declining to review appellant’s arguments that she was denied due process and her right to a hearing under Ark. Code Ann. § 25-15-208 where such arguments were not made to the administrative tribunal
How later courts described this case
- declining to review appellant’s arguments that she was denied due process and her right to a hearing under Ark. Code Ann. § 25-15-208 where such arguments were not made to the administrative tribunal
Written by the judges who cited it.
The opinion
Tom Glaze, Justice, concurring. I agree with the majority court and write only to say that, in utilizing the criteria of mobility, feeding, and toileting required by DHS, Ms. Franklin met the appropriate level of care entitling her to the benefits available under the ElderChoices Program. It is my strong view that DHS was arbitrary and capricious in applying that standard or criteria to the facts in this case.
To qualify for the ElderChoices Program, the applicant must require the level of care provided in a nursing home, if Elder-Choices services were not available. The Program is to provide services that would permit an elderly person to stay in his or her own dwelling when that person would otherwise be placed in a nursing home. The Program was obviously intended for elderly people like Ms. Franklin.
After a hearing, DHS found that Ms. Franklin is (1) ambulatory with a cane or walker, (2) she maintains her bladder problem with a pad, and (3) she is continent of bowel. It also found her capable of using frozen meals. The evidence simply fails to support DHS’s findings.
The only testimony taken in this matter came from Ms. Franklin and her witnesses. That testimony was forwarded to a Walter H. O’Neal, M.D., Medical Director for Economic and Medical Services, who in turn sent a memo (not abstracted) to James Barnhill, Director of Appeals and Hearings. O’Neal stated Ms. Franklin did not meet the medical criteria and, based on Dr. O’Neal’s opinion, other appeals by Ms. Franklin were unsuccessful. Of course, O’Neal was not at the hearing, and I find his decision stating Ms. Franklin does not meet the medical necessity criteria for the ElderChoices waiver incredible. The following excerpts are indicative of the evidence showing that Ms. Franklin cannot feed herself and that she is incontinent.
Ms. Franklin:
The Senior Citizens Center brings me meals to last seven days. They bring them and put them in the refrigerator.
* * *
Sometimes I fix my food and sometimes it burns. It burns because I can’t see how high the blaze is.
Ms. Ludy:
Ms. Faulkner’s meals are cooked and brought into the Center and put on T.V. trays. That really isn’t sufficient for Ms. Franklin’s main meal. Sometimes she puts two meals together.
* * *
Ms. Franklin has glaucoma.
4= * *
It is impossible for her to see that well, which makes it dangerous for her to be trying to warm things up. She has no microwave oven so she has to use her regular range which lets the heat come up in her face.
* 4= 4:
Ms. Franklin:
I have trouble controlling my bladder and my bowels. 1 Sometimes my kidneys won’t wait until I get to the bathroom. That happens pretty often. I wear a pad because of my kidneys, sometimes during the day. Sometimes my kidney just won’t act right and it will be down before you know it.
The following evidence clearly reveals that Ms. Franklin’s mobility is impossible without assistance because of her blindness and physical impairments.
Ms. Franklin:
I have arthritis. It affects me sometimes in my legs and all in the hips and goes up into my neck.
4= 4: 4=
I have been using [a cane] for a long time.
4: * 4=
I am able to get in and out of bed by myself. I have to sit on the side of the bed and then get myself together. Sometimes my legs are so stiff I can’t get up and go right on to the bathroom.
4: 4: *
I am completely dependent on others to take me places.
* * *
I use a walker around the house.
* * *
Ms. Ludy:
She (Ms. Franklin) does need a three-prong cane for being out in public, but she needs a walker, too.
Ms. Brooks (registered nurse):
Ms. Franklin has difficulty seeing, she is partially blind, she also has trouble with arthritis and she has to use a walking cane and also a walker to get around.
In addition to the foregoing testimony, the following medical evidence was introduced that not only corroborates Ms. Franklin’s serious and diminishing health problems, but also reflects her unquestioned need for home assistance for her to live.
Dr. Robert J. Wilkerson:
Ms. Franklin has severe medical problems including moderately severe osteoarthritis, hypertension, severe glaucoma which is severely affecting her vision and a history of a small cerebrovascular accident.
* * *
Dr. J. J. Magee:
Ms. Franklin is sufficiently visually handicapped to require additional home assistances . . . and certainly the amount of assistance should not be cut. Ms. Franklin fits the description of legal blindness and should be given as much home assistance as is available from DHS.
In conclusion, I point out that DHS offered no evidence to rebut the proof Ms. Franklin introduced, and DHS’s decision finding Ms. Franklin ineligible for assistance benefits under the ElderChoices Program totally ignores the evidence. If Ms. Franklin fails to meet the requirements of the program based on the evidence presented here, then no elderly person can. It makes me question how many of Arkansas’s elderly people have qualified for such benefits. Regardless, given a fair reading of the testimony and proof here, no substantial evidence exists to support DHS’s decision. In my view, DHS’s decision is wholly arbitrary and capricious and borders on the absurd.
The hearing officer’s summary of evidence erroneously states that Ms. Franklin reported she had no bowel problems.