Call to Order and Roll Call
Thethird meeting of the Interim Joint Committee on Health and Welfare was held on Wednesday, September 19, 2012, at 1:00 PM, Kaleidoscope, Inc., Younger Adult Day Health Center, 10330 Bunsen Way, Louisville, Kentucky<Room>. Representative Tom Burch, Co-Chair, called the meeting to order at 1:02 p.m., and the secretary called the roll.
Members:Senator Julie Denton, Co-Chair; Representative Tom Burch, Co-Chair; Senators Joe Bowen, Tom Buford, Perry B. Clark, David Givens, Denise Harper Angel, Alice Forgy Kerr, Dennis Parrett, Joey Pendleton, and Katie Stine; Representatives Julie Raque Adams, Bob M. DeWeese, Kelly Flood, Brent Housman, Joni L. Jenkins, Mary Lou Marzian, Tim Moore, Darryl T. Owens, Ben Waide, and Addia Wuchner.
Guest Legislator: Representative John Will Stacy.
Guests: Darla Bailey, President, Kaleidoscope, Inc., Younger Adult Day Health Center; Terry Wood, husband of Carolyn who attends Kaleidoscope; Michael, Kaleidoscope participant, Dr. LaQuandra S. Nesbitt, Director, and Kathy Harrison, Louisville Metro Department of Public Health; Pamela McDaniel, Director of Parent Outreach, Carol Mueller, Director of Public Relations, Cindy Baniago, Karen Ricci, and Donovan Fornwalt, Council on Disabilities; Carrie Banahan, Executive Director and Bill Nold, Deputy Director, Office of Health Policy, Cabinet for Health and Family Services; Dana Cox Nickles, Policy Advisor to the Secretary, Cabinet for Health and Family Services; Dr. Terry I. Brooks, Executive Director, Kentucky Youth Advocates; Rusty Cress, America’s Health Insurance Plans; Renee Craddock, Capital Network; Sherry Currents, Kentucky Domestic Violence Association; Paul Ankeny; Jodi Mitchell, Kentucky Voices for Health; Steve Hart, Kentucky Board of Pharmacy; Marty White, Capital Link Consultants; Carolyn Keelen, parent, Kaleidoscope; Don and Nora Putnam, Oakwood parents; Sandra Robie, Community Living, Inc.; Scott D. Majors, Kentucky Board of Physical Therapy; Eric Friedlander, Deputy Secretary, and Tina Webb, Cabinet for Health and Family Services; Heidi Schissler, Protection & Advocacy; Elizabeth Fiehler and Phyllis Sosa, Department for Aging and Independent Living, Cabinet for Health and Family Services; Michelle Sanbord, Children’s Alliance; Bruce Bushman, stepparent of John and Robbie who attend Kaleidoscope; Sue Johnson, KIPDA ADRC; Laura Anness Espinola and Stacey Gash, Kentucky Board of Pharmacy; Jim McWilliams, Governor’s Office of Policy Management; Russell Harper, CoventryCares of Kentucky; Jim Richardson, Richardson Associates; Andrew Wacker, Family Foundation; Libby Milligan, MSS; Denise Bingham, Three Rivers District Health Department; Sabrina Moore, Dreams With Wings; Clyde Caudill, Jefferson County Public Schools, Anne Marie Regan, Kentucky Equal Justice Center; Sarah S. Nicholson, Kentucky Hospital Association; Drew Jenkins, Office of the Attorney General; Ed LeMaster, Bluegrass-Oakwood; James Sharp, American Cancer Society, Cancer Action Network; James Conway, Wellcare; Tonya Chang, American Heart Association; Charles Kendell, Kentucky Department of Public Health, Cabinet for Health and Family Services; Jill Seyfred, Prevent Child Abuse Kentucky; Patty Dempsey, The Arc of Kentucky; David Harris, National MS Society; Karen Lentz, EPIC Pharmacies; Mike Porter, Kentucky Dental Association; Peggy Porter, Independent Insurance Agents of Kentucky, Inc.; Steve Bing, Kentucky Public Health Association and Kentucky Health Department Association; and Carl Boes, Kentucky Association of Regional Mental Health and Mental Retardation Programs, Inc.
Approval of the Minutes of the August 15, 2012 Meeting
A motion to approve the minutes of the August 15, 2012 meeting was made by Senator Buford, seconded by Representative Moore, and approved by voice vote.
Consideration of Referred Administrative Regulations
201 KAR 2:340 – establishes the requirements for the special pharmacy permit for clinical practice; 201 KAR 22:040 – establishes the requirements and procedures for the renewal and reinstatement of credentials for a physical therapist or a physical therapist assistant; 201 KAR 22:045 – establishes continued competency requirements and procedures of the Board of Physical Therapy; and 910 KAR 1:190 – sets forth the standards of operation for the nutrition program for older persons. A motion to accept the administrative regulations was made by Representative Owens, seconded by Senator Harper Angel, and accepted by voice vote.
Welcome and Presentation by Kaleidoscope
Darla Bailey, President, Kaleidoscope, Inc., Younger Adult Day Care Health Center, stated that therapy is an integral part for persons with developmental disabilities to achieve their goals. She said that legislators can contact her at 502-664-7816 with questions or concerns. Supplies delivered to individuals are often not correct or too many are received, but if the supplies are cancelled, it could be very difficult to get back on the list to receive them.
Ms. Bailey introduced Michael, who started attending Kaleidoscope one year ago and is enrolled in the Money Follows the Person (MFP) program and receives $125,000 per year for his services. Supplies delivered to patients are often not correct. Nick, Michael’s physical therapist, stated that when Michael first started attending Kaleidoscope he could not walk. After doing activities and exercises, he can walk approximately 300 feet. Libby, Michael’s speech therapist, stated that Michael can talk well about things he wants to talk about. Living in the community, he gets a lot of attention, which has helped him become more verbal and willing to do different things he was not able to do in an institution.
Ms. Bailey introduced Terry Wood, husband of Carolyn, and stated that Mr. Wood would like to be able to purchase supplies directly for his wife using her Medicaid card. In 2011, Senate Bill 128 was passed by the Senate that would allow enrollees in a home and community based services waiver program to make a direct purchase of all necessary medical devices, equipment, and supplies. In 2012, House Bill 130 was introduced to with the same language. Neither bill passed both chambers to become law. Legislation with the same language will probably be introduced again during the 2013 Regular Session.
Representative Burch stated that it is important that money follow the person so individuals can receive needed services in the community. Every person has the right to reach full potential.
The Future of Public Health
Dr. LaQuandra S. Nesbitt, Director, Louisville Metro Department of Public Health and Wellness, stated that public health is about public and private partnerships. Only 20 percent of the population’s health outcomes are related to quality and access of care. The other 80 percent is related to health behaviors, social economic factors, as well as the physical environment. Factors that affect health include counseling and education, clinical interventions, long-lasting protective interventions, changing the context to make individuals default to healthy decisions, and socioeconomic factors. Addressing social economic factors like education, poverty, stable housing, and other inequalities is where the largest impact needs to be focused. The level of education attained is closely related to a person’s ability to live a healthy and productive life. Since a large number of individuals have decided that vaccines are not as necessary as before, there is a resurgence of vaccine-preventable illnesses. Public health officials realize there is a need to reinforce the importance of long-lasting, high impact protective factors that could keep communities healthy. When the health of Kentuckians is improved successfully, it will be because resources have been allocated in the correct places and recognition of the important of investments in the social economic factors and increased access to clinical services. Kentucky public health departments have ten core functions that break down into three basic areas of assessment, policy development, and assurance. If Kentucky addressed systematic issues and problems, any disease or behavior can be effectively addressed and improve outcomes. People with lower incomes or who live in certain geographic regions tend to have poorer health outcomes. In the Kentucky county health rankings, Louisville Metro/Jefferson County ranks second highest out of 120 counties for the quality of care available. Kentucky has to have an outcome driven approach and remain committed to having a good data information structure for that approach to work.
In response to a question by Representative Burch, Dr. Nesbitt stated that Jefferson County has a smoke-free workplace law. Many employers have joined to form collaboratives. Louisville Metro has a Worksite Wellness Initiative that provides awards to local companies who are doing things to improve the health of its employees. Private sector companies realize programs need to be implemented to maintain a healthy workforce.
Preventing the Hiring of Former Abusers to Care for Adults with Developmental Disabilities
Pamela McDaniel, Director of Parent Outreach, Council on Developmental Disabilities, stated that her son, Cory, is 11 years old and a student at Churchill Park School. Due to his significant medical history, he is deemed medically fragile, and requires total care for his activities of daily living. Cory is non-verbal, incontinent, and struggles to do the simple things that most people take for granted. Her concern is if anyone did something to her son, he could not tell anyone. In a report in the American Journal of Orthopsychiatry, Victimization of Children with Disabilities, the authors reported that children with disabilities are more likely to be victims of abuse but may have more difficulty than their typically developing peers reporting their experience. She stated that not only are disabled people easy targets, but teaching them appropriate boundaries and self protective measures is very difficult or sometimes impossible. While Cory is protected under child abuse protection laws now, there are no protections in place for him when he turns 18 years old. She said that there need to be protections in place to make to make sure the most vulnerable individuals are protected no matter what their age.
Carol Mueller, Director of Public Relations for the Council on Developmental Disabilities, stated that she is the guardian of her sister, Donna, who has autism to a profound degree. She has a history of suddenly leaving her home or caregiver, eating inedible objects, entering strange cares, houses, or yards, and acting out when upset. She needs care with every aspect of hygiene and daily care. While most direct support professionals do their jobs admirably, any of them, if they have done the job awhile and are honest and not afraid of retaliation, will tell you that abuse is common. Statistics say that only five percent of even serious crimes against victims with developmental disabilities and three percent of sexual abuse is reported. Individuals with developmental disabilities are ten times more likely to be victims of sexual assault and twelve times more likely to be victims of robbery. The Cabinet for Health and Family Services received a three year National Background Check Program (NBCP) grant from the Centers for Medicare and Medicaid Services (CMS) in May, 2011. The grant will fund the implementation of the program for the first two years. Kentucky applicant Registry and Employment Screening (KARES) is a pre-employment screening mechanism that will prevent individuals from hiding criminal or abusive actions when seeking employment in long-term care facilities. State law currently requires applicants for employment in long-term care facilities to submit to a check of the nurse aide abuse registry and name based, state only criminal records check. There is no requirement for additional or ongoing checks during the individual’s employment that may reveal if the individual has committed any crimes after being hired. Through KARES, applicants will submit to a check of all available abuse registries and fingerprint supported, state and FBI criminal background checks.
In response to a question by Representative Marzian, Ms. Mueller stated that the cameras in the facility Donna was in were turned off due to privacy rights of patients and staff.
Legislative Hearing on Executive Order 2012-587 relating to the establishment of the Kentucky Health Benefit Exchange
A motion was made by Senator Givens and seconded Representative Wuchner that the committee vote to report the findings that explain why Executive Order 2012-587 is out of order and report them to the Legislative Research Commission Director with the understanding that he will forward them on to the Governor. Representative Wuchner asked for a roll call vote.
In response to a question by Representative Owens, Senator Givens stated that the Senate Majority staff provided the State of Findings to the committee.
Representative Burch stated that the courts have stated that the Governor issuing an executive order is in line with the Kentucky Constitution. The committee needs more time to look at the handout in order to make an informed decision.
In response to comments made by Representative Marzian, Senator Givens stated that it would be bad form to make a motion relevant to the health benefit exchange presentation. The motion relates to the specific authority cited by the executive order under KRS 12.028 as to whether any Governor can create a new entity and then house in that new entity a totally new purpose. KRS 12.028 relates to reorganizations that are clearly defined in the statutes as the transfer of existing functions. The motion is made with regard to whether KRS 12.028 provides for the authority that the executive branch has cited.
Representative Owens stated that it would be difficult to make an informed decision and judgment on the documents prepared and passed out by the Senate Majority staff that members had not seen before the meeting but would be issued by the Interim Joint Committee on Health and Welfare. He suggested delaying the vote on the findings to give everyone an opportunity to figure it out and make an informed vote.
Representative Flood stated that clearly this is a staged moment so that members could be “on record” with a vote that none of the members are prepared to make except for Senator Givens.
Senator Stine stated that a motion is appropriate at any time.
Representative Housman stated that he agreed that this has caught some people off guard, but he said that this is, unfortunately, very standard practice for the committee.
Representative Burch stated that even if an explanation was given at the meeting, it is too complex and there are some questions about the accuracy of parts of the findings. He stated that there will not be a quorum present after the discussions to take a vote on the motion. The Governor can issue an executive order any time he wants, and it is up to the General Assembly to say whether it is legal or not during the next Regular Session.
Senator Denton requested that Senator Givens go through the findings so that everyone on the committee understands the intent and meaning and how it relates to KRS 12.028.
Senators Clark, Harper Angel, Parrett, and Pendleton, and Representatives Burch, Flood, Jenkins, Marzian, and Owens left the meeting.
In response to questions by Senator Denton, Senator Givens stated that KRS 12.028 provides the executive branch the authority to create a new organizational unit and transfer existing duties under state law to the newly created entity. The findings explain why the authority exercised by the executive branch does not exist. KRS 12.028 is written to result in the efficiencies of operations as would result from reorganization of existing activities under state government. The Statement of Findings include: 1) Section 29 of the Kentucky Constitution states that the legislative authority in Kentucky resides in the General Assembly; 2) Section 81 of the Kentucky Constitution requires the Governor to faithfully enforce the laws of Kentucky; 3) The General Assembly has not enacted legislation creating Health Insurance Exchanges, nor have we allowed any other entity to create Health Insurance Exchanges; 4) The Governor has issued a document styled Executive Order 2012-587 which purports to create Health Insurance Exchanges in Kentucky and assigns those new duties to a new entity of the Commonwealth. It also purports to add over 200 new state employees to the state payroll to perform duties not in existence prior to the issuance of the purported order; 5) The purported order was issued under the authority of KRS 12.028, styled as a reorganization; 6) The purported order does not, as required by KRS 12.028 indicate a “transfer of functions, personnel, funds, equipment, facilities and records from one organizational unit or administrative body to another”; 7) Rather, the purported order creates completely new duties to be performed by a completely new entity, neither of which can be found in statutes enacted by the General Assembly, and is an attempt to exercise authority beyond the power of the Governor found either in statute or the Constitution. Therefore the purported Order is an unlawful act by the Governor and is void and of no effect upon the Government and people of Kentucky; and 8) Because the purported order is not a reorganization order, but an attempted usurpation of Legislative Authority by the Governor, this committee is not bound by KRS 12.028 to any particular review period, and may comment on the Governor’s actions at any time.
He said that the first conflict arises in KRS 12.028 (1)…changes in the state government organizational structure which may include the creation, alteration or abolition of any organization unit or administrative body and the transfer of functions, personnel, funds, equipment, facilities, and records from one (1) organization unit or administrative body to another. KRS 12.028(3) states any reorganization proposed under subsection (1) or (2) of this section shall be set forth in a reorganization plan which shall be filed with the Legislative Research Commission. The plan shall include: (a) An explanation of each proposed change, including the need for the change; (b) An estimate of any reduction or increase in expenditures, itemized as far as practicable, which the promulgating officer expects will result from the reorganization; (c) A description of any improvements in the management, delivery of state services, and efficiency of state government operations which the promulgating officer expects will be realized as a result of the reorganization. The entire statute is written to result in efficiency of operations as would result from reorganization of existing activities under state government.
In response to questions by Representative Stacy, Senator Givens stated that the statute speaks to the committee’s authority to review and report findings relative to the executive order. Executive Order 2012-587 is not an executive order under the authority cited in KRS 12.028. If the Governor does not act in favor of the motion, the next step would be if someone wanted to pursue it in a court of law to see if the Governor has the authority to create the health benefit exchange. KRS 12.028(5) states that a temporary reorganization effected under subsections (2) and (4) of this section shall be terminated ninety (90) days after sine die adjournment of the next regular session of the General Assembly unless otherwise specified by the General Assembly.
Senator Stine stated that the Contract Review Committee did not confirm the contract to rent space for the Kentucky Health Benefit Exchange office, but the cabinet leased the space anyway. All branches of government need to know their boundaries and ensure all actions are constitutional.
Senator Stine stated that it was regrettable that all the Democrats on the committee had left the room, because it is important that everyone hear, listen, and have dialogue and work together to address the important issues. She stated that this is an Interim Joint Committee on Health and Welfare, therefore, it is the right forum and important to discuss all issues that affect Kentuckians.
Senators Bowen stated that when there is a committee meeting it is a proper forum to discuss anything. While the legal issue is an important component, the most overriding component is that to preserve the balance of power in state government.
Senator Buford stated that an explanation on the exchange as to the duties to be performed and services that would be provided through the executive order. The next step is to determine if the executive order is proper or not. There is an appropriation issue to the state if the exchange is created and the expenses are supposed to be itemized to the best of the ability of the executive branch. The executive order states that the operations of the exchange will be wholly funded from the revenues generated by the exchange which is a tax on insurance premiums. The exchange will be Kentucky-only insurance companies. He said that a vote can be taken even though there is no quorum because it sets a statement and indicates that those present are not agreeable to the tax increase at this time. Senator Denton stated that there was a quorum.
Representative Moore stated that he appreciated the conversation even with the limited quorum that still remains. An airing of different perspectives is how a consensus is created to lead the state and do so in a way that everyone can agree with or at least know they have been part of the process. The executive order says “NOW,THEREFORE, I, Steven L. Beshear, Governor of the Commonwealth of Kentucky, by virtue of the authority invested in me by the Constitution of the Commonwealth of Kentucky and KRS 12.028, do hereby Order and Direct.” Even in the order itself, there is a recognition that the power of the Office of the Governor stems from the authority granted to him by the people and the people’s representatives in the Kentucky Constitution and the Kentucky Revised Statutes. The issue is about the authority of the Office of the Governor to reorganize existing state government during an interim. That reorganization has to get approval of the legislature. The authority has not been granted to create and establish, according to the statute cited in the executive order.
Senator Givens stated that the vote taken indicates a willingness to engage in debate and discussion about good public policy. KRS 12.028(4) states that if the committee does not report on a proposed plan within the time specified, the plan shall be considered reviewed by the interim joint legislative committee with appropriate jurisdiction. Failure to take a vote indicates that the executive branch has the authority to do what it is doing, and because it is reviewed and reported without the mood of the governing committee, it would be presumed to be not only appropriate authority, but okay for the executive branch to do what has been done. The vote is very significant and lays groundwork for great future dialogue about trying to develop what is good public policy as it relates to purchase of health insurance in Kentucky.
Senator Denton stated that rules say that once there is a motion that a vote on the motion must be taken. The motion made by Senator Givens and seconded Representative Wuchner that the committee vote to report the findings that explain why Executive Order 2012-587 is out of order and report them to the Legislative Research Commission Director with the understanding that he will forward them on to the Governor was approved by voice vote. Representative Wuchner reminded Senator Denton that she had requested a roll call. Senator Stine stated a motion and a second for a roll call vote had already been offered. Senator Denton said to take the roll call.
While Senator Buford was explaining his yes vote, a motion to withdraw the roll call vote request was made by Representative Wuchner. Senator Denton stated that a motion for a roll call vote had been withdrawn. Senator Buford stated that if the committee did a roll call vote, once a quorum has been established, and it was earlier, the committee was at that moment just to have the majority, and that he needed to go back on his statement that it did not matter because it does. Senator Denton stated that there was a quorum. Senator Denton stated that only 11--not 14—members were needed to have a quorum. If the quorum was established, and it was in the beginning of the meeting, a vote at this moment and time does have meaning, so Senator Buford withdrew his statement that it does not matter, because it does. It takes a simple majority of what is remaining in the room once the quorum was established at the beginning of the meeting. This is a valid vote that will be taken. He stated that he thought a roll call should be taken, but wanted the record to show that all present voted aye and there was no opposition if only a voice vote is to be taken. Senator Denton stated that the motion had already passed with a voice vote, but if it is the will of the committee to go back and to do a roll call, the committee could go back. Senator Kerr seconded the motion to withdraw the roll call vote made by Representative Wuchner.
Senator Denton stated that the record would show the vote on the motion was unanimous with no dissenting votes.
In response to questions by Senator Denton, Executive Director Banahan stated that there is no additional cost information available. The cabinet is in the procurement process and hopes to have a signed contract in the next few weeks at which time the developmental costs, operational costs, and future costs to be incurred will be known. Deputy Director Nold stated that the PowerPoint presentation is self-explanatory.
In response to questions by Representative Wuchner, Executive Director Banahan stated that the cabinet has received $65 million in planning and establishment grants. Most of the $1 million planning grant has been expended. Approximately $1 million of the $7.6 million is left from the first Level I establishment grant. The second Level I grant for $57.6 million will be paid to the vendor as soon as the contract is signed. Mr. Nold stated that when the cabinet applied for the federal grants, information was provided on how much money was needed and why and then the grants were awarded by the federal government. All of the planning and establishment grant funds is in the cabinet’s budget system and is being tracked by cost center numbers attributable to each grant.
In response to questions by Senator Stine, Executive Director Banahan stated that approximately a year and a half ago a stakeholder survey was conducted that asked questions about establishing a state-based exchange and is posted on the cabinet’s web site. Anybody was able to respond to the survey. Of the 45 stakeholders, 24 responded. The majority of the stakeholders that responded had proposed that Kentucky establish a state-based exchange. She would have to check to see how much of the $1 million planning grant was used for the survey. Senator Stine requested that information on the accounting of the grants be provided at the next committee meeting.
Senator Denton requested that an update and accounting information of the health benefit exchange be given at the October meeting.
Legislative Hearing on Executive Order 2012-585, relating to the Establishment of the Child Fatality and Near Fatality External Review Panel
Dana Cox Nickles, Policy Advisor to the Secretary, Cabinet for Health and Family Services, stated that child safety is important to the executive, legislative, and judicial branches, private partners and advocates. The executive order is very specific on who the 17 members appointed to the panel. The panel will meet quarterly to analyze data and recommend improvements to the cabinet as well as the Department for Community Based Services (DCBS) and any other private or public agency that can assist in making things safer for children. An annual report will be published of the panel’s findings and recommendations.
Dr. Terry I. Brooks, Executive Director, Kentucky Youth Advocates, stated that he has three recommendations: 1) inclusion of a medical professional in the legislation; 2) create a more reliable data system; and 3) external fatality review panel. The review panel needs to be independent of the cabinet and the Governor’s office and needs to be in a constitutional office. The board members cannot represent groups whose financial reliability comes from the cabinet. The powers and protocols need to be included in the legislation. A decision needs to be made about what and how data is released in order to have transparency and if the panel has subpoena power. Legislation needs to be enacted in 2013 in order for the panel to continue its work.
Representative Wuchner stated that the review panel needs to be in a location that is totally objective.
There being no further business, the meeting was adjourned at 3:22 p.m.