Call to Order and Roll Call
The fourth meeting of the Interim Joint Committee on Health and Welfare was held on Wednesday, September 18, 2013, at 1:00 p.m., in Room 129 of the Capitol Annex. Senator Julie Denton, Co-Chair, called the meeting to order at 1:09 p.m., and the secretary called the roll.
Present were:
Members: Senator Julie Denton, Co-Chair; Representative Tom Burch, Co-Chair; Senators Joe Bowen, Perry B. Clark, David P. Givens, Denise Harper Angel, Alice Forgy Kerr, Kathy Stein, and Katie Stine; Representatives Julie Raque Adams, Robert Benvenuti III, Bob M. DeWeese, Kelly Flood, Ruth Ann Palumbo, Russell Webber, Susan Westrom, and Addia Wuchner.
Guests: Kathryn Cohen, Legislative and Policy Counsel, Treatment Advocacy Center, Arlington, Virginia; Sheila Schuster, Advocacy Action Network and Kentucky Mental Health Coalition; Kelly Gunning, NAMI Lexington and family member; Kim Wilkie, District Court Judge; Ed Monahan, Department of Public Advocacy; Gina G. Burns, Family Member and Kentucky Mental Health Advocate; Brien Shea, President, EGI Healthcare Marketing; Randy Strause, Child Care Advocates of Kentucky; Dr. Terry I. Brooks, Executive Director, Kentucky Youth Advocates; Reggie Gentry, Member of the Protection & Advocacy for Individuals with Mental Illness Advisory Council and Retired Chaplin at Eastern State Hospital; Sarah McCoun, Stephanie Hold, Kim Rousch, and Mary Reinle Begley, Office of Inspector General; Terry Brownson and Diana Caldwell, Wendell Foster’s Campus for Developmental Disabilities; Michelle DeJohn, Division of Childcare, Cabinet for Health and Family Services; Phill Gunning, Valerie Mudd, and Cathy Epperson, NAMI Lexington; Bill Doll and Cory Meadows, Kentucky Medical Association; Sandra Flynn, Grandmother; Becky Taylor and Carolyn Colliver, family members; Mark R. Brengelman, Kentucky Board of Physical Therapy; Christina Stopher and M. Brooke Anderson, parents; Emily Parento, Office of Health Policy, Cabinet for Health and Family Services; Sharon Yelton, Children, Inc.; and Mike Hamms, Kentucky’s Voice for Early Childhood; Clyde Caudill, Jefferson County Schools, Kentucky Association of School Administrators; Molly Clouse and Ja-ron S. Teague, consumer.
LRC Staff: DeeAnn Wenk, Ben Payne, Jonathan Scott, Sarah Kidder, Gina Rigsby, Cindy Smith, and Wesley Whistle.
Minutes
A motion to approve the minutes of the August 21, 2013 meeting was made by Representative Burch, seconded by Senator Clark, and approved by voice vote.
Consideration of Referred Administrative Regulations
The following administrative regulations were available for consideration: 201 KAR 22:045 – establishes continued competency requirements and procedures as a condition of license renewal by the Kentucky Board of Physical Therapy; 201 KAR 22:055E – interim standards for supervision for physical therapists until September 1, 2013; 201 KAR 22:130 – outlines the per diem that members will receive when required to represent the Kentucky Board of Physical Therapy or attend its meetings; 900 KAR 6:030 – provides for the adjustment of expenditure minimums for capital expenditures and major medical equipment; 900 KAR 6:120 – establishes the provisions for the certificate of need approved angioplasty two (2) year trial program in hospitals without on-site open heart surgery; 900 KAR 6:125 – establishes the requirements for registration of Magnetic Resonance Imaging units and the requirements for submission of annual survey data that are used to produce annual reports necessary for the orderly administration of the Certificate of Need Program; 906 KAR 1:200 – establishes a competitive grant program to provide funding to organizations which offer programs or services approved by CMS for the use of civil money penalties (CMP) funds, thereby establishing the CMP Fund Grant Program; 922 KAR 1:130 & E – establishes the Kinship Care Program in Kentucky; 922 KAR 1:140 & E – establishes the maximum number of children remaining in foster care longer than twenty-four (24) months, and establishes permanency services available to children in placement; 922 KAR 1:320 & E – establishes procedures related to appeals and complaints for benefits and services under 922 KAR Chapters 1 through 5; 922 KAR 1:400 & E – establishes standards for provision of supportive services to a family receiving ongoing case management services or to safely maintain a child in the child’s home through the cabinet, to the extent funds are available; 922 KAR 2:020 – establishes procedures for improper payments, claims, and penalties used by the cabinet in the administration of the Child Care Assistance Program (CCAP); 922 KAR 2:090 – establishes licensure standards for a child-care center and describes the informal dispute resolution process; 922 KAR 2:100 – establishes minimum requirements intended to protect the health, safety, and welfare of children cared for by certified family child-care home providers; 922 KAR 2:110 – establishes standards for child-care centers; 922 KAR 2:120 – establishes health and safety standards for child-care centers; 922 KAR 2:160 & E – establishes requirements that enable the Cabinet for Health and Family Services to qualify for federal funds under the Child Care and Development Fund, and establishes procedures for the implementation of the Child Care Assistance Program to the extent that funding is available; and 922 KAR 2:180 – establishes requirements for providers to participate in the Child Care Assistance Program and the application procedures. A motion to approve the administrative regulations was made by Representative Burch, seconded by Senator Harper Angel, and approved by voice vote.
Barriers for the Delivery of Psychiatric Care
Kathryn Cohen, Legislative and Policy Counsel for the Treatment Advocacy Center in Arlington, Virginia, stated that the center seeks to remove barriers to treatment for people with severe mental illnesses such as schizophrenia and bipolor disorder. Court-ordered outpatient treatment or also known as assisted outpatient treatment (AOT) laws in Kentucky need to be improved by broadening the existing standard or creating a more flexible set of criteria, extending the duration of an outpatient order, and creating a safety net provision for those non-compliant with their treatment plan. Families are keenly aware of the enormous strides that medical science has made in recent decades to offer real hope of recovery to people with severe mental illness. But the key is to get those individuals under medical treatment. People who receive treatment for a severe mental illness are no more likely to engage in violence than anyone else. Treatment is the key to maintaining strong bonds with friends and family, as well as avoiding hospitals and jail. The primary reason treatment for a family member in psychiatric crisis is a challenge is an anatomical brain condition that afflicts many people with schizophrenia and severe bipolar disorder, anosognosia. People with anosognosia simply are unable to recognize their own illnesses no matter how painfully obvious it may be to everyone around them, and they often reject all efforts to get themselves into treatment.
Court-ordered outpatient treatment requires that individuals with severe mental illness adhere to a prescribed treatment plan as a condition of living in the community. One of the main goals of outpatient treatment for people with severe mental illness is to facilitate more consistent adherence to treatment when the person is unable to seek and voluntarily comply with treatment. Typically, treatment combines a court order and a comprehensive treatment and services plan. The court’s role and the legal procedures related to outpatient commitment laws vary from state to state.
In 2012, the federal Department of Justice certified assisted outpatient treatment as an evidence-based practice for reducing crime and violence. A study in New York documented that AOT recipients experienced fewer hospitalizations, homelessness, arrests, and incarceration. A 2010 Columbia University study found that individuals under outpatient commitment who were more violent to begin with were four times less likely than those without a commitment order to perpetuate serious violence after undergoing treatment. Court-ordered outpatient treatment laws exist in 45 states, including Kentucky. The current Kentucky standard applies to both inpatient commitment and outpatient commitment but judicial involvement is limited for the following reasons: (1) outpatient treatment is only available to individuals who meet the first three criteria in the statute for commitment, including (1) dangerousness; (2) the current time period for court-ordered outpatient treatment is too short, a maximum of 120 days; and (3) there is no consequence for non-adherence to an outpatient treatment order.
Ms. Cohen suggested three ways Kentucky can improve its laws would be either to broaden existing commitment standards or create a more flexible separate set of criteria for outpatient commitment, extend the duration of the outpatient treatment order to one year with an opportunity for renewal, and create a provision for non-adherence to the program as a presumptive ground for a need for evaluation so that individuals can immediately get the proper medical attention when they lapse from their plan. Improving the laws is a critical component to ensure timely and effective treatment for Kentucky’s most vulnerable citizens.
Reggie Gentry, member of the Protection and Advocacy for Individuals with Mental Illness Advisory Council and retired Chaplin, stated that people with mental illnesses do better if not forced into treatment but given choices. An AOT order will put a stigma on people with mental illness. Motivational counseling is effective in a person’s treatment and recovery. The mental health system would benefit from more peer support specialists, statewide drop-in centers, and re-establishment of day treatment centers in community mental health centers. People with mental health illnesses are no more harmful than people without mental illnesses.
Kelly Gunning, NAMI Lexington and parent, stated that mental illness affects the entire family, and it takes the entire community to help people with mental illnesses. A mental inquest is needed for court-ordered treatment. In order to create an opportunity for meaningful change it is of paramount importance to bring all stakeholders together to define and create the kind of mechanisms needed to ensure that individuals who experience the major life threatening and impacting systems of Serious and Persistent Mental Illness (SPMI) can access the level of care needed when they do not meet hospital admission criteria under 202A. Significant obstacles and barriers to care and issues which impact 201A and AOT include: (1) difficulty in obtaining hospital admissions; (2) stringent, subjective, and often misinterpreted admission criteria; (3)lack of payor source for hospitalization; (4) huge mental health parity issues; (5) lack of payor source for community-based services which narrows the options for care; (6) no standardized utilization across the state of existing, potentially helpful statutory tools; and (7) negotiating and balancing civil liberty issues. Proposed opportunities for improvement are creating a point of contact action mechanism and using evidence-based practices.
Sheila Schuster, Advocacy Action Network and Kentucky Mental Health Coalition, stated that mental health issues cannot be solved by more money but by use of services. Medicaid does not reimburse the 200 consumers trained as nationally certified peer support counselors. Someone committed to a hospital needs representation in order to make sure the language of the agreed order is understood by the patient. Evidence-based criteria do not always work as well in rural areas. Everyone needs to work collaboratively to find solutions. The mental health advanced directive helps a provider know the wishes of the patient whether or not the patient is able to convey them. The balancing of the rights of persons with mental illness and the concerns of the family members are complex. Just because someone has a mental illness, it does not mean that they do not have rights. The mentally ill are no more likely to be dangerous than anyone else and are ten times more likely to be victimized by a violent crime than be the perpetrator.
Kim Wilkie, Fayette District Court Judge, stated that Decriminalize Mental Illness – Take Down The Wall Committee is working to get a mental health court established in Fayette County. Because some people have offenses in all of the courts, the mental health court, drug court, and veterans’ court, a combined court would be ideal. Fayette County is in the process of establishing a drug court that would prevent an individual with a misdemeanor from going through an indictment process and have a felony record. The goal of the mental health court is to save lives and help families. Individuals with severe mental illnesses need help.
Ed Monahan, Chief Public Advocate, Department of Public Advocacy (DPA), stated that the Department of Advocacy has 32 public defender trials offices statewide that represents over 160,000 clients in District Court, Circuit Court, Kentucky Court of Appeals, and the Kentucky Supreme Court. The DPA has longstanding experience in representing persons with mental illness for drug offenses, penal code offenses, juvenile offenses, and involuntary commitments. Public defenders represent people facing a loss of liberty. Everyone has a constitutional right to freedom, including the mental ill. KRS 202A.026, Criteria for involuntary hospitalization, states that no person shall be involuntarily hospitalized unless such person is a mentally ill person: (1) Who presents a danger or threat of danger to self, family or others as a result of the mental illness; (2) Who can reasonably benefit from treatment; and (3) For whom hospitalization is the least restrictive alternative mode of treatment presently available. Public defenders represent most individuals being proceeded against in a KRS Chapter 202A involuntary commitment proceeding. In fiscal year 2013, Kentucky public defenders were assigned to 3,479 cases statewide.
Keys to reducing the risk of violence by people with serious mental illness are providing aggressive and intensive case management, a comprehensive array of community support services, individual case managers with small caseloads, 24-hour availability of case managers, strong linkages to agencies providing mental health services, substance abuse treatment, social services, and intensive case managers. Specialty courts are a good way to address special problems more effectively but are a costly model. DPA has a successful alternative sentencing social worker program that is working for some clients with substance abuse issues, those who are mentally ill, juvenile cases, and some 202A cases. The DPA’s social worker alternative sentencing program pilot was recognized as one of the 25 most innovative government programs in the country by the Ash Center for Democratic Governance at the Harvard Kennedy School of Government for 2013. Public defenders lower costly incarceration rates for counties and the state.
G.G. Burns, family member and Kentucky mental health advocate, stated that she is the mother of a 26-year old son who suffers with a neurological syndrome called anosognosia where he lacks insight into his own illness. People in crisis often treat the very people who love them the most the worse. Improving the outpatient standard will allow effective treatment for Kentucky’s most vulnerable people instead of forcing them to jail. Legislation needs to be adopted that would help families have options for treatment before a tragedy occurs and provide for longer periods of care than 60 or 180 days. Incarcerations instead of treatment are bad public policy. The reason the current treatment law is not utilized is not due to lack of funding, but because it requires a person to meet inpatient civil commitment first before it is ordered. This almost never happens, because most patients are not held beyond seven days, even if they are admitted under KRS 202A, with a warrant. Treatment is better than incarceration and cheaper. Mental illnesses are the only diseases where patients are punished for their symptoms.
In response to a question by Representative Wuchner, Ms. Gunning stated that a CASA type program for someone with a mental illness has potential to help an individual navigate care. Ms. Cohen stated that the CASA program is very effective.
In response to a question by Representative Burch, Ms. Cohen stated that there are number of states that have implemented AOT effectively. Mr. Monahan stated Kentucky already has had a successful behavioral health model that was piloted in three locations.
Representative Benvenuti stated that there needs to be a full spectrum of opportunities available for individuals and families. The liberties of the victims have to be considered along with the liberties of the mentally ill person. Ms. Cohen stated that Kentucky should not hold the AOT hostage because of the lack of funds or until all of the aspects are resolved.
Michelle P. Waiver
Brien Shea, President, EGI Healthcare Marketing testified that he is a parent of a son with down syndrome who was part of the First Steps program until he was no longer eligible after the age of three years. Children should be eligible for First Steps until the age of 5 years. The more help available for children now will save money later. Early intervention is absolutely necessary. It takes too long for a case to be reviewed before a child can receive services. The process should be streamlined in order not to have gaps in necessary services.
Lisa Lee, Deputy Commissioner, Department for Medicaid Services (DMS), Cabinet for Health and Family Services, stated that the Michelle P. waiver serves approximately 9,260 individuals with a cap of $10,000 per recipient. The administrative regulation stipulates that an individual has to meet the level of care and without the waiver services the individual would be admitted to an intermediate care facility or mental retardation facility. The Department for Behavioral Health and Intellectual Disabilities within the Cabinet for Health and Family Services is working with the Department for Medicaid Services to make sure Michelle P. waiver is administered properly.
In response to a question by Senator Denton, Betsy Dunnigan, Acting Commissioner, Department for Behavioral Health, Developmental and Intellectual Disabilities (DBHDID), Cabinet for Health and Family Services, stated that when the waiver program was developed in response to the continually growing waiting list for Supports for Community Living (SCL) services. The majority of individuals on the waiting list did not need residential services at the time, but were on it because of possible future needs. The majority of individuals on the waiting list were adults, but over time more children needed services. The assessment tool utilized for the waiver program is an adult tool and not appropriate for children. The DBHDID has been looking at appropriate, tested, proven child assessment tools, and a recommendation will be given to DMS. The DBHDID will have the review completed and taken to the Commission on Services and Supports for Individuals with an Intellectual Disability and Other Developmental Disabilities (HB 144 Commission) around October 10, 2013. The intention is to have a consistent streamlined process for services.
In response to a comment by Senator Bowen, Acting Commissioner Dunnigan stated that the Medicaid waiver programs have federal requirements and criteria and are established as an alternative to institutional care.
In response to a question by Senator Harper Angel, Acting Commissioner Dunnigan stated that the department has talked with other states about outcomes based on child assessment tools. The top recommendation along with an alternative recommendation will be taken to the HB 144 Commission.
Discussion of Referred Child Care Administrative Regulations – 922 KAR 2:020, 922 KAR 2:090 & E, and 922 KAR 2:160 & E
Randy Strause, Child Care Advocates of Kentucky, stated that proposed amendments to 922 KAR 2:090 & E and ordinary regulation and 922 KAR 2:160 & E and ordinary regulation establish a finding of fraud cause of action which would violate due process. Under 922 KAR 2:160 & E, Section 17, the cabinet can be the judge, prosecution, and executioner by automatically withholding government benefits from the Child Care Assistance Program (CCAP) recipients without affording them a constitutionally guaranteed opportunity to be heard. Judge Phillip Shepherd, Franklin Circuit Court, issued a temporary restraining order (TRO) against the Commonwealth and the cabinet. The TRO ordered the Commonwealth and the cabinet to be restrained and enjoined from implementing or enforcing the amendments in either 922 KAR 2:090 & E or 922 KAR 2:160 & E pending further orders of the court and from withholding CCAP payments from the named plaintiffs in the case until after the cabinet has fully complied with the requirements of KRS 13B.125 and KRS 199.896 to implement emergency action and to provide for an expedited hearing and appeal of any such action. The case has not been settled and the TRO is still in effect, and the due process and equal protection causes of action are still being litigated before the Franklin Circuit Court.
The terms intent or intentional and fraud are not defined nor given standards for application. Without explicitly defining the terms, those who administer the CCAP program have wide discretion in determining whether a provider is fraudulent. It is crucial that there is consistency of thought of definition in administering the regulations. Without clear definitions, the Commonwealth will displace children and families from quality child care centers because of ambiguous interpretations.
As the administrative regulation is written, it appears that a license may be automatically revoked due to an intentional program violation finding for a CCAP provider. This directly ties eligibility for a financial subsidy program to a license that is issued to protect the health, safety, and welfare of children. Further, it removes a licensure benefit from providers without affording them an opportunity to be heard and is a violation of day care service providers’ due process.
The cabinet utilizes a CCAP Operations Manual to interpret regulations and statutes. The manual is not incorporated by reference into the regulations as required by KRS 13A.130, which states that an agency may not regulate by internal policy without the legislature’s consent. The manual sets monetary limits on when the cabinet will refer fraud cases to the Office of Inspector General (OIF). Nowhere are monetary limits for fraud case referrals to the OIG codified.
The new DDC-94E form lists multiple children on one sheet for signing in and out. This allows other clients to know which children are physically in the center, the arrival and departure times of each student, who is dropping them off and picking them up, and their pattern of arrival and departure. This makes is impossible for providers to keep confidential information as required by 922 KAR 2:110, Section 3(2)(a) and (3).
The Child Care Advocates of Kentucky recommend that 922 KAR 2:020 ordinary regulations, 922 KAR 2:090 & E and ordinary regulation, 922 KAR 2:110 ordinary regulation, and 922 KAR 2:160 & E and ordinary regulation be amended to redact or revise the deficient provisions or withdraw and redraft the regulations in compliance with its requests and promulgate the redrafted versions.
Dr. Terry I. Brooks, Executive Director, Kentucky Youth Advocates, stated that the top three reasons to support Kinship Care in Kentucky are that it is better for kids, better for families, and better for taxpayers. As of April 1, 2013, no new families are allowed to participate in Kinship Care. Current families will be allowed to continue receiving support. CCAP helps families access quality child care. The program provides subsidies for parents that are working or receiving educational training. In Kentucky over 75,000 children receive the CCAP subsidy. On April 1, 2013, DCBS placed a freeze on applications for CCAP. On July 1, 2013, the department reduced the eligibility requirement for the program from the current 150 percent of the federal poverty level to 100 percent. Working parents may have to quit their jobs in the absence of quality child care. Parents that do continue to work may seek out caregivers that are unqualified or ill-equipped to care for a child and that puts children at risk of abuse or neglect. KYA recommends that the eligibility should be raised to 200 percent of the federal poverty level.
Representative Burch stated that the General Assembly did not allocate enough money because there was not enough money to fund every program.
In response to questions by Representative Benvenuti, Mr. Brooks stated that all daycare providers qualify for CCAP subsidies, even though there are some that provide lower quality care. Co-pays for CCAP are based on a parent’s income.
Sandra Flynn, grandmother and Kinship Care recipient, stated that the Kinship Care program needs more money to help children placed in a family member’s home because of abuse or neglect by the parent. Families depend on the money provided by the Kinship Care program to provide for the children placed in their care.
Christina Stopher, mother and Child Care Assistance Program recipient, stated that 80 percent of her salary goes to child care. If her CCAP funds are cut, she will be forced to have to quit her job and go on welfare, because being a single mom she would not be able to afford day care for her children.
Senator Denton stated that cuts in one program affect other programs.
Brooke Anderson, mother and Child Care Assistance Program recipient, stated that she is a single mother of three children and is employed at the Home of the Innocents. It is going to be hard to continue working without child care assistance. She said that she has worked very hard to better her own and her children’s lives, and if she has to quit her job, it could mean that they have to go to a homeless shelter. It is not fair to her or her children.
Sharon Yelton, Children, Inc., mother and former Child Care Assistance Program recipient, stated that CCAP still works how it was intended to work. Parents do not want to have to worry about the quality of care for their children. She said that when her son was small she received child care assistance that allowed her be able to go to college and get her degree. Daycare takes a huge amount of someone’s salary. Cuts in child care assistance will end up costing more in the long run.
Adjournment
There being no further business, the meeting was adjourned at 3:48 p.m.