Call to Order and Roll Call
The third meeting of the Interim Joint Committee on Health and Welfare was held on Wednesday, August 19, 2015, at 1:00 p.m., in Room 129 of the Capitol Annex. Representative Tom Burch, Co-Chair, called the meeting to order at 1:10 p.m., and the secretary called the roll.
Present were:
Members: Senator Julie Raque Adams, Co-Chair; Representative Tom Burch, Co-Chair; Julian M. Carroll, Denise Harper Angel, Jimmy Higdon, Reginald Thomas, and Max Wise; Representatives Robert Benvenuti III, Bob M. DeWeese, Mary Lou Marzian, Reginald Meeks, Phil Moffett, Tim Moore, Darryl T. Owens, Ruth Ann Palumbo, Russell Webber, Susan Westrom, and Addia Wuchner.
Guests: Brett Bachmann, CEO, and Debbie Woods, Education Director, Heuser Hearing and Language Academy; Debbie Anderson, Commissioner, and Tonia Wells, Senior Policy Advisor, Department for Aging and Independent Living, Cabinet for Health and Family Services; Leslie Hoffmann, Behavioral Health Policy Advisor and Director Division of Community Alternatives; Lynne Flynn, Policy Advisor, Commissioner’s Office, Department for Medicaid Services, Cabinet for Health and Family Services; Beth Jurek, Executive Director, Office of Policy and Budget, Cabinet for Health and Family Services; MaryLee Underwood, JD, BSW, Executive Director, Commonwealth Council on Developmental Disabilities; Todd Hollenbach, Kentucky State Treasurer; Maggie Krueger, Family Member, President, NAMI Somerset; Chris Whittington, Consumer, Peer Support Specialist, Participation Station, Lexington; Sheila A. Schuster, Ph.D., Psychologist, Executive Director, Kentucky Mental Health Coalition; Maryellen Mynear, Inspector General, Jennifer Mayes, Policy Analyst, Stephanie Brammer-Barnes, Regulation Coordinator, Al Irvin, Project Manager, Cabinet for Health and Family Services; Eric DeYoung, President, Kentucky Occupational Therapy Association; Phil Bunning and James Haggie, NAMI Kentucky; Karen Ricci, Counsel on Developmental Disabilities; Patty Dempsey, The Arc of Kentucky; Bill Doll, Kentucky Medical Association; Tonya Watts, Opportunity for Work and Learning; and Mary Hass, Brain Injury Association of Kentucky.
Guest Legislator: Representative Mike Denham.
LRC Staff: Miranda Deaton, Ben Payne, Jonathan Scott, Sarah Kidder, Gina Rigsby, and Cindy Smith.
Minutes
A motion to approve the minutes of the July 15, 2015 meeting was made by Senator Adams, seconded by Representative Burch, and approved by voice vote.
Legislative Hearing on Executive Reorganization Order 2015-397 Relating to the Advisory Council on Autism
The executive order establishes the Advisory Council on Autism Spectrum Disorders as an organizational unit and administrative body attached to the Cabinet or Health and Family Services. Beth Jurek, Executive Director, Office of Policy and Budget, Cabinet for Health and Family Services, was present for questions. A motion to accept Executive Reorganization 2015-397 was made by Senator J. Carroll, seconded by Senator Wise, and accepted by voice vote.
Court-Ordered Outpatient Treatment – Tim’s Law
Sheila A. Schuster, Ph.D., Psychologist, Executive Director, Kentucky Mental Health Coalition, stated that Tim’s law would help the young people who are diagnosed with serious brain diseases today receive the treatment that could save their lives and give them a good quality of life. If enacted during the 2016 Regular Session, Tim’s Law (BR 14) would strengthen KRS 202A.081 which permits individuals with brain diseases or severe mental illness involuntarily committed to the hospital to be discharged on the condition that they agree to and comply with court-ordered or assisted outpatient treatment (AOT). In 2015, the Substance Abuse and Mental Health Services Administration (SAMHSA) listed AOT as an evidence-based program and added it to the National Registry of Evidence-Based Programs and Practices (NREPP). The law would also create a new procedure for a narrowly-defined number of individuals to access outpatient treatment under a court order without having to again be involuntarily committed. Tim’s law would be funded with 100 percent state funds.
Chris Whittington, Consumer, Peer Support Specialist, Participation Station, Lexington, stated that he works at Eastern State Hospital. He was diagnosed with depression then bi-polar disorder then schizophrenia. He had to find the proper medications to help treat his illness. He is very grateful for all the support he was given by family and friends. He stated that it is meaningful to help others struggling with mental illnesses. Tim’s law would provide support, access, and care.
Maggie Krueger, Family Member, President, NAMI Somerset, stated that all mental illnesses are treatable. Approximately 80 percent of individuals with a mental illness function through efforts of their families. No one chooses to live with a mental health illness. Most people with a mental health illness do not believe they have a problem. There is no way to know when someone could have a mental breakdown. A large majority of society does not understand mental health issues.
In response to a comment by Senator Harper Angel, Dr. Schuster stated that more jails have people with mental health issues than treatment facilities.
Representative Burch stated that he and others have worked for four years trying to get Tim’s law enacted.
Senator Carroll stated how proud he was of the efforts Mr. Reynolds made to change his life and now helps others with the same problems he has faced.
Representative Wuchner stated that most families have someone with a mental health illness. Victims of mental health illness never know when an episode will occur.
ABLE Act
MaryLee Underwood, JD, BSW, Executive Director, Commonwealth Council on Developmental Disabilities, stated that the Stephen Beck, Jr., Achieving a Better Life Experience (ABLE) Act was signed into law on December 19, 2014. The law creates a new Section in the Internal Revenue Code 529A establishing new tax-favored qualified ABLE savings account programs. The ABLE Program accounts are intended to be easy to open and available in any state, although each state will need to enact legislation before the federal law applies. Assets in an ABLE account and distributions from the account for qualifying expenses would be disregarded or receive special treatment when determining the beneficiary’s eligibility for most federal means-tested such as Medicaid, Supplemental Security income (SSI), and other important federal benefits for people with disabilities. Without these accounts, many people with disabilities have very limited avenues to save and allow for further independence. Contributions to the ABLE accounts are made with post-tax dollars and distributions are tax exempt if used for approved purposes.
To be eligible for the ABLE accounts, an individual has to be disabled before the age of 26 years and have been determined to meet disability requirements for SSI or Social Security disability benefits in Title XVI or Title II of the Social Security Act. Qualified expenses include education, housing, transportation, employment training and support, assistive technology, health and wellness, administrative support, burial expenses, and legal fees. Assets remaining in the account when a beneficiary dies will be used to reimburse the state for Medicaid payments made on behalf of the beneficiary after the creation of the ABLE account.
Since 2014, twenty-eight states have enacted ABLE account legislation. The program would be housed in the Kentucky State Treasury who can contract for administration of the program or contract with another state.
Lynn Braker, mother of three-year old with Down Syndrome, stated that she has owned a staffing agency for 21 years. Approximately 160 companies she represents are willing to hire individuals with disabilities.
State Treasurer Todd Hollenbach stated that he is in full support of the legislation, and agrees that the program should be housed within the Kentucky State Treasury.
Representative Mike Denham, co-sponsor of the legislation, stated that there is a real need to enhance the quality of life for individuals with disabilities.
Heuser Hearing and Language Academy
Brett Bachmann, CEO, and Debbie Woods, Education Director, Heuser Hearing and Language Academy (HHLA), stated that Heuser works with Kentucky’s First Steps program to provide early intervention as soon as a child is diagnosed with hearing loss. Each classroom has state-of-the art technology, SMART board technology, computers, and iPads. In 2001, Heuser Hearing Institute established clinic services to serve patients from birth to life. The services span from vestibular to hearing amplification. Children are taught by a Master’s Level Deaf Educator. Art therapy is taught every day, music therapy twice a week, and the academy partners with the Louisville Orchestra.
Deafness is the most costly individual disability in terms of special education costs, averaging $25,000 per child per year, compared to $5,100 for a normal hearing child. Approximately two to three out of every 1,000 children in the United States are born with a detectable level of hearing loss in one or both ears making it the most common birth defect. Deaf and hard-of-hearing infants enrolled in appropriate early intervention services by six months of age are likely to have normal language and cognitive development. Kentucky’s Early Hearing Detection and Intervention program identifies the children with hearing loss at birth and remain in the academy’s program through kindergarten. The children that graduate are primarily oral and few require sign language due to intense intervention services.
Approximately 36 million American adults report some degree of hearing loss. Approximately 26 million Americans between 20 and 69 experience hearing loss due to exposure to loud sounds, noise at work, or leisure activities. Heuser now has three non-profit hearing service centers working with patients to improve overall quality of life regarding hearing and balance. Heuser provides health services for up to 7,000 patients annually. According to the results of a study conducted by researchers from Johns Hopkins and the National Institute, although the brain becomes smaller with age, the shrinkage seems to be fast-tracked in older adults with hearing loss. The consequences associated with hearing loss include increased risk of dementia, falls, hospitalizations, and diminished physical and mental health overall. Medicare spending for people age 65 or older with Alzheimer’s and other dementias is three times higher than for seniors without dementia. Medicaid payments are 19 times higher. Heuser would like to team up with Kentucky to pilot a Service for Hearing Program that would provide hearing amplification for seniors that would treat hearing loss.
In response to a question by Senator J. Carroll, Mr. Bachmann stated that during an ear examination, a physician would notice if a build-up of wax is causing any hearing problems.
Genetic Counseling
Kathryn Warren, MS, CGC, and Pamela Brock, MS, CGC, Clinical Genetics Unit, Weisskopf Center, University of Louisville School of Medicine, stated that genetic counselors are healthcare providers with significant training and expertise in molecular biology, medical genetics, and psychosocial counseling obtained through a two-year Master’s level program. National accreditation of genetic counselors is administered by the American Board of Genetic Counseling. According to the National Society of Genetic Counselors 2014 Professional Status Survey, there has been a 75 percent increase of certified genetic counselors since 2014. There are 20 genetic counselors in Kentucky working at universities, hospitals, laboratories, and non-profit and government entities. The goals of the licensure of genetic counselors are to protect the public and regulate the profession and improve access to genetic counselors.
The proposed legislation would allow for genetic counselors in Kentucky to be licensed. The goals of the bill are to ensure that healthcare providers presenting themselves as genetic counselors have the training and certification to do so, to allow for genetic counselors to become credentialed and bill independently for services using the existing genetic counseling CPT code, and expand access to quality counseling services for residents of Kentucky. Currently in Kentucky there is no law addressing licensure for genetic counselors. There be minimal cost to the state medical board to license genetic counselors since related costs will be covered by license fees. No additional testing will be required for licensure and the genetic counselor would provide proof of national certification in the application process. Medicaid would save money, because genetic counselor charges are likely to be less than the physician charges for the same service.
In response to questions by Representative Owens, Ms. Brock stated that genetic counselors are required to have a two-year Master’s degree in genetic counseling. Genetic counselors are part of the School of Medicine at a university. Approximately 95 percent of patients are doctor referrals. Ms. Warren stated that it depends on the type of insurance of a patient.
In response to questions by Representative Marzian, Ms. Brock stated that the new board would be under the Kentucky Board of Medical Licensure. Administrative costs would be covered by administrative fees.
In response to questions by Senator Higdon, Ms. Brock stated that the University of Louisville uses the CPT code for genetic counselors seeing patients with doctors. It would be cheaper to bill for genetic counseling services rather than being billed by a physician. Genetic counselors cannot bill Medicaid for services. Dana Mayton, University of Louisville, stated that genetic counselors would be able to bill Medicaid if accredited by a national accreditation board.
In response to a question by Representative Benvenuti, Ms. Brock stated that most genetic counseling visits are time based. The CPT code for a visit to a genetic counselor is usually $100.
Home and Community Based Waiver Changes – Adult Day Health
Leslie Hoffmann, Behavioral Health Policy Advisor and Director Division of Community Alternatives, Cabinet for Health and Family Services, stated that since its inception in 1965, Medicaid has provided comprehensive long-term care in institutional settings only. The Centers for Medicare and Medicaid Services requires a state to ensure the same level of care in the community as provided in an institutional setting. The reimbursement rate for Kentucky is 70 percent from the federal government and 30 percent from the state. There is a 50/50 reimbursement rate for administrative costs.
The 1915(c) Home and Community Based Services (HCBS) waivers are one of many options available to states to allow the provision of long-term care services in home and community based settings under the Medicaid program. Kentucky HCBS waivers include Acquired Brain Injury (ABI), Acquired Brain Injury-Long Term Care (ABI-LTC), Home and Community Based (HCB), Michelle P. (MPW), Model II (MIIW), and Supports for Community Living (SCL). HCBS waivers serve various targeted populations, including the elderly and those with intellectual disabilities. There is an important distinction between HCBS waivers and the HCB waiver. The HCB waiver is one of the HCBS waivers. The HCB waiver provides services and supports to elderly people or children and adults with disabilities to help them remain in or return to their homes.
The CMS implemented new regulations for Medicaid’s 1915(c) HCBS waivers on March 17, 2014. Key elements of the rule include person-centered service plan, conflict-free case management, person-centered planning, and provider settings. Case managers have access and the ability to utilize the Medicaid Waiver Management Administrative (MWMA) Portal. Providers and individuals will be able to use the portal in December 2015. The HCB waiver renewal changes have been submitted but not approved by the CMS. The changes included in the renewal will become effective as soon as the CMS approves the waiver application.
While some parts of the rule require immediate implementation, the CMS allows states to implement the setting requirements over five years. The Michelle P transition plan was submitted August 28, 2014. On December 19, 2014 the statewide transition plan was submitted, and Kentucky must be compliant with all setting rules by March 17, 2019.
Debbie Anderson, Commissioner, Department for Aging and Independent Living (DAIL), Cabinet for Health and Family Services, stated that the Department for Medicaid Services (DMS) and DAIL made significant changes to improve the HCB waiver program through a renewal to CMS. The Department for Medicaid Services (DMS) contracted with DAIL to be the new operating agency for the HCB waiver. DAIL will oversee the daily operations, provide technical assistance, and monitor providers on behalf of DMS. Participant assessments to determine level of care, currently conducted by providers, will now be independent from other services provided and conducted by DAIL. Additional providers, including the Centers for Independent Living and Area Agencies on Aging and Independent Living have been included as eligible HCB waiver providers. Providers can serve beyond the bounds of their Certificate of Need (CON) area. In order to assure that participants could have the necessary accommodations, the limit for environmental modifications has now been increased to $2,500 per year to better serve the needs of the HCB waiver participants and keep them out of nursing facilities. New services have been added to the waiver, including Home Delivered Meals and Personal Emergency Response Systems (PERS) to meet unfilled needs in the HCB waiver. Services are now more flexible, including changes to Attendant Care that allow providers to assist participants with multiple needs, clarifying changes to the definition of respite care and redefining coordination services in Participant Directed Services. Some rates have increased while others have stayed the same or decreased in order to maintain budget neutrality. The 30 hours per week for adult day health care (ADHC) that allow adult working children more flexibility to care for loved ones has been increased to 50 hours per week. A Kentucky emergency administrative regulation will be filed and become effective as soon as CMS approves the waiver.
ADHC providers will be impacted by the implementation of the HCBS final rules, MWMA portal, and the HCB waiver program changes that include conflict-free case management, HCBS setting rules, provider expansion, rate changes, ADHC hours, and physical, occupational, and speech therapies (PT/OT/ST). Physical, occupational, and speech therapies will now be provided through the State Health Plan.
In response to questions by Senator Adams, Lynne Flynn, Policy Advisor, Commissioner’s Office, Department for Medicaid Services, Cabinet for Health and Family Services, stated that in March 2014, the CMS adopted new rules for HCB waiver services. Kentucky has until March 17, 2019 to come into compliance with the new federal HCBS waivers services. On December 19, 2014, Kentucky submitted a transition plan that outlined how the state would come into compliance. The plan is still pending approval by the CMS. The four basic areas are person-centered service plan that states that the needs identified through assessment, as well as the individual’s strengths, preferences, identified goals, and desired outcomes; conflict-free case management states that providers of HCBS for the individual must not provide case management or develop the person-centered service plan, unless the provider is the only willing and qualified provider within 30 miles of the patient; person-centered planning states that the individual leads the process to the maximum extent possible and is provided information and support to make informed choices regarding his or her services as well as providers; and provider settings states the setting is integrated in and supports full access of individuals receiving HCBS to the greater community, giving the individual initiative and independence in making life choices. The HCBS federal rules define settings that cannot be HCB and settings that are presumed not to be HCB. This rule will become rules will become effective in 2019 through a Kentucky administrative regulation.
Kentucky cannot file a waiver of the federal HCB federal rules. Home and community-based settings do not include a nursing facility, an institution for mental diseases, an intermediate care facility for individuals with intellectual disabilities, or a hospital. Settings assumed not to be HCB include any other locations that have qualities of an institutional setting, any setting that is located in a building that is also a publicly or privately operated facility that provides inpatient institutional treatment, any setting in a building on the grounds of, or immediately adjacent to, a public institution, or any other setting that has the effect of isolating individuals receiving Medicaid HCBS from the broader community of individuals not receiving Medicaid HCBS. If a setting is presumed not to be HCB, the state may present evidence to the CMS that states it is an appropriate waiver setting, then the CMS will make its decision.
The HCB setting requirements for all waiver HCB settings and residential specific settings are that an individual is integrated in and has full access to the greater community; an individual selected both the setting (location) and provider; an individual has rights of privacy, dignity, and respect, and freedom from coercion and restraint; an individual has autonomy and independence in making life choices, where possible; and an individual is provided choice regarding services and supports and who can provide the services and supports.
Provider-owned residential setting requirements are that an individual has a legally enforceable agreement documenting the eviction and appeals process; an individual has privacy in their living unit; an individual has freedom to control his or her own schedule and activities including access to food; an individual is able to have visitors of their choosing at any time; the setting is physically accessible to the individual; and any modification of the rules, except physical accessibility must be supported by a specific assessed need and justified in the POC plan.
Adult day health waiver services will continue to be available to waiver members through the Medicaid State Plan.
In response to questions by Representative Moore, Commissioner Anderson stated that the cost per year per person for the HCB waiver is approximately $16,000. The HCB waiver services are more for personal care assistance rather than skilled nursing. Ms. Flynn stated that HCB services are less expensive than nursing facility care. If a family member has been taking care of another family as a natural support and not receiving HCB waiver services, they cannot receive those same services under the new HCB waiver.
In response to a question by Representative Marzian, Commissioner Anderson stated that waiver services cannot be provided for identical services provided in the State Health Plan (SHP). The occupational, physical, and speech therapies are currently included in the SHP. The cabinet is working with the CMS on the transition plan. HCB waiver recipients will not lose occupational or physical therapies during the transition period.
In response to questions by Senator Harper Angel, Ms. Flynn stated that there is a waiver option to allow extended SHP services for the same service to include more visits than the hard limits as allowed in the SHP. Kentucky does not have hard limits for therapies within its SHP. The CMS has said that the extended SHP services is not an option for Kentucky. Director Hoffman stated that the cabinet has asked the CMS to provide official documentation of this ruling. The CMS is treating this as a formal Request for Information, and it may take up to 90 days to complete the request. The current SCL regulations being done for the renewal will not become effective until January 2016. The HCB waiver regulation will be sent to the CMS in October 2015. The HCB waiver will go into effective as soon as it is approved by the CMS. The cabinet will operate under the old waiver regulations until the HCB waiver changes are approved by the CMS.
Representative Wuchner requested that the cabinet provide a flowchart of the HBC waiver services broken down by the old waiver rules, new rules, compliance plan, outcome, and timeframe.
Representative Benvenuti stated that Kentucky has a Medicaid program that is extremely rich in benefits extended to over a fourth of the population. Kentucky is now very subservient to the rules of the federal government because the state accepts so much federal money.
Mary Hass, Advocate of the Brain Injury Association of Kentucky (BIAK), stated that advocates were in the initial discussions about the HCB waiver services, but at no time was there a discussion to remove therapies. Advocates want more transparency from the cabinet.
Eric DeYoung, President, Kentucky Occupational Therapy Association, stated that the decision to finally expand access to occupational and physical therapies to individuals in the traditional Medicaid program would help to reduce money by reducing hospitalizations, preventing surgeries, and create a more functional and productive population. However, treating the traditional Medicaid population with an orthopedic injury is not as complex as treating someone with an intellectual or developmentally disabled condition. Services for individuals with an intellectual or developmentally disabled condition is currently covered in the HCB waiver. The complexity to change from a waiver program to a state-funded program is services currently provided by OT/PT/ST by the employer who does the primary billing of services to the waiver program. By transitioning from the waiver program to the state program, individual practitioners will have to be credentialed and go through the application process to obtain a Medicaid provider number to bill the Medicaid program. Sometimes it can take up to a year to get the Medicaid provider number. Once the provider number is obtained, a practitioner would have to apply for the MCO numbers. The transition period will affect 20,000 recipients because there are not enough practitioners becoming Medicaid-enrolled practitioners. The reimbursement for the waiver program is different and is more than under the state program that reimburses at a net rate lesser than the waiver program.
In response to questions by Representative Burch, Mr. DeYoung stated that the concern is more about access and having enough qualified practitioners to provide the services and bill for the services, not reimbursement. Providers have to be credentialed by Medicaid and go through the CON process in order to provide HBC waiver services.
Representative Benvenuti stated that the most vulnerable are going to struggle, because services are going to be cut and access limited.
Representative Burch stated that Kentucky does not have enough practitioners to provide services.
In response to a question by Representative Marzian, Ms. Hass stated that the 20,000 recipients were already in the HCB waiver and not included in the total of recipients included in the Medicaid expansion. The rule was changed to get therapies under the State Health Plan. It should not take long to become a Medicaid provider.
Beth Yurek, Executive Director, Office of Policy and Budget, stated that there is a need to recognize the differential between regular Medicaid and waivers. When the CMS changes the rules, Kentucky has to adjust.
KARES
Maryellen Mynear, Inspector General, Jennifer Mayes, Policy Analyst, Stephanie Brammer-Barnes, Regulation Coordinator, and Al Ervin, Project Manager, Cabinet for Health and Family Services, stated that the goal of the Kentucky National Background Check Program (NBCP) is to better protect Kentucky’s most vulnerable elderly populations through national fingerprint-based criminal background checks and abuse registry checks for new employees of long-term care facilities and similar healthcare providers. Name-based state-only background checks do not sufficiently protect the elderly from exposure to individuals with serious felony convictions. Current criminal background checks only provide history for crimes committed in Kentucky. Applicants are expected to voluntarily disclose prior out-of-state addresses so that a background check can be performed for that state. If an applicant has a criminal background in another state, he or she could deliberately omit that address. The Kentucky State Police is the liaison with federal agencies.
The Cabinet for Health and Family Services’ Office of Inspector General received a $3 million federal grant from the Centers for Medicare and Medicaid Services (CMS) on May 19, 2011 to design and implement the NBCP formally known as KARES. KARES began operation in May 2014 on a voluntary basis and now has 63 provider participants. Upon data entry of applicant’s information, the program performs automated database search of all listed registries and returns results before fingerprinting. The first fee for the first 36,000 fingerprint checks is $20. After the grant subsidy is fully used, the fingerprinting fee will not exceed actual costs. Fingerprint scanners are located through the state at Office for Employment Training (OET) Centers. A grant application for acquisition of additional scanner locations is pending with CMS.
Currently an employer must use a paper-based system to submit a potential employee’s name and other information to the state. The results generally take two to three weeks or longer. The NBCP would get the results within 48 to 72 hours. Currently, employers must perform a background check on each new hire, even when that person has already submitted to a background check while working for another employer within the same type of business. With enacted legislation, NBCP will provide a continuous assessment feature which notifies an employer if a fingerprinted employee is later convicted of a disqualifying crime. If a new employee was previously fingerprinted and his or her criminal history was reviewed by NBCP, there is no need to re-fingerprint the person.
Adjournment
There being no further business, the meeting was adjourned at 4:06 p.m.