OKLAHOMA CITY — Disability advocates Thursday celebrated a ruling that bars the state from implementing a new law requiring Oklahomans with intellectual disabilities to wait five years before accessing specialized home and community-based services through the state’s Medicaid program.
House Bill 2899 is unconstitutional because it violates the 14th Amendment, wrote Daniel Tsai, a deputy administrator and director with the Centers for Medicare and Medicaid Services. The letter was addressed to the legal director of the National Health Law Program, but was also sent to the Department of Human Services and to several Oklahoma advocacy groups challenging the law, which took effect July 1.
Tsai wrote that the 14th Amendment requires all states to treat individuals who have moved recently to a state the same as individuals who have resided there longer, unless it is necessary to promote a compelling governmental interest.
He wrote that federal regulations already prohibit state Medicaid agencies from denying eligibility if the individual has not resided in a state for a specified period of time, meaning Oklahoma’s new residency requirement is not permitted. He said the agency has noticed Oklahoma officials of that regulation.
The Medicaid program is designed to help keep disabled Oklahomans out of institutionalized settings.
State officials said there are about 5,800 Oklahomans already on the waiting list for these services. Those individuals typically wait an average of 13 years for services.
House Bill 2899 was a key part of the Republican legislators’ plan to fully fund and eliminate that wait list because lawmakers said it would ensure that “organic Oklahoma families” are prioritized and would keep people from dropping their kids off for services. But advocates for Oklahomans with disabilities argued the measure was unconstitutional even before it was signed into law.
The Oklahoma Disability Law Center was among a coalition of state and national advocacy groups that wrote CMS on June 1 about “a serious problem” in the state’s Medicaid program. They argued that the new law violates: the Medicaid Act, which prohibits residency requirements that exclude any individuals who live in a state, as well as the U.S. Constitution and the Americans with Disabilities Act because it discriminates against those with intellectual disabilities and increases their risk of institutionalization.
RoseAnn Duplan, policy and planning specialist with the Oklahoma Disability Law Center, said they were “so excited” by the CMS response.
She said the next steps would depend on how the state Department of Human Services, which administers the program, and the Oklahoma Health Care Authority proceed.
“We’re fully committed (to) enforcing our clients’ rights under the law as set forth in the letter from CMS,” she said. “So if for some reason, they decided to go against the CMS notice, then at that point (we) would decide what legal steps need to be taken.”
Duplan said they don’t foresee that happening, though, because the state would risk millions in federal health care funding if it does not comply with CMS rules.
In a statement, the Department of Human Services said it had just received the letter Thursday afternoon.
“We remain on course to find solutions to end the waiting list in Oklahoma,” the agency said. “We encourage others to join us in that mission.”
In a statement, the state Health Care Authority said it had yet to receive a copy of the letter.
“As soon as we receive the letter, we will review the information and participate in conversations with our partners regarding opportunities to reduce the wait list in Oklahoma,” the agency said.
State Sen. Roger Thompson, R-Okemah, the Senate author, said Thursday afternoon that he’d not yet seen the letter, but said he wants to make sure that Oklahomans are taken care of, while ensuring that the Legislature stays within the confines of the Constitution and the law.
“We will be examining every possible avenue to make sure that the people who need service receive the service they need,” Thompson said.
He said the ruling does not disappoint him.
“Right now we live in an atmosphere where rulings come and go every day,” Thompson said. “What I don’t want to happen is for the needs of the people to get sidetracked while we’re fighting rulings, and (we need) to make sure that we’re still taking care of the people.”
He said legislators also want to clear the wait list.
“I think it’s deplorable that we have people who’ve been waiting so long for services,” Thompson said. “Let’s find out exactly how many Oklahomans need services, and let’s go ahead and take care of them.”
Janelle Stecklein covers the Oklahoma Statehouse for CNHI's newspapers and websites. Reach her at email@example.com.