Jonesboro firm files new suit over formula for home care

A Jonesboro-based nonprofit group is attempting in a new lawsuit to force the state to resume its processing of applications by the disabled for help with daily living tasks, such as dressing and bathing.

Filed Friday evening on behalf of a Harrison woman with arthritis and other ailments, the suit by Legal Aid of Arkansas asks Pulaski County Circuit Judge Alice Gray to order the state to allow nurses to use their discretion in allocating hours of home-based care under the ARChoices Medicaid program, which serves about 8,800 people.

The state Department of Human Services contends the federal waiver authorizing ARChoices doesn’t allow it to leave the allocations up to nurses.

Instead, the department says it’s required to use an algorithm Circuit Judge Wendell Griffen has barred it from using.

As of June 25, the department had a backlog of 1,116 applications that hadn’t been processed and 1,377 program participants who were overdue for annual assessments of their needs.

In an earlier lawsuit by Legal Aid, Griffen ruled May 14 the department hadn’t provided the public notice required under the state Administrative Procedure Act before it started using the algorithm in 2016. His order prohibits the department from using the tool until a rule authorizing it has been “properly promulgated.”

The department responded by enacting an emergency rule. Under the state Administrative Procedure Act, such rules can 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 May 21, calling it a “deliberate and calculated disobedience” of his May 14 order, and he found the department in contempt of court at a hearing May 23.

The department has filed notices it will appeal Griffen’s orders.

Meanwhile, the department published a notice in the Arkansas Democrat-Gazette on Monday of a proposed permanent rule authorizing the use of the algorithm starting Oct. 1.

It will hold public hearings July 9 at New York Institute of Technology College of Osteopathic Medicine’s Wilson Hall at Arkansas State University, 2405 Aggie Road in Jonesboro; July 11 at the Arkansas College of Osteopathic Medicine at 7000 Chad Colley Blvd. in Fort Smith; July 12 at Drew Memorial Hospital, 778 Scoggin Drive in Monticello; July 24 at the University of Arkansas Community College at Hope’s Hempstead Hall at 2500 S. Main St.; and July 26 at Arkansas Enterprises for the Developmentally Disabled at 105 E. Roosevelt Road in Little Rock.

Each hearing will start at 5 p.m. The department will also accept written comments through July 31.

The notice is also being published today and Wednesday, department spokesman Marci Manley said.

In its latest lawsuit, Legal Aid argues the waiver doesn’t prohibit the department from allowing state nurses to use discretion to award hours, as they did before the state began using the algorithm in 2016.

The suit calls the refusal to conduct assessments “arbitrary, capricious, in bad faith, and wantonly injurious.”

“DHS has taken the unsupported position that it cannot do any assessments, determinations about people’s eligibility or determinations about the amount of care somebody’s going to get, and DHS has not voluntarily agreed to change that,” Legal Aid attorney Kevin De Liban said Monday.

De Liban said the use of the algorithm, which assigns recipients to “resource utilization groups” based on their medical diagnosis and answers to questions about their needs, has resulted in care hours being cut for many ARChoices participants.

The program provides home-based services to Medicaid recipients with disabilities severe enough to qualify for placement in a nursing home.

The algorithm limits most recipients to fewer than 40 hours a week of care, with more hours available to those who meet special criteria, such as relying 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.

Barbara Johnson, a 45-yearold former attorney named as the plaintiff in the latest lawsuit, was found eligible for help under ARChoices after winning an administrative appeal on April 9.

According to the suit, she requires help with dressing, using the bathroom and eating. She cannot drive, do housework or perform “fine motor functions” such as opening doors or medicine bottles, fastening zippers or buttons or “reliably grasping objects,” the lawsuit says.

In addition to arthritis, she suffers from myasthenia gravis, a chronic disease causing muscle weakness, and has a slow-growing cancer, known as a carcinoid tumor, and post-traumatic stress disorder, according to the suit.

She has been relying on help from a live-in caregiver she paid by giving an ownership interest in her house, the lawsuit says. But that person “has been diagnosed with a mild cognitive impairment, which affects his ability to remember and count and is a precursor to a diagnosis of dementia,” the suit says.

Johnson had been scheduled to have an assessment by a Human Services Department nurse on May 16 to determine how many hours she would get, but was told it had been canceled because of a court order, the suit says.

“As of this filing, DHS has not assessed Ms. Johnson or made any determination about the amount of Attendant Care she will receive,” the lawsuit says.