Elder v. Gillespie
| Decision Date | 31 March 2021 |
| Docket Number | Case No. 3:19-cv-00155 KGB |
| Parties | GINGER P. ELDER, et al. PLAINTIFFS v. CINDY GILLESPIE, Director, Arkansas Department of Human Services in her official and individual capacity, et al. DEFENDANTS |
| Court | U.S. District Court — Eastern District of Arkansas |
On May 23, 2019, plaintiff Ginger P. Elder initiated this lawsuit against defendants Cindy Gillespie, Director of the Arkansas Department of Human Services ("ADHS") in her official and individual capacity; Craig Cloud, Director of the Division of Provider Services and Quality Assurance of ADHS in his official and individual capacity; Richard Rosen, Managing Attorney for the Office of Chief Counsel of ADHS in his official and individual capacity; and David Sterling, Chief Counsel of ADHS in his official and individual capacity (Dkt. No. 2). On May 29, 2020, this Court granted Ms. Elder's motion for leave to file her first amended complaint (Dkt. No. 25), and on June 11, 2020, Ms. Elder filed her first amended complaint which added claims against defendants Mark White, Deputy Director of the Division of Aging, Adult, and Behavioral Health Services in his official and individual capacity; Jerald Sharum, Director of the Division of Provider Services and Quality Assurance of ADHS in his official capacity; and John Doe in his official and individual capacity (Dkt. No. 26).
On June 24, 2020, this Court granted Ms. Elder's motion to consolidate this case with Dearmore v. Gillespie, Case No. 4:20-cv-188-KGB (Dkt. No. 28). On July 10, 2020, Ms. Elder and plaintiffs Jacqueline Dearmore and Benjamin Taylor filed their operative consolidated complaint against defendants Ms. Gillespie, Director of ADHS in her official and individual capacity; Mr. Cloud, Director of Division of Provider Services and Quality Assurance of ADHS in his individual capacity; Mr. Rosen, Managing Attorney of the Office of Chief Counsel of ADHS in his official and individual capacity; Mr. Sharum, Director of the Division of Provider Services and Quality Assurance of ADHS in his official capacity; Mr. Sterling, Chief Counsel of ADHS in his official and individual capacity; Mr. White, Chief of Staff to Ms. Gillespie and Chief Legislative and Intergovernmental Affairs Officer of ADHS in his official and individual capacity; and John Does in their official and individual capacities (Dkt. No. 31).
Before the Court is a motion to dismiss filed by Ms. Gillespie, Mr. Sterling, Mr. Rosen, and Mr. White ("ADHS defendants") (Dkt. No. 32). Plaintiffs responded in opposition to the motion (Dkt. No. 34), and ADHS defendants replied (Dkt. No. 35). For the following reasons, the Court denies ADHS defendants' motion to dismiss (Dkt. No. 32).
Medicaid is a federal medical assistance program for individuals with limited economic resources in which the State of Arkansas has elected to participate (Dkt. No. 31, ¶¶ 17-18). Arkansas has designated ADHS to be the state agency which administers and supervises the administration of Arkansas's Medicaid program (Id., ¶ 18). Home and Community-Based Services ("HCBS") programs are optional services under the federal Medicaid Act and provide community-based alternatives for individuals who would otherwise require institutionalization (Id., ¶ 21). ADHS currently operates an HCBS program called ARChoices which provides services including attendant care services, home-delivered meals, and a personal emergency response system (Id., ¶¶ 22-23). An ARChoices beneficiary also receives the full range of state plan Medicaid services (Id., ¶ 24). An individual must meet certain financial and functional eligibility criteria to qualify for ARChoices (Id., ¶ 29).
ADHS conducts a functional eligibility assessment at least once per year to determine whether an individual is eligible and the amount of services to allocate to the individual (Id., ¶ 31). On January 1, 2016, ADHS switched its system for determining eligibility from a system based on professional discretion of an ADHS registered nurse to a system based on an algorithm called Resource Utilization Groups ("RUGs"), which resulted in about half of all ARChoices beneficiaries receiving service reductions (Id., ¶¶ 32-33). On January 1, 2019, ADHS implemented a new assessment tool called Arkansas Independent Assessment ("ARIA"), under which a nurse employed by a company called Optum visits an applicant or beneficiary and asks questions using an ARIA assessment tool (Id., ¶¶ 34-35). Those responses are run through an algorithm to determine eligibility based on tiers, and ADHS then allocates services to eligible individuals based on an ARChoices Person-Centered Service Plan ("PCSP") (Id., ¶ 35). An ADHS nurse sends the applicant or beneficiary a copy of the PCSP along with a Notice of Action, triggering the beneficiary's right to an appeal (Id., ¶ 36). Federal and state Medicaid regulations require ADHS to send a notice of adverse action to a beneficiary at least 10 days before the date the adverse action will take effect, and ADHS may not terminate or reduce benefits until the outcome of a hearing if the beneficiary timely appeals (Id., ¶¶ 43-44).
Plaintiffs represent that Ms. Elder has been an eligible ARChoices Medicaid beneficiary since 2015 and receives attendant care and home-delivered meals (Id., ¶¶ 49-50). ADHS increased Ms. Elder's allocation of care hours in 2016, 2017, and 2018, and, according to her last ADHS assessment prior to 2019, ADHS determined that she required approximately 30 hours of care per week (Id., ¶ 51). According to Ms. Elder, on or around January 15, 2019, ADHS assessed Ms. Elder for ARChoices eligibility using the ARIA assessment instrument and, on March 12, 2019, informed East Arkansas Area Agency on Aging, which in turn informed Ms. Elder, that Ms. Elderwould no longer be eligible for ARChoices and would be terminated from the program pursuant to the January 15, 2019, assessment (Id., ¶¶ 56-57). On March 13, 2019, Ms. Elder appealed ADHS's decision to terminate her eligibility and asked ADHS to reinstate her ARChoices services (Id., ¶ 58). On March 15, 2019, ADHS issued a Notice of Action to Ms. Elder terminating her ARChoices eligibility as of March 25, 2019 (Id., ¶ 59; Dkt. No. 31-1).
ADHS received Ms. Elder's appeal letter by March 25, 2019, and terminated her ARChoices Medicaid services that same day (Dkt. No. 31, ¶¶ 60-61). According to plaintiffs, Ms. Elder did not receive ARChoices services between March 25, 2019, and May 26, 2019, and suffered damages as a result of the termination of her ARChoices benefits (Id., ¶¶ 64-71). On June 6, 2020, ADHS implemented a new plan of care allocating Ms. Elder about 30 weekly hours of combined attendant and personal care and withdrew the adverse action reflected in the March 15, 2019, notice (Id., ¶¶ 74-75). Plaintiffs maintain that reinstatement of Ms. Elder's ARChoices Medicaid did not compensate her for the costs of care and medical treatment she went without or for other costs, anguish, and suffering she experienced as a result of ADHS's termination of ARChoices prior to an evidentiary hearing (Id., ¶ 76). Plaintiffs assert that, based on ADHS's standard procedure of yearly assessment, Ms. Elder faces imminent reassessment, which has been delayed due to COVID-19 (Id., ¶ 77).
Plaintiffs next represent that Ms. Dearmore first applied for the predecessor program to ARChoices in 2012, and ADHS determined her to be eligible in 2012 and every year since then (Id., ¶ 82). Ms. Dearmore had been receiving 143 hours per month of attendant care from at least August 2017 to November 8, 2019, and also received seven home-delivered meals per week and a personal emergency response system pursuant to her plan of care in effect prior to November 8, 2019 (Id., ¶ 83). On November 8, 2019, ADHS mailed Ms. Dearmore a Notice of Action, anARChoices PCSP authorizing her to receive 103 hours per month of combined attendant and personal care effective December 1, 2019, and a Task and Hour Standards ("TAHS") form (Id., ¶ 84; Dkt. No. 31-4). According to plaintiffs, the Notice of Action does not identify that a reduction has taken place and does not provide any specific reasons for the reduction (Dkt. No. 31, ¶ 85). Plaintiffs allege that Ms. Dearmore did not understand from the notice or service plan why her services were being reduced (Id.).
On November 15, 2019, Ms. Dearmore completed and emailed a form to appeal ADHS's decision and checked a box marked, "I want to continue getting medical assistance until the hearing" (Id., ¶ 87; Dkt. No. 31-5). ADHS received the appeal within 10 days of November 8, 2019, and authorized Ms. Dearmore to receive 103 hours per month of combined attendant and personal care starting December 1, 2019 (Dkt. No. 31, ¶¶ 87-88). Plaintiffs represent that defendants restored her care on March 3, 2020, after being served with notice of her lawsuit and a motion for temporary restraining order (Id., ¶ 88). Plaintiffs also assert that Ms. Dearmore suffered damages as a result of her reduced care hours between December 1, 2019, and March 3, 2020 (Id., ¶¶ 89-92). Plaintiffs assert that ADHS will continue to assess Ms. Dearmore using the same ARIA assessment tool and related algorithms currently in effect, so Ms. Dearmore will face a certain reduction of services (Id., ¶ 98). Plaintiffs further assert that, when taking an adverse action regarding service allocation, ADHS will use substantially the same alleged deficient Notice of Action which Ms. Dearmore received in November 2019 (Id., ¶ 99).
Plaintiffs next represent that Mr. Taylor was determined eligible for ARChoices in 2018 and that, pursuant to a PCSP, ADHS authorized him to receive 137 hours per month of attendant care and seven weekly home-delivered meals (Id., ¶ 105). According to plaintiffs, in late 2019 or early 2020, Optum assessed Mr. Taylor for continuing ARChoices eligibility, ADHS determinedhim eligible, and an ADHS nurse visited Mr....
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