Judge Griffen rips Human Services for refusing to use nurses to assess disabled

Bradley Ledgerwood

Circuit Judge Wendell Griffen has again ripped the state Human Services Department for resisting his orders to assess homecare needs of the disabled by nurses rather than an algorithm.

After hearing arguments, Griffen made official his earlier finding that the state was in contempt of his order not to use a computer algorithm. He imposed punishment and orders to comply with earlier rulings, including referral of DHS attorneys to the Supreme Court Committee on Professional Conduct for potential discipline.

The judge ordered the state to:

* Compile the number of people assessed by registered nurses before the algorithm method was begun Jan. 1, 2016./

* Compile the number of people it had failed to personally assess since Feb. 7, 2017, when the court first found the state out of compliance. The state tried to pass an "emergency" rule to use the new method, known as a RUG, but the judge has found that was just a sham and that no emergency existed.

* He ordered a monthly report, by name, filed under seal of those who the state had failed or refused to reassess by a nurse.

* DHS counsel Richard Rosen and David Sterling (the one-time Republican candidate for attorney general and now a candidate for Arkansas Supreme Court) were referred to the Supreme Court Committee

"for determination whether they possess the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary to represent DHS in complying with the permanent injunction entered in this litigation."

The judge said he intended to retain jurisdiction over the dispute.

His order was biting and harshly critical. "Imbecilic" was one word he employed in discussing state legal arguments.

He blistered the state for asserting it could not continue personal assessments of disabled because the judge had barred the algorithm method until it had fully complied with the administrative procedures act by having a full hearing on the new standard, which plaintiffs say will result in arbitrary reductions of needed care.

That declaration is the latest example of DHS defiance of the permanent injunction, its callous disregard for the rule of law, and its calculated disingenuous representations to this court, the disabled community it is legally obligated to serve and the general public

I'm seeking a reaction from DHS.

Here's the judge's full order.

He says the state "fabricated" an emergency to avoid following the prevailing law that requires personal assessments. He called "preposterous" the state's assertion that it had halted assessments to comply with his earlier injunction against using the algorithm. The state's theory seems to be that it has no approved method if the new method isn't usable. But the judge said the state had made no showing that it had attempted to clarify that point with the federal government or otherwise provide a showing why it couldn't continue with past practices. Except that it didn't want to do so.

UPDATE: From Amy Webb at DHS:

We plan to comply with the Judge's ruling, which we are reviewing.

The backlog of assessments:

Assessments for people waiting for services — 1,116

Re-assessments of current beneficiaries — 1,377

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Judge Griffen rips Human Services for refusing to use nurses to assess disabled