2. Existing policies relevant to the rule and proposed policies to be included in the rule.
The current rule includes requirements that will increase the risk of COVID-19 exposure by requiring face-to-face interactions for applications or assessments, and increase the likelihood that benefit recipients will be disenrolled and cease receiving necessary treatment while the risk of COVID-19 spread is elevated. Temporarily suspending these requirements via emergency rulemaking will permit agencies greater flexibility to practice social distancing by reviewing applications and conducting assessments remotely, and further ensure that enrollees—many of whom are at greater risk to contract COVID-19 due to age and pre-existing conditions—continue to receive necessary treatment and are not disenrolled under strict application of existing rules.
Additionally, temporary suspension of the afore-mentioned rules is consistent with 2019 Wis. Act. 185, which permits suspension of certain Medicaid requirements in order to maintain continuous enrollment in compliance with section 6008 (b) (3) of the federal Families First Coronavirus Response Act.
3. Analysis of policy alternative
There are no reasonable alternatives to emergency rulemaking. Governor Evers and Secretary-designee Palm jointly ordered that these above-referenced administrative rules be suspended on May 4, 2020, and that order expired on May 11, 2020.
4. Statutory authority for the rul
a. Explanation of authority to promulgate the proposed rule
The Department is authorized to promulgate the rule based upon explicit statutory language.
b. Statute/s that authorize/s the promulgation of the proposed rule
The Department is authorized to promulgate the emergency rule based upon the following statutory sections:
(4) . . . [T]he department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control or suppression of communicable diseases, for the quarantine and disinfection of personals, localities and things infected or suspected of being infected by a communicable disease . . .
(6) The department may authorize and implement all emergency measures necessary to control communicable diseases.
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 227.24 (1) (a) , Stats.: An agency may, except as provided in s. 227.136 (1), promulgate rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures. Section 46.286 (2) (c), Stats.: A person who is required to contribute to the cost of his or her care but who fails to make the required contributions is ineligible for the family care benefit unless he or she is exempt from the requirement under rules promulgated by the department Section 46.288, Stats.: The department shall promulgate as rules all of the following: (1) Standards for performance by resource centers and for certification of care management organizations, including requirements for maintaining quality assurance and quality improvement.
(2) Criteria and procedures for determining functional eligibility under s. 46.286 (1) (a), financial eligibility under s. 46.286 (1) (b), and cost sharing under s. 46.286 (2) (a).
(3) Procedures and standards for procedures for s. 46.287 (2), including time frames for action by a resource center or a care management organization on a contested matter
Section 50.02 (2) (d), Stats.: The department shall promulgate rules that prescribe all of the following: 1. The method by which community-based residential facilities shall make referrals to resource centers or county departments under s. 50.035 (4n) and the method by which residential care apartment complexes shall make referrals to resource centers under s. 50.034 (5n). 2. The time period for nursing homes to provide information to prospective residents under s. 50.04 (2g) (a) and the time period and method by which nursing homes shall make referrals to resource centers under s. 50.04 (2h) (a). c. Statutes or rules that will affect the proposed rule or be affected by it
5. Estimates of the amount of time that state employees will spend to develop the rule and other necessary resources
The estimated time for state employees to develop the rule is 40 hours.
6. Description of all of the entities that may be affected by the rule, including any local governmental units, businesses, economic sectors, or public utility ratepayers who may reasonably be anticipated to be affected by the rule
Aging and Disability Resource Centers (ADRCs), Tribal Aging and Disability Resource Specialists (Tribal ADRS), income maintenance agencies and consortia, managed care organizations (MCOs), WI Department of Administration – Division of Hearings and Appeals, Medicaid enrollees and their families
Summary and preliminary comparison of any existing or proposed federal regulation that is intended to address the activities to be regulated by the rule
- This regulation requires agencies to require that Medicaid applications be signed under penalty of perjury. DHS is seeking flexibility through various authorities (Appendix K, 1135) to permit verbal permission and electronic signatures in lieu of obtaining signatures in person.
- This regulation requires that Medicaid eligibility be redetermined at least every 12 months. However, due to the Families First Coronavirus Response Act and the risk in completing in-person eligibility screening, DHS is seeking flexibility through various authorities (Appendix K, D-SPA) to suspend involuntary member disenrollments and when annual eligibility redeterminations cannot be completed on a timely basis.
- This regulation permits Medicaid applicants and beneficiaries to authorize another person to perform some functions on their behalf, including signing and completing applications. (See 42 CFR 435.907 (f), above.) - These regulations set forth a variety of quality and oversight requirements, including rules related to the completion of performance improvement projects, which is also mandated s. DHS 10.44(2)(e). - This regulation describes the manner in which states and their managed care partners may disenroll Medicaid members. However, due to the Families First Coronavirus Response Act’s preservation of Medicaid eligibility, DHS is seeking flexibility via Appendix K from involuntarily disenrolling members during the emergency period.
- This rule sets a deadline of no more than 120 days in which a member must request a State fair hearing. Wis. Admin Code DHS § 10.55(3) requires that a member must request a fair hearing within 45 days and is not compliant with the aforementioned federal regulation or s. 46.287 (2) (a) 1m., Stats. 7. Anticipated economic impact, locally or statewide
The proposed rule may have a moderate economic impact.
Agency contacts
Mark R. Thompson, Admin. Rules Attorney
Office of Legal Counsel
(608) 266-1279
Jackson Keuler, Admin. Rules Officer
Office of Legal Counsel
(608) 266-0387
