SUPPLEMENTAL DISSENTING OPINION ON DENIAL OF PETITION FOR REHEARING
No. 01-826
Supreme Court of Arkansas
Delivered January 16, 2003
Ray Thornton, Justice,dissenting. I would grant the petition for rehearing. I agree with appellant that the majority opinion did not require DHS to follow the clear language of the Act when it determined that the agency could measure compliance with the staffing requirement monthly rather than quarterly.
The Appropriation Act states:
The wage enhancement program’s top priority shall be to increase the number of direct care staff, specially Certified Nurse Assistants (CNAs), serving nursing facility residents, and shall be utilized to meet the minimum staffing requirements which are in effect by rule and are recorded in the Medicaid Long Term Care Provider Manual for the last day of each previous quarter.
Appropriation Act 1537, Section 127(a).
Appellant contends that the correct interpretation of this passage results in the requirement that nursing facilities meet staffing requirements for the CNAs. Appellant further asserts that, contrary to the clear language of the Act, the majority opinion requires it to reimburse DHS for all wage enhancements received during a quarter when a temporary vacancy occurred in one RN position, even though quarterly staffing requirements for all staff were met. Appellant points out that it is required to return payments made to provide enhancements in CNA direct care staff on the basis of a temporary RN staff shortage that was not reflected in a computation based upon quarterly reporting.
The majority opinion stated that nothing in the Act required that DHS base its staffing requirements on a quarterly basis, rather than a monthly basis. However, appellant points out the provision found in the Act requiring that the staffing standard was to be that which was “recorded in the Medicaid Long Term Care Provider Manual for the last day of each previous quarter.” Section 127(a). Appellant also points out that the word “monthly” does not appear anywhere in the statute, and that the criteria “quarterly” appears throughout the Act. The Act provides:
Beginning with the first completed quarter of SFY 1999-2000, the DHS-DMS shall provide the per patient day wage enhancement to each Medicaid certified nursing facility. The DHS-DMS shall determine on a quarterly basis the extent to which each nursing facility meets the staffing requirements established by enactments fo the 82nd General Assembly or by rules promulgated by the DHS-DMS to enhance staffing rates. The DHS-DMS shall recoup the entire wage enhancement payments made to a nursing facility for a particular quarter during which the nursing facility failed to meet the minimum staffing requirements.”
Appropriation Act 1537, section 127(a) (Emphasis added). This provision clearly directs that the quarter, not the month, was to be the time period by which the staffing standard was measured.
Appellant asserts that “[t]here is-nothing in the Appropriation Act that allows DHS to determine compliance based on monthly standards.” Cave City Nursing Home suffered an unexpected staff shortage for eight days during a one-month period but recovered and made up for the loss during the next two months that made up the quarter. The statute provides that the staffing numbers are based upon the quarter, not the month. That statutory requirement cannot be overturned by an administrative rule providing for monthly reports. The statutory provision should control.
Appellant asserts, and I agree, that the majority’s holding results in substantial unfairness. Therefore, I would grant the petition for rehearing.