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September 11, 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 for Family Independence (OFI)
CHAPTER NUMBER AND TITLE: Ch. 330, Higher Opportunity for Pathways to Employment (HOPE) Program Rules: HOPE Rule #100P
PROPOSED RULE NUMBER: 2019-P139 (2nd publication)
BRIEF SUMMARY: This rule proposes to implement state law by defining the way the HOPE Program determines program eligibility, and delivers program assistance, supports, and navigation to low-income parents and caregivers who are attending training or education programs.
PUBLIC HEARING: None Scheduled.
COMMENT DEADLINE: October 11, 2019
CONTACT PERSON FOR THIS FILING: Sheri Wilkens, HOPE Program Manager, Department of Health & Human Services, Office for Family Independence. 109 Capitol Street, Augusta, ME 04333-0011. Telephone: (207) 624-4103. Fax: (207) 287-3455. TT Users Call Maine Relay – 711. Email: Sheri.Wilkens@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: This rule will not have a fiscal impact on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS §3790-A
DHHS 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: 65-407 – Maine Public Utilities Commission (MPUC)
CHAPTER NUMBER AND TITLE: Ch. 815, Consumer Protection Standards for Electric and Gas Transmission and Distribution Utilities
PROPOSED RULE NUMBER: 2019-P162
BRIEF SUMMARY: The Public Utilities Commission initiates a rulemaking proceeding to consider amendments to Ch. 815, Consumer Protection Standards for Electric and Gas Transmission and Distribution Utilities. The Commission initiates this proceeding as directed by the Legislature pursuant to Public Law 2019 ch. 26 - An Act to Improve the Record Keeping of Utilities and the Public Utilities Commission (codified at 35-A MRS §716); Public Law 2019 ch. 81 - An Act to Direct Electric Utilities to Provide Comparative Usage Data on Customer Billing Statements (codified at 35-A MRS §3106); and Public Law 2019 ch. 88 - An Act to Ensure Accurate Explanations of Electric Bills (codified at 35-A MRS §3106).
PUBLIC HEARING: September 30, 2019 - 1:30 p.m., Public Utilities Commission, 101 Second Street, Hallowell, Maine 04347
COMMENT DEADLINE: October 10, 2019. Written comments on the proposed rule may be filed until Thursday, October 10, 2019. However, the Commission requests that initial comments be filed by Thursday, September 26, 2019, to allow for follow-up inquiries during the hearing; supplemental comments may be filed after the hearing. Written comments should refer to the docket number of this proceeding, Docket No. 2019-00186 and be submitted through the Commission’s case management system.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Leslie Raber, Public Utilities Commission, 18 State House Station, Augusta, Maine 04333. Telephone: (207) 287-1562. Email: Leslie.Rabert@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: Minimal
STATUTORY AUTHORITY FOR THIS RULE: 35-A MRS §§ 104, 111, 704, 1308; Public Law 2019 ch. 26; Public Law 2019 ch. 81; and Public Law 2019 ch. 88
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
MPUC WEBSITE: www.maine.gov/mpuc .
MPUC RULEMAKING LIAISON: Jamie.A.Waterbury@Maine.gov .
AGENCY: 18-691 - Department of Administrative and Financial Services (DHHS), Office of Marijuana Policy (OMP)
CHAPTER NUMBER AND TITLE: Ch. 5, Rules for the Certification of Marijuana Testing Facilities
TYPE OF RULE: Routine Technical
PROPOSED RULE NUMBER: 2019-P163
BRIEF SUMMARY: This rule provides marijuana testing facilities with the minimum requirements regarding the qualifications, education, and training for marijuana testing facility personnel and staff; sets detection limits and identifies the equipment necessary to conduct mandatory testing of marijuana and marijuana products; identifies other requirements for a marijuana testing facility to become certified to operate as a marijuana testing facility by the Maine Center for Disease Control and Prevention (CDC); and further clarifies the effect of certification in the overall licensure process for marijuana testing facilities. The rule also clarifies the disciplinary actions available to the Maine CDC and administrative remedies available to marijuana testing facilities regarding certification of marijuana testing facilities.
PUBLIC HEARING: 9 a.m. Monday, September 30, Room 101 Deering Building, 90 Blossom Lane, Augusta, ME 04330
COMMENT DEADLINE: October 10, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION / RULEMAKING LIAISON: Gabrielle Bérubé Pierce, Esq., Director of Policy, Office of Marijuana Policy. Department of Administrative and Financial Services, 162 State House Station, Augusta, ME 04333. Telephone: (207) 530-0507. Email: Gabi.Pierce@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES (if any):
STATUTORY AUTHORITY FOR THIS RULE: 28-B MRS ch. 1; 22 MRS §569
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
OMP WEBSITE: https://www.maine.gov/dafs/omp .
DAFS WEBSITE: https://www.maine.gov/dafs/ .
DAFS RULEMAKING LIAISON: Anya.Trundy@Maine.gov .
AGENCY: 13-188 - Department of Marine Resources (DMR)
CHAPTER NUMBER AND TITLE: Ch. 8, Landings Program; Ch. 36, Atlantic Herring; Ch. 41, Menhaden
PROPOSED RULE NUMBERS: 2019-P164, P165, P166
BRIEF SUMMARY: This proposed rule would update reporting requirements for lobster license holders to replace “distance from shore” with a 10-minute square, and also require the reporting of the number of endlines hauled that fishing trip. It would replace references to the IVR herring permit in Ch. 8 and 36 with a herring permit. Finally, it would require individuals intending to participate in the menhaden fishery to obtain a menhaden permit on their commercial pelagic and anadromous license, to facilitate proper reporting in that fishery as required in Ch. 41.
PUBLIC HEARING: 3:30 p.m., October 2, 2019, DMR Augusta Office, 32 Blossom Lane, Room 118, 32 Blossom Lane, Augusta, ME 04333. Hearing facilities: If you require accommodations due to disability, please contact Meredith Mendelson at (207) 624-6553.
COMMENT DEADLINE: October 12, 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 §6173
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: Same
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. 10, Clams and Quahogs: 10.05, Taking of Quahogs in the Sub-Tidal Waters of New Meadows Lakes, Brunswick and West Bath
PROPOSED RULE NUMBER: 2019-P167
BRIEF SUMMARY: This proposed regulation would maintain the winter closed period for the harvest of quahogs from the New Meadows Lakes, which ended on April 1, 2019. The sunset provision has been removed from proposed regulation, so that the winter closed period remains in effect. Maintaining the winter closed period is intended to reduce fishing pressure on the quahog resource and to minimize mortality associated with winter fishing.
PUBLIC HEARING: October 1, 2019 - 5 p.m., West Bath Fire Station, 192 State Road, West Bath, 04530. Hearing facilities: If you require accommodations due to disability, please contact Meredith Mendelson at (207) 624-6553.
COMMENT DEADLINE: October 11, 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 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
PROPOSED RULE NUMBER: 2019-P168
BRIEF SUMMARY: In order to be consistent with the National Marine Fisheries Service (NMFS) federal regulations, the Department is proposing regulatory changes for charter, party and recreational fishing vessels operating in state waters targeting cod. For the recreational fishery, this proposal would eliminate the April 15 to April 30 opening for cod adopted earlier this year. The April opening was originally proposed in federal rulemaking but was not ultimately adopted.
PUBLIC HEARING: None
COMMENT DEADLINE: October 11, 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 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. 75, Protected Resources
PROPOSED RULE NUMBER: 2019-P169
BRIEF SUMMARY: There is an existing regulatory requirement for persons fishing lobster gear and trap/pot gear to mark their buoy lines with specific red marks in the sliver area and in federal waters. This proposed regulation removes the requirement for the red marks and would instead require persons fishing lobster gear and trap/pot gear in all Maine coastal waters to mark their buoy line with three purple 12-inch marks: one at the top of the buoy line, one midway along the buoy line, and one at the bottom of the buoy line. In addition, each buoy line must be marked with a 36-inch purple mark in the top two fathom of buoy line. Finally, all lobster gear and trap/pot gear fished from head of tide out to the Exemption line would be required to have an additional green mark of a minimum of 6-inches in the top two fathom of buoy line. The new marking requirements would be required to be in place by April 1, 2020.
PUBLIC HEARING: October 2, 2019 - 4:00 p.m., DMR Offices - Marquardt Building Room 118, Augusta, Maine. Hearing facilities: If you require accommodations due to disability, please contact Meredith Mendelson at (207) 624-6553.
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 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. 94, Sanitary Control of Molluscan Shellfish
PROPOSED RULE NUMBER: 2019-P170
BRIEF SUMMARY: This proposal would amend Ch. 94 to specify the current version of the National Shellfish Sanitation Program Model Ordinance (Model Ordinance). The existing rule specifies the 2015 Model Ordinance; this proposed change would specify the 2017 Model Ordinance, which is the most current version.
PUBLIC HEARING: None scheduled
COMMENT DEADLINE: October 11, 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 WEBSITE: http://www.maine.gov/dmr/ .
DMR RULEMAKING LIAISON: Deirdre.Gilbert@Maine.gov .
ADOPTIONS
AGENCY: 18-691 – Department of Administrative and Financial Services (DAFS), Office of Marijuana Policy (OMP)
CHAPTER NUMBER AND TITLE: Ch. 5, Certification of Marijuana Testing Facilities
ADOPTED RULE NUMBER: 2019-161 (Emergency)
CONCISE SUMMARY: This rule provides marijuana testing facilities with the minimum requirements regarding the qualifications, education, and training for marijuana testing facility personnel and staff; sets detection limits and identifies the equipment necessary to conduct mandatory testing of marijuana and marijuana products; identifies other requirements for a marijuana testing facility to become certified to operate as a marijuana testing facility by the Maine Center for Disease Control and Prevention (CDC); and further clarifies the effect of certification in the overall licensure process for marijuana testing facilities. The rule also clarifies the disciplinary actions available to the Maine CDC and administrative remedies available to marijuana testing facilities regarding certification of marijuana testing facilities.
EFFECTIVE DATE: September 4, 2019
OMP CONTACT PERSON: Gabrielle Bérubé Pierce. Office of Marijuana Policy, 162 State House Station, Augusta, ME 04330. Telephone: (207) 530-0507. Email: Gabi.Pierce@Maine.gov .
OMP WEBSITE: https://www.maine.gov/dafs/services/marijuana .
AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 121, Emission Limitations and Emission Testing of Resource Recovery Facilities
State of Maine 111(d) Municipal Waste Combustor (MWC) State Plan for Large and Small (Class I & II) Facilities: Amendments and Updates to the June 2007 State Plan
ADOPTED RULE NUMBER: 2019-162
CONCISE SUMMARY: The Department has amended Ch. 121 and the associated Municipal Waste Combustor State Plan to comply with federal requirements, in response to comments from the U.S. Environmental Protection Agency and with input from the three facilities in the State subject to the rule. These amendments will be submitted to the U.S. Environmental Protection Agency for inclusion in Maine's Municipal Waste Combustor State Plan pursuant to Clean Air Act sections 111(d) and 129.
EFFECTIVE DATE: September 14, 2019
DEP CONTACT PERSON: Tom Graham, Department of Environmental Protection, 17 State House Station, Augusta, ME 04333-0017. Telephone: (207) 287-7598. Email: Tom.Graham@Maine.gov .
DEP WEBSITE: http://www.maine.gov/dep/ .
DEP RULEMAKING LIAISON: Mark.T.Margerum@Maine.gov .
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. II Section 90, Physician Services
ADOPTED RULE NUMBER: 2019-163
CONCISE SUMMARY: On June 18, 2019, the Department adopted an emergency Ch. II Sec. 90 rule, which eliminated “transsexual procedures” from the list of non-covered services in §90.07. Elimination of this prohibition on transgender medical procedures complies with Section 1557 of the Affordable Care Act (Pub. L. 111-148, Title I Sec. 1557), as codified in 42 USC §18116 and its enabling regulation, 45 CFR part 92, which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. This adopted rule makes that change permanent.
In addition, the Department is adopting the following changes in this rulemaking:
1. The addition of Appendix A as the last item on the Table of Contents, which was part of the rule previously but was not identified in the Table of Contents;
2. From the Supplies and Materials category, removal of language “that may be reimbursed as separate items” to add clarity as to what is reimbursable for medical supplies and materials under this section (90.01-5). Language about supply reimbursement already exists under Medical Supplies & Durable Medical Equipment (90.04-9);
3. Addition of language setting the reimbursement for physician’s medical direction of anesthesia services at 50% of the allowance when a physician performs anesthesia services alone (90.04-1(B)) to more closely align with the Centers for Medicare and Medicaid Services’ (CMS) reimbursement methodology;
4. Amended the provision in the policy specifying how interns, residents, and locum tenens are enrolled to require that residents, locum tenens, and temporaries to enroll either under a physicians’ group or as a hospital-based professional in order to be reimbursed through MaineCare (90.04-10). The Department added the requirement that residents must have a medical license for best practices (per Title 32 ch. 48 §3271(2)) to enroll and receive reimbursement through MaineCare;
5. Removal of mileage reimbursement language to create consistency across the MaineCare Benefits Manual and minimize abuse of mileage reimbursement. (90.04-11);
6. Addition of two new services: Diabetes Self-Management Training Services (DSMT) (90.04-13) and Medical Nutrition Therapy Services (MNT) (90.04-14). DSMT and MNT have been linked to improved clinical outcomes.
7. Addition of licensed dietician as an “other” professional that can work in association with Physician Services (90.04-15), and who can also provide the newly added DSMT or MNT services;
8. Addition of licensed clinical psychologists and licensed marriage and family therapists as “other” professionals practicing within the scope of their licensure that can work in association with Physician Services (90.04-15);
9. Addition of clarifying language for current and accurate prescribing criteria in the Prescriptions category of Covered Services (90.04-19);
10. Addition of transgender services (90.04-33) under Covered Services to identify coverage for medically necessary procedures. The Department had proposed to put this provision under Restricted Services, requiring prior authorization. In response to comments, the Department moved this provision to the covered services section so that prior authorization is not required for these non-surgical services;
11. Addition of (90.05-1 A (4)) Gender Dysphoria Related Surgeries to identify coverage for surgeries for the treatment of gender dysphoria. Commenters agreed that prior authorization should be required for surgeries;
12. Amendment to provider title under Restricted Services (90.05-2 A) Abortion Services, from physician to health care professional to comply with PL 2019 ch. 262, An Act to Authorize Certain Health Care Professionals to Perform Abortions. This change is effective September 19, 2019;
13. The Reimbursement Rate for Drugs Administered by Other Than Oral Methods (90.09-3) has been amended to align MaineCare policy with the CMS Covered Outpatient Drug final rule by determining drug fee schedules as Average Sales Price (ASP), plus 6%, as set by Medicare Part B for Maine area “99”; and
14. Removal of the Member Satisfaction category under the Primary Care Provider Incentive Payment (90.09-4) list of incentives. A separate category for this is not required because member satisfaction is a targeted indicator built into the scoring of the various categories.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: September 16, 2019
AGENCY CONTACT PERSON: Anne E. Labonte, Comprehensive Health Planner II, Division of Policy, 109 Capitol Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4082. Fax: (207) 287-6106. TTY users call Maine relay 711. Email: Anne.Labonte@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS WEBSITE: http://www.maine.gov/dhhs/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .
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