Call to Order and Roll Call
The sixth meeting of the Interim Joint Committee on Health and Welfare was held on Monday, December 19, 2011, at 1:00 p.m., in Room 129 of the Capitol Annex. Representative Tom Burch, Co-Chair, called the meeting to order at 1:04 p.m., and the secretary called the roll.
Present were:
Members: Senator Julie Denton, Co-Chair; Representative Tom Burch, Co-Chair; Senators Joe Bowen, Tom Buford, Perry B. Clark, David Givens, Denise Harper Angel, Alice Forgy Kerr, Dennis Parrett, Joey Pendleton, Katie Kratz Stine, and Jack Westwood; Representatives Julie Raque Adams, Bob M. DeWeese, Jim Glenn, Brent Housman, Joni L. Jenkins, Darryl T. Owens, Ruth Ann Palumbo, Susan Westrom, and Addia Wuchner.
Guest Legislators: Senator Jimmy Higdon; and Representatives Dennis Horlander, Martha Jane King, and Jimmie Lee.
Guests: Patricia Wilson, Commissioner, and Teresa James, Deputy Secretary, Department for Community Based Services, and Christina Heavrin, Legal Counsel, Cabinet for Health and Family Services; Marsha Hockensmith, Director, Kentucky Protection and Advocacy; Debbie Lanham, former resident of a Personal Care Home; Kathy R. Dobbins, LCSW, Executive Director, Wellspring; Terry Brooks, Executive Director, Andrea Plummer, and Amy Swann, Kentucky Youth Advocates; Kevin Kavanagh, MD, MS, FACS, Board Chairman, Health Watch USA; Jill Seyfred, Prevent Child Abuse Kentucky; Kathy Adams, Children’s Alliance; Gene Eckert and Ralph Risimimi, St. Joseph Children’s Home; Alex Blevins, Kentucky CASA; Vickie Arrowood, court-appointed parent attorney; Therese Sirles, Kosair Children’s Hospital; Eric T. Clark, Kentucky Association of Health Care Facilities; Patty Dempsey, The Arc of Kentucky; Nancy Dematra; Chandra Venettozzi, Office of Health Policy, Cabinet for Health and Family Services; Deon Hunter; Connie Marshall; Michael Tuleh; Donna Crawford; LeeEtta Cummings and IJ Eneje, Division of Behavioral Health, Cabinet for Health and Family Services; Troy Johnson, Nursing Home Ombudsman; Carol Peters; and Marty White, Kentucky Spirit Health Plan.
LRC Staff: DeeAnn Mansfield, Miriam Fordham, Ben Payne, Jonathan Scott, Gina Rigsby, and Cindy Smith.
Update on Hospital Acquired Infections
Kevin Kavanagh, MD, MS, FACS, Board Chairman, Health Watch USA, stated that one in twenty patients in the United States develops a healthcare acquired infection (HAI). Out of approximately 1.7 million infections in the United States, nearly 100,000 individuals will die. In Kentucky, approximately $400 million dollars will be spent on HAIs. Healthcare acquired infections cause as many deaths as motor vehicle traffic accidents, breast cancer, and HIV/AIDS combined. State initiatives on public reporting of HIAs play an important role in the federal effort to prevent HIAs. There are approximately 1,200 Centers for Disease Control and Prevention (CDC) practices to control HAIs. Public reporting produces more of a behavior change in providers than patients. Methicillin-resistant Staphylococcus aureus (MRSA) infection is caused by a strain of staph bacteria that has become resistant to the antibiotics commonly used to treat ordinary staph infections. HIAs comprise 86 percent of all MRSA infections.
Child Fatality and Near Fatality: Transparency
Patricia Wilson, MSW, Commissioner, Department for Community Based Services, Cabinet for Health and Family Services, stated the DCBS centralized intake unit receives approximately 80,000 calls per year, but not all of them are allegations of abuse or neglect. The calls that allege abuse and neglect have to meet the criteria for acceptance that are promulgated in administrative regulations. States create criteria that meet the statutory definition of abuse and neglect. The federal government encouraged states to create multiple response systems for states that have a registry of individuals who have been substantiated for abusing and neglecting children. Placement on the registry can impact employment for seven years. A case that has prior history with the cabinet means that there has been contact in the form of a report with the department at any point in an individual’s lifetime. 922 KAR 1:330 states a caretaker is a person who is responsible for the supervision and well-being of a child. Substantiation means (a) An admission of abuse, neglect, or dependency; (b) A judicial finding of child abuse, neglect, or dependency; or (3) A preponderance of evidence exists that abuse, neglect, or dependency was committed by the person alleged to be responsible. The cabinet is prohibited from undertaking an investigation or family-in-need services assessment for a report of abuse or neglect allegedly perpetrated by a noncaretaker but shall refer the matter in compliance with KRS 620.030(1). Calls about alleged abuse or neglect by a noncaretaker are referred to law enforcement because the department does not have statutory to intervene in these cases. Kentucky’s response timeframes for investigations of alleged serious injury and imminent harm is within an hour, physical abuse within 24 hours, and neglect within 48 hours. Of the approximately 80,000 calls received by the department in 2011, 32,835 were allegations of abuse or neglect that met the criteria of caretaker and risk of safety and harm of the child. The department substantiated 29 percent of investigations. The national average for substantiation of allegations is 27 percent. Of the 32,835 allegations, 69 were substantiated fatality or near fatality cases, and 35 of those had a prior history with the cabinet. In the cases with history with the department during 2011, the child victims were all under ten years of age and 64 percent died as a result of abusive head trauma. In 82 percent of the cases, the prior report involved neglect while the incident that caused the fatality or near fatality was physical abuse. Only one case had the same victim and perpetrator pairing in the fatality or near fatality as the previous report.
The cabinet supports being open and accountable, but has to weigh the impact of the victimization of others involved in a case. The department’s records are very comprehensive and need to be open only if it does not victimize families further. Also, some people who give information want to remain confidential. There has to be a balance between what information is released with the safety of individuals. The cabinet also worries about the safety of the DCBS staff.
Christina Heavrin, Legal Counsel, Cabinet for Health and Family Services, stated that the cabinet has offered to give information about cases, but only if it is not confidential. Social security numbers, sealed family and juvenile court records, medical records, records of financial assistance programs are protected under the open records act. Siblings, individuals named in the records that have no connection to the fatality or near fatality, and children who survive near fatalities have the right to privacy. Information can be obtained from the cabinet without revealing confidential information. The cabinet will release information in 180 cases from 2009 and 2010.
In response to questions by Representative Adams, Commissioner Wilson stated that the training of frontline workers at the academy covers all facets of the work done at DCBS. The cabinet makes every effort to involve as many individuals into current training who do not routinely conduct investigations but who may be called upon to conduct investigations.
In response to questions by Senator Pendleton, Commissioner Wilson stated that to be counted as a death as a result of child abuse or neglect as defined by statute, the act that resulted in the death of the child has to be perpetrated by the caregiver. The Department for Public Health has a report with statistics and aggregate data of all child deaths in Kentucky based upon information provided on death certificates.
In response to questions by Senator Parrett, Commissioner Wilson stated that if the name of an individual who reported the abuse or neglect is not protected, there is a possibility that the number of reports of fatalities or near fatalities may decrease. The testimony of individuals is recorded in the case report, so even if the name is not revealed, there is a possibility that the individual’s identity will be known to the person accused of the abuse or neglect based upon the testimony provided. Ms. Heavrin stated that the cabinet follows established protocols about releasing records.
In response to questions by Representative Westrom, Commissioner Wilson stated that both she and the deputy commissioner review cases constantly. In January 2010, the nine regional administrators were assigned to review all fatality or near fatality investigations in their regions for the past two years. After review from the regional administrators, frontline worker protocol was changed in February 2011 for physical abuse of children four years of age and younger. The federal government has added more rules and expectations that affect finances and workloads.
In response to questions by Representative Owens, Commissioner Wilson stated that in November 2011 there were 1,557 frontline workers and 253 supervisors for a total of 1,810 frontline staff. In November 2009, there were 1,583 frontline workers and 262 supervisors for a total of 1,842 frontline staff. In 2007 there were 1,708 frontline workers and 279 supervisors for a total of 1,987. The Child Welfare League of America recommends that workers have no more than 17 on-going service cases and 12 investigative cases. The Council on Accreditation recommends the caseloads should be manageable which may not be the same in different locations and different situations. In 2011, DCBS workers had 19.8 combined investigative and on-going service caseloads. Substance abuse is driving up caseloads of the Protection and Permanency workers, and lack of resources for treatment is a huge problem.
In response to questions by Representative Jenkins, Commissioner Wilson stated that because the annual mandated fatality and near fatality report is to be sent to the Legislative Research Commission by September 1, so it is difficult to include 12 months of comprehensive data because of pending cases. A December 1 deadline would be more conducive to provide a comprehensive report.
In response to questions by Senator Givens, Commissioner Wilson stated that the cabinet did not violate any policies and practices in the Amy Dye case. The cabinet tries to find ways to prevent any child’s death. DCBS supports an external review panel to review cases. Of the approximately 1,800 social workers, 99.9 percent do an exemplary job. The department takes disciplinary action against anyone who has operated outside the department’s policies outlined in the standards of practice manual. A corrective plan is instituted. Approximately 40 percent of the employees that the department institutes major disciplinary action against result in them leaving the cabinet.
In response to questions by Representative Palumbo, Commissioner Wilson stated that the family composition is different than in the past. Parents normally do not intentionally hurt a child because they have an emotional investment in the child. Abuse is usually done by someone who is not emotionally invested in the child. Children under the age of four are abused more because they are more demanding. Substance abuse makes a situation more volatile.
In response to questions by Representative King, Commissioner Wilson stated that there is room for better communication between the department and schools.
In response to questions by Senator Buford, Commissioner Wilson stated that in several counties staff is asked to provide supervised visitation in custody cases because the court believes someone needs to supervise the visits between the parents. Staff supervising these visits cannot be making home visits to child protective cases or adult protective services cases.
In response to questions by Representative Wuchner, Commissioner Wilson stated that a worker that prepares a report to the court really prepares the report based upon a petition that is before the court and that petition alleges certain events about a particular child. Inside the court hearing, a worker is able enter testimony about what is known about any prior history the alleged abuser may have had with the cabinet if no one objects to the testimony. There is a fine line that separates what a worker might know about an individual from a prior relationship and how that information will transfer into a current situation. When the cabinet receives a report of a child who is in imminent danger, an investigation has to be started within one hour, physical abuse 24 hours, and anything else is 48 hours. Investigations are tracked for timeliness of investigations.
Michael D. Kenner, Superintendent, Todd County Schools, stated that the system failed Amy Dye. There needs to be a better communication system between the cabinet and the school system. Personnel at schools are trained to report abuse and comply with the cabinet when asked for confidential information about the student. Schools give an intake worker suspected abuse information, but they are not kept informed about the progress of the case. Schools need a follow-up from the cabinet on the progress of the case. It is neglect of caregivers if sibling-on-sibling abuse is not reported. The cabinet should not be able to hide behind confidentiality. Teachers are hesitant to report abuse because their confidentiality is not protected. Families should not know who reports the abuse. In Amy Dye’s case, the school believed that she had been removed from the home because of abuse that had been reported. Amy was not attending school, and the school was not aware that Amy was still living in the home.
Camille Dillingham, Principal, South Todd Elementary School, stated that educators are professionals, and their main job is to protect and educate children. Family structure is very different now. Educators know what is normal and when a child is being abused. The definition of a caretaker needs to be changed. Caretakers should be held accountable for neglect that results in sibling abuse.
Vicki Myers, Assistant Superintendent, Todd County Schools stated that there needs to be checks and balances in the cabinet.
In response to questions by Senator Denton, Commissioner Wilson stated that the school contacted the cabinet approximately six times with the last contact in the spring of 2007 about suspected abuse of Amy Dye, but no one at the school was interviewed regarding the abuse.
In response to questions by Representative King, Ms. Meyer stated that all intake calls to the cabinet are treated the same. Mr. Kenner stated that the cabinets want to be able to call someone locally because local offices know the families better. Communication is the key between schools and the cabinet.
In response to questions by Senator Westwood, Mr. Kenner stated that it is helpful to know the action taken by the cabinet after a school reports abuse or neglect of a child.
Minutes
A motion to approve the minutes of the November 16, 2011 meeting was made by Senator Pendleton, seconded by Representative Palumbo, and approved by voice vote.
Consideration of Referred Administrative Regulations
The following administrative regulations were referred to the committee for consideration: 201 KAR 23:050 – establishes the requirements for license renewal by the Kentucky Board of Social Work; 201 KAR 23:075 – delineates the requirements for continuing education and prescribes methods and standards for the accreditation of continuing education courses by the Kentucky Board of Social Work; 900 KAR 6:075 – establishes the requirements necessary for consideration for nonsubstantive review of applications for the orderly administration of the Certificate of Need (CON) Program; 902 KAR 100:142 – provides radiation safety requirements for persons using sources of radiation for wire line service operations including radioactive markers, mineral exploration, and subsurface tracer studies; and 908 KAR 1:310 – establishes certification requirements and minimum standards for an individual or other entity operating a DUI program. A motion to accept the referred administrative regulations was made by Senator Pendleton, seconded by Representative Palumbo, and accepted by voice vote.
Subcommittee Report
Senator Denton stated that the Health Issues and Aging Subcommittee had met that morning and heard testimony from Amy Head, family member of someone with a brain injury, Mary Hass, Advocacy Director, Brain Injury Alliance of Kentucky, Neville Wise, Acting Commissioner, and Karen Martin, Department for Medicaid Services, Cabinet for Health and Family Services, about issues related to the Acquired Brain Injury Medicaid waiver program. Ms. Head provided an update on her efforts to get services for her brain-injured husband, Martin Head. Ms. Hass discussed the difficulties in obtaining services for individuals with stroke-related brain injuries under the current waiver program. The Cabinet for Health and Family Services is working on an enhanced ABI waiver which will provide a larger array of services. The committee heard testimony from providers, clients, and family members about the IMPACT Plus program, and their ongoing concerns expressed about procedural issues and due process in the termination of providers. Susan Campbell Turner, a former IMPACT Plus provider, updated the committee on her termination case. Family members and clients highlighted the problems they have encountered in obtaining services since IMPACT Plus providers in their area have been terminated from the program. Mark Hamm, Phoenix Comprehensive Care, an IMPACT Plus provider, testified about the difficulty in obtaining reimbursement from the new Medicaid managed care organizations.
Need for Supports and Services for Individuals with Mental Illness
Marsha Hockensmith, Director, Kentucky Protection and Advocacy, stated that in May 1995 a suit was filed in the United States District Court in Georgia against state officials, including the head of the Department of Human Resources, Tommy Olmstead. The plaintiffs were two women with dual diagnoses of mental illness and mental retardation, who had a history of institutionalization. Both women qualified for community-based treatment, but remained hospitalized. The lawsuit challenged that their continued confinement violated Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. In June 1999, the Supreme Court issued its opinion stating that continued confinement did violate the ADA, and states shall, when deemed appropriate, make every effort to accommodate the needs of individuals with disabilities in the community. The ruling stated that it also violated Section 504 of the Rehabilitation Act that states, “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of the qualified individuals with disabilities.”
Long term care facilities are defined in Kentucky Revised States 216B.510 and regulated in 902 KAR 20:036. Personal care homes (PCHs) are licensed and regulated by the Office of the Inspector General (OIG). There are 6,490 personal care home beds statewide, and 4,479 are free-standing beds and not part of a nursing facility. The average overall occupancy is 79.88 percent. Some services provided are room accommodations, housekeeping and laundry, maintenance services, three meals per day and snacks, soap, clean towels, wash cloths, and linens, planned individual and group activities, recreational room and space, and reading materials, radios, games, and television sets. Some of the rights of individuals in PCHs include the right to be safe, to be treated with respect and dignity, to privacy, to receive and send unopened mail, to access a telephone for making and receiving calls, to participate in social, religious, and community groups of choice, and to keep and wear their own clothing. The population of the PCHs are individuals who are predominantly 18 years of age and older with mental illness, individuals with intellectual and developmental disabilities, individuals with brain injuries, individuals released from jail or prison. The majority of individuals living in the PCHs receive $674 per month in Supplemental Security Income (SSI). The state supplementation program is required by federal law to pay an amount from state general funds to supplement the SSI payment for persons living in PCHs. Currently the cost to stay at a PCH is $1,194 per month, $520 from state funds and $674 from SSI monies. The PCH must allow the person to retain $60 per month as a personal needs allowance. PCHs who meet the requirements in the regulation who serve populations of persons with mental illness, or intellectual or developmental disabilities that exceed 35 percent receive an additional 50 cents per day. In 2009, P&A staff provided training on Long Term Care Rights, information about guardianship and employment to individuals living at 20 PCHs; and in 2010, training was provided to 24 PCHs. Future plans must ensure integrated housing for persons with mental illness, ensure access to other needed services and supports to persons with mental illness, and re-evaluate utilization of current resources.
Debbie Lanham, former resident of a Personal Care Home, stated that people should be allowed to live as independently as possible. There are not enough daily activities or staff at personal care homes to help teach a resident how to become independent. Individuals should have the right to make their own choices about where they want to live.
Kathy R. Dobbins, LCSW, Executive Director, Wellspring, stated that Well Spring was founded in 1982 and serve approximately 600 clients per year. Well Spring receives state and federal monies. Supportive services should be flexible. People with mental illness can recover and live productive lives.
In response to questions by Senator Denton, Ms. Dobbins stated that the average monthly cost to stay in a PCH is $1,194. Wellspring has different types of living arrangements. The average cost to stay at Wellsprings varies from $1,000 to $3,000 monthly depending on the level of services provided.
In response to questions by Senator Higdon, Ms. Dobbins stated that the state funding for PCHs has not changed since the 1980s. It is hard to compare Wellsprings to a PCH.
Nancy Dematra, teacher and advocate, stated that the following areas need to be addressed by the General Assembly: 1) provide complete public oversight and transparency of the Cabinet for Health and Family Services as well as coordinated services and welfare departments across the state; 2) complete regular audits of all phases of the Cabinet for Health and Family Services, coordinated services, and welfare departments; 3) prohibit illegally seized children for adoptions and foster care; 4) require reporting to an independent agency all sexual and physical abuse in foster care homes and foster care facilities. All homes and facilities must be closed to foster children; 5) institute treatment of abused children; 6) require a degree in social work; and 7) conduct external reviews.
Donna Crawford stated that even though there was an unsubstantiated claim against her, the cabinet took her daughter away from her anyway. She is concerned how DCBS conducts business.
Deon Hunter stated that she has three children in foster care even though she did everything the cabinet asked of her. She has no visitation rights with her children.
In response to questions by Senator Denton, Ms. Hunter stated that her children are 18, 14, and 16 but the cabinet took them her when they were younger. Her parental rights have been terminated.
There being no further business, the meeting was adjourned at 5:00 p.m.