What’s the PASSE Ombudsman?

The PASSE Ombudsman is supposed to be there to help us when our PASSE isn’t.

These are people employed by DHS, not by the PASSEs.

If you have a complaint against your PASSE, your care coordinator, your Independent Assessment Tier, or if something just isn’t getting solved, you might want to try calling the Ombudsman. Call 1-844-843-7351 if you need help.

AR Choices Update

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


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.

ARChoices: Take Action

This is a long but important update from Kevin deLiban of Legal Aid of Arkansas on information about the NEW SYSTEM to determine hours for ARChoices that DHS will start using on January 1, 2019.

The public comment period is open until 11/7/18, and public meetings will be held from now until then.


(1) RUGs Update. Late Monday, the judge dissolved the injunction against RUGs, meaning that DHS will start allocating attendant care to new applicants for the program and will also re-assess people whose plans of care have expired. RUGs will only go back into effect for the next two-and-a-half months and then will be replaced by the new system described below. If anyone faces reductions because of RUGs during that time, they can call Legal Aid of Arkansas at 800-967-9224. We don’t anticipate more court challenges against RUGs (though that can always change), but we may be able to help with administrative appeal hearings.

Due to the hard work of people on the program, caregivers, attorneys (at Legal Aid of Arkansas, the Center for Arkansas Legal Services, and Disability Rights Arkansas), case managers, care agencies, journalists, and others, RUGs is definitely going away (DHS had no plans to switch to a new system before the litigation and public attention), about a thousand people avoided devastating RUGs-based cuts for several months (and at least couple dozen people kept their pre-RUGs hours for a year or longer), 150+ people with cerebral palsy are getting more hours than they otherwise would have due to discovery of a DHS software error, hundreds of people (including legislators and the wider public) have learned more about Medicaid home-care services and the importance of a fair system to determine hours, and a community of people are now activated around these issues. Justice only exists because people work to create it. Grateful for all of you who did so here. We lost along the way, too, and I think about the clients who passed away fearing or fighting cuts, clients who’ve been living with the cuts, and all the suffering we couldn’t stop. They keep me motivated.

(2) The New System. DHS finally released details of the new system it plans to use starting January 1, 2019. DHS’s own summary of the changes are attached. There is A LOT of information in here, so I’ll go through the major items.

New Assessment. Up to now, DHS was using the assessment tool known as ArPath, which had 286 questions. ArPath will be going away. The new assessment will be called ARIA and could have as many as 400 questions. It will be performed by a Registered Nurse who works for a private company named Optum. After the Optum RN comes out to do the assessment, the results will be sent to DHS for a determination about eligibility, the amount of hours someone gets, and what budget category someone fits in. This involves a separate visit by a DHS RN to do the care plan.

Questions/Unknowns:

~ Will people be given enough advance warning in order to get medical records or arrange for caregivers to be present so that the information in the assessment is accurate?

~ Will the new assessment take longer than the old assessment, which already took 60 to 120 minutes? Will the questions be understandable, relevant, and fair?

New Hour Determination System. RUGs used an algorithm that mixed a lot of different factors that didn’t seem to make obvious sense in order to place someone in a group with a fixed number of hours. The new system will be very different. It is called the “Task and Hour Standards.” Based on the ARIA assessment, an algorithm will rank each person from 0 to 3 in each key Activity of Daily Living (bathing, dressing, feeding, grooming, toileting, transferring, walking, cleaning, laundry, meal preparations, and shopping). Then, based on whether you get a 0, 1, 2, or 3, the DHS nurse (who comes in a separate visit from the Optum nurse) will determine how many minutes you get for that particular activity. For example, if you score a 3 on bathing, the DHS nurse can give you between 35 and 45 minutes. If you score a 2, the DHS nurse can give you between 15 and 30 minutes. If you score a 1, the DHS nurse can give you between 5 and 10 minutes. The DHS nurse will then figure out how many times per week you need to do a particular task. The DHS nurse will then add up all the minutes you get for each ADL and give you a monthly number of hours.

Questions/Unknowns:

~ DHS hasn’t said how the algorithm will figure out if you are a 1 or 2 or 3 for any particular ADL.

~ DHS hasn’t stated the frequency that certain tasks will be allowed. Is bathing a daily task? Do people get to be dressed twice per day (once into the day’s clothes; once into bedtime clothes)? Will the frequencies allowed match actual care needs?

~ DHS has said that the time given will be reduced by the amount of time that family, friends, or others do that same task voluntarily. It is not known how this will affect people with family caregivers.

~ DHS has said that no time will be given for the cleaning of shared spaces when the caregiver lives with the beneficiary. There could be other reductions for people who live with their caregiver.

~ DHS has said that nurses can request to go outside the amount of time allowed if there are “extenuating circumstances” and the nurse receives supervisor approval. For example, this means someone may be able to get 55 minutes for bathing even though the highest amount officially available is 45 minutes. BUT, these adjustments might not mean much because of the budget limits described below.

~ Even if you are allowed a particular amount of hours under the Task and Hour Standards, you might not actually get that number of hours because of the new overall budget limits described below.

• New Overall Budget Limits. DHS is doing something it has not done before in ARChoices, AAPD, or Elder Choices. It is setting a hard budget cap for services an individual on the program can receive, regardless of the amount of care DHS’s own Task and Hours Standards says someone needs. There are three budget categories–Intensive, Intermediate, and Preventative. An algorithm will use the answers to the assessment to put you into one these three groups. People in the Intensive group can get no more than $30,000 worth of services in a year ($2,500 in a month). People in the Intermediate group can get no more than $20,000 worth of services in a year ($1,667 per month). People in the Preventive group get $5,000 in a year ($417 per month).

So, even if the Task and Hours Standards states that you need 200 hours in a month, you cannot get those 200 hours if they cost more than is allowed by your budget limit. For example, your budget limit might only allow you to “buy” 150 hours per month (or some other number less than 200).

Questions/Unknowns:

~ DHS has not stated the actual price of the services so that you can predict the number of hours actually possible under the budget limits. However, if you take the standard attendant care rate of $18 per hour, the highest budget level (Intensive, which allows $2,500 per month), would only allow 139 hours per month. This would not be enough for many people. The next highest budget limit (Intermediate, $1,667 per month) would only allow 93 hours per month (at the rate of $18 per hour for attendant care).

~ DHS has stated to media that the cost of attendant care would be less for people who hire their own caregivers instead of using an agency (meaning they could possibly get more hours under the budget limit), but that would seem to give far fewer hours to people who use agencies than people who hire their own caregivers.

~ DHS has stated to media that up to 64 hours of personal care hours may be available apart from this, but that is not confirmed in policy and may still not be enough care for many people who have higher needs.

~ DHS’s process to arrive at these $30,000/$20,000/$5,000 categories has not been independently verified to be reliable. These amounts could be arbitrary. DHS says they are based on the cost of nursing home care, but DHS has given other figures that state nursing home care costs much more than $30,000 per year (these other DHS estimates have put the cost of nursing homes at more like $60,000 per year).

~ DHS did not include in the public documents anything about how the budget limits will actually affect people. How many people will be put into each category? How many people will face cuts because of placement in a particular category?

~ DHS has stated that ARChoices beneficiaries who were on the program in 2018 and who received more than $30,000 in services will not face a cut due to the budget limits the first year. Instead, their budget limit will be the cost of the services they received in 2018. This is known as “grandfathering” people into the program. So, people with higher needs may be able to keep what they got in 2018 if the Task and Hour Standards determination shows they need that many hours.

~ Apart from the “grandfathering,” DHS has stated that the budget limit can be temporarily adjusted upward for one year through an “exceptions process” for “exceptional, unexpected circumstances.” DHS stated that these “exceptional, unexpected circumstances” might include the death of a caregiver or recent release from a facility.

• Will the new system provide enough care? Compared to the system of nurse discretion, RUGs was harmful to our clients because it meant huge cuts in hours for so many people, especially people with the most severe needs. It is not clear if the new system will give people any more hours than RUGs did. It is not clear if the new system will give people enough hours to meet their actual care needs and keep individuals out of nursing homes. DHS has stated that the changes will cut Medicaid spending by about $10 million the first year and about $14 million the second year. If spending cuts are the goal, increased care may not be part of the plan.

• Is it understandable? RUGs involved 20 pages of computer code that didn’t make sense to our clients. The new system seems to be complicated in a different way. First, people will have to figure out how the 400-question assessment turns into a score for each ADL on the Task and Hour Standard (how many minutes you get for each ADL). And, we don’t know if that will make sense. Second, people will have to figure out how the assessment turns into a Budget Limit category. Some people may be qualified for hours under the Task and Hour Standard that they can’t actually get because of the Budget Limit category. These complications may mean that people on the program may not be able to fairly contest decisions about the care they are allotted.

(3) Public Comment. Anyone can participate in the public comment process. Comments can be sent by email to becky.murphy@dhs.arkansas.gov or by mail to Office of Policy Coordination and Promulgation, P.O. Box 1437, Slot S295, Little Rock, Arkansas 72203-1437. Comments must be submitted by 4:30 p.m. on November 7.

(4) Public Meetings. Public comment will also be accepted at public meetings. The meetings are at the following times and places. Some of these meeting places are different from the meetings about ARChoices that were held in summer.

Fort Smith, 10/15, 5 p.m., Arkansas College of Osteopathic Medicine, 7000 Chad Colley Blvd
Monticello, 10/18, 5 p.m., Drew Memorial Hospital Conf. A., 778 Scoggin Dr.
Hope, 10/22, 5 p.m., UA Hope Hempstead Hall, 2500 South Main St.
Little Rock, 10/29, 5 p.m., Arkansas Enterprises for the Developmentally Disabled, 105 E Roosevelt Rd
Jonesboro, 11/7, 5 p.m., St. Bernard’s Medical Center Auditorium, 225 E. Jackson Ave.

(5) Copy of the Full Materials. I could not cover all the changes being made. The full materials can be downloaded here. The full materials have information on other important changes being made to this program, Independent Choices, and the Assisted Living waiver program. For example, the rates of Assisted Living providers are facing significant cuts, which may mean that fewer people can get into an assisted living facility and more people may have to choose a nursing home instead.


This update was provided by Kevin De Liban of Legal Aid. If you have questions, please feel free to reach out to him:

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

ARChoices Update

Here’s the latest on what has been happening with ARChoices directly from our friends at Legal Aid:

(1) Second Legislative Hearing. When I last wrote, the Public Health committee of the legislature gave the RUGs algorithm an “unfavorable” review, meaning that the committee did not like it. The RUGs then went before the Rules and Regulations subcommittee. This subcommittee can only disapprove a regulation in narrow circumstances, so the RUGs was approved as a short-term measure to allow DHS to give attendant care to new applicants and to make new determinations for people up for reassessment. But, the chairperson said this:
The RUGs has not proven to be holistic in assessing the needs of the patients. Your presence here today has not fallen on deaf ears and, moving forward, because of your intense pressure, it is duly noted that RUGs is not the system we want serving the needs of Arkansans with disabilities. I believe it would be fair to say that you have the attention and the ears of the legislative branch to assure that your needs are moving forward. While we may not agree 100% on everything, the one thing we know is we can’t stay where we are. And while this process continues out after we do our duty today, then we will work to make sure that we don’t revisit this chapter again.
Even though RUGs was approved, the statement is great news for people hurt by the RUGs. Even if RUGs comes back in the short-term (it might not; see below for updates on the court case), it looks like the legislature won’t allow it to go on beyond December or early 2019. And, the public, media, and legislature will all take a close look at whatever new system DHS eventually comes up with. Personally, it was especially inspiring to see all the people most affected and their families come out and speak at the public forums or at the legislature, offer written comments, and lead the public effort (Legal Aid didn’t organize it).  And, this would not have happened without all the thoughtful and caring providers and other advocates who stepped up. It’s been wonderful to work with everyone.
(2) New System. DHS kept talking about a new system it would implement as of 1/1/19. DHS said that it would start the public comment process on 10/1/18. As of today, nothing has been published about it. Legal Aid will let everyone know when the official proposed rule comes out. The unofficial drafts we’ve seen suggest that it might be easier to understand than RUGs, but the unofficial drafts make it seem unlikely the new system will offer enough care hours for the patients with the highest needs.
(3) Court Case. Because the legislature approved the RUGs, DHS was going to start using it again as of yesterday. DHS asked the court to remove the injunction that stops them from doing that. DHS claims that it followed the proper process to adopt the rule. Today, Legal Aid, on behalf of our plaintiffs, filed an objection and asked the judge to keep the injunction in place (it is attached if you want to read the full legal document). DHS’s public comment process appears to be a sham. 43 different people criticized the RUGs for allowing inadequate care and not taking into account a nurse or doctor opinion in making hour determinations. They offered concrete ideas about alternatives. DHS didn’t even try to address the criticisms or alternatives, which the law requires it to do. Only 1 person was fully supportive of RUGs.
Our filing means that people who have applied for ARChoices services may be further delayed in getting them. DHS keeps saying that it has no lawful way to allocate attendant care, but we disagree and keep arguing that DHS can use the system of nurse discretion in place before RUGs. We are very sympathetic to the people who are waiting on services and understand they are caught up in this. However, Legal Aid has a duty to serve our clients. All of our plaintiffs (and many other clients) have been cut by the RUGs in the past. And, because DHS hasn’t been able to re-assess them for two years, they could be first in line for re-assessment. We tried to negotiate with DHS to get a formal, written agreement to ensure our clients would be safe, but DHS would not do anything formal. We had to file this objection to try to protect our plaintiffs. We have another legal case pending that could get the assessments and allocations started again with nurse discretion and will continue pursuing that option.

Contact:

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

PASSE: Take Action!


The PASSE system was voted in by our legislature last year. Right now, we’re in what they call “Phase I,” and during that time, the PASSEs will manage care for their clients, but Medicaid will keep paying the bills. Then in January 2019, we move into “Phase II,” and the PASSEs’ decisions about our care will matter. In January, DHS/Medicaid will give the PASSEs the money and allow them to decide how to use it.


If you need a reminder, the PASSE stands for Provider-led Arkansas Shared Savings Entity, and like insurance companies, they will be covering the care for tiers 2 & 3, what DHS considers to be higher level need, of behavioral health and developmental disability services.

DHS has assigned thousands of people to the 4 licensed PASSEs after each person’s Independent Assessment completion. If you are affected, you will likely first receive a letter or some sort of notification to schedule an Independent Assessment.

If you have questions, DHS has a PASSE counseling line: 1-833-402-0672. They also have regional people you can talk to.

MSL is actively working to get you more information on the PASSEs themselves. Now that details are coming together, we should be able to get more. The information we have so far is listed below in steps that should help you.


These changes may be happening to you or a loved one, but you can do these 8 things to help yourself in this new process:

1. Make sure your provider knows about the PASSE and everything it involves.

It’s important that you ask your provider to join every PASSE. What if next year, you need to switch PASSEs because of a bad experience, but your provider isn’t in any other PASSE? If they choose to join only one PASSE, you could be forced to make a decision between 2 (or more) providers you really like. What if your trusted Cardiologist who did your surgery is in only one PASSE and your Therapist who you’ve been with for years is only in another? You might have to choose. However, even after you ask your provider to join all PASSEs, they may still choose to join only one because they have invested in that PASSE or simply because it’s a business decision. They have that right, but you still have to look out for what’s best for you; for the people whose care and services will be managed by the PASSEs, it’s best for us to have as much choice and freedom as possible. The only way you can have that is when providers give you choices by joining all PASSEs. Some PASSEs have said they will pay for out-of-network costs or make special agreements, but that’s probably only for providers you don’t see often.

DHS said that they are in the process of setting reimbursement rates for providers – the actuary process. Because of that, some providers will not know what you mean when you mention the PASSE to them. Their business office may know and may be waiting on these rates before making any decisions. However, you can still take this information to your provider and/or to the business office.

The following packets are ones that DHS has distributed to providers. Don’t assume yours has received it. Every provider you use needs to be sure they understand this info about the PASSEs. The last is a collection of contact information of all PASSEs specifically for providers to help them join. Take care of yourself, and take these to every provider you see.

  • A Family letter to take to your providers that explains this for you
  • Resource that was sent to PCPs
  • Resource that explains PASSEs Phase I
  • Resource that explains PASSE Phase II and updates
  • Resource for providers that explains why and how to join
  • Give them the contact information below

Some have been concerned whether ACH is covered. This is the response:

“State supported hospitals UAMS and ACH will be enrolled with every PASSE. Many doctors are enrolled through their networks but may not know that yet. You can call every PASSE and interview them so you are making an informed choice.”


2. Get to know the PASSEs.

*MSL has requested websites for all – check back for updates.

Arkansas Total Care
Empower
Summit (Arkansas Provider Coalition)
  • Amerigroup Partnership Plan LLC
  • http://www.summitcommunitycare.com
  • Their HANDBOOK (rules, your rights, and information)
  • Network Provider Directory
  • Jason Miller
    Jason.miller@summitcommunitycare.com
  • 425 W. Capitol Ave. Suite 233 | Little Rock, AR 72203
  • 1-844-405-4295
ForevercARe

3. Join a PASSE Advisory Committee.

Each PASSE is required by Act 775 (pg 9, line 21) to have a Consumer Advisory Council to give them feedback. They know how things are supposed to happen, but it’s up to you to keep them informed of what’s really happening.

Call your care coordinator to join your PASSE’s council.


4. Remember, you have choices.

Once you have been assigned a PASSE, you have 90 days to change to another. Call your PASSE, and make sure they include your providers. If they don’t, use the info above to find a PASSE that better suits you. DHS is also going to offer open enrollment in October 2018. We will continue to provide more info as we can!

Also, DHS will have open enrollment in March 2019 for all current members. During that time, you will be allowed to switch to another PASSE, and by then, we should know more.


5. If you don’t agree with your assessment results, which you should receive in the mail, know you can appeal.

You have rights, and you can appeal DHS decisions. This is a very new process, and assessors can make mistakes. Check this post to see what your rights are and how to file an appeal. Watch our Q & A with Disability Rights where we answered common questions.


6. If you feel lost, take some time to catch up.

What is a PASSE? Will you be affected? MSL has been following the PASSE from the very beginning. Take some time to catch up and read all about them.


7. Keep MSL informed.

If you learn anything, especially from a specific PASSE, share it with us! If you have any problems, MSL works to solve those for you. Please let us know by:


8. Think about how you’re feeling now, remember that at the next vote.

Our legislature voted this into effect. We called, we emailed, and we visited – all to let them know what we need. If you feel that this good for you, remember that, and perhaps send a note to let them know. You might want to vote for your representatives again. If you feel they didn’t listen to you or didn’t represent you well by voting for this, you should send them a letter to let them know. However, you also have the power to change who is in office. Make sure you place an informed vote. See how your local Representatives or Senators voted on Act 775.

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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Upholding the ADA: Living in the Community

Everyone on the CES Waiver, all of you who enjoy having your loved one living near to you instead of in an institution, & providers who support waiver services:

The ability to live freely in the community has been questioned, according to this article, by a top official with the US Department of Health and Human Services, enough to alarm a group of Congressmen. They formed a bipartisan group and took action.


“The lawmakers said they were told that Lazare said she believed the Supreme Court came to the wrong conclusion in the landmark Olmstead v. L.C. case, which affirmed the right of people with disabilities to access community-based living, and that she prefers segregated and institutional settings. In addition, Lazare reportedly said she believed that a federal Medicaid rule outlining what types of settings qualify as community-based should be revisited, according to a letter from Reps. Jan Schakowsky, D-Ill., Gregg Harper, R-Miss., and Jim Langevin, D-R.I.”

Even when things are quiet in the news, someone in power is thinking these things. Maybe they want to save money, or possibly they think less of people with disabilities. Some in power think they have the means to change these protections. We need to always be communicating to our legislators why we want to live in the community or why we want our loved ones out in the community instead of institutions. We need to know our rights and assert them!

Laws that protect people with disabilities

The ADA National Network

Take a moment to make our Congressmen understand how much living in the community means to us. They are the ones who would have to fight a battle that threatens the ADA.

Contact our Arkansas Congressmen!!

Contact any US elected official!

Take Action: June Legislative Committee Meetings

Update (6/5/18): The rules were approved in the Public Health joint committee and will be next voted upon by the ALC Rules & Regulations Joint Committee on Tuesday, June 12 at 1pm in Little Rock. Contact the committee members. Read below to catch up if you wonder which issues are being voted upon.


Original post: MSL has announced on Facebook that this committee meeting would be occurring on June 4th and that it was moved to Jonesboro. Here is some information to help you to understand what’s happening when, and what you need to do.

If you’re lost and need to catch up, you can watch a video we previously released on the subject.

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Several important issues are being discussed that affect children as well as adults:

Here is how you can contact the people of the Public Health Committee:

PASSE – Phase II Updates

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DHS recently released a new presentation with updates to their work on the PASSEs Phase II. This includes milestones and network adequacy standards, and where they are with Independent Assessments.

They did listen to our concern that people have been enrolled before the networks were adequately formed, and they will hold open enrollment in October of 2018.

Catch up on all previous PASSE posts!

Your Rights When You Appeal

We appeared live on Facebook with Managing Attorney Thomas Nichols from Disability Rights Arkansas to answer your questions and discuss your rights when appealing a Medicaid decision. Watch because this video is full of helpful information from beginning to end!

Thomas refers to a presentation with more information on appeals that you might want to view.

When filing an appeal, you have resources in the state to help you. Even if you can’t afford it, you can find quality lawyers or law advice. Make sure to contact:

Also, we reference Rights that we listed in a previous post. Make sure to read it.