An Act To Ensure Fairness in Penalties for Administrative Errors in the Long-term Care Assessment Process
Maine Legislature, Session 124, LD 1507
Committee: Health and Human Services
Sponsors: PERRY, BRANNIGAN, CAMPBELL, JONES, SANBORN
Amends: 22 MRSA §3174-I, 22 MRSA §3174-Z

MAINE STATE LEGISLATURE 
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124thMAI E LEGISLATURE 
Legislative Document 
No. 1507 
H.P.1056 
House of Representatives, December 10, 2009 
An Act To Ensure Fairness in Penalties for Administrative Errors in 
the Long-term Care Assessment Process 
(EMERGENCY) 
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203. 
Received by the Clerk of the House on December 8,2009. Referred to the Committee on 
Health and Human Services pursuant to Joint Rule 308.2 and ordered printed pursuant to Joint 
Rule 401. 
Presented by Representative PERRY of Calais. 
Cosponsored by Senator BRANNIGAN of Cumberland and 
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MILLICENT M. MacFARLAND 
Clerk 
Representatives: CAMPBELL of Newfield, JONES of Mount Vernon, SANBORN of Gorham. 
Printt:d on n:cycled paper 
Emergency preamble. Whereas, acts and resolves of the Legislature do 110t 
become effective until 90 days after adjournment unless enacted as emergencies; and 
Whereas, the rules of the Department of Health and Human Services currently 
provide for the outright denial of all payment for services in a nursing facility when a 
provider unintentionally misses the administrative deadline for requesting and obtaining a 
reassessment of coverage of an existing resident based on the resident's need for services; 
and 
Whereas, historically the department had mitigated the effects of this penalty by 
exercising administrative discretion to waive the penalty in certain circumstances; and 
Whereas, the department has now determined that under its existing rules such 
waivers are impermissible and therefore will now uniformly apply this penalty, 
potentially depriving a nursing facility of any reimbursement for substantial services 
actually delivered to a Medicaid-covered person actually in need of those services; and 
Whereas, the department is developing a similar set of rules to regulate coverage of 
residential services in private, nonmedical and board and care institutions; and 
Whereas, in fairness to and to ensure the financial stability of long-term care 
providers, these penalties should be limited to an amount that will provide an incentive to 
administrative accuracy without denying all payment for care and services actually 
rendered; and 
Whereas, in the judgment of the Legislature, 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; now, 
therefore, 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 22 MRSA §3174-I, sub-§3, as enacted by PL 1989, c. 498 and amended 
by PL 2003, c. 689, Pt. B, §6, is further amended to read: 
3. Rules. The Department of Health and Human Services department shall adopt 
rules in accordance with the Maine Administrative Procedure Act, Title 5, chapter 375, to 
implement this section. Notwithstanding any other provision of law, the department may 
not impose a penalty that exceeds 20% of the reimbursement otherwise payable for the 
services rendered to a resident nor deny reimbursement as a consequence of the failure of 
a nursing facility to timely request or obtain an assessment of a resident required under 
this chapter after the deadline for such an assessment and until an assessment is obtained, 
unless the department proves by a preponderance of the evidence that the services 
provided by the nursing facility were not medically and socially necessary and 
appropriate for the resident. 
Sec. 2. 22 MRSA §3174-Z, as enacted by PL 2001, c. 404, § 1, is amended to 
read: 
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§3174-Z. Private, nonmedical and board and care institutions 
. Rules concerning the principles for reimbursement for private, nonmedical and board 
and care institutions must be major substantive rules as defined in Title 5, chapter 375, 
subchapter II-A 2-A. Notwithstanding any other provision of law, the department may 
not impose a penalty that exceeds 20% of the reimbursement otherwise payable for the 
services rendered to a resident nor deny reimbursement as a consequence of the failure of 
a private, nonmedical and board and care institution to timely request or obtain an 
assessment of a resident required under this chapter after the deadline for such an 
assessment and until an assessment is obtained, unless the department proves by a 
preponderance of the evidence that the services provided by the institution were not 
medically and socially necessary and appropriate for the resident. 
Emergency clause. 
In view of the emergency cited in the preamble, this 
legislation takes effect when approved. 
SUMMARY 
This bilLamends the laws governing the rules of the Department of Health and 
Human Services for medical eligibility for coverage in nursing facilities and for private, 
nonmedical and board and care institutions, which provide, among other services, 
residential care services for the aged and disabled. It requires that for both types of 
facilities, to the extent the department establishes penalties or denies reimbursement when 
a facility is late or misses a deadline for obtaining an assessment of a resident's need for 
services, the department may not deny reimbursement and may not impose a penalty 
greater than 20% of total reimbursement unless it is proven that the resident, if timely 
assessed, would not have been eligible for continuing services.