Call to Order and Roll Call
The 2nd meeting of the Interim Joint Committee on Licensing and Occupations was held on Friday, July 13, 2012, at 10:00 AM, in Room 129 of the Capitol Annex. Senator John Schickel, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator John Schickel, Co-Chair; Representative Dennis Keene, Co-Chair; Senators Tom Buford, Julian M. Carroll, Denise Harper Angel, Paul Hornback, Dan "Malano" Seum, Kathy W. Stein, Damon Thayer, and Robin L. Webb; Representatives Larry Clark, David Floyd, Wade Hurt, Joni L. Jenkins, Adam Koenig, Reginald Meeks, Michael J. Nemes, Darryl T. Owens, Sal Santoro, and Arnold Simpson.
Guests: Doug Gallenstein, Independent Business Owner; Stacy Roof, President and CEO of the Kentucky Restaurant Association; Preston Nunnelley, M.D., President, Michael S. Rodman, Executive Director, C. Lloyd Vest, II, General Counsel, Kentucky Board of Medical Licensure.
LRC Staff: Tom Hewlett, Bryce Amburgey, Carrie Klaber, Michel Sanderson, and Susan Cunningham.
Approval of minutes
A motion to approve the minutes from the June 8, 2012 meeting was made by Senator Thayer, seconded by Senator Seum. The motion carried by voice vote. Senator Schickel asked for a moment of silence in memory of Representative Keene’s father, who passed away in June. He also asked the committee to remember Representative Regina Bunch, whose husband, former Representative Dewayne Bunch, died after an accident in the Whitley County High School cafeteria a year ago. Additionally, Senator Schickel reminded members that the August meeting will be August 27, rather than the usual second Friday of the month. Senator Schickel said that a memorandum with a chart of per diem amounts, included in members’ folders, was in response to a question from the June meeting regarding the per diem amounts received by members on various boards and commissions.
Election Day Sales of Alcoholic Beverages
Representative Arnold Simpson explained his concept for legislation on election day liquor sales. He filed a bill in 2006 to modify Kentucky law to permit the sale of alcohol in retail package stores on election day during the hours that the polls are open, but the bill did not pass. Kentucky is surrounded by states on all borders that allow sales of alcohol on election day when the polls are open. Only Kentucky and South Carolina have a complete ban on the sale of alcohol during the hours the polls are open.
Representative Simpson noted there was a draft of the bill he plans to file in the next session in members folders. The bill will not affect all of Kentucky. The jurisdictions that maintain prohibition will not be affected, and local jurisdictions with alcohol sales may pass local ordinances to continue the election day ban. This bill will allow businesses who are forced to close during the hours that polls are open on election day to continue operation as a normal business day. In election years the state loses approximately $625 thousand in tax revenue. Businesses lose thousands of dollars due to closing, and employees lose wages. Also, Representative Simpson stated, there is no ban of alcohol sales during the day on days special elections are held so the current law is inconsistent.
The Bourbon Trail has been a successful tourist attraction in Kentucky. Visitors from other states, even other countries follow the trail. These visitors would have no knowledge of Kentucky’s prohibition on election day sales. Visitors attempting to purchase bourbon on election day would be inconvenienced when not allowed to purchase souvenirs samples during their visit and might not return or might influence other not to visit.
Doug Gallenstein, owner of six package retail stores, said that he sees a loss in revenue from closing his stores while the polls are open on election days. He was recently fined for opening the store and not having his liquor inventory under locked, even though he was not attempting to sell alcohol. This year he will keep his stores totally closed, and 18 people will lose income during those hours.
Stacy Roof, President and CEO of the Kentucky Restaurant Association, said restaurants across the state must comply with this law. Recent surveys show that restaurants are losing sales when comparing revenue on primary day to other Tuesdays in May. Some restaurants with multiple locations reported lower sales ranging from 23 to 43 percent lower on election days.
Senator Schickel said that the effect on small business was powerful. He added that when he was in law enforcement he worked three cases involving sales of alcohol on election days, all in dry counties. Representative Simpson added that cities and local governments would have flexibility regarding enforcing the change. This is also a mechanism for higher tax revenues.
Senator Thayer said he appreciated the interest in affecting the tax revenues to government and supported the measure. Representative Clark said he was interested in more information regarding people laid off and the loss of occupational tax.
In response to a question from Representative Floyd, Representative Simpson said Northern Kentucky has a unique market niche that attracts customers from Cincinnati who might not come to the area if they could not purchase alcohol.
Kentucky Board of Medical Licensure
Preston Nunnelley, M.D., President of the Board of Medical Licensure said the board’s mission is simple: to protect the public in matters relating to health care. All doctors are reviewed, either with their initial licensure or their reapplication, to make sure that they are qualified to practice medicine. When the board does not see the quality of care that meets the board’s standards, an investigation is opened. Disciplinary action is used when needed and if necessary retraining is implemented. Board members are appointed by the Governor and include eight physicians, three consumer members, the Dean at the UK College of Medicine, the Dean at the UofL School of Medicine, the Dean at the University of Pikeville School of Osteopathic Medicine and the Commissioner of Public Health. The professions under the supervision of the board include not only the medical and osteopathic doctors but also physician assistants, athletic trainers, surgical assistants and acupuncturists. The physician assistants are licensed while the remaining three are certified. The board is funded by licensure and other fees and does not receive any general fund money. The budget is slightly under $2.8 million. In the past, the two disciplinary panels met quarterly; however, matters involving physician disciplinary action have increased and the panels are now meeting every other month. The general board meeting will continue on a quarterly basis.
There are 15,820 licensed physicians in Kentucky. Some of these licensees are physicians who have retired or moved out of state, but do not want to give up their Kentucky license. An out-of-state physician using telecommunication and information technologies to communicate with patient and medical staff, known as telemedicine, is required to have a Kentucky license. As telemedicine continues to grow in popularity, there will be more out of state physicians licensed in Kentucky.
Physician assistants licensed in Kentucky work under the supervision of a licensed physician. The Physician Assistant Advisory Committee reviews all physician assistant applications and makes recommendations to the board. There are 996 licensed physician assistants in Kentucky. Athletic trainers are currently certified in Kentucky. The Kentucky State Advisory Council reviews the applications of athletic trainers and makes recommendations to the board. There are 525 certified athletic trainers in Kentucky. Surgical Assistants, an allied health group that assists surgeons, are also certified in Kentucky. The Kentucky Surgical Assistant Committee reviews all applicants and makes their recommendations to the board. There are 199 certified surgical assistants in Kentucky. Acupuncturists are the newest group to gain certification in Kentucky. The State Advisory Committee on Acupuncture reviews all acupuncturists’ applications for certification and makes recommendations to the board. Kentucky has certified 67 acupuncturists.
The Kentucky Board of Medical Licensure maintains a website, www.kbml.ky.gov, that verifies information on physician licenses, or certifications of other professions under the board’s administration. Consumers are also able to look up any disciplinary action against the licensee or certificate holder. Active sanctions are listed on the website.
The board receives approximately 230 complaints each year. Reports of violations come from consumers, physicians, law enforcement, and pharmacy investigators. In cases regarding substandard care or prescribing issues the board uses a consultant to review medical records and give their opinion. The board has five full time medical investigators, three of which are retired Kentucky State Police detectives. The average caseload per investigator is 25 to 30 cases. There are currently 121 open investigations, 65 involving prescribing controlled substances. The investigators work with state and federal law enforcement officials. The KASPER (Kentucky All Schedule Prescription Electronic Reporting) trend reports have been an effective tool for the board to use to watch prescribing trends. Since January of this year there have been 41 prescribing hearings resulting in 20 physicians losing their Kentucky license.
Common grievances from patients include rude behavior by physicians and or staff, failure to provide a copy of medical records, and lack of communication. The board investigates all complaints and can suspend, restrict, publicly reprimand, revoke, and issue a fine for inappropriate conduct or prescribing. All actions are reported to a national data bank. The board has begun to take a more proactive stance in the past year. Because of the more aggressive position, the investigative work load has increased and another investigator will be hired in the near future.
Senator Schickel said that the illegal use of prescription drugs has been discussed since before he became a member of the General Assembly. Senator Schickel opined that the medical community has always been held to a high professional standard. The public perception of the medical profession has diminished in recent years, however, because of the problems associated with the illegal use of prescription drugs.
In response to a question from Senator Schickel, Dr. Nunnelley said money comes to the board from the fees paid by physicians and all allied health professionals for their registration. He added that, because complaints and reports of misconduct have increased in the past year, an addition investigator will be hired so that reports can be filed in a timely manner. In order to shut down pill mills, the inflow of drugs has to be stopped. National data bases to track prescribers have been helpful, and working with law enforcement in a team approach has made a difference in stopping this epidemic.
In response to a question from Representative Keene, Dr. Nunnelley said that due to the technical nature of medical issues, 12 members of the 15 member board are doctors, and the other three members are consumers. He said that the consumers are vital to the board in evaluating final restrictions.
In response to a question from Representative Koenig, Dr. Nunnelley said the number of licensed doctors has stayed the same for the last five years, adding that in the last year the board has been unable determine how many of the doctors have retired but maintain their license. As for telemedicine, when making a decision that alters the care of a patient in Kentucky, the person must have a Kentucky license.
In response to a question from Senator Webb, Dr. Nunnelley said consultants must be experts in the field that is being investigated. However, because the consultants are practicing physicians, they only review cases when they have time. This can cause delays in finalizing investigations. Consultants are monitored, have to be board certified, and in good standing. The board, as part of its responsibility, could increase registration fees if necessary to pay consultants a larger fee. Also, the board feels that KASPER is a tool that has not been utilized to its fullest effect; however, communication with the cabinet has increased as well as registration of the doctors to use the system. The board has a policy for prescribing schedule drugs which states that KASPER must be used when doing so.
In response to a question from Senator Carroll, Dr. Nunnelley said House Bill 1 increases the responsibility of not only the board but of the investigators. The board is hiring another investigator. If more are needed, the board will take steps to do so. The board is continuing to educate Kentucky doctors on the issue of over-prescribing pain medication. There is a narrow line between the abuse of drugs and treating a patient with genuine pain.
In response to a question from Representative Owens, Dr. Nunnelley said that there is an organization that ranks all medical board on the disciplinary actions they take. For the last 10 years, Kentucky has been in the top 10 on the list, and in the past three in the top five. One key way the board has of knowing a doctor is over-prescribing is through citizens calling in and filing a complaint.
In response to a question from Representative Floyd, Dr. Nunnelley said the board has a generalized requirement for continuing education (CME). Physicians are required to take sixty hours over a three year period with 30 of those hours consisting of category one courses. The board audits CME’s and if they find them not in order there are fines imposed. In response to a question from Representative Jenkins, Dr. Nunnelley said the board has a legal obligation to report misconduct such as sexual misconduct or over-prescribing. An average investigation takes three to four months. If an agreed order cannot be reached, the board places a suspension on the license until the situation is resolved.
In response to a question from Senator Seum, Dr. Nunnelley said 97 percent of Kentucky doctors are good doctors. The board presents lectures all across the state to ensure that doctors are aware of best practices.
Senator Schickel said the board has a difficult job. Bad actors should be sanctioned; however, when a patient has a disease like brain cancer, a physician must be sure to prescribe sufficient pain medication. KBML will be invited back to continue discussing the topic of prescribing pain medication and the usefulness of pain clinics.
Senator Stein said the legislative intent of House Bill 1 should be discussed in another meeting.
There being no further business, the meeting was adjourned at 11:31 AM.