If a state agency does not rescind notices that programs serving more than 20,000 disabled and elderly Oklahomans will be eliminated, the American Civil Liberties Union of Oklahoma will respond with a lawsuit, a spokesman told The Frontier.

The ACLU of Oklahoma plans to file a preliminary injunction next week in the U.S. District Court for the Western District of Oklahoma to try to prevent the elimination of Oklahoma Department of Human Services programs, said Brady Henderson, legal director of the organization.

“We are preparing all of this hoping we never have to file it,” Henderson said. “And that’s always a tough spot to be in. It’s ridiculous if we have to seek it.”

The ACLU of Oklahoma has been working on the suit with the Oklahoma Disability Law Center and Progressive Independence, an Oklahoma-based advocacy group. The Oklahoma Disability Law Center is a protection and advocacy system for people with disabilities.

DHS sent letters out on Oct. 31, notifying participants the ADvantage Waiver and Adult In-Home Support Waiver program would be eliminated Nov. 30.

ACLU sent a letter to DHS director Ed Lake on Wednesday night warning it would seek “judicial intervention” if the agency did not rescind its termination letters and notify all ADvantage and In-Home Support Waivers program recipients their benefits would continue.

ACLU (Text)

DHS spokeswoman Sheree Powell said the agency has not yet responded to the letter. Legislators have issued statements on how they do not intend to let the services fail, and the agency is waiting for them to come up with a budget resolution, she said.

“We’re just waiting for the Legislature to take action,” Powell said. “We really believe the Legislature does not want to see these programs end, and they will come up with a solution.

“We look forward to the day we can send out notices to our clients that say the Legislature has found funding and that the program will be reinstated.”

Henderson told The Frontier the agency announced the elimination of the programs with little notice and gave no opportunity for participants to be heard or appeal the decision.

A letter sent to program participants stated, “Since elimination of the ADvantage Waiver affects everyone receiving services through it, there is no right to appeal this action.”

By eliminating the waiver programs, DHS is essentially driving people into institutions, Henderson said.

“You’re leaving people without an option,” he said.

Henderson cited a U.S. Supreme Court decision that people with disabilities are entitled to receive services in the community rather than in institutions. The Court concluded that, “unjustified institutional isolation of persons with disabilities is a form of discrimination.”

The lawsuit may also include claims involving the Americans with Disabilities Act and the Rehabilitation Act, Henderson said.

Henderson said the waiver programs prevent people from having to be in institutions and ensures they can stay in their communities with their families.

“That’s the issue with terminating (the programs),” he said.

At the same time, eliminating the programs would actually cost the state more money, as nursing facilities are more expensive, Henderson said.

State Rep. Pat Ownbey, chairman of the House Human Services Committee, told the Tulsa World on Monday that he believes the ADvantage Waiver program will not be eliminated.

“The intent of the Legislature is not to allow the ADvantage Waiver program to be cut,” he told the Tulsa World. “It’s not going to happen … We will get that (budget) hole filled.”

Ownbey voted in favor of House Bill 1054X on Thursday, a budget measure that narrowly failed.

Melissa Sublett, executive director of the Oklahoma Disability Law Center, said the letters sent to participants are clearly an elimination of the program.

“It gives a specific date and says there’s no avenue for appeal,” Sublett said. “The letters don’t appear to be anything than what they are. It’s unbelievable. People from all over the country are contacting our office.

“It’s very real to people, and we are forced to take it seriously.”

Sublett said although the programs serve seniors, a large portion of participants are young adults.

“You have 20-year-olds that don’t want to be in a nursing home,” she said.

Many of the people receiving services have severe disabilities and need 24/7 care, Sublett said. Many need feeding tubes and help with everyday tasks, such as going to the restroom  DHS made no effort to transition program participants or assess other options, she said.

“Add the fact that they’re discontinuing the adult day care and personal care program, there are really no alternatives to keep these individuals living in their home,” she said.

Sublett encouraged families affected by the notices to contact her organization.

Powell said DHS is working on a Centers for Medicare and Medicaid Services transition plan in the case the programs are not reinstated, which would include referring people to alternatives such as nursing homes and other facilities.

If ACLU files the suit, the defendant would likely be DHS director Lake in his official capacity, Henderson said. It is unclear who the plaintiffs would be, but there could be up to six, he said.

DHS lost $69 million of its state funding for Fiscal Year 2018. Last month, the agency submitted a revised budget to the Oklahoma Office of Management and Enterprise Services.

The revised budget included eliminations of DHS services, including the ADvantage program. It also would eliminate funding for adult day services for seniors and adults with disabilities and in-home services for seniors, including home-delivered meals and home-making services.

The House passed a bill on Oct. 30 that would appropriate $29 million to DHS. The bill is now in the Senate.

On Wednesday, a tax package that was expected to have generated millions of dollars and help fill the state’s budget shortfall failed to pass the Oklahoma House.

“For 20,000 oklahomans right now, every day is closer to the Dec. 1 deadline. … We have thousands of families in Oklahoma just scrambling, laying awake a night wondering, ‘Is my family member going to be OK next month?'” Henderson said.
DHS sends letters to seniors, disabled adults announcing end of program