Attorney fees awarded in Medicaid-hours suit

Court OKs $83,787 for legal nonprofit

A federal judge has awarded a Jonesboro-based nonprofit more than $80,000 in attorney fees and costs for its work challenging the state's use of a computer program to allot hours of home-based care to elderly and disabled Medicaid recipients.

The award was about half of what Legal Aid of Arkansas had sought for its work on behalf of Ethel Jacobs, a Helena-West Helena woman with Alzheimer's disease who died Nov. 8 at age 90.

Eleven days before her death, U.S. District Judge D. Price Marshall Jr. ruled that the state Department of Human Services couldn't reduce her benefits until it issued a notice that adequately explained why it planned to do so.

Legal Aid attorney Kevin De Liban called Marshall's ruling on the attorney fees, made last week, "a fair and reasonable award that recognizes the amount of time and energy that went into the case."

The nonprofit agency, which receives most of its funding from the federal government, offers help without charge to Arkansans with incomes of up to 200 percent of the federal poverty level. The fee award will be used to support the Legal Aid's work, De Liban said.

"We always hope for solutions that don't involve litigation if possible, but we'll litigate if those other solutions are just not on the table," De Liban said.

The lawsuit, filed in May 2016 on behalf of Jacobs and Bradley Ledgerwood of Cash, contended that the state's use of a computerized assessment tool known as the ArPath has resulted in arbitrary reductions and terminations of home-based Medicaid services, such as help with dressing, bathing and preparing meals, provided to about 8,000 elderly or disabled Arkansans under the state's ARChoices program.

The department has used the tool since 2013 to determine eligibility for the services, and since last year to determine the number of hours of service a recipient can receive.

Jacobs' son, Louis Welch, had used ARChoices to hire aides to care for his mother for 46 hours a week. Ledgerwood, who has cerebral palsy, uses the program to compensate his parents for providing 56 hours a week of care. Both Jacobs and Ledgerwood require almost constant care, according to the lawsuit.

Assessments using the ArPath in February 2016 reduced Jacobs' eligibility for weekly hours of care to 35 and Ledgerwood's to 32.

Those reductions were placed on hold after Welch and Ledgerwood filed administrative appeals. In June 2016, Ledgerwood won his appeal and was dismissed from the federal suit. Welch, meanwhile, dropped his mother's appeal so that the suit could continue.

Marshall entered a temporary order preventing the department from cutting Jacobs' hours after her administrative appeal was dropped.

After a three-day trial in Helena-West Helena in October 2016, Marshall found that the Human Services Department hadn't provided an adequate written explanation for the benefit reduction. That was the same finding the administrative hearing officer made in overturning the reduction in Ledgerwood's care hours.

In January of this year, Ledgerwood joined six other Medicaid recipients, also represented by Legal Aid, in filing a Pulaski County Circuit Court lawsuit contending that the department also didn't adequately notify the public before it began using the ArPath to allocate hours of care.

Judge Wendell Griffen issued a temporary order in February preventing the department from cutting those recipients' hours while that case pending.

The Human Services Department has appealed Griffen's order to the Arkansas Supreme Court.

Marshall's ruling last week directed Human Services to pay Legal Aid the full $8,007.30 reimbursement it requested for the cost of conducting depositions and half of its requested $151,560 in legal fees.

Explaining the partial fee award, he noted that Legal Aid didn't prevail on all of its claims, including its allegation that the reductions violated Jacobs' protection under the U.S. Constitution's 14th Amendment against being deprived of property without due process. He also said some of the legal work "in hindsight, is properly classified as unnecessary."

Contending that Jacobs would have won her administrative appeal if she hadn't dropped it, the Human Services Department had requested that Marshall award only 10 percent of the requested fees.

The department doesn't plan to appeal the fee award, Aging and Adult Services Division Director Craig Cloud said.

"We respect the judge's decision," he said. "We're thankful he agreed to discount the original request by 50 percent."

Metro on 07/18/2017

Upcoming Events