DHS told to apply disabled-care tool

Answering state query, U.S. agency rules out nurses’ discretion on hours

Posted: June 14, 2018 at 4:30 a.m.
Updated: June 14, 2018 at 11:04 a.m.

Rebutting the contention of a legal-aid organization, a federal official said in an email that Arkansas can't allow nurses to use discretion in allocating hours of home-based care to disabled Medicaid recipients.

The email from George Failla, deputy director of the federal Centers for Medicare and Medicaid Services' Long Term Services and Supports Division, came in response to an inquiry from state officials about whether they can award hours of care under the ARChoices program without using an algorithm that has been challenged in a state lawsuit.

Pulaski County Circuit Judge Wendell Griffen ruled in the suit on May 14 that the state failed to give adequate public notice before it adopted rules allowing the use of the algorithm.

Griffen barred the state from using the formula to award care hours until rules authorizing it had been properly promulgated under the state Administrative Procedure Act.

Jonesboro-based Legal Aid of Arkansas, which filed the lawsuit on behalf of seven disabled Medicaid recipients, contends the state could go back to allowing nurses to use discretion in awarding hours, as they did before the state began using the algorithm in 2016.

That's not an option, Failla said in the email sent to state Medicaid Director Dawn Stehle on Tuesday evening and filed in court on Wednesday.

Evaluations of the needs of ARChoices participants must be conducted using a method "consistent with the assessment process and tool referenced" in the federal wavier authorizing the program, Failla said in the email.

"CMS has not approved an alternative assessment process" to the algorithm, Failla wrote. "In addition, CMS would not approve a subjective methodology such as professional discretion.

"Therefore, the State may not use nurse discretion to allocate attendant care hours."

Mark White, deputy director of the Department of Human Services' Aging, Adult and Behavioral Health Services Division, said the email "reinforces what we thought, which is that we've got to have an assessment tool that CMS approves of to do those assessments."

Legal Aid attorney Kevin De Liban said Failla was responding to a "very short and slanted" letter from Stehle and that it's not clear he was aware of all the facts surrounding the issue.

He said federal regulations don't require the use of an algorithm to award hours. Before 2016, he noted, the department had used an electronic tool to perform assessments but still allowed nurses to use discretion in awarding hours.

The email provides a "conclusion that runs counter to the evidence and to CMS' own practices," De Liban said.

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

The algorithm assigns recipients to "resource utilization groups" based on their medical diagnosis and answers to questions about their needs.

Most recipients are limited 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, when the department took away its nurses' discretion in awarding hours and began using the algorithm.

Combined with Griffen's rulings, Human Services Department officials say the federal guidance leaves the state without a way to enroll people in the program or perform regular assessments of the needs of the 8,800 people the program already serves.

As of Monday, the state had a backlog of 870 applications that had not been processed and 1,360 participants who were due for an annual assessment, department spokesman Amy Webb said.

In response to Griffen's May 14 ruling, the Human Services Department proposed authorizing the algorithm through an emergency rule, which was approved by the Legislative Council later the same week.

The Administrative Procedure Act allows such rules to be enacted 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.

Days after the council's approval, Griffen suspended the emergency rule, which he called a "deliberate and calculated disobedience" to his May 14 order, and found the department in contempt of court at a hearing on May 23.

The department also had planned to pursue enactment of a permanent rule allowing the use of the algorithm. The department's attorneys said in a court filing that it scrapped those plans in response to Griffen's "statements" at the May 23 hearing.

In another filing on Monday, attorneys for the department asked Griffen to clarify whether it can restart the permanent rule promulgation, which would include a public hearing and opportunity for public comment.

In the meantime, White said he's waiting for word from federal officials on whether the state can continue to provide services to ARChoices participants who are overdue for annual assessments of their needs.

The federal government normally pays for about 70 percent of the cost of the program, but could withhold funding if it finds the state is violating the terms of the ARChoices waiver, department officials have said.

A Section on 06/14/2018