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DHS freezes home-based care sign-ups; order results in backlog of unprocessed applications

by Andy Davis | May 31, 2018 at 4:30 a.m.

A judge's order has prompted the state Department of Human Services to stop enrolling disabled people in a program that provides them with home-based care, resulting in a backlog of 686 unprocessed applications as of Wednesday.

In an email to home health care providers, Mark White, deputy director of the department's Division for Aging, Adult and Behavioral Health Services, also said the department will not conduct assessments of the needs of the 8,800 people already served by the program, known as ARChoices, "even if their conditions worsen."

"To protect the health and safety of ARChoices beneficiaries, DHS -- with approval from the Governor's office and DHS legal counsel -- is asking that you continue to provide current beneficiaries services at current levels for a short period of time," White said in the email to providers Tuesday afternoon.

The halt in enrollment comes after a May 14 order by Pulaski County Circuit Judge Wendell Griffen, who found that the department failed to give adequate public notice before it adopted a rule allowing it to use an algorithm to award hours of help with daily living tasks, such as dressing and bathing.

Griffen ordered the department to stop using the formula until a rule allowing it had been "properly promulgated" under the state's Administrative Procedure Act.

The department responded by enacting an 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.

Griffen suspended the emergency rule last week. At a hearing on May 23, he called it a "deliberate and calculated disobedience" of the May 14 order, found the department in contempt of court and asked it to submit a filing on why it should not face sanctions.

The department has contended that the federal waiver authorizing ARChoices requires it to use the algorithm.

Kevin De Liban, an attorney with Jonesboro-based Legal Aid of Arkansas, disputes that. De Liban filed the lawsuit that led to Griffen's rulings.

"There's absolutely nothing in the waiver document" prohibiting the department from allowing nurses to use discretion in setting hours, as they did before 2016, when the department began using the formula, he said.

Department officials "are voluntarily choosing to deny services to people who both need them and otherwise qualify for them, and they're trying to cast that as some effort to protect people who they are actually harming," De Liban said.

The algorithm 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 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.

Griffen's May 14 order prevented the department from following through with reductions in hours for six Medicaid recipients represented by Legal Aid.

But De Liban said the department hadn't responded as of Wednesday to his requests that it undo reductions in hours provided to thousands of other Medicaid recipients as a result of the algorithm.

Among those facing such reductions are three recipients, represented by Disability Rights Arkansas, who attempted to join the Legal Aid lawsuit.

Disability Rights Arkansas attorney Thomas Nichols said he is scheduled to meet with department officials on Friday to discuss the group's request that those recipients' hours be restored to their previous levels.

Another recipient, David Fisher, 71, of Rogers had his hours cut from 48 a week to 37 in 2016.

His home health aide, Justin Easter, said he still provides Fisher with the same amount of care -- he's just paid for less of it. He visits Fisher about eight hours a day, seven days a week, and hasn't taken a day off since the cuts took effect.

If his employer, Visiting Angels Northwest Arkansas, provided a substitute worker, "I'm not sure that that person would fill in as many hours as I do," Easter said.

"They might only show up for the five hours they get paid."

In a court filing Wednesday, attorneys for the department argued that it should not be punished for violating the May 14 order.

The order didn't "expressly prohibit" the department from proposing the emergency rule, the attorneys wrote.

"In hindsight, perhaps DHS should have first sought clarification with the Court prior to proceeding with the emergency rule under the Arkansas Administrative Procedure Act, but that does not, and should not, rise to the level of sanctionable conduct," the attorneys wrote.

The attorneys added that the department has scrapped its plan to propose a permanent rule allowing it to use the algorithm and "will conduct no new assessments on ARChoices beneficiaries or applicants while the current waiver is in effect."

"This action is taken notwithstanding testimony introduced at the hearing that, as of that date, several hundred ARChoices applications were being held, and that the number will increase daily," the attorneys wrote. "As stated at the hearing, one of the situations DHS sought to address through the temporary rule under [the Administrative Procedure Act] was the imminent peril to these new ARChoices applicants."

The Administrative Procedure Act requires agencies to give 30 days' public notice and an opportunity for public comments before enacting permanent rules.

The department attorneys said in the filing that the decision not to seek a permanent rule came in response to Griffen's "statements" at the May 23 hearing.

Department spokesman Amy Webb said the department is still planning to propose a rule later this year that will allow it to use a different system to allocate hours as part of an amendment to the ARChoices waiver.

In the meantime, state Medicaid Director Dawn Stehle asked an official with the Centers for Medicare and Medicaid Services in a letter Friday whether the department can "disregard the use of the approved objective" algorithm and "instead, use nurse discretion to subjectively allocate attendant care hours."

She also asked whether the department can continue providing services to current participants, without conducting assessments, "pending transition to a new assessment methodology."

The federal official hadn't responded as of Wednesday, Webb said.

Metro on 05/31/2018


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