On Thursday, Pulaski County Circuit Judge Wendell Griffen heard arguments from the Arkansas Department of Human Services and Legal Aid attorneys representing seven plaintiffs who allege DHS failed to follow state rulemaking requirements when the agency devised a new method of allocating home care hours to certain disabled Medicaid beneficiaries.

Both parties are seeking summary judgment, and the judge said a written ruling would come within the next ten days. Griffen also denied an attempt by the nonprofit Disability Rights Arkansas to intervene in the case. (Both Legal Aid and DHS had opposed DRA’s bid for intervenor status.)


The case concerns a Medicaid waiver program called ARChoices — created by merging two previously distinct waiver programs, one for physically disabled beneficiaries and one for the elderly — to receive services in their homes, rather than in an institution such as a nursing home. Such “home and community-based services” are typically much cheaper than institutional care and are usually preferred by recipients.

In 2016, DHS began using a new method of allocating service hours to recipients of the program. Rather than a subjective assessment performed by a nurse, the agency began using a computer algorithm to determine the number of “attendant care” hours an individual needed per week. (Attendant care includes helping beneficiaries bathe, dress themselves, cook and clean, use the bathroom and other basic activities of daily life.)


DHS said in a letter to beneficiaries that they would “continue to have the same services.” Yet soon thereafter, many found their hours severely cut from the number they received previous years, as Jacob Rosenberg detailed in an article for the Arkansas Times in October. DHS has said some beneficiaries saw their hours increase under the new rule, while others saw their hours decrease. Beneficiaries sued in state and federal court. (The Verge, a national tech and science news website, took a deep dive recently into the ARChoices issue that explained the technology behind the algorithm and profiled one woman whose hours were slashed after it went into effect.)

The plaintiffs — several low-income people with profound physical disabilities such as cerebral palsy and multiple sclerosis — argue DHS did not follow the proper process for rulemaking, which must include legislative review and a public comment period. They want the new rule enjoined and attendant care hours returned to 2015 levels for all ARChoices beneficiaries who have seen their hours cut since the new methodology was implemented.


DHS says it followed the proper rulemaking process. But in its recent filings, it also argues that the plaintiffs’ requested injunction would spell the end of ARChoices itself, because such waiver programs require approval from federal Medicaid authorities at CMS, the Center for Medicare and Medicaid Servies. In a brief in support of its motion for summary judgment, the agency says:

DHS cannot currently provide Medicaid waiver services to Medicaid participants, including attendant care, under the former waivers because the waivers were either terminated or now operate under new terms and conditions, as currently approved by CMS. Consequently, judicial invalidation of the current ARChoices waiver rule would be catastrophic for the approximately 8,300 participants currently receiving ARChoices services, including the Plaintiffs. 

DHS further argues that the separation of powers doctrine would prevent the judge from tailoring his order to prevent such an outcome, in the event he sides with the plaintiffs. “As already explained in the arguments above, a Circuit Court is without authority to fashion a remedy that directs a state agency to create a new public benefits program, revive a terminated public benefits program, or order the promulgation of a rule,” the DHS brief states.

If Griffen does find in favor of the plaintiffs, DHS argues, he should “deny the injunctive relief requested so the agency may continue to provide Medicaid [home and community-based services] waiver services to the over 8,300 disabled and elderly Arkansans through the approved ARChoices waiver.

Legal Aid attorney Kevin De Liban said the DHS argument was unfounded. “I don’t see any basis for DHS’ position. We’re not asking the judge to invalidate the AR Choices program,” he said — only the rule that created the new, algorithm-based methodology for allocating hours. There’s nothing in the state’s waiver from federal CMS that says the state agency has to stop providing services just because this rule is invalidated, De Liban argued.


“I think that would be purely a punitive choice on their part … and that would be absolutely disastrous for the people who depend on those services,” he said, arguing that the state could merely return to its method used before January 2016, in the previous waiver programs.

Here are the dueling briefs filed by both parties in advance of Thursday’s hearing:

*Brief in support of plaintiffs’ motion for summary judgment
*DHS cross-motion for summary judgment
*Plaintiffs’ response to DHS’ motion
*DHS’ reply to plaintiffs’ response

Griffen last year issued a temporary restraining order that applied only to the seven plaintiffs in the case. That order reinstated those specific plaintiffs’ hours to pre-2016 levels but did not affect other ARChoices beneficiaries. If the hour-allocation rule itself is enjoined, though, it would apply everyone in the program. De Liban said the outcry over the change has been enormous. “At Legal Aid we’ve had roughly 150 of these cases over the last two years, he said.”

After Griffen issued the temporary restraining order, the state appealed to the state Supreme Court, but the justices affirmed the circuit judge in December. But even if the plaintiffs succeed, the case at hand only concerns the means by which the rule was created — not the underlying issue of the algorithm itself. De Liban acknowledged that DHS could create a new rule that followed the proper process. But, he said, it would receive vastly more scrutiny the second time around.

“They can do the process differently and arrive at the same result … but this time it’s not going to pass in the dead of night,” De Liban said.