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State agency found in contempt of court over rule changes

by Andy Davis | May 24, 2018 at 4:30 a.m.

A judge on Wednesday found the state Department of Human Services in contempt of court for violating his order that barred it from using an algorithm to award hours of home-based care to disabled Medicaid recipients.

Last week, Pulaski County Circuit Judge Wendell Griffen found that the department had failed to give the public notice required under the state's Administrative Procedure Act before it started using the algorithm in 2016 to allot hours of help with daily living tasks, such as dressing and bathing, to participants in the state's ARChoices program.

He barred the department from using the algorithm until it had properly enacted a rule authorizing it.

The department responded by proposing an emergency rule that was approved last week by the Legislative Council. 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.

Griffen suspended implementation of the emergency rule on Monday and, after a four-hour hearing Wednesday, called the department's action a "deliberate and calculated disobedience" to his earlier order.

He directed attorneys for the department and Jonesboro-based Legal Aid of Arkansas, which filed the lawsuit that led to the May 14 order, to submit filings on whether the department should face sanctions for the violation.

"Put simply, the emergency rule is an emergency only because the agency chose to call it that," Griffen said in announcing his ruling. "It's a manufactured emergency."

After the ruling, a security officer intervened as Legal Aid attorney Kevin De Liban attempted to confront Mark White, deputy director of the department's Division of Aging, Adult and Behavioral Health Services.

De Liban said White, referring to De Liban's request that department attorneys be referred for professional discipline, refused to shake his hand and told him to "f*** off."

White, an attorney, declined to say whether he made the comment.

"We just had a little disagreement about his bringing ethics charges into question for our lawyers who represent us," White said. "I thought that was unprofessional."

ARChoices, which serves about 8,800 people, replaced 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 groups recipients based on their medical diagnoses 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 being on a machine that helps with breathing or being fed through an intravenous tube.

Previously, department nurses had discretion in awarding hours.

In his May 14 ruling, Griffen noted that a notice of the rules implementing ARChoices didn't mention the change in the method for allocating hours, and that a letter told participants they would continue to receive "the same services."

He ruled that the department hadn't complied with the Administrative Procedure Act, which requires agencies to give at least 30 days' public notice of rule changes and allow public comments.

Department officials contend the use of the algorithm is required under the federal waiver authorizing ARChoices. They said the May 14 ruling created an emergency by leaving them with no way to assess the needs of people applying for assistance or to conduct annual reassessments for people the program already serves.

In a court filing Friday, the department said it had complied with Griffen's order by enacting the emergency rule.

Griffen on Wednesday called that "manifestly preposterous." He noted that department officials didn't testify that they had attempted to contact federal officials to verify whether the waiver requires the use of the algorithm.

Emergency rules can stay in effect for up to 120 days. The department has also proposed a permanent rule that it expects to take effect in September. It had initially planned to publish a notice of the permanent rule on June 4 but now plans to do it Friday. A public hearing will be held June 12 in Little Rock.

In the meantime, White said, the department is weighing whether to appeal Griffen's ruling and will study its options for awarding hours.

"If there's anything we can do to help our beneficiaries, we want to do it, but we'll have to see what's possible," he said.

Metro on 05/24/2018

Print Headline: DHS found in contempt over rule changes; Agency move defied order on home care, judge says


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