Here’s an AR Choices update from our friends at Legal Aid Arkansas:

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Latest ARChoices update. Last Monday (12/10), the first legislative committee–which didn’t have the power to say no–reviewed the proposed changes to the ARChoices program and sent them on to a second legislative committee, which is called the Rules and Regulations committee. This second committee has the power to say no to the rules (in some circumstances).

THE SECOND COMMITTEE MEETS on Tuesday, 12/18, at 1 p.m. in Room A of the MAC Building in Little Rock. Members of the public have the right to speak. People were limited to two or three minutes at the first committee and were pressured to get straight to the point.

Based on what DHS said at the meeting, media reports, and questions I’ve received from clients, here’s some important information.

(1) ACTUAL CARE HOURS. Our clients’ main concern is getting enough care. Almost 90% of the people on ARChoices use agencies for their care. The remaining people hire their own caregivers (it’s called “self-directing” care; you know you self-direct if you go through Palco; self-directing people may be able to get more hours). For everyone who uses agencies, the absolute maximum number of hours you can get under the new rules is 6.5 hours per day (46 per week) based on the hard budget limit of $30,000 per person per year. We know that is not enough for many of our clients.

6.5 hours per day (46 per week) is the best-case scenario. From experience, we know that the best-case scenario isn’t usually what happens. There are several things that can take away from this.

(A) The first thing that can take away hours is the new Task and Hour Standards, which will allocate a set amount of time for each activity of daily living you need done. Using algorithms, DHS will assign you a severity score in each key ADL. Then, based on that severity score, you can get a certain number of minutes for each activity. For example, if you score a 3 on bathing (3 is the most severe), the DHS nurse can give you between 35 and 45 minutes. DHS does that for each ADL (food prep, eating, dressing, grooming, cleaning, etc.) and then adds it all up. If this comes out lower than 6.5 hours per day, you can only get the number of hours the Task and Hour Standards allows. If that comes out higher than 6.5 hours per day, you can still only get the 6.5 that your budget allows.

(B) The second is if you use other services like home-delivered meals, the personal emergency response system, or respite care. The cost of these things comes out of your budget. IF YOU GET ONE MEAL FIVE DAYS PER WEEK AND HAVE THE EMERGENCY RESPONSE SYSTEM, YOU WILL LOSE ABOUT TWO HOURS OF CARE PER WEEK. And, every hour of respite care you choose means a loss of one hour of attendant care.

(C) The third is if you do not get placed in the budget category of $30,000 per year. There are two other budget categories–one with a $20,000 limit per year and one with a $5,000 limit per year. People in the $20,000 category will only be able to get up to 5 hours per day (36 hours per week). People in the $5,000 category will only be able to get up to 3 hours per day (20 hours per week). Algorithms will determine budget placement.

(2) POSSIBLE ALTERNATIVES. While Legal Aid does not advocate for specific policy fixes, we can analyze factual information and consider alternatives. Our clients’ main concern is getting enough care. We don’t have access to detailed DHS data that would allow for precise calculations, but we can make reasonable assumptions.

SCENARIO ONE. If DHS raised the $30,000 yearly cap to $36,000, it would give people a possibility of 1 more hour of care each day (so, 7.5 total per day, which is 53 per week) and would probably cost less than $1,500,000 total to the budget per year. Based on DHS’s estimates, about 260 people received services this year that cost more than the $30,000 cap. Those people will already be “grandfathered” into the new system and should be accounted for in DHS’s current budget. The extra cost of $1,500,000 assumes another 260 people will need services that cost more than $30,000 per year. This extra 260 people seems like a reasonable estimate. There could be people already on the program who face increased needs (DHS estimated 206 people this year required services that cost between $25,000 and $29,999, so some of them might need more as conditions worsen) or people who come onto the program with higher needs than the people they are replacing. There could also be a few of the grandfathered people who would get a slight bump under an incrased cap (147 people got services that cost between $30,000 and $34,999). And, that $1,500,000 assumes that all of the people who qualify for the increased budget cap will actually receive all $36,000 of services.

***REMEMBER, the increased budget doesn’t automatically mean more hours. The actual hours will be limited by the Task and Hour Standards.

SCENARIO TWO. If DHS raised the $30,000 yearly cap to $39,000, it would give people a possibility of 1.5 more hours of care each day (so, 8 total per day, which is 56 per week, which was the maximum under the system of nurse discretion that existed before RUGs) and would probably cost less than $2,340,000 total to the budget per year. Again, this assumes that 260 people will need services that cost more than $30,000. The 260 people could include some of the 206 people who received services costing between $25,000 and $29,999, some of the 147 people that got services costing between $30,000 and $34,999, some of the 74 people that got services costing between $35,000 and $39,999, and some new people.

***REMEMBER, the increased budget doesn’t automatically mean more hours. The actual hours will be limited by the Task and Hour Standards.

Even with higher budget limits, THE COST OF HOME-BASED CARE IS FAR LESS THAN THE COST OF NURSING HOME CARE. The $39,000 cap comes out to $3,250 per month, and the $36,000 cap comes out to $3,000 per month. By DHS’s own estimates, nursing home care costs around $5,500 per month.

(3) The Proposed System Still Uses ALGORITHMS That Will Be Hard for People to Understand. DHS is publicly saying that the proposed system doesn’t use computer algorithms. This is demonstrably false. DHS has to use algorithms to turn the answers to the 400+ questions on the assessment into placement in an eligibility tier, a budget category, and scores for the ADLs on the Task and Hour Standards. While the new algorithms will work differently than the RUGs algorithm, they are still algorithms. People will probably still have a hard time understanding why they get a particular amount of care.

(4) The Proposed System Could VIOLATE THE AMERICANS WITH DISABILITIES ACT. Some people have heard of the Olmstead case. It was a Supreme Court case that stands for the idea that a state discriminates against people with disabilities if the state’s actions put people at risk of institutionalization. Using a hard budget limit to deny services that are needed for people to be able to stay at home violates the ADA.

(5) The “Flexibility” DHS Has Proposed Doesn’t Address the Issue of Budget Caps. DHS will allow nurses some modest discretion in completing the Task and Hour Standards, but this DOES NOT allow nurses to adjust the hard budget cap. So, even if the nurse uses their discretion to say that you need 8 hours a day of care on the Task and Hour Standards, you cannot get that much if your budget doesn’t allow it. If you need more than $30,000 in services, there is a one-time exception possible for “exceptional, unexpected circumstances” like the death of a caregiver or drastic change in condition but not for people whose regular care requirements involve more than that (i.e. if you are relatively stable, no exception is possible). And, to get this limited exception, you have to go through a DHS review panel–it is NOT in the discretion of the nurse.

NOTE: If you currently receive more than $30,000 in services, you will be “grandfathered” into the new system and get to keep up to your current services next year (your current level will be your budget cap). However, your hours could still go down based on the Task and Hour Standards.

As always, please feel free to write or call me with any questions. 870-732-6370 x 2206.