Program Review and Investigations Committee





<MeetMDY1> July 10, 2014


Call to Order and Roll Call

The<MeetNo2> Program Review and Investigations Committee meeting was held on<Day> Thursday,<MeetMDY2> July 10, 2014, at<MeetTime> 10:00 AM, in<Room> Room 131 of the Capitol Annex. Representative Martha Jane King, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Christian McDaniel, Co-Chair; Representative Martha Jane King, Co-Chair; Senators Tom Buford, Perry B. Clark, Ernie Harris, Jimmy Higdon, Dorsey Ridley, Dan "Malano" Seum, and Whitney Westerfield; Representatives Leslie Combs, Jim DeCesare, David Meade, Terry Mills, Ruth Ann Palumbo, Rick Rand, and Arnold Simpson.


Legislative Guest: Representative Tom Burch


Guests: Judge Roger Crittenden, Chair, Jenny Oldham, External Child Fatality and Near Fatality Review Panel; Tom Cannady, Justice and Public Safety Cabinet.


LRC Staff: Greg Hager, Committee Staff Administrator; Chris Hall; Colleen Kennedy; Van Knowles; Jean Ann Myatt; William Spears; Shane Stevens; Joel Thomas; Brad Mackin, Carolyn Purcell, Graduate Fellows; Kate Talley, Committee Assistant.


Minutes for June 12, 2014

Upon motion by Senator Buford and second by Senator Westerfield, the minutes of the June 12, 2014, meeting were approved by voice vote, without objection.


Upon motion by Senator McDaniel and second by Senator Westerfield, the Number, Cost, And Policies Related To Non-Merit Employees report, which was presented at the June 12 meeting, was adopted by a roll call vote.


Staff Report: Kentucky External Child Fatality And Near Fatality Review Panel

Ms. Kennedy said that Program Review is required by statute to evaluate the External Child Fatality and Near Fatality Review panel annually. An independent review panel was created by executive order in 2012. The General Assembly codified the panel and its structure in 2013. The panel is to conduct comprehensive reviews of child fatalities and near fatalities that are reported to the Cabinet for Health and Family Services (CHFS) and suspected to be a result of abuse or neglect. This independent review panel continues to be attached to the Justice and Public Safety Cabinet for staff and administrative purposes.


The Kentucky and Federal statutory definitions of child “near fatality” describe it as an injury or act that, as certified by a physician, places a child in serious or critical condition. In recent years, Kentucky has averaged 32 child fatalities per year, more than half of which had a history with CHFS. The average number of children in cases involving substantiated abuse and neglect, whether or not the case resulted in a fatality or near fatality, was more than 15,000, with approximately one-half of 1 percent of the cases involving a fatality or near fatality. The rarity of fatalities or near fatalities will affect evaluations of any entity’s work in the short term.


The panel’s review and analysis capacity will change significantly this year with the addition of staff who will be dedicated to the panel’s work. The panel’s 2014 annual report is not due until December, so that report and its impact will be evaluated as part of next year’s Program Review study. This initial Program Review report will focus on describing the panel’s background and organization, its compliance with governing statutes, and its procedures for doing its work thus far.


The panel is a multidisciplinary group of individuals from each branch of state government, from local government, from private non-profits, from universities, and from the community. Panel members are unpaid volunteers. The panel has 15 voting members and 5 ex officio members. Ex officio members can participate in reviewing cases but they cannot vote on the cases.


A memorandum of understanding between the Justice and Public Safety Cabinet and the panel was formally adopted on May 19, 2014. The memorandum documents that the panel is external to the cabinet and is independent of the executive branch.


The report’s first conclusion is that the panel is in compliance with governing statutes. The panel’s statutory requirements are few and broadly stated. The specific statutory requirements are that the panel must “conduct comprehensive reviews of child fatalities and near fatalities, reported to CHFS, suspected to be a result of abuse or neglect; and that it must publish an annual report….” Much of the panel’s work to date has involved identifying how best to meet this broadly-stated purpose.


The panel, which is required to meet at least quarterly, has met at least every other month since June 2013. The panel is also required to post updates after each meeting to the Justice and Public Safety Cabinet’s website regarding case reviews, findings, and recommendations. It has done so by posting the minutes of panel meetings. The panel is required to report a summary of its discussions and proposed or actual recommendations to the Interim Joint Committee on Health and Welfare monthly or at the request of a committee co-chair. At present, the panel posts the summaries on the Justice and Public Safety Cabinet website. It is unclear whether this online posting of the meeting summaries fulfills the requirement. The statute calls for a summary to be reported monthly, but the panel is statutorily required to meet quarterly.


The panel is statutorily required to publish a report by December 1 of each year consisting of case reviews, findings, and recommendations for system and process improvements to help prevent child fatalities and near fatalities that are due to abuse and neglect. The panel’s submission and presentation of its 2013 annual report met this requirement.


Kentucky statute requires that all copies of information and records provided to the panel involving an individual case be destroyed by the Justice and Public Safety Cabinet at the conclusion of the panel’s examination. So far, no fiscal year 2013 or 2014 cases have been destroyed because the panel has not voted on findings for those fiscal years’ cases. Kentucky statute requires all information obtained by CHFS regarding both substantiated and unsubstantiated reports of child abuse or neglect to be divulged to the panel in unredacted form. Statute specifies other sources from which the panel may receive unredacted information.


CHFS makes a finding of “substantiated” or “unsubstantiated” when it closes a case. “Substantiated” is defined by regulation as a case involving an admission of abuse or neglect by the person responsible, a judicial finding of child abuse or neglect, or a preponderance of evidence that abuse or neglect was committed by the person alleged to be responsible. An “unsubstantiated” case is one in which there is insufficient evidence, indicators, or justification present for substantiation of abuse or neglect.


Information and records received by the panel that are confidential under state or federal law are not considered the panel’s records and do not lose their confidential status or become public records subject to the Kentucky Open Records Act. Portions of panel meetings during which an individual child fatality or near fatality case is discussed by panel members may be a closed session that must only occur following the conclusion of an open session. The consensus among panel members is that information provided by those who come before the panel in closed sessions would not be subject to subpoena because the panel is not the official custodian of the information. A panel member cannot be prohibited from making a good faith report to any state or federal agency of any information or issue that the panel member believes should be reported or disclosed in an effort to facilitate effectiveness and transparency in Kentucky’s child protective services.


The report’s second conclusion is that the panel appears to be unique among states in terms of its organizational structure and mission.


California, Colorado, Georgia, Indiana, Michigan, Missouri, and Tennessee were selected for closer review. The report also compares the panel to Kentucky’s State Child Fatality Review Team, which is part of the Department for Public Health. That panel analyzes data on all coroner case child deaths, not just those resulting from abuse and neglect. Kentucky’s external panel appears to be unique in that its jurisdiction includes near fatality cases, its jurisdiction is limited to cases involving abuse or neglect, and it has no responsibilities related to local child review teams. The panel’s attachment to a state department for administrative purposes appears to provide for greater independence. Enabling statutes for state review teams tend to provide for specific ways in which teams should provide information. Kentucky’s enabling statute for its external review panel does not. Two states reviewed have no state-level child fatality review teams. Two more are in the process of moving many of the state team’s responsibilities to the local level.


For FY 2013, CHFS investigated 115 cases of child fatalities or near fatalities suspected to be due to abuse or neglect. Of the 68 substantiated cases, 19 involved a child fatality; 49 involved a child near fatality. Of the 47 unsubstantiated cases, 23 involved a child fatality; 24 involved a near fatality.


As of June 2013, statute requires CHFS to provide to the panel within 30 days, upon request, a lengthy list of records in unredacted form. This list may include records that were not on file with CHFS during its investigation of a case. It is unclear whether panel members either find it necessary to or are able to distinguish via its online case review system whether CHFS had those records during its investigation. The agencies in the statutory list do not always send the required information to CHFS. The panel may request needed records directly from the entity involved.


If the panel were to receive a case that had not been investigated by CHFS, it is unclear whether the panel would request the necessary records through CHFS or on its own. An example of such a case would be one referred directly to the panel from the State Child Fatality Review Team. Such referrals have not happened to date because the panel has not had the staff to handle them. At present, there is no established process.


The report’s third conclusion is that the 2014 General Assembly’s appropriation to the panel of $420,000 per fiscal year, which will be used primarily for additional support staff, should allow the panel to review cases and make recommendations more effectively.


The panel has been an unfunded mandate absorbed by the Justice and Public Safety Cabinet. The panel facilitator, an employee of the cabinet, has been using cabinet staff, including himself, to administer panel details. SharePoint is a Microsoft software product that creates a secure online location for panel members to read all case information, make notes and comments, and discuss cases online with other panel members. SharePoint has been provided to the panel for free since June 2013.


Issues that drove the panel’s 2014 budget request to fund staff dedicated to the panel’s work included the number of cases the panel receives from CHFS and the hundreds of pages of information included in a typical case. Panel members reported a need for a tool to collect information on key risk factors for child fatalities and near fatalities, such as substance abuse or significant emotional shifts in at-risk households, in order to track statistics. At present, the panel is discussing staff requirements, job descriptions, and the possibility of contracting for temporary staff. No formal actions have been taken. Beginning July 1, 2014, SharePoint will charge for its system, at a cost to the panel of up to $7,200 annually. As the Commonwealth Office of Technology integrates SharePoint infrastructure and users from all Kentucky cabinets, the rate is expected to drop significantly.


Representative King said that in the case of the death of Amy Dye in Todd County in 2011, there seemed to be a lack of sharing of information.


In response to questions from Representative King, Ms. Kennedy said that the panel can request records on its own. Not all procedures for doing so have been fully addressed or finalized. This should be remedied with the hiring of staff by the panel.


In response to a question from Senator Westerfield, Ms. Kennedy said that the panel does not have subpoena power. Statute gives the panel power to review cases from CHFS. There is an indication that the panel may receive cases from other sources. Panel staff should be able to answer if the statute should be amended.


Ms. Kennedy said that the fatality panels reviewed in other states deal with any fatality, not just those from abuse or neglect. The other state panels do not review near fatalities.


Senator McDaniel asked that panel members come to the testimony table.


Senator McDaniel said that it is unclear as to how the panel can be evaluated. In response to his questions, Judge Crittenden said that the panel is taking a systems approach, looking for where breakdowns take place and where mistakes are made and informing agencies of this. Ms. Oldham said it will be necessary to take a long-term view of the effect on fatalities.


Senator McDaniel said that it would be helpful in evaluating the panel if it would discuss issues related to evaluation and offer suggestions.


Senator McDaniel said that he was familiar with SharePoint and that it tracks usage. In response to his questions, Judge Crittenden said that there have been no issues related to destruction of documents. Originally, the panel received redacted paper copies. Technically, these were public documents but members destroyed them after use anyway. There should not be an issue with documents that would be needed in another venue, such as Family Court, being destroyed. As long as panel members do not mention names, they can discuss cases in open session. Responding to earlier questions from Senator Westerfield, Judge Crittenden said that he does not want subpoena power for the panel. If an entity does not provide records requested by the panel, this can be reported to the General Assembly.


In response to a question from Representative King about encryption in SharePoint, Ms. Oldham said that the members have been assured that the data are secure. Panel members honor their responsibilities.


Judge Crittenden said that the Program Review report accurately reflects the panel’s work. When the panel asked for funding for staff assistance from the General Assembly, it was provided. The panel is working to hire an attorney through the Justice and Public Safety Cabinet and will contract with nurses who have had experience in pediatric forensics to determine what is needed when hiring staff.


Representative Burch said the panel has the potential to do a lot of good. Initially, he tried to start this process during Governor Fletcher’s administration after a social worker, Bonnie Franklin, was killed. CHFS resisted the idea of an oversight panel at this time. The panel was created to provide transparency for CHFS.


In response to Senator Seum, Judge Crittenden said that the panel only deals with CHFS cases. The panel has not questioned family members, but he assumes that it can. The panel can request court records. In response to a question from Senator Seum about the panel’s authority, he said that the panel cannot force anyone to do anything. The panel can make recommendations and report to the General Assembly on whether and how the recommendations are implemented.


In response to a question from Senator Seum, Judge Crittenden said that panel members review cases; they would not be providing evidence in courtrooms.


Upon motion by Senator McDaniel and second by Senator Westerfield, the Kentucky External Child Fatality And Near Fatality Review Panel report was adopted by a roll call vote.


The meeting adjourned at 11:06 a.m.