The November 13, 2003 meeting of the Program Review and Investigations Committee was held at 10:00 AM, in Room 131 of the Capitol Annex. Representative Charlie Hoffman, Co-chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Katie Stine, Co-chair; Representative Charlie Hoffman, Co-chair; Senators Charlie Borders, Ernie Harris, Paul Herron, Jr., and Vernie McGaha; Representatives Adrian Arnold, Sheldon Baugh, Ruth Ann Palumbo, and Dottie Sims.
Guests: Kyna Koch, Associate Commissioner, Kentucky Department of Education; Dr. Tim Jackson, Deputy Secretary, Cabinet for Families and Children; Pamela Murphy, Inspector General, Cabinet for Health Services; and Kevin Lightle, Department of Mental Health and Mental Retardation Services, Cabinet for Health Services.
LRC Staff: Greg Hager, Committee Staff Administrator, Lowell Atchley, Lynn Aubrey, Kara Daniel, Tom Hewlett, Joseph Hood, Margaret Hurst, Erin McNees, Stacie Otto, Cindy Upton, and Susan Spoonamore, Committee Assistant.
Minutes of the October 17, 2003 meeting were approved upon motion made by Sen. Stine and seconded by Rep. Baugh.
Kyna Koch, Associate Commissioner, Kentucky Department of Education, presented the Department’s response to the recommendations contained in the Support Education Excellence in Kentucky (SEEK) follow-up report.
Ms. Koch stated that the follow-up report presented by Program Review staff at the October meeting was a fair representation of the status of implementation of the SEEK report’s recommendations. She stated that in accordance with recommendation 1, the Department would change the frequency of auditing school districts. She said that any school district with an average daily attendance of over 5,000 would be moved to a two-year audit cycle, the smallest districts would be changed to a six-year cycle, and districts between 5,000 and 1,000 students would continue on a four-year audit cycle.
Sen. Stine asked if the Department was addressing the issue of reauditing a school that had previously been audited for problems.
Ms. Koch stated that the Department did return to the school, within the same audit year, after a corrective action plan had been developed to ensure that the plan was being implemented. She stated that if more follow-up was needed, the Department could return to the district level and get needed school reports without returning to the school for a site visit. She said that the Department did not have the manpower to make a second on-site visit to a problem school.
Sen. Stine asked why the smaller schools could not remain on the four-year audit plan.
Ms. Koch stated that the Department has eight regional staff and so does not have enough manpower to continue the four-year cycle for the smaller schools.
Sen. Stine asked if the Department had looked at moving staff from within the Frankfort offices into other areas. She stated she was concerned about a six-year audit cycle.
Ms. Koch stated that the Department had examined this option, but it could not be done. She agreed that six years was a long time between audits, but expressed hope that the Department would be able to obtain needed data through the STI system when it is implemented.
Sen. McGaha asked for clarification of the types of schools and audit cycles
Ms. Koch stated that districts with 5,000 or more students, except for Fayette and Jefferson counties, would be on a two-year cycle; districts with 1,000 to 5,000 students would be audited every four years; and districts with less than 1,000 students would be on a six-year cycle. She said that six years was the Department’s current plan for small districts but this could change. She said the Department was being careful to make sure that no district went longer than six years between audits.
Sen. McGaha asked how many school districts had 1,000 or less students?
Ms. Koch stated that she did not have that information, but would make it available to the committee.
Ms. Koch stated that recommendation 2 had been implemented, but she wanted to clarify that the Department does audit all middle and high schools, and a sample of elementary schools.
Ms. Koch stated that the Department disagreed with recommendation 3 that a child should be counted absent if something was missing from the entry/exit log. She said that the Department would continue to work with Program Review staff to try to reach an agreement on the entry/exit log.
Sen. McGaha stated that the purpose of recommendation 3 was good but that schools do not have the manpower to monitor the entry/exit log.
Rep. Sims asked why it was so hard to monitor the entry/exit log, especially since all schools had security guards posted at the doors.
Ms. Koch stated that the recommendation only had to do with those students who signed in and out on the entry/exit log. She said that sometimes a student would sign out or in without putting the time of entry or exit down. She said the recommendation was saying that if a student did not put the time of entry or exit down, then that student should be counted absent. The Department felt that a school should not be financially penalized just because a student neglected to enter the time of departure or entry.
Ms. Koch stated that recommendation 4 has been partially implemented, but the Department disagreed with the opinion that a random sample of a school’s attendance records was the most effective way to do an audit. She said the Department felt that the technique currently used is more effective at calculating the average daily attendance.
Ms. Koch stated that recommendation 5 had not been implemented. She said the Department disagreed with the recommendation for KDE to statistically determine the error rate at the schools being audited, and then apply that error rate to the schools that had not been audited. She stated the Department felt it was unfair to apply an error rate in one school to another school when the difference could be in the way the personnel reported the figure. She stated that KDE had not been able to find a fair way to implement the recommendation.
Ms. Koch stated that recommendation 6 had not been implemented because of manpower issues. She stated that KDE proposed to address the recommendation by asking each of the eight field auditors to conduct a transportation audit in one of the medium or large districts in their region. If the auditors were to find substantial problems, the Department would return to the Program Review Committee to seek its guidance on how to proceed. She said options include adding staff, or asking the state committee for school district audits to change its audit contract to require the independent auditors to use a larger sample of expenditures in the transportation area.
Ms. Koch stated that recommendation 7 had been partially implemented. She stated that the Department identifies the knowledgeable employee in the review of the SEEK calculations as the team leader. She said an employee was being trained as the team leader, but the Department did not want to shift the responsibilities to that team leader until she completed a full SEEK cycle.
Sen. Stine asked if the Department was saying that there was a knowledgeable employee, not involved in the SEEK calculation, being trained.
Ms. Koch stated that was correct.
Ms. Koch stated that recommendation 8 had been partially implemented, and the Department hoped to have a fully functional new system by the fall of 2004.
Cindy Upton, Program Review staff, presented a report on the first phase of the study on Improved Coordination of Adult Protective Services. She stated that this part of the report would address care and protection of vulnerable adults with a view toward improving coordination, and that the second phase would address coordination of funding and information systems.
Ms. Upton stated that the major conclusions of phase one were that Kentucky’s adult protective services process was well designed in statute, but in practice there were problems. She said that notification forms and operating procedures differed among the regions of the state, and that information was faxed to law enforcement agencies when in some instances a phone call would be more efficient and effective. She stated that staff found that police would not file charges against an alleged perpetrator if they believed the person would not be prosecuted, and if charges were filed, then some prosecutors refused to prosecute the case because they felt they would not get a conviction. She also stated that at the conclusion of a case, none of the agencies were required to report the outcome to the Cabinet for Families and Children.
She explained that the Kentucky Adult Protection Act covers a mentally or physically dysfunctional person 18 years of age or older who cannot manage his or her own resources, carry out daily activities, or protect himself or herself from neglect or abuse and who may be in need of protective services; and a person of any age who is the victim of spouse abuse and neglect. She stated that it was important to remember that a person could be charged with more than one crime. For example, a person could be charged with one count of abuse and one count of exploitation.
She stated that the agencies involved in investigating and prosecuting allegations of adult abuse, neglect, and exploitation are the Cabinet for Families and Children (CFC); the Cabinet for Health Services (CHS); state and local law enforcement agencies; prosecutors, including the Attorney General’s office, Commonwealth’s attorneys and county attorneys; and judges and other court staff. She stated the CFC provided front-line services in every reported incident and focused on protecting the victim. She said that social workers in 16 regional offices of the Department for Community Based Services (DCBS) investigate allegations and offer protective services and social services. Except in an emergency, adult protective services are voluntary; the adult has the right to refuse services if he or she has the capacity to choose. She said that the Cabinet could pursue legal action to require emergency protective services if an adult does not have the capacity to choose, because of dementia or other problems.
Ms. Upton stated that the Cabinet for Families and Children investigates to determine whether to substantiate an allegation of abuse, neglect or exploitation, but the substantiation of an allegation has no legal impact on the alleged perpetrator. She said that under state and federal law, the Cabinet for Health Services focuses on health care providers’ compliance with laws for care and protection and may impose sanctions, but the Cabinet’s findings have no legal impact on the alleged perpetrator. She said that the Office of the Inspector General investigates complaints against long-term care providers such as nursing homes, and the Department for Mental Health and Mental Retardation Services investigates complaints against providers of care in the Supports for Community Living Program if the provider’s investigation proves to be inadequate.
Ms. Upton stated that law enforcement agencies investigate complaints and determine whether to file charges against the alleged perpetrator, and the Attorney General’s office, the Commonwealth’s attorneys and county attorneys determine whether to prosecute the charges. The Circuit and District Court judges hear the cases that are brought by the prosecutors.
She stated that under the statute, any person who knows or suspects that an adult has suffered abuse, neglect, or exploitation has a legal responsibility to report it to the Cabinet for Families and Children. The reports are made to the local DCBS offices, the abuse hotline, or to local law enforcement agencies. The local DCBS office is required by law to notify law enforcement of each investigation. She said that CFC also notifies CHS if a provider is involved.
She stated that the lack of public awareness is a problem in that many people do not know that it is their legal responsibility to report suspected abuse. Staff also found that many police officers, prosecutors, and judges do not know about the extent of adult abuse or the criminal penalties in KRS Chapter 209. She said that in the last three fiscal years, only 27 persons had been convicted under the statute, but CFC reported over 1,100 substantiated cases of abuse, neglect, or exploitation in fiscal year 2003 alone.
Ms. Upton stated that because little training is available for agencies and training often is not required, many agencies, including law enforcement agencies, remain unaware of KRS Chapter 209 and its criminal penalties.
In conclusion, Ms. Upton presented seven staff recommendations to improve the coordination of adult protective services:
· CFC should provide better oversight and coordination of the APS investigations conducted by its social workers at the 16 regional offices, including using standardized procedures for notifying other agencies of the instigation of an investigation.
· CFC’s standards of practice should be revised to identify specific conditions under which social workers must call law enforcement as well as fax a DSS 115 form regarding abuse allegations.
· CFC should develop a standardized DSS 115 form that provides information identifying the potential crime.
· CFC should assign a priority code to each referral to law enforcement, assigning a high priority to those cases in which law enforcement action is required and a low priority to cases to which police would not normally respond, such as those involving self-neglect.
· Training should be mandatory and timely for social workers, law enforcement officers, prosecutors, and judges, and training materials should be made available to other agencies at cost.
· CFC, CHS, and other state agencies should establish new and renewed relationships among themselves to provide training, share information, and promote awareness of adult abuse, neglect, and exploitation.
· CFC, CHS, and other state agencies should establish new and renewed relationships with local agencies and advocacy groups.
Rep. Palumbo asked if there were areas in the state that stood out for having relatively more or fewer prosecutions of abuse.
Ms. Upton stated that the Administrative Office of the Courts (AOC) provided information for a three-year period on the number of charges filed and the number of convictions. She said that 10 of 27 convictions under KRS Chapter 209 were in Jefferson County.
Rep. Palumbo asked what types of abuse had been substantiated.
Ms. Upton stated that staff would be reporting more on that in phase two of the report, but she did have information on what types of abuse had occurred. She said that she would provide Rep. Palumbo with a copy of CFC’s report.
Sen. Stine asked if the 27 convictions were at the state or local level.
Ms. Upton stated that the AOC report included all cases tried in Circuit or District court. She stated that the data did not indicate if, for example, a case of abuse, neglect, or exploitation resulted in a person being charged with assault under another statute.
Sen. Stine stated that she was concerned with only 27 convictions in three years when there were more than 1,100 substantiated cases in one year.
Ms. Upton stated that staff spoke to many police officers and prosecutors, and most said it was often difficult to prove adult abuse.
Sen. Stine asked if recommendation 4 was developed from information provided by law enforcement officials.
Ms. Upton stated that was correct.
Rep. Baugh asked if family members, neighbors, or victims filed most of the complaints. He also asked if there was any information to indicate if complaints were valid.
Ms. Upton stated that staff would be looking for that type of information in phase two of the report.
Rep. Baugh asked if phase two would also include the exploitation of elderly adults by traveling salespersons.
Ms. Upton stated that staff could talk to local law enforcement about this since these cases could still be pending in court.
Sen. McGaha asked if staff had been able to determine the percentage of cases referred, including low-priority cases.
Ms. Upton stated that the 1,100 figure was from categories that showed adult abuse, caretaker neglect, and exploitation. She said that self-neglect, which would be a low priority for law enforcement officers, had not been included.
Sen. McGaha asked if the backlog in the court system could be a part of the problem in cases not being prosecuted.
Ms. Upton stated that staff would have to look at that.
Sen. McGaha asked that staff look at the life-threatening cases to see if any action had been taken or if they were languishing on a court docket.
Sen. McGaha asked if the statute required the filing of DSS-115 forms.
Ms. Upton stated that the DSS-115 form was a part of a CFC regulation and also one of their standards of practice. She said that the regulation requires DCBS to obtain and report relevant information. She also stated that the forms provided different levels of information, making it difficult for officials to determine the exact problem. She said that some training and interaction between the administrators, the social workers, and central office staff could probably take care of standardizing the forms.
Sen. McGaha asked if Jefferson County was contacting law enforcement by telephone in conjunction with using the DSS-115 forms, and in doing so, would they have a better advantage in serving people.
Ms. Upton stated that was correct.
Sen. Herron asked if spouse abuse had been determined to be a factor in any of the 1,100 cases that had been substantiated.
Ms. Upton stated that staff had only looked at cases involving abuse, neglect, and exploitation. She said that the system set up for reporting spouse abuse seemed to be a good system and staff focused on adult abuse for this report. She stated that the report from CFC included information on spouse abuse and she would provide him a copy of that report.
Sen. Herron asked why there were so many spouse abuse shelters if the system was working well.
Ms. Upton stated that spouse abuse shelters were a valuable resource for spouse abuse victims. She said that older persons who were hurt at home and had medical needs would be unlikely to stay at a spouse abuse shelter because the shelters are not set up to take care of elderly, ill people.
Sen. Herron asked if spouse abuse shelters took in men.
Ms. Upton stated that she did not know the answer to that question.
Sen. Herron stated that he thought elder abuse was more common than what was actually being reported because folks in smaller communities hesitated to get involved.
Dr. Tim Jackson, Deputy Secretary, Cabinet for Families and Children, stated the Cabinet was not prepared to do a full response to the report, but would have a response prepared within the next week. He said even though he would be leaving the Cabinet at the end of the day, he felt that the Cabinet would not have any difficulties with implementing any of the recommendations. He said that the Cabinet had been working over the past couple of years to strengthen services and raise public awareness of the issue.
Pamela Murphy, Inspector General, Cabinet for Health Services, stated that the Cabinet agreed with the major conclusions and recommendations of the report. She stated that in regard to recommendations 6 and 7, her office had been endeavoring to improve coordination and communication among agencies within the state as well as with local agencies, advocacy groups, and faith-based organizations. She stated that the brochures and videotapes the Cabinet had developed for public awareness had been paid for by funds from the Office of Inspector General (OIG). She stated that OIG receives a portion of federal civil monetary penalties levied against facilities for failure to comply with regulations. She said that the state’s portion comes with specific restrictions, such as the money being used for improving the life of people in long-term care facilities.
Ms. Murphy stated that the OIG strongly agreed that it was important for all agencies to renew and strengthen their efforts in providing protection for vulnerable adults. (A copy of the response of the Office of Inspector General can be found in the LRC Library.)
Kevin Lightle, Director, Division of Mental Retardation, Department for Mental Health and Mental Retardation Services, Cabinet for Health Services, explained that the Division handles the Supports for Community Living (SCL) program. He stated that the issue of health and safety for persons with disabilities was a top priority for the Department and the Division. He stated that the Department of Mental Health and Mental Retardation Services (DMH/MR), Department for Medicaid Services (DMS), and DCBS had entered into a Memorandum of Agreement (MOA) to clarify roles in investigating and communicating possible cases of abuse, neglect, and exploitation for persons in the SCL waiver program. DMH/MR state general fund dollars fund programs through the Community Mental Health Centers. He also stated that DMH/MR and DMS have entered into a MOA with DCBS for staff training on the DSS 115 and DSS 155 referral forms.
He stated that all new employees of the DMH/MR field staff are required to attend orientation and training regarding the certification survey process and regulatory requirements for SCL provider certification. He said that field staff are also required to attend the joint DMH/MR and DCBS training on abuse, neglect, and exploitation and the Labor Relations Alternative five-day training on conducting investigations.
Mr. Lightle also explained that the Department had begun working collaboratively with the Office of Aging Services and the Mental Health and Aging Coalition in the development and provision of training on aging services, available resources, and elder abuse. He stated that five aging symposiums had been conducted since January 2003, and plans for future symposiums were underway. He said that the Department’s training sessions were open to providers, other agency staff, and the general public. (A copy of the Department’s response can be found in the LRC Library.)
Rep. Hoffman recommended that the Committee vote on the report at the December meeting.
Rep. Hoffman asked for a motion to approve a study of topic number 4 (Highly Skilled Educators) from the list of suggested study topics. No motion was made.
Rep. Hoffman made a motion to approve topic 1 for study (Prevalence and Health Aspects of Radon Gas in Kentucky). Motion failed due to lack of a second.
Rep. Sims made a motion to approve for study topic 9 (Administration of HUD Programs in Kentucky). Motion failed due to a lack of a second.
Sen. Harris stated that because a new administration was coming in, it might be premature for the Committee to select new study topics at this time.
Rep. Hoffman stated that the meeting date of December 11 needed to be changed because of conflicts. He asked members to turn in their preferences for study topics by the Monday after Thanksgiving.
Rep. Hoffman asked staff to look at possible meeting dates for the December meeting.
Sen. McGaha discussed the memorandum from staff regarding the request of the committee for additional information on the First Steps program. He requested that staff ask Mr. Friedlander for a list of the primary care service providers, along with their salaries.
Ms. Aubrey stated that she had been provided a list, but the list contained only payments made to the providers, and no indication had been made as to whether each provider was full-time or part-time. She stated that she would provide Sen. McGaha with a copy of the list.
Rep. Hoffman asked if the Commission chose not to categorize the positions, or was it something that was impossible for them to do.
Ms. Aubrey stated that Mr. Friedlander indicated it was impossible for them to distinguish between full-time and part-time.
Sen. Stine stated she was interested in asking that the Committee look at topic 34 (Accounts Receivable). She stated that she would like for staff to confirm the accounts receivable numbers, and then determine if there were receivables in other agencies that had not been listed. She also stated that she would like for staff to examine the state’s efforts in collecting the funds, to examine how other states were doing it, and make recommendations as to how the funds could be effectively and efficiently collected.
Sen. Stine stated she was willing to make a motion to approve a study of topic 34 if the Chairman would entertain it as a motion.
Rep. Hoffman stated that he would like for the committee to consider study topics 31 (State Ergonomic Standard) and 23 (K-TAP Incentive Bonuses), in addition to topics 29 (Tax Burden in Kentucky) and 34 (Accounts Receivable).
Rep. Palumbo asked if the Committee could vote on the topics separately.
Rep. Baugh asked that the topics be voted on together.
Sen. Stine made a motion to vote on study topics 23, 29, 31 and 34. Rep. Baugh seconded the motion.
Dr. Hager asked if the motion was to vote on all four at one time.
Rep. Hoffman stated that was correct.
Sen. Stine stated that was not the intent of her motion and she preferred not to vote on all four together. She stated that she was only prepared to make a motion to accept topic 34. She withdrew her motion.
Rep. Hoffman made a motion to approve for study topics 23, 29, 31 and 34 together. Rep. Baugh seconded the motion. Motion failed upon roll call vote.
Study topic 34 (Accounts Receivable) was approved by roll call vote, upon motion made by Sen. Stine and seconded by Rep. Sims.
Study topic 23 (K-TAP Incentive Bonuses) was approved by roll call vote, upon motion made by Rep. Baugh and seconded by Sen. Harris.
Rep. Palumbo made a motion to consider study topic 29 (Tax Burden in Kentucky). Rep. Sims seconded the motion.
Sen. Harris stated that there had been several studies reporting on the tax burden in Kentucky, and it was his understanding that the new administration would be appointing a task force to look at this issue too.
Rep. Palumbo withdrew her motion.
The Committee agreed to have staff compile a summary of previous studies regarding the tax burden.
Rep. Hoffman asked for a motion on study topic 31 (would a state ergonomic standard reduce workers compensation claims and human suffering?). He also asked Dr. Hager to explain how the study would be conducted.
Dr. Hager stated that staff could look at the costs and benefits of an ergonomic standard, but given that researchers’ estimates of costs and benefits are likely to be large, it is unlikely that staff can provide precise numbers to the Committee. Dr. Hager also stated that because the adoption of a standard would be considered a question of policy, staff could not make specific recommendations regarding adoption.
Rep. Sims asked if the implementation of a state ergonomic standard would be considered anti-business.
Rep. Hoffman stated that if it reduced workers’ compensation claims and thus premiums, then he thought it would be more pro-business than anti-business.
Rep. Palumbo asked if an ergonomic standard would result in additional expenses to a business.
Rep. Hoffman stated that if that happens, the state could consider tax incentives for companies.
Approval of topic 31 (State Ergonomic Standard) for study failed, upon motion made by Rep. Hoffman and seconded by Rep. Baugh.
Meeting was adjourned at 12:45 p.m.