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Despite some lawmakers' misgivings, the Legislative Council on Friday approved an emergency rule allowing the state to resume using an algorithm to allot hours of home-based care to disabled Medicaid recipients.

In a court filing hours later, Jonesboro-based Legal Aid of Arkansas asked Pulaski County Circuit Judge Wendell Griffen to suspend the rule's implementation.

The federally funded nonprofit also asked Griffen to hold the state Department of Human Services in contempt of court for violating his order on Monday that barred the state from using the algorithm until it had properly adopted a rule allowing its use.

"DHS' use of emergency rulemaking is totally unjustified," Legal Aid attorney Kevin De Liban said after submitting the filing. "There is no imminent peril at all, and even if there were one, it would all be of DHS' own creation."

In its own court filing, the Human Services Department contended that the emergency rule was in accord with Griffen's order.

"DHS implemented the emergency rule to ensure that the more than 8,000 beneficiaries of the ARChoices program can continue receiving services, that new applicants for the program can be processed for services," and that the state continues receiving federal funding for the program, attorneys for the department wrote.

The Human Services Department has used the algorithm since 2016 to award hours of help with daily living tasks, such as dressing and bathing, to Medicaid recipients under the ARChoices program.

In his ruling on Monday, Griffen agreed with Legal Aid that the department failed to give adequate public notice before it began using the algorithm, which resulted in reductions in hours for many ARChoices participants.

An August 2015 notice in the Arkansas Democrat-Gazette of the rule implementing the ARChoices program didn't mention the algorithm or a change in the method for allocating hours, Griffen wrote.

The judge ordered the department to stop using the algorithm until it had been authorized by a rule adopted under the state's Administrative Procedure Act.

The Human Services Department responded by proposing the emergency rule. Under the law, 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.

An emergency rule can stay in effect for up to 120 days.

The Legislative Council's Executive Subcommittee gave its approval of the rule on Thursday. De Liban said Bradley Ledgerwood of Cash, who is a plaintiff in the lawsuit that led to Griffen's order, and several other ARChoices participants attended the meeting but weren't given an opportunity to speak.

Public comments typically aren't allowed at meetings of the Executive Subcommittee or council, unlike at other legislative subcommittee meetings, Sen. Bill Sample, R-Hot Springs and a chairman of the council, said.

That was troubling to Sen. Joyce Elliott, D-Little Rock.

"I don't think probably it's a good idea for us to have any public committee that does not take public commentary," she said at the council meeting Friday.

In a divided voice vote, the council rejected a motion by Sen. Bruce Maloch, D-Magnolia, that would have directed its Executive Subcommittee to reconsider its approval of the emergency rule.

Maloch contended that the rule, as proposed, was "inconsistent with legislative intent."

"I think the message has been sent that we're anxious to have a different rule and a different method" to set benefits under the program, Maloch said.

Craig Cloud, director of the Human Services Department's Division of Provider Services and Quality Assurance, said Griffen's order left the state with no approved method of assessing the needs of Arkansans applying for assistance under the ARChoices program or conducting annual reassessments of the 8,800 people the program already serves.

The department conducts about 1,000 such assessments each month, he said.

"This is not the place to fight whether you're unhappy with this rule because the result if we don't do this is going to be catastrophic for over 4,000 people," Senate Republican leader Jim Hendren of Sulphur Springs said.

De Liban contends that the department could simply allow nurses to use their professional judgment and discretion to award hours as they did before 2016.

Human Services Department officials say that would put the state out of compliance with the federal waiver authorizing the ARChoices program.

"The old system no longer exists," Human Services Department spokesman Amy Webb said.

She said the department will publish a notice of a proposed permanent rule on June 4 allowing it to continue using the algorithm beyond the expiration date of the emergency rule. The notice will be followed by a 30-day public comment period.

The department will also propose rules allowing it to switch to a different tool, developed in Minnesota, for allocating hours, Webb said. She said the department hopes to begin using that tool for ARChoices participants later this year.

ARChoices replaced both the ElderChoices program, which served people age 65 and older, and Alternatives for Adults with Physical Disabilities, which served younger Medicaid recipients.

According to Legal Aid, ElderChoices participants could receive up to about 48 hours of home-based care a week, while those in Alternatives for Adults with Physical Disabilities could receive up to 56 hours a week.

The algorithm used under ARChoices limits most recipients to fewer than 40 hours a week of care.

More hours are available to those who meet special criteria, such as being on a machine that helps with breathing or being fed through an intravenous tube. But, according to Legal Aid, few recipients have met that criteria.

As of November 2016, one person had qualified for 81 hours, the maximum allowed, and 158 people had been allotted 46 hours, according to Legal Aid. The others who had been assessed had received 37 or fewer hours per week.

In its lawsuit, Legal Aid noted that the allotments had resulted in a reduction in hours for 47 percent of recipients who had been assessed as of May 2016. The hours were increased for 43 percent of recipients and didn't change for the remaining 10 percent.

Told by Cloud that many recipients' hours have increased as a result of the algorithm, Sen. Linda Chesterfield, D-Little Rock, responded, "I guess they just don't live in my district."

"Everybody I know who is old and disabled has had a reduction in hours that they're being served as a result of this algorithm piece," she said.

Metro on 05/19/2018

Print Headline: Panel affirms state method to assign care

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