Filing asks to keep care-rule block in place
DHS disregarded Medicaid patients’ input when making regulation, judge told
A legal aid organization on Tuesday asked a judge to keep in place an order that has prevented the state from awarding home-based care to disabled Medicaid recipients under the ARChoices program since May.
In a court filing, Jonesboro-based Legal Aid of Arkansas said state Department of Human Services officials didn’t adequately consider comments from program beneficiaries and others when the agency promulgated a rule that would allow it to go back to using an algorithm to determine how much care each recipient receives.
The department, meanwhile, has asked Pulaski County Circuit Judge Wendell Griffen to lift his May 14 order in light of the Legislative Council’s approval of the rule, which took effect Monday.
As of Aug. 31, the department had a backlog of 1,869 new enrollees who had not been awarded care hours and 2,411 who were overdue for annual reassessments of their needs.
“We absolutely fully considered public comments and responded in writing to them,” Human Services Department spokesman Amy Webb said in an email Tuesday. “Legal Aid of Arkansas is asking the court to prevent thousands of Arkansans from receiving the care they need.”
About 8,800 Medicaid recipients are enrolled in the program, which provides
home care to people with disabilities severe enough to qualify for placement in a nursing home.
When Griffen issued the May 14 order, he found the department hadn’t given adequate public notice before it adopted an earlier rule allowing it to use the algorithm starting in 2016.
He barred the department from using the formula until such a rule had been “properly promulgated” under the state Administrative Procedure Act.
In the filing on Tuesday, Legal Aid attorney Kevin De Liban argued that the department fell short of the law’s requirements when it adopted the new rule.
Of the 59 people who submitted written comments or spoke at public hearings on the rule in July, at least 41 were
“unreservedly critical” of the allocation formula, “with the main criticisms focused on the failure of the algorithm to provide sufficient hours of care and to account for the professional input of a nurse or doctor,” De Liban wrote.
Those criticizing the rule included 18 ARChoices beneficiaries and 12 friends or relatives who care for beneficiaries and eight service providers, he wrote. Legal Aid, which provides free legal help to low-income people, and Disability Rights Arkansas, a federally empowered advocate for the disabled, also submitted comments.
In response to the comments, the Human Services Department said it plans to seek approval from the federal Centers for Medicare and Medicaid Services to use another method to award hours. In the meantime, it said, the algorithm is the only method it has received approval to use.
The algorithm assigns enrollees to “resource utilization groups” based on their answers to questions about their needs.
De Liban said the department didn’t demonstrate that it had considered other options, such as increasing the number of hours available under the algorithm or allowing department nurses to adjust the allocations to meet the needs of each beneficiary.
The department could also go back to allowing nurses to use their discretion to award hours, as they did before 2016, or “grandfather” the allocations that were in place under the old system, De Liban argued.
The state’s Administrative Procedure Act requires agencies to “fully consider all written and oral submissions respecting the proposed rule before finalizing the language,” he noted.
The law also requires agencies to consider “reasonable alternatives” and prohibits
them from adopting rules unless they are based on “the best reasonably obtainable scientific, technical, economic, or other evidence and information available.”
He asked Griffen to keep the order in place until the department demonstrates that it has considered the public comments and possible modifications or alternatives to the rule.
“The commenters offered specific examples of inadequate care, the adverse impact of [resource utilization groups] on beneficiaries and their caregivers, and recommendations both explicit and implicit about reasonable alternatives, including modifications of [resource utilization groups], that would address their concerns,” De Liban wrote. “However, DHS’s written responses evince total lack of consideration for the thrust of the comments, recommendations, and alternatives.”
In Tuesday’s email, Webb
said, “Legal Aid’s position has the potential to harm vulnerable people. As for alternatives, the only alternative is not providing attendant care to people who need it, and we are not OK with that.”
The department combined two programs to create ARChoices in 2016.
Most recipients are limited to fewer than 40 hours a week of care, with more available to those who meet special criteria, such as relying on machines that help with breathing or being fed through intravenous tubes.
Previously, 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.
Medicaid recipients who have not yet been awarded care hours under ARChoices can still qualify for up to about 15 hours a week of assistance under the Medicaid
program’s personal-care benefit.
The department initially responded to Griffen’s May 14 order by submitting an emergency rule, which the Legislative Council approved on May 18.
The Administrative Procedure Act allows such rules to be adopted 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 three days later, calling it a “deliberate and calculated disobedience” of his May 14 order, and found the department in contempt of court.
In July, the department proposed the new permanent rule, which the Legislative Council approved last month.
The department has appealed the contempt finding and May 14 order to the state Supreme Court.