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How the Rules are Made
Presented by Aquila “Q” Jordan, JD/MPADirector of Policy and Regulations
May 1, 2023
Background
• Previous Director for HCBS Programs• Director for Policy and Regulation
– Responsible for developing revising and maintaining the agencies policies and regulations
– Coordinates with the assistance Secretary on statutes, reviews, and summarizes federal statues and regulations for the agency
May 1, 2023
Overview
• Rules & Regulations• Federal Regulations
– Recent Federal Final Rules– Federal Rulemaking Process– Proposed Rules
• State Regulations– State Rulemaking Process– Impact of Change on State Regulations
May 1, 2023
Rules & Regulations
Rules are government (federal or state) statements that either:
– Carry out or explain new or existing law or policy– Describe the agency’s organization or procedures
Regulations are a set of rules that have legal connotations (official)
– Promulgated through a specific state or federal process
– Do not change easily, create the framework for policies
May 1, 2023
Order of Authority
• Federal Statute – HCBS waiver authority• Federal Regulation – HCBS Final Rule• State Statute – Authorizes HCBS in KS• State Regulation – Application of HCBS • Agency Policy & Procedures – Program
specific policies connecting all authority
May 1, 2023
Recent Federal Final RulesOver the last three year there have been a number of crucial statutes and regulations impact Medicaid and HCBS Programs
• Affordable Care Act– Increased access to health insurance and Medicaid through state/federal exchanges– Parents of adult children with disabilities do not pay FUTA, SUTA and FICA
• ABLE Act– Allows special 529 accounts for individuals with disabilities– Specifically helps individuals with IDD save up to $14,000 without impacting benefits
• HCBS Final Rule– Settings = statewide transition plan– Conflict-free system – Person centered planning– www.medicaid.gov
• DOL Final Rule– Homecare rule– Fair Labor Standards Act– www.dol.gov/whd/homcare
May 1, 2023
Federal Regulations• Online: www.regulations.gov• Publication method: Federal Register • Found: Code of Federal Regulations (CFR)• Statutes: United States Code (U.S.C.)
Example: For Medicaid programs authorized under the Social Security Administration
HCBS Final Rule is found at 42 CFR § 441.301 (regulation), which is under the Social Security Act at 42 U.S.C. 1396n (statute).
May 1, 2023
Federal Regulation Process
May 1, 2023
October 14, 2015 – Interhab Conference
May 1, 2023
May 1, 2023
Federal Proposed Rules
• Long Term Care facilities - HHS– Increased quality assurance requirements/reporting– Adding comprehensive person centered planning– Adding requirements for transfers to hospitals– Comments closed October 14, 2015
• SNAP Benefits - USDA– Added food delivery for individuals 60 and older– Pay for food with SNAP, pay for delivery separately – Comments closed September 14, 2015
May 1, 2023
Federal Proposed Rule (cont’d)
• Managed Care Proposal– Complete rewrite of the managed care regulation– Added provisions for managed long term care
and managed long-term services and supports– Added consumer rights and protections– Added quality assurance and accountability– Almost 200 pages of new or revised regulations– Nearly 400 pages of comments and explanations– Comments closed July 27, 2015
May 1, 2023
Kansas Regulations• Online: http://
www.kssos.org/pubs/pubs_kar.aspx • Publication: Kansas Register• Found: Kansas Administrative Regulation
(K.A.R.)• Statutes: Kansas Statutes Annotated
(KSA)
May 1, 2023
Kansas Regulations (cont’d)
Kansas Statutes • KSA 39-1901 to 1914 - Reorganization
– Statute creating KDADS– Separates duties and authority from DCF & KDHE
• KSA 75-59 for KDADS statutes– NOTE: Some statutes have not had their number
changed and are still found in other sections of KSA• KSA 39-6501 et seq = Adult care homes in the KDHE
section of the statutes
May 1, 2023
Kansas Regulations (cont’d)Kansas Regulations• Two Books
– 2009 K.A.R. Vol. 1 & 2 = everything up to 12/31/08– 2015 K.A.R. Supplement = Changes from 1/1/09 t0 12/31/14
• KDADS regulations are found in 3 places:– K.A.R. ch. 26 = KDADS– K.A.R. ch. 28 = KDHE– K.A.R. ch. 30 = DCF
NOTE: eventually all KDADS regulations will be moved to K.A.R. ch. 26 under KDADS
May 1, 2023
Regulations Pre-rule
• Review of statutory authority• Review of regulations
– Ex: Update language (i.e. MR to IDD)– Ex: Comply with federal statutes, regulation
• Draft language for internal review– Reviewed by KDADS Legal– Approved by Commissioner & Secretary– May include stakeholder input
May 1, 2023
Proposed Rule
State Required Concurrence– Sent to Dept of Administration for approval of content,
structure, and compliance with regulation– Sent to Attorney General’s office for review of legality and
statutory authority
State Required Documents– Economic/Environmental Impact Statement– Copy of proposed regulations– Notice of Public Hearing
Posted in Kansas Register (60 days before hearing)
May 1, 2023
Public Hearing and Comment
• Public Comment Period from posting through Hearing
• Joint Committee reviews regulation– May propose changes to regulations
• Joint Committee Hearing– Open to public to provide comment on regulations for
committee to hear– Notes or minutes are taken of the hearing
May 1, 2023
Final Rule
• Revisions recommended by Joint Committee are made and sent back through concurrence process (Dept of Administration and Attorney General)
• Posted in Kansas Register– At least 10 days before effective
• Added to the K.A.R. Supplemental
May 1, 2023
New or Revised Regulations• Statewide Transition Plan
– CMS requested states review all statutes and regulations and list possible changes and dates for updating these as part of the Statewide Transition Plan
• Compliance with 42 CFR 441.301– Conflict Free System – conflict free case management– Person-Centered Planning process (all waivers)
• Moving KDADS regulations from K.A.R. ch. 28 (KDHE) and ch. 30 (DCF)
• Ex: IDD licensing and CDDO authority K.A.R. 30-63 and 30-64
• Waiver Integration– WISE Workgroup policy and regulation focus group– Possible changes needed if changes to services, definitions, or
provider qualifications
May 1, 2023
Questions?
