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Sept. 26, 2012
TOPEKA Kansas Department for Aging and Disability Service Secretary Shawn Sullivan today said federal officials are not actively investigating complaints that years-long waiting lists for community-based services for the physically and mentally disabled constitute violations of the Americans with Disabilities Act.
“There is no formal investigation into Olmstead,” Sullivan said, adding that he was uncomfortable saying much more. Sullivan was testifying before a meeting of the Joint Committee on Home and Community Based Services Oversight.
Olmstead refers to a landmark case in which the U.S. Supreme Court ruled that states are obliged to provide services for disabled persons in settings most appropriate to their needs.
Unjustified institutionalization of people with disabilities, according to the 1999 decision, is a form of unlawful discrimination under the ADA.
In Kansas, it’s not uncommon for the physically and developmentally disabled to spend two to three years on a waiting list for Medicaid-funded services.
Earlier this month, KDADS administrator Gary Haulmark refused to answer legislators’ questions about the waiting lists, citing the threat of a possible lawsuit.
After today's meeting, KDADS spokeswoman Angela de Rocha said the agency was under the impression that the federal government had backed away from its investigation because it required examining the actions of U.S. Department of Health and Human Services Secretary Kathleen Sebelius, who was governor of Kansas prior to joining the administration of President Barack Obama.
“It was a conflict of interest,” de Rocha said.
De Rocha said Sebelius, a Democrat, was more responsible for the state’s waiting-list troubles than Gov. Sam Brownback, a Republican.
In April, HHS announced that it had investigated “numerous complaints alleging that the state of Kansas (had) violated the Americans with Disabilities Act,” and that efforts to “reach a voluntary resolution of the issues” had been unsuccessful.
Subsequently, HHS turned the results of its investigation over to the U.S. Department of Justice, a sign that the state likely would be sued in federal court.
De Rocha said KDADS is not aware of the Department of Justice intending to advance the HHS investigation.
“That’s why (Sullivan) said what he said,” she said. ‘There is no formal investigation.'”
Jim Cross — a spokesman for the U.S. Attorney’s Office in Kansas — said the matter between the Department of Justice and KDADS is ongoing.
"But I am not able to provide you an explanation of the nature or the extent of our work at this time,” Cross told KHI New Service.
Since Obama took office, the Department of Justice, acting on behalf of HHS, has joined or filed more than 25 lawsuits alleging discrimination against the disabled in 17 states.
Earlier this month, Sullivan raised doubts about the numbers of people on the waiting lists.
The agency, he said, in June hired AnswerNet — a company based in Hays — to contact each of the 3,462 adults on the waiting list for the service for the physically disabled.
Sullivan said the company was only able to reach 11 percent of the people on the list, almost one-third of whom either no longer needed services, had left the state or were unaware that they’d asked for services.
“We have concluded that the waiting list as it exists for the (physically disabled) waiver in not a credible basis for making policy decisions,” he said.
Sullivan noted that KDADS had given local programs for the physically disabled 30 days to update their waiting list numbers. The 30 days expires next week.
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