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Sept. 12, 2012
TOPEKA A ranking welfare official told state legislators today that he couldn't answer any of their questions about the thousands of Kansans on waiting lists for social services because his agency's attorney had advised him not to speak about the service delays due to threat of a possible lawsuit.
Gary Haulmark, a commissioner at the Kansas Department for Aging and Disability Services, waved off at least a half dozen questions from members of the Budget Committee about the status of the waiting lists and related issues saying, "I've been advised by counsel not to answer any questions because of pending litigation."
His refusals, offered in a respectful tone, seemed to baffle some committee members.
Sen. John Vratil, a Leawood Republican and an attorney, asked if there were any questions Haulmark could respond to about the state's various home- and community-based service programs or if he had been advised only to remain silent about matters directly pertinent to the possible litigation.
Haulmark responded by saying he'd been told "to answer no questions" dealing with the topic of home- and community-based services.
"That I find hard to believe," Vratil said. "There might be some rational reason for your attorney to tell you that, but I can't imagine what that would be. I'm flabbergasted."
Haulmark is scheduled to appear before the committee again Thursday and the committee asked him to return with the agency's chief counsel, William Rein, so Rein could explain in person his rationale for advising Haulmark to stay mum on any details of programs that account for almost $600 million a year in annual spending and whose budgets must be approved by the Legislature.
"I don't know what happened that you can't talk about it," said Sen. Carolyn McGinn, a Sedgwick Republican who chairs the committee. "Waivers are a crucial part of what we do as a legislative body."
The term "waivers" often serves as Statehouse shorthand for the home- and community-based Medicaid services which are provided under federal program waivers.
Kansas for more than a year has been under threat of a lawsuit from the U.S. Department of Justice for possible Olmstead violations of the Americans with Disabilities Act, but no action has yet been filed, according to federal officials, and it wasn't immediately clear whether there had been any change in the status of the justice department's investigation.
Today was the first time that legislators have been told by officials from the administration of Gov. Sam Brownback that they couldn't talk about the waiting lists, which were a regular topic during budget deliberations by the Legislature earlier this year. Administration officials did not cite the possible litigation then and responded to questions about the waiting lists. The federal investigation was openly discussed by legislators and some administration officials.
In April, the governor sent a letter to the justice department asserting Kansas was in full compliance with the law.
"This is unprecedented," said Sen. Laura Kelly, a Topeka Democrat. "Never once has anyone ever been instructed not to answer questions about the waivers or HCBS."
Earlier during the day, Haulmark spoke to the lawmakers about conditions at the state hospitals, which he helps oversee, and freely answered the questions they raised or promised to respond later with the requested information.
A legislative research analyst briefed the committee on the status of the waiting lists between 2008 and 2012, citing numbers provided by the state welfare agencies. She reported that the number of people on the waiting lists had gone from about 2,200 in 2008 to more than 7,500 four years later.
Overall state and federal spending approved by Kansas policymakers for the HCBS programs has held steady or decreased over the past four fiscal years and is now at about $574.5 million. But that number is significantly up from the $320 million approved for the programs 10 years ago.
Program supporters noted that everyone on the waiting lists has been assessed as eligible for the full institutional care the Medicaid program mandates they receive should they choose to accept it and that services that help people remain in their homes are far cheaper than paying for nursing home services.
Brownback officials have questioned whether everyone on the waiting lists truly needs the services and recently began double checking them.
Ami Hyten, an attorney with the Topeka Independent Living Center, said her agency had been instructed by state officials to contact 177 people from the list to see if they still needed services.
She said she was still working through the list but had reached more than 100 people or members of their families and so far only 12 no longer needed services either because they had already been admitted to a nursing home, moved out of state, died, or become ineligible because they found services through another program.
"The majority of people with whom we have connected give a resounding 'yes' when asked if they still need the in-home services and supports," she said. "Some of these people have been waiting for services since April 2009."
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.