7, 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: 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 2, Adult Family Care Services
PROPOSED RULE NUMBER: 2019-P136
CONCISE SUMMARY: This proposed rulemaking seeks to increase the rates of reimbursement for Adult Family Care 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”), Part B-2(3). The Act directs the Department to amend Ch. III Section 2, “Adult Family Services”, which must set the inflation adjustment cost-of-living percentage in accordance with the United States Department of Labor, Bureau of Statistics Consumer Price Index medical care services index from the prior December for professional services, nursing homes, and adult day care services. These cost-of-living increases shall continue annually until the Department has completed a rate study for adult family care services and the rates in the rate study have been implemented.
This proposed rule seeks to implement a 3.8 percent cost-of-living rate increase for adult family care services for the fiscal year ending June 30, 2020. Ch. III Section 2, “Adult Family Care Services”, increases the unadjusted price from $53.27 to $55.29 and the resource-adjusted prices accordingly. In addition, Ch. III Section 2, “Adult Family Care Services”, increases the unadjusted price to adult family care homes that satisfy the definition of remote island facilities from $61.26 to $63.59 and the resource-adjusted prices accordingly.
The Department is seeking, and anticipates receiving, approval from the federal Centers for Medicare and Medicaid Services (CMS) for this change. Pending approval, the 3.8 percent cost-of-living increase will be effective retroactive to July 1, 2019. A “Change in Reimbursement Methodology Notice” was posted July 31, 2018 on the Office of MaineCare Services’ website.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: August 28, 2019 - 10 a.m., DHHS, 109 Capitol Street - Room 115A, Augusta, ME 04333. The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed below before August 21, 2019.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on September 7, 2019.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Heidi Bechard, Comprehensive Health Planner II, MaineCare Services, 109 Capitol 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, 3173; PL 2017 ch. 460 part B-2(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 for Family Independence (OFI)
CHAPTER NUMBER AND TITLE: Ch. 323, Maine General Assistance Manual: Sections II and IV (General Assistance Rule #22 – Access for Certain Non-Citizens)
PROPOSED RULE NUMBER: 2019-P137
BRIEF SUMMARY: This rule amends sections II and IV of the Maine General Assistance Manual.
In 2015, the Maine Legislature amended the definition of “eligibility” in the Municipal General Assistance law through PL 2015 ch. 324, codified at 22 MRS §4301(3), by adding the following sentence: “Beginning July 1, 2015, in accordance with 8 United States Code, Section 1621(d), “eligible person” means a person who is lawfully present in the United States or who is pursuing a lawful process to apply for immigration relief, except that assistance for such a person may not exceed 24 months.” The terms “lawfully present” and “pursuing a lawful process to apply for immigration relief” were not defined in the statute. In April 2016 the Department adopted regulations defining those terms.
On July 18, 2019, the Department adopted emergency rules, which amended the definition of “lawfully present” and “pursuing a lawful process to apply for immigration relief” in Section II of the regulation. The emergency rule broadened the definitions to include asylum seekers who provide proof that they are taking “reasonable good steps” to apply for immigration relief, including pursuit of asylum or other adjustments of immigration status. The definition of ‘pursuing a lawful process to apply for immigration relief” also set forth what types of documentation would be required to prove that an individual was taking reasonable, good faith steps to apply for immigration relief with the U.S. Citizenship and Immigration Services or before an immigration judge. In addition, the emergency rule made the following changes to Section IV(N): (1) required those individuals provide satisfactory proof to the municipalities, as defined in Section II, that they are either lawfully present or pursuing a lawful process to apply for immigration relief; and (2) required municipalities to provide relevant information to the Department upon request, for purposes of program integrity and coordination and prevention of duplication of services. Pursuant to 5 MRS §8054, the emergency rules can be in effect for up to 90 days.
This rulemaking proposes to make the July 18, 2019 emergency changes permanent. Pursuant to 5 MRS §8052, the Department finds that permanent rulemaking is necessary to implement these changes, particularly given the ongoing influx, into Maine, of noncitizens who are at the first stages of seeking asylum or other immigration status. Obtaining legal employment while their applications are pending is often difficult or impossible. These residents thus require immediate assistance with basic needs such as shelter and food. Various Maine municipalities are expending both privately and publicly sourced emergency funds for such care, and have opened emergency shelters to provide temporary housing. Adjacent municipalities offer assistance of various sorts, but such aid is limited by their own municipal budgetary restrictions. If the previous emergency rule is not made permanent, the anticipated exhaustion of local resources will cause a critical problem with the provision of assistance to such migrants, many of them children, including medicine, food and shelter.
In addition to the July 18, 2019 emergency changes, the Department proposes to amend the definition of “eligible person” in Section II, so that it more closely comports with the statutory definition in 22 MRS §4301(3).
This rule will take effect immediately to avoid any lapse in policy resulting from the expiration of the emergency rule.
See http://www.Maine.gov/dhhs/ofi/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: August 27, 2019 from 9:00 a.m. to noon at 109 Capitol Street, Augusta, ME in room Maine B.
COMMENT DEADLINE: September 6, 2019.
CONTACT PERSON FOR THIS FILING: Sara Russell, General Assistance Program Manager, Office for Family Independence, Department of Health and Human Services, 109 Capitol Street, Augusta, ME 04333. Telephone: (207) 624-4193. Fax: (207) 287-3455. TT Users Call Maine Relay – 711. Email: Sara.Russell@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: Some cities and towns have been providing this assistance at a local cost. The Department estimates that this rule change will shift approximately $732,000 of the cost from municipal budgets to the state budget for state fiscal year 2020.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS §42(1)
OFI RULEMAKING WEBSITE: http://www.maine.gov/dhhs/ofi/rules/index.shtml .
OFI WEBSITE: http://www.maine.gov/dhhs/ofi/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 16-219 – Department of Public Safety (DPS), Office of State Fire Marshal
CHAPTER NUMBER AND TITLE: Ch. 4, Water-Based Fire Protection Systems
PROPOSED RULE NUMBER: 2019-P138
BRIEF SUMMARY: This proposed rule removes the roles and responsibilities of responsible managing supervisor’s duly authorized representatives in the State of Maine; requires property owners and fire sprinkler contractor of record to provide documentation from their insurance carrier of acceptance of use of a non-recognized national standard fire protection system; and adopts current standards relating to water based fire protection systems. The rule is intended to reduce overall fire suppression costs, fatalities, injuries and property loss due to fire.
PUBLIC HEARING: August 29, 2019, Champlain conference room, Department of Public Safety, 45 Commerce Drive, Augusta, Maine 04333 @ 9 a.m.
COMMENT DEADLINE: September 11, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT STATEMENT: Michelle Mason Webber, Senior Planning and Research Analyst, 52 State House Station, Augusta, ME 04333-0052. Telephone: (207) 626-3873. Email: Michelle.Mason@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: No fiscal impact.
STATUTORY AUTHORITY FOR THIS RULE: 25 MRS §2452; 32 MRS §§ 1373, 1374, 1382
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
FIRE MARSHAL RULEMAKING WEBSITE: https://www.maine.gov/dps/fmo/fire-service-laws/rules/proposed .
FIRE MARSHAL WEBSITE: https://www.maine.gov/dps/fmo/ .
FIRE MARSHAL / RULEMAKING LIAISON: Joseph.E.Thomas@Maine.gov .

ADOPTIONS

AGENCY: 65-407 – Maine Public Utilities Commission (MPUC)
CHAPTER NUMBER AND TITLE: Ch. 285, Maine Telecommunications Education Access Fund
ADOPTED RULE NUMBER: 2019-141
CONCISE SUMMARY: The Public Utilities Commission adopts amendments to Ch. 285, Maine Telecommunications Education Access Fund (MTEAF), of the Commission’s rules. The amendments are intended to harmonize the definitions and provisions of the rule with Ch. 288, Maine Universal Service Fund (MUSF). The Commission is also making other, non-substantive editorial amendments.
EFFECTIVE DATE: August 4, 2019
MPUC CONTACT PERSON / RULEMAKING LIAISON: Jamie Waterbury, Maine Public Utilities Commission, 18 State House Station, Augusta, Maine 04333. Telephone: (207) 287-1360. Email: Jamie.A.Waterbury@Maine.gov .
MPUC WEBSITE: http://www.maine.gov/mpuc/ .

AGENCY: 65-407 – Maine Public Utilities Commission (MPUC)
CHAPTER NUMBER AND TITLE: Ch. 288, Maine Universal Service Fund
ADOPTED RULE NUMBER: 2019-142
CONCISE SUMMARY: The Public Utilities Commission adopts amendments to Ch. 288, Maine Universal Service Fund (MUSF) of the Commission’s rules. The amendments are intended to harmonize the contribution mechanism of Ch. 285, Maine Telecommunications Education Access Fund (MTEAF), of the Commission’s rules and the Maine E911 Fund. The Commission is also making other, non-substantive editorial amendments.
EFFECTIVE DATE: August 4, 2019
MPUC CONTACT PERSON / RULEMAKING LIAISON: Jamie Waterbury, Maine Public Utilities Commission, 18 State House Station, Augusta, Maine 04333. Telephone: (207) 287-1360. Email: Jamie.A.Waterbury@Maine.gov .
MPUC WEBSITE: http://www.maine.gov/mpuc/ .

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, Allowances for Rehabilitative and Community Support Services for Children with Cognitive Impairments and Functional Limitations
ADOPTED RULE NUMBER: 2019-143 (Major Substantive Final Adoption)
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) finally adopts this major substantive rule to increase the rates of reimbursement for rehabilitative and community support services pursuant to Public Law 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 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 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.
* This rulemaking added a new procedure code, for BCBA Services (Proc. Code G9007), pursuant to the Act, which required the Department to “establish new reimbursement rates” in accordance with the 2017 Burns Rate Study.
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.
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 were 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 were implemented with an August 1, 2018 effective date.
The retroactive application comports with 22 M.R.S. § 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.
In addition to the above, this final adopted rule amends the base rate of policy prior to August 1, 2018 to be compliant with the increase required via An Act to Increase Payments to MaineCare Providers that are Subject to Maine’s Service Provider Tax, PL 2015 ch. 477 (eff. Apr. 15, 2016). The Department paid claims at increased rates but did not initiate rulemaking at that time.
The Department previously implemented these same changes through emergency major substantive rulemaking, effective as of November 8, 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. On April 26, 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. Resolves 2019 ch. 40 was signed by Governor Mills on May 30, 2019.
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 29, 2019
OMS CONTACT PERSON: Dean Bugaj, Comprehensive Health Planner, Division of Policy, 109 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-624-4045. Fax: (207) 287-6106. 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