The Oklahoma Department of Human Services said it plans to drop a five-year residency requirement for people seeking to sign up for intellectual or developmental disability waiver services after a letter from the U.S. Department of Health and Human Services stated the requirement was unconstitutional.
House Bill 2899, was passed by the Oklahoma Legislature and signed by Gov. Kevin Stitt in May. The law sought to address the state’s waiting list for developmental and intellectual disabilities services, a list that has nearly 6,000 people on a mostly first-come-first-served basis and has a wait time of more than a decade.
The waiting list is for services funded through a federal Medicaid waiver program administered through the Oklahoma Department of Human Services that provides community-based and in-home support services for adults and children with intellectual and developmental disabilities.
On Thursday, Daniel Tsai, deputy administrator and director for the U.S. Centers for Medicare and Medicaid Services responded to an earlier letter from several advocacy groups, stating that the five year residency requirement indeed violates the U.S. Constitution’s Fourteenth Amendment as well as federal regulations. The Oklahoma Health Care Authority had been notified of the agency’s determination, Tsai wrote, and had requested technical assistance on the issue of waiting list concerns.
“The U.S. Supreme Court ruled that the Fourteenth Amendment to the United States Constitution requires states to treat individuals who have moved recently to a state the same as individuals who have resided in the state for a longer period of time unless shown necessary to promote a compelling governmental interest,” Tsai wrote. “Consistent with this Constitutional prohibition, federal regulations also prohibit state Medicaid agencies from denying eligibility if the individual has not resided in the state for a specified period of time.”
In a statement from DHS, the department acknowledged it had received the letter on Thursday, and said it intends to comply with the guidance received from CMS.
“OKDHS received the letter from CMS to the National Health Law Program just this afternoon,” the statement read. “We remain on course to find solutions to end the waiting list in Oklahoma. We encourage others to join us in that mission.”
The Oklahoma Health Care Authority, which administers the state’s Medicaid program, said it planned to work with federal and state agencies on the waiting list issue.
“In partnership with DHS, we are continuing discussions with CMS around opportunities to reduce the wait list in Oklahoma,” a statement from OHCA to The Frontier stated.
Some families of children and adults on the waiting list who spoke with The Frontier said they were happy to see the five-year residency requirement be struck down.
Sand Springs resident Bobbi Westmoreland, who has two young children on the waiting list, only moved back to Oklahoma from Kansas in February to be closer to family. She said she believed that had she waited to move by only a few months, her children could have been subject to the five-year requirement.
“If that went into effect and we didn’t move back until next year, my kids would have obviously been in a bad situation. It would have kept me from moving back home because I wouldn’t want to put them in a situation where they would have been without services,” Westmoreland said. “People with disabilities already have a fight on their hands to get services anyway. Let’s not make it harder.”
Authors of the bill said its main goal was to eventually eliminate the waiting list by assessing and then providing the needed services to those on the waiting list.
“The plan is to fully eliminate the waiting list in Oklahoma next year,” Rep. Mark Lawson, R-Sapulpa, one of the bill’s main authors, said during a May 14 Joint Committee on Appropriations and Budget meeting.
Part of that goal would be accomplished by contracting with a third party company to assess the cost to provide the services to eligible people on the waiting list, what types of services are needed and the state’s capacity to make sure those services are available. Critics said the bill was passed without input from individuals with developmental disabilities, their families and advocates.
However, lawmakers told The Oklahoman they were concerned that if the waiting list was ended families from other states would flood into Oklahoma seeking services, so they added a five-year residency requirement to the bill. That meant an individual would have to have lived in the state for five years before being eligible for those services.
“Hopefully, we get to a place where we provide services to everyone,” Lawson said during the May 14 JCAB meeting. “We want to make sure we are providing services to Oklahomans first.”
Lawson did not return a phone message left at his office Thursday by The Frontier seeking his reaction to the CMS letter.
Lisa Turner, CEO of The Arc of Oklahoma, said her group was one of the first to discover the language for the bill had been inserted during the final weeks of the session. The bill was fast-tracked, passed by the Legislature and signed by Gov. Stitt within a week. It became effective July 1.
“It kind of came out of the blue,” Turner said.
Turner said Arc of Oklahoma and the Oklahoma Institute for Child Advocacy were told rules would be promulgated so the law would not hurt families moving to the state to take a job, but would prohibit people primarily seeking developmental disability services from signing up for five years. The two groups were called out by proponents of the bill during floor debate and accused of fear-mongering, she said.
“If a family is moving from Arkansas back to Oklahoma to care for their ill mother and they happen to have a child or adult with a developmental disability, they should be able to get the services and not wait an additional five years,” Turner said.
Arc of Oklahoma and other groups warned at the time the residency period requirement was unconstitutional, but were mostly ignored, she said.
“The response from DHS directly was this is all pending approval and they promised they had run it by CMS and there was no issue. They mentioned it multiple times,” Turner said. “The sources we were working with were saying there is certainly an issue.”
During monthly meetings with disability rights advocates and families over the summer, Oklahoma Department of Human Services representatives said they had not yet drafted rules for the requirement, as they were waiting on guidance from CMS on the issue.
In June, a group of six organizations — the National Health Law Program, The Arc and its Oklahoma chapter, Oklahoma Policy Institute, the Oklahoma Disability Law Center and Legal Aid Services of Oklahoma sent a letter to CMS asking the federal agency to intervene and tell the state that the new law violated the U.S. Constitution, the Americans with Disabilities Act, the Medicaid Act and other laws and rules.
“Oklahoma’s residence requirement will harm hundreds of people,” the letter states. “It is not authorized by the Medicaid Act or the U.S. Constitution. We respectfully ask CMS to inform Oklahoma’s Medicaid agency that CMS will prohibit application of the residence requirement contained in HB 2899.”
RoseAnn Duplan, policy and planning specialist for the Oklahoma Disability Law Center, said disability rights advocates were pleased with Tsai’s letter. She said the next steps are largely reliant on how the Oklahoma Health Care Authority and DHS proceed.
“We’re, of course, extremely happy. I don’t think CMS could have been any clearer in saying it’s just not permitted,” Duplan said. “Being that there’s funding at stake, if they’re out of compliance with CMS regulations, we would expect that they will comply and not implement this rule. But if they chose to implement it, we would definitely take whatever legal steps are necessary to enforce the rights of our clients and ensure their rights are protected as laid out in the letter from CMS.”
During debate on the bill, Lawson said he expects the third party company doing an assessment on eliminating the waiting list should have a report to the Legislature by January. Turner said advocates are awaiting the report and for DHS’s plan for doing away with it.
“Families that have loved ones on the waiting list, we hear the lack of trust in the system because they’ve been left out of the process in the past,” Turner said. “We’re excited to watch the process of how DHS goes about eliminating the waiting list.”