The Arkansas Department of Human Services will be seeking permission from a legislative committee on Thursday to promulgate an emergency rule for a Medicaid waiver program
serving disabled and elderly Arkansans, days after a judge ordered the agency's current rule for the program to be blocked.
But DHS' emergency rule for the ARChoices
program — which allows beneficiaries to receive cheaper at-home attendant care
rather than enter a nursing home — will be much the same as the one that Pulaski Judge Wendell Griffen struck down on Monday, a DHS spokesperson confirmed.
That's because the case before Griffen only concerned how the original rule was promulgated, rather than its underlying substance. DHS says it must seek an emergency rule to ensure continuity in the program. If no emergency rule is promulgated, the agency said, ARChoices beneficiaries could be left without services.
Legal Aid of Arkansas, which represented seven disabled plaintiffs in the case before Griffen, said DHS is misrepresenting the issue and creating a crisis where none would otherwise exist.
"This business about needing to protect services is wholly concocted," attorney Kevin DeLiban told the Arkansas Times
on Tuesday. DeLiban warned that his group was prepared to sue again if the emergency rule is approved. The rule will be introduced to the Executive Subcommittee of the Arkansas Legislative Council, which the legislature's website
says meets at 11 a.m. Thursday in Room 205 of the Capitol.
The controversy began in late 2015, when DHS informed certain disabled and elderly Medicaid beneficiaries in separate home care waiver programs that they would be merged into a single new program, called ARChoices. DHS said benefits would remain the same. But in merging the two programs, the agency also created a new, algorithm-based method of determining the weekly number of home care hours received by each beneficiary, rather than using the discretion of a nurse to assess individuals' level of need (as was done previously). The algorithm sorted individuals into "resource utilization groups," or "RUGs," and determined how many hours of attendant care each individual received. When the new algorithm went into effect, though, many people were alarmed to find their attendant care hours had significantly decreased. (Attendant care includes help with daily activities such as bathing, cooking and cleaning; at-home services are typically much cheaper than nursing homes, and are usually preferred by recipients.)
The plaintiffs argued that DHS did not follow the law when it created the rule because it didn't properly inform the public of the changes that would follow from its implementation. Griffen agreed. "The notice of the proposed rule did not refer to the specific nature and significance of the change in assessment methodology," he wrote in his order.
When attorneys for DHS argued the case before Griffen in April, they warned that enjoining the rule which created the algorithm-based method of assigning hours could have the effect of shutting down services. Because Medicaid is a joint federal/state program, modifying the waiver which created ARChoices would require permission from federal CMS, the Center for Medicare and Medicaid Servies. DHS maintains that it must create a new emergency rule in order to stay in compliance.
"We have individuals who are coming into the program or who are due for [annual] reassessment and ... barring promulgation, we wouldn't be able to do that. ... The CMS waiver requires assessment," DHS spokesperson Marci Manley said Tuesday.
But DeLiban said DHS could simply return to the method of assigning hours it used before the algorithm was implemented: Assessment of beneficiaries by a nurse, rather than by a computer.
"There's nothing that says they have to stop services if they can’t use the RUGs algorithm. ... There is absolutely no legal reason in the agreement between the state and the federal government that says … that or even suggests it," he said.
Manley said the emergency promulgation would only last
120 days. Meanwhile, the agency is also working on a permanent version of the rule, which will have to go through the public comment process and other steps to gain approval.