Judge rules on PASSE lawsuit (Updated)

Medicaid recipients, parents, advocates, and providers made their best effort on Wednesday, Feb 27 to stop or delay the PASSE program from starting.

What happened?

In addition to the residential association’s complaint that drove the hearing, some plaintiffs, including a parent of a child on DD waiver along with a person who receives behavioral health services, assisted by Disability Rights Arkansas, also requested a motion to intervene. They issued a brief in support of their argument and exhibits.

For the restraining order, the original complaint was filed. Then DHS responded by filing their argument, and the plaintiffs filed an amended complaint.

After hours of testimony for and against the PASSE at the hearing Wednesday, Judge Piazza of the Pulaski County Circuit Court ruled that the PASSE program can move forward on Friday.

The judge ordered the case to remain open for 6 months to allow plaintiffs to renew their request. The plaintiffs could choose to appeal the decision.

Some people did not understand the decision or how the judge could process the information and testimony so quickly. However, he apparently made the decision based on pure law, saying that the plaintiffs hadn’t shown proof that the start of the program on March 1 would cause them the “irreparable harm” needed to justify such a restraining order. Since the case will remain open, they may still get the chance to prove that harm later on (although for the sake of the 40,000 people affected, we all hope they don’t see irreparable harm.)

What did the lawsuit say?

The lawsuit was filed on Feb 21 to stop the transition to managed care, set to start this coming Friday, March 1 that will change the way services are covered for over 40,000 Arkansans who have significant mental illness or developmental disabilities.  

The lawsuit says DHS has refused to do anything about the warnings that the 3 managed care companies planning to participate in the program won’t be ready to take over responsibility for the recipients care March 1.  

Read here DHS full response to the lawsuit, but one of the many reasons it lists why the PASSE program should not be delayed:

“DHS will demonstrate that approximately $1 billion will go to the PASSEs annually in global payments. The proceeds from the premium tax, 2.5%, are expected to generate approximately $25 million dollars each year, which may then be used to pull down federal matching funds. Arkansas’s current federal match rate is 70.51%, which means for every thirty cents the state puts into the program, the federal government puts in seventy cents. The simple math demonstrates that the $25 million in premium taxes will generate approximately $85 million in available spending annually. To break it down further, every day of additional delay will result in approximately $232,000 lost, or $1.63 million per week, or $7.08 million per month.”

Plaintiffs argued that the PASSEs are not ready, that clients had not even received their PASSE insurance cards, that billing plans were insufficient, while the state argued that evidence shows it is ready to move forward.

What do you think?

Reaction by affected families and providers to the lawsuit was mixed in MSL’s social media group. Many families wished to see the program stopped, but a few said they were ready to see it move forward.

“I have heard about the lawsuit about PASSE. They may not be starting on March 1st. The date seems to be getting moved further and further away. Every time we get used to the idea the date changes. If we have to make the change, let’s do it sooner than later.”

“If they are not prepared. I say move the date. Any large change in a program takes time to implement safely. Change should be slow… to insure quality.”

Make sure you join the group to let us know what you think!

What can you do now?

If you are affected by the PASSE, make sure you email Disability Rights Arkansas if you’re seeing problems with the PASSE. If they want to revisit this complaint, they will need a lot of proof to stop the PASSE program. Email TNichols@disabilityrightsar.org.

Also, keep these numbers handy. Make your complaints to the Ombudsman 1-844-843-7351, and send an email with your issues to PASSEOmbudsmanOffice@dhs.arkansas.gov. They have to log them. Most emails and records like this can be subject to requests and investigation, so get them on the record.

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