March 6, 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: 15-213 - Maine Department of Defense, Veterans and Emergency Management (DVEM), Military Bureau
CHAPTER NUMBER AND TITLE: Ch. 2, Registration of Private Educational Institutions to Participate in the Maine National Guard Education Assistance Program
PROPOSED RULE NUMBER: 2018-P241 (comment period reopened)
BRIEF SUMMARY: This proposed rule establishes the process to govern the registration by the Military Bureau of private, non-profit, post-secondary education institutions to participate in the tuition benefit program for eligible members of the Maine National Guard, as established and recently amended pursuant to Title 37-B MRS §§ 352, 352-A, 353-B and 357. The program was previously available only for attendance at public post-secondary institutions in Maine.
The original proposed rule was advertised in the Secretary of State’s Notice of Agency Rulemaking advertisement on November 14, 2018 in five daily newspapers. Additionally, this notice was emailed to the private higher education institutions in Maine and posted on the Maine National Guard’s website. Finally, a public hearing on this proposed rule was held on December 3, 2018 at Camp Chamberlain in Augusta, Maine.
The Department received only one comment on the rule, which was submitted by Husson University in Bangor. The commenter suggested that the rule as written does not take adequate account of private institutions that have to fund their entire operation through tuition, room, board and fees. For such institutions, a waiver could cost in excess of $11,000 per student, which would represent almost two thirds of the total tuition cost. The commenter notes that this amount is unsustainable, and suggests capping the waiver at $3,000 per student per year.
The Department has reconsidered its initial approach in response to this comment and is now proposing to cap the amount of any waiver at the in-state tuition rate for the University of Maine at Orono. Any amount of tuition above that rate could be charged to the student by the private institution if there are insufficient monies in the Fund to pay for the student’s tuition up to that level. The Department has also amended the rule to clarify how other forms of financial assistance are to be applied to the amount of tuition at a private institution, first, before any tuition benefit from the Fund is awarded. The rule has been revised to reflect these changes and is being re-posted for public comment for 30 days in accordance with 5 MRS §8052(5)(B).
DETAILED SUMMARY: This proposed rule establishes the process to govern the registration by the Military Bureau of private, non-profit, post-secondary education institutions to participate in the tuition benefit program for eligible members of the Maine National Guard, as established and recently amended pursuant to Title 37-B MRS §§ 352, 352-A, 353-B and 357. The program was previously available only for attendance at public post-secondary institutions in Maine.
The proposed rule will enhance access for eligible members of the Maine National Guard to higher education as a benefit of their service. The proposed rule will help ensure that students attending both public and private schools in Maine receive the same tuition benefits as intended by law. Clarification of the use of the Post 9/11 GI Bill is included in the proposed rule to minimize the possibility of overpayment by either state or federal sources such as the Post 9/11 GI Bill.
The proposed change in the rule will have no financial impact on the Military Bureau of the Department of Defense, Veterans and Emergency Management. Funds for this program have been allocated through the regular budget and appropriation process of state government and pursuant to 37-B MRS §353-A.
The original proposed rule was advertised in the Secretary of State’s Notice of Agency Rulemaking advertisement on November 14, 2018 in five daily newspapers. Additionally, this notice was emailed to the private higher education institutions in Maine and posted on the Maine National Guard’s website. Finally, a public hearing on this proposed rule was held on December 3, 2018 at Camp Chamberlain in Augusta, Maine.
The Department received only one comment on the rule, which was submitted by Husson University in Bangor. The commenter suggested that the rule as written does not take adequate account of private institutions that have to fund their entire operation through tuition, room, board and fees. For such institutions, a waiver could cost in excess of $11,000 per student, which would represent almost two thirds of the total tuition cost. The commenter notes that this amount is unsustainable, and suggests capping the waiver at $3,000 per student per year.
The Department has reconsidered its initial approach in response to this comment and is now proposing to cap the amount of any waiver at the in-state tuition rate for the University of Maine at Orono. Any amount of tuition above that rate could be charged to the student by the private institution if there are insufficient monies in the Fund to pay for the student’s tuition up to that level. The Department has also amended the rule to clarify how other forms of financial assistance are to be applied to the amount of tuition at a private institution, first, before any tuition benefit from the Fund is awarded. The rule has been revised to reflect these changes and is being re-posted for public comment for 30 days in accordance with 5 MRS §8052(5)(B).
PUBLIC HEARING: None required for an additional 30-day comment period.
COMMENT DEADLINE: April 8, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Scott A. Young, Dept. of Defense, Veterans & Emergency Management, 33 State House Station, Augusta, Maine 04333. Telephone: (207) 430-5997. Fax: (207) 626-4509. TTY: (711) Maine Relay. Email: Scott.A.Young@Maine.gov .
DVEM RULEMAKING WEBSITE: https://www.maine.gov/sos/cec/rules/notices.html .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None.
STATUTORY AUTHORITY FOR THIS RULE: 37-B MRS §§ 352, 352-A, 353-B and 357.
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
BUREAU WEBSITE: http://www.me.ngb.army.mil/ .
DVEM RULEMAKING LIAISON: Kevin.Rousseau@Maine.gov .

AGENCY: 01-015 – Department of Agriculture, Conservation and Forestry (DACF), Maine Milk Commission (MMC)
CHAPTER NUMBER AND TITLE: Ch. 3, Schedule of Minimum Prices, Order #04-19
PROPOSED RULE NUMBER: 2019-P029
BRIEF SUMMARY: The principal reason for this rule is the need to respond to Federal Order changes and to certain other conditions affecting prevailing Class I, II and III milk prices in Southern New England in accordance with 7 MRS §2954.
PUBLIC HEARING: March 21, 2019, Thursday, starting at 10:30 a.m., Room 101, Department of Agriculture, Conservation & Forestry, Deering Building, Hospital Street, Augusta, Maine
COMMENT DEADLINE: March 21, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION / MMC RULEMAKING LIAISON: Tim Drake, Maine Milk Commission, 28 State House Station, Augusta, ME 04333. Telephone: (207) 287-7521. Email: Tim.Drake@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 5 MRS §8054; 7 MRS §2954
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
MMC WEBSITE: http://www.maine.gov/dacf/milkcommission/index.shtml .
DACF INTERIM RULEMAKING LIAISON: Shannon.Ayotte@Maine.gov .

AGENCY: 01-672 – Department of Agriculture, Conservation and Forestry (DACF), Maine Land Use Planning Commission (LUPC)
CHAPTER NUMBER AND TITLE: Ch. 10, Land Use Districts and Standards: 10.27, Activity-specific Standards: D., Roads and Water Crossings
PROPOSED RULE NUMBER: 2019-P030
BRIEF SUMMARY: The Land Use Planning Commission is seeking public comment on proposed amendments to its Ch. 10, Land Use Districts and Standards. The primary objectives of this rulemaking are to update the standards regarding roads and water crossings to be more consistent with the Maine Department of Environmental Protection’s standards in 06-096 CMR ch. 305, Permit By Rule; to enhance public safety; and to provide for aquatic habitat connectivity in flowing waters. The proposed amendments also reorganize Section 10.27,D, “Roads and Water Crossings”, to improve readability.
PUBLIC HEARING: N/A; a public hearing has not been scheduled.
COMMENT DEADLINE: Written comments must be submitted on or prior to 1:00 p.m. on 4/05/19; written rebuttal comments must be submitted on or prior to 4/12/19.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Stacie R. Beyer, Maine Land Use Planning Commission, 22 State House Station, Augusta, Maine 04333-0022. Telephone: (207) 557-2535. Email: Stacie.R.Beyer@Maine.gov.
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: N/A
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS §685-A,(3), (7-A)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
LUPC WEBSITE: http://www.maine.gov/doc/lupc .
DACF INTERIM RULEMAKING LIAISON: Shannon.Ayotte@Maine.gov .

AGENCY: 01-672 – Department of Agriculture, Conservation and Forestry (DACF), Maine Land Use Planning Commission (LUPC)
CHAPTER NUMBER AND TITLE: Ch. 10, Land Use Districts and Standards: Appendix D, Lakes and Rivers on which the Use of Personal Watercraft is Prohibited: Upper Wilson Pond (Lake #0410), Piscataquis Country
PROPOSED RULE NUMBER: 2019-P031
BRIEF SUMMARY: Consistent with 12 MRS §685-C(10)(D), the Commission proposes to update its list of “Lakes and rivers on which the use of personal watercraft is prohibited” to include Upper Wilson Pond in Bowdoin College Grant West Township. Because of the Moosehead Region Conservation Easement, Upper Wilson Pond now meets the statutory criteria for prohibition of personal watercraft.
PUBLIC HEARING: N/A.
COMMENT DEADLINE: Written comments must be submitted on or prior to April 5, 2019.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION: Naomi Kirk-Lawlor, Maine Land Use Planning Commission, 22 State House Station – 18 Elkins Lane, Augusta, Maine 04333-0022. Telephone: (207) 287-4936. Email: Naomi.E.Kirk-Lawlor@Maine.gov.
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: N/A
STATUTORY AUTHORITY FOR THIS RULE: 12 MRS 12 §685-A(3); §685-A(7-A); §685-C(10)(D)
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: N/A.
LUPC WEBSITE: http://www.maine.gov/doc/lupc .
DACF INTERIM RULEMAKING LIAISON: Shannon.Ayotte@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 (MBM): Ch. III Section 67, Principles of Reimbursement for Nursing Facilities
ADOPTED RULE NUMBER: 2019-042
CONCISE SUMMARY: The Department of Health and Human Services (“the Department”) adopts these changes to Ch. III,. Section 67, “Principles of Reimbursement for Nursing Facilities” services, to effectuate a number of changes to the reimbursement methodology to continue to ensure adequate funding for Nursing Facility Services and in conformance with Public Law 2017 ch. 460, LD 925, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“the Act”), Sections B-1 and B-3.
These changes required by PL 2017, ch. 460 include:
1. Principles 18.9 and 22.2: A change in the Occupancy Adjustment to allow for reduced occupancy percentage (ch. 460 sec. B-3(2));
2. Principle 18.12: An increase in the High MaineCare Utilization payment (ch. 460 sec. B-3(3));
3. Principle 43: The adoption of a special wage allowance for fiscal year 2018-19. The final rule clarifies that this special allowance will be allowed and paid at final audit to the full extent that it does not cause reimbursement to exceed the facility’s allowable cost in that fiscal year. (ch. 460 sec. B-3(1));
4. Principle 1.4 (Definition of Base Year): The Legislature further required that, for state fiscal year beginning July 1, 2018, the base year for each facility is its fiscal year that ended in calendar year 2016; for state fiscal years beginning on or after July 1, 2019, subsequent rebasing must be based on the most recent cost report filings available. Further, for the state fiscal year beginning July 1, 2018, the rates set for each rebasing year must include an inflation adjustment for a cost-of living percentage change in nursing facility reimbursement each year in accordance with the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index - medical care services index from the prior December for professional services, nursing home, and adult day care services. (ch. 460 sec. B-3(1), to be codified 22 MRS §1708(3)(F));
5. Principle 18.13: Finally, in compliance with ch. 460 sec. B-3(4), the Department added an aggregate hold harmless provision to reflect that the revised method of rebasing a nursing facility’s base year may not result in the rate of reimbursement for direct and routine costs that is lower than the rate in effect June 30, 2018.
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 67 rates on August 1, 2018. Upon the advice of the Office of the Attorney General, the changes in reimbursement methodology will be effective August 2, 2018; this effective date comports with the federal law requirement. Pending approval of the proposed changes to the Section 67 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the reimbursement methodology changes will be implemented with an August 2, 2018 effective date.
On December 4, 2018, the Department adopted an emergency rule to effectuate the changes to the reimbursement methodology for Nursing Facilities with a retroactive effective date of August 2, 2018. This rulemaking makes permanent the emergency rule changes.

Additional changes in this rulemaking include:

  • Principle 1.1: The Department deleted non-essential and ambiguous language, so that the principle now reads: “The purpose of these principles is to provide for payment of nursing facility services provided under the MaineCare program in accordance with Title XIX of the Social Security Act.”
  • Principle 13.4.1.3: Uniform desk review completion is extended from one hundred eighty days to three hundred and sixty-five days, in order to allow the Department sufficient time to do a comprehensive and accurate desk review;
  • Principle 18.5: Clarification is added to describe the conditions required for interest expenses to be allowable. Similarly, the Department elaborated upon when refinancing expenses may be allowable;
  • Principle 23.4 (Funding Adjustment): The Department is deleting this Principle. The purpose of this provision was to hold nursing facilities harmless from the calculation of the prospective rate in Principle 23.3 at less than 100% of the calculated Direct and Routine Cost components. Principle 23.4 is no longer necessary because the calculation of the prospective rate in Principle 23.3 is not at 100% of the calculated Direct and Routine Cost components;
  • Principle 39 (Community-Based Specialty Nursing Facility Units): The Department clarified that services provided are medical-psychiatric services. The Department removed the requirement of a contract between the nursing facility and the Department and replaced it with the requirement that in order to get reimbursement under this provision there needs to be a written approval by the Department for this service;
  • Throughout the policy “if CMS approves” language has been removed, where applicable, based on approved State Plan Amendment status.
  • See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.

EFFECTIVE DATE: March 5, 2019
OMS CONTACT PERSON: Heidi Bechard, Comprehensive Health Planner, Division of Policy, 242 State Street - 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207) 624-4074. Fax: (207) 287-1864. TTY users call Maine relay 711. Email: Heidi.Bechard@Maine.gov .
OMS WEBSITE: http://www.maine.gov/dhhs/oms/ .
DHHS RULEMAKING LIAISON: Kevin.Wells@Maine.gov .

AGENCY: 01-015 – Department of Agriculture, Conservation and Forestry (DACF), Maine Milk Commission (MMC)
CHAPTER NUMBER AND TITLE: Ch. 3, Schedule of Minimum Prices, Order #03-19
ADOPTED RULE NUMBER: 2019-043 (Emergency)
CONCISE SUMMARY: Minimum March 2019 Class I price is $19.23/cwt. plus $1.63/cwt. for Producer Margins, an over-order premium of $1.04/cwt. as being prevailing in Southern New England and $1.86/cwt. handling fee for a total of $23.96/cwt. that includes a $0.20/cwt. Federal promotion fee.
EFFECTIVE DATE: March 3, 2019
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION / MMC RULEMAKING LIAISON: Tim Drake, Maine Milk Commission, 28 State House Station, Augusta, ME 04333. Telephone: (207) 287-7521. Email: Tim.Drake@Maine.gov .
FINANCIAL IMPACT ON MUNICIPALITIES OR COUNTIES: None
MMC WEBSITE: http://www.maine.gov/dacf/milkcommission/index.shtml .
DACF INTERIM RULEMAKING LIAISON: Shannon.Ayotte@Maine.gov .

AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 101, Visible Emissions Regulation
ADOPTED RULE NUMBER: 2019-044
CONCISE SUMMARY: Emissions into the ambient air from facilities, both licensed and unlicensed, are subject to visible emissions standards. These standards may be located in the Department’s Ch. 101, Visible Emissions Regulation, in State-determined Best Available Control Technology (BACT) and Best Practical Treatment (BPT) determinations, and in federal National Emissions Standards for Hazardous Air Pollutants (NESHAP) and/or New Source Performance Standards (NSPS). Emissions sources identified in this Chapter include sources which may not otherwise be subject to visible emissions requirements.
Currently, Ch. 101 includes up to two six-minute exemptions from visible emissions standards per three-hour period for certain regulated emissions units. As the result of legal action against the U.S. Environmental Protection Agency (EPA), the court had deemed such exemptions as “unregulated periods” and thus in conflict with Clean Air Act (CAA) requirements. Per direction from the court, the EPA issued a State Implementation Plans (SIP) Call, identifying each state and state rule deemed in conflict with such CAA requirements. This rulemaking rectifies language and requirements to bring the chapter in compliance with the SIP Call and CAA requirements.
EFFECTIVE DATE: March 10, 2019
DEP CONTACT PERSON: Tom Graham, Department of Environmental Protection, 28 Tyson Drive - 17 Statehouse Station, Augusta, Maine 04333. Telephone: (207) 287-7598. Email: Tom.Graham@Maine.gov .
DEP WEBSITE: http://www.maine.gov/dep/ .
DEP RULEMAKING LIAISON: Jeff.S.Crawford@Maine.gov .