concurring. Manda Franklin has argued that the decision of a division of the Arkansas Department of Human Services (DHS) deprived her of substantial rights on the basis of a decision which was arbitrary and capricious and which was not supported by substantial evidence. The majority opinion concludes the factual determinations made by DHS, and thus the decision that Ms. Franklin was not entitled to the benefits of the Elder Choices Program, were not supported by substantial evidence. The facts disputed are those contained in paragraphs 4. and 5. in DHS’s finding of fact:
4. It was determined that [Ms. Franklin] is ambulatory with a cane or walker, and that she is capable of preparing breakfast and frozen meals.
5. It was determined that [Ms. Franklin] maintains her bladder problem with a pad, and that she is continent of bowel.
While there may be a dispute as to whether Ms. Franklin is capable of preparing meals, it is undisputed that she is doing it. It is also undisputed that she is ambulatory to the extent of being able to get out and work in her garden, for example. Nor is there any question that she is able to get out of bed and use the bathroom. The majority opinion makes a convincing argument that she is able to do these things only to a degree, but that is not the issue we should be addressing here. If it were, we should affirm as we reverse an agency’s determination under the law only if there is not any substantial evidence in support of it. Douglass v. Dynamic Enterprises, 315 Ark. 575, 869 S.W.2d 14 (1994).
The problem in this case is that we do not know the standards to be applied. The brief for DHS refers to 42 USCS § 1396 which provides criteria for determining when one is “functionally disabled,” but that term does not appear in the findings of fact or conclusions of law issued in Ms. Franklin’s case. We have been given no means of determining how that term relates to eligibility for the Elder Choices Program.
We can read in DHS Medical Services Policy 2076.1 that eligibility for the Elder Choices Program is dependent on eligibility of the applicant for intermediate long-term care (ILC). The majority appears to accept at face value paragraph 4. of DHS’s conclusions of law:
4. The ILC Guidelines, Degree of Incapacity Criteria for Medicaid Recipients in Nursing Homes, issued by OLTC, establishes parameters for the exercise of professional judgment in the determination of the appropriate level of care for a patient; in addition to mobility, feeding, and toileting, the following factors are considered: patient’s age, diagnosis, mental status, physician plan of care and recommendation for type of nursing care required, and the patient’s overall general condition.
State agencies are required to file their rules and regulations with the Secretary of State and the Arkansas State Library. Ark. Code Ann. § 25-15-204(d) (Repl. 1992). In neither the Supreme Court Library nor the State Library have we been able to find the ILC guidelines. Assuming we could find them, if all they provide is “parameters” for deciding whether a patient is entitled to ILC, and if the “parameters” consist only of a list of words, such as “mobility, feeding, and toileting,” I could not base a decision on such a regulation.
It is no wonder the DHS decision given Ms. Franklin stated only that her application “does not appear to meet criteria.” The agency would have had great difficulty stating any criteria.
In Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), we discussed a vague statute concerning agency pursuits of terminations of parental rights and concluded it left “the discretion vested in judges so broad that arbitrary and discriminatory parental terminations are inevitable.” In Alcoholic Beverage Control Div. v. R.C. Edwards Dist. Co., 284 Ark. 336, 681 S.W.2d 356 (1984), we said the same of an agency regulation we concluded to be so vague as to bestow “arbitrary powers” on the agency.
Our focus in this case should not be on the sufficiency of the evidence but on the fact that the regulation on which DHS relied to deny Ms. Franklin’s application, assuming it is accurately quoted in the agency’s conclusions of law, is so vague that any decision based upon it must be arbitrary. A decision can be nothing but arbitrary when it is based upon no discernible standard.
This case should indeed be remanded to the Circuit Court for entry of orders consistent with our conclusion that the agency decision in Manda Franklin’s case was arbitrary.
The majority opinion is objectionable to me because, without an insistence that standards be set and followed, DHS will remain free to make decisions like the one now before us. While we probably will reverse any such decision, who knows how many of them will be made with respect to applicants who either will not or cannot appeal. It seems essential to me that we should reverse this case on the ground that it is an arbitrary decision due to the lack of a standard upon which Ms. Franklin, to say nothing of this or any other Court, could rely. I concur in the result only.
Dudley, J., joins in this concurrence.