A lawsuit filed Thursday by a legal aid organization seeks damages against four Arkansas Department of Human Services officials in their personal capacities, contending they have failed to respond to requests to fix a problem in the way the department handles Medicaid recipients' appeals of benefit terminations.
According to the lawsuit by Jonesboro's Legal Aid of Arkansas, the department routinely terminates the benefits of recipients who are found to be ineligible for services even when a recipient asks for the services to continue during an appeal of the department's determination.
The suit contends that the practice violates federal Medicaid regulations, which prohibit state agencies from terminating or reducing benefits, pending the outcome of an evidentiary hearing, to recipients who appeal the agency's decision within 10 days.
The U.S. Supreme Court has also ruled that Medicaid recipients have a right under the 14th Amendment to the U.S. Constitution to such a hearing before their benefits are reduced, according to the lawsuit.
"This isn't just some arcane, bureaucratic rule," Legal Aid attorney Kevin De Liban said. "These laws are meant to protect folks who are really vulnerable and who depend on Medicaid for the services they need to live a dignified life."
Spokesmen for the Human Services Department didn't immediately respond to a request for comment on Thursday evening.
The suit was filed in U.S. District Court in Little Rock on behalf of Ginger Elder, a 71-year-old former teacher from Jonesboro whose Medicaid benefits were terminated on March 25 after an assessment by a Human Services Department contractor found that she no longer qualified for the program on the basis of her disabilities.
The East Arkansas Area Agency on Aging told Elder about the department's decision to terminate her benefits after learning about it on March 12, three days before a notice of the decision was issued, according to the lawsuit.
The notice said Elder may be eligible to have her benefits continue during the appeal, but may be responsible for the cost of the care provided if the department's determination of her ineligibility is upheld.
On March 13, Elder sent the department a letter appealing the decision and asking for her benefits to continue while the appeal was pending, the lawsuit says.
Under Medicaid's ARChoices program, Elder, who suffers from multiple ailments and uses an oxygen tank, had received home-delivered meals and help with an attendant from the aging agency with tasks such as dressing and bathing.
Medicaid also paid for her Medicare Part B premiums, mental health treatment and medical supplies, the lawsuit says.
Since her benefits were cut off, she has fallen several times, is no longer receiving mental-health treatment and must pay out of pocket for supplies such as diapers that Medicaid previously covered, the lawsuit says.
Her husband, Vilas, 73, works part time at a movie theater and occasionally does long-distance driving to earn money, the lawsuit says. He has had to work more often to cover costs that were previously covered by Medicaid, the suit says.
A hearing on the appeal had been scheduled for Thursday but was continued.
As exhibits to the lawsuit, Legal Aid included more than a dozen emails, dating back to 2016, in which it complained about Medicaid recipients' benefits being reduced or terminated even though the 10-day window to file an appeal had not expired or the recipient had appealed and requested that the benefits continue during the appeal.
In the emails, the aid group repeatedly asked that the department develop a procedure to ensure recipients' benefits weren't prematurely terminated.
"This is my third case in the last three weeks in which the agency has not continued services at the pre-reduction levels despite timely fair hearing requests," De Liban said in one email, on April 27, 2016. "The agency is playing with individuals' lives and livelihoods."
De Liban said the department will typically restore the benefits in response to a request from an attorney, but doesn't appear to have a process for noting when the recipient includes the request while filing an appeal.
The result is a needless disruption in benefits for Arkansans who may ultimately prevail in overturning the department's decisions, he said.
"We try to help the folks who do come to us, but there are hundreds or thousands of people who file appeals who don't come to us," De Liban said. "Those people who don't have the assistance of an attorney very likely have suffered in ways similar to Ms. Elder."
The lawsuit seeks compensatory and punitive monetary damages against department Director Cindy Gillespie; Craig Cloud, director of the department's Provider Services and Quality Assurance Division; Chief Counsel David Sterling; and Richard Rosen, the managing attorney in Sterling's office.
The suit contends the officials have been "deliberately indifferent" to the department's unconstitutional practices.
It also asks Judge Kristine Baker to restore Elder's benefits and order the department to implement a policy ensuring that recipients are able to continue receiving benefits pending the outcome of an appeal.
Metro on 05/24/2019
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