HB 2899 DURATION OF RESIDENCY REQUIREMENTS FOR HCBS

ODLC

 

UPDATE 5/19/21:   In addition to the legal concerns we identified previously, with further research we now find that HB 2899 also violates the terms set forth by CMS for states receiving increased federal Medicaid money under the American Rescue Plan Act of 2021.

"CMS expects states to demonstrate compliance with section 9817 of the ARP, beginning April 1, 2021, and until the state funds equivalent to the amount of federal funds attributable to the increased FMAP are fully expended. To demonstrate compliance with the requirement not to supplant existing state funds expended for Medicaid HCBS, states must:
• Not impose stricter eligibility standards, methodologies, or procedures for HCBS programs and services than were in place on April 1, 2021;
• Preserve covered HCBS, including the services themselves and the amount, duration, and scope of those services, in effect as of April 1, 2021; and
• Maintain HCBS provider payments at a rate no less than those in place as of April 1, 2021."

 

ODLC was made aware of language added to HB 2899 late Thursday. The language of the bill adds a requirement that a person must be a resident of Oklahoma for 5 years before they can apply for a Home and Community Based Service (HCBS) waiver for persons with Intellectual Disabilities through the Oklahoma Department of Human Services.

ODLC believes this duration of residency requirement is not allowable for the following reasons:

  • Creates a severe Olmstead problem because it only applies to HCBS so a person moving to Oklahoma could be admitted to a nursing home or intermediate care facility for persons with intellectual disabilities under SoonerCare but not get HCBS in a less restrictive setting.
  • Creates a residency requirement that is not allowed under Federal Medicaid Statute and Regulations -42 U.S. Code § 1396a(b)(2) and 42 CFR 435.403 (j)(1)
    • Oklahoma Medicaid Regulations mirror the Federal Language (no doubt put here to satisfy Federal requirements)OAC 317:35-5-26(a)
  • Not allowable under 1915(c) Waiver design
  • Violate reasonable promptness requirements that are not waived/waivable under 42 U.S. Code § 1396n(c)
  • Duration of Residency Requirements have been long held as unconstitutional under the Equal Protection Clause of the Fourteenth Amendment and or the Privileges or Immunities Clause of the Fourteenth Amendment.
    • U.S. district courts have held that requiring a Medicaid applicant to reside in-state for a period of time before their benefits are determined is a violation of their fundamental rights to interstate travel as guaranteed under the U.S. Constitution
  • Creates discriminatory limits on one population
    • This places restrictions only on services for those who have intellectual disabilities and poses no such limits on services for those eligible for services under the ADvantage Waiver or the Medically Fragile Waiver.

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