Program Review and Investigations Committee




<MeetMDY1> June 10, 2010


Call to Order and Roll Call

The<MeetNo2> Program Review and Investigations Committee met on<Day> Thursday,<MeetMDY2> June 10, 2010, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Greg Hager, Committee Staff Administrator, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator John Schickel, Co-Chair; Representative Kelly Flood, Co-Chair; Senators Jimmy Higdon, Vernie McGaha, R.J. Palmer II, Joey Pendleton, Dan "Malano" Seum, Brandon Smith, and Katie Kratz Stine; Representatives Dwight D. Butler, Terry Mills, David Osborne, Ruth Ann Palumbo, Rick Rand, and Arnold Simpson.


Guests:  Shannon Turner, Executive Vice President of University Health Care, Inc. (Passport Health Plan). Linda Sims, Lincoln Trail District Health Department. Dr. Steven Davis, Deputy Commissioner, Department for Public Health, Cabinet for Health and Family Services. Shannon Pratt, Governmental Relations, Kentucky School Boards Association (KSBA). Heidi Schissler, Division of Protection and Advocacy, Justice and Public Safety Cabinet. Kay Kennedy, Director, Division of Operations and Transportation; Karen Erwin, School Nurse Consultant; Division of Nutrition and Health Services; Kentucky Department of Education (KDE). Nathan Goldman, General Counsel; Sharon Mercer, Practice Consultant; Kentucky Board of Nursing. 


LRC Staff:  Greg Hager, Committee Staff Administrator; Rick Graycarek; Christopher Hall; Colleen Kennedy; Van Knowles; Lora Littleton; Jean Ann Myatt; Sarah Spaulding; Katherine Thomas; Cindy Upton; Stella Mountain, Committee Assistant.


Upon nomination made by Senator McGaha, and seconded by Senator Seum, Senator Schickel was nominated for the position of Senate Co-chair.


Upon motion made by Senator Seum, and seconded by Senator McGaha that nominations cease, Senator Schickel was elected Senate Co-chair by acclamation, without objection.


Upon nomination made by Representative Palumbo, and seconded by Representative Simpson, Representative Flood was nominated for the position of House Co-chair.


Upon motion made by Representative Palumbo, and seconded by Representative Rand that nominations cease, Representative Flood was elected House Co-chair by acclamation, without objection.


Senator Schickel recognized new committee members Senator Jimmy Higdon, Representative Kelly Flood, Representative Terry Mills, and Representative David Osborne.


 Upon motion made by Representative Simpson and seconded by Representative Rand, the minutes of the December 10, 2009 meeting were approved by voice vote, without objection.


Representative Simpson made the motion to add a study topic about the incentives for airline service in Kentucky.


Senator Stine said reductions in service at the airport have been an economic disaster for northern Kentucky. She seconded Representative Simpson’s motion.


Senator Schickel said that this was an important issue for the entire state.


The committee voted to adopt the topic for study by roll call vote.


Van Knowles presented the report School Health Services for Students With Chronic Health Conditions in Kentucky.


Mr. Knowles said this report examines the efforts schools make to ensure that students with diabetes, asthma, severe allergy, and epilepsy are able to participate in school safely and to learn while there. These conditions are chronic and have potentially life-threatening complications. Most require some kind of regular care during school hours, and most cause increased absences and difficulties in the classroom. Based on information reported by school districts to Program Review staff, it was estimated that tens of thousands of students across Kentucky have potentially life-threatening conditions. The quality of health services at school may make the difference between life and death for some of these students every school day.


The report’s major conclusions are that:  1) Most school personnel and nurses appear motivated, dedicated, and skilled. 2) Many schools have inadequate health services staffing and there have been cases of inappropriate care or limitation on care.  Surveys indicated more appropriate care and fewer limitations with school nurses. 3) Laws and regulations are complex and districts do not fully understand their obligations and requirements. 4) KDE provides guidance and technical assistance but not oversight and monitoring.  Other relevant agencies also do not actively monitor services.  Coordination among agencies has improved.  5) Health departments employ more school nurses than school districts do.  Often, coordination is good, but sometimes there is disagreement on services needed.  6) Unlicensed school staff supplement nurses, but there is disagreement on the extent that they should provide care.  7) Many districts cite funding limitations, but some districts in relatively impoverished areas have exemplary health services.  8) Medicaid is a crucial funding source available through health departments only, but it is not available in the Passport region.


Most school districts contract with health departments for school health services. Districts and health departments need to share both educational records and health information. The federal education privacy law and the federal health information privacy law can inhibit this access. The contracts between districts and health departments may need to be changed and federal input may be needed in order to permit legitimate information sharing.


Recommendation 2.1 is that, in consultation with appropriate experts and federal authorities, KDE and Department for Public Health should design a model relationship between school districts and local health departments that will permit the legitimate sharing of health information and educational records under federal education and health privacy laws, and should ensure that school districts and local health departments establish relationships that conform to that model.


Multiple federal and state laws and regulations govern school health services. For students with significant disabilities affecting their ability to learn, the Individuals with Disabilities Education Act establishes the rules for determining the services needed, including health services for conditions that contribute to the educational difficulty. Most students with chronic health conditions would be considered to have a less severe disability under Section 504 of the Rehabilitation Act of 1973. This Act requires the schools to determine what accommodations are needed to ensure participation in school and related activities. Some students with chronic health conditions might not be considered to have a disability, but might still need health services during school and school activities. They are covered by KRS 156 section 502 and other Kentucky statutes.


Recommendation 2.2 is that the General Assembly may wish to consider establishing or clarifying school health policy in the following areas, within the limits of federal law, in several areas:  minimum staffing requirements for school health services; the meaning of “any necessary arrangement” in KRS 156.502; whether districts must provide health services at all school-related programs and activities; whether districts must provide health services in the school a student would ordinarily attend; whether KRS 156.502 should permit certain delegation actions and specify how to change delegating providers; how districts should respond to emergency treatment orders for conditions not mentioned in statute; how districts should respond to prescriptions for new emergency treatments for conditions covered by statute; how districts should respond to parent and physician requests for students to carry and self-administer medication not mentioned in statute; the discretion districts should have when students with permission to carry medications misuse them; whether there should be a written individual health care plan for all students needing routine or emergency care; provision to protect physicians who agree to be district medical directors; and the role parents and their designees, including school employees, may have in providing health services to their children in school.


KRS 156.502 states that school health services shall be provided by physicians or nurses or unlicensed people they delegate. Program Review staff found that school districts have nurses, usually registered nurses, as their licensed health professionals. Staff also found that the number of students per nurse ratio is less than 1,000 and does not meet the national recommended level of 750.


Local health departments employ most of the school nurses who are available to provide student health services. Health departments and schools sometimes disagree on the services needed. Recommendation 3.1 is that the Department for Public Health should advise local health departments on ways to assist school districts to meet their obligations under state and federal laws and on liability risk management. If necessary, the department should request that the General Assembly grant liability protection so that health departments may better serve school health needs.


Staff identified several different models for delivering school health services. Many of the models involved nurses from more than one employer, and some indicated shared responsibility for supervision between the school district and the other employer. KDE has not adequately monitored agreements between school districts and health departments and other contracted providers. At least two agreements were verbal and many of them were vague or did not cover the full range of school health services. Most districts also used trained, unlicensed school personnel to assist nurses. Several districts reported depending on parents to provide care to their children.


Some school districts do not fully understand their obligations and the requirements for providing health services, and some appear not to be meeting the minimum requirements. Recommendation 3.2 is that KDE should require all school district agreements with outside health service providers to be in writing and to be submitted to the department. The department should require all districts to submit regularly updated descriptions of their health services policies, procedures and models of care, including the types, numbers, and supervisors of all licensed and unlicensed personnel.  The agreements and descriptions should be sufficient to determine whether districts meet their obligations to provide health services under state and federal laws. The department should provide guidance to districts on their obligations and monitor their compliance.


Staff identified several issues involving nursing and medical practice that KDE and other agencies might resolve. Some of the issues needing clarification involve unlicensed assistive personnel (UAP) being delegated to administer insulin; no nurse or UAP being available to administer emergency medication for a student with diabetes or epilepsy as required by Kentucky statute; students being prohibited from carrying asthma inhalers or epinephrine kits; and some students being unable to attend school because no one was there to provide the necessary care.  Other school health issues that need clarification are adequate oversight and regulation.  Recommendation 3.3 is that the Kentucky Board of Education and KDE should take the lead to ensure compliance with current and future statutes and regulations. They and the Kentucky Department for Public Health, Board of Nursing, and Board of Medical Licensure, in consultation with other stakeholders, should collectively review the issues identified in the Program Review and Investigations Committee report.  Using their respective authorities, they should develop comprehensive school health regulations, advisory opinions, and advice for school districts, health departments, nurses, and physicians. These should be mutually consistent, should address statutory ambiguities, and should establish minimum requirements for school health services, with flexibility for justifiable variations among districts. If statutory changes would be helpful, the agencies should propose such changes to the General Assembly.


Most school districts pay for their health services out of their general fund. For the 72 districts providing detailed financial information to Program Review staff, the median spending on school health services was less than 1 percent of total district spending. Because of federal disability laws and the Medicaid “free care rule,” schools may not bill Medicaid or most insurers for student care.  Health departments may bill Medicaid because of a federal exemption for recipients of Maternal and Child Health (Title V) funds.  Recommendation 4.1 is that the General Assembly may wish to consider whether to require private insurers to cover school health services provided by registered nurses and licensed practical nurses.  It also may wish to consider ways to permit school health providers to receive reimbursement without requiring families to pay out of pocket, so that the providers may bill for services to students with disabilities.


Although Medicaid covers school health services in other parts of the state, the Passport Medicaid managed care organization does not. Within the Passport region, the number of schools per nurse and number of students per nurse are at least twice as high as outside that region. The school districts’ own expenditures per pupil are higher in the Passport region than in any other region.


In the Passport region, school health services do not fit with the “medical home” model and payments would have to come from existing programs. Passport, Medicaid, the Department for Public Health, and health departments have held discussions on this issue, and Passport has proposed partial coverage, but so far no agreement has been reached.  Recommendation 4.2 is that the Department for Medicaid Services, Department for Public Health, local health departments, and Passport should continue to seek an equitable method to cover school health services for students enrolled in Medicaid in the Passport region. If they are unable to reach an agreement, the General Assembly may wish to consider whether it can establish a solution within or outside the Medicaid managed care waiver.


Districts may look at options for providing adequate care at the lowest cost, including use of UAP and sharing costs with health departments.  Some states, such as West Virginia, Louisiana, Virginia, South Carolina, Tennessee, and Georgia, provide additional funding for school nurses.  Medicaid and some insurers do not cover a second prescription for medication or equipment needed at school.


Senator Schickel noted that there was disagreement on the administration of insulin in schools and he asked what the findings of the report were on this issue. Mr. Knowles said the Department of Education should make the decision about how the problem should be resolved. The staff report presented both sides of the argument.


Representative Mills asked why there was a low response to the school budget survey and if the numbers would change if all districts were reporting. Mr. Knowles said surveys went out during the H1N1 epidemic, which may help explain the low response rate. He could not be sure if the results would change if every survey was returned but doubted it since the numbers represented 51 percent of students.


Representative Flood asked for specifics on the discussions mentioned in the report among Passport, Medicaid, Department for Public Health, and health departments. Dr. Davis said Passport, the Cabinet for Health and Family Services, and the Department for Public Health have been working through issues for the past 2 to 3 years, which has included 3 or 4 direct meetings among the parties.


Ms. Sims said that there was a strong school health program before Passport. There have been more than a dozen meetings with Passport about its provision of services in schools by health departments. Passport has offered to pay $18 per procedure but that health departments cannot afford to provide service at this rate.


Ms. Turner said that under the Passport medical home model providers are paid a monthly rate and this is supposed to cover all healthcare services. She noted examples of Passport’s excellent results in care for children but noted that some teenagers may not get necessary care because they do not seek medical treatment as often.


Representative Flood said that this is something that she would continue to monitor and that the General Assembly may be able to motivate the parties to find middle ground.


Representative Palumbo asked why some slides in the presentation had different numbers of school districts responding. Mr. Knowles said that there were four different information requests sent to districts, and the number of responses varied.


Representative Palumbo asked if estimated numbers of students with chronic conditions could be higher because some school districts did not respond and whether the same districts did not respond to each information request. Mr. Knowles responded that it was a reasonable estimate because only a few districts did not respond. The districts not reporting, which were not always the same ones, were not especially large.


Senator Higdon complimented Ms. Sims for her department’s work. Passport would be a good model for more areas of the state. He asked if there are any reports as to how much it costs the state to provide services through Medicaid compared to hiring school nurses. Dr. Davis said the total statewide billing amount, including the federal match, was approximately $20 million but that number fluctuates.


Representative Simpson made a motion to adopt the report. Representative Flood seconded the motion.


Senator McGaha asked whether health department billings for school health increased by 31 percent in the past fiscal year due to an increased number of students or more districts requesting services. Dr. Davis said more students were served and more districts requested that services be provided by health departments.


Senator McGaha asked how much it costs to perform those services. Dr. Davis replied that reimbursement was complicated and he would have to get that information for Senator McGaha.


Senator McGaha asked whether there was a profit or loss to the health departments in providing school health services. Dr. Davis said he could provide specific information but that he thought there was a surplus.


Senator McGaha said that he was aware of schools billing private insurance without the knowledge of the parents. Dr. Davis said he was also aware of this situation and that this should not be happening.


Senator McGaha said, referring to Recommendation 2.2, that schools should already have policies that cover discretion for when students carry medications. Mr. Knowles said the schools do not feel they have discretion. There is a statute that says schools must permit this if parent and physician agree.  The school would have to appeal to the parent or physician. Ms. Pratt said that the schools have policies on school health services.


Senator McGaha asked how many districts have policies. Ms. Pratt said 173 of 174 districts use the KSBA policy service.


Senator McGaha questioned whether the General Assembly should get involved if school boards have their own policies. He did not favor the part of Recommendation 4.1 that recommended the General Assembly consider requiring private insurers to cover school health services. This is an unfunded mandate for insurers. The minimum staffing requirements mentioned in Recommendation 2.2 would be an unfunded mandate for school districts. Ms. Pratt agreed that districts would have to pay for additional staff. In response to an earlier question, she said that districts are required to bill private insurers before Medicaid even though the private insurers will not reimburse.


Ms. Schissler said that the Division for Protection and Advocacy is an independent state agency advocating for rights of disabled students. All students with chronic health conditions are covered under IDEA [U.S. Individuals with Disabilities Education Act] or Section 504 [of U.S. Rehabilitation Act of 1973]. Under federal law, schools are required to provide services at school and all after school functions. Protection and Advocacy agrees with the American Diabetes Association that students who can self-administer should be able to carry their medications.  Routine diabetes care can be carried out by unlicensed personnel without the need to delegate.  Students should be educated in their home schools.  Protection and Advocacy should be among the agencies involved in dealing with this subject.


Senator Stine said the committee should hear from additional parties, such as the Department for Medicaid Services, the Board of Medical Licensure, private insurance carriers, and other stakeholders.  Input is needed on issues such as liability for providers, mandates for insurers, and mandates for schools regarding personnel.


Representative Simpson withdrew his motion to accept the report. Representative Flood withdrew her second.


Senator McGaha said that students are covered through IDEA and Section 504, which have specific procedures and requirements. The issue is implementation of existing policies rather than adopting new requirements. He asked if school districts and health departments understood existing law. Ms. Erwin said that school districts do not and health departments probably do not. She said it was impossible with only one state nurse [Ms. Erwin] to monitor implementation of existing law.


Dr. Davis said that improvements in provision of services have already been made in response to the report.


Nathan Goldman, General Counsel for the Kentucky Board of Nursing, read a written statement.  He said the board put together a task force to study the issue of health care for school children.  As a result of the task force, KDE added a requirement that unlicensed personnel must complete a Board of Nursing approved training course before administering medication.  The Board worked with KDE and the Department for Public Health to develop a course that will be offered this fall.  The current education statute does not allow a licensed practical nurse to delegate to unlicensed personnel.  Current research does not support their delegation of injectables by a nurse.  He said the Board of Nursing would work with KDE, the Department of Public Health, and any other interested agency or party to improve the health of school children.


Sharon Mercer, Practice Consultant for the Kentucky Board of Nursing, said that research was both in favor and against letting nonlicensed practitioners administer insulin. Until the research is conclusive, the board supports only nurses administering insulin.


Senator Schickel said this topic would be covered at the July 8, 2010 meeting.


The meeting was adjourned at 11:50 a.m.