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May 29, 2012
TOPEKA The Kansas Department of Social and Rehabilitation Services is adding new language to its contracts with service providers that is intended to tighten an existing restriction against the contractors using state or federal funding to influence legislation.
A national expert said the new provision is unconstitutional and several Kansas service providers are saying they won't sign or renew their contracts with SRS in the coming fiscal year, which begins July 1, unless the language is modified.
“We’re not going to sign the document the way it is now,” said Audrey Schremmer-Philip, executive director at 3Rivers Inc., an independent living center in Wamego that contracts with SRS. “My board stands firm on that. Saying we can’t use any of our grant funds to influence ‘any agency’ goes far beyond the usual restrictions on lobbying.
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“What does ‘any agency’ mean?” she said. “Does that mean I can’t go to the housing authority and talk to them about one of their apartments not being ADA (Americans with Disabilities Act) compliant?”
All contracts, not just SRS
The new provision has been added to many SRS service contracts for the coming fiscal year.
It reads: “No funds allowed under this agreement may be expended by the recipient of the grant to pay, directly or indirectly, any person for influencing or attempting to influence an officer or employee of any agency, a member, or employee of a member of the United States Congress or the Kansas Legislature.”
Angela de Rocha, a spokeswoman for SRS, said Gov. Sam Brownback’s administration planned to add the provision to all state-administered grants or contracts. “Not just SRS,” she wrote in an email to KHI News Service.
Typically, state and federal contracts already bar contractors from spending government money on lobbying for or against a specific bill or policy.
However, the contractors are allowed to engage in "education campaigns" that do not mention a specific piece of legislation. They also are allowed to respond to legislators’ inquiries about how a bill or proposed budget might affect those receiving services.
And the contractors have been free to lobby on specific proposals, if they’re able to use non-government funds to offset the expenses of doing so.
The added SRS contract language - especially the word "indirectly" - has some contractors wondering how far-reaching the provision might be. For example, would it bar them from membership in associations that are active in the legislative process?
“We’re not sure what this means,” said Maury Thompson, executive director at Johnson County Developmental Supports and immediate past president of Interhab, an association that represents most of the state’s community-based programs for the developmentally disabled.
Interhab has been outspoken in its opposition to state policies that allow years-long waiting lists for services and the governor's plan to include long-term services for the developmentally disabled in KanCare, the governor’s plan for letting managed care companies run the state’s Medicaid program.
The administration last month agreed to postpone including the services in KanCare for a year.
“We looked into this about four years ago,” Thompson said, referring to the language that's being added to the contracts. “Our legal research showed that once a service is provided and payment for that service has been earned, that money belongs to the agency and the agency is free to do what it wants with it.”
There’s nothing wrong or illegal, he said, with Johnson County Developmental Supports belonging to Interhab or with Interhab testifying for or against proposed legislation.
“To me, what (SRS) has come up with is unenforceably vague,” said Thompson, who’s leading an Interhab work group charged with renegotiating the programs’ contracts with SRS. The committee met earlier this month.
Won't hold up in court
A national expert said he also doubted the provision would hold up in court.
“This language is both unconstitutionally vague and overly broad, so any court would swiftly strike it down,” predicted Tim Delaney, a former Arizona solicitor general who’s won cases in the U.S. Supreme Court.
Delaney currently is chief executive of the National Council of Nonprofits, which is headquartered in Washington, D.C. “Second, this language attempts to put a muzzle on human service providers, ripping away their First Amendment rights and inhibiting their ability to serve those in their communities.”
Delaney disputed SRS’ argument that the new provision only restates federal prohibitions on using government money to underwrite lobbying.
“This language is not what federal law says, so I’m troubled when I hear that (SRS’) rationale is that it simply wants to remind nonprofit contractors about federal law,” he wrote in an email to KHI News Service.
The provision has been included in SRS’ proposed contracts with the state’s 12 centers for independent living.
Ami Hyten, assistant director at the Topeka Independent Living Resource Center, said her agency had concerns about it.
“Our position is that SRS is being overly broad in its interpretation of the prohibitions against lobbying,” she said. “Until there’s a clear understanding of what terms like ‘any agency’ or ‘directly or indirectly’ mean, it would be foolhardy to sign something with that in there because SRS could come back three years from now and say, ‘You violated the contract and now you have to pay back a bunch of money.’”
Two weeks ago, SRS released an audit that, in part, accused the Statewide Independent Living Council of Kansas of using government funding to underwrite its lobbying efforts.
SILCK Executive Director Shannon Jones has often testified against SRS policies that allow lengthy waiting lists for services designed to help people with disabilities live in community settings rather than institutions. She’s also has led efforts to encourage people on the waiting list to file civil rights complaints with the federal government.
Last month, the U.S. Department of Health and Human Services announced that it had turned over its investigation of the complaints to the U.S. Department of Justice, a move that many say increased the likelihood of the state being sued in federal court.
The audit, conducted by the SRS Office of Audit and Consulting Services, called for SILCK to pay back almost $520,000.
Jones has said her board of directors will appeal the audit findings.
De Rocha defended the new contractual language.
“It is just good public policy to prohibit the use of taxpayer dollars to lobby the Legislature to spend even more taxpayer dollars,” she wrote. “That is an abusive practice that leads to other sorts of inappropriate use of taxpayer funds. And that is the reasoning behind both what SRS is doing and what the federal government is requiring. I can’t imagine any of our providers not wanting to comply with federal law and with the requirements of a contract that they have signed.”
The language, she said, would be added to SRS contracts with community mental health centers and with the state’s foster care providers.
“We don’t use state dollars to lobby,” said Melissa Ness, a former chair of the Kansas Children’s Cabinet and currently a contract lobbyist for St. Francis Community Services, which has the foster care contract for western Kansas. “We lobby but go to great lengths to document that we don’t use state dollars to do it.”
Officials for many of the state's local programs that assist victims of domestic violence or sexual abuse recently announced they would not renew their work agreements with SRS because of new contract terms demanded by the agency that the shelter officials said could put their clients at risk, if enacted.
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