September 25, 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: 99-650 - Combat Sports Authority of Maine
CHAPTER NUMBER AND TITLE: Rules for Boxing, Ch. 6: Rules Governing Promoters of Boxing Contests
TYPE OF RULE: Routine Technical
PROPOSED RULE NUMBER: 2019-P124 (2nd publication)
BRIEF SUMMARY: On August 13, 2019, the Combats Sports Authority held a hearing on these routine technical rules, which repeal and replace those presently governing the Authority’s ability to supervise boxing events. The Authority had determined that amendments to its rules are necessary to correct certain errors and ambiguities and to ensure compliance with current governing law and generally accepted practices.
In response to comments at hearing on August 13, 2019, the Authority is proposing that Ch. 6 Section 3(H) of the proposed rules be amended by adding the following sentence regarding certificates of insurance required of a boxing promoter: “The certificate(s) must show that the promoter is bonded to the Authority for financial obligations set forth in Authority rules.” This proposed change will codify for boxing promoters a requirement that already exists for promoters of mixed martial arts events. The Authority now seeks public comment on just the proposed additional sentence.
PUBLIC HEARING: None scheduled.
COMMENT DEADLINE: October 30, 2019 at 5 p.m. is the deadline for written comments (including emails) on the proposal to amend Ch. 6 Section 3(H) of the proposed rules.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION / AUTHORITY RULEMAKING LIAISON: Hal Pierce, Chairperson, Combat Sports Authority of Maine, 54 River Road, Edgecomb, ME 04556. Telephone: (207) 350-5678. Email: hp5150@gwi.net.
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 8 MRS §523
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
AUTHORITY WEBSITE: https://www.mainecombatsports.com/contact-us/.

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 Section 28, Rehabilitative and Community Support Services for Children with Cognitive Impairments and Functional Limitations
ADOPTED RULE NUMBER: 2019-167
CONCISE SUMMARY: On June 25, 2019, the Department adopted an emergency Ch. II Section 28 rule. The Department adopts these rule changes in order to make those changes permanent.
Background: On November 8, 2018, the Department adopted an emergency major substantive rule for Ch. III Sec. 28 (“Allowances for Rehabilitative and Community Support Services for Children with Cognitive Impairments and Functional Limitations”). The emergency major substantive rulemaking was done to comply with Public Law 2017 ch. 460 (“the Act”) which directed the Department to amend reimbursement rates for Section 28 providers to reflect final rates modeled in the April 2017 Burns report: Rate Study for Behavioral Health and Targeted Case Management Services: Final Proposed Rates for Formal Rulemaking, and also to increase the rate of reimbursement for all services by two percent. The legislation was enacted as an emergency, and directed the Department to make the rate increases effective July 1, 2018. Pursuant to the emergency major substantive rule, in order to comport with federal Medicaid law, the rate increases were made with an August 1, 2018 effective date.
The November 8, 2018 emergency major substantive rule also added a new procedure code for Board Certified Behavior Analyst (BCBA) services (Procedure Code G9007), pursuant to the Act, which required the Department to “establish new reimbursement rates” in accordance with the 2017 Burns rate study.
The Department proposed rules for Ch. III Section 28, in accordance with 5 MRS §8072(1), to be provisionally adopted by the Department, pending legislative approval. The Department received comments during that rulemaking requesting clarification on the services that would be eligible for the August 1, 2018 BCBA services rate.
Therefore, the Department determined that rulemaking for Ch. II Section 28 is required in order to clarify the services that are eligible for the new BCBA service rate. As stated above, the Department adopted an emergency Ch. II Section 28 rule on June 25, 2019 which clarified the BCBA services. This adopted rulemaking will finalize Ch. II rule changes and provides for a new provision in the rule identifying BCBA services in the Covered Services section of the rule. In addition, the adopted rule identifies the requirements for BCBA providers, consistent with requirements set forth by the Behavioral Analyst Certification Board. These standards were originally in effect on the effective date of the emergency rule, June 25, 2019.
BCBA services rendered between August 1, 2018, the effective date of the November 8, 2018, Ch. III Section 28, emergency major substantive rule, and the effective date of the emergency rule, June 25, 2019, will be reimbursed in accordance with the emergency major substantive rule BCBA rate, and the Ch. II rule in effect at that time.
In addition to the changes described above, this adopted rulemaking adds telemedicine language under Provider Requirements. As a result of public comments and review by the Office of the Attorney General, the Department amended the final rule to remove the EVV language. While Section 28 providers are subject to the EVV requirement, the Department removed the language requiring EVV as the Centers for Medicare and Medicaid Services (CMS) has yet to approve the Department’s Good Faith exemption request, and the Department has not yet determined when the EVV requirement will apply. Additionally, the Department amended 28.04-3 BCBA Services to add language supporting exceeding policy limits when medically necessary and supported by documentation and prior authorized by the Department or its Authorized Entity. Additional changes were made to the final rule and are outlined in the Summary of Comments and Responses document published with this rulemaking.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: September 23, 2019
OMS CONTACT PERSON: Dean Bugaj Comprehensive Health Planner, Division of Policy, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4045. Fax: (207) 287-1864. TTY users call Maine relay 711. Email: Dean.Bugaj@Maine.gov.
OMS WEBSITE: http://www.maine.gov/dhhs/oms/.
DHHS WEBSITE: http://www.maine.gov/dhhs/.
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov.

AGENCY: 17-229 – Maine Department of Transportation (MDOT)
CHAPTER NUMBER AND TITLE: Ch. 602, Rules Relating to Maine State Ferry Service Tolls
ADOPTED RULE NUMBER: 2019-168
CONCISE SUMMARY: To establish tolls for the Maine State Ferry Service Lines (the “MSFS”).
EFFECTIVE DATE: October 1, 2019
MDOT CONTACT PERSON / RULEMAKING LIAISON: Toni L. Kemmerle, Department of Transportation, 16 State House Station, Augusta, ME 04333. Telephone: (207) 624-3020. Email: Toni.Kemmerle@Maine.gov.
MDOT WEBSITE: http://www.maine.gov/mdot/.

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services (OMS) – Division of Policy
CHAPTER NUMBER AND TITLE: Ch. 104, Maine State Services Manual: Section 7 (New), Abortion Services for MaineCare Members
ADOPTED RULE NUMBER: 2019-169
CONCISE SUMMARY: This emergency rulemaking implements PL 2019 c. 274, An Act to Prevent Discrimination in Public and Private Insurance Coverage for Pregnant Women in Maine (the “Act”), which requires state-funded coverage for abortion services to MaineCare members when those services are not covered by Medicaid.
Federal law limits Medicaid reimbursement to those abortions necessary to protect the life of the mother, or when the pregnancy results from rape or incest (the “Hyde Exceptions.”). See, e.g., 42 CFR §§ 441.200-441.208; 10-144 CMR ch. 101 (the MaineCare Benefits Manual), Ch. II sec. 90.05-2 (MaineCare rule implementing Hyde Exceptions). The Act requires that, for MaineCare eligible women, abortion services that are outside the Hyde Exceptions (i.e., not covered Medicaid services) must be funded separately by using state funds within existing resources. The Legislature appropriated from the General Fund approximately $227,546 and $375,843, respectively, for the next two fiscal years to provide these new state only funded abortion services. See the Act, sec. 10 (Appropriations and allocations). The Department requires providers to identify state-funded abortion services when submitting claims for reimbursement of state funded abortion services. This allows the Department to distinguish the state funded abortion claims from those that are covered under the Hyde Exceptions, in order to maintain compliance with federal Medicaid restrictions and requirements for reimbursement.
Pursuant to the Act, the Legislature provided the Department with authority to implement these services on an emergency basis, per 5 MRS §8054, without the necessity of demonstrating that immediate adoption is necessary to avoid a threat to public health, safety, or general welfare. Emergency rules are effective immediately and valid for ninety days. The Department shall hereafter initiate “regular” routine technical proposed rulemaking to implement this rule permanently.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: September 19, 2019
OMS 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) 287-1606. 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.

AGENCY: 10-146 - Department of Health and Human Services (DHHS), Maine Center for Disease Control and Prevention (Maine CDC)
CHAPTER NUMBER AND TITLE: Ch. 15 (New), Death with Dignity Act Reporting Rule
ADOPTED RULE NUMBER: 2019-170 (Emergency major substantive)
CONCISE SUMMARY: This major substantive rule is adopted on an emergency basis to implement the Maine Death with Dignity Act (“Act”), 22 MRS §2140, and the Department’s authority to collect certain data from health care providers related to patient-directed care at the end of life and to establish criteria for witnesses to patients making written requests for life-ending medications when the patients reside in long-term care facilities. Under this rule, physicians prescribing life-ending medication must submit required forms to the Department and retain forms as part of the qualified patient’s medical record. Department-prescribed forms are available online and by request. Required data collection includes, but is not limited to, qualified patient’s written request for life-ending medication, assurances that the patient is making an informed decision regarding end-of-life care and life-ending medication, and medication prescription records.
EFFECTIVE DATE: September 19, 2019
MAINE CDC CONTACT PERSON: Bridget Bagley, 286 Water Street – 11 State House Station, Augusta, ME 04333-0011. Telephone: (207) 287-9394 or 711. Fax: (207) 287-2887. Email: Bridget.Bagley@Maine.gov.
MAINE CDC RULES WEBSITE: http://www.maine.gov/dhhs/mecdc/rules/.
MAINE CDC WEBSITE: http://www.maine.gov/dhhs/mecdc/.
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov.