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How the Rules Are Made - KDADS
1. How the Rules are Made
Presented by Aquila “Q” Jordan, JD/MPA
Director of Policy and Regulations
2. 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
January 11, 2016
3. 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
January 11, 2016
4. 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
January 11, 2016
5. 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
January 11, 2016
6. Recent Federal Final Rules
Over 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
January 11, 2016
7. 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).
January 11, 2016
12. 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
January 11, 2016
13. 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
January 11, 2016
15. 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
January 11, 2016
16. 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
January 11, 2016
17. 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
January 11, 2016
18. 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)
January 11, 2016
19. 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
January 11, 2016
20. 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
January 11, 2016
21. 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
January 11, 2016