June 1, 2022

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.


AGENCY: 28-248 -  Office of the State Treasurer
CHAPTER NUMBER AND TITLE: Ch. 104 (New), Certain Payments Made not Immediate
TYPE OF RULE: Routine Technical
BRIEF SUMMARY: The purpose of this rule is to establish procedures for a department or agency to accept payments using automated procedures, electronic processes and computer driven technology that is not immediately deposited into the State Treasury. Pursuant to 5 MRS §131, as enacted by HP 1482 – LD 1995, the Treasurer of State and the State Controller shall adopt rules.
I. General.
In accordance with the Act, the Treasurer of the State and the State Controller have established the rules and regulations set forth in sections I to VIII, inclusive, governing the procedures to accept payments using automated procedures, electronic processes and computer driven technology that is not immediately deposited into the State Treasury.
II. Definitions.
As used in sections I through VII, inclusive, unless the context otherwise requires, the words and terms defined in this section, have the meanings ascribed to them below.
 A. State. “State” means the State of Maine.
 B. 3rd Party Payment Processor. “3rd Party Payment Processor” means a financial service provider who accepts and transmits payment from a consumer to the State.
III. Duties of a Department or Agency
 A. Department or Agency seeking to contract with a 3rd Party Payment Processor must use the State’s procurement process to issue a request for proposal (RFP) to select a vendor.
 B. Must report to the State Controller and Treasurer of State the winner of the RFP for final approval. The Treasurer of State has the authority to deny the use of a selected winner.
 C. Must have ability to review current balances of accounts held with vendor.
IV. Duties and Powers of the Treasurer of State.
 A. The Treasurer of State or designee shall review all proposed 3rd Party Payment Processors and provide approval or denial for each request.
 B. Track all approved vendors.
 C. Must have ability to review current balances of accounts held with each vendor.
V. Duties and Powers of the State Controller.
The State Controller or designee shall review all proposed vendors and make a recommendation to the State Treasurer to approve or deny as a 3rd Party Payment Processor.
VI. Prohibitions against deductions.
Nothing in these rules waive prohibitions against deductions on account of salaries, fees, costs, charges, expenses, refunds, claims or demands of any description what so ever.
VII. Requirements for a 3rd Party Payment Processor.
 A. The State shall not be held liable for funds collected until funds have been received by the State in its primary deposit account.
 B. Funds shall be deposited into the State Treasury within 3 business days of initial payment.
 C. Must make payee aware that funds will not be immediately deposited into the State Treasury.
VIII. Accounts Not Insured by or Obligation of the State.
Accounts are not insured by the State and any principal contributed and any investment return in an account is not guaranteed by the State. Sections I to VII, inclusive, may not be construed to create any obligation of the Treasurer of State, the State or any agency or instrumentality of the State, to guarantee for the benefit of any account owner or designated beneficiary the return of principal, any rate of interest or any payment of interest or other return on any account.
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS IMPACT INFORMATION / AGENCY RULEMAKING LIAISON: Gregory Olson, Treasury, 39 State House Station, Augusta, ME 04333. Telephone: (207) 624-6477; (207) 287-2367 Maine Relay 711. Email: Gregory.Olson@Maine.gov.
AGENCY WEBSITE: www.maine.gov/treasurer.

AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office for Family Independence (OFI)
CHAPTER NUMBER AND TITLE: Ch. 332, MaineCare Eligibility Manual, Parts 2, 3, and 5: MaineCare Rule #300, Changes to Post-Partum Coverage, and Coverage for Young Adults
BRIEF SUMMARY: PL 2021 Ch. 461 amended 22 MRS §3174-G to incrementally increase the period of time an individual can receive postpartum coverage. PL 2022 Ch. 519 adjusted the timeframe of those extensions to comply with 42 USC §§ 1396a(e) and 1397gg(e)(1) as amended by PL 117-2, the American Rescue Plan Act of 2021. This rulemaking would incorporate those extended timeframes to Part 2 §13.1(III) and Part 3 §2.3(I) effective August 1, 2022.
PL 2021 Ch. 461 further amended 22 MRS §3174-G to provide MaineCare coverage to non-citizens during their pregnant/postpartum period or under the age of 21 to the extent allowable under federal law. This rulemaking would incorporate that coverage in Part 3 §2.3(III). Consistent with amendments made by PL 2022 Ch. 519, these changes would also be effective August 1, 2022.
PL 2021 Ch. 398 Part DDD established 22 MRS §3174-FFF to provide state-funded MaineCare and CubCare to non-citizens under age 21 who would be eligible for the federally-funded program if not for their immigration status. This rulemaking would incorporate that program in the definitions of “Cub Care” and “Coverage for Noncitizens Under Age 21” in Part 2 §1 Part 3 §2.1(V), and Part 5 §3(C) effective July 1, 2022 consistent with the timeframe in law.
Consistent with 8 USC §1612(b)(2)(G) as established by the Consolidated Appropriations Act, 2021, PL 116-260 §208, this rulemaking proposes to extend MaineCare coverage to otherwise eligible non-citizens with Compact of Free Association (COFA) status. This addition of Subparagraph P to Part 2 §3.4(I) would be effective December 27, 2020.
The Department proposes to adopt the preceding changes retroactively to the dates indicated. Retroactive rulemaking is permissible under 22 MRS §42(8) as these changes afford benefits to more residents of the State of Maine and do not adversely impact applicants, participants, beneficiaries, or providers. The following changes would not be adopted retroactively.
This rulemaking proposes to clarify the requirements in Part 2 §§ 3.1(III) and (IV), 3.2(VIII), 3.3, and 3.4(II) for applicants and the Department as they relate to non-citizen eligibility. These requirements are consistent with 42 USC §1320b-7 and 42 CFR §435.956(a).
The Department proposes to update Part 2 §11, and Part 5 §§ 1, 9, and 10 to reflect online application avenues that have changed or will be changing soon.
The Department proposes to remove language from Part 3 §2.4 and Part 5 §3 that was necessary immediately after the adoption of other rule changes, but no longer applies.
The following additional updates would be made to Part 2. Section 7.1 would be amended to include a more accurate list of programs that do not require cooperation in obtaining medical support from a non-custodial parent. Redundant language would be removed from Section 12.2. Additionally, general verification requirements in Section 12.1 would be modified to specify that the Department must use electronic verifications systems when available. Only if eligibility cannot be determined based on those systems would verification be required of the individual. These changes are necessary to comply with 42 CFR §435.949. Section 13.1 would be amended to more clearly articulate that while a child may be eligible for continuous coverage for 12 months, the category of eligibility may change. Section 13.3 would be reworded to be more consistent with other sections that address change reporting. Ambiguous language would be removed from Section 13.4. Clarity would be added to Section 15 related to the types of computer matches that require timely noticing.
The following additional updates would be made to Part 3. Section 1 adds definition of Federal Poverty Level. Removes unnecessary redundant definition in Section 2.1. Section 2.2 would be corrected to indicate an individual would still be considered to live with their parent or caretaker if they attended the Governor Baxter State School for the Deaf if services cannot be found in their home community. Section 2.3(II) would be amended to clearly state that providers must communicate a decision to the Department as a whole, not to a specific regional office. It would further be amended to clarify that Presumptive Eligibility ends the earlier of the date the Department renders a decision or the end of the month following the month the provider renders a decision. Section 4.1.1 would be amended to more clearly state which coverage groups may move to Transitional MaineCare. Section 4.2.2 would be amended to reflect that recipients who are no longer employed must request a good cause determination before the Department can establish one.
Redundant language would be removed from Part 5 Section 9.
Finally, some non-substantive changes would be made for clarity and inclusivity. Where possible, similar terms that may have carried stigma or are now out of date would be replaced with “noncitizen.” The Department proposes to use person first language except where it would create inconsistency in terminology used in other parts of the manual. Language would be rendered gender neutral where possible. The Department proposes to convert some language to the active voice for clarity. Some instances of bulleted items would be converted to a more consistent outline style. Citations and cross references would be updated as needed for accuracy, clarity, and consistency of format. Minor corrections to punctuation, grammar, and spelling would be made. Whole numbers zero through ten would be represented in word form with all other numbers being represented numerically (consistent with the method being applied to all Office for Family Independence Manuals). Date format would be made consistent throughout these parts. Part 2 §8 would be reorganized. These changes would improve the readability of the manual without changing its meaning.
See http://www.maine.gov/dhhs/ofi/rules/index.shtml for rules and related rulemaking documents.
PUBLIC HEARING: Tuesday, June 21, 2022, at 1:00 p.m. DHHS is committed to maintaining essential functions while protecting the health and safety of employees, clients, and the public. If public hearings for rules are held in person, which are indoor gatherings that may not allow for physical distancing, there is a reasonable chance that individuals’ health and safety may be compromised. To avoid the threat to public health and safety, DHHS finds that it is necessary to conduct all rulemaking public hearings per 5 M.R.S. § 8053 solely remotely. (See the policy at https://www.maine.gov/dhhs/sites/maine.gov.dhhs/files/inline-files/9%209%2021%20Remote%20Rulemaking%20Hearings%20Policy.pdf). This hearing will be conducted virtually. Anyone wishing to attend should join the Microsoft Teams meeting accessible at https://teams.microsoft.com/l/meetup-join/19%3ameeting_ZTc0YTFmYjctM2MxNy00YjNlLThkYzMtYjBmZDEyYmU3OWVl%40thread.v2/0?context=%7b%22Tid%22%3a%22413fa8ab-207d-4b62-9bcd-ea1a8f2f864e%22%2c%22Oid%22%3a%22f89346ba-710d-4ff8-8766-4d52c4172faf%22%7d or by calling (207) 209-4724 and entering Conference ID: 854 710 413#.
The Department requests that any interested party requiring special arrangements to attend the hearing contact the agency person listed below before Tuesday, June 14, 2022.
COMMENT DEADLINE: Tuesday, July 5, 2022, at 5:00 p.m. EDT. Written public comments may be submitted via the link at https://www.maine.gov/DHHS/OFI/about-us/rules/proposed.
CONTACT PERSON FOR THIS FILING: Esther Bullard, MaineCare Program Manager, Department of Health and Human Services, Office for Family Independence, 109 Capitol Street, Augusta, ME 04330-6841. Telephone: (207) 624-4178. Fax: (207) 287-3455. TT Users Call Maine Relay – 711. Email: Esther.Bullard@Maine.gov.
STATUTORY AUTHORITY FOR THIS RULE: 22 MRS §§ 42(1) and (8), 3173, 3174-G, and 3174-FFF
OFI RULES WEBSITE: http://www.maine.gov/dhhs/ofi/rules/index.shtml.
OFI WEBSITE: https://www.maine.gov/dhhs/ofi.
DHHS WEBSITE: https://www.maine.gov/dhhs/.


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 #06-22
ADOPTED RULE NUMBER: 2022-097 (Emergency)
CONCISE SUMMARY: Minimum June 2022 Class I price is $29.12/cwt. plus $1.58/cwt. for Producer Margins, an over-order premium of $1.04/cwt as being prevailing in Southern New England and $0.47/cwt. handling fee for a total of $32.21/cwt. that includes a $0.20/cwt Federal promotion fee.
EFFECTIVE DATE: May 29, 2022
MMC CONTACT PERSON / RULEMAKING LIAISON: Julie-Marie R. Bickford, Maine Milk Commission – DACF, 28 State House Station, Augusta, ME 04333. Telephone: (207) 287-7521. Email: Julie-Marie.Bickford@Maine.gov.
MMC WEBSITE: https://www.maine.gov/dacf/milkcommission/index.shtml.

AGENCY: 94-411 - Maine Public Employees Retirement System (MainePERS)
CHAPTER NUMBER AND TITLE: Ch. 202 (Repeal), Medical Board
CONCISE SUMMARY: This rule governs the establishment of the Medical Board of the Maine Public Employees Retirement System. The rule is being repealed. Public Law 2021 Ch. 277 amended the law to eliminate the use of a Medical Board, eliminating the need for rule Ch. 202.
EFFECTIVE DATE: May 30, 2022
MAINEPERS CONTACT PERSON / RULEMAKING LIAISON: Kathy Morin, Maine Public Employees Retirement System, P.O. Box 349 – 46 State House Station, Augusta, ME 04332-0349. Telephone: 1 (800) 451-9800 or (207) 512-3108. Email: Kathy.Morin@MainePERS.org.
MAINEPERS WEBSITE: https://www.mainepers.org.

AGENCY: 94-411 - Maine Public Employees Retirement System (MainePERS)
CHAPTER NUMBER AND TITLE: Ch. 512 (New), Independent Medical Examinations
CONCISE SUMMARY: This new rule implements and describes procedures for conducting independent medical examinations for applicants for disability retirement benefits under 5 MRS §17106-B(2), as enacted by Public Law 2021 Ch. 277. It establishes the reimbursement rates for independent medical examinations and sets forth how a member may waive an independent medical examination.
EFFECTIVE DATE: May 31, 2022
MAINEPERS CONTACT PERSON / RULEMAKING LIAISON: Kathy Morin, Maine Public Employees Retirement System, P.O. Box 349 – 46 State House Station, Augusta, ME 04332-0349. Telephone: 1 (800) 451-9800 or (207) 512-3108. Email: Kathy.Morin@MainePERS.org.
MAINEPERS WEBSITE: https://www.mainepers.org.

AGENCY: 94-649 - Maine Commission on Indigent Legal Services
CHAPTER NUMBER AND TITLE: Ch. 301, Fee Schedule and Administrative Procedures for Payment of Court or Commission Assigned Counsel
ADOPTED RULE NUMBER: 2022-100 (Final adoption, major substantive)
CONCISE SUMMARY: This rule makes permanent the emergency rule adopted in July 2021 which raised the hourly rate paid to assigned counsel to $80 per hour pursuant to a legislative appropriation for that purpose.
EFFECTIVE DATE: June 23, 2022
MAINEPERS CONTACT PERSON / RULEMAKING LIAISON: Justin W. Andrus, Esq., Executive Director, Maine Commission on Indigent Legal Services, 154 State House Station, Augusta, ME 04333. Telephone: (207) 287-3254. Email: Justin.Andrus@Maine.gov.
COMMISSION WEBSITE: https://www.maine.gov/mcils/.

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
CONCISE SUMMARY: This final rule 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. The changes in this final rule are listed below.
The previous rule did not address retroactive enrollment for providers other than federally qualified health centers, rural health centers, and Indian health centers. This final rule 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 dates but will not grant a retroactive enrollment date that is more than 365 days prior to the date of providers’ MaineCare application submissions.
To comply with 42 CFR §455.434, the final 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. The new Section 1.03-1(J) includes relevant criteria for provider termination or denial of enrollment and outlines which providers and suppliers have high categorical risk.
The current “rounding rule” in 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. The current version of this rule will remain in effect until December 31, 2022. To encourage better alignment between the amount of covered, medically necessary services delivered and billed, the final rule 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. As a result of comments, these changes will be effective January 1, 2023 to allow providers time to change their billing systems in order to comply with the changes. The final rule also adds misuse of the “rounding rule” to examples of conduct that could constitute fraud.
This final rule 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, tasks performed for the provider’s own administrative purposes, and similar activities. The final rule includes an exception explaining that certain administrative tasks may be covered if addressed in an appropriate section of the MaineCare Benefits Manual. 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 section 53102 of the Bipartisan Budget Act of 2018, PL No. 115-123, the final rule removes Section 1.07-3(F)(1) to reflect that the Department will no longer pay and then seek reimbursement, commonly known as pay and chase, from liable third parties for prenatal services.
In Section 1.19-1(C)(2), the final rule clarifies 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. This change was made because providers may not be reimbursed after termination of a provider agreement. The final rule 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, the final rule 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 the Department may consider when assessing this type of provider request.
In order to correct provider deficiencies, the final rule adds a sanction permitting the Department to require providers to submit a detailed plan of correction for review and approval. This will allow the OMS Program Integrity Unit to ensure providers comply with MaineCare rules and monitor providers who experience rapid growth or changes. Providers that grow rapidly may not have adequate infrastructure to maintain quality of service provision. The final rule allows providers to satisfy the plan of correction requirement by submitting a plan that was approved by another Division within the Department if it addresses identical violations. The additional sanctions added to Section 1.20-2 provide that the Department may:
* 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.
The final rule clarifies the provisions in Sec. 1.21 regarding reinstatement following termination or exclusion to make the provisions easier to understand and apply.
The final rule adds Section 1.24-4 on expedited member appeals that includes: (1) the procedure to request an expedited appeal, (2) criteria for the Division of Administrative Hearings (DAH) to consider when deciding whether to grant requests, (3) deadlines for when the Department must take final agency action, and (4) other requirements, per 42 CFR §431.224. The final rule amends Section 1.24-3 to provide that 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) developed structural and process changes to improve its function and efficiency. The final rule implements these changes in Section 1.25. The MAC changes include, among others, increasing MAC membership and including at least two Medicaid beneficiaries as members.
The final rule also makes the following changes:
* Defines the ownership and control relationships that are subject to an offset and/or recoupment;
* Establishes a 10-day timeframe for when providers need to update OMS of changes to their National Provider Identifier or other enrollment information;
* Requires providers who change their name or “doing business as” name to change their MaineCare Provider Agreement;
* Clarifies 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, Chapter 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;
* Adds 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;
* Changes 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, increases 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;
* Adds 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;
* Adds 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;
* Changes 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;
* Clarifies 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;
* Adds 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;
* Clarifies that providers may request an informal review within 60 calendar days from the date of written notification of the Department’s alleged grievance and extends the deadline to the next business day if it falls on a weekend or holiday; and
* Makes minor grammatical and technical changes.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: May 29, 2022
DHHS CONTACT PERSON: 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.
OMS WEBSITE: https://www.maine.gov/dhhs/oms.
OMS RULEMAKING LIAISON: Jennifer.Patterson@Maine.gov.
DHHS WEBSITE: https://www.maine.gov/dhhs/.