Call to Order and Roll Call
The first meeting of the Interim Joint Committee on Health and Welfare was held on Wednesday, June 15, 2016, at 10:00 a.m., in Room 131 of the Capitol Annex. Senator Julie Raque Adams, Co-Chair, called the meeting to order at 10:05 a.m., and the secretary called the roll.
Present were:
Members: Senator Julie Raque Adams, Co-Chair; Representative Tom Burch, Co-Chair; Senators Ralph Alvarado, Tom Buford, Danny Carroll, Julian M. Carroll, David P. Givens, Denise Harper Angel, Alice Forgy Kerr, Reginald Thomas, and Max Wise; Representatives Robert Benvenuti III, 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: Sheila Schuster, Ph.D. and Executive Director, Kentucky Mental Health Coalition; Michael Gray, Advocacy Coordinator, National Alliance on Mental Illness Kentucky; Steve Shannon, Executive Director, Kentucky Association of Regional Programs; Kelly Gunning, Parent and Director of Advocacy, National Alliance on Mental Illness Lexington; Valerie Mudd, Consumer Programs Coordinator, National Alliance on Mental Illness Lexington; Rebecca Asher, Psychologist and Forensic Evaluator, Eastern State Hospital; Kim Wilkie, District Judge, Fayette County Mental Health Court; Rodney Ballard, Commissioner, Department of Corrections, Justice and Public Safety Cabinet; Wendy Morris, Acting Commissioner, Allen Brenzel, Clinical Director, Department for Behavioral Health, Developmental & Intellectual Disabilities, Cabinet for Health and Family Services; Jeff Edwards, Division Director, Kentucky Protection & Advocacy; Robin Rider-Osborne, Member, Kentucky Protection & Advocacy for Individuals with Mental Illness Advisory Council; Ed Monahan, Public Advocate, Department of Public Advocacy; Elizabeth McMahon, Division Chief, Louisville-Metro Public Defender’s Office; Elizabeth M. Caywood, MSW/CSW, Policy Analyst IV, Commissioner's Office, Department for Community Based Services, Cabinet for Health and Family Service; Phill Gunning, Jennifer Van Ort, Faye Morton, James Haggie, National Alliance on Mental Illness Lexington; Nathan Goldman, Kentucky Board of Nursing; Liz McKune, Passport Health Plan; Gwyn Hoskins; and Patti Page, Adanta Group.
LRC Staff: DeeAnn Wenk, Ben Payne, Jonathan Scott, Sarah Kidder, Becky Lancaster, and Gina Rigsby.
Legislative Hearing on the State Fiscal Year 2017 Social Services Block Grant
Elizabeth M. Caywood, MSW/CSW, Policy Analyst IV, Commissioner's Office, Department for Community Based Services, Cabinet for Health and Family Services, was present to answer questions. A motion to accept the block grant was made by Representative Burch, seconded by Senator Buford, and accepted by voice vote.
Consideration of Referred Administrative Regulations
The following administrative regulations were on the agenda for consideration: 201 KAR 20:240 – establishes fees by the Kentucky Board of Nursing for licensure, examination, renewal, reinstatement, and continuing education; and 201 KAR 23:070 – establishes the educational institutions approved by the board, the definitions relating to supervision, the content of a Clinical Social Work Supervision Contract, and the requirements for qualifying experience under supervision. A motion to accept the administrative regulations was made by Senator Buford, seconded by Representative Burch, and accepted by voice vote.
The Revolving Door for Serious Mental Health Conditions and Proposed Solutions
Sheila Schuster, Ph.D. and Executive Director, Kentucky Mental Health Coalition, testified that KRS 202A.081 sets out a mechanism which permits persons involuntarily committed to the hospital to be discharged on the condition that they agree to and comply with court-ordered community-based outpatient treatment. The discussion, study, debate, and angst around the revolving door problems for individuals with severe mental illness (SMI) have been active over the years, with various proposals put forth, but none put into effect. In the meantime, thousands of individuals rotate in and out of hospitalization, homelessness, incarceration, and sometimes, treatment. Legislation was filed to create a new Assisted Outpatient Treatment (AOT) procedure for a narrowly-defined number of individuals to access supported outpatient treatment under a court order without having to again be involuntarily committed or to enter treatment through the criminal justice system. House Bill 94 known as Tim’s Law was introduced during the 2016 Regular Session, stated that implementation of the pilot program in eight counties suggested by the Department for Public Advocacy (DPA) would be dependent on federal, state or local grants, bequests, and gifts. Some of the available grants would include payment for the cost of legal representation of the individual. The DPA had objections to the bill’s language that stated that the individuals identified for the pilot program would be done on the basis of predicting potentially harmful behavior. A compromise was offered to the DPA to have a pilot program with a maximum of 30 individuals involved in the new AOT process in the first year and a maximum of 60 additional individuals in the second year.
AOT has been designated on the basis of research and results by the Substance Abuse and Mental Health Services Administration (SAMHSA) as an evidence-based practice and currently more than 40 states have enacted some version of AOT. The goal of the legislation is to make sure individuals who are very ill and who are unable to recognize it, who spend much of their lives in the revolving door of hospitalization, homelessness, or incarceration are afforded a new opportunity to stay in treatment long enough to see the positive effects and the road to recovery. The legislation also provides that assisted, mandated, supervised course of treatment without having to again involuntarily commit the individual to the state psychiatric hospital and without their having to access treatment because they have committed a crime. Neither of these pathways should be the only access to treatment for those who do not recognize that they need it. The legislation is humane, cost-effective, and can keep people with severe mental illness out of the revolving door and lead them to treatment and recovery.
Michael Gray, Advocacy Coordinator, National Alliance on Mental Illness Kentucky, stated that there is a need for a new approach and change from what is currently being done. NAMI helps families who need help and support with family members who have a mental illness. NAMI is in full support of the AOT legislation. In 2000, Georgia enacted AOT laws similar to Tim’s law. Participants were motivated to change and finish the program. Twenty states nationwide have enacted laws similar to Tim’s Law.
Steve Shannon, Executive Director, Kentucky Association of Regional Programs (KARP), stated that KARP is in all 20 counties and services are available 24 hours a day, seven days a week. KARP is in full support of AOT. There is a fine line between violating someone’s civil liberties and making someone get who needs help get AOT services. The legislation cannot be too broad, but will make sure the people who need services receive the needed treatment. Involving individuals with mental health issues in the criminal system just adds another layer of problems that will hinder treatment. Mental health issues affects someone’s ability to get housing and employment. Other solutions than just AOT services would be to request a Medicaid waiver for individuals with severe mental illness, another waiver for supported employment, and a spend-down program to become Medicaid eligible. The Kentucky Commission on Services for Individuals with Mental Illness, Alcohol & Other Drug Abuse Disorders, Dual Diagnoses (2000 HB 843) the counterpart for the Commission on Services and Supports for Individuals with Mental Retardation and Other Developmental Disabilities (2000 HB 144) has not met in nine years.
In response to questions by Senator Buford, Mr. Shannon stated that the fiscal note for House Bill 94 was indeterminable. Legislators and interested parties met with the DPA and talked about starting a state pilot project that would be limited to 30 participants who would be represented by DPA. Kentucky would have been able to access federal funding if AOT legislation had been passed during the 2016 Regular Session.
Representative Owens stated that since the fiscal note was indeterminable about the cost of enacting AOT laws, the solution would be to look at the savings from keeping individuals out of jails and hospitals.
In response to questions by Senator Danny Carroll, Dr. Schuster stated that specific criteria would have to be met for an individual to be admitted for AOT services without a mental inquest warrant or going through the court. Ten well-known community professionals would be part of a review team to monitor these individuals. People need to stay in treatment long enough for recovery to work.
In response to questions by Representative Jenkins, Mr. Shannon questioned if state funds currently used for mental health issues could be used for an SMI waiver. The individuals that would receive AOT services would be covered by traditional Medicaid with a 70 percent federal and 30 percent state match.
Representative Burch stated that it is time to realize that most families have someone with mental health issues, and costs are incurred for these individuals whether it is through the correctional system or some other way.
Consumer Rights Perspective
Jeff Edwards, Division Director, Kentucky Protection & Advocacy (P&A), testified that P&A is an independent state agency that was designed by the Governor as the protection and advocacy agency for Kentucky. P&A works to promote and protect the legal rights of Kentuckians with disabilities through technical assistance, legally based advocacy, training and education. Services are client-directed and provided free of charge. P&A receives seven federal grants for the protection and advocacy for persons with developmental disabilities (PADD), individuals with mental illness (PAIMI), individual rights (PAIR), assistive technology (PAAT), beneficiaries of social security (PABSS), individuals with traumatic brain injury (PATBI), and voting access (PAVA).
People living in personal care homes have a desire to leave, but there are no other community options and community services. The available options were homeless shelters, the streets, jail, or boarding houses. The Interim Settlement Agreement first signed in August 2013, amended in October 2015, and extended though 2018 serves 675 people and created a regulation to provide up to 2, 200 people with SMI, that qualify for Medicaid and want to participate in the program, services.
Kentucky has civil commitment laws that establish criteria for determining when involuntary treatment is appropriate for individuals with severe mental illness who cannot seek care voluntarily. Kentucky’s laws allow for the use of court-ordered treatment in the community. Services and supports can be provided without deprivation of a person’s civil rights. Both children and adults with mental illness should be able to receive services in their own communities. It is problematic for an individual if they do not live in a county that provides services. Services and supports that are person centered and recovery oriented need to be offered.
Robin Rider-Osborne, Member, Kentucky Protection & Advocacy for Individuals with Mental Illness Advisory Council, stated that she was diagnosed with a mental health illness and was sexually abused by a counselor at age 15. She was discouraged from speaking about the abuse. She was not happy with some of the services she received. The state took custody of her daughter, and 15 years later, she still has not seen her daughter. No criminal investigation was every conducted on the doctor. P&A helped her after the state took her daughter. She was not happy with the community supports available for her.
Ed Monahan, Public Advocate, Department of Public Advocacy, intensive case management programs that rely on individual case managers constitute the most practical method of managing violence associated with mental illness in the community was implemented in Kentucky 20 years ago. Engagement with an individual is more effective than coercion. The mental health system is better suited to address the issue than the judicial system. Aggressive and intensive case management, comprehensive array of community support services, individual case managers with small caseloads and 24-hour availability, and strong linkages to agencies providing mental health services, substance abuse treatment, social services, and criminal justice agencies are keys to reducing the risk of violence by people with serious mental health issues. No changes to the statute are needed. Start with a modest pilot sooner rather than later using community mental health centers and reliable programs being coordinated by community leaders.
The responsibility of public defenders is to protect citizens against the overreach of government. Public defenders lower costly incarceration rates for counties and the state by assisting clients with addictions, help individuals navigate the mental health system, receive a fair process, and provide reliable and valid results based on facts. Public defenders represent over 155,000 clients in district court, circuit court, court of appeals and the Supreme Court. The DPA has 33 public defender trial offices statewide. Currently, 202A cases are heard almost exclusively in eight counties where mental health hospitals are located. New proceedings under HB 94 would occur in any of the 120 counties. Expansion of patient-agreed orders and the creation of court-ordered assist outpatient treatment leads to additional court proceedings. In addition to being present for court on all these occasions, the attorneys will have preparation time, including meeting with the client, in advance of each court appearance.
Elizabeth McMahon, Division Chief, Louisville-Metro Public Defender’s Office, stated that ACT teams are able to help people who agree to treatment.
In response to a question by Senator Thomas, Mr. Monahan stated that he supports assisting people outside of the court system.
In response to questions by Representative Moffett, Mr. Monahan stated that since 1997, intensive case management has been promoted by DPA. He agreed with advocates that lesser counties should receive services in the pilot program. The 30 participants have to fully agree to be in the pilot program.
In response to questions by Representative Burch, Mr. Monahan stated that he has not looked at Tim Morton’s personal case. DPA will encourage what is best for the client and respect people’s liberties. If House Bill 94 is enacted, it will cause more work for the DPA without more resources.
In response to a question by Senator Alvarado, Mr. Monahan stated that in New York individual counties had to appropriate what was needed for AOT services beyond the $30 million appropriation. There is a need to increase resources in a strategic, targeted way.
Representative Wuchner stated that it is difficult to walk this journey with a family member. The disease tells them that they are not sick and do not need to take medication. Some individuals need to be in a residential treatment setting.
Parent, Family, and Consumer Perspective
Valerie Mudd, Consumer Programs Coordinator, National Alliance on Mental Illness Lexington, stated that 20 years ago she was diagnosed with a mental health illness, and she started working with NAMI Lexington 10 years ago. Many people do not have help or do not accept help from family members. Sometimes someone with mental health issues need for someone to help make decisions for them. House Bill 94 provides for civil rights protection by providing treatment.
Kelly Gunning, Parent and Director of Advocacy, National Alliance on Mental Illness Lexington, stated that on January 4, 2016 her son brutally assaulted her and her husband, and she is now afraid of him. He was under the care of an ACT team. ACT teams only work for people who are willing to use them and are strictly voluntary. ACT teams are great when they work, but are not for everyone. He stopped taking his medications because he did not think he had a problem. Criteria in KRS Chapter 202A used by hospitals are very narrow. All a judge is required to do is ask someone is whether he or she is going to hurt himself or herself or someone else. The criteria for sending a person to jail are too wide. The DPA is already working with the people who need more restrictive services so HB 94 is not likely to cost more money. She questioned how much it is costing for her son to be incarcerated and what about his civil rights now that he is in jail and when he is released from jail.
Systems Perspective
Rebecca Asher, Psychologist and Forensic Evaluator, Eastern State Hospital, stated that she has worked with mental health issues across the state, and Tim’s law would be helpful. KRS Chapter 202A provisions do not work for everyone, because it does not give someone in denial about their illness long enough to stabilize and get help in the community, but works better for someone who is willing to help themselves.
Kim Wilkie, District Judge, Fayette County Mental Health Court, stated that he did not understand who could be against Tim’s law. The mental health court cannot accommodate everyone. The mental health court he presides over can only handle 23 cases and cannot accommodate violent cases. Currently, jails are still having to take care of individuals with mental health issues. The bottom line to fixing the problem is money.
In response to a question by Senator Adams, Judge Wilkie stated that he is in favor of Tim’s Law.
In response to a question by Senator Thomas, Judge Wilkie stated that a pilot program in Fayette County that accommodated 30 individuals would be better than nothing.
Rodney Ballard, Commissioner, Department of Corrections, Justice and Public Safety Cabinet, stated that jailers are not equipped to handle individuals with mental health issues. Once the person is released, they revert back to old ways.
Senator Adams stated that costs may go down in one area but go up in another.
Wendy Morris, Acting Commissioner, and Allen Brenzel, Clinical Director, Department for Behavioral Health, Developmental & Intellectual Disabilities, Cabinet for Health and Family Services, stated that evidence-based continuum of care is needed. In 2014, the state plan was amended that stated when deemed necessary, services are covered. Individuals need to meet specific criteria to receive ACT services. Outpatient services have to be in place or some will be hospitalized which will increase costs. Resources are needed in appropriate places.
Senator Kerr stated that legislators need to get on top of the issue and pass Tim’s law. Legislators find money for things that are not needed, and now it is time to find money for things that are needed.
Representative Burch stated that there is a need to start addressing mental health issues.
Adjournment
There being no further business, the meeting was adjourned at 12:42 p.m.