The legislature won’t take up the contentious Community First Choice Option (CFCO) until the next legislative session at the earliest, the head of the Department of Human Services (DHS) told a legislative committee today.

Director John Selig said DHS is withdrawing the proposed regulation from legislative review because of questions from the federal agency responsible for Medicaid, as well as questions from legislators.


The first set of questions are technical in nature, Selig told me. The CFCO guarantees the choice of seeking for home or community-based care for several different populations of people served by Medicaid who, under current rules, are guaranteed care in an institutional setting (think a nursing home or one of the state’s Human Development Centers). Those populations include the elderly, physically disabled persons and developmentally disabled persons. CFCO guarantees the same level of care to each of these three groups.

The state wants to treat each group a bit differently in terms of what services it guarantees and how they’re provided. Selig said it was doubtful that the federal Centers for Medicare & Medicaid Services (CMS) would have any problem with that. Again, these are technical and fairly minor questions that concern how best to implement the program, not its overall effectiveness. (Still, it is important that CMS is on the same page as DHS as the regulations move forward.)


The second set of questions are of a very different nature. A number of legislators have made it clear they’re unfriendly to CFCO — some because it’s a part of the Affordable Care Act, some because nursing homes and Human Development Centers see it as a threat to their budgets. Two Republicans, Rep. Nate Bell and Rep. David Meeks, have been vocal in raising their doubts, but lawmakers on the Democratic side of the aisle have also worked against the measure.

Selig did not say this, but it seems to me that the delay of the CFCO is much more about the second set of questions than the first. It’s more about political considerations than the technicalities of implementation. The delay amounts to a victory for those opposed to the CFCO, including the Arkansas Health Care Association, Americans for Prosperity and legislators with a stake in preserving the status quo when it comes to long-term institutional care.


Delaying a decision until the session begins means that the CFCO is more likely to get lost in the shuffle of legislation during the session. Because the CFCO isn’t a law — it’s a regulation issued by a state agency — it only requires review by legislative committee, not passage through the full General Assembly. That would be easier to accomplish during the interim than during the session.

It also means that a class-action lawsuit of the some 3,000 parents of developmentally disabled children who’d benefit from the CFCO is going to keep moving forward. Those families are currently on a waiting list to obtain home/community-based care under an existing (but capped) waiver program; some have been waiting for as long as eight years.