Judge lifts home-care order

Ruling allows state to begin clearing out enrollee backlog

judge on Monday lifted an order that has prevented the state from awarding home-based care to disabled Medicaid recipients under the ARChoices program for almost five months.

Pulaski County Circuit Judge Wendell Griffen’s action allows the state to begin clearing out a backlog of 2,391 enrollees who have not been awarded help with tasks such as dressing and bathing, as well as 2,848 enrollees who were overdue for an annual assessment of their needs.

In a lawsuit by Jonesboro-based Legal Aid of Arkansas on behalf of several enrollees, Griffen on May 14 ruled that the state Department of Human Services failed to give adequate notice before it began using an algorithm to allot hours of care starting in 2016.

He barred the state from using the formula to assign hours until rules allowing its use had been “properly promulgated” under the state Administrative Procedure Act.

In lifting the order on Monday, Griffen agreed with the Human Services Department that it had complied with the May 14 order by proposing rules approved by the Legislative Council last month.

Legal Aid had asked Griffen to keep the order in place, arguing that the department didn’t fully consider comments from enrollees and others who argued that the algorithm had resulted in participants’ hours being reduced to inadequate levels.

In his Monday order lifting the May 14 ruling, Griffen said that the plaintiffs’ concerns “go directly to the health and safety of persons who are likely to suffer from the effects of which the beneficiaries complain.”

But, he said, “The role of the Judiciary is not to pass wisdom on administrative action taken pursuant to valid legislative authority.

“If the Legislature has the authority to delegate and the agency engages in permissible action pursuant to the legitimate delegation of power, the role of the Judiciary is to respect the exercise of authority by its coequal Legislative and Executive branches.”

Legal Aid attorney Kevin De Liban said he wasn’t disappointed by the order.

“Judge Griffen has understood from the start how important these services are to the people most affected and has ruled in the way that we thought the law demanded,” De Liban said.

The program serves about 8,800 Medicaid recipients with disabilities severe enough to qualify for placement in a nursing home.

Griffen’s ruling came a day after the Human Services Department published a notice of proposed rules that would implement a different system for awarding care hours starting on Jan. 1.

The new rules would cap the cost of the services at $30,000 a year for the most severely disabled recipients in the program.

The cap would effectively limit many enrollees to about 46 hours of care a week, which is less than what many of them need, De Liban said.

Before 2016, he said, recipients could receive up to 48 hours a week under a program serving the elderly and 56 hours under one that served younger recipients.

Both programs were combined to create ARChoices in 2016.

“Six and a half hours a day is still not going to be enough for many individuals” with conditions such as cerebral palsy, quadriplegia or advanced multiple sclerosis, De Liban said.

He added that many severely disabled enrollees may not qualify for even that amount.

The number of hours

each enrollee receives would depend on the results of an assessment by a Human Services Department contractor and an estimate of how many minutes of assistance the enrollee needs with tasks such as bathing, dressing and eating.

Those minutes would then be reduced to account for assistance the enrollee receives from relatives, friends and other people outside of ARChoices.

“You have these multiple layers of complexity, and we don’t know yet how it’s going to translate out,” De Liban said.

Mark White, deputy director of the state Department of Human Services’ Aging, Adult and Behavioral Health Services Division, said the proposed rules will give the department more flexibility to tailor the service allocations for each enrollee.

The system would re-place group enrollees into “resource utilization groups” based on their medical diagnoses and answers to questions about their needs.

Most recipients under that system are limited to fewer than 40 hours of care a week, with more hours available to those who meet special criteria, such as requiring a machine that helps with breathing or being fed through an intravenous tube.

The cost caps under the proposed rules would not apply to services provided through the regular Medicaid program.

For that reason, enrollees could qualify for up to about 15 hours of care a week that would not count toward the cost cap.

Through ARChoices, enrollees could receive an additional 32 hours a week of assistance through a home health agency.

But an enrollee could receive more hours if they hire caregivers directly through the state’s Independent Choices program.

Under Independent Choices, enrollees can decide how much to pay the caregivers, as long as they pay at least the state minimum wage of $8.50 an hour, White said.

At that rate, one or more caregivers could work up to almost 68 hours a week without their total pay exceeding $30,000.

The hours that a home health agency could provide would be limited to about 32 hours a week because the state pays the agencies $18 an hour.

The $30,000 limit would apply to enrollees who require total or extensive assistance with moving from one place to another, eating and using the bathroom.

Enrollees requiring such assistance with only two of those activities would be eligible for up to $20,000 of care. The annual cost for those with less extensive needs would be capped at $5,000 each.

Enrollees who are currently receiving more than $30,000 would be allowed to continue

receiving their current level of care in 2019 and 95 percent of that amount in 2020.

The amount those enrollees would receive in future years hasn’t been determined.

The state would also reduce its reimbursement to assisted living facilities by about 22 percent, to $62.89 per resident per day.

Ed Holman, chairman of the Arkansas Residential Assisted Living Association, said he’s studying how the state came up with that proposed rate, which he said would be “disastrous” for the facilities.

The changes are expected to result in state and federal savings of $9.27 million in the fiscal year that ends June 30, 2019 and $13.92 million the following year, according to a notice of the proposed rules.

The Human Services Department will hold public hearings on the proposed rules on Monday at the Arkansas College of Osteopathic Medicine in Fort Smith, Oct. 18 at Drew Memorial Hospital in Monticello, Oct. 22 at the University of Arkansas at Hope’s Hempstead Hall, Oct. 29 at Arkansas Enterprises for the Developmentally Disabled, 105 E. Roosevelt Road in Little Rock and Nov. 7 at Saint Bernards Medical Center in Jonesboro. Each hearing will start at 5 p.m.

The department will also accept written comments on the rules through Nov. 7. The rules will then go to the Legislative Council and its subcommittees for approval.