oklahoma Department of Rehabilitation Services


Legislative Updates

From Jean Jones
DVR/DVS Legislative Information Representative

2009 ~ 2008 ~ 2007

 

June 5, 2007

State Legislative Update

Following is an update on:

  • 2007 state legislative outcomes and federal disability issues
  • SFY-2008 appropriation for DRS, division budget limits, the new incentive program for direct service staff who place SSDI and SSI recipients in jobs,
  • Other new laws that affect disability agencies and consumers
  • What DRS issues prevailed or failed in the legislative process

Also check the update to learn about a Medicare rule that restricts access to inpatient rehabilitation for Medicare recipients and could impact access to rehabilitation for anyone by forcing some rehab hospitals and units to close their doors. Find information on the extension of the Work Opportunity Tax Credit, the phased-in increase in the minimum wage, a blow for apartment dwellers who need accessibility features, and new ADA rules soon to be proposed.

The 2007 session of the Oklahoma Legislature ended on May 25. Several bills of interest to Oklahomans with disabilities have become law, others are pending, and many have died or had their forward progress stopped at some point in the legislative process.

The Governor had until June 9th to sign any bills that were sent to him in the last week of the legislative session. If these bills were not signed by June 9th, they automatically die (a “pocket veto”).

New State Laws That Affect Oklahomans with Disabilities:

Department of Rehabilitation Services - HB-1249
This is the SFY-2008 appropriation for DRS. The bill sets state dollars for DRS at $29,474,679. In this bill the agency receives about $261,000 more than our current state funding level. The adjustment includes funds needed to annualize the state employee pay raise that took effect last October, funds for a state mandated teacher pay raise (OSD and OSB), funds for bond retirement needed by the schools, and elimination of funds DRS received this year for one-time use.

Spending levels are allowed according to expenditure limits established in HB1249. The expenditure limit for DRS is set at $139,910,000. Expenditure limit for the divisions of Vocational Rehabilitation and Visual Services is set at $89,850,000. Expenditure limits for OSD is $13,605,000 and for OSB is $9,055,000. The Disability Determination Division expenditure limit is set at $27,400,000.

DRS is also affected by HB-1105. This bill was finalized in the last days of the session as legislators and the Governor reached agreement on how to use any state funds not already appropriated. HB-1105 provides $10,922 to OSB and OSD to pay a mandated increase in the employer contribution rate for teacher retirement. The bill provides $2 million for capital improvements at OSB and OSD. It also provides $53,773 to the schools for the teacher pay raise required by other legislation. Finally, HB-1105 exempts these amounts from budget limits already set in agency appropriation bills.

Most of DRS’ new funding requests were not approved. Items not funded included a $200,000 amount to expand services to the Deaf and Hard of Hearing, a $400,000 amount for services to be provided by independent living centers, funding for an OSD satellite day program in Chickasha, and some OSD and OSB needs.

Public transportation - SB-236
Sets budgetary limits for the Oklahoma Department of Transportation. Transfers $1.9 million from the State Highway Construction and Maintenance Fund into the Public Transit Revolving Fund, a fund that provides grants to local public transit systems. .

Department of Rehabilitation Services; performance incentive plan - SB-485 - Lamb; Enns
Authorizes the Commission for Rehabilitation Services to use funds from the Social Security reimbursement program for a direct service delivery staff incentive program. The incentive program would reward rehabilitation counselors and technicians for additional work done to successfully employ SSDI and SSI recipients.

AgrAbility - HB-1695 - Enns; Anderson
Creates the Oklahoma AgrAbility Project Act. Provides that subject to availability of funds, the Oklahoma Cooperative Extension Service shall provide, through the existing AgrAbility Program and contracts with other entities, assistance to persons with disabilities in farming or other agriculture-related businesses. States that the Oklahoma AgrAbility Project Fund may be created at some future time as funds become available for project activities.

Vulnerable adults - SB-398 - Adelson; Sullivan
In the Protective Services for Vulnerable Adults Act, adds a definition of financial neglect by a caretaker. In the House the bill was amended to specify that repeated instances of financial neglect must be present to constitute financial neglect. The House version also adds to the list of persons obligated to report abuse, neglect or exploitation of a vulnerable adult. It adds some actions a court may authorize DHS to take in securing safety or care for a vulnerable adult.

Community integration; nursing facilities - HB-1510 -Ellis; Rabon
Authorizes the Commissioner of Health to waive any provisions of the Nursing Home Act and the Long-Term Care Certificate of Need Act so long as the state remains in compliance with federal law and rules, in order to allow the development of long-term care options in small homelike settings in the community.

Dental care - SB-455 - Adelson; Scott Martin
Creates the Dental Health Service within the state Department of Health to plan, direct and coordinate all dental public health programs with local, state, and national health programs; advise the Department on matters involving oral health; and plan, implement, and evaluate all oral health programs within the Department. The legislation also creates a revolving fund to be used to help dental students repay student loans.

Poor persons - SB-499 - Rice; Steele
Creates the Oklahoma Task Force on Hunger. (Note: Average income of Oklahomans with disabilities is below state average income, and Oklahomans with disabilities make up over one-fourth of state residents living in poverty.)

Public transportation - SB-563 - Aldridge; Banz, Hoskins
Amends the section of law dealing with the Public Transportation Revolving Fund. Changes the basis for allocating monies for start-up public transit systems, to base the aid on $0.75 per passenger mile. This change is intended to make it easier to obtain funding for new public transit projects such as the Tinker AFB commuter route.

In-home care; companion services - HB-1580 - Peters, Coody; Ford
The final bill sets up a second tier licensure authority under the Home Care Act, with the Department of Health responsible for licensing agencies that provide companion and sitter services. Individuals acting on their own are not affected by the bill in its final form.

Free clinics - SB-930 - Paddack; Cox
Provides that for purposes of the Governmental Tort Claims Act only, doctors providing free care to indigent people at free clinics shall be considered employees of the State. This is a method of protecting charitable providers of health care from lawsuits, when they are providing free care to poor people and no negligence is involved.

Office of Handicapped Concerns - HB-1084 - Wesselhoft; Wilcoxson
Renames OHC the Office of Disability Concerns. Also extends the end date for the Electronic and Information Technology Accessibility Advisory Committee from 2007 to July 1, 2008.

Long-term care; Advantage and DDSD Waivers - HB-1926 - Jeannie McDaniel; Riley
Creates the Advantage Waiver and Developmental Disability Services Rate Review Committee. Committee duties include reviewing provider rates paid under these two waivers as well as rates for all other services to the aged and developmentally disabled through DHS Aging Services Division and DDSD. The Committee is also asked to project added funding needed to serve people on waiting lists.

Schools; OSB and OSD - HB-1476 - Coody; Jolley
House Bill 1476, the Passport to Financial Literacy Act, requires schools to teach financial literacy to students, and allows school districts to decide whether the components of personal financial literacy instruction will be incorporated into existing courses or into a new course. Students can be instructed in the elements of personal financial literacy throughout grades seven through twelve. Bill authors noted that research indicates American teens (age 12-15) spend more than $100 a week and 20 percent have at least one credit card. The average college senior has over $7,000 in debt, four credit cards and no job, the research shows.

State agency services; verifying legal status in the U.S. - HB-1804 - Terrill; Williamson
This bill requires state and local government agencies to verify lawful immigration or citizenship status of any person age 14 or over who applies for their services, unless lawful status is not required in order to be eligible for the service. Applicants will need to sign an affidavit attesting to their legal status, and the agency will have to provide free notarization of the document. Legal status must then be verified using a federal database. Agencies will have to verify the lawful work status of all new employees. They will have to require all their contractors and any subcontractors to verify the lawful work status of anyone who works for them. The bill makes it illegal to transport or harbor an illegal immigrant. Issuance of employee and student ID cards is also addressed. Agencies like DRS may have to put some new procedures in place to comply with this law.

Developmental disabilities; Olmstead planning - HB-1933 - Steele; Constance Johnson
Extends the end date for the Olmstead Strategic Planning Committee from a 2007 date to a 2010 date. Adds an additional duty for the Committee, "to monitor and assist with the implementation of the plan." Another added duty is to examine the feasibility of expanding eligibility for DDSD waiver services to include people with disabilities who are not eligible for help through the Advantage Waiver or who are at risk for out-of-home placements. Annual reports from the Committee are required each July through 2010.

Children’s health care - SB-424 - Adelson; Cox
Creates the “All Kids Act.” Directs the Health Care Authority to establish and maintain a health care program for children age 18 and younger in families with incomes between 185% and 300% of the federal poverty level. The bill states certain eligibility restrictions. The program would operate by providing subsidies to allow a family to purchase private health insurance or an employer-offered plan.

Assisted living - SB-738 - Morgan; Blackwell
States that when a resident of an assisted living center needs additional care beyond the room, board and personal care provided by the assisted living center, the center shall not remove the resident so long as the resident, family doctor and assisted living center all consent to the person staying in assisted living, and so long as the center commits to assuring that the resident receives the needed additional care.

College tuition relief - HB-2103 - Cargill and others; Mike Johnson
Requiring that beginning in the 2008-2009 school year, all higher education institutions in Oklahoma would have to offer in-state students an option to participate in a guaranteed tuition rate plan. The rate plan would let students choose to lock-in the tuition rate they pay in their freshman year for four consecutive years. However, the bill provides that colleges could raise the guaranteed tuition rate during that four years whenever the Legislature does not give higher education at least a 5% increase in its annual appropriation. The Governor signed this bill into laws, however his signing message indicated he signed the bill despite serious concerns that the tuition lock plan could drive up tuition for all students or could reduce revenue to Oklahoma colleges.

Disability Issues Stalled in the Legislative Process:

  • Transportation - Volunteer Drivers: Two Senate bills, SB-113 and SB-507, started the session as bills to create an exemption from civil liability for volunteer drivers who provide transportation for people being served by nonprofit, charitable organizations. The bills addressed a problem of recruiting volunteer drivers to assist people with disabilities, elderly individuals and others with transportation needs. Both bills ran into trouble. SB-113 was passed over early. SB-507 was finally transformed into a major tort reform package, minus the volunteer driver provision. This bill was eventually vetoed by the Governor
  • Educational Interpreters for the Deaf and Hard of Hearing. SB-500 as introduced would have weakened requirements for educational sign language interpreters for Deaf and Hard of Hearing children in public schools. The bill was adjusted with input from Deaf Oklahomans. Although it passed in the Senate, the House did not complete action on it.
  • Braille school materials. SB-648, to update Oklahoma law to blend with new federal law on accessible instructional materials, failed to pass in the Senate Appropriations Subcommittee on Education. It failed on a tie vote, along party lines. A new House rule prevents bills that fail from being brought up again any time in the two-year legislative session.
  • Lottery funds for OSD and OSB. Thus far, efforts to obtain a dedicated percentage of Education Lottery funds for OSD and OSB have not been successful. Although the schools are eligible to obtain some distribution from the Lottery fund, no percentage is guaranteed, and amounts received have been small.
  • Satellite OSD program in Chickasha. A bill to authorize OSD to establish a satellite day school at the university in Chickasha has not made it through the legislative process. This proposal was also part of DRS’ budget request to the legislature, but funds were not provided for it.
  • Advance directives. SB-486 would have required the Health Department to create an advance directive registry, a website with advance directive forms, and other information services related to advance directives. The House amended the bill to add a section of new law requiring creation of a public cord blood bank, requiring education on cord blood donation for pregnant women, and requiring doctors to inform their patients on this subject. This bill went to a conference committee, but was not heard.
  • Tax deduction for caregivers. SB-725 would have provided an income tax deduction equal to the federal exemption amount for a dependent for a taxpayer who pays at least half the support for a relative age 70 or over and the relative lives at least half the year in the taxpayer’s home. The deduction was limited to single taxpayers with income of $35,000 or less, or married couples with an income of $50,000 or less. This bill died in conference.
  • Assisted living, residential care homes. SB-1092 dealt with medication aides and the assistance they are allowed to provide to persons in assisted living, residential care homes and similar facilities. The bill would have created a new category of medication administration technicians, required training and registration, and listed the types of assistance they can provide in residential care homes, assisted living and adult day care centers. House and Senate versions of this bill differed, but no action was taken to reconcile them.
  • Medical care for inmates. SB-811 would have clarified that jail inmates are liable for the cost of any medical care they receive for preexisting conditions. A procedure would be created to handle disputes as to who should pay inmate medical costs. The bill did not come out of conference.
  • Sales tax exemption for hearing aids. HB-1494 was the one surviving bill out of several that would have exempted the sale of hearing aids from state sales tax. This bill passed both houses in different versions. It went to a conference committee, but a final version was not produced.

National News

Federal Minimum Wage

On the evening of May 24, before leaving for the Memorial Day recess, both chambers of Congress approved H.R. 2206, the Iraq emergency supplemental appropriations bill. The measure carries a minimum wage increase and the Small Business and Work Opportunity Tax Act of 2007. The minimum wage will rise from $5.15 to $7.25 per hour in two years. Sixty days after enactment of the law minimum wage will go up to $5.85 an hour. Twelve months later, it will rise to $6.55. One year later, it will rise to $7.25.

Extension and Modification of Work Opportunity Tax Credit

H.R. 2206 also extended WOTC until August 1, 2011 (perhaps the longest extension in history). The existing WOTC includes VR referrals among eligible groups. Disability referrals will be extended to include people with individual work plans referred by TTW employment networks other than VR agencies.

Medicare Rule Affects Access to Inpatient Rehabilitation

The American Association of Persons with Disabilities (AAPD) and other disability advocates are voicing major concern about new enforcement of a Medicare rule they say will reduce access to inpatient rehabilitation for people who desperately need it.

Medicare's "75% Rule" restricts access to inpatient rehabilitation care by requiring inpatient rehab hospitals or units to treat a particular percentage of patients with one or more of 13 specified medical conditions. (Currently that percentage is 60% and will rise to 65% on July 1, 2007 and eventually 75% in 2008.) In other words, even if a physician finds it medically necessary for an individual to receive inpatient rehabilitative care, a rehab hospital or unit may have to deny that individual access if they do not have the "right" diagnosis.

Diagnoses that are acceptable for meeting the “75% Rule” are

  • stroke
  • spinal cord injury
  • congenital deformity
  • amputation
  • major multiple trauma
  • fracture of femur (hip fracture)
  • brain injury
  • neurological disorders, including multiple sclerosis, motor neuron diseases, polyneuropathy, muscular dystrophy, Parkinson’s
  • burns
  • knee and hip replacements only if the patient had bilateral joint replacement (both hips or both knees) immediately before entering rehab, if the patient is obese, or if the patient is over age 85.
  • some arthritic conditions under limited criteria

The rule is designed to save tens of millions of Medicare dollars each year by rerouting patients to the lowest-cost setting adequate for treating their medical conditions. Disability advocates fear many of those denied rehabilitation will end up in nursing homes, actually costing the government more in the long run. They also point out that denial of intensive rehabilitation at the optimum time often results in chronic functional disabilities which involve a host of added costs to society and government programs.

AAPD contends that the "75% Rule" not only threatens access for individuals who do not have one of the 13 diagnoses, but for anyone who may need inpatient rehabilitation services as well. As inpatient rehab hospitals and units struggle to meet their patient "quotas" under the rule, many are being forced to downsize, reduce services and rehabilitation programs, or close their doors altogether. This creates significant access problems for all individuals.

In addition to the “75% Rule,” the criteria used for determining if inpatient rehabilitation for an individual is medically necessary have also been tightened. Called Local Coverage Determinations or LCD’s, these criteria are issued by “fiscal intermediaries” - often insurance companies - who determine if and what Medicare will pay for medical services in a particular area. Some already issued LCD’s have even further limited Medicare coverage of inpatient rehabilitation for joint replacements, amputations, broken bones, post-op recovery and many other serious medical conditions.

Legislation to temporarily fix the “75% Rule” has been introduced in the U.S. House and Senate. The bills are S. 543 and H.R. 1459.

S. 543 by Sen. Nelson Benjamin (NE) is called the Preserving Patient Access to Inpatient Rehabilitation Hospitals Act of 2007. It would hold rehab facilities to showing that 60% of their patients have diagnoses in the accepted categories. The bill also addresses the problem with LCD’s by requiring that henceforth, all entities connected with Medicare, including “fiscal intermediaries,” shall use and apply the criteria established in HCFA Ruling 85-2, as issued on July 31, 1985 (50 Fed. Reg. 31040), as the sole standard for determining the medical necessity of services provided by inpatient rehabilitation hospitals and units to beneficiaries under the Medicare program. There are currently 44 cosponsors for this bill. Neither of Oklahoma’s Senators are cosponsors.

H.R. 1459 by Sen. John Tanner (TN) is similar to S. 543. There are 167 cosponsors. Rep. Dan Boren is the only cosponsor from Oklahoma’s congressional delegation.

Setback for Housing Accessibility

The United Spinal Association has reported that the 2007 Supplement of the International Building Code (IBC) will no longer require apartments undergoing alterations to provide adaptability features to accommodate people with disabilities. The IBC is important because it is one of the “safe harbor” building codes recognized by HUD because they meet or exceed the Fair Housing Accessibility Guidelines (FHAG). Renovators and builders can use these “safe harbor” codes instead of FHAG and still comply with the Fair Housing Act Amendments of 1988, which is the law that addresses housing accessibility.

Under previous editions of the IBC, an alteration to more than 20 units in an existing building would trigger a requirement for two percent of the units to be provided with basic adaptability features.

At a hearing on May 24th, staff from the U.S. Access Board, the U.S. Department of Housing & Urban Development (HUD) and the United Spinal Association tried to have this new provision reconsidered but were not successful. The National Association of Home Builders and the National Multi- Housing Council provided testimony against requiring minimal adaptability, citing the additional costs and space that would be necessary to comply.

The United Spinal Association press release on this subject can be found at: http://www.aapd.com/News/housing/070601usa.htm

New ADA Regulations Expected Soon

The U.S. Department of Justice will shortly propose new rules related to the Americans with Disabilities Act (ADA). Proposed requirements that could be addressed in the new rules include:

Visible workplace alarms, which would allow deaf and hard-of-hearing employees to be made aware of an emergency situation.
Additional wheelchair-accessible seating at stadiums, theaters and other entertainment venues, spread out at varying distances from the stage or screen.
One in every six accessible parking spaces to be van accessible, up from one of eight.
TTY, or text telephone, equipment in all buildings with four or more public telephones.
Wider doorways and entrances to galley kitchens, public restrooms, hotel rooms and public housing.
The proposed DOJ rules won't cover employment, because the Equal Employment Opportunity Commission has primary rule-making authority for that part of the ADA.

Once the proposed revisions have been published, there should be a chance for public comment.

ADA Technical Assistance

The Civil Rights Division of the U.S. Department of Justice has begun issuing installments of a new technical assistance document designed to assist state and local officials to improve compliance with Title II of the Americans with Disabilities Act (ADA) in their programs, services, activities, and facilities. The new technical assistance document is entitled “The ADA Best Practices Tool Kit for State and Local Governments.” Installments were published on December 5, 2006, February 27, 2007, and May 7, 2007, and more will be released in coming months.

The Tool Kit is designed to teach state and local government officials how to identify and fix problems that prevent people with disabilities from gaining equal access to state and local government programs, services, and activities. It will also teach state and local officials how to conduct accessibility surveys of their buildings and facilities to identify and remove architectural barriers to access.

The updated technical assistance materials address:

  • effective communications
  • auxiliary aids and services, when agencies must provide them and who chooses the aids and services to be used
  • 9-1-1 and other emergency communications methods
  • website accessibility
  • curb ramps and pedestrian crossings
  • agency ADA coordinators
  • checklists for agencies to use to assess their level of compliance with these ADA elements, and to help them plan improvements

The Toll Kit materials can be found on the Department of Justice’s ADA website: http://www.ada.gov/pcatoolkit/toolkitmain.htm