Committee conditionally approves interim HHS rule HEC 6420; agency told to consider emergency filing for fees

Staff told the committee that interim rule HEC 6420 — which implements reimbursement requirements for residential treatment programs under Medicaid — cites an interim rule (HEC 63 55) that expired in September, leaving an unclear citation. Staff said the expired citation meant there were no enforceable requirements at that cross-reference and asked how the agency intended to implement HEC 6420 if the cited interim authority was not in effect.

Nicole Valenzuela of the Department of Health and Human Services said the department is working to reimplement HEC 63 55 and that the agency has continued paying programs in business-as-usual fashion. "6 4 2 0, which is the interim rule today, does over does point to 6 3 5 5, but it also points to another large rule, 6 3 5 0," Valenzuela said, urging approval to avoid disruption to residential treatment programs.

Committee members questioned whether citing federal rules without a version or date could cause constitutional or implementation problems and asked whether a failure to reimplement cited authorities could affect Medicaid error rates and federal matching payments. Valenzuela said the department would look into the potential fiscal implications.

The committee conditionally approved HEC 6420 and encouraged the agency to consider filing an emergency rule for fee provisions to ensure coverage until regular rulemaking concludes.