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A judge has set a hearing for 9:30 a.m. July 17 on a request to halt the enforcement of a new rule that the state Department of Human Services uses to deny Medicaid coverage of day-treatment services for some developmentally disabled children in Arkansas.

A lawsuit was filed June 14 in federal court in Little Rock on behalf of three facilities that provide the services for eligible children up to age 6. Parents of six affected children between the ages of 6 months and 3 years are also plaintiffs.

The facilities -- in El Dorado, McGehee and DeWitt -- say the law doesn't allow the children to be denied mandatory services simply because they fail to qualify for other services. Their attorney, Martin Bowen of North Little Rock, says the rule denies Medicaid eligibility for day services unless the children's primary-care physician also prescribes occupational therapy, physical therapy, speech therapy or nursing services.

Bowen said the rule went into effect July 1, 2018, for new applicants, and went into effect Monday for children who were already in the program when the rule took effect last summer but were grandfathered in. He said it deprives hundreds of Medicaid-eligible children from getting the services ordered by their doctors.

In a response to the lawsuit filed Monday, the department denied that the Early Intervention Day Treatment Program eligibility requirement that the beneficiary have a documented disability or delay, as well as a documented clinical need for physical therapy, occupational therapy, speech therapy, or nursing services, violates the Early and Periodic Screening, Diagnosis and Treatment provisions of the Medicaid Act, as the plaintiffs contend.

Attorney Richard Rosen argued on behalf of the department that the day-treatment program was anticipated and defined in Act 1017 of 2013 as a successor program to the former Child Health Management Services program and the former Developmental Day Treatment Clinic Services program, which legislators wanted to be replaced by a single new program.

Rosen noted that the former Child Health program "operated in a segregated preschool setting with eligibility based upon the child's medical needs such as nursing care, physical therapy, speech therapy or occupational therapy," and generally served only children who were eligible for Medicaid and, rarely, children without a developmental delay or chronic medical condition.

He said the other former program, the Developmental Day Treatment Clinic Services program, also operated in a segregated preschool setting for children who qualified upon assessment, but that the children weren't required to demonstrate "a clinical need for medical services" to be eligible for day treatment services.

The new day-treatment program, Rosen said, "provides a combination of day habilitation services coupled with clinical therapy or nursing services" based on a written individual treatment plan.

Since Aug. 1, he said, the day-treatment eligibility criteria includes a documented disability or delay based upon a standardized evaluation and a criterion-referenced evaluation, as well as a documented medical need for at least one therapy or for nursing services.

Through Rosen, the state is asking U.S. District Judge James Moody Jr. to deny the plaintiffs' request for a preliminary injunction because, he said, the plaintiffs aren't likely to succeed on the merits of their case and lack standing to challenge the day-treatment rule that was approved by the federal Centers for Medicare and Medicaid Services.

The day-treatment plan, the department contends, was implemented in 2018 and approved by the federal agency. It says the notice of rule-making and public comment periods, followed by legislative review, were all properly performed pursuant to the state Administrative Procedures Act.

Metro on 07/03/2019

Print Headline: Request to halt rule on Medicaid services for kids set for court


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