ARChoices: Take Action

This is a long but important update from Kevin deLiban of Legal Aid of Arkansas on information about the NEW SYSTEM to determine hours for ARChoices that DHS will start using on January 1, 2019.

The public comment period is open until 11/7/18, and public meetings will be held from now until then.


(1) RUGs Update. Late Monday, the judge dissolved the injunction against RUGs, meaning that DHS will start allocating attendant care to new applicants for the program and will also re-assess people whose plans of care have expired. RUGs will only go back into effect for the next two-and-a-half months and then will be replaced by the new system described below. If anyone faces reductions because of RUGs during that time, they can call Legal Aid of Arkansas at 800-967-9224. We don’t anticipate more court challenges against RUGs (though that can always change), but we may be able to help with administrative appeal hearings.

Due to the hard work of people on the program, caregivers, attorneys (at Legal Aid of Arkansas, the Center for Arkansas Legal Services, and Disability Rights Arkansas), case managers, care agencies, journalists, and others, RUGs is definitely going away (DHS had no plans to switch to a new system before the litigation and public attention), about a thousand people avoided devastating RUGs-based cuts for several months (and at least couple dozen people kept their pre-RUGs hours for a year or longer), 150+ people with cerebral palsy are getting more hours than they otherwise would have due to discovery of a DHS software error, hundreds of people (including legislators and the wider public) have learned more about Medicaid home-care services and the importance of a fair system to determine hours, and a community of people are now activated around these issues. Justice only exists because people work to create it. Grateful for all of you who did so here. We lost along the way, too, and I think about the clients who passed away fearing or fighting cuts, clients who’ve been living with the cuts, and all the suffering we couldn’t stop. They keep me motivated.

(2) The New System. DHS finally released details of the new system it plans to use starting January 1, 2019. DHS’s own summary of the changes are attached. There is A LOT of information in here, so I’ll go through the major items.

New Assessment. Up to now, DHS was using the assessment tool known as ArPath, which had 286 questions. ArPath will be going away. The new assessment will be called ARIA and could have as many as 400 questions. It will be performed by a Registered Nurse who works for a private company named Optum. After the Optum RN comes out to do the assessment, the results will be sent to DHS for a determination about eligibility, the amount of hours someone gets, and what budget category someone fits in. This involves a separate visit by a DHS RN to do the care plan.

Questions/Unknowns:

~ Will people be given enough advance warning in order to get medical records or arrange for caregivers to be present so that the information in the assessment is accurate?

~ Will the new assessment take longer than the old assessment, which already took 60 to 120 minutes? Will the questions be understandable, relevant, and fair?

New Hour Determination System. RUGs used an algorithm that mixed a lot of different factors that didn’t seem to make obvious sense in order to place someone in a group with a fixed number of hours. The new system will be very different. It is called the “Task and Hour Standards.” Based on the ARIA assessment, an algorithm will rank each person from 0 to 3 in each key Activity of Daily Living (bathing, dressing, feeding, grooming, toileting, transferring, walking, cleaning, laundry, meal preparations, and shopping). Then, based on whether you get a 0, 1, 2, or 3, the DHS nurse (who comes in a separate visit from the Optum nurse) will determine how many minutes you get for that particular activity. For example, if you score a 3 on bathing, the DHS nurse can give you between 35 and 45 minutes. If you score a 2, the DHS nurse can give you between 15 and 30 minutes. If you score a 1, the DHS nurse can give you between 5 and 10 minutes. The DHS nurse will then figure out how many times per week you need to do a particular task. The DHS nurse will then add up all the minutes you get for each ADL and give you a monthly number of hours.

Questions/Unknowns:

~ DHS hasn’t said how the algorithm will figure out if you are a 1 or 2 or 3 for any particular ADL.

~ DHS hasn’t stated the frequency that certain tasks will be allowed. Is bathing a daily task? Do people get to be dressed twice per day (once into the day’s clothes; once into bedtime clothes)? Will the frequencies allowed match actual care needs?

~ DHS has said that the time given will be reduced by the amount of time that family, friends, or others do that same task voluntarily. It is not known how this will affect people with family caregivers.

~ DHS has said that no time will be given for the cleaning of shared spaces when the caregiver lives with the beneficiary. There could be other reductions for people who live with their caregiver.

~ DHS has said that nurses can request to go outside the amount of time allowed if there are “extenuating circumstances” and the nurse receives supervisor approval. For example, this means someone may be able to get 55 minutes for bathing even though the highest amount officially available is 45 minutes. BUT, these adjustments might not mean much because of the budget limits described below.

~ Even if you are allowed a particular amount of hours under the Task and Hour Standards, you might not actually get that number of hours because of the new overall budget limits described below.

• New Overall Budget Limits. DHS is doing something it has not done before in ARChoices, AAPD, or Elder Choices. It is setting a hard budget cap for services an individual on the program can receive, regardless of the amount of care DHS’s own Task and Hours Standards says someone needs. There are three budget categories–Intensive, Intermediate, and Preventative. An algorithm will use the answers to the assessment to put you into one these three groups. People in the Intensive group can get no more than $30,000 worth of services in a year ($2,500 in a month). People in the Intermediate group can get no more than $20,000 worth of services in a year ($1,667 per month). People in the Preventive group get $5,000 in a year ($417 per month).

So, even if the Task and Hours Standards states that you need 200 hours in a month, you cannot get those 200 hours if they cost more than is allowed by your budget limit. For example, your budget limit might only allow you to “buy” 150 hours per month (or some other number less than 200).

Questions/Unknowns:

~ DHS has not stated the actual price of the services so that you can predict the number of hours actually possible under the budget limits. However, if you take the standard attendant care rate of $18 per hour, the highest budget level (Intensive, which allows $2,500 per month), would only allow 139 hours per month. This would not be enough for many people. The next highest budget limit (Intermediate, $1,667 per month) would only allow 93 hours per month (at the rate of $18 per hour for attendant care).

~ DHS has stated to media that the cost of attendant care would be less for people who hire their own caregivers instead of using an agency (meaning they could possibly get more hours under the budget limit), but that would seem to give far fewer hours to people who use agencies than people who hire their own caregivers.

~ DHS has stated to media that up to 64 hours of personal care hours may be available apart from this, but that is not confirmed in policy and may still not be enough care for many people who have higher needs.

~ DHS’s process to arrive at these $30,000/$20,000/$5,000 categories has not been independently verified to be reliable. These amounts could be arbitrary. DHS says they are based on the cost of nursing home care, but DHS has given other figures that state nursing home care costs much more than $30,000 per year (these other DHS estimates have put the cost of nursing homes at more like $60,000 per year).

~ DHS did not include in the public documents anything about how the budget limits will actually affect people. How many people will be put into each category? How many people will face cuts because of placement in a particular category?

~ DHS has stated that ARChoices beneficiaries who were on the program in 2018 and who received more than $30,000 in services will not face a cut due to the budget limits the first year. Instead, their budget limit will be the cost of the services they received in 2018. This is known as “grandfathering” people into the program. So, people with higher needs may be able to keep what they got in 2018 if the Task and Hour Standards determination shows they need that many hours.

~ Apart from the “grandfathering,” DHS has stated that the budget limit can be temporarily adjusted upward for one year through an “exceptions process” for “exceptional, unexpected circumstances.” DHS stated that these “exceptional, unexpected circumstances” might include the death of a caregiver or recent release from a facility.

• Will the new system provide enough care? Compared to the system of nurse discretion, RUGs was harmful to our clients because it meant huge cuts in hours for so many people, especially people with the most severe needs. It is not clear if the new system will give people any more hours than RUGs did. It is not clear if the new system will give people enough hours to meet their actual care needs and keep individuals out of nursing homes. DHS has stated that the changes will cut Medicaid spending by about $10 million the first year and about $14 million the second year. If spending cuts are the goal, increased care may not be part of the plan.

• Is it understandable? RUGs involved 20 pages of computer code that didn’t make sense to our clients. The new system seems to be complicated in a different way. First, people will have to figure out how the 400-question assessment turns into a score for each ADL on the Task and Hour Standard (how many minutes you get for each ADL). And, we don’t know if that will make sense. Second, people will have to figure out how the assessment turns into a Budget Limit category. Some people may be qualified for hours under the Task and Hour Standard that they can’t actually get because of the Budget Limit category. These complications may mean that people on the program may not be able to fairly contest decisions about the care they are allotted.

(3) Public Comment. Anyone can participate in the public comment process. Comments can be sent by email to becky.murphy@dhs.arkansas.gov or by mail to Office of Policy Coordination and Promulgation, P.O. Box 1437, Slot S295, Little Rock, Arkansas 72203-1437. Comments must be submitted by 4:30 p.m. on November 7.

(4) Public Meetings. Public comment will also be accepted at public meetings. The meetings are at the following times and places. Some of these meeting places are different from the meetings about ARChoices that were held in summer.

Fort Smith, 10/15, 5 p.m., Arkansas College of Osteopathic Medicine, 7000 Chad Colley Blvd
Monticello, 10/18, 5 p.m., Drew Memorial Hospital Conf. A., 778 Scoggin Dr.
Hope, 10/22, 5 p.m., UA Hope Hempstead Hall, 2500 South Main St.
Little Rock, 10/29, 5 p.m., Arkansas Enterprises for the Developmentally Disabled, 105 E Roosevelt Rd
Jonesboro, 11/7, 5 p.m., St. Bernard’s Medical Center Auditorium, 225 E. Jackson Ave.

(5) Copy of the Full Materials. I could not cover all the changes being made. The full materials can be downloaded here. The full materials have information on other important changes being made to this program, Independent Choices, and the Assisted Living waiver program. For example, the rates of Assisted Living providers are facing significant cuts, which may mean that fewer people can get into an assisted living facility and more people may have to choose a nursing home instead.


This update was provided by Kevin De Liban of Legal Aid. If you have questions, please feel free to reach out to him:

Kevin De Liban, Attorney
Economic Justice Practice Group Leader
Legal Aid of Arkansas–West Memphis
310 Mid-Continent Plaza, Suite 420
West Memphis, AR 72301
Phone: (870) 732-6370 x. 2206

ARChoices Update

Here’s the latest on what has been happening with ARChoices directly from our friends at Legal Aid:

(1) Second Legislative Hearing. When I last wrote, the Public Health committee of the legislature gave the RUGs algorithm an “unfavorable” review, meaning that the committee did not like it. The RUGs then went before the Rules and Regulations subcommittee. This subcommittee can only disapprove a regulation in narrow circumstances, so the RUGs was approved as a short-term measure to allow DHS to give attendant care to new applicants and to make new determinations for people up for reassessment. But, the chairperson said this:
The RUGs has not proven to be holistic in assessing the needs of the patients. Your presence here today has not fallen on deaf ears and, moving forward, because of your intense pressure, it is duly noted that RUGs is not the system we want serving the needs of Arkansans with disabilities. I believe it would be fair to say that you have the attention and the ears of the legislative branch to assure that your needs are moving forward. While we may not agree 100% on everything, the one thing we know is we can’t stay where we are. And while this process continues out after we do our duty today, then we will work to make sure that we don’t revisit this chapter again.
Even though RUGs was approved, the statement is great news for people hurt by the RUGs. Even if RUGs comes back in the short-term (it might not; see below for updates on the court case), it looks like the legislature won’t allow it to go on beyond December or early 2019. And, the public, media, and legislature will all take a close look at whatever new system DHS eventually comes up with. Personally, it was especially inspiring to see all the people most affected and their families come out and speak at the public forums or at the legislature, offer written comments, and lead the public effort (Legal Aid didn’t organize it).  And, this would not have happened without all the thoughtful and caring providers and other advocates who stepped up. It’s been wonderful to work with everyone.
(2) New System. DHS kept talking about a new system it would implement as of 1/1/19. DHS said that it would start the public comment process on 10/1/18. As of today, nothing has been published about it. Legal Aid will let everyone know when the official proposed rule comes out. The unofficial drafts we’ve seen suggest that it might be easier to understand than RUGs, but the unofficial drafts make it seem unlikely the new system will offer enough care hours for the patients with the highest needs.
(3) Court Case. Because the legislature approved the RUGs, DHS was going to start using it again as of yesterday. DHS asked the court to remove the injunction that stops them from doing that. DHS claims that it followed the proper process to adopt the rule. Today, Legal Aid, on behalf of our plaintiffs, filed an objection and asked the judge to keep the injunction in place (it is attached if you want to read the full legal document). DHS’s public comment process appears to be a sham. 43 different people criticized the RUGs for allowing inadequate care and not taking into account a nurse or doctor opinion in making hour determinations. They offered concrete ideas about alternatives. DHS didn’t even try to address the criticisms or alternatives, which the law requires it to do. Only 1 person was fully supportive of RUGs.
Our filing means that people who have applied for ARChoices services may be further delayed in getting them. DHS keeps saying that it has no lawful way to allocate attendant care, but we disagree and keep arguing that DHS can use the system of nurse discretion in place before RUGs. We are very sympathetic to the people who are waiting on services and understand they are caught up in this. However, Legal Aid has a duty to serve our clients. All of our plaintiffs (and many other clients) have been cut by the RUGs in the past. And, because DHS hasn’t been able to re-assess them for two years, they could be first in line for re-assessment. We tried to negotiate with DHS to get a formal, written agreement to ensure our clients would be safe, but DHS would not do anything formal. We had to file this objection to try to protect our plaintiffs. We have another legal case pending that could get the assessments and allocations started again with nurse discretion and will continue pursuing that option.

Contact:

Kevin De Liban, Attorney
Economic Justice Practice Group Leader
Legal Aid of Arkansas–West Memphis
310 Mid-Continent Plaza, Suite 420
West Memphis, AR 72301
Phone: (870) 732-6370 x. 2206

ARChoices: Update From Legal Aid

This is an update from Kevin De Liban from Legal Aid of Arkansas. He wants to help us understand the latest on ARChoices.


Just a quick update on yesterday’s meeting in the legislature. The Public Health committee gave the RUGs algorithm an unfavorable review, meaning that the committee thinks that DHS should not adopt the RUGs algorithm. At least 4 people on the ARChoices program were present and testified before the legislators, as well as parent caregivers, advocates, case managers, and care agencies. These voices–especially the people on the ARChoices program–let the legislators know the details about how the RUGs algorithm has hurt many beneficiaries. Here is a newspaper article about the meeting.

That is not the end of the process. The RUGs algorithm now goes to the Rules and Regulations Subcommittee on Tuesday, September 18, at 1 p.m. in Room A of the MAC Building. The agenda includes a list of the legislators on the committee as well as other details.

Public comment will be accepted at this meeting. If the Rules subcommittee votes against the RUGs algorithm, it should be the end of it. But, there are some technicalities involved, and I have no way of knowing what the likely outcome is. Whatever happens, it’s inspiring to see how all sorts of people in different situations have been working in their own ways for justice on this issue.


How to contact Kevin with concerns or questions:

Kevin De Liban, Attorney
Economic Justice Practice Group Leader
Legal Aid of Arkansas–West Memphis

310 Mid-Continent Plaza, Suite 420
West Memphis, AR 72301
Phone: (870) 732-6370 x. 2206
Fax: (870) 732-6373

AR Choices Update

It’s been over a month since Legal Aid’s last update. After a period of relative quiet, here’s the latest from Kevin De Liban on the ARChoices program. Please note the upcoming legislative committee hearings listed below on 9/13 and 9/18.


(1) Public comments. In July, many people showed up to the public hearings or wrote DHS with comments. Those comments are attached to this email. Though the comments were overwhelmingly against the algorithm, DHS plans to go ahead and start using the RUGs algorithm again in the exact same way as they did before starting on 10/1/18.

RUGs changed the effective limit of attendant care from 8 hours per day to 5.5 or 6. This has not been enough for Legal Aid’s clients. On top of that, the algorithm is nearly impossible to understand, has had multiple software errors, and doesn’t take into account a doctor’s opinion or consider the actual amount of time it takes to provide care to someone on the program.

(2) The legislature is considering the RUGs algorithm this Thursday, 9/13, and next Tuesday, 9/18.  DHS is presenting the algorithm to two separate legislative committees in the next week. Apparently, if the Public Health Committee does not approve it, the algorithm may be delayed or stopped.

Thursday, 9/13, 10 a.m., Public Health Committee, Room A of the MAC Building. I have been told that public comment will be accepted. People who attend must sign in on a sheet to request to speak.

Tuesday, 9/18, 1 p.m., Rules and Regulations Subcommittee, Room A of the MAC Building. I have been told that public comment will be accepted. People who attend must sign in on a sheet to request to speak.

It is not clear that the legislators on these committees will have seen the comments that were submitted to DHS. So, they may not know that most people are against the algorithm. The legislators may not have any source of information other than what DHS tells them. The meetings are open to the public, and I have been told that public comment will be accepted. 

(3) DHS resumed assessments, but only for personal care (not attendant care). People already on the program still cannot get adjustments to their attendant care hours. People who’ve applied for the program are unable to get any attendant care at all. But, after we filed our ongoing lawsuit on behalf of an ARChoices applicant who was denied all services, DHS started determining applicants’ program eligibility and giving them up to 14.5 hours per week of personal care (NOT attendant care, which is slightly different). This isn’t anywhere near enough for many applicants. The lawsuit is continuing and seeks to force DHS to use the prior system of nurse discretion to allocate attendant care until a new valid method is in place.

(4) New Algorithm. As far as we know, DHS is still planning to switch to a new algorithm and new assessment system for ARChoices. This will be based on the same assessment system that is currently in use for personal care, behavioral health, and the development delay waiver. DHS has not provided a timeline for the new algorithm, but, based on the legal timelines required, the new algorithm is not likely to be put into place before 2019.

As always, if you have any questions, please feel free to write me here or call me at my office (800-967-9224 x 2206).

Contact:

Kevin De Liban, Attorney

Economic Justice Practice Group Leader

Legal Aid of Arkansas–West Memphis

310 Mid-Continent Plaza, Suite 420

West Memphis, AR 72301

Phone: (870) 732-6370 x. 2206

AR Choices: How to Make a Public Comment

You have the opportunity to take action and make a public comment until July 31. How would one choose to make a public comment about the Arkansas Choices issue? What would one say?

This is how you can place your own public comment for the record:

  1. First, follow this link (copy and paste it into your internet address window): https://medicaid.mmis.arkansas.gov/General/Comment/Comment.aspx
  2. You will see some documents on a long page that are available for public comment by July 31, 2018. The 3 documents you want look just like the ones in the graphic below. The ones in the long section on bottom are old, and the date has passed.
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  3. You will want to view the document named “ARCHOICES-1-18route.doc”. Click on the blue link with that name (on the Medicaid website), and it will download the file for you.
  4. Open the file from your document downloads, if it doesn’t open automatically for you.
  5. At first glance, it may be difficult to understand, but try to read through it as best as you can. You might understand more than you think. (See below for more assistance.)
  6. After you read through it, you might want to send in some comments about how this will affect you. For example, you might want to comment on the use of the algorithm itself, or you might want to comment on how they would score you and how that method may cut your hours.
  7. You can choose to mail your comments, but the faster way is by email. You can send your comments in an email to becky.murphy@dhs.arkansas.gov, but be sure to reference which manual you’re commenting on in the subject line like “Public Comment Submission, ARCHOICES-1-18route.doc.”
  8. Make sure to do this before July 31, 2018!

If you were to make a comment, what would you say? Well, Disability Rights Arkansas has released their official comments that they have submitted. This is a great example that can help you with what you might want to say. Read through this very thorough comment that was written by a qualified and informed attorney, and it might help you make sense of ARCHOICES-1-18route.doc. You might also want to read the previous post about the update and comments from Legal Aid of Arkansas.

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AR Choices: Update & Public Comment

Here is a detailed update from Kevin de Liban from Legal Aid about AR Choices.

Also, please note that Public Comment ends on this issue on July 31, 2018. There is one more public hearing on July 26th in Little Rock. Kevin’s update can help you with ideas of what to say as you examine the manuals available for public comment. Don’t miss this chance to speak up for what you need!


As you know, a court invalidated the RUGs algorithm a little over two months ago. DHS is now trying to re-implement the RUGs algorithm to take effect on October 1. Rule-making is the name for the process by which DHS is trying to make this change. DHS has proposed that the algorithm work the same way it did before being invalidated.

Until October 1, it appears that DHS intends to keep everyone on the program at the same level of attendant care they have now and that DHS will not allow any new applicant to the program to receive attendant care services. Legal Aid of Arkansas is actively working to change this through a new lawsuit filed on June 29.

Here is some other relevant information:

(A) The public comment period for rule-making on the algorithm runs until 7/31.  Here are the manuals available for public comment. The public has a right to participate in the rule-making process. If they choose to do so, people may offer comments by email to becky.murphy@dhs.arkansas.gov or by mail to the DHS Division of Medical Services, Office of Policy Coordination and Promulgation, P.O. Box 1437, Slot S295, Little Rock, Arkansas 72203-1437. Please include the title of the document you are commenting on when you email. Here is the notice of rule-making that DHS has published for more information.

(B) DHS is hosting public meetings about the rule-making. The remaining meetings is on 7/26 in Little Rock (Ark. Enterprises for the Developmentally Disabled ;105 East Roosevelt Rd.). People can offer verbal comments at the meeting. The meetings start at 5 p.m.

(C) Legal Aid has had nearly 200 cases relating to the RUGs algorithm in the last two and a half years. Here is some of what we’ve learned about how the algorithm works.

(1) The algorithm doesn’t provide enough care to meet the needs of people on ARChoices.

The most care someone can get under RUGs is 5.5 hours per day unless they need IV medication, suctioning, tracheostomy care, a ventilator, or a feeding tube (then, they can get 6.5 hours per day). This is not nearly enough to meet the care needs of many people on the program. Because of the cuts to care, many people ended up lying in their own waste, skipping meals, getting bed sores, and staying shut in. Even when people have family members make up for the cuts, they have had to go through more anxiety, have family work outside the home in ways that threaten their care, or consider moving to a nursing home.

(2) The RUGs algorithm cuts the hours of people who have not gotten any better.

People who used 8 hours per day (the max for people under 65) or 7 hours per day (the max for people 65 or over) before the algorithm were cut even though their medical conditions and abilities did not improve.

(3) The RUGs algorithm has not been validated or verified in Arkansas.

The only testing that has occurred on RUGs took place in Ontario, Canada and Michigan, which have different situations than Arkansas. Also, though DHS says that it used statistics to come up with the hours that different people get, DHS admits they lost the data.  This means that there is no way of knowing how or why DHS figured that 5.5 hours per day was enough for someone with quadriplegia or cerebral palsy (or any of the other amounts DHS gives for people with different conditions and abilities).

(4) There is no documented evidence of problems with the system of nurse discretion that DHS used for 17 years before the algorithm.

Before 2016, DHS used nurses to decide the number of attendant care hours. Legal Aid never received a single complaint from clients about the nurses’ decisions. Since DHS started using the algorithm in 2016, we have worked on nearly 200 cases. Now, DHS says that nurses were biased and that the algorithm is more objective or fair. But, before 2016, DHS did not tell a single nurse that they were giving out too many or too few hours, did not do any kind of study to show whether nurses were giving out too many or too few hours, and did not tell nurses to change the way they were giving out hours.

(5) Our clients generally do not think the complicated RUGs algorithm is fair.

The algorithm is 21 pages of computer code. Most average people can’t understand it. Also, the way the algorithm works totally excludes a doctor’s opinion about the amount of care someone needs. People on the program cannot understand the criteria by which their hours are set, cannot fight reductions, and cannot plan for the future.

If you need help or more information, here is Kevin’s information:

Kevin De Liban, Attorney

Economic Justice Practice Group Leader

Legal Aid of Arkansas–West Memphis

310 Mid-Continent Plaza, Suite 420

West Memphis, AR 72301

Phone: (870) 732-6370 x. 2206

Fax: (870) 732-6373

Facebook Twitter

AR Choices Update

Update on #ARChoices:

(1) Yesterday, the judge issued an order, which puts in writing his previous finding that DHS is in contempt of court.

(2) DHS has appealed the 5/14/18 ruling that invalidated the methodology to the Arkansas Supreme Court. However, the Supreme Court is in summer recess.

(3) In the meantime, DHS does not want to go back to the previous method for determining how much care to give someone (by nurse determination instead of computer algorithm), and the federal government sent a letter to DHS stating that it would not approve that system either.

(4) As a result, everything is on hold. Current people on the program won’t be reassessed nor will people who have applied for the program. DHS also will not restore the hours of people whose hours were reduced under the methodology.

(5) DHS has said that a new algorithm will be adopted starting September 1, but the public comment process has not started on that. According to Legal Aid’s analysis, the new system will base its decisions on how much time it takes to complete particular tasks, but with limits, which will lead to a lot less hours approved.

Legal Aid of Arkansas welcomes anyone who is having issues with ARChoices to call (800) 967-9224 to seek legal help.