REVISED Notice of Agency Rule-making Proposal:MaineCare Benefits Manual, Chapter I, Section 6, Global HCBS Waiver Person-Centered Planning and Settings Rule

REVISED Notice of Agency Rule-making Proposal

(revised to reflect the addition of a remote public hearing)

 

AGENCY: Department of Health and Human Services, MaineCare Services, Division of Policy

 

CHAPTER NUMBER AND TITLE: 10-144 C.M.R., Chapter 101, MaineCare Benefits Manual, Chapter I, Section 6, Global HCBS Waiver Person-Centered Planning and Settings Rule

 

PROPOSED RULE NUMBER:

 

CONCISE SUMMARY: This new rule proposes to implement the federal requirements for Maine’s Section 1915(c) home and community-based waiver programs as set forth in 42 C.F.R. § 441.301(c), and includes requirements for person-centered service planning and for settings in which home and community-based waiver services (“HCBS”) are provided, including requirements for provider-owned or controlled residential settings.

 

The proposed rule implements additional requirements or changes to HCBS waiver programs under the following sections of the MaineCare Benefits Manual:

 

Section 18: Home and Community-Based Services for Adults with Brain Injury;

 

Section 19: Home and Community Benefits for the Elderly and Adults with Disabilities;

 

Section 20: Home and Community-Based Services for Adults with Other Related Conditions;

 

Section 21: Home and Community Benefits for Members with Intellectual Disabilities or Autism Spectrum Disorder; and

 

Section 29: Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder.

 

In the event of conflict between the requirements of this proposed rule and any rule listed above, the terms of the proposed rule will supersede and shall apply.

 

The proposed rule tracks closely the federal requirements set forth in 42 C.F.R. § 441.301(c). It clarifies that the Member leads the person-centered planning process and that the process should reflect the Member’s cultural considerations and provide necessary information to allow the Member to make informed choices and decisions. The proposed rule establishes general requirements for HCBS settings so that the setting ensures the Member’s rights of privacy, dignity and respect, freedom from coercion and restraint, and facilitates individual choice regarding HCBS waiver services and settings.

 

There are additional proposed requirements for provider-owned or controlled residential settings. These include Members having privacy in their sleeping or living unit; Members having freedom to access food at any time; and Members having the ability to have visitors at any time. The proposed rule also contains a provision related to certain disability-specific settings (such as Sec. 18 Work Ordered Club House Services). The rule leaves open the Department’s ability to amend Sec. 18, Sec. 20, Sec. 21 and/or Sec. 29 regulations through rulemaking to impose additional requirements.

 

Finally, the proposed rule outlines requirements for provider qualifications as well as oversight and enforcement to ensure full compliance with HCBS waiver services and related sections of the MaineCare Benefits Manual including Ch. I, Sec. I, General Administrative Policies and Procedures.  

 

The Department shall submit to CMS and anticipates CMS approval of Waiver amendments related to this rule.

 

The proposed rule will become effective 5 days after the finally adopted rule is filed with the Secretary of State’s office, per 5 M.R.S. § 8052(6), except that for those HCBS settings that were approved as settings prior to March 17, 2014, Sections 6.04 (Home and Community-Based Settings General Requirements) and 6.04(B) (Additional Requirements for Provider-Owned or Controlled Residential Settings) will be effective on July 31, 2022.

 

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

 

STATUTORY AUTHORITY:        22 M.R.S. §§ 42, 3173, 42 C.F.R. § 441.301(c)

 

Date, time and location of PUBLIC HEARING: 11am; Tuesday, September 28, 2021

 

Due to the ongoing threat posed by COVID-19 (see below), DHHS has determined that its public hearing will be conducted solely remotely, via Zoom.

 

Zoom Meeting link: https://mainestate.zoom.us/j/89675358898

Meeting ID: 896 7535 8898

 

Some devices may require downloading a free app from Zoom prior to joining the public hearing event. The Department requests that any individual requiring special arrangements to participate in the hearing contact the person listed for this filing 5 days in advance of the hearing.

 

Rationale for remote public hearing: Cases of COVID-19 have increased over 1,000% nationally between June 18, 2021 and August 25, 2021. This increase has been driven by the highly transmissible B.1.617.2 (Delta) variant of SARS-CoV-2, the virus that causes COVID-19.  DHHS is concerned about this increase in COVID-19 and seeks to avoid the threat to public health and safety by conducting this public hearing solely remotely.  There is an ongoing federal public health emergency due to COVID-19.  The Secretary of the United States Department of Health and Human Services first declared a public health emergency (PHE) due to COVID-19 on January 31, 2020, and most recently renewed the PHE on July 20, 2021.  On March 13, 2020, the President of the United States issued a proclamation that the COVID-19 outbreak constitutes a national emergency, which was most recently continued on February 24, 2021.  As of August 30, 2021, 11 counties in Maine were designated as high risk. 

 

In addition to the public hearing, individuals may submit written comments to DHHS by the date listed in this notice.

 

PUBLIC NOTICED:                        September 8, 2021

 

DEADLINE FOR COMMENTS:   Comments must be received by 11:59 PM on October 8, 2021

 

AGENCY CONTACT PERSON:   Heather Bingelis, Comprehensive Health Planner II

            Heather.Bingelis@maine.gov

AGENCY NAME:                            MaineCare Services

ADDRESS:                                       109 Capitol Street, 11 State House Station

                                                            Augusta, Maine 04333-0011

TELEPHONE:                                 (207)-624-6951 FAX: (207)-287-6106

                                                           TTY: 711 (Deaf or Hard of Hearing)

 

IMPACT ON MUNICIPALITIES OR COUNTIES (if any): The Department anticipates that this rulemaking will not have any impact on municipalities or counties.

 

CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different): N/A