On January 5, 2011, the Governor's Office received an Administrative Rule Appeal from Ms. Janet Varon regarding the Department of Social and Health Service's emergency amendment to WAC 388-502-0160. The Governor denied the Petition on January 12, 2011.
DATE: January 12, 2011
General Counsel to the Governor
January 12, 2011
On behalf of POWER
4759 15th Avenue NE, #305
Seattle, WA 98105
RE: Petition for Repeal of Emergency Rule Change WSR 11-02-026
Dear Ms. Varon:
Thank you for your letter of January 5, 2011, and the attached "Petition for Adoption, Amendment, or Repeal of a State Administrative Rule (RCW 34.05.350)" in which you petition for the repeal of the Department of Social and Health Services (DSHS) Emergency Rule Change WSR 11-02-026.
DSHS cited RCW 34.05.350(1)(b) and (c) as the grounds for adoption of the rule on an emergency basis. Those subsections provide that an agency may adopt an emergency rule "if the agency finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule" or "in order to implement the requirements or reductions in appropriations enacted in any budget for fiscal years 2009, 2010, or 2011, which necessitates the need for the immediate adoption, amendment, or repeal of a rule, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the fiscal needs or requirements of the agency."
The Governor has limited authority under chapter 34.05 RCW with regard to emergency rules. RCW 34.05.350(3) provides that when a petitioner requests the immediate repeal of an emergency rule "[i]n ruling on the petition, the governor shall consider only whether the conditions in subsection (1) of this section were met such that adoption of the rule on an emergency basis was necessary." Thus, the only question for the Governor is whether the Department of Social and Health Services correctly concluded that the situation met the requirements of RCW 34.05.350(1)(b) or RCW 34.05.350(1)(c).
DSHS stated the following reason for its findings under RCW 34.05.350: "Governor Gregoire issued Executive Order 10-04 on September 13, 2010, under the authority of RCW 43.88.110(7). In the Executive Order, the Governor required DSHS and all other state agencies to reduce their expenditures in state fiscal year 2011 by approximately 6.3%. As a consequence of the Executive Order, funding will no longer be available as of January 1, 2011, for the benefits that are being eliminated as part of these regulatory amendments. Delaying the adoption of these cuts to optional services could jeopardize the state's ability to maintain the mandatory Medicaid services for the majority of DSHS clients."
In order to meet state budget requirements, it was necessary to exclude certain categories of services from the state's Medicaid program. Since they are no longer included in Washington's benefit package, it was also essential to adopt immediate amendments to rules relating to providers that were consistent with the exclusion of certain services. While I encourage you to participate in the development of any permanent rules to provide input on the notice given to clients, I agree with DSHS that the situation addressed by Emergency Rule Change WSR 11-02-026 met the requirements of RCW 34.05.350(1)(b) or RCW 34.05.350(1)(c).
For these reasons, your petition for repeal of the Department of Social and Health Service Emergency Rule Change WSR 11-02-026 is denied.
Christine O. Gregoire