Interim Joint Committee on Health and Welfare


Minutes of the<MeetNo1> 4th Meeting

of the 2009 Interim


<MeetMDY1> October 21, 2009


The<MeetNo2> 4th meeting of the Interim Joint Committee on Health and Welfare was held on<Day> Wednesday,<MeetMDY2> October 21, 2009, at<MeetTime> 1:00 PM, in<Room> Room 129 of the Capitol Annex. Representative Tom Burch, Co-Chair, called the meeting to order 1:06 PM, and the secretary called the roll.


Present were:


Members:<Members> Representative Tom Burch, Co-Chair; Senators Tom Buford, Julian M. Carroll, Perry B. Clark, Denise Harper Angel, Alice Forgy Kerr, Joey Pendleton, Katie Kratz Stine, and Jack Westwood; Representatives John A. Arnold Jr., Scott W. Brinkman, John "Bam" Carney, Bob M. DeWeese, Brent Housman, Joni L. Jenkins, Mary Lou Marzian, Reginald Meeks, Tim Moore, Darryl T. Owens, Ruth Ann Palumbo, Susan Westrom, and Addia Wuchner.


Guest Legislator:  Representative Derrick Graham.


Guests:  L. Allen Dobson, Jr., MD, FAAFP, Vice President, Carolinas Healthcare System, North Carolina Department of Health and Human Services; Wendy Carlin M.S., R.D., L.D., Program Coordinator, Obesity Prevention Program, Cabinet for Health and Family Services; Baretta R. Casey, M.D., MPH, FAAFP, Director, University of Kentucky Center for Excellence in Rural Health, Professor, University of Kentucky College of Medicine, Vice Chair, Department of Family and Community Medicine, East Kentucky Campus, University of Kentucky North Fork Valley Community Health Center; Tonya Chang, Kentucky Director of Advocacy, American Heart Association, Great Rivers Affiliate; Jim Kimbrough, Issue Specialist, Long Term Care, American Association of Retired Persons (AARP) Kentucky; Molly Dobson, Contracts and Budget Planner, Kentuckiana Regional Planning and Development Agency (KIPDA), Louisville; Mary Crowley-Schmidt, Assistant Director, Department for Human Services Area Agency on Aging, Bluegrass Area Development District, Lexington; Whitney Jones, MD, Clinical Professor of Medicine, University of Louisville, Founder, Colon Cancer Prevention Project; Thomas C. Tucker, MPH, PhD, Director, Kentucky Cancer Registry, Associate Director, Cancer Prevention & Control, Markey Cancer Center, University of Kentucky College of Public Health; Linda Craig, Family Support Specialist, Daviess County, Patricia Pregliasco, Social Service Clinician, Jefferson County, Barbara Cowan, Social Service Worker, Kenton County, Sheila Patrick, Social Service Clinician, Menifee County, American Federation of State, County and Municipal Employees; Donna Brown; Heidi Schissler Lanham and Marsha Hockensmith, Protection and Advocacy; Debra Anderson and Kristi Campbell, BRMC; Marlene Helfrich and Sandy Rutledge, Kentucky PTA; Eric T. Clark and Ruby Jo Lubarsky, Londa Knollman, Kentucky Association of Health Care Facilities; Rhonda Joyce, Hardin Memorial Hospital; Eugene Gross, American Federation of State, County, and Municipal Employees; Susan White, Save the Children; Margaret Levi, Ephraim McDowell; Gene Huff, CHI; Laura Belcher, T.J. Samson Community Hospital; Mike Haynes, Kentucky YMCA; Tom James, Partner for a Healthy Louisville; and J. Mullar.


LRC Staff:  DeeAnn Mansfield, CSA; Amanda Dunn, Miriam Fordham, Ben Payne, Gina Rigsby, and Jonathan Scott.


A motion to approve the minutes of the September 16, 2009 meeting was made by Senator Buford, seconded by Senator Stine, and approved by voice vote.


Senator Stine, Co-Chair, Families and Children Subcommittee, reported the subcommittee met that morning and heard a presentation from Dr. Ruth Ann Shepherd and Paula Goff on the First Steps Program.  The program is a statewide early intervention system that provides services to children from birth to age three who have developmental disabilities and their families. First Steps focuses on providing family-centered services by utilizing a Consultative Model done by a therapist providing consultation and instruction to the child’s caregivers, who in turn actually provide the interventions throughout daily routines. The specific services provided through the Consultative Model are based upon the Individual Family Service Plan, known as an IFSP, developed for each child and family participating in the First Steps Program. The subcommittee learned that there is a national four-tier ranking system.  Kentucky is currently at level three and anticipates rising to level two by June 2010.  The federal funding is not in danger as long as Kentucky does not drop to level four. Approximately 12, 900 children are served each year by First Steps and there are currently 6,462 Kentucky children with an active ISFP.  First Steps is funded through a combination of General Fund dollars, Tobacco Settlement Funds, Family Share, Insurance, Medicaid, Federal Part C, and Federal ARRA funds.


The subcommittee heard a presentation on Psychiatric Residential Treatment Facilities, known as PRTFs, given by Kerry Harvey, Acting Inspector General for the Cabinet for Health and Family Services, and Stephanie Brammer-Barnes, Policy Analyst, Inspector General’s Office.  The subcommittee heard testimony that described what PRTFs are and where they are located throughout the state.  PRTFs have existed in Kentucky since 1991 and are for patients age six to 21 that have an emotional or severe emotional disability.  Currently there are 21 PRTFs in the Commonwealth.  As of October 2009, there are approximately 189 PRTF patients, but the state has a CON capacity for nearly 100 more patients. Staffing requirements were discussed showing that the professional requirements range from high school diploma minimum for the majority of staff, to college degrees for those that run the facilities.  During 2008, 228 children were provided care in out-of-state facilities due to the fact that Kentucky PRTFs cannot offer them the needed treatment services.  Additionally, the average per day payment for out-of-state care is $340 and the average per day payment for in-state care is $400.


Representative Marzian, Co-Chair, Health Issues and Aging Subcommittee, reported the subcommittee met that morning and heard a presentation by Lisa Allgood, Dr. Johann Herberth, and Andreas Price on a proposed kidney disease task force to study and address chronic kidney disease. Kidney disease strikes one in nine Kentuckians. The loss of kidney function is associated with heart disease, stroke, circulatory problems, and bone disease. Diagnosing chronic kidney disease, or CKD, at an early stage can delay the onset of end stage renal disease. Mr. Price, a transplant recipient, stressed the importance of education about the disease. 


The subcommittee next heard a presentation on diabetes in Kentucky from Theresa Renn, Greg Lawther, and Dr. Baretta Casey. Diabetes is the fifth leading cause of death by disease in the state with an estimated 14.3 percent of adults living with diabetes, both diagnosed and undiagnosed.  In 2002, the estimated costs of treating the disease were $2.9 billion per year. The mission of the Kentucky Diabetes Prevention and Control Program is to reduce the number of new cases of diabetes and its complications.  The program is funded with state and federal funds and works through a number of public and private partners. The program’s newest initiative is the Diabetes Centers of Excellence launched with funding provided by the General Assembly. The goal of the program is to improve outcomes and decrease costs among adult Medicaid recipients with diabetes. The centers are located in six sites and cover 30 counties. The centers have shown positive outcomes with significant improvements in meeting standards of care.  The Kentucky Diabetes Network is a statewide nonprofit working on diabetes issues. Dr. Casey reported on the activities of the Kentucky Diabetes Research Board which was established by the legislature in 2004. The goal of the board is to establish Kentucky as an authority on the advancement of diabetes research by funding research on diabetes.  The board will complete reviews of the funded projects at the end of the two-year grant cycle. But, the board’s annual funding of $200,000 was cut as of 2008. The funds have been depleted and no further grants can be made.  Without restoration of funding, the research board will dissolve in 2010. The subcommittee also heard testimony from Lisbon Hardy and Kim DeCoste.  The American Diabetes Association stressed the importance of appropriate care for those living with the disease, particularly in school settings.  Diabetes educators specialize in training diabetes patients in self care behavior changes. 


The following administrative regulations were referred to the committee for consideration: 201 KAR 2:320 – establishes the requirements for a manufacturer permit and for functioning as a manufacturer of drugs; 201 KAR 20:240 – establishes fees for licensure, registration, examination, renewal, reinstatement, and continuing education for a registered nurse who applies to be credentialed as a sexual assault examiner; 201 KAR 20:370 - establishes requirements and procedures for nurse licensure and registration; 201 KAR 20:411 - establishes the requirements relating to a sexual assault nurse examiner course and the credentials of a sexual assault nurse examiner; 900 KAR 6:051 - repeals 900 KAR 6:050, which has been incorporated into other administrative regulations; 900 KAR 6:055 - establishes the forms necessary for the orderly administration of the Certificate of Need Program; 900 KAR 6:060 - establishes the timetable for submission of application requirements necessary for the orderly administration of the Certificate of Need Program; 900 KAR 6:065 - establishes the requirements necessary for the orderly administration of the certificate of need application, review, decision, and reconsideration process; 900 KAR 6:070 - establishes the requirements necessary for the consideration for formal review of applications for the orderly administration of the Certificate of Need Program; 900 KAR 6:075 – establishes the requirements necessary for consideration for nonsubstantive review of applications for the orderly administration of the Certificate of Need Program; 900 KAR 6:080 – establishes the guidelines for alleviating an emergency circumstance for the orderly administration of the Certificate of Need Program; 900 KAR 6:085 – establishes the guidelines for the transfer of a certificate of need for the orderly administration of the Certificate of Need Program; 900 KAR 6:090 – establishes the requirements for filing, hearing, and show cause hearings necessary for the orderly administration of the Certificate of Need Program; 900 KAR 6:095 – establishes the requirements for administrative escalation necessary for the orderly administration f the Certificate of Need Program; 900 KAR 6:100 – establishes the required timetables and standards for implementation as well as requirements for biennial reviews for the orderly administration of the Certificate of Need Program; 900 KAR 6:105 – establishes the policies for issuance of advisory opinions necessary for the orderly administration of the Certificate of Need Program; 900 KAR 6:110 – establishes the notification requirements by facilities of the addition or establishment of a health service, and the notification requirements by facilities of the reduction or termination of a health service or bed capacity, and the notification requirements by facilities of the intent to acquire a health facility for health service; 900 KAR 6:115 – establishes the certificate of need requirements for critical access hospitals, swing beds, and continuing care retirement communities; and 900 KAR 6:120 – establishes the provisions for the pilot project for primary angioplasty in hospitals without on-site open heart surgery (“pilot program”) established in the 2004-2006 State Health Plan for the certificate of need program. A motion to take a separate vote on 900 KAR 6:075 and 900 KAR 6:120 was made by Representative Housman, seconded by Senator Buford, and approved by voice vote. A motion to accept all the administrative regulations except 900 KAR 6:075 and 900 KAR 6:120 was made by Representative Buford, seconded by Senator Pendleton and approved by voice vote.


Senator Buford made a motion to adopt the amendment to 900 KAR 6:120 that would separate the angioplasty pilot program hospitals from psychiatric bed hospitals. Secretary Miller said that the cabinet has some technical problems with the amendment. She said that the administrative regulation as promulgated allows the two facilities to go through but it takes them out of the pilot status. The cabinet does not agree that the way the amendment is done is technically correct and opposes the amendment. Representative Burch asked if the amendment was needed, and Secretary Miller said it goes above and beyond by taking the two facilities out of being in the pilot status because they have successfully demonstrated their ability to provide services safely with good outcomes. Senator Buford said that the amendment separates the angioplasty hospitals from the psychiatric hospitals. Representative Burch asked Secretary Miller if she wanted to defer 900 KAR 6:075 until the November Interim Joint Committee on Health and Welfare meeting, and she said she did not think it was necessary.


Representative Moore asked if the administrative regulation 900 KAR 6:120 the one being voted on or is the language currently being offered as an amendment dealing with another administrative regulation that has not yet come up for discussion. Secretary Miller stated that the administrative regulation before the committee is the one the cabinet promulgated and proposed to be adopted, and the amendment that has been offered is what the cabinet is opposed to. Ms. Galvagni, Kentucky Hospital Association, said that the pilot project regulation was actually written and pertains to the two pilot hospitals only. The KHA feels it is better to include the language that is currently in the nonsubstantive review regulation into the regulation that affects the two hospitals. The amendment is the identical language in the nonsubstantive review regulation but is just being put into the pilot program regulation which the KHA feels is a better place for the language and will assure the two hospitals can move forward since there is already a letter of objection on the nonsubstantive review regulation. Representative Burch said that even if the committee adopts the amendment, the cabinet does not have to implement it.


Dave Nicholas, Committee Staff Administrator, Administrative Regulation Review Subcommittee, stated that KRS Chapter 13A.320 states everything in the regulation process requires agreement between the agency and the committee except the finding of deficiency. If an amendment is proposed by the committee, there has to be agreement from the agency. If the agency does not agree, the amendment is out of order. Senator Buford withdrew his motion for the amendment as presented because there was not a second. He made a motion that 900 KAR 6:120 be deferred to the November meeting of the committee. Mr. Nicholas stated that it would require agreement with the cabinet. Senator Carroll stated that it was his understanding that Senator Buford was only proposing to postpone the discussion on the regulation until the next meeting, but the regulation would be approved by the committee at today’s meeting. A motion to defer action on the amendment until the next committee meeting was made by Senator Buford, and seconded by Senator Carroll.


Senator Stine asked if no action was taken on a regulation at today’s meeting, would the regulation go into effect in 30 days. Mr. Nicholas said that by law the regulations had been referred to the committee and placed on its agenda and would go into effect upon adjournment. Senator Carroll explained that the committee would not be delaying action on the regulation but delaying action on taking a sense of the committee on a proposal that would have to go forward as a regulation again issued by the cabinet but had nothing to do with 900 KAR 6:120. Senator Buford said that was correct. Mr. Nicholas stated that if the regulation is deferred, it would be held over until the next meeting. A motion to call the amendment back up for review at the next meeting was made by Senator Buford, seconded by Representative Arnold, and approved by voice vote. A motion to approve 900 KAR 6:120 was made, seconded, and approved by voice vote.


Secretary Miller stated that 900 KAR 6:075 does not circumvent the process, but amending the regulation is following the very process the General Assembly has set forth for the cabinet to follow. It is a process that contemplates that changes will be made to the regulation after public comment and that is exactly what happened in this regulation. The subject matter of this regulation is and has been amended 17 times since 1999 to address specific needs of communities or specific needs in the Commonwealth. These changes benefitted communities and providers all across the Commonwealth from every district. This nonsubstantive review contemplates these types of actions and has authority in statute and has been used by the cabinet many times over the past years. The cabinet did not make the amendments in a regulation in a manner to attempt to hide the changes but followed the legislative mandated regulation process. The regulation will allow anyone to apply for the certificate of need (CON) as long as they meet the specific requirements for the specific number of children on a no reject/eject basis. The regulation has five basic changes: (1) establish nursing facility services at the new Eastern State Replacement Facility; (2) allow a psychiatric hospital with no more than 50 beds in an ADD which does not already have a free-standing psychiatric hospital in place; (3) allow two pilot hospitals to move forward and come out of pilot status; (4) allow the transfer or relocation of up to 30 existing CON-approved nursing facility beds to move from one facility another if the beds do not meet the sprinkler requirements that is upcoming in the CMS requirements and the county receiving the beds is at least a contiguous county sending the beds; and (5) allows for large nursing facilities of at least 250 beds to transfer no more than half of their beds to facilities and counties within the same ADD.


Secretary Miller stated that children have been placed in out-of-state psychiatric treatment facilities for years and this has been recognized as a long standing issue. Psychiatric treatment facility services are limited to psychiatric hospital services and psychiatric residential treatment facility (PRTF) services. Existing Kentucky psychiatric treatment facilities do not have the individualized, intensive, multi-disciplinary team approach, with heavy emphasis on behavioral health services and supports, to meet the specialized treatment needs of these children placed in out-of-state facilities. A solution was to amend the nonsubstantive certificate of need (CON) regulation to allow for the establishment of psychiatric hospitals to treat these children. The goals are to develop capacity in-state to provide individualized, intensive services with heavy emphasis on behavioral health services and supports, provide active treatment, allow children to be treated closer to home so that the family can be involved in their treatment and plan of care, and provide better oversight for Kentucky children. Currently the Department for Community Based Services makes annuals visits to out-of-state facilities, but effective October 2011, new federal requirements will mandate monthly visits. The regulation would allow for the establishment of a new 50-bed psychiatric hospital in an area development district without a free-standing psychiatric hospital contingent upon the following conditions: (1) required to meet the intensive treatment needs of children between the ages of 4 to 21; (2) severely emotionally disabled with severe and persistent aggressive behavior; (3) severely emotionally disabled with intellectual disability; (4) sexually acting out with severe and persistent aggressive behavior; (5) operate under a no reject/eject policy and not refuse to admit or discharge a patient due to the presence of the above characteristics; and (6) provide non-acute active treatment. Cabinet oversight will be in place through the CON, licensure and regulation, and Medicaid regulation to insure that programmatic and regulatory requirements are met. Policy and procedures will be developed for admissions, treatment plans, active treatment, and monitoring.


Commissioner Wilson stated that at the end of September 2009, there were 6,945 children in the custody of the Department for Community Based Services (DCBS) in out-of-home care. The frequency, duration, and intensity of the problematic behaviors, especially aggression, is more heightened than that of Level 5 youth in private child-caring treatment programs. Youth going out-of-state will often have been in a psychiatric hospital in-state for stabilization of acute symptoms, but are determined not ready to live safely in a community setting. An out-of-state placement referral is initiated when all in-state possibilities have been exhausted. Potential out-of-state placements are contacted, giving priority to proximity to youth’s home county coupled with youth’s treatment needs. Once potential placement has been located, the provider’s participation in Kentucky Medicaid is verified and interstate placement proceedings are initiated. Upon Interstate Compact approval from the state in which the placement is located, admission arrangements are made. The minimum length of time from identification of potential out-of-state placements through admission is approximately three weeks. Children are currently place in Alabama, Florida, Georgia, Illinois, Ohio, South Carolina, Tennessee, Texas, Utah, and West Virginia.


Youth range in age from 11 to 20 years of age, with the bulk being 16 and 17 year olds. The males outnumber females almost two to one, and they are from all across the Commonwealth. These youth exhibit problematic behaviors that contribute to difficulty in finding placement and treatment. Managing the behavioral challenges of these youth is complicated by the presence of mental retardation or other cognitive impairments, such as pervasive developmental disorder. Approximately one-third of the youth currently in out-of-state placement have a diagnosed intellectual disability. Mental health diagnoses typically cluster around the following categories, with youth often having multiple diagnoses: (1) behavior disorders – 62 percent; (2) mood disorders – 40 percent; (3) cognitive disorders – 30 percent; and (4) post-traumatic stress disorder – 28 percent. Youth have had multiple placements which could include DCBS foster care, private child care foster care or residential, PRTF, or a psychiatric hospital. The average number of placements prior to placement out-of-state is 14. There are nine youth on their second or third out-of-state placement. Three moved from one out-of-state program to another. Six came back to Kentucky, but had to be sent back out-of-state again. The average age at which these youth came into DCBS care is ten years old. Youth who came into care prior to age ten had an average of 23 placements before going out-of-state. Youth who came into care after turning ten had an average of nine placements before going out-of-state. The DCBS began tracking difficult to place youth in April 2008. These youth are so classified due to aggression, sexual issues, and low functionality. In the 12 months between April 2008 and March 2009, 142 youth were identified with an average of 44 per month. Most were age 11 or older and nearly half had an IQ under 70. Aggression was the most prevalent behavior issue and 29.6 percent were identified as having sexual issues. Twelve of the children were identified as having all three issues.


Representative Burch asked why there are no psychiatric hospitals in certain areas of the state. Secretary Miller said that in the State Health Plan there is a cap of 315 beds available and there are 196 beds that have gone through the process and are in existence and operation. The occupancy of the beds is approximately 189. Representative Burch asked if the reason there are no psychiatric hospitals is because there is there is a staff shortage. Secretary Miller said that these are psychiatric services for children with intellectual and developmental disabilities and take a specific type of treatment. Representative Burch asked how many child psychiatrics were available outside of Jefferson and Fayette Counties. Secretary Miller said there are hospitals providing psychiatric services, but it is the combination of the psychiatrist, or the psychologist and the expertise to perform a behavioral assessment and working with the treatment plan to make sure these children get the active treatment necessary. Representative Burch said the problem is not having more services for the children, but the lack of transparency between the cabinet and the legislature. Secretary Miller stated that the cabinet did not believe the PRTFs have the qualification and ability to meet the very specific treatment need and that is why the hospital licensure category was chosen. She said that there are two PRTFs in the state that can take these children, but there are times they will not accept them because of behavioral problems. There are two or three hospitals that will take children with these diagnoses. Secretary Miller said that there may be a disagreement about the solution, but there should not be a disagreement that these children should be provided services in-state.  Those dollars should be taken and used in developing the capacity to provide this very specialized active treatment in-state instead of sending them out-of-state where they are not able to stay connected to their families and communities.


Representative Wuchner asked if before the regulation was filed was there was dialog with PRTFs and hospital organizations to extend their licensure coverage to address some of the unmet needs or the level of needs these children have because there are a lot of unused beds in hospitals that could possibly be converted under a special license. Secretary Miller said that PRTFs and hospitals can provide these services under the current licensure and do not need a new licensure category.


Representative Owens asked if there is an ADD that does not have a great need for 50-bed psychiatric hospital. Secretary Miller said that there are facilities in Louisville, Lexington, and Northern Kentucky that already can take these children. She said that if someone thought they could develop the critical mass in order to support the type of clinical and direct care staff needed, they could do it at 22 beds. She said that if you are going to allow the establishment of new psychiatric hospitals to meet this specific need, try to get some in the rural areas of the state. Once the facility care is developed, the facility can be used to educate, and mentor clinicians to help treat child placed back in community settings. She said they wanted more geographic dispersions of the services.


Senator Carroll asked when it is necessary to place a child, does the cabinet try to find a bed in Kentucky first, and if one is not found then a child is placed out-of-state. He said that the cabinet is attempting to create beds in Kentucky that are not now available in areas where they will be available and hopefully the child would not have to leave the state and separated from their family.


Nina Eisner, CEO, The Ridge Behavioral Health System, Chair of the Kentucky Hospital Psychiatric and Chemical Dependency Forum, and member of the Kentucky Hospital Association Board of Trustee, voiced concerns with the provision contained in the regulation to allow eight new psychiatric hospitals, totaling 400 new beds, to be built outside the CON process in any ADD that does not have a free-standing psychiatric hospital. The KHA recommends that the committee vote to find the regulation deficient. She stated that Kentucky’s hospitals support treating Kentucky children in Kentucky. No in-state psychiatric hospital is refusing admission of children with special needs who meet their inpatient criteria for acute hospital care. KHA shares the cabinet’s desire to bring Kentucky children back to Kentucky where they can be cared for and be closer to their families. However, the provision in this regulation to build new psychiatric hospitals outside of the CON process has nothing to do with brining children back to Kentucky, and will not achieve that result. This is because the children who are in out-of-state placement are in long-term residential treatment facilities, not acute psychiatric hospital level of care. Long-term residential care is a unique level of care that serves a special population of children who no longer meet the clinical criteria to remain in acute care, but who cannot safely be discharged to their home or to a PRTF. This level of care does not exist in Kentucky because our state does not have a licensure category, with specific standards, for long-term residential treatment facilities like other states. KHA and Kentucky hospitals have repeatedly asked the cabinet to develop this level of care, modeled after programs in other states. Without these standards, Kentucky hospitals cannot simply provide long-term residential care in their acute care beds. Constructing eight new psychiatric hospitals is the wrong policy to meet the needs of children sent out-of-state because it is inappropriate to place them in acute care beds when they need a lower level of care.


Additionally, the cabinet’s plan to build new hospitals under the nonsubstantive review process circumvents the CON and health planning process established by the legislature. By granting nonsubstantive review, applications to build these new hospitals will be presumed needed and will not have to comply with the psychiatric hospital bed need formula in the State Health Plan. These projects will not have to explain how the facility will be staffed. The projected patient costs and charges, or how the facility will work with other providers within the health care system. If existing hospitals want to add beds, they must go through the full CON review process, and would be stopped by the bed need formula if it does not show a need for additional beds. The State Health Plan was updated this summer and no mention of the problems of out-of-state placement or the need for additional beds was ever raised by the cabinet during revision process or public hearing. Kentucky has 33 private psychiatric providers, both freestanding psychiatric hospitals and acute care hospitals with psychiatric units, and they were never consulted or offered the opportunity to work with the cabinet on a solution to this issue. In July, the cabinet published the nonsubstantive regulation for public review, but the amendment to build eight new psychiatric hospitals was added to the regulation after the public hearing was held, essentially denying the opportunity for existing psychiatric hospitals or anyone else to comment on this major policy change. The comment to amend this regulation was submitted by the state, not the public. Typically agencies do not make substantive changes to a regulation by amending it after the public hearing to add things that were never addressed in the original regulation as filed. Also, the cabinet’s proposed amendment is an inappropriate use of the nonsubstantive review process. This process has only been used to relocate existing licensed beds, not to increase the total number of beds or to build new hospitals.


The age range of patients to be treated includes both children as well as young adults and, once a CON is granted, there is nothing to require that the facility’s actual license be restricted. Therefore, these new faculties will impact existing psychiatric hospitals. The regulation states that the new hospitals cannot refuse admission based on the presence of certain conditions, but it does not prohibit refusal if the hospital is full. Since no hospital can operate all of their beds on a standby basis, they will likely fill them with other children and adult patients. Therefore, the amendment does not guarantee that new beds will always be available for the targeted children and not occupied by other patients. Many of the in-state psychiatric hospital providers are part of systems which operate many of the out-of-state programs in which Kentucky youth are placed. The cabinet, not hospitals, decide when a child no longer meets acute hospital criteria and where the child will be placed. Kentucky providers want to be part of the solution. We have a passion to care for Kentucky’s children in the least restrictive, most appropriate, least costly setting. Working with existing hospital and PRTF providers is the best approach to return children quickly to Kentucky, not building new psychiatric hospitals outside of the CON process.



Robert Benvenuti, Attorney and former Inspector General of the Cabinet for Health and Family Services, said that health care providers that are willing to take on the very difficult task of providing care to those children who suffer from conditions which require long-term psychiatric residential treatment deserve to operate under a statutory framework that is thoughtfully designed and directly applicable to the nature and scope of the services provided. Kentucky currently recognizes three dozen levels of licensed care, from laboratories and home health care services to acute care hospitals and psychiatric hospitals. While the acute care setting represents the highest level of care, it is not intended to be used and must not be used as a catch all level of care. Rather, the acute care setting is intended to provide a very narrow level of service essentially limited to care and treatment of a nature that would be unsafe to provide in any other setting. Placing individuals in the correct level of care is a long established concept that seeks to ensure quality care, maximize independence, and support fiscal responsibility. It is only when you have the appropriate setting operating under the appropriate regulatory standards that these goals can be consistently achieved. Regulation aimed at ensuring the health, safety, and welfare of those in need of health care services should never be evaluated or accepted under the theory that standards are interchangeable or close enough. Failure to have a regulatory scheme that provides a tailored approach ultimately sets the mechanisms in place for providers to fail and the citizens of the Commonwealth to receive substandard care. The services offered in a facility must match the regulatory framework within which that facility operates. Operating non-acute programs under an acute care regulation will lead to confusion both for the provider as well as for the regulatory authority. It will cause uncertainty relative to the appropriateness of the underlying reimbursement methodology. Medicare and Medicaid program rules use four criteria to determine the medical necessity of health care items and services. First, the treatment should be consistent with the symptoms or diagnosis of the illness or injury in question. Second, the treatment should be necessary and consistent with generally accepted professional medical standards, no experimental or investigational. Third, the treatment should not be furnished primarily for the convenience of the patient, the attending physician, or another physician or supplier. Fourth, the treatment should be furnished at the most appropriate level that can be provided safely and effectively to the patient. The operational gap between the acute care psychiatric hospital services and long-term psychiatric residential treatment is simply too wide a divide to ensure the delivery of services that meets the three critical components of quality, compliance, and cost effectiveness. Many other states have created additional licensure categories that allow them to appropriately care for children that require long-term residential treatment and it may be determined that Kentucky should need to do the same. The creation of a new category is neither difficult nor complex. The stakeholders all agree that the creation of a new level of care is in the best interest of the Commonwealth. The stakeholders have a sincere and good faith interest to design the category with reasonable deadlines placed on the process by leadership to avoid needless delay.


Senator Carroll said that his understanding from Secretary Miller’s testimony is that presently a provider has the legal authority to provide treatment at a residential level after acute care has no longer been determined if that a provider chooses to do so.  But because some providers do not want to provide these services, children have to be placed in out-of-state facilities. Senator Carroll asked whether a proposal to provide services for the children had been made with the cabinet, and if so, when. Ms. Eisner stated that they had conversations with Secretary Miller and prior to that with the Commissioner of the Department for Medicaid Services. Ms. Eisner stated there are many hospitals that have CON beds that could be used, but there is no licensure category exists for these specific children. Senator Carroll stated that the cabinet who is the regulatory agency has said that hospitals do have the legal authority to treat these children. Mr. Benvenuti stated that the regulation is a CON regulation and is based on what licensure category reflects what goes on in the faculty. If a licensure category does not reflect what goes on in the facility, there is no way a facility can obtain and maintain compliance. Senator Carroll asked if a proposal had ever been sent to the cabinet to create this licensing authority. Mr. Benvenuti said no, but he would like to be a part of it. Senator Carroll said that he should if they want to treat patients in-state. Senator Carroll said that providers have had plenty of opportunity to provide the services, but have not done so. Nor have they asked the cabinet to make the necessary changes to allow them to provide these services. Senator Carroll asked if providers were willing to propose a change in the regulations to authorize providers to provide residential care for these children that are being placed out-of-state at the same reimbursement rate. Ms. Eisner said that providers will operate residential beds if there is a licensure category providers can utilize to provide these services, and they have had this conversation with Secretary Miller. Senator Carroll asked if they had asked for this in writing, and she said that Mike Rust, President, Kentucky Hospital Association, has sent a letter to Secretary Miller. Senator Carroll asked that a copy of the letter be provided to the members.


Representative Meeks asked that Secretary Miller come back and update the committee on the progress being made with providers.


Representative Burch asked the providers to meet with Secretary Miller by November 25 and decide what is preventing providers from providing the services and come up with a plan on how these services can be provided. Senator Buford said that it is too late to file an application and have it go through the CON process in time. A motion to pass 900 KAR 6:075 was made by Representative Palumbo, seconded by Senator Buford. With a vote of 6 yes votes, 14 no votes, and 1 pass vote, the motion failed. A motion to find 900 KAR 6:075 deficient was made by Representative Owens, seconded by Senator Harper Angel, and approved by voice vote.


A presentation on the innovation for Kentucky’s uninsured by given by L. Allen Dobson, Jr., MD, FAAFP, Vice President, Carolinas Healthcare System, North Carolina Department of Health and Human Services. Dr. Dobson stated that North Carolina is mainly a rural state that is not well suited for traditional managed care. The Successful Carolina Access program linked recipients with primary care physicians in all 100 counties. Issues identified to help improve North Carolina’s healthcare system were: (1) no real care coordination system at the local level; (2) providers felt limited in their ability to manage care in the current system and needed help; (3) local public health departments and area mental health services were not coordinated with the medical care system; (4) duplication of services at the local level; and (5) state silo funding. In 1999, pilot programs were started that joined community providers such as physicians, hospitals, health departments, and departments of social services, particularly in rural areas, into a healthcare system that North Carolina could improve care. A primary care medical home is designated and community networks were created that assumed responsibility for managing recipient care. In 2009, there are 15 networks with more than 4,500 primary care physicians and over 934,000 Medicaid enrollees and 105,000 SCHIP recipients. The North Carolina General Assembly has mandated the inclusion of the aged, blind, disabled, and SCHIP. The program focuses improving care, improving coordination, and saving the state money. He said it is a program about being managed, not regulated. It is a clinical program that provides good care and costs less money. He said that building and organizing the primary care system is the foundation of the program. The success of the Community Care of North Carolina is the investment in a local virtual health system. The public-private partnership changes the relationship between payor and provider into a shared responsibility for the program. Innovation comes from engaging those who actually provide the care. Physician leadership is a must.


Representative DeWeese asked how much of the system is managed care. Dr. Dobson stated that in North Carolina there is very little managed care. The Medicaid agency in North Carolina is the managed care agency versus them having a subcontractor, although the principles of this work very well in a managed care system.


An update on the Boni Bill implementation issues was given by Sheila Patrick, Social Service Clinician, Menifee County, Barbara Cowan, Social Service Worker, Kentucky County, Patricia Pregliasco, Social Service Clinician, Jefferson County. Ms. Patrick stated that she has worked the Commonwealth for 15 ½ years as a Social Services Clinician. She said that after the passage of the Boni bill, there were supposed to be immediate changes for workers in the field and state offices, but not a lot has changed. A letter from Sandy Travis, daughter of Boni Frederick, stated that the Boni bill was a great step forward to protect our social workers, and she thanks everyone who supported it. The funding and the resources invested in worker safety are important, but these investments have fallen short of the promise. Social workers and family service workers across the Commonwealth know the risks and how to reduce them and want to be a part of the solution to their safety concerns. They have learned these lessons from experience and can identify the problems and solutions more clearly than upper or middle management. We do not need any more lessons in tragedy, that devastating lesson was learned in 2006 with the death of my mother.


Ms. Patrick stated that from 2006 to 2008, while child protection service cases went up there was a decline in social service workers I and II and Social Service Clinicians I and II. During the same timeframe, food stamp and K-TAP cases rose, but Family Support Specialists I, II, and III decreased. She said that a lot of the Protection and Permanency workers do have access to criminal background checks, but Family Support Specialists do not and having access to criminal history would be helpful to have when someone comes in for assistance. The incident reporting and tracking system still remains flawed. State-issued cell phones do not work in many areas and laptops cannot access needed databases due to confidentiality in the wireless internet. Workers around the state report that their buildings are no safer now than two years ago. In 2008, there were 638 reports of critical incidents such as attacks, threats, theft, intimidation, verbal abuse, and sexual harassment against workers. As of 2008, despite the bill’s mandate to hire more frontline staff, there were nearly 400 vacancies among frontline titles. The Council on Accreditation recommends that caseloads not exceed 18 children per worker. The Child Welfare League of America recommends a maximum of 15 per worker. Kentucky’s current limit for Protection and Permanency is 25 and there is no limit for Family Support Workers. Workers cannot spend enough time with families and are forced to make rushed judgments. Home visits cannot be performed in pairs which causes danger signs to be overlooked. Families’ reunification may be delayed unnecessarily and foster care placements can get disrupted.


Ms. Cowan said that she has worked for the Cabinet for Health and Family Services for a little over two years as an investigative worker. As front-line workers in child protection, our job duties consist of constant contact via home visits with families and providing services to these families. Unfortunately, the majority of the families is involved with drug use and trafficking, have histories of violent crimes and domestic violence, and have severe mental health issues. She asked how can workers ensure a child’s safety if they cannot ensure their own safety.


Representative Burch stated that his sister was a social worker for a number of years and endured multiple injuries. He said that the job is very dangerous.


Ms. Pregliasco stated that she has been a social worker for 12 years. She said that she and others have been cautioned about coming to testify before the committee about their safety. Nearly every day workers face situation where their safety is put at risk. Routinely workers enter neighborhoods and homes that the police do not go to alone in order to do their jobs. Understaffing is a major problem plaguing the workforce. Workers are being crushed due to the increasing intake and chronic understaffing. The past summer, the Jefferson Region put in place an Overflow Plan that would assign CPS investigations throughout the region outside of the usual investigative teams. Of the open CPS investigations during that time, nearly 50 percent were past due. These CPS investigations went to workers who had no experience with investigations and had no clear supervision or follow-up. These cases put the novice worker at risk, and also the family whose case was handled by the novice worker. Workers are treated like the enemy for even advocating for their safety. The Boni Bill needs to be adequately funded to ensure that another tragedy such as Boni Frederick never happens again.


Representative Burch asked who told them not to testify before the committee. Ms. Pregliasco said that they were not told not to come but were cautioned about what was said. She said that the cabinet nor the administration want bad press, and anything that is said puts the workers at risk of losing their jobs. Ms. Pregliasco stated that workers have been asked to sign a policy on media communications that states they are not to speak to the media or go to the media for any reason. A confidential agreement is signed on all cases.


Representative Palumbo stated that the General Assembly should have fully funded the legislation and given the full $6 million not just $2 million.


Representative Moore said that every year the legislature passes a number of laws declaring something to be necessary and important enough to fund, but if you look at the average budget, there are hundreds of places that the legislature violates its own law and does not fund at the appropriate level. In this particular case, we have heard this testimony as long as there has been emphasis for a Boni bill, and the support for it is never going to wane. He questioned why the cabinet was not present to explain why individual workers are not being appropriately trained because that is not a budgetary limitation. There are people whose job and responsibility it is to ensure that workers are trained, and if that is not being done in violation of all these regulations that we pass at great expense and deliberation, he wanted to know why not. Representative Moore made a request that the cabinet be invited to come back and explain why they are not following existing regulations when we put so much time and effort into passing new ones.


Representative Meeks encouraged committee members to meet with social workers in their counties. He said that the legislators were there representing the workers and it is our responsibility to make sure they have tools they need to do the job.


Representative Carney asked if there are evaluation processes that could protect workers that speak out on behalf of their concerns. Ms. Pregliasco said yes. Ms. Cowan said that the evaluations are pretty general, and there is always a way to justify firing someone.


Ms. Craig said that she said that she is a case manager in the Family Support office in Daviess County. She said that she works with K-TAP and food stamp recipients. Applications can range from two to five per day and the highest can be ten. The applications have to be squeezed in between scheduled appointments, walk-ins, phone calls and daily, weekly, semi-monthly, and monthly deadlines. In addition, written reports are necessary to monitor statistics. Timeframes to complete a case is ten to thirty days, and with the high caseloads and the increased volume of applicants, more clients are waiting the full thirty days and sometimes beyond for their benefits. The main concern is understaffing and high caseloads. Due to the high numbers, workers are unable to serve the poorest and most vulnerable citizens of Kentucky as quickly as their needs arise. Caseloads are having a negative effect on employee retention. It takes at least a year to get a true grasp of a program, and it takes a compassionate and empathetic employee to continue this work with no support from lawmakers and the cabinet. She said that she has had to prioritize her work, and some reports were half completed and filing of case information put aside. This caused the work to double up later when she tried to piece things together. She cares about meeting her clients’ basic needs so they can focus on the goal of self-sufficiency. She is also concerned about the safety of the agency’s employees and the clients served due to the lack of security to control the aggression of distraught clients.


Ms. Patrick stated that some of the solutions are to improve training programs, improve the intake process, establish regular labor management meetings, examine community partnerships and home visit practices, improve office environments, and reduce caseloads.


A presentation on the colon cancer screening program was given by Whitney Jones, MD, Clinical Professor of Medicine, University of Louisville, Founder, Colon Cancer Prevention Project; and Thomas C. Tucker, MPH, PhD, Director, Kentucky Cancer Registry, Associate Director, Cancer Prevention & Control, Markey Cancer Center, University of Kentucky College of Public Health. Dr. Tucker stated that data from the Centers for Disease Control and Prevention, U.S. Cancer Statistics 2005, report compared to all of the other states, Kentucky has the second highest colorectal cancer incidence rate and the highest colorectal cancer mortality rate. Data from the 2006 Kentucky Cancer Registry reports that approximately 2,500 new cases of colorectal cancer are diagnosed each year in Kentucky, that approximately 900 Kentuckians will die each year, that colorectal cancer accounts for 12 percent of all the cancer cases diagnosed in Kentucky each year, and that colorectal cancer accounts for ten percent of all the cancer deaths in Kentucky each year. If the age eligible population were effectively screened for colorectal cancer it would: (1) reduce the incidence of the disease by finding precancerous disease and removing it before it becomes cancer; (2) reduce mortality from the disease by finding it at an early stage when our treatments are most effective; and (3) reduce the cost of treating colorectal cancer by both preventing the disease from occurring and finding it early when the cost of treating the disease is less expensive.


Dr. Jones said that the Kentucky Colon Cancer Screening Program (KCCSP) has many committed stakeholders and partners. KRS 214.540-544 mandates the Kentucky Colon Cancer Screening Program Advisory Committee to develop and implement statewide public awareness campaign with the Kentucky Department for Public Health and the Kentucky Cancer Program, create a state manual for a scalable screening program for the uninsured, and provide an annual report on the implementation and outcomes. Funding will make this program fully operational. All Kentuckians age 50 and older should get regular colon cancer checks, because early colon cancer may have no symptoms. Ninety percent of colon cancers may be prevented or cured through proper screening.


A presentation on childhood obesity and physical activity in schools was given by Representative Addia Wuchner, RN, Former Hospital Administrator, Corporate Relations and Strategic Planning, Cincinnati Health Alliance, Director; Wendy Carlin, M.S., R.D., L.D., Program Coordinator, Obesity Prevention Program, Cabinet for Health and Family Services; Baretta R. Casey, MD, MPH, FAAFP, Director, University of Kentucky Center for Excellence in Rural health, Professor, University of Kentucky College of Medicine, Vice Chair, Department of Family and Community Medicine, East Kentucky Campus, University of Kentucky North Fork Valley Community Health Center; and Tony Chang, Kentucky Director of Advocacy, American Health Association, Great Rivers Affiliate. Obesity in Kentucky cost lives, quality of life, and prosperity. Two-thirds of adult Kentuckians are overweight or obese. Kentucky has the seventh highest rate of adult obesity with 80 percent of Kentucky males overweight or obese. Approximately 32 percent of Kentucky children are overweight or obese. Children are now experiencing an epidemic of Type 2 diabetes and diabetes goes hand in hand with heart disease. Researchers report a 200 percent increase in the number of children hospitalized for Type 2 diabetes. Kentucky has the sixth highest heart disease mortality rate. Heart disease is the number one killer in every single Kentucky county. Kentucky ranks seventh in the nation for the number of adults diagnosed with diabetes, and seventh for hypertension. A study published in the Archives of Internal Medicine found that overweight and obesity may independently increase the risk of heart disease. In 2007, the estimated direct and indirect costs of cardiovascular disease in the United States were $431.8 billion. In 2004, Kentucky hospital charges for cardiovascular disease diagnoses were $2 billion. In 2003, Kentucky estimated medical expenditures for obesity was $1 billion. In 2002, Kentucky estimated direct and indirect costs for diabetes were nearly $3 billion.


Kentucky’s economic performance is closely tied to its ability to maintain a healthy workforce. Today’s insurance actuaries are forecasting healthcare costs based on the current trends in adult, adolescent, and children who are overweight and obese. Kentucky has the fourth highest rate of children overweight in the nation. Approximately 32 percent of children in Kentucky are at risk of becoming overweight or obese. Eighteen percent of young children who participate in the Women, Infants, and Children (WIC) program are overweight and an additional 18 percent of participants are at risk of becoming overweight. An overweight child has an increased risk for hypertension, high cholesterol, Type 2 diabetes, asthma, and psychosocial issues. Children and adolescents should engage in 60 minutes of physical activity on most, but preferably all days of the week. Nationally, 54 percent of high school students are enrolled in physical education. Currently there are no requirements for physical activity or physical education in Kentucky public elementary schools. Though most elementary schools offer both, some do not and there is a great deal of variation in the amount and quality from school to school, elementary schools are allowed to use up to 30 minutes of curriculum time per day for physical activity. Some Kentucky teachers take recess away from students as a form of punishment. Only half a credit is required for high school graduation.


A child spends six to eight hours a day, five days a week, and nine and a half months a year at school. School is the ideal setting for helping to systematically address the issue and provides opportunities to engage in and reinforce healthy behaviors. Schools have a vested interest. Kids who are more physically active tend to perform better academically. Kids who are physically fit are likely to have stronger academic performance. Activity breaks can improve cognitive performance and classroom behavior. Increasing physical activity in schools is the number one priority from the 2004 Kentucky Obesity forums attended by 1,300 people from across the state. The 2008 Partnership for a Fit Kentucky survey showed that 84 percent of the respondents ranked this issue as being among the top four policies for combating obesity. In 2008, 23 states considered physical education or physical activity legislation or regulations.


Ms. Carlin stated that the Department for Public Health works with the Partnership for a Fit Kentucky who is a public-private partnership whose mission is to support policy and environmental changes that promote healthy eating and active lifestyles. In December 2008, a survey was conducted and completed with 885 people in 89 percent of Kentucky counties. Those who participated were from the public health, universities, medical profession, schools, non-profit business, private business, government, and other. Eighty-four percent ranked physical activity in schools in the top four most important policies to combat obesity in their community. Of the 84 percent, 53 percent ranked physical activity in schools number one. Research shows conclusively that physical activity does improve on-task behavior, concentration, memory, comprehension, reading, and math skills, and does not have a negative impact on academics. Kentucky is the second most sedentary state in the nation. Eight out of the ten states with the highest rates of overweight and obese children are in the South.


A presentation on services for seniors was given by Jim Kimbrough, Issue Specialist, Long Term Care, American Association of Retired Persons (AARP) Kentucky; Molly Dobson, Contracts and Budget Planner, Kentuckiana Regional Planning and Development Agency (KIPDA), Louisville; and Mary Crowley-Schmidt, Assistant Director, Department for Human Services Area Agency on Aging, Bluegrass Area Development District, Lexington. In 2000, 16.65 percent of Kentucky’s population was over the age of 60. By 2020 that percentage is expected to grow to 24 percent. Of that population, the fastest growing segment is those 85 years of age or older. Kentucky ranks fourth in the nation for individuals over 60 with limitations. In January 2006, a baby boomer turned 60 every seven and a half seconds. There are three categories of services provided by the Area Agencies on Aging (AAAs): (1) disease prevention and health promotion programs administered through the senior centers and other providers; (2) access to information and resources; and (3) programs that foster independence or are nursing home diversionary in nature. If funding for programs remains flat, not even considering cuts, percentages of individuals served will have to be reduced as the numbers continue to grow rapidly. The AAAs are adept at forming partnerships and collaboration to leverage every dollar. Local governments provide support, but the numbers of people not served and underserved are growing so rapidly that they outnumber those being adequately served. The services provided are not a luxury, but rather a basic need. Providing seniors with services they need to age in place is truly more cost effective and desirable than the institutional alternative.


Ms. Dobson stated that total expenditure for senior services for last fiscal year from the Department Aging and Independent Living in the Cabinet for Health and Family Services show a total of  $18 million in federal funds; $27.3 million in state funds; and $9.9 million in local contributions. A total of 784,000 seniors were served statewide. The department sustained a $3.1 million budget cut in state funds, and at the end of last fiscal year, there was a wait list of 20,000 individuals waiting for services.


Mr. Kimbrough stated a 2007 AARP survey conducted shows 91 percent of respondents in Kentucky age 55 and older want to receive services and remain in their home as an alternative to institutionalization. Kentucky ranks 37th in the nation on how money is spent in Medicaid on institutions and in-home services, with the highest amount spent on institutions. According data from the Centers for Medicare and Medicaid Services, in 2007, out of $1 billion, Kentucky spent 81 percent on institutional care for elders and people with non-intellectual disabilities. Other states have put more Medicaid dollars into home and community based services. The hope is that as the General Assembly starts to adopt the budget for the next biennial, language will be looked at that will strongly encourage the cabinet to do more in a formal and deliberative manner to move to doing home and community based services for our elders and our individuals with disabilities.


There being no further business, a motion to adjourn at 4:25 p.m. was made by Senator Buford, seconded by Representative Brinkman, and approved by voice vote.