Judge won’t toss suit over ARChoices

Program recipients sued after service interruptions

LITTLE ROCK — A federal suit claiming the way Arkansas cut back or eliminated home health-care assistance to some chronically disabled or seriously ill Medicaid recipients was so bad it violates the Constitution survived its first legal challenge Wednesday.

In a 42-page ruling, U.S. District Judge Karen Baker rejected arguments the 22-month-old litigation should be dismissed because it has no merit and defendants at the state Department of Human Services are entitled to immunity. State lawyers deny any deliberate wrongdoing by agency officials.

Baker’s ruling, which is expected to be appealed to the 8th Circuit Court of Appeals, opens the door for some department leaders, top among them agency chief Cindy Gillespie, to answer questions under oath about what happened to ARChoices.

The program provides help with daily living tasks, such as dressing and bathing, to about 8,800 Arkansas residents who have debilitating conditions or illnesses so they can remain in their homes rather than be institutionalized.

Three recipients represented by Legal Aid of Arkansas — Ginger Elder of Jonesboro, Jacquelyn Dearmore of Yellville and Benjamin Taylor of Fayetteville — sued after service interruptions caused by the state’s efforts to cut back their assistance harmed their health and depleted their finances. Each had been enrolled in ARChoices for years with health conditions likely to never improve.

In the suit, they say their ARChoices’ allotment was cut back or eliminated, with no notice or an inadequate explanation, and the program’s administrators failed to timely reinstate their services like the law requires while they appealed the cutbacks. The lapse lasted about three months, with services restored only when they sued.

According to the suit, Elder is a 73-year-old oxygen-dependent former teacher with diabetes, among other conditions, that have affected her heart, mobility and digestive system. She was terminated from the program after five years despite a lack of improvement in her health. That cutback resulted in an end to her mental-health counseling, some meals and forced her to pay for services that Medicaid had been paying for.

Dearmore’s assistance was cut back after eight years in the program about 30 percent, a loss of in-home help leaving the 72-year-old to sit for hours on occasion in urine-soaked clothes and at times forego bathing regularly. A former teacher and flower shop owner, Dearmore has chronic myeloid leukemia along with deteriorating spinal discs, chronic urinary incontinence, arthritis and bipolar conditions, among other things, which require almost continual assistance.

Taylor, a former college teacher and hospital administrator, has scoliosis, prostate cancer, arthritis and diabetes preventing him from straightening his spine and legs and causes chronic pain. The cutback to the 67-year-old’s in-home assistance after two years caused him to fall and crack a rib, which forced him to go for a time without daily baths and disrupted the treatment he needed to manage an inflammatory intestinal disease, according to the suit.

The litigation seeks to hold Gillespie and other agency leaders personally responsible for shortcomings in the ARChoices program and require them to pay compensatory and punitive damages.

Those officials are Mark White, Gillespie’s chief of staff; department Chief Counsel David Sterling; Richard Rosen, the chief counsel managing attorney, and Craig Cloud, the former head of the Division of Provider Services and Quality Assurances, which oversees licensing and inspections of Medicaid providers.

They are represented by Kat Guest, senior assistant attorney general.