Advocates in Arkansas at odds over Medicaid suit

Intervention in benefits case disputed

A lawsuit challenging reductions in benefits for thousands of disabled Medicaid recipients is pitting two federally funded advocacy groups against each other.

Both Jonesboro-based Legal Aid of Arkansas, which provides legal help to low-income Arkansans, and Disability Rights Arkansas, based in Little Rock, oppose the cuts that resulted from Arkansas officials' decision to use a computer program to allocate hours of home-based care to the disabled.

But Legal Aid, which filed the lawsuit last year, is opposing a request by the disability rights group to be added as a plaintiff in the case.

In the request, filed last month, Disability Rights Arkansas noted that a temporary order issued last year by Pulaski County Circuit Judge Wendell Griffen reversed cuts in benefits provided to seven Legal Aid clients but didn't help thousands of others whose benefits also were reduced.

The request asked that the disability rights group and three other Medicaid recipients whose benefits were cut be added as a plaintiffs.

"Allowing the requested intervention will ensure the representation of not just the seven named Plaintiffs, but the entire group of persons with disabilities who have been harmed by the flawed rulemaking process used by [the state Department of Human Services] in this case," attorneys for Disability Rights Arkansas wrote.

Both Legal Aid and the Human Services Department argue that Disability Rights Arkansas waited too long to attempt to get involved.

"Though the plaintiffs do not begrudge [the Medicaid recipients represented by Disability Rights Arkansas] this last-minute attempt at intervention to escape a desperate situation, their efforts would only derail the present litigation and delay a final judgment that could bring them relief," wrote Kevin De Liban, an attorney for Legal Aid of Arkansas.

The cuts resulted from a change in the way the Human Services Department allocates hours of home-based help with daily living tasks, such as bathing, dressing and eating, to about 8,800 Arkansans with disabilities severe enough to qualify for placement in a nursing home or other institution.

Before Jan. 1, 2016, department nurses had discretion in awarding hours.

According to Legal Aid, participants in the ElderChoices program, which served people age 65 and older, could receive up to about 48 hours a week.

Younger recipients, served by a program known as Alternatives for Adults with Physical Disabilities, could receive up to 56 hours a week.

In 2016, the Human Services Department combined the two programs into a new program, known as ARChoices, and started using a computerized tool known as the ArPath to award hours.

The new system assigns Medicaid recipients to "resource utilization groups" based on their medical diagnosis and answers to questions about their needs.

The system limits most recipients to fewer than 40 hours a week of care, with more hours available to those who meet special criteria, such as being on a machine that helps with breathing or being fed through an intravenous tube.

As of May 2016, 47 percent of recipients who were assessed using the ArPath had their hours reduced, and 43 percent had their hours increased. The hours didn't change for the remaining 10 percent.

Both Legal Aid and Disability Rights Arkansas contend the Human Services Department violated the state's Administrative Procedures Act by failing to give adequate public notice when the rules for the ARChoices program were adopted in 2015.

The Human Services Department contends it complied with the law by issuing a notice in August 2015 with information on where the proposed rules could be found.

Invalidating the rules, it argues, would result in the termination of all services under the ARChoices program.

De Liban contends that the department could return to the old system of giving nurses discretion to allocate hours. If it still wanted to use the ArPath, the department could start the rule-making process again, this time giving the public adequate notice, he argues.

Griffen's temporary order, issued in February 2017, restored the benefits for the seven Arkansans represented by Legal Aid of Arkansas until the lawsuit is resolved.

The Arkansas Supreme Court upheld the order in November, rejecting an appeal by the Human Services Department.

Both Legal Aid and the Human Services Department say the main facts of the case are not in dispute and have asked Griffen to issue a ruling on whether the ARChoices rules were properly adopted.

Attorneys for Disability Rights Arkansas say they didn't delay in attempting to intervene, noting that the case was filed in January 2017 and has been on appeal for much of the time since then.

They said they don't want to "re-litigate the case in its entirety" but do want to be involved in the resolution. While the case is pending, they also want a temporary order restoring benefits to other ARChoices recipients whose hours of care were cut.

They said they "anticipate that DHS may continue to appeal every adverse decision in the case, leaving those who have already been subjected to the [resource utilization groups] system in limbo without the ability to benefit from injunctive relief."

As of Thursday, Griffen had not ruled on their request to be added to the case.

Metro on 03/23/2018

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