Blanksma, Rubel called Medicaid Administrator to the carpet

for promulgating a rule “inconsistent with legislative intent” and for bypassing public comment period

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Rep. Ilana Rubel (D-Boise), asked the Division of Medicaid Administrator in a January 21st hearing, “So I’m wondering why you all took it upon yourselves to create this exemption that would seem to not be consistent with the legislative intent, and have bypassed a public comment period, [which] would seem to have been appropriate when putting in a rule that was fundamentally inconsistent, in my mind, with the legislative intent.”

House Concurrent Resolution 13 was introduced in the House Health and Welfare Committee by Vice Chairman Jarom Wagoner on Wednesday, February 13th. The resolution states the findings of the legislature and rejects one portion of a pending rule, adopted under docket number 16-0309-1802, proposed by the Department of Health and Welfare “relating to Medicaid Basic Plan Benefits” because its provisions “are not consistent with the legislative intent and should be rejected.”

In a hearing before the House Health & Welfare Committee on January 21st, 2019, Rep. Megan Blanksma (R-Hammett) noted that department’s pending rule removed specific language, which reads, “The dental insurance contractor may establish limitations and restrictions for benefits according to the terms of its contract with the Department.” The proposed rule would have replaced that language with: “Root canals and crowns are not covered.” (See Pending Rule Book, page 86.)  

Representative Blanksma asked the presenter why those two specific services were called out, and expressed concern that there was no place left in the rule where the insurance contractor can establish such limitations, as was the intention of the legislature.

Rep. Rubel echoed the same concern and continued, “There certainly wasn’t anything in the statute that provided for a carve-out for root canals and crowns, in fact the intent was very much to avoid the downstream emergency care that was resulting from the lack of such treatments… so I’m wondering why you all took it upon yourselves to create this exemption that would seem to not be consistent with the legislative intent, and have bypassed a public comment period, [which] would seem to have been appropriate when putting in a rule that was fundamentally inconsistent, in my mind, with the legislative intent.”

Matt Wimmer, Administrator for the Division of Medicaid, expressed that the department’s interpretation was that the legislature intended, with implementation of House Bill 465, that benefit levels should be restored to the 2011 levels, and that “root canals and crowns” had been a “limited benefit.” He also noted that there was another place in the rule which would allow the department to approve further limitations by the insurance contractor(s).

In answer to why the department promulgated rules without a public comment period, Wimmer said the department was “under some time pressure to get the rules in place,” and to “get everything ready for the July 1st deadline when these benefits came back into effect,” which is why they “expedited everything and did not do the negotiated rulemaking.”

Rep. Rubel made a motion to approve Docket No. 16-0309-1802 with the exception of Subsection 803.04. Motion carried by voice vote. Reps. Blanksma, Christensen, Vander Woude, Green(2), and Kingsley requested they be recorded as voting NAY.

The motion carried on a vote of 8 to 5, which led to the drafting of RS26803. The committee voted unanimously to introduce the resolution, which has officially been printed as House Concurrent Resolution 13.

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