Okalahoma Looks to Limit Community Services

Editor’s Note: The following is not legal analysis, but direct observations from the federal courtroom in Denver Colorado.

The issue in Okalahoma centers around that state wanting to limit prescription drug benefits to people living in the community to the cost of five prescriptions; but putting no limit on prescription drugs given out in nursing homes. The state estimates that a couple of million dollars will be saved of the nearly half-a-billion dollar program.

Steve Gold

Steve Gold of Philadelphia represented three women appealing a lower court ruling that had denied them the drug benefit equal to similar citizens living in a nursing home. Steve began by telling the three judge panel of the 10 Circuit that the woman have been qualified by the state of Okalahoma for nursing home care, but they live in their own homes and wish to continue to live in their own homes and have newer been institutionalized.

“Your honors, honestly I think these women would rather die,” said Steve Gold, “than be in an institution.”

Obviously, the lower court had dealt with the issue of these women refusing to go into an institution. Because some citizens do not receive services from the state program in an institution, Oklahoma believes it can deny equal services to people living in the community. 

The attorney for the Oklahoma Health Care Authority made the point that none of the women were institutionalized and that “none have to be.” At that point one justice stopped the attorney to clarify that the state of Oklahoma had evaluated the appellants and “stipulated that they qualify for a nursing home.” 

“What you have not seen,” the state’s attorney said to the judge, “is the next step.”

As the lawyer began to explain a second justice stopped him and questioned if he was adding statements of fact. The Oklahoma attorney never finished the “next step,” and moved on to a new subject.

There was a chuckle from the crowd in the federal court as the state of Oklahoma’s lawyer suggested that nursing homes would be warehouses without a prescription drug policy. “Warehouses with drugs,” seemed a humorous and appropriate description of nursing homes to many of the gathered advocates in the courtroom, some who had lived for years in those institutions. 

To end his time the Oklahoma attorney attempted to explain why limiting medications can be positive. When asked how Oklahoma had come up with five prescription drugs, the attorney said that their was no rational; only that non-waiver citizens are limited to three.

For the final two-minutes, Steve Gold was impressive. If the stat of Oklahoma had raised any question in the audience’s minds, Steve put those questions to rest. He made a clear and compelling case.

Powerfully, Mr. Gold read from the text of the Oklahoma waiver that stated clearly that citizens served in the community by the waiver are to get the same services as those in the nursing home.

“This waiver has never been amended,” Steve added.

Unfortunately, Steve Gold had to report that the denial of the prescription drugs to the three women appellants was already harming them. He said that “all the women are not managing.”

To put things simply in conclusion Steve reminded the judges that the Supreme Court ruling in Olmstead reinforced the “integration mandate of the 1990 Americans with Disabilities Act; that people with disabilities are to be served in the most integrated setting.

Olmstead further defined “inappropriate institutionalization as distinct discrimination against people with disabilities. The intent of the law is to promote equal participation of people with disabilities into the community. The state of Oklahoma seems to hold that only being institutionalized “triggers” the requirement for the state to offer integrated services. Mr. Gold; however, pointed out to the panel how absurd that proposition can be:

“Suppose someone was in a nursing home for a week,” asked Steve, “would a two hour stay in a nursing home be enough to “trigger” Olmstead?”

- Tim Wheat