Interim Joint Committee on Health and Welfare


Minutes of the<MeetNo1> 3rd Meeting

of the 2003 Interim


<MeetMDY1> August 20, 2003


The<MeetNo2> 3rd meeting of the Interim Joint Committee on Health and Welfare was held on<Day> Wednesday,<MeetMDY2> August 20, 2003, at<MeetTime> 1:15 PM, in<Room> Memorial Hall at the University of Kentucky. Senator Julie Denton, Co-Chair, called the meeting to order at 1:15 PM, and the secretary called the roll.


Present were:


Members:<Members> Senator Julie Denton, Co-Chair; Representative Tom Burch, Co-Chair; Senators Charlie Borders, Tom Buford, Richard Roeding, Ernesto Scorsone,  Damon Thayer, Elizabeth Tori, and Johnny Ray Turner; Representatives Brian Crall, Robert Damron, Bob DeWeese, Mike Harmon, Jimmy Higdon, Joni Jenkins, Mary Lou Marzian, Stephen Nunn, Ruth Ann Palumbo, Jon David Reinhardt, Ancel Smith, Kathy Stein, and Susan Westrom.


Guests:  Ashley Montgomery, U.K. Medical School; Amanda Ralston, Board Certified Associate Rx Analyst; Colleen Ryall, Brain Injury Services Unit, Department for Mental Health and Mental Retardation Services, Cabinet for Health Services; Roseanne Barkley, Cabinet for Families and Children; Donna G. Brown, Kentucky Association of Health Care Facilities and Kentucky Association of Chiropractors; Sarah S. Nicholson, Kentucky Hospital Association; Kathy Gannoe, Nursing Home Ombudsman; Debra Bahr and Teresa Goodrich, Department for Medicaid Services, Cabinet for Health Services; Chris Nolan, McBrayer, McGinnis, Leslie & Kirkland; Betty Ellis, Garrard Adult Day; Monnette Kearry, Jessamine Adult Day; Ann Gordon, Cabinet for Health Services; Karen Hinkle, Kentucky Home Health Association; Jan Gould, Kentucky Retail Federation; David Lane, parent of an autistic child; Clyde Caudill, American Cancer Society Mid-South; Brian Bishop, Kentucky Board of Emergency Medical Services; Rick Greenberg, University of Kentucky Medical Center; Kimberly Burggis, Kentucky Housing Corporation; Krista Wood and Terry Deaton, Kentucky HIV/AIDS Advocacy Action Group; Shane Donly, CHD; Alice Thornton, BGC; Robbie Stone and Nick Sauer, Owensboro Task Force; Carolyn Dennis, Lexington-Fayette County Health Department; Sheila Schuster, Kentucky Mental Health Coalition; Jeanie Schureman, UKCON; Trish Howard and Eric Friedlander, Commission on Children’s Special Health Care Needs, Cabinet for Health Services; Robin Rhoads, Georgetown Active Day; Gary Blalack, Glaxo-Smith Kline; Bob Babbage, Babbage Cofounder; Bill Doll, Kentucky Medical Association; Amanda Beck, Northern Kentucky Health Department; Rice Leach, Commissioner, Department for Public Health, Cabinet for Health Services; Alfred M. Cohen, Director and CEO, Markey Cancer Center, University of Kentucky; Donald M. Miller, Director, James Graham Brown Cancer Center, University of Louisville; Dr. Alice Thornton, Bluegrass Care Center; Cyndee Burton, nurse; Dr. James W. Anderson, Professor of Medicine & Clinical Nutrition, University of Kentucky; and Marcia Morgan, Secretary, Cabinet for Health Services.


LRC Staff:  Robert Jenkins, CSA, Barbara Baker, Eric Clark, DeeAnn Mansfield, Murray Wood, Gina Rigsby, and Cindy Smith.


The first order of business was the welcome by Senator Denton, Representative Burch, and Dr. Lee Todd, President of the University of Kentucky.


The minutes of the July 16, 2003 meeting were approved by voice vote.


Senator Denton reported that the Health Care Subcommittee met that morning and heard testimony by Marcia Morgan, Secretary of the Cabinet for Health Services, on criteria used to determine which individuals meet the level of care for nursing home facilities and the home and community based program.  A motion to accept the report was made by Representative Burch, seconded by Representative Damron, and approved by voice vote.


Representative Burch reported that the Families and Children Subcommittee met that morning, reviewed the results of the federal Children & Family Services Review and heard testimony about staffing ratios in nursing homes.  A motion to accept the report was made by Senator Denton, seconded by Representative Damron, and approved by voice vote.


The first order of business was testimony on the Kentucky Lung Cancer Research Program by Alfred M. Cohen, M.D., FACS, Director and CEO, Lucille P. Markey Cancer Center, University of Kentucky, and Donald M. Miller, M.D., Ph.D., Director, James Graham Brown Cancer Center, University of Louisville.  Dr. Cohen said that the Kentucky Lung Cancer Research Program was established by the General Assembly in July 2000.  Cancer is a common malignancy throughout Kentucky with a cure rate of approximately 20%.  Approximately 1 out of 6 smokers get cancer.  Markey Cancer Center’s vision is to develop the programs, resources, and services of the Center to a level consistent with National Cancer Institute designation and with recognition as a premier Comprehensive Cancer Center.  The Center has linkages with the College of Pharmacy, College of Dentistry, College of Nursing, School of Public Health, and the Sanders-Brown Aging Center.  He said that the Center uses Clinical Care and Research Teams (C-CARTs), multidisciplinary teams of experts who see a patient in a single visit, to define and enhance standards of care, provide oversight of cost-effective care, prioritize clinical research portfolio, and act as a linkage to research laboratories. The Center has three clinical support services: 1) a Symptom Management and Palliative Care Program - SOS-Supportive Oncology Services; 2) clinical research; and 3) clinical genetics counseling service. The  Center is interested in population-based activity to look at risk factors and prevention in the community, funded through the Kentucky Comprehensive Cancer Control Plan.


Dr. Miller stated that the Kentucky Lung Cancer Research Program allows the two cancer centers to build strong, collaborative relationships.  The Center’s vision is to achieve designation by the National Cancer Institute as a Comprehensive Cancer Center and to help relieve the pain and suffering caused by cancer.  The Center has five scientific programs: 1) molecular targets, identifying new targets for cancer therapeutics; 2) tumor immunology that uses immunologic approaches for novel treatments; 3) stem cell biology that develops therapeutic uses for stem cells and improves the understanding of stem cell biology; 4) Cancer Prevention and Control Program, finding new ways to reduce cancer through education and prevention; and 5) experimental therapeutics, developing new cancer treatments in a rational manner.  Dr. Miller stated that the Center also has multidisciplinary teams to see a patient in a single visit.


Dr. Cohen stated that the Kentucky Lung Cancer Research Program is an integrated partnership of the University of Kentucky and the University of Louisville with community physicians.  The goals of the program are to reduce the morbidity and mortality from lung cancer, support efforts to achieve National Cancer Institute Cancer Center Designation, create a statewide clinical trials network, support research in prevention and early detection, and expand expertise in lung cancer research.  The James Graham Brown Cancer Center received a planning grant from the National Cancer Institute to help prepare for its application, and the Lucille Markey Cancer Center is preparing a comprehensive cancer center application.  National experts in lung cancer research outside of the universities review all grants.


Basic scientific research focuses on fundamental questions of lung cancer biology and strategies to identify potential mechanisms for new prevention and treatment paradigms.  There are 27 research projects in cell biology, eight in treatment, two in genetics, and one in detection.  Translational research bridges the gap between basic and clinical inquiry and focuses on individual patient biology in prevention and treatment research. There are two research projects in cell biology, seven in treatment, and one in detection.  Clinical science refers to science applications to groups of patients conducted in phases from the smallest number of patients to large national populations that are usually drug related but may be a device or procedure.  There are two research projects in treatment and one in diagnosis.


Representative Burch asked about the life expectancy of a person diagnosed with lung cancer.  Dr. Cohen said this depends on the stage of the cancer.


Representative Marzian asked for the estimated cost to achieve a Cancer Center designation, and for recommendations for funding.  Dr. Cohen said that money is set aside from the allocation from the General Assembly.  Dr. Miller said that revenue from a change in the tax structure would help recruit new faculty and find research space for their work.  Dr. Cohen stated that, if legislation were enacted to raise the cigarette tax by one cent, each center would receive $5 million.  Representative Marzian asked about the Bucks for Brains Program, and Dr. Cohen said that program has been very effective at both universities.


Representative Palumbo asked about research to find the cause of lung cancer in non-smokers.  Dr. Cohen said that second-hand smoke and radon are factors, but there is no explanations for some individuals.  He said that molecular epidemiology research allows a researcher to use genetic make-up to determine susceptibility to lung cancer.


Senator Buford asked for the amount needed for a two-year strategic plan.  Dr. Cohen stated that there is no certain amount but that each university uses allotted funds for recruitment.  Dr. Cohen said that $5 million in recurring funds would sustain each center for the decade.  Dr. Cohen stated that a $70 million building is being constructed for biological research.


Senator Borders asked about the NCI designation timeframe and the number of designated centers nationwide.  Dr. Cohen stated that there are 41 comprehensive cancer centers, and that both universities will submit proposals within the next two to four years for NCI designation.  Senator Borders asked about research on other types of cancer.  Dr. Cohen stated that both centers have research programs for several types of cancer.


The next order of business was testimony on requirements for continued federal funding for HIV/AIDS in Kentucky by Krista Wood, Kentucky HIV/AIDS Advocacy and Action Group, Dr. Richard Greenberg, University of Kentucky Medical Center, Dr. Alice Thornton, Bluegrass Care Center, Cyndee Burton, Nurse, and Terry Stalions, a person with HIV.  Ms. Wood, on behalf of the HIV/AIDS Advocacy and Action Group, stated that HIV data would:  1) bring more money from the Ryan White Care Act for prevention, education, and medical treatment; 2) provide a more accurate count of people living with HIV in Kentucky; 3) provide a more accurate picture of where the epidemic is and where it is headed; 4) provide early intervention treatment for people living with HIV; 5) help Kentucky understand current and future needs for prevention and care services for people who are HIV-positive and; 6) support epidemic monitoring, voluntary patient referrals, HIV prevention community planning, and prevention intervention evaluation.  She said that Kentucky should use the same data collection and management system that is currently used for AIDS reporting in the state with the same state confidentiality laws that apply to AIDS names reporting in Kentucky.


Ms. Wood said that agencies that would benefit from HIV data are community-based organizations, correctional facilities, schools and colleges, business and industry, local health departments, media legislative staff, service providers, and counseling and testing sites.  Current AIDS data in Kentucky only represents a portion of HIV-infected people who are identified in late stages of the disease.  HIV names reporting would still provide anonymous testing services for anyone taking an HIV test.


Ms. Wood stated that in 2004, the Centers for Disease Control and Prevention (CDC) will mandate that all data on HIV be in the form of confidential names reporting.  States failing to report in the form of names will not be eligible to receive funds for HIV treatment. Kentucky’s current practice of unique identifiers for HIV reporting will result in only receiving money to treat AIDS cases. Medication to treat HIV averages over $700 per month, per person or $32 million annually for the state AIDS drug program.  Currently HIV cases outnumber AIDS cases by at least three to one.


Dr. Greenberg, Dr. Thornton, Ms. Burton, and Mr. Stalions all agreed that Kentucky loses federal funds because there is no name reporting.  All patients deserve to receive the best qualify of care possible.  Kentucky needs accurate statistics to apply for all federal and foundation grants, not just Ryan White funding.  Patients with HIV need aggressive treatment before they progress to AIDS which costs more to treat.  HIV has no boundaries because it affects every age, race, gender, and nationality.


Representative Palumbo said that there are people who do not get tested because they do not want their identity known, and asked about patients receiving assistance at more than one clinic.  Dr. Greenberg agreed that a small number receive care at more than one clinic.  Dr. Thornton said that the Kentucky Drug Assistance Program is monitored closely to assure that only eligible persons receive the drugs.  Representative Palumbo asked when names reporting would be mandated.  Ms. Wood said it would occur in 2004 by the federal government.  Federal privacy law requires the patient to sign a release for medical information and care.


Senator Denton said that all other communicable diseases reported to the Centers for Diseases and Prevention use confidential names reporting.  She asked if Kentucky could report some cases by confidential names reporting if that patient gave permission.  Ms. Wood said that she did not have an answer because it had never been proposed.


Representative Burch said that confidentiality is important, but keeping Kentucky’s citizens healthy is also important.  Representative Burch asked about statistics of people who have died from AIDS since 1986.  Ms. Wood said that there has been an increase.  Representative Jenkins said that Kentucky does not have a choice because the mandate for name reporting is coming.  She said that the citizens have to be educated that if they do not have confidential names reporting they will lose funds for treatment.  The state receives funding from the CDC to provide prevention and education in forty-one counties.  Senator Buford said that there is no computer system that cannot be entered into by hackers and questioned how we could secure someone’s identity.  Representative DeWeese asked about other areas of confidentiality being affected.  Ms. Wood said that they follow HIPPA guidelines to protect patients.  Dr. Rice Leach, Commissioner of the Department for Public Health in the Cabinet for Health Services, stated that if someone wants to receive services from Medicaid or medicines through the Kentucky Drug Assistance Program, or needs services from HIV/AIDS community services, that person must provide a name.  The only place someone does not give a name is in surveillance, which is the total count of how many HIV cases are in Kentucky.


The next order of business was testimony on obesity and health care by James W. Anderson, M.D., Professor of Medicine and Clinical Nutrition, University of Kentucky, Carolyn Dennis, M.S., R.D., L.D., Health Promotion Coordinator, Lexington-Fayette County Health Department, and Rice Leach, M.D., Commissioner, Department for Public Health, Cabinet for Health Services.  Dr. Leach testified that Type II diabetes and obesity have doubled since 1985.  He said that obesity leads to diabetes, heart disease, arthritis, some cancers, and kidney failure.  The costs of diseases associated with obesity are hospital care, health insurance, prescription medications, nursing homes, disability payments, loss of taxable income, and earlier entry into economic dependency.  He stated that the financial burden is shifting to the individual by increasing the employee share of health insurance, increasing co-pays for services, increasing difficulty finding Medicaid providers, reducing Medicaid services, declining in purchasing power of federal grants, declining state funds and staff, and increasing the numbers of uninsured.


Dr. Anderson stated that the burden of diabetes and obesity is greater in Kentucky than most other states.  In eastern Kentucky, diabetes is more than twice as high as expected for that population.  Only three other states have higher rates of obesity than Kentucky.  He said that obesity is increasing at a rapid rate and has increased 46 percent in Kentucky over the past six years.  Obesity is the cause of diabetes in 80 percent of cases.  Prevention strategies for both obesity and diabetes must start in childhood and treatment strategies must be appropriately rigorous.  Currently, Kentucky has excellent treatment programs for obesity, research for diabetes and obesity, and education programs for diabetes.  External support is needed to deliver services to the community and train physicians in diabetes management. Kentucky is in the bottom five states for health problems related to diabetes and obesity.


Ms. Dennis testified that 65 percent of Americans are overweight or obese, and nationally 19 percent of children are overweight.  In the last two decades, the proportion of obese adults doubled and that of obese children and adolescents between six to nineteen years of age tripled.  She said that obesity causes cardiovascular disease, Type II diabetes, cancer, hypertension, elevated cholesterol, gallbladder disease, asthma, arthritis, hernias, infection, increased risk of respiratory failure, and sleep apnea.  Nationally, it costs $52 billion in direct health care costs and $47 billion for indirect costs. The impact on employees includes higher insurance costs and less take-home pay.  The impact on businesses is increased absenteeism, increased health insurance costs, and decreased productivity.  The impact on children includes the increased incidence of chronic diseases at earlier ages.


Representative Burch said that obesity will effect national defense.  He said that there needs to be more exercise in schools and junk foods should be removed and replaced with healthy food.  As more youth become obese, fewer will meet eligibility requirements for the military.  Everybody must change lifestyles to combat the problem.  Representative Stein said that everyone must be educated about the problems associated with obesity, especially young children. Representative Higdon said that is hard to legislate good eating habits but people can be educated on healthy lifestyles.


A motion to approve 201 KAR 2:074, 201 KAR 20:320, 201 KAR 20:330, 900 KAR 6:030, 902 KAR 20:014 & E, 907 KAR 1:011 & E, 907 KAR 1:018 & E, 907 KAR 1:805 & E, and 921 KAR 3:035 was made by Senator Buford, seconded by Senator Roeding, and approved by voice vote.  A motion to amend 911 KAR 2:130 & E was made by Representative Marzian, seconded by Representative Stein, and approved by voice vote.  A motion to approve 911 KAR 2:130 & E as amended was made by Representative Marzian, seconded by Representative Stein, and approved by voice vote. A motion to amend 911 KAR 2:200 & E was made by Representative Marzian, seconded by Representative Stein, and approved by voice vote.  A motion to approve 911 KAR 2:200 & E as amended was made by Representative Marzian, seconded by Representative Stein, and approved by voice vote.  A motion to defer 911 KAR 2:120 & E was approved by voice vote.


The next order of business was testimony on the long-term care level of care and autism program changes by Marcia Morgan, Secretary, Cabinet for Health Services, and David Lane, parent of an autistic child.  Secretary Morgan stated that the National Association of State Budget Officers, “Medicaid & Other State Health Care Issues: Current Trends,” June 2003 reported that every state has either implemented cost containment actions or is considering them for FY 2004.  Seventeen states other than Kentucky have implemented cost containment related to long term care.  The report also included some of the following nationwide cost containment actions: reductions or freezes on provider rates, implementation of pharmacy management initiatives, revisions to eligibility criteria, elimination or limitations of services to recipients, and implementation or increased cost sharing.  She cited examples of Medicaid cost containment in Massachusetts, Arkansas, Oklahoma, Montana, and Texas.


Secretary Morgan stated that to date, the cabinet has balanced the Medicaid budget with limited reductions in eligibles and without the elimination of services.  On January 16, 2003, Governor Patton announced the changes in nursing facility level of care as part of $250 million in cost containment actions to address the Medicaid shortfall.  The emergency administrative regulation, amending 907 KAR 1:022E, became effective April 4, 2003. The regulation provides that nursing facility level of care is required not only for eligibility into a nursing facility but also for eligibility into the Home and Community Based Services Waiver program.  It will also ensure that the most acutely ill or medically fragile individuals qualify for care in a nursing facility with the Home and Community Based Waiver program.  In FY 2003, 25,657 recipients were served in nursing facilities and 15,214 received Home and Community Based Waiver services.


Secretary Morgan said that the changes were also necessary because the old regulation was confusing and contained vague criteria for determining nursing facility level of care and lacked uniformity or consistency that it needed for better provider input into determinations. She explained the nine medical care parameters used to determine nursing facility level of care, and said that the Department for Medicaid Services contracts with a Peer Review Organization (PRO) to make the determinations.  Since the regulation went into effect, 198 residents failed to meet level of care standards during the recertification process and another 50 individuals were denied admission.  She said that 30 percent of the individuals who were de-certified are SSI eligible and will retain Medicaid coverage.  Approximately 70 percent of the denied residents will lose Medicaid coverage unless monthly medical costs exceed their monthly income.  If medical costs do not exceed monthly income, the individual would be eligible under the quarterly spend-down program.


Secretary Morgan said the Home and Community Based Waiver (HCBW) is approved for 17,050 participants, and entry into the waiver requires an individual to meet nursing facility level of care.  This waiver is Kentucky’s community-based option to nursing facility placement.  During FY 2003, there were 15,214 unduplicated recipients in the HCBW with $75.2 million of expenditures.  She said that 3,818 individuals had been approved for the HCBW and 1,209 individual were denied recertification because they did not meet nursing facility level of care.  There are 87 providers who serve 15,214 unduplicated clients.  The range of clients who were lost due to denials is from 1 percent to 33 percent for each provider.  She said that 1,962 individuals receive adult day services from 118 providers.  Presently, 46 counties have no Medicaid adult day providers.  Adult day expenditures have grown from $2.4 million in FY 1997 to $22.1 million in FY 2003.


Secretary Morgan said that many families seeking services for autistic children found that their child was not categorically Medicaid or KCHIP eligible.  Many children with pervasive developmental disorders (PDD) were erroneously certified by the Peer Review Organization as meeting eligibility criteria for the HCBW.  The decertification of children with PDD from the HCBW is unrelated to any regulatory change, but instead is a result of correcting the erroneous certifications.  There have been no changes to the IMPACT Plus program relating to children with PDD.  Colorado, Connecticut, Hawaii, and New Hampshire have mandated health benefit provisions for autism.


Secretary Morgan reported there have been 1,307 appeals filed because of the nursing facility and home and community-based levels of care determinations.  The majority of the appeals were filed after April 4, 2003, when the cabinet and PRO implemented the revised nursing facility level of care regulation.


Representative Burch asked about the number of people involved in the 118 adult day care centers that are licensed.  Secretary Morgan said that there were approximately 2,000 individuals served in adult day care.  He asked if someone who could not access adult day care services would be required to enter a nursing home.  Secretary Morgan said that if the person did not have a caregiver to take care of them he or she would more than likely enter a nursing home.  Representative Burch asked about the consequences of the amendments.  Secretary Morgan stated that the cabinet’s choices are limited, and there will be consequences with the new program changes.


Representative Stein asked about waste in the program.  Secretary Morgan said that the cabinet has taken steps to reduce waste over the past two years and does not believe there is much waste left to be trimmed.


Senator Thayer asked about the number of people who access Medicaid.  Secretary Morgan said that approximately 15 percent of Kentuckians receive services.  He asked in the past if Medicaid served people who did not qualify for services.  Secretary Morgan stated that Medicaid is an entitlement program.  When the economy is bad, enrollment increases.  When outreach was conducted for the KCHIP Program, two out of three individuals were eligible for Medicaid.  She said that providers depend on Medicaid because of the volume of patients and certainty of payment.  Senator Thayer asked if individuals were done an injustice by allowing them into the waiver program during good economic times.  Secretary Morgan said that whenever criteria changes, it effects people and their eligibility.


Senator Denton asked for the number of participating providers.  Secretary Morgan said there are two major provider groups under the home and community-based waiver program.  There are 87 waiver providers that provide services other than adult day care.  The other group provides services for the 118 adult day care centers.  Senator Denton asked Secretary Morgan to provide information on how many individuals had been decertified because they did not quality under the old criteria.  Secretary Morgan said that to provide that information for each case would require each file to be examined.  Senator Denton asked how many appeals had received a final decision.  Secretary Morgan stated that there have been 10 nursing home appeals and 87 home and community-based waiver appeals finalized.


Mr. Lane said that the regulation was not written to help children.  Appeals are proceeding too slowly.  Providers are closing their doors because reimbursement for mental health services are being cut.


Representative Damron and Senator Buford expressed concerns about the qualifications for the Emergency Medical Services grant program which was established so that counties could receive funds to purchase automated external defibrillators.  They both agreed the grant should be investigated to insure that guidelines are followed, and they encouraged that details be brought to the committee for discussion.


There being no further business, a motion to adjourn at 4:55 p.m. was made by Senator Thayer, seconded by Representative Damron, and approved by voice vote.