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Arkansas lawmakers rebuff rules on care hours

Recipients speak against effort to restart use of tool

In a divided voice vote, a pair of legislative committees on Thursday recommended against approving rules that would allow the state to resume its use of an algorithm to award hours of home-based care to the disabled.

State officials contend that they cannot allot care hours to new enrollees or reassess the needs of those in the program, a group that totaled more than 4,000 Arkansans with disabilities as of Aug. 31, until the rules are approved.

The House and Senate public health committees rejected the rules after hearing from beneficiaries of the ARChoices program and their advocates, who said the formula has resulted in reductions in hours of help with daily living tasks for many of the program's most severely disabled enrollees.

"Anyone can have an accident, be in a car wreck, and their whole life could be just like this," said Andrea Reaves, 35, of Benton, whose injuries from a car accident 19 years ago left her paralyzed from the chest down.

"We deserve the dignity, the respect, to just be treated like human beings with the care we deserve," she told the legislators.

Mark White, deputy director of the state Department of Human Services' Aging, Adult and Behavioral Health Services Division, acknowledged that "there have been issues" with the formula, but he said the federal Centers for Medicare and Medicaid Services has not approved another method for the state to allot the care hours.

The state stopped using the algorithm in May, when Pulaski County Circuit Judge Wendell Griffen ruled that regulations allowing its use had never been properly promulgated under the state Administrative Procedure Act.

Since then, the state has accumulated a backlog of 1,869 new enrollees who have not been awarded care hours and 2,411 enrollees who were overdue for a reassessment as of the end of August, White said.

In "several instances," people waiting for their hours to be awarded have ended up going into institutions, he said.

Griffen barred the state from using the formula until the rules had been promulgated, which ultimately led the Human Services Department to present the rules to the committees for their review on Thursday.

White said the department is working on a new system that it hopes to start using instead of the algorithm on Jan. 1.

In the meantime, "what we don't want to do is make our beneficiaries wait for these needed services," he said.

Rep. Josh Miller, R-Heber Springs, who was paralyzed in a car accident in 2000, said he appreciated the people who spoke against the algorithm.

He said he's been enrolled in ARChoices or a predecessor program since 2004 and called it "very crucial to my life."

"There's something seriously jacked up with this," he said.

"I want this committee to know and understand that I am very, very, unfavorable of this moving forward."

The department had used the algorithm since 2016, when it combined two programs that served disabled Medicaid recipients into ARChoices.

The formula assigns the program's 8,800 recipients to "resource utilization groups" based on their medical diagnoses and answers to questions about their needs.

Most recipients are limited to fewer than 40 hours a week of care, with more available to those who meet special criteria, such as relying on machines that help with breathing or being fed through intravenous tubes.

Previously, Human Services Department nurses had discretion in awarding hours, and 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 Jonesboro-based Legal Aid of Arkansas, which filed the lawsuit that led to Griffen's order.

Legal Aid attorney Kevin De Liban told lawmakers Thursday that his organization hadn't received any complaints about allocations of care hours until 2016.

Since then, it has heard from about 175 people. He said he knew of two people who had been institutionalized because of the reduced care.

In July, Legal Aid filed a second lawsuit, this time asking Griffen to force the department to go back to allowing nurses to use discretion in awarding hours. The group, which provides free legal help to low-income people, disputes the department's contention that it can't use that method.

Rep. Jack Ladyman, R-Jonesboro, said he had seen information indicating that 281 enrollees had appealed their care allocations over two years, and that only 9 were successful.

Thomas Nichols, an attorney with Disability Rights Arkansas, said the only way for enrollees to win is if they can show that they received an inadequate notice of the hour reduction or that a Human Services Department nurse didn't accurately record their answers to questions about their health needs.

"We had doctors testify, nurses testify, that if this person doesn't receive a higher number of hours, they're likely going to die," but still failed to win a restoration of the enrollees' hours, he said. Disability Rights Arkansas is a federally-empowered nonprofit advocate for the disabled.

White said the department is considering allowing more flexibility for awarding hours under the new system it hopes to start next year. In the meantime, he said, any changes would require approval from the Centers for Medicare and Medicaid Services.

Miller said the potential for cuts to such programs are one reason he opposed expanding the state's Medicaid program, which he contends cost the state money that could be used for the state's "most vulnerable population."

"I don't want to hold up other folks from getting services, but I don't want them being assessed with the RUGs method, because it sucks," he added, using an abbreviation for the resource utilization groups.

He said after the hearing that his own care hours were cut as a result of the algorithm, but that he wasn't affected as much as some other enrollees.

The rules and the committees' recommendation will go to the Legislative Council's Administrative Rules and Regulations subcommittee on Tuesday. If approved by the subcommittee, the rules will go to the full council for final approval.

Rep. Kim Hammer, R-Benton, who proposed the unfavorable recommendation, said he wants to know what impact the algorithm has had on state spending and whether it is "unfairly punishing" enrollees to allow more people to be served.

Creating ARChoices in 2016 allowed the state to eliminate a list of 554 people who had been waiting for services under the program that had served people ages 21-64, state officials have said.

"I just felt there was too big of a negative cloud over it to just pass it out of here" without lawmakers' questions being answered, Hammer said.

Metro on 09/14/2018

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