The 5th meeting of the Interim Joint Committee on Health and Welfare was held on Tuesday, October 19, 2004, at 10:00 AM, in Room 149 of the Capitol Annex. Representative Tom Burch, Co-Chair, called the meeting to order at 10:03 AM, and the secretary called the roll.
Present were:
Members: Senator Julie Denton, Co-Chair; Representative Tom Burch, Co-Chair; Senators Charlie Borders, David K. Karem, Richard Roeding, Katie Stine, Damon Thayer, Elizabeth Tori, and Johnny Ray Turner; Representatives Mike Harmon, Jimmy Higdon, Stephen Nunn, Ruth Ann Palumbo, and Susan Westrom.
Guest Legislators: Representative Jimmie Lee.
Guests: Fran Thomas, The Altenheim; Mary Crowley Schmidt, Bluegrass AAA; Kathy Gannoe, Nursing Home Ombudsman; Carol March and Kelly Bond, Northern Kentucky Area Development District; Steve Davis, Office of Inspector General, Cabinet for Health and Family Services; John Barkett and Sister Christina, Taylor Manor Nursing Home; Jennifer Franklin and John C. Parrish, Division of Occupations and Professions; Ken Schwendemen, Justice and Public Safety Cabinet; Billie Cole and Bonita Chandler, Shemwell Nursing Home; Mary Perry, Kentucky Association of Sexual Assault Programs; Ellen Kershaw, Alzheimer's Association; Jim Graves, Kentucky Office of Attorney General; Laura Strickland, Kentucky Board of Licensure for Occupational Therapy; Marty White, Kentucky Medical Association.
LRC Staff: Robert Jenkins, CSA, Barbara Baker, Eric Clark, DeeAnn Mansfield, Cindy Smith, Gina Rigsby, and Murray Wood.
The Interim Joint Committee on Health and Welfare held a joint meeting with the Program Review and Investigations Committee for a presentation on elder abuse entitled "Kentucky Can Improve the Coordination of Protective Services for Elderly and Other Vulnerable Adults." Cindy Upton, Analyst of the Program Review and Investigations Committee, began by giving a brief overview of Phase I of the elder abuse report that was presented to the Program Review and Investigations Committee in December 2003. The major findings of that report were: 1) Kentucky's adult protective services process is well-designed; 2) in practice, the process has problems; 3) administrative regulations are not specific; 4) operating procedures and official forms differ among regions and counties; 5) agencies disagree on how to apply the criteria for investigation; 6) information may be faxed to police when a phone call could be better; 7) many law enforcement officials, prosecutors, and judges are unaware of KRS Chapter 209 and criminal penalties; 8) there have only been 34 convictions in four years; 9) law enforcement, prosecutors, and courts are not required to notify the Department for Community Based Services (DCBS) of outcomes; 10) the DCBS does not always notify other agencies of outcomes; 11) lack of basic communication within state agencies sometimes undermines the goal of protection of vulnerable adults; and 12) no dedicated federal funding is provided, but federal grants are available.
Ms. Upton stated that vulnerable adult is defined in statute as a person 18 years of age or older who cannot manage his own resources, carry out daily activities, or protect himself from neglect, abuse, or exploitation The focus was on elderly and non-elderly adults in the community and in facilities. She said that the definition of abuse is the infliction of physical pain, mental injury, or injury of an adult that includes sexual, physical, mental, or emotional abuse. The definition also includes a situation in which an adult is unable to perform or obtain the services necessary to maintain his health or welfare, or the deprivation of services by a caretaker, including a spouse, that are necessary to maintain the adult's health and welfare.
Ms. Upton stated the definition of exploitation is the improper use of an adult or an adult's money, property, and other resources by a caretaker or other person for the profit or advantage of the caretaker or other person that results from intimidation of the adult. A complicating factor is that the adult or guardian can refuse protective services because they are strictly voluntary. However, if the adult lacks the capacity to consent or the guardian refuses services in an emergency, emergency protective services may be ordered by a court.
Ms. Upton stated that another complicating factor is that there are too many state and local agencies that are involved in reports of neglect, exploitation, or abuse cases that do not communicate with each other, such as the Cabinet for Health and Family Services, the Justice and Public Safety Cabinet, the Office of Attorney General, other law enforcement and prosecutors, judges and court staff, local long-term care ombudsmen, and local coordinating councils and triads. The Cabinet for Health and Family Services alone has six offices that deal with abuse, exploitation, and neglect cases. There are 16 regional DCBS offices that operate autonomously under standards of practice issued by the central office in Frankfort. Social workers are involved in each investigation and provide services to the victim but do not determine legality. Other departments focus on the provider and investigation programs.
Ms. Upton stated that KRS Chapter 209 requires any person who knows or suspects abuse, neglect, or exploitation to notify the Department for Community Based Services or local law enforcement agencies. The DCBS office investigates and notifies law enforcement who investigate and, if needed, file charges against the alleged perpetrator. If a provider is involved, other departments investigate, and if necessary, impose sanctions. She said that many citizens, police officers, prosecutors, and judges do not know the problem and extent of adult abuse and the criminal penalties in KRS Chapter 209. Officers may not charge a person if they think the prosecutor will not prosecute the case. Little training for police, prosecutors, and judges is available or required. Senator Stine emphasized that "any" person that suspects abuse, neglect, or exploitation has a legal responsibility to report the crime. If not, the person can face a penalty in KRS Chapter 209.
Ms. Upton said that the DCBS exercises little direct oversight of its 16 regional offices. Many operating procedures to implement the standards are determined by the local DCBS office administrator and procedures differ among counties and regions. Senator Karem asked if it is a problem when a regional administrator does not see adult abuse as a problem. Ms. Upton said that there have been incidences where adult abuse have not been viewed as a problem in particular regions, or where social workers have been overwhelmed with child abuse cases. Senator Karem stated that adult abuse is a national problem. Representative Baugh asked why someone would report abuse if some authorities do not see it as a problem and are unlikely to prosecute the case. Ms. Upton said social workers will substantiate many cases and law enforcement agencies will investigate. A problem is that some cases are prosecuted under a statute other than KRS Chapter 209, and there is no system to have access to the outcome of the all cases. Representative Lee stated that everyone understands that adult abuse is a problem and that everyone should be involved to find a solution.
Ms. Upton stated that when abuse has been determined, DCBS notifies law enforcement and other cabinet agencies by faxing a DSS 115 form. The DSS 115 form often provides too little information or irrelevant information. Potentially dangerous situations can become lost when a phone call would be more efficient and effective. She stated that the DCBS should provide better oversight and coordination of the Adult Protective Services investigations conducted by the 16 regional offices. This coordination should include standardized procedures for notifying law enforcement and other agencies when the social workers start an investigation.
Ms. Upton said that the report recommended: 1) DCBS's standards of practice should be revised to identify specific conditions under which its workers must call a specified law enforcement officer to explain the situation, in addition to faxing a DSS 115 form; 2) DCBS's standards of practice should be revised to identify specific conditions under which its workers must call a specified law enforcement agency or a specified law enforcement officer to explain the situation, in addition to faxing DSS 115 form; 3) DCBS should develop a standardized DSS 115 form that provides information on the potential crime; 4) DCBS should assign a social services priority code to each law enforcement referral; 5) training on adult abuse, neglect, and exploitation should be mandatory and timely for DCBS social workers, law enforcement officers, prosecutors, and judicial officials; 6) CHFS and other state agencies should establish new and renewed relationships among themselves to provide training, share information, and promote awareness of adult abuse, neglect, and exploitation; and 7) CHFS and other state agencies should establish new and renewed relationships with local agencies and advocacy groups to share information, provide training, and promote awareness of abuse, neglect, and exploitation.
As for the current update to the 2003 report, Ms. Upton stated that there is inadequate communication among people who care for and protect vulnerable adults, inadequate analysis and availability of information in computer systems on people, investigations, and outcomes, and inadequate communication among computer systems. There is dedicated federal funding for adult protective services as there is for child services. Discretionary funding is used to provide services to both children and adults and federal grants often are available to state and local agencies. She said that the system that protects confidentiality between patient and psychotherapist often prevents social workers and law enforcement officers from obtaining information they need to identify and protect a vulnerable adult. Lack of coordination means that resource use is not as efficient as possible. High level oversight has been used before to protect vulnerable populations such as the Governor's Council on Domestic Violence and Sexual Assault, the Kentucky Multidisciplinary Commission on Child Sexual Abuse, the Elder Abuse Committee, and the Kentucky Commission on Elder Abuse.
Ms. Upton recommended the Office of the Governor should consider creating a unit to oversee the coordination of adult protective services to: 1) facilitate communication among people; 2) facilitate interagency staff access to information in computer systems; 3) facilitate coordination among systems, 4) identify and coordinate federal grants; and 5) explore how to share confidential information if abuse is suspected.
Ms. Upton stated that social workers, other state agency staff, law enforcement, prosecutors, judges, and advocates interpret the definitions of abuse, neglect, and exploitation differently. They do not adequately understand each other's roles, responsibilities, and constraints. She said that communication problems can lead to differences in cases accepted for investigation by social workers and law enforcement officers, problems with having cases substantiated by social workers and charges filed by law enforcement officers, and problems with obtaining prosecutions and convictions obtained. Solutions may: 1) require timely initial and ongoing training of all affected parties; 2) emphasize that violations of KRS Chapter 209 are crimes, not merely social work problems; 3) require multidisciplinary training on each agency's roles, responsibilities, and constraints; 4) require training by social workers, law enforcement, prosecutors, judges, advocates, and others as appropriate; and 5) use of case studies for the team to solve.
Ms. Upton stated that the Governor's Office and the Administrative Office of the Courts should implement mandatory training on abuse, neglect, and exploitation for DCBS social workers, law enforcement officers, prosecutors, and judicial officials to clarify where each agency's responsibility begins and ends and how agencies can help each other in protecting vulnerable adults. She said that the offices of the DCBS, State Long Term Care Ombudsman, Mental Health and Mental Retardation Services, and the Office of Inspector General, all within the Cabinet for Health and Family Services, should research, compile, and disseminate information on the best practices of local offices and incorporate them into policies and multidisciplinary training.
Ms. Upton stated that there is inadequate analysis and availability of information within the various agencies computer systems. The DCBS has used the Workers Information System (TWIST) for child cases and added adult cases in 2001. Social workers do not substantiate enough adult cases because the standards are higher for adult protection cases than for child protection cases. A recommendation would be that DCBS consider amending 922 KAR 5:070 to provide definitions of substantiated and unsubstantiated similar to 922 KAR 1:330 for child cases. She said that information in TWIST must be available to agencies and persons to know outcomes of cases in order to provide better services. In 2004, the Department for Mental Health and Mental Retardation were waiting for the results of over 800 cases, and the Bluegrass Nursing Home Ombudsman was waiting for results of over 100 cases.
Ms. Upton stated that one recommendation in the report is that the DCBS should compile statewide and county-level data on allegations accepted for investigation and the outcomes. This data should be shared with state and local groups, including local coordinating councils. She said that each agency has its own computer system that no other agency could access. Access to specific information on cases would improve case management and oversight. The DCBS assigns a case number through the TWIST system and the Inspector General uses the ASPEN Complaint Tracking System (ACTS) to assign a case number, but neither system can access the other's case number. Access to TWIST would benefit all Cabinet for Health and Family Services oversight agencies. The Office of Attorney General needs access to TWIST for its Medicaid Fraud and Abuse Control Division and the Consumer Protection Division, which investigates exploitation cases. The Justice and Public Safety Cabinet uses the Unified Criminal Justice Information System (UCJIS), the goal of which is to eventually permit the sharing of information between law enforcement agencies, jails, prosecutors, the Attorney General, courts, and correctional facilities. The UCJIS is the central record management system and the law information network of Kentucky. Coordination of protective services would be enhanced by communication among computer systems.
Senator Karem asked if there were statutory, regulatory, or federal restrictions that would inhibit agencies from sharing information, and Ms. Upton said that she was not aware of any. Representative Burch stated that agencies should be mandated to work together and share information for the welfare of the adults. Senator Karem said that, if agencies are not communicating, people are hesitant about getting involved. Representative Lee asked why anyone would report abuse and take a chance on being prosecuted if agencies are unwilling to thoroughly investigate and convict a report of abuse. The system allows the problem of adult abuse, neglect, and exploitation to continue. The public should be alerted and educated about the problem of abuse.
Ms. Upton stated that the Victim Information Notification Everyday (VINE) system enables a victim, social worker, and law enforcement to know changes in the status of a perpetrator. A potential interface between VINE, LINK, and the state police sexual offender registry could benefit victims by coordinating information on warrants, protective orders, and residence changes of sexual offenders. A recommendation is for the Cabinet for Health and Family Services and the Justice and Public Safety Cabinet to work together, in consultation with the Administrative Office of the Courts, to design and implement information system interfaces among TWIST, ACTS, and other related CHFS systems and the UCJIS. The objectives would allow for: 1) ability of staff working on a case in any agency to find all related cases at other agencies; 2) security so staff may view only information that is permitted for their role; 3) automated data exchange between systems where it is found to be appropriate and efficient; 4) case cross-checks for current and previous involvement of victims and perpetrators; and 5) automated notification of changes in perpetrator status and location.
Ms. Upton reported that some officials have suggested that high caseloads make it difficult for social workers to conduct thorough investigations and to substantiate abuse, neglect, or exploitation. Others have suggested that the lack of adult-specific workers hampers investigations and that social workers do not have knowledge of how to obtain evidence. She said that many social workers are designated for both child and adult protection cases. The overall state average is 15 cases per social worker, which is within national caseload guidelines. Coordination of services would be enhanced by workers who perform only adult protection services because they would understand the complexities of adult cases and understand KRS Chapter 209. Possible recommendations would be for DCBS to dedicate more social workers to adult protective services, and require social workers to receive mandatory and timely training on conducting investigations of abuse, neglect, and exploitation of adults. Representative Palumbo asked why it would be inappropriate to share automated data. Ms. Upton stated that a problem would be to allow a social worker to see information on another person's on-going case. Commissioner Robinson stated that the problem is not for a social worker to find information on an a specific person on a case load but protecting someone's confidentiality by not allowing access to cases the social worker is not involved in. Representative Palumbo stated that if each allegation has a case number a person would only have access to a specific case. Mr. Ken Schwendemen of the Justice and Public Safety Cabinet stated that the UCJIS is under federal auspices and federal grant monies, and a federal requirement is to only allow access to sworn law enforcement officers.
Senator Stine recessed the meeting at 11:07 a.m. because the Senate was called back into session to vote on House Bill 1. The committees reconvened at 1:20 p.m.
Ms. Upton stated that the DCBS determines if enough evidence is available to substantiate abuse, neglect, or exploitation but does not determine if a crime has been committed. Determining whether a crime has been committed is the responsibility of law enforcement agencies and courts. Many law enforcement officials use the information provided on the DSS 115 form. It is recommended that the DCBS should work with law enforcement officials to determine specific information needed and then modify the DSS 115 form accordingly. She said that shortage of funding has been cited by state officials as a hindrance to effective coordination of adult protective services. The federal government does not provide dedicated funding for adult protection. The major federal funding sources for Kentucky's adult protective services comes from the Community Services Block Grant and the Social Services Block Grant. Other sources are federal grants and restricted state funds from marriage licenses and guardianship fees. The Department for Mental Health and Mental Retardation Services provides services through state-run residential facilities and the Supports for Community Living program. Area agencies on aging within the area for development districts provide long-term care ombudsman services. Local long-term care ombudsman offices have been funded in part by civil monetary penalties paid by long-term care facilities that violate federal laws and regulations for the care and protection of vulnerable adults, but the amount of penalties collected vary from year to year. According to CHFS officials, no civil monetary penalties funding was made available to local ombudsman offices for the first quarter of fiscal year 2005 under the Governor's spending plan. Some local offices are required to curtail services as a result. This situation could increase the vulnerability of already vulnerable facility residents.
Ms. Upton stated that one recommendation would be for the CHFS to fully fund a full-time long-term care ombudsman office in every area development district (ADD) each year. The Governor's Office and the cabinet should explore the use of federal grants and other dedicated state money to supplement the civil monetary penalties used to fund the offices. Representative Adrian Arnold asked if the director of each area agency on aging and a local long-term care ombudsman could be coordinated into one office. Ms. Upton said that the recommendation was to fund a full-time ombudsman in each ADD and not to create a new office.
Representative Lee asked if the DCBS knows what happens with the DSS 115 form after it is initially filed. Ms. Upton said that the DCBS sends the form to law enforcement, and at the conclusion of the social worker's investigation, another form is sent to explain what was found and what steps were taken. The cabinet does not know the final outcome of the case. Representative Lee said that there needs to be a comprehensive review process so everyone knows the outcome of each case. He said under the current system there is no accurate way to know what happens to any abuse report and where it actually died. Ms. Upton stated that law enforcement agencies are not required to report. Ms. Upton stated that sometimes the abuse allegation is reported to a law enforcement agency and it is turned into a different type of crime that is not prosecuted under KRS Chapter 209. Representative Lee said that the General Assembly should know if a charge is turned into another statute and the outcome of the case.
Commissioner Robinson stated that he would follow-up with a written response to the report but said that the cabinet agreed on most areas of the report. He said that the local administrators care about protecting children and vulnerable adults and do a great job in prioritizing cases. He agreed that there should be more consistency throughout the regions on how policy is applied. There are diverse regions that present unique problems. The Division of Protection and Permanency provides services to individuals, and there is also medical staff in Frankfort to help victims. He also agreed that the cabinet could do a better job communicating with law enforcement and other agencies and will work with them to improve the DSS 115 form. Family Team meetings are held to involve all community partners in order to take advantage of all available resources to resolve problems. He stated that workers are being trained and continue to be trained on how an investigation should be conducted. The DCBS is working with AOC on the issues of guardianship and adult protection services where AOC is involved.
Representative Burch asked if there were enough social workers and sufficient funds to handle child and adult protection cases. Commissioner Robinson stated that there are not sufficient funds available at present.
Senator Stine asked about the 800 MHMRS unsolved cases, and Commissioner Robinson stated that if the names can be provided, he could match them against TWIST and give the final results of each case.
Representative Lee asked if the DCBS intended to have a policy manual that would be referenced in an administrative regulation that lists the responsibilities of each person from the time that an abuse report is filed and how the claims are handled. Commissioner Robinson stated the responsibilities are listed in the Standard Operating Procedures. The challenge is to have statewide consistency. Representative Lee stated there should be continuity within the cabinet and defined responsibilities within the cabinet for what happens to each abuse claim that is referenced in an administrative regulation. Commissioner Robinson agreed and stated that the Standard Operating Procedures should be posted on the website to be accessed by everyone. Senator Stine stated that statutory changes are needed to make sure the administration fulfills its responsibilities.
Representative Burch stated that he had met with the cabinet representatives and interested parties during the recess on the Medicaid provider tax and no longer needed to have a presentation before the committee.
Senator Denton said that no action would be taken on the administrative regulations since there was not a quorum present. There being no further business, a motion to adjourn at 1:47 p.m. was made by Senator Denton, seconded by Senator Stine, and approved by voice vote.