In a strongly worded bench ruling Wednesday, Pulaski County Circuit Judge Wendell Griffen enjoined an emergency rule promulgated last week by the Arkansas Department of Human Services, calling it “a deliberate and calculated disobedience” of the permanent injunction he delivered last week. The judge found the agency in contempt for its actions.
The emergency rule concerned the allocation of attendant care hours for disabled and elderly Medicaid beneficiaries in the
On May 14, Griffen sided with the plaintiffs and ordered DHS to stop using the algorithm to allocate hours unless it properly promulgated a new rule — meaning the rule would undergo public comment and a legislative review process. However, DHS responded by seeking an emergency rule instead, claiming that the expedited process was necessary for it to avoid disrupting services to beneficiaries. A legislative panel approved the emergency rule on Friday, May 18, thus reinstating the algorithm. That prompted Legal Aid to again seek redress from Griffen.
On Wednesday, the judge gave the plaintiffs what they sought. The emergency rule, he said, amounted to “an attempt to circumvent the injunction” he had issued on May 14:
The question, however, is whether or not the emergency rule promulgated on May 18, based upon a presentation made by the agency on May 17, 2018, is different in substance from the rule that was the subject matter of this lawsuit in January 2017.
The Court finds it is not. This is the same old rule offered, presented to the legislature almost a year-and-a-half after it was initially challenged by the plaintiffs in this case for not being in compliance, promulgating compliance, with the Administrative Procedures Act [the state law regarding rulemaking]. One does not comply with the notice and procedures requirements of the Administrative Procedures Act by presenting the same kind of rule that has been judicially determined to be non-compliant and use that subsequent presentation as proof of an emergency.
DHS had said its use of the emergency rulemaking process was justified because it had to have a replacement rule to stay in compliance with federal Medicaid authorities.
But Kevin DeLiban, a Legal Aid attorney representing the plaintiffs, said later on Wednesday that DHS’ argument was wrong. “There’s nothing in the [ARChoices] waiver that says DHS cannot just have its nurses, who assess people, to also make decisions about how much attendant care somebody should receive. And there was nothing in the waiver itself that says DHS has to use [the algorithm] to allocate attendant care hours.”
Griffen agreed. DHS failed to show any evidence that “the nurse’s assessment process that existed between 2013 and the end of 2016 has been declared unacceptable by
… CMS,” he said. “Put simply, the emergency rule is an emergency only because the agency chose to call it that. It’s a manufactured emergency, emergency by design.”
The judge especially took issue with DHS’ insistence that the emergency rulemaking was a good-faith effort to follow his previous order enjoining the agency from using the algorithm.
“The agency filed notice that it was complying with this court’s order which permanently enjoined it from using RUGs methodology by promulgating an emergency rule that uses RUGs methodology,” he said. (The algorithm allocates hours by sorting beneficiaries into “resource utilization groups,” or RUGs.)
“That statement not only begs credulity, it is manifestly preposterous,” Griffen said. “The Court