Call to Order and Roll Call
Thefourth meeting of the Interim Joint Committee on Health and Welfare was held on Wednesday, September 16, 2015, at 1:00 p.m., in Room 129 of the Capitol Annex. Senator Julie Raque Adams, Co-Chair, called the meeting to order at 1:07 p.m., and the secretary called the roll.
Members:Senator Julie Raque Adams, Co-Chair; Representative Tom Burch, Co-Chair; Senators Ralph Alvarado, Danny Carroll, Julian M. Carroll, David P. Givens, Jimmy Higdon, and Reginald Thomas; Representatives George Brown Jr., Bob M. DeWeese, Joni L. Jenkins, Mary Lou Marzian, Reginald Meeks, Phil Moffett, Tim Moore, Darryl T. Owens, Ruth Ann Palumbo, David Watkins, Russell Webber, Susan Westrom, and Addia Wuchner.
Guests: Mary Haynes, CEO, Nazareth Home; Buffy Gaither, MBA, Regional Administrator, and Joseph Stotts, Vice President of Clinical Services, Generations/Gaither's Group; Paula Schenk, Executive Director, and Nathan Goldman, General Counsel, Kentucky Board of Nursing; Rick Masters, Council for State Government (CSG); Maryellen Mynear, Inspector General, Office of the Inspector General, Cabinet for Health and Family Services; Adam Haley, Agertis Management; Betsy Johnson, President, Wayne Johnson, Janet Justice, and Robert Parry, Kentucky Association of Health Care Facilities; Laura Begin, Robert Murphy, Julie McKee, Department for Public Health, Cabinet for Health and Family Services; Tony Lobianco; Sarah Nicholson, Kentucky Hospital Association; Jennifer Dudinskie, Department for Aging and Independent Living, Cabinet for Health and Family Services; Vicki Bradley, Alan M. Wade, Danielle Duncan, Diane Garrett, Steve McKinley, Florence Roberts, and Jim Grady, Genesis Healthcare; Melissa Robbins and Monica Johnson, Middlesboro Nursing and Rehabilitation; Joe Okruhlica, Theresa Durham, Michelle Unsilil, Parkway Rehabilitation and Nursing Center; Michelle Jarboe, Williamsburg Health and Rehabilitation; Janna Partin, Barbourville Health and Rehabilitation; Doug and Creasa Reed Rigsby; Kim Nall and Tiffany Evans, Woodland Oaks Healthcare Facility; Tom Davis, Harriett Wallace, Sue Arnold, and Jeanette Powers, Golden Living; Coryuna Coler, Denise Collins, and Patricia Neace, Tanbark; Tara Bentley, PMD; Robert Flatt, Essex Nursing and Rehabilitation; Greg Wells, Wells Health Systems; and Marian Hayden, Cull & Hayden.
A motion to approve the minutes of the August 19, 2015 meeting was made by Representative Marzian, seconded by Representative Burch, and approved by voice vote.
Consideration of Referred Administrative Regulations
The following referred administrative regulations were on the agenda for consideration: 902 KAR 20:160 – establishes licensure requirements for the operation, services, and facility specifications of chemical dependency treatment programs, including programs which elect to provide outpatient behavioral health services for individuals with a substance use disorder or co-occurring disorder in which substance use disorder is the primary diagnosis; 902 KAR 20:320 – provides minimum licensure requirements regarding the operation of and services provided in Level I or Level II psychiatric residential treatment facilities, including those facilities which elect to provide outpatient behavioral health services (deferred by the cabinet before the meeting); 902 KAR 115:010 – establishes the requirements for the water fluoridation programs for the protection of dental health; and 910 KAR 1:270 – establishes the Hart-Supported Living grant program application and award procedures, the standards to monitor the quality of service delivery, and the appellate procedure. A motion to approve the referred administrative regulations was made by Representative Marzian, seconded by Representative Palumbo, and approved by voice vote.
Nursing Home Survey Process
Betsy Johnson, President, Kentucky Association of Health Care Facilities (KAHCF), stated the association represents 230 long-term care providers throughout the Commonwealth. Many are independent owners or multi-state corporations, profit and non-profit.
Mary Haynes, CEO, Nazareth Home, stated that currently there are 288 nursing facilities throughout the Commonwealth that employee 25,000 employees that serve approximately 23,000 residents. Nursing facilities generate over $200 million in state and local taxes. There are approximately 180 regulatory standards that certified Medicare and Medicaid facilities must meet. The Centers for Medicare and Medicaid Services (CMS) enters into an agreement with state governments to conduct inspections or surveys of nursing facilities. Each nursing facility has an unannounced inspection on a 12-month average. If an inspection team finds that a nursing facility fails to meet a specific regulatory standard, a deficiency is issued to the facility. Kentucky has 20 percent fewer deficiencies cited per facility compared to the national average. Each deficiency has a scope and severity rating. Scope refers to how many people are affected, and severity refers to the seriousness of the issue. The highest level of severity is Immediate Jeopardy (IJ). IJ is defined as a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. Kentucky has over 500 percent more IJs cited per facility compared to the national average. A Civil Money Penalty (CMP) is assessed for each IJ cited. CMPs are assessed per day. For IJs, the amount can be as high as $10,000 per day. Kentucky has 11.5 percent of all CMP fines in the nation but only has 1.6 percent of all nursing facilities in the country. Kentucky has over 500 percent more CMPs assessed per facility compared to the national average.
In response to questions by Representative Owens, Ms. Haynes stated that an immediate jeopardy is defined as a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident. The survey agency would be the entity to explain how a nursing home could have numerous severe deficiencies that cause imminent danger to residents without being cited or closed.
In response to questions by Senator Givens, Ms. Haynes stated that the survey agency is a federal agency that is responsible for the review of participation agreements annually. Ms. Johnson stated that the Office of Inspector General in the Cabinet for Health and Family Services employs surveyors who file reports with the federal agency in Atlanta that makes the final determination for complaints in Region 4. Region 4 consists of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee. Ms. Haynes stated that the variance performance needs to be explained. There is a need to understand why the performance of an organization has a variance from the normal.
In response to questions by Senator Julian Carroll, Ms. Haynes stated that $200 million in state and local taxes are paid by nursing facilities. The Centers for Medicare and Medicaid Services (CMS) writes the national standards that all facilities must follow. The Operations Manual provided by CMS that lists definitions that guide how interpretation of deficient practices are to be aligned. There needs to be more collaboration and education with CMS to have a more unified version of national standards. Senator Carroll requested that information be given to the committee about the problems with interpretation of the national standards. Ms. Johnson said that KAHCF members who are multistate corporations have said that there is a problem in Kentucky.
In response to a question by Representative Jenkins, Ms. Johnson stated that the western district has a higher number of IJs. The survey process is extremely subjective. Twenty-four states have a quality improvement survey (QIS) process that is more technology driven rather than individual biases. Kentucky does not have a QIS process.
In response to questions by Senator Alvarado, Ms. Haynes stated that the CMS June 2015 Certification and Survey Provider Enhanced Report (CASPER) provided information about nursing facility staffing ratios. The May 2015 CMS Nursing Home Compare website shows the number of deficiencies per nursing facility. Senator Alvarado requested that the reports be provided to the committee. Ms. Johnson stated that state surveyors are not monetarily rewarded to find deficiencies in facilities. Federal standards require a facility to report anything a resident or family member says is missing no matter what the item costs. If the missing item is not reported to the state survey agency, the facility can be fined. Senator Alvarado stated that long-term care costs for facilities and residents could be reduced by decreasing regulatory burdens.
In response to questions by Senator Danny Carroll, Ms. Haynes stated that if facilities follow the state operations manual, there is less opportunity for a subjective opinion about the meaning of the regulation. Only major deficiencies should have to be reported. Ms. Johnson stated that Kentucky pays more in civil litigation compared to other states. Senator Carroll asked that statistics on civil lawsuits compared to other states be given to the committee. Ms. Johnson stated that she would provide a copy of the report when it becomes available. Ms. Haynes stated that the an immediate jeopardy deficiency a facility receives might be for only one person even though everything else is okay for the rest of the residents. Other states use education strategies to avoid negativity and unnecessary investigations when nothing is really wrong.
In response to a question by Senator Higdon, Ms. Johnson stated that fines assessed to facilities go into a fund overseen by the CMS. Currently, Kentucky has been assessed over $20 million in fines, but cannot access the funds. She questioned why assess fines if the money does not benefit Kentucky. Ms. Haynes stated that in Kentucky staffing and quality measures are in balance with the nation, but the performance of the survey agency is out of balance with the nation. The survey agency needs to explain the variance that exists in when 12 percent of the national fines were assessed to Kentucky, when Kentucky only has 2 percent of the beds.
In response to a question by Representative Westrom, Ms. Haynes stated that compliance officers of corporations that belong to KAHCF reported that when the same training, practices, and resources are applied in Kentucky that are applied in contiguous states, the outcome of the survey process is radically different.
In response to a question by Representative Wuchner, Ms. Haynes stated that there is a benefit to having consistent standards followed in all the states. The goal of changing the survey process nationally was to move it away from a subjective process. CMS wants each state to move to a survey process that weighs heavily on outcomes date. In the QIS process, the satisfaction of staff, residents, and families are important factors in quality measures.
Representative Brown stated that discussions need to take place to determine the reasons why Kentucky has more CMPs per facility that other states.
Maryellen Mynear, Inspector General, Office of Inspector General, Cabinet for Health and Family Services, stated that the challenge is to fulfill the mission of good resident care and protection of citizens in a way that does not drive providers out of Kentucky. The CMS makes the final determination as to the level of deficiency citation. The CMS, not the Kentucky OIG, determines the daily CMP that is assessed. The Kentucky OIG does not receive or keep any portion of the penalties. The full amount is placed and held in a restricted account that is reported quarterly to the CMS. The CMP funds assessed to facilities are available through a grant process for projects that demonstrate a direct benefit to the quality of life for residents. During state fiscal year 2014-2015, Medicaid reimbursed facilities $944,876,725.
Of the eight states in Region 4, Kentucky ranks fifth in the total number of facilities. The Five-Star Quality Rating System is based upon health inspections, staffing, and quality measures. According to the CMS Nursing Home Compare, September 2015, Kentucky has the largest percentage of facilities at 42.4 percent that rank below average by the CMS. Averaging the number of jeopardies per facility by dividing among all facilities is misleading, because one significantly deficient facility may receive multiple jeopardy citations.
Surveys are conducted when someone files a complaint about a facility not just on an annual basis. There is a lot of grey area on what can cause harm. The OIG enforces laws and regulations from the CMS. The CMS gives Kentucky funds for collaborative training between providers and survey teams. There needs to be better communication between the OIG and providers.
Senator Adams requested that the committee be provided reports that include statistics given during the testimony of the KAHCF and the OIG. Ms. Mynear provided the facts and figures quoted during her testimony.
Senator Adams questioned why there is such a discrepancy in the number of IJs per facility in Kentucky compared to Region 4. Kentucky has .82 IJs per facility and is fined $24,523 while the average for Region 4 is .26 IJs per facility and $8,855 in fines.
Inspector General Mynear stated that she would ask CMS if Kentucky could submit a waiver to use some of the $22 million Kentucky has been fined to move the QIS process forward. The funds have to be used to directly benefit the quality of life for residents.
Inspector General Mynear stated that she would compile data listing the CMPs by group and the reasons for the penalties and provide it to the committee.
Senator Julian Carroll asked information about the ability to set a monetary value on a complaint to determine if there merit for a facility to have to report the complaint.
Inspector General Mynear stated that the surveyor cannot inspect a facility more than once a year unless a new complaint has been filed or there is an open deficiency that requires a facility to be reinspected.
Mental Health Treatment Homes
Joseph Stotts, Vice President of Clinical Services, Generations/Gaither's Group, stated that the levels of care in their facility are adult residential treatment facility, enhanced supportive living, and supportive housing. Individuals are placed in the most appropriate level of housing depending on the severity of their mental health symptoms. Depending on the response to treatment, service recipients may step up or step down in the level of care required. Recipients are involved in the decision making process of treatment, follow-up care, and the transition from one level of care that empowers them in the recovery process. Over the last ten years, 40 percent of housing recipients are able to successfully reintegrate into society, and another 40 percent are able to live successfully in a group home setting without repeat psychiatric hospitalization or emergency room visits.
The high quality of services provided along with the qualification and experience of the individuals providing the treatment combine to form a mental health treatment. Services provided are housing, medication management and education, participation in activities, assisted daily living, skills development, formation of health social supports, counseling on finances and budgeting, transportation, provision of a supportive environment, and relearning positive coping skills.
There is a growing need for mental health services in Kentucky that can function as an alternative to the growing costs and recidivism associated with incarceration and hospitalization. Over the last 15 years, Generations has provided an alternative placement for individuals with severe and persistent mental illness (SPMI) in Tennessee who have lost psychiatric hospital placement due to the reduction of long-term beds in state institutions.
Over the past decade, the Tennessee Department of Mental Health and Substance Abuse Services (TDMHSAS) has been systematically reducing the state’s psychiatric hospital bed capacity. Since 2008, Generations has increased its community based housing bed capacity in Tennessee from 86 beds to 341 beds. Many of the individuals transitioned from state hospitals to Generations’ houses had been hospitalized for over 20 years.
In Kentucky, Generations treatment housing would significantly reduce numerous emergency room visits for psychiatric and substance abuse problems. Incarceration and hospitalization is not the answer for treating mental health and substance abuse issues. A case manager for crisis intervention for behavioral health emergencies is on call 24 hours per day. The average staff ratio is 2 to 8 per day.
Generations’ Outpatient Mental Health Center would increase access and availability to mental health services in rural communities in Kentucky. Services can serve as a deterrent for the ongoing substance abuse issues in the Commonwealth that contribute significantly to the development of SPMI. The average cost of psychiatric inpatient stay in Kentucky is approximately $5,700 for an average length of stay of 4 to 14 days. The same length of stay at Generations Treatment Housing will average from $340 to $1,250. Lack of follow-up care or access to follow-up care creates an increased cost for mental health services for Kentucky’s citizens.
In response to a question by Senator Adams, Mr. Stotts stated that the level of care (adult residential, enhanced housing, or supportive housing) would determine the savings to the Medicaid program.
In response to questions by Representative Burch, Ms. Stotts stated that treatment housing is a new type of service, and not a lot of data is available on patient outcomes for this type of service. The rate of turnover of direct care staff is higher than for providers. Buffy Gaither, MBA, Regional Administrator, Generations/ Gaither's Group, stated that Generations is proposing a pilot program in Bell County.
In response to a question by Senator Danny Carroll, Mr. Stotts stated that Generations would only be in competition with community mental health centers if it opened its own mental health center and provided some of the same types of services.
In response to Senator Alvarado, Ms. Gaither stated that Generations provides a more integrated care in the home setting. Currently there are no administrative regulations for this level of care in Kentucky. A request for licensure would come after administrative regulations are in place.
Nurse Licensure Compact
Representative Wuchner stated that she is working with the Kentucky Board of Nursing on legislation that would update the Nurse Licensure Compact (NLC). There needs to be uniformity for participating states in the compact.
Paula Schenk, Executive Director, Kentucky Board of Nursing (KBN), stated that in 2007, Kentucky implemented the Nurse Licensure Compact. The current NLC gives multistate privilege unless limited to single state. An applicant must meet home state requirements. A Nurse Licensure Compact Administrators (NLCA) is a governing body. A NLCA may develop regulations which must be adopted by each member state through each state’s own procedure. A party state may submit issues in dispute to an arbitration panel. The new compact gives license privileges for multistates or a single state. An applicant for multistate must meet uniform licensure requirements established by the NLC. An applicant for single state license must meet the home state’s requirements. An Interstate Commission of Nurse Licensure Compact Administrators is established as the government body. The Commission is given rule making authority that is legally binding on all member states. The procedural requirements in the NLC are based on the National Model Administrative Procedures Act. The dispute resolution process covers both disputes between states and disputes between a state and the Commission. Telenursing/telehealth is rapidly becoming a standard of care and is integrating into the transformation of the United State healthcare system. Other healthcare professions have introduced or are developing interstate licensure compacts.
Rick Masters, Special Counsel for National Center for Interstate Compacts, Council for State Government (CSG) stated that Kentucky has been in a NLC since 2007. Issues that other states have in joining the NLC are that they do not have provisions to conduct criminal background checks and do not have uniform licensure requirements. States need to be specific about who may practice on a multistate privilege under a compact. The compact clarifies how rules will be made and how compact provisions will be enforced.
In response to questions by Senator Givens, Mr. Masters stated that currently the Nurse Licensure Compact Administrators is the governing body and has the authority to make rules. The new compact just streamlines the process. Currently the NLA can develop uniform rules that have to be adopted by each member state by administrative process. For the past 15 years the NLA has not been able to promulgate a single rule, because each member state has to take it through its own administrative process. The newly established Interstate Commission of Nurse Licensure Compact Administrators (commission) does not have the authority to change the scope of practice for nurses. The compact allows narrow, procedural, administrative rulemaking for the process in which the multistate privilege transfers from one state to another. Director Schenk stated that there needs to be uniformity about how quickly a state has to submit discipline data to the National Discipline Database. The compact only gives the commission authority to make rules not to enact legislation.
Representative Wuchner stated that nothing in the compact would supersede any current or future state law. Mr. Masters stated that the compact is a contractual agreement between member states and cannot be amended in a way that substantially changes the operational nature of the contract.
In response to a question by Senator Higdon, Director Schenk stated that the KBN recently amended an administrative regulation giving the KBN the ability to implement a post-licensure biometric criminal background check. The KBN wants the authority to conduct post-licensure renewal random audits of any nurse who has renewed his or her license to undergo a criminal background check. Mr. Goldman stated that since 2000, Kentucky statutes have required a nurse to report a felony or misdemeanor conviction to the KBN within 90 days. The new compact would allow this requirement for all member states. Representative Wuchner stated that some nurses who hold a long-time license are upset about having to have another background check. Director Schenk stated that the only way for the KBN to learn about criminal convictions that have not been reported is when someone files a complaint against a licensed nurse and it becomes part of the investigation. Only a state-based criminal background check is conducted on the nurse. Some nurses still do not self report criminal convictions, either because they do not know they are required to do so or they just do not want to. The cost of a FBI criminal background check is $14.75.
In response to a question by Representative Wuchner, Mr. Goldman stated that the even if Kentucky chooses not to become part of the new compact, the old compact would stay into effective until the last state drops out.
There being no further business, the meeting was adjourned at 3:33 p.m.