As explained in section 1, there are no reasonable alternatives to rulemaking.
4.
Statutory authority for the rulea.
Explanation of authority to promulgate the proposed ruleThe Department is authorized to promulgate the rule based upon explicit statutory language.
b.
Statute/s that authorize/s the promulgation of the proposed ruleThe Department is authorized to promulgate the emergency rule based upon the following statutory sections:
Section 227.11 (2) (a), Stats.: Rule-making authority is expressly conferred on an agency as follows: (a) Each agency may promulgate rules interpreting the provisions of any statute enforced or administered by the agency, if the agency considers it necessary to effectuate the purpose of the statute, but a rule is not valid if the rule exceeds the bounds of correct interpretation. All of the following apply to the promulgation of a rule interpreting the provisions of a statute enforced or administered by an agency:
1. A statutory or nonstatutory provision containing a statement or declaration of legislative intent, purpose, findings, or policy does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
2. A statutory provision describing the agency’s general powers or duties does not confer rule-making authority on the agency or augment the agency’s rule-making authority beyond the rule-making authority that is explicitly conferred on the agency by the legislature.
3. A statutory provision containing a specific standard, requirement, or threshold does not confer rule-making authority to promulgate, enforce, or administer a rule that contains a standard, requirement, or threshold that is more restrictive than the standard, requirement, or threshold contained in the statutory provision.
Section 49.45 (10), Stats: Rule-making powers and duties. The department is authorized to promulgate such rules as are consistent with its duties in administering medical assistance. The department shall promulgate a rule defining the term “part-time intermittent care" for the purpose of s. 49.46. (1) Enhanced federal medical assistance percentage. If the federal government provides an enhanced federal medical assistance percentage during an emergency period declared in response to the novel coronavirus pandemic, the department of health services may do any of the following during the period to which the enhanced federal medical assistance percentage applies in order to satisfy criteria to qualify for the enhanced federal medical assistance percentage:
(b) Suspend the requirement to comply with the health risk assessment requirement under s. 49.45 (23b) (b) 3. (c) Delay implementation of the community engagement requirement under s. 49.45 (23b) (b) 1. until the date that is 30 days after either the day the federal government has approved the community engagement implementation plan or the last day of the calendar quarter in which the last day of the emergency period under 42 USC 1320b-5 (g) (1) that is declared due to the novel coronavirus pandemic occurs, whichever is later. (d) Notwithstanding any requirement under subch. IV of ch. 49 to disenroll an individual to the contrary, maintain continuous enrollment in compliance with section 6008 (b) (3) of the federal Families First Coronavirus Response Act, P.L. 116-127. c.
Statute/s or rule/s that will affect the proposed rule or be affected by it5.
Estimates of the amount of time that state employees will spend to develop the rule and other necessary resourcesThe estimated time for state employees to develop the rule is 100 hours.
6.
Description of all of the entities that may be affected by the emergency rule, including any local governmental units, businesses, economic sectors, or public utility ratepayers who may reasonably be anticipated to be affected by the ruleThis requested suspension of Medical Assistance rules will affect the work done by County and Tribal human services agencies administering the Medicaid and Children’s Health Insurance Program (CHIP) programs by increasing their recipient caseloads. It will also affect medical providers by decreasing the number of uninsured patients.
7.
Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule42 CFR § 435.952(c)(3) Requires that self-attestation for all eligibility criteria be accepted when documentation is not reasonably available to the individual during a natural disaster. The suspension of Medical Assistance rules is needed to comply with conditions spelled out by section 6008(b) of the FFCRA in order for Wisconsin to qualify for an increase in federal match of 6.2 percentage points for the Medicaid and CHIP programs for the duration of the federal public health emergency. These requirements include a prohibition of the termination or reduction of benefits for any person who was receiving Medicaid on March 18, 2020, and for any person who is determined eligible for Medicaid on or after March 18, 2020, lasting through the end of the month following the end of the emergency period declared by the Secretary of the Department of Health and Human Services.
8.
Anticipated economic impact, locally or statewideThe proposed rule will have minimal or no economic impact.
Mark R. Thompson, Admin. Rules Attorney Office of Legal Counsel (608) 266-1279 mark.thompson1@dhs.wisconsin.gov | Jackson Keuler, Admin. Rules Officer Office of Legal Counsel (608) 266-0387 jackson.keuler@dhs.wisconsin.gov |
