Friday, March 30, 2012

Trouble in Kansas! Civil rights enforcers meet with Brownback

— Four civil rights enforcers from the U.S. Department of Health and Human Services met privately today with Gov. Sam Brownback and top Kansas welfare officials to discuss the state's long waiting list for services to the disabled.

Federal officials for several months have been reviewing complaints filed against the state by disabled persons and their advocates and now seem poised to take some sort of legal action, if Kansas doesn't move to remedy the problem.

Federal courts have found states in violation of the Americans with Disabilities Act for not providing adequate services to the disabled and federal officials have warned for months that they would act if the state didn't move to shorten the lists.

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.”

Federal team

Leader of the federal visitors was Leon Rodriguez, national director of the HHS Office for Civil Rights in Washington, D.C. He was joined by Frank Campbell, the agency's regional director for civil rights. Also in the group were Mary Giliberti, a ranking HHS civil rights analyst and Robinsue Frohboese, a top civil rights litigator for HHS.

Neither Kansas nor federal officials would comment on the record about the details of the meetings.

But Brownback administration sources said the federal officials made clear they were prepared to take action unless significant movement was seen in the waiting lists.

Since President Obama took office, the U.S. Department of Justice, acting on behalf of HHS, has joined or filed more than 25 lawsuits alleging discrimination against the disabled in 17 states.

About 3,400 Kansans with physical disabilities are waiting for services and about 3,900 persons with developmental disabilities are on a separate list. The services in question are provided under what are called Medicaid "waiver programs." The federal government pays about 60 percent of the costs of the services.

Federal officials first began looking at the waiting list for the physically disabled several months ago but then expanded their investigation to also include the waiting list for the developmentally disabled, according to a source familiar with the investigation.

The feds have sent repeated signals about their concerns to the Brownback administration.

Twice last summer, U.S. Attorney Barry Grissom said HHS was close to citing Kansas for not doing enough to help disabled people live in community settings rather than in institutions.

“This is a big deal guys,” Grissom said, addressing a July 21, 2011, meeting of the Topeka Human Relations Commission.

Then last month, federal officials met privately with Kansas welfare officials in Kansas City to discuss their concerns. The meeting with the governor was sought because federal officials weren't sure from earlier communications whether they were getting through to Kansas officials, according to a source familiar with the investigation.

Upcoming changes

But sources in the Brownback administration on Friday said the governor had asked for the meeting to better explain the state's position on the issue and to describe some upcoming policy changes expected to help reduce the waiting lists, particularly with respect to the physically disabled.

Administration sources also noted that Kansas has proportionately more disabled people receiving non-institutional services than all but a few states. That fact, they said, should help neutralize any legal argument federal officials might try to make that the state was violating the Americans with Disabilities Act as defined in the so-called Olmstead decision, a Supreme Court ruling that has sparked a stream of subsequent civil actions by the U.S. Justice Department in other states.

After Thursday's meeting, at least one Brownback administration official complained privately that the feds were pressuring Kansas over a waiting list problem that began under the administration of Gov. Kathleen Sebelius, who left office in 2009 to join the cabinet of President Barack Obama as HHS secretary. And more than one administration official said they suspected some political motivation on the part of Sebelius for the interest that HHS is showing here.

An administration source also said the meeting shouldn't be characterized as the feds "cracking the whip" on the issue and that Brownback officials had told the HHS team that they believed the waiting list likely was "inflated," meaning it included some people who might not actually need or qualify for services. The source said federal officials were told that KanCare, the administration's Medicaid makeover plan, in the long run could solve much of the waiting list problem and that in the short term better "quality management" training for case overseers could help assure that people on the list or those receiving services actually need or qualify for them. The sources said that the costs and numbers of people receiving or awaiting services had grown faster in Kansas than in many other states, evidence that perhaps the assistance rolls were inflated.

Kansas revenues and expenditures.

Since 2008

On Dec. 1, 2008, then-Gov. Sebelius and then-SRS Secretary Don Jordan essentially froze services for the physically disabled. For those not already receiving services, only those deemed "in crisis" could newly get them. In 2008, state revenues were just beginning to decline as a result of the economic recession. In March 2009, as state revenues continued to decline, a "rolling waiting list" was implemented. That meant two people had to leave the service rolls before a new person could begin receiving services.
Then, in January 2010, the list once again was frozen and only those in crisis could get off it. By August 2010, the waiting list had grown to 2,286 people and it has grown steadily since.

Three-year wait

Meanwhile, state revenues have rebounded and the governor in January urged the Legislature to consider both tax cuts and a budget plan that would essentially leave the state with about $500 million in reserve by the end of the coming fiscal year.

The governor's recommended budget would cut spending on the waiting list for the physically disabled and neither the House nor Senate have approved additional funding for the services.

"The last (physically disabled) person offered services this year had been on the waiting list three years," said Shannon Jones, executive director of the Statewide Independent Living Council of Kansas, a group that advocates for the physically disabled.

Jones said the physically disabled supported the rolling waiting list when state coffers were empty and also supported a temporary sales tax increase to help boost revenues. But that was with the expectation that the state would spend more on services once the treasury began to replenish.

"We've seen the ending balance grow and grow with not one dollar thrown toward the waiting list," Jones said. "In fact, the programs have been reduced."

The waiting list for those with developmental disabilities also has continued to grow.

"There's been virtually no movement on the DD waiting list," said Tom Laing, executive director of Interhab, the association for most of the state's community organizations that provide services for the developmentally disabled.

"There used to be an effort every year by the administration and the Legislature to address the waiting list," Laing said, "and that has become a much more sporadic activity on the part of the governor and the Legislature. Legislators 15 years ago were far more interested in how we deal with this than they are today."

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