The 4th meeting of the Interim Joint Committee on Health and Welfare was held on Wednesday, September 17, 2003, at 1:00 PM, in Room 2056 at the Home of the Innocents in Louisville. Representative Tom Burch, Co-Chair, called the meeting to order at 1:06 PM, and the secretary called the roll.
Present were:
Members: Senator Julie Denton, Co-Chair; Representative Tom Burch, Co-Chair; Senators Charlie Borders, Tom Buford, David K. Karem, Ernesto Scorsone, Elizabeth Tori, and Johnny Ray Turner; Representatives Brian Crall, Robert Damron, Bob DeWeese, Mike Harmon, Jimmy Higdon, Joni Jenkins, Mary Lou Marzian, Stephen Nunn, Ruth Ann Palumbo, Jon David Reinhardt, Ancel Smith, Kathy Stein, and Susan Westrom.
Guests: Mayor Jerry Abramson; Gordon Brown, Executive Director, Home of the Innocents; Mary Gwen Wheeler, Louisville Metro Mayor’s Office; Monette Keathley and Vivian Bass, Jessamine Adult Day, Nicholasville; Betty Eller, Garrard Adult Day Program; Louise Underwood and Ellinda Haly, Hazelwood parents; Ted Jennings and Dr. Rice Leach, Commissioner, Department for Public Health, Cabinet for Health Services; Bill Harned, Cathy Allgood Murphy, and Hal Stopfel, American Association of Retired Persons; Kim Martinez, First Steps; Diana Merzuriler and Bettye Chady, Down Syndrome of Louisville; Julie Wright, parent; John Sammon, Office of Aging Services, Cabinet for Health Services; David Allgood, Center for Accessible Living; Bill Mitchell, BEST Center for Independent Living; Karen Hinkle, Kentucky Home Health Association; Sheila Schuster, Kentucky Mental Health Coalition; Tracy Leeper Irwin, parent; Ellen Kershaw and Nancy Parker, Alzheimer’s Association; Florence Huffman, advocate; Karyn Schneid Miller, parent; Prentice Harvey, Norton Healthcare; Bill Montgomery, Kentucky Kin Care Project; Jim McWilliams and Shaun McKiernan, Governor’s Office of Policy and Management; Ed Reynolds, Independent Industries, Inc.; Sarah Nicholson, Kentucky Hospital Association; Marty White, Kentucky Medical Association; Emery S. Lee, Louisville Metro Community Action Partnership; Feotis Gilbert, Bethel United Ministries; Cheri Stone, Cherri Care Medical Equipment and parent of child at the Home of the Innocents; Sharon Bensinger, Maria Jones, and Melissa Langdon, Vision Impaired Preschool Services (VIPS); Mona K. McCubbin and Jacki Day, Louisville Deaf Oral School; Kathy Madison, grandparent; Mary Ellen Nold, Cabinet for Families and Children; Secretary Marcia Morgan, Cabinet for Health Services; Mike Robinson, Commissioner, Department for Medicaid Services, Cabinet for Health Services; Eric Friedlander, Executive Director, Commission on Children with Special Health Care Needs, Cabinet for Health Services; Sherry Gordon, parent; Anne Marie Regan, Senior Staff Attorney, Office of Kentucky Legal Services Programs; Jackie Fincher, grandparent; and Janet S. Poynter, grandparent.
LRC Staff: Robert Jenkins, CSA, Barbara Baker, Eric Clark, DeeAnn Mansfield, Murray Wood, Cindy Smith and Gina Rigsby.
A motion to approve the minutes of the August 20, 2003 meeting was made by Senator Buford, seconded by Representative Crall, and approved by voice vote.
The next order of business was a welcome by Jerry Abramson, Mayor of Louisville Metro, and Gordon Brown, Executive Director of the Home of the Innocents. Mayor Abramson thanked the Co-Chairs for holding the meeting in Louisville, and explained city-state partnerships include Neighborhood Place, the expansion of the airport, and a new waterfront park.
Mr. Brown said that the Home of the Innocents was found in 1880 as an emergency home for mothers and their children. The Home of the Innocents has a wide array of services for children who are abandoned, abused, and neglected throughout the state and care for children who are too medically fragile to be cared for in their homes. The Home of the Innocents has begun in-home therapeutic services for autistic children. Care is provided for approximately 120 children who receive some form of treatment services or medical care in one of their facilities. There are approximately 100 youth and families that receive services in their homes. He said that the Home of the Innocents is the only children’s service in the state that can receive large numbers of children on an emergency basis when they are found in risky situations. The Home of the Innocents, like the 35 other members of the Children’s Alliance, is governed by a volunteer board of directors. One of the goals of the Home of the Innocents is to become a center of excellence for children’s services that will create true well-being for the children in their care and bring recognition and credit to Kentucky.
For the next item of business, Representative Jenkins, Co-Chair, reported that the Health Care Subcommittee met that morning and heard testimony on the impact of the administrative regulation, 907 KAR 1:022E, (changing eligibility criteria for nursing facility level of care) from consumers, advocates, providers, and the Secretary of the Cabinet for Health Services. The Secretary of the Cabinet for Health Services also provided an update on person-centered funding. A motion to accept the report was made by Senator Buford, seconded by Representative Crall, and approved by voice vote.
Representative Burch, Co-Chair, reported that the Families and Children Subcommittee met that morning and heard testimony on elder abuse prevention and response and coordination of local agencies in addressing the needs of vulnerable adults in Kentucky, from representatives from the Department of Public Advocacy, the local Area Aging Agency of the Kentuckiana Regional Planning and Development Area, Adult Protective Services; the Northern Kentucky region administrator; and the deputy secretary of the Cabinet for Families and Children. A motion to accept the report was made by Senator Tori, seconded by Representative Higdon, and approved by voice vote.
The next order of business was testimony on the family court and grandparent visitation. Kathy and Melba Madison, Janet Poynter, Sherry Gordon, Jackie Fincher, Cerissa Houchin testified about problems they had experienced securing visitation with their children and grandchildren who had been removed from their home and placed in foster care. They all agreed that problems within the Cabinet for Families and Children’s social services offices need to be addressed.
Mary Ellen Nold, Branch Manager of the Out-of-Home Care Branch, Cabinet for Families and Children testified that the Cabinet is required to investigate any abuse allegation and obtain a court order to remove a child whose safety is in jeopardy. She said that the Cabinet works with families to find resolutions through regional service administrators.
Senator Karem asked if a person could disclose confidential information about a case, and Ms. Nold said that no information about a child can be released without custodial permission. Senator Denton said that the HIPAA privacy law prohibits information about a child to be released without custodial permission. Representative Burch stated that most judges will make a decision based on the information provided by the social worker.
The next order of business was review of administrative regulation 911 KAR 2:120 & E that was deferred at the October 20, 2003 meeting. Eric Friedlander, Executive Director of the Commission on Children with Special Health Care Needs within the Cabinet for Health Services, stated that the administrative regulation sets two different eligibility criteria, initial and continuing, for the First Steps Program. He said that Senate Bill 60 of the 2003 Regular Session requires annual evaluations. The amendment would allow a child to make progress within the program.
Representative Stein asked if a three-year old child who has been evaluated and found to be on goal and who has been released from the program, but who later experiences developmental delays, would be at risk because of the lapse of time between receiving services. Mr. Friedlander said that the goal of the program is to work with parents so they will understand their child’s needs and work with their child. He said that a child can re-enter the program if developmental delays are experienced.
Diana Murtzweiler, Down Syndrome of Louisville, stated that a child with Down syndrome experiences delays at a different rate than other children and needs continued care. Representative Burch asked if a child with Down syndrome would be eligible for the program. Mr. Friedlander said that any child with delays would be eligible for services.
Sharon Bensinger, Executive Director of Visually Impaired Preschool Services (VIPS), stated that 80 to 90 percent of infant learning is through vision. She said that it is critical that services not be taken away from a visually impaired child. Maria Jones said that both her visually impaired children benefitted from early intervention services. Senator Denton asked if there were something in the regulation that would prevent a visually impaired child to enter the First Steps Program. Ms. Bensinger stated that a child that does not show developmental delays will no longer receive services, except for a service coordinator. Senator Denton asked about the qualifications of someone making the determinations. Mr. Friedlander said that if an assessment shows delays, then the child could remain in the program.
Representative Burch said that the First Steps Program was developed to help developmentally delayed children function at an age-appropriate level. He explained that the amendment to the regulation would not destroy the program. One problem has been that some providers were charging for services that were not needed. He said that there is an appeal process for someone denied services. Ms. Bensinger stated that this regulation would not save much money. Representative Burch assured everyone that he would not let the changes affect children. Senator Buford expressed concern that the review would not be made by a qualified individual and that the regulation would not be worth passing for just three months. Representative Marzian asked about documentation on individuals that reach appropriate levels. Mr. Friedlander said that the annual evaluation was the only way to assure compliance and that is why the regulation is needed.
Senator Denton asked why the old regulation was being replaced. Mr. Friedlander said that the annual evaluation was a requirement from Senate Bill 60 of the 2003 Regular Session. She asked about equal protection concerns, and he stated that all children are treated the same. She expressed her concern about delay of services, and he said that everything would be done to make sure services are provided. She asked about any negative affects if the regulation was not implemented. Mr. Friedlander said that the program is difficult to manage and growing at 20 percent per year. Senator Karem stated that there is a revenue problem and the state is unable to fund all the programs appropriately. Representative Reinhardt asked the effective date, and Mr. Friedlander stated that the regulation would go into effect on October 1, 2003 but the annual examinations would not begin until January 1, 2004. Representative Reinhardt about why there were two effective dates. Mr. Friedlander said there would be a phase-in period to train staff. The regulation allows continuing eligibility differences. Representative Reinhardt asked about the fiscal impact, and Mr. Friedlander stated that there would not be a big fiscal impact because it will take place over time. Representative Burch explained that the if the emergency regulation is found deficient, the original regulation would go into effect. He said that the regulation is better with the amendment.
Sheila Schuster of the Kentucky Mental Health Coalition said that the concern about the regulation is how the results of the annual evaluation would be used. The emergency regulation, without the amendment used the old eligibility requirements. The new set of eligibility requirements in the amendment would allow a child to show progress and stay in the program longer. She urged the Committee to approve the amendment and not go back to bad policy in the old regulation that removes children from the program too soon. A motion to approve an amendment to 911 KAR 2:120 & E was made by Representative Marzian, seconded by Senator Karem, and approved by voice vote. A motion to approve 911 KAR 2:120 & E as amended was made by Senator Karem, seconded by Representative Marzian. After discussion, 921 KAR 2:120 & E was approved by voice vote.
The next order of business was a motion to discuss 907 KAR 1:022E, Nursing facility and intermediate care facility for the mentally retarded and developmentally disabled level of care criteria, 907 KAR 1:585E, Estate recovery, 907 KAR 1:640E, Income standards for Medicaid, 907 KAR 1:645E, Resource standards for Medicaid, 907 KAR 1:650E, Trust and transfer resource requirements, 907 KAR 1:655E, Spousal impoverishment, and 907 KAR 1:665E, Special income requirements for hospice and home and community based services by Senator Scorsone, seconded by Representative Stein, and after discussion was approved by voice vote.
Robert Jenkins, Committee Staff Administrator of the Interim Joint Committee on Health and Welfare, explained that the Committee has the jurisdiction to, at any time, bring before it any existing administrative regulation that has gone through the administrative regulation process, or an emergency regulation. The only action that the Committee could take on an emergency administrative regulation is to ask the Governor to withdraw the emergency administrative regulation. He stated that 907 KAR 1:022 and the recent amendments had not been referred to the Committee.
Representative Nunn said that the Cabinet was trying to save $72 million in state and federal funds. He suggested using tobacco settlement funds from fiscal year 2003 to drawn down federal dollars to help offset the shortfall.
Secretary Morgan said that the Cabinet informed legislators in January of the anticipated deficit in the Medicaid program, and it was the General Assembly’s responsibility to provide enough funds to administer the program. She said that the Medicaid program needs to be evaluated, and the legislature should decide what kind of Medicaid program Kentucky should have. As of August 2003, there were 667,000 Medicaid recipients, and she asked who should make the decision about who should be served and what programs should be funded.
Senator Borders stated that no official action on the emergency administrative regulations could be taken because they had not been referred to the Committee. He said that action has to be taken in January about revenues, and therefore the tobacco settlement funds could not be used to offset the Medicaid deficit.
Senator Scorsone made a motion to ask the Governor to withdraw 907 KAR 1:022E, Nursing facility and intermediate care facility for the mentally retarded and developmentally disabled level of care criteria, 907 KAR 1:585E, Estate recovery, 907 KAR 1:640E, Income standards for Medicaid, 907 KAR 1:645E, Resource standards for Medicaid, 907 KAR 1:650E, Trust and transfer resource requirements, 907 KAR 1:655E, Spousal impoverishment, and 907 KAR 1:665E, Special income requirements for hospice and home and community based services, which was seconded by Representative Stein who also asked for a roll call vote. After a roll call vote of 18 yes votes, 0 no votes, and 2 pass votes, the motion to ask the Governor to withdraw the emergency regulations was approved.
The next order of business was an update on the Bioterrorism Grant and allocation of federal funds by Dr. Rice Leach, Commissioner of the Department of Public Health in the Cabinet for Health Services. Dr. Leach said that it is necessary to detect, identify, intercept, and neutralize any threat and return to normal conditions. He said that the Department for Public Health had received funding from the Centers for Disease Control and Prevention (CDC) for bioterrorism grants that are designed to strengthen existing public health systems. The grants also exist to upgrade state and local public health jurisdictions preparedness for and response to bioterrorism, other outbreaks of infectious disease, and other public health threats and emergencies. Kentucky received $14,274,495 for August 2002 through August 2003, and $15,549,583 for August 2003 through August 2004 in CDC grants. Kentucky also receives funding from the Health Resources and Services Administration (HRSA) for grants to support hospital and other provider responses to bioterrorism and other mass casualty situations. He said that Kentucky received $1,880,501 for August 2002 through August 2003 and $7,092,198 for August 2003 through August 2004 in HRSA grants.
The next order of business was testimony on Medicaid and long-term care service reductions. Bill Harned, State President of the American Association of Retired Persons of Kentucky, stated that many people do not know that if they appeal within ten days of a denial, they can keep receiving services.
Anne Marie Regan, Senior Staff Attorney of the Office of Kentucky Legal Services Programs, stated that Kentucky’s level of care criteria uses a combined medical/functional classification, as do 24 other states. Kentucky, as with 14 other states, requires a minimum number of specific functional limitations and/or nursing needs, but Kentucky excludes instrumental activities of daily living. She said that Families USA reported that the $250 million anticipated Medicaid cuts from level of care changes translates to a $1.2 billion loss to Kentucky’s economy and a $450 million loss in salaries and wages. Congress has passed a $10 billion Medical Assistance Enhancement for fiscal years 2003 and 2004, which will decrease the state match. She said that denials of level of care in nursing homes increased from an average of 17 per month in the last quarter of 2002 to an average of 658 per month in April and May. Denials in the home and community based waiver is ten times higher than for nursing homes.
Ms. Regan stated that the Qualified Income Trust requirement affects 1,200 people in nursing facilities and home and community based services. The old requirement was that people whose income exceeded the eligibility cap for nursing home care of $1,656 per month, but was less than the cost of their care, had to spend down to the eligibility level each month. The new requirement is that Medicaid beneficiaries whose income exceeds $1,656 per month must create a Qualified Income Trust (QIT) for all income. She said that the money in the trust does not count towards eligibility. The trust is irrevocable, and at death all money in the QIT goes to the state, up to the amount that the state has paid for Medicaid services attributable to that person.
Florence Huffman, advocate, stated that not all nursing homes are reimbursed properly. She said that it is hard to understand the denial letter and appeal rights. The continuum of care is not present. It is everybody’s responsibility to take care of the elderly and frail. Representative Burch said that the Medicaid program started in 1963 to help families in need. If Kentucky had sufficient funds, there would not be any problems in the Medicaid program. Ms. Huffman stated that the legislature should pass an average cigarette tax that would increase state funds for Medicaid services.
There being no further business, a motion to adjourn at 4:32 p.m. was made by Representative Jenkins, seconded by Representative Harmon, and approved by voice vote.