KHI News Service

Advocate: State is ‘dangerously close’ to being sued

Federal law banning discrimination against the disabled cited

By Dave Ranney | February 26, 2010

Legislators are likely to find themselves in federal court if cuts to home and community based services are not restored, advocates for people with disabilities said Thursday.

“The state is dangerously close to being in violation of federal law,” said Rocky Nichols, executive director at the Disability Rights Center of Kansas.

Testifying before the House Social Services Budget Committee, Nichols said that in 1999, the U.S. Supreme Court ruled that states have an obligation to provide community based services. People with disabilities are not to be isolated in institutions such as nursing homes or state hospitals.

“It’s called the Olmstead decision. It says unnecessary institutionalization is discrimination and is illegal,” Nichols said.

Recent cuts in state spending – the 10 percent cut in Medicaid reimbursements, especially – have triggered an increase in nursing home admissions.

“When you close the front door to home and community based services, which you have with these cuts, you give people with disabilities no other choice but to stay in institutions or to go into institutions,” Nichols said.

Mike Oxford, executive director at the Topeka Independent Living Center, said people with disabilities are calling his office daily, desperately seeking services.

“I don’t like it, but a lot of times we have to tell them there aren’t any because there aren’t,” Oxford said.

Late in 2008, budget cuts caused the Kansas Department of Social and Rehabilitation Services to ‘freeze’ its waiting list for Medicaid-funded in-home services for the physically disabled. Today, more than 1,800 people are waiting for services.

“It’s a lose-lose situation,” Nichols said, noting that Medicaid-funded nursing home stays cost considerably more than community based services.

Afterward, Nichols, a former legislator, said he his comments were not “meant to be a threat, but having sat in their (committee members’) seats before, I felt I had to let them know how dire the situation is.”

Nichols said there is nothing to stop someone with a disability from asking his agency to sue the state. The Disability Rights Center, in turn, would be obligated to explore the possibility.

He said the center, which is federally funded, has not as yet committed itself to filing a lawsuit.

Oxford said TILRC is willing to sue the state if the legal criteria are met.

“We’re looking at it,” he said.

Shannon Jones, executive director at the Statewide Independent Living Council of Kansas, cited state data showing that between July and December, Medicaid on average covered 10,600 stays per month.

But after the 10 percent cut in January, the number of Medicaid-funded stays, she said, jumped to 11,711 – 986 more than December’s total.

“These cuts are real and they are painful,” she said.

Committee members heard from 25 conferees, a mix of advocates, program directors, consumers and parents of children with mental and physical disabilities.

Conferees were asked to limit their comments to three minutes.

Committee members did not ask questions.

The committee’s chairwoman, Rep. Peggy Mast, R-Emporia, said she planned for additional testimony Monday and would work the budget later in the week.