Pulaski County Circuit Judge Wendell Griffen has suspended an emergency rule put in place Friday by the Arkansas Department of Human Services regarding elderly and disabled Medicaid beneficiaries who receive attendant care services at home.

On Monday afternoon, Griffen granted a temporary restraining order requested by seven disabled plaintiffs who are suing DHS over the agency’s allocation of attendant care hours. He scheduled a hearing for Wednesday, May 23 at 10 a.m. Here’s Griffen’s order.

The plaintiffs, who are represented by Legal Aid of Arkansas, say DHS effectively cut their benefits in 2016 when it began using an algorithm to determine how many hours of care each beneficiary on the ARChoices waiver program should receive. (Under the waiver, Medicaid pays for an attendant to assist with daily activities such as bathing, cooking and cleaning; at-home services are typically much cheaper than institutionalized care in a nursing home.) The plaintiffs argued DHS did not follow state law regarding the rule-making process when it began allocating hours based on an algorithm.

Last Monday, Griffen agreed and granted a permanent injunction against DHS. But the next day, the agency sought to promulgate an emergency rule to replace the one the judge had just enjoined — meaning the algorithm would remain in place. DHS received permission from a legislative body to implement the emergency rule on Friday.


That prompted the plaintiffs to seek a restraining order against the new emergency rule as well. DHS says the emergency rule is necessary, arguing that it will be out of compliance with federal Medicaid authorities otherwise. It claims services for beneficiaries (such as the plaintiffs) could be threatened if it has no emergency rule that lets it continue to use its algorithm to allocate hours.

A sharply worded brief from Legal Aid attorneys last week said that was “alarmist claptrap” and argued DHS could simply use the method of allocating hours it had used before the algorithm — an individualized assessment from a nurse.