The 3rd meeting of the Program Review and Investigations Committee was held on Tuesday, August 13, 2002, at 1:00 PM, in Room 131 of the Capitol Annex. Representative Gippy Graham, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Representative Gippy Graham, Chair; Senator Katie Stine, Co-Chair; Senators Charlie Borders, Ernie Harris, Paul Herron Jr., Vernie McGaha, Dan Seum, and Johnny Ray Turner; Representatives Adrian Arnold, Jack Coleman, Charlie Hoffman, Ruth Ann Palumbo, and Dottie Sims.
Guests: Representative Jimmie Lee; Kathy Gannoe, Executive Director, Nursing Home Ombudsman Agency of the Bluegrass; Dr. Timothy J. Jackson, Deputy Secretary, Cabinet for Families and Children; Nora McCormick, Office of General Counsel, Cabinet for Families and Children; Anne Flynn, Nurse Services Administrator, Cabinet for Families and Children; Pamela J. Murphy, Inspector General, Cabinet for Health Services.
LRC Staff: Greg Hager, Ph.D., acting Committee Staff Administrator, Lowell Atchley, Judy Fritz, Tom Hewlett, Alice Hobson, Joseph Hood, Margaret Hurst, CPA, Dan Jacovitch, Erin McNees, Stacie Otto, Cindy Upton, CPA, and Susan Spoonamore, Committee Assistant.
Minutes of the July 11, 2002 were approved by voice vote upon motion made by Rep. Arnold and seconded by Rep. Sims.
Cindy Upton of the Program Review staff presented an overview of the Adequacy of Adult Abuse Investigation. She stated that staff members had attended informal meetings held by Rep. Graham concerning the quality and timeliness of the State’s investigations of alleged abuse, neglect and exploitation of adults in Kentucky’s nursing homes. She said that as a result of the informal meetings, the Cabinet for Families and Children and the Cabinet for Health Services indicated that they were jointly cooperating to implement a number of improvements. (a copy of Ms. Upton’s presentation can be found in the LRC Library file)
Sen. McGaha asked what issues were found to be involved with non-compliance of state law. Ms. Upton stated that there had been a breakdown in the system such as notifying law enforcement agencies, and there was some concern regarding the time period for initiating an investigation and completing an investigation.
Rep. Sims asked how many nursing homes in Kentucky had been reported as abusive.
Rep. Graham stated that Dr. Jackson would cover that question in his report to the Committee.
Dr. Timothy J. Jackson, Deputy Secretary of the Cabinet for Families and Children, stated that there were many areas of inadequacy not just in the investigation process of elder abuse, but in the service delivery, and structural issues. He stated that the Cabinet welcomed the involvement and concern of the Committee, and that he would like nothing better than to report that every frail and elderly Kentuckian confined to an alternate care setting was safe, but he could not do that because it was not true. The fact that any elderly or frail person had been abused, neglected or exploited was testimony to the failure of agencies to consistently weave a web of protection around some of its most vulnerable citizens. He explained that the Cabinet’s main focus was on the victim, and that the Cabinet was genuine, sincere and persistent about its effort to improve its relatively small, but critical role in the issue. Dr. Jackson stated that to his knowledge, the Cabinet had not violated any Kentucky law governing adult protective services. The Cabinet’s role, as defined by KRS 209, was to accept reports of abuse, neglect and exploitation, and upon receipt of those reports to notify law enforcement, initiate an assessment and make a written report of findings to anyone with a legitimate interest in the case. He stated that the Cabinet had recently formed its own Adult Protective Services Advisory Council, consisting of 21 people, to assist the Cabinet in identifying persistent and major issues, and to help in developing better and more consistent higher quality services to elders at risk. In addition, Dr. Jackson stated that the Cabinet had entered into a Memorandum of Understanding with the Office of the Inspector General and the Office of the State Long Term Care Ombudsman, which would permit joint investigations and joint training. Dr. Jackson also stated that the language contained in KRS 209 was vague and ambiguous and to some degree invited duplicity, overlap and conflict, and the penalties for perpetrators of abuse, neglect and exploitation were misplaced and insufficient. He said that The Adult Protective Services infrastructure, which expanded across a number of agencies, including the Cabinet for Families and Children, the Cabinet for Health Services, law enforcement, the courts and the communities, was inadequate to be responsive to the complex and troubling issues. He also said that the Cabinet was working hard to make sure that every frail and vulnerable adult confined to a nursing home in Kentucky was safe, but resources were insufficient at all levels.
Rep. Hoffman asked why the agencies, in the past, had been reluctant to share information and conduct joint investigations. Dr. Jackson stated that the Cabinet for Families had no difficulty in sharing information or conducting joint investigations, but he said he did not have an answer as to why it had not happened in the past. He stated that with the Memorandum of Understanding now in place between the agencies, it should make working together much better.
Rep. Hoffman asked what type of circumstance would prompt a joint investigation and what would be the format for an investigation. Anne Flynn, Nurse Services Administrator for the Cabinet for Families and Children, stated that typically any nursing home allegation involving abuse and neglect would include the involvement of the Office of Inspector General. Even though the social worker and the inspector from the Office of Inspector General may do a joint investigation, they may not go out together and do it on the same day, but the two do communicate upon completion of the investigation.
Sen. Borders stated that there were good people working in the facilities, and that resources were needed in order to keep good working people.
Dr. Jackson stated that the issues were economic issues. He also stated that the Cabinet’s effort had not been to identify the good guys and the bad guys, but to eliminate abuse on all fronts in every location.
Rep. Palumbo asked what the procedures were for an assessment of an allegation. Ms. Flynn stated that a social worker assessment, which was called the adult continuous quality assessment, was a detailed form that the social worker completed. She said that once the information had been obtained from personal interviews with the victim, and interviews of witnesses, and medical record reviews, then a determination was made as to whether or not abuse occurred.
Rep. Palumbo stated that it was her understanding that victims were too afraid to come forward and point their finger, or they were unable to do so, or a family member or friend has not been around to witness anything, which meant that the process could be ongoing. Ms. Flynn stated that the agency tried to allow privacy when interviewing victims and that follow-ups on allegations were continuous.
Rep. Palumbo asked if it was correct that one was not allowed to make a report without the victim’s permission. Ms. Flynn stated that was not true for the Cabinet.
Rep. Palumbo asked for a copy of the Memorandum of Understanding between the agencies, and requested that a copy be distributed to each member of the committee. Dr. Jackson said that he would provide staff with a copy of the Memorandum of Understanding.
Rep. Palumbo asked how the Cabinet for Families and Children had expanded its capacity to generate and track data regarding elder abuse assessments. Dr. Jackson stated that prior to July 2001, elder abuse assessments and elder abuse findings had not been included in the Workers Information System which had mainly been used for child protection tracking. He said that effective July 2001, the information was included in the system and the Cabinet now had the capacity to generate and track data and extract data, which was a very important element that would lead to service improvement.
Rep. Palumbo asked if background checks were being done on each employee. Ms. Flynn stated that a criminal background check was done for all applicants.
Rep. Palumbo asked if it were possible that backgrounds checks were not being done, and if so, what procedures were followed when it was discovered that a background check had not been done on an employee. Ms. Flynn stated that there had been insolated cases of criminal background checks not being done. She stated since it would be more of a regulatory issue, the Cabinet would make a referral to the Inspector General and Law Enforcement.
Pam Murphy, Inspector General, stated that background checks were being made, but if a background check had not been conducted, then that facility would be cited. If more than two criminal checks were missing from that facility, then the penalties would be much more harsh. She said that the Inspector General’s Office was very vigilant about criminal background checks.
Sen. Harris asked for the approximate number of nursing homes in the Commonwealth of Kentucky, and for an approximate number of complaints on a yearly basis. Dr. Jackson stated that he was not sure, but he thought there were approximately 400 nursing homes, which would amount to approximately 25,000 beds.
Sen. McGaha asked how many investigators were employed by the Cabinet. Dr. Jackson stated that 553 social workers had some degree of adult protective services responsibility.
Sen. McGaha asked if the Cabinet had documentation or data as to the number of complaints relating specifically to nursing homes, and was there any data being compiled as to the number of complaints received from a nursing home on an individual basis by region or facility. Dr. Jackson stated that he didn’t have that information, but would get it.
Rep. Arnold asked how complaints were determined to be frivolous. Ms. Flynn stated that all phone calls received were screened to include a victim that was 18 years or older and a vulnerable adult. She said that before a complaint could be accepted for an investigation, there had to be an allegation of abuse, neglect or exploitation. If it met that criteria, then an investigation would be initiated.
Rep. Palumbo asked what was meant by “until conditions converge to alter reality”. Dr. Jackson stated that he was referring to a need for a cultural shift that placed more value on older people.
Rep. Palumbo stated that there had been a case where a victim had a broken leg, and the social worker had determined that it was a spontaneous break not caused by staff, but the orthopedic specialists said that a spontaneous break was impossible. She also said that some facilities and social workers needed to be investigated. Dr. Jackson stated that the Cabinet was concerned about those kind of stories. He said that when it came to making medical decisions and medical conclusions based on medical evidence, the Cabinet was not very good at that at all. Social workers had a lot of strengths, but drawing conclusions from medical evidence was not among them. He also said that no one should rely on the Cabinet’s findings medically, completely and singularly.
Rep. Palumbo asked if it was true that a social worker could make determinations based on medical evidence. Dr. Jackson explained that the Cabinet’s role was to assess whether or not abuse occurred, to determine if services were needed to afford protection to the victim and to report the findings to other agencies with a legitimate interest.
Rep. Palumbo asked who provided the information to the Cabinet. Dr. Jackson stated that the Cabinet received information from doctors, nurses, nursing home administrators, witnesses, and the victims. He also said that the Cabinet’s staff did not have the expertise to look at a broken leg and determine how it happened.
Rep. Jimmie Lee asked if the three nurse consultants, recently hired to provide medical consultation, were employees of the Cabinet or under contract. Dr. Jackson stated that they were employees of the Cabinet.
Rep. Lee asked if the statutes were clear about the responsibilities of each Cabinet as to when a Cabinet started and stopped, and when another Cabinet would pick up the case and continue. Dr. Jackson said the law did not lay out the precise responsibilities.
Rep. Lee stated that it should be spelled out by regulation or by statute that continuity exists with all the agencies involved. He said that continuity needed to be in place in order to have effective ways of preventing, identifying and prosecuting those who were responsible for any abuse in the long-term care facilities. Dr. Jackson stated that he agreed, but the statutes would have to be changed in order to get to that point.
Rep. Lee stated that he looked forward to working with the Cabinets in making the changes needed in the statutes so it would be understood that abuse of the elderly would not be tolerated in long care term facilities.
Pamela J. Murphy, the Inspector General for the Cabinet of Health Services, explained that the role of the Office of Inspector General was to regulate the providers only. She said that the OIG did not regulate nurses, nurse aides or the people who were employed by the long term care provider. She also said that providers were regulated through state statutes and regulations and through a federal contract with the Centers for Medicare and Medicaid Services. She said that the OIG’s responsibility was to make sure that the facility had complied with all state and federal regulations that were related to patient care, including protection from abuse, neglect or exploitation. She also said that the OIG did not make findings to determine a case against an individual, but to make a determination on whether or not the facility did all it could do to protect the resident and uncover the abuse. She stated that the Office of General Inspector had established a Regional Complaint Coordinator position for all regional offices, and that the complaint training had been completed.
Rep. Palumbo asked if there had ever been any Regional Complaints Coordinators in the past, and what was the target date for getting the positions filled. Ms. Murphy stated that years ago there had been Regional Complaints Coordinators, and at some point those positions had been eliminated. She said that the OIG was in the process of re-establishing those positions along with intensive training of the Coordinators. She also said that two of the positions had been filled and the other two positions would be filled fairly quickly as well.
Kathy Gannoe, Executive Director of the Nursing Home Ombudsman Agency of the Bluegrass, Inc., explained that the agency was an advocate for nursing home residents. She stated that the Ombudsman Agency represented approximately 5,000 nursing home residents, 64 nursing homes and approximately 100 family care homes in the Bluegrass. She also stated that the agency consisted of consumer advocates who represented the residents in a nursing home. The agency did not employ state employees, law enforcement officials or regulators. She said that last year, the agency took in 5,100 complaints about quality of life and quality of care. As an example, she stated that for the time period January 2002 through June 2002, the agency reported 83 allegations of abuse to DCBS/APS and they did respond to 44 allegations, which resulted in 10 substantiated cases of abuse. She said the Cabinet for Families and Children was pivotal in determining if the allegations could be substantiated, and it was apparent that there were not enough resources to investigate the reported allegations since there remained 39 additional cases to be investigated. She said that another area of concern was the lack of social services intervention in order to help the resident deal with the trauma of abuse.
Rep. Palumbo asked why the 39 other cases had not been reviewed, and she asked what type of abuse, neglect or exploitation had been reported in the those cases. Ms. Gannoe stated she did not know way the allegations had not been investigated. She stated that she did not know the exact allegations, but some general issues could possibly be legs being broken, patients being dropped, dislocated shoulders, call bells not in working order, and suction machines not working.
Rep. Palumbo asked the Cabinet to respond as to why the other 39 cases had not been investigated. Ms. Flynn stated that just because the Cabinet had not been reporting their findings to the Ombudsman it did not mean that the 39 cases had not been investigated. She said that if the Ombudsman was not the reporting source, then the Cabinet would not give them that information.
Rep. Palumbo asked if there was a reason why the Cabinet would not give the information to the Ombudsman. Ms. Flynn stated that the Cabinet was making an effort to track and follow-up on all cases submitted, and that the Cabinet was making an effort to work with the Ombudsman.
Rep. Palumbo asked that if the Ombudsman had called with a complaint that met the criteria, and the Cabinet agreed to investigate the complaint, would the Cabinet then give the Ombudsman the findings? Ms. Flynn stated that the Cabinet could have investigated the 39 complaints, but not reported their findings to the Ombudsman.
Rep. Palumbo asked why the Cabinet did not report their findings to the Ombudsman especially if the Ombudsman agency was the agency who referred the complaint. Ms. Flynn stated that if the case had been referred by an Ombudsman, then the Cabinet would report their findings to them. If the Ombudsman was not the referring source, then the Cabinet would not share that information with the Ombudsman.
John Sammons, Long Term-Care Ombudsman with the Cabinet for Health Services, Office of Aging Services, explained that the Memorandum of Understanding between the Long Term Care Ombudsman and the Department of Community Based Services, Adult Protective Services Unit would be an improvement in helping to share information. He also pointed out that the 39 uninvestigated allegations had been submitted prior to the execution of the MOU.
Ms. Murphy stated that the OIG did keep track records for all levels of care that it regulated. She also stated that if a facility was certified to receive Medicare and Medicaid payments, then the Centers for Medicare and Medicaid Services would also have records. She said that the OIG not only kept records of the complaints filed, but also whether the complaints had been substantiated or unsubstantiated. She explained that if a facility had been determined to be out of compliance with the requirements of the participation in the Medicare and Medicaid programs, and if the facility had reached a level D, then the federal government would start a six month countdown. She also said that if that facility did not achieve and maintain compliance with those regulations, then they would be terminated from the Medicare and Medicaid program. When that happened, the facility would have a hard time in keeping their doors open.
Sen. McGaha asked if those records would be subject to the open records law. Ms. Murphy stated that she thought most of it would be subject to open records law, except for some of the information belonging to the federal government, and therefore it would have to be obtained through the Federal Freedom of Information Act. She stated that the OIG had a large data base, and if asked, they would be able to provide survey results or investigations results on a particular facility.
Rep. Graham stated that staff would continue to follow up on the issues and the information obtained by staff would be shared with the appropriate committees of the Legislative Research Commission.
Lowell Atchley, Program Review staff, summarized the highlights of the study proposal for Public Funding of Kentucky Gubernatorial Campaigns. He stated that the overall purpose of the study was to determine what the stated goals of the Kentucky gubernatorial campaign legislation were and whether those goals had been achieved. The study has three major objectives: 1) Describe the gubernatorial campaign finance system in Kentucky and how it is administered. 2) Identify the stated goals of the Public Financing Campaign Act and determine whether those goals are being achieved. 3) Describe the funding of gubernatorial campaigns in other states and make comparisons to Kentucky’s funding system.
Sen. Stine asked if staff would include in the study an examination of the parties’ spending levels before and after the law’s creation to examine what if any interaction occurs. She also asked if there was a way to determine the spending practices of the special interest groups that were operating on the outside. Mr. Atchley stated that at this point he did not know. He stated that staff had been working with the Registry of Election Finance in trying to identify certain areas similar to that.
Sen. Stine asked if staff was aware of any reporting requirements of special interest groups. Dr. Hager stated that as part of the study proposal under the third objective, staff would be looking at party spending for other states in order to make a comparison.
Sen. Stine asked if it was going to be done. Dr. Hager stated that it would be done to the extent possible. He explained that staff would be looking at records in Kentucky and other states to determine what was included in total spending.
The study proposal of Public Funding of Kentucky Gubernatorial Campaigns was approved upon motion made by Sen. Stine and seconded by Sen. Turner.
Tom Hewlett of the Program Review staff, explained the study proposal for Council on Postsecondary Education’s Oversight of State Universities, with Special Attention to Kentucky State University. He stated that Program Review staff had been asked to review the relationship between the Council on Postsecondary Education and Kentucky State University and to address any specific areas of concern due to the unique nature of the institution. The study proposal contained four objectives: 1) Describe the roles prescribed for CPE by the Postsecondary Improvement Act and subsequent legislation. 2) Describe the roles prescribed for Strategic Committee on Postsecondary Education (SCOPE) by statute and determine if the findings and recommendations of SCOPE have been adopted. 3) Evaluate whether CPE is effectively monitoring the academic, administrative, and financial status of the state’s system for postsecondary education. 4) Given recent documented financial and academic problems at Kentucky State University, conduct a case study of whether CPE adequately fulfilled its responsibilities for monitoring, oversight, and advising the university.
Rep. Arnold asked that the study include recommendations for areas of improvement.
Sen. Stine asked staff to look to see if there had been any legislative or executive branch efforts to erode or interfere with the decisions of CPE. She also asked that staff review the accountability procedures as relates to the Trustees of Kentucky State University, and how accountability is determined.
Mr. Hewlett stated that the study would address those issues.
The study proposal for the Council on Postsecondary Education’s Oversight of State Universities, with Special Attention to Kentucky State University was approved upon motion made by Rep. Coleman and seconded by Sen. McGaha.
Meeting was adjourned at 3:30 p.m.