Kansas Governor Sam Brownback released a statement today regarding U.S. Health and Human Services Secretary Kathleen Sebelius' decision to refer Olmstead complaints to the U.S. Department of Justice.
"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," Gov. Brownback said. "In carrying that tradition forward, 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. We will continue to seek out Kansas solutions and implement them responsibly in a sustainable way."
The complaints arise out of a waiting list for physical disability (PD) services that was created in December of 2008 when then Kansas Governor Sebelius ordered a freeze on new slots in Kansas's PD waiver. In a letter to now HHS Sec. Sebelius, Governor Brownback detailed Kansas' response and wrote, "Effectively, Secretary Sebelius decided upon joining the Obama Administration that Governor Sebelius and her policies were in violation of federal law."
Governor Brownback's letter also notes the following:
Since the beginning of HHS-OCR's investigation, CMS has never failed to approve a Kansas PD waiver based on concerns over the number of slots available.
Since taking office, the Brownback Administration has taken steps to reduce the Sebelius waiting list in Kansas by ending the Sebelius-era policy of actually reducing waiver slots and growing the waiting list by ending the "two off services one on" policy and re-instituting a "one off one on" policy.
Medicaid law envisions that states would place a limit on the number of individuals who receive HCBS. Courts have interpreted the ADA to require, not the elimination of waiting lists, but care in integrated environments for as many persons as is reasonably feasible. This is precisely what Kansas is doing. The record in Kansas shows that the PD waiver is sizable, full, and accessible to individuals as slots become available. The State has also significantly reduced the size of the institutionalized population during a time in which the PD waiver has gotten dramatically more expensive.
"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. My Administration will continue to seek out solutions and implement them responsibly in a sustainable way." Governor Brownback said:
HHS began its review of Sebelius-era policies within a month of Sebelius' appointment as HHS Secretary in April, 2009.