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The state must stop using a formula that has resulted in reduced home-based care for thousands of disabled Medicaid recipients, a judge ordered on Monday.

In his ruling in a lawsuit by Jonesboro-based Legal Aid of Arkansas, Pulaski County Circuit Judge Wendell Griffen found that the state Department of Human Services failed to provide adequate public notice before it began using an algorithm in 2016 that allocates care.

Griffen's order bars the department from using the algorithm to allocate hours until it promulgates rules for it under the state's Administrative Procedure Act.

The Human Services Department responded by saying it will seek to adopt an emergency rule implementing the algorithm.

The Administrative Procedure Act allows a rule to be adopted on an emergency basis if "any agency finds that an imminent peril to the public health, safety or welfare or compliance with a federal law or regulation" requires it to be adopted without giving the 30 days' public notice the law normally requires.

Legal Aid attorney Kevin De Liban said he would seek an order from Griffen to block such an emergency promulgation.

"If you did it wrongly the first time, you can't now use the fact that you wrongly did it to justify doing it by another secret emergency method," De Liban said.

Human Services Department spokesman Amy Webb said the department will submit the emergency rule to the Legislative Council's Executive Subcommittee on Thursday. Until the rule is adopted, the department won't conduct any assessments or change any recipients' hours, she said.

Department officials are also considering appealing Griffen's ruling, she said.

Webb also noted that the department is planning to move to a new system for allocating care and hopes to have it in place by this fall.

The system challenged by Legal Aid has been used to allocate hours of help with daily living tasks, such as dressing and bathing, to about 8,800 Medicaid recipients. Previously, nurses had discretion in awarding hours.

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

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.

Legal Aid filed the lawsuit on behalf of seven ARChoices participants whose hours were cut.

In 2017, Griffen issued a temporary order reversing the cuts for those participants while the lawsuit was pending. One plaintiff, Michael Yarra of Osceola, died Jan. 15, according to the Human Services Department.

In his ruling on Monday, Griffen agreed with Legal Aid that the Human Services Department didn't "substantially comply" with the law when it adopted rules that implemented the algorithm.

A notice published in the Arkansas Democrat-Gazette in August 2015 listed a website where the rule was posted, but didn't mention the change in the method for allocating hours, he wrote.

A letter to program participants also didn't mention the change.

"In fact the letter states that the beneficiaries would receive 'the same services,'" Griffen wrote.

He said his order was needed to prevent "irreparable harm" caused by reductions in care.

According to testimony, ARChoices participants "were required to remain in waste/soiled clothing, had increased fear of falling, suffered worsened conditions and/or went without food due to the lack of help preparing meals, among other harms described," Griffen wrote.

One plaintiff, Bradley Ledgerwood, 31, of Cash, said he would have likely had to live in a nursing home or be taken to an adult day care facility if the department had succeeded in reducing what it pays his parents to take care of him.

Using the algorithm, the department had attempted to pay his parents for just 37 hours a week, instead of 56. The reduction in pay would have meant his mother would have to find a job outside the home, leaving no one to take care of Ledgerwood during the day, he said.

In light of the ruling, De Liban called on the Human Services Department to undo the benefit cuts affecting ARChoices participants who weren't plaintiffs in the lawsuit and go back to the old system of giving nurses discretion to award hours while a new rule is promulgated.

Webb said that isn't possible.

"The old, subjective system no longer exists and is not an available option," she said in an email. "The best available option is to move forward with emergency promulgation because it protects services for the 8,000 people who depend on them."

Metro on 05/15/2018

Print Headline: Judge orders home-care aid formula's end

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