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Disability Rights Center of Arkansas
The Protection and Advocacy System
Recent Entries 
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In the course of our work in behalf of a child who was recently hospitalized at Methodist Behavioral Health in Maumelle, we discovered that parents' telephone conversations with MBH staff are audio recorded.

It is permissible under Arkansas law for one party to a telephone conversation to tape the conversation without the other party's knowledge.

A.C.A. § 5-60-120(a) states:
It is unlawful for a person to intercept a wire, landline, oral, telephonic communication, or wireless communication, and to record or possess a recording of the communication unless the person is a party to the communication or one (1) of the parties to the communication has given prior consent to the interception and recording. [Emphasis added.]

Although this practice is lawful, we felt parents should know about it. Further, we suggest to anyone discussing provision of services with the service provider over the telephone that it may be prudent to ask if the conversation is being recorded.
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DHS Area Manager (Attorney)
Location: Little Rock, AR
Salary: $57,914 - $86,072
Position number: 22143229
Closing date: March 23, 2013

Supervises professional staff to include social worker and attorney. Makes critical health, medical, placement and financial decisions for wards. In-state travel excessive at times, both scheduled and unplanned; possible out of state travel and on-call status after hours and weekends. Job duties involve working with persons with mental illness and physical and mental incapacitation. This position administers the Office of Public Guardian, statewide in scope.

Preferred Qualifications: Licensed to practice Law in Arkansas; Knowledge of estate, guardianship and other relevant areas of law; Court experience; Experience conducting legal research and writing legal documents for use in litigation; Knowledge of applicable state and federal laws; Strong supervisory skills; Strong office management skills.
Minimum Qualifications: The formal education equivalent of a master’s degree in social work, sociology, psychology, or a related field, plus five years of experience in human services or a related field including four years in a supervisory role. OR The formal education equivalent of a bachelor’s degree in social work, sociology, psychology, or a related field; plus seven years of experience in human services or a related field, including four years in a supervisory role.
4th-Mar-2013 11:12 am - We've never had to do this before...
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Last fall, the Centers for Medicare and Medicaid Services (CMS) notified us of three deaths in three weeks of patients in "enclosed beds" in Baptist Health System hospitals. CMS is required by federal law to notify us of deaths reasonably thought to be related to the use of seclusion and/or restraint.

We requested access to documents from Baptist related to all three deaths.

They said, "No."

So we requested access to the hospitals to conduct our own investigations.

They said, "No."
Access to facilities and records is central to what Protection and Advocacy systems (P&As) do to protect people with disabilities from abuse and/or neglect, and to obtain remedies when the facts show people with disabilities have been subjected to abuse and/or neglect.

We spent a considerable amount of time explaining our access authority to legal counsel for Baptist Health, and asking - one more time - for access to the hospitals and records.

And still, they said, "No."

So, last Friday, we sued them. That's one of the remedies when facilities keep on saying, "No."

We've never had to do that before.

You can read Linda Satter's article about the lawsuit in Saturday's Arkansas Democrat-Gazette by clicking here.
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The agency's final regulations related to Assistance to States for the Education of Children With Disabilities were published in the Federal Register on February 14, 2013.

These amendments revise the parental consent requirements a public agency must meet before it may access for the first time a child’s or parent’s public benefits or insurance (e.g., Medicaid) to pay for services required under the Act; ensure that parents of children with disabilities are specifically informed of all of their legal protections when public agencies seek to access public benefits or insurance (e.g., Medicaid) to pay for services required under the Act; and address the concerns expressed by State educational agencies (SEAs) and local educational agencies (LEAs) that requiring parental consent each time access to public benefits or insurance is sought, in addition to the parental consent required by the Family Educational Rights and Privacy Act (FERPA) and section 617(c) of the IDEA,imposes unnecessary costs and administrative burdens.

The effective date of the final rule is March 18, 2013.

Click here to read the text of the final rule.
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According to this entry on the blog of Arkansas Advocates for Children and Families, more than 150,000 low income Arkansans employed in several industries.

More than 150,000 hard working Arkansans with no health insurance.

The 89th regular session of the Arkansas General Assembly is where the approval for Medicaid exansion rests.

As we said last December...

We need to get 'er done.
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On January 17, we posted a link to the CMS proposed rule on cost sharing by Medicaid recipients.

Below is the text of the comment we submitted yesterday to CMS. (Deadline for comment is today at 5 p.m. Eastern time.)
Disability Rights Center of Arkansas, Inc. (DRC) is the federally authorized and funded nonprofit organization serving as the Protection and Advocacy System (P&A) and the Client Assistance Program (CAP) for people with disabilities in Arkansas. DRC is authorized by federal statute to protect human, civil and legal rights of all Arkansans with disabilities consistent with federal law.

DRC respectfully submits the following comments in response to CMS-2334-P, a notice of proposed rulemaking published in the Federal Register on January 14, 2013.

Update to Maximum Nominal Cost Sharing (§447.52), at page 225

In its proposed rule, the Agency states it “propose[s] to remove the state payment as the basis for the cost sharing charge and replace it with a flat $4 maximum allowable charge for outpatient services.” (See Proposed Rule, at page 226.) DRC would like to address the significant impact this cost sharing could have on Medicaid recipients in Arkansas who utilize multiple Medicaid reimbursed community services – sometimes multiple services in one day.

In Arkansas, both children and adults may receive Rehabilitative Services for Persons with Mental Illness (RSPMI) from a variety of Medicaid providers in the community. Although Arkansas has elected to reimburse “episodes of care” for youth with ADHD, other RSPMI services are still billed as individual services, including, but not limited to, the following:
  • Mental Health Evaluation/Diagnosis
  • Master Treatment Plan
  • Interpretation of Diagnosis
  • Crisis Intervention
  • Psychiatric Diagnostic Assessment – Initial
  • Psychiatric Diagnostic Assessment – Initial (telemedicine)
  • Psychiatric Diagnostic Assessment – Continuing Care
  • Psychiatric Diagnostic Assessment – Continuing Care (telemedicine)
  • Pharmacologic Management by Physician
  • Individual Psychotherapy
  • Marital/Family Psychotherapy – Beneficiary is not present
  • Marital/Family Psychotherapy – Beneficiary is present
  • Crisis Stabilization Intervention, Mental Health Professional
  • Collateral Intervention, Mental Health Professional
  • Intervention, Mental Health Professional
  • Inpatient Hospital Services (limited to 24 paid inpatient days for recipients aged 21 and older)
As part of its mandate under federal law, DRC monitors a variety of programs and facilities providing care and treatment to individuals with mental illness. One of those settings is called Residential Care Facility (RCF). Although the RCF itself is classified as a “home” for purposes of Medicaid billing in Arkansas, most adult recipients living in RCFs do not manage their own money. The RCF is the adult’s Social Security representative payee, and receives the adult’s Social Security check, from which it gives the adult $30 per month personal needs allowance. In Arkansas, RCFs (again, defined as “homes”) are permitted to bill up to sixty-four (64) hours per month for Medicaid reimbursed personal care for each Medicaid recipient living in the RCF with no prior authorization from the State Medicaid agency.

In addition, DRC’s monitoring experience notes that RCFs overwhelmingly encourage their boarders to attend mental health day treatment programs. Most RCF residents attend mental health day treatment programs five (5) days per week. These day treatment programs bill a variety of individual RSPMI codes during the day.

It is easy to see that an RCF resident’s $30 monthly personal needs allowance could be easily depleted within one (1) or two (2) days under the proposed rule. CMS appears to have considered this possibility, because at page 233 of the proposed rule, we note the following, “Since these individuals are only allowed to keep a personal needs allowance, similar to those residing in an institution, we propose to allow states to exempt these individuals from cost sharing in the same manner as those residing in an institution in accordance with the comparability requirements under section 1902(a)(19) of the Act.” (Emphasis added.)

The same type of situation exists for individuals with intellectual and/or developmental disabilities receiving Developmental Day Treatment Clinic Services (DDTCS). In Arkansas, Medicaid can be billed a maximum of five (5) units per day for an adult Medicaid recipient. Under the proposed rule, an individual receiving DDTCS could be subject to cost sharing of $20 per day against a personal needs allowance of $30 per month.

DRC submits that any Medicaid recipient receiving only a personal needs allowance from their Social Security check should be exempted from cost sharing, on equal footing with certain children, pregnant women, American Indians and Alaska Natives (Indians), individuals residing in an institution, and individuals receiving hospice care and women eligible through the Breast and Cervical Cancer Treatment and Prevention Program, unless or until such time as the states move to reimbursement for “episodes of care” for multiple RSPMI and DDTCS services currently billed within a twenty-four (24) hour period of time.
11th-Feb-2013 09:22 am - Caught us by surprise, it did...
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This article in Saturday's Arkansas Democrat-Gazette, about an incident last month of "almost" sexual contact between a male and female patient in a bathroom at the Arkansas State Hospital.

After incidents last year in April, two in June, and one in August, we had hopes that the new policy on Prevention and Management of Patient Sexual Activity Within the Hospital might have worked as planned.

We have asked questions about that. Probably will have quite a few more questions before all is said and done.

And also need to get some detail about an allegation we received this weekend that a patient sustained a fracture in an incident, also last month.
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There's this story from the Indy Star, about an 8 year old girl with Down Syndrome who arrived home from school with her feet taped together with duct tape.

Someone at Westlake Elementary School in Wayne Township had wrapped duct tape around the shoes and socks of an 8-year-old girl with Down syndrome. Her parents, Nate and Elizabeth Searcy, said the tape was so tight that their daughter, Shaylyn, couldn’t walk.

Apparently, Shaylyn doesn't like to wear shoes...
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The State has rolled out the new website, which describes this innovation offered to States by the federal government in this way:

The Community First Choice Option is a Medicaid-funded program that will provide a broad range of home and community-based services and supports to people with intellectual disabilities, developmental disabilities, physical disabilities, age-related disabilities and behavioral health needs. It is specifically intended for those individuals who, without services and supports, would be unable to care for themselves at home and would need to enter a nursing home or other institutional setting. The program will be available to all who are eligible – no more long waiting lists of people who need help!

Click here to view the wesbite and find the link to give your feedback.
17th-Jan-2013 09:24 am - Are Medicaid co-pays in the offing?
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Among the mostly partisan public discussions of members of the Arkansas General Assembly about the wisdom of expanding Arkansas' Medicaid program have been those legislators who want Medicaid recipients to "have some skin" in the game. In other words, make them pay for a portion of their services.

Notwithstanding the fact that most of the Medicaid recipients DRC serves will receive a maximum of $710 per month in 2013, we see the whole co-pay thing as fraught with peril.

We've watched as people with mental illness living in residential care facilities (RCFs) have been co-paid to death on their prescription drugs, with the RCF taking a $3 co-pay per prescription out of their paltry $30 per month personal living allowance.

On the front end.

And despite the fact that the rules in Arkansas for co-pays say if the recipient can't afford it, they don't have to pay it.

So we are viewing the proposed rule by the Centers for Medicare and Medicaid Services (CMS) for cost sharing by Medicaid recipients with mixed feelings.

We can agree that for those who can afford it, co-pays are not necessarily a bad idea. However, the implementation of such a rule seems to be largely left up to Medicaid providers in Arkansas, without consideration of whether the recipient can really afford the co-pay.

Discussion of cost sharing (co-pays) begins on page 225 of the 474 page proposed rule. Public comment is due to CMS by 5 p.m. on February 13, 2013.
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This is appalling.

This video is of a student with disabilities at the Judge Rotenberg Educational Center in Massachusetts being held down and shocked because he refused to take off his coat.

The FDA has notified the school it is not in compliance with FDA regulations on the controversial treatment, because it did not seek FDA approval prior to using the 'treatment."

We agree with the child's mother.

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Not only because of the horrific news last month from Newtown, CT, but because families who have a member with mental illness have constantly struggled to find appropriate services when they are needed.

Time Magazine published an excellent article on December 20, 2012 discussing the problem.

When Paul Raeburn needed immediate help for his suicidal son, he had few good options. The teen had threatened to sit on nearby railroad tracks until a train came. Even though Raeburn, a leading health and science writer, was in a position to know more about the best available mental health services and treatment options for his son than most, when a crisis hit, he felt he only had one choice: to call the police and risk that his child would wind up incarcerated rather than hospitalized.

“I tried to physically restrain him, but that’s not easy with a teenager,” Raeburn says, “I had no other option and this doesn’t seem like an ideal situation to take care of our sick kids.”

To read the entire article, click here.
13th-Dec-2012 12:15 pm - In the news...
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State Hospital gets pat on back

Read the article in today's Arkansas Democrat-Gazette.
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According to this blog post at the Arkansas Times.

The deadline for that decision was tomorrow.
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According to yesterday's letter from CMS, there will be no more dawdling for states like Arkansas about whether they want to run their own insurances exchanges. Friday is the day.

While there is no deadline on decisions about Medicaid expansion, there are specific dates tied to levels of declining federal match.

While states have flexibility to start or stop the expansion, the applicable federal match rates for medical assistance provided to “newly eligible individuals” are tied by law to specific calendar years outlined in the statute: states will receive 100 percent support for the newly eligible adults in 2014, 2015, and 2016; 95 percent in 2017, 94 percent in 2018, 93 percent in 2019; and 90 percent by 2020, remaining at that level thereafter.

States can drop out of the expansion if they wish.

If Arkansas does a partial Medicaid expansion, it doesn't get the enhanced federal expansion.

There are the answers, folks.

No need to keep on dawdling over what individual legislators wonder or think.

Just do it.
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The expedited process for disability determination by the Social Security Administration increased by thirty-five (35) new conditions.

Those conditions are:

1.Adult Non-Hodgkin Lymphoma
2. Adult Onset Huntington Disease
3.Allan-Herndon-Dudley Syndrome
4. Alveolar Soft Part Sarcoma
5. Aplastic Anemia
6. Beta Thalassemia Major
7. Bilateral Optic Atrophy- Infantile
8. Caudal Regression Syndrome – Types III and IV
9. Child T-Cell Lymphoblastic Lymphoma
10. Congenital Lymphedema
11.DeSanctis Cacchione Syndrome
12. Dravet Syndrome
13. Endometrial Stromal Sarcoma
14. Erdheim Chester Disease
15. Fatal Familial Insomnia
16. Fryns Syndrome
17. Fulminant Giant Cell Myocrditis
18. Hepatopulmonary Syndrome
19. Hepatorenal Syndrome
20. Jervell and Lange-Nielsen Syndrome
21. Leiomyosarcoma
22. Malignant Gastrointestinal Stromal Tumor
23. Malignant Germ Cell Tumor
24. MECP 2 Duplication Syndrome
25. Menkes Disease - Classic or Infantile Onset Form
26. NFU-1 Mitochondrial Disease
27. Non-Ketotic Hyperglcinemia
28. Peritoneal Mucinous Carcinomatosis
29. Phelan- McDermid Syndrome
30. Retinopathy of Prematurity - Stage V
31. Roberts Syndrome
32.Severe Combined Immunodeficiency - Childhood
33. Sinonasal Cancer
34. Transplant Coronary Artery Vasculopathy
35. Usher Syndrome - Type I

Click here to read Commissioner Michael J. Astrue's announcement.
27th-Nov-2012 01:35 pm - A disturbing article in Time
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It's one of Time online's top stories, entitled Why Parents with Disabilities Are Losing Custody of their Kids.

Click here to read.
14th-Nov-2012 03:10 pm - Noted with interest...
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A blog entry at the Arkansas Times yesterday.

About how the shortfall in revenue for Medicaid will be handled.

From Max Brantley's entry:
Some 75,000 people will be affected. 10,000 to 15,000 people who now get Level 3 nursing home care - help in basic functions and including some people with diminished mental capacity will be cut off state assistance. This will have a significant impact on families, a state official said. It should go without saying.

A number of low-income working people will lose insurance. About 20,000.

Medicaid will stop covering adult dental services. Back to pain for 40,000.

Reimbursements to health care providers will be trimmed. They're people, too, of course.

Click here to read the full post, which we highly recommend.
Skin in the game.

Ah, yes. The suffering of poor people and people with disabilities needs to be visible, dadgum it.

So we wonder...if we're planning on tossing Grandma and Gramps out of the nursing home because they only needed help with some basic functions (which, by the way, they couldn't get in the community or they wouldn't have gone into the nursing home in the first place), wonder if we are going to put all optional populations and all optional services on the table?

That could mean no more TEFRA. It could mean no more personal care, i.e., assistance with bathing, dressing, eating, toileting, etc., although Arkansas would have to keep home health.

That's a mandated service. And all those people getting even $1 of SSI - they would still be keepers, because they are categorically eligible for Medicaid.

But the State could still cut a whole bunch of their services.

Wonder if that would include ICFs/MR - you know those 10 bed and more intermediate care facilities for the mentally retarded?

There are five BIG ones in Arkansas. We call them the Human Development Centers.
Wonder how it all will shake out? Especially since a majority of the new Arkansas House of Representatives is of the notion that we don't need that Medicaid expansion...

No cost to the state for 3 years.

We might be out of that recession by then.

If not, people still need are entitled to basic health care. After all, this is still the United States of America - the richest nation on earth.

Isn't it?
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And from our little impromptu meeting with the hospital administrator this morning, we learned that CMS accepted them.

Click here for the A tag plan of correction.

Click here for the B tag plan of correction.

Click here for the K tag plan of correction.
We have some concerns about the B tag plan, particularly with respect to 1) the patients with developmental/intellectual disabilities, as there is currently an on-site DDS liaison at ASH who frequently is unaware of patients for whom ASH or DRC suspect co-occurring developmental/intellectual disability; and 2) the decision to make Unit E, housing male adolescent sex offenders, a residential treatment unit. Our concern with the latter is that we are having a hard time pinpointing which regulatory agency has oversight of the treatment on that unit under the scenario described in the plan.

Apparently, the DHS Office of Long Term Care has already begged off on that one, so we go into a heightened watchful mode...
23rd-Oct-2012 06:22 am - Early voting in Pulaski County
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There are 9 early voting locations in Pulaski County.

Click here for the locations.

Click here for the hours of early voting, which are different for the Pulaski County Regional Building than for all others. (Look at the bottom left corner of the notice for hours.)

Last day to vote early for the November 6, 2012 general election is November 5 at the Pulaski County Regional Building, and November 3 at all other early voting locations.
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