The October 19, 2004, meeting of the Program Review and Investigations Committee was held at 10:00 AM, in Room 149 of the Capitol Annex. Senator Katie Stine, 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, Brett Guthrie, Ernie Harris, and David K. Karem; Representatives Adrian Arnold, Sheldon Baugh, Dwight Butler, Ruth Ann Palumbo, Dottie Sims, and Jim Thompson.
Guests: Representative Jimmie Lee; Mike Robinson, Commissioner, Department for Community Based Services, Cabinet for Health and Family Services, and Ken Schwendeman, Executive Director of the Office of Legislative and Intergovernmental Services, Justice and Public Safety Cabinet.
LRC Staff: Greg Hager, Committee Staff Administrator, Kara Daniel, Rick Graycarek, Tom Hewlett, Margaret Hurst, Van Knowles, Erin McNees, Cindy Upton, and Susan Spoonamore, Committee Assistant.
There being no quorum present, no motion was made for the approval of the September 9, 2004 minutes.
Sen. Stine welcomed the co-chairs and members of the Health and Welfare Committee. She asked Program Review staff member Cindy Upton to present the report Kentucky Can Improve the Coordination of Protective Services for Elderly and Other Vulnerable Adults.
Ms. Upton stated that in August 2003, the Program Review and Investigations Committee requested staff to review how adult protective services could be better coordinated. The study was conducted in two phases. The report on phase one was approved by the Program Review Committee on December 17, 2003. She stated that for phase two, staff updated Chapters 1 through 3 and added a chapter with additional data and conclusions on information systems and funding of adult protective services.
Ms. Upton explained that KRS Chapter 209, the Kentucky Adult Protection Act, specified the requirements for protective services provided by the Cabinet for Health and Family Services (CHFS) through the Department for Community Based Services (DCBS). She stated that KRS 209.020 defined an adult as a mentally or physically dysfunctional person 18 years of age or older who could not manage his own resources, carry out daily activities, or protect himself from neglect or abuse, and who may be in need of protective services. An adult is also defined as a person without regard to age who is the victim of abuse and neglect inflicted by a spouse. She stated that abuse, neglect, and exploitation are defined in KRS 209.020 as follows:
· Abuse is the infliction of physical pain, mental injury, or injury of an adult. The definition includes sexual, physical, and mental or emotional abuse.
· Neglect results from the inability of an adult to perform or obtain the services necessary to maintain his or her health or welfare, or the deprivation of necessary services by a caretaker, including a spouse.
·
Exploitation means improper use of an adult's money, property,
and other resources by a caretaker or other person for personal profit.
Exploitation often results from intimidation of a vulnerable adult.
She said that complicating factors in many potential investigations are the voluntary nature of adult protective services and the number of state and local agencies that may be involved. She stated that even though Kentucky's adult protective services process was well-designed, there were problems in practice. As an example, she said that the general public was not aware of the fact that they have a legal responsibility to report suspected cases of adult abuse, neglect, and exploitation. She said some people refused to get involved because it was viewed as a family matter rather than a crime. She stated professionals such as bankers are also unaware of their responsibility to report. Many police officers, prosecutors, and judges do not know the problem and extent of adult abuse, neglect, and exploitation. Little training on adult protective services is mandated for DCBS social workers, law enforcement officers, prosecutors, and judicial officials. She stated that DCBS exercised little direct oversight of its regional offices. She explained that the 16 regional offices operate autonomously under standards of practice issued by the central office in Frankfort. She stated that the lack of central oversight can lead to differences among regions and counties in protecting vulnerable adults. Ms. Upton stated that the Cabinet previously estimated that it would take three to five years for all social workers to attend the mandatory adult protective services training. She stated that if a regional administrator did not see adult abuse as a problem in the local area, or concluded that other problems were a higher priority, then that conclusion was communicated to staff either formally or informally. She stated that without training, local social service workers may not recognize cases that would satisfy the criteria for investigation and may not be able to substantiate abuse, neglect, and exploitation.
Sen. Karem asked if it was true that some regional administrators within the Department for Community Based Services did not see adult abuse as a problem.
Ms. Upton stated that staff noted that in some regions the administrators did not appear to view adult abuse as a problem. She also noted that in those regions the social workers may be overwhelmed with child cases, which tend to take priority over adult investigations.
Rep. Baugh asked why an individual would want to get involved and risk having the family or community upset by the report of abuse, neglect, or exploitation when there were some cabinet officials, law enforcement officials, and judges who did not see adult abuse as a problem.
Ms. Upton stated that having a family or the community upset with an individual for reporting abuse, neglect, or exploitation could discourage future reporting. She stated that a complicating factor during the course of the study was staff's inability to track the actual disposition of each case. She noted that out of 1,400 social workers, only 100 social workers were dedicated to working exclusively with adult abuse cases.
Rep. Baugh asked if an individual who refused or failed to report adult abuse would be subject to legal action or penalties under Chapter 209.
Ms. Upton stated that Chapter 209 contained a penalty for individuals who refused or failed to report adult abuse, neglect or exploitation.
Rep. Baugh stated it did not seem right to penalize an individual who failed or refused to report adult abuse when cabinet officials, law enforcement officials, and judges could potentially fail to do their part as well.
Ms. Upton stated that she agreed.
Sen. Stine recognized Representative Jimmie Lee and noted he is an advocate for victims of adult abuse, neglect, and exploitation.
Rep. Lee stated that adult abuse, neglect, and exploitation was a huge problem for Kentucky and he was committed to working with other members of the General Assembly in passing a bill that would better protect vulnerable adults.
Sen. Stine stated that she pledged her support as well.
Ms. Upton stated that some law enforcement officials, prosecutors, and judges are unaware of the problem or extent of adult abuse, neglect, and exploitation, and of KRS Chapter 209 and its criminal penalties. She said that at times when law enforcement did investigate, the alleged perpetrator may not be charged with a crime if the officer believed the prosecutor may not pursue prosecution. She stated under KRS Chapter 209 only 34 persons were convicted of crimes in the past four fiscal years.
Ms. Upton said that enforcement officials stated that in some instances, social workers provided too little information or irrelevant information on the DSS 115 form which could result in potentially dangerous situations becoming lost in the numerous notifications faxed to the law enforcement agency. She stated that in cases of emergencies, it would be more efficient and effective for the social worker to call the police officer instead of faxing the DSS 115 form. A lot of the problems could be addressed by sharing of information among state and local agencies.
She stated that based upon staff's research the following summarized recommendations were offered:
Recommendation 2.1: Department for Community Based Services should provide better oversight and coordination of the Adult Protective Service investigations conducted by the 16 regional offices.
Recommendation 2.2: Department for Community Based Services' standards of practice should be revised to identify specific conditions under which its workers must call a specified law enforcement agency or a specified law enforcement officer to explain the situation, in addition to faxing a DSS 115 form.
Recommendation 2.3: Department for Community Based Services should develop a standardized DSS 115 form that provides information on the potential crime.
Recommendation 2.4: Department for Community Based Services should assign a social services priority code to each law enforcement referral.
Recommendation 2.5: Training on adult abuse, neglect, and exploitation should be mandatory and timely for Department for Community Based Services social workers, law enforcement officers, prosecutors, and judicial officials.
Recommendation 2.6: Cabinet for Health and Family Services 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.
Recommendation 2.7: Cabinet for Health and Family Services and other state agencies should establish new and renewed relationships with local agencies and advocacy groups to share information, provide training, and promote awareness of adult abuse.
Ms. Upton stated that phase two of the report continued with chapter 4. She stated that the information contained in chapter 4 confirmed staff's conclusion that a lack of basic communication within and among state and local agencies could sometimes undermine the goal of protecting vulnerable adults from abuse, neglect, and exploitation. She said that staff noted the following three weaknesses: (1) inadequate communication among people who care for and protect vulnerable adults, (2) inadequate analysis and availability of information in computer systems that store information on people, investigations, and outcomes, and (3) inadequate communication among those computer systems.
She stated that staff also concluded that the lack of coordination of adult protective services was hampered by the lack of federal and local funding. She said that numerous grants from the federal government and private foundations were available and should be pursued. She stated that the Commonwealth has no central office staff that is responsible for identifying the grant opportunities and coordinating interagency applications.
Ms. Upton stated that confidentiality requirements also hindered the coordination of adult protective services. She stated that confidentiality requirements often prevented social workers and law enforcement officers from obtaining information needed to identify and protect a vulnerable adult.
Therefore, staff recommended:
Recommendation 4.1: The Office of the Governor should consider creating a unit to oversee the coordination of adult protective services: (1) facilitate communication among people, (2) facilitate interagency staff access to information in computer systems, (3) facilitate coordination among systems, (4) identify and coordinate federal grants, and (5) explore how to share confidential information.
Ms. Upton stated that social workers, other state agency staff, law enforcement, prosecutors, judges, and advocates interpret the definitions of abuse, neglect, and exploitation differently. She stated that the very people who care for and protect vulnerable adults do not adequately understand each other's roles, responsibilities, and constraints, which can lead to differences in the acceptance of a case for investigation, the type of charges filed by a law enforcement officers, and the prosecution and convictions obtained. Solutions are to require timely initial and ongoing training, including multidisciplinary training. Another solution is to require Cabinet for Health and Family Services central offices to research the best practices of local offices and help others implement the practices.
Therefore, staff recommended:
Recommendation 4.2: Governor's Office and Administrative Office of the Courts should implement recommendation 2.5 and expand it to include multidisciplinary training on each agency's roles, responsibilities, and constraints in adult protective services.
Recommendation 4.3: Central Offices of Department for Community Based Services, State Long Term Care Ombudsman, Mental Health and Mental Retardation Services, and Office of Inspector General in Cabinet for Health and Family Services should research, compile, and disseminate best practices of local offices.
Ms. Upton stated that another area of concern to staff was the inadequate analysis and availability of information in the Department for Community Based Services' (DCBS) computer system on people, investigations, and outcomes of investigations. The DCBS system is called The Workers Information System (TWIST) which is the statewide repository of information on adult protective services' investigations. She stated that adult protective services investigations were added to that system in 2001.
Ms. Upton stated that a particular concern was the low rate at which allegations were substantiated by the social workers. She stated that the reason for that could be that the standard for substantiation is higher for adult protection cases than for child cases. For clarification she stated that in a child case, substantiation requires a preponderance of evidence. In adult cases, substantiation requires strong evidentiary or supportive facts. This is the only guidance for social workers and is not based on regulatory authority.
Therefore, staff recommended:
Recommendation 4.4: In conjunction with implementing recommendation 2.4 on using a high priority code when preponderance of evidence indicates abuse, Department of Community Based Services should consider amending 922 KAR 5:070 to provide definitions of "substantiated" and "unsubstantiated" similar to 922 KAR 1:330 for child cases.
Ms. Upton stated that the information contained in TWIST should be made available to agencies and persons who need it. As an example she stated that in September 2004, the Department for Mental Health and Mental Retardation Services (MH/MR) was still waiting to learn the results of over 800 individual cases that had been referred to DCBS, and the Bluegrass Nursing Home Ombudsman was waiting for the results of over 100 cases. She stated that other agencies need to know the results of DCBS's investigations in a timely manner in order to coordinate services.
Therefore, staff recommended:
Recommendation 4.5: Department for Community Based Services should compile statewide and county-level data on allegations accepted for investigation and the outcomes: abuse, neglect, and exploitation. Data should be shared with state and local groups, including local coordinating councils.
She stated that inadequate communication among other computer systems within the different agencies and departments was also a problem. She stated that each agency had its own computerized system to satisfy its own information needs. She explained that sharing information between agencies and departments should be a top priority in order to ensure the safety of victims, social workers, and law enforcement officers. She said that improving statewide communication would improve case management and oversight and better measure the effectiveness of adult protection. As an example, she noted that DCBS uses TWIST and the Inspector General's Office uses the ASPEN Complaint Tracking System (ACTS). Neither system can access the other's case number, meaning that the two systems cannot share information regarding the same case. The Inspector General and the Attorney General would benefit from access to TWIST.
Sen. Karem asked what, if anything, inhibited agencies from sharing information.
Ms. Upton stated that the problem was not that the agencies did not want to share information, but all the different agencies worked within their own statutes, regulations, and information systems. They all need to find a way to communicate and share information with each other.
Sen. Karem asked if any of the agencies were prevented by statute, regulations, or federal restrictions from sharing information.
Ms. Upton stated that staff was not aware of any statute, regulation, or federal restriction that would keep the agencies from working together.
Rep. Burch stated that several years ago a program called IMPACT was established to preserve family integrity by keeping youth in the home and out of institutions. He stated that he was responsible for drafting a bill that mandated that all agencies work together for that individual child. He stated that a mandate should be prepared requiring that the interested agencies involved in protecting vulnerable adults meet on a regular basis to resolve the lack of communication and sharing of information. He expressed the need for improvements in the law and requested Secretary Holsinger of the Cabinet for Health and Family Services to bring together interested groups to review and discuss the legislation proposed to strengthen the laws on vulnerable adults.
Sen. Karem stated he wanted to emphasize the point made by Rep. Baugh that individual citizens are unlikely to report suspected abuse if the involved agencies are not adequately communicating and addressing the problem.
Rep. Lee stated he would like to commend the committee on a report that aptly describes the problem. He noted that one significant problem is a lack of community awareness and lack of media coverage because this is not a glamorous issue that receives much attention despite its prevalence. For example he noted that a television crew came to this meeting a few minutes ago. Once they learned the subject of the meeting, they left.
Ms. Upton continued by stating that coordination among law enforcement agencies could come from the Unified Criminal Justice Information System (UCJIS). She stated that the goal of UCJIS is to share information throughout the criminal justice enterprise that includes approximately 400 law enforcement agencies, jails, prosecutors, the Attorney General, the courts, and correctional facilities.
She stated that the Administrative Office of the Courts was working with the Justice and Public Safety Cabinet to explore possible links between their computer systems. She stated that the Corrections Department information systems were being replaced, and the new system was to include interfacing between Corrections and the Courts. She said that linking with TWIST would enhance the protective services even further.
She stated that another potentially useful part of the Unified Criminal Justice Information System was the Victim Information Notification Everyday (VINE) system. She stated that the VINE system enabled the victim, social workers, and law enforcement officers to know when the status of an alleged or convicted perpetrator changes. An interface between VINE, the Law Information Network of Kentucky, and the state police sexual offender registry would benefit victims by coordinating information on warrants, protective orders, and residence changes of sexual offenders. She stated that an interface between VINE and TWIST could automatically register social workers to receive information from VINE.
Therefore, staff recommended:
Recommendation 4.6: The Cabinet for Health and Family Services and the Justice and Public Safety Cabinet should work together, in consultation with the Administrative Office of the Courts, to design and implement information system interfaces among The Workers Information System, ASPEN Complaints and Incidents Tracking System, and other related CHFS systems and the Unified Criminal Justice Information System.
Ms. Upton stated that some officials indicated that social workers may not be able to conduct thorough investigations because they have high caseloads, or that a lack of workers dedicated to adult protection services hampers investigations, or social workers do not know how to obtain evidence of abuse, neglect, and exploitation under KRS Chapter 209. She said that the Department for Community Based Services (DCBS) has approximately 1,400 social workers, and approximately 100 of those people worked adult cases exclusively. She stated that 450 workers are designated as generic case workers who work both child and adult protection cases. She stated that the overall average caseload of a social worker in the state is approximately 15 cases, which is within the national guidelines. Ms. Upton stated that while the caseload was in line with the national guidelines, the lack of dedicated staff who work exclusively with the adult cases could be a problem.
Therefore staff recommended:
Recommendation 4.7: The Department for Community Based Services should dedicate more social workers to adult protective services.
Rep. Palumbo asked what type of data would be inappropriate to exchange between systems and whether each individual agency would determine what information would be appropriate to exchange.
Ms. Upton stated as an example, that a social worker did not need to see the details of an ongoing legal investigation. The social worker could unknowingly interfere in the investigation.
Rep. Palumbo asked why a social worker, working a case, would not need access to criminal reports.
Ms. Upton stated that it might not be a problem for the social worker to have access to the results of an investigation, but they should not have access to an ongoing criminal investigation because the case is being investigated as a crime. Law enforcement uses certain criteria for collecting evidence and it is important that the evidence not be compromised.
Sen. Stine asked Mike Robinson, Commissioner, Department for Community Based Services, Cabinet for Health and Family Services to address Rep. Palumbo's questions.
Commissioner Robinson stated that there was not a problem accessing information if the social worker was only trying to locate information on a specific person in their caseload. He stated that there was a challenge within the automated systems of protecting confidentiality and making sure that staff stay focused on the cases in their caseload and not use what would be confidential information for their own self-interest.
Rep. Palumbo asked if the automated systems would have the same corresponding case number so that social workers could access some information.
Commissioner Robinson stated that having a case number would give them the ability to find information.
Ken Schwendeman, Executive Director of the Office of Legislative and Intergovernmental Services, Justice and Public Safety Cabinet, stated that there were federal requirements regarding access to the Unified Criminal Justice Information System (UCJIS). He stated that the Cabinet was in the process of developing programming translation protocol which would allow the UCJIS to provide some information without violating the federal requirements.
Sen. Stine announced that the committee meeting would be in recess due to senate members being called to the Senate floor.
Sen. Stine called the meeting back to order and Ms. Upton resumed presenting the report.
Ms. Upton stated that law enforcement officers, including the attorney general, had suggested that services could be better coordinated if DCBS workers received training on conducting investigations, gathering evidence, and documenting the results on the DSS 115 form. She stated that DCBS workers were not required to determine if a crime had been committed, but they did determine if enough evidence was available to substantiate abuse, neglect, or exploitation. She said that it was the responsibility of law enforcement agencies and the courts to determine whether a crime had been committed. She stated that many law enforcement officers use the information on the DSS 115, and it had been suggested that the form be modified to include more specific data elements. She said a modified DSS 115 form could help law enforcement to determine whether a crime may have been committed and whether an investigation should be started at once.
Therefore, staff recommended:
Recommendation 4.8: In conjunction with implementing recommendations 2.1, 2.2, 2.3, and 2.4 on improved procedures for notifying law enforcement of an investigation, DCBS should work with law enforcement officials to determine the specific information they need and to modify the DSS 115 form accordingly.
Ms. Upton stated that the federal government provides no dedicated funding for adult protection services. She said that state officials had indicated to staff that a shortage of funding had hindered the effective coordination of adult protective services. She explained that the major federal funding for Kentucky's adult protective services was the Community Services block grant of $11 million and the Social Services block grant of $2.5 million for fiscal year 2004. She said that additional sources of funding include other federal grants and restricted state funds from marriage licenses and guardianship fees.
She stated that the Department of MH/MR provided services to vulnerable adults through state-run residential facilities and the Supports for Community Living program. With more vulnerable adults living in the community these days, it is not surprising to see that funding for facilities has increased only a little bit, but funding for Supports for Community Living has more than doubled.
She said that area agencies on aging and Kentucky's area development districts provide long-term care ombudsman services. She stated that the local ombudsman offices had been funded in part by civil monetary penalties paid by long-term care facilities for violating federal laws and regulations for the care and protection of vulnerable adults. The amount of penalties collected varies from year to year. She stated that according to Cabinet officials, no civil monetary funding penalties had been made available to the local offices under the Governor's spending plan for the first quarter of fiscal year 2005. She said that as a result, some local offices had to curtail services which could increase the vulnerability of already vulnerable facility residents.
Therefore, staff recommended:
Recommendation 4.9: The Cabinet for Health and Family Services should fully fund a full-time long-term ombudsman office in every Area Development District each year. In coordination with implementing recommendation 4.2, the Governor's Office and the cabinet should explore the use of federal grants and other dedicated state money to supplement the civil monetary penalties used to fund the offices.
Rep. Lee asked what happens to the DSS 115 reporting form once the Department of Community Based Services sends it out.
Ms. Upton stated that each office has a different process, but it starts with the DSS 115 form and then at the conclusion of the social worker's investigation they are supposed to send another form that explains what they did and what they found.
Rep. Lee asked if it was accurate to say that there needed to be a comprehensive review process to know what happens with the reports and to know the final disposition of the case.
Ms. Upton stated that was true. She said that the law enforcement agencies were not required to report back to DCBS. She explained that sometimes when an abuse allegation gets reported to the police, it may be prosecuted under a different Chapter of the law instead of Chapter 209. She said that when that happens, you do lose track of it.
Rep. Lee stated that there needed to be a provision adding reporting requirements so the disposition of complaints could be known.
Rep. Arnold asked if staff was recommending two different offices in the area development districts for a director of aging and a long-term care ombudsman.
Ms. Upton stated that due to a glitch in funding, some of the offices only had a part-time ombudsman to actually go out to the nursing homes. She stated that the report was emphasizing that there needed to be enough money available to have a full-time ombudsman in every district.
Commissioner Robinson stated that the Cabinet would prepare a formal response to the recommendations listed in the report and send to staff. He stated that for the most part, the Cabinet agreed with the recommendations of the report. He said that he wanted to note that the administrators do care about protecting vulnerable adults and children. He stated that the local agencies did a good job and tried to balance their priorities by working on the highest need and greatest importance. He stated that the Cabinet agreed with the assessment that there needed to be more consistency throughout the regions in how policy was applied. He stated that local areas were now getting attention from the Cabinet and there is now a division that is dedicated to protection and permanency. He stated that a medical support team had also been included to provide services in the investigations that involve adults who are ill or have severe health problems. He stated that the Cabinet has already implemented a process to review every case and to notify staff if they have not followed the standards of practices. He also stated that the Cabinet could do a better job in communicating with law enforcement and other agencies. He stated that the Department would be very open to improving the DSS 115 reporting form so that the document would be useful to all the agencies involved. He stated that the Department is encouraging all the regions to take advantage of their local community's resources. He noted the Department is providing a lot of training, but agreed that the Department could do a better job of training employees. He stated that the Department was working with the Administrative Office of the Courts to include training on guardianship and adult protective services at the district judges' conference.
Commissioner Robinson also stated that the Cabinet and the Department are committed to having a piece of legislation that would enhance the protection of vulnerable adults.
He stated that although funding for adult protective services is limited, the Department would like to have a person who specializes in adult protective services in every county. He stated that person may also have to work child cases but could serve as the expert on adult protective services in that county.
Rep. Burch asked if the Department had sufficient funds to hire enough workers to take care of both child and adult protections services.
Commissioner Robinson stated that the department does not have sufficient funds for hiring additional people. He stated that the Department is trying to keep to the national standard of 15 to 18 cases before bringing on another social worker. He said that during the interim the department was going to try to balance the workload across the counties. Commissioner Robinson stated that until today, he was unaware of the 800 investigations still pending from MH/MR.
Sen. Stine asked why 800 investigation were still pending.
Commissioner Robinson stated that he did not understand that, but it was a problem that could be fixed. He stated that if they would provide to the Department the list of the 800 pending investigations, the Department would match those against the data in TWIST to determine the final results.
Rep. Lee asked if a policy manual would be developed outlining the process of reporting and who would be responsible for following the various processes through the system and the interaction with other agencies.
Commissioner Robinson stated that the Department already has such a manual in its standard operating procedures, but the challenge is making sure that those procedures are followed on a consistent basis across the state. He stated that the Cabinet should sit down with all the agencies involved in the process and make a clear statement as to who is responsible for what. He stated that the standard operating procedures should be published on the website so anybody, including the general public, could see exactly what was supposed to be done in a particular situation.
Commissioner Robinson stated that the administration was committed to working with anybody who had an interest in adult protection legislation and the Cabinet and the Department were committed to writing legislation that would advance the overall process and make the environment a better place for everybody to live and work.
Sen. Stine stated she wanted to reiterate that the General Assembly can continue passing laws but if the administrations do not enforce the laws the General Assembly creates, the work is for naught. She stated that in many ways an effective legislative structure is in place, but there is a lack of communication, coordination, and training. She stated she was encouraged by the attitude of the administration, the Cabinet, and the Department but the focus should not be on statutory changes; rather, the statutory changes are needed to ensure that the administration is doing what it should be doing.
Commissioner Robinson agreed. He noted that quality legislation, regulations, and policies are not enough and that they must make sure that good standard operating procedures are followed and that staff is knowledgeable.
Sen. Stine stated that because there was no quorum for a vote on the report, that the report would be voted on at the next meeting of Program Review.
Meeting adjourned at 1:50 p.m.