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The Arkansas Department of Human Services is appealing a judge's order that prohibits it from using an algorithm to allocate hours of home-based care to disabled Medicaid recipients.

In a May 14 ruling, Pulaski County Circuit Judge Wendell Griffen said the department failed to provide adequate public notice before it adopted rules allowing the use of the formula to award hours to participants in the ARChoices program.

Griffen barred the department from using the algorithm until rules allowing its use had been properly promulgated.

The Human Services Department responded by proposing an emergency rule that was approved by the Legislative Council later the same week. Under the state Administrative Procedure Act, such rules can be enacted without public notice in response to "an imminent peril to the public health, safety or welfare" or to comply with a federal law or regulation.

Griffen last month suspended the emergency rule, which he called a "deliberate and calculated disobedience" to his May 14 order, and found the department in contempt of court.

The department filed a notice on Friday that it will appeal the May 14 order to the Arkansas Supreme Court.

Kevin De Liban, an attorney with Jonesboro-based Legal Aid of Arkansas who filed the lawsuit that led to Griffen's orders, noted the Surpeme Court has already rejected one appeal from the department in the case.

In that ruling, in November, the high court unanimously upheld a temporary order from Griffen that prevented the department from reducing the hour allocations for seven Medicaid recipients named as plaintiffs in the lawsuit.

"DHS didn't introduce any new relevant facts, so I think the Supreme Court will be able to deny their appeal handily," he said.

ARChoices provides home-based services to Medicaid recipients with disabilities severe enough to qualify for placement in a nursing home.

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

Most recipients are limited to fewer than 40 hours a week of care, with more hours available to those who meet special criteria, such as relying on machines that help with breathing or being fed through intravenous tubes.

Previously, Medicaid recipients could receive up to 48 hours a week under a program serving the elderly and 56 hours under one that served younger recipients, according to Legal Aid. Both programs were combined into ARChoices in 2016, when the department took away its nurses' discretion in awarding hours and began using the algorithm.

Human Services Department officials said Griffen's rulings have left the department unable to enroll people in ARChoices or perform regular assessments of the needs of the 8,800 people already in the program.

De Liban contends the department could go back to giving nurses discretion in awarding hours. The department has argued that the use of the algorithm is required by the federal waiver authorizing the ARChoices program.

In addition to proposing the emergency rule, the department had planned to pursue enactment of a permanent rule allowing the use of the algorithm. The department's attorneys said in a court filing that it scrapped those plans in response to Griffen's "statements" at the May 23 hearing in which he found the department in contempt of court.

Metro on 06/12/2018

Print Headline: DHS to appeal ban on formula; Algorithm pared home-based care

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