MaineCare Notice of Agency Rule-making Proposal, Chapter II, Section 29

MaineCare Notice of Agency Rule-making Proposal, MaineCare Benefits Manual, Chapter II, Section 29, Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder
Aug 23, 2023
Notice of Agency Rule-making Proposal
AGENCY:  Department of Health and Human Services, MaineCare Services
CHAPTER NUMBER AND TITLE: 10-144 C.M.R. Chapter 101, MaineCare Benefits Manual, Chapter II, Section 29, Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder
PROPOSED RULE NUMBER:
CONCISE SUMMARY: This Section 29 rule provides home and community-based services (HCBS) that are authorized by a federal Medicaid Section 1915(c) HCBS waiver that meets federal standards.
On December 18, 2020, The Centers for Medicare & Medicaid Services (CMS) approved the Department’s request to renew the Support Services for Adults with Intellectual Disabilities or Autism Spectrum Disorder waiver for a five-year period, with an effective date of January 1, 2021.  On April 13, 2023, the Department gave public notice of proposed amendments to the CMS-approved Section 29 waiver, to add services and enhance service delivery.  Following the receipt of public comment on the proposed amended waiver, the Department will seek and anticipates receiving CMS approval of the waiver amendment.
Through this rulemaking and in accordance with CMS approval of the renewed waiver, and the Department’s proposed waiver amendment, the Department proposes to:
1) Align similar processes, service descriptions, and similar provisions with MaineCare’s four other Section 1915(c) waivers (primarily the Section 21 waiver);
2) Make permanent certain flexibilities added under Appendix K authority during the Covid-19 Public Health Emergency (PHE), which will expire on November 11, 2023, including the additions of Individual Goods and Services, Self-Directed Services and tiered Community Support Services; 
3) Strengthen safeguards for Members by enacting the Plan of Corrective Action and Request for Exceptions processes; 
4) Incorporate the Department’s proposed Global HCBS Rule (MBM Ch. I, Sec. 6- Global HCBS Waiver Person-Centered Planning and Settings Rule) by reference; and
5) Add the opportunity for Section 29 Members to receive Increased Level of Support if they receive Shared Living services and have extraordinary need for additional support with behavioral or medical issues. 
The Department is concurrently undertaking major substantive rulemaking under the APA for MBM Ch. III, Sec. 29, to describe reimbursement procedures for the new and updated services described in this rulemaking, and is proposing retroactive application for rule provisions to November 12, 2023, pursuant to 22 M.R.S. § 42(8), following approval by the Legislature, and final adoption by the Department.
The Department proposes the following specific changes to this rule:

• Covered Services: updating, expansion or clarification of the descriptions for the following Covered Services:
  • Assistive Technology
  • Career Planning
  • Community Support
  • Employment Specialist Services
  • Home Accessibility Adaptations
  • Home Support – Quarter Hour
  • Home Support – Remote Support
  • Shared Living (Foster Care Adult)
  • Non-Medical Transportation Service
  • Work Support – Group
  • Work Support – Individual
• Revised Definitions: Updating the following definitions: Activities of Daily Living, Autism Spectrum Disorder, Intellectual Disability, Instrumental Activities of Daily Living, Person-Centered Service Plan and Shared Living.
• New Definitions: Addition of definitions for the following terms: Budget Authority, Community Inclusion, Competitive Integrated Employment, Community Mapping, Disability-Specific Setting, Employer Authority, Fiscal Intermediary, Home and Community Based Services, Personal Resources, Provider-Managed Service, Self-Direction, Service Implementation Plan, and Supports Broker.
• Self-Direction: Addition of Self-Direction Services, including Financial Management Services, Supports Brokerage Services, and Individual Goods and Services, to the list of covered services in Section 29 to expand opportunities for Members to manage and control certain services and service delivery methods. These changes make permanent new services temporarily offered under the Appendix K, Emergency Preparedness and Response amendment authority during the Covid-19 pandemic.
• Community Support: Separation of Community Support services into three tiers of service delivery: Community Only- Individual, Community Only- Group, and Center-Based, to support individualized needs of the participant population more broadly. The Department will seek CMS approval for this change.
• Exceptions from Caps on Services: Establishment of an exceptions process which provides that Section 29 Members, and Members applying to receive Section 29 benefits, may request services in excess of otherwise applicable Section 29 monetary and/or unit caps, where necessary to ensure that Section 29 Members receive adequate and appropriate services and supports in the most integrated setting appropriate to their needs, consistent with the Americans with Disabilities Act (ADA).  This rulemaking proposes the Requests for Exceptions provision (See Sec. 29.14, Requests for Exceptions).
• Global HCBS Rule: Incorporation of the requirements of the January 19, 2022, Global HCBS Rule: see Sec. 29.15-1 [Person Centered Service Planning Process] and Sec. 29.05-1 [Home and Community Based Services Settings]), implementing the federal requirements for Maine’s Section 1915(c) home and community-based waiver programs as required by 42 C.F.R. Sec. 441.301(c). The HCBS Global Rule includes requirements for person-centered service planning and for settings in which HCBS waiver services are provided.
• 29.07-2 (Limits): Changing the limit from $58,168.50 to $84,689.28 for the combined annual cost of Home Support (Remote or Quarter-hour), Community Support, and Shared Living Services.  The Department received CMS approval for this change.
• 29.08-3 (Termination from Participation as a MaineCare Provider): Clarification of this provision which establishes standards for providers who are disenrolling from participating as MaineCare providers. As revised, the provision expressly references the requirement in the MaineCare Benefits Manual, Ch. I, Sec. 1 that providers must give written notice to the Office of MaineCare Services of their intent to terminate participation in the MaineCare Program. In addition, this provision requires Section 29 providers to notify all Section 29 Members they serve of the provider’s intent to terminate participation in the MaineCare program.
• 29.10 (Provider Qualifications): Clarification of Provider Qualifications and Requirements for Direct Support Professionals (DSPs) and for Career Planners, Job Coaches, and Employment Specialists delivering Career Planning, Work Support, and Employment Specialist Services, to state that provider agencies may hire DSPs who are seventeen (17) years of age. The minimum age requirement for Career Planners, Job Coaches, and Employment Specialists remains eighteen (18) years of age.
• 29.10-1 (DSP Qualifications): Requirement that all DSPs, regardless of capacity and prior to provision of services to a Member, receive training regarding the Global HCBS Rule. Moreover, within six (6) months of hire and annually thereafter, the proposed rule requires DSPs to comply with the Department’s regulations: Reportable Events System (14-197 C.M.R. ch. 12) and the Adult Protective Services System (10-149 C.M.R. ch. 1).
• 29.10-9 (Electronic Visit Verification): Requirement that providers of Home Support-Quarter Hour services comply with Maine DHHS Electronic Visit Verification (EVV) system standards and requirements, in accordance with the 21st Century Cures Act (P.L. 114-255), Section 12006, as codified in 42 U.S.C. § 1396b(l).
• 29.10-11 (POCA): Authorization for the Office of Aging and Disability Services (OADS) to issue written notices of deficiencies in service delivery, and requirement for providers to submit and implement Plans of Corrective Action (POCA) as approved by the Department. Providers have the right to appeal written notices of deficiencies. This POCA process will provide increased protections for Members and ensure that providers are in compliance with service requirements, have sufficient clinical and administrative capability to carry out the intent of the service, and have taken steps to assure the safety, quality, and accessibility of the service for Members.
• 29.11 (Member Appeals):  Clarification that Members have the right to appeal decisions made regarding priority level and waitlist determinations.
• 29.16 (Appendix I-Shared Living Criteria for Increased Level of Support): Addition of a new appendix describing the criteria for an increased level of support if, due to extraordinary medical or behavioral needs, a Member requires Shared Living Services beyond the level of support defined in § 29.05-12.
• 29.19 (Appendix IV-Additional Requirements for Section 29 Providers of Community Support Services, Employment Specialist Services, and Shared Living): Clarification of requirements and responsibilities of the Administrative Oversight Agency and the Shared Living Provider for Shared Living Services.

See http://www.maine.gov/dhhs/oms/rules/index.shtml  for rules and related rulemaking documents.
STATUTORY AUTHORITY: 22 M.R.S. §§ 42, 42(8), 3173, 42 C.F.R. Sec. 441.301(c), 42 U.S.C. § 1396b(l)
DATE FILED WITH THE SECRETARY OF STATE’S OFFICE: August 15, 2023
PUBLIC HEARING: The Department will hold a combined in-person and remote (via Zoom) public hearing.
Date and Time:            September 11, 2023, 12:00 PM Eastern Time (US and Canada)
Location:                       State Office Building, Conference Rooms A & B
                                         109 Capitol Street, Augusta, ME          
Zoom Meeting link:     https://mainestate.zoom.us/j/88458657517
Meeting ID:                   884 5865 7517
Some devices may require downloading a free app from Zoom prior to joining the public hearing event.
The Department requests that any interested party requiring special arrangements to attend the hearing in person contact the agency person listed below before Friday, September 8, 2023.
In addition to the public hearing, individuals may submit written comments to DHHS by the date listed in this notice.
COMMENT DEADLINE:                  Comments must be received by 11:59 PM on September 21, 2023.
AGENCY CONTACT PERSON:           Heather Bingelis, Comprehensive Health Planner II
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)
EMAIL:                                                  [email protected]
IMPACT ON MUNICIPALITIES OR COUNTIES (if any): The Department anticipates that this rulemaking will not have any impact on municipalities or counties.