WSR 22-17-140

PROPOSED RULES

DEPARTMENT OF HEALTH

[Filed August 23, 2022, 2:10 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 21-14-010.

Title of Rule and Other Identifying Information: Chapter 246-341 WAC, Behavioral health agency licensing and certification requirements. The department of health (department) is proposing to update the chapter of rules for licensed and certified behavioral health agencies as the next step in a multi-phase plan to modernize licensing and certification requirements.

Hearing Location(s): On September 27, 2022, at 1:30 p.m. In response to the coronavirus disease 2019 (COVID-19), the department will not provide a physical location for this hearing. This promotes social distancing and helps provide for the safety of the citizens of Washington state. A virtual public hearing, without a physical meeting space, will be held instead. Register in advance for this webinar https://us02web.zoom.us/webinar/register/WN_M4_9fcEWRmW04gnp5_crXg. After registering, you will receive a confirmation email containing information about joining the webinar.

Date of Intended Adoption: October 4, 2022.

Submit Written Comments to: Julie Tomaro, P.O. Box 47843, Olympia, WA 98504, email https://fortress.wa.gov/doh/policyreview, fax 360-236-2321, by September 27, 2022.

Assistance for Persons with Disabilities: Contact Julie Tomaro, phone 360-236-2937, fax 360-236-2321, TTY 711, email Julie.tomaro@doh.wa.gov, by September 20, 2022.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The department is proposing to amend chapter 246-341 WAC to continue implementing a multi-phase workplan that was initiated in 2020, focused on modernizing licensing and certification requirements for behavioral health agencies. The proposed rules reduce duplicative, inefficient, burdensome, and unnecessary regulations; align mental health and substance use disorder standards to support agencies providing cooccurring services and create consistency in service delivery; allow agencies more flexibility to adjust their services to meet the needs of their community; and increase access to care by supporting the use of telehealth and mobile services.

Reasons Supporting Proposal: The department began regulating behavioral health agencies in 2018, at which time it became aware of several policy issues that needed to be addressed to bring the regulations up to date and in alignment with the department's mission. Phase one of the rule-making project, consisting of general clean-up and clarification of the chapter, was completed in 2020. Since then, the coronavirus disease 2019 (COVID-19) pandemic has changed the landscape of behavioral services, resulting in an increased need for accessible services and innovative ways of delivering them. The rules must be amended to complete phase two of the workplan, incorporate new policy ideas to address the needs identified during the pandemic, and to support increased and equitable access to quality behavioral health services.

Statutory Authority for Adoption: RCW 71.24.037, 71.05.560, 71.34.380.

Statute Being Implemented: RCW 71.24.015, 71.24.400.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington state department of health, governmental.

Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Julie Tomaro, 111 Israel Road S.E., Tumwater, WA 98501, 360-236-2937.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Julie Tomaro, P.O. Box 47843, Olympia, WA 98504, phone 360-236-2937, fax 360-236-2321, TTY 711, email Julie.tomaro@doh.wa.gov.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect; and rules set or adjust fees under the authority of RCW 19.02.075 or that set or adjust fees or rates pursuant to legislative standards, including fees set or adjusted under the authority of RCW 19.80.045.

Explanation of exemptions: See explanation in Section 2 of this form.

Scope of exemption for rule proposal:

Is partially exempt:

Explanation of partial exemptions: The following are exempt under RCW 34.05.310 as follows:

The proposed rule does impose more-than-minor costs on businesses.

Description of the proposed rule, including: A brief history of the issue; an explanation of why the proposed rule is needed; and a brief description of the probable compliance requirements and the kinds of professional services that a small business is likely to need in order to comply with the proposed rule. In 2018, the legislature transferred authority and responsibility for behavioral health agency licensing and certification from the department of social and health services (DSHS) to the department pursuant to Section 10002 of 2ESHB 1388 (chapter 201, Laws of 2018). Subsequently, the department transferred DSHS' chapter of rules to department authority in chapter 246-341 WAC, only incorporating changes necessary to reflect the department's new authority for licensing and certification of behavioral health agencies.

After the establishment of chapter 246-341 WAC, the department became aware of several policy issues that needed to be addressed to bring these regulations up-to-date and in alignment with the department's mission. The department engaged interested parties and partners to develop a rule-making work plan that identified the desired scope of this rule-making project and the preferred approach to addressing the various topics within the chapter. The agreed upon work plan consisted of a three-phase approach:

In addition to previously identified policy issues, the pandemic has changed the landscape of behavioral health services resulting in an increased need for accessible services and innovative ways of delivering them. The rules must be amended to continue to implement the multi-phase work plan, incorporate new policy ideas to address the needs identified during the pandemic, and to support increased and equitable access to quality behavioral health services. The department examined and discussed the rules with interested parties and partners to consider what changes might be made to the licensure and certification of services in behavioral health facilities, and to consider incorporating and implementing other recommendations and legislative directives.

The majority of the proposed changes to the rule are intended to increase flexibility and decrease the administrative burden associated with licensing processes. The areas of the proposed rule that do add compliance requirements for providing certain services are meant to align requirements for substance use disorder and mental health services, making it easier for agencies to provide cooccuring services and assuring that similar standards are applied to both services. The additional compliance requirements do not require changes in staffing or the need for professional services in order for the agency to be in compliance.

The department worked with behavioral health agency workshop participants to determine which of the proposed rule changes or new rule sections represent a change in cost. Based on these discussions, the department distributed a cost survey to all participants, partners, and interested parties asking for their cost information. The survey was distributed via email and a SurveyMonkey link was included. The survey was open from March 23 through April 6, 2022. Twenty-one behavioral health agencies responded to the survey.

Survey questions were grouped based on the type of certification held by a behavioral health agency or types of services provided. Survey respondents were asked whether they currently hold a particular certification or provide a distinct type of service. If they answered "yes" they were directed to the applicable question/set of questions. If they answered "no" they were directed to the next certification/service type. Several questions were applicable to all agencies.

For purposes of the analysis, increased cost was defined as the costs to adhere to the proposed rule that are in addition to what an agency already expends, both up front and ongoing. One-time costs or initial cost estimates were defined as a cost that occurs only once. Recurrent costs were defined as costs that occur each year on a continuous basis.

The probable costs of compliance to the proposed rule are presented by WAC section in SBEIS Table 2 below.

The following is an analysis of whether the proposed rule may impose more-than-minor costs on businesses in the industry. Of the 21 behavioral health agencies that responded to the survey, 18 indicated that they are certified by the department to provide outpatient services and two indicated that they are certified to provide both outpatient and residential services. The department was unable to ascertain the certification status of one survey respondent because they did not provide any identifying information. Since no survey respondents are certified solely for residential services, the department made the decision to use the minor cost threshold associated with outpatient services, and subsequently the lower minor cost threshold within the relevant NAICS codes of $3,911.27.

This analysis captures the cost responses from 15 of the 21 respondents. Four respondents were excluded from the analysis because they did not provide any responses to the survey questions and the department cannot verify nor assume that they had a cost impact. One respondent was excluded from the analysis because they provided a cost estimate but indicated that they did not understand the question. One respondent was excluded from the analysis because although they provided cost estimates for several of the questions, their explanation of the costs indicated that they were incorrectly interpreting the proposed rule change.

For the purpose of this analysis, probable one-time costs include all costs that the business indicated were needed to comply with all of the proposed rule changes. Probable recurrent costs include all of the costs that the business indicated were needed to comply with all of the proposed rule changes. Probable first year costs are the one-time costs plus single year annual recurrent costs. An answer of "cost neutral or insignificant" was assigned a value of $0 in calculating the median but reported out as cost neutral or insignificant.

One agency provided a qualitative response for the ceiling of probable recurrent costs (significant increase). Since the department was unable to assign a dollar amount to this response, it was excluded from the calculations for probable annual recurrent costs and for median annual recurrent costs in SBEIS Table 2 and SBEIS Table 3.

The department decided to analyze the data to show the median cost of compliance per business in SBEIS Table 3 in order to show the vast variability between responses. The department's analysis shows that the median cost of compliance with the proposed rule per business in the first year is $3,050 (one-time cost-plus single year recurrent costs). The median cost of compliance per business is below the minor cost threshold of $3,911.27. Less than half of respondents (47 percent) had a probable first year cost that was over the minor cost threshold.

Due to the fact that 47 percent of businesses surveyed reported cost impacts to comply with the proposed rule of more-than-minor cost threshold of $3,911.27, the department determines that the proposed rule may impose more-than-minor costs on the industry.

The following is an analysis of whether the proposed rule may have a disproportionate impact on small businesses as compared to the 10 percent of businesses that are the largest businesses required to comply with the proposed rule. Of the 21 behavioral health agencies that responded to the survey, eight indicated that they are small businesses (50 or fewer employees) and 12 indicated that they are large businesses (51 or more employees). The department was unable to ascertain the status of one survey respondent, because they did not answer the question and did not provide any identifying information.

This analysis captures the cost responses of 14 of 21 respondents (six small businesses and eight large businesses). The same six businesses were excluded as from Section 4. One additional respondent was excluded because the department could not categorize them as either a small or large business.

The method used to calculate the median one-time and recurrent costs is the same as that described when identifying whether the proposed rule may impose more-than-minor costs on businesses in an industry. The method used to calculate probable first year costs is the same as described in Section 4. An answer of "cost neutral or insignificant" was assigned a value of $0 in calculating the median but reported out as cost neutral or insignificant.

SBEIS Table 4. Cost of compliance to the proposed rule for small businesses and large businesses.

The department decided to analyze the data to show the median cost of compliance per business in SBEIS Table 4 in order to show the vast variability between responses. The department's analysis shows that the median cost of compliance with the proposed rule per small business in the first year is $1,300 (one-time cost-plus single year recurrent costs). The median cost of compliance per small business is below the minor cost threshold of $3,911.27.

The median cost of compliance with the proposed rule per large business in the first year is $12,000 (one-time cost-plus single year recurrent costs). The median cost of compliance per large business is above the minor cost threshold of $3,911.27.

One out of six (17 percent) small businesses that responded to the survey had a probable first year cost above the minor cost threshold. The highest probable cost for the first year of compliance for a small business was $25,000. Two small businesses had probable first year costs that were neutral or insignificant. The three remaining small businesses had probable first year costs of $1,000, $1,600 and $3,050, all below the minor cost threshold of $3,911.27.

Six out of eight (75 percent) large businesses had a probable first year cost that was over the minor cost threshold. The highest possible cost for the first year of compliance for a large business was $220,000. One large business had a probable first year cost that was neutral or insignificant. The six remaining large businesses had probable first year costs of $1,600, $4,800, $9,000, $15,000, $24,000 and $28,000.

In line with the department's analysis, the department concludes that the proposed rule does not have a disproportionate impact on small businesses as compared to large businesses.

If the proposed rule has a disproportionate impact on small businesses, the following identifies the steps taken to reduce the costs of the rule on small businesses. If the costs cannot be reduced, a clear explanation of why is provided. The proposed rule does not have a disproportionate impact on small businesses as compared to large businesses.

The following is a description of how small businesses were involved in the development of the proposed rule. Behavioral health agencies that are subscribed to the department's behavioral health agency GovDelivery listserv received invitations to participate in rule-making workshops and provided written feedback throughout the entirety of this Phase 2 project. Additionally, the department asked the health care authority and the Washington council of behavioral health to disseminate workshop invitations and information regarding this rules project to their listservs as well.

The following identifies the estimated number of jobs that will be created or lost as a result of compliance with the proposed rule. The department does not anticipate that compliance with the proposed rule will result in either jobs created or lost. The proposed rule changes either provide clarification on existing requirements or modify an administrative process with the intent of decreasing administrative burden or cost.

A copy of the statement may be obtained by contacting Julie Tomaro, P.O. Box 47843, Olympia, WA 98504, phone 360-236-2937, fax 360-236-2321, TTY 711, email Julie.tomaro@doh.wa.gov.

August 23, 2022

Kristin Peterson, JD

Chief of Policy

for Umair A. Shah, MD, MPH

Secretary

OTS-3709.4

The following sections of the Washington Administrative Code are repealed: