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Feb. 27, 2012
TOPEKA Advocates for the disabled say they believe the federal government is close to taking action against the state of Kansas for violating the Americans with Disabilities Act.
Federal officials for months have been reviewing complaints filed by disabled Kansans and they are scheduled to meet later this week in Kansas City with state officials to discuss the issue and their findings, a step that often precedes federal action.
The disabled consider the ADA a civil rights landmark and a major highlight of the legislative legacy of former U.S. Sen. Bob Dole, a celebrated Kansas Republican who himself was disabled by grave wounds suffered as an infantryman in World War II.
For years, Kansas had the reputation of being a leader among states in providing services to the disabled, and sometimes was cited in court cases elsewhere in the country as an example of how things should be done.
But since the late 1990s, Kansas has had a growing waiting list for services. And many believe that has put the state at odds with the federal law at a time when the U.S. Justice Department has stepped up its enforcement of the disabilities act.
Since President Obama took office, the U.S. Department of Justice has joined or filed more than 25 lawsuits alleging discrimination against the disabled in 17 states.
In Georgia, the state has had to spend close to $100 million over the past three years on additional services for the disabled as the result of a settlement with the federal government.
“Kansas had better be paying attention,” said Deirdre O’Brien, an advocate of the developmentally disabled in Georgia. “Let me tell you, the Department of Justice isn’t fooling around on this. They’re pretty serious.”
Might Kansas be next?
Seven months ago, U.S. District Attorney Barry Grissom said the U.S. Department of Health and Human Services was weeks away from citing Kansas for not doing enough to help disabled people live in community settings rather than in institutions.
The state, he said, either would have to expand its network of home- and community-based services or face the likelihood of his office filing a lawsuit in federal court.
“This is a big deal guys,” Grissom said, addressing a July 21, 2011, meeting of the Topeka Human Relations Commission. “It’s a really big deal.”
But the weeks became months. HHS has yet to issue its report and Kansas legislators have shown little interest in putting more money into programs for the disabled, which presumably would settle the concerns.
Angela de Rocha, a spokesperson for the Kansas Department of Social and Rehabilitation Services, the state welfare agency, said SRS officials were “currently in contact with HHS” and were aware that HHS and the U.S. Department of Justice have been comparing notes on the Kansas situation.
SRS legal officials are scheduled to sit down with HHS officials on Wednesday in Kansas City. The meeting could prove to be a turning point.
Neither federal nor state officials were willing to discuss details of the planned meeting.
“We are unable to comment on possible pending investigations,” David Roman, a communications specialist at the Department of Justice, told KHI News Service.
“The Brownback administration is in ongoing conversations with HHS as part of our state-federal partnership to ensure open communications on a variety of issues important to the health and well-being of all Kansans,” said Sherriene Jones-Sontag, spokesperson for Gov. Sam Brownback.
Advocates for the disabled who have been in contact with federal investigators say they’ve been told to be patient.
“We’re like everybody else,” said Rocky Nichols, executive director of the Disability Rights Center of Kansas. “We’re waiting.”
Grissom issued the following statement from the U.S. Attorney's Office: “The Department of Justice has been working closely with Health and Human Services and our partners at the State of Kansas. Our goal has always been to remove obstacles and avoid unnecessary delays in providing needed services to fulfill the promise of the landmark decision in the Olmstead case to thousands of Kansans.”
Olmstead refers to Olmstead v. L.C., in which the U.S. Supreme Court ruled that ADA required states o provide services for disabled people in settings most appropriate to their needs.
According to the 1999 decision, it is a form of unlawful discrimination to cause someone who is capable of living in the community to instead live in an institution due to a lack of community services.
In Kansas and other states, advocates for the disabled have argued that the Olmstead ruling also forbids states from having prolonged waiting lists for Medicaid-funded services designed to help the disabled live in community settings.
“The waiting lists are a major violation, period,” said Mike Oxford, executive director of the Topeka Independent Living Resource Center and a past president of the National Council on Independent Living.
Currently, more than 5,000 people with developmental or physical disabilities are on Kansas’ waiting lists. Waits of two or three years are not unusual.
Last year, SRS officials said they thought the state would have to spend an additional $72.9 million to eliminate the waiting lists.
Oxford and others have encouraged people on the waiting lists to file Olmstead complaints with the Office for Civil Rights within HHS.
“I know that on the PD (physically disabled) side of things, 630 complaints have been filed since 2009,” said Shannon Jones, executive director of the Statewide Independent Living Council of Kansas. “I also know that there’s been (federal) follow-up with some of those who’ve filed complaints.”
Jones said she expected HHS to cite the state for not doing enough to move people off the waiting lists.
‘Kansas as the model’
But de Rocha at SRS disagreed, noting that Kansas is nationally known for its early embrace of the deinstitutionalization principles that became the cornerstone of the Olmstead decision.
“Kansas has had home- and community-based services in place since 1982, and was compliant with what were eventually defined as Olmstead requirements prior to the Olmstead ruling,” she said.
Funding shortfalls that were beyond the control of SRS, she said, drove the waiting lists.
Despite the waiting lists, she said, more than 13,700 Kansans with physical or developmental disabilities are currently receiving Medicaid-funded home and community-based services.
Few Kansas-size states, she said, are serving as many people.
“Other states look to Kansas as the model for how to provide home- and community-based services,” she said. “I mean, literally, other states have been taken to court, told the court they would adopt Kansas’ plan, and the court has said OK.
“I’m not saying we’re perfect and that everything is wonderful,” de Rocha said, “but we’ve done a darn good job, and we’re doing everything we can to keep it that way.”
Under Olmstead, states are allowed to have waiting lists so long as they move at a reasonable pace.
“A state has to be able to show progress,” said Charlene Harrington, director at the national Center for Personal Assistance Services at the University of California, San Francisco.
“Kansas having a three-year waiting list will be problematic,” she predicted. “And it’s kind of hard for a state to say it doesn’t have the money when it’s paying for nursing home and state hospital care, both of which tend to be more expensive than home- and community-based services.”
Harrington, who grew up in Concordia, has written several papers on home- and community-based services.
“In the past, Kansas has been very progressive on these issues,” she said. “The problem now appears to be one of underfunding. Things are static.”
A different deficiency?
SRS reports show that from 2010 to 2011, the number of physically disabled people receiving home- and community-based services fell by more than 400.
Tom Laing, executive director at Interhab, an association that represents most of the state’s community programs for the developmentally disabled, said the Olmstead concerns being raised in Kansas may differ from those raised in other states.
“It’s true that for a number of years a conscious effort was made to reduce the waiting lists,” Laing said. “It’s not as if we have people in the state hospitals clamoring to get out and being denied.”
Still, he said, home- and community-based services have been underfunded and the waiting lists have been unacceptably long.
“Kansas has one of the longest-running, best-designed systems in the country,” he said. “If there’s a deficiency, it’s dealing with a reimbursement stream that’s underfunded and is not being addressed by the Legislature.”
Rep. Bob Bethell, an Alden Republican and chair of the House Committee on Aging and Long-term Care, said legislators had not been made aware of the upcoming meeting between SRS and HHS officials.
“As far as I know – and I like to think I would know – this has not been the subject of committee discussion (House or Senate) this session,” Bethell said. “The waiting lists have been discussed, certainly, but this is the first I’ve heard that the feds may have a concern about Olmstead.
“I suspect we’ll be asking SRS to bring us up to date on its meetings with HHS,” he said. “We need to know what’s going on.”
The KHI News Service is an editorially independent initiative of the Kansas Health Institute and is committed to timely, objective and in-depth coverage of health issues and the policy making environment. Find more about the News Service at khi.org/newsservice or contact us at (785) 783-2529.