High court affirms order against DHS

JONESBORO - A temporary order preventing the Arkansas Department of Human Services from reducing aid to low-income residents with profound physical disabilities will remain in place, the Arkansas Supreme Court ruled Thursday

It's another victory for Bradley Ledgerwood of Cash, diagnosed with cerebral palsy, and requires attendant care services to perform all life activities.

"I'll tell you, I was pleased with that because I was really nervous," Ledgerwood said Thursday afternoon.

Ledgerwood was among seven beneficiaries of the ARChoices in Homecare Program who filed suit to prevent drastic cuts in their care. The program pays caregivers to assist with daily tasks, such as bathing, dressing, preparing food, eating, using the bathroom and other forms of personal care. The program is an alternative to nursing home care.

Kevin De Liban of Legal Aid of Arkansas represented the plaintiffs.

"The win shows the Supreme Court isn't going to allow DHS to use a secret process," De Liban told The Sun. "It begs the question, after this string of losses, why is DHS digging in its heels so hard."

De Liban also prevailed in a federal case in involving another beneficiary in 2016. In that case, Legal Aid was awarded almost $84,000 in attorney's fees, which were used to bring Ledgerwood's case.

In Ledgerwood's case, Pulaski County Circuit Judge Wendell Griffen granted the temporary restraining order in February. DHS attorneys appealed Griffen's decision.

The order prevents DHS from using an assessment tool based on a controversial computer algorithm in any reassessment efforts related to the plaintiffs. The judge said the agency implemented the new program in 2016 without providing proper notice.

Griffen still has to conduct a trial to determine if his temporary injunction becomes permanent. No date has been set, but De Liban said he expects it will be held in early 2018.

"They won't have to worry for at least a couple of months," De Liban said of his clients.

For about 17 years, DHS determined the level of care, up to 56 hours per week, based on the professional discretion of a DHS registered nurse who assessed the beneficiary.

DHS wanted to use a system that was based solely on a set of complex computer algorithms. The algorithms took patient information gathered from a 286-question assessment and placed the beneficiary into one of 23 tiers. Each tier is associated with an allocation of attendant care hours. The tiers ranged from a minimum of six hours per week to 81 hours per week.

Based on the new formula, Ledgerwood's services were reduced from 56 hours of care per week to 32 weekly hours.

Almost half of the 8,000 people covered by ARChoice had their services reduced. Beneficiaries with the most acute problems were hit hardest by the service reductions.

As a result, the seven plaintiffs in the state court case said they:

Had been forced to go without food.

Remained in soiled clothes or have gone without bathing.

Missed key exercises, treatments or turnings.

Faced an increased risk of falling.

Have become more isolated in their homes.

Have suffered worsened medical conditions directly due to a lack of care.

Have considered moving to nursing homes.