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The Arkansas Supreme Court on Thursday overturned a judge's decision to hold the state Department of Human Services in contempt of court for "willful defiance" of his order barring it from using an algorithm to allocate home-based care for disabled Medicaid recipients.

In a 5-2 decision, the high court found that the department was in compliance with Pulaski County Circuit Judge Wendell Griffen's May 14 order when it adopted an emergency rule allowing it to continue using the formula.

Griffen had ruled that the agency failed to give adequate public notice before it started using the algorithm in 2016 and prohibited the department from using the tool until rules allowing its use had been "properly promulgated."

In its ruling, written by Justice Shawn Womack, the Supreme Court found that the Human Services Department "did just that" when it adopted the emergency rule.

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."

The department argued that Griffen's order had created an emergency by leaving it with no way to assess the needs of people applying for assistance or to conduct annual reassessments for people the program already serves.

"To the extent the circuit court disagreed with the stated reasons for the emergency rule, that is not a basis for the contempt order," Womack wrote.

He noted that the Legislative Council, a panel of lawmakers that meets when the Legislature is not in session, found the department's explanation of the emergency "meritorious" and approved the rule.

In a dissenting opinion joined by Justice Jo Hart, Chief Justice Dan Kemp wrote that the department didn't present any evidence justifying the emergency rule.

For instance, he said, the department didn't indicate that it had asked the federal Centers for Medicare and Medicaid Services whether it could use another method to allocate care hours.

"Based on the record before this court, DHS appears to have circumvented the circuit court's May 14 order by running to the legislature to promulgate its emergency rule," Kemp wrote.

Human Services Department spokesman Amy Webb said department officials "appreciate the court's decision."

"We feel like it was the right one," she said.

Legal Aid of Arkansas attorney Kevin De Liban, who filed the lawsuit that led to the contempt order, said he respects the opinion.

"I think the dissent understood that this was DHS' attempt to run around a lawful court order, but the majority saw otherwise," he said.

The formula led to reductions in the hours of help with daily living tasks, such as dressing or bathing, for many of the 8,800 Medicaid recipients served by ARChoices program.

De Liban had contended that the department could have returned to allowing nurses to use their discretion in awarding hours of care, as they did before 2016.

As a punishment for violating the order, Griffen had required the department to publish statistics on its website related to its failures in assessing Medicaid recipients and provide him and De Liban with the names and contact information of each person it had "failed or refused to reassess" since Jan. 1, 2016.

Griffen had also referred department attorney Rich Rosen, Chief Counsel David Sterling and Mark White, deputy director of the department's Division of Aging, Adult and Behavioral Health Services, to the Supreme Court Committee on Professional Conduct "for determination [on] whether they possess the requisite legal knowledge, skill, thoroughness, and preparation reasonably necessary to represent DHS" in complying with the May 14 order.

Stark Ligon, director of the committee, said Thursday that the committee's consideration of such referrals is usually put on hold while an appeal is pending.

He said he will read the Supreme Court ruling, likely by early next week, and "try to figure out what it means with regard to anything we may have been asked to look at."

After Griffen suspended the emergency rule, the department promulgated a new, permanent rule governing the use of the algorithm.

That process involved soliciting public comments and holding five public hearings around the state.

With the new rule in place, Griffen on Oct. 8 lifted his prohibition on the use of the algorithm, allowing the department to begin clearing out a backlog of almost 2,400 applications for help under ARChoices and more than 2,800 enrollees who were overdue for an annual assessment of their needs.

In December, the Legislative Council approved another set of rules allowing the department to use a different method for awarding care hours.

Since the department began using the new method in January, Legal Aid has heard from about 30 ARChoices beneficiaries who have been terminated from the program, either because their needs were found under the new assessment tool to be too extensive or not extensive enough, De Liban said.

The organization is helping the beneficiaries appeal the terminations, he said.

Metro on 04/19/2019

Print Headline: Justices overturn contempt of court order against agency


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