Lawsuit stalls assessments for home-based care

Tuesday, July 3, 2018

As of June 2018, about 1,600 Arkansans are still waiting for either assessments or reassessments from the Arkansas Department of Human Services (DHS) for their home-based care needs.

Pulaski County Circuit Court Judge Wendell Griffen ordered Monday, June 25, that, as a result of its “willful defiance” of a previous court order, DHS must publish statistics on its website reflecting the number people it has failed or refused to reassess each month for home-based care needs since the court’s initial ruling on Feb. 7, 2017.

According to, 628 people are waiting on assessments and 997 people are waiting on reassessments as of June 2018.

In January 2016, the website says, DHS combined two prior Medicaid waivers, known as Alternatives for Adults with Physical Disabilities (AAPD) and ElderChoices, into a single Medicaid waiver known as ARChoices.

The memorandum order says DHS had also switched from the ArPath assessment, which relied on a nurse’s assessment of a disabled person’s condition in order to determine care needs, to a reassessment method based on a computer algorithm that assigns disabled people who need attendant care into one of 23 resource utilization group (RUG) tiers to determine the amount of attendant care each was entitled to receive.

On Jan. 31, 2017, a group of seven ARChoices beneficiaries moved for a temporary restraining order and preliminary injunction, contending that the DHS rule change had not satisfied the notice and comment provisions of the Arkansas Administrative Procedures Act.

Based on evidence heard and obtained by the court, the order says the court entered a temporary restraining order on Feb. 7, 2017, enjoining DHS from conducting reassessments and reducing attendant care hours under RUGs.

On May 14, 2018, the court permanently enjoined DHS from using RUGs methodology to determine attendant care hours because the department had failed to provide the public notice required under the Administrative Procedures Act and the new system had resulted in reductions in hours for many recipients.

On May 18, 2018, DHS filed its notice of compliance with the court, asserting it had filed an emergency rule because of the “imminent peril to the public health, safety or welfare” so that it could continue using the RUGs methodology while “addressing the deficiencies found by the court in the promulgation process.”

In his June 25 order, Griffen says the emergency rule filed by DHS is an attempt to circumvent and defy the court order. Griffen referred two department attorneys and a top agency official to the Supreme Court Committee on Professional Conduct to determine whether they are competent to continue representing DHS in the case. In the order, he says their claim in the notice of compliance that DHS is or has been confused about what “properly promulgated” means implies they have “a degree of legal imbecility this court does not endorse.”

Renee Gonzalez, regional manager of the Area Agency on Aging of Northwest Arkansas (AAA) for Carroll, Boone and Newton counties, said these legal proceedings have unfortunately prevented Arkansans from receiving the care they need.

“Since the lawsuit that stopped the assessments about a month ago, right here in Carroll County alone our agency has eight people we’ve helped apply who are waiting for an assessment,” she said. “There’s about 20 people waiting in Boone County and about five or so in Newton County.”

Executive director Jerry Mitchell said AAA is concerned about how long it will take DHS to catch up on the backlog of patients waiting to be assessed.

“It takes a nurse some time to get out there, get a client assessed and scheduled and get them on this program,” Mitchell said. “Hopefully, they would bring in someone to help to additional assessments.”

“The last we heard, it may take until September before we have some resolution on this,” Gonzalez said.

One good thing, Mitchell said, is that clients already enrolled in ARChoices are not getting kicked out of the program while the issues with the assessment methodology are being resolved.

“It’s just the people waiting to come in,” Mitchell said. “However, current clients are not getting additional hours if they need them because that requires a reassessment.”

Gonzalez said that was the issue with the RUG system that got the lawsuit started.

“There wasn’t any room for the actual nurse to do any assessing,” Gonzalez said. “It was completely based on how you answered the questions on this assessment. We saw a lot of people who are bed-bound or wheelchair-bound getting their hours significantly cut. If a certain question didn’t pertain to them, that answer was a ‘no.’ There was no way to go beyond that on these assessments.”

One client, she said, went from getting eight hours of home-based care seven days a week to four hours of home-based care five days a week.

“That’s a huge reduction in hours,” Gonzalez said.

She said this impacts a variety of services, including attendant care, home-delivered meals and personal emergency response system (PERS). It also impacts the Money Follows the Person (MFP) program, she said, which is a federal demonstration program that helps Medicaid-eligible individuals currently living in longterm care facilities successfully transition back into the community.

“We have a 37-year-old quadriplegic client who has been in a facility since May 2017,” Gonzalez said. “He’s been there over a year now and is ready to move out, get back into an apartment and get back into the community. Everything is ready and the program will help with whatever he needs to move out.”

She continued, “But he can’t move out without an assessment to determine the services he’ll need to help with his daily needs once he’s out. He’s waiting in a nursing home waiting to go home because he can’t be assessed.”

“This needs to be addressed because it is hurting a lot of the poor, elderly and disabled people who need this program to help them,” Mitchell said. “The best thing would be if there would be some kind of reprieve that would let them go ahead and do something to allow new people to come on in.”

Gonzalez said local DHS staff have been doing everything they can to help during this situation.

“All of our local DHS nurses and staff in the county are wonderful people,” she said. “They’re really helping moderate a situation that is a tough one for everyone. They’ve been working with us the best they can.”

“We all try to help the patient,” Mitchell said. “We work very closely with DHS, and they work closely with us.”

Gonzalez said one issue AAA is running into is potential clients being discouraged by the long wait for assessment.

“When the nurses and care coordinators talk to them about the lawsuit going on and mention how long the process could take, many people get so discouraged by the whole thing,” she said, “that they’re not even trying right now.”

“We also help our clients with incontinence supplies,” Mitchell said. “Unfortunately, there are a lot of people trying to get in who are incontinent, and the incontinence supplies are a big thing for them. It’s about $6 per package. They need that.”

“Medicaid is the only one that will pay for that,” Gonzalez said. “Medicare doesn’t.”

Home-based care not only helps the clients, Mitchell said, but it also helps the state.

“The whole impetus for this program is that it saves the state money,” he said. “This is less expensive than institutional care. If you’re out there making sure they’re getting meals, taking baths and being taken care of, then they don’t have to visit the emergency room. Once they’re in the emergency room, Medicare and Medicaid both have to help pay for that.”

Gonzalez said AAA does everything it can to try to keep clients in their homes as long as they can be.

“You do see a lot of deterioration once they’re out of their environment,” she said. “This is where they want to be, and we try to be an advocate for what people want at the end of their life.”

Mitchell said the lawsuit had definite merit, but now the issues need to be resolved.

“This lawsuit kind of shined a light on what needed to be done,” he said. “But now that the light is shining on it, let’s correct it. We need to go ahead and get these people who need help into the system.”

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