New lawsuit filed over home-care formula

Friday, July 6, 2018

Legal Aid of Arkansas has filed a new lawsuit against the Arkansas Department of Human Services, attempting to end the agency’s backlog of assessments and reassessments for home-based care needs.

The lawsuit was filed on behalf of Barbara Johnson, a Harrison woman with arthritis and a degenerative neuromuscular disease, and asks Pulaski County Circuit Judge Alice Gray to order DHS to conduct assessments using the previously used ArPath assessment tool, which relied on a nurse’s assessment of a disabled person’s condition in order to determine care needs, to allocate home-based care needs under the ARChoices Medicaid program, which serves approximately 8,800 people.

As of Monday, June 25, the lawsuit says 1,116 ARChoices applications had not been processed and 1,377 program beneficiaries were overdue for assessments because of DHS’s failure to administer assessments, make eligibility determinations and make attendant care allocation determinations.

In the lawsuit, Legal Aid says DHS claims it cannot conduct assessments, determine eligibility or make determinations about the amount of attendant care to provide because of the May 14, 2018, order entered by Pulaski County Circuit Court Judge Wendell Griffen, which permanently enjoined DHS from using the 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.

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 HumanServices.Arkansas.gov, DHS combined two prior Medicaid waivers, known as Alternatives for Adults with Physical Disabilities (AAPD) and ElderChoices, in January 2016 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 (RUGs) 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.”

The new lawsuit says DHS’s refusal to conduct assessments is “arbitrary, capricious, in bad faith and wantonly dangerous.” Johnson has no other remedy available for her inability to receive ARChoices services, the complaint says, and DHS is inflicting “irreparable harm” on her by denying her the care needed to remain at home and the ability to plan to meet her care needs by refusing to conduct assessments.

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