Are DHS DDS Policies 1089A and 1089B valid 'rules' under the Arkansas APA, and how does DDS decide whether a county is 'underserved' for developmental disability services?

Plain-English summary

State Representative Dan Sullivan asked AG Leslie Rutledge four questions about how the DHS Division of Developmental Disabilities Services (DDS) administers the state's program for nonresidential developmental disability services and early intervention day treatment for children. The statutes in question are Ark. Code Ann. § 20-48-105 (services to adults with developmental disabilities) and § 20-48-1101 et seq. (early intervention day treatment for children).

Question 1: Are DDS Policy Nos. 1089A and 1089B "rules" under the Arkansas Administrative Procedure Act (APA)? If so, has DHS properly promulgated them if there is no record of filing with the Secretary of State?

The first part is yes. The APA defines a "rule" primarily as "an agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice of an agency" (Ark. Code Ann. § 25-15-202(9)(A)). Policies 1089A and 1089B implement Ark. Code Ann. § 20-48-105 and § 20-48-1101 et seq., so they fit the definition.

The second part depends on a factual question the AG cannot resolve. Ark. Code Ann. § 25-15-204(h) requires "substantial compliance" with the APA's prescribed procedures: "No rule adopted after June 30, 1967, is valid unless adopted and filed in substantial compliance with this section." Section 25-15-204 establishes notice, public comment, and filing requirements, including filing with the Secretary of State. A proposed rule must be filed with the Secretary of State (§ 25-15-204(e)(1)(A)), and a final rule is effective ten days after filing (§ 25-15-204(g)(1)(A)). If there is no record of any filing with the Secretary of State, it seems unlikely the rule was filed in substantial compliance, but whether substantial compliance was achieved is a factual question outside the AG's role.

Question 2: What does "underserved" mean as used in §§ 20-48-105 and 20-48-1101 et seq.?

The legislature did not define the term, and the AG cannot supply a controlling definition where the legislature and the courts have not. Generally, "underserve" means "[t]o supply with insufficient services, especially social and health services" (American Heritage Dictionary). In context, the relevant services are services to adults with developmental disabilities and services for children as addressed in the cited statutes.

Question 2(a): Is DDS required to use certain criteria to determine that an area is "underserved"?

The criteria can be gleaned from the relevant statutes. The legislative intent expressed in § 20-48-105(a)(1) and § 20-48-1101 is to "avoid unnecessary duplication of costs and services" and "unnecessary expansion in Medicaid costs and services." So the availability or sufficiency of the relevant services will be the guiding criteria, with that legislative intent in mind.

Question 2(b): Is DDS required to publish the criteria? If not, how does the public determine consistency in DDS's determinations?

There is no publication requirement. The criteria are in the statutes. DHS is not required to publish the application materials it receives, but the applications themselves are generally public records under the Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-105(a)(1)(A). On the second part (how the public can verify consistency), there is no controlling state law.

Question 2(c): Must DDS determine a county is underserved before accepting applications, or can it make the determination on receipt?

Either order works. The AG concluded that DDS may determine a county is "underserved" before or after receiving an application. The underserved designation is a prerequisite to expansion of services under § 20-48-105 or § 20-48-1101 et seq., but an application is not a prerequisite to making the determination.

Question 3: If DDS finds a county is underserved, on what basis can DDS refuse to license an entity not on the order-of-preference list?

The basis is in Ark. Code Ann. § 20-48-105(c) (for adults) and Ark. Code Ann. § 20-48-1105(a) (for children). These statutes establish the "order of preference" for licensing. They do not contemplate consideration of any entity that is not listed in the order of preference. So an entity not on the list can simply be refused.

Question 4: What do "specific category of nonresidential services" and "specific category of early intervention day treatment" mean (Ark. Code Ann. §§ 20-48-105(b)(1)(A) and 20-48-1104(a)(2))? Do they include modality or method, or only type of service?

The "specific category" language refers to services "currently offered" to adults and children. The statutes do not refer to the "modality" or "method" of providing services. The AG declined to opine more specifically on the meaning of "specific category" beyond noting it is service-type, not service-method.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does it mean for a DDS policy to be a "rule" under the APA?
It means the agency had to follow the APA's process for adopting it: notice to the public, comment period, and filing with the Secretary of State. Failing those steps means the rule may not be valid (Ark. Code Ann. § 25-15-204(h)). It also means the rule has the force of law if validly adopted.

Can DHS rely on Policy 1089A or 1089B if it was never filed with the Secretary of State?
Probably not, but the AG didn't say so categorically because substantial-compliance is a fact question. If a court found no substantial compliance, the policy would be invalid under the APA. DHS should ensure both policies are properly filed if it wants to rely on them.

Why isn't there a definition of "underserved"?
Because the legislature didn't write one. The AG noted that this office cannot supply a controlling definition where the legislature and the courts have not. So DDS has discretion to operationalize the term, bounded by the legislative intent to avoid unnecessary duplication and expansion of services.

What is the "order of preference"?
A statutory list (in § 20-48-105(c) for adults, § 20-48-1105(a) for children) of the entities DDS must consider when expanding services in an underserved county. The list operates as an exclusive licensing pool: an entity not on the list cannot be considered, so DDS can refuse on that basis alone.

Can a service provider apply for a license before DDS designates the county underserved?
The provider can apply, but DDS may make the underserved determination on receipt of the application or beforehand. The opinion's holding is that the order of operations is flexible, not that DDS has to refuse pre-designation applications.

Does "specific category" cover Medicaid waivers and the like?
The opinion did not address Medicaid waivers. It said only that "specific category" refers to service type (the substance of the service offered to adults or children), not modality (how the service is delivered). If a question arises about whether a particular method falls within a "specific category," the answer turns on the nature of the underlying service, not on how it's provided.

Background and statutory framework

The Arkansas APA, Ark. Code Ann. § 25-15-201 et seq., governs how state agencies adopt and amend rules. Section 25-15-202(9)(A) defines "rule." Section 25-15-204 sets out the procedures for rule adoption (notice, public comment, filing with the Secretary of State). Section 25-15-204(h) requires substantial compliance with those procedures for any rule adopted after June 30, 1967.

The substantive program statutes are Ark. Code Ann. § 20-48-105 (nonresidential services for adults with developmental disabilities) and Ark. Code Ann. § 20-48-1101 et seq. (early intervention day treatment for children). Both contain "underserved" county provisions and "order of preference" mechanisms for licensing service providers in underserved areas. Section 20-48-105(c) governs adults; § 20-48-1105(a) governs children.

The Arkansas FOIA, Ark. Code Ann. § 25-19-105(a)(1)(A), is referenced for the rule that the underlying applications received by DDS are public records (subject to standard FOIA exemptions).

Citations

Statutes:

• Ark. Code Ann. § 20-48-105 (Repl. 2018) (nonresidential developmental services for adults)
• Ark. Code Ann. § 20-48-1101 et seq. (Repl. 2018) (early intervention day treatment for children)
• Ark. Code Ann. § 20-48-1104(a)(2) (specific category of early intervention day treatment)
• Ark. Code Ann. § 20-48-1105(a) (order of preference for children's services)
• Ark. Code Ann. § 25-15-202(9)(A) (Supp. 2017) (APA definition of "rule")
• Ark. Code Ann. § 25-15-204 (Supp. 2017) (APA procedures for rule adoption)
• Ark. Code Ann. § 25-19-105(a)(1)(A) (Supp. 2017) (FOIA, public records)

Prior opinions referenced:

• Ops. Att'y Gen. 2012-091, 2011-166 (substantial compliance is a fact question)
• Op. Att'y Gen. 2018-080 (AG cannot supply a controlling definition where legislature and courts have not)
• Op. Att'y Gen. 2019-029 (this office's policy of declining to make factual determinations in opinions)

Other authority:

• The American Heritage Dictionary of the English Language 1889 (2011) (definition of "underserve")
• DDS implementing policies, available at https://humanservices.arkansas.gov/about-dhs/ddds (the agency's own definitions of "underserved")

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2019-039
March 26, 2020

The Honorable Dan Sullivan
State Representative
P.O. Box 19406
Jonesboro, AR 72403-2406

Dear Representative Sullivan:

This is in response to your request for an opinion on the following questions concerning nonresidential developmental services for adults and children with developmental disabilities:

1. Are Policy Nos. 1089A and 1089B considered rules under the Arkansas Administrative Procedure Act ("APA")? If so, has DHS properly promulgated Policy Nos. 1089A and 1089B in accordance with the APA, Arkansas Code § 25-15-201 et seq., if there is no record of the filing with the Secretary of State?

2. What does the term "underserved," as used in Arkansas Code §§ 20-48-105 and 20-48-1101 et seq., mean?

a. Is DDS required to use certain criteria to determine that an area is "underserved?"

b. Is DDS required to publish the criteria it uses to make a determination that a county is underserved, including the information received through its application process? If not, how does the public determine the consistency with which DDS makes a determination that a county is underserved?

c. Is DDS required to determine a county is underserved prior to accepting applications from providers, or is DDS required to make that determination upon receipt of an application from a provider desiring to provide services in a county?

3. If DDS determines that a county is underserved, on what basis can DDS refuse to issue a license to an interested entity to provide the service if the entity is not one of those listed in the order of preference?

4. What do "specific category of nonresidential services" and "specific category of early intervention day treatment" mean as used in Arkansas Code §§ 20-48-105(b)(1)(A) and 20-48-1104(a)(2)? Does one or both of those terms include the modality or method of providing services or only a particular type of service?

RESPONSE

The answer to the first part of Question 1 is "yes." The answer to the second part depends on whether the policies were "adopted and filed in substantial compliance with" the APA. That factual question cannot be definitively decided in the context of an opinion from this office. In response to Question 2, there is no statutory definition of "underserved." But the criteria to determine if a county is underserved can be gleaned from the relevant statutes. DDS can determine that a county is "underserved" either before or after an application from a provider. There is no controlling state law on how to assess the consistency in DDS's determinations. In response to Question 3, the statutes that establish the "order of preference" do not contemplate consideration of any entity that is not listed in the preferential order. In response to Question 4, the term "specific category" relates to services that are currently offered to adults and children. The statutes do not refer to the modality or method of providing services.

DISCUSSION

Question 1: Are Policy Nos. 1089A and 1089B considered rules under the Arkansas Administrative Procedure Act ("APA")? If so, has DHS properly promulgated Policy Nos. 1089A and 1089B in accordance with the APA, Arkansas Code § 25-15-201 et seq., if there is no record of the filing with the Secretary of State?

The APA requires state agencies to follow certain procedures when adopting or amending a "rule," which is defined primarily as:

... an agency statement of general applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice of an agency and includes, but is not limited to, the amendment or repeal of a prior rule.

The policies you have referenced plainly implement Ark. Code Ann. §§ 20-48-105 and § 20-48-1101 et seq. (Repl. 2018). Accordingly, they are "rules" as defined by the APA. The answer to the first part of this question is, therefore, "yes."

With regard to the second part of this question, the APA requires "substantial compliance" with the prescribed procedures for rules adopted after June 30, 1967: "No rule adopted after June 30, 1967, is valid unless adopted and filed in substantial compliance with this section." The referenced "section", Ark. Code Ann. § 25-15-204, establishes procedures for the adoption of rules that include notice, public comment, and various filing requirements, including filing with the Secretary of State. A proposed rule must be filed with the Secretary of State. And a final rule is effective ten days after it is filed with the Secretary of State (unless the rule or another law specifies a later date).

If there is no record of any filing of a rule with the Secretary of State, then it seems unlikely the rule was "filed in substantial compliance with" section 25-15-204. But it is a question of fact whether an agency substantially complied with the requisite procedures. I am, therefore, unable to opine further, as I cannot resolve fact questions when issuing official opinions.

Question 2: What does the term "underserved," as used in Arkansas Code §§ 20-48-105 and 20-48-1101 et seq., mean?

There is no statutory definition of "underserved." And I cannot provide a controlling definition. The term "underserve" is defined generally, however, as "[t]o supply with insufficient services, especially social and health services." In the context of the statutes in question, the relevant services are services to adults with developmental disabilities and services for children as addressed therein.

Additionally, the agency charged with administering these laws, the Department of Human Services' Division of Developmental Disabilities Services ("DDS"), has addressed the determination of a county's "underserved" status in its implementing policies. You will find the relevant language under "definitions" in each policy manual.

Question 2(a): Is DDS required to use certain criteria to determine that an area is "underserved?"

The guiding criteria can be gleaned from the relevant statutes. As indicated above, the term "underserved" in this context relates to the developmental disabilities services and other services that are the subject of Ark. Code Ann. §§ 20-48-105 and 20-48-1101 et seq. (concerning such services for adults and children). The legislature has expressed its general intent in this regard to "avoid unnecessary duplication" or "expansion" of services. So the availability or sufficiency of the relevant services will be the guiding criteria, bearing in mind the stated intent regarding duplicating or expanding services.

Question 2(b): Is DDS required to publish the criteria it uses to make a determination that a county is underserved, including the information received through its application process? If not, how does the public determine the consistency with which DDS makes a determination that a county is underserved?

The answer to the first part of this question is "no," there is no such publication requirement. As explained above, the criteria to determine if a county is underserved are found in the relevant statutes. And DHS is not required to publish information it receives through applications to expand services. However, the applications themselves are generally subject to the Arkansas Freedom of Information Act, which makes non-exempt "public records" open to inspection and copying by Arkansas citizens.

There is no controlling state law on the second part of this question.

Question 2(c): Is DDS required to determine a county is underserved prior to accepting applications from providers, or is DDS required to make that determination upon receipt of an application from a provider desiring to provide services in a county?

DDS can determine that a county is "underserved" either before or after an application from a provider. The designation of a county as underserved is a prerequisite to any expansion of services under Ark. Code Ann. § 20-48-105 or § 20-48-1101 et seq. But an application from a provider is not a prerequisite to DDS's determination that a county is underserved.

Question 3: If DDS determines that a county is underserved, on what basis can DDS refuse to issue a license to an interested entity to provide the service if the entity is not one of those listed in the order of preference?

The basis for such refusal is Ark. Code Ann. § 20-48-105(c) (in the case of an application for expansion of services to adults) and Ark. Code Ann. § 20-48-1105(a) (in the case of an application for expansion of services for children). These statutes establish the "order of preference" referenced in your question. And they do not contemplate consideration of any entity that is not listed in the order of preference.

Question 4: What do "specific category of nonresidential services" and "specific category of early intervention day treatment" mean as used in Arkansas Code §§ 20-48-105(b)(1)(A) and 20-48-1104(a)(2)? Does one or both of those terms include the modality or method of providing services or only a particular type of service?

The "specific category" language in question relates to services that are "currently offered" to adults and children. And as stated above in response to your second question concerning the meaning of the term "underserved," the relevant services in this regard are services to adults with developmental disabilities and services for children as addressed in Ark. Code Ann. § 20-48-105 and § 20-48-1101 et seq.

I cannot further opine on the meaning of the undefined term "specific category," other than to note that the statutes do not refer to the "modality" or "method" of providing services.

Sincerely,

LESLIE RUTLEDGE
Attorney General