November 24, 2021

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

CORRECTION:
AGENCY: 94-649 - Maine Commission on Indigent Legal Services (MCILS)
CHAPTER NUMBER AND TITLE: Ch. 301, Fee Schedule
TYPE OF RULE: Major Substantive
PROPOSED RULE NUMBER: 2021-P182
PUBLIC HEARING: November 29, 2021 at 9:00 a.m., Room 228 - State House, Augusta
COMMENT DEADLINE (as corrected): December 9, 2021
MCILS WEBSITE: www.maine.gov/mcils .
MCILS RULEMAKING LIAISON: Eleanor.Maciag@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. I Section 1, General Administrative Policies and Procedures
TYPE OF RULE: Routine Technical
PROPOSED RULE NUMBER: 2021-P217
CONCISE SUMMARY: This proposed rulemaking makes various, complex changes, including changes to comply with federal regulations, make updates to reflect current practices, clarify ambiguous and vague sections of policy, and increase the MaineCare Program Integrity Unit’s ability to safeguard against fraud, waste, and abuse. All the changes in this rulemaking are listed below:
The current rule does not address retroactive enrollment for providers other than federally qualified health centers, rural health centers, and Indian health centers. This rulemaking broadens Sec. 1.03-1(F) to allow for retroactive enrollment for other eligible providers, subject to review and approval by the Department of Health and Human Services (the Department) in accordance with 42 CFR §431.108. A request for retroactive enrollment is subject to the Department’s review and discretion and is not a guarantee of claim payment or prior authorization. The Department may grant retroactive enrollment back to providers’ Medicare enrollment effective date but will not grant a retroactive enrollment date that is more than 365 days prior to the date of providers’ MaineCare application submission.
To comply with 42 CFR §455.434, this rule adds a section on fingerprint-based criminal background checks (FCBC), mandating that providers or applicants whose categorical risk level meets the federal definition of high risk must consent to a FCBC. This new Sec. 1.03-1(J) includes relevant criteria for termination or denial of enrollment and outlines which providers and suppliers constitute high categorical risk.
The current ‘rounding rule’ (Sec. 1.03-8(J)) allows providers to round up a unit of service if the unit of service delivered is equal to or greater than fifty percent. To encourage clarity and precision in delivering the amount of covered services that are medically necessary, this rulemaking makes changes so when a partial unit of service is delivered, the provider may either bill for the partial unit of service provided, or round up if eighty percent of the unit of service was delivered. The rule retains the ability to round up if fifty percent of the unit of service was delivered, but only when unforeseen circumstances prevent a provider from delivering a whole unit of service. This rulemaking also adds misuse of the “rounding rule” to examples of conduct that could constitute fraud.
MaineCare Benefits Manual, Ch. II Sec. 80, which primarily applies to retail pharmacies, previously housed language on the 340B Drug Price Program (340B Program). However, the 340B Program language is better suited in this rule because it applies to all provider types except pharmacies. Hence, this rulemaking adds a section, 1.03-14, on the 340B Program that requires providers or entities who purchase drugs under the 340B program to sign a 340B agreement with the Department and to comply with federal and Health Resources & Services Administration 340B rules and regulations. The Department shall seek and anticipates approval of a state plan amendment related to these changes. Additionally and separately, the Department shall repeal the 340B Program provisions that are in Ch. II Sec. 80.09-1(D).
This rulemaking expands the definition of non-covered services to include administrative tasks (Sec. 1.06-4(B)(8)), including verification of MaineCare eligibility, updating member contact information, scheduling of appointments, and similar activities. This provision strengthens the Office of MaineCare Services (OMS) Program Integrity Unit’s enforcement of the prohibition on billing for administrative tasks, which already exists per current MaineCare rules.
To comply with Sec. 53102 of the Bipartisan Budget Act of 2018, PL No. 115-123, this rulemaking updates that the Department will no longer pay and then seek reimbursement, commonly known as pay and chase, from liable third parties for prenatal services.
This rulemaking clarifies (Sec. 1.19-1(C)(2)) that the Department may reimburse providers for covered services rendered during the period following a notice of termination up to the effective date of termination, instead of for a period not to exceed thirty days after the date of receipt of the notice of termination, because providers may not be reimbursed after termination of a provider agreement. The rulemaking also adds that providers must follow the provisions of their provider agreements and the MaineCare Benefits Manual to continue to receive reimbursement for services.
To enable the OMS Program Integrity Unit to implement appropriate sanctions, this rulemaking allows the Department, in its discretion, to consider a request from a provider to impose a lower percentage than 20% recoupment. The rulemaking adds a list of factors in Sec. 1.20-2 for the Department to consider when assessing this type of provider request.
This rulemaking adds other sanctions, such as submitting a plan of correction, so the OMS Program Integrity Unit can ensure providers comply with MaineCare rules and monitor providers who experience rapid growth or changes. Providers who grow rapidly may not have adequate infrastructure to maintain quality of service provision. The additional sanctions are:
• Impose a suspension of referrals to a provider;
• Deny or pend any enrollment applications submitted by a provider;
• Limit the number of service locations a provider may enroll; and
• Limit the number of MaineCare members the provider may serve.
This rulemaking clarifies the provisions in Sec. 1.21 regarding reinstatement following termination or exclusion. The current rule regarding, for example, the time period for reinstatement may be confusing and difficult to apply.
The Department adds a section, 1.24-4, on expedited member appeals that includes the procedure to request an expedited appeal, criteria for the Division of Administrative Hearings (DAH) to consider when deciding whether to grant requests, deadlines for when the Department must take final agency action, and other requirements, per 42 CFR §431.224. MaineCare Member Services shall send all expedited hearing requests to a hearings representative and the DAH within 24 hours of identifying the request.
The MaineCare Advisory Committee (MAC) has developed structural and process changes to improve its function and efficiency, which must be put into Sec. 1.25. The MAC proposed changes include increasing MAC membership, including at least two Medicaid beneficiaries as members, and other changes.
This proposed rulemaking also makes the following changes:
• Define the ownership and control relationships that are subject to an offset;
• Establish a timeframe for when providers need to update OMS of changes to their National Provider Identifier or other enrollment information;
• Require providers who change their name or “doing business as” name to change their MaineCare Provider Agreement;
• Clarify that providers must take all reasonable and appropriate steps requested by the Department to transition members before changes of ownership, closures, and disenrollment, except in the case of reasonably unforeseen circumstances, and, upon request, submit a transition plan to the Department for review and approval;
• Update the rule in accordance with 10-144 Code of Maine Rules, Ch. 128, Certified Nursing Assistant and Direct Care Worker Registry Rule, to require agencies hiring direct care workers (DCWs) to check the Maine Certified Nursing Assistant and Direct Care Worker Registry to ensure DCWs are eligible for employment in Maine and comply with all requirements stipulated in the rule;
• Add that providers may not bill MaineCare for an interpreter service supplied by an entity in which the providers, any owner of the providers, or an immediate family member of the providers or any of their owners has any direct or indirect ownership or financial interest, unless the provider also reimburses other entities for the provision of interpreter services and the entity providing the interpreting service makes those services commercially available to MaineCare providers or other businesses that do not share a direct or indirect familial ownership interest with the interpreting entity;
• Change the billable amount for interpreter services to be the lesser of the interpreter’s usual and customary charge and the rate authorized by the Department;
• To comply with section 53102 of the Bipartisan Budget Act of 2018, increase the number of days, from 30 to 100, that providers must wait for a response from an absent parent’s third party insurance before billing MaineCare;
• Add that the Department may impose sanctions on providers who fail to provide information to the Department or to otherwise respond to Departmental requests for information within a reasonable timeframe established by the Department;
• Add a penalty of 25% of MaineCare payments for covered goods and services where the providers’ records lack a required signature by a member or the member’s guardian;
• Change penalties to equal 20%, as opposed to not exceeding 20%, when mandated records are missing but providers are able to demonstrate by a preponderance of the evidence that the disputed goods or services were medically necessary;
• Make clear the Department’s authority to exclude individuals, entities, and providers from participation in MaineCare for any reason identified in 42 CFR Part 1001 or 1003;
• Add considerations for reinstatement from termination or exclusion to include the conduct of the individual or entity prior to and after the date of the notice of exclusion; and
• Clarify that providers may request an informal review within 60 calendar days from the date of written notification of the Department’s alleged grievance and extend the deadline to the next business day if it falls on a weekend or holiday.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: No public hearing is scheduled. The Department will provide a 30-day comment period instead of a public hearing.
DEADLINE FOR COMMENTS: Comments must be received by 11:59 p.m. on Friday, December 24th, 2021.
OMS CONTACT PERSON / SMALL BUSINESS IMPACT INFORMATION: Henry Eckerson, Comprehensive Health Planner II, MaineCare Services, 109 Capitol Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4085. Fax: (207) 287-6106. TTY: 711 (Deaf or Hard of Hearing). Email: Henry.Eckerson@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, 42(7)(H), 3173; 42 CFR §§ 431.108, 455.434, 447.56, 431.224, 431.12; 42 CFR Parts 1001 and 1003; Bipartisan Budget Act of 2018 Sec. 53102; PL No. 115-123
OMS WEBSITE: https://www.maine.gov/dhhs/oms .
OMS RULEMAKING LIAISON: Jennifer.Patterson@Maine.gov .
DHHS WEBSITE: https://www.maine.gov/dhhs/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

ADOPTIONS

AGENCY: 12-179 - Department of Labor (DOL), Board of Occupational Safety and Health
CHAPTER NUMBER AND TITLE: Ch. 2, Occupational Safety and Health Standards for General Industry Employment in the Public Sector
ADOPTED RULE NUMBER: 2021-232
CONCISE SUMMARY: To update the rule to incorporate changes to the Federal Occupational Safety and Health Administration regulations, 29 CFR Part 1910, in particular, the COVID-19 Emergency Standard contained in Subpart U, released on June 10, 2021 and corrected on July 14, 2021.
https://www.osha.gov/coronavirus/ets .
EFFECTIVE DATE: November 20, 2021
AGENCY CONTACT PERSON / DOL RULEMAKING LIAISON: Isaac H. Gingras, Department of Labor, 54 State House Station, Augusta, ME 0433-0054. Telephone: (207) 626-6232. Email: Isaac.H.Gingras@Maine.gov .
DOL WEBSITE: https://www.maine.gov/labor/index.shtml .

AGENCY: 12-179 - Department of Labor (DOL), Board of Occupational Safety and Health
CHAPTER NUMBER AND TITLE: Ch. 5, Occupational Safety and Health Standards for Public Safety Diving
ADOPTED RULE NUMBER: 2021-233
CONCISE SUMMARY: The purpose of this chapter is to establish standards and procedures to protect public safety divers from the hazards of diving.
EFFECTIVE DATE: November 20, 2021
AGENCY CONTACT PERSON / DOL RULEMAKING LIAISON: Isaac H. Gingras, Department of Labor, 54 State House Station, Augusta, ME 0433-0054. Telephone: (207) 626-6232. Email: Isaac.H.Gingras@Maine.gov .
DOL WEBSITE: https://www.maine.gov/labor/index.shtml .

AGENCY: 12-179 - Department of Labor (DOL), Board of Occupational Safety and Health
CHAPTER NUMBER AND TITLE: Ch. 6, Recording Occupational Injuries and Illnesses in the Public Sector
ADOPTED RULE NUMBER: 2021-234
CONCISE SUMMARY: The purpose of this chapter is to incorporate by reference rules governing the recording of occupational injuries and illnesses as promulgated by the Federal Occupational Safety and Health Administration at 29 CFR Part 1904, most recently amended on June 3, 2021.
EFFECTIVE DATE: November 20, 2021
AGENCY CONTACT PERSON / DOL RULEMAKING LIAISON: Isaac H. Gingras, Department of Labor, 54 State House Station, Augusta, ME 0433-0054. Telephone: (207) 626-6232. Email: Isaac.H.Gingras@Maine.gov .
DOL WEBSITE: https://www.maine.gov/labor/index.shtml .

AGENCY: 65-407 – Maine Public Utilities Commission (MPUC)
CHAPTER NUMBER AND TITLE: Ch. 311, Portfolio Requirement
ADOPTED RULE NUMBER: 2021-235
CONCISE SUMMARY: The Public Utilities Commission adopts amendments to its Renewable Portfolio Standard (RPS) rule (ch. 311) as required to implement recently enacted legislation related to the new thermal renewable energy RPS and reflect an additional change regarding RPS compliance.
EFFECTIVE DATE: November 21, 2021
MPUC CONTACT PERSON / RULEMAKING LIAISON: Jamie Waterbury, Public Utilities Commission, 18 State House Station, Augusta, ME 04333. Telephone: (207) 287-1360. Email: Jamie.A.Waterbury@Maine.gov .
MPUC WEBSITE: https://www.maine.gov/mpuc/ .

AGENCY: 16-633 - Department of Public Safety (DPS), Gambling Control Board
CHAPTER NUMBER AND TITLE: Ch. 5, Internal Controls, including Appendix A, Minimum Internal Controls (MICS)
ADOPTED RULE NUMBER: 2021-236
CONCISE SUMMARY The rule package changes the table game count from daily to once a week, separating days by daily drops.
EFFECTIVE DATE: November 28, 2021
AGENCY CONTACT PERSON / RULEMAKING LIAISON: Milton Champion, Gambling Control Board, 45 Commerce Blvd. – 87 State House Station, Augusta Maine 04333. Telephone: (207) 626-3901. Email: Milton.F.Champion@Maine.gov .
BOARD WEBSITE: https://www.maine.gov/dps/gamb-control/index.html .

AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 168 (New), Statewide Greenhouse Gas Emissions Regulation
ADOPTED RULE NUMBER: 2021-237
CONCISE SUMMARY: The new rule defines the overall reductions in GHG emissions that the State must achieve by both 2030 and 2050. The rule translates the statewide percentage reduction requirements for greenhouse gas emissions as established in 38 MRS §576-A into tonnage reductions based on carbon dioxide equivalents (MMTCO2e) for gross emissions of greenhouse gases for each of the target years. The Department will use these reduction targets to document progress in emissions reductions in the biennial report to the Legislature on the State GHG inventory.
EFFECTIVE DATE: November 28, 2021
DEP CONTACT PERSON: Stacy Knapp, Maine Department of Environmental Protection 17 State House Station, Augusta, ME 04333. Telephone: (207) 287-2235. Email: Stacy.R.Knapp@Maine.gov .
DEP RULES WEBSITE: https://www.maine.gov/dep/rules/index.html .
DEP WEBSITE: https://www.maine.gov/dep/ .
DEP RULEMAKING LIAISON: MarkT.Margerum@Maine.gov .