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Home > Weekly Rule-making Notices > November 20, 2013

November 20, 2013

WEEKLY NOTICES OF STATE RULE-MAKING
Public Input for Proposed and Adopted Rules

Notices are published each Wednesday to alert the public regarding state agency rule-making. 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 rule-making if the petition is signed by 150 or more registered voters, and may begin rule-making 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 rule-making liaisons, who are single points of contact for each agency.


PROPOSALS


AGENCY: 99-626 - Maine Rural Development Authority
CHAPTER NUMBER AND TITLE: Ch. 2, Commercial Facilities Development Program, Amendment 1
PROPOSED RULE NUMBER: 2013-P258
BRIEF SUMMARY: The amendment makes changes to conform the rule to statute changes made by PL 2011 ch. 563. Additional changes were made to simplify and clarify the loan application and approval requirements.
PUBLIC HEARING: None. One would be scheduled at the request of 5 or more persons.
COMMENT DEADLINE: December 20, 2013
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / AGENCY RULE-MAKING LIAISON: Christopher Roney, Finance Authority of Maine, 5 Community Drive, PO Box 949, Augusta, ME 04332. Telephone: (207) 620-3520. E-mail: croney@famemaine.com . Website: www.famemaine.com .
IMPACT ON MUNICIPALITIES OR COUNTIES: The amendment will not impose any costs on municipalities or counties.
STATUTORY AUTHORITY FOR THIS RULE: 5 MRSA §13120-L
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.mainerda.org/ .



AGENCY: 09-137 – Department of Inland Fisheries and Wildlife (IFW)
CHAPTER NUMBER AND TITLE: Ch. 20, Taxidermy License
PROPOSED RULE NUMBER: 2013-P259
BRIEF SUMMARY: The Department is proposing to amend its rules as they apply to taxidermy licensing to create a minimal testing process for taxidermists who wish to create European skull type mounts. The Department is also proposing to amend the rule and add language to require all specimens be returned to the rightful owner by taxidermists whose license has been revoked, suspended or expired.
A complete copy of the proposed rule may be obtained by contacting the Agency Rule-making Contact Person.
PUBLIC HEARING: None scheduled – one may be requested.
COMMENT DEADLINE: December 20, 2013
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / AGENCY RULE-MAKING LIAISON: Becky Orff, Inland Fisheries & Wildlife, 284 State Street, #41 State House Station, Augusta, ME 04333. E-mail: Becky.Orff@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None anticipated.
STATUTORY AUTHORITY FOR THIS RULE: 12 MRSA §§ 12952, 12953
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/ifw/ .



AGENCY: 09-585 - Department of Inland Fisheries and Wildlife, Maine Outdoor Heritage Fund
CHAPTER NUMBER AND TITLE: Ch. 25, Maine Outdoor Heritage - Strategic Plan
PROPOSED RULE NUMBER: 2013-P260
BRIEF SUMMARY: The Maine Outdoor Heritage Fund Board is proposing to amend its strategic plan to help with clarity during the scoring data compilation process and provide a six-year review of the plan.
PUBLIC HEARING: December 12, 2013, 1 – 3 p.m., Department of Agriculture, Conservation and Forestry – Bolton Hill Facility, Augusta
COMMENT DEADLINE: December 23, 2013
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION / AGENCY RULE-MAKING LIAISON: Carol Gay, Maine Outdoor Heritage Fund, 37 Wiscasset Road, Pittston, ME 04345. Telephone: (207) 458-8421. E-mail: mohf@gwi.net .
IMPACT ON MUNICIPALITIES OR COUNTIES (if any):
STATUTORY AUTHORITY FOR THIS RULE: 12 MRSA §§ 903, 10309
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/ifw/aboutus/commissioners_office/OutdoorPartnersPgrm/maine_outdoor_heritage_fund.htm .



AGENCY: 13-188 - Department of Marine Resources (DMR)
RULE TITLE OR SUBJECT: Ch. 25.93(F), Lobster Zones A and B Exit Ratios for Limited-Entry Zones
PROPOSED RULE NUMBER: 2013-P261
CONCISE SUMMARY: The Department of Marine Resources proposes changes to this regulation in Ch. 25.93(F) after actions of Lobster Management Zone Councils A and B (Council(s)) regarding lobster license exit-to-entry ratios in accordance with 12 M.R.S. §6448. A Council may recommend to the Commissioner whether the exit-to-entry ratios for a Lobster Management Zone (Zone) should be applied to either the number of licenses that are not renewed or to the number of trap tags associated with the licenses not renewed. If a Council proposes to change only the currency (tags or licenses retired), then the Council is not required to request a survey be conducted.
In Zone A, the proposed rule-making would change the 3:1 exit-to-entry ratio currency from the number of trap tags associated with licenses not renewed to the number of licenses not renewed. Therefore, only a Zone A Council vote and subsequent DMR rule-making is required to move forward. At the Zone A Council meeting on September 24, 2013, an affirmative vote by the Council recommended this currency change from tags to licenses. With this change, more opportunity will become available for lobster license waiting list individuals in this Zone. This action was in response to concerns raised about the long waiting lists that have developed in most Zones, and the low number of licenses that have been issued off of the waiting list each year. The Zone A waiting list currently has 61 names on it. Under the current system in Zone A, only three new lobster licenses were issued in each of the last two years.
In Zone B, the proposed rule-making would change the 5:1 exit-to-entry ratio currency from the number of trap tags associated with licenses not renewed to the number of licenses not renewed similar to the action taken in Zone A. At the Zone B Council meeting on September 25, 2013, an affirmative vote by the Council recommended this currency change from tags to licenses. Therefore, only a Zone B Council vote and subsequent DMR rule-making is required to move forward. The Zone B waiting list currently has 63 names on it. Under the current system in Zone B, only one new lobster license was issued in each of the last two years.
PUBLIC HEARINGS:
Ellsworth: Monday, December 9, 2013, 6:00 PM, Ellsworth City Hall (Auditorium), One City Hall Plaza
Machias: Tuesday, December 10, 2013, 6:00 PM, University of Maine-Machias (Science Building Lecture Hall)
(Snow date for either hearing is December 12, 2013. If necessary, check DMR website for further details.)
Hearing facilities: If you require accommodations due to disability, please contact Amanda Beckwith at (207) 287-7578.
DEADLINE FOR COMMENTS: December 23, 2013
AGENCY CONTACT PERSON: Sarah Cotnoir (tel: 207-624-6596)
Mail written comments to: Attn: Kevin Rousseau, Department of Marine Resources, 21 State House Station, Augusta, Maine 04333-0021. Telephone: (207) 624-6573. Fax: (207) 624-6024. TTY: (888) 577-6690 (Deaf/Hard of Hearing). E-mail: dmr.rulemaking@maine.gov . Website: http://www.maine.gov/dmr/rulemaking/ .
THIS RULE WILL NOT HAVE A FISCAL IMPACT ON MUNICIPALITIES.
STATUTORY AUTHORITY: 12 MRSA §6448
DMR WEBSITE: http://www.maine.gov/dmr/index.htm .



AGENCY: 02-658 - Department of Professional and Financial Regulation (PFR), Office of Professional and Occupational Regulation (OPOR), Maine Fuel Board
CHAPTER NUMBER AND TITLE: Ch. 1 - Definitions; Ch. 2 - Advisory Rulings; Ch. 3 - Categories and Responsibilities of Licensure; Ch. 4 - Qualification for Licensure; Ch. 5 - Use of Other License Authorities; Ch. 6 - Adoption of Standards and Rules; Ch. 7 - Modification of Standards; Ch. 8 - Installation of Oil Burning Equipment; Ch. 9 - Installation of Solid Fuel Burning Equipment; Ch. 10 - Chimneys; Ch. 11 - Installation of Waste Oil Appliances and Waste Oil Supply Tanks; Ch. 12 - Permits for Aboveground and Underground Propane and Natural Gas Storage Facilities and Rooftop Installations; Ch. 13 - Installation of Propane and Natural Gas Burning Equipment
PROPOSED RULE NUMBERS: 2013-P262 thru P274
BRIEF SUMMARY: The proposed rule-making repeals and replaces the rules of the former Oil and Solid Fuel Board and Propane and Natural Gas Board.
The proposed rules may be downloaded from OPOR’s web site at www.maine.gov/professionallicensing .
PUBLIC HEARING: December 12, 2013 beginning at 1:00 p.m., Department of Professional and Financial Regulation, 76 Northern Avenue, Gardiner, ME
COMMENT DEADLINE: January 6, 2014
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Catherine M. Carroll, Board Administrator, Office of Professional and Occupational Regulation, 35 State House Station, Augusta, ME 04333. Telephone: (207) 624-8605. E-mail: Catherine.M.Carroll@Maine.gov .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 32 MRSA §18123(2); P.L. 2009 ch. 344 §D-15(2)
WEBSITE: http://maine.gov/pfr/professionallicensing/professions/fuel/index.htm .
PFR RULE-MAKING LIAISON: Anne.L.Head@Maine.gov .


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: Ch. II Section 32, Waiver Services for Children with Intellectual Disabilities or Pervasive Developmental Disorders.
ADOPTED RULE NUMBER: 2013-282
CONCISE SUMMARY: The Department made changes to the rule to comply with the concurrent operation of a 1915(b) Non-Emergency Transportation Waiver. The changes to Section 32 included referencing the regional, risk-based, Pre-Paid Ambulatory Health Plan (PAHP) Brokerages operating under a 1915(b) waiver (see 42 U.S.C. §1396n) approved by the Centers for Medicare and Medicaid Services (CMS). Under risk-based contractual agreements, the Department contracted with Broker(s) to establish, manage, authorize, coordinate and reimburse the provision of Non-Emergency Transportation (NET) services for eligible MaineCare members. The Broker(s) are responsible for establishing a network of NET drivers to deliver NET transportation services to eligible members within assigned region.
The Department has also made a number of other changes:
1. The Department made changes to the definitions of “seclusion” and “restraint” to conform to the definitions employed in the Department of Education’s regulations (5-71 C.M.R. ch. 33). The Department of Health and Human Services was directed by the Legislature’s Committee on Health and Human Services to amend Ch. II to mirror the definitions of seclusion and restraint in the Department of Education’s regulations.
2. The Department replaced the term “aggression” throughout the rule with “self-injurious behavior and/or aggression.”
3. The Department added language that clarified, for purposes of initial and continuing eligibility, that the annual cost of a member’s services under Section 32 may not exceed the statewide average annual cost of care for an individual in either (a) an Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID), or (b) an Inpatient Psychiatric Facility for individuals age 21 and under, depending upon the level of care at which the individual qualified for the waiver. This is not a new limit; the Department made the changes to clarify that these limits are not fixed numbers, but instead change each year based upon the prior year’s statewide average annual cost of care for the respective facility type.
4. The Department added a number of definitions (including Authorized Agent, Intellectual Disability, and Pervasive Developmental Disorders), and changed the term “Mentally Retarded” to “Intellectual Disabilities,” as required by P.L. 2012, ch. 542, § B(5), An Act To Implement the Recommendations of the Department of Health and Human Services and the Maine Developmental Disabilities Council Regarding Respectful Language.
5. The Department clarified the requirements for providers of Section 32 services. These changes included clarification of the circumstances under which Behavioral Health Professionals may assist with administration of medication, requirements for Respite Service providers, and a requirement that providers put in place a Department-approved informed consent policy.
6. Performance Measures were adopted in Section 32.11. The primary goal of Performance Measurement is to use data to determine the level of success a service is achieving in improving the health and wellbeing of members. Performance Goals and Performance Measures have been established to monitor quality, inform and guide reimbursement decisions and conditions of provider participation across MaineCare services. This focus on Performance Measurement is anticipated to enhance the overall quality of services provided and raise the level of public accountability for both the Department and MaineCare providers.
Additionally, changes to the final rule were made based on the recommendation of the Attorney General’s office.
1. 32.02-1, “means” was inserted into the definition.
2. 32.03-2(B), there was an incorrect citation; 34-B MRSA ( 6001 has been changed to 5001.
3. In 32.05-1, a comma was added after the reference to the MaineCare Benefits Manual and a reference to (14 472 CMR 1) was inserted.
4. In 32.05-1(C), a typographical error “has an change” was changed to “has any change.”
5. In 32.-05-1(F), a hyphen was inserted in DHHS-sponsored.
6. In 32.05-1(N), the reference to SAMHSA‘s system of care principles was modified to refer to an appendix added containing a copy of the principles and called APPENDIX I- Federal Substance Abuse and Mental Health Services Administration’s (SAMHSA) System of Care Principles.
The Department does not anticipate that this rule change will impose any additional cost on municipalities or counties or have any adverse impact on small businesses.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: November 17, 2013
AGENCY CONTACT PERSON: Ginger Roberts-Scott, Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 287-9365. Fax: (207) 287-9369. TTY: 711 (Deaf/Hard of Hearing). E-mail: Ginger.Roberts-Scott@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING 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. 115, Principles of Reimbursement for Residential Care Facilities - Room and Board Costs
ADOPTED RULE NUMBER: 2013-283
CONCISE SUMMARY: This final rule permanently adopts rule changes mandated by Resolves 2011, Ch. 106. In the proposed rule, Ch. 115 Section 20.21(e)(4) continued to impose a prior approval requirement for energy efficiency improvements which exceeded $35,000 in cost. As a result of public comments and upon reviewing L.D. 790, the bill that became Resolve 2011 ch. 106, the Department determined that retaining the prior approval for energy efficiency improvements was contrary to the Legislature’s intent. Therefore, in response to the public comment and to conform with Resolve 2011 ch. 106, the Department has eliminated the prior approval requirements for energy efficiency improvements as follows:
(1) Effective November 13, 2013, in order for an energy efficient improvement to be reimbursable, the energy efficiency improvement must be recommended as a cost- effective energy efficiency improvement in an energy audit conducted by an independent energy audit firm, as evidenced in a written document, or must be determined to be cost- effective by the Efficiency Maine Trust, established in 35-A MRSA §10103, as evidenced in a written document; and
(2) Effective July 8, 2011, the rule retroactively raises the threshold beyond which providers must seek prior approval of capital expenditures for new construction, acquisitions, or renovations from $35,000 to $350,000. The rule also excludes costs for energy efficiency improvements, replacement equipment, information systems, communications systems, parking lots and garages from the cost of the project for the purpose of determining whether prior approval is required.
However, all such costs will continue to be reviewed and audited for allowable costs, in compliance with Ch. 115 regulations. Providers should also note that the Department is engaged in discussions with the Centers for Medicare and Medicaid Services (CMS) concerning for Private Non-Medical Institutions (PNMI) funding. If the MaineCare PNMI regulations change, that may impact the reimbursement of room and board for PNMIs under this Ch. 115, which is a solely state-funded program. The Department advised providers to consider these factors in making their investment decisions.
Note that the $350,000 prior approval provision is retroactive to July 8, 2011 – the date the Governor signed the resolve into law. The retroactive application of this provision is lawful under the Maine Administrative Procedure Act since: (a) it provides a benefit to providers and (b) it was the intent of the Legislature that it take effect immediately. The energy efficiency project provision, however, cannot be applied retroactively since it places a burden on providers to obtain written documentation of cost-effectiveness.
The Department does not anticipate that this rule-making will cause any actual or potential public controversy. This rule-making will not yield any new administrative burdens or compliance-related costs that could fiscally impact municipal or county governments.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rule-making documents.
EFFECTIVE DATE: November 13, 2013
AGENCY CONTACT PERSON: Michael J. Dostie, Comprehensive Health Planner, Division of Policy, 242 State Street, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 287-6124. Fax: (207) 287-9369. TTY: 711 (Deaf/Hard of Hearing). E-mail: Michael.Dostie@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULE-MAKING LIAISON: Kevin.Wells@Maine.gov .