Emergency Rule-making Adoption of MaineCare Benefits Manual, Chapter III, Section 97, Private Non-Medical Institution (PNMI) Services and Appendices B, C, D, E, and F 

Emergency Rule-making Adoption of MaineCare Benefits Manual, Chapter III, Section 97, Private Non-Medical Institution (PNMI) Services and Appendices B, C, D, E, and F 

The Department of Health and Human Services (“the Department”) adopts these emergency major substantive rules to implement the requirements of two recently enacted laws: (1) Public Law 2017, ch. 304, An Act to Amend Principles of Reimbursement for Residential Care Facilities (“The First Act”) and (2) Public Law 2017, ch. 460, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“The Second Act”). The First Act defines the process by which eligible Private Non-Medical Institution (PNMI) Services providers may request an Extraordinary Circumstances Allowance (ECA) and allows for certain regulatory compliance costs incurred by PNMI providers to be considered reasonable and necessary; these changes are implemented in Appendices C and F. The Second Act increases reimbursement for Appendices B, C, and E PNMIs. The Department also adopts various other changes to the Section 97 rules, including Appendix D, as described more specifically below.

The First Act requires ECA, regulatory compliance cost, and other changes in Chapter III, Section 97 (the “Main Rule”) and Appendices C, D, and F. The Department finds that these changes must be implemented through emergency major substantive rulemaking. Separately, the Department is implementing changes required by the First Act in 10-144 C.M.R. Ch. 115, Residential Care Facilities – Room and Board Costs (the “State Rule”); those changes are routine technical. Pursuant to 5 M.R.S. § 8072, “regular” major substantive rule changes are not legally effective until they are approved by the Legislature and finally adopted by an agency, which can take over a year; as such because the Department seeks to implement the Section 97 changes simultaneously with the state rule changes (in order to treat similar providers equitably), it must do so through emergency major substantive rulemaking. These changes will improve the financial condition of Section 97 providers, and protect against a threat to public health and safety posed by instances of providers closing. The changes are a benefit to PNMI providers, and otherwise have no adverse impact on either MaineCare providers or members.

The emergency adoption under 5 M.R.S. § 8074 will enable the rule changes required by the First Act to take effect immediately, and pursuant to 22 M.R.S. § 42(8), retroactively. The Change in Reimbursement Methodology Notice required by 42 C.F.R. § 447.205 relating to the ECA and regulatory compliance costs was published on October 19. 2017. The Department is seeking, and anticipating receiving, approval from the federal Centers for Medicare and Medicaid Services (CMS) for these changes. Pending approval, the ECA and regulatory compliance cost changes in the main rule, and Appendices C and F, will be effective retroactive to November 1, 2017.

The Second Act, Section B-4, requires the Department to amend the main rule and Appendix C to provide a special supplemental allowance (as more specifically set forth in the rules) for the fiscal year ending June 30, 2019. This allowance must be provided for increases in wages and wage-related benefits for direct care and personal care services cost components. The Second Act also directs that, for fiscal year ending June 30, 2020 and thereafter, the Appendix C MaineCare payment rates attributable to wages and salaries in each cost component must be increased by an inflation factor in accordance with the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index – medical care services index. In addition, the Department added a provision to Appendix C, Sec. 2400.3 to make it clear that the increases in reimbursement required by the Section Act shall not be included in the PNMI facility’s personal care services cost cap.

The Second Act, Part D, requires the Department to amend the main rule, and Appendices B and E, to increase reimbursement rates to ensure a net increase in funding of two percent (as specifically set forth in the rules), which reimbursement must be applied to wages and benefits for employees who provide direct services and not to administrators or managers. The Second Act further requires that Section 97 providers must demonstrate to the Department that the increase in wages and benefits has been granted to direct care workers; as stated in the rules, providers must retain documents reflecting compliance with this requirement in their financial records and provide such documentation to the Department upon request.

Through the Second Act, the Legislature determined that “these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety.” As such, the Act requires the Department to implement “immediate rate increases,” effective July 1, 2018. However, the Act did not become law until July 9, 2018, following a Legislative override of the Governor’s veto.

Because the Second Act involves MaineCare reimbursement, these rule changes are also governed by federal Medicaid law. 42 C.F.R. § 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 97 rates on July 31, 2018. Upon advice of the Office of the Attorney General, the increased rates for Appendices B, C, and E will be effective August 1, 2018, this effective date comports with the federal law requirement. Pending approval of the proposed changes to the Section 97 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates in Appendices B, C, and E will be implemented with an August 1, 2018 effective date.

Pursuant to the Legislative determination regarding the urgent need for these reimbursement increases, the requirements of 5 M.R.S. § 8054(1) are satisfied and emergency rulemaking is appropriate. Similarly, an August 1, 2018 retroactive effective date is necessary to implement these changes as soon as possible. The retroactive application comports with 22 M.R.S. § 42(8), which authorizes the Department to adopt rules with a retroactive application (where there is no adverse impact on providers or members) for a period not to exceed (8) calendar quarters.

To remedy the difference between the July 1, 2018 effective date set forth in the P.L. 2017, and the August 1, 2018 date that is permissible pursuant to federal Medicaid law, the Department has recalculated the annual appropriation of funds for this service into a temporary eleven month rate. As such, providers will, over the course of eleven months, receive equivalent aggregate payments as would have been received under a twelve month rate. Beginning on July 1, 2019, rates will be annualized (based upon a twelve month appropriation). This is not a rate decrease, but rather a redistribution of the annual appropriation over twelve months, rather than eleven months.

The Department also adopts various other changes to the Section 97 rules, including Appendix D, as described more specifically below.

• For Appendix D PNMIs, the Department will calculate each Appendix C PNMIs’ rate setting case mix index using the number of MaineCare residents in each case mix classification group in the facility as of March 1^st for the July rate and September 1^st for the January rate.
• For Appendix C PNMIs, the Department will send a roster of residents and source of payment as of March 1^st and September 1^st to facilities for verification prior to rate setting.
• Removes the Hold Harmless Provision as it is no longer applicable.
• Procedure codes: S9484 HA, S9484 HE, and S9484 HI, Temporary High Intensity Services, per report per hour, are added to Appendices D, E, and F.
• Removes procedure code S9484, Temporary High Intensity Services, per report per diem, from Appendix D.
• Interpreter services is removed from allowability of cost and direct care staff to align with recent Chapter 1 changes.
• Appendix D updates “mental retardation” to “intellectual disabilities” and “pervasive developmental disorder” to “autism spectrum disorder.”
• Appendix D procedure codes 6000.4, 6000.6, and 6000.7 are deleted to align current Appendix D fee for service reimbursement. Procedure code 6000.5 is clearly stated in Chapter II, Section 97, Private Non-Medical Institution Services, and as such is deleted.
• Appendix F 3040 Interim Per Diem Rates updates the Office of Rate-Setting as the entity that sets the facility’s interim daily rate from the Office of MaineCare Services.

Pursuant to 5 M.R.S. § 8073, these emergency major substantive rules will remain in effect for up to one year, or until the Legislature reviews the provisionally adopted rule, followed by the Department’s final adoption of the major substantive rule changes.

The above emergency adopted rule can be accessed at: https://www.maine.gov/dhhs/oms/rules/emergency.shtml 

The Division of Policy posts all proposed and recently adopted rules on MaineCare’s Policy and Rules webpage.  This website keeps the proposed rules on file until they are finalized and until the Secretary of State website is updated to reflect the changes.  The MaineCare Benefits Manual is available on-line at the Secretary of State’s website.