PASSE - Disability Rights Arkansas

You have a constitutional right to challenge any decisions that your PASSE makes about your care.

Why would I want to file an appeal?

Denied/insufficient benefits
Whenever the PASSE authorizes a plan of care, you have a right to appeal the contents of that plan if you believe it fails to adequately meet your needs.
You can also appeal if you or one of your providers has requested something that was later denied by your PASSE.
Grievance/complaint wasn’t resolved in your favor
If your PASSE has done something that impacts your services but lacks the weight of official action on their part, then this is the type of thing that should be addressed through the grievance process.
These will be the types of issues that often arise from inaction on the part of the PASSE.
These issues are not typically accompanied by formal notice.
How they resolve your grievance or complaint does count as an official action, and you can appeal if that does not end in your favor.

Where do I appeal?

Each PASSE is required to explain the process in their member handbooks/manuals.
An explanation of your appeal rights must be included with any notice of action.
These forms usually say “notice of action” somewhere on the first page.
These forms will include an email address or physical address where you can send your appeal.
Just because a notice of action is required, doesn’t mean you will get one because human error is always possible. Nevertheless, your right to an appeal has still been triggered if you have been denied a service or a service has changed due to a decision made by your PASSE.

How do I appeal?

There are no magic words that you have to say. You only have to write a letter or an email saying that you would like to appeal whatever decision you disagree with.
Each PASSE typically requires you to send a copy of the notice of action with your letter. The purpose for this requirement is so that they know what you’re appealing.
Obviously this is not possible if they have acted without providing a notice of action. If that is the case, then simply state that you never received a notice of action with a description of what you’re appealing.

How long do I have to decide to appeal?

Federal law grants you a minimum of 30 days to file your appeal.
Each PASSE has a different deadline, so it is best to consult your member handbook if you are not sure.
The notice of action should include how many days you have to file an appeal.

Do I have to hire an attorney?

You have a right to hire an attorney if you want, but you do not have to.
We are happy to represent you if we feel you have a reasonable case.
You can also call Legal Aid of Arkansas. They are also known as the Center for Arkansas Legal Services depending on which part of the state you live in. You can reach them at (800)-952-9243 or (501)-376-3423.

What happens after I file the appeal?

You should receive a letter from your PASSE acknowledging that they received your appeal.
The timeframe for receiving such a letter will vary depending on the PASSE, so refer to your member handbook for that detail.
That letter will also inform you how long the PASSE will take to review your appeal.
Roughly a month after you file your appeal, you should receive notice of the decision.

Can I continue my benefits during the appeal process?

If you file your appeal within 10 days of the date on your notice of action, then you may request your services continue during the appeal.
If you lose your appeal, then you will owe the PASSE the difference between the cost of the services you received and the cost of the services you would have received had you not appealed.
To continue your benefits during the appeal, you only have to say so in your appeal letter.
If you are appealing the denial of a service that had not started, then this option is not available to you.

What are my options if I lose my appeal?

In the same letter that explains your appeal outcome, you should find instructions for requesting a fair hearing with the Arkansas Department of Human Services (DHS).
You may request that the hearing occur in person or over the phone.
Your deadline to request a hearing will be included in the letter that explains the outcome of the initial appeal.
The deadline will vary depending on which PASSE you have, so be sure to consult your member handbook if it is not included in your letter.
Federal law requires that you are given at least 30 days to request the fair hearing.
Just like the appeal, you have a right to hire an attorney, but you are not required to do so.

What is a fair hearing?

In this instance, it refers to an administrative hearing with the Office of Appeals and Hearings within DHS.
The dynamic will be similar to a traditional trial, but it will be less formal. The normal rules of evidence and procedure will be more relaxed.
Instead of a judge, you will have a hearing officer. This person may have a legal background, but it is not required. The hearing officer will be a DHS employee, and you may also hear them referred to as an administrative law judge.

What happens at the hearing?

The structure will vary a little depending on the hearing officer.
It will always begin by having everyone that may be called to testify swear an oath to tell the truth.
If you have an attorney, then it will more closely follow the procedure that you would find at a conventional trial:
Opening statements by both sides;
Your side questions your witnesses;
The other side cross-examines your witnesses;
The other side calls its witnesses;
You cross-examine those witnesses; and
Closing arguments by both sides.
If you do not have an attorney, you are both your own representative and a witness. As a result, everything you say will be part of the record, so your entire case can simply be your own explanation of what happened.
Their decision will be presumed valid, and it will be up to you to prove why it was not. This can be a failure to follow the right process or an inaccurate interpretation of the facts, but you will want to point to the specific reason their decision was the wrong one.
Whether you have an attorney or not, you are entitled to bring any witnesses or evidence that you feel is relevant.
Be sure to make copies of documents available for the hearing officer and the other side before or during the hearing.
The PASSE will have the opportunity to cross-examine any witness you call, including you, even if you represent yourself, but you will have the same opportunity for their witnesses.
The hearing officer may also question the witnesses.
You are entitled to bring any witness that you feel has relevant information.
You are entitled to bring any evidence that you feel is relevant.
Once both sides have presented their case, the hearing will end
A copy of the hearing officer’s ruling will be mailed to you.

In 2017, the Arkansas legislature approved a new Medicaid program: Provider-Led Arkansas Shared Savings Entities (PASSEs). The purpose was to implement a managed care program, which is basically a private insurance company funded by Medicaid, which is the state-funded insurance program for individuals with low income or disabilities. That means our legislature and governor took public funds that were otherwise used to pay for health care, and they instead used it to fund four private companies in order to pay for the same health care.

The upside for the State has been that the new program’s budget is a predictable lump sum each month regardless of how much care the beneficiaries need. This is possible because the PASSEs are now responsible for individual medical bills, not the state. Meanwhile, the PASSEs make money when those medical bills are less than expected for a given month. Their profits are driven by not spending the full lump sum. Consequently, the proposed upside for the beneficiary is the care coordinator, which is a PASSE employee who drafts a comprehensive plan to make sure that every medical need is covered. Think of it as a customized insurance policy.

Throughout 2018, the PASSEs were still in “Phase I,” which meant they had yet to take over any responsibility for paying the bills or managing care. Their only job was to develop the necessary infrastructure to do so when the time came. Initially there were four of them: Arkansas Total Care, Summit Community Care, Empower Healthcare Solutions, and ForeverCare.

The PASSEs were expected to begin “Phase II” and assume full responsibility on March 1, 2019. In the months before that, ForeverCare informed DHS that they were not ready. They needed more time. Nevertheless, the deadline remained, and on January 16, 2019, ForeverCare dropped out.

When Phase II began on March 1, ForeverCare seemed prophetic. Before the program had been in existence for a full quarter, public outcry had gotten so intense that legislators were threatening to do away with the entire concept. We had a client who drove his child to Little Rock (90 miles each way) twice a week because the local therapists all closed after not receiving payment from the PASSEs. That was a mere six weeks after the PASSEs took over.

In the months since, DHS and the PASSEs claim things have improved. However, it is difficult to know whether that is true or if the beneficiaries have simply resigned themselves to a new normal. After all, the terms of their contracts incentivize a lack of transparency. The monthly payment does not account for any profit, so a PASSE only makes money by denying a service that DHS envisioned paying.

For example, the PASSE will be fined if grievances are not resolved according to their policies. However, the grievances only count if they are filed through the PASSEs themselves, and the PASSEs are responsible for reporting their own grievances to DHS. We have requested those reports, and the results are in the chart below.

PASSE Name	March – June		July – September		Total Appeals	Total Complaints
PASSE Name	Appeals	Complaints	Appeals	Complaints	Total Appeals	Total Complaints
AR Total Care	2	5	21	10	7	31
Summit Community Care	5	12	3	5	8	17
Empower Healthcare Solutions	106	112	49	83	155	195

We’ve had a client who filed 14 complaints in August, and they weren’t to Empower.

That client had to wait six months for the PASSE to acknowledge a prescription. In that time, she had gone through three care coordinators and still did not have an approved plan of care. For six months, her family paid for the necessary item out of their own pockets.

Over the summer, a different client encountered legal problems due to his untreated mental illness. What he needed was therapy. Instead he was sent to jail. We intervened because the prosecutor knew he didn’t belong in jail, but the prosecutor didn’t know how to find another option for him.

We tried to enroll in a PASSE. According to the PASSE Medicaid Manual, enrollment in a PASSE is supposed to be automatic once you are determined eligible based on an independent assessment. It had been months since he was assessed and found eligible. We were told that he had to receive a waiver slot before he could be approved for a PASSE. At that time, he was still on the wait list, a status that notoriously takes several years to change. After consistent advocacy from multiple DRA staff, he was granted an emergency slot. Then we were told that he had to find a provider, while sitting in jail, before he could enroll in a PASSE, an entity responsible for reaching out to providers on his behalf.

Eventually a provider stepped up, and he was able to leave the jail. However, moving into that provider’s facility cancelled his PASSE eligibility. Not long after that, his family moved him out of state to receive care.

Those are merely a few stories that we know about. We’re certain there are countless others. The PASSE contracts have quality assurance measures. However, those measures depend on the PASSEs disclosing their own behavior, which means the health care for thousands of Arkansans is depending on the honor system. There are penalties if the PASSEs underreport or submit false documents, but that assumes the state has a mechanism to know whether the PASSEs are reporting accurate information and adequate staff to investigate the real numbers.

At one time, the General Assembly was considering a return to the old model. We cannot know whether that is the best choice, but we don’t have to know much to acknowledge a desperate need for accountability. Lives are on the line.

Mitchell Harlan is an advocate with Disability Rights Arkansas. Email him at mharlan@disabilityrightsar.org.