DepartmenT of Health Services Office of Legal Counsel F-02318 (12/2018) | STATE OF WISCONSIN |
WISCONSIN DEPARTMENT OF HEALTH SERVICES PROPOSED ORDER TO ADOPT PERMANENT RULES |
The Wisconsin Department of Health Services (“the Department”) proposes an order to: repeal DHS 102.03 (4), 102.04 (4), 103.03 (1) (g) 4. and (1) (h) 5., 103.087 (1) (h) 5., 109.11 (6) (e); amend DHS 103.03 (intro.), 103.08 (2) (c) 1. and 2. and 103.09 (2) and (3) (a) to (c); and create DHS 102.03 (4), 102.04 (4), 103.03 (1) (g) 4. and (1) (h) 5., 103.087 (1) (h) 5. and 109.11 (6) (e), relating to Medicaid eligibility requirements.
RULE SUMMARY
Statute interpreted
None.
Statutory authority
Section 227.11 (2) (a), Stats.:
(2) 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.
2019 Wis. Act 185 s. 105:
(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:
(a) Suspend the requirement to comply with the premium requirements under s. 49.45 (23b) (b) 2. and (c).
(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. Explanation of agency authority
Section 49.45 (10), Stats., permits the Department to “promulgate such rules as are consistent with its duties in administering medical assistance.” In 2019 Wis. Act 185 s. 105 (1) (a) to (d) (“Act 185”), the Wisconsin Legislature permitted the Department to suspend certain Medicaid eligibility requirements during the federal public health emergency related to the COVID-19 pandemic in order to qualify for an enhanced medical assistance percentage. Thus, in accordance with the Department’s authority to promulgate rules to carry out its duties in administering Medical Assistance under s. 49.45 (10), Stats, and the authority under Act 185 to suspend certain eligibility requirements, the department has express authority to promulgate the proposed rule. Related statute or rule
The rule will supplant emergency rule EmR2116 which was published in the state newspaper and took effect under s. 227.24 (1) (c), Stats., on June 5, 2020 . The following statutes or rules directly relate to gaining increased federal funding made available under s. 6008 of the Families First Coronavirus Response Act (“the FFCRA”), Pub. L. No. 116-127:
Section 1135(g)(1)(B) of the Social Security Act of 1935, as amended
Section 6008 (b) (3) of the FFCRA.
Section 49.45 (1) and (2) (a) 7., Stats.
Section 49.46 (1), Stats.
Section 49.46 (1) (c) and (cg), Stats.
Section 49.47 (4) (b) and (c) 1., Stats.
Section 49.47 (4) (c) 2., Stats.
Section 49.688, Stats.
Section 49.471, Stats.
Section 49.472 (3), Stats.
Section 49.78 (11), Stats.
Section 49.82 (2), Stats.
Section 49.84, Stats.
2019 Act 185 s. 105 (1) (a)-(d) Plain language analysis
The intent of the rule is to take action permitted under s. 105 (1) of Act 185 and thereby qualify for increased federal funding under s. 6008 of the FFCRA. Section 6008 of FFCRA provides a temporary 6.2 percentage point federal medical assistance percentage (“FMAP”) increase to each state that maintains continuous eligibility for persons enrolled in Medicaid (unless the person leaves the state or requests disenrollment) and does not increase Medicaid premiums during the federal emergency period defined in par. (1)(B) of s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. The increased FMAP provided to the state under the FFCRA amounts to approximately $150 million per quarter. On April 17, 2020, Act 185 became effective. Section 105 (1) of Act 185 provided that, in order to comply with section 6008 of the FFCRA and obtain an enhanced medical assistance percentage from the federal government, the state may suspend certain Medicaid requirements and maintain continuous Medicaid eligibility for those who were enrolled on March 18, 2020 or later (unless that person requested disenrollment or lost state residency).
The first federal emergency declaration took effect in January 2020. That declaration has been renewed several times, and the public health emergency remains in effect through July 2021. In a letter to state governors, the United States Secretary of Health and Human Services represented that the federal public health emergency will likely remain in place for the entirety of 2021. As vaccination rates across the country decrease, it is possible that the federal emergency could be extended into 2022.
Several measures have been taken in accordance with Act 185 in order to comply with s. 6008 of FFCRA. In May 2020, Governor Evers and then-Department-Secretary-designee Palm issued Emergency Order 35, which ordered the suspension of a number of administrative rules which contained requirements that could result in Medicaid recipients being disenrolled during the federal emergency public health emergency. The Governor’s public health emergency subsequently expired, which effectively nullified Emergency Order 35. Following the expiration of Emergency Order 35, the Department, in accordance with s. 227.24, Stats., promulgated emergency rule EmR2033, which suspended provisions in chs. DHS 102, 103, and 109 in order to comply with s. 6008 of FFCRA. EmR2033 was extended for the maximum 120 days allowed under s. 227.24 (2), Stats., and it expired on May 30, 2021. The Governor approved a successor emergency rule to EmR2033 on May 26, 2021, and that rule, EmR2116, was published and took effect in accordance with s. 227.24 (1) (c), Stats., on June 5, 2021. In order to continue complying with section 6008 of the FFCRA and to receive approximately $150 million in federal funding per quarter, the Department has determined that permanent rules that supplant the emergency rule currently in effect and temporarily suspend certain Medicaid eligibility provisions are necessary so that the Department maintains continuous enrollment of Medicaid recipients during the declared emergency period. The permanent rule will create sunset provisions that seek to amend or create provisions in chs. DHS 102, 103 and 109 specific to maintaining continuous Medicaid enrollment, and then repeal those provisions after end of the federal public health emergency. Summary of, and comparison with, existing or proposed federal regulations
In order to qualify for increased federal funding under s. 6008 of the FFCRA, states are required to maintain continuous Medicaid eligibility for persons enrolled in Medicaid, unless the person leaves the state or requests disenrollment, and not increase Medicaid premiums during the designated time periods.
Comparison with rules in adjacent states
Illinois:
Not applicable – The rule order is based on authority explicitly granted in 2019 Act 185 s. 105 (1) (a)-(d) and is required in order to gain increased federal funding made available under s. 6008 of the Families First Coronavirus Response Act, P.L. 116-127. Iowa:
Not applicable – The rule order is based on authority explicitly granted in 2019 Act 185 s. 105 (1) (a)-(d) and is required in order to gain increased federal funding made available under s. 6008 of the Families First Coronavirus Response Act, P.L. 116-127. Michigan:
Not applicable – The rule order is based on authority explicitly granted in 2019 Act 185 s. 105 (1) (a)-(d) and is required in order to gain increased federal funding made available under s. 6008 of the Families First Coronavirus Response Act, P.L. 116-127. Minnesota:
Not applicable – The rule order is based on authority explicitly granted in 2019 Act 185 s. 105 (1) (a)-(d) and is required in order to gain increased federal funding made available under s. 6008 of the Families First Coronavirus Response Act, P.L. 116-127. Summary of factual data and analytical methodologies
The Department relied upon requirements under ch. 227, Stats., and information provided to the Department by the Legislative Reference Bureau. Analysis and supporting documents used to determine effect on small business
The rule is not anticipated to have an effect on small business. See the associated Fiscal Estimate & Economic Impact Analysis.
Effect on small business
The rule is not anticipated to have an effect on small business.
Agency contact person
Statement on quality of agency data
See “summary of factual data and analytical methodologies” section above.
Place where comments are to be submitted and deadline for submission
Comments may be submitted to the agency contact person that is listed above until the deadline given in the upcoming notice of public hearing. The notice of public hearing and deadline for submitting comments will be published in the Wisconsin Administrative Register and to the department’s website, at https://www.dhs.wisconsin.gov/rules/permanent.htm. Comments may also be submitted through the Wisconsin Administrative Rules Website, at: https://docs.legis.wisconsin.gov/code/chr/active. RULE TEXT
SECTION 1. DHS 102.03 (4) is created to read:
DHS 102.03 (4) Subdivisions (1) to (3) shall not be enforced until the first day of the month following the end of the emergency period defined in par. (1)(B) of s. 1135(g) of the Social Security Act, 42 USC 1320b-5(g)), and declared by the United States Secretary of Health And Human Services in relation to the COVID-19 pandemic. SECTION 2. DHS 102.03 (4), as affected by this rule, is repealed.
