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Adding 5-year residency rule on Oklahoma disability aid is unconstitutional, critics say

Daily Oklahoman - 5/19/2021

May 19—State lawmakers want to require that individuals with intellectual or developmental disabilities live in Oklahoma for five years before they can apply for state-funded community-based services provided through Medicaid.

Critics of the bill that is being fast-tracked to the governor's desk as part of the state budget process say the measure discriminates against some of Oklahoma's most vulnerable residents and could lengthen the wait for help.

House Bill 2899 would prevent applicants for several waivers offered through the Oklahoma Department of Human Services for in-home and community-based support for adults and children with disabilities from applying until they have been an Oklahoma resident for five years.

Rep. Mark Lawson, R-Sapulpa, said the change coincides with a concerted effort for DHS to eliminate its 13-year waitlist for those services. Nearly, 6,000 Oklahomans are on the list that typically operates on a first-come, first-served basis.

Lawson said he's hopeful the state can eliminate the waitlist entirely within three years. However, Lawson and other Republican lawmakers expressed concerns that if the waitlist is eliminated, people waiting for services in other states would flock to Oklahoma.

"While my heart goes out to families in other states who are in this situation, I dearly sympathize with them, but our obligation as Oklahomans is to serve Oklahomans," Lawson said. "I want to make sure we meet those obligations first, then let's look at capacity. If we have that capacity, let's look at eliminating some of those residency requirements."

The five-year timeframe was somewhat arbitrary, but Lawson said the idea is that time would allow Oklahoma to clear its waitlist backlog.

The proposed change hits close to home for Lisa Turner, CEO for The Arc of Oklahoma — an advocacy group that serves people with intellectual and developmental disabilities.

"I have a 20-year-old daughter with developmental disabilities that needs 24-hour care and supervision," Turner said. "We were born and raised in Oklahoma, then relocated for a job in Texas. We were there for a year before we moved back to Oklahoma. If this would have been in effect, we would have had to wait five more years to re-establish residency to get on the waiting list and then wait 13 more."

Turner also criticized the speed at which lawmakers are moving the bill that was introduced late Thursday.

Lawmakers didn't discuss HB 2899 with members of the disability community, nor did they ask for input from legislators who serve on the bipartisan waiting list caucus, she said.

The Department of Human Services is about to contract with a company to conduct a review of the state's waitlist. The company is expected to narrow down the list to people still in Oklahoma who still need services. The review is also likely to result in cost estimates for the Legislature to reduce the list and address service gaps.

"HB 2899 is a foundational piece in a bold path to eliminate the 13-year waiting list for Medicaid Home and Community Based Services for people with developmental disabilities and their families in Oklahoma," Department of Human Services spokeswoman Casey White said in a statement. "OKDHS expects a contract for a third-party assessment of the over 5,800 individuals on the waiting list to be awarded in the next few weeks. The third party assessment will be the first time in the history of the waiting list that people waiting will have their unique needs assessed for a valid cost estimate and to provide real navigation services while they wait."

RoseAnn Duplan, policy and planning specialist for the Oklahoma Disability Law Center, said the legislation is likely unconstitutional.

Residency requirements are not allowed under federal Medicaid rules and courts have previously ruled that requiring Medicaid residents to live in-state for a specified period of time before receiving services is a violation of the fundamental right to interstate travel under the U.S.Constitution, she said. The requirement is also discriminatory because it specifically targets services for people with disabilities, Duplan said.

"This talk of eliminating the waiting list right now, it's still just in theory," she said. "The money hasn't been appropriated and there's no actual plan in place to do it. So, at this point, you're moving here, having to wait five years just to apply and then you have at least another 13 years on top of that."

Lawson said that because the waivers are optional — the state doesn't have to offer them — it's legal under federal guidance for the state to implement policies to determine who is eligible.

Sen. Roger Thompson, R-Okemah, who presented the bill to a Senate panel last week, put it simply.

"If CMS (Centers for Medicare and Medicaid Services) comes back and says 'you're not going to do this,' we're not going to do it," he said.

The Centers for Medicare and Medicaid Services will have to sign off on the proposal, and Thompson said he's optimistic the federal agency will see a five-year waitlist for some people as better than a 13-year waitlist for everyone.

HB 2899 tasks the Department of Human Services with writing rules to carry out the law. Proponents say the agency will be able to include some exceptions to the residency requirement through that process.

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