AR Choices: Update & Public Comment

Here is a detailed update from Kevin de Liban from Legal Aid about AR Choices.

Also, please note that Public Comment ends on this issue on July 31, 2018. There is one more public hearing on July 26th in Little Rock. Kevin’s update can help you with ideas of what to say as you examine the manuals available for public comment. Don’t miss this chance to speak up for what you need!


As you know, a court invalidated the RUGs algorithm a little over two months ago. DHS is now trying to re-implement the RUGs algorithm to take effect on October 1. Rule-making is the name for the process by which DHS is trying to make this change. DHS has proposed that the algorithm work the same way it did before being invalidated.

Until October 1, it appears that DHS intends to keep everyone on the program at the same level of attendant care they have now and that DHS will not allow any new applicant to the program to receive attendant care services. Legal Aid of Arkansas is actively working to change this through a new lawsuit filed on June 29.

Here is some other relevant information:

(A) The public comment period for rule-making on the algorithm runs until 7/31.  Here are the manuals available for public comment. The public has a right to participate in the rule-making process. If they choose to do so, people may offer comments by email to becky.murphy@dhs.arkansas.gov or by mail to the DHS Division of Medical Services, Office of Policy Coordination and Promulgation, P.O. Box 1437, Slot S295, Little Rock, Arkansas 72203-1437. Please include the title of the document you are commenting on when you email. Here is the notice of rule-making that DHS has published for more information.

(B) DHS is hosting public meetings about the rule-making. The remaining meetings is on 7/26 in Little Rock (Ark. Enterprises for the Developmentally Disabled ;105 East Roosevelt Rd.). People can offer verbal comments at the meeting. The meetings start at 5 p.m.

(C) Legal Aid has had nearly 200 cases relating to the RUGs algorithm in the last two and a half years. Here is some of what we’ve learned about how the algorithm works.

(1) The algorithm doesn’t provide enough care to meet the needs of people on ARChoices.

The most care someone can get under RUGs is 5.5 hours per day unless they need IV medication, suctioning, tracheostomy care, a ventilator, or a feeding tube (then, they can get 6.5 hours per day). This is not nearly enough to meet the care needs of many people on the program. Because of the cuts to care, many people ended up lying in their own waste, skipping meals, getting bed sores, and staying shut in. Even when people have family members make up for the cuts, they have had to go through more anxiety, have family work outside the home in ways that threaten their care, or consider moving to a nursing home.

(2) The RUGs algorithm cuts the hours of people who have not gotten any better.

People who used 8 hours per day (the max for people under 65) or 7 hours per day (the max for people 65 or over) before the algorithm were cut even though their medical conditions and abilities did not improve.

(3) The RUGs algorithm has not been validated or verified in Arkansas.

The only testing that has occurred on RUGs took place in Ontario, Canada and Michigan, which have different situations than Arkansas. Also, though DHS says that it used statistics to come up with the hours that different people get, DHS admits they lost the data.  This means that there is no way of knowing how or why DHS figured that 5.5 hours per day was enough for someone with quadriplegia or cerebral palsy (or any of the other amounts DHS gives for people with different conditions and abilities).

(4) There is no documented evidence of problems with the system of nurse discretion that DHS used for 17 years before the algorithm.

Before 2016, DHS used nurses to decide the number of attendant care hours. Legal Aid never received a single complaint from clients about the nurses’ decisions. Since DHS started using the algorithm in 2016, we have worked on nearly 200 cases. Now, DHS says that nurses were biased and that the algorithm is more objective or fair. But, before 2016, DHS did not tell a single nurse that they were giving out too many or too few hours, did not do any kind of study to show whether nurses were giving out too many or too few hours, and did not tell nurses to change the way they were giving out hours.

(5) Our clients generally do not think the complicated RUGs algorithm is fair.

The algorithm is 21 pages of computer code. Most average people can’t understand it. Also, the way the algorithm works totally excludes a doctor’s opinion about the amount of care someone needs. People on the program cannot understand the criteria by which their hours are set, cannot fight reductions, and cannot plan for the future.

If you need help or more information, here is Kevin’s information:

Kevin De Liban, Attorney

Economic Justice Practice Group Leader

Legal Aid of Arkansas–West Memphis

310 Mid-Continent Plaza, Suite 420

West Memphis, AR 72301

Phone: (870) 732-6370 x. 2206

Fax: (870) 732-6373

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