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Latest Kansas Olmstead Update: U.S. Department of Health and Human Services has turned the case over to the U.S. Department of Justice


TOPEKA — Federal officials have notified advocates for the physically disabled that efforts to get Gov. Sam Brownback’s administration to address long-standing waiting lists for services have been unsuccessful.

As a result, the U.S. Department of Health and Human Services has turned the case over to the U.S. Department of Justice.

“We were told Friday afternoon,” said Shannon Jones, executive director at the Statewide Independent Living Council of Kansas. “I’m not surprised by the decision, but I am disappointed that it’s had to go this far. This is about 3,400 people who’ve been lingering and suffering on waiting lists for one, two and three years.”

HHS also sent notification letters to people who had filed complaints about the waiting lists.

Because the Department of Justice has taken over negotiations with the governor’s office, it's more likely that the state will be sued in federal court.

“There has been a referral made from the HHS Office of Civil Rights to the Department of Justice, and Department of Justice is now consulting with the U.S. Attorney for the District of Kansas to decide the next appropriate step toward the enforcement of Olmstead,” said Barry Grissom, U.S. Attorney for the District of Kansas.

Grissom said the referral would be the subject of a conference call this afternoon between the two offices. He declined further comment.

Olmstead refers to Olmstead v. L.C., a 1999 U.S. Supreme Court ruling that said states have an obligation to provide services to people with disabilities in the most integrated setting appropriate to their needs.

Subsequent rulings have found that lengthy waiting lists constitute violations of the Americans with Disabilities Act of 1990.

Last month, four HHS officials, led by Leon Rodriguez, national director of HHS’ Office for Civil Rights in Washington, D.C., met with Brownback and other administration officials to discuss the waiting list issue.

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

“I think we can say the feds have called in the big guns,” said Rep. Bob Bethell, an Alden Republican and chair of the House Aging and Long-term Care Committee.

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 people 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, which are designed to help people with disabilities live in community settings rather than nursing homes.

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.

Jones said eliminating the waiting list for physically disabled Kansans would cost about $33 million in state funds and $75 million all funds.

Administration officials have argued 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.

They’ve also raised doubts about the waiting lists, saying they may include people who might not actually need or qualify for services.

Advocates for the disabled have disputed the allegations.

The KHI News Service is an editorially independent program of the Kansas Health Institute and is committed to timely, objective and in-depth coverage of health issues and the policy making environment.