Care-hours algorithm favored

State panel clears path for use of tool in aiding disabled

A legislative subcommittee gave the nod Thursday for the use of a computerized algorithm to assess home-health care hours to thousands of disabled Medicaid recipients.

The assessment tool has been the subject of a court case. In a ruling Monday, Pulaski County Circuit Judge Wendell Griffen ruled in favor of a lawsuit by Jonesboro-based Legal Aid of Arkansas -- filed on behalf of seven ARChoices participants whose hours were cut by the program -- that claimed the state Department of Human Services failed to provide adequate public notice before it began using the algorithm in 2016.

Griffen barred the state from using the algorithm to allocate hours until it promulgates rules under the state's Administrative Procedure Act.

After Thursday's approval by the subcommittee, the emergency rule will go before the Legislative Council today. If approved, the Human Services Department can begin using the algorithm program.

Human Services spokesman Amy Webb said the department will now move forward with a permanent promulgation process, which includes a public comment period.

"The emergency rule allows us to use the current ARChoices Assessment tool while going through regular promulgation," Webb said.

As a result of that comment period, the department could make changes to the proposed rule, she added.

"It's important to mention that if the rules promulgated under the 'permanent' promulgation process are approved, they will only be in place for a short time. DHS was already moving to change the independent assessment it uses to conduct assessments for the ARChoices program, and the agency will continue that work. The new independent assessment should be in place by this fall. That, too, will require promulgation and we will go through the regular process," Webb said.

According to state law, the notice of the rule changes must be published in a daily newspaper for three consecutive days to give the public a chance to comment or object either orally or in writing.

The lawsuit claims that although the use of the tool was authorized by rules that were adopted in 2015, the change in how the service-hour amounts are allocated isn't adequately described in the rules or mentioned in the public notice published in the Arkansas Democrat-Gazette.

Testifying Thursday before the Executive Subcommittee of the Legislative Council, Kelley Linck, chief of legislative and intergovernmental affairs with the Human Services Department, asked for approval for immediate use of the algorithm.

"We felt this is an emergency for our clients," Linck said.

There are more than 8,000 beneficiaries of the ARChoices program with about 1,300 applications processed per month, said Craig Cloud, the department's director of provider services and quality assurance. "The reason we're not able to wait is that it takes 90-100 days" for normal promulgation of rules.

The Administrative Procedure Act allows a rule to be adopted on an emergency basis if "any agency finds that an imminent peril to the public health, safety or welfare or compliance with a federal law or regulation" requires it to be adopted without giving the 30 days' public notice the law normally requires.

Waiting until the rule could be sent out for public comments and legislative approval would create the "existence of imminent peril to the public health, safety or welfare" and adopting the emergency rule is necessary to avoid the potential loss of federal funding or certification, Rose Naff, director of the Division of Medical Services for the Human Services Department, wrote in a letter to the legislators.

"This has required the agency to cease processing new applications for persons coming into the program, as well as cease processing existing waiver beneficiaries who are due for a new assessment for a new plan year," Naff said.

Webb said a permanent promulgation would have taken months.

"And we were not willing to make thousands of people wait for life-changing services when there was a faster and legal alternative," Webb said. "We at DHS are committed to doing everything legally that we can to protect ARChoices beneficiaries and make sure their services continue."

Legal Aid attorney Kevin De Liban said after the meeting that he would sue the Department of Human Services if officials begin using the algorithm again.

"There is no emergency except that DHS wants there to be one so that it can use an illegal process that does not allow for public participation," De Liban said.

Tom Masseau, executive director of the group Disability Rights Arkansas, said in a letter to legislators that the Human Services Department had ample time since January 2017 -- when the lawsuit was first filed -- to already put the rule out for proper public comment. He added that his organization even suggested to department officials in 2017 that the rule be promulgated again.

"Now, DHS is seeking once again to circumvent the public notice and comment provisions of the Administrative Procedure Act and the transparency required by the rule-making process in that Act by asking for approval of an emergency rule," Masseau said in the letter. "There is no emergency, except that created by DHS's own actions and its recalcitrance in the face of clear law."

Masseau said he was disappointed that approval of the emergency rule took only about 10 minutes and those affected were not allowed to have a voice.

"It's unfortunate that they chose to go ahead and approve the emergency rule, bypassing the entire process," Masseau said. "They could have not voted on it and required the department to come up with the rules. We just think it was unnecessary to take this action."

The system challenged by Legal Aid has been used to allocate hours of help with daily living tasks, such as dressing and bathing, to about 8,800 Medicaid recipients. Previously, nurses had discretion in awarding hours.

The system limits most recipients to fewer than 40 hours a week of care. More hours are available for those who meet special criteria, such as being on a breathing machine or a feeding tube.

As of May 2016, 47 percent of recipients who were assessed using ArPath had their hours reduced, and 43 percent had their hours increased. The hours didn't change for the remaining 10 percent.

Metro on 05/18/2018