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Archive for Wednesday, April 30, 2003

Lawsuits challenge waiting lists

April 30, 2003

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Nowadays in Kansas, it's not unusual for someone who's low-income and physically disabled to wait a year for services that help them avoid moving to nursing homes.

Kirk Lowry says that's illegal.

"There's all kinds of case law out there that says Medicaid-funded services are to be provided with what's called 'reasonable promptness' -- that's a term that's been defined several times as 90 days," said Lowry, an attorney at Topeka Independent Living Resource Center.

Lowry said he would soon file a class-action lawsuit in Shawnee County District Court, accusing the state of violating the rights of people with physical disabilities.

In November, responding to budget problems, state officials imposed a "hard freeze" on the Department of Social and Rehabilitation Services' waiting list, meaning no one would move on or off the list except for dire emergencies.

"You can't have a waiting list that's frozen and meet the 'reasonable promptness' requirement," Lowry said. "You can't say you're moving at a reasonable pace when you're not moving."

Lowry said he was less than a week away from filing a second lawsuit, accusing the state of putting people in nursing homes who could live in non-institutional settings if they had access to Medicaid-funded services.

"Nobody who's in a nursing home should have to stay there if they're eligible for (Medicaid) Home and Community Based Services," Lowry said.

At SRS, Laura Howard, deputy secretary in charge of health care policy, agreed that Medicaid regulations required "reasonable promptness," but, she said, court rulings in other states have not imposed a 90-day limit.

"There is no case-law standard on this," Howard said.

In Douglas County, more than 20 people with physical disabilities are on the waiting list.

"A lot of them had already been on the list for a year when it was frozen," said Bob Mikesic, advocacy coordinator at Independence Inc., 2001 Haskell Ave.

Mikesic said Lowry's lawsuit "appears to be a necessary step" toward ensuring the rights of people with physical disabilities.

"When people are clearly eligible for services, they should receive those services in the community in a timely manner," he said.

Rep. Brenda Landwehr, R-Wichita, said the lawsuits would not be necessary if advocates for people with disabilities had sided with conservative legislators' efforts to tap the state's public-school budget for social services.

"The decision was made that K-through-12 was a bigger priority than these folks receiving services, and they were happy to go along with that," she said. "And now look what happens."

Landwehr is chairwoman of the SRS budget subcommittee in the House. So far, budgets proposed by the Legislature and by Gov. Kathleen Sebelius do not include funding for reducing waiting lists.

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