TOPEKA — Kansas Gov. Sam Brownback responded today to the U.S. Health and Human Services Department's decision to refer so-called Olmstead complaints from disabled Kansans to the U.S. Department of Justice for possible legal action against the state.
“Not only is Kansas in full compliance with all federal requirements, we have a strong history as an innovator in the delivery of home- and community-based services to those with physical disabilities since the waiver programs began in the 1980’s,” the governor said in a prepared statement.
The statement signaled that the Brownback administration does not intend to retreat from the threat of a possible federal lawsuit over complaints from disabled persons about Kansas' growing waiting list for home and community based services for the disabled.
Critics of the Brownback administration have said the waiting list means more people are forced into nursing homes, which ends up costing the government more money for their care. Medicaid requires state's to cover eligible persons in nursing homes. Home-based services, though less costly, are optional.
Kansas has more than 7,000 disabled persons on waiting lists for home or community based services. Some people have been waiting up to three years. Federal officials began investigating the waiting list for persons with physical disabilities but then expanded it to also include the waiting list for persons with developmental disabilities. Both lists have grown in Kansas since 2008.
Brownback said his plan to remake the state's Medicaid program would help ease the waiting list.
“My Administration’s KanCare proposal is a real solution that in the long run will help the state address the waiting lists for waiver services," he said. "We will continue to seek out Kansas solutions and implement them responsibly in a sustainable way.”
The Governor's Office also released a letter from the governor to Leon Rodriguez, director of the HHS Office of Civil Rights.
In the letter, Brownback essentially told Rodriguez that the Brownback administration was coping with a waiting list it inherited from Kathleen Sebelius when she was governor of Kansas and doing a better job with it. Sebelius left Kansas to become secretary of HHS. He said Kansas received a letter from Rodriguez' office in May 2009, informing the state that HHS was launching an investigation of the complaints.
"Effectively, Secretary Sebelius decided upon joining the Obama administration that Governor Sebelius and her policies were in violation of federal law," Brownback wrote.
The letter also noted that the Centers for Medicare and Medicaid Services, a unit of HHS, had "never failed" to approved a Kansas Medicaid waiver for disabled services due to waiting list concerns.
Brownback said federal courts have interpreted the Americans with Disabilities Act to mean that states must provide care for as many disabled persons as is "reasonably feasible," but not necessarily eliminate waiting lists.
“I regret that HHS has decided to terminate its participation in the effort to assist in finding Kansas solutions for Kansas residents with disabilities and instead make this a matter for litigation that is costly and does nothing to provide more services," Brownback said.
Federal officials have met at least twice with Brownback officials attempting to resolve the complaints without going to court. But the Brownback administration has resisted the federal push to spend more money to move people off the waiting lists.