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
Narda Pierce
General Counsel to the Governor
January 12, 2011
Janet Varon
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.
Sincerely,
Christine O. Gregoire
Governor