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Home > Weekly Rule-making Notices > October 26, 2011

October 26, 2011

WEEKLY NOTICES OF STATE RULE-MAKING
Public Input for Proposed and Adopted Rules

Notices are published each Wednesday to alert the public regarding state agency rule-making. 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 rule-making if the petition is signed by 150 or more registered voters, and may begin rule-making 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 rule-making liaisons, who are single points of contact for each agency.


CORRECTION



AGENCY: 18-125 - Department of Administrative & Financial Services (DAFS), Bureau of Revenue Services
PROPOSED RULE NUMBER: 2011-P219
RULE TITLE OR SUBJECT: Ch. 101, “Exempt Sales of Cigarettes”, as published on October 19. This chapter name is incorrect – it should read “Standard Interest Rate”. All other information was accurate.


PROPOSALS



AGENCY: 94-457 - Finance Authority of Maine (FAME)
CHAPTER NUMBER AND TITLE: Ch. 307, Maine Seed Capital Tax Credit, Amendment 7
PROPOSED RULE NUMBER: 2011-P178 (2nd publication)
BRIEF SUMMARY: The amendment implements the changes made by P.L. 2011, Ch. 454, expanding the credit statewide to 60% (except for private venture capital funds) and relating to refundable tax credits for private venture capital funds.
STATUTORY AUTHORITY FOR THIS RULE: 10 MRSA c. 110, subchapter IX
CHAPTER NUMBER AND TITLE: Ch. 325, Maine New Markets Capital Investment Program
PROPOSED RULE NUMBER: 2011-P179 (2nd publication)
BRIEF SUMMARY: This rule is a new rule proposed to implement the Maine New Markets Capital Investment Program. This program was created by the Legislature this past session (PL 2011, Ch. 380, Part Q). It is modeled on the federal New Markets Tax Credit Program, awarding credits against Maine income tax for certain investments in low income community businesses in the state. The statute requires the Authority to promulgate rules to implement the Program.
STATUTORY AUTHORITY FOR THESE RULES: 10 MRSA §1100-Z, 36 MRSA §5219-GG
PUBLIC HEARING: November 15, 2011 at the Holiday Inn by the Bay, 88 Spring Street, Portland, Maine. 2:30 p.m.
COMMENT DEADLINE: November 25, 2011
CONTACT PERSON: Christopher H. Roney. E-mail: CRoney@FameMaine.com .
IMPACT ON MUNICIPALITIES OR COUNTIES: None
WEBSITE: http://www.famemaine.com/ .



AGENCY: 02-031 – Department of Professional and Financial Regulation, Bureau of Insurance
CHAPTER NUMBER AND TITLE: Amendment to Ch. 940, Requirements for Health Insurance Rate Filings and Data Reporting
PROPOSED RULE NUMBER: 2011-P226
CONTACT PERSON FOR THIS FILING / SMALL BUSINESS INFORMATION: Sarah Hewett, Maine Bureau of Insurance, 34 State House Station, Augusta, ME 04333-0034. Telephone: (207) 624-8412. E-mail: Sarah.Hewett@Maine.gov .
PUBLIC HEARING: November 15, 2011, 9:00 a.m., Kennebec Room, Maine Department of Professional & Financial Regulation Building, 76 Northern Avenue, Gardiner, ME
COMMENT DEADLINE: 5:00 p.m., November 28, 2011
BRIEF SUMMARY: The proposed amendments reflect changes necessary to reflect 2011 PL c. 90, federal rate review and medical loss ratio regulations and federal data reporting requirements.
DETAILED BASIS STATEMENT / SUMMARY: In general, the current rule establishes procedures and guidelines for filing individual and group health insurance rates and HMO rates in Maine. An amendment to the current rule is necessary to reflect both 2011 PL c. 90 and several federal regulations promulgated pursuant to the Affordable Care Act (ACA). In particular, the amendments reflect the expanded ability of health insurers and HMOs to file rates on a “file and use” basis subject to a minimum guaranteed loss ratio. The amendments also reflect expanded rating bands and changes in Maine statute as to which rating factors are included “inside” and “outside” of rating bands. The proposed amendments provide for consistency with federal medical loss ratio and rate review regulations. The proposed rule also provides for the collection of data necessary to allow the Bureau to fulfill its reporting obligations to the U.S. Dept. of Health and Human Services, Office of Consumer Information and Insurance Oversight under the ACA. The proposed rule also discusses the applicability of requirements to multiple employer welfare arrangements (MEWAs) and captive insurers providing health benefits.
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY: 24 MRSA §2321, 24-A MRSA §§ 212, 405-A(2)(E), 2413, 2736, 2736-C, 2808-B, 2839, 4207 and 4309-A
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: CMS-9999-FC: Rate Increase Disclosure and Review; Final Rule, CMS-9999-F: Rate Increase Disclosure and Review: Definitions of Individual Market and Small Group Market, OCIIO–9998–IFC: Health Insurance Issuers Implementing Medical Loss Ratio (MLR) Requirements Under the Patient Protection and Affordable Care Act, Technical Appendix, Interim Final Rule for Health Insurance Issuers Implementing Medical Loss Ratio (MLR) Requirements under the Patient Protection and Affordable Care Act, Technical Correction to the Medical Loss Ratio Interim Final Rule
WEBSITE: http://www.maine.gov/pfr/insurance/ .
AGENCY RULE-MAKING LIAISON: Thomas.M.Record@Maine.gov .



AGENCY: 01-001 - Maine Department of Agriculture, Food and Rural Resources
CHAPTER NUMBER AND TITLE: Ch. 273, Criteria for Listing Invasive Terrestrial Plants
PROPOSED RULE NUMBER: 2011-P227
CONTACT PERSON FOR THIS FILING: Ann Gibbs, Maine Department of Agriculture, 28 State House Station, Augusta, ME 04333. Telephone: (207) 287-3891. Fax: (207) 287-7548. E-mail: Ann.Gibbs@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different):
PUBLIC HEARING: November 17, 2011at 1:30 p.m. in Room 233 of the Deering Building, Maine Department of Agriculture, 90 Blossom Lane, Augusta, ME 04333
COMMENT DEADLINE: 4 p.m. on Tuesday, November 30, 2011
BRIEF SUMMARY: This rule proposes criteria to be used in evaluating non-native terrestrial invasive plants that could have adverse impacts on the Maine landscape. Plants that are evaluated and meet the criteria may be included on a list of invasive plants in the future.
IMPACT ON MUNICIPALITIES OR COUNTIES (if any):
STATUTORY AUTHORITY: 7 MRSA Ch. 405-A §2211
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/agriculture/index.shtml .
AGRICULTURE RULE-MAKING LIAISON: Caldwell.Jackson@Maine.gov .



AGENCY: 65-407 - Maine Public Utilities Commission (PUC)
CHAPTER NUMBER AND TITLE: Ch. 421, Safety and Operation Standards for Liquefied Petroleum Gas (LPG) Distribution Systems
PROPOSED RULE NUMBER: 2011-P228
CONTACT PERSON FOR THIS FILING: Matthew Kaply, Public Utilities Commission, 18 State House Station, Augusta, ME 04333. Telephone: (207) 287-8519 E-mail: Matthew.C.Kaply@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION (if different):
PUBLIC HEARING: November 14, 2011, 1:00 p.m., Public Utilities Commission, 101 Second Street, Hallowell, Maine
COMMENT DEADLINE: November 28, 2011. However, the Commission requests that comments be filed by November 8, 2011, to allow for follow-up inquiries during the hearing; supplemental comments may be filed after the hearing. Written comments should refer to the docket number of this proceeding, Docket No. 2011-352 and be sent to the Administrative Director, Public Utilities Commission, 18 State House Station, Augusta, Maine 04333-0018.
BRIEF SUMMARY: The PUC is opening a rulemaking to propose amendments to Ch. 421, setting forth safety and operation standards for jurisdictional liquid propane gas transmission and distribution systems pursuant to PL 2011, Ch. 197, An Act Regarding Gas Utilities under the Safety Jurisdiction of the Public Utilities Commission.
IMPACT ON MUNICIPALITIES OR COUNTIES: Minimal
STATUTORY AUTHORITY FOR THIS RULE: 35-A MRSA §§ 111 and 4702-A
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED (if different):
WEBSITE: http://www.maine.gov/mpuc/ .
PUC RULE-MAKING LIAISON: Paula.Cyr@Maine.gov .



AGENCY: 05-071 - Department of Education, State Board of Education
CHAPTER NUMBER AND TITLE: Ch. 61, State Board of Education Rules for Major Capital School Construction Projects
PROPOSED RULE NUMBER: 2011-P229
CONTACT PERSON FOR THIS FILING: Scott Brown, Director of School Facilities, Department of Education, 23 State House Station, Augusta, ME 04333. Telephone: (207) 624-6883. E-mail: Scott.Brown@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: N/A
PUBLIC HEARING: Tuesday, November 15, 2011, 10:00 a.m. to noon, Room 541, 5th Floor of the Cross Office Building, 111 Sewall Street, Augusta, Maine
COMMENT DEADLINE: 5:00 p.m. Friday, November 25, 2011
BRIEF SUMMARY: The proposed amendments to Ch. 61, "Rules for Major Capital School Construction Projects," which is a State Board of Education rule, makes changes in the rating process and scoring of schools applying for Major Capital School Construction funds. The proposal also strengthens language relating to a school administrative unit's financial record keeping and gives better direction relating to temporary borrowing, investing, and bonding of projects. Finally, the proposal changes the State Board's approval of plans and specifications from a set that is 95% complete to a set that is 100% complete, and authorizes a project manager to more closely monitor the construction process and project expenditures.
IMPACT ON MUNICIPALITIES OR COUNTIES: N/A
STATUTORY AUTHORITY FOR THIS RULE: 20-A MRSA §3; 20-A MRSA §405(3)(J); 20-A MRSA §15905 sub-§4; P.L. 2001, c. 439, Part 0000, §0000-03; P.L. 2007, c. 240, Part MM, Ch. 103-A; P.L. 2008, c. 223
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: N/A
WEBSITE: http://www.maine.gov/education/index.shtml .
EDUCATION RULE-MAKING LIAISON: Greg.Scott@Maine.gov .



AGENCY: 06-096 - Department of Environmental Protection (DEP)
CHAPTER NUMBER AND TITLE: Ch. 880, Regulation of Chemical Use in Children’s Products
PROPOSED RULE NUMBER: 2011-P230
CONTACT PERSON FOR THIS FILING: Kerri Malinowski, Maine Department of Environmental Protection, Bureau of Remediation and Waste Management, 17 State House Station, Augusta, ME 04333. Telephone: (207) 215-1894. Fax: (207) 287-5987. E-mail: Kerri.Malinowski@Maine.gov .
CONTACT PERSON FOR SMALL BUSINESS INFORMATION: Julie Churchill. Telephone: (207) 287.7881. E-mail: Julie.M.Churchill@Maine.gov .
PUBLIC HEARING: November 15, 2011 at 9:00 a.m., DEP Response Training Room, 4 Blossom Lane, Augusta, Maine
COMMENT DEADLINE: November 25, 2011 at 5 p.m.; comments may be submitted by mail, e-mail or fax. To ensure the comments are considered, they must include your name and the organization you represent, if any. Pursuant to Maine law, interested parties must be publicly notified of the proposed rulemaking, and provided an opportunity for comment.
BRIEF SUMMARY: Ch. 880 identifies the process by which the department will classify chemicals of high concern, from which priority chemicals are designated for regulatory scrutiny, and details how the department will go about collecting information from manufacturers on the use of priority chemicals in children’s products.
DETAILED BASIS STATEMENT / SUMMARY: As stated in the declaration of policy under 38 MRSA §1692, the goal of the law is to protect the health, safety and welfare of children and other vulnerable populations by reducing their exposure to chemicals of high concern through the substitution of safer alternatives when feasible. To accomplish this goal, the law confers upon the department the regulatory power to compel disclosure of information on priority chemicals and prohibit the sale of children’s products containing those chemicals when safer alternatives are available. Ch. 880 identifies the process by which the department will classify chemicals of high concern, from which priority chemicals are designated for regulatory scrutiny, and details how the department will go about collecting information from manufacturers on the use of priority chemicals in children’s products. Changes to the underlying statute enacted by PL 2011, c. 319 [An Act to Provide the DEP with Regulatory Flexibility Regarding the Listing of Priority Chemicals, LD 1129, 125th Legislature], necessitate the amendments proposed to the existing rule Ch. 880.
Amendments to Ch. 880 add specificity to the designation of chemicals of high concern by delineating criteria that include chemical presence in consumer products used or present in the home, biomonitoring studies, and analysis of the indoor home environment. To address stakeholder concerns about inadvertent capture of products with trace amounts of chemicals, the policy choice was made to explicitly limit the reach of the rule to products containing priority chemicals that are intentionally-added for a specific purpose during product formulation or manufacture; definitions for the terms “contaminant” and “de minimis level” have been added for clarity.
IMPACT ON MUNICIPALITIES OR COUNTIES: None
STATUTORY AUTHORITY FOR THIS RULE: 38 MRSA §341-D(1-C), and §341-H
SUBSTANTIVE STATE OR FEDERAL LAW BEING IMPLEMENTED: None
WEBSITE: http://www.maine.gov/dep/ .
DEP RULE-MAKING LIAISON: Terry.Dawson@Maine.gov .


ADOPTIONS



AGENCY: 05-071 - Department of Education (DOE)
CHAPTER NUMBER AND TITLE: Ch. 13, Qualifying Examinations of Teachers. Educational Specialists and Administrators
ADOPTED RULE NUMBER: 2011-369
CONCISE SUMMARY: The proposed changes to Ch. 13 stem from the regular regeneration (revision) process employed by the Educational Testing Service (ETS). Each Praxis exam undergoes regeneration every five years. ETS conducts a multistate standard setting study designed to assemble two separate groups of current practitioners who work for two to three days to review the validity and reliability of the test being regenerated. The end result is a recommended cut off score that is deemed appropriate for the just qualified candidate (JQC). Several of the tests required by the Maine Department of Education were recently regenerated, so our current Ch. 13 must be updated to reflect these changes.
EFFECTIVE DATE: October 23, 2011
AGENCY CONTACT PERSON: Mark A. Cyr, Department of Education, Certification Office, 23 State House Station, Augusta, ME 04333-0023. Telephone: (207) 624-6855. E-mail: Mark.Cyr@Maine.gov .
WEBSITE: http://www.maine.gov/education/index.shtml .
DOE RULE-MAKING LIAISON: Greg.Scott@Maine.gov .



AGENCY: 10-144 - Department of Health and Human Services (DHHS), MaineCDC, Health and Environmental Testing Laboratory (HETL)
CHAPTER NUMBER AND TITLE: Ch. 265, Maine Drug Testing Laboratory Rules
ADOPTED RULE NUMBER: 2011-370
CONCISE SUMMARY: The Department of Health and Human Services has prescribed these rules and regulations for programs and laboratories testing employees and applicants for substances of abuse. The rules are intended to assure that employees and applicants receive reliable and accurate testing, and that privacy rights are protected.
The revision updates The current rule to reflect the following changes in the Maine Department of Labor's (DOL) policies: 1) Include protocols for the testing of hair, oral fluids and sweat patches for drugs; 2) Revision of current cut-of levels for drug screening and confirmation tests to reflect current US Department of Transportation regulations; 3) Addition of drugs not currently listed in the existing rules which are on the US DOT list; 4) Revision of wording in the current rule which does not conform with existing Maine State statute; and 5) Miscellaneous grammatical changes as proposed by the DOL.
The Department's primary sources of information for this rulemaking were existing Maine Department of Labor's (DOL) policies and United States Department of Transportation regulations. This rulemaking will not impose any additional costs upon municipalities or counties. Furthermore, this rulemaking will not result in any adverse economic impacts on small businesses.
EFFECTIVE DATE: November 1, 2011
AGENCY CONTACT PERSON: Christopher P. Montagna, Health and Environmental Testing Laboratory, 221 State Street, 12 State House Station, Augusta, Maine 04333-0012. Telephone: (207) 287-2727. E-mail: Chris.Montagna@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/etl/divisions.htm .



AGENCY: 10-144 - Department of Health and Human Services (DHHS), Office of MaineCare Services
CHAPTER NUMBER AND TITLE: Ch. 101, MaineCare Benefits Manual: Ch. II Section 60, Medical Supplies and Durable Medical Equipment
ADOPTED RULE NUMBER: 2011-371
CONCISE SUMMARY: The adopted rules add language indicating that providers may bill for up to a 72-day supply of incontinence supplies, which allows for increased ease of access for members residing in rural areas.
The websites listed in the proposed rule were updated. Additionally, several prior authorization criteria were removed and providers were directed to the MIHMS provider portal for information regarding prior authorizations and criteria utilized by the Department. The Department received several comments suggesting that the inclusion of a secured website and proprietary medical criteria that members or their representatives are not able to access violates the Maine Administrative Procedure Act, Federal due process laws, as well as 42 CFR §§ 431.18 (Availability of agency program manuals) and a 1998 “Dear State Medicaid Director” letter from the Centers for Medicare and Medicaid Services. In order to address the commenters’ concerns, the Department has removed the proposed change of citation to this website and return those sections of the rule to their original state. Thus, the original MaineCare Services website and State developed medical criteria remain part of the adopted rule. The Department is working with its Medical Director to analyze criteria and to determine which prior authorizations can be removed and this will be addressed in a future rulemaking.
The reimbursement methodology for miscellaneous Durable Medical Equipment and Medical Supplies has been revised to indicate that if a piece of Durable Medical Equipment or Medical Supplies has a nationally recognized code then that code must be used. If there is no code available a miscellaneous code must be used and a prior authorization must be submitted.
Finally, a new requirement has been added to indicate that a face-to-face encounter by a physician, physician assistant, nurse practitioner or a clinical nurse specialist is required during the 6 months preceding the physician’s written order for Durable Medical Equipment. This federal law, the Patient Protection and Affordable Care Act (PL 111-148 §6407), is effective January 1, 2011.
See http://www.maine.gov/dhhs/oms/rules/index.shtml for rules and related rulemaking documents.
EFFECTIVE DATE: October 24, 2011
AGENCY CONTACT PERSON: Amy MacMillan-Dix, Health Planner, Division of Policy and Performance, 442 Civic Center Drive, 11 State House Station, Augusta, Maine 04333-0011. Telephone: (207)-287-9342. Fax: (207) 287-9369. TTY: 711 (Deaf/Hard of Hearing). E-mail: Amy.Dix@Maine.gov .
WEBSITE: http://www.maine.gov/dhhs/oms/ .



AGENCY: 09-137 – Department of Inland Fisheries and Wildlife
CHAPTER NUMBER AND TITLE: Ch. 4, Hunting and Trapping: 4.01(G), Beaver Season Dates; Open and Closed Areas for Beaver Trapping
ADOPTED RULE NUMBER: 2011-372
CONCISE SUMMARY: The Department has adopted amendments to establish the beaver trapping season dates for the 2011-2012 season, and the open and closed areas for beaver trapping as follows:
1. Beaver Trapping
1.a.
Wildlife Management Districts 1, 2, 4, 5: October l6 - April 30
Wildlife Management Districts 3, 6, 8, 9, 10, 11: November 1 - Apri1 30
Wildlife Management Districts 18, 19, 28: November 1 – April l5
Wildlife Management Districts 7, 12, 13, 14, 17, 27; November 1 - March 31
Wildlife Management Districts I5, 16, 20, 21, 22, 23, 24, 25, 26, 29: December 1 - March 31
A complete copy of the rule may be obtained from the Agency Contact Person listed below.
EFFECTIVE DATE: October 24, 2011
AGENCY CONTACT PERSON: Becky Orff, Inland Fisheries and Wildlife, 284 State Street, 41 State House Station, Augusta, ME 04333. Telephone: (207) 287-5202. E-mail: Becky.Orff@Maine.gov .
WEBSITE: http://www.maine.gov/ifw/ .



AGENCY: 99-346 - Maine State Housing Authority
CHAPTER NUMBER AND TITLE: Ch. 16, Allocation of State Ceiling of Low Income Housing Tax Credit Rule
ADOPTED RULE NUMBER: 2011-373
CONCISE SUMMARY: The Rule, as amended, is the qualified allocation plan for allocating and administering federal low income housing tax credits in the State of Maine, including the 2012 State ceiling of low income housing tax credits.
EFFECTIVE DATE: October 25, 2011
AGENCY CONTACT PERSON: Jodie Stevens, Counsel, Maine State Housing Authority, 353 Water Street, Augusta, Maine, 04330-4633. Telephone: (207) 626-4600. TTY: (800) 452-4603. E-mail: jstevens@mainehousing.org .
WEBSITE: http://www.mainehousing.org/ .
MSHA RULE-MAKING LIAISON: luhl@mainehousing.org .