Kansas advocacy group doubts legality of disability waiting list

The state for the past four years failed to comply with targets for delivery of services to developmentally disabled people by leaving slots vacant and violated U.S. law by providing only partial benefits to people enrolled in programs, a Topeka advocacy organization said Friday.

Documents obtained by the Disability Rights Center of Kansas showed 3,300 developmentally disabled Kansans who qualified for Medicaid services continue to be denied aid while the state left empty between 422 to 829 slots they were obligated to fill from 2009 to 2013.

The number of vacancies grew each the past four years, which contributed to delays of up to five years to begin receiving home- and community-based aid.

In addition, the advocacy group concluded the state was out of compliance with federal law by maintaining an underserved category of 1,900 people who were receiving some but not all services applicable to their disability. The number of underserved individuals in Kansas has expanded in each of the past two years.

"They are harming people with intellectual and developmental disabilities two different ways, and it's causing irreparable harm," said Rocky Nichols, executive director of the Disability Rights Center.

"They're harming them on the front end in by not serving the number of slots promised," he said. "What compounds insult to that injury is that, once they're clear of the waiting list, they are oftentimes put on a new waiting list within the program."

Under federal law, Nichols said, states can maintain waiting lists for disabled people who have yet to be admitted into Medicaid programs. Admission is on a first-come, first-served basis depending on state and federal financing.

He said states must follow through with promises to the federal government to serve a set number of disabled people. In the past year, Kansas pledged to fill 9,552 slots, but filled only 8,423. States can’t, under federal law, maintain a second-tier list for the underserved, Nichols said.

Angela de Rocha, spokeswoman for the Kansas Department for Aging and Disability Services, said officials with the state government and the federal Centers for Medicare and Medicaid Services were aware of apprehension about the legality of Kansas' underserved waiting list.

"The state's aware of it. CMS is aware of it," De Rocha said. "People can say it is illegal, but that doesn't move us forward in solving the problem."

The immediate strategy will be to cease placing enrollees on the underserved waiting list in January, she said. If full services are extended to those added to the system, it is unclear how quickly the backlog of unmet demand will be cleared by the state.

De Rocha said another goal was to pull 650 people from the larger 3,300-person waiting list for Medicaid disability services.

The $18 million to accomplish that reduction was a dividend from enactment of the KanCare initiative that applied managed care to the state's Medicaid system.

Waiting lists were inherited by Gov. Sam Brownback upon taking office in 2011. The lists appear to have been formed in 2000 under Republican Gov. Bill Graves and continued under the leadership of Democratic Govs. Kathleen Sebelius and Mark Parkinson.

Nichols said he wasn't aware of another state operating an underserved waiting list and wasn't certain how the flaw in the Kansas network was allowed to persist.

The cost of closing the underserved gap will be in the millions of dollars, Nichols said, but the state has an obligation to address the problem.

"We're hoping the state does the right thing and there will not have to be litigation," he said. "I can tell you this, there's 2,000 potential plaintiffs who are forced to suffer on this illegal, so-called underserved waiting list."

The U.S. Department of Health and Human Services has been investigating the state's waiting lists. Federal officials met with Brownback administration staff members in response to complaints filed against the state by disabled people and their advocates.