Last Wednesday, seven physically disabled plaintiffs won the latest round in their legal battle with the state Department of Human Services when Pulaski County Circuit Judge Wendell Griffen found the state agency in contempt of court.
In response to Griffen's mid-May order that DHS stop using an algorithm to decide hours on home care for disabled and elderly people, the agency promulgated an emergency rule to restore the enjoined algorithm. For that, the judge found DHS in contempt and also blocked the emergency rule, calling it "a deliberate and calculated disobedience" of the permanent injunction he had handed down the previous week.
Lead plaintiff Bradley Ledgerwood of Cash (Craighead County) said he felt "relieved" the emergency rule was suspended because he feared it would lead to a reduction of the attendant care hours he receives each week through ARChoices, a Medicaid program serving over 8,000 Arkansans.
Ledgerwood, 36, has cerebral palsy and is confined to a wheelchair. He needs assistance with the most basic of daily routines. Since 2002, he has received 56 hours of attendant care each week, provided by his parents. The emergency rule threatened to reduce that figure to 37 hours — a drop from 8 hours each day to less than 5 1/2.
"In my personal opinion, they were going to the new system just to cut hours," he said.
Home-care waiver programs pay caregivers to assist certain high-need Medicaid beneficiaries with daily activities such as bathing, cleaning, using the bathroom and getting dressed. At-home services are typically much cheaper than 24/7 institutionalized care in a nursing home and are usually preferred by the people who receive them. Before 2016, DHS had two distinct home-care waiver programs for the disabled and the elderly; beginning in January 2016, it combined them into a single new program, which it called ARChoices. In a letter sent to beneficiaries beforehand, it assured people that benefits would remain the same.
But when it created ARChoices, DHS also began using a new, algorithm-based method of determining the weekly number of home-care hours received by each person. Previously, hours were assigned at a nurse's discretion. The algorithm sorted individuals into resource utilization groups, or RUGs, which determined how many weekly hours of attendant care the individual would get. DHS said the RUGs algorithm was a fairer, less subjective way of assigning hours.
When it went into effect, though, many people were alarmed to find their weekly allotment of hours had decreased, sometimes dramatically. (DHS maintains other beneficiaries saw their weekly hours increase.) Ledgerwood and several other plaintiffs from East Arkansas sued, represented by Jonesboro-based Legal Aid.
On May 14, the plaintiffs claimed victory when Griffen issued a permanent injunction against DHS. Their legal argument was based not on the merits of the RUGs-based algorithm itself, but on DHS' method of rolling it out. Griffen agreed with the plaintiffs that the agency had failed to comply with the state Administrative Procedures Act when it created the new means of assigning hours, in part because it did not give beneficiaries proper notice in 2016 that their benefits might decrease. The judge ordered DHS to stop using the algorithm unless it properly promulgated a new rule — meaning the rule would undergo public comment and a legislative review process.
However, DHS then attempted a workaround. On May 18, the agency got approval from the legislature to promulgate an emergency rule to replace the one Griffen enjoined just four days earlier.
DHS said its use of the emergency rulemaking process — which doesn't require a public comment period — was justified to ensure continuity in the program. "We have individuals who are coming into the program or who are due for [annual] reassessment and ... barring promulgation, we wouldn't be able to do that. ... The CMS waiver requires assessment," DHS spokeswoman Marci Manley said.
Waiver programs like ARChoices are created by means of a waiver from the federal Center for Medicare and Medicaid Services, which oversees the entire Medicaid program. DHS argued that the terms of its CMS waiver obligated it to stick with the algorithm. If it was forced to drop the algorithm, the agency warned that it could be forced out of compliance with CMS, potentially disrupting services.
But Kevin De Liban, an attorney for Legal Aid, said that this danger was "concocted" by DHS. "There's nothing that says they have to stop services if they can't use the RUGs algorithm," he said. "There is absolutely no legal reason in the agreement between the state and the federal government that says ... that or even suggests it."
Nonetheless, DHS sought and received its emergency rule. Legal Aid then asked Griffen to intervene and said the agency should be held in contempt.
The next week, on May 23, the judge did so. After a hearing, he said the emergency rule from DHS amounted to "an attempt to circumvent the injunction" he had just issued.
Griffen rejected DHS' argument that it was trying to remain in compliance with federal authorities, saying the agency failed to show any evidence that "the nurse's assessment process that existed [before the algorithm] has been declared unacceptable by ... CMS."
"Put simply, the emergency rule is an emergency only because the agency chose to call it that. It's a manufactured emergency, emergency by design," he said.
Griffen especially took issue with DHS' insistence that its emergency rulemaking was a good-faith effort to follow his previous order. "The agency filed notice that it was complying with this court's order which permanently enjoined it from using RUGs methodology by promulgating an emergency rule that uses RUGs methodology," he said. "That statement not only begs credulity, it is manifestly preposterous." He then granted the motion for contempt.
The order doesn't end the struggle over ARChoices. DHS could appeal Griffen's decision. (Manley said DHS could not answer questions about the ongoing litigation.) Or, the agency could create a new rule that simply reinstates the algorithm, this time taking care to more carefully follow the standard rulemaking process. But that could mean significant pushback in the public comment period.
"They can do the process differently and arrive at the same result," De Liban acknowledged, "but this time it's not going to pass in the dead of night."
This reporting is made possible in part by a yearlong fellowship sponsored by the Association of Health Care Journalists and supported by The Commonwealth Fund. It is published here courtesy of the Arkansas Nonprofit News Network, an independent, nonpartisan project dedicated to producing journalism that matters to Arkansans. Find out more at arknews.org.