Legal Aid of Arkansas, which represents seven disabled plaintiffs who say their at-home attendant care hours were unfairly cut by the Arkansas Department of Human Services, has again filed suit against DHS over the legitimacy of its rule-making process for the home care waiver program.

The plaintiffs are asking Pulaski County Circuit Judge Wendell Griffen for an ex-parte order enjoining DHS from implementing an emergency rule approved by a legislative body Friday morning. The state agency says the emergency rule is necessary for it to serve beneficiaries. A brief for the plaintiffs calls that argument from DHS “alarmist claptrap.”

On Monday, the plaintiffs scored a victory when Griffen ordered DHS to stop using a computer-based method of assigning attendant care hours to elderly and disabled Medicaid beneficiaries in the ARChoices program. DHS began using an algorithm in 2016 to determine the weekly hours each beneficiary received, rather than using the discretion of a nurse to assess beneficiaries’ level of need, as it had done previously. The plaintiffs argued DHS had failed to comply with the state Administrative Procedures Act when it created the new means of assigning hours. Though DHS insisted it had gone through the proper rule-making process, Judge Griffen agreed the agency had failed to inform the public of the “specific nature and significance of the change” when it rolled out the algorithm.

On Friday, however, DHS got approval from the Arkansas Legislative Council to proceed with an emergency rule that would replace the one Griffen enjoined on Monday. The emergency rule is much the same as the old one, as a DHS spokesperson explained earlier this week. In other words, the algorithm would remain in place.

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DHS says the emergency rule is necessary for it to continue providing services. ARChoices was created under a waiver from the federal Center for Medicare and Medicaid Servies, or CMS, the agency that administers Medicaid nationally. DHS maintains that the terms of the CMS waiver obligates it to stick with its existing algorithm; the state agency says it can’t assess new beneficiaries or re-assess existing beneficiaries unless it has a rule in place.

“We have individuals who are coming into the program or who are due for [annual] reassessment and … barring promulgation, we wouldn’t be able to do that. … The CMS waiver requires assessment,” DHS spokesperson Marci Manley said Tuesday.

But Legal Aid attorney Kevin DeLiban said Tuesday that was untrue. “There’s nothing that says they have to stop services if they can’t use the RUGs algorithm,” he said. (The algorithm used by DHS sorts individuals into “resource utilization groups,” or “RUGs.”)

Legal Aid’s new challenge to the emergency rule concerns the question of whether the RUGs methodology of assigning hours is so essential to the CMS waiver that changing it would run afoul of the federal authorities. The plaintiffs’ brief says there’s nothing in the waiver that suggests such a thing.

“There is no statement that simply states that attendant care services are determined according to the RUGs methodology, and, to the extent that any stretched inferences are available, there is no description of the RUGs methodology that would provide sufficient specificity so as to endanger a whole program if the RUGs methodology were eliminated,” it declares. The plaintiffs also rejects DHS’ assertion that its federal matching funds would be threatened if it abandons the algorithm.

Therefore, the brief argues, there is no real emergency and DHS’ emergency promulgation is ultra vires, or in excess of the agency’s legal authority:

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Now, DHS purports to use the emergency rulemaking authority found in Ark. Code Ann. § 25-15-204(c), which allows for emergency rulemaking where there is “imminent peril to the public health, safety, or welfare or compliance with a federal law or regulation requires adoption of a rule upon less than thirty days’ notice…” Its claim here rests on the same faulty premises it advanced in its summary judgment briefing when trying to convince this Court not to grant injunctive relief. The alarmist claptrap raised then is now parroted on page 22 of the emergency There are two key premises to DHS’s justification of the emergency. First, DHS states that the inability to use RUGs methodology threatens its ability to provide services to new applicants and existing beneficiaries. Second, DHS states that the inability to use RUGs methodology threatens its federal financial participation funding for the program. Both of these run counter to fact and betray contemptible intellectual dishonesty.