ALC Rules: Jan. 15, 2026

Representative Matthew Shepherd The Administrative Rules subcommittee of the Arkansas Legislative Council will come to order. I’d like to remind those that wish to comment on a rule to go ahead and sign in. Be sure to specify the rule on which you wish to comment and then we’ll be taking up those sign up sheets momentarily. Co-chair, any comments before we get started? All right, we’ll move into our agenda.

 First, we’ll take up item B. These are the agency’s rules for the month. And first up, we have at B1, Department of Commerce, State Insurance Department. If their representatives will come to the table. You may have a seat. And if each of you will introduce yourself, you may present the rule. 

Mel Anderson Mel Anderson, Deputy Commissioner for Financial Regulation, Arkansas Insurance Department. 

Representative Matthew Shepherd Yeah, there you go.

Amanda Rose Amanda Rose, Arkansas Insurance Department, Associate Counsel. 

Chris Irwin Chris Irwin, Chief Analyst, Arkansas Insurance Department. 

Representative Matthew Shepherd All right, you’re recognized to present the rule. 

Insurance Department rules

Amanda Rose This is an amendment to 23 CAR Part 9, formerly Rule 15. It’s an amendment to our holding company system rule. It’s a national association of insurance commissioner model regulation. The companion model law was passed during this year’s General Assembly. It’s Act 261. The law and the regulation work together to establish new tools for financial regulation of insurers that are a part of a holding company group. 

A holding company group is defined as two or more affiliated entities, one or more of which is an insurer. The models require the filing of a group capital calculation by the ultimate controlling person in the holding company. There were some formatting changes made, but the substantive change to the rule made by this amendment is the addition of the group capital regulation requirement. 

Again, that became law this year. The model regulation also provides direction on how to proceed when an insurer in a holding company system is placed in supervision, seizure, conservatorship, or receivership. Both the model law and this model regulation are national accreditation standards this year. 

The amendment provides guidance and instruction to insurers on how they comply with the new regulatory tools established in Act 261, which will allow for more effective regulatory oversight. This rule is necessary to provide insurers and regulators with direction regarding implementation of Act 261. 

Representative Matthew Shepherd Members, you’ve heard a presentation of the rule. Are there any questions? Seeing none, without objection, the rule is reviewed and approved. Thank you for being here today. Next up, we move to item B2, State Board of Election Commissioners. If you would have a seat and introduce yourself to the committee. 

Chris Madison Thank you Mr. Chair, members of the committee. My name is Chris Madison. I’m the Director of the State Board of Election Commissioners. 

Jonathan Kindrex Jonathan Kindrex, attorney for the State Board of Election Commissioners. 

Representative Matthew Shepherd Thank you. You’re recognized to present the rule. 

Election Commission rules

Chris Madison Thank you, Mr. Chair. We have two rules for the committee’s review today. The first rule is amendments to the rules on poll watchers, vote challenges and provisional voting. Principally, what the proposal is, it kind of gives a little more defining on what poll watchers can and cannot do within the poll. 

We had some issues in the last election, some confusion about that and some conflict at some polls. So we wanted to define it a little more and also lay out the lines of communication. If poll watchers observe things that are not being necessarily resolved in the poll, they can contact the poll supervisor or they can contact the state board. I’m happy to answer any questions about that rule, 7 CAR Part 91. 

Representative Matthew Shepherd Any questions from the members? Seeing none, without objection, the rule is reviewed and approved. You’re recognized to present the second rule. 

Chris Madison The second rule we have is an amendment to the appointment regarding certified election monitors. The state board selects monitors and sends them out to observe the conduct of elections. One of the things we ran into is keeping monitors. 

And one of the reasons we have a hard time keeping them is we were paying them $100 a day. So they would go work anywhere from 14 to 16 hours and we were paying them $100. So this basically changes that to $300, plus it defines the training pay, the observation pay, and then the report writing pay. And with that, I’m happy to answer any questions. 

Representative Matthew Shepherd Any questions from the members? Seeing none, without objection, the rule is reviewed and approved. Thank you for being here. 

Chris Madison Thank you, Mr. Chair. Thank you, members of the committee. 

Representative Matthew Shepherd Members, we are moving to item B3, Treasurer of State, Arkansas Financial Education Commission. If you would introduce yourself to the committee. 

Michael Harry Good morning, Michael Harry. I’m the chief compliance officer and director of government affairs for the Treasurer of State. 

Representative Matthew Shepherd All right, you’re recognized to present the rule. 

Treasury Department rule

Michael Harry Our rule is pretty simple. What we did is we took out the requirements in the membership requiring, I guess, DEI requirements. So we’re just changing our rules to be in compliance with Act 938. 

Representative Matthew Shepherd All right, members, any questions? Seeing no questions, without objection, the rule is reviewed and approved. Thank you for being here. Members, we’re going to move to Item C. And I would ask, let’s see, C1 is Department of Education. And without objection, we’re going to hold this over for a month. 

Members, this is a request to be excluded from reporting requirements. And previously, we had granted such a request to the Department of Commerce. There’s a little bit of an issue as to who should write or implement the rules. So we’re going to hold this over for a month to see if we can have some further discussion. 

And also next month, we’ll have both the Department Of Education and the Department Of Commerce. So without objection, we’re going to push that for a month. All right, we’re going to move to C2, Department of Human Services. 

Janet Mann Good morning. Janet Mann, DHS Secretary. 

Elizabeth Pitman I’m Elizabeth Pitman, Director for Division of Medical Services. 

DHS Rule exclusion requests

Representative Matthew Shepherd And just as a reminder for the benefit of the committee and the public as well, in those instances where an agency believes the rule is not necessary for the operation of a newly enacted law, Act 595 of 2021 allows the agency to submit a written request notifying the subcommittee of its intent to not adopt the required rule and requesting that the rule be excluded from the agency’s monthly updates on rulemaking. And so that’s what we’re here on. And I’ll recognize the department of Human Services to present their request. 

Janet Mann Thank you, sir. Our request today, as we sent a letter in December of 2025, we have four acts that were passed in last session that we have indication from our federal partners that we will not be able to implement as passed. Therefore, we feel that we may not be timely or not be able to effectuate some effective dates of 9/1 and 1/1 for certain bills. So we sent the letter with the intent to inform y’all as we work through the process of what happens next. 

Representative Matthew Shepherd If you could, could you just go into a little more detail? I know you’ve laid it out in the letter, but just for the benefit of the committee as a whole and the public as well, if you could just kind of go through in detail the mechanics of what exactly has happened and what has brought you to make this request. 

Issues with CMS

Janet Mann Yes, sir. I’m going to start, and them I’m going to ask Director Pitman to also add some of the details. So the first act in our letter is 567, which is the diagnostic lab services annual cap charge for chronic pain and pain management. CMS has indicated that due to a comparability section of the federal statute, we cannot implement as passed. 

We’re trying to work with them on different options that will still fit, but we just don’t know what that looks like yet. It also has an effective date for rules of 1/1, which is why we felt the need to include it in this letter. The remaining acts, 568, 967 and 1025, are all dental related. 

They have various components that CMS has given us feedback in writing. I believe we included those letters and emails on those of what some of their concerns were. I believe the largest one was Act 1025, which was dental rate and annual limit increase. They have said that we cannot, due to comparability, cannot create a separate group and pay at a different pay scale. 

And so that leads us to, what do we do next. They gave us three options in an email and a letter to consider. After meeting with the Dental Association and others, there was a fourth option thrown out. That was late last week, I believe. So we are working through that process of what to do. And then Act 568 and 967 relate to specifically anesthesia and PASSE dental, which one of those acts has not formally been put on RAI, but they have indicated they have concerns about limiting it to academic institutions. So I’ll stop there and ask director Pitman to add additional details. 

Elizabeth Pitman Thank you. That was very well stated. It would just echo that all three of these, A, B and C, have comparability issues per CMS. The issue primarily being that under comparability you have to offer the same benefit and services to all individuals eligible for Medicaid. 

And we’re tying these to a special diagnosis, in the case of the diagnostic lab service to chronic pain, or in the case of the dental bills to having a special needs diagnosis or developmental disability diagnosis. That’s the crux of the issue with CMS. They have presented options in the dental area, whereas in the lab area, it’s a mandatory service by CMS. You have to offer it to everyone that is eligible for Medicaid. 

So there are fewer options there. And so that’s where we are with CMS in those discussions. And we are trying to work through how to best proceed with all of these, trying to maintain the spirit of the bill and meet the federal regulations at the same time. 

Unfortunately, because of those timelines, I don’t know that we’re going to meet the statutory timeframes. I believe it was 9/1 for the rate bill for dental and January 1st for the lab bill. And we obviously won’t– we’re past all of those deadlines for the lab and radiology bill. 

Representative Matthew Shepherd One additional question, and I know we’re going to have a number of questions from members, but you mentioned that there are three, now maybe four, different options that you’re looking at. And if you could just help me to understand what those options are. 

And then my two kind of sub questions to that are, are those options in your opinion allowed under Arkansas law? And secondly, would they accomplish what is intended by the act that was passed by the General Assembly? 

Elizabeth Pitman Sir, I’ll do the best I can to explain some of these. So CMS first, let me say, is very form over substance. So they list all options, even if they–

Representative Matthew Shepherd I’m sorry to interrupt, but I think that we’re probably going to have some questions for the Dental Association as well. And I would want them to be thinking about the same types of questions so we can try to figure out what’s what between the differing opinions on this. 

Elizabeth Pitman So they list all options, whether they actually think they’re viable or not, just because they say this is really an option. So let me start with that. So they gave us three written options. The first one is to create an expanded limit for everyone that receives dental services. So in the bill, you said to move the limit from 500 to 1,000 for those with a special needs diagnosis only, adults. We’re talking about adults. 

They said give every adult in Medicaid the additional $500 and then use medical necessity criteria to determine who can get that expansion and who can’t. That, by definition, will mean more people will get it than what you had originally intended in the act, which is going to be a higher fiscal impact than what we had originally anticipated. 

The second option would be to create a 1915c or 1115 waiver for dental services for special needs populations. There is nothing that would prohibit that. There’s a couple of issues with that. It is a very time consuming process to do that. So it’s about a 9 to 18 month process depending on how backlogged CMS is. And there is no ability to retroactively apply any of those waivers. 

So there would be no ability to get a retroactive date for those. It would only be going forward. That is something we have a call scheduled with CMS to discuss the viability of that option. I would say there are a lot of parameters around that. Typically with a waiver, you have to limit it to those that meet institutional level of care. You offer slots. You have to be eligible to get that slot before you can actually receive the services. 

So you can’t retroactively apply those services either. There’s no retroactive eligibility in a waiver. So there’s all kinds of limitations on that that we don’t typically see in a dental service. That said, it is an option we are exploring. 

And the third thing they mentioned, and this is the one where I gave you that caveat. They even said they don’t love this option. But what it is is to take your optional dental benefit, because we do not have to offer dental benefits to adults, we could create our entire dental benefit around what we think the special needs population needs. 

So sedation dentistry, therefore everyone would get sedation dentistry based on the medical necessity of sedation dentistry. That also doesn’t seem like a very great idea in our minds because then we are taking our entire dental population, the majority of which do not have special needs, and trying to fit them into this bucket of people with special needs. So that is the third option. It’s probably the least doable. So, but that is the third option that CMS offered. 

The fourth option that came out of the conversations with the dental providers and Representative Mayberry was to actually split the rule into basically two pieces, take the rate increase for children and oral surgeons dental services, going ahead and move that forward, and then figure out the special needs population dental separately in these other conversations. 

Representative Matthew Shepherd All right. So we’re going to go to questions. And myself and the co-chair, we’ve agreed to allow non-members to ask questions. But obviously, as this goes on, there may become a point where we have to rein it in to just the membership. So I just ask everybody to be mindful of that. Let’s see. Representative Mayberry, you’re recognized for a question. 

Representative Julie Mayberry Thank you. And thank you for the discussion last week. And as you see, we came up with option number four. So I’m hoping that maybe you had some more information to share on option number 4. And I’m still kind of hearing just what we discussed last week. And so can you bring us up to date? How quickly could the pediatric portion of this be implemented to get at least that part going? Can you give me more details? 

Janet Mann That is one of the questions that we have posed to CMS about splitting it up, how fast we could do that. And then the second part of that question is, can we preserve the 9/1 date? That’s what they’ve not answered us on. Because when we put out public notice to preserve the 9/1 date and then did public comment on the entire rule, if we break it apart, we would like to try to preserve that as much as we can. 

We don’t have an answer. We have been in contact with CMS back and forth. And they asked us who should be joining the call, which option would you like to discuss, and we said we want to discuss all of them plus this. So that’s why we don’t have any additional follow up information. 

I do believe you asked us also last week what would it cost if the adult benefit went from 500 to 1,000. I do have that estimate on that today. We spend approximately $20 to $24 million on adult benefits, looking at last year and what has been spent this year and doing some estimates. So it would be approximately a $10 to $12 million increase in totality. 

Representative Julie Mayberry Okay, so if I’m understanding, if you chose option number one, and option number one allows us to go retroactive to the September date that was out there, allows everything to move into place, but increases the cost by about $10 to $12 million. Am I understanding that correctly? 

That’s the most expedient option that’s out there. I understand it’s a more expensive option, but it’s the most expedient option that keeps the intent of the bill to preserve higher dental rates for our dentists. Am I understanding that correctly? 

Janet Mann I believe so. I’m cautious on most expedient because it’s CMS. So that’s why I’m hesitant. They will still have time to review and comment, and what we don’t want them to do is completely make us start over. And if they do make us completely start over with the state plan amendment, that’s 90 days. 

Representative Julie Mayberry And I do realize $10 to $12 million is a lot more. I think that the original cost, we were estimating about $32 million. We’re talking about a whole lot more. 

Janet Mann Yes, that would be 10 to 12 million above the portion of the 32 that would be tied to the pediatric rate increase. That, I don’t have broken down between the entire bill. So it would be more than the original 32 million dollar estimate that was given during session. 

Representative Julie Mayberry Okay, so let me follow up with this. I know at the end of last session, we set aside $100 million for Medicaid. Has that been utilized yet to this point? And are there other things that you plan on bringing up in the next month or two that would require us to use that money? So in other words, this money is set aside right now. Can we utilize that money right now to fill in that gap? 

Janet Mann So to this date, DHS has not asked to access the $100 million that was set aside for Medicaid. That process to ask and request that money is actually above my pay grade, so I’m going to have to defer on that part. I would have to work with the partners at DFA and obviously the Governor’s Office on accessing that. 

Representative Matthew Shepherd Representative Mayberry, if you have further questions, we’ll get you back in the queue if need be. Okay. Representative Eaves? You’re good? Representative Wooten, you’re recognized for a question. 

Representative Jim Wooten Thank you, Mr. Chairman. Ms. Mann, as background information, how long has it been since this dental group has had an increase? 

Janet Mann According to their emails, it’s been 18 years. 

Representative Jim Wooten 18 years. My question would be, in contact with CMS, did we just make a request or were we emphatic? Did we give them factual information and then make a plea that we had to do something to help our dental profession? 

Janet Mann Yes, sir, I didn’t mean to cut you off with your question. Apologies. Yes, sir. We submitted the rule as the act was written. We’ve had conversations back and forth. We have had ongoing conversations with the Dental Association. We started getting questions during the 90-day time period that they have to approve a state plan amendment. 

And early December in email, we found out they were not going to approve it. They made that official either December 8th or December 15th. So yes, sir, we tried to enact what was passed to get it implemented. It had an effective 9/1 date. 

We put it out for public comment the day before, which is required with CMS because it would have a rate increase. Then we also put it up for public comment for the entire rule as required to implement a state plan. So we did an all good faith effort to put that rule plus these other rules plus our other rules out. Yes, sir. 

Representative Jim Wooten Follow up, if I may? With CMS, how quickly did they respond? 

Janet Mann I will defer to Director Pitman. 

Elizabeth Pitman So during conversations, we had early indications there were going to be some issues. It took quite a while for them to put those issues back in writing to us formally so that we could actually see our options and understand the issues. 

Representative Jim Wooten So it was quite a while before CMS sent it back? 

Elizabeth Pitman Yes, sir. 

Representative Jim Wooten Well, what about the waiver? Is that a viable alternative? 

Janet Mann It is a viable alternative. It just takes longer to get it approved. And it would jeopardize the 9/1 date of some of the rates. And so that was one of our concerns, that we can’t honor the 9/1 date. So we needed to inform this body. 

Representative Jim Wooten Did I understand you correctly? It takes 18 months to get a waiver? 

Janet Mann Yes, sir. It can take anywhere from 9 to 18 months depending on their backlog. There’s a lot of public comment period at the state level and the federal level that takes approximately 60 additional days. And then they can take up to six months to a year to review any type of waiver. So in our past experience we’ve had waivers pending for multiple years. So we’re just trying to– I would love to say that we could do it faster. I just can’t guarantee it. 

Representative Matthew Shepherd Representative Wooten, we’ll let you get back in the queue. We’ve got a few people lined up here. I’m going to go to Senator Irvin. You’re recognized for a question. 

Senator Missy Irvin Thanks. Thank y’all. So back to what Representative Shepherd was talking about, the language in the legislation. So on option four, does the law that we have passed allow for what you’re talking about, to split and go forward with part of it, but not the other part. 

Elizabeth Pitman Putting my lawyer hat on, yes, I believe we could sever– under the language of severability, we could treat the provisions of the law differently and go ahead and move forward with the rates. So we are looking at that. The main issue is, will CMS allow us to use the public notice we’ve already done for that rate increase to get back to the 9/1 date. And that’s kind of what’s pending with CMS right now. 

Senator Missy Irvin And the part of this bill, though, that you said could go forward was which part? The pediatric one? 

Elizabeth Pitman The pediatric rate increase for children’s dental services. And then I think there’s a provision to raise for oral surgeons’ dental services is the language of the bill. 

Senator Missy Irvin Yeah, that’s what I’m looking at. 

Elizabeth Pitman Those two pieces. We are not sure about the language around special needs dental rate increases. That’s, again, tied to a diagnosis. So that would need to be fleshed out with CMS as well. 

Senator Missy Irvin Yeah, because you can’t do carve-outs. So what you’re saying, though, is you could save dental services for adults, that we would be able to pay for anesthesia services. 

Elizabeth Pitman For all adults. 

Senator Missy Irvin For all adults. But clearly some adults would need it and other adults wouldn’t, but there’s no way to just limit it to people with special needs. 

Elizabeth Pitman That’s correct. 

Senator Missy Irvin It can’t be a category. 

Elizabeth Pitman You can’t tie it to that diagnosis. You can tie it to medical necessity criteria. But that is, by definition, going to be broader than a diagnosis. 

Senator Missy Irvin Okay, so you could do medical necessity. Is there any type of a process where currently we’re allowed to authorize that service with an existing Medicaid patient? Is there a process that you could?

Elizabeth Pitman  Yes, ma’am. We’re using, it’s called a single case agreement process right now. We’re doing it primarily with UAMS. We have done it with a few other dentists, but it’s primarily being done with UAMS where we enter into an agreement for that particular patient, Medicaid client, primarily special needs, and then they do the dental services for them for beyond the dental limit. 

Senator Missy Irvin Okay, so in order for that, we would just need to change the legislation? 

Elizabeth Pitman We’re doing that now with UAMS and we also have done it with another dentist. 

Senator Missy Irvin But I’m talking about this bill. We would need to rewrite this bill to allow for the existing process to occur, but that could or could not have a fiscal impact. I mean, initially you could have a fiscal impact that assumes that every adult would then get sedation. 

But I guess that’s the only way you would be able to calculate that fiscal impact? Is there a different way to calculate that fiscal impact? I don’t know. I mean, that’s just something to think through. You don’t have to answer. 

On the other one, and I just want to make sureI’m understanding this correctly with the diagnostic lab services annual cap for the chronic pain and pain management. Is that another case where we’re creating a carve-out based on a diagnostic code? 

Elizabeth Pitman Yes, ma’am. Because it’s tied to the diagnosis of chronic pain management. And the only option there is to give everyone a limit increase or do nothing because it is a mandatory service. So we can’t offer it in a waiver or anything like that. 

Senator Missy Irvin Right. Okay. Okay. All right. Thank you 

Representative Matthew Shepherd Representative Johnson, you’re recognized for a question. 

Representative Lee Johnson Thank you, Mr. Chairman. So a couple of things. On the 1025, the cost that you’re talking about– man, it seems like I’m talking really loud. That feels really loud, man. So the 1025, I’m understanding you’re saying it’s an extra 10 million, 10 to 12 million estimate, on top of the calculations for the pediatric extra cost, is that right? 

That’s just based on raising the cap for every adult. The way I read that bill, that bill doesn’t carve out any special needs. Well, it does, but what you’re saying is we can’t carve out special needs. The only way to accomplish the bill would be to go from 500 to 1,000 for every adult. 

Janet Mann Yes, sir. That was one of the questions we were asked last week when we were meeting is, What would happen if the entire adult population went from 500 to 1000? So we did ask our finance and our data team to run what was spent on adults only for SFY25 and then up to last week for SFY26. And so we took that, annualized it,and came up with that estimate of what would happen if we doubled it. So that was a rough estimate. Yes, sir. 

Representative Lee Johnson To be clear, that doesn’t have anything to do with sedation dentistry. That’s just dental costs for adults, right? 

Janet Mann Correct. 

Representative Lee Johnson So if I look at the other two bills, 568 and 967, those are the other two bills. One is the PASSE and one is the– if I understand your issues with those– I guess I don’t understand the issue with one of those. But one of the issue is they don’t like that we want to send them just to dental schools, academic institutions, however we define that.

Elizabeth Pitman Yes, sir. That was one of the problems. 

Representative Lee Johnson That didn’t have anything to do with special needs or adults. That’s just this dental school issue. 

Elizabeth Pitman So that bill, I think– I can’t remember the number. 

Representative Lee Johnson I think it’s 568. 

Elizabeth Pitman Yeah, yeah. I believe you’re right. That bill had two distinct issues per CMS, and we never formally submitted that to CMS. Full transparency. We were having the conversation around 1025. I mentioned that bill to them and they preliminarily told me it was going to have problems. Two specifically, one being because you were giving the extra 3750 to individuals with special needs or– and I am terrible at saying this– craniomaxial— 

Representative Lee Johnson I’m not sure that’s what we did in that bill. We define high complexity dentistry or something like that. We created a new definition within that act around high complexity. Now, special needs was a criteria of that definition, but there was also all these craniofacial things, right? 

Elizabeth Pitman Yes, sir. And because it was tied to those two things, they did indicate that would probably be an issue. They also indicated it was a freedom of choice issue among providers if you limited it to only academic medical institutions. And so that we would need in that case, basically, a 1915b waiver to say you can only go to these certain providers. 

Representative Lee Johnson Yes, that issue seems easy to me. I mean, that’s an easy issue. The reason that came up in the session was because these were the people that raised their hands and they were willing to do it, right? I don’t think you’re going to see a flood of people raising their hands saying, Hey, we’re willing to do this work. 

So I think that issue is easily solved. You just say, okay, everybody can do it. I don’t think the fiscal impact for that is tremendous because, again, the reimbursement compared to the pain of the process of providing the care is not going to balance out. You’re still going to have the same people doing it. 

I guess I’m getting back to this idea that we were adding a definition around, and I forget the exact words, high complexity. And then I think if you look at the other bill, the 967, all we were doing there is we went in the PASSE Act and we added a definition of sedation dentistry and we opened up that for claims. What was CMS’s issue with that? 

Elizabeth Pitman I don’t know that they had an issue with that. With that one, when we’ve actually put it into the PASSE contract today. We’ve implemented that today, that they cover sedation as part of the dental.

Representative Lee Johnson So they don’t have an issue with that one? CMS doesn’t have an issue?

Elizabeth Pitman No, they don’t have an issue with us putting that in managed care– sedation dentistry in managed care.

Representative Lee Johnson So is there a definition of sedation dentistry in our Medicaid Act– whatever we put in this high-complexity definition. I guess what I’m getting to is, we’ve created this definition of sedation dentistry and we’ve said we’re going to have a charge for sedation dentistry that’s within the PASSEs. Do we have something similar to that within the fee for service Medicaid? 

Elizabeth Pitman I mean, we offer sedation dentistry to anyone in Medicaid that needs it up to our limit. 

Representative Lee Johnson Do we do that through medical necessity? And I don’t want to get down the weeds. But what I’m trying to get to is, if their issue is with–we’re parsing out special needs in the adult in 1025, to some degree because they require sedation. A lot of folks with these issues require sedation. They’re more complex, right? 

And if CMS doesn’t have an issue with us creating a different fee schedule around sedation dentistry, it feels like there’s a way to create a separate fee schedule that would be fine for adults if they met– you mentioned medical necessity. I mean, we have that ability within DHS to say who qualifies medical necessity for sedation dentistry. 

It feels like that’s a way to maybe get to this in a cost-containment way that doesn’t single out special needs adults. Any adult that qualified for sedation dentistry. And the same way with this high complexity care. Is that something you think we could look at? Is that true? 

Elizabeth Pitman Yes sir, I do think we can look at it. We are actually meeting with finance to talk about how we could look at this differently. I think it becomes, how do you define medical necessity. And like I said, it’s by definition, going to be broader than what you put in the act. Because it’s going to anyone that qualifies, not anyone with this particular diagnosis. 

Representative Lee Johnson But you don’t have an idea of the cost if we were to just limit it to, say, sedation dentistry as opposed to open it up to every adult? 

Elizabeth Pitman No, we haven’t looked at that yet. That’s what the meeting we’re going to set up is about. 

Representative Lee Johnson Okay, thank you. Appreciate it. 

Representative Matthew Shepherd Representative Wooldridge, you’re recognized for your question. 

Representative Jeremy Wooldridge Thank you, Mr. Chair. My question, I remember us talking about this in committee. And you said a while ago, it’s been 18 years since our dental partners have had a rate increase. So it’s my understanding that currently, or I think I remember this correctly from committee, that less than half the dentists in the state will see the Medicaid population client. So if this rate increase doesn’t go through and that diminishes even further, what’s DHS’s contingency plan to get dental services to this population if we don’t have any dentists in the state that are willing to continue to provide the service? 

Janet Mann I’m not quite sure I know how to answer your question, because I don’t know about 50% or less that are seeing Medicaid patients. I don’t have those statistics to be able to answer that part. I will say that we did transition dentistry out of managed care and back to fee-for-service late last year. I believe it was November of 24. And we have seen those expenses continue to be level and grow. We’ve not seen anything diminish.

And then to expand on the 18 years, they were in managed care for seven. They also have had at least two to three rate reviews. The most recent rate review showed approximately three to five codes that would need to be adjusted to be in the averages of other states. 

So while there’s one school of thought that it’s been 18 years since they’ve had a rate increase, we have done the rate reviews to show that in previous years they have been in line with other surrounding states. Also removing the managed care removed an administrative level that now we are being able to spend on paying claims. And so I will just leave it at that. 

Representative Jeremy Wooldridge I guess I’ll clarify that. I appreciate your response, and I’ll clarify that maybe with the Dental Association if they come up to testify. But I guess my understanding, I visited with dentists around the district that I serve. And that’s my understanding, that there is a diminished group of providers that are willing to continue to see that population. 

And I just have concern that if this rate increase isn’t implemented as the legislative body passed it, the governor signed it, that that would probably shrink, not grow. But thank you, Mr. Chair.

Representative Matthew Shepherd Representative Eaves, you’re recognized for a question. 

Representative Les Eaves Thank you, Mr. Chairman. This may be a question to you, Mr. Chair. We got a letter, apparently from a law firm, and it’s probably the same or similar letter that we got from the Dental Association. There’s two paragraphs that I wanted to kind of reference here. It says, ‘CMS’s December 15 correspondence does not conclude that Act 1025 is incompatible with federal law. To the contrary, CMS’s comments reflect routine SPA review concerns and identified specific compliance issues with the proposal as submitted that may be remedied by DHS.’ 

There’s another paragraph that says, ‘Critically, CMS did not state that the underlying policy goals were impermissible. Instead, CMS expressly referenced alternative approaches, including medical necessity-based benefit structures and waiver authority as potential paths to compliance. Taken together, the CMS letter supports the conclusion that sufficient and lawful pathways exist to obtain federal approval of the act’s changes, if pursued through appropriate mechanisms.’ 

So it seems that, if I’m reading that right, the Dental Association and this law firm have a different opinion on what’s actually happened here. And you mentioned earlier that we may get the Dental Association or someone to come up. So at the proper time, I’d like to ask them some of those questions or at least respond to those two paragraphs. 

Representative Matthew Shepherd Yes, well, we have asked them to be available and to answer questions. And so we’ll bring them to the table at some point in this process. I still have a few questions here in the queue. Senator Dismang, you’re recognized. 

Senator Jonathan Dismang Thank you, Mr. Chairman. And really, it’s just about the precedent of where we are, right? So there’s oftentimes we will pass legislation directing DHS to do something, and then that’s how we get to the end result that the legislature wants as far as policy direction for DHS. 

And during the session, on many, many issues, members were begging for input from DHS about different items, not just this particular area. Certain things may work or not work or their costs may be higher or not higher and that sort of thing in which DHS did not really provide much of any information or engage on a number of different issues. 

My concern is we’ve got through the process, there’s a bill that’s passed. And we’re saying, You know what, despite the bill, we don’t want to run the rule. I appreciate you not saying it. It’s better than letting it drag out and never running the rule, because I’ve experienced that for two years before not too long ago. And I think it was because DHS didn’t want to implement the rule regarding the law that I had helped pass in the legislature. 

So I get, there may be problems, that CMS may say no. And maybe there’s things we don’t understand. But if we’re not even going to attempt, then I think it’s going to be an issue for future policy issues that we may have that we’re requesting or demanding that y’all take a particular action. So I guess historically, my question is, how often do we say, you know what, we’re just not going to run a rule in relation to a law that was passed by the General Assembly? 

Janet Mann Yes, sir. I don’t know that we get that option. We have to implement the acts. We can’t implement the act currently as the law was passed with an effective date of 9/1. And during session, we did testify about this bill that it could have issues with CMS. We also testified about the lab and diagnostic that we felt that CMS could have issues with implementing this. So really, with having to implement all the rules, and it takes a year for us to implement rules sometimes to get them through. 

Senator Jonathan Dismang Or two, or longer than that. 

Janet Mann Yes, sir. Yeah, I’m very well aware of that one, unfortunately. I didn’t want to get to June and say, Oh, by the way, this is causing an issue, we’re pivoting and doing this. We’ve worked with CMS, tried to implement what was passed. And when they said no and had to say it formally because we could not work it through the 90 day process– they took it off the clock– DHS felt the need to inform y’all that we are probably going to have to pivot. 

And it may take longer than the 12 months to implement something. And I can’t guarantee or DHS cannot guarantee, excuse me, that we can effectuate the 9/1 date or the 1/1 date. So really DHS was trying to come out of an abundance of caution for the rules is why we sent the letter in December to the Rules Committee. 

Senator Jonathan Dismang But the goal is still to have full implementation of the law? 

Janet Mann Yes, sir. 

Senator Jonathan Dismang And the rules, you’re just going to punt the dates down the road?

Janet Mann Well, I think if we have a conversation with CMS and we can do the severability, the question is, Can we keep the 9/1 date for the rate increase without having to start over while we pivot to the waiver for the special needs? That’s one question. And then the other option at the very first option was, Could we do something else, which I don’t remember right now. I apologize. 

But a waiver will never have a retroactive date. DHS will never be able to honor the 9/1 date. So if we can break it apart and try to honor that 9/1 date, if CMS will allow it, and then move forward on the waiver, that’s one option. Then the first option, which I’ll defer to Director Pitman to bring up again, hopefully we will be able to honor the 9/1 date. 

Elizabeth Pitman That was  applying the increased limit to the entire population with medical necessity criteria. I think the only issue there for the 9/1 date would be if we have to redo. So the 9/1 date is related to the rate page. 

When you change a rate, you have to put it out for public notice for the providers to comment on. So we have to put it out at least a day before the rate takes effect. If we have to change that rate page, we may lose that 9/1 effective date for that. Other than that, we should be able to preserve it. That’s the conversation we intend to have with CMS. 

Representative Matthew Shepherd Representative Johnson, you’re recognized for a question. 

Representative Lee Johnson Thank you, Mr. Chairman. Just to clarify, so it does look like you’re asking for the ability not to promulgate rules on four different acts. One of them, I don’t think there’s a problem with. I’m just trying to clarify that. 967, which is the one where we define sedation dentistry in the PASSE Act. And then now you’re telling me the PASSE– I don’t know that we need rules. 

Elizabeth Pitman We don’t need rules. 

Representative Lee Johnson I’m just questioning, it’s in this packet. So for clarification’s point, we don’t need to do anything on that one. The people that are in the PASSEs, the people that on the waiver right now, they are open to get sedation dentistry services from anyone in network with any of the PASSEs willing to provide the services for adults, kids, anyone with special needs that qualifies for the waiver can get those services through the PASSEs right now. 

Elizabeth Pitman Yes, sir. We’ve defined sedation dentistry in the past agreement, what they will cover, what fee for service covers. All of that has been outlined in the PASSE agreement and we don’t need a rule to include that.

Representative Lee Johnson From a population standpoint, when we’re talking about, in 1025, adults with special needs, what percentage of those adults with those special needs are– I mean, how many people do we have outside the waiver in that population? 

Elizabeth Pitman I have that number, not on me today, representative. But I have pulled that for this purpose because we initially planned on using the PASSE to define that, and then realized there’s a group of adults that actually have special needs that are attending our adult day treatment facilities that are not in the PASSE. And so I have run that number and I can get it to you. 

Representative Lee Johnson It just feels like the sentiment of the General Assembly was to provide dental care for these people with special needs, right? And it feels that is a higher intensity service than the average adult in Arkansas needs for dentistry. And it feels like that was surrounded by this idea of sedation dentistry. 

And we already are doing that now for a large percentage of the population of Arkansas through the PASSEs if we have providers willing to do it in network with the PASSEs. Figuring out what that extra population is, and can we get them into the PASSEs? Is there opportunity to move them in? 

Because it sounds like we’re in good shape in the PASSEs. Is there an opportunity with that small population to define something like sedation dentistry and reimburse for that differently? It just feels like the cost doesn’t have to be, we raise the bar to every adult in Arkansas. Not that I’m not for that, for my dentists out there. I think all of the providers in Arkansas in the Medicaid space are looking for increased rates across the board. I’m not saying you don’t need a rate increase for adults across the board. 

I’m just saying it feels like we’re making this more complicated possibly than we have to and certainly estimating costs at a higher pace than I think we maybe need to. All that said, I have one more question about the cost. If we did just go with the simple idea of, we’re going to raise adult rates for everyone from 500 to 1,000, That extra $10 million, that’s future cost, right? I mean, what fiscal year would you anticipate those costs hitting your budget? If you went ahead with that process, that extra $10 million, when are you going to have to start paying claims on that? 

Elizabeth Pitman I think it would be April or May of this year would be earliest. 

Representative Lee Johnson Almost at the end of this fiscal year, right? And I’m assuming that would be a ramp up. So most of the costs that you would incur would be in the next fiscal year. I think we, as a legislative body, will have an opportunity in the fiscal to decide whether that’s in the budget or not, right? I mean, that’s our responsibility as legislators. So if it’s our intent and we want to raise adult dental rates, we don’t have to necessarily dip into the $100 million Medicaid set aside. We could put that into the next fiscal budget. I mean, that would be a logical way to pay for this as well. 

Janet Mann I think that would be up to y’all. 

Representative Lee Johnson Right, right. But if we did that, you wouldn’t have to necessarily dip into the– just making sure I understood all that. Thank you. 

Representative Matthew Shepherd Members, we’re getting back into– I think most everybody’s had an opportunity to ask a question. We’re going to bring the Dental Association up just momentarily, and then we’ll bring DHS back up. 

But before DHS goes for their break, before we bring them back, one of the things that, as I look at this, there’s kind of the practical elements of it as far as what was intended and the benefits to be provided. I also have a concern just from– and Senator Dismang, I think, touched on this as well– it’s like, at the end of the day, we passed a law. And so, when you look at these four acts, I think there’s four acts that are implicated by this discussion. They’re relatively short. 

Now I understand that it’s changing definitions which ends up being a much bigger issue. But just quickly, I just want to walk through each of these. And if you could just give me just kind of the short answer of what the issue is. Now I think that what I understand from Representative Johnson’s question is Act 967 concerning the definition of sedation dentistry, that can be implemented. That is something that you can implement. You can promulgate rules to take care of that. 

Elizabeth Pitman We don’t need rules. We have implemented it through the PASSE agreement by defining sedation dentistry inside of the PASSE agreement. 

Representative Matthew Shepherd Okay, so you can comply with 967? 

Elizabeth Pitman Yes, sir. And have. 

Representative Matthew Shepherd Okay, good. So then that leaves three acts. So there’s, let’s see, 567 which relates to diagnostic lab services. And it changes the dollar amounts, and then, basically, you’re supposed to codify rules. So what is the issue with being able to implement this? 

Elizabeth Pitman That is the comparability issue. Lab services are a mandatory service by CMS. Every Medicaid state has to offer them. And because we’re tying the increased limit to a diagnosis of chronic pain management, it violates the comparability provision of CMS. 

Representative Matthew Shepherd Okay, so that’s the issue with that. So then we go to 568. This relates to high complexity oral health care. It provides a definition of what a provider is. I think Representative Johnson asked about this. And it provides additional language related to the reimbursement rate. So what’s the issues with this act? 

Elizabeth Pitman There’s two issues with that act. CMS is stating that we are tying to a diagnosis based on special needs and craniofacial max– I can’t say that word– but the disorder, the cranio-facial issues. And then the other issue is limiting it to a certain provider, academic medical centers. 

Representative Matthew Shepherd Okay, so that’s the issue with that act. All right. And then finally, 1025, this relates to adult with special needs dental services cap, and it provides for an increase in the reimbursement rate. Is it a similar issue with that? 

Elizabeth Pitman Yes, sir. It’s tied to the limit being increased from 500 to 1,000 for a special needs diagnosis. 

Representative Matthew Shepherd And so, one of them can be implemented. It is implemented. 

Elizabeth Pitman Yes, sir. 

Representative Matthew Shepherd Three of them, you have issues because of what CMS will or won’t allow. 

Elizabeth Pitman Yes, sir. 

Representative Matthew Shepherd And then you also have a timing issue as far as trying to work out if there’s another way to accomplish that. And so it becomes– some of the comments I’m hearing from folks are like, it’s almost like picking, do you violate the law from a timing standpoint or do you violate the law by not implementing? 

But I think it was important to look back at the acts. Because at the end of the day, that’s what, no matter what everybody’s intent was, this is what we passed. All right. I’m going to ask that the Dental Association come to the table. And then we can bring DHS back to the table after their time. So if they’ll come forward and introduce themselves, and I believe we have some questions for them. 

Dental Association perspective

Billy Tarpley Chairman Shepherd, Chairman Dees, members of the committee, my name is Billy Tarpley. I’m executive director of the Arkansas State Dental Association and have been for 29 years. I have asked our attorney, Trevor Hawkins, and also attorney Jaden Atkins to join me here. 

It was Trevor and Jaden who prepared the letter that was referenced earlier in which we tried to make it clear that the Dental Association believes that there is a path forward to implement Act 1025. 

I can’t necessarily speak to the others, but certainly on Act 1025. And I think to try to bring a little more clarity to it, that act very clearly had two separate components to it. One was an increase for Medicaid fees for the pediatric portion. So when we say pediatric portion, that means age 0 to age 21, which is more like 18. But that’s the pediatric portion. That is the regular routine dental care that you receive as well when you go to the dentist. So that’s one component. 

The second component dealt with setting a separate cap for dental services for regular adults versus special needs adults. Throughout this last legislative session, it was very clear that there was an interest among legislators to do something for our special needs population. And that’s where the separate cap came from. 

Now, the adult program, it is true, Arkansas or any state does not have to do adult Medicaid. Well over half the states do. In fact, only a very few do not cover adult in some form. We have, not a comprehensive plan for adults. We have a very limited plan for adult. When this program was written back in the mid-2000s, it was written without input from the Dental Association and it’s continued to be problematic. But you know what? That’s the program we have. We tried to work through that to make it better. 

But separate and apart from that issue, it’s been our understanding that DHS has not moved forward on implementation. In fact, they’ve even asked you for permission not even to come talk to you about it. But they haven’t moved forward on Act 1025 because of a potential hangup on the cap for adults without any reference to the regular Medicaid, which is going to affect the large number of dentists who work and function in your communities. 

So, at any rate, when we saw the letter from the secretary, it very clearly to us said, we don’t only want to be released from coming to report to you, but it clearly says DHS does not intend to adopt rules for the identified acts, just not going to. So what that said to us, alarms were going off in our head and our phone was blowing up from dentists who were saying, Wait a minute, I’m prepared, I’m willing to stay in the program if this fee increase comes along because I can’t continue to go broke doing Medicaid dentistry. So that became a hot button issue for all of you. 

So having said that, I’m departing from my regular remarks because we have heard information today from DHS that has not been delivered to the Dental Association. In fact, we had to reach out to DHS to find out anything. We didn’t even know they had contacted CMS until we asked that in early December and we were told, Well, yeah, they don’t like some of it so senior administration is going to talk about what the next steps are. Without any input from the Dental Association at all. 

Did they have to reach out to the Dental Association? They don’t have to. But, boy howdy, look at this dog and pony show we’re all having to go through, when this could have been worked out before the legislature even convened. We asked DHS for a formal meeting, a roundtable meeting. Legal and everybody else was there to say, We have a big problem with our dental fees. No matter what you may hear from surrounding states, we have a big problem. And we’re reaching a critical, potential critical shortage situation. 

So at any rate, we did our best to work within the agency. We only came to you when it became obvious that there was no other option for dentists to try to say we’re trying to save this program. Remember, dentists are the boots on the ground in Medicaid dentistry. It’s none of us. I’m not a dentist. I don’t do dentistry. But dentists are the boots on the ground. They are the engine that drives this program in all dental care in the state of Arkansas. They were the ones who were coming to say, we have a problem and we need to try to solve that issue. So Mr. Chairman, if you don’t mind– 

Representative Matthew Shepherd Well, I think we already have some questions. I’m going to recognize the co-chair for a question. 

Senator Tyler Dees Thank you, Mr. Chair. And thank you for being here today. And thank you for your opening comments. Just two quick questions for you. And Billy, I forgot your last name, tell me your–. 

Billy Tarpley Tarpley. 

Senator Tyler Dees Tarpley. Thank you, Mr. Tarpley. So you just mentioned that you reached out to DHS asking for a roundtable discussion on rates. When was that roughly? 

Billy Tarpley That was months and months before the legislative session. 

Senator Tyler Dees So before these acts were approved? 

Billy Tarpley Oh, yes, sir. 

Senator Tyler Dees OK. Thank you for that timeline. And going back to your response to the CMS response to DHS, has the association submitted their recommendation for the rulemaking on these? Have you submitted in writing, case in point, what you believe would allow DHS to comply with the statute and to comply with CMS concerns? Have you sent that to DHS? 

Billy Tarpley Yes, sir. We did that through Mitchell Blackstock Law Firm, who Trevor represents. So in his comments to Secretary Mann, it was addressed to Secretary Mann. 

Senator Tyler Dees And has DHS responded to your recommendations? 

Billy Tarpley Not to our knowledge. No, sir. 

Senator Tyler Dees Okay. Thank you. 

Representative Matthew Shepherd So I have a question. And y’all were here during all the questioning of DHS. And you heard, I think, my initial question. I referenced that to ask that you guys be prepared to answer as well. So you’ve heard that there, I guess, are four options, three that were referenced by CMS, one that I think has been discussed with Representative Mayberry and with various stakeholders. So can you tell me, is there anything you disagree with how DHS responded to that? And if so, can you identify what that disagreement is and what’s the basis for how you feel differently? 

Billy Tarpley Mr. Chair, if you’ll allow, I’d like Trevor to answer that. 

Trevor Hawkins Thank you all for– excuse me, this weather’s got my allergies all messed up. But I thank you all for being here. The broader context of this, the reason we’re here today, is to stress that Act 1025 is workable. And we’re willing to put our name on that we’re going to help or willing to help DHS in getting through that and implementing a law or implementing policy changes that enact 1025. 

Now, this sort of discussion about options and what to pursue, conceptually, from the day that Act 1025 was signed by the governor, there’s two overarching things there: the rate changes and then the cap change. DHS is given the mandate from the General Assembly to pursue whatever mechanism they can federally to get those two things approved. And so there’s branching logic or options to enact each two separately. But what they chose to do here is implement them as one group to CMS. 

They submitted that informally to them and just got some routine feedback questions. Hey, what about this? Hey, did you consider that? There’s nothing in the letter to CMS that says anything that they’ve refused to approve any of these changes, nor is there anything in there that says that the intent of Act 1025 can’t be effectuated. I think here, hindsight’s 20-20. They should have pursued them separately. They should’ve done the rate change first, separately as an SPA, like they did. And that’s what they’ve indicated to y’all that they’re trying to pursue, keeping that that way so that they can keep that September 1st date. 

The comparability issue that they mentioned, that’s lumped into the rate cap, the $500 to $1,000 increase. That doesn’t apply to that first half. That’s the one where there’s room for us to discuss and figure out what the route is. In my opinion, kind of high level looking at it, it’s either working through a medical necessity option or an 1115 waiver. That gets rid of that comparability requirement. It doesn’t apply there. 

So CMS wouldn’t reject that. And they say it in their letter, which was attached as an exhibit. I think it was important for you all to see CMS’s letter and that there’s not anything in there that says, Hey, we’re not going to approve this. It’s, we need follow up. And the truth is the reason CMS sent this letter on December 16th is because they were asking these questions in October and never got a response, as far as we can tell. 

And so they had to send this formal response asking for these follow-up questions. And this starts a 90-day clock. If DHS doesn’t respond to this formal letter of December 16th, they’ve got through March 15th. CMS just quits considering these things. And so that’s why we’re here today pushing for continued oversight and accountability that they continue working forward, respond to CMS, effectuate these changes. And we’re willing to help in any way we can. 

Representative Matthew Shepherd Senator Irvin, you’re recognized for a question. Hold on, let’s see. 

Senator Missy Irvin All right, thank you. On the issue as it relates, several different ones. On Act 967, I think, what was said by DHS is that it was tied to an academic institution. And so that’s why that one could not be implemented under what CMS replied. Can you respond to that? 

Billy Tarpley Senator, I wish I could. We were not part of the inner workings of that. But Dr. Ashley McMillan from the Lyon College of Dental Medicine is here if you wanted to ask that question specifically. 

Senator Missy Irvin Yeah, I do. We can come back to that. But I do want to talk about that because when you’re talking about high complexity dentistry,  you’re not going to be able to do that in a general dentist office. I mean, you’re going to– and I think we’ve got to understand what we’re talking about here. 

These are cases where you absolutely have to sedate somebody and perhaps even put them to sleep in order to do the dental care that’s necessary. So that’s most likely, and correct me please if I’m wrong, but what are the necessary physical things that you have to have in your dental office to be able to do that? Do you have an anesthesiologist or a CRNA to do that? Do you have to have an operating room? Are there specifics about sedating a person and putting them under general anesthesia within, I would just say, a clinic for dentists? Could you answer that? 

Billy Tarpley That would be a very clinical question for a practicing dentist, and I’m not one. But we actually have a general dentist and a pediatric dentist here in the audience. And either one of them may be able to answer that, along with Dr. McMillan. 

Senator Missy Irvin Okay, so, I mean, I know oral surgeons obviously do this because they have to sedate and put you under when they are removing wisdom teeth, things like that, and doing oral surgery. So what I’m getting at is really trying to understand the true fiscal impact of these types of situations, outside of academic. 

I would love– because not everybody can travel to an academic institution. And I know they’re already doing this. So I’d love to hear from them about that. And then I’m going to move to my second question if that’s allowed. On the issue, so you’re specifically asking for DHS to continue to pursue a rule on specifically Act 1025 of the portion where there is no issue. Is that your ask? 

Billy Tarpley Our ask is twofold. That’s certainly the first part, to go ahead and move on the pediatric portion of Act 1025. Separately from that is the, we understand that a waiver could be required for the special needs portion in increasing the cap to 1,000 versus 500 for everybody else. 

Totally understood, which is why we wrote into the bill the need to file for a waiver or any other instrument of assistance to be able to secure that. But there’s no reason DHS can’t act on the pediatric portion and then deal with the waiver for special needs as a separate issue. Is that accurate? 

Trevor Hawkins Yeah. Both parts of Act 1025 are workable. And there are meaningful paths forward to pursue both parts. It’s just that one might take a little bit longer than the other. And that’s hard to say. CMS under the previous Trump administration was actually really quick at approving waivers of 1115. So DHS needs to do everything at the state level they can to get it approved. And then CMS, that’s out of our hands. There are things that they can do to pursue both parts of it. It is entirely workable. 

Senator Missy Irvin Okay, so I’m just trying to understand our action here as a committee. And Mr. Chair, you might be able to talk through this with me. But the action that we have before us, what are our options? To accept the letter? Or can we make an action that reflects pursuing and directing one of the options? That’s what I want to know. 

Representative Matthew Shepherd So as I understand it, DHS has made a request under Act 595 to be excluded from the rulemaking requirement. We have the authority to exclude them from that rulemaking authority. And so, that simply would be the question. If there is a motion to exclude them and that motion passed, then they would not be required to promulgate rules. If that motion were to fail, or if there was no motion, then the law, they still are under the obligation to promagate rules consistent with Arkansas law. 

Senator Missy Irvin All right, thank you. 

Representative Matthew Shepherd Those rules promulgated would come through our committee through the normal rulemaking process. Representative Wooldridge, you’re recognized for a question. 

Representative Jeremy Wooldridge Thank you, Mr. Chair. And thank you all for being here. Same question that I had asked DHS earlier. It’s my understanding after visiting with the dentists in the district that I serve that less than half the dentists in the state are currently accepting Medicaid patients. I guess I wanted to ask, is that your understanding? Is that accurate, not accurate? Are there more than that, less than that? 

Billy Tarpley Yes, sir. Thank you for that question. That that is our understanding. At one time, the last figure I saw was 64 percent, but that was pre-pandemic. And every year that number has declined because of the increased cost post pandemic of providing dental care for everybody, not just Medicaid patients. 

Because Medicaid gets the very same quality of care that the regular private pay patients do. But probably the simplest way, and this may sound a little trite. It is not meant to be trite. But probably the best way to answer that question is to call the dentists in your district and ask how many of them are Medicaid providers. 

And I think the answer will be shocking. I really think it will be. Not because they don’t want to be, but because there’s a certain amount of margin in any business at which you can say, I’m willing to break even or even lose a little money. There is a humanitarian issue to this. And that’s why dentists have remained in the program so long after an 18-year drought without any increase at all. 

In a perfect world, there would be a built-in annual increase so we don’t have to come back and do this all over again. And dentists don’t want to come and bother you. They just want to take care of patients and take care of their staff and take care of the practice and keep moving on. This has been an unnecessary interruption in their time and your time. It didn’t have to be this way. But yes, sir. It’s our understanding, it is less than half. 

Representative Jeremy Wooldridge Well, I appreciate that response. And I guess my one small follow-up question, if allowed, Mr. Chair, would be that it sounds to me, based on your testimony, that that there’s been an effort for a collaborative relationship between the association and DHS. 

You feel like that maybe that’s been one sided or not reciprocated. But I just want to know on the record, you are willing to work with the department on behalf of the Dental Association to figure out a way for us to move forward with this. Because ultimately I think we all share the same concern that we want Arkansans to be able to receive access to the treatment and to the care that they need, especially in rural parts of the state where dentists aren’t on every corner. So I just want a commitment from you all that you’re willing to work with DHS to find a way to move forward. 

Billy Tarpley Absolutely. Yes, sir. 

Representative Matthew Shepherd Representative Wooten, you’re recognized for a question. 

Representative Jim Wooten Thank you, Mr. Chairman. I want to pursue Representative Wooldridge’s question. Are you telling us that 64% several years ago accepted Medicaid patients, but today the percentage has decreased to the point where half of the dentists in Arkansas are not taking Medicaid? 

Billy Tarpley Yes, sir. 

Representative Jim Wooten Did I understand that correctly? 

Billy Tarpley Yes, sir, that’s our understanding, yes. 

Representative Jim Wooten Okay. And you contacted DHS, you said several months before the last session, so in 2024. Several, would be several months. In 2024 you made contact with DHS to explain to them the problem that dentists were facing in the state? 

Billy Tarpley Correct. Yes, sir. That’s correct. 

Representative Jim Wooten And that’s correct? 

Billy Tarpley Yes. sir. 

Representative Jim Wooten And then you stated– I want to be sure about this– you stated that you have met with DHS, or a round table or a task force or whatever you want to call it, discussion. But you heard things today from DHS that you haven’t been told. Is that correct? 

Billy Tarpley That is correct. 

Representative Jim Wooten As a representative of the dental profession in this state.

Billy Tarpley That is correct. And I want to be really clear about the comment that they’ve stayed in regular contact with us. Regular contact means that we have reached out to try to get an update. And very often it’s too late. Now everything has worked according to requirements. We had the webinar. We’ve had public input. We participated in it. We had a lot of dentists who participated in that webinar. So everything has gone along there. 

But we just don’t want to repeat what happened in the mid-2000s when we came up with an adult dental program without input from the dental community. We don’t what that to happen again. This is a benchmark of where we are right now. And we didn’t have to be here if we had gotten proper response from DHS. Now basically in the early meetings, we were told, we can’t do anything because there’s no money. 

Back in the days of managed care, we would go to DHS and to talk about the fee issue, DHS would say, go to the two MCOs you have. Two MCO’s running Medicaid, go to them. That’s where the money is. Go and talk to them. We’d go and talked to the MCOs. They said, no, we’re on a set PMP and we can’t do anymore. Go back to DHS. That’s seven years wasted right there of trying to say, we have a critical problem looming on the horizon if we don’t take action. So we’ve come back again and now we’re sitting here. 

And Representative Wooten, you’ve been in this process long enough. Those of you who are a little more seasoned will know that dentists are not in a habit of coming to the legislature saying we need more. We simply don’t do it. Dentists, the philosophy of the dental community is, let’s identify a problem, let’s recommend a solution and then let’s get back to work taking care of patients. That’s just the way that the dental mind works. 

The large majority of dentists in Arkansas are sole proprietorships. They run their own business. They do intake, they do exams, they do treatment, and they do discharge out of the very same facility. So dentists, by necessity, are very business minded. And it’s hard for dentists to understand how we could have gone through all this process, then be told, no, you have to go to the legislature. 

We’ve come to the legislature, and look at this. Look at what we’re having to do, simply because it’s been 18 years since dentists have had a fee increase. A modest fee increase is all we ask for, 60% of the 50th percentile. Now, I’m telling you, that’s pretty low. We talk about comparing it to surrounding states. Look at the new information. 

The only state that pays less of a percentage of a dentist’s normal fee is Texas. Every other state– Mississippi is very close to us. There we are neighboring Mississippi. But we’re very close. But you know what? Your constituents don’t live in Texas. They don’t live in Mississippi or anywhere else. Oklahoma is lower, I’ll do that. 

We’re Arkansans trying to take care of Arkansans. And that’s why we’re here to say the increase that’s asked for and was approved by the legislature and signed by the governor, she signed it on April 22nd, to create Act 1025 provided for a very modest recommendation and a solution that the dental community needs. 

Representative Jim Wooten So in reality, what DHS is proposing goes contrary to what the upper pay grade said that they agreed with when the governor’s office. And then contrary to the law that we passed, they’re doing the opposite. They’re denying it. 

Billy Tarpley Between April 22nd when it became Act 1025, the next time there was any activity was in October. So however many months that is, is how much of the dead zone we had when waivers could have been filed, when we could have been moving forward in preparation to meet the September 1 deadline date to implement the rate increase. 

So now we were told after that time, Keep seeing Medicaid patients and we’ll make sure your payment is retroactive to September 1. In the Teams meeting we had with DHS that Representative Mayberry requested, we were told moving forward, we don’t even know if we can do it. We don’t know if we can go back to September 1. And so obviously, that’s not what you said. That’s not what you approved in Act 1025. So I guess as much as anything, from the personal point of view, if you allow me that, if I’m told by my bosses to do something and I don’t do it, they invite me to clean my desk out. 

Now, I retire in two months. They have two months to do that and maybe they will. But at any rate, the implication is that you made a directive, the governor approved it, it was supposed to be done and it hasn’t been done. And here we are just now hearing more new information. The option four would be great, that they talked about. Option four would be wonderful. Move forward with the pediatric portion. Let’s deal with the waiver and special needs later. So, yes, sir. 

Representative Matthew Shepherd Senator Hammer, you’re recognized for a question. 

Senator Kim Hammer Thank you, Mr. Chairman. I’ll give a layman’s interpretation of what I’ve heard this morning sitting here listening when DHS comes up. They can counter whatever you’re going to answer. What I hear is we passed a piece of legislation. We gave it to DHS. Typically, agencies would respond by writing the rule that would implement this. But they have said that feds have signaled that we can’t do it. 

On the basis of that, they’re coming forward and saying we can’t write that rule. Then my response to that might be something along this line. You don’t know until you ask for it. So if we get the rule written and get it sent up to them, that’s when we’re going to find out. And if it’s something we got to modify and change, then we can modify and change based on what an actual rule written would be presented to them. That’s layman’s term from everything I’ve listened to this morning. Am I off base or am I on target? 

Trevor Hawkins Senator Hammer, you are on target. And the point here is that CMS was asking these questions, these routine follow-up questions about how it’s being shaped by DHS in October. And as far as we can tell, they never responded to those. And that’s the impetus for this December 16 or 15th letter from CMS setting those formal questions. And those are just routine follow up that any state agency has to deal with and work through. So you are on point. 

Senator Kim Hammer All right, thank you. 

Representative Matthew Shepherd Representative Mayberry, you’re recognized for a question. 

Representative Julie Mayberry In passing this bill, we made a promise, not just to dentists, but to parents, to patients, to people with special needs that we hear you. They were here. And I can’t back down on that promise. I can’t look at them in the eyes again and say, I’m sorry, it didn’t work out. I know we promised it. 

So we’ve got to do what we can. And so we were really clear in the bill and the writing. And I want to read to everybody the last three lines. And it says, ‘The Department of Human Services shall apply for any federal waiver, Medicaid state plan amendment, or other authorization necessary to implement this section.’ 

So not only did we give them the authority, you would agree with this, because giving the authority is just a ‘may’ statement. We didn’t say ‘may,’ you may do this. We said you ‘shall,’ which says, do anything and everything possible. And that’s what we told dentists. 

And dentists, and I’m going to ask you to explain in a minute some things that people, 

maybe that they’ve hired recently or have kept on because they knew that this money was coming, but then also to the families that are affected by this, who were saying we need this. This was a promise, and I just want to point out the ‘shall’ statement. 

So if there was concern that we needed a waiver, that could have been started a lot sooner, correct? It could have started in June or July, and maybe we would be further along, maybe even to the very end of the process at that point. Would you agree with that? And can you also tell me what some dentists perhaps have done expecting these new rates? 

Billy Tarpley Yes, ma’am. Thank you, Representative Mayberry. Some dentists, particularly those in rural areas where these services are needed desperately, some have added on an operatory. It’s not inexpensive to add an operatory in a dental office because they’re so highly regulated. Some have hired additional staff and told them to start September 1. 

Now they’re four months into it, paying people when there’s really not enough to do, but they want to keep the staff. And they don’t want to fire someone. So they’re looking for quick care. But to drill down a little farther on that, Dr. Jerry Friend, who’s a pediatric dentist in Conway, is seated beside me in the audience. 

As a pediatric dentist, he said, if anyone could come and look in the faces of the children and the parents when they bring their kids in for care, or if any of you could come to our Arkansas Mission of Mercy, where we will treat close to 2,000 people over two days, and look into the eyes of the people that we’re talking about here, it casts it in a completely different light. So I know that we are not talking the humanitarian side. We’re talking numbers, we’re taking dollars. 

But we’re also talking intent and purpose. And you as the legislature passed for intent and purpose Act 1025, which spoke to these very issues. And issues and amounts that were brought forward from the dental community to say, this is where we are, this is what’s needed. Dentists desperately want to continue in this program. But again, as we talked about earlier, every business only has so much margin. And therefore reduced income, reduced revenue, reduced profit, everyone can bear a little. Now we’ve gone too far. Now we’re talking 18 years and it’s just too much. It’s time for action. And that’s what the Dental Association is asking for. 

Representative Julie Mayberry Thank you. And thank you for legislators being here and being a part of the discussion. I hope that what we are able to do here today is to put a pause on accepting this letter and continue discussion and come back and maybe find some other solutions. I know DHS is listening and they also need to hear from legislators what our wishes are. And I hope that it’s been loud and clear that we want to make this work. Thank you. 

Senator Tyler Dees Senator Love 

Senator Fred Love Thank you, Mr. Chair. And I want to go back to just a few things. Number one, Mr. Tarpley, is it your testimony, because we heard from DHS that there have been three rate reviews in this time period of 18 months, is it your testimony that there have not been any rate reviews? Because you said there hasn’t been any change in 18 years, as far as the amount that dentists are receiving. So I just want to try to clarify. 

Billy Tarpley Yes, Senator Love, I can’t contest that there have not been dental rate reviews. I’m sure that there have been rate reviews. The last one that I recall that occurred, I believe, before we went into managed care. And I’m not certain about that and I don’t want to misspeak. 

But the last rate review that I recall revealed that Arkansas dentists were being paid in an amount that was similar to surrounding states. Since that time, surrounding states have been having this same conversation. They’ve been raising rates and we have not. And so what at one time, what 18 years ago appeared to be a very favorable reimbursement rate for dental Medicaid has aged, like anything 18 years old would do. 

And so at any rate, I can’t say that they have not done rate reviews. They have not been annual rate reviews, to my knowledge. They haven’t even been biannual rate reviews. So I can’t say that they haven’t, but I don’t believe anything has been done recently. Certainly, we have data that’s prepared by the American Dental Association that rates every state according to reimbursement rates in a variety of different levels. And the numbers I quoted earlier were from that statistic. 

Senator Fred Love And then the second question I have, just to wrap this up, you’re coming before us, what is the ask? Because your attorney said there’s two things that could be done. So could you restate the two things that you’re desiring to be done right now. 

Trevor Hawkins Yes, Senator Love. It’s the overarching that there’s two things that Act 1025 directs DHS to pursue. The one is the rate increase. Two is the cap increase for adults with special needs, the $500 to $1,000. Our ask, generally speaking, to DHS and what we want to support them in is separating those two things: effectuating the rate increase now rather than later, and then pursue what is likely going to need to be a waiver, a little bit longer process for the cap, the $500 to $1,000 cap increase. 

And so our ask today, the pretext of what we’re here for, is this letter told you all that we intend to not adopt these rules because CMS is going to refuse to approve them. We believe that to be patently incorrect. And we’re asking for y’all to maintain oversight. Otherwise, we’re talking about 18 going on 19 years for a rate increase. It’s going to be 20, 25 years. 

And so y’alls oversight and accountability measures, and just the fact that we’re here talking about options, says that y’all need to maintain oversight on this. And so that’s our ask is to not accept this letter as true and continue oversight in ensuring the DHS pursues Act 1025 and these other acts that y’all have passed. 

Senator Fred Love Okay, all right. Thank you. Thank You, Mr. Chair. 

Representative Matthew Shepherd All right, members. I think that’s all the questions we have right now. Thank you to the Dental Association for being here and answering questions. I’ve had a number of members that are, I think, wanting to make motions. We do have one member of the public that has signed up. And so I’ll ask Leslie Faulkner to come forward. 

Billy Tarpley  Thank you, chairs and committee members. 

Representative Matthew Shepherd Ms. Faulkner, welcome to Rules Subcommittee. Y’all are free to have a seat. Probably be easier to be closer to the mic. If you will, hit the button and introduce yourselves. And then you’re welcome to make your comments. 

Leslie Faulkner Okay, I’m Leslie Faulkner. And this is my daughter, Skylar Faulkner. She’s 23. I’m also a retired special education teacher. And now my new job is Beacon of Hope. And I help adults with complex disabilities find resources in Garland County. Thank you all for working on this because it’s so important to our friends, my former students, other people with intellectual disabilities, physical disabilities. 

When we all were talking about the waiver and how many people are in the PASSE or in the waiver, I am finding that there are so many adults in Arkansas that have not even signed up for it. The wait list to get on it, three to five years. So these people are having dental issues and need this. 

So even if you say we’re going to do only the people in the PASSE, there’s still many Arkansans that need so much dental help. And I would hate to see that it’s not– those people are not being benefited by this as well. 

Representative Matthew Shepherd Thank you for your comments. Does anybody have any questions? Seeing none, thank you. Thank you for being here today. All right, members, that’s all we have on public comment. I did say earlier I’d bring DHS back to the table. As I mentioned, there are a number of folks wanting to, I think, make motions. Does anybody have a question for DHS? Or does DHS want to come back to the table or are you–? All right, Representative Eaves. 

Representative Les Eaves I actually do have a question for DHS. I’m sorry. I’ll be quick. Specifically regarding 1025, and you heard the testimony of the Dental Association saying that– and if I get this wrong, feel free to correct me– but that it appears that DHS was using the two ideas in that bill, the rate change and the cap change together. 

From what I understood the Dental Association to say is those could be broken apart and looked at individually. Is that something you did or that you can do? Because we need to do whatever we can to get this population taken care of. And so we need sort of look outside the box a little bit. I mean, I know the bill contemplated a lot of different things, but can you address that? 

Janet Mann So actually, I think we’re all talking about option number four, which is the same thing of breaking it apart. That is the option that came out of the phone call that we had with Representative Mayberry and the Dental Association and I believe a dentist or two. There were five or six people on the call late last week. So that became their request. And we said we would add that to the list from the other three things that had been listed and that we would reach out to CMS, which we have done in trying to get those answers. So, yes, sir. 

Representative Les Eaves Okay, so you contacted CMS about option four and splitting those two apart? 

Janet Mann Yes, sir. We have contacted them about exploring all of those options and we added number four to that. They gave us the first three in their letter, and then we said we would add the fourth one and discuss it with them. 

Representative Les Eaves Any idea, I’ve heard some time frames regarding a waiver, and I know that takes a long time. But specifically regarding, I guess we’re calling it option number four, what kind of time frame are we looking at to get an answer from CMS? 

Elizabeth Pitman So that’s one of the questions we have pending with CMS. Right now, we have submitted that state plan amendment. The way that CMS’s timeframe works is, once you submit, they have a 90 day clock. So we submitted in September, so we had a 90-day clock from September. 

When these issues arose, they arose orally. That was accurate. And we had a conversation. They said they would put options back to us in writing. We waited for quite a while to get those options back. When we finally did, they actually put this on what they call requests for additional information, which means they’ve actually taken it off that 90 day clock. So they currently don’t have a timeframe for us on that SPA. 

Representative Les Eaves Is that good or bad? 

Elizabeth Pitman It’s their way of preserving that 9/1 effective date while we work through issues.

Representative Les Eaves All right, that’s fine. Thank you. 

Representative Matthew Shepherd All right, I think that’s all the questions. Representative Gonzales, do you have a question? Alright, a quick question from Representative Gonzales. 

Representative Justin Gonzales Thank you, Mr. Chair. So how did we get to this being option number four? Because from the dental testimony, it seemed like this should have been option number one. How did these things ever get combined? I’m not that familiar with the bill, but it seems like maybe it was the legislative intent that they were separated and it’s two different things to start with. And now here we’re talking about this as a final option. 

Janet Mann Yes, sir. I’ll start and Dr. Pitman will add on. But thank you for the question, because I would like to clarify that. This state plan amendment went out for public comment. And the Dental Association did comment on this but never brought this up until CMS raised some questions about breaking it apart. 

So we took the act as a whole. We did communicate with the Dental Association in April after the bill was passed about the book that they had used for some of the rate increases to then start the work on drafting the rule and looking at our system changes. 

We then did communicate with them that it was going out for public comment. And through that process, so through the biweekly meetings with CMS, when they began to tell us about some of the issues and working on that and then put it in writing, that’s how we’ve progressed to where we are. 

Elizabeth Pitman And I’ll just add that the bill, the way the bill was written, the 9/1 effective date applied to the whole thing. And so DHS, whether rightly or wrongly, assumed that the entire bill needed to move forward as a package. When we submit state plans to CMS on a subject, we like to do it all at one time because you don’t want to open the same page multiple times and be confusing. 

So we did submit it as a packet wanting to move the whole thing together because we believe that to be the intent of the legislature for that 9/1 effective date to apply to every provision in that bill. And so we wanted to try to preserve that for everything that was there. And so that was our assumption, rightly or wrongly. And we do realize now that we do need to split them apart to be able to move one piece forward, separate from the other. 

Representative Matthew Shepherd I’ll give you a follow up. 

Representative Justin Gonzales All right. Thank you. Did you know or have reason to believe that that would cause things to hold up or to slow down and get denied? 

Elizabeth Pitman No sir, I did not. We knew that there may be issues around comparability, around treating different populations differently. But to know that the limit versus the rate would be an issue, no sir, we didn’t. We did not have that information. 

Representative Matthew Shepherd Representative Painter, you’re recognized. 

Representative Stetson Painter Thank you, Mr. Chair. I have a motion. 

Representative Matthew Shepherd Okay, let’s hear your motion. 

Representative Stetson Painter Motion is to not exclude DHS from reporting requirements for Acts 567, 568, 967, and 1025 of 2025. 

Representative Matthew Shepherd Okay, just to be clear, that motion is– that applies to their total request. That’s all four. 

Representative Stetson Painter Correct, Mr. Chair. 

Representative Matthew Shepherd Okay, we have a motion. Is there a second? We have a second. Is there any discussion? Senator Irvin, you’re recognized for discussion. 

Senator Missy Irvin Yeah, thank you. I think being able to hear from the academic institutions, from private dentists and so forth, that we should bring this to Public Health and kind of really work through these issues. We will make that happen. As far as discussion on this, I think it is important to have the reporting and the oversight from this committee.

 I do want to express there are some clear problems with some of these bills. And I mean, I’m a sponsor of one of them. However that is reported to this committee, I think, is important. And then I think on Act 967, my suggestion would be just to have a separate report on 967 saying that there are no rules required for this to be enacted and then stating in your report to the subcommittee next month on that one particular bill. 

That’s my suggestion to you guys, is to make that your report on 967, which at that time I think then would be accepted by the subcommittee. On 567, I think for me personally, I knew that to be an issue during the session. And I can’t remember if that was brought up in testimony or not, but I think it was in the Public Health, in my committee, that was going to be an issue. Because you can’t provide $1,800 in diagnostic services just for one provider and not for every provider. 

And that was clear to me when we were voting on that bill. And we tried to communicate that, but we weren’t successful at communicating that when it was voted in. I mean, just to be fair, I’m just letting the legislature know that. And so I think those are real clear. And so, I would just break these apart and have a report for each one of them as to like where we are in the process. 

And for discussion purposes, I support the motion. This was the discussion I kind of wanted to have. Because at the end of the day, it’s about collaborating and working with you guys and with us to figure out how to do this. Because we definitely, if I pass a bill or any of my colleagues pass a bill, we expect it to be implemented. We expect there to be a process in place. But we also expect that all stakeholders are engaged and involved on the front ends of how these things are crafted and as they move forward, obviously. So that’s my discussion on this. Those are my suggestions. 

And for the benefit of the legislators and the sponsors of the bills and all the stakeholders, we will have a thorough Public Health Committee meeting on these options and how we can proceed with them and what that timeline looks like, as well as hearing from any private dentists that may or may not be able to provide these services. 

So that might be more clearly defined in the process that we already have for authorizing sedation with adults, that kind of thing which we already have in place, and to be able to hear from our academic institutions. I think that would be important. Thank you, Mr. Chair. 

Representative Matthew Shepherd Any other discussion? Hearing none, all in favor of the motion say aye. Any opposed? The motion passes. Thank you to DHS and the Dental Association and for all that were here to testify today. Thank you. 

Members, we’re going to continue now. We are going to move to Item D. This is a continuation of our review of the Group 3 agency rule reports under Act 781. Today we have the Division of Higher Education. Its report is in your packet. The report outlines each of the agency’s rules. And it is categorized into the rules that they are recommending to repeal and those that they recommend keeping and continuing to enforce. Would someone from the agency please come forward to present the report? 

Higher Ed rules

Courtney Salas Ford Good morning. Still morning. Courtney Salas Ford for the Department of Education Division of Higher Education. And yes, as you stated, we are here to present our report on the current rules in effect for the Division of Higher Education. We have 32 rules in effect. 

We’re asking that three of those be repealed, two of them because they’ve been replaced with new rules, the third one because of the removal of authority for the rule and conflict with other current law. And asking that we be allowed to continue with the other 29 rules to continue administration of higher ed programs and scholarships. And I’m happy to take any questions. 

Representative Matthew Shepherd Any questions? Seeing none, we have a motion. Motion to accept the division’s request. Is there a second? So we have motion to accept the division’s request to repeal three rules and keep and extend its other rules as outlined in its report, with the repeals effective upon adjournment of the Legislative Council meeting Friday, January 16, 2026. Is there any discussion? Hearing no discussion, all in favor say aye. Any opposed? The motion carries. Thank you for being here. 

Members, we’re now going to move to E. These are updates concerning rulemaking from the 2023 regular session. We have representatives from Commerce, Corrections and Education here to answer any questions that you may have about their outstanding rules. A written update from each was provided to staff as of January 1st and is included in the agenda. Does anyone have any questions for any of these agencies? Seeing no questions, we thank the agencies for appearing. But seeing no questions, we’ll move forward. 

And then finally, item F, we have our monthly written updates by agencies concerning rulemaking resulting from the 2025 regular session. These updates are in your packet. Are there any questions related to those? Hearing none, we will file the January 1st monthly written updates. Is there any other business to come before the subcommittee? Hearing none, we are adjourned.