Rule Adoptions: Chapters II & III, Section 12, Consumer-Directed Attendant Services and Allowances for Consumer-Directed Attendant Services, Chapters II & III, Section 26, Day Health Services, Chapters II & III, Section 65, Behavioral Health Service, and Chapters II & III, Section 96, Private Duty Nursing and Personal Care Services

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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.

Below, please find four notices of Agency Rule-making Adoptions. You can access the complete rules at http://www.maine.gov/dhhs/oms/rules/index.shtml

Notice of Agency Rule-making Adoption

AGENCY: Department of Health and Human Services, Office of MaineCare Services

CHAPTER NUMBER AND TITLE: 10-144 C.M.R. ch. 101, MaineCare Benefits Manual, Chapters II & III, Section 12, Consumer-Directed Attendant Services and Allowances for Consumer-Directed Attendant Services

ADOPTED RULE NUMBER:

CONCISE SUMMARY: The Department of Health and Human Services adopts these rules to add a definition of “Fiscal Intermediary;” replace the phrase “Authorized Agent” with “Authorized Entity;” implement Electronic Visit Verification (EVV); clarify that personal care services provided under other rules may not be duplicated under Section 12; and to increase reimbursement rates in compliance with Public Law 2017, ch. 459, Part B, An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“the Act”).

These rule changes are consistent with P.L. 2017, ch. 459, Part B, which required the Department to amend its rules for reimbursement rates for personal care services provided under the provisions of 10-144 C.M.R. ch. 101, MaineCare Benefits Manual, Chapter III, Section 12, Allowances for Consumer-Directed Attendant Services to reflect the final rates modeled in the February 1, 2016 “Rate Review for Personal Care and Related Services: Final Rate Models” prepared for the Department by Burns & Associates, Inc.

The Act required 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 Act involves MaineCare reimbursement, the rate 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 12 rates on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018; this effective date comports with the federal law requirement. Pending approval of the proposed changes to the Section 12 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.

To remedy the difference between the July 1, 2018 effective date set forth in the Act, 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.

There are four separate rate change requests pending before CMS; one submitted in September 2015 (effective 10/1/15 to 7/28/16), one submitted in July 2016 (effective 7/29/16 to 2/21/17), one submitted in August 2017 (effective 7/1/17 to 6/30/18 and 7/1/18 to 7/31/18), and one submitted in July 2018 (effective from 8/1/18 on); thus, there are four retroactive effective dates applicable for these rates included in Chapter III.

On November 13, 2018, the Department adopted an emergency Chapter III rule to effectuate the increased Section 12 reimbursement rates with a retroactive effective date of August 1, 2018. This rulemaking makes permanent the emergency rule changes.

In addition, Chapter II changes are adopted, which were proposed on November 21, 2018, and are outlined below:

1) New Definition added for Fiscal Intermediary (FI), which is an organization that provides administrative and payroll services on behalf of members self-directing their personal care services. The FI must have an established contract with the Department. The services of the Fiscal Intermediary are not billable under this section. In addition, the definition of Fiscal Intermediary has been moved to 12.01-11 and subsequent definitions have been renumbered.

2) “Authorized Agent” is replaced with “Authorized Entity” throughout the policy.

3) Electronic Visit Verification (EVV) requirements are added effective January 1, 2020 pursuant to Section 12006 of the 21st Century CURES Act (P.L. 114-255), as codified in 42 U.S.C. § 1396b(l)(1).

4) Clarification that personal care services provided under other Sections of the MaineCare Benefit Manual may not be duplicated under Section 12.

5) Grammatical and typographical corrections have been made throughout the policy.

http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.

EFFECTIVE DATE: February 11, 2019

AGENCY CONTACT PERSON: Heidi Bechard, Comprehensive Health Planner

AGENCY NAME: Division of Policy

ADDRESS: 242 State Street

11 State House Station

Augusta, Maine 04333-0011

EMAIL: heidi.bechard@maine.gov

TELEPHONE: (207)-624-4074 FAX: (207) 287-1864

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Notice of Agency Rule-making Adoption

AGENCY: Department of Health and Human Services, Office of MaineCare Services

CHAPTER NUMBER AND TITLE: 10-144 C.M.R., Chapter 101, MaineCare Benefits Manual, Chapters II & III, Section 26, Day Health Services

ADOPTED RULE NUMBER:

CONCISE SUMMARY: The Department adopts this rule pursuant to P.L. 2017, ch. 460, Part B-2, An Act Making Certain Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (Act). Part B-2 requires the Department to amend its rules to increase reimbursement rates for adult family services, adult day services, and homemaker services for the fiscal year ending June 30, 2019, by ten percent (10%). Part B-2 also requires that effective July 1, 2019, payment rates attributable to wages and salaries for personal care and related services will be increased annually by an inflation adjustment cost-of-living percentage in accordance with the United States Department of labor, Bureau of Labor Statistics Consumer Price Index, medical care services (professional services, nursing home and adult day care services) from the prior December. These cost of living increases shall continue annually until the Department has completed a rate study for adult family care services, adult day services, or homemaker services and the rates in the rate study have been implemented.

On November 20, 2018, the Department adopted emergency rules implementing the ch. 460 rate increases with a retroactive August 1, 2018 effective date. This rulemaking permanently adopts the emergency rule changes.

In addition, this rulemaking adopts the ch. 460, Part B-2 requirement that effective July 1, 2019, payment rates attributable to wages and salaries for personal care and related services will be increased annually by an inflation adjustment cost-of-living percentage in accordance with the United States Department of Labor, Bureau of Labor Statistics Consumer Price Index, medical care services (professional services, nursing home and adult day care services) from the prior December. These cost of living increases shall continue annually until the Department has completed a rate study for adult family care services, adult day services, or homemaker services, and the rates in the rate study have been implemented.

Through the 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 Act involved 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.” (emphasis added). The Department published its notice of reimbursement methodology change for the Section 26 rate on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018, which effective date comports with the federal law requirement. Pending CMS approval of the rate increase, the increased rate will be implemented with an August 1, 2018 effective date.

The retroactive effective date is allowable under 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 eight calendar quarters.

To remedy the difference between the July 1, 2018 effective date set forth in the Act, versus the August 1, 2018 date 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 an effective rate decrease, but rather a redistribution of the annual appropriation over twelve months, rather than eleven months.

The Department is seeking, and anticipates receiving, approval from the Centers for Medicare and Medicaid Services (CMS) for these rate changes. Pending CMS approval, the rate increase will be effective retroactive to August 1, 2018.

http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.

EFFECTIVE DATE: February 12, 2019

AGENCY CONTACT PERSON: Anne E. Labonte, Comprehensive Health Planner II

AGENCY NAME: Division of Policy

ADDRESS: 242 State Street

11 State House Station

Augusta, Maine 04333-0011

EMAIL: Anne.Labonte@maine.gov

TELEPHONE: (207)-624-4082 FAX: (207) 287-1864

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Notice of Agency Rule-making Adoption

AGENCY: Department of Health and Human Services, Office of MaineCare Services

CHAPTER NUMBER AND TITLE: 10-144 C.M.R. Chapter 101, MaineCare Benefits Manual, Chapters II & III, Section 65, Behavioral Health Service

ADOPTED RULE NUMBER:

CONCISE SUMMARY:

The Department of Health and Human Services (“the Department”) finally adopts these rule changes in 10-144 C.M.R. Ch. 101, MaineCare Benefits Manual, Chapters II and III, Section 65, Behavioral Health Services to: (a) ensure broader access to crisis services for adults with intellectual disabilities; and (b) increase the rates of reimbursement for services pursuant to 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 “Act”), Parts D, E and I.

Specific changes are as follows:

Part D of the Act directs the Department to increase the rate of reimbursement for all Section 65 services to ensure a net increase in funding from fiscal year 2008-09 to fiscal year 2018-2019 of two percent as long as no rate for a service is lower than the rate reimbursed as of January 1, 2018. The Legislature required this increase in reimbursement to be applied to the wages and benefits of employees providing direct services to MaineCare members, and not to administrators or managers. Section 65 providers must document compliance with this requirement in their financial records and provide such documentation to the Department upon request.

Part E of the Act directs the Department to increase the reimbursement rate for Section 65 Medication Management services by fifteen percent. This increase is in addition to the two percent increase required by Part D of the Act.

Part I of the Act directs the Department to increase the reimbursement rates for Multi-Systemic Therapy (MST), Multi-Systemic Therapy for Problem Sexualized Behaviors (MST-PSB), and Functional Family Therapy (FFT) by twenty percent. This twenty percent increase, which is in addition to the two percent increase, is effective until June 30, 2019. The Department shall publish a separate notice of change in reimbursement methodology, and seek approval from the Centers for Medicare and Medicaid Services (CMS) for the Multi-Systemic Therapy and Functional Family Therapy rate changes that go into effect in 2019.

Through the 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 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 65 rates on July 31, 2018.

Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018; this date comports with the federal law requirement. Pending approval of the proposed changes to the Section 65 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.

Pursuant to the Legislative determination regarding the urgent need for these reimbursement increases, the Department initially implemented these changes through emergency rulemaking. 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 eight calendar quarters.

To remedy the difference between the July 1, 2018 effective date set forth in the Act 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).

Additionally, the Department added certain diagnoses to Crisis Services in Chapter II. The crisis services system for adult developmental services is stressed, as the agency that previously contracted for state funded beds has declined to renew their contract with the Department. The state offers a small amount of crisis beds, but the demand outweighs the supply. Current policy language does not support serving individuals with developmental disabilities. The Department thus broadened the language in Ch. II, Sections 65.06-1, 65.06-2, to extend eligibility to members with developmental disabilities. These rule changes allow any willing and qualified provider of crisis services under Section 65 to offer crisis beds to adult members with developmental disabilities. Additionally, the Department added allowable staff (Direct Support Professionals) to treat this population, as those currently available under Section 65 (MHRT) do not have the education or expertise to effectively treat this population.

http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.

EFFECTIVE DATE: February 11, 2019

AGENCY CONTACT PERSON: Dean Bugaj Comprehensive Health Planner

AGENCY NAME: Division of Policy

ADDRESS: 242 State Street

11 State House Station

Augusta, Maine 04333-0011

EMAIL: Dean.Bugaj@maine.gov

TELEPHONE: (207)-624-4045 FAX: (207) 287-1864

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Notice of Agency Rule-making Adoption

AGENCY: Department of Health and Human Services, Office of MaineCare Services

CHAPTER NUMBER AND TITLE: 10-144 C.M.R. ch. 101, MaineCare Benefits Manual, Chapters II & III, Section 96, Private Duty Nursing and Personal Care Services

ADOPTED RULE NUMBER:

CONCISE SUMMARY: The Department of Health and Human Services adopts these Section 96, Private Duty Nursing and Personal Care Services rules to add or update definitions of “Custodial Care,” “Private Duty Nursing,” and “Respite Care;” implement Electronic Visit Verification (“EVV”); increase the maximum available Care Coordination units from 18 to 24 per eligibility period; clarify that Section 96 services are not available to duplicate other personal care services; require that the Plans of Care for members under the age of 21 show the medical necessity of school-based nursing services are not provided by a school nurse; and to adopt, finally, certain rate increases in conformance with Public Law 2017, An Act Making Certain Supplemental Appropriations and Allocations and Changing Certain Provisions of the Law Necessary to the Proper Operations of State Government (“the Act”), Part B.

P.L. 2017, ch. 459, Part B, required the Department to amend its rules for reimbursement rates for the home-based and community-based personal care services under the provisions of 10-144 C.M.R. ch. 101, MaineCare Benefits Manual, Chapters II & III, Private Duty Nursing and Personal Care Services to reflect the final rates modeled in the February 1, 2016 report “Rate Review for Personal Care and Related Services: Final Rate Models” prepared for the Department by Burns & Associates, Inc. Further, Part B-3 directs the Department to ensure that caps and limitations on home-based and community-based personal care and related services are increased to reflect the increase in reimbursement rates that result from this change, such that Section 96 recipients may not experience a reduction in hours solely as a result of increased reimbursement rates authorized by the Act.

This Chapter III adopted rule increases the following rates:

G0299 TD (0551)-RN Services

G0299 TD UN (0551)-RN Services–multiple patients (2)

G0299 TD UP (0551)-RN Services-multiple patients (3)

G0300 TE (0559)-LPN Services

G0300 TE UN (0559)-LPN Services–multiple patients (2)

G0300 TE UP (0559)-LPN Services–multiple patients (3)

T1000 TD-Independent RNT1000 TD UN-Independent RN-multiple patients (2)

T1000 TD UP-Independent RN–multiple patients (3)

T1004 (0571)-Home Health Aide/Certified Nursing Assistant Services

T1004 UN (0571)-Home Health Aide/Certified Nursing Assistant Services-multiple patients (2)

T1004 UP (0571)-Home Health Aide/Certified Nursing Assistant Services–multiple patients (3)

T1019 (0589)-Personal Support Services

T1019-Personal Support Services (PCA Agencies only)

T1019 UN-Personal Support Services (PCA Agencies only) multiple patients (2)

T1019 UP-Personal Support Services (PCA Agencies only) multiple patients (3)

S5125 TF (0589)-PCA Supervisit

S5125 TF UN (0589)-PCA Supervisit-multiple patients (2)

S5125 TF UP (0589)-PCA Supervisit–multiple patients (3)

S5125 TF-PCA Supervisit (PCA Agencies only)

S5125 TF UN-PCA Supervist (PCA Agencies only) multiple patients (2)

S5125 TF UP-PCA Supervisit (PCA Agencies only) multiple patients (3)

This Chapter II adopted rule effectuates the following level of care limits in conformance with the rate increases:

Level I

Level II

Level III

Level IV

Level

Level VIII

Level IX

Because the Act involves MaineCare reimbursement, the rate increases 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 96 rates on July 31, 2018. Upon the advice of the Office of the Attorney General, the increased rates will be effective August 1, 2018; this effective date comports with the federal law requirement. Pending approval of the proposed changes to the Section 96 State Plan Amendment that were submitted to the Centers for Medicare and Medicaid Services, the increased rates will be implemented with an August 1, 2018 effective date.

There are three separate rate changes and increased level of care limits pending before CMS: one submitted in July 2016 (effective July 29, 2016), one submitted in September 2017 (effective September 6, 2017), and one submitted in July 2018 (effective August 1, 2018); thus, there are three retroactive effective dates applicable for these rates included in Chapter III and level of care limits in Chapter II.

On November 13, 2018, the Department adopted an emergency rule to effectuate the increased Section 96 reimbursement rates with a retroactive effective date of August 1, 2018. This rulemaking makes permanent the emergency rule changes.

Additional Chapter II changes are adopted and outlined below:

Electronic Visit Verification (EVV) requirements as mandated by Section 12006 of the 21st Century CURES Act (P.L. 114-255) as codified in 42 U.S.C. § 1396b(l)(1).
Care Coordination units are increased from eighteen (18) to twenty-four (24) hours annually.
Duration of Care and Non-Covered Services are updated to clarify that Section 96 services may not duplicate personal care services provided under other identified sections of the MaineCare Benefits Manual.
For any members under the age of 21 receiving 1:1 Nursing Services in conformance with the member’s authorized Plan of Care in a school-based setting, the medical necessity of the services being provided and the inability of the nurse, already on site or one at another district, to provide the medically necessary services must be documented on the member’s Plan of Care.
New definitions added are Custodial Care and Respite Care.
The Private Duty Nursing definition has been updated to state “when normal life activities take the member outside of his or her residence” from “required life activities.”
Grammatical and typographical corrections have been made throughout the policy.

http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.

EFFECTIVE DATE: February 11, 2019

AGENCY CONTACT PERSON: Heidi Bechard, Comprehensive Health Planner

AGENCY NAME: Office of MaineCare Services, Division of Policy

ADDRESS: 242 State Street

11 State House Station

Augusta, Maine 04333-0011

EMAIL: heidi.bechard@maine.gov

TELEPHONE: (207)-624-4074 FAX: (207) 287-1864

TTY users call Maine relay 711

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