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:
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/
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DEP RULEMAKING LIAISON: Jeff.S.Crawford@Maine.gov
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